When people think of child custody disputes, it’s natural that they likely think of two parents at conflict over who gets custody of a child. However, there are occasions when other parties come into the mix. Such was the situation in a recent case heard by the Court of Appeal for Ontario, in which a maternal uncle of children sought access rights to a child whose mother had passed away.

A tragic backstory

The mother of the children, who were nine and six years old at the time of the appeal, passed away from abdominal cancer on May 16, 2015. The parents were married on May 30, 2004 through an arranged marriage. The father is from Pakistan, while the mother was born in Canada but travelled to Pakistan for the wedding. The father immigrated to Canada after the wedding and the couple had their children in Canada.

The father was a doctor in Pakistan, but had difficulty finding work in Canada because his qualifications did not transfer. He would work part-time and occasionally visit Pakistan to work as a physician and maintain his qualifications.

The mother’s cancer diagnosis was made in August 2014. Her family helped care for the children while she received treatment since the father was often working away from the city they lived in.

After the mother passed away in May 2015, the father and the children moved to the uncle’s house for three months. During this time the uncle picked up the children from school and assisted in their care while the father worked out of town.

The father moved himself and the children to an apartment in Niagara Falls, which was closer to where he worked. They continued to spend time with the uncle’s family, though.

The father took the children with him to Pakistan on two occasions. The first trip occurred in November 2015 and the second occurred in May 2016. It was during this second trip that the uncle brought an application in the Ontario Court of Justice, obtaining an ex-parte order for custody of the children. The matter went before the court, and during this time the father had custody, with the uncle having access on alternating weekends.

The first trial

The trial judge noted that the uncle was not actually seeking custody of the children, rather his concern laid in where the children would live.

The trial judge cited a 2001 decision from the Ontario Court of Appeal which is the leading case on the issue of access on the part of a non-parent. In that decision, the court held,

“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.”

However, in this case, the trial judge was not convinced the father should have the untrammeled right to decide whether the uncle has access. The trial judge noted the animosity between the parties, calling their feelings towards one another “hatred.” The trial judge noted the importance of the children maintaining a relationship with the maternal side of their family, and was not convinced that the father would always allow that. In light of this, the trial judge ordered overnight access on one night during one weekend each month.

The appeal

The father appealed the decision, claiming the trial judge made palpable and overriding errors in finding it highly unlikely that visits would not continue to be offered, and that the trial judge made errors relating to what was in the best interests of the children. However the court agreed with the trial judge’s finding that regular visits with the uncle were in the best interests of the children despite the poor relationship between the father and uncle. The court also agreed with the trial judge’s findings that regular visitation might not occur without an order.

The father’s appeal was dismissed, with costs being awarded to the uncle.

Both access and custody are complex legal issues with a very emotional element. Parents going through separation or divorce need good, experienced, and independent legal advice to help them navigate their new reality, work through the arrangements, and ensure that the best interests of their children are protected. At Borden Family Lawour team has been helping clients with separation, divorce, custody and access for more than 18 years. We have the experience and knowledge necessary to help you come to the most optimal arrangement. Call us at 905-576-6090, or contact us online. Ask about our flat fees and bundled packages.