COURT OF APPEAL FOR ONTARIO

DATE: 20060213

DOCKET: C43178

RE: IRSHAD MERKAND (Applicant (Appellant)) – and – TALLAT MERKAND (Respondent (Respondent)

BEFORE: SIMMONS, CRONK and ROULEAU JJ.A.

COUNSEL: Kathleen Robichaud for the appellant

Deborah Barfknecht for the respondent

HEARD & RELEASED ORALLY: February 8, 2006

On appeal from the order of Justice Mary Jo McLaren of the Superior Court of Justice, dated January 31, 2005.

E N D O R S E M E N T

[1] In our view, this appeal must be dismissed.

[2] The appellant’s primary argument is that the trial judge erred in law by ordering indefinite supervised access to the children of the marriage, thereby making it impossible in practical and legal terms for the appellant to obtain a future order for unsupervised access to his children. In the alternative, the appellant submits that the trial judge erred by failing to adequately balance the requisite factors in determining what was in the best interests of the children in this case. We would reject these submissions.

[3] The trial judge was alive to the fact that her access order was exceptional, in that it provided for neither a transition to unsupervised access nor a fixed review date. We agree that an order of this kind should be made only in rare circumstances.

[4] However, the trial judge took cautionary and prudent steps to ensure that the record before her included current information concerning the children and their dealings with the appellant.

[5] Moreover, this record amply supported the trial judge’s decision to order the continuation of supervised access. In particular, the evidence of the appellant’s attempts to manipulate the children of the marriage concerning the custody and access regime, his demonstrated willingness to subject them to repeated professional assessments, and the concern that if access were expanded he would revert to pressuring the children to live with him, grounded the trial judge’s order.

[6] Finally, contrary to the appellant’s submissions, in our opinion the trial judge’s order does not preclude the appellant from seeking to vary the terms of access in the future upon proof of a material change in circumstances. In this regard, we agree that it would have been open to the trial judge to impose conditions on the appellant, which, if fulfilled, might establish a material change in circumstances: for example, see V.S.J. v. L.J.G., [2004] O.J. No. 2238 (S.C.J.) at paras. 148-149. However, in our view, the trial judge was not required to impose such conditions. Moreover, the fact that the trial judge did not impose conditions on the appellant does not preclude him from taking appropriate steps aimed at establishing a material change in circumstances.

[7] Accordingly the appeal is dismissed. The respondent is entitled to her costs of the appeal on the partial indemnity scale, fixed in the amount of $3000.00, inclusive of disbursements and G.S.T.

“J.M. Simmons J.A.”

“E.A. Cronk J.A.”

“P.S. Rouleau J.A.”