Court File and Parties
Court File No.: D81224/15 Date: March 9, 2016 Ontario Court of Justice
Between:
F.K. and D.M. Applicants
— AND —
T.R. Respondent
Before: Justice Roselyn Zisman
Heard on: January 22, 2016
Reasons for Judgment released on: March 9, 2016
Counsel
Rono A. Baijnath — counsel for the applicants
Kristin Whitley and Giovanna Cacciola — counsel for the respondent
Kirsten Cockburn — counsel for the Office of the Children's Lawyer
Zisman, J.:
1. Introduction
[1] This is a temporary motion by the applicants for custody and guardianship of property with respect to a four year old orphan, A.A.R. ("A." or "the child") and for the appointment of the Office of the Children's Lawyer. By cross-motion the respondent seeks an order for custody of the child, disclosure of third party records and a sealing order or in the alternative, an order that the parties and child be referred to by initials. The respondent opposes the appointment of the Office of the Children's Lawyer regarding the custodial issues.
2. Background
[2] The child A. was born in Afghanistan and is currently 4 years old. The applicants are his maternal uncle and aunt. The Applicant F.K. was the child's mother's brother and his wife D.M. is also the child's cousin. The respondent is the child's father's nephew and the cousin of the child. However, although the respondent was technically the child's father's uncle, they were raised in the same household and were more like brothers and were best friends.
[3] On March 20, 2014 when the child was about 2 years old, he, his parents and his two older siblings were having dinner at a restaurant in Kabul, Afghanistan when Taliban militants opened fire and killed 9 people including his parents and siblings. It was believed that the child's father was the intended target. He was a well-respected journalist writing for the Agence France Press, a French news agency.
[4] A. was critically injured. He was hit by 4 bullets, one in his head, one in his chest and 2 in his left leg. He was taken to an NGO-run local hospital where he remained in a coma for 72 hours. Once he came out of the coma he underwent 4 surgeries and was then transferred to an internal care unit in the hospital.
[5] The medical staff in Afghanistan advised that A. would require a specific type of a long-term physiotherapy for his leg in the hope that he would be able to stand and walk again that was not available in Afghanistan. A. would also require neurological and psychological treatment that was not available at an acceptable standard in Afghanistan. It was recommended that the child receive medical treatment outside of Afghanistan.
[6] There was also a concern about the child's safety and that he could become a target of a further Taliban attack. As the only survivor of a terrorist attack he became a symbol of hope and peace for the people of Afghanistan and a negative symbol for the Taliban.
[7] The respondent applied for and obtained legal guardianship of the child from the local court in Kabul and the order was approved by the Supreme Court of Afghanistan on April 1, 2014. The plan, which at the time was agreed to by various members of the child's extended family, was for the respondent and his wife to bring the child to Canada. The respondent and the child already had members of his extended family residing in Canada and he could receive the medical care he required and be safe.
[8] At the time, the plan was agreed to by the child's maternal grandmother, N.K. ("maternal grandmother") on whose behalf the applicants depose they are seeking custody until she can arrive in Canada.
[9] The respondent applied for a visa on behalf of himself, his wife and the child to come to Canada as refugees. The respondent received the assistance of the Canadian and Afghanistan government and the deceased father's employer.
[10] On April 30, 2014 the respondent, his wife and the child arrived in Canada. The applicant, F.K. greeted them at the airport and gave an interview indicating that he was aware that the respondent and his wife were the child's guardians and were bringing him to Canada and that he had assisted in the process. He also stated that he hoped his mother, the maternal grandmother would soon be able to travel to Canada and that he had assisted.
[11] The respondent and his wife applied for refugee status for themselves and the child which was granted within 3 months.
[12] The child has remained in this jurisdiction in the care of the respondent and his wife since April 30, 2014.
[13] On August 25, 2014 the maternal grandmother applied for and obtained an order from the Supreme Court of Afghanistan stating that she is granted guardianship and caretaking of the child from the respondent and that she is assigned as his legal guardian.
3. History of Legal Proceedings in Ontario
[14] The applicants commenced their Application in this court on July 16, 2015 with a first appearance date of September 25, 2015. The applicants brought an urgent motion returnable on September 23, 2015 before the first appearance or a case conference. Justice Nevins held that there was no urgency but held a case conference on the same day.
[15] A timetable was set for the filing of materials for the hearing of the applicants' motion and the respondent's cross-motion and providing leave for the applicants to add another party to the proceedings by October 23, 2015. A motion date of January 22, 2016 was set for 4 hours.
[16] Pending the return of the motions, there was an order that neither party was to take any steps to change the child's existing care arrangements without further court order and in particular, neither party was to remove the child from Ontario. Pending further court order on a temporary without prejudice basis the publication or dissemination of any particulars of the case was prohibited and the court file was to be sealed to public view with access only to the parties or their counsel. There was a further order that the applicants' request for the Office of the Children's Lawyer to be appointed was rejected at this time only.
[17] The motions proceeded before me on January 22, 2016. Despite the order with respect to the filing deadlines the applicants sought leave to file a further affidavit on the motion date. As the issues involved the best interests of the child, the applicants were granted leave to file a further affidavit and the respondent was granted leave to file his response.
[18] Both parties served and filed facta and Books of Authorities.
[19] The Applicants rely on the following:
- Affidavits of the applicant F.K. sworn June 29, 2015 and January 21, 2016 and exhibits attached; and
- Affidavit of Ganani Rajkumaar, a paralegal student in applicants' counsel's office, sworn September 17, 2015 and exhibits attached.
[20] The respondent relies on the following:
- Affidavits of the respondent sworn September 16 and 18, 2015, January 19 and 22, 2016 and exhibits attached;
- Affidavit of Dr. Paul Caulford, the child's primary physician, sworn September 18, 2015.
[21] Counsel for the Office of the Children's Lawyer filed a motion and affidavit of Linda Waxman, the Deputy Director of the Property Rights Department of the Office of the Children's Lawyer.
[22] I made a temporary order with respect to the custodial issues at the closing of submissions as my own schedule would preclude me rendering a decision on the motions for several months. The order provided as follows:
The applicants' motion to adjourn the motion is denied. The applicants, if the circumstances change, can bring a further motion in any event to vary any temporary order;
The respondent shall have temporary custody of the child;
The child's primary residence will continue to be with the respondent and his wife Z.R.;
The respondent shall have the authority to make all decisions regarding the child's medical, educational and any other decisions for his general well-being;
The applicants shall have no contact or access to the child without the express written permission of the respondent;
The child shall not be removed from the jurisdiction or from the care of the respondent without a prior court order or written consent of the respondent;
The police in the jurisdiction where the child may be located shall locate, apprehend and deliver the child to the respondent in accordance with section 36 of the Children's Law Reform Act;
To clarify paragraph 9 of the order of September 23, 2015, counsel are at liberty to contact any professional or government official to prepare a legal opinion or affidavit with respect to any issue in this case on an undertaking that the opinion shall not be publicly disseminated. This order does not prevent the maternal grandmother from providing a sworn affidavit; and
For clarity this order can be provided to any third party as deemed necessary by the respondent.
[23] The matter was adjourned to April 19, 2016 for the decision and a further case conference.
4. The Involvement of the Office of the Children's Lawyer
[24] In their Application, the applicants made a claim for guardianship of the child's property. The applicants did not name the Office of the Children's Lawyer in their application and did not serve the Office of the Children's Lawyer with their Application as required by section 47 of the Children's Law Reform Act.
[25] The respondent also made a claim for guardianship of property. The respondent named the Office of the Children's Lawyer in his Answer and served the office with a copy of his Answer.
[26] In the urgent motion, the applicants requested an order for the appointment of the Office of the Children's Lawyer "in this matter". All counsel discussed the issue before the urgent motion scheduled for September 23, 2015 and agreed that the request was with respect to the custody and access issues. Counsel also agreed to adjourn the issue of the guardianship of property and accordingly counsel for the Office of the Children's Lawyer did not attend on that date to address that issue.
[27] Subsequently the Office of the Children's Lawyer served their Answer with respect to the guardianship issue but it was prevented from filing their Answer as they had not been named as a respondent.
[28] On January 22, 2016 counsel for the Office of the Children's Lawyer brought a motion to be permitted to file its Answer. On consent, the Office of the Children's Lawyer was appointed to represent the interests of the child only for the purpose of the claims by the applicants and respondent for guardianship of the child's property and for an order permitting the Office of the Children's Lawyer to file an Answer. Counsel for the Office of the Children's Lawyer was also permitted to discuss the case with the Agence France Press, who it was believed was holding funds in trust for the child, and counsel was permitted to review the file.
[29] The Answer filed raises several procedural issues with respect to compliance with the provisions of sections 49 (a) and (b) and 55 of the Children's Law Reform Act and that depending on the claim or nature of the property, and as acknowledged by the respondent, it may be necessary to transfer this aspect of the case to the Superior Court of Justice.
[30] In order to give the Office of the Children's Lawyer an opportunity to investigate the property issues, this issue was adjourned to August 9, 2016.
[31] With respect to the applicants request for the Office of the Children's Lawyer to be appointed with respect to custodial and access issues, this is opposed by the respondent as being a "fishing expedition" and not in the child's best interests.
[32] The court is required to consider the purpose for and the benefit in appointing the Office of the Children's Lawyer. Generally, the involvement of the Office of the Children's Lawyer is done to ascertain the wishes of children or to provide professional input, usually from a social worker, in order to permit the court to better ascertain what custodial and access arrangements are in a child's best interests.
[33] In this case, given the age of the child his wishes are not particularly relevant. There is ample evidence before the court regarding the child's well-being and his best interests.
[34] The applicants have made allegations about the care being provided by the respondent and his wife to the child but those allegations are not based on any admissible evidence as they are based on hearsay from third parties. The applicants had over 4 months to provide affidavits from the people the applicants allege told them about the lack of care and maltreatment of the child by the respondent and his wife. The allegations are contradicted by the sworn affidavit of the child's doctor who has sworn a lengthy affidavit outlining his involvement in the care of the child and he speaks glowingly of the respondent and his wife's care and devotion to the needs of this child.
[35] Further, a redacted police report is filed with respect to the attendance of the police at the respondent's residence on July 19, 2014 as a result of an allegation of child abuse. It is clear from the redacted version that it was the applicants or one of the applicants who called the police in view of the background details provided to the police. The police report states that the police had "absolutely no concerns" regarding the child's well-being and that there were "not any concerns for the safety or living conditions of A."
[36] Also, in the summer of 2014, an "anonymous" caller made allegations to the children's aid society about the care being provided by the respondent to the child. The applicants deny that they called the society. Regardless of who reported their concerns to the children's aid society, a society worker attended and found the concerns were not verified. There is no evidence of any ongoing investigation or concerns by the society.
[37] The respondent has also filed letters from the child's daycare confirming that he is a happy and well-cared for child.
[38] The applicants have not responded to the respondent's request that they consent to the release of un-redacted police and children's aid society records as it is alleged that the applicants have involved those authorities. I therefore draw the inference that the applicants are aware that the disclosure of the un-redacted records of the children's aid society and the police would not substantiate the allegations now being made by the applicants.
[39] In the applicant F.K.'s affidavit filed on January 22, 2016, the day of the motion, he makes new allegations about the respondent and his wife's care of the child alleging that they subject him to corporal punishment and physical abuse, that they lock him in his room for hours and that they have abandoned his care to his 85 year old paternal grandmother. Despite the fact that his affidavit was only served on the respondent's counsel on January 21, 2016 at 4:39 p.m., the respondent was able to provide a short reply that denies all of the allegations. I agree with the submissions of the respondent's counsel that these allegations were made at the last minute to prevent the respondent from obtaining third party affidavits to dispute the allegations and to bolster the request for the Office of the Children's Lawyer to be appointed. I do not find that these allegations are credible as this child is regularly seen by various doctors and is now attending school and if there was any truth to the allegations they would have been reported by either the doctors or school authorities.
[40] The child has lived with the respondent and his family for almost two years and the applicants are now seeking to change those arrangements on a temporary basis as they are only seeking temporary custody of the child until the maternal grandmother can come to Canada and resume custody of the child. The applicants are in effect hoping that the Office of the Children's Lawyer will discover some evidence to support their position for a change of custody. I find that this is not the function of the Office of the Children's Lawyer.
[41] The child has already been traumatized in his short life and the involvement of another professional is not in his best interests.
[42] I find that the appointment of the Office of the Children's Lawyer at this time would not be helpful to the court and is not necessary for the determination of the issues before the court.
[43] The applicants' request to appoint the Office of the Children's Lawyer with respect to the custody and access issues is dismissed.
5. Effect of the Court Orders from Afghanistan
[44] There are two orders from the Afghanistan Supreme Court. The respondent's "Wesayat" order dated April 1, 2014 granting the respondent custody of the child and the "Hazanat" order dated August 25, 2014 granting the maternal grandmother custody.
[45] According to the respondent, in the Afghanistan law, guardianship and custody of an orphaned child automatically reverts to the paternal grandfather. Where the paternal grandfather is deceased, as in this case, then the elders of the paternal family have the right to make decisions regarding guardianship and custody. It is the position of the respondent that the "Wesayat" order he obtained, on consent of the paternal family and the maternal grandmother is equivalent to an order of custody until the child is 18 years old.
[46] According to the respondent, the "Hazanat" order that the maternal grandmother obtained, after the child had already left the jurisdiction, is rare and only granted when the child's paternal family is not well-established and cannot care for the child. It is the respondent's position that these circumstances do not apply in this case and that the "Hazanat" order was obtained in secrecy, without notice to the respondent or the paternal family and was based on misleading and incomplete information. It is further deposed by the respondent that a "Hazanat" order is equivalent to a temporary custody order that only valid until the child is 7 years old at which time custody reverts to the paternal family.
[47] The applicants dispute the validity of the April 1, 2014 order granting the respondent custody of the child as they allege that it was obtained under false pretences as the respondent misled the maternal grandmother into believing that he was applying for her to also come to Canada with the child. The respondent alleges that it was only after the respondent refused to assist the maternal grandmother in defrauding immigration Canada that she began to change her story and alleged that the respondent unlawfully removed the child from Afghanistan.
[48] The respondent disputes the validity of the maternal grandmother's custody order of August 25, 2014. It is alleged that the order was obtained without notice or due process to the respondent as neither he nor anyone in the paternal family were notified or involved in the process. The respondent also queries if the court was aware of the previous order granting custody to the respondent. Further, the respondent submits that the Afghanistan court likely did not have jurisdiction to make its order of August 25, 2014 as the child at that time was an ordinary resident of Canada and the Canadian government had declared that it was not safe for him in Afghanistan.
[49] The applicants rely on email communications between the applicant F.K.'s counsel and someone named "Hamida" who is alleged to be the secretary/receptionist at the Consulate General of Afghanistan in Toronto and purports to confirm the custody of the child to the maternal grandmother.
[50] The email in question allegedly confirming the maternal grandmother has custody simply states, "The custody is belong to Nooria. Regards Hamida".
[51] The respondent raises several issues with respect to the reliance on this email by the court namely:
a) The applicant F.K.'s best friend's father, Mr. Amin works at the Consulate General of Afghanistan and the respondent questions if this email is not somehow linked to Mr. Amin or his son. Mr. Amin telephoned the respondent from his personal cellphone number and told him about the court order granting the maternal grandmother custody. When the respondent requested this go through official channels and that he would have the document translated, Mr. Amin became angry, stating he was an expert in Afghanistan law and there would be consequences if the respondent did not respond to the court order;
b) It is strange that a secretary/receptionist of the consulate would be asked to confirm who has custody under Afghanistan law. It is also difficult to believe that a secretary/receptionist would be in a position to confirm that the maternal grandmother has custody or be in a position to interpret court orders;
c) There are no details about the court level, the Afghanistan civil code, the date of the order or any identifying information;
d) It is not known what documents were sent to "Hamida" as the attachments are not included in the email communications;
e) The respondent's name is misspelt throughout the emails and his last name is not used and the maternal grandmother is only referred to by her first name;
f) The email is not on any official letterhead, the signature for "Hamida" does not have a last name and appears to have been "cut and pasted" into the email as the spacing is off and a different font is used. The signature only appears on the first email and not in any further emails;
g) According to the website of the Consulate General of Afghanistan in Toronto, the Consul General is a woman named Nazita Langaryan not any one named "Hamida";
h) It is suspicious that the email address used is "cgoafg@yahoo.ca" that is, a yahoo account; and
i) The Afghanistan Embassy is in Ottawa and its official email address is listed as CONTACT@AFGHANEMBASSY.CA or CONSULAR@AFGHANEMBASSY.CA that is, not a yahoo account.
[52] The applicants also rely on letters written by the Ministry of Foreign Affairs to the Canadian Embassy that repeats the maternal grandmother's allegations that the respondent forged custody documents and misled the maternal grandmother and the letters request co-operation from the Canadian Embassy. The applicant F.K. deposes that he began these proceedings as he was unable to receive any assistance from the Canadian or Afghanistan authorities.
[53] The applicants have not filed any legal opinion with respect to the validity of the Afghanistan court orders and in particular the validity of the court order granting the maternal grandmother custody after the child had left the jurisdiction and without notice to the respondent.
[54] In reading the maternal grandmother's order of August 25, 2014 there is no mention of the order of April 1, 2014 obtained by the respondent from what appears to be the same level of court. The decision is based entirely on the maternal grandmother's allegations that the respondent deceived her and took the child from her and after a few days she found out that he prepared fraudulent papers and moved the child to Canada. There is no mention that the respondent was ever notified prior to the hearing and therefore this substantiates the respondent's statement that he was never served or made aware of the proceeding and that he only became aware of the maternal grandmother's order after the hearing took place. The reasons also substantiate the respondent's statement that this is in effect only a temporary custody order. The reasons state that the order was granted in accordance with Sharia law that is, that the maternal family is given custody only until the male child is 7 years old and then custody would revert to the paternal family.
[55] The validity of the maternal grandmother's August 25, 2014 order and the concerns with respect to the weight, if any, that the court should put on the email by "Hamida" verifying that the maternal grandmother had custody were all raised in the respondent's affidavit sworn September 16, 2015.
[56] Despite having ample opportunity to respond to these allegations, the applicants have not done so. There is no legal opinion filed with respect to the validity of the custody order dated April 1, 2014 granting custody of the child to the respondent and the subsequent order of August 25, 2014, granting custody to the maternal grandmother. The maternal grandmother has not sworn an affidavit. The only evidence from the maternal grandmother is a short letter attached as an exhibit to the applicant F.K.'s affidavit sworn June 29, 2015. I put no weight on the letter which in any event simply states that she has custody according to the August 25, 2014 order and that she wishes the applicants to have temporary care of the child until she comes to Canada.
[57] There is ample evidence presented that the respondent obtained his custody order of April 1, 2014 with the full support of the paternal family. Many of whom were witnesses and signed the custody application including the applicant D.M.'s uncle and her own father was aware of and supported the proceedings. I also find that the maternal grandmother was aware of and consented to the respondent obtaining custody and that the child be brought to Canada. There is no evidence to support the applicants' position that this was done in secret as the respondent and his wife's intention to bring the child to Canada was widely publicized in the Canadian and Afghanistan press and was supported by both the Afghanistan and Canadian authorities.
[58] There is a dispute as to whether or not the respondent was also to obtain a visa for the maternal grandmother to come to Canada. It is the position of the applicants that the maternal grandmother was duped into giving her consent as she was told that the respondent would also be obtaining a visa for her to come to Canada. The respondent denies this allegation. As indicated the maternal grandmother has not filed an affidavit in these proceedings. The respondent alleges that the maternal grandmother only alleged that he tricked her into giving up custody or that he forged custody documents when he refused to assist the maternal grandmother coming to Canada, as requested by the applicant F.K., by taking the child to a psychiatrist and encouraging the child to say that he calls out for his maternal grandmother in the night.
[59] The court was not provided with any legal opinions about the validity of either court order. But the respondent was able to satisfy both the Afghanistan and Canadian authorities that he had a valid custody order and was able to remove the child from Afghanistan.
[60] Both the applicants and the respondent attach various news articles to their affidavits. The respondent and his wife are referred to as the child's legal guardians and the applicant F.K. is quoted as saying that he is happy that the respondent and his wife are the child's guardians and were able to bring him to Canada and that he hopes that the maternal grandmother will be able to come soon.
[61] I am satisfied that this was not done in secret and that the maternal grandmother was aware of and at the time consented to the child being placed in the care of the respondent and being removed from Afghanistan.
[62] As there is no legal opinion with respect to the validity of the subsequent order of August 25, 2014 or a sworn affidavit from the maternal grandmother to dispute the respondent's allegations, I am not prepared to put any weight on that order.
[63] I therefore find that the respondent and his wife had the right to remove the child from Afghanistan and that the child has been in their care and custody since April 1, 2014.
6. Jurisdiction of Ontario Court of Justice
[64] The applicants allege that the child was abducted from Afghanistan and that this court has an obligation as a signatory to the United Nations Convention on the Rights of the Child to uphold its obligations under the Convention and this court should recognize and enforce foreign custody orders and accept that the Afghanistan court has jurisdiction over this matter.
[65] Although section 45 of the Children's Law Reform Act permits a court to take notice of the law of a foreign jurisdiction without formal proof I am not prepared to do so in this case. The meaning of the different custody orders issued, the jurisdiction to make an order when the child had already been removed from the jurisdiction, the lack of due process and notice and the basis upon which the same level of court could have made an order changing custody from the respondent to the maternal grandmother requires a full understanding and explanation of the legal system in Afghanistan.
[66] I also would not enforce the August 25, 2014 order as requested by the applicants pursuant to section 41 (2) of the Children's Law Reform Act as that section states that it is only upon application of a person who has been granted an order of custody or access that the court shall recognize a foreign order subject to various exceptions. As it is the applicants' position that it is the maternal grandmother who has a valid order for custody, she would have had to be an applicant. The applicants were given the opportunity to add her as a party and have not done so. The applicants therefore have no standing to request enforcement of the maternal grandmother's order, even if the court had held that it should be enforced.
[67] However, even if the maternal grandmother had been the applicant, I would not have found that the August 25, 2014 order should be recognized by this court as the order was obtained without notice to the respondent, he was not given an opportunity to be heard before the order was made, it is questionable that the criteria used by the court had regard for the best interests of the child and the court would not have had jurisdiction in accordance with Ontario law as the child was already habitually resident in Ontario.
[68] I find that this court has jurisdiction to determine custody of the child as, in accordance with section 22 (a) of the Children's Law Reform Act, the child was habitually resident in Ontario when this application was commenced.
[69] Even if the child would be found not to be habitually resident in Ontario, I find that this court should assume jurisdiction in accordance with either section 22 (1) (b) or section 23 of the Children's Law Reform Act, for the following reasons:
a) The child is physically present in Ontario;
b) Substantial evidence regarding his best interests is available in Ontario as he attended daycare and is now in school in Ontario and all of his medical care professionals are in this jurisdiction;
c) There is no pending application for custody before another court as there purports to be an order for custody to the maternal grandmother that would terminate when the child is 7 years old;
d) No court in Ontario has recognized the maternal grandmother's August 25, 2014 court order;
e) The child has resided in Ontario since April 30, 2014 and therefore has a real and substantial connection to Ontario;
f) As all of the evidence with respect to the child's best interests for the last almost two years is in Ontario, on a balance of convenience it is appropriate for jurisdiction to be exercised in Ontario; and
g) The child would suffer serious harm if returned to Afghanistan as he requires ongoing medical and psychological treatment that is not available to him in Afghanistan and there is still a concern that the Taliban may attempt to harm him.
[70] I therefore find that the issues with respect to the child's custody should be determined in Ontario.
7. Best Interests of the Child
[71] Pursuant to section 21 of the Children's Law Reform Act, a parent or any other person may apply to the court for an order respecting custody of or access to a child or determining any aspect of the incidents of custody or access.
[72] The applicants therefore have the right to apply for custody. However, in their Application and on this motion the applicants are only applying for temporary custody until the maternal grandmother comes to Canada and the child will then be placed in her custody. It is not entirely clear if it then the intention of the maternal grandmother to remove the child and return with him to Afghanistan.
[73] Any decision whether temporary or final made with respect to custody and access of a child is determined only on the basis of the best interests of the child in accordance with the factors set out in section 24 (2) of the Children's Law Reform Act. That section provides as follows:
Best Interests of Child
(2) The court shall consider all the child's needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child's family who reside with the child, and
(iii) persons involved in the child's care and upbringing;
(b) the child's views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) any plans proposed for the child's care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
[74] The court is also required to consider the issue of domestic violence as set out in subsection 24 (4) of the Children's Law Reform Act as follows:
Violence and Abuse
(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person's household; or
(d) any child.
[75] As this is a temporary motion for custody and access, the court must also consider the disruption to the child and the reluctance of a court to change the status quo unless there are compelling reasons to do so.
[76] In applying the statutory factors and legal principles, I find the following factors to be relevant to the facts of this case:
a) There are strong ties of love, affection and emotional bonds between the respondent, his wife and the child. The child knew the respondent and his family before his parents were killed as they socialised together. Since the death of his parents, the respondent and his wife have assumed a parental role. The respondent and his wife treat the child as their son and a member of their family. Although the applicants may love the child their ties to him are much less significant. Prior to the child coming to Canada they had no connection to him and have only spend some limited time with him since then;
b) The child has resided with the respondent and his wife for almost two years. They have provided him with a stable, nurturing and loving home;
c) The respondent and his wife have ensured that all of the child's extensive medical needs are met. They have comforted and supported him emotionally and helped him deal with the trauma he has suffered. They enrolled him in daycare so that he could learn English and enhance his emotional and social development. The child is now attending Junior kindergarten and doing well;
d) The applicants have no understanding of the child's needs and have jeopardized his physical and emotional well-being by their actions.
(i) In the summer of 2014, the applicant F.K. removed the child from the respondent's home without his consent and while the child was wearing a leg splint and could have easily broken his leg and he then left the child alone with another child who was only 5 years old with no adult supervision while the family held a family meeting and ultimately the child was returned to the respondent's care.
(ii) On another occasion in January 2016, the applicant F.K. removed the child from his paternal grandmother's apartment without the respondent's or the paternal grandmother's permission and took him swimming even though the child has scars and scar tissue that according to his doctor is not to be exposed to sunlight or chlorine.
(iii) The applicant F.K. also called the police making allegations that the child was being maltreated by the respondent and his wife. After the police attended and though they confirmed the child was well-cared for, the child suffered psychosomatic symptoms and had to be taken to the hospital emergency department as he remains fearful of guns, violence, sirens and anything that reminds him of what happened to his family.
(iv) It is alleged that the applicant F.K. also called the children's aid society and the respondent was told that there was an "anonymous" call that alleged he was abusing the child. Though again the investigation found no concerns that child was again exposed to an unnecessary investigation;
e) The plan of the respondent and his wife is to continue to live as a family in this jurisdiction, that the child continue to attend his current school and that his medical needs are met by his current physician and his various medical specialists;
f) Dr. Caulford the child's primary physician deposes that while the child is thriving and well-cared for by the respondent and his wife that:
"his long-term medical needs are significant. A. may experience permanent residual damage as a result of his injuries, possible weakness and coordination issues on one side (due to the trauma to his leg). Given the severity of a brain injury, cognitive and/or behavioural issues may also arise in the future. This may trigger more intensive parenting issues and further medical attention. In dealing with these issues, it would be critical that A.'s care givers have an extensive knowledge of his medical history.
A. will require ongoing assessments on his physical and cognitive development….. A. will require long-term medical, psychological and educational support. Any disruption in the continuity of A.'s care would be extremely detrimental to his development."
g) The plan of the applicants is to care for the child on a temporary basis until the maternal grandmother comes to Ontario. The applicant F.K. has attached a copy of the maternal grandmother's request for a temporary visitor's visa to Canada. As the maternal grandmother has no status in Canada and her husband, two young children and two adult children are in Afghanistan it is assumed that her plan would be to then remove the child to Afghanistan. However, I find that it is not entirely clear what her plan is as she has not filed an affidavit in these proceedings. As she has not filed an affidavit, there is no information about how she would intend to meet the child's very significant needs;
h) The respondent and his wife present a permanent plan for the child's care whereas the plan presented by the applicants is temporary only and there is no evidence of any long-term plan by the maternal grandmother;
i) The respondent and his wife are married and have a stable home with two other children and are expecting another child. The child has lived in the home of the respondent and his wife and their other children for almost two years;
j) The applicants are also married and have no other children and depose that they will care for the child as if he was their own child. But their plan is temporary only and there is no first-hand information about the maternal grandmother's family;
k) There is overwhelming evidence that the respondent and his wife have the ability to act as a parent to this child as they have done for almost two years;
l) There is no evidence that the maternal grandmother has the ability to act as a parent to this child and meet his very significant needs. Not only has she not filed an affidavit in this proceeding but she is not even a party to this application;
m) The applicants are only proposing that they care for the child on a temporary basis. Even on a temporary basis I find that they have a limited ability to act as a parent to this child. They have in the past made spurious allegations against the respondent and his wife and have in their most recent affidavit again made allegations that will likely again expose this child to unnecessary investigations; and
n) There is not a shred of credible evidence that the respondent and his wife have physically harmed the child or abandoned him.
[77] I therefore find that there is no basis to disrupt the child's care in the home of the respondent and his wife where all of his needs are being properly met.
[78] A custody order to the respondent from this court is necessary and appropriate as the applicants continue to rely, on behalf of the maternal grandmother, on the validity of the August 25, 2014 order of the Afghanistan court. This reliance on the August 25, 2014 order may interfere with the ability of the respondent to make necessary decisions regarding the child's medical and educational needs and may be confusing to third parties and in particular the police and the children's aid society who the applicants have already involved in this case.
[79] For the same reasons that I find that it is not in the child's best interests for the applicants to have temporary custody of the child, I find that it is not in his best interests for the applicants to have contact with him unless the respondent and his wife consent. The applicants and in particular the applicant F.K. have attempted to interfere with the child's placement, taken the child without the respondent's consent and appear determined to undermine the child's placement in the respondent's home. The applicants have no pre-existing relationship with the child and as they are unwilling to accept that the respondent and his wife are providing the child with appropriate care I find that if they have contact with the child they will continue to undermine his stability in the home of the respondent and his family.
8. Ability to Obtain Un-redacted Children's Aid Society and Police Records
[80] The respondent has requested that the court order that the applicants file an un-redacted copy of the children's aid society and police records. Counsel for the respondent relies on the requirements of sections 21.1 and 21.2 of the Children's Law Reform Act. Those sections provide that every non-parent applying for custody of a child shall file the results of a recent police records check and submit a request to every children's aid society for a report as to whether the society has a record relating to the person applying for custody and if there are such records the date the file was opened and if closed the date it was closed.
[81] This is the additional information that is now required in a Form 35.1 affidavit filed by any non-parent applying for custody. In this case, the applicants have deposed in their 35.1 affidavit that they have ordered their police record check and signed a consent for the children's aid societies to send a report to the court as required by section 21.2 of the Children's Law Reform Act.
[82] The standard report from the children's aid society has been received by the court. The requirements of section 21.2 of the Children's Law Reform Act do not require a release of all children's aid society records simply a report as to whether or not a society is or has been involved with a non-parent applying for custody. With respect to the police record check although not filed with the court, the respondent agrees that he has received a copy of the applicants police records check.
[83] It appears that what counsel for the respondent is actually seeking is more information than is available simply from the applicants meeting the requirements of sections 21.1 and 21.2 of the Children's Law Reform Act. Counsel as I understand the submission is seeking copies of the entire children's aid society file with respect to any involvement or investigation of the applicants or the respondent and a copy of all police records that would include any occurrence reports not necessarily related to any criminal charges. The respondent was able to obtain a copy of a redacted occurrence report regarding the investigation by the police of their care of the child. I surmise that counsel seeks an un-redacted copy of the records to be able to prove that it is the applicant F.K. that is making these allegations to the police.
[84] However, the records counsel for the respondent seeks are third party records and unless the applicants signed a consent for the release of these records, they cannot be ordered as submitted by counsel pursuant to section 28 (1) of the Children's Law Reform Act as an incident of custody and access. For example, even if the applicants agreed to the release of un-redacted records, the third party may have a policy reason for refusing to release such records and due process requires the third party to have an opportunity to be notified of the request for any such order and be permitted to make representations and file materials before any order made. Such disclosure from a third party must be made on motion with notice to the third party in accordance with subrule 20 (5) of the Family Law Rules.
9. Sealing of the Court File
[85] Pursuant to section 70 of the Children's Law Reform Act, the court has the discretion to determine whether an order limiting access to a court file or prohibiting the publication of information should be made. The court in making this determination is required to consider the following factors:
a) The nature and sensitivity of the information contained in the documents that appear in the court file; and
b) Whether or not making the order could cause physical, mental or emotional harm to any person referred to on those documents.
[86] The Ontario Court of Appeal in the case of H. (M.E.) v. Williams discussed the two branches of the test that the court must consider namely, the "necessity" branch and the "balancing of interests" branch. Justice Doherty speaking for the court stated that the necessity branch focuses exclusively on the existence of a serious risk to a public interest that can only be addressed by some form of non-publication or sealing order. If that test is met, the court may proceed to the second branch of the inquiry where the competing interests must be balanced. The court must consider whether the order sought is necessary to protect "the social value of superordinate importance" or whether or not a lesser order will be sufficient. In this case the principle of public access to court proceedings and documents and the competing social value of the protection of a child is at stake.
[87] In this case the respondent seeks an order sealing the entire file as it is not in the child's best interests to learn about or be reminded about everything he has already gone through in his short life and that his family is embroiled in litigation about his custody and guardianship. It is submitted that it is not in the child's best interests to learn that his family wished to use him for immigration purposes and financial gain. It is submitted that a sealing order is necessary as there is a serious risk to the child's emotional and physical well-being if this court file is made public. It is further submitted that using initials would not suffice as it may be possible for the child or others to find out what has gone on in these proceedings.
[88] The applicants oppose such a sealing order on the basis that curtailing public access to the courts is an exceptional order and there is a heavy onus on the respondent to justify such an order. The applicants submit that there is a public interest in discouraging international child abduction and that the respondent is seeking a sealing order in order to hide his illegal actions rather than to protect the child. It is further submitted that the child is not in any public danger, the respondent did not hide from the Taliban and there was widespread publicity with respect to the child being in the care of the respondent and being welcomed to Canada.
[89] I find that an order using the initials of the child and parties is sufficient to protect any privacy interests of the parties and the child. I find that there is a valid public policy interest in the public being made aware that the respondent did not abduct the child. There is also a public policy interest in the public being aware that the court will carefully scrutinize orders obtained in foreign jurisdictions that do not provide the safeguards and due process that is required in Ontario and that the court must always ensure that any order obtained with respect to custody of a child is based solely on the best interests of that particular child. I also find there is no evidence before the court that the child is being targeted by the Taliban if he remains in this jurisdiction and therefore there are no concerns about his safety in this jurisdiction.
[90] However, if there is information about the child's assets or entitlement to assets, I will entertain any further submissions with respect to sealing the file with respect to such financial information.
10. Final Order
[91] There will be a temporary order as follows:
The respondent T.R. and his wife Z.R. shall be granted custody of the child A.A. born […], 2011.
The applicants F.K. and D.M. shall have no access or contact with the child without the prior written consent of the respondent T.R. and his wife Z.R. or further court order.
The applicants or any other person (except the respondent T.R. and his wife Z.R.) shall be prohibited from removing the child from the City of Toronto without prior court order.
The respondent has leave to bring a motion upon proper notice, to any third party with respect to the disclosure and production of any information or records with respect to the applicants, the respondent and his wife or the child.
The court pleadings and all other documents filed shall only use the initials of the parties and the child. Counsel will arrange to make the necessary amendments and black out the full names of the parties and the child.
The respondent has leave to make further submissions with respect to sealing the file with respect to any financial information regarding assets that the child may be entitled to receive or any financial arrangements that may be made for the child.
If the issue of costs is not settled, counsel for the respondent shall serve and file brief written submissions not to exceed three pages together with any Offer to Settle and a bill of costs within 30 days. Counsel for the applicants shall within 30 days of receipt of the respondent's submissions for costs serve and file brief written submissions not to exceed three pages together with any Offer to Settle and a bill of cost, if he is seeking costs against the respondent.
Released: March 9, 2016
Amended: April 19, 2016
Signed: "Justice Roselyn Zisman"
