Fouad v. Fouad

2018 BCSC 1917 Fouad v. Fouad IN THE SUPREME COURT OF BRITISH COLUMBIA. Citation: Fouad v. Fouad, 2018 BCSC 1917 Date: 20181003 Docket: ED83117 Registry: Nanaimo Between: Allana Marie Fouad Claimant And Magdy Ahmed Mahmoud Fouad and Dr. Magdy Fouad Inc., Inc. No. BC922023 Respondents Corrected Judgment: The text of this judgment was corrected at paragraph [3] on November 8, 2018. Before: The Honourable Mr. Justice Baird Oral Reasons for Judgment In Chambers Counsel for the Claimant: K. Sugiyama Counsel for the Respondents: D. Bourgault Place and Date of Hearing: Nanaimo, B.C. October 3, 2018 Place and Date of Judgment: Nanaimo, B.C. October 3, 2018 [1] THE COURT: First of all, I would like to thank counsel and the parties for their willingness to discuss matters freely today. Hopefully this will set in train a process of collaboration and constructive decision-making that will benefit you in the future. As I said earlier, you are doing a lot of things extremely well and are managing a lot better than many people struggling with family cases in this court. [2] There is some important momentum at work here that I hope you will be able to build on. It will help a great deal that you have two sensible and capable legal advisors, and with their assistance I am cautiously optimistic on your behalf that you will be able to settle your differences equitably, non-acrimoniously, and in a

way that will not negatively impact upon your daughter, S.F. [3] Today, however, I must deal with interlocutory cross-applications in this family case involving Dr. and Mrs. Fouad. The claimant is 33 years old, the respondent 63. They began cohabiting on December 15, 2009, and were married on December 12, 2010. The date of separation for some reason is disputed. I am not sure what the dispute is, but I am satisfied that it is not material to the issues before me today. [4] By anyone's reckoning, the parties have been co‑parenting S.F., born January 28, 2013, for close to a year and a half, and in particular, over the last few months, since the middle of May, on a two day/two day/three day schedule, alternating weeks, such that each parent has every second weekend clear with the child. The interim applications before me now concern such parenting arrangements as might be in S.F.'s best interests, pending a trial of all outstanding matters in the case scheduled for ten days starting May 27, 2019. [5] The parties have been before the court on only one prior occasion. That was on March 13, 2018, at a judicial case conference before my colleague, Master Dick, on which occasion consent orders were made, including an order restraining each of the parties from disposing of matrimonial property, requiring appraisals to be done of jointly owned real property, and making child and spousal

support arrangements. [6] In accordance with this order, as well, the parties have taken and successfully completed parenting after separation courses, and that is all to the good. A s. 211 report was also ordered, which during the interval Dr. Waterman has duly produced and distributed. This purports to address S.F.'s needs, her views concerning parenting arrangements, and the ability and the willingness of each of the parties to satisfy her needs. [7] Dr. Waterman has recommended, in brief terms, that the respondent should be S.F.'s sole guardian, and that S.F. should live principally with him; that there should be a marked curtailing of the claimant's parenting time from its present 50 percent allocation to only every second weekend and one weekday evening; and that any significant decisions involving S.F. should be discussed between the parties, but in the event they cannot agree, that the respondent should have the final day-to-day decision-making authority. There were a variety of other conditions recommended, and I do not mean to give them short shrift, but for the purposes of the hearing today, we were more or less exclusively occupied with this parenting arrangement recommendation. [8] Dr. Waterman's recommended parenting plan would, as the claimant has not surprisingly pointed out, comprise a significant departure from that which the parties have pursued since

separation, and for that matter, from that which the respondent himself proposed to Dr. Waterman as the report was prepared. When Dr. Waterman asked the respondent, in other words, what he thought would best for S.F., the respondent expressly supported the co‑parenting arrangement presently in place. In particular, under the heading "parenting schedule" in his report, Dr. Waterman set out the respondent's position that the present two/two/three arrangement was meeting the child's needs, and should be maintained because "it seemed to work well for the child". [9] The respondent specified, however, and this of course was entirely reasonable, that the success of the arrangement would be dependant on the guarantee that neither party would do anything to interrupt or interfere with the other's parenting time, that each of them would decline from making invidious comments about the other in front of S.F., that there should be maintenance of transparent communication and cooperative decision-making between the parties about S.F.'s life and daily affairs, and that generally speaking each party would have to do everything in his or her power to provide a stable environment for S.F., free of manipulation, free of displays of anger, and free of histrionics of every type and description. [10] These, as I say, Dr. Fouad, are perfectly reasonable observations for you to have made. Any

successful co‑parenting arrangement will be dependent on such things. I can see that you have had problems, the two of you, accomplishing these objectives in the past. There have been breakdowns of communication. There have been misunderstandings. There have been times when you have been unable to agree about things, and I have already expressed my opinion that you might both benefit from some additional professional help with healthy communications. [11] The reason why I have gone into detail in describing Dr. Waterman's report concerning parenting arrangements, and Dr. Fouad's articulated position within them, is by way of plainly illustrating that the recommendations made in the s. 211 report comprise not only what I consider to be a dramatic departure from both the status quo obtaining presently, but also from what both parties seem to be striving for and what they agree is in S.F.'s long-term best interests. [12] I share the claimant's misgivings about how the report's recommendations follow logically from Dr. Waterman's evaluation of S.F.'s needs, and each parent's ability to meet them. The status quo, for emphasis, has been a co‑parenting arrangement of some duration that despite difficulties here and there has, in the main, functioned reasonably successfully. I am not suggesting that there is not work to be done. There most certainly is. I am merely saying that,

overall, the arrangement has been more successful than not and that such a marked departure from it does not seem to be necessary or advisable, especially since the respondent himself has clearly stated in his representations to Dr. Waterman, and again to me today, that in his overall assessment, it is in S.F's best interest to be parented equally by the parties. [13] I find it strange and controversial, in particular, that Dr. Waterman should have concluded on the basis described in his report that the respondent should be S.F.'s sole guardian. As I was saying earlier on, this is by no means a commonplace arrangement. A parent's guardianship status, I think it quite clear, is only to be terminated or set aside in very clear cases involving manifest unfitness to parent, or family violence, or other things of a like nature. Such factors are obviously and conspicuously absent from the present case. [14] S.F. herself, and I consider this to be of signal importance, is obviously strongly bonded to both parents. She loves each of them and enjoys spending time with each of them. Such preferences as she expressed to Dr. Waterman were not, in my view, significant. They amounted to little more than a mildly stated affinity for the respondent's household because it is more fun and relaxed. There are fewer rules. But it goes without saying that each party will have different parenting

practices, and each of them is entitled to a degree of autonomy in establishing those practices. [15] It may well be that a child of a divided family prefers in a general way the rules and practices in one household over the other. This is quite normal. But such a thing constitutes no reason to make drastic changes in parenting arrangements of the sort proposed here. I saw nothing in the evidence, in fact, to indicate that either parent engaged in any parenting practice that was other than completely normal. [16] The evidence makes it clear, furthermore, that S.F. is profoundly loved and cared for in either party's home. The report reveals absolutely no issues, as far as I am concerned, of neglect, abuse, family violence, or the like. To the contrary, on all of the evidence, I am abundantly persuaded that both parties are capable and fit caregivers, and that S.F. will enjoy a happy and nourishing environment in either home. [17] This is not to say, as I have already mentioned, that there have not been problems along the way, and some of them have not been trivial. The parties have communication problems. There have been instances of selfish and counterproductive behaviour. But when considering the best interests of S.F., in my view, a long-term view must be taken, and parental misbehaviour must be considered as a matter of degree. [18] Here, although I am perhaps not totally

impressed by the parties' efforts at communication so far, and I can easily see how their failures have occasionally compromised their ability to co‑parent S.F. successfully, nevertheless I also see substantial reason for optimism. There is a large reservoir of success to be added to, and it is the positive aspects of the situation that I propose to accentuate today. [19] I hope that the parties will be able to cooperate better in the future to optimize the functionality of their co‑parenting arrangements. I hope and expect that any antipathy between them will settle down, that ardors will cool, and that these two obviously intelligent, highly capable, loving parents will be able -- especially with some assistance from their many friends and supporters and, if necessary, from professional sources -- to get on about the business of raising this precious child without any further fuss, bother, aggravation or dramatics. [20] I am not going to endorse on an interim basis the recommendations made in the s. 211 report as these amount, in my view, to a far more drastic change to the status quo than is merited on the evidence that I have been given to inspect. If there is to be more discussion and argument that the implementation of these recommendations is necessary in S.F.'s best interests, it will likely be at your trial in May, a trial on which, as I said this morning, Dr. Waterman

will likely be called as a witness and cross-examined with some rigour and enthusiasm about his methods and conclusions. [21] I propose in the meantime to order that the parties are joint guardians of the child, S.F., born January 28, 2013, and that there will be shared parenting of S.F. on the present schedule agreed to by the parties; namely, a two day/two day/three day arrangement. [22] The parties will share parental responsibilities as that term is defined in s. 41 of the Family Law Act. They are to consult with one another about the exercise of these responsibilities, and they are to do so in good faith, with an open mind and, where possible, they are to agree on the exercise of parental responsibilities. However, I am going to introduce into the mix a provision which gives one of you the right to make a final decision in the absence of agreement. [23] On the basis of all of the evidence, I hereby order on an interim basis that Dr. Fouad will exercise a parenting responsibility about which there has not been agreement, subject to Ms. Fouad's discretion to make application to the court to prevent the proposed exercise of the responsibility if she believes bona fide that it is not in the child's best interest. [24] We have not managed to reach an agreement about counselling or assistance, and I am not going to impose one in the absence of a true willingness on both your

parts to engage in such things. I am prepared, for the time being, to let things proceed more or less as they have, and give you the opportunity to establish a track record of smoother cooperation and successful communication on these types of issues. [25] I want to make it clear, as well, that this is a summary hearing and an interim order pending the trial of the matter, on which all of your issues will be examined in a great deal more detail. A ten-day trial is, for a family in a family case of this sort, a long trial and I expect that there will be a very detailed examination and re‑visitation of all of these things then, if necessary. [26] What other items of relief in your notice of application, Ms. Bourgault, did you want me to address? [27] MS. BOURGAULT: Yes, the child's passport, social insurance card and medical card, that they get delivered to the respondent. [28] MS. SUGIYAMA: My Lord, my client has always been the one that has taken the child to her medical appointments and so forth. She set that out in her affidavit. I don't know how Dr. Fouad holding onto her medical card, for example, would benefit anyone. My client, during the afternoon break, said that she is absolutely prepared to make copies and said she would do so by Friday, for the medical card and the social insurance card. She just has to find the social insurance card. [29] THE COURT: Well, duplicates

can be made. They are each entitled to have them. [30] MS. SUGIYAMA: Sure, we can get duplicates. [31] THE COURT: All right. Well, I will order then that the claimant is to do everything necessary to cause the reproduction and duplication of the child's social insurance card and medical health card. With respect to her passport, as far as I am concerned, the passport is the child's property, and it does not really matter who keeps it for her. I do not think she should be carrying it around in her knapsack, of course. The important thing is that no undue or unreasonable restriction is to be placed on the child's ability to travel anywhere, with either parent. [32] You both have interesting opportunities to offer S.F. Your family, Ms. Fouad, is obviously from the Maritimes, and for her to go to the Maritimes is a splendid opportunity. For her to go to Puerto Vallarta and splash around in the waves with her dad, or to visit his relatives in Egypt, these are likewise glorious opportunities that a lot of children do not have. So do not turn them down for her. Do not stand in the way of her enjoying experiences like that. [33] I am not going to make an order about the passport. I want you both to be reasonable on the issue of the passport. If a decision is made that S.F. should go somewhere, or there is an opportunity to take her somewhere interesting, then I expect you to consent to

the idea and to send the child along with her passport so she can go. I will not make that order. I do not think it is necessary. There is no flight risk on either side. [34] I will order, furthermore, that I am seized of the case, and on the present issue, in particular, I do not want to hear about good opportunities missed, about refusals that are unreasonable, about wilful failures to produce travel documentation, or to renew travel documentation, and so on. [35] In general terms, if either of you has sincere objections to the manner in which the other proposes to deal with S.F. or to exercise this parenting responsibility or that, then you are welcome to come back here, and I will help you get to a conclusion. But what I'd really far rather hear is good news about your progress towards healthy co-parenting. [36] What else did you want to talk about, Ms. Bourgault? [37] MS. BOURGAULT: That was it, for my application. [38] THE COURT: Okay. [39] Rather than appointing a parenting coordinator, especially as the parties have agreed that I should be seized of the matter, which I am very happy to do, I would like to see how the present arrangements proceed. I would like to see some evidence of solid progress on the communication front, and both of you have your work cut out for you. [40] We will leave the subject of coaching or parenting coordination to an occasion in the future,

I hope unnecessary, where it seems more obviously necessary than it does to me now. I would rather that both you had a stretch of road to travel where you can establish that you are capable of parenting cooperatively and collaboratively on your own. If that turns out not to be the case, then we can revisit the issue of counselling, coaching, or parenting coordination later on. [41] MS. SUGIYAMA: So is that dismissed or adjourned generally? The application. [42] THE COURT: I suppose I have been speaking the language of general adjournment. [43] I am not going to make an order of costs today. Costs can go in the cause. [44] Anything else, counsel? [45] MS. BOURGAULT: No, thank you, My Lord. [46] THE COURT: Okay. Good luck with everything. "Baird J."