) ) Ruben Yousuf Applicant – v. –, 2013 ONSC 2626

CITATION : Yousuf v. Kazi, 2013 ONSC 2626 COURT FILE NO.: 10-44581 DATE: 2013-05-06 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Ruben Yousuf Applicant – and – Shabiha Sheela Kazi Respondent ) ) ) ) ) ) ) ) ) ) ) Michael D. Lannan, for the Applicant Anna Towlson, for the Respondent ) ) ) HEARD: THE HONOURABLE MR. JUSTICE R.D. REILLY reasons for judgment [ 1 ] The parties were married on June 9, 2006 in Bangladesh. The marriage was arranged by their parents and took place in Bangladesh. The parties first met in May of 2006, when the husband travelled from Canada to Bangladesh to meet his bride-to-be.

After the marriage, the husband spent some time in Bangladesh, living with his in-laws and then returned to Canada. The wife came to Canada in January of 2007, sponsored by her husband. They first lived in a matrimonial home in Calgary, with the husband’s parents. [ 2 ] In 2006 and 2007, the husband worked for Novatel Incorporated in Calgary and in March of 2009 came to Ontario to seek new employment.

The first child of the union, Rowan, was born on the 16th of November 2007 and lived with his parents in the matrimonial home. [ 3 ] During their early years of marriage, subject to her commitments as a mother, Shabiha Kazi worked at various part-time employment. [ 4 ] Their second child, Sohan, was born on the 17th of February 2010. Prior to his birth, the applicant/father appears to have returned to Calgary, in April of 2009 and then in July of 2009, returned to Ontario.

As of September of 2009, the family resided in Ontario at a residence at 35 Woodside Avenue in Cambridge. [ 5 ] Although there was initially some dispute as to the actual date of separation, the parties have now agreed upon a date of separation of June 30, 2010. It was on that date that the applicant/father left for a trip to Bangladesh, which lasted for some three weeks. It was during that trip that the applicant/father apparently attended an engagement ceremony with another woman committing himself to a future marriage. His fiancée is a young woman, apparently 24 years old, who has a daughter.

They live currently in England. [ 6 ] I have summarized these events of the rather unsettled marriage arrangements between the husband and wife. It may be noted that they are both fully adult. The husband was born in November of 1977 and the wife in February of 1981. The husband has a Masters Degree in engineering and is now involved in a Ph.D. program at McMaster University (though this may have been interrupted due to his employment).

[ 7 ] The mother has a Masters Degree in polyscience from Bangladesh, although her qualifications may not be fully recognized in Canada. [ 8 ] Much conflicting evidence was called at trial, related in particular to father’s estate in Canada, his property and his debts, particularly debts to his family. Having carefully considered the evidence called at trial, I will simply say it is essentially impossible to determine where the truth lies. Prior to and during the course of the marriage, father held title to property in Calgary and owed debts to some of his family members.

No evidence was called by the applicant/husband’s parents, but some evidence was called by his sister, Imona Yousuf, who is a medical student currently studying in the United States. [ 9 ] The husband/father’s financial circumstances are complicated to some extent by his declaration of bankruptcy on January 15th of 2013. [ 10 ] I say complicated to some extent because the matrimonial property, subject to equalization, is of such little substance that his bankruptcy plays little

part in the determination by this court. [ 11 ] Indeed, having considered all of the testimony in this case, and the various exhibits submitted by the parties, I direct that the jewellery, which is currently held by the husband, and the jewellery currently held by the wife, shall not be subject to equalization. Each party shall hold full title to the jewellery currently in their possession. That which is of any significance, the jewellery currently in possession of the wife, I determine was gifted to her by her husband or other family members and is not subject to equalization.

Any jewellery presently in the possession of the husband shall be his and his alone. Any other property currently in the husband’s name or in the wife’s name shall be theirs without any obligation with respect to equalization. I direct that the Acura TL, purchased on the 9th of March of 2007, shall be the property of the respondent/wife. If ownership has not been transferred to her name, such ownership shall be transferred forthwith and she shall be fully responsible for insurance on such vehicle.

The Acura MDX, purchased on the 13th of February 2008, shall be the property of the applicant/husband. [ 12 ] There was conflicting evidence with respect to other property that may still be in the former matrimonial home, including a harmonium and a tabla. Anything still in the matrimonial home shall be the property of the applicant/husband. [ 13 ] I am mindful that there was considerable dispute between the parties with respect to matrimonial property.

Given the relatively brief period of cohabitation and the conflicting evidence from the parties, it is impossible for the court to otherwise resolve these property issues. [ 14 ] I now turn to the more important issues to be resolved by my decision. First and foremost, I address custody of the two children, Rowen and Sohan. It is obvious that both parents love their children dearly. Both want to play a meaningful role in the children’s lives.

It is also obvious that the parents are completely incapable of communicating and cooperating with respect to the care of the children. [ 15 ] I conclude on all the evidence that the respondent/mother is a loving and capable parent. I conclude also that the respondent/father should play a meaningful role in the children’s lives. I therefore direct that the mother shall have sole custody of the children. The father shall have liberal and generous access to the children, which mother appears to be prepared to encourage and support.

The father shall have access every Wednesday overnight to Thursday morning from 4:30 p.m. to 9:00 a.m. and every other weekend from Friday at 5:30 p.m. to Sunday evening at 5:00 p.m. Such access shall begin following publication of this judgment. If the parties wish to change the times of this access schedule, they may do so on mutual consent. The father shall also have reasonable access on special occasions, such as family birthdays, religious holidays and vacations. If the parties cannot agree on such

schedule and such times, they may approach the court for specific determination. [ 16 ] Neither party shall attempt to change the family name of the children without the consent of the other party or approval of the court. [ 17 ] The father shall pay child support for the two children of the marriage, Rowen, born the 16th of November 2007 and Sohan, born the 17th of February 2010 in the amount of $1,293 per month, based on father’s reasonably projected income for the coming year of $90,000. [ 18 ] Father shall also pay spousal support to the respondent mother in the amount of $1,300 per month, based upon the circumstances of this case.

Notwithstanding the relatively brief period of cohabitation, given mother’s commitment to the marriage and moving to Canada and her difficulty in establishing herself as self-supporting for the foreseeable future, I direct that the order for spousal support shall be indefinite. However, after some period of time, father may make an application to have the court reconsider the issue of spousal support, at which time the respondent mother will be expected to demonstrate what steps she has taken to become financially self-sufficient.

In determining this level of spousal support, I have taken into account the financial circumstances of both parties as well as the commitments the applicant/father has already made financially and otherwise to a new potential spouse. Suffice to say, I give priority to the applicant/father’s obligations to his current wife and children. [ 19 ] The divorce, which is requested by both parties is granted, to be effective 31 days from publication of this judgment. [ 20 ] If the parties are unable to agree on costs of this action, they may make brief submissions in writing to me at my chambers in Kitchener.

I wish to thank both counsel for their assistance to the court in this matter.

R.D. Reilly J. Released: May 6, 2013 CITATION : Yousuf v. Kazi, 2013 ONSC 2626 COURT FILE NO.: 10-44581 DATE: 2013-05-06 ONTARIO SUPERIOR COURT OF JUSTICE Ruben Yousuf Applicant – and – Shabiha Sheela Kazi Respondent REASONS FOR JUDGMENT R.D. Reilly J. Released: May 6, 2013 lr