Court of Appeal for Ontario
Before: Doherty, Laskin and Epstein JJ.A.
Between
Tarek Salem
Plaintiff (Appellant)
and
Ulla Kourany
Defendant (Respondent)
Counsel:
Tarek Salem, appearing in person
Richard P. Bowles, for the defendant (respondent)
Dan L. Goldberg, for the child, Nayeer Salem
Heard and released orally: February 7, 2012
On appeal from the order of Justice Roydon J. Kealey of the Superior Court of Justice, dated June 9, 2010.
Endorsement
1This is an appeal from the order of Kealey J. dated June 9, 2010. Paragraphs 3 and 4 are the relevant parts of the order for the purposes of the appeal:
The Father’s access with the child, Nayeer, born September 18, 1995 shall only be with her consent;
The Father shall not contact Nayeer in any manner, save to respond to contact initiated by her and his response shall only be via the same medium used by Nayeer to contact him.
2At the outset of his submissions, the appellant indicated that he is primarily concerned with para. 4 and seeks to be able to initiate contact with his daughter.
3In his submissions, the appellant not only challenges the order of Kealey J. on the merits, but also submits that even if it was appropriate when made, the circumstances have changed in the year and a half since then. He submits that under the present circumstances, para. 4 is not justified. In support of the contention that the circumstances have changed, the appellant put before the court at the outset of the oral argument his own affidavit with several exhibits.
4The motion judge, in his endorsement, explained why he made the non-contact order (paras. 3, 4). On the material before the motion judge, that order was fully justified.
5We cannot act on untested material placed before us by one party to the appeal at the outset of the oral argument. Nor can we accept as accurate the oral representations made by one party to the appeal in the course of the submissions. There is no basis on the material put before us to vary the order based on events that may have occurred since June 2010. We have no knowledge of those events and this is not the forum in which to go into them.
6The appellant also submitted that the order below reflected a bias in favour of the mother. We see absolutely no basis for this submission. The reasons of the judge below focussed clearly on the best interests of the child. He gave particular significance to the fact that the child, a fifteen year old girl, made it clear that she wanted to be the one to initiate any further contact with her father given the past events between them. The judge was entitled to give the child’s expressed wishes considerable weight.
7We are satisfied that the appeal must be dismissed. Given our disposition of the matter, the motion brought by the Children’s Lawyer is moot and will be dismissed on that basis.
8The respondent is entitled to costs fixed in the amount of $5,000, inclusive of disbursements and applicable taxes. The order will be paid out of the monies standing in court as security for costs in action #FC-05-1940-1. The Children’s Lawyer does not seek costs.
“Doherty J.A.”
“J.I. Laskin J.A.”
“G.J. Epstein J.A.”