Court Of Appeal Upholds Access Rights For Uncle

Written on behalf of Arbesman Hamilton LLP

When we discuss issues around child custody and access, it is usually in the context or parents disagreeing over those matters in the context of a separation or divorce. However, as seen in a recent decision from the Ontario Court of Appeal, custody and access issues can also appear in situations involving the access of extended family to children.

The family’s story

The parents were married on May 30, 2004 through an arranged marriage. The father was from Pakistan and the mother was born in Canada, but travelled to Pakistan for the marriage. The father migrated to Canada following the marriage, and that is where the couple’s children were born.

The father had worked as a medical doctor in Pakistan but was not qualified to practice medicine upon his arrival in Canada. As a result, he would often work away from him to work and maintain his qualifications in Pakistan.

The mother was diagnosed with cancer in August 2014. While she was ill the father continued to work away from home. As a result, the mother’s extended family helped in caring for the children. This help came in particular, from one of the mother’s brothers (the “uncle”). The mother passed away, which led to the father and children moving in with the uncle for three-months. During this time the uncle picked up the children from school and looked after their day-to-day care.

The father eventually got an apartment, but the family continued to visit the uncle on weekends. The father made two trips to Pakistan with the children. The first was in November 2015 and the second was in May 2016. It was during this second visit that the uncle brought an application before the courts and obtained an ex-parte order for custody of the children.

The trials

The uncle was not actually seeking custody of the children. Instead, he wanted to ensure that the children continued to live in Canada. The court noted a 2001 decision from the same court which addressed the issue of access by non-parents, quoting,

“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 children’s behalf should be respected, including decisions about whom they see, how often and under what circumstances they see them.”

The trial judge held that in this particular case, the father’s relationship with the uncle had become so deteriorated that the father was not in a position to have the absolute right to determine whether his children see the uncle. The trial judge held that it was important for the children to maintain a relationship with that side of the family. Not convinced that the father would allow the children to visit the uncle resulted in the court awarding the uncle one overnight day of access per month.

The father appealed the decision, arguing the trial judge made palpable and overriding errors in determining he might not voluntarily allow his children to visit their uncle. But the court found the trial judge’s ruling to be in accordance with the best interests of the children.

If you are contemplating a separation, or are already in the process, and
there are children involved, your first step should be to consult with a family
lawyer who has experience with custody and access matters. Arbesman Hamilton LLP and
its predecessors have been helping clients in Toronto since 1953. Our lawyers
provide clear, practical advice so that clients can make informed decisions
about their parental rights. Contact us online or at 416-481-5604 to
book a consultation.