SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rajib Mazhar Hasan, Applicant
and:
Wahida Khalil, Respondent
BEFORE: M. Kraft, J.
COUNSEL: Brenda Spanier, for the Applicant
Eric Shapiro, agent for the Respondent
HEARD: December 14, 2021
ENDORSEMENT
Nature of the Motion
[1]
Nature of the Motion
The applicant (Mr. Hasan”) brings an urgent motion seeking an order that he be permitted to travel with the parties’ 10-year daughter to Athens, Greece, from December 17, 2021 to December 26, 2021, and an order requiring the respondent (”Ms. Khalil”) to provide him with a notarized travel consent to enable the trip to occur.
2I have determined that it is not in M.’s best interests to travel with Mr. Hasan to Greece from December 17, 2021 to December 26, 2021, for the reasons set out below.
Background
[3]
Background
The parties were married on December 27, 2008. They have one child of the marriage, M., born March 29, 2011. She is currently 10 years of age.
4The parties separated on April 29, 2011. They were divorced on July 22, 2014.
5M. resides primarily with Ms. Khalil in Toronto.
6Mr. Hasan was remarried in November 2015. He resides with his wife and their two children in New York. He maintains a condominium in Toronto, where he enjoys parenting time with M.
7There is a consent final order of Conway, J., dated July 22, 2014 (“Final 2014 Order”), which addresses parenting and travel. The Final 2014 Order establishes that Mr. Hasan has parenting time with M. on alternate weekends plus holiday time. Mr. Hasan’s parenting time was expanded, on consent, by Stevenson, J., on October 19, 2015, such that M. resides with him on alternate weekends from Wednesday, after school. to Sundays, plus holiday time.
8The relevant paragraphs of the Final 2014 Order with respect to decision-making responsibility, the parenting time M. is to spend with Mr. Hasan during the Christmas School Break, and travel are reproduced below:
Major Decisions
a) [The parties] are to solicit the input and opinions of the other in relation to any and all major decisions affecting [M.’s] life, including those decisions related to her physical and psychological health, her education, her cultural and religious training and experiences, any extra curricular activities that may affect the time spent by M. with the other party, and any other major decision affecting M.’s general welfare; para. 18 of the Final 2014 Order.
b) In the event of a dispute in relation to a major decision affecting M. that [the parties] are unable to resolve, [Ms. Khalil] shall retain the final authority to make any such major decision, subject to the input of relevant professionals, with the exception of those decisions related to M.’s participation in any extra-curricular activity that may affect the time spent by her with [Mr. Hasan], such decision shall be effected on joint consent only, or subject to dispute resolution by the Parenting Coordinator in accordance with the process set out above in paragraph 12; para. 20 of the Final 2014 Order. [emphasis added]
Christmas School Vacation
c) M. Shall reside with [Mr. Hasan] in each year during the Christmas School Vacation period for nine (9) consecutive overnights commencing from after school on the day that said vacation begins (normally a Friday) and ending on Sunday, nine (9) days later, at 4:00 p.m. M. shall reside with [Ms. Khalil] in each year during the Christmas School Vacation period for the balance of this vacation period, commencing on the Sunday at 4:00 p.m. and ending on the Monday that school recommences; para. 33 of the Final 2014 Order.
Travel with the Child
d) M. shall be permitted to travel outside Canada with either party for the purposes of vacation, contact with [Mr. Hassan] in New York, contact with extended family, or special occasions, with the consent of the other party, such consent not to be unreasonably withheld. When M. travels outside of the country with a party for these purposes, the other party shall provide a notarized "Travel Letter" authorizing M. to travel outside the country with the accompanying parent. [The parties] shall cooperate in obtaining and maintaining a valid passport for M. which shall remain in the possession of [Ms. Khalil] at all times, with the exception of instances in which M. is travelling outside the country with [Mr. Hasan]; para. 62 of the Final 2014 Order.
e) [Mr. Hasan] shall be permitted to travel with M. between Toronto and his residence in New York, without need for a notarized "Travel Letter". Travel on the part of either party with M., to any location outside of Canada, other than [Mr. Hasan’s] residence in New York, shall require a notarized "Travel Letter"; para. 63 of the Final 2014 Order.
Mr. Hasan’s Position and Evidence
[9]
Mr. Hasan’s Position and Evidence
Mr. Hasan argues that it is in M.’s best interests that she be permitted to travel with him to Greece for the following reasons:
a) Such travel is permitted by the Final 2014 Order;
b) He does not seek an increase from the nine days of holiday time allotted to him during the Christmas holidays permitted under the Final 2014 Order;
c) He has tried since September 2021 to obtain the consent of Ms. Khalil to this trip so that M. could enjoy a family trip with all members of Mr. Hasan’s immediate and extended family members, including his wife, his children, his parents, his sisters and their significant others;
d) It would be in M.’s best interests to enjoy and seize the opportunity to take a much-needed vacation after almost two years of travel restrictions, limited family contact and lock downs due to the Covid-19 pandemic;
e) His father, M.’s paternal grandfather, turned 80 years old this year, has begun to display the early signs of dementia and this could be the last opportunity for M. and the family to enjoy a trip while his father is still of relatively good health and sound mind; and
f) He complied the Travel Notice requirements under the Final 2014 Order and gave Ms. Khalil all the details regarding the trip, the itinerary and details of the accommodation;
g) Ms. Khalil is agreeable to M. travelling with him to New York, but will not consent to her travelling to Greece, leading him to believe that she opposes the trip to punish him, as opposed to for genuine reasons. He deposes that Ms. Khalil has interfered with his parenting time in the past and this is simply another attempt on her part to do so; and
h) He has taken every safety precaution available in that, :
i) He has limited the family’s accommodation to one hotel in Greece that has strict safety Covid protocols in place, namely, the Hilton;
ii) He has assured Ms. Khalil that M. can be reached on his cell phone number throughout the trip;
iii) He has ensured that every adult in the family joining them on the family trip is double vaccinated and/or receiving his/her booster shot if available. Specifically, he and his wife, who will be M.’s primary caregivers during the trip, are both vaccinated and have received their booster shots;
iv) He has ensured that M. has received her first dose of a Covid vaccination;
v) He applied for and received the paper-work and ETIAS Visa Waivers for Canadians, since he and M. are Canadian citizens and non-EU residents;
vi) He plans to only visit sites/venues that are outdoors and maintain strict safety protocols. He will not visit any areas where social distancing is not possible;
vii) He has obtained extra medical insurance for himself and M. to ensure that most serious of emergencies are covered; and
viii) He consulted the Government of Canada’s travel advisories with respect to Greece which indicates that there ae “no significant safety and security concerns” regarding travel to Greece and that the “overall safety and security situation is similar to that of Canada”; and that Canadians travelling to Greece “should take normal security precautions.”
ix) He took the additional steps of obtaining authentication of his vaccine documentation as per the government of Canada travel guidelines in order to avoid any requirement of quarantine in contemplation of the fact that certain EU businesses might not recognize or accept proof of Canadian or CDC-issued proof of vaccination.
Ms. Khalil’s Position and Evidence
[10]
Ms. Khalil’s Position and Evidence
Ms. Khalil argues that it is not in M.’s best interests to travel with Mr. Hasan to Greece for the following reasons:
a) She did not provide consent to this trip when Mr. Hasan initially asked for her consent in September 2021, because she felt it was premature to address potential overseas travel three months out given the world is grappling with the Covid-19 pandemic in changing times. She advised Mr. Hasan of her reason for wanting to wait until closer to the scheduled trip to provide her consent;
b) The trip to Greece is non-essential. M. is not fully vaccinated and, therefore, not fully protected from Covid-19 or the Omicron variant of current concern;
c) Mr. Hasan took M. to receive her first dose of the Covid-19 vaccine on November 25, 2021, without her consent, three days after she had notified him on November 22, 2021 that M.s’ paediatrician recommended waiting to administer the vaccine to M. because she suffers from eczema. In doing so, Mr. Hasan flagrantly breached the terms of the Final 2014 Order knowing that Ms. Khalil has final decision-making authority over major decisions affecting M. and in violation of M.s’ paediatrician’s advice. Given Mr. Hasan’s breach of the Final 2014 Order, a contempt motion has been scheduled to be heard by the court on January 27, 2022;
d) The Omicron variant is a serious concern and the Canadian government is warning Canadians who are considering travel outside of the country to not just expect inconvenience coming home but also shifting rules abroad;
e) In April 2020, Mr. Hasan failed to quarantine for two weeks before picking M. up on April 18, 2020, despite having represented to Moore, J. that he had done so, resulting in an order that M. spend April 18th, 2020 to April 25th, 2020 with him. As a result, Mr. Hasan was fined $1,000 for breaching s. 58 of the Ontario Quarantine Act. In light of this conduct, Mr. Hasan’s assurances that he will make M.’s safety and health a priority cannot be relied upon; and
f) She believes it is important for M. to spend meaningful time with Mr. Hasan and his family during the Christmas School Break and during other holiday times. She agreed to M. spending time with Mr. Hasan and his family in New York over the U.S. Thanksgiving weekend and Mr. Hasan arranged for a private car to take him to pick up M. in Toronto and drive to New York. It is based on this, that she has agreed to M. spending the nine-days of scheduled parenting time with Mr. Hasan during the Christmas School Break in New York.
The Law
[11]
The Law
In making an order relating to parenting-time, the only consideration is the child’s best interests: s.16(1) of the Divorce Act.
12In accordance with s.16(2), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
13In determining the best interests of the child, the factors set out in s.16(3) of the Divorce Act shall be considered by the court. The relevant factors to the determination of the issue before me include:
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Analysis
[14]
Analysis
The starting point is the Final 2014 Order which sets out Mr. Hasan’s parenting time with M. during the Christmas School Break.
15Mr. Hasan submits that there is a presumption that all parenting orders should be respected and complied with; Riberio v. Wright, 2020 ONSC 1829, at para. 6-11 and 18-20. It is correct that (a) Mr. Hasan has followed the notice requirements provided for in the Final 2014 Order to travel with M. to Ms. Khalil, and (b) Mr. Hassan’s parenting time with M. over the Christmas School Break is to occur over nine (9) days and the trip to Greece does not exceed his allotted parenting time set out in the order.
16However, as set out in Riberio, the Court may need to modify existing parenting arrangements to ensure that all Covid-19 precautions are adhered to and no matter how difficult the challenge, for the sake of the child, we have to find ways to maintain important parental relationships safely.
17Mr. Khalil is not trying to restrict Mr. Hasan’s parenting time with M. over the Christmas School Break. Again, she consents to M. having nine days of parenting time with Mr. Hasan in New York. She does not, however, consent to M. travelling with Mr. Hasan to Greece, due to safety concerns and the potential risks M. will be exposed to as a result of the proposed international travel.
18The issue before me is whether it is currently in M.’s best interests to travel to Greece from December 17, 2021 to December 26, 2021 given her vaccination status and given the current state of the Covid pandemic.
19Mr. Hasan has chosen to travel internationally over the Christmas School Break, which is a higher-risk trip than, for example, if he had chosen to remain in Canada with M. or remained in the United States with M.
20His plan is to retrieve M. from Toronto; travel with her to New York; and then fly from New York to Greece. Mr. Hasan did not provide the court with information regarding his flights. It is unknown, therefore, whether he has a direct flight from New York to Greece or whether there is a layover in another destination. In either scenario, M. will be exposed potentially either to one short flight from Toronto to New York, and one (or more) long-haul international flights from New York to Greece, potentially with a layover, making it extremely difficult, if not impossible, for M. to wear an N95-grade mask for a flight that exceeds 10 hours. The proposed trip to Greece will result in M. also experiencing long-wait times in crowded airports during the busiest travel season, which she would not otherwise be exposed to if Mr. Hasan had planned to remain in Canada or travel within the United States for this Christmas School Break, particularly if he chose to travel by vehicle.
21Ms. Khalil, in an attempt to balance her concerns regarding M’s exposure to Covid with M’s need to spend time with her father and his family during the Christmas School Break has deposed that she reluctantly agreed to M. spending the nine days of parenting time with Mr. Hasan in New York. Her agreement in this regard, as set out in her affidavit, is based on M. spending time in New York with her father and his family at his home, out of which unknown people will not be coming in and out, which will not be the case in the Hilton hotel in Athens, Greece.
22Mr. Hasan submits that he has taken every safety precaution possible in planning his family’s trip to Greece and, particularly, that he chose the Hilton hotel in Athens because of its strict Covid safety protocols. However strict the hotel protocols may be, there will still be strangers using the elevators; strangers coming in and out of the hotel lobby; and strangers dining in the hotel restaurants, many of whom M. will be exposed to, as a result. Mr. Hasan’s choice to stay in a hotel, as opposed to, for example, a rental residence with a kitchen facility, means that M. will be eating meals in public spaces and exposed to more individuals, unmasked, than she otherwise would be if she were eating meals in M.’s home in New York.
23Mr. Hasan submits that this trip to Greece may possibly be the last family trip M. will be able to take with his immediate and extended family while his father is in relatively good health and of sound mind. There is no objective third-party evidence on the record to demonstrate that Mr. Hasan’s father’s health is failing. Further, during oral submissions, Mrs. Khalil’s counsel confirmed that Mr. Hasan’s father resides in New York and M. just spent time with her paternal grandfather during the U.S. Thanksgiving weekend.
24In any case, while this is a possibility as submitted by Mr. Hasan, the benefits of a family trip in Greece must be weighed against the risk that M. could need to quarantine in Greece, if she does not have a negative PCR test result for Covid when the Hasan family intends to return to Canada; M. will need to quarantine when she returns to Canada for either 72 hours or earlier, until she receives a negative PCR test result for Covid once she arrives in Canada; and M. could need to quarantine after she returns to Canada, if she develops symptoms and tests positive for Covid-19. If M. has to quarantine when she returns to Ms. Khalil’s care because she develops symptoms and tests positive for Covid-19, then M.’s holiday time with her mother will be such that she cannot leave her mother’s home; enjoy any special holiday time with her mother and/or her mother’s family and friends; and M. will not have an opportunity to spend meaningful time with both parents during her Christmas school break. Further, if M. develops symptoms and tests positive for Covid-19 upon her return to Canada from Greece, M. may also end up having to miss school when school resumes on January 4, 2022, which is clearly not in her best interests.
25The Final 2014 Order is clear that Ms. Khalil has decision-making responsibility for all important decisions that affect M., including medical decisions. When Ms. Khalil advised Mr. Hasan on November 22, 2021, that M.’s paediatrician recommended waiting to vaccinate her for Covid-19, Mr. Hasan advised her that he would respond to her in three days. Instead of providing his input, which Ms. Khalil solicited in accordance with the terms of the Final 2014 order, Mr. Hasan took matters into his own hands, and arranged for M. to receive her first vaccination shot, knowing that Ms. Khalil did not consent to same and knowing this action was contrary to M.’s paediatrician’s advice. His breach of the parenting order was blatant on an important medical issue. I find this conduct very troubling.
26This conduct on the part of Mr. Hasan is not vastly different from his conduct that was deposed to by Ms. Khalil in her affidavit, sworn on December 13, 2021, and which was not denied by Mr. Hasan. In support of a motion, in which Mr. Hasan sought parenting time with M. in April 2021, after Easter, he swore an affidavit on April 8, 2020, in which he deposed he had come to Canada on March 25, 2020, which was 14 days before his scheduled visit with M. on April 8, 2020. To support these statements, Mr. Hasan provided his Netflix streaming data receipts using his credit card that he purchased gas on April 8, 2021; his bank account transaction and EZ pass logs as proof that he had been quarantining in Canada since March 25, 2020. On this basis, Moore, J. found that he had no reason to believe that Mr. Hasan would expose M. to a risk of infection during the proposed parenting time and he issued an endorsement permitting Mr. Hasan to spend parenting time with M. from April 18th to April 25th, 2020.1
27It was subsequently discovered that Mr. Hasan was fined $1,000 for breaching s. 58 of the Ontario Quarantine Act because he failed to quarantine for 2 weeks before picking M. up, despite having sworn an affidavit to the contrary. The Toronto Police Service, General Occurrence Report, dated April 20, 2021,2 confirms that the police confirmed with Canada Border Services that Mr. Hasan did not enter Canada on March 25, 2020 as he had deposed but, rather, he entered Canada on April 18, 2020 and picked M. up on that same day. This series of events is extremely concerning to this Court as it demonstrates that Mr. Hasan is prepared to engage in self-help to secure his parenting time with M., even if doing so exposes M. to health risks.
28In light of the recent information with which the public is being bombarded regarding the concerning spread of the Omicron variant of Covid, it would follow that it is in M.’s best interests to take precautionary measures when there is not sufficient scientific evidence about the hazards and risk of exposure to the Omicron variant for children under 12 years of age who have only had one vaccination shot for Covid.
29Given that the parties are separated, in choosing to take a higher-risk, international trip for this upcoming Christmas School Break period, it is essential that Mr. Hasan obtained Ms. Khalil’s consent before doing so. Mr. Hasan tried to secure Ms. Khalil’s consent. However, Ms. Khalil’s evidence is that she was not prepared to give her consent to international travel three months ago when it was sought, given the constantly changing information about Covid-19 and the fact that children under 12 years of age only recently became eligible to receive vaccinations for Covid-19. In a separated family, it is incumbent on separated parents to have each other’s consent before such parenting decisions are made, especially when, in this case, Ms. Khalil is the authorized decision-maker, a role that Mr. Hasan subverted when he unilaterally arranged for M. to receive her first vaccination shot in the face of Ms. Khalil’s lack of consent to same.
30Mr. Hasan’s conduct since the Covid-19 pandemic, in swearing a false affidavit before the Court in April 2020, and in arranging for M. to receive her first vaccination shot without Ms. Khalil’s consent, demonstrates that he is unable, in my view, to place M.’s needs and best interests ahead of his own need to secure his own plans. This prioritizing of his own interests affects his ability to care for and meet M.’s needs, and his ability and willingness to communicate and cooperate with Ms. Khalil, on matters affecting M.
31In light of these circumstances, I find that there is sufficient risk of M. being exposed to Covid-19 and/or the Omicron variant if she travels with Mr. Hasan on the scheduled upcoming trip to Greece from December 17, 2021 to December 26, 2021, particularly given that she has only received one dose of the Covid-19 vaccine. Accordingly, I decline to grant an order permitting Mr. Hasan to travel with M. to Greece as proposed.
Order
[32]
Order
Accordingly, Mr. Hasan’s motion is dismissed. If Mr. Hassan chooses to remain in New York and not join his immediate and extended family on the planned trip to Greece, he shall exercise his parenting time with M. for nine-days, in New York or in Canada, as he chooses.
33If the parties cannot agree on costs by January 4, 2022, then Ms. Khalil shall serve and file written costs submissions of no more than 3 pages (not including Bill of Costs or Offers to Settle) by January 7, 2022. Mr. Hasan shall serve and filed written costs submissions of not more than 3 pages (not including Bill of Costs or Offers to Settle, by January 20, 2022. Reply submissions, if any, shall be no more than one page and shall be served and filed by January 24, 2022.
M. Kraft, J.
Date Released: December 15, 2021