Court File and Parties
COURT FILE NO.: FS-23-00037415-0000 DATE: 20240719 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DANISH BADAR, Applicant AND: MADIHA DANISH, Respondent
BEFORE: Madam Justice A.P. Ramsay
COUNSEL: Susan Harris, for the Applicant Aisha Amjad, for the Respondent
HEARD: July 11 and July 17, 2024 (further submissions in writing)
Endorsement
I. Overview
[1] The parties were married in Pakistan in 2013. They separated on March 1, 2023. This is a high-conflict family law proceeding involving the Children’s Aid Society (“CAS”) and the police. Charges laid by the applicant father against the respondent mother were dropped. Both parties allege physical violence; the respondent contends she was also subjected to emotional abuse and control. The number of affidavits filed on this motion by either side underscores the high conflict between the parties girded by a great deal of distrust. In June 2024, the parties entered a temporary consent order on parenting.
[2] On this motion, the respondent mother seeks orders permitting her to travel to Pakistan from August 1 to August 22, 2024, with the parties’ seven-year-old son, I.D. without the applicant father’s consent, and requiring the applicant to provide his consent to the renewal of the child’s passport. The respondent says that she has made the requests to the applicant, and the applicant has denied her requests.
[3] The applicant asserts the respondent’s true intention is to return to Pakistan with the child, abscond with the child, and never return.
[4] The applicant brings a cross-motion seeking the involvement of the Office of the Children’s Lawyer (the “OCL”) to represent the child and seeks an assessment of costs for a settled parenting motion from February 2024. The applicant also seeks a dismissal of the respondent’s other claims, not properly before the court, related to the child’s passport.
II. July 11 Endorsement
[5] In my endorsement dated July 11, 2024 (the “first endorsement”), I set out the preliminary matters dealt with on the motion. Some were not dealt with, for example, in his materials the applicant objected to the delay in serving motion material. On the other hand, in response to the motion brought by the respondent, the applicant sought a dismissal of the motion, cross-motion for an order appointing the OCL to represent the child, and sought costs thrown away of his motion originally returnable in February be dealt with separately by written submissions. My first endorsement dealt with the latter two issues. The parties consented to the involvement of the OCL, but I have revisited this issue below.
[6] I adjourned the applicant’s cross-motion to assess costs, for the reasons set out in my first endorsement. In my first endorsement, I directed the parties to file a supplementary factum by July 17 addressing certain legal issues raised during the course of the motion, including the admissibility of a child’s evidence in the absence of a Voice of the Child Report on an interim motion; the court’s authority to accept the opinion evidence from a layperson, i.e. a lawyer in Pakistan; and the authority of the court to rely on a CAS letter in the absence of an agreement between the parties with respect to its admissibility.
[7] This endorsement deals with the respondent’s motion.
[8] There is significant conflict between the parties’ versions of events. The applicant has sought to introduce statements from I.D. through third parties; the statements are double hearsay. There is no Voice of the Child Report. I have not taken the statements into account in arriving at my decision, for the reasons below.
[9] The father has also filed an affidavit of Ms. Raheena Khan, who is “an Advocate of Supreme Court of Pakistan” who says she specializes in family law. Ms. Khan was asked by counsel for the applicant “to provide insight on the State of law and Hague Convention in Pakistan,” and to answer certain questions. I am not inclined to consider Ms. Khan’s evidence on this motion with respect to the state of the law in Pakistan and the Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (“the Hague Convention” or the “Convention”). I have also not considered Ms. Khan’s evidence in arriving at my decision, for the reasons below.
III. Analysis
i. Evidentiary issues
[10] I have not considered the letter from CAS, or the statements said to be attributable to the child in the CAS letter, or hearsay statements from the applicant’s friends about what they overheard the child say. The applicant submits the court should rely on his affidavit and that of his two friends as to what they overheard I.D. say “to explain the Father’s worry and subsequent action, it is not hearsay, meaning it is not being offered to prove the truth of its contents. It is being offered to, in part, explain the Father’s extreme concern and belief that the Mother has the intention to remain in Pakistan.” Alternatively, the applicant says that the statements from I.D. may be admitted for the truth of their content as an exception to double hearsay under either the exception in R. v. Khan, that is, according to the factum, the “state of mind” exception to the hearsay rule.
[11] Evidence is admissible if the trier of fact is legally permitted to consider it. Evidence that the law does not permit to be considered is inadmissible, even if it is relevant and material: Parliament et al v. Conley and Park, 2019 ONSC 2951, at para. 17. Hearsay evidence is presumptively inadmissible. Absent the consent of the parties, hearsay can only be admitted under a statutory exception, a common law exception, or if the evidence falls under a traditional exception to the hearsay rule. Generally, hearsay evidence is admissible if it meets the tests of necessity and reliability: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; and R. v. B. (K.G.), [1993] 1 S.C.R. 740.
[12] Rule 14(18) of the Family Law Rules, O. Reg. 114/99 provides that evidence on a motion may be by way of affidavit and based on personal knowledge. An affiant may depose as to information learned from someone else but only if the source of the information is identified and the affiant states that they it believe the information is true: see, r. 14(19)(a). An affidavit, however, should not contain improper hearsay evidence: Aker Biomarine AS v. KGK Synergize Inc., 2013 ONSC 4897, 47 C.P.C. (7th) 284, at para. 10.
a. Child’s evidence
[13] The court may consider, at the threshold reliability stage, evidence of the circumstances under which the statement was made R. v. Khelawon, at para. 2. Whether the hearsay evidence meets the test of reliability must be established on a voir dire: R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 34. This is a motion. There is no voir dire. I would therefore reject the evidence relating to the hearsay statements of the child. On this motion, the evidence, such as it is, squarely puts a seven-year-old child in the midst of the contentious dispute between the parents, with accusation on one side of the child being coached.
b. Report/Letter from CAS
[14] The Toronto CAS wrote a closing report/letter on July 3, 2024. The letter included allegations that the child had been slapped by the respondent, and conversations by the author of the letter with the child about how he felt about going to Pakistan and the reasons why. The letter indicates the applicant had apparently coached I.D. to relay that his mother had slapped him because if he did not, he would be abducted by the respondent and taken to Pakistan. There are other serious issues raised in the report.
[15] The parties have not agreed that the closing report may be admitted into evidence. The respondent submits that the CAS letter should be admitted as an exception to the hearsay rule as a business record. The applicant argues that “the letter purporting to quote what the child said.”
[16] In my view, the letter is inadmissible for three reasons: i) it is annexed as an exhibit to the mother’s affidavit and is hearsay; ii) there is no evidence before me that the letter is a business record, and in the absence of an agreement, I cannot accept that it is business record; iii) even if the letter were a business record, that does not render statements in the document prima facie admissible; they still must be proved. Let me explain.
[17] First, absent a statutory provision allowing certain documents to be proved using a certified copy, documents must be proved by affidavit or oral evidence and cannot be simply filed with the court for use on a motion: Warren Industrial Feldspar Co. v. Union Carbide Canada Ltd., [1986] 54 O.R. (2d) 213. When unsworn letter or report is tendered for the truth of its contents in relation to contested facts, the closer those facts come to the dispositive issue, the closer scrutiny the letter or report deserves, including submitting to meaningful cross-examination evidence from witnesses with firsthand knowledge of the facts: Isakhani v. Al-Saffaf (2007), 2007 ONCA 539, 226 O.A.C. 184 at paras. 37-39 (C.A.); Ceho v. Ceho, 2015 ONSC 5285, at para. 50. Here, the respondent is asking the court to rely on the statements made by her son, and in particular, statements from her son that she told him they would return to Canada from Pakistan.
[18] Second, section 35 of the Evidence Act, R.S.O. 1990, c. E.23, deals with business records. The parties have not agreed that the CAS letter is a business record, as contemplated by the Evidence Act. The authenticity and content of the letter can be proved by the author of the letter. There is no affidavit from the author of the letter. The respondent relies on a statement said to be made to the author of the letter. In an about face, the applicant now raises hearsay as a means of keeping the statement out.
[19] Third, section 35 is not a proper basis for admitting statements in business records: Adderly v. Bremner, [1968] 1 O.R. 621 (H.C.); Setak Computer Services Corp. v. Burroughs Business Machines Ltd. (1977), 15 O.R. (2d) 750 (S.C.), at p. 761; and DeGiorgio v. DeGiorgio, 2020 ONSC 1674, at paras. 50 and 54. Statements contained documents accepted as business records are not prima facie evidence of any act, transaction, occurrence, or event described in the statement: Setak and DeGiorgio. A party properly invoking s. 35 may introduce certain limited forms of double hearsay contained in business records, such as statements made and recorded by two people who are each acting in the ordinary course of business, even if those statements are ultimately accorded little weight: Evidence Act, s. 35(4); Bruno v. Dacosta, 2020 ONCA 602, 69 C.C.L.T. (4th) 171; Parliament, at para. 36; and Setak Computer Services.
[20] A statement does not have to be proved through the declarant of the statement. It can be proved through the recipient of the statement: Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis, 2018) at 257; Khelawon, at para. 36. However, where the statement is tendered to prove the truth of its contents the need to test its reliability arises: Khelawon, at para. 36. Again, there is no affidavit from the author of the closing report/letter.
c. Opinion evidence of Ms. Khan
[21] In the supplementary factum, the applicant submits that Ms. Khan’s evidence is that of a lay witness and is not an “opinion.” This statement belies the evidence from Ms. Khan herself. She states:
[22] The respondent objects, in her supplementary factum, to the evidence of Ms. Khan on the basis that she provided opinion evidence to the court, she has no personal, firsthand experience or personal observations, and she has not complied with r. 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[23] I agree with the respondent that the affidavit purports to provide opinion evidence. In fact, the applicant’s supplementary factum indicates: “The lawyer’s affidavit provides relevant and material information about her direct experience with family law in Pakistan.” And, as indicated above, Ms. Khan is providing opinion evidence on the law of Pakistan with respect to the treatment of Hague Convention abduction cases in Pakistan. Questions of foreign law are treated as questions of fact, which must be proven by testimony of a properly qualified expert: see International Air Transport Association v. Canada (Transportation Agency), 2020 FCA 172, at para. 14; Phillips v. Avena, 2006 ABCA 19; and Sofina Foods Inc. v. Meyn Canada Inc. (2017), 2017 ONSC 6957 (S.C.J.).
[24] There is no need for the court to resort to the Rules of Civil Procedure by virtue of r. 1(7) of the Family Law Rules, O. Reg. 114/99. The Family Law Rules contain a provision dealing with expert reports. Rule 20.2 of the Family Law Rules governs expert opinion evidence. Clause (1) defines “joint litigation expert”, “litigation expert” and “participant expert”. In this case, the applicant has filed an affidavit from Ms. Khan, which provides evidence on the law and procedure in Pakistan. Ms. Khan has not delivered a report as required by r. 20.2(2) or an acknowledgement of the expert’s duty as required by clause 7 of r. 20.2(2). The requirement is mandatory.
ii. Travel outside of Canada
[25] As noted by Faieta J. in Saini v. Tuli, 2021 ONSC 3413, at para. 26, the court’s determination of whether a child should travel outside Canada is an incident of parental decision-making responsibility and as such turns solely on whether it is in the child’s best interests. Under s. 16.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), the court may make an order providing for the exercise of parenting time or decision-making responsibility for any child of the marriage. Pursuant to s. 16.3 of the Divorce Act, decision-making responsibility for a child, or any aspect of that responsibility, may be allocated to either or both spouses. In deciding whether to grant a parent permission to travel outside the country with a child, the court must weigh the benefits of travelling against the plausible risks: Verbanac v. Dawson, 2019 ONSC 4473, at para. 43; Saini.
a) Risks of abduction
[26] The applicant relies on double hearsay statements of two friends who claim that they overheard the child saying that the respondent would take him to Pakistan permanently. I do not give any consideration to the statements as they are inadmissible. The applicant also asserts that the respondent will abscond to Saudi Arabia with the child. I agree with the respondent that there is no credible evidence that she would abscond to Saudi Arabia. The applicant’s belief is said to be based on his brother’s experience. Cases are fact specific. It is not clear to the court on what basis the court would be able to consider the applicant’s brother’s situation in determining whether to grant permission to travel to Pakistan to the respondent.
[27] The applicant has raised a plausible risk, however, based on Pakistan being a signatory to the Hague Convention but Canada not recognizing Pakistan as a party. Although this factor is not determinative, I have taken it into consideration in weighing the risks and benefits to the child travelling to Pakistan.
[28] The respondent submits that Pakistan is a party to the Convention. In turn, the applicant submits that despite being a signatory, Pakistan does not properly enforce the Hague Convention. The applicant points to the warning on the Government of Canada’s Travel Advisory to Pakistan, (the “Travel Advisory”) which indicates that Canada does not recognize Pakistan as a party. There is no dispute between the parties that Pakistan became a signatory to the Convention on March 1, 2017.
[29] As noted by the Court of Appeal, a state that is a signatory to the Hague Convention provides comfort about how custody and access matters will be dealt with by that state. A party to the Hague Convention agrees to follow the reciprocal obligations in the Convention, and warrant that they are “[f]irmly convinced that the interests of children are of paramount importance in matters relating to their custody”: see Geliedan v. Rawdah, 2020 ONCA 254, 446 D.L.R. (4th) 440, at para. 37; Zafar v. Azeem, 2024 ONCA 15, 97 R.F.L. (8th) 3, at para. 40.
[30] While counsel for the parties had differing views on the impact of the federal government’s warning about Canada’s position on recognizing Pakistan as a signatory to the Hague Convention, and the applicant sought to rely on jurisprudence from south of the border, in my view, one need only look to Ontario’s highest court’s statement on this very question to put this issue to rest.
[31] In Zafar, Fairburn A.C.J.O., speaking for the court, makes clear Canada’s position. At para. 41, she stated: “Canada does not recognize Pakistan as a signatory to the Hague Convention. While Pakistan acceded to the Convention on March 1, 2017, Canada has not acknowledged its accession. This fact is agreed upon by both parties. It means that the terms of the Convention do not apply” (emphasis added).
[32] The courts have recognized that once a party travels to a country that is not a signatory to the Hague Convention, there may be little incentive to return the child to Ontario, especially while parenting issues are still being disputed: see Mahadevan v. Shankar, 2010 ONSC 5608, 98 R.F.L. (6th) 82, at para. 31; Venkatesh v. Venkatesh, 2010 ONSC 1177, 84 R.F.L. (6th) 356. In this case, parenting and decision-making responsibility have not been resolved on a final basis. The parties are locked in a bitter battle. Both have exposed serious matters in their respective affidavits and have each tried to paint the other in the poorest light. A temporary motion is not the place to address many of the issues raised in the affidavits filed on this motion, but the evidence tells its own story. In the face of the conflicting evidence, and issues of credibility, what emerges is a picture of a highly contentious proceeding, with the child being drawn in by both.
[33] The court in Mahadevan dismissed a parent’s motion to take their child to India, and in doing so, assessed the risk involved due to India not being a signatory to the Hague Convention. As noted by Pazaratz J., at para. 12, the real issue is not necessarily the extent of the benefit of the travel to the child, but the nature and extent of the risk that the child may not be returned despite the assurances of the applicant. While Pazaratz J. declined to make any determination on the issue of credibility before him, he concluded, at para. 38, that there was a “plausible set of concerns” raised, and in the context of the parties’ antipathy towards each other and the dissatisfaction with “custodial arrangements”, he was of the view that “there is valid concern that the Respondent might have – or develop – reasons not to return [the child] to Canada.”
[34] The concerns are raised here. Permeating throughout the materials and the submissions are issues peripheral to the issues on this motion, such as an allegation by the applicant that he was kidnapped by the respondent’s family and held at gunpoint. The applicant has also alleged abuse and sexual assault.
[35] In Waraich v. Waraich, 2022 ONSC 3599, one of the factors Daley J. considered in denying the applicant’s motion to travel to India with the child was the expressed concerns by the other parent regarding the applicant’s intention to permanently remove the child, and the significant risk involved as India was not a signatory to the Hague Convention. Daley J. also considered the applicant's tenuous connection to Canada, including their lack of employment, assets, and immediate family ties.
[36] In this case, the respondent has been living in Canada for the past nine years. She is a Canadian citizen. She is also a citizen of Pakistan. She had previously returned to Pakistan in 2021 with the child when her immigration status was less permanent. At the time, she was a Canadian permanent resident with an expiring permanent residency card. She works part-time at a law office since March 2024 and has recently renewed her lease on her rental home. These are indicia that she intends to return to Canada. She has provided the applicant with a list of the addresses where she will be residing in Pakistan. She has agreed to provide the applicant with make-up parenting time before and/or after her trip to Pakistan. However, the applicant says that the respondent has “steadfastly frustrated” his parenting time since 2023. He hopes to have 50-percent parenting time; the consent agreement only affords him a 43-percent share of parenting time.
[37] On the other hand, her ties to Canada are not without concern. She has expressed frustration about living in Canada, though this is not determinative, and not unusual as she points out, for new immigrants. She is only working part-time and has only been working at her job’s new location for four months. She has only recently renewed her lease. Her family ties are in Pakistan. She has property in Pakistan, though the parties dispute whether it is multiple properties or an empty plot of land.
b) Risk of danger
[38] When making a parenting order, s. 16(1) of the Divorce Act requires the court to consider only the best interests of the children. The factors to be considered in determining best interests are set out in s. 16(3) and (4). Under s. 16(3), the court may consider the child’s age and stage of development; the child’s cultural, linguistic, religious, and spiritual upbringing and heritage; and the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, with each other, on matters affecting the child. The court must take a holistic look at the children, their needs, and the people around them: Phillips v. Phillips, 2021 ONSC 2480, 55 R.F.L. (8th) 442, at para. 47. The statute mandates that when considering the factors contained in s. 16(3), the court must give primary consideration to the physical, emotional, and psychological safety, security, and well-being of the children: Divorce Act, s. 16(2).
[39] The parties agree that Canada has issued a Travel Advisory for Pakistan. Each party however relies on different aspects of the advisory. The respondent only relies on the regional advisory, whereas the applicant relies on the general advisory for Pakistan, among other things.
[40] The parties have consented to the court taking judicial notice of the Travel Advisory. The court may take judicial notice of government advisories regarding out-of-country travel: C.M.J.G. v. M.M.C., 2022 BCPC 3, 67 R.F.L. (8th) 243, at para. 9.
[41] The Travel Advisory is dated July 3, 2024. It warns against travel to the following areas within Pakistan: i. the area within 50 km of the border with Afghanistan; ii. the areas within 10 km of the borders with China, India and Iran; iii. Pakistan-administered Kashmir; iv. the Provinces of Balochistan and Khyber-Pakhtunkhwa; and v. the city of Karachi.
[42] The respondent deposed that she will be travelling to Islamabad and Lahore, which are not in the regions in the advisory.
[43] In Hasan v. Hasan, 2020 BCSC 862, the court noted that it could take judicial notice of government health guidelines. Neither party addressed the portion of the Travel Advisory, “Travel Health Notices,” which includes the health warning “Extensively drug-resistant typhoid in Pakistan - 21 March, 2024” among other infections, and the court cannot make any assessment of whether the child has been inoculated.
[44] However, the applicant relied on the general advisory, which applied to travelling to Pakistan and contained the following warning: There have been ongoing political demonstrations since November 2022. Federal elections took place on February 8, 2024. Security forces continue to be on high alert in the following cities: • Islamabad • Rawalpindi • Lahore • Karachi
[45] While the respondent was correct in that Islamabad and Lahore, where she would be travelling, were not on the regional advisories, they were on the general advisory. She did not address the advisory in her affidavit relating to those areas. In Onuoha v. Onuoha, 2020 ONSC 1815, the travel advisory related to out-of-country travel due to the pandemic. Madsen J. as she then was, stated, at para. 10: “It would be foolhardy to expose the children to international travel in the face of the Travel Advisory, risking the restrictions and complications adverted to therein.”
[46] Those comments apply with equal measure in this case. The respondent acknowledges that Canada has issued a travel advisory for specific areas of Pakistan but argues that she does not intend to visit these areas. This statement relates to the regional advisory. Her evidence does not address the fact that two of the places which she says she intends to travel to, Islamabad and Lahore, are identified in the general advisory. The court is also concerned that the respondent must have been aware of this information but chose to ignore it and only include a portion of the Travel Advisory in her motion materials.
[47] In fact, the general warning, which covered the areas she intended to visit, cautioned travelers to exercise a “high degree of caution” and warned of security situations and elections. The general Travel Advisory warned travelers that security was evolving and remained unpredictable and noted that communication networks may be disrupted, and roadblocks could lead to disruptions, including at airports, among other warnings.
[48] On July 14, 2024, three days after the motion, the Canadian government issued an updated warning for Pakistan. The general warning remained the same, but the regional advisory included new regions. The general advisory warned individuals to “exercise a high degree of caution” and sets out the reasons why, which include “unpredictable security situation,” “threat of terrorism,” and “civil unrest,” among other things. The warning read:
[49] The Government of Canada website provides an expanded explanation of the risk level “Exercise a high degree of caution” [1] as follows: There are certain safety and security concerns or the situation could change quickly. Be very cautious at all times, monitor local media and follow the instructions of local authorities.
[50] The same website provides the following information for the risk levels “Avoid all travel” and “Avoid essential travel”: Avoid all travel You should not travel to this country, territory or region. Your personal safety and security are at great risk. If you are already there, you should think about leaving if it is safe to do so. Avoid non-essential travel Your safety and security could be at risk. You should think about your need to travel to this country, territory or region based on family or business requirements, knowledge of or familiarity with the region, and other factors. If you are already there, think about whether you really need to be there. If you do not need to be there, you should think about leaving.
[51] By email dated July 17, 2024, at my direction, my judicial assistant wrote to the parties to ask the following: The parties have consented to the court taking judicial notice of the Canadian Government Travel Advisory for Pakistan. The Advisory was updated on July 15, 2024. Can counsel advise the court whether these changes impact their submissions about the anticipated places to be travelled to by the respondent mother, no later than the end of the day. That is to say, does the Regional Advisory cover any of the places to be visited by the respondent mother, and if so, please identify the areas/places. Thank you.
[52] By email dated July 17, 2024, counsel for the respondent indicated that the regional advisories do not cover any of the places which she intends to visit and as such did not impact their submissions. There was no response from counsel for the applicant by the end of the day. Given the respondent’s failure to address the earlier general advisory, I am not persuaded by this response, but make no finding of fact from it. What is apparent from the two advisories in the short period of time is that the situation in Pakistan is fluid.
[53] As the Travel Advisory indicates, the situation can change quickly; that has been borne out by a changing Travel Advisory with new territories. I am not convinced that it is in the best interests of the child to expose him to such safety and security risks. I am also concerned that the health warnings in the Travel Advisory have not been addressed by either party. The court accepts that the information in the Travel Advisory is accurate and would assume that the child’s inoculation against some of the identified health risks would be necessary. There is no evidence that he has been or that that could be accomplished and take effect before the August 1, 2024, departure, if required.
[54] The Supreme Court of Canada has indicated that the court must always favour the best interests of the child, from a child‑centered perspective: Young v. Young, [1993] 4 S.C.R. 3. The Divorce Act compels the court to consider the children’s needs and circumstances from the perspective of the children: M.P.D.S. v. J.M.S., 2022 ONSC 1212, at para. 37; Gordon v. Goertz, [1996] 2 S.C.R. 27, at paras. 69, 143; and E.M.B. v. M.F.B., 2021 ONSC 4264, at paras. 62-63. The court must weigh the benefits of travel with the “plausible” risks, and the weighing process must be fact specific: Paurushothaman v. Radhakrishnan, 2014 ONCJ 300, at para. 18; Verbanac, at para. 43.
[55] In Karol v. Karol (2003), 49 R.F.L. (5th) 346 (Ont. S.C.), the motion judge considered a request by the moving party mother to visit Israel with the children. Magda J. considered the respondent’s materials and noted, at para. 7, that they focused “on the consequences of the acts of terror and travel warnings, which are subject to interpretation in different ways.” Magda J. was of the view that there was no travel ban to Israel per se, and although there were warnings suggesting that people not travel to the West Bank and Gaza, he noted that the applicant had no plans to travel there.
[56] The applicant has satisfied the court that the risks to the child’s safety and security, coupled with the lack of assurances that if the child were not returned to Canada it would be difficult to return him, and in the context of a very contentious proceeding and parenting battle that has not yet been finalized, outweigh the possible benefit to a seven-year-old child, who does not speak the language and who would be essentially tagging along with his mother to her sister’s wedding.
IV. Disposition
[57] The respondent's motion to permit her to travel to Pakistan with the child is dismissed.
[58] Although the parties have consented to the involvement of the OCL, in my view this is premature. The child is seven years old and has been subject to several assessments and questioning from third parties. On the material before the court, there is some concern that he is being coached, and in fact may not be expressing his own views.
[59] Where the court is persuaded, in the exceptional case, that the child should have some sort of voice independent of the parties, the court should carefully consider how that voice should be provided. It does not necessarily have to be by way of legal representation. In Saini, Faieta J. dismissed as premature a motion to involve the OCL, despite the consent of the parties. I will adopt my colleague’s approach. The involvement of the OCL should be case conferenced with a view to determine if, when, and in what manner, such involvement should come about, keeping in mind what would be in the best interest of I.D.
V. Costs
[60] I would encourage the parties to resolve the issue of costs as between themselves. If they are unable to do so, I am prepared to consider costs submissions on the following schedule:
i. The applicant shall deliver his costs submissions to the Trial Coordinator (limited to three pages, double spaced, excluding attachments i.e., offers to settle) and a Costs Outline within 15 days of the date of this Endorsement. ii. The respondent shall deliver her costs submissions (on the same terms as paragraph (i) above) and a Costs Outline within 15 days thereafter. iii. There shall be no reply submissions. iv. The costs submissions should also be uploaded to Case Centre in the correct bundle.
Justice A.P. Ramsay
Date: July 19, 2024