CITATION: Kelada v. Labib, 2016 ONSC 7737
COURT FILE NO.: FS-14-80305-00
DATE: 2016 12 08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: IBRAHIM RAMZI KELADA V. IMAN NASSIF LABIB
BEFORE: MCSWEENEY J.
COUNSEL: Paul C. Buttigieg, for the Applicant/moving party
A. Rick Toor, agent for the Respondent
HEARD: December 2, 2016
ENDORSEMENT
[1] This is a motion brought by the father for permission to travel with his nine year old son to Egypt for a two week period during the December 2016 to January 2017 school break. The mother does not consent to the travel for several reasons.
[2] The parties separated in 2013 and reached a final agreement regarding care of their child, Christian, and other matters in December 2015. Their divorce was ordered on January 7, 2016, with the terms of the order consented to by both parties. A key term of the Divorce Order reads as follows:
- The Applicant shall be entitled to travel with the child to Egypt in December, 2016, or January 2017, and at other times as well, provided the Respondent consents in writing, such consent not to be unreasonably withheld. In the event the Respondent withholds consent, the Applicant shall be at liberty to bring a Motion to seek permission for such travel. The Applicant shall have leave to bring such a motion without the necessity of a Case Conference.
[3] As indicated in that paragraph, at the time of negotiating their final agreement, both parents put their minds to the fact that the father would be seeking to travel with their son to Egypt at some point in the future. The father is from Egypt originally, and came to Canada as a religious refugee some years ago. He has parents, several siblings, and other extended family in Egypt. His son has not been to Egypt and has never met his grandparents.
[4] The question of whether or not to permit the child to travel to Egypt with his father was brought before Woollcombe J. of this court in June 2015. At that time, Justice Woollcombe denied the request for travel permission on several bases, including the potential flight risk of the father and the risks associated with travel to Egypt.
Positions of the Parties
[5] The father proposes to take Christian to a resort in a tourist area of Egypt known as Sharm el-Sheikh. To get there, they will fly directly from Toronto to Cairo, a flight of over 10 hours, remain in the airport and then take a connecting flight to the resort area of Sharm el-Sheikh. He proposes to remain with the boy in the Sharm el-Sheikh community throughout the visit and to spend time with father’s relatives in that resort locale.
[6] The parents share custody of Christian, and there was no dispute that father looks after his son on a regular basis and is a caring parent.
[7] The mother objects to the proposed trip for three broad reasons:
Christian’s special health needs.
Danger of travelling to Egypt;
The father’s connections to Egypt mean that he is a flight risk. Egypt is not a signatory to the Hague Convention, which would make it difficult or impossible for the mother to secure the return of Christian if the father chose not to return him to Canada after the vacation;
The Parties Separation Agreement
[8] This issue was argued before me on the basis of whether or not the mother was unreasonably withholding her consent to the father’s proposed trip with Christian. Both parties emphasized how important the “Egypt trip” clause was to their separation agreement. I was advised that neither party would have agreed to the overall separation agreement final order unless terms had been reached in relation to the issue of travel to Egypt by the father. Both parties agreed that I am not bound by the terms of their final order, and that the court has jurisdiction to determine the best interests of the child.
[9] The question before me is whether it is in Christian’s best interests, on the record before me, for him to travel to Egypt with his father on the upcoming December school break. I reviewed evidence and heard argument on the topics of Christian’s health, the safety of travel in Egypt at this time and the flight risk concerns of the mother. I will review each in turn.
Christian’s Health
[10] The mother filed a report dated August 12, 2016 called “Re-assessment of Attendant Care Needs.” It was prepared by an Occupational Therapist at Taylor Rehab, a provider of Neurological Rehabilitation (the “Taylor Rehab Report”), following an assessment of Christian in August 2016. It provides a review of Christian’s health history and a description of his abilities and challenges with day-to-day care activities. This report is relevant and probative of the issue of Christian’s abilities and behaviours.
[11] The Taylor Rehab Report confirms that Christian was involved in a motor vehicle accident over five years ago, when he was 3.9 years old. At that time he sustained a mild to moderate closed head injury. Significant changes in Christian’s behaviour and abilities were reported after the accident. Christian is now 9 years old. He has received multi-disciplinary rehab programming on an ongoing basis since the accident. Services he receives include physiotherapy, occupational therapy, rehabilitation support, and services of an educational consultant and neuropsychologist.
[12] The Taylor Rehab Report also advises that Christian was born with a genetic disorder which is “characterized by small stature, decreased motor skills, learning disabilities, and congenital heart defect…He did have a cardiac issue which was surgically repaired in July 2013 at Sick Children’s Hospital. He recovered well from the surgery with no ongoing medical restrictions required.”
[13] The Taylor Rehab Report indicates the following with respect to Christian’s behaviours as of August 2016:
“Christian’s neurocognitive and behavioural impairments remain evident and services listed above continue to provide direction to parents and his schools to promote skill development in all areas (physical, cognitive, behavioural, academic and social). Christian presents with significant impairment in his ability to regulate his actions and therefore is extremely impulsive.” (page 2)
Following the assessment of Christian’s attendant care needs in August 2016, both parents were provided with the specific recommendations “regarding the need for structure, routine and consistency in their approaches in order to promote and develop Christian’s normal age appropriate self-care and life skills.” (page 3)
“Christian has been diagnosed with Attention Deficit Hyperactivity Disorder and has been prescribed [medication].” (page 4)
“Christian continues to require assistance in the form of verbal reminders for the completion of activities, to ensure his safety due to ongoing issues with impulsivity as well as extra comfort and care due to fears of being alone” (page 4)
Depending on his mood, the report outlines how Christian may engage with a task and simply need encouragement to complete it, however at other times, depending on his mood, he may respond with “silly behaviours and/or more aggressive actions, pushing things away or running around” (page 4)
In several places in the report, the need for close supervision of Christian was emphasized to manage what is described as an escalation of unsafe and impulsive behaviours.
Overall, Christian “requires reminders to watch where he is going or what he is doing as he tends to just jump from one activity to the next without the awareness of potential safety concerns or hazards around him.”(page 5)
With respect to eating behaviours, the report states that “meal times have always been a challenge and this remains a case. Additional cueing is required to keep Christian focused on eating his meals and to stop him from getting up and wandering around and eating. Due to his “picky” status regarding food, there continue to be times when a second or alternative meal has to be made due to his refusal to eat what has prepared.” (page 7)
[14] The report concludes by recommending 24-hour supervision of Christian in order to monitor his actions and promote safety both within the home and in community settings.
[15] Both parents agreed that in the evenings they are typically alone with Christian, and provide the required supervision to their son, but that during the day there are others who are extensively involved in his care.
[16] Both parents also confirmed at the hearing of the motion that Christian continues to require comfort during the night and typically shares a bed with whichever parent he is living with at the time.
[17] I note the specific mention in the report of the importance of vigilance in supervision of Christian at all times, and the importance of maintaining consistency and structure in all respects and all aspects of his daily routine.
[18] Travel by its very nature can be unpredictable, and can have delays and other unforeseen events occur even when carefully planned. Christian has never had to travel for a period as long as a 10 plus hour flight, followed by layover time and another flight, leading to a location with which he is unfamiliar. I am not satisfied on the record before me that the proposed trip to Egypt, with only his father as caregiver and no other respite caregiver, will sufficiently manage the risks imposed by Christian’s impulsive behaviour. I am concerned that these behaviours may increase in the unfamiliar environment of a long flight, international travel and a new country.
[19] No evidence was provided on the motion to establish the availability or expertise of the Egyptian health care system to manage a child with special needs such as Christian, who suffers both from neurological impairment due to his car accident, as well as a genetic disorder for which he is currently receiving regular growth hormone injections. The evidence before me establishes that Christian has complex care needs, that if he were to require urgent care in Egypt, that pediatric, medical, and other services would be available to meet his specific needs.
Travel to Egypt – Advisory from the Government of Canada
[20] The father filed an Egypt travel advisory bulletin from the Government of Canada website, which was current to November 18, 2016 (the “Egypt Travel Advisory”). Both parties relied on it in their submissions and I find that, given its source, it is relevant, admissible, and probative of this issue. I do not admit other materials submitted by mother from online sources relating to the United Kingdom.
[21] The father acknowledges that the Egypt Travel Advisory generally discourages travel to Egypt in view of the unpredictable security situation in that country. The overall risk level for Egypt is that Canadians “Avoid Non-Essential Travel.” However, the father emphasized that the Egypt Travel Advisory specifies that this risk level “does not apply to the Red Sea coastal resorts of Hurghada (and its surroundings) and Sharm el-Sheikh” (emphasis added). In those coastal resorts, it tells travellers that “you should exercise a high degree of caution.”
[22] The Egypt Travel Advisory also warns that ability of the Canadian consulate to provide urgent assistance to Canadians in Egypt may be limited in the event of an emergency. It also notes that consular services may be limited for Canadians who are also Egyptian citizens, and that the children of Egyptian fathers may be limited in their ability to obtain Canadian consular help, as they may be viewed as Egyptian by local rules or customs. Christian is a Canadian citizen born to an Egyptian father.
[23] The Egypt Travel Advisory also warns that “while enhanced security measures are in place to protect the tourism infrastructure in Sharm el-Sheikh, the area may be seen as a high-value target by terrorists.”
[24] Father acknowledged these aspects of the Egypt Travel Advisory, however he emphasized that he is prepared to confine his trip to the resort area of Sharm el-Sheikh, and that his time in the capital, Cairo, will be only in the airport during the layover between the international flight and the domestic flight to the resort. He also pointed out that the Egypt Travel Advisory recommends travelling by air to the resort areas as being safer than ground transportation, and that he plans to fly from Cairo to Sharm el-Sheikh.
Mother’s Allegation that Father Poses a Flight Risk
[25] Mother argued that if father were to take Christian to Egypt, there is a significant risk that he would not return. I do not find that the evidence establishes that if father took Christian to Egypt, there is a significant risk that he would not return. I note that although both parents trust each other enough to permit some travel to Hague Convention countries, Egypt is not a Hague Convention signatory, a factor which makes determination of this factor all the more important given enforcement difficulties in the event of child abduction.
[26] On the evidence before me, I find that the father has many good reasons to return to Canada, including employment, property ownership, and the availability of extensive health care benefits to meet Christian’s complex needs. I also note that he describes himself as a Coptic Christian who came to Canada as a refugee from Egypt due to religious persecution.
[27] I do note, however, that in terms of increased ties to Egypt, in addition to having extensive family in that country, the father confirmed that he is now engaged to a woman who lives in Egypt. He denies that this is a motivation for him to return to Egypt to live, however it is his intention is to sponsor her to emigrate to live with him in Canada.
Analysis:
[28] Parents who are together routinely make decisions about where and whether to travel with their children. As noted by Veit J. in Chammout v. Chammout, 2005 ABQB 138, 373 A.R. 1, at paras. 5-6, in the context of a proposed trip by one parent to Lebanon with the children,
Dangerous activities extend along a spectrum: when they are still together as one cohesive family unit, parents can decide, without outsider hindrance, to involve their children in quite dangerous activities. It is only when the parents’ choices of dangerous activities pose actual, serious threats to the well-being of the children that the state intervenes to prevent harm to the children.
When parents are no longer together, the situation must be approached differently. Each parent who has joint guardianship and custody has, prima facie, the right to have their wishes concerning the children’s activities respected: a parental choice that is unreasonable is as weighty as a reasonable choice. However, where parents have conflicting views of what is in the best interests of their children, and one parent will not accept the other’s veto, the court may be called upon to decide whether a specific parental choice is in the children’s best interests.
[29] That is the situation the court is faced with here. In an Ontario Court of Justice case considering a parent’s proposed trip to Pakistan with the children, this type of best interests determination was described by R. Spence J., in Hamid v. Mahmood, 2012 ONCJ 474, [2012] W.D.F.L. 5924, at para. 30 as akin to a “cost/benefit analysis.”
[30] In this case, the question I must answer is, “What is the benefit to the Christian of the proposed trip to Egypt versus the potential cost to him of that benefit?”
Benefit to Christian:
[31] I agree with the parents that there is undoubtedly a benefit to Christian in meeting and sharing time with his paternal grandparents. On the proposed trip, he would also be able to spend some time with other extended family. This could contribute to the development of his identity as a Canadian of Egyptian descent, and increase his exposure to Egyptian familial culture. These are very positive benefits for Christian.
[32] This benefit must be balanced against the risk of harm to Christian on the totality of the evidence before me. This is not an exact science. As stated by R. Spence J.,
It is clearly impossible to quantify the risk of harm in percentage terms. Nor do I think it is necessary to do so. In any such analysis, as the benefit increases, or the cost decreases, the more such a changing equation operates in favour of permitting the children to travel. On the other hand, as the risk increases, or the benefit decreases, the more likely a court would conclude that travel is not in the best interests of the children. (Hamid v. Mahmood, supra, at para. 32)
[33] I find that analysis is applicable here.
[34] I conclude on all the evidence that it is not in Christian’s best interests to take the proposed trip. Certainly, there would be some benefit being able to visit his grandparents in Egypt. However, this benefit is outweighed at this time by the real risk of harm to him arising from the impact on his health of:
Making a long trip to a location unfamiliar to him;
Risk of harm caused by his impulsive and unsafe behaviours;
Uncertainty of impact on Christian of significant changes to his routine, including bed time, environment, and eating opportunities;
No ready access for father to respite caregivers familiar to Christian if his son’s behaviours escalate in the unfamiliar environment;
Uncertain availability of medical hospital or clinic facilities which can meet the needs of a child with complex care needs in an emergency;
The potential exacerbation of the stressors on Christian which could arise from security related delays or incidents in the journey.
[35] These concerns above are in addition to the factors set out above in the Government of Canada travel advisory relating to the physical and personal safety risks to all tourists travelling to an Egyptian resort destination. I am not at all certain that if Christian had no unique health needs, that I would come to a different conclusion with respect to travel to and within Egypt at this time for a 9 year old child. However, on the record before me, and given Christian’s complex health and care needs, I conclude that it is not in his best interest for him to take the proposed trip at this time.
[36] Based on the conclusion reached above, I must dismiss the father’s motion. I note, however, that the motion is decided on the evidence as it exists today. Should the risk factors relevant to my analysis ameliorate in future, such a trip may eventually be possible for Christian.
[37] It is unfortunate that Christian will not meet his paternal grandparents in person on the coming holiday. Pending an in-person meeting between the father’s parents and their grandson, however, the father is encouraged to continue or develop remote options for Christian to connect with his grandparents. Skype is now a common method of “visiting” between children and their relatives at a distance, and much can be shared in that context. Other technological methods may be available as well. Although father’s affidavit indicated that his parents manage some chronic health issues, they are both in their early to mid-70’s. The evidence did not preclude the possibility that they may travel to meet Christian at some point in the future.
Costs:
[38] It was abundantly clear to me that both parents love and care about their son and want the best for him. On the issue to travel to Egypt, however, they reached an impasse and sought the court’s assistance. The fact that the father would propose a trip to Egypt in December 2016/January 2017 was in fact expressly contemplated in the parties’ Divorce Order. Although the ultimate decision on this motion was ultimately not in father’s favour, it was clear on the record that he took many steps, when planning the proposed trip, to mitigate the risks of travel to Egypt at the current time, and the challenges posed by his son’s current health and behaviour issues. The court is respectful, as is the mother, of father’s desire to share his home country and culture directly with his son. In all the circumstances this is not an appropriate case for an award of costs.
McSweeney J
DATE: December 8, 2016
CITATION: Kelada v. Labib, 2016 ONSC 7737
COURT FILE NO.: FS-14-80305-00
DATE: 2016 12 08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: IBRAHIM RAMZI KELADA V. IMAN NASSIF LABIB
BEFORE: MCSWEENEY J.
COUNSEL: Paul C. Buttigieg, for the
Applicant/moving party
A. Rick Toor, agent for the Respondent
ENDORSEMENT
MCSWEENEY J
DATE: December 8, 2016