Family

Children’s welfare comes first in custody disputes: Heft

By Tony Poland, AdvocateDaily.com Contributor

Toronto-area family lawyer Reesa Heft says it’s “paramount to consider the child’s view” when dealing with custody cases.

Heft, founder and principal of Heft Law, says while a parent’s concerns should always be addressed, the child’s rights must take precedence. She uses an Ontario Court of Appeal (OCA) judgment — that confirmed a man’s right to overnight visits with his niece and nephew despite having an indifferent relationship with their father — to illustrate her point.

“I thought this judgment made perfect sense. Your initial reaction is, ‘What do you mean an uncle who has a horrible relationship with the father is getting access to the children?’” Heft tells AdvocateDaily.com. “On first blush, it doesn’t sound healthy, but then after you read the facts, it is a good decision.”

Court was told a doctor from Pakistan wed a Canadian woman in an arranged marriage in 2004, and the couple moved to Canada where they had two children.

The woman was diagnosed with cancer in 2014 and because her husband was frequently away from home for work, her family assisted in caring for the children, court heard.

After the woman died, her brother took her widowed husband and their children into his home for three months, according to the judgment. The uncle picked his niece and nephew up from school and assisted in their care.

The doctor moved his children to Niagara Falls, closer to where he was working, but continued to spend time with the uncle’s family on weekends, court heard.

When he took his children to Pakistan for a short time in 2015 and then returned there in May 2016, the uncle brought an application in the Ontario Court of Justice and obtained an ex-parte order for custody of his niece and nephew, according to the judgment.

The matter was transferred to Superior Court where 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,” and ordered he have sole custody.

The uncle was granted overnight access once a month but the father argued it should be his decision when the visits occur. However, the judge noted “there is a great deal of animosity, and indeed hatred,” between the two men, and if the father “is given the right to decide whether access will take place, it is highly unlikely that it will occur.”

The father took the matter to the OCA, which found the 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.”

Heft, who was not involved in the case and comments generally, says “there’s an expression in Latin, parens patriae,” which refers to the public policy power of the state to act as the parent of a child in need of protection.

“So the role of the court is to act almost like they’re the parental overlord of family law,” she says.

Heft says it’s not that the extended family members are necessarily entitled to access in such cases.

“That’s the wrong question because you don’t look at it as the rights of the extended family, you have to look at it always from a child’s perspective,” says Heft. “So the question is what are the family’s rights, and I tell my clients all the time, ‘Let’s start with: you have no rights. The starting point isn’t you, it’s the children.’”

She says in this case, it benefitted the children to maintain a relationship with their uncle.

“The mother was young when she died of cancer, and during her illness, the uncle was very much a part of the children’s lives. After she passed away, the uncle is still very much a part of the children’s lives,” Heft says. “So these children have a long-term, ongoing relationship with him.”

She explains that parents are presumed “to make decisions that are in their children’s best interests unless there’s evidence to the contrary.”

“But here, the court found that dad was not doing that for these children,” Heft says. “The problem was not that he was a bad parent, but that he was cutting his children off from the maternal uncle because of his own issues.”

She also notes that even though the uncle “was ingrained in the children’s lives, he didn’t get access the way a parent would, he only has access once a month.”

“It’s unfortunate the relationship between the uncle and the father broke down, but it doesn’t mean the children should be kept from their mother’s family,” Heft says.

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