Court Information
File No.: D51563/10 Date: 2012-07-17 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1
Parties
Between: Iram Hamid, Applicant (mother)
and Hamid Mahmood, Respondent (father)
Before: Justice Robert J. Spence
Heard on: 16 July 2012
Reasons for Judgment released on: 17 July 2012
Counsel
Ms. D. Badley, solicitor for the applicant
Ms. N. Joseph (agent for Ms. M. Ibghi), solicitor for the respondent
Endorsement
[1] Introduction
This case is about whether three children, Osayd, age 11 years, Mysha, age 7 years, and Faris, age 6 years, should be allowed to travel with their mother to Pakistan to visit the mother's family and, in particular, the ailing maternal grandmother. The mother wishes to travel for 5 weeks but would be content with an order permitting her to travel for a shorter period of time.
[2] The father is adamantly opposed to such a trip, arguing that the mother is a flight risk and, additionally, that Pakistan is too dangerous for the children.
Background
[3] The parties have been separated for approximately two years. On April 12, 2011, the parties consented to an order granting the mother sole final custody of the children, as well as authority to obtain the children's passports, health cards and birth certificates, without the consent of the father.
[4] They also consented to temporary supervised access by the father to the children at a supervised access centre operated by Access for Parents and Children in Ontario.
[5] Father agreed to an order to pay temporary child support.
[6] On February 23, 2012, because the supervised access had been proceeding in a satisfactory manner, the parties consented to a temporary variation of father's access to alternate Saturdays from 10 a.m. until 4 p.m.
[7] On March 30, 2012, again on consent, father's access was expanded to each Saturday from 10 a.m. to 4 p.m. That is the access which currently remains in place.
The Mother's Position
[8] The maternal grandmother ("grandmother") lives in Cantt, a suburb of Lahore, in Pakistan. The medical evidence discloses that the grandmother is ailing, a fact which is not disputed by the father. Although she is only 69 years old, she has a history of cancer and diabetes, and she is being actively treated for a cardiac condition. While it does not appear that she is dying, she is clearly not well.
[9] The grandmother applied for a visa to visit Canada in 2010; however, the Canadian government rejected the visa application on the grounds that the grandmother was perceived as a risk to remain in Canada were she permitted entry into Canada. Accordingly, the only way the children can visit with their grandmother is for them to travel to Pakistan.
[10] The eldest child has seen his grandmother only once, in 2003. The younger two children have never seen their grandmother. The mother argues that it is important for the children to spend time with their grandmother so they can get to know her before she eventually dies. This proposed trip may be the only opportunity for the children to do so.
The Father's Position
[11] The father argues that the children should not be permitted to travel to Pakistan for two reasons. First, the mother is a flight risk and, because Pakistan is not a signatory to the Hague Convention, the father would have no recourse were the mother to remain in Pakistan contrary to any order of this court.
[12] Second, the father argues that the political and social situation in Pakistan is so chaotic and so dangerous that the children would be exposed to an unwarranted risk of harm were they permitted to travel to Pakistan.
[13] The father submits that if the court finds either of the foregoing arguments to have merit, the court should dismiss the mother's motion to travel with the children.
Discussion
(a) Is the mother a flight risk?
[14] On all the evidence I have concluded that the mother is not a flight risk. The thrust of the father's argument in this regard is that the mother has no real connection to Canada, specifically, she owns no property in Canada, nor does she have family ties in Canada. However, the father is unable to point to any specific evidence that a flight risk exists.
[15] On the other hand, the mother has lived in Canada since 1999. She is now a Canadian citizen. She has provided evidence of a tenancy agreement that runs until August 21, 2015. She has also provided evidence of ongoing registration and attendance at Centennial College in the Early Childhood Education Program. She completed the first two semesters, obtaining an A average, and she is registered for the Fall 2012 term and her fees are paid in full for that term. She also provided proof of approved City of Toronto child care subsidy, which has been in place since the year commencing October 31, 2011. The children themselves were born and raised in Canada; and while they understand some small amount of the native Pakistani language – Urdu – they are not conversant in Urdu.
[16] The court in Johnson v. Johnson [1996] O.J. No. 490 (General Division) held that the mere fact that an applicant seeking to travel with children would be going to a country that was not a signatory to the Hague Convention, would not justify an order preventing such travel in the absence of evidence that there was some possibility that the children might be abducted.
[17] In this case, the father has presented no evidence of a realistic possibility that the mother might abduct the children were she to travel with them to Pakistan. Further, having regard to all of the previously-discussed evidence of the mother's connection to Canada, I conclude that such an abduction would be unlikely to occur. Accordingly, I reject the father's argument that the mother is a flight risk.
(b) Would travel to Pakistan expose the children to unnecessary risk of harm?
[18] The father filed considerable documentation about the current political and social climate in Pakistan. The mother did not object to this documentation being admitted, even though it is clearly hearsay. In any event I would have admitted it for the purpose of this motion as other courts have done the same, and I consider the evidence to be trustworthy and reliable. See for example El-Murr v. Kiameh, 2006 ONCJ 111 (Ont. C.J.).
[19] The travel advisory report from the Canadian government, dated June 29, 2012, begins with this [my emphasis]:
"OFFICIAL WARNING: Foreign Affairs and International Trade Canada advises against non-essential travel to Pakistan."
[20] The report then continues for 10 pages, citing many of the dangers inherent in travel to Pakistan. I extract a few examples of the warnings contained in that report [my emphasis]:
"The security situation remains fragile and unpredictable. The terrorist threat remains very high. Terrorist attacks have occurred throughout Pakistan, causing many deaths and injuries . . . . Canadians should be particularly vigilant in the lead-up to and on days of national significance, such as Independence Day (August 14). . . . Canadian officials may not be able to provide consular assistance to Canadians in some parts of the country."
"Attacks have taken place in public areas, such as hotels, markets, transportation hubs, Western-style fast food outlets, restaurants, and religious sites, including places frequented by foreigners. Only the best hotels, with stringent security, including metal detectors, should be used; however, no location should be considered free of risks."
[21] Apart from terrorism, the report discusses at length the threats from demonstrations and civil unrest, some of which are violent and have resulted in death and injuries. Other dangers discussed include kidnapping and limited health care.
[22] The report also states: "Violent crime is a problem, particularly in Karachi.[^1] Armed robbery, random shootings, and armed carjackings occur, mostly in major urban centres."[^2]
[23] The United States Department of State discusses[^3] the deteriorating situation in Lahore[^4] in similar terms as those used in the Canadian government report. For example [my emphasis]:
"Crime is a serious, ongoing concern for foreigners throughout Pakistan; carjacking, armed robberies, home invasions and other violent crimes . . . . Pakistan is rated "critical" for transnational and indigenous terrorism; "high" for political violence and "high" for crime."
[24] From the "Daily Times"[^5] dated July 1, 2012:
"The Young Doctors' Association strike entered the 13th consecutive day on Saturday. It was feared that doctors would be arrested with the start of the new month, on July 1."
[25] From the "Frida Times"[^6] dated July 5, 2012 [my emphasis]:
"Hundreds of loadshedding protestors-turned-rioters stormed the house of [a local lawmaker] and set fire to his property in [the Province of Punjab][^7]. In an act of retaliation, the lawmaker's guards opened fire on the incensed crowd, killing three and injuring eight more. This event marked the ugly culmination of a series of riots in Punjab against soul crushing electricity outages . . . . As things stand, the current electricity shortfall in Punjab – according to the provincial energy department is approximately 40% of the total demand. Residential and domestic consumers are facing up to 16 hours of loadshedding in secondary towns like Kamalia, while the larger cities are doing only marginally better with an average of 12-14 hours of outage per day. It's safe to say that as far as this crisis is concerned, Punjab has become a victim of its own development."
[26] The foregoing represents only a sampling of the chaotic conditions which exist in Pakistan and, in particular, in Punjab province.
[27] The mother filed a responding affidavit which in part was intended to address the security concerns raised by the father's material. She responded to those concerns as follows [my emphasis]:
"My mother has not complained about any of the issues that the Respondent is trying to raise. She has water, electricity and food. She has ongoing and regular medical care . . . . they advised that there is nothing for me to worry about. Naturally, if there are hot spots in Lahore, Pakistan, I will not go there with the children. I would also use wisdom and follow travel advisories and avoid crowded places, protests, markets, malls and the like. If I felt that the children or I were in danger, I would leave immediately and return home."
[28] I accept that the mother is sincere in all she has stated. I accept the genuineness of her expression that she would not knowingly place the children in danger. However, danger – whether it emanates from crime, terrorist attacks or other sources, by its very nature makes victims of similarly like-minded persons, specifically, persons who would not knowingly place themselves in threatening situations. It is a truism that no one walks along a street knowing that a terrorist bomb is about to explode nearby; no one drives a car knowing it is about to be carjacked; no one would go to any location knowing in advance, they might be kidnapped, assaulted or terrorised in that location. Yet people – ultimately victims – do these things unwittingly, and these terrible events do occur.
[29] I assess the mother's request for permission to take the children to Pakistan as something akin to a cost/benefit analysis. What is the benefit to the children versus the potential cost of that benefit?
[30] There is undoubtedly a benefit to the children to be able to see their grandmother. The children would be able to spend some time with a biologically close family member and perhaps other family members as well. They might even gain some exposure to their familial cultural roots. I neither minimize nor trivialize such an opportunity for the children.
[31] But I must balance this benefit against the cost, that is, the risk of harm to the children. It is clearly impossible to quantify the risk of harm in percentage terms. Nor do I think it is necessary to do so. In any such analysis, as the benefit increases, or the cost decreases, the more such a changing equation operates in favour of permitting the children to travel. On the other hand, as the risk increases, or the benefit decreases, the more likely a court would conclude that travel is not in the best interests of the children.
[32] In this case, while there would be some benefits to the children in being able to visit with their grandmother, I cannot conclude that the benefits are so great as to outweigh the risk of harm which, although not quantifiable, is nonetheless very real, in my opinion.
[33] Accordingly, I have no choice but, regrettably, to dismiss the mother's motion. However, I am dismissing this motion based on the facts as they exist today. Perhaps the climate in Pakistan might someday change for the better. Certainly one would hope so. And were that to occur, the children may eventually be able to travel to Pakistan to visit with family members.
[34] For the time being, however, it is most unfortunate that the children will be denied this opportunity to visit in person with their grandmother and their maternal family. I suspect that while the disappointment may be greater for the mother and the grandmother than for the children themselves, the children may nonetheless have been genuinely excited at the prospect of such an adventure, and they may well feel let down by my decision.
[35] However, there are options[^8] available for these family members to connect with one another. The children can speak and display themselves to their grandmother in a DVD which they can create on a home computer, and which they can then send to her in Pakistan. In return, the grandmother may be able to create her own DVD to send to her grandchildren. It may be possible to arrange "visits" through Skype so that the grandmother and the children can actually have face-to-face contact while they are talking with one another. These are just a few options that exist in a technologically advanced world. And while I appreciate that access to technology may be more readily available in Toronto, I do not doubt that Lahore, a city of approximately 10 million people, has access to such technology as well.
Costs
[36] In the unlikely event that the father feels the need to seek costs, I will accept a 2-page submission by 14B no later than July 31, 2012, with a response by mother no later than August 10, 2012.
Order
[37] Motion dismissed.
Justice Robert J. Spence
July 17, 2012
[^1]: Although the grandmother lives in a suburb of Lahore
[^2]: Lahore is the second largest city in Pakistan, with a population of approximately 10 million people
[^3]: The report is dated April 15, 2012
[^4]: See footnote 1
[^5]: A Pakistan news publication
[^6]: A Pakistan weekly paper
[^7]: Lahore is the capital, and the largest city in Punjab province
[^8]: Albeit options which are probably less exciting for the children
