In Khan v. Ramsingh, the Ontario Court of Appeal was tasked with deciding whether or not a father is permitted to bring a Motion to Change the parenting terms of an existing order.

Case Background

The father and mother separated in December 2004. They are the parents of two children, an 18-year-old daughter and a 14-year-old autistic son. Due to his disability, the son requires assistance in dressing himself, reading, writing, and with school in general.

In September 2016, the mother commenced an application seeking, among other things: sole custody of the children, retroactive support and Section 7 expenses, supervised access for the father, and a restraining order against the father.

The mother alleged that the father’s history of abusive behavior and criminal activities posed a risk of harm to the children.

Case Management

In March 2017, the case management judge made a temporary order on consent that the mother would have sole custody of the children. This order also restricted the father to telephone access with the children, which would commence only after the father provided disclosure of his criminal convictions and a sworn financial statement. In order to claim his telephone visitation rights, the father was required to submit this statement at least seven days before the next court date.

As the father failed to provide a sworn financial statement to accompany his Answer by the next court date, he was noted in default and a costs order was made against him. The case management judge then denied the father’s request for a further extension and ordered that he should not bring a Motion to Change without obtaining leave in advance. Leave could only be obtained by bringing a procedural motion with a supporting affidavit, limited to only two pages.

After paying the outstanding costs orders and filing his Answer, the father brought a procedural motion seeking leave to bring a Motion to Change custody and access. He argued for his ability to care for his son and against the case management judge’s orders, citing that they were extremely disadvantageous to him and his son.

The son’s skills were regressing as well, and the father was concerned for him. The case management judge dismissed the father’s motion on the basis that the matter was not for a Motion to Change, but rather an appeal.

Appeal to the Superior Court of Justice

The father appealed to the Superior Court of Justice and argued that since he had paid the outstanding costs awards, he was entitled to a hearing on the merits regarding custody and access. The appeal judge denied his appeal on the basis that the case management judge was entitled to deference as there was enough evidence in the continuing record to exercise discretion in making the Orders. The father then appealed to the Ontario Court of Appeal.

Analysis

The Ontario Court of Appeal ruled that the case management judge erred in denying the father leave to bring a Motion to Change. Pursuant to King v. Mongrain, in order to make custody and access orders in the best interests of the children, the court generally needs the participation of both parties.

While case management judges are given considerable deference, it is problematic that in this case custody and access orders were made for the son in the face of an almost complete absence of written evidence from the father. Given the two-page limit on the father’s affidavit, it was virtually impossible for the father to make his case that a different order was needed in the child’s best interests.

The father’s Answer suggested that increased access may have been in the son’s best interests. In fact, the father had access to the son well-beyond the ordered telephone access each week, which may have been a tacit acknowledgement by the parties that increased access was desirable and the court should reconsider whether the current access order was in the child’s best interests. Therefore, the father was permitted to bring a Motion to Change the parenting terms of the existing order.

Summary

This case provides evidence of the importance of participation from both parties in a matter involving custody and access. As such, each party needs to have a reasonable opportunity to bring their case forward and present their position on the best interests of the child.

What Khan v. Ramsingh Means to You

In addition to illuminating the importance of participation from both parties in custodial matters, this case upholds a precedent that allows the voices of both parents to be heard in child custody battles. If you are having trouble maintaining custody of your child, or struggling to be heard properly by a court of law, our child custody lawyers at Feldstein Family Law Group P.C. may be able to help.

Make sure your custody rights are protected today by calling (905) 581-7222 or requesting a free in-office consultation online.