Court File and Parties

Ontario Court of Justice

Date: February 1, 2018

Court File No.: D91410/16

Between:

A.W. Applicant

— And —

S.W. Respondent

Before: Justice Melanie Sager

Heard on: November 15, 2017 and January 12, 2018

Reasons for Judgment released on: February 1, 2018

Counsel:

• J. Richard Forget, counsel for the Applicant
• Sarah Conlin, counsel for the Respondent

Reasons for Judgment

Introduction

[1] The Applicant (father) resides in Afghanistan and does not have a relationship with his daughter (Z.W.) who is 7 years old and lives in Canada with the Respondent (mother), her husband and son.

[2] The issue for the court to decide is whether the father should have access to Z.W. born […].

[3] At trial the father requested an order for access to Z.W. once weekly by Skype for 15 minutes.

[4] The mother opposes the father having any access to Z.W.

[5] The mother seeks an order dismissing the father's claim and an order restraining the father from harassing her.

[6] The trial took place over a day and a half and both parties gave evidence. Their evidence in chief was entered by Affidavit and they were both subject to cross examination. The mother called one additional witness, A.N. from the Afghan Women's Organization and the father called a business associate from Toronto.

The Parties' Positions

The Mother's Position

[7] The mother's position is that she and her husband provide Z.W. with a stable and loving home where she is thriving. Z.W. has strong emotional ties to the mother's husband who she considers to be her father. She has no emotional connection or bond with her biological father. For these reasons, the mother's position is that the stable home life Z.W. enjoys should not be jeopardized by introducing the father into her life at this time.

[8] The mother's position is that the father has shown no interest in having a relationship with Z.W. since she was born, until it was clear to him that the mother was no longer willing to have any contact with him. His attempt to have contact with Z.W. is only a way for the father to maintain a presence in the mother's life.

[9] The mother says that she is terrified of the father who has caused her so much pain and suffering. His actions have inflicted untold turmoil on her family which she fears will continue if he is permitted access to Z.W. She also says that considering all that he has done, it is wrong to subject the mother to an ongoing relationship with the father by ordering access.

[10] The mother says that the father has no plan whatsoever as to how to implement Skype access with Z.W. who does not know who he is. The father has not consulted any professionals about how his plan can be implemented in a manner that will not be harmful to Z.W. The mother says the access will be harmful and the risk of disrupting Z.W.'s life and the potential negative impact on her far outweighs any possible benefit of weekly Skype access with someone who is a stranger to her.

[11] Finally, the mother says that where the relationship between the parents is so dysfunctional and there is little chance of successful integration of the father into Z.W.'s life, access is not in her best interest.

The Father's Position

[12] The father asks the court to order that he be permitted to have contact with Z.W. once per week via Skype for 15 minutes. He would like to have a relationship with his daughter and believes that it is his daughter's right to know her biological father and where she came from.

[13] The father's evidence is that the parties and Z.W. lived as a family in Kabul between 2012 and 2014. He says that he has evidence of the true nature of the parties' relationship in the form of "text messages via facebook messenger, viber, cellphones and also voice messages that we exchanged" but none of these were presented or entered into evidence at trial.

[14] The father says that he cannot come to Canada right now or criminal charges will be laid against him as a result of false claims made by the mother. He has hired a lawyer to attempt to address the criminal charges.

[15] The father wants the child to know her father and his family and where she came from. He says he wants to know if she is "tough, easy going, and quick, witty, funny or philosophical". He wants to support her in her life and witness her "advancement".

[16] The father is concerned that if he is not permitted to begin a relationship with his daughter now, with the passage of time she will either reject him or her mother will have negatively influenced her opinion of him.

The Evidence

Undisputed Facts

[17] The father is a successful 36 years old businessman from a well known family in Afghanistan. The mother, who was born in Afghanistan, is 29 years old and spent her childhood in Pakistan and Afghanistan.

[18] The parties are the biological parents of the child Z.W., who was born on […], 2010 in Afghanistan. She is 7 years old.

[19] When the parties met in Afghanistan, they were both married. The father has been married for approximately 11 years and he and his wife have two children. In addition to Z.W., the mother and her husband have an 11 year old son.

[20] In 2014, Z.W., the mother, her husband and their son immigrated to Canada and settled in Toronto. The father continues to reside in Afghanistan with his wife and two children.

[21] The father travelled to Canada on four occasions after learning of the mother and Z.W.'s move from Afghanistan. The father had no contact with Z.W. between September 2014, when she was almost 4 years old and March 2016 when she was almost 6 years old. He saw the mother on each visit but only saw Z.W. briefly on one occasion during his last visit to Canada in March 2016.

[22] The father has not had any contact with Z.W. since March 2016; a period of one year and 11 months as of the last day of trial.

[23] Z.W. does not know the father.

[24] Z.W. believes that the mother's husband is her biological father.

The Contested Evidence

[25] The parties' evidence regarding how they met and the manner in which the mother became pregnant is very different. Both parties provided the court with a considerable amount of evidence that was either entirely irrelevant or mostly irrelevant to the issue I had to decide.

[26] The father's evidence is that the mother worked at the bank he did business with in Kabul and that she called him and pursued a relationship with him. The mother's evidence is that the father called her and insisted she meet with him as he had photographs of "illegal things" he said her husband was involved in.

[27] The mother's evidence is that the father called her several times and as he was in receipt of personal information about the mother and her family, she became worried about her family and her future and felt she had no choice but to meet with the father to hear the details of the allegations he was making against her husband.

[28] The father's evidence is that their first meeting was over lunch where the mother told him about her unhappy marriage. He told her he was married but she kept contacting him. Eventually, according to the father, the parties began a romantic relationship and the mother became pregnant in 2010.

[29] The mother's evidence is that she agreed to meet with the father to hear the information he had about her husband, and when they met in an office building he raped her. She found out approximately one month later that she was pregnant. She told no one about what happened to her out of fear of severe consequences to her and her family.

[30] The mother's evidence is that she was blackmailed into continuing a relationship with the father after Z.W. was born as he threatened to send her husband video and photographs of them engaged in sexual intercourse. She also said the father threatened to harm her husband if she refused to see him.

[31] The father's evidence was that he felt the pregnancy would destroy his marriage and his reputation but he had no choice but to support the mother and the baby after the birth. He claims to have rented an apartment in Kabul in 2012 where he spent time with the mother and Z.W. before they "disappeared" in May 2014.

[32] The mother's evidence is that she changed her telephone number several times but the father always found a way to contact her and continued to threaten to send photographs and video of them in compromising positions if she did not engage in a sexual relationship with him.

[33] In approximately April 2014, the mother says that her husband advised her that he had received a text message stating that she was having an affair. She was so upset about the text message and the prospect of bringing shame to her husband that she attempted to cut her throat with a razor blade and was hospitalized.

[34] The mother's evidence is that her family, including Z.W. began their move to Canada through Pakistan around April 2014. The arrived in Canada in September 2014 but not before she received threatening messages from the father on Facebook and she learned that the father began to harass her mother and sisters in Afghanistan.

[35] The father's evidence is that the mother sent him pleas for help from Pakistan and he travelled there in November 2014 to try and find her and Z.W. but was unsuccessful in locating them. He did not hear from the mother again until she called him from Canada in January 2015.

[36] The mother acknowledges in her evidence that after learning that the father was "creating a lot of problems for them in Kabul", she called the father in early 2015 "and told him to leave my family alone". According to the mother, the father became very angry and instructed her to leave her husband and return to Kabul.

[37] The mother deposed that in "numerous phone conversations" she told the father that she was not leaving her husband and children. The father then told her he was coming to Canada.

The Father's Visits to Canada between March 2015 and March 2016

[38] The party's agree that the father came to Canada and saw the mother in March, May and September 2015, and March 2016. Their evidence differs on most of the events that took place during these visits.

[39] The following is a summary of the father's evidence of his four visits to Canada:

(i) Except for his last visit in March 2016, the father came to Canada at the mother's request;

(ii) The mother continued to assure the father that she wanted to divorce her husband;

(iii) The father consulted a family lawyer in Toronto and contacted the Afghan Women's Organization in search of assistance for the mother to leave her husband;

(iv) The mother met with him and engaged in sexual relations each time he came to Canada;

(v) The mother did not allow the father to see Z.W. except for one brief visit outside of her school in March 2016;

(vi) When the father saw Z.W. in March 2016, Z.W. did not recognize him;

(vii) During his second trip to Canada in May 2015, the mother was hospitalized after overdosing on prescription medication;

(viii) When the mother came to see the father at the home he stayed at during his visit in September 2015, she arrived without Z.W. He told her that if they are going to be together it will be as a family with his daughter. As the mother refused to bring Z.W. he convinced her to return to her husband;

(ix) Upon his return to Afghanistan after the September 2015 visit, the father learned from the mother that she had been admitted to a psychiatric ward of a hospital by her husband;

(x) The father returned to Canada in March 2016 not having had any contact with the mother since September 2015;

(xi) The father hired a private investigator to find the mother and Z.W.; and,

(xii) During the March 2016 visit, the parties once again discussed their future together.

[40] The following is a summary of the mother's evidence regarding the father's visits to Canada:

(i) The mother admits to meeting the father in his hotel room each time he came to Canada as he threatened to release explicit videos and photographs of her to her husband if she did not;

(ii) The mother denies that the father asked to see Z.W. when he travelled to Canada in March 2015;

(iii) The mother acknowledges meeting with A.N. of the Afghan Women's Organization to discuss her situation;

(iv) The mother acknowledges being hospitalized after arriving at the father's hotel room in May 2015 after having swallowed a bottle of antidepressants as she was paralyzed with fear that the father would send the explicit photos of her to her husband;

(v) The mother's evidence is that when she returned home from visiting the father in September 2015, she "broke down" out of fear that the father would act on his threats. She was so distraught that her husband took her to the hospital;

(vi) The mother contacted police and made reports of the father's attempts to blackmail her after the father's visits to Canada in September 2015 and March 2016;

(vii) After telling the father that she did not want to have any contact with him, he showed up in Toronto unannounced in March 2016. The father once again asked her to marry him and threatened to post the explicit photos of her on Facebook and report her husband to Interpol if she refused;

(viii) The mother acknowledges seeing the father at his hotel room in March 2016;

(ix) Under duress the mother took the father to meet Z.W. in the playground during her lunch time at school. The visit only lasted 5 minutes. The mother's evidence is that this was the first time since Z.W. was born that the father asked to meet her;

[41] The mother's evidence is that in August 2016, after the father's last visit to Canada, she learned that there was a Facebook account in her name with pictures of her in her bra and underwear. There were also photos of the mother walking down the street with her children. The mother believes that the father created this account.

[42] The mother reported all of the father's behavior to the police and in September 2017 he was charged with three counts of criminal harassment, one count of assault and one count of extortion.

[43] The mother also gave evidence that demonstrates that her husband was in fact listed as a "wanted person" by Interpol which she claims caused him to lose his job.

The Law

[44] There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances: Jafari v. Dadar [1996] N.B.J. No. 38 (NBQB).

[45] Being a biological parent in of itself is not a basis for ordering access to a child. Access is the right of the child: M.(B.P.) v. M.(B.L.D.E.), 59 O.A.C. 19, Abrego v. Moniz, 2006 ONCJ 500, Hall v. Burke 2006 CarswellOnt 570.

[46] The child should have maximum contact with both parents if it is consistent with the child's best interests: Gordon v. Goertz, [1996] 2 S.C.R. 27. This even applies when the child is reluctant to see a parent. Maximum contact principle also applies under provincial cases, even though not set out in CLRA: Cavannah v. Johne [2008] O.J. No. 5027 (SCJ).

[47] The Court has to view what is in the best interests of the child, not the parents. The "maximum contact" principle, as it is called, is mandatory, but not absolute. The maximum contact principle only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact: Young v. Young, [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J.; Casselman v. Noonan, 2017 ONSC 3415.

[48] A parent does not have an absolute right of access, however, refusing access should only be ordered in extreme circumstances: Worthington v. Worthington, 2000 CarswellOnt 4889 (Sup.Ct.).

[49] A court may restrict access if a parent uses access as an opportunity to denigrate the other parent: J.M. v. M.M., [2000] O.J. No. 142 (SCJ); Frost v. Allen [1995] M.J. No. 111 (Man.QB).

[50] In Jennings v. Garrett, [2004] O.J. No. 2238 (Ont. S.C.J.), Justice Jennifer Blishen reviewed the case law and at paragraph 135 provided the following list of factors the court should consider when being asked to terminate access:

1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear. See M.(B.P.) v. M.(B.L.D.E.), supra; Stewart v. Bachman, [2003] O.J. No. 433 (Sup.Ct.); Studley v. O'Laughlin, [2000] N.S.J. No. 210 (N.S.S.C.) (Fam.Div.); Dixon v. Hinsley, [2000] O.J. No. 3707.

2. History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child's safety and well being. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J. No. 769 (N.B.Q.B.); Abdo v. Abdo (1993), 126 N.S.R. (2d) 1 (N.S.C.A.); Studley v. O'Laughlin, supra.

3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent. See Tremblay v. Tremblay (1987), 10 R.F.L. (3d) 166; Reeves v. Reeves, [2001] O.J. No. 308 (Sup.Ct).

4. Ongoing severe denigration of the other parent. See Frost v. Allen, [1995] M.J. No. 111 (Man.Q.B.); Gorgichuk v. Gorgichuk, supra.

5. Lack of relationship or attachment between noncustodial parent and child. See Studley v. O'Laughlin, supra; M.(B.P.) v. M.(B.L.D.E.), supra.

6. Neglect or abuse to a child on the access visits. See Maxwell v. Maxwell, supra.

7. Older children's wishes and preferences to terminate access. See Gorgichuk v. Gorgichuk, supra; Frost v. Allen, supra; Dixon v. Hinsley, supra; Pavao v. Pavao, [2000] O.J. No. 1010 (Sup.Ct.).

[51] Justice Blishen wrote at paragraph 136, "None of the above cited cases deal with one factor alone. In every case, there are a multitude of factors which must be carefully considered and weighed in determining whether to terminate access is in the best interests of the child."

Analysis of the Evidence

Credibility

[52] The description of the parties' relationship, how it began and continued over a seven or eight year period could not be any different. The mother claims the child was conceived when she was raped by the father and that she was blackmailed over several years into maintaining a relationship with him. The father claims that the mother initiated their relationship and always maintained that her husband was abusive and wanted to leave him. He believed they would be together and claims that the mother manipulated him emotionally into maintaining contact for many years by assuring him they will be together one day as a family.

[53] I find several aspects of both parties' accounts of their relationship to be difficult to believe. That being said, I do not have to make any findings of credibility in this case to decide the issue before me. In fact, much of the evidence given about the parent's relationship is irrelevant or of diminished value on the issues before me. There are sufficient facts that are not in dispute that the court can and will rely upon in coming to a decision.

[54] Based on the facts in this case that are not in dispute, I find that there would be no benefit to Z.W. having access to her father.

[55] In addressing the factors set out in subsection 24(2) of the Children's Law Reform Act, I rely in particular on the following undisputed facts in support of my decision:

(i) Z.W. enjoys a happy, loving and stable home environment with her parents and brother in Toronto where she has lived since September 2014;

(ii) Z.W. is in grade two and is a well-adjusted and happy child. She loves school, obtains good grades and is very social;

(iii) The child shares a close relationship with the mother and her husband;

(iv) Z.W. believes that the mother's husband is her father and Z.W. adores him;

(v) There is no evidence that the mother and her husband are not good parents to Z.W.;

(vi) The father and Z.W. do not have a relationship;

(vii) When Z.W. saw the father in March 2016 for a very brief visit outside of her school, she did not recognize him;

(viii) Z.W. did not have any contact with the father between September 2014 when she was almost 4 years old and March 2016 when she was almost 6 years old and again between March 2016 and the date of trial;

(ix) The father did not pursue access to Z.W. until August 2016, when she was 6 years old;

(x) The father travelled to Toronto on four occasions between 2014 and 2016 during which he did not see Z.W. except for one brief meeting in the playground in March 2016, yet he did not take any steps to address this fact. He did not retain a lawyer and he did not commence court proceedings until August 2016 despite claiming he was denied access with Z.W. until March 2016 and that when he finally did see her he was devastated that she did not recognize him;

(xi) The father has no specific plan as to how he will introduce himself to Z.W. over Skype and how she will be prepared for such contact;

(xii) The father has not obtained any advice or assistance from a professional with expertise in child development on how to approach a relationship with Z.W. who does not know he is her father;

(xiii) The father lives in Afghanistan and has no plans to come to Canada in the near future. His only plan right now is for 15 minutes of Skype access per week;

(xiv) The father has no plans to develop the relationship with Z.W. beyond 15 minutes of Skype access per week;

(xv) The father's parenting skills are brought into question by the very fact that he is seeking to have Skype access to a 7 year old girl who does not know he is her father. He has shown no insight into how extremely traumatic it might be for Z.W. to be required to begin a relationship, via Skype, with her biological father at this point in her life;

(xvi) At this time there is no prospect for a relationship that goes beyond weekly Skype contact, and the father is not seeking a relationship that goes beyond this;

(xvii) The mother's plan is for Z.W. to learn about her biological father when she is older and better able to understand the mother's history with him. She knows that this is something she will have to address in the future but feels that in all of the circumstances, Z.W. is too young to learn about her biological father.

[56] Subsection 22(4) of the Children's Law Reform Act requires the court to consider whether the person seeking custody of or access to a child "has at any time committed violence or abuse against" their spouse, the child's parent, a member of the person's household, or any child. Counsel for the mother urges the court to consider the mother's evidence of the father's abusive behaviour towards her. The mother's allegations, if true, of rape, blackmail, harassment and emotional abuse by the father would, of course, amount to violence the court must consider under subsection 22(4) of the Children's Law Reform Act when deciding if Skype access by the father to Z.W. is in her best interests.

[57] While I am unable to determine the truth of the multitude of allegations made by both parties against the other, what is abundantly clear is that regardless of which parent's version of events are accurate, the parties' relationship was extremely dysfunctional, high conflict and dangerous.

Access by the Father to Z.W.

[58] Regardless of whose version of events is more accurate, the court can say with certainty that ongoing contact between the parents that would result from an access order, in all of the circumstances of this case, is not in Z.W.'s best interests.

[59] I accept that the mother is extremely anxious at the prospect of the father having access to Z.W. as this will result in the father maintaining a presence in her life. This thought is unfathomable to the mother. Based on the nature of the parties' relationship the court understands the mother's position. She has been unable to manage her relationship with the father over many years and her being unable to do so has put not only her familial relationships at risk but also her own life.

[60] The mother's hospitalizations and attempts to harm herself are evidence of the poisonous relationship the parties had and the effect it had on the mother. As the mother has the responsibility of Z.W.'s day to day care and is responsible for her physical, emotional and psychological wellbeing, the court cannot ignore the possibility of an access order having a devastating impact on the mother, her relationship with her husband, her son, her parenting, and, ultimately on Z.W.

[61] As Z.W. is 7 years old, does not know the father and believes the mother's husband is her father, access to the father, even Skype contact once per week, risks upsetting Z.W.'s security and stability within her family. This is not something the father seemed to contemplate.

[62] At this point in Z.W.'s life, Skype access to her biological father in Afghanistan once per week for 15 minutes with no plan on how to commence the access or expand it, will offer no benefit to Z.W.

[63] The potential negative effect an access order could have on Z.W. is far too high a risk to take considering the lack of evidence of any benefit Z.W. will enjoy as a result of having Skype access with the father.

[64] Introducing this father to this child might cause actual harm to her. To introduce this father to this child at this point in her life, with the limited information she has, there would have to be evidence of an absolute benefit to her in order to take the risk that such an introduction would present. There is no evidence that such a risk is worth taking.

[65] For all of the above reasons, the court finds that it is not in Z.W.'s best interest to have access with the Applicant, and this claim is dismissed.

Mother's Request for a Restraining Order

[66] As the mother has not had any contact with the father, who resides in Afghanistan, since March 2016, and I did not prefer one parents' evidence over the other's evidence, I find no basis upon which to make a restraining order, and this claim is dismissed.

Order

[67] There shall be no access by the Applicant to the child named in the Application.

[68] The mother's request for a restraining order is dismissed.

[69] If either party seeks an order for costs, they shall serve their cost submissions on opposing counsel within 20 days from the date of this decision. Their cost submissions shall be no more than 3 pages not including attachments and a Bill of Costs. The party responding to the request for costs shall serve their responding cost submissions within 30 days of receipt of the request for costs. The responding cost submissions shall be no more than 3 pages not including attachments. The party moving for costs shall have 10 days to reply to the responding submissions and such reply shall be no more than 2 pages.

[70] Costs submissions not served and filed in accordance with paragraph 69 above will not be given consideration by the court.

[71] Costs submissions shall be delivered to the Trial Coordinator's Office.

Justice Melanie Sager

Footnotes

[1] The father participated in this trial by video conference from Afghanistan.

[2] I did not put any weight on the mother's evidence that the father lost his job as a result of being listed on Interpol as a "wanted person" as this is hearsay. Although available to do so, the mother's husband did not give evidence at the trial. The mother also included in her affidavit evidence information she received from various family members in Afghanistan. Where this hearsay evidence was being put forward by the mother for the truth of what was said, I did not consider the evidence in reaching my decision.