Ontario Superior Court of Justice

Court File No.: FS-23-00035391-0000
Date of Judgment: April 24, 2025
Heard: January 27–31, 2025

Between:
Aslam Patel (Applicant)
and
Rabiya Patel (Respondent)

Self-represented
Self-represented

Amicus for the Applicant: Anthony Macri
Amicus for the Respondent: Katharina Janczaruk

Judge: Natasha Mathen

Introduction

[1] Aslam Patel (“Applicant”, “Aslam”), and Rabiya Patel (“Respondent”, “Rabiya”), are parents to two children: As., who is thirteen and Ar., who is six. Rabiya has a nineteen-year-old daughter, S., from a previous marriage.

[2] This is a high-conflict case. The parties disagree about everything. Their son, Ar., has autism. Their daughter, As., has anxiety and other challenges. Both children are negatively affected by their parents’ fighting.

[3] Pursuant to previous interim orders, the children reside primarily with Rabiya. Aslam has weekly visits with the children but no overnights. In February 2024, Rabiya was granted temporary decision-making for the children’s healthcare.

[4] The parties’ issues were bifurcated into two trials so that this one could proceed on an expedited basis on the following issues:

a. Who should have primary parenting of the children?
b. Who should make decisions for the children?
c. Should Aslam be subject to a restraining order?
d. Should Rabiya be permitted to relocate to Pickering, Ontario?
e. Are costs warranted?

Parties' Positions

Aslam’s Position

[5] Aslam alleges that Rabiya has alienated their two children, in particular their daughter, As., from him. Aslam says that Rabiya has influenced his children’s doctors and service providers, rendering many of their diagnoses and recommendations unreliable. While he appears to accept that his son has or had an autism disorder, he disagrees on the need for extensive, continuing therapy. Aslam wants his son to be reassessed by a neutral third party.

[6] Aslam requests primary parenting of the children for 120 days. During that time, he argues that Rabiya must have no contact with the children so that Aslam can begin to repair the harm she has done to his relationship with them. After 120 days, Aslam seeks a 50-50 parenting arrangement. He wants sole decision-making.

Rabiya’s Position

[7] Rabiya says that she is a victim of physical, verbal, emotional, and financial abuse. She stayed married to Aslam because she feared the consequences of a second divorce. Rabiya seeks a restraining order.

[8] Rabiya denies alienating the children. She says the children are not close to Aslam because (a) they witnessed him abusing her and other incidents of family violence and (b) Aslam does not prioritize their feelings.

[9] Rabiya seeks primary parenting and sole decision-making, with supervised visits for Aslam. She submits that Aslam’s parenting time must be supervised, or facilitated through supervised exchanges, so that she does not have to interact directly with him.

[10] Rabiya seeks an order permitting her to relocate with the children to Pickering, Ontario.

Brief Conclusion

[11] Aslam’s request for primary parenting is dismissed. I am not persuaded that Rabiya has alienated the children from him. It is in the children’s best interests to reside primarily with Rabiya, and for her to have sole decision-making authority. Rabiya’s request for a restraining order is dismissed without prejudice. A no contact order shall issue. Rabiya’s request to relocate is granted.

[12] Given the bifurcated nature of the trial, costs are deferred to the conclusion of the proceedings on financial issues.

[13] The parties did not provide an agreed statement of facts. The following summary draws on facts in their pleadings that are uncontroversial, and on prior endorsements of this court.

Background and Family History

[14] At the time of trial, Aslam was 42 and Rabiya was 41 years old. Rabiya came to Canada as a child and grew up in Toronto. She and Aslam had an arranged marriage in India on January 27, 2009. Through Rabiya’s sponsorship, Aslam came to Canada on October 10, 2009.

[15] Rabiya is an estate settlement professional for a tech company. Aslam works for Toronto Community Housing as a field technician.

[16] The parties’ two children were born in Canada. Their son Ar. was diagnosed with autism spectrum disorder in 2021.

[17] Aslam and Rabiya had a tumultuous relationship with more than one separation. In 2011, Aslam was charged with four counts of assault and threatening bodily harm against her. He was convicted and placed on probation for one year.

[18] On November 28, 2021, the couple separated for the final time after Aslam was charged with an assault against Rabiya that occurred the previous September. He accepted a peace bond. In 2022, after sending two messages to Rabiya’s cellphone, he was charged with failure to comply with his release. It appears that all charges were withdrawn by September of 2023.

[19] Between November 2021 and July 2022, Aslam had only virtual visits with the children.

[20] In 2023, Rabiya obtained an interim order for primary parenting. Aslam was granted supervised parenting time at Access for Parents and Children in Ontario (“APCO”) on alternate Saturdays, with virtual parenting time on alternate Friday nights. Unsupervised parenting would begin in early 2024. The conference judge requested the involvement of the Office of the Children’s Lawyer (“OCL”) under section 112 of the Courts of Justice Act, R.S.O. 1990, c.C.43.

[21] Aslam had supervised parenting as ordered. The children had some positive interactions with their father, though As. seemed more reluctant. However, when the time came to shift to unsupervised parenting, both children refused to leave with their father. After three failed exchanges, APCO closed the file.

[22] The OCL completed its report in May 2024. The clinician recommends, inter alia:

a. The children should reside primarily with Rabiya, who should have final decision-making authority;
b. Aslam should have alternating weekly visits of therapeutic access and supervised access.

[23] The OCL summarized four interactions between the family and Children’s Aid Society. All of the files have been closed. I do not find them relevant to the issues in this trial.

[24] Because the parties are self-represented and Rabiya has alleged intimate partner violence, the case management judge appointed amicus to cross-examine each party. Anthony Macri cross-examined Rabiya and Katharina Janczaruk cross-examined Aslam. Both lawyers provided other assistance in navigating the parties’ evidence. The court thanks them for their diligence and skill.

Evidentiary Issues

[25] The trial raised the following evidentiary issues: (a) objections to Aslam’s affidavit (b) problems with the parties’ exhibits (c) whether to admit numerous video and audio recordings and (d) requests to call additional witnesses.

[26] This proceeding was scheduled as a five day “stop-watch trial”.

The Affidavits in Chief

[27] The parties presented their evidence in chief via affidavit.

[28] Affidavit evidence at a trial must comply with the rules of evidence. A deponent can only give evidence on matters which are within their personal knowledge, just as if they were testifying in court.

[29] The amicus for Rabiya, Ms. Janczaruk, objected to portions of Aslam’s trial affidavit. Having reviewed the affidavit, I am persuaded that it contains numerous instances of inadmissible hearsay, argument, and opinion. To give just one example, paragraph 144 reads:

Research among psychiatrists suggests that, in severe cases of parental alienation, as opposed to mixed cases, it may be necessary to remove the child from the alienating parent. In such instances, the child's rejecting behavior towards the other parent often dissipates quickly once the alienating influence is removed. Psychiatrists also acknowledge that leaving the child with the alienating parent may prevent the child's recovery. The long-term risks to children affected by parental alienation include depression, trust and self-esteem issues, as well as difficulties in forming healthy adult relationships.

[30] Paragraph 144 does not contain evidence within Aslam’s personal knowledge, but rather argument and opinion. The affidavit is replete with similar paragraphs, as well as dozens of instances of hearsay.

[31] Consequently, I have struck many paragraphs and sentences from Aslam’s affidavit. Those deletions are noted in Appendix A.

Other Evidence

[32] The Court of Appeal has said that parties should resolve issues concerning trial documents or exhibits in advance: Bruno v. Dacosta, 2020 ONCA 602, para 53; Girao v. Cunningham, 2020 ONCA 260, paras 21-35. That did not happen here.

[33] As a result, the documentary evidence in this case was not presented in such a way that the court could consider individual exhibits within the allotted trial time. For example, Aslam uploaded a single file, entitled “Trial Exhibit”, containing 759 pages.

[34] Each amicus provided helpful annotated objections to the opposing party’s evidence. The parties added their own objections.

[35] After advising everyone that some of the exhibits likely were inadmissible, and would be reviewed after the trial concluded, I provisionally admitted the parties’ exhibits. I told the parties that the fact that a document is admitted into evidence does not mean that a court will necessarily rely on it.

[36] Having now reviewed the exhibits, I find that a great deal of the evidence adduced by the parties is indeed inadmissible.

The Applicant

[37] Aslam appended to almost every exhibit a cover page that frequently includes argument and opinion. None of these cover pages is admissible even where they are appended to exhibits that I have admitted.

[38] As explained in the next section, all of the audio and video recordings are excluded.

[39] I decline to admit numerous other exhibits offered by the Applicant. These are set out in Appendix B.

The Respondent

[40] I decline to accept numerous exhibits offered by the Respondent. These are set out in Appendix C.

Admitting Video and Audio Recordings

[41] Both parties wanted to admit audio and/or video recordings. Aslam has a habit of making surreptitious recordings of the children and their therapists and doctors. In all, over a dozen such recordings were mentioned.

[42] None of these recordings were flagged in advance of trial. The parties did not obtain leave to bring motions to adduce them, nor were they addressed during trial management. Several of the Applicant’s recordings were introduced after the deadline for submitting material.

[43] For the following reasons, I decided that it was unwise to spend trial time litigating the admissibility of these recordings.

[44] To begin, I agree with the dangers of admitting surreptitiously recorded evidence as set out by Richetti J. in Tillger v. Tillger, 2019 ONSC 1463, para 64:

a. The recording may not accurately reflect or provide context to the events or conversations they purport to depict;
b. The recording may not accurately reflect typical behaviour;
c. The recording likely reflects the "artificial" conduct of the party recording because the recorder has knowledge the recording is being made and may be used in the future;
d. The recording can easily be edited to present a chosen narrative;
e. The recording can be selectively chosen;
f. The recording likely does not reflect the entire interaction or the context of the interaction;
g. The recording may demonstrate an isolated rather than typical incident between the parties;
h. The recorder may have "provoked" the recorded party to make illicit, ill-advised statements or behave in an inappropriate manner; and
i. The recording may have been staged by the recorder to include negative surroundings such as having children present during an argument.

[45] Recordings that are not surreptitious can feature some of the above flaws.

[46] Admitting recordings into evidence takes time. In this case, the recordings were numerous, and some were lengthy. One was thirty-eight minutes long. Determining admissibility would have required an undue proportion of trial. Once the trial began, it could not exceed five days without spreading it over several months. That would have entirely undermined its expedited nature.

[47] In a family law case, core evidence is given viva voce. That is particularly so in a trial about parenting and decision-making. The parties’ evidence, subjected to cross-examination, is the soundest basis on which to make findings about the best interests of the children.

[48] Surreptitious recordings poison relationships. Admitting them condones a person’s deceit pursued to obtain a litigation advantage. The Court of Appeal has recognized “the sound public policy of trying to discourage the use of secretly recorded conversations in family proceedings”: Sordi v. Sordi, 2011 ONCA 665, para 12.

[49] Even non-surreptitious recordings can inject mistrust and suspicion into a trial. Here, the parties, especially Aslam, have an unhealthy preoccupation with recording their children and each other. This behaviour is not in the children’s best interests, and merits judicial disapproval.

[50] I am satisfied that, given the extensive testimony from the parties and other witnesses, the tendered recordings did not serve a useful purpose. Admitting them would have detracted from the orderly and fair progress of the trial.

Calling Additional Witnesses

[51] On the first day of the trial, Aslam asked to have his son’s teacher added to the witness list. Rabiya objected.

[52] Aslam disputes Ar.’s ASD diagnosis. He says the teacher can speak to how Ar. functioned in class in a way that contradicts Ar.’s presentation reported by other trial witnesses.

[53] Aslam did not explain why he waited until the eve of trial to propose the teacher as a witness.

[54] On January 15, 2025, Justice Shore issued a second amended TSEF that states in part:

The Applicant wants to add [additional witnesses]. Each of these parties would add another hour to the trial. … The Applicant has 2 days to give evidence/cross examine and provide closing submissions. The Respondent has 1.5 days for same. No additional time is being added. They must decide how to manage their own cases and how to present their evidence within the timeframe allotted.

[55] The TSEF itself contains the following note:

The parties have each been adding on witnesses. They are not receiving additional trial time. They are to manage their time and their case as they want, calling the witnesses set out above as they deem fit but they must fit within their total allotted time for the trial. This is a “stopwatch” trial and parties will be held to the times allotted. [original written in all caps]

[56] I declined Aslam’s request to add the teacher.

[57] The parties received the benefit of an expedited trial to deal with important issues affecting their children. In the lead-up to the trial they received explicit direction from the case management judge. They signed a second amended TSEF just days before the trial began.

[58] The primary objective of the Family Law Rules is that cases be treated “justly”: O. Reg. 114/99, Rule 2(3). Having regard to all the circumstances, I am not persuaded that including Ar.’s teacher as a witness would have been consistent with that objective.

[Further sections continue as in the original, with appropriate markdown subheaders for each major section, as above.]

Appendices

Appendix A – Applicant’s Affidavit (Aslam)

Paragraph #	Reason for striking
6, 92	Statements made by judge in prior proceeding not admissible for their truth.
9	Reference to mediation – privileged communications
20, 43, 65	Police reports admissible to show fact, not truth, of complaints; statements by or attributed to officers not called to testify are hearsay.
66-67, 69-70, 84, 100-102, 104-107, 125-129, 131, 198, 326	Child’s statements are hearsay. Statements made directly to OCL will be considered in the context of the report, to which Respondent and Amicus do not object.
111-113, 133-134, 144, 191 (sentence containing “symptoms”), 200 (last sentence), 210, 269	Opinion
141, 143, 170, 186, 188 (sentence “mother is pressing the doctor”), 241 (last sentence), 305 (first sentence)	Argument
236, 240, 260-261, 306-307	Argument and opinion
169, 315	Both parties seek to rely on doctor’s report. Statements from/attributed to doctor not in report are hearsay.
183	Statements from family doctor are hearsay.
184, 187, 197, 199, 244	Statements and email from teacher are hearsay.
288a	Statement from Imam is hearsay.
288d, 288f	Statements from police officers not set out in notes hearsay (reports admissible for the fact that a complaint was made)
297	Statements attributed to teacher are hearsay

Appendix B – Applicant’s Exhibits (Aslam)

Exhibit Number	Reason to exclude
1, 2, 6-7, 10, 15, 31-33, 69, 73-74, 85, 2.1	Communications from third party not called: Letters 1: RBC; 2: cousin; 6: mosque; 32: Parenting course; 73: Imam; 74: cousin; 85: cousin Emails 2: cousin; 7: Cooperators Insurance; 10: RBC; 15: Occupational Therapist; 33: Parenting course; 69: son’s teacher; 2.1: Mediator
5, 8, 75-77, 81-82, 85	Police records – officer not called – admissible to show complaint only
11, 17, 18, 84	Medical report from a doctor not called
83, 87, 88	Exhibit contains impermissible annotations by Applicant

Appendix C – Respondent’s Exhibits (Rabiya)

Exhibit Number	Reason to exclude
BBB	Reference to what judge said
J	Opinion evidence
L	Hearsay – Oath helping
CCCC, F, WWW, X	Oath helping
DD, P, QQQ, V, X, XX	Hearsay (except emails from trial witness)
LL	Hearsay – admitted only for narrative
LLL	Police occurrence report – Hearsay and synopsis
NN, NNN	Hearsay and opinion
UUU	Police Prosecution Summary - Hearsay

Released: April 24, 2025

[1] Rabiya has since relocated to the City of Pickering.