Daher v. Dayfallah, 2024 ONSC 5305

Court File and Parties

COURT FILE NO.: FC-24-1576 DATE: 2024/09/25 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Omar Daher, Applicant AND: Jenan Dayfallah, Respondent

BEFORE: Justice M. Fraser

COUNSEL: Mounir Elmalih, Counsel for the Applicant Yasmeen Abbadi, Counsel for the Respondent

HEARD: September 24, 2024

Endorsement

Overview

1The parties, Omar Daher (the “Applicant”) and Jenan Dayfallah (the “Respondent”) have brought a motion and cross-motion. Both seek orders, among other things, for the primary residence of their child, Zakaria Daher, age 4 (“Zakaria”).

2It was raised at the outset of the hearing that certain exhibits filed by the Applicant should be struck from the record on the basis that they contained without prejudice communications. Both parties consent to these exhibits being removed from the record. An order shall issue, therefore, on consent, striking Exhibits A and B to the Applicant’s affidavit sworn September 20, 2024 and Exhibit D to the Applicant’s affidavit sworn September 6, 2024.

3This matter was deemed urgent after the Applicant enrolled the Zakaria in a school in Ottawa a few days prior to the start of school. Prior to that, Zakaria had been enrolled to attend school where the Respondent resides in Cambridge, ON.

4The Applicant seeks primary residence of Zakaria with him in Ottawa, ON. The Respondent seeks primary residence of Zakaria with her in Cambridge, ON.

5These motions are brought on an urgent basis prior to a case conference being conducted. A divorce application was commenced by the Applicant but has not yet been served on the Respondent.

Background

6The parties were married in October 2017. The parties separated five years later in September 2022. During the marriage the parties resided in Ottawa. Shortly following their separation (November 29, 2022), the Respondent moved to Kitchener, ON. In May 2023, the Respondent moved to Kitchener’s neighbouring community, Cambridge, ON.

7The parties have shared equal parenting time of Zakaria since separation. Zakaria is a healthy child with no medical or educational challenges.

8The Applicant consented to the Respondent’s relocation to the Kitchener-Waterloo region in late 2022. From the parties’ separation to date, Zakaria has spent his time equally with the parties moving between their respective residences in Ottawa and Cambridge. For the most part, he would reside with the Applicant for two weeks and then the Respondent for two weeks in a two-week-about shared parenting arrangement.

9Since the Respondent’s move to Kitchener, the Respondent oversaw transportation of Zakaria to Ottawa for the Applicant’s parenting time. She maintains that she did so on a temporary basis until the parties could finalize an agreement. The Respondent advises that she does not have a car and rented a car or took the train, without any contribution by the Applicant. The parties’ respective residences are approximately 520 km apart, which is approximately a 5 hour and 15-minute drive.

10The Respondent maintains that Zakaria has established a community and connections in Cambridge. Zakaria was enrolled with Cambridge United, a soccer league where his fellow players are enrolled at Chalmers Street Public School. The Respondent maintains that Zakaria has a strong connection with the Respondent’s fiancé and the fiancé’s family, including children, in Cambridge. In other words, while Zakaria may have been born in Ottawa, he has truly resided in two communities, Ottawa and Kitchener/Cambridge, for most of his young life.

11The parties have never entered into a formal Separation Agreement on any of the issues arising from their separation. However, the Respondent asserts that the Applicant repeatedly represented to the Respondent that he agreed that Zakaria’s primary residence was to be with the Respondent once Zakaria began school.

12The written communications between the parties produced in their materials clearly demonstrate that the Respondent made efforts to have her understanding of the parties’ agreement that Zakaria would live primarily with her once he started school incorporated into a written agreement. These communications include requests from the Respondent’s counsel who ultimately was retained to negotiate the terms of a final agreement when the Applicant did not respond to the Respondent’s request that the parties clarify with greater certainty the understanding between the parties with respect to Zakaria’s school and routine once he began junior kindergarten. These communications included the Respondent’s counsel providing extensive information regarding Zakaria’s enrollment at Chalmer’s Street Public School in Cambridge, ON to ensure that the Applicant could be involved in the school process in a meaningful manner.

13Zakaria is now 4. He is to be starting junior kindergarten. This requires him to attend school on a full-time basis. This renders the shared arrangement that has been in place untenable. Given no formal agreement has been arrived at concerning where Zakaria is to reside, the issue is before me as an urgent motion.

14The Applicant does not dispute that the parties have discussed Zakaria’s primary residence directly and through counsel since February 2024. The email exchange introduced as evidence of those communications supports the Respondent’s position that she understood and relied on the Applicant’s apparent acknowledgement that Zakaria would be in the Respondent’s primary care once Zakaria commenced school.

15Indeed, the Respondent registered Zakaria in Chalmers Street Public School within her catchment area in Cambridge, ON. The emails reflect that the Respondent communicated details of the registration to the Applicant since May 2024 on several occasions. The Applicant was invited to the orientation and was provided with the school guidebook. He was included in communications with the school and he was sent pictures of Zakaria at orientation. The Applicant, however, did not respond to the Respondent’s communications as it pertained to this issue nor did he advise that he was not in agreement with this arrangement.

16On August 31, 2024, the parties were scheduled to exchange Zakaria ahead of the start of school. The exchange did not occur and instead the Applicant withheld Zakaria from the Respondent without advance warning to her that this was his intent.

17The Respondent was then served with the Applicant’s urgent motion materials on September 2, 2024. The Respondent learned through these materials that the Applicant had registered Zakaria in school in Ottawa on August 29, 2024 without discussing the choice of school with her and without informing her of the fact he had done this.

18The Respondent, in response, attended the school in Ottawa on the first day and removed Zakaria and returned to Cambridge, ON with him.

19In return, the Applicant contacted the school in Cambridge, ON. He advised the school that he would not permit Zakaria to attend that school unless and until a Court Order is obtained. The school confirmed with the Respondent that the Applicant informed them on September 3, 2024 that he did not consent to the child’s enrolment.

20Zakaria has therefore now been out of school for approximately three weeks.

Positions of the Parties

21The Applicant seeks an Order for the primary residence of Zakaria and for Zakaria to be enrolled in school in Ottawa. He is prepared to continue with a shared two-week-about shared parenting arrangement. However, for this to be workable, he proposes that the Respondent work remotely from her mother’s home in Ottawa for two weeks each month so that Zakaria can reside with her there. He alternatively proposes that Zakaria reside with him primarily and that Zakaria have parenting time with the Respondent every second weekend.

22The Respondent mother seeks an Order for the primary residence of Zakaria to be with her and for Zakaria to be enrolled at Chalmers Street Public School in Cambridge, ON. The Respondent proposes that the Applicant have access one weekend per month in addition to six long weekends occurring during the year.

23Both parties propose a sharing of holiday time.

Issues

24The outstanding issues therefore to be determined on an urgent interim basis are as follows:

(a) Should Zakaria’s primary residence be with the Applicant in Ottawa, ON or with the Respondent in Cambridge, ON; (b) What parenting schedule will Zakaria have? (c) Should Zakaria attend school in Ottawa, ON or in Cambridge, ON?

Legal Framework

25The issues in this matter are governed by the Divorce Act (R.S.C. 1985, c. 3 (2nd Supp.)) (the “Act”). The sole criterion for determining Zakaria’s primary residence, the parenting schedule and which school Zakaria ought to attend is based upon consideration of the best interests of Zakaria pursuant to section 16 of the Act.

26Pursuant to section 16 (3) of the Act, the best interests of Zakaria are to be determined by considering all factors related to the circumstances of the Zakaria. Primary consideration is to be given to his physical, emotional and psychological safety, security and well-being.

27These factors include but are not limited to:

(a) Zakaria’s needs, given his age and stage of development, such as the child’s need for stability; (b) The nature and strength of Zakaria’s relationship with each parent, any siblings and grandparents and any other person who plays an important role in his life; (c) Each parties’ willingness to support the development and maintenance of Zakaria’s relationship with the other spouse; (d) The history of care of the Zakaria; (e) Zakaria’s views and preferences, giving due weight to Zakaria’s age and maturity, unless they cannot be ascertained; (f) Zakaria’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) Any plans for Zakaria’s care; (h) The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of Zakaria; (i) The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (j) Any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of Zakaria; (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting Zakaria; and (k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety security and well-being of the Zakaria.

Analysis

28The purpose of today’s proceeding is to determine what temporary order should be in place pending the ultimate determination of Zakaria’s best interests based upon those criteria.

29In this respect, the proceeding has only just been commenced. While I am to consider all relevant factors when determining what interim arrangement would be in Zakaria’s best interest, the evidence available to me at this stage of the proceeding falls woefully short of providing the evidence ultimately needed to make a final determination of what order would be in Zakaria’s best interest.

30It is clear that there are genuine issues requiring a trial. In these circumstances, I consider it imperative that any arrangement be decided with due caution not to upset the status quo on an interim basis when such an order could influence the result at trial.

31Furthermore, I am not at this stage equipped with sufficient evidence to conclude that one party’s position is so compelling that a temporary order in favour of their ultimate position is warranted. Rather, in these circumstances I conclude that it is preferable to strive to maintain and protect the status quo to the extent that this is possible so that the terms of any temporary order does not negatively impact either party’s relationship with the child pending the determination of the proceeding with a full hearing on its merits.

32There are issues of credibility which will ultimately need to be assessed in this proceeding and, ideally, this will be done when a full evidentiary record is available.

33In this instance, the status quo consisted of the two-week-about parenting arrangement. Unfortunately, now that Zakaria is to begin school on a full-time basis, this status quo is not workable.

34That said, and without minimizing the benefit of Zakaria attending school, I am of the view that some accommodation needs to be made which ensures that pending a final hearing in this matter, Zakaria’s quality time with both his parents is preserved.

35In my view, a temporary order should be made which effectively preserves the frequency of Zakaria’s contact with both parents as best as possible pending the determination of the issues in this proceeding while providing an opportunity to Zakaria to attend school and begin formative learning. I conclude that this can best be achieved through an order that Zakaria remain in the care of one of the parties primarily while he attends school but ensures that Zakaria is able to have substantive time with the other party nonetheless even if it is no longer by way of a two week-about schedule. To achieve this, I am of the view that over the short term, Zakaria’s attendance at junior kindergarten may need to be compromised.

36This parenting arrangement needs to be determined in conjunction with which parent is to have the primary care of Zakaria on a temporary basis pending the determination of the issues. The issue of which school Zakaria will attend will then follow.

37What influences my conclusion as to where Zakaria should primarily reside and what parenting arrangement might best provide him with the stability and security he needs on an interim basis arises from my sense of how this motion came about. While I have no reservations whatsoever, based upon the materials presently filed, about the ability of either party to care for Zakaria and provide him with a loving, nurturing home, I conclude that Zakaria should be in the primary care of the Respondent at this time for the reasons that follow.

38I see that the Respondent made considerable effort to address this issue in advance of the September start date for school with a civil, respectful request for dialogue. I see that the Respondent was led to understand that enrolling Zakaria in school in Cambridge had been agreed upon. I see that she sought to clarify and ensure this was the understanding between the parties.

39I see from the materials that the Applicant for the most part remained silent and effectively refused to engage in the necessary discussions so that a mutual decision could be arrived at. It was clear that the two week-about status quo was no longer possible once Zakaria was to start school. It would seem that the Applicant chose, instead of discourse, to take matters into his own hands and withhold Zakaria from the Respondent in order to send him to a school in Ottawa without any advance notice to the Respondent that this was his intent. No consultation occurred. The Applicant took unilateral steps and acted. No consent was sought from the Respondent. This was accompanied by the child being withheld from the Respondent and brought to a school the child had not known he would be attending. Only by way of the urgent motion being served on the Respondent was the Respondent made aware of the unilateral steps the Applicant had taken.

40These actions in and by themselves inform me that the Respondent appears to be:

1. best able to provide Zakaria with the stability needed appropriate to his age and level of development. In this instance, the Applicant upset the status quo which had been in place, without warning to the Respondent and without, in my view, due consideration of the child’s need for stability and predictability;
2. most willing to support the development and maintenance of Zakaria’s relationship with the other. The Applicant took actions which effectively unilaterally determined what the parenting arrangement should be despite and in the face of the Respondent’s efforts to consult and confer with him;
3. most able and willing to communicate and cooperate, on matters affecting the Zakaria. The Applicant demonstrated an unwillingness through his actions to communicate and cooperate with the Respondent for the sake of the child while the Respondent demonstrated that she wished to engage the Applicant in an effort to cooperatively find solutions in the best interests of Zakaria.

Order

41In my view, albeit it based upon the limited evidence available to me, I consider the best interests of the child in this instance requires that a temporary order be made as follows:

1. Zakaria shall reside primarily with the Respondent pending further order;
2. Zakaria shall attend the Chalmers Street Public School in Cambridge Ontario as earlier planned until further order;
3. Until further order or unless the parties agree to a different arrangement, the Applicant shall have parenting time with Zakaria over the course of one extended weekend per month. That “weekend” shall begin on a Thursday morning beginning at 8:00 am and end on a Tuesday evening at 6:00 pm and may occur in Ottawa at the Applicant’s sole discretion;
4. To accommodate the Applicant’s parenting time, and given that Zakaria is young and at a very early level at school, Zakaria shall not have to attend school on the Thursday, Friday, Monday or Tuesday of the extended weekend which is intended for the Applicant’s parenting time;
5. The specific weekend of each month on which the Applicant’s extended weekend shall occur shall be agreed upon by the parties failing which they may arrange for a virtual attendance before me within 30 days from today’s date to make that determination. If an attendance is required, I ask that the school calendar be provided to me for that attendance. When possible, the weekend should occur in conjunction with a long weekend or a weekend which occurs with a professional development day landing on either side of that weekend. The choice of weekend should be made in a manner which minimizes Zakaria missing days from school;
6. The parties shall share any holidays on an equal basis (the Christmas holidays, March break, and summer vacation) pending further order and absent an alternate arrangement agreed to by them;
7. The parties shall each be responsible for transporting Zakaria one direction to facilitate the Applicant’s parenting time. Ideally the Respondent would oversee transporting Zakaria to Ottawa on Wednesday evening so that the exchange can take place on Thursday morning and the Applicant would return Zakaria to Cambridge on Tuesday;
8. The above parenting arrangement is intended to operate as a “stopgap” measure to preserve Zakaria’s ability to have quality time with both of his parents pending the determination of the issues in this proceeding. It is not intended to be a long-term solution. Therefore, it is expected that the parties ensure that this proceeding is advanced with all due dispatch. As such, the Applicant is to ensure that the Divorce Application which has been issued is served upon the Respondent forthwith and that the Respondent respond to the Application at her earliest opportunity. This matter is to be scheduled for the earliest Case Conference date which can be made available through the trial coordinator and a timeline for this proceeding should be addressed by the parties at that event.

Costs

42I consider the Respondent to be the successful party and presumptively entitled to her costs for this motion. The parties are strongly encouraged to settle the issue of costs as between themselves. However, if the parties wish to make submissions on the issue of costs, then the Respondent may file submissions concerning costs on or before October 9, 2024. The Respondent may file submissions concerning costs on or before October 15, 2024. The submissions of both parties shall be no more than three pages in length, double-spaced, plus any offers to settle and bills of costs. If there are no submissions received by October 15, 2024 then there shall be no order as to costs.

M. Fraser J.