Court of Appeal for Ontario
Date: 2019-07-19 Docket: C66636
Panel: Hoy A.C.J.O., Trotter and Jamal JJ.A.
Between
Raheal Khan Applicant (Respondent)
and
Daud Ahmad Respondent (Appellant)
Counsel
Anser Farooq and Shivani Balcharan, for the appellant
Kristen Normandin and Cara Senese, for the respondent
Heard: July 15, 2019
Appeal
On appeal from the judgment of Justice Douglas K. Gray of the Superior Court of Justice, dated January 30, 2019, with reasons reported at 2019 ONSC 784.
Reasons for Decision
Background
[1] The mother of two children, a boy, now nine, and a girl, now six years of age, died on May 16, 2015 from abdominal cancer. On January 30, 2019, after a 13-day trial, the trial judge granted sole custody of the children to their father and ordered that their maternal uncle have access to the children one weekend per month, commencing at 10:00 a.m. on Saturday and ending at 6:00 p.m. on Sunday.
[2] The father appeals the order granting the uncle access to the children.
Family History
[3] The father and the children's mother married on May 30, 2004. It was an arranged marriage. The father is from Pakistan and the mother, who was born in Canada, travelled to Pakistan for the wedding. After the wedding, the father immigrated to Canada, and the children were born in Canada.
[4] The father, who was a medical doctor in Pakistan, had difficulty finding work in Canada. He has not qualified as a doctor in Canada. In order to support his family, he had to endure part-time work that was, in some cases, geographically distant from the mother and the children, who lived in Brampton, close to her family. The father visited Pakistan to undertake employment there as a physician from time to time in order to maintain his qualifications.
[5] In August 2014, the mother was diagnosed with cancer. While the mother was ill, the father was frequently away, and the mother's family assisted in caring for the children. After the mother's death, the father and the children moved from their home in Brampton and lived in the uncle's house in Milton for three months. The uncle picked up the children from school and assisted in their day-to-day care. During that time, the father worked out-of-town.
[6] In August 2015, the father moved the children to an apartment in Niagara Falls, closer to where he was working, but the father and the children continued to spend time with the uncle's family on weekends. In November of 2015, the father took the children to Pakistan, returning to Milton for the new year. The uncle testified that during the first half of 2016, he would see the children after school, and the father would come home and have dinner with the uncle and the children.
[7] When the father again took the children to Pakistan in May 2016, the uncle brought an application in the Ontario Court of Justice and obtained an ex-parte order for custody of the children. The matter was transferred to the Superior Court of Justice. From October 20, 2016 until the trial judge released his reasons, the children resided with the father and the uncle had access to the children on alternating weekends, from Friday after school until Sunday drop-off.
The Trial Judge's Reasons
[8] The trial judge found that the father was providing excellent care for his children, he treats them with love and affection, and they love him in return. In his view, the uncle did not really seek an order for custody. The uncle's concern was with where the children would live. The trial judge ordered that the father have sole custody of the children.
[9] On the issue of access by the uncle, the trial judge wrote as follows:
[260] The leading case on the issue of access on the part of a non-parent remains Chapman v. Chapman (2001), 141 O.A.C. 389 (C.A.). At para. 21, Abella J.A. stated:
In the absence of any evidence that the parents are behaving in a way which demonstrates an inability in accordance with the best interests of their children, their right to make decisions and judgments on their children's behalf should be respected, including decisions about whom they see, how often and under what circumstances they see them.
[261] It is true that the right of a custodial parent to make access decisions is not untrammelled. Indeed, in a proper case the court may order that a non-parent have custody in a case of contested custody between a parent and non-parent: Law v. Siu, 2009 ONCA 61, 65 R.F.L. (6th) 37.
[262] In the case before me, I am not convinced that the respondent should have the untrammelled right to decide whether the applicant has access.
[263] The respondent is correct that there is a great deal of animosity, and indeed hatred, between the parties. This means, however, that if the respondent is given the right to decide whether access will take place, it is highly unlikely that it will occur. While the respondent has testified that he is willing to allow visits to occur, I think it is highly unlikely that they will, or at least there is a serious risk that they will not occur.
[264] I think it is in the best interests of the children that they maintain a relationship with their maternal extended family. They have always maintained such a relationship, and it would not be in their best interests that it be cut off. In the absence of an order requiring access, I am afraid that it may well be cut off.
[265] The Office of the Children's Lawyer has recommended that visits occur on one weekend per month. I agree with that recommendation. However, the OCL has not recommended any overnight visits. This may be because the children, or at least Rayyan, advised the investigator that they do not want overnight visits. However, I am not sure the position of the children is that unequivocal. In any event, the decision is not one to be made by them, rather it is to be made by the court in the children's best interests.
[266] The children have had overnight visits for some considerable period of time. They clearly love their uncle and the other members of his family, although the conflict between the grandparents could be problematical.
[267] In the final analysis, I am prepared to order overnight access on one night during one weekend each month. I order that the visits occur commencing at 10:00 a.m. on Saturday and end at 6:00 p.m. on Sunday. I order that the applicant effect the pick-ups and drop-offs, save and except where the respondent lives more than 75 kms from the applicant's residence, in which case the exchanges shall be at a location that is agreed upon, that is approximately half-way between the residences, or as fixed by the court if there is a dispute.
The Issues
[10] The father argues that the trial judge made five errors in ordering that the uncle have monthly weekend access to the children:
the trial judge made palpable and overriding errors in finding that it was "highly unlikely" and that there was a "serious risk" that access would not occur, if not ordered by the court;
he failed to provide sufficient reasons for why he disbelieved the father's evidence that he would voluntarily provide the uncle with access to the children;
he mistakenly concluded that it was in the best interests of the children to maintain a relationship with the uncle in the face of the animosity between the parties;
he failed to provide reasons for not accepting the Office of the Children's Lawyer's recommendation that the uncle should not be given overnight access; and
he failed to consider the possibility of psychological or physical harm to the father, on whom the children are dependant, resulting from the access order, contrary to this court's decision in Pollastro v. Pollastro (1999), 43 O.R. (3d) 485 (C.A.).
Analysis
[11] The trial judge's decision to grant the uncle access to the children was properly driven by the children's best interests and is entitled to deference. We are not persuaded that there is any basis to interfere with his decision.
[12] While the father argues that his evidence was that he would provide the uncle with access to the children, and that it was therefore a palpable and overriding error for the judge to have found that there was a serious risk that the access visits would not occur, the father's evidence at trial was more equivocal. He testified that he would provide access on "whatever conditions [he and the uncle] agree on" and that while he had his counsel write that he would not provide access to the uncle, "no access to uncle means no regular access, but he can ask any time". Further, the trial judge explained, at para. 263 of his reasons, that the animosity between the parties led him to doubt that regular access would occur.
[13] The father correctly argues that acrimony between a custodial party and someone seeking access to a child is relevant to at the child's best interests. However, the trial judge was clearly alive to the animosity that had developed between the parties. Weighing all the facts particular to this case, he concluded that an access order was ultimately in the children's best interests as the only way to ensure the children's continuing beneficial relationship with the maternal extended family.
[14] The trial judge also explained why he ordered overnight visits: in his view, it was in the children's best interests. The children had been having overnight visits for some time, and while the OCL may not have recommended overnight visits because the oldest child advised that he did not want them, the trial judge was not persuaded that the child's position was that unequivocal.
[15] Finally, this case is very different from Pollastro. In Pollastro, the mother was forced to flee California and come to Canada with the parties' six-month-old child as a result of the father's severe and ongoing violence towards her. The father instituted an application under the Hague Convention requiring the mother to return to California with the child. Article 13(b) of the Hague Convention required consideration of whether "there is a grave risk that [the child's] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation". It is in this context that Abella J.A., for the court, wrote, in the passage the father relies on, that it was relevant, in considering whether the return to California would place the child in an intolerable situation, to take into account the serious possibility of physical or psychological harm coming to the mother on whom the child was totally dependent. Moreover, there was evidence that returning the child to California represented a grave risk of exposure to serious harm to the child personally.
[16] In this case, the alleged psychological harm to the father results from providing access, which he argues he was willing to provide without a court order (albeit not on the terms ordered). This case does not involve a determination under the Hague Convention, there has never been any violence between the parties or involving the children, and there was no evidence – and the trial judge made no findings of fact – that the father suffered or was at risk of suffering psychological or emotional harm.
Disposition
[17] Accordingly, the father's appeal is dismissed. The uncle shall be entitled to his costs of the appeal, fixed in the amount of $6,300, including HST and disbursements.
"Alexandra Hoy A.C.J.O."
"Gary T. Trotter J.A."
"M. Jamal J.A."