COURT FILE NO.: 1745/16 DATE: 2019-01-30
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Raheal Khan Applicant
– and –
Daud Ahmad Respondent
COUNSEL: Angela Grant-Lee, for the Applicant Anser Farooq, for the Respondent
HEARD: April 10-13, 16-19, September 24-28, 2018
BEFORE: Gray J.
[1] This case involves a contest between the father of two young children, and their uncle, for custody of and access to them. The circumstances are most unfortunate.
Background
[2] The respondent, Daud Ahmad was married to Nowsheen Khan on May 30, 2004. They had two children, Rayyan Saeed Ahmed, born January 7, 2010, and Sarah Gul Ahmed, born December 22, 2012.
[3] Nowsheen, unfortunately, died on May 16, 2015 from abdominal cancer.
[4] The respondent is a medical doctor, trained in Pakistan and educated in Russia. While there is some mild dispute about this, it would appear that the respondent worked as a physician in Pakistan for a few years before immigrating to Canada.
[5] The marriage was an arranged one, and there is some dispute as to whether it was an entirely happy one.
[6] Nowsheen was born in Canada, and she travelled to Pakistan to be married to the respondent. It was her preference to live in Canada after the marriage, and the respondent acquiesced and moved here with Nowsheen after they were married.
[7] The respondent is not qualified as a medical practitioner in Canada. He has been unable, to date, to satisfy all of the requirements, particularly the language requirement, to be licenced.
[8] The respondent obtained employment in low-paying jobs, and eventually became qualified as a radiological technician. While he found it difficult to obtain work, and had to endure part-time employment that, in some cases, was geographically distant, eventually he found full-time work mostly in the Niagara Region.
[9] The respondent and Nowsheen settled in Brampton. The applicant, Nowsheen’s brother, lives in a home in Milton. He has a brother, Aneal Khan, who is a physician. He lives in Calgary. His father and stepmother, Altaf Khan and Zahida Parveen live in Milton, but they live in separate residences.
[10] The applicant testified that the respondent’s family lived in Pakistan in an area that is not good. It is near the border with Afghanistan, and there is a good deal of terrorist activity there. He said the Government of Canada does not recommend travelling to Pakistan.
[11] The applicant testified that the respondent frequently visited Pakistan after immigrating to Canada. Apparently, it was necessary for him to undertake employment there as a physician from time to time in order to maintain his qualifications. Accordingly, he was back and forth between Canada and Pakistan frequently. Often, he was not here for birthdays and other celebrations. On the day his son was born, he was not in Canada. He also missed his son’s first birthday.
[12] The applicant testified that the respondent sometimes went to Pakistan for lengthy periods of time. For example, he was there from July 2010 until September 2010. He was there from January 20, 2011 until July 7, 2011, and from April 2012 until May 2012. These visits were apparently work related.
[13] The applicant testified that the respondent would often spend a great deal of time on the telephone.
[14] The applicant testified that in August, 2015, the respondent moved to Niagara Falls. The applicant and his family assisted with the move. In January, 2016, he moved to Milton, and the applicant assisted him moving into his home.
[15] In some proceedings prior to trial, the respondent complained that the applicant had ordered the respondent’s children around as if they belonged to him. The applicant denied this, and said he made sure that the children knew who their father was. However, if he saw the children doing something wrong, he would correct them.
[16] The applicant testified that his sister, Nowsheen, had been in palliative care when she died. The applicant suggested that the respondent put his house in Brampton up for sale, and he suggested that the respondent move into the applicant’s home and put the children in a school in Milton. The respondent agreed. The respondent sold his home in Brampton on his own.
[17] The applicant testified that the relationship with the respondent was the same as it had always been, that is, it was cordial and friendly.
[18] The applicant testified that the respondent and Nowsheen had never asked the applicant for any money. The respondent had a good relationship with Atlaf Khan. The applicant testified that on a couple of occasions, Rayyan told him that his father had pulled his tongue.
[19] The applicant testified that after Nowsheen’s death, the respondent did not contribute to the funeral expenses. He only paid $1,000 in order to clean the body.
[20] The applicant testified that in August, 2014, tests were done and a mass was discovered in Nowsheen’s stomach, and it proved to be cancer. Surgery was conducted in October, 2014, but it was not a success. A final diagnosis was made in November, 2014, and the prospect was hopeless.
[21] Nowsheen went home after the surgery and the respondent was rarely seen at home.
[22] When Nowsheen was ill, the family assisted with looking after the children. The respondent was frequently away, working in Chatham. He normally worked there from Monday to Thursday each week.
[23] The applicant testified that after Nowsheen’s death on May 16, 2015, the respondent and the children lived in the applicant’s home for three months. During that time, the respondent was working in St. Catharine’s. The children enjoyed spending time with the applicant’s family.
[24] The applicant testified that during this time, it was difficult for the respondent. The applicant taught him how to pay bills, and helped him deal with daycare and the school.
[25] The respondent’s parenting style was that he would come home from work and eat. He would sometimes spend time with the children, and he was often on the phone.
[26] The applicant testified that the respondent wanted to be closer to where he was working, in the Niagara Region. He rented an apartment in Niagara Falls, and he and the children moved there. He would come to spend time with the applicant’s family on weekends.
[27] The applicant testified that the respondent purchased a home in Milton, and moved in in December, 2015. The children were registered at P.L. Robertson School in January, 2016.
[28] The respondent had taken the children to Pakistan in November, 2015. The applicant did not want the children to go. He was afraid they would not return. The respondent assured him that they would return, and they did.
[29] The applicant assisted the respondent in moving to a new home in Milton, in January, 2016. He said he would see the children after school. He said the respondent would come home and have dinner with the applicant and the children. He worked out of town from Monday to Thursday, and he worked on Saturday from 9:00 a.m. until 2:00 p.m.
[30] The applicant testified that on one occasion, Rayyan was crying, and said his daddy had twisted his ear. On another occasion, the applicant noticed a mark on Rayyan’s face. Rayyan said his daddy and picked him up by the ankles and dropped him on the ground. As a result of a complaint by a teacher, the Children’s Aid Society investigated but closed the file.
[31] The applicant testified that he is concerned that if the children are taken to Pakistan, they will not return. He said he has bonded with the children, and treats them as his own. He wants them to be safe. They were born in Canada and should remain here. Conditions in Pakistan are rudimentary. The water is not safe, and there is limited sanitation and electricity.
[32] In May, 2016, the respondent went to Pakistan with the children. He returned on August 18, 2016 with the children. The circumstances and the reasons for the trip are controversial, and I will discuss them later.
[33] The applicant testified that with respect to the incident involving Rayyan, he discussed it with the respondent. The respondent’s explanation was that he had intervened in an argument between Rayyan and Sarah. He pulled Rayyan away from Sarah by Rayyan’s leg, and Rayyan accidentally hit his head on the carpet.
[34] The applicant testified that after that incident, there was conflict between him and the respondent. Shortly thereafter, the respondent went to Pakistan with the children.
[35] On May 14, 2016, the respondent took the children out of school. The applicant attended at the respondent’s house, and he discovered that the key he had did not work. There was a lock box on the door, and he could not see any furniture through the window. There was no car at the property.
[36] The applicant testified that he contacted the police and consulted a lawyer. He then started an application in the Ontario Court of Justice.
[37] On May 27, 2016, Wolder J. of the Ontario Court of Justice made an ex-parte order granting the applicant temporary custody of the children; an order that the children be located immediately and delivered to the applicant; an order that the children not be removed from Ontario without the consent of the applicant; an order that the children’s passports be held in trust with the applicant’s counsel; an order that the children reside at the residence of the applicant; an order that the children be returned to their respective schools; and an order for the release of Ontario School Records for the children.
[38] On June 7, 2016, Kurz J., then of the Ontario Court of Justice, granted an ex-parte order that the Halton Children’s Aid Society provide its records to the parties, and that all terms of Justice Wolder’s order remain in effect until further order. He ordered that if it was determined that the children had been returned to Ontario, the police would locate and apprehend them and deliver them to the applicant. He ordered that the matter be transferred to the Superior Court of Justice.
[39] On June 9, 2016, Miller J. of this court ordered that the title to the respondent’s property be transferred to the applicant to be held in trust pending the return of the children. She ordered that title to the property be transferred back to the respondent upon the respondent providing evidence that the children had been returned to the jurisdiction.
[40] On September 1, 2016, Gibson J. extended the order of Miller J. and ordered that the respondent provide the passports of the children to counsel for the applicant. The respondent was present in court with an agent.
[41] On October 20, 2016, I made an order on consent. I referred the matter to the Office of the Children’s Lawyer, and I ordered that counsel for the respondent hold the children’s passports. I made no order as to custody of the children. I granted access to the applicant on alternating weekends from Friday after school until Sunday drop off, and otherwise the children would reside with the respondent. I ordered that the children not be removed from Canada. I ordered that title to the respondent’s property be returned to him, subject to certain conditions.
[42] The Office of the Children’s Lawyer accepted the referral, and ultimately provided a lengthy report. The applicant has disputed some portions of the report. The applicant complains that the OCL did not check a number of sources, and there were a number of allegations against the applicant that were mentioned in the report, that had not been communicated to the applicant.
[43] On cross-examination, the applicant testified that he is a technical consultant in the software industry. The applicant said he now agrees that the respondent is a medical physician qualified in Pakistan.
[44] The applicant said the marriage between the respondent and Nowsheen was not a happy one, notwithstanding that they were married for eleven years and had two children.
[45] The applicant testified that Nowsheen wanted to change her will. She had an appointment to see a lawyer to do so, but she passed away before the will could be changed.
[46] The applicant acknowledged that Nowsheen’s will leaves everything to the respondent.
[47] The applicant acknowledged that the respondent has four sisters in Pakistan. Three are teachers and one is a professor.
[48] The applicant acknowledged that when he was advised of the incident whereby Rayyan was apparently picked up by the ankles and slammed on the floor, he recorded the incident when Rayyan got home from school. He placed a recorder in front of Rayyan and said that he should tell him what happened.
[49] The applicant acknowledged that he expressed no concern about any alleged violence to the children until after Nowsheen died.
[50] The applicant testified that his father had told him of an incident whereby the respondent pushed Rayyan’s head after which Rayyan’s face hit a doorknob. He acknowledged that Rayyan never disclosed any other incidents of violence, nor were any mentioned by Sarah.
[51] Francesca Santoro testified. She was a friend of Nowsheen. She testified that Nowsheen went to Pakistan in May, 2004 and married the respondent in Pakistan. She attended the wedding reception. There was little mingling, and she had minimal contact with the respondent.
[52] Ms. Santoro testified that Nowsheen was not happy in the marriage. She said the respondent was not there very much, and Nowsheen looked after everything.
[53] Ms. Santoro testified that she observed the relationships between the respondent and his children. She said the children were always excited to see the respondent, and there were hugs and kisses. After dinner, the respondent would excuse himself and talk on his cellphone. The respondent did not do any cleaning, prepare meals or help with the children. When Nowsheen was pregnant, the respondent went to Pakistan.
[54] After Nowsheen died, the respondent moved into the applicant’s home for three months. She testified that the children’s grooming was not in the manner that Nowsheen had kept them. She testified that it was a difficult time for the respondent, and he needed time to adjust.
[55] Ms. Santoro testified that when the respondent moved back to Milton after being in Niagara Falls, he would invite Ms. Santoro over. The respondent was reluctant to have the applicant around, because there were arguments.
[56] Ms. Santoro had a good relationship with the children. They called her Auntie Franchie.
[57] Ms. Santoro testified that the respondent took the children to Pakistan for lengthy periods in November, 2015 and May, 2016. She did not hear from the respondent when they were away.
[58] Ms. Santoro testified that she spoke to the children about the first trip, in November, 2015. They said that it was too hot in Pakistan and they did not eat much. They said they were happy to meet their extended family in Pakistan.
[59] Ms. Santoro testified that the applicant is a wonderful uncle and he would do anything for the children.
[60] On cross-examination, Ms. Santoro acknowledged that the children are not underweight. She acknowledged that the parties were married for eleven years, and they did not divorce. They were not forced to marry, and they had two children.
[61] Ms. Santoro acknowledged that she never called the Children’s Aid Society about any issue involving the children.
[62] Ms. Santoro acknowledged that she and the applicant are good friends. She meets with the applicant and the children every couple of months. She has not seen the respondent with the children since late 2016.
[63] She acknowledged that since October, 2016, the respondent has looked after the children, and they are happy. They love their father and they love their uncle.
[64] Kulvinder Hans testified. He is a dentist, and has looked after the dental work for the children.
[65] There is some tooth decay, but any necessary dental work has been kept current.
[66] Katie Fitzsimmons and Penny Butterworth, junior kindergarten teacher and ECE teacher for Sarah, testified. In substance, they testified that Sarah seems to be happy and plays well with others. They both know the applicant and the respondent. She is doing well in school.
[67] Sharon Zanolla, Rayyan’s grade two teacher, testified. She said Rayyan is a great kid. He is engaged and happy. There is some concern about his doing his homework. This has been discussed with the respondent.
[68] Rayyan is clean, and is dressed well. He is a quiet child. Nothing stands out with respect to his relationship with the applicant, and nothing stands out with respect to his relationship with the respondent.
[69] Jennifer Szczuki testified. She has been involved with Sarah in senior kindergarten, along with Penny Butterworth. She testified that Sarah has clean clothes, and appears to be happy.
[70] Aneal Khan, the applicant’s brother, testified. He is a physician, and an associate professor at the University of Calgary.
[71] Dr. Khan testified that he first met the respondent in 2005, when the respondent immigrated to Canada.
[72] Dr. Khan testified that he learned that the respondent had been trained as a physician in Russia. In Canada, he was working as an ultrasound technician. He was not working here as a medical practitioner.
[73] Dr. Khan testified that his sister was lonely. She could not connect with her partner, and she told him she wanted a divorce.
[74] Dr. Khan noted that the respondent had been away in Pakistan from January 20, 2011 until July 7, 2011.
[75] Dr. Khan testified that a friend had commented to Nowsheen about her weight, and she thought the respondent did not adequately defend her.
[76] Dr. Khan testified that he would visit Nowsheen and the respondent in Ontario after the respondent moved to Canada. This would be once or twice per year. On many occasions, the respondent was not present.
[77] Dr. Khan testified that the respondent and his family came to Calgary, and they would do many things there.
[78] Dr. Khan testified as to the respondent’s education and work experience.
[79] The respondent sent Dr. Khan his resume after he arrived in Canada. Dr. Khan suggested that the respondent write a test as to his proficiency in English. He wrote the test, but he did not pass. Dr. Khan assisted the respondent with various work applications and preparing resumes.
[80] Dr. Khan testified that while the respondent purported to be licenced to practice medicine in Pakistan, he said there was nothing on his resume that suggested that he was practicing medicine. While the respondent said he was trained as an oncologist, he was unable to assist Nowsheen in treating her cancer. While the respondent appeared to be certified to practice medicine in Pakistan, there did not appear to be any examples of his doing so. He testified that he is unaware as to whether the respondent still is in good standing in Pakistan.
[81] Dr. Khan testified that he was aware that Nowsheen had a will, and said she wanted to change her will. An appointment was booked with the lawyer, but she died during the morning of the appointment. He said that Nowsheen wanted the applicant to have some rights with respect to the children. She did not want the children to move to Pakistan. She wanted them brought up in Canada.
[82] Dr. Khan testified that Nowsheen had excellent parenting skills, and she did everything for the children.
[83] On cross-examination, Dr. Khan testified that he did not believe the respondent was, in fact, qualified to practice medicine. He is not satisfied that the respondent can practice in Pakistan, and there is no evidence that he actually practiced there.
[84] Dr. Khan acknowledged that since October, 2016, he has not had any contact with the respondent. He says the respondent has evaded him, and he does not have the respondent’s telephone number. He does not know whether the respondent had email. However, he acknowledged that he received an email from the respondent dated August 31, 2016, which states:
Dear Aneal
I hope you are fine. I am asking for some help. I know Auntie and Raheal hate me. They can do anything to me. They can punish me in many ways. I am ready for that. But why is he punishing my kids. Especially Sarah. She is so little. She is always asking me to take her home. She is always crying for me and I can’t help her. She has still not forgot the trauma of her mother’s death. Now they are suffering. You are also a father yourself I know you can understand that.
Thanks
Daud
[85] Dr. Khan acknowledged that he did not respond to that email.
[86] Dr. Khan acknowledged that he had seen no email or text message regarding Nowsheen’s alleged desire to change her will.
[87] Dr. Khan acknowledged that his sister worked fulltime until sometime into her illness, when she applied for and received long term disability. Dr. Khan does not know what the respondent’s income is, nor does he know what Nowsheen earned while she was alive. Dr. Khan himself earns $300,000 per year.
[88] Altaf Khan testified. He is the applicant’s father, and the grandfather of the children.
[89] Mr. Khan testified that Nowsheen was born in Canada, and attended McMaster University. She worked for Royal Bank of Canada. She was friendly, and loved everybody.
[90] Mr. Khan testified that Nowsheen assisted the respondent. She helped him with his English, and assisted in preparing resumes. She helped him look for work.
[91] Mr. Khan testified that the respondent went to Pakistan, sometimes for several months. He said on one occasion a machine was stolen from one of his places of work, and there was a police report. There was a court case in Pakistan, and the respondent had to attend for it.
[92] Mr. Khan testified that Nowsheen and the respondent were a happy couple. He observed no disputes between them through eleven years of marriage.
[93] Mr. Khan testified that Nowsheen was a very good mother, but the respondent never helped her.
[94] Mr. Khan testified that Nowsheen and the respondent slept in separate bedrooms after Sarah was born.
[95] Mr. Khan testified that the respondent would go to work from Monday to Friday each week.
[96] Mr. Khan testified that he lived in the home with the respondent, Nowsheen, and the two children. He and his own wife lived, and still live, separately.
[97] Mr. Khan testified that the respondent’s role in the marriage seemed to be to work. Many of the jobs were far from home. He was away from Monday to Friday each week. While the respondent was away, Mr. Khan would take the children to daycare and return and do other household chores. Both Nowsheen and the respondent were at work.
[98] Mr. Khan testified that he travelled to Pakistan after Nowsheen died. Mr. Khan was born in India, and became a citizen of Pakistan in 1947. He went to Pakistan in mid-May, 2016, to sell some property. He had to get “bad people” off the property. While in Pakistan, he visited the respondent’s brother’s home. He said it is not in a safe place, and it is not clean. He said a normal household in Pakistan is not up to Canadian standards. There is no washroom, there are electrical blackouts, there is no air conditioning, and it is very hot. Getting medical care is difficult.
[99] Mr. Khan testified that between November 23, 2015 and December 31, 2015, the respondent was in Pakistan with the children. Mr. Khan was there as well.
[100] Mr. Khan testified that he went to the respondent’s brother’s home. He saw the children there. They were happy to see him. He said the children did not go to school.
[101] Mr. Khan testified that when in Pakistan, one must take precautions. One does not go out at night, and does not go in a crowd. When he is there, security guards go with him. He testified that the respondent’s brother’s home does not have proper security features.
[102] Mr. Khan testified that on one occasion he was in front of his own house in Lahore. A number of people with guns appeared and told him to go inside. They demanded that they give them money. When his wife arrived, the robbers stole her jewellery and punched her. Mr. Khan testified that Pakistan is a poor country, and this is what happens there.
[103] Mr. Khan testified that the police were advised of the robbery, but they did nothing. The only time they investigate is if they are bribed.
[104] Now, when Mr. Khan goes to Pakistan, he dresses the way they do in Pakistan. If robbers think you are from abroad, they will rob you.
[105] Mr. Khan testified that women in Pakistan are treated differently. Their faces are covered. The respondent’s family is very religious.
[106] Mr. Khan testified that the respondent left Canada to go to Pakistan on May 13, 2016. The week before, he went to the respondent’s home on a number of occasions. On the third visit, in addition to the respondent there were three other people there: a real estate guy Mr. Ali; someone named Shazad; and someone named Muslim Khan. They were on the main floor, and went to the second floor. Mr. Khan was with the children downstairs. He got the impression that the respondent was moving out.
[107] Mr. Khan testified that he went upstairs, and saw a suitcase packed. He went downstairs. The respondent and two men came down and the other man left. Mr. Khan said he asked the respondent whether he was moving to Pakistan and the respondent said no.
[108] Mr. Khan testified that he returned the next day, and there was no one there. There was no car. He looked through the window, and saw no furniture. He tried his key in the lock, but it did not work. He tried to call the respondent, without success.
[109] He called Mr. Ali but he did not know where the respondent was. He called Muslim Khan, but he did not know where the respondent was. He returned to the house, and saw a lock box on the door.
[110] Mr. Khan testified that he returned to Muslin Khan and asked whether the respondent was in Pakistan. Muslin Khan said he would call his brother and find out. He did so, and reported that the respondent was in Pakistan, with the children. He said he was looking for a job.
[111] Mr. Khan said he called Mr. Ali, who said the respondent wanted him to rent the home or sell it. He asked why there was no car in the garage, and was told it was in storage. He checked and discovered that an emission test had been done, and the car was sold.
[112] Mr. Khan testified that he went to Pakistan in August, 2016. He met the respondent with the children at a hotel. He said the children were happy to see him. He said he tried to get the respondent to agree to return to Canada. Ultimately, he did return.
[113] Mr. Khan testified that he told the respondent that Canada was a better country. His wife and children were born in Canada. The environment was better. The schools are good. The government is good. Medical care is better. Life is safe.
[114] Mr. Khan testified that he is never met the respondent’s sisters. He said they would not talk to him. At the wedding, in May, 2004, the women were covered and sat separately.
[115] Mr. Khan testified as to his observations of the respondent’s care of the children. He said they were not properly taken care of. He said the respondent did not like it when the children appeared to be happy with the applicant and his family. He said that when the children were playing outside, the respondent got upset, and said they could not be taken out of the house without his permission.
[116] Mr. Khan testified that he observed Sarah and Rayyan having an argument about a toy. He said the respondent grabbed Rayyan to take him away from the argument, and Rayyan hit his head on a door knob. He asked the respondent why he had hit Rayyan.
[117] On cross-examination, Mr. Khan acknowledged that when he went to Pakistan he saw the respondent, he persuaded him that things were better in Canada, and the respondent came back to Canada. He acknowledged that since October, 2016, the respondent has had the children in his care and the applicant has them every other weekend, together with some time on Mondays and Tuesdays.
[118] Mr. Khan acknowledged that women can be well educated in Pakistan. There are women lawyers, fighter pilots, judges, and one woman was the Prime Minister of Pakistan.
[119] When asked whether the children wore western clothes while they were in Pakistan, he agreed they wore western clothes. They are not religious.
[120] Mr. Khan acknowledged that he and his wife are separated and they argue sometimes. He said they have argued only once in front of the children.
[121] Mr. Khan testified that the respondent is a fundamentalist. He said the respondent’s sisters will not come in front of him. They wear covering of their faces. He said the children in the neighbourhood are Christian, and the respondent will not let them play with his children. However, he acknowledged that they go to school with Christian children.
[122] Mr. Khan acknowledged that he has not seen the respondent interact with his children since August, 2016. He acknowledged that they are doing well in school. He has no concern with how the respondent treats Sarah. He acknowledged that he never saw the respondent strike Nowsheen. The incident he mentioned was the only time he saw the respondent hit his son. He said his wife saw this as well.
[123] Mr. Khan testified that during the incident, he saw the respondent kick Rayyan in the back, and he fell so that his face hit the doorknob three or four feet away. He said there was no cut, but Rayyan was bruised on his lip area. He said he was on a sofa, and his wife was in the dining area on a chair. He said his wife did not do anything. He asked the respondent “why did you do this?”
[124] Mr. Khan testified that after the incident, the respondent went and picked Rayyan up, and hugged and kissed him. He said he did not see the respondent put his hand on the child’s mouth to stop him from crying. He acknowledged that he did not tell the police or the Children’s Aid Society about the incident.
[125] Mr. Khan was asked about the allegations of his wife, to the effect that the respondent had twisted Rayyan’s ear with force, and that Rayyan was knocked unconscious and taken to the hospital. He said he might well forget about this if it did not “stay in his mind”.
[126] Mr. Khan testified that the respondent and Nowsheen were a loving couple. He observed no fights or disputes. He did not know that Nowsheen had suffered miscarriages. He does know when Nowsheen made her will. He said Nowsheen never said that she wanted to divorce the respondent.
[127] Mr. Khan was asked whether it would be good for the children for the respondent to remarry. He said the respondent would know if that was the case. It would be necessary for the children to meet a prospective wife, and it would be important that the children like her. He would have no objection if the respondent were to sponsor a potential wife to Canada. He did not know that the respondent wanted to get remarried.
[128] Mr. Khan testified that he did not know that the respondent has property that he purchased in St. Catharine’s. All he knows is that he saw a for sale sign on the house. He acknowledged that the respondent might be working in St. Catharine’s, and it would be all right if he were there.
[129] When asked whether the furniture in the house might have been moved to the basement, Mr. Khan said no, as far as he could remember.
[130] Mr. Khan acknowledged that Nowsheen never told him that she wanted to change her will.
[131] Zahida Parveen testified. She is married to Altaf Khan. She is the sister of Altaf Khan’s first wife (the mother of the applicant), who died in 2001. She immigrated to Canada in 2006.
[132] She described Nowsheen as a loving, friendly, and pleasant person.
[133] Ms. Parveen testified that when she first met the respondent in Lahore, she did not like him. She said he had no personality and was not the right person for Nowsheen.
[134] Ms. Parveen testified that she was present at the wedding in 2004. When the groom’s party arrived, she noted that the women in the party had burkas. The men were bearded, with head covers.
[135] Ms. Parveen testified that after Nowsheen’s children were born, she took care of them as if she were their mother. She visited them frequently. When the respondent went to Pakistan, she helped with the children. She would visit every two or three days.
[136] Ms. Parveen testified that in 2010 the relationship between the respondent and Nowsheen was not good.
[137] In 2014, when Nowsheen was ill, the respondent was often working and was not home during the day. She testified that the respondent was inattentive to his wife and children.
[138] Ms. Parveen testified that after Nowsheen died in 2015, the plan was that the respondent and the children would move in to the applicant’s house, and they would live together. The respondent would leave the home for work, and would be gone from 6:00 a.m. until 7:00 p.m.
[139] Ms. Parveen testified that the relationship between the applicant and the respondent was not good. She testified that the respondent hated the applicant, and would hit him.
[140] Ms. Parveen testified that one day she heard Rayyan crying. She went to see what was happening. She found the respondent beating Rayyan. The respondent said Rayyan does not read properly. She testified that the respondent beat Rayyan every day. He beat him on a regular basis.
[141] Ms. Parveen testified that on one occasion, she and Altaf Khan were in the hallway. The respondent came running and pushed Rayyan so that his face struck the back of the door. He was bleeding, and crying. His face hit the doorknob. The respondent covered Rayyan’s mouth with his hand so that his voice could not be heard.
[142] Ms. Parveen testified that she consulted a counsellor regarding Rayyan being beaten.
[143] Ms. Parveen testified that when Nowsheen had her surgery, the respondent only visited her once in the hospital. He did not go any other day.
[144] Ms. Parveen testified that after Nowsheen returned home after her surgery, the respondent was living in Niagara Falls, and he was there from Monday to Thursday of each week, and on Friday he was in London.
[145] Ms. Parveen testified that the respondent and Nowsheen slept in different bedrooms.
[146] Ms. Parveen testified that after Nowsheen’s death, the children were looked after by Ms. Parveen and other family members. Everyone lived at the applicant’s home in Milton for three months. She testified that the respondent loved the children a little bit, but “not like the fathers do it”. She testified that Rayyan loved his father and would follow him. She testified that the respondent would hit Rayyan while he was reading the Koran.
[147] On cross-examination, Ms. Parveen acknowledged that when she lived in Pakistan she wore a head covering, and she continues to wear it in Canada. She said is a sin to take it off. She acknowledged that the respondent never said anything to Ms. Parveen about it.
[148] Ms. Parveen acknowledged that she and Altaf Khan live in different places, but she said they remain husband and wife. She said Altaf Khan lives with the applicant. He is at the applicant’s home when she visits there.
[149] Ms. Parveen insisted that the respondent hit Rayyan and pulled his ear in front of her. She said there was no reason. She said the respondent hated Rayyan, and beat him usually every day. She testified that the respondent beat him strongly, with hatred in his eyes. The respondent told Ms. Parveen that he can hit his son when he wants to. That was the point at which she went to the Muslim Community Centre to talk to a counsellor.
[150] Ms. Parveen testified that it is not true that she and Altaf Khan do not live together because they do not get along. She denied that she and Altaf Khan argue in front of the children.
[151] Ms. Parveen testified that the first time she met the respondent, her heart told her that he is not a good person. She did not want Nowsheen to marry him. She testified that the respondent does not like her.
[152] Ms. Parveen testified that the respondent hits his son during almost every interaction they have. The respondent hit Rayyan in the basement every day. On one occasion Rayyan passed out and he had to be taken to the hospital.
[153] Ms. Parveen testified that the respondent pushed Rayyan into a door, with his hand. She and Altaf Khan were in the hallway. The respondent put his hand on Rayyan’s mouth and ran upstairs.
[154] Ms. Parveen denied that Rayyan had slipped and fallen, and that the respondent had picked Rayyan up and consoled him.
[155] Ms. Parveen insisted that the respondent hates his son.
[156] Ms. Parveen testified that the applicant has the children every other weekend. She has noted that on every visit Rayyan is injured. This occurs even during the trial. She asked the applicant to take pictures of the injuries, but he declined, saying that he did not want to spoil the trial.
[157] Karlene Grant is the author of the report of the Office of the Children’s Lawyer (“OCL”). She has been employed by the OCL since 2012. She has worked at a mental health clinic and for the Children’s Aid Society. She has a Master of Social Work.
[158] Ms. Grant’s report was filed on June 4, 2017. Counsel for the applicant filed a dispute with respect to some aspects of the report. Ms. Grant was cross-examined by counsel for both parties at the trial.
[159] Ms. Grant conducted interviews with both parties. She also conducted home visits with the applicant and the children, and with the respondent and the children. With respect to the home visit with the applicant, she stated as follows:
Overall the interactions between the children and Mr. Khan were positive. The children and their uncle appeared to be enjoying playing and interacting with one another. Mr. Khan followed the children’s lead while playing and the children were observed to be calm, happy and relaxed in Mr. Khan’s care, which was evidenced by their play and smiles. The visit was positive with no concerns regarding the quality of the interaction between Mr. Khan and the children. The maternal grandparents on the other hand did not engage with the children in any way during the visit and the children did not seek them out either.
[160] With respect to the home visit with the respondent and the children, Ms. Grant stated as follows:
Overall, Mr. Ahmed presented as a relaxed father in his interactions with the children. He appeared to enjoy playing and interacting with the children and following their lead regarding the activities they participated in. The children were observed to be happy, evidenced by their smiles and laughter. The parent/child interactions were observed as positive, child-focused and developmentally appropriate. There were no concerns observed during the home visit.
[161] Ms. Grant interviewed each of the children.
[162] Ms. Grant noted that Rayyan stated it was fun when his parents lived together and he liked everything about it. He also liked living with his father and feels good about it. His father usually takes them to the doctor if they are sick. Rayyan stated he likes hugging his father and mother and hugged them often. Rayyan states he loves his father “more than anything”.
[163] Ms. Grant noted that Rayyan stated that he does not like going to his uncle’s home and thinks it is scary and he does not like being there in the night and never ever has. He would also be sad if he did not live with his father. He stated that his father does not hit him, his father loves and hugs him.
[164] Rayyan stated that he also likes hugging his uncle.
[165] Rayyan stated that if he had three wishes he would wish for “a great life, having a peaceful life; to watch television all day and lastly, to help a lot of people.”
[166] Ms. Grant noted that Sarah reported she misses her mother a lot and would like more overnights with her father. She recalls going to Pakistan with her brother and father and stated she would like to travel with him again. She likes playing with her father and that he plays a lot. She reported that everyone in her family likes her, including her grandfather, uncle and father. She stated she feels sad when she is at her uncle’s house and does not know why. She feels happy when with her father.
[167] Ms. Grant noted that regardless of how involved the respondent had been with the children while his wife was alive, he is now the remaining parent and is not now neglecting his parental obligations. He is performing all necessary responsibilities of parenting.
[168] Ms. Grant noted that the applicant is making demands and has expectations of the respondent as though he is a parent to the children. She stated that the applicant had no role or authority to make decisions while his sister was alive, nor should he at this point as the respondent is not an incompetent parent.
[169] Ms. Grant noted that the applicant and his family brought concerns of physical abuse to Dr. Baines, who contacted the Children’s Aid Society because he is mandated to do so. Rayyan indicated his maternal grandmother asks him frequently if he is being hit by his father to which he replies he is not. He denies that there is any physical discipline occurring now.
[170] Ms. Grant stated in the report that during the OCL’s involvement, there was no evidence presented that the use of physical discipline was still occurring and the children denied any use of physical discipline.
[171] Ms. Grant noted that the children have identified conflict in the applicant’s home, specifically between their maternal grandparents. The children have also indicated their preference and have stated they love their father and want to remain with him. They do not more overnights with the applicant, and Rayyan has stated he is scared to be at the applicant’s home in the night.
[172] Ms. Grant stated in her report that it is encouraged that maternal family members assume the role they have as uncle and grandparents, and not the role as parent. It would also help not to cause confusion for the children about the roles of each of their family members.
[173] Ms. Grant made the following recommendations:
- The respondent to have sole custody of the children;
- The applicant to have access to the children once a month, specifically the second weekend of the month, Saturday and Sunday, 10-6 p.m.;
- The applicant to pick up and drop off the children at the respondent’s home unless the parties mutually agree otherwise;
- The applicant to inform the respondent in writing prior to any travel with the children outside Milton;
- The applicant to have telephone access with the children twice a week, Monday and Wednesday at 7:00 p.m. for a total of ten minutes;
- The respondent to be permitted to travel with the children without restrictions;
- Neither party to speak to the children about their disputes, nor should either party speak disparagingly about any family member in the presence of the children;
- The respondent to enroll the children in grief counselling.
[174] Applicant’s counsel filed a lengthy dispute with respect to the report. The main complaints were:
a) Counsel disputed that Rayyan was progressing well in school; b) Counsel disputes that Rayyan was being coached to say that his father hits or is abusive towards him; c) Counsel disputes that the grandparents shouted and fought in the home; d) The author of the report had incorrectly stated that the children visited Pakistan with their mother; e) Ms. Grant did not take into account an affidavit from Aunt Franchie; f) Ms. Grant apparently did not take into account the fact that the children have advised the applicant that their father coaches them as to what to say; g) Ms. Grant did not take sufficient account of the fact that the respondent was away from the children for extended periods; h) Ms. Grant unreasonably ranked the importance of the children’s relationships with both the parental extended family and the maternal extended family at the same level; i) Ms. Grant improperly formed an intention to believe the respondent’s version of events over the applicant’s version of events; j) Ms. Grant provided no reasonable explanation for why the maternal family’s access should be reduced to 16 hours once per month. Ms. Grant has demonstrated bias; k) Ms. Grant did not take into account the unstable and dangerous environment of Pakistan, and particularly the specific area in which the respondent’s family resides in Pakistan; l) Ms. Grant did not take into account the Canadian children’s right to remain in Canada; m) Ms. Grant did not consider the differences in how girls are raised in Pakistan in comparison to Canada; n) Ms. Grant did not investigate the attributes of the respondent’s plan of care for the children if their residence would be in Pakistan, or even if he should take them to visit there for extended periods.
[175] In its response to counsel’s dispute, the OCL acknowledged one error in the report, namely, that the children had visited Pakistan with their mother. In all other respects, the OCL affirmed the accuracy and validity of the report.
[176] On cross-examination by counsel for the respondent, Ms. Grant confirmed that there is a positive relationship between the children and their father. The respondent is engaged and interested, and there are no concerns.
[177] Ms. Grant confirmed that Rayyan had stated that he does not want overnights with the applicant, and there is a concern that the grandfather always asks Rayyan if his father hits him.
[178] Ms. Grant confirmed that it would not be appropriate to tell the children that their father did not like their mother, or that she wanted a divorce, or that she wanted to change her will, or that the parents did not sleep in the same bed, or that the father hates the child, or that the father hits the child. Furthermore, it would not be appropriate to tell the children that their father is a fundamentalist or that his father’s family are villagers.
[179] Ms. Grant stated that it would not be proper to videotape the child when asking about assaults that may have been committed by his father. Ms. Grant testified that this should only happen through the police or the Children’s Aid Society.
[180] On cross-examination by counsel for the applicant, Ms. Grant confirmed that the usual process is that there is a preliminary review of the situation; inquiries are made about the children; the parties’ views and plans are ascertained; interviews are conducted; and corroborative sources are consulted.
[181] Ms. Grant was asked whether an interview with a child may be different depending on which party brings the child to an interview. Ms. Grant testified that she could not say that there were any differences here. In this case, Ms. Grant engaged with the children, and they were genuine and comfortable.
[182] Ms. Grant confirmed that Rayyan had said that he had never been hit, and that he did not know what spanking was. She confirmed that Sarah had said she was comfortable with her dad, her uncle, and everybody.
[183] Shahzad Ali testified. He is a real estate agent, and has been so since 2014.
[184] Mr. Ali knows the respondent, and has acted his real estate agent. He was involved in the sale of the respondent’s home in Brampton, the purchase of his home in Milton, and the sale of his home in Milton. He was involved in the purchase of the property in Thorold.
[185] Mr. Ali also knows the respondent’s father-in-law, Altaf Khan. Mr. Ali was involved with Mr. Khan a few times when different properties were being listed and purchased. He has been to Altaf Khan’s home.
[186] Mr. Ali testified that he was at the respondent’s home the day before the respondent went to Pakistan in 2016. Altaf Khan was there as well, as well as a few more people. The respondent was there with the children.
[187] Mr. Ali testified that there was discussion while Altaf Khan was present, about the property being leased while the respondent was in Pakistan. Altaf Khan asked about the trip to Pakistan. Mr. Ali discussed taking the respondent and the children to the airport while Altaf Khan was present. At no time did Altaf Khan say that he should not take them to the airport.
[188] On cross-examination, Mr. Ali said he met the respondent in 2011 at a party. In 2014, the respondent contacted him about selling his home. He met the respondent and Altaf Khan in 2014. He testified that he is not a close friend of the respondent, rather the respondent is a client. He has never had any other clients referred to him by the respondent.
[189] Mr. Ali testified that the respondent has never said that he wanted to move back to Pakistan. He wants to visit Pakistan, but he wants to live in Canada. He wants to remarry.
[190] Mr. Ali testified that the respondent did not sell the home until 2018. In 2016, he wanted to rent the property on a short-term basis, for only a few months. There would be a lockbox on the door while a rental was sought.
[191] Mr. Ali testified that during the discussion at the respondent’s home, the respondent, Altaf Khan, and Mr. Ali sat at a table. There was a discussion about the rental of the property. The respondent had said that he wanted close to $2,000 per month.
[192] Mr. Ali testified that he had seen the respondent and Altaf Khan together on many occasions. They appeared to have a normal relationship, being friendly and casual. They appear to have the same relationship during the discussion at the respondent’s home the day before he left for Pakistan.
[193] Muslim Shazada testified. He works in a grocery store and has done so for eight years.
[194] Mr. Shazada knows the respondent, and has met his children. He has known him for about six or seven years. He has been to his Milton home.
[195] Mr. Shazada testified that he was at the respondent’s home just before he went to Pakistan in 2016. He was there to help the respondent move stuff around. “Tariq” and “Sami” were there as well, as well as Shahzad Ali and the respondent’s father-in-law. He said the respondent had never met Tariq or Sami before; they are friends of Mr. Shazada.
[196] At the home, there was discussion about the respondent going to Pakistan. Mr. Shazada did not hear a lot, but he recalls that the respondent told his father-in-law “I’m going to Pakistan.”
[197] Mr. Shazada testified that the furniture was moved into the basement.
[198] On cross-examination, Mr. Shazada testified that he lived in Mississauga in 2012, and had lived there for three years.
[199] He testified that the respondent lived with Mr. Shazada from May, 2016 until August, 2016. He was aware that the respondent owned property in Milton. The children were there as well. A friend had brought the respondent, but he did not know if he had come from the airport. The respondent said he was “facing a case”, and therefore had to come back to Canada.
[200] Mr. Shazada testified that he was at the respondent’s home before he went to Pakistan, in order to help with the luggage. He said the respondent advised that he was going to get married, but that was all. He said he would stay in Pakistan one or two months.
[201] Mr. Shazada testified that Altaf Khan came and saw him in the store after the respondent had gone to Pakistan, and asked where the respondent was. Mr. Shazada testified that Mr. Khan was aware that the respondent was in Pakistan. He asked when the respondent would be back.
[202] Mr. Shazada testified that he has three brothers in Pakistan. The respondent had said he would be back in two months.
Submissions
[203] Submissions were made in writing following the hearing of the evidence.
[204] Counsel for the applicant submits that the issue is what custody and access arrangements are in the children’s best interests. Counsel submits that before the factors in s.24(1) of the Children’s Law Reform Act are considered, a preliminary analysis must first be undertaken:
- Did the Khan family form a settled intention to treat the children as their own? If the answer is “yes”, their status is elevated and deference to the father is not automatic;
- Even if the answer is “no”, the court must determine whether a positive extended family-child relationship exists;
- Whether the respondent has imperiled the extended family-child relationship; and
- Whether the respondent has acted arbitrarily.
[205] If the answers to these questions are “yes”, then the next step is a consideration of the best interests of the children.
[206] Counsel submits that the Khan family stood in the place of a parent to these children. During their early years, the Khan family assisted the respondent financially, and ensured the children’s needs were met. During Nowsheen’s illness, they supported the children. After Nowsheen’s death, they provided the children with a safe place, they supported the respondent, they assisted in facilitating the children’s completion of the 2014/2015 school year, they maintained the relationships between the children and their cousins, they maintained a relationship with children’s care providers and teachers, provided comfort to the children, ensured Rayyan’s safety when they discovered he was being corporally punished by the respondent, assisted with extra-curricular activities for the children, and attended to Rayyan’s dental care needs.
[207] Counsel submits that the Khan family have treated the children as their own from birth.
[208] Counsel submits that the courts have recognized that biology does not automatically entitle a parent to ultimate decision-making. The Children’s Law Reform Act specifically provides that a parent “or any other person” may apply for an order respecting custody of or access to a child. It is possible for the relationship between a child and an extended family member to supersede the rights of the parents.
[209] In this case, counsel submits that there is in existence a positive relationship between the Khan family and the children.
[210] Counsel submits that the respondent has made a number of decisions that put the children’s relationship with the Khan family into peril. Specifically, the respondent removed the children from school and took them to Pakistan with the intention of relocating there permanently.
[211] Since his return to Ontario, the respondent has continued to make decisions and behave in ways that imperil the relationship between the Khan family and the children. It is possible that the respondent is getting ready to make another move.
[212] Counsel submits that the respondent has acted arbitrarily. He has made a series of arbitrary decisions which places his own needs before those of the children.
[213] Counsel submits that the evidence makes it clear that the children have a pre-existing positive relationship with the Khan family. But for the court ordered access, there would be a severance of the children’s connection with the Khan family. Should the court allow the respondent the autonomy to decide when or if the children should spend time with the Khan family, the relationship will likely be severed permanently.
[214] Counsel submits that when one applies the factors delineated in s.24(1) of the Children’s Law Reform Act, a strong order should be made that will maintain and strengthen the children’s relationship with the Khan family.
[215] Counsel submits that the respondent’s evidence was inconsistent, disjointed, and lacked an air of reality. He was evasive in his testimony about how often he had to travel to and from his work locations. While he meets the requirements of a medical doctor in Pakistan, there are doubts about his credentials. He was evasive when asked about his work history in Pakistan. He was selective in his recollections.
[216] Counsel submits that the evidence of Shahzad Ali and Muslim Shazada should be given little weight. Neither witness was credible, and Mr. Shazada did not make eye contact with applicant’s counsel during cross-examination.
[217] The applicant submits that the respondent should have primary residence of the children. The incidents of custody involving the children should be divided between the applicant and the respondent under a parallel parenting regime, under which the respondent would have final decision-making authority over the education, health and all aspects of the general welfare of the children except for their habitual residence which shall be jointly determined by the applicant and the respondent. It is submitted that the applicant and the respondent each have the right to consent to emergency medical care of the children. They should both be named as emergency contacts with the children’s care providers, school or with any other organization involved with or providing services to the children. Should the respondent seek to change the children’s habitual residence, he must first provide 60 days written notice to the applicant.
[218] The applicant proposes that he have access in accordance with a regular schedule, being every other weekend from Friday after school until Sunday at 6:00 p.m. If the habitual residence of the children is in excess of 75 kilometers from the applicant’s residence, the parties shall exchange at an agreed upon location that is half way between each of their residences.
[219] The applicant proposed that the respondent facilitate Facetime, Skype, or other video conferencing access for the applicant at least once per week for one hour. An access schedule is proposed for religious holidays, and summer holidays.
[220] The applicant proposed restrictions on travel with the children.
[221] Counsel for the respondent submits that no order can be made that will bind “the Khan family”. Only the applicant, Raheal Khan, is a party.
[222] Counsel submits that in this case the acrimony between the parties is such that no access should be granted to the applicant, other than access to be in the discretion of the respondent.
[223] The respondent submits that two independent witnesses have confirmed that the maternal grandfather was aware of the respondent’s plan to travel to Pakistan. Notwithstanding, the applicant brought a motion without notice to seize control over the respondent’s property and the children. He obtained the orders ex-parte. The affidavits sworn in support of the motion were false. There were no concerns for safety or harm to the children while travelling to Pakistan. The applicant had assisted the respondent and the children with a previous trip to Pakistan. The Office of the Children’s Lawyer confirms that there is no concern for the safety of the children. The Children’s Aid Society closed their file. The teachers called as witnesses praised the respondent and they were content with the children’s performance at school. The dentist called by the applicant gave evidence of a father who is caring and dealing with the oral hygiene of the children.
[224] Counsel notes that the children had expressed their desire through the OCL that they do not wish to spend overnights with the applicant.
[225] Counsel submits that the relationship between the parties is irreconcilable. He submits that the applicant and his family have sought to denigrate the respondent by:
a) Demeaning his qualification and credentials as a doctor; b) Belittling his ability to speak and comprehend the English language; c) Making repeated and incessant demands for requests for information that is largely irrelevant; d) Accusing him of beating his son at every interaction and knocking him unconscious; e) Claiming that there was no real relationship between Nowsheen and the respondent; f) Claiming that Nowsheen wanted to change her will and divorce her husband, despite not producing any corroborative documentation.
[226] The applicant and his family continue to undermine and endanger the stability the children enjoy with their father.
[227] Counsel submits that the animus and hatred between the parties is palatable, and it is not in the best interests of the children for the applicant to have court-ordered access.
[228] Counsel submits that the applicant does not satisfy the threshold that must be established in order to be able to bring an application of this sort.
[229] Counsel submits that at the time of the application the children were living with the respondent. The applicant’s relationship cannot be equated to a parental one.
[230] Counsel submits that the applicant cannot use the generosity of the respondent to argue that the relationship the applicant had with the children was equally that of the respondent.
[231] The respondent submits that there is no dispute that he was the primary caregiver and still is. He has been caring for the children without any assistance. There has been no allegation of any inappropriate discipline. There are no complaints from school, a dentist, the Children’s Aid Society, or the Ontario Children’s Lawyer about the respondent’s parenting ability.
[232] The respondent submits that the best interests of the children dictate that the respondent should have sole custody. Counsel submits that the factors delineated in s.24(2) of the Children’s Law Reform Act support the proposition that the respondent should have sole custody.
[233] Counsel submits that having regard to the destructive and divisive acrimony between the applicant and the respondent, the court should not order access to the children by the applicant.
[234] Counsel submits that unless a parent’s decision is unreasonable, the courts have recognized the autonomy of a parent to make decisions about whom the children see, how often and under what circumstances.
[235] Counsel submits that the court should respect the autonomy of the custodial parent where there is acrimony between the parties, as here.
[236] For these reasons, counsel submits that no order for access should be made.
[237] In reply, counsel for the applicant submits that inconsistencies in the evidence of the applicant’s witnesses simply reflect their own independent recollection and perspective and is evidence that there was no collusion between them.
[238] Counsel submits that the earlier caselaw which reflect the autonomy of a parent, and the prime facie right of a parent to have custody of a child, has been displaced by more recent jurisprudence that simply concentrates on the best interests of a child in making determinations on custody and access. More recent jurisprudence reflects an increased willingness in the courts to grant custodial rights to non-parents, even where a parent claims custody.
Analysis
[239] There is obviously a great deal of animosity between the parties. In large part, in my view, this is as a result of the actions of the applicant and his family. In the final analysis, the animosity has little impact on the issue of custody. Access is another matter.
[240] The applicant has sought to portray the respondent as someone who had a bad relationship with his wife, to the point where his wife wanted a divorce and wanted to change her will. I am not persuaded that the evidence demonstrates that that is so. No confirmatory documentation of any kind was produced.
[241] I suspect that as is the case with most marriages, this one was not perfect. The respondent spent considerable amounts of time away from the home, working. This limited the amount of time he could spend with the children and with his wife.
[242] However, the other side of the coin is that the respondent has demonstrated an admirable persistence at obtaining work to support his wife and children, notwithstanding great difficulty.
[243] The respondent arrived in Canada having been qualified as a physician in Pakistan, but with no qualifications here. He worked in menial jobs until he was able to get qualified as a technologist. Even then, he found it difficult to find work and at first could only get part-time jobs. After doggedness and persistence, he finally found work that was more or less full time, but it was geographically distant from Milton.
[244] The respondent’s absence from the home was not due to any neglect of his family; rather, it was to provide a roof over their heads and to put food on the table.
[245] I question the relevance of this evidence. It seems to have been tendered to put the respondent in as bad a light as possible.
[246] The applicant and his brother have sought to denigrate the qualifications of the respondent as a medical practitioner. Indeed, for some period during the litigation, it was contended that the respondent was not qualified as a physician. Even after it was conceded that the respondent is, in fact, so qualified, the applicant and his brother nevertheless sought to downplay and denigrate his ability, and suggested that he did not actually practice medicine in Pakistan.
[247] Once again, I question the relevance of this evidence. There is no dispute that the respondent is not qualified as a physician in Canada. Notwithstanding, he has made significant efforts to find work and provide for his family. Whatever his abilities as a physician in Pakistan may be, it has little, if anything, to do with the issues of custody and access.
[248] The applicant and his family, particularly the grandmother, have sought to portray the respondent as someone who physically abuses his son. The grandmother went so far as to insist that the respondent hates his son, and beats him every day. That evidence is totally lacking in credibility.
[249] The issue of alleged physical abuse of a child is, of course, relevant to the issue of custody and access. However, the evidence tendered by the applicant is so extraordinary that it lacks any credibility.
[250] At most, there is a suggestion that the respondent may have done something to Rayyan that resulted in his falling and injuring his mouth. The applicant and his father and stepmother insist that what was done was deliberate. The respondent’s version is that he was trying to break up a dispute between Rayyan and Sarah, and that he pulled Rayyan away, during which Rayyan accidently hit his mouth on the carpet. The respondent says he immediately went and hugged Rayyan and comforted him and then took him upstairs.
[251] The respondent’s version is more persuasive. There is clearly no evidence, or at least no compelling evidence, of any pattern of physical abuse of Rayyan. It is difficult to accept that the respondent would deliberately harm him on this occasion.
[252] Whatever happened, it was investigated by the Children’s Aid Society, and they closed their file. During the investigation by the Office of the Children’s Lawyer, the children made it clear that there is no physical abuse whatever at the hands of the respondent.
[253] I am satisfied that the applicant’s father was well aware that the respondent was taking his children to Pakistan in 2016, and had every intention of returning. I accept the evidence that Atlaf Khan was at the home of the respondent with the respondent, his children, and three others, and he participated in conversations during which it was disclosed that the respondent was seeking to rent the home, that he was going to Pakistan to find a new wife, and that he would be returning in two or three months. Furthermore, Atalf Khan knew the respondent could be contacted through Muslin Khan, and indeed that proved to be the case.
[254] I am not persuaded that it was necessary for the applicant to bring ex-parte proceedings that resulted in an order that the respondent deliver the children to the applicant, and an order that the respondent’s home be placed in the name of the applicant.
[255] The applicant and his family have sought to portray the respondent as a fundamentalist, who presumably would not bring up the children in Canadian ways. No evidence whatsoever was called to demonstrate the respondent is a fundamentalist, and indeed the evidence is to the contrary.
[256] There is little doubt that most of the responsibility for caring for the children was placed on the respondent’s wife while she was alive. In part, this was on account of the respondent’s work schedule.
[257] In addition, there is little doubt that after his wife passed away, the respondent required a learning curve in order to acquire the skills needed to look after the children. There is little doubt that he has now done so. This is demonstrated by his own evidence, and by the thorough investigation done by the Office of the Children’s Lawyer. Based on the respondent’s evidence and the evidence of Karlene Grant, I am convinced that the respondent is providing excellent care for his children, he treats them with love and affection, and they love him in return. I am convinced that there is no physical abuse.
[258] The applicant does not really seek an order for custody. Based on the order proposed to me, the applicant appears to be content that the respondent have final decision making authority over all aspects of the welfare of the children. The only exception is with respect to the habitual residence of the children, which, as proposed by the applicant, should be jointly determined by the applicant and the respondent. I am not at all convinced that the exception proposed by the applicant should be ordered. An ordinary incident of custody is the ability to decide where the children will live: Gordon v. Goertz, [1996] 2 S.C.R. 27. I see no need to deprive the respondent of that responsibility. I order that the respondent have sole custody of the children.
[259] I will consider the issue of whether the applicant should be entitled to make emergency medical decisions when I consider the issue of access.
[260] The leading case on the issue of access on the part of a non-parent remains Chapman v. Chapman (2001), 141 O.A.C. 389 (C.A.). At para. 21, Abella J.A. stated:
In the absence of any evidence that the parents are behaving in a way which demonstrates an inability in accordance with the best interests of their children, their right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often and under what circumstances they see them.
[261] It is true that the right of a custodial parent to make access decisions is not untrammelled. Indeed, in a proper case the court may order that a non-parent have custody in a case of contested custody between a parent and non-parent: Law v. Siu, 2009 ONCA 61, 65 R.F.L. (6th) 37.
[262] In the case before me, I am not convinced that the respondent should have the untrammelled right to decide whether the applicant has access.
[263] The respondent is correct that there is a great deal of animosity, and indeed hatred, between the parties. This means, however, that if the respondent is given the right to decide whether access will take place, it is highly unlikely that it will occur. While the respondent has testified that he is willing to allow visits to occur, I think it is highly unlikely that they will, or at least there is a serious risk that they will not occur.
[264] I think it is in the best interests of the children that they maintain a relationship with their maternal extended family. They have always maintained such a relationship, and it would not be in their best interests that it be cut off. In the absence of an order requiring access, I am afraid that it may well be cut off.
[265] The Office of the Children’s Lawyer has recommended that visits occur on one weekend per month. I agree with that recommendation. However, the OCL has not recommended any overnight visits. This may be because the children, or at least Rayyan, advised the investigator that they do not want overnight visits. However, I am not sure the position of the children is that unequivocal. In any event, the decision is not one to be made by them, rather it is to be made by the court in the children’s best interests.
[266] The children have had overnight visits for some considerable period of time. They clearly love their uncle and the other members of his family, although the conflict between the grandparents could be problematical.
[267] In the final analysis, I am prepared to order overnight access on one night during one weekend each month. I order that the visits occur commencing at 10:00 a.m. on Saturday and end at 6:00 p.m. on Sunday. I order that the applicant effect the pick-ups and drop-offs, save and except where the respondent lives more than 75 kms from the applicant’s residence, in which case the exchanges shall be at a location that is agreed upon, that is approximately half-way between the residences, or as fixed by the court if there is a dispute.
[268] I order that if a medical emergency occurs while either child is with the applicant, the applicant may make a decision as to emergency medical care. In such a case, he shall immediately notify the respondent, who shall have the right to make any follow-up medical decisions.
[269] I make no other order as to custody and access.
[270] I invite the parties to furnish written submissions with respect to costs, not to exceed five pages, together with a costs outline or bill of costs, and any relevant offers to settle. Ms. Grant-Lee shall have five days, and Mr. Farooq shall have five days to respond. Ms. Grant-Lee shall have three days to reply.
REASONS FOR JUDGMENT
Gray J.
Released: January 30, 2019