Court of Appeal for Ontario

Date: 2018-06-11

Docket: C65016

Panel: MacPherson, LaForme and Roberts JJ.A.

Between

Nadeem Ahmad Appellant

and

Samina Ahmed Respondent

Counsel

Nadeem Ahmad, acting in person

Robert A. Fernandes, for the respondent

Heard: June 8, 2018

On appeal from: The judgment of Justice Thomas A. Bielby of the Superior Court of Justice, dated August 24, 2017.

Reasons for Decision

[1] Mr. Ahmad, who is self-represented, appeals from the trial judgment granting the respondent, Ms. Ahmed sole custody of the three children with regular access to Mr. Ahmad on alternate Saturdays and Wednesdays, and other reasonable access at times they can agree to. The judgment also orders Mr. Ahmad to pay $622 per month in child support based on an imputed income of $31,600. Finally, the judgment orders Mr. Ahmad to make an equalization payment to Ms. Ahmed of $211,220.17.

[2] The background to this appeal arises out of the marriage between Mr. Ahmad and Ms. Ahmed in August 2000 in Pakistan. They have three children from the marriage. They commenced immigration to Canada with the three children in 2010 and arrived in August 2013. Days later, Mr. Ahmad left Canada. Ms. Ahmed and the three children remained, which the trial judge found to be the date of separation.

[3] Mr. Ahmad returned to Canada some two years later in July 2015. In September 2015 he commenced Family Law proceedings seeking a divorce, custody, support, and equalization of the net family property. Ms. Ahmed in response made her own claims against him.

[4] As we read Mr. Ahmad's factum, as amplified in his oral submissions, the issues he raises in this appeal relate to either alleged errors of fact, or errors of fact and law. Mr. Ahmad does not appear to argue that the trial judge made any errors of law. Rather, he seems to be arguing that the trial judge made palpable and overriding errors of fact.

[5] Specifically, Mr. Ahmad submits that the trial judge erred by: (i) not including certain hours for religious/festive occasions in his access time; (ii) including his Pakistan pension, and/or over-valuing this pension; and, (iii) attributing real property in Pakistan and jewelry for equalization purposes. He also appears to be alleging the trial judge was biased in favour of Ms. Ahmed.

[6] We are not persuaded by Mr. Ahmad's submissions. In our opinion he has not satisfied the standard of review necessary to warrant appellate intervention. That is to say, he has not demonstrated any palpable and overriding error regarding a material fact found by the trial judge.

[7] We will first address the issues of Mr. Ahmad's access to the children, the trial judge's inclusion and valuation of his Pakistan pension to impute his income, and the inclusion and valuation of Pakistan property and jewelry to determine equalization of net family property. Here Mr. Ahmad must satisfy us that the trial judge made palpable and overriding errors that are sufficiently significant to vitiate his findings of fact. He must demonstrate to us that the error goes to the root of the trial judge's finding of fact such that the fact cannot safely stand in the face of that error. He has failed to do so.

[8] The trial judge's conclusions regarding custody and access were made in the best interests of the children. His imputing the amount of income to Mr. Ahmad was necessary, in part, because the trial judge found Mr. Ahmad to be less than forthright in his evidence, thus requiring the trial judge to use the best evidence available to the court. Finally, the trial judge's equalization findings, once again because of the lack of credibility he found in Mr. Ahmad, required the trial judge to look to third party confirmation. Neither the trial judge's approach to his assessment, nor his findings of fact on these issues amount to errors on his part.

[9] The trial judge's analysis on all the issues was thorough, reasonable and grounded in the evidence available to him. We can find no reason to interfere with the proper exercise of his discretion. These grounds of appeal are dismissed.

[10] As for Mr. Ahmad's assertion of trial judge bias in favour of Ms. Ahmed, a review of the trial transcript and record reveals no evidence to support this. Indeed, it is apparent to us that the trial judge was careful to ensure that Mr. Ahmad had every opportunity to present his case. The trial judge's conclusion that Ms. Ahmed was a more credible witness does not translate into bias.

[11] Assessing the credibility of witnesses is within the strict realm of any trial judge, which affords any findings he made in this regard a high degree of deference on review. The test to demonstrate bias or any apprehension of bias is extremely high. Mr. Ahmad has not pointed us to anything that gives this court any reason to interfere with the trial judge's findings. Stated simply, there was no bias demonstrated or any apprehension of bias.

[12] The appeal is dismissed. The respondent is entitled to her costs of the appeal fixed at $6,000, inclusive of disbursements and HST.

"J.C. MacPherson J.A."

"H.S. LaForme J.A."

"L.B. Roberts J.A."