Uncle’s Access to Children Upheld on Appeal

girl and three boys on staircase
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Ontario’s Court of Appeal has upheld a trial judge’s order that it is in the best interests of children, ages 6 and 9, to maintain a relationship with their maternal uncle. Khan v. Ahmad, 2019 ONCA 614 (CanLII)

The facts are simple. The children’s mother died of cancer in May 2015 which led to a 13-day trial in January 2019, resulting in an order that the children’s father, a physician, have sole custody of the kids, and the maternal uncle have access one weekend per month from 10 am on Saturday to 6 pm on Sunday.

The relevant circumstances included that during the mother’s illness, the father spent considerable time away from the family home to work a distance away, and regularly travelled to Pakistan to work as a doctor and maintain his credentials, as he was not qualified to practice medicine in Canada. The mother’s family stepped in to assist her while she took cancer treatment.

After her death in May 2015, the father and children moved in with the children’s uncle for three months, with the uncle performing most of the child care duties, as the father again worked out of town. Later the father and children lived on their own but continued to spend every weekend with the uncle’s family. In November of 2015 the father took the children to Pakistan for 2 months returning in early 2016, whereafter for the first 6 months of 2016 the children would be at their uncle’s after school and with the father, having dinner there every night.

In May 2016 the father again travelled to Pakistan with the children which prompted the uncle to bring an ex parte application for custody of the children, which process led to the 2019 trial. In the interim, the children’s uncle had access with the children every second weekend from Friday after school to Sunday drop-off.

In rejecting the father’s appeal the Court canvassed the applicable law relying on Chapman v. Chapman 2001 Canlii 24015 ONCA where Justice Abella noted that parents’ decisions regarding their children ought to be respected, however, a parent’s decision-making authority is not untrammelled, particularly where the parental decision is coloured by emotions that do not serve the best interests of the children.

The trial judge found that the children’s father was providing excellent care, but that his animosity and hatred for the uncle had clouded his judgment to the detriment of the children’s best interests.

The trial judge ruled:

“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…In the absence of an order requiring access, I am afraid that it may well be cut off.”

Lawdiva aka Georgialee Lang

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