Kamil v. Alnoor, 2024 ONSC 346

Court File and Parties

COURT FILE NO.: FS-23-36196 DATE: 20240117 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Noorullah Kamil, Applicant AND: Ruqia Alnoor, Respondent

BEFORE: Schabas J.

COUNSEL: Nan Zheng, Counsel for the Applicant Justin Lee, Counsel for the Respondent

HEARD: January 11, 2024

Reasons on Motion

Overview

1The parties were married for 22 years. They have four children, ages 22, 20, 15 and 4. The children are in the primary care of the Respondent. There is a history of family violence and resulting criminal charges. Only the younger two children, Ah. (age 15) and Ar. (age 4) are subject to parenting orders, given their ages.

2Among other things, the Respondent seeks to strike the Applicant’s pleadings, ensure that his parenting time is supervised, to receive the disbursement of net sale proceeds being held in trust from the sale of the matrimonial home and costs. I heard this motion on January 11, 2024 and reserved my decision.

3The issues for me to decide on this motion are:

a. Should the Applicant’s pleadings be struck? b. Should the Applicant be ordered to undergo a psychiatric assessment? c. Should the Applicant’s parenting time be supervised at his sole cost? d. Should the Respondent be granted temporary sole decision-making responsibility for the children? e. Should the balance of the net proceeds of sale from the matrimonial home be released to the Respondent?

4I have granted the relief sought by the Respondent, except that I have declined to order that the Applicant undergo a psychiatric assessment, for the reasons outlined below.

Should the Applicant’s pleading be struck?

5Rule 1(8)(c) of the Family Law Rules provides that if an order is not obeyed, the court may make an order striking out an Application, or make any other order it considers necessary for a just determination of the matter. In determining an appropriate remedy, the court should consider the significance of the breach or breaches. The remedy of striking a pleading, which effectively prevents any further participation by that party, should be reserved for the most egregious cases of repeated and deliberate disregard and disrespect for court orders and the process of the court, and where no other remedy would be sufficient: Purcaru v. Purcaru, 2010 ONCA 92 at para. 47; Ablett v. Horzempa, 2011 ONCA 633 at para. 7.

6In the family law context, there are many examples of pleadings being struck where financial issues are at stake. However, I have not had cited to me any case in which a parent has had their pleading struck such that they have been unable to participate in litigation respecting parenting issues. See, e.g., Van v Palombi, 2017 ONSC 2492 at para. 47, in which pleadings were struck but the appellant father was permitted to participate in the custody and access portion of the trial, subject to certain limits. Similarly, in Haunert-Faga v. Faga, [2005), the Court of Appeal left open the father’s ability to participate in custody and access issues should he comply with other financial orders. As parenting issues are determined based solely on the best interests of the child, an order preventing a parent from addressing those issues must be rare indeed.

7In this case, the Applicant’s conduct is egregious. Although he very recently complied with several cost orders, some of which had been outstanding for many months, the Applicant remains in breach of several other orders including:

• Failing to comply with an order to pay retroactive child support made June 1, 2023;
• Failing to comply with an order to pay prospective child support order made June 1, 2023;
• Violating an order prohibiting the parties from distributing videos or photographs of the children in distress made October 20, 2023 by sending out videos of his child on November 1, 2023;
• Violating an order prohibiting the Applicant from bringing a motion made September 25, 2023 by bringing a Rule 14B motion on November 23, 2023;
• Violating an order prohibiting the Applicant from driving with the children inside his vehicle made June 1, 2023 as he drove with one child on several dates in September and October, 2023; and
• Violating a parenting time order made June 1, 2023 by remaining with the child beyond 8PM on October 10, 2023; Order.

8The Applicant has breached at least 12 orders and continues to be in breach of ongoing obligations. Since May 2023 the Applicant has required the Respondent to attend at five court appearances. He has been found to have abused the court’s process by registering liens on the matrimonial home in an attempt to frustrate an order that the home be sold. The Applicant has said he will continue to breach orders of the Court.

9In December 2023, the Applicant made threats to bring “legal hell” on the Respondent if she does not settle with him. He has also made threats to the supervision service that has been supervising the transfer of the parties’ youngest child for visits with the Applicant. The Applicant has made threats to the Respondent’s lawyer, and is now pursuing a private prosecution against the Respondent for “denying a child the necessity of life.” The Applicant has also indicated that he wishes to add members of the Respondent’s family as parties to the proceeding.

10In my view, the conduct of the Applicant is egregious. It is willful, extensive and continues. In addition to numerous breaches of court orders, his conduct is vexatious and abusive of the court’s process. Although the breaches do not all, or perhaps even largely, relate to financial disclosure, which is the usual context in which motions to strike arise, the purpose behind striking pleadings is to punish a party for non-compliance with court orders of any kind and to deter others from failing to respect the authority of the court.

11In this case, much of the financial disclosure has already occurred and the prejudice to the Applicant in not being able to make further submissions is likely to be minimal. Accordingly, in these circumstances and having regard to the remedies available in Rule 1(8) and the need to control the court’s process, it is appropriate to strike the Applicant’s pleading, other than to the extent that it asserts parenting issues. With respect to parenting, the Applicant shall not be permitted to bring any motion or take any steps other than to participate in the trial as agreed or ordered at a pre-trial conference or by the trial judge.

12The Applicant is to receive notice of all proceedings regarding parenting issues.

Psychiatric assessment

13In seeking an order that the Applicant be required to undergo a psychiatric assessment at his own expense, the Respondent relies on s. 30 of the Children’s Law Reform Act and the decision of the Court of Appeal in A.C.V.P. v. A.M.P., 2022 ONCA 283 at para. 27, where there is “sufficient evidence that such an assessment would be directly pertinent to determining the best interests of the child.” In that case the parent had demonstrated suicidal tendencies. In MBAY v. JY, 2013 ONSC 4423 at para. 88, a psychiatric assessment was ordered following a trial, where there was evidence of a “fixed negative perspective”, suicidal ideation, a history of substance abuse and other “mental health red flags.”

14In this case, the Applicant has made a range of disturbing allegations against the Respondent, such as alleging she had an inappropriate relationship with the Applicant’s previous lawyer, that she is dead and that she is an imposter, that she has plotted to kill him, that one of their teenage children tried to commit suicide, that the Respondent’s mother “practices black magic”, and so on. The Applicant has repeatedly raised what appear to be unfounded health concerns about the youngest child, a 4-year old.

15All of this is troubling and relevant to the Applicant’s parenting. However, this conduct may also simply be strategic and indicative of anger and frustration. It is not the type of conduct, nor does it raise the same clear mental health concerns discussed in the cases cited above, in which such orders were made following trials. Further, in light of the parenting orders I make below, which require supervision of the father’s visits with the youngest child, I do not see a need at this time to order such an assessment.

16Accordingly, the request for a psychiatric assessment is denied.

Sole decision-making

17An order respecting decision-making is a parenting order. As such, the sole consideration is the best interests of the child: Divorce Act, s.16(3). When considering the best interest factors, I am required to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being: Divorce Act, s.16(2).

18This is a high conflict case. The parents are unable to communicate with one another and the Applicant has not followed directions to use neutral forms of communication. There is little prospect that the parties will agree on anything. Indeed, being required to make efforts to agree will likely lead to more conflict.

19The Applicant submits that I should not make any parenting orders at this time, including for sole decision-making, as the Office of the Children’s Lawyer (“OCL”) has been invited to become involved in this case and therefore the status quo should be preserved until the OCL decides whether or not to become involved in this matter. I do not agree. The OCL may or may not take the case. If the OCL takes it and forms a view of matters different from what I order now, then the issues may be revisited. But it is in the children’s best interests, having regard to the ongoing conflict to resolve this issue, at least temporarily, now.

20The children reside with the mother. I have no grounds to believe that the mother will not act responsibly and make decisions in the children’s best interests, and I grant her temporary sole decision-making responsibility until the trial of this matter.

Supervised parenting

21The Respondent’s position that the Applicant’s parenting time should be supervised is based on concerns over the Applicant’s behaviour during visits and generally, including making disturbing comments and allegations and his continuing breach of court orders.

22Supervised visits are exceptional, and ordered where the alternative is to terminate parenting time altogether. The Respondent does not argue that parenting time should be terminated but has raised valid concerns about the Applicant’s conduct which support supervision and which have been relied on in other cases to support termination: V.S.J. v. L.J.G., at para. 135. These factors include:

• Long-term harassment and harmful behaviour towards the other parent causing the parent and children stress or fear;
• History of violence;
• Unpredictable and uncontrollable behaviour;
• Parental alienation;
• Denigration of the other parent;
• Lack or relationship or attachment to the child; and
• Neglect or abuse to a child during parenting time.

23Many of these factors are present in this case. There is a history of family violence and there are outstanding criminal charges. The Applicant has made disturbing comments recently about people being “eliminated”. He recently raised the chilling possibility of “shooting” to the supervisory entity. He has breached a court order not to drive with the children. His behaviour in taking the youngest child to hospital and making allegations inconsistent with the documented record is troubling. The Applicant has denigrated the Respondent on several occasions and has made bizarre assertions about some of the Respondent’s family, and even about one of their grown-up children. On at least one occasion in the fall of 2023 the Children’s Aid Society had to become involved because of the Applicant’s behaviour.

24I am satisfied that at this stage of the process the Applicant’s parenting time should be conducted under supervision in order to protect the children from harm and to avoid and reduce conflict between the parents which impacts the children. It is clear to me, based on the record, that the Applicant is unable to place the children’s needs and best interests ahead of his own needs to denigrate the Respondent and make allegations against her. It may be that this can be changed over time, as it has changed in the past. Perhaps the OCL will get involved and may take a different view, as suggested by counsel for the Applicant. But on the record before me, and in light of recent events, parenting time by the Applicant should be supervised.

25I also observe that imposing, or re-imposing, supervised visits is not a large departure from the status quo. Since June 2023, there have been supervision orders at various times. Even when the visits themselves have not been supervised, exchanges of the child for visits have been supervised.

26I also agree with the Respondent that in light of the Applicant’s disregard for court orders, an order should issue permitting the police to enforce the return of the child to the Respondent if necessary.

Proceeds of the matrimonial home

27As I have struck the Applicant’s pleadings above, it follows that the Respondent is entitled to have disbursed to her the funds which continue to be held in trust following the sale of the matrimonial home.

28However, even absent the striking of the pleadings I would have made this order. There is approximately $50,000 remaining to be disbursed. The house was solely owned by the Respondent, and based on both parties’ sworn financial statements the Applicant owes an equalization payment to the Respondent in an amount greater than what is held in trust.

Restraining Order

29At the hearing of the motion, the Respondent also sought a restraining order prohibiting the Applicant from contacting members of her family. This relief was not included in her Amended Notice of Motion, dated November 6, 2024. However, there is evidence that in December 2024 the Applicant indicated his intention to seek to add relatives of the Respondent as parties. This is in addition to the Applicant’s allegations against the Respondent’s family that are concerning, such as that her mother practices “black magic” and that the family are close friends of the “Afghan Mafia” and money launderers who tried to kill the Applicant in 2019.

30Section 46 of the Family Law Act only permits restraining orders against spouses, former spouses or persons cohabiting with the spouse or who have cohabited for any period of time. Presumably, this would include the Respondent’s mother and the Respondent’s children. I will not make such an order affecting the children, and I simply do not have enough evidence at this time to make an order against anyone else. Such an order should be brought on proper notice.

Conclusion and costs

31I make the following order:

1. The Applicant's Pleadings shall be struck, pursuant to Rule 1(8) of the Family Law Rules.
2. The time for service and filing of this motion shall be abridged, pursuant to Rule 3(5) of the Family Law Rules.
3. The Respondent’s motion materials shall be permitted to exceed the page limits as prescribed by the Practice Directions, pursuant to Rule 2(2) of the Family Law Rules.
4. The Respondent shall have temporary sole decision-making of the children, namely Sa., Mo., Ah. and Ar., pursuant to section 16(2) of the Divorce Act.
5. The Applicant shall have supervised parenting time with Ah. and Ar., as follows: a. Tuesdays from 5-8PM b. Thursdays from 5-8PM c. Saturday from 1-4PM.
6. Ah.'s parenting time with the Applicant shall be voluntary, and Ah. shall have full discretion in spending any time with the Applicant.
7. The Applicant’s parenting time shall be supervised by Renew Supervision Services ("Renew"), and if Renew is unable to provide services for the family, the Applicant shall be responsible to arrange for alternate supervision services from another supervision centre and he shall be solely responsible for the cost of the supervision services.
8. If the Applicant fails to arrange supervision for his parenting time prior to 24 hours of the scheduled parenting time, the scheduled parenting time shall not commence and the children shall remain with the Respondent.
9. Parenting exchanges shall not occur at the Respondent's residence, or within 100 meters of anywhere she is present, and the Applicant shall not attend the Respondent's residence under any circumstances.
10. If the Applicant breaches the term(s) of a parenting Order, pursuant to section 141 of the Courts of Justice Act and section 36(2) of the Children's Law Reform Act, the Ontario Provincial Police, the local Police Service and any other law enforcement agencies having jurisdiction to enforce the provisions of this Order in the Province of Ontario, in the area where the child and/or children is/are located, shall assist as required to remove the Applicant from the presence of the child(ren), and/or locate, apprehend and deliver the said child(ren) to the Respondent Mother, including utilization of the powers of search and entry at any time.
11. The Applicant’s consent to disbursing to the Applicant the entirety of the proceeds of sale of the matrimonial home located at 62 Brumwell St. being held in trust with Whelton Law Professional Corporation, shall be dispensed with. Whelton Law Professional Corporation shall be directed to release the balance of the proceed of sale of the matrimonial home to the Respondent.
12. The parties shall deliver written costs submissions of no more than three pages double-spaced by January 26, 2024, not including any necessary attachments.

Schabas J.