Mahmudi-Azer v. Mahmudi-Azer, 2013 BCSC 457

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Mahmudi-Azer v. Mahmudi-Azer, 2013 BCSC 457 Date: 20130318 Docket: 12-4368 Registry: Victoria Between: Alison Lee Mahmudi-Azer Claimant And: Salahaddin Mahmudi-Azer Respondent Before: Master McCallum Reasons for Judgment Counsel for Claimant: A.J. Duncan Counsel for Respondent: G. Sherman Place and Date of Hearing: Victoria, B.C. January 24, 2013 Place and Date of Judgment: Victoria, B.C. March 18, 2013 INTRODUCTION [ 1 ] The claimant mother applies for interim sole custody and guardianship of the four children of her marriage to the respondent father.

The claimant says she wishes to relocate the children to Calgary, Alberta, from Courtenay, British Columbia, where they were residing prior to the parents’ separation. [ 2 ] The respondent has been charged with uttering threats against the claimant and was released from custody pending trial on condition he have no contact with the claimant or the children except as ordered by the court with respect to the children.

The claimant says she is fearful for her safety and that of the children and does not wish to return to live near the respondent. [ 3 ] The respondent concedes that pending his trial on the criminal charges, the children should live primarily with the claimant but says the family should not relocate to Alberta but remain living on Vancouver Island in order to facilitate his contact with the children. [ 4 ] For the reasons that follow, I have concluded that the parents should be the joint guardians of the children on the terms set out in the “Master Joyce” model order with primary residence of the children with the claimant.

The application to relocate the children to Alberta is dismissed. The children’s residence ought not to be changed from Vancouver Island without the agreement of the parents or an order of the court. BACKGROUND [ 5 ] The parties were married in January 2002. They have four children ranging in age from eight years to eight months of age.

They separated on December 16, 2012 when the claimant left the matrimonial home with the children following allegations of threats by the respondent. [ 6 ] The respondent was charged with the criminal offence of uttering threats to cause death or bodily harm and released on condition that he have no contact with the claimant or the children without a court order allowing contact with the children. [ 7 ] The claimant and the children went to Victoria following the separation where the claimant retained counsel and commenced this proceeding and this application.

She and the children then travelled to Edmonton, Alberta, where the claimant has family. She apparently remains there pending the hearing of this application. [ 8 ] When the application was filed, the claimant wished to relocate with the children to Edmonton, Alberta. Her original material contains a letter from a prospective employer and suggestions from the claimant about housing and schooling arrangements for the children.

When the application came on for hearing, the claimant advised that she wished instead to relocate to Calgary, Alberta, where the family had resided prior to their move to British Columbia in 2012.

[9] Following their marriage in 2002, the parties lived in Vancouver, then Calgary, Vancouver again and Calgary again beforemoving to Courtenay, British Columbia, in September 2012. During their marriage, the respondent completed his medical degree andspecialist training in internal and intensive care medicine. The claimant was variously employed and home with the four children shebore during that time. [10] Given the nature of the respondent’s academic and job requirements, it seems beyond doubt that the claimant was the parentwith primary responsibility for the children during the marriage.

The respondent concedes that was the case, although he says hemaintained close contact with the children throughout. Both parents are highly educated, both worked at times and they often relied uponthird party caregivers to assist with the needs of the children. [11] The claimant and respondent grew up in significantly different cultures. The claimant was born and raised in Alberta in what shedescribed as a “middle class” family. The respondent arrived in Canada as a refugee from Iran. He describes himself as a “secularMuslim”.

It is apparent from the affidavit material that cultural differences have played a significant role in the breakdown of theirrelationship. Each of them has much to say (almost all contradictory) about the importance or otherwise of the respondent’s belief systemand cultural makeup, particularly as it pertained to the marriage and the raising of the children.

For the purposes of these reasons, it isneither possible nor necessary to determine where the truth lies in these many contradictions. [12] The claimant alleges that by the fall of 2005, she had become fearful of the respondent primarily because of what she refers toas his wish that the family (and she in particular) live in accordance with traditional Muslim values. She says the respondent threatenedto kill her following events involving another man.

The claimant says she did not disclose those threats to anyone because of her fear ofrepercussions from the respondent. [13] The claimant says similar threats were made in 2007 while the family was visiting in Vancouver. She says she did not disclosethose threats out of fear of the respondent.

The claimant says the respondent threatened her for the final time on December 16, 2012,when he threatened to kill the family if she followed through on her stated objective of taking the children and separating from him.Those events lead to the laying of the current charges against the respondent. [14] For his part, the respondent denies all of the claimant’s allegations. He says the claimant suffered significant abuse during herown childhood and has been treated for depression for much of their relationship. The claimant acknowledges some treatment fordepression but denies any suggestion of childhood abuse.

The respondent says he was supportive of the claimant and denies any conductthat would have resulted in her fearing him. [15] The respondent relates, in his affidavit, a detailed and specific account of the specific events leading up to the separation onDecember 16, 2012. He denies threatening to kill the claimant or the children. [16] The facts that are undisputed relate to the family moves and the children’s schools, although the reasons for the moves andschool changes are controversial. The claimant says the children should be returned to school in Calgary where they had been prior to themove to Courtenay.

The children changed schools in Courtenay in the fall of 2012 by agreement of the parents for reasons that are nowcontroversial. DISCUSSION [17] There is no evidence other than that of the parties. Their material, in almost every relevant particular, is contradictory. It is notpossible to say, with any degree of certainty, where the truth lies.

Fortunately, for the purposes of this application, it is not necessary toresolve the factual uncertainties. [18] The claimant says she and the children should live in Alberta in order that they can be safe from the respondent and so that thechildren can return to school in Calgary.

The children had just started at a new school in Courtenay when the parties separated and theclaimant argues that they ought to return to their former schools in Calgary. [19] The respondent acknowledges that the children will live with the claimant pending resolution of the criminal charges but saysthey should remain in or around Courtenay in their schools to facilitate contact with him.

The respondent plans to remain in Courtenayindefinitely and continue with his medical position there. [20] The claimant argued that this application ought to be approached as a so-called mobility application and decided on the basis ofthe law in that regard: Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27. The difficulty with that approach is that this is notan application to vary an existing order with respect to the children’s residence.

This is an interim application to establish a parentingregime that will accommodate the best interests of these children pending resolution of the litigation over parenting. [21] Given those facts, I approach this application in the way outlined by Martinson J. in A. v. B., 2009 BCSC 1916 at paras. 7-10: [7] It is important to keep in mind that this is an application for a temporary order. [8] At the trial, if there is a trial, the court will consider the legal principles that relate to relocation at an initial application. Theposition has been recently summarized by Madam Justice D.

Smith, for the court, in Falvai v. Falvai, 2008 BCCA 503, 86 B.C.L.R.(4th) 47, and I have kept those legal principles in mind. [9] However, as counsel for B. has fairly conceded, the test is different on an interim application. Generally, the status quo shouldbe maintained unless there is cogent evidence requiring a different result. The court will generally, in an interim application, consider allevidence in the affidavits to be true: W.G.H. v.

J.L.H, 2008 BCSC 1007. [10] The result is that the Court could order an interim move, but this requires first an examination of the status quo, and then aconsideration of whether there is cogent evidence requiring the move.

[ 22 ] In the case at bar, the status quo is the children living in Courtenay with the claimant as the person primarily responsible for their day to day care. The respondent was the primary breadwinner and the two older children were in school. [ 23 ] Is there cogent evidence requiring a change to that status quo ? The allegations of the claimant are extremely serious. If they are true, the claimant and the children may be at risk and require protection.

The respondent denies the allegations and intends to defend himself against the charges. [ 24 ] There is no reliable independent evidence concerning the children and the impact of these events on them. The parties agree that there must be contact between father and children under some kind of supervised conditions at least as a beginning. It is possible that could be accomplished even in the face of a move but the question is whether that is either necessary or desirable. [ 25 ] I am not persuaded that the move to Alberta has been shown to be necessary on an interim basis.

It is based solely upon the allegations of threats and the claimant’s fear for her personal safety. There is, in my view of the material, no cogent evidence requiring a move. [ 26 ] The children’s best interests are protected by the order securing the respondent’s release from custody. Their interests are better served by remaining in Courtenay in the primary care of their mother while maintaining regular contact with their father pending resolution of the criminal charges and this litigation.

CONCLUSION [ 27 ] The claimant will have interim sole custody; the parties will share joint guardianship on the Joyce model. The residence of the children will not be changed from the Comox Valley Regional District absent agreement of the parties or an order of the court. I leave the question of contact with the respondent to the parties or further order of the court. The question of support will go over to another day or agreement of the parties. [ 28 ] The parties shall bear their own costs of this application. “W. McCallum” Master W. McCallum