Court File and Parties

Court File No.: FC-21-1656 Date: 2022/02/28 Superior Court of Justice – Ontario

Re: Saeed Ur Rehman, Applicant And Shazia Zaib, Respondent

Before: Mackinnon J.

Counsel: Jillian Allen, for the Applicant, moving party Sonya Notturno, for the Respondent, responding party

Heard: February 23, 2022

Endorsement

[1] This motion raises the question whether the father, who has not seen his children since July 16, 2021, should be allowed supervised time with them despite allegations made against him of sexual and physical abuse towards them, in circumstances where, after two police investigations no charges have been laid, and where, after two investigations, the Children’s Aid Society has concluded that the allegations are not credible?

[2] The mother opposes the motion. Her position is that despite the conclusions reached by police and Society the children’s disclosures should be taken heed of. She wants them to have more time in counselling before being required to see their father. She also notes that the police and Society records are not yet in the parties’ hands, suggesting to her that the motion is premature.

[3] I have concluded that there should be supervised contact between the father and children at this time. I will provide a brief factual background, followed by my reasons for reaching this decision.

[4] The parties lived in Pakistan at the time of their marriage. They came to Canada in 2019. Both now have Canadian Permanent Resident status. They have three children ages 12, 8 and 4 years. The oldest child, Hania, is a special needs child who is developmentally delayed. On July 16, 2021, the mother left home with the children. The father thought they were visiting friends for the weekend. When he was unable to reach her on Sunday, and unable to locate her through friends, he called the police for assistance. The police told him they were all safe but provided no other information to him. The mother says she left because Hania and Zainab had told her about sexual abuse by their father. She says she called the Society and on advice received, took the children to a shelter.

[5] The father learned of these allegations on July 23. He had been asked to come down to the police station. There, he was told the mother had alleged he had sexually assaulted their oldest daughter, Hania, who had been interviewed, that the police did not believe the allegations and no charges would be laid. The father says he was shocked at what he was hearing. Subsequently, he also heard from the Society to the same effect, except that they added they had told the mother it was safe for her to return home with the children.

[6] The mother states in her affidavit that Hania was too traumatized to tell the police what happened.

[7] Zoom calls were arranged. The first did not take place because the mother was unfamiliar with the technology. On September 7 when Zainab appeared on the camera, the father says the mother turned off the audio and video. Then the youngest child came on, but the father says as soon as he spoke, the mother ended the call. There was another video call with the youngest child on September 21, during which the father says he was crying and saying he wanted to come home. Calls between the father and son have continued, and according to the father, the little boy continues to say he wants to come home.

[8] Other than Zainab’s brief appearance on the September 7 call, neither daughter has participated in any of them. Shelter staff documented that call, describing Hania as angry with her mother for setting up the call to speak with her father. She locked herself in the bathroom, and Zainab joined her there. The mother says that the girls do not want to see or speak to their father and are very upset at the idea they would have to.

[9] In November, the police and Society reopened their investigations. The father understood this was in relation to an allegation from the mother that the father had sexually assaulted Zainab. He was told the police were going to video record an interview with the children. Having done so, he says an officer told him they did not believe the allegations were credible and are closing their file again. The Society also confirmed its previous view. On January 29, 2022, they sent a letter to both parents stating, “Based on the evidence, the Society has concluded that the reported concerns regarding the alleged sexual abuse by the father are not verified. However, concerns regarding the mother’s mental health as well as concerns that the children have been emotionally harmed by the mother's response to the allegations made against father have been verified. Consequently, both parents have agreed for the file to be transferred to ongoing services in order for the Society to better support the family.”

[10] It is unclear whether the mother reported her allegations to the police with respect to both girls in July, since police only interviewed Hania at that time, and the father says the police told him the November complaint related to Zainab. However, the Society letter says the referral they received in July alleged sexual abuse by the father of both daughters.

[11] The mother has arranged counselling for herself and for each child individually. She has attached letters from various counsellors and the shelter where she and the children resided. None of the letters are in affidavit form. None of the letter writers have been qualified to provide expert opinion evidence to the court. The foundation for the expressed opinions is not sufficiently articulated to be weighed, rather is stated primarily in a general, conclusionary fashion. Nor had any counsellor met the father or received any information from him. For these reasons only some of the contents of the letters are relied on.

[12] The first letter is from a mental health counsellor for the mother and three children. It states that the mother has reached out to this counsellor weekly and more than once to address her mental health needs; that she has worked hard to implement some of the mental health strategies worked on together and to adopt them to her parenting style; and that she has prioritized her mental health needs and those of the children. The letter also notes that the counsellor has worked with the mother to accept her partner reaching out to her children.

[13] An individual described as qualifying as a registered psychotherapist first met with Hania in October 2021. She wrote that Hania shared several instances of “severe trauma and abuse related to her relationship with her father.” Hania also told her she felt scared and expressed concerns about seeing her father.

[14] A counsellor at the Sexual Assault Support Centre of Ottawa started seeing Hania in August 2021. She wrote that Hania provided explicit details of sexual, emotional, and psychological abuse at the hands of her father and other men associated to him. Hania told her she cries every night, has nightmares, and intrusive flashbacks. Recently she said she does not want to see her father and fears for her safety. She feels safe and happy where she is.

[15] A letter dated December 14, 2021, is from a counsellor for Zainab who saw her three times before going on a medical leave. Her letter says that Zainab discussed experiencing physical and emotional abuse by father. She is afraid of him and does not want to see him or spend time with him. This letter does not say that Zainab disclosed any sexual abuse by her father.

[16] Despite the resistance of the two older children to see their father and the absence of the Society and police investigative records, I have concluded that supervised contact with their father should be commenced now for these reasons:

• The letter from the mental health counsellor confirms the mother has mental health needs to address but it does not specify what they are. They are said to have connection to her parenting, but no detail is provided other than help to deal with the father reaching out for contact with the children. The mother does not address the allegation of mental health concerns in her affidavit other than to say that the Society is not qualified to diagnose her mental health. This is a serious omission in an area within her ability to properly inform the court.
• It is clear that neither the police nor the Society found the disclosures credible. The mother maintains that she believes her children, but she has not provided particulars of what they have said to her. This omission prevents the court from evaluating the statements. The court is left with the fact that the police laid no charges, and the Society closed its file after the first investigation and did not verify the allegations during its second investigation.
• The omission of particulars takes on more weight having regard to an email from the son’s therapist saying that he told her that his father cut his tongue, used fire on his eyes and mouth, as well as inappropriately touching his genitals. The cutting and fire admittedly did not happen. On November 28, 2021, the police told the father that his son was fine and was looking for “daddy”.
• The letter from the Sexual Assault Support Centre said Hania had claimed “extreme abuse and torture”; and physical, sexual, emotional, and psychological abuse at the hands of her father and “other men associated to him”. The use of this strong language without particulars of what the child said, combined with the father’s denial, and the positions taken by the police and the Society, underscores the seriousness of the mother’s omission to inform the court of the child’s statements, thereby depriving the court of the ability to evaluate the reliability of the claims.
• The children have not seen their father since July 16, 2021. That alone is not sufficient to warrant the existing situation of no contact at all. The fact that the girls are resistant to contact with him is strongly indicative of their need for social work support in resuming their relationship with him. Supervised contact is an appropriate way to start to restore the relationship.
• The father has proposed a married couple described as mutual friends of him and the mother, who are prepared to supervise visits. The mother says they are not neutral, and if supervised contact is ordered, she would prefer an independent fee for service agency. On the information provided to the court this is not a cost that the father or the mother could reasonably afford.

[17] In its January 29, 2022, letter the Society expressed concerns about the mother’s mental health and that the children have been emotionally harmed by her response to the allegations made against father. An ongoing file was opened in order for the Society to better support the family. What is needed now is for logistical support to facilitate actual contact between the father and the children, by arranging transportation for them from the shelter where they apparently still reside and the home where the contact will occur. The children also need social work support to help prepare them for the contact and to be available to them during the initial visits if required. Regrettably the social worker on the file did not attend the motion as I had hoped, so that these issues could be discussed in the presence of all parties. I intend to order visits supervised by the individuals proposed by the father, but the support of the Society is needed to see that it takes place. It is unrealistic to think in the existing circumstances that the father could simply pick up the children and drive them home. The option of making the visits police enforceable is not palatable.

[18] These are the terms of the order I intend to make:

Provided that the supervisors named below provide their written consent to supervise the father’s parenting time with the children, their written undertaking to the court that at least one of them shall have the children and father within eyesight and earshot throughout the visits, and written confirmation of their understanding that they must report any physical, emotional, verbal or sexual abuse by the father towards any child forthwith to the Ottawa Children’s Aid Society, and keep notes sufficient to document any such event then:

(a) The Applicant Father shall have interim parenting time with the children, Hania Zaib, Zainab Zaib, and Muhammad Ibrahim Saeed, on the following incremental basis: (i) once per week for a period of two hours, supervised by Mr. Rustam Qureshi and Mrs. Faiza Rustam, for four weeks, at either the home of Applicant Father or the home of Mr. and Mrs. Rustam. (ii) following (i) above, once per week for a period of three (3) hours each visit, supervised by Mr. and Mrs. Rustam, for four weeks at either the home of Applicant Father or the home of Mr. and Mrs. Rustam. (iii) following (ii) above, twice per week, for a period of two hours on a weekday and for a period of three hours on either a Saturday or Sunday. (iv) In the event the parties do not agree on the next step to be taken in respect to the father’s parenting time after the above noted twelve (12) weeks have been completed, the Applicant Father shall schedule a case conference on notice to the Respondent Mother, and his parenting time shall continue as specified in subparagraph (iii) above until, and subject to, the direction of the judge presiding the case conference. (v) The Applicant shall deliver a copy of this endorsement to the Society to be aware of the schedule for the father’s parenting time and the court’s request for its assistance in preparing the children for the initial visits, and with transportation, during the initial four-week period, without limiting the ability of the Society to drop in on any other of the visits as it may choose to do. (vi) To facilitate the above parenting time order, the children shall not be removed from the City of Ottawa until further order of this court.

[19] I will delay making the order for a period of two weeks to enable the parties and the Society to discuss the logistics of its implementation. Should those discussions suggest that the proposed order should be amended, the parties and the Society may send me one joint letter setting out the position of each. At the same time, I would like to know whether the parties wish to make submissions on costs.

Mackinnon J. Date: February 28, 2022