The Ontario Court of Appeal recently upheld a trial decision giving an uncle access to his niece and nephew after the death of their mother.
The father and the children’s mother married in 2004 and had two children together: a boy, now nine, and a girl, now six years of age.
In August 2014, the mother was diagnosed with cancer. While the mother was ill, the father was frequently away, and the mother’s family assisted in caring for the children. The mother passed away in May 2015 from abdominal cancer.
After the mother’s death, the father and the children moved from their home in Brampton and lived in the children’s maternal uncle’s house in Milton for three months. The uncle picked up the children from school and assisted in their day-to-day care. During that time, the father worked out-of-town.
In August 2015, the father moved the children to an apartment in Niagara Falls, closer to where he was working, but the father and the children continued to spend time with the uncle’s family on weekends.
In November of 2015, the father took the children to Pakistan, returning to Milton for the beginning of the new year. The uncle testified that during the first half of 2016, he would see the children after school, and the father would come home and have dinner with the uncle and the children.
When the father again took the children to Pakistan in May 2016, the uncle brought an application in the Ontario Court of Justice and obtained an ex-parte order for custody of the children. The matter was transferred to the Superior Court of Justice. From October 20, 2016 until the trial judge released his reasons, the children resided with the father and the uncle had access to the children on alternating weekends, from Friday after school until Sunday drop-off.
On January 30, 2019, after a 13-day trial, the trial judge granted sole custody of the children to their father and ordered that their maternal uncle have access to the children one weekend per month, commencing at 10:00 a.m. on Saturday and ending at 6:00 p.m. on Sunday.
The trial judge found that the father was providing excellent care for his children, he treats them with love and affection, and they love him in return. In his view, the uncle did not really seek an order for custody. The uncle’s concern was with where the children would live. The trial judge ordered that the father have sole custody of the children.
The father appealed the order granting the uncle access to the children.
Court of Appeal Decision
At the outset, the court stated:
“The trial judge’s decision to grant the uncle access to the children was properly driven by the children’s best interests and is entitled to deference. We are not persuaded that there is any basis to interfere with his decision.”
While the father had argued that he would provide the uncle with access to the children, the trial judge had found that the animosity between the parties led him to doubt that regular access would occur.
While the father had argued that acrimony between a custodial party and someone seeking access to a child is relevant to the child’s best interests, the court found that the trial judge correctly concluded that an access order was ultimately in the children’s best interests as the only way to ensure the children’s continuing beneficial relationship with the maternal extended family.
As a result, the father’s appeal was dismissed.
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