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Children Denied Overseas Trip to Visit Ailing Grandmother; Court Suggests Using Skype Instead

Children Denied Overseas Trip to Visit Ailing Grandmother; Court Suggests Using Skype Instead

In Hamid v. Hamid, the primary issue for the court was whether the mother of the three children of the marriage (who were aged 11, 7, and 6) should be allowed to travel with her to Pakistan to visit their ailing grandmother.  The father, from whom the mother had been separated for two years, adamantly opposed the trip, partly on the basis that Pakistan is too dangerous for the children.

The mother’s evidence was that although the maternal grandmother was not dying, she was clearly ill. Despite being only 69, she had cancer, diabetes, and a cardiac condition.  The grandmother had applied to the Canadian government for a visitor’s visa in 2010, but had been denied on the basis that she was a risk to remain in Canada.    As such, the mother pointed out that the only way the children could visit with their grandmother – whom they had not seen since 2003 – was for them to travel to Pakistan.  In light of her poor health, the planned may be the only opportunity for the children to spend time with her before she dies.

The father, on the other hand, claimed that the chaotic political and social situation in Pakistan made it too dangerous, and that were the children to travel there, they would be exposed to an unwarranted risk of harm.  (He also claimed that the mother was a flight risk, and since Pakistan is not a signatory to the Hague convention, he would have no legal or court-ordered recourse if she decided to remain there.   However, in prior decisions the court has held that the mere fact that a parent applies to travel to a country that is not a signatory to the Hague Convention does not mean that the application should be denied unless there is evidence that the children might possibly be abducted.  There was no such evidence in this case.)

The court examined the father’s safety-based objections to the mother’s travel plans to Pakistan.   He had produced documentation about the current political and social climate in that country, including a recent 10-page travel advisory report from the Canadian government that started:  “OFFICIAL WARNING: Foreign Affairs and International Trade Canada advises against non-essential travel to Pakistan.”  The report described the current security situation as being “fragile” and “unpredictable”, and indicate that the threat of terrorism remained “very high,” and that they had taken place in “public areas, such as hotels, markets, transportation hubs, Western-style fast food outlets, restaurants, and religious sites, including places frequented by foreigners.  Only the best hotels, with stringent security, including metal detectors, should be used; however, no location should be considered free of risks.”

 The report also discussed other dangers such as kidnapping, armed robbery, random shootings, and armed car-jackings. .

To counter these reports, the mother filed evidence that the grandmother in Pakistan had not complained about any of the issues raised by the father, and that she had food, water, electricity, and medical care.   If allowed to go, the mother also committed to adhering to the travel advisories, to avoiding any “hot spots” while in the country, and to returning to Canada immediately if she felt the children were in danger.

While accepting that the mother was sincere and genuine in her desire not to place the children in harm’s way, the court stated:

“However, danger – whether it emanates from crime, terrorist attacks or other sources, by its very nature makes victims of similarly like-minded persons, specifically, persons who would not knowingly place themselves in threatening situations.  It is a truism that no one walks along a street knowing that a terrorist bomb is about to explode nearby; no one drives a car knowing it is about to be carjacked; no one would go to any location knowing in advance, they might be kidnapped, assaulted or terrorised in that location.  Yet people – ultimately victims – do these things unwittingly, and these terrible events do occur.”

While conceding that there was undoubtedly a benefit to allowing the children to see their grandmother – and while admitting that the children may feel let down by the court’s decision – the court emphasized that the potential benefits had to be balanced against the risk of harm to the children.  In this case, the benefits simply did not outweigh the risk.  The mother’s motion was dismissed, although the court indicated that if the climate in Pakistan were to change, the children may eventually be able to travel there to visit.  The court also suggested that in this technologically advanced world, the children could have face-to-face “visits” with the grandmother by way of Skype or footage on DVDs.

For the full-text of the decision, see:

Hamid v. Mahmood, 2012 ONCJ 474  http://canlii.ca/t/fs4nh

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com.

Ontario Judge Allows Family Law Litigant to be Cross-Examined via Skype

Ontario Judge Allows Family Law Litigant to be Cross-Examined via Skype

In an Ontario Court of Justice decision from just over a month ago, the court allowed the mother in a custody and access dispute to be cross-examined by way of Skype (a free software application that allows users to make voice and video calls over the Internet), because she had moved to another country and was financially unable to return to Canada to attend the trial.

The case involved a family law dispute with custody issues, in which the court had made various orders relation to the children, including one placing them in the custody of the mother. The father was not awarded custody or access but eventually – after he successfully completed treatment for substance abuse – he applied to vary the initial order to obtain access to the children and develop a relationship with them.

The father took the needed steps to try to find the mother to serve her with his application to vary. However, he was unable to find her, and she did not respond to any of the court documents that were part of his making the application. After following due procedure, the father obtained an order in the mother’s absence.

The mother eventually learned of the order, which she opposed (and in fact, she still resisted giving the father any access to the children whatsoever). It turned out that she had moved to Denmark with her new husband. Accordingly, she brought a motion for an order allowing and her new husband cross-examined by way of Skype. She claimed that she was financially unable to travel back to Toronto from Denmark for the trial (the costs of airfare was about $2,000), and that either she or her new spouse had to remain in Denmark in order to care for their children (which included his daughter from another relationship).

The father objected, claiming that the use of Skype would hamper the “ebb and flow of cross-examination”, and that it would be impossible for a judge to assess the mother’s demeanor and credibility from the answers obtained using this technology.
The court examined in detail the financial circumstances of the couple, including the new husband’s income in Denmark, his role as sole financial support for the mother and the three children of their blended union. The mother had not been able to find work in Denmark since moving there.

It also considered the operation of Skype, which the mother described as “a free computer program that allows people to make video conferencing calls over the internet in real-time for free. To make a video conferencing call, both parties only need a computer that is connected to the internet, a microphone, and a web camera (which many computers have built-in)….the connection between computers can remain open for hours without any charge. … Skype is well-known for its clear quality. … Skype video conference calling can now take place in high definition.”

From a legal standpoint, the court assessed the nature and features of Skype against the existing Rules of Civil Procedure relating to video conferencing, which it considered analogous. It also assessed the suggestion to use Skype against the requirements and objectives of the Family Law Rules, which included the desire to be fair to all parties, and to save time and expense.

In the end, the court had no concerns about the ability to assess credibility during a Skype session with the mother and her new husband, accepted their evidence relating to their constrained financial circumstances, and found that the overall balance of convenience – including the lack of prejudice to the father – favoured allowing the cross-examination via Skype to proceed.

For the full text of the decision, see:

Paiva v. Corpening, 2012 ONCJ 88   http://canlii.ca/t/fq6h9

Russell Alexander Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation. For further information, or to schedule an appointment, call 1.905.655.6335.

 

 

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