Superior Court of Justice - Ontario
COURT FILE NO.: FS-12-00378242-0000
DATE: 20220603
RE: RAJIB HASAN
AND:
WAHIDA KHALIL
BEFORE: Papageorgiou J.
COUNSEL: Rajib Hasan, Unrepresented Applicant
Eric Shapiro, for the Respondent
HEARD: May 26, 2022
ENDORSEMENT
[1] The Respondent brings a motion for: 1) an order that the Applicant Rajib Hasan (“Rajib”) be found in contempt of paragraphs 18 through 20 of the final Order of Justice Conway dated July 22, 2014 (Justice Conway’s Final Order) in relation to having vaccinated M, born XXX XXX, 2011 without the Respondent Wahida Khalil’s (“Wahida’s”) consent; and 2) an order that the parties retain Dr. Irwin Butkowski to investigate and conduct a fresh assessment of the current time sharing arrangement.
[2] Rajib appeared self-represented but acknowledged that he had counsel advising him and assisting him outside of court. He did not request any adjournment of the motion.
The Applicable Legal Principles in Respect of Contempt
[3] In her recent decision, Dixon v. Lindsay, FS-19-9906, dated February 24, 2022 (unreported), Justice Nakonechny set out the applicable law as follows:
“For a party to be found in contempt of court for breaching a court order, the moving party must prove three elements beyond a reasonable doubt:
(1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done;
(2) the party alleged to have breached the order must have had actual knowledge of it; and
(3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26.”
Is the Language of the Order Clear and Unequivocal
[4] Justice Conway’s Final Order clearly gives Wahida authority to make all major decisions affecting M. Paragraphs 18 to 20 of Justice Conway’s Final Order provide as follows:
Rajib and Wahida shall solicit the input and opinions of the other party 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.
Communication between Rajib and Wahida shall take place through written correspondence only, in order to document the process and to minimize the probability of [M.’s] exposure to any parental tension and/or conflict.
In the event of a dispute in relation to a major decision affecting [M.] and Rajib and Wahida are unable to resolve, Wahida 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 extracurricular activity that may affect the time spent by her with Rajib, such decisions shall be effected on joint consent only, or subject to dispute resolution by the Parenting Coordinator in accordance with the process set out at paragraph 17 above.
[5] Rajib argued that the Order did not specifically reference vaccination and he argued that since M. was with him in New York and required vaccination in order to participate in events, this could be considered a day-to-day decision. He also argued that he vaccinated M. in New York because the failure to vaccinate her would affect activities which M. could participate in during his parenting time which is carved out of Wahida’s decision making over major decisions.
[6] I reject Rajib’s argument. In my view the decision as to whether a child should be vaccinated is a major decision. There is no independent evidence that there were extracurricular activities which she could not participate in New York without being vaccinated.
[7] Therefore, this aspect of the test is satisfied.
Did Rajib Have Actual Knowledge of the Order
[8] There is no issue that Rajib had actual knowledge of Justice Conway’s Final Order.
Did Rajib Intentionally Breach the Order?
[9] Wahida has produced evidence that she emailed Rajib on November 22, 2021 advising him that M’s pediatrician had recommended that they wait to administer the vaccine to M. because she suffers from eczema. Rajib responded as follows on November 22, 2021: “I will respond to your vaccine question in a separate thread”.
[10] Wahida says that there was no further communication regarding vaccination after Rajib’s November 22, 2021 email with the exception of the following.
[11] On November 25, 2021, Rajib advised Wahida that he had arranged for M. to obtain her first dose of the Covid-19 vaccine in New York on November 24, 2021, and that she was doing well following the vaccination.
[11] Rajib has a number of positions.
[12] As noted above, first he argues that vaccination is not a major decision and I have rejected that argument.
[13] Second, in his April 5, 2021 affidavit, he says “before the vaccine was scheduled, Rajib consulted with Wahida”. He then says, “On November 24, after receiving an email that to Rajib looked as consent from Wahida for [M.] to receive the Pfizer-BioNTech COVID-19 Vaccine, M. received same while in Rajib’s care.” He has not produced any email from Wahida which in any way could be seen as consent from her to vaccination.
[14] Rather, in his factum he partially quotes an email dated November 24, 2021 from Wahida as follows: “If you bother to read my emails from yesterday rather than writing these essays and spending your time forging doc you would see I provided my consent yesterday.” What he fails to mention is that this email is part of an email thread relating to travel documents for M. who was travelling to New York. The entire email reads as follows:
“If you bother to read my emails from yesterday rather than writing these essays and spending your time forging doc you would see I provided my consent yesterday for her to travel for the thanksgiving and stated that I will leave her passport at the school.”
[16] I note that Rajib sought to withdraw his April 5, 2022 affidavit and replace it with another on the basis that there were errors in it. Both copies of this affidavit reference his receiving this November 24, 2021 email where Wahida allegedly consented to vaccination.
[17] Rajib filed a subsequent affidavit dated April 19, 2022 which tells a different story as to why he proceeded to vaccinate M.
[18] In his April 19, 2022 affidavit, he says that he emailed Wahida about vaccination, spoke to M.’s physician one more time and took M. to be vaccinated without waiting for a clear consent because he thought it was in her best interests. He also explained that for the last eight years he has had a shared parenting arrangement notwithstanding the fact that he lives in New York. He drives to Toronto to facilitate this, sometimes brings M. back to New York. He feels that his parenting time has been reduced because of COVID, that this has impacted the way M. feels about him and it was important for her to be vaccinated to facilitate his parenting time.
[19] In support of these assertions Rajib provided a number of emails, most of which specifically state they are in or around November 2021. In these emails, Rajib is either emailing health professionals or Wahida about vaccination. These do not cause this court any concern. Rajib, as M.’s father, was clearly entitled to advocate for vaccination and seek and provide information related to it.
[20] However, the following two emails attached to Rajib’s April 19, 2022 affidavit cause this court considerable concern:
[21] On November 2, 2022 Rajib allegedly wrote to Wahida and said:
“I have not heard back from you on the matter of M.’s Covid Vaccine. Please let me know your thoughts”
[22] On November 23, 2022 Rajib allegedly wrote to Wahida saying:
“In response to your email from 10am on Nov 22nd I discussed with [M.’s] doctor Dr. Fasil and her primary care physician Dr. Fermin. They do not agree with waiting since [M.] is travelling to New York and potentially Greece over Christmas. Their advice is to give her the vaccine right away.
If I don’t hear from you before 12 noon on Nov 24th I will take it you give your consent and based on professional opinions I will arrange [M.’s] first dose of the Covid vaccine when she is with me this weekend.”
[23] Wahida indicates that she never received these emails and takes the position that these are forgeries; on their face, these emails are dated November 2022 which has not yet occurred. Wahida points out that Rajib works in the technology field and she believes he has the technical ability to forge such documents.
[24] After Wahida pointed out these mistaken dates on these critical emails, Rajib swore another affidavit dated May 18, 2022.
[25] In his May 28, 2022 affidavit he explains the November 2022 emails by saying “There is a known issue with Adobe software where text is missing or garbled when converting PDF files in Acrobat—for more details please see the following link: https://helpx.adobe.com/acrobat/kb/missing-or-garbled-text-converting.html. I had printed the email in question earlier but attached the incorrect one in my submission. The correct email is attached as part of my Exhibit B attached to this affidavit.” He then attaches the same emails but with the dates being in 2021.
[26] The Adobe link when opened states as follows: “Missing or garbled text when converting or combining PDF documents in Acrobat 9…Text doesn’t print or display correctly
Text does not display or print correctly after you convert or combine documents in Acrobat 9
-Text appears to melt or characters overlap
-Text is scrambled, garbled, or displays as “garbage” characters.
-Some text appears in subscript.
-Text prints incorrectly.
[27] There is no evidence that printing emails in any way involves “converting or combining pdf documents”, although perhaps Rajib was referring to the fact that the emails were attached to an affidavit he uploaded to Caselines which was a PDF document. Nevertheless, there is nothing garbled or scrambled about these emails. The mistaken date is the only issue with these emails. In my view, this is highly suspect and does not appear to fit within the types of issues set out in the Adobe link. As well, a link to a website is not an expert opinion.
[28] I find on a balance of probabilities that Rajib has fabricated these emails and then corrected the date once it was pointed out to him that the dates made no sense.
[29] In all the circumstances, I also find, on a balance of probabilities, that Rajib intentionally breached Justice Conway’s Final Order by vaccinating M. without Wahida’s consent.
[30] There are also other instances which Wahida has referenced, which are not specifically the reason for the contempt order sought, but which she says show a pattern of Rajib failing to comply with court orders or deceive the Court.
[31] She alleges that Rajib: a) overheld M. in 2018 when Rajib alleged he could not return her because he was too sick to travel which resulted in Wahida bringing a successful urgent motion for M.’s return; b) allegedly threatened to overhold M. during the summer of 2019 which forced Wahida to bring a motion again, after which Rajib voluntarily returned M. on time. Rajib was ordered to pay $500 pursuant to Justice Shore’s Order as a result.
[32] Wahida also references Rajib’s failure to self-isolate prior to his April 2020 parenting time with M. Wahida brought a motion and Justice Moore who allowed the visit to proceed because Rajib swore an affidavit indicating that he had been self-isolating in accordance with existing protocols. Wahida asserts that Rajib’s affidavit filed before Justice Moore was false and that she filed evidence before Justice Kraft which satisfied Justice Kraft that Rajib had not in fact been in Toronto for as long as he said in order to self-isolate. The evidence which was before Justice Kraft is not before me but Justice Kraft concluded as follows:
“It 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, 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 Mr. to health risks.”
[33] Despite all of the very concerning historical conduct, as well as breach of Justice Conway’s final Order by vaccinating M. without Wahida’s consent, I am not prepared to exercise my discretion to hold Rajib in contempt at this time. As such, I need not consider whether the evidence rises to the level of beyond a reasonable doubt.
[34] In the recent case Moncur v Plante, 2021 ONCA 462 at para 10 Justice Jamal emphasized that “contempt powers should be exercised cautiously and with restraint as an enforcement tool of last resort rather than a first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance.”
[35] Justice Jamal also indicated:
“It is especially important for courts to consider such options in high-conflict family disputes such as this one. Otherwise, there is a danger that contempt proceedings may exacerbate the parental conflict to the detriment of the children. In appropriate cases, a staged approach in which a declaration of breach precedes the opprobrium of a formal contempt order can give the parties pause to reflect on their conduct and work on cooperative solutions in the best interests of their children.”
[36] There has not yet been any declaration by any court that Rajib has breached a court order. In accordance with Justice Jamal’s direction, I am employing a staged approach whereby I am declaring Rajib in breach of Justice Conway’s Final Order so as to give him pause to reflect on and change his behaviour.
[37] Pursuant to r. 1(8) where a breach of a court order has been found, the Court may make any order it considers necessary for a just determination of the matter.
[38] In all the circumstances, a mere declaration of breach is not enough, particularly given the history of this matter described above and previous court orders and comments which have not deterred Rajib in his behaviour. Given the significant breach, as well as the fabricated evidence to hide the breach, I am fining Rajib $5,000 to be paid within 60 days. Rajib would do well to change his behaviour.
Assessment
[39] With respect to Wahida’s motion for an assessment by Dr. Irwin Butkowski, Wahida says that she is uncertain as to whether she wishes to change the parenting schedule and would like the assessment of Dr. Butkowski to provide updated views. Dr. Butkowski is the physician who conducted the first assessment when the parties separated.
[40] Rajib’s position on the assessment was contradictory. At first he said that he did not oppose it but did not have the funds to pursue it until December 2022. Then he said that there should be no assessment, only a referral to the Office of the Children’s Lawyer.
[41] In my view it is premature to order any assessment. There is a final parenting order in place and Wahida has not indicated that she seeks any change. If there are to be any changes to this final order, then someone has to bring a motion to change. If someone does, then a further assessment may be considered.
[42] Wahida argued that I could make an assessment order on the condition that she bring a motion to change. In my view, it would be preferable for the ongoing relationship between Rajib and Wahida and their conflict to attempt to settle this issue before this Court makes any Order for a further assessment.
[43] I am directing that if Wahida wishes to obtain an assessment that she must first bring a motion to change or obtain Rajib’s consent.
[44] If the parties cannot agree on costs, they may make submissions no longer than 5 pages each as follows: Wahida within 5 days and Rajib within 5 days thereafter.
Papageorgiou J.
Date: June 3, 2022