Iqbal v. Zaman, 2007 ONCJ 145 (CanLII)

Brampton Registry No. 403/06

DATE:   2007·III·21

CITATION:   Iqbal v. Zaman, 2007 ONCJ 145

ONTARIO  COURT  OF  JUSTICE

BETWEEN:

MUSHARIF  IQBAL,

Applicant,

—  AND  —

BADAR  ZAMAN,

Respondent.

Before Justice Juliet C. Baldock

Heard on 7 March 2007

Reasons for Judgment released on 21 March 2007

CUSTODY OF CHILD — Interim custody — General — Purpose of interim custody order — Preserving status quo for trial judge without prejudice to children’s welfare — Six months ago, court had made interim interim “without prejudice” order whereby 3 children (14, 12 and nearly 8 years old) spent equal time with parents on alternating weeks — Now, on competing motions for interim custody, motions judge was faced with quite conflicting affidavit evidence and was concerned that parties’ very different parenting styles and their seeming inability to co-operate might well rule out any option for joint custody at trial — Lawyer for children confirmed that they all liked to spend considerable time with each parent and had expressed no clearly defined preference for either parent — Motions judge had no indication that children were unhappy with current situation, which, although not ideal, seemed to meet their short-term needs — Moreover, current situation preserved each parent’s position, pending final outcome of custody dispute — Granting one parent interim custody now could prejudice other’s chances of success at trial and might result in significant upheaval to children now and yet again after trial — Neither outcome would benefit children — Motions judge dismissed competing motions and confirmed previous as interim order.

Glen A. Cook  …………………………………………………………………………………   for the applicant mother

Anser U. Farooq  ……………………………………………………………………………   for the respondent father

Mark N. Demeda  …….   for the Office of the Children’s Lawyer, legal representative for the children

[1]                       JUSTICE J.C. BALDOCK:—  The parties have each brought a motion seeking temporary custody of their three children:

[2]                       Both parents are represented by counsel, Mr. G. Cook for the applicant mother and Mr. A. Farooq for the respondent father.  The children are represented by the Office of the Children’s Lawyer with Mr. M. Demeda as children’s counsel.

[3]                       The main application was commenced over a year ago by the mother.  The father had also prepared an application himself but the mother was the first to file, thus she appears as the applicant.

[4]                       In her material, she alleges physical and mental abuse by the respondent as the reasons for the end of their 15-year marriage.  She asserts that she was the primary care giver of the children during their early years and following the separation in 2004.

[5]                       The father’s material sets out a rather different history.  He maintains that, until May 2006 when the mother unilaterally decided to keep the children with her, they had in fact resided primarily with him and only spent occasional weekends with the applicant.  He has appended letters from various individuals to support his position.

[6]                       On 8 September 2006, an order was made on a “temporary and without prejudice” basis, whereby the children spent equal time with the parents for alternating weeks from Friday to Friday.

[7]                       The matter was then adjourned to allow the parties to bring their motions for custody.  It was again adjourned to allow Mr. Demeda the opportunity for further discussions with the children and to follow up with various corollary sources.

[8]                       The mother argues that the father leaves the children alone for extended periods of time, including overnight, and that he forces the children, especially Mustafa, to do excessive work in his home even when they are not in school because of illness.  She also raises the concern that the father is talking to the children about the outcome of these proceedings and attempting to influence them in their choice of residence.  This is strictly prohibited by the terms of the order of 8 September 2006.

[9]                       Her other main concern is that the father continues to make decisions regarding the children, particularly with respect to their education, without consulting her.

[10]                  He, on the other hand, accuses the mother of not spending enough time with the children and not paying attention to their homework obligations.

[11]                  On a reading of the material filed by each parent, it is clear that the children do not express any clearly defined preference as to the parent with whom they wish to live.  Mr. Demeda as their counsel confirms that, although one of them has expressed a slight preference to spend more time with the mother, they all like to spend a lot of time with each parent.  He is therefore not able to take any position on the children’s behalf, on this motion.

[12]                  The parties have very different parenting styles and do not seem able to co-operate well, which may in the future prevent them from enjoying a joint custodial relationship.  However, on the conflicting evidence before me and without any clearly expressed preference by the children, I find that the present arrangement, although not ideal, does allow for the children to experience life with each of their parents on an equal basis.

[13]                  This regime also preserves the position of each before the court, pending trial or other resolution of the custody dispute.  To grant one of them temporary custody could be prejudicial to the other’s chances of success at trial.  It could also result in a significant upheaval now and a further change following a trial.  Neither outcome is of benefit to the children.

[14]                  Each party may well have valid concerns about the other’s parenting but, on conflicting affidavit evidence alone, I am not prepared to make any finding of credibility.  The children’s short-term needs are being addressed by each parent in his or her own way.  There is no indication that the children are unhappy with the current situation, other than that they want the process to be over.

[15]                  I therefore dismiss each of the motions and confirm the order of 8 September 2006 as a temporary order.

[16]                  This is not an appropriate case for costs.

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