



COURT OF APPEAL FOR ONTARIO

CITATION: Khan v. Ahmad, 2019 ONCA 614

DATE: 20190719

DOCKET: C66636

Hoy A.C.J.O., Trotter and Jamal JJ.A.

BETWEEN

Raheal Khan

Applicant (Respondent)

and

Daud Ahmad

Respondent (Appellant)

Anser Farooq and Shivani Balcharan, for the appellant

Kristen Normandin and Cara Senese, for the respondent

Heard: July 15, 2019

On appeal from the judgment of Justice Douglas K. Gray of
    the Superior Court of Justice, dated January 30, 2019, with reasons reported at
    2019 ONSC 784.

REASONS FOR DECISION


[1]

The mother of two children, a boy, now nine, and a girl, now six years
    of age, died on May 16, 2015 from abdominal cancer. On January 30, 2019, after
    a 13-day trial, the trial judge granted sole custody of the children to their
    father and ordered that their maternal uncle have access to the children one
    weekend per month, commencing at 10:00 a.m. on Saturday and ending at 6:00 p.m.
    on Sunday.

[2]

The father appeals the order granting the uncle access to the children.

Background

[3]

The father and the childrens mother married on May 30, 2004. It was an
    arranged marriage. The father is from Pakistan and the mother, who was born in
    Canada, travelled to Pakistan for the wedding. After the wedding, the father immigrated
    to Canada, and the children were born in Canada.

[4]

The father, who was a medical doctor in Pakistan, had difficulty finding
    work in Canada. He has not qualified as a doctor in Canada. In order to support
    his family, he had to endure part-time work that was, in some cases,
    geographically distant from the mother and the children, who lived in Brampton,
    close to her family. The father visited Pakistan to undertake employment there
    as a physician from time to time in order to maintain his qualifications.

[5]

In August 2014, the mother was diagnosed with cancer. While the mother
    was ill, the father was frequently away, and the mothers family assisted in
    caring for the children. After the mothers death, the father and the children
    moved from their home in Brampton and lived in the uncles house in Milton for
    three months. The uncle picked up the children from school and assisted in
    their day-to-day care. During that time, the father worked out-of-town.

[6]

In August 2015, the father moved the children to an apartment in Niagara
    Falls, closer to where he was working, but the father and the children
    continued to spend time with the uncles family on weekends. In November of
    2015, the father took the children to Pakistan, returning to Milton for the new
    year. The uncle testified that during the first half of 2016, he would see the
    children after school, and the father would come home and have dinner with the
    uncle and the children.

[7]

When the father again took the children to Pakistan in May 2016, the
    uncle brought an application in the Ontario Court of Justice and obtained an
ex-parte
order for custody of the children. The matter was transferred to the Superior
    Court of Justice. From October 20, 2016 until the trial judge released his reasons,
    the children resided with the father and the uncle had access to the children
    on alternating weekends, from Friday after school until Sunday drop-off.

The trial judges reasons

[8]

The trial judge found that the father was providing excellent care for his
    children, he treats them with love and affection, and they love him in return.
    In his view, the uncle did not really seek an order for custody. The uncles
    concern was with where the children would live. The trial judge ordered that
    the father have sole custody of the children.

[9]

On the issue of access by the uncle, the trial judge wrote as follows:

[260] The leading case on the issue of access on the part of a
    non-parent remains
Chapman v. Chapman

(2001), 141 O.A.C. 389 (C.A.). At para. 21, Abella J.A. stated:

In the absence of any evidence that the parents are behaving
    in a way which demonstrates an inability in accordance with the best interests
    of their children, their right to make decisions and judgments on their
    childrens behalf should be respected, including decisions about whom they see,
    how often and under what circumstances they see them.

[261] It is true that the right of a custodial parent to make
    access decisions is not untrammelled. Indeed, in a proper case the court may
    order that a non-parent have custody in a case of contested custody between a
    parent and non-parent:
Law v. Siu
, 2009 ONCA 61, 65 R.F.L. (6th) 37.

[262] In the case before me, I am not convinced that the
    respondent should have the untrammelled right to decide whether the applicant
    has access.

[263] The respondent is correct that there is a great deal of
    animosity, and indeed hatred, between the parties. This means, however, that if
    the respondent is given the right to decide whether access will take place, it
    is highly unlikely that it will occur. While the respondent has testified that
    he is willing to allow visits to occur, I think it is highly unlikely that they
    will, or at least there is a serious risk that they will not occur.

[264] I think it is in the best interests of the children that
    they maintain a relationship with their maternal extended family. They have
    always maintained such a relationship, and it would not be in their best
    interests that it be cut off. In the absence of an order requiring access, I am
    afraid that it may well be cut off.

[265] The Office of the Childrens Lawyer has recommended that
    visits occur on one weekend per month. I agree with that recommendation.
    However, the OCL has not recommended any overnight visits. This may be because
    the children, or at least Rayyan, advised the investigator that they do not
    want overnight visits. However, I am not sure the position of the children is
    that unequivocal. In any event, the decision is not one to be made by them,
    rather it is to be made by the court in the childrens best interests.

[266] The children have had overnight visits for some
    considerable period of time. They clearly love their uncle and the other
    members of his family, although the conflict between the grandparents could be
    problematical.

[267] In the final analysis, I am prepared to order overnight
    access on one night during one weekend each month. I order that the visits
    occur commencing at 10:00 a.m. on Saturday and end at 6:00 p.m. on Sunday. I
    order that the applicant effect the pick-ups and drop-offs, save and except
    where the respondent lives more than 75 kms from the applicants residence, in
    which case the exchanges shall be at a location that is agreed upon, that is
    approximately half-way between the residences, or as fixed by the court if
    there is a dispute.

The issues

[10]

The
    father argues that the trial judge made five errors in ordering that the uncle
    have monthly weekend access to the children:

1.

the trial judge made palpable and overriding errors in finding that it
    was highly unlikely and that there was a serious risk that access would not
    occur, if not ordered by the court;

2.

he failed to provide sufficient reasons for why he disbelieved the
    fathers evidence that he would voluntarily provide the uncle with access to
    the children;

3.

he mistakenly concluded that it was in the best interests of the
    children to maintain a relationship with the uncle in the face of the animosity
    between the parties;

4.

he failed to provide reasons for not accepting the Office of the
    Childrens Lawyers recommendation that the uncle should not be given overnight
    access; and

5.

he failed to consider the possibility of psychological or physical harm
    to the father, on whom the children are dependant, resulting from the access
    order, contrary to this courts decision in
Pollastro v. Pollastro
(1999),
    43 O.R. (3d) 485 (C.A.).

Analysis

[11]

The
    trial judges decision to grant the uncle access to the children was properly
    driven by the childrens best interests and is entitled to deference. We are
    not persuaded that there is any basis to interfere with his decision.

[12]

While
    the father argues that his evidence was that he would provide the uncle with access
    to the children, and that it was therefore a palpable and overriding error for
    the judge to have found that there was a serious risk that the access visits
    would not occur, the fathers evidence at trial was more equivocal. He
    testified that he would provide access on whatever conditions [he and the
    uncle] agree on and that while he had his counsel write that he would not
    provide access to the uncle, no access to uncle means no regular access, but
    he can ask any time. Further, the trial judge explained, at para. 263 of his
    reasons, that the animosity between the parties led him to doubt that regular access
    would occur.

[13]

The
    father correctly argues that acrimony between a custodial party and someone
    seeking access to a child is relevant to at the childs best interests.
    However, the trial judge was clearly alive to the animosity that had developed
    between the parties. Weighing all the facts particular to this case, he
    concluded that an access order was ultimately in the childrens best interests
    as the only way to ensure the childrens continuing beneficial relationship
    with the maternal extended family.

[14]

The
    trial judge also explained why he ordered overnight visits: in his view, it was
    in the childrens best interests. The children had been having overnight visits
    for some time, and while the OCL may not have recommended overnight visits
    because the oldest child advised that he did not want them, the trial judge was
    not persuaded that the childs position was that unequivocal.

[15]

Finally,
    this case is very different from
Pollastro
. In
Pollastro
, the
    mother was forced to flee California and come to Canada with the parties
    six-month-old child as a result of the fathers severe and ongoing violence
    towards her. The father instituted an application under the Hague Convention
    requiring the mother to return to California with the child. Article 13(b) of
    the Hague Convention required consideration of whether there is a grave risk
    that [the childs] return would expose the child to physical or psychological harm
    or otherwise place the child in an intolerable situation. It is in this
    context that Abella J.A., for the court, wrote, in the passage the father
    relies on, that it was relevant, in considering whether the return to
    California would place the child in an intolerable situation, to take into
    account the serious possibility of physical or psychological harm coming to the
    mother on whom the child was totally dependent. Moreover, there was evidence
    that returning the child to California represented a grave risk of exposure to
    serious harm to the child personally.

[16]

In
    this case, the alleged psychological harm to the father results from providing
    access, which he argues he was willing to provide without a court order (albeit
    not on the terms ordered). This case does not involve a determination under the
    Hague Convention, there has never been any violence between the parties or
    involving the children, and there was no evidence  and the trial judge made no
    findings of fact  that the father suffered or was at risk of suffering
    psychological or emotional harm.

Disposition

[17]

Accordingly,
    the fathers appeal is dismissed. The uncle shall be entitled to his costs of
    the appeal, fixed in the amount of $6,300, including HST and disbursements.

Alexandra
    Hoy A.C.J.O.

Gary T. Trotter J.A.

M. Jamal J.A.




