Mukhtar v. Khan, 2008 ONCJ 169 (CanLII)

ONTARIO  COURT  OF  JUSTICE

BETWEEN:

NAEEM  MUKHTAR,

Applicant,

—  AND  —

NIDA  KHAN,

Respondent.

Before Justice Juliet C. Baldock

Heard on 7 March 2008

Reasons for Judgment released on 11 March 2008

ACCESS TO CHILD — Interim access — Form of order — Long-distance access — After separation, custodial mother returned to Montréal with child (now 20 months old), leaving father in Brampton (about 6-hour drive away) — Father’s motion for interim access was complicated by some serious allegations against him in mother’s affidavits (as yet untested by cross-examination) and her insistence on supervised access — Motions judge pointed out that, in this case, court’s options were limited and that, if child were to enjoy ongoing relationship with father, both parents had to invest some effort and make sacrifices to ensure that every chance for access is taken — Father’s financial circumstances gave him greater flexibility in terms of travel — Until next court appearance 3 months hence, motions judge spelled out terms of access at supervision centre in Montréal with prospect of additional access if mother were to travel to Ontario.

ACCESS TO CHILD — Interim access — Form of order — Supervised access — Grounds — Multiple grounds — At father’s motion for interim access to son (now 20 months old), mother was adamant that it be supervised — Her affidavits alleged some inappropriate behaviour by him with child and claimed that he had paedophilic tendencies and abused drugs, all of which father denied — At most, father conceded that, because he had not seen child for past 10 months, brief interval of supervised access might be appropriate solely for purpose of re-familiarization between child and father — Since mother’s affidavit evidence had not yet been tested by cross-examination, motions judge could make no finding with respect to those allegations or credibility — Thus, there was no evidence to justify denying access altogether, but motions judge noted that allegations (although unproven) were serious and child’s age and vulnerability demanded exercise of caution — For this reason and for purpose of re-familiarization, some period of supervised access was appropriate.

Anser U. Farooq  ……………………………………………………………………   counsel for the applicant father

Shamim Hansraj  ………………………………………………………………   counsel for the respondent mother

[1]                       JUSTICE J.C. BALDOCK:—  The parties are the parents of one child, a son, Nayel Muhammad Mukhtar (born on 3 July 2006, now aged 20 months).  They married in Montréal in October 2005, where they resided until December of the same year.  They then moved to Mississauga.  In May 2007, the parties separated and the respondent mother returned to Montréal with the child.

[2]                       In July 2007, the applicant father commenced his application seeking custody and other relief.  The first return date was 23 August 2007 at which time a case conference date of 4 December 2007 was set.

[3]                       On 4 December 2007, the parties both attended with  counsel and agreed to a final order granting custody to the respondent mother and setting the amount of support payable by the applicant in accordance with the guidelines.  The only remaining issue was that of access.

[4]                       The parties agreed that, notwithstanding that the child has been resident in Montréal since separation, this court would continue to exercise jurisdiction.

[5]                       The access issue proceeded by way of motion brought by the applicant father on 7 March 2008.  On that day, the parties agreed that the applicant father would have access to the child for one hour at a shopping mall in Markham.  They could not come to any agreement as to how access would take place thereafter.

[6]                       The mother is adamant that any access should be supervised.  She has made allegations that the father has demonstrated some inappropriate behaviour with the child and that he has paedophilic tendencies.  She has also alleged that the applicant abuses drugs.  She argues that the child would not be safe in his care.  The applicant vigorously denies the allegations and is seeking liberal and unsupervised access.

[7]                       The father does, however, acknowledge that, as he has not seen the child since the separation, a period of 10 months, some time for adjustment may be needed to allow the child to become familiar with him again.  He therefore reluctantly accepts the notion of supervised access on a very temporary basis for that purpose only.

[8]                       The difficulty lies in the logistics in arranging for visits to occur in any kind of supervised setting given that the parties live so far apart.

[9]                       The mother has located an access centre in Montréal, which, she indicates, is available.  There is also an access centre in Peel.  However, the Peel visit centre requires that the parties attend for the intake process and for orientation so it is questionable whether the mother could comply with the requirements of that facility.  Neither party put forward the name of any other person who would be willing and able to supervise visits and who is acceptable to the other.

[10]                  Clearly time and cost are also significant factors to be taken into consideration.  In addition, the mother is expecting to be out of the country with the child for three or more weeks in April.

[11]                  The mother states that the father does visit Montréal with some frequency, to visit friends.  Again, this is denied.  However, his financial circumstances are such that he has the greater flexibility in this regard.  It is his position that, if he does travel to Montréal for access visits, he would require hotel accommodation on both the Friday and Saturday nights, whereas if the mother were to travel to Ontario, she has family or friends with whom she can stay, which reduces the cost.  He has offered to assist with the mother’s travel expenses to some extent.

[12]                  Overall, I find that there are limited options available for access and that, if the child is to have an ongoing relationship with his father, both parties will have to make some effort and possibly some sacrifices to ensure that every opportunity for access is taken.

[13]                  I make no findings of fact with respect to the allegations made by the mother.  There are conflicting affidavits and issues of credibility that cannot be addressed on affidavit evidence without the opportunity for cross examinations.  However, although there is no evidence before me that would lead me to deny access altogether, the allegations are serious and the age and vulnerability of the child demand that caution be exercised.

[14]                  I find that, for the applicant father to reconnect with the child and having regard to the concerns which have been raised, supervision is necessary at this time.

[15]                  Some period of supervised visitation will have the added benefit of demonstrating how the father and child respond to one another.

[16]                  For these reasons, I make the following temporary order:

Read More