Success, in contempt

Globe Editorial

The Globe and Mail ( Canada's largest national daily newspaper ), 20 May 2009,

Family courts are not supposed to reward abusive parents, and punish parents who play by the rules. They are not supposed to allow an abusive parent to nullify the responsible parent's role in a child's life. But that is exactly what an Ontario court has done in a case of parental alienation. It has, in effect, disposed of the child's father, perhaps permanently.

Tasnim Elwan has been given permission to take her nine-year-old girl from Canada to Saudi Arabia, where she will have "a seven-bedroom home with two nannies," thanks to Ms. Elwan's wealthy new spouse. The nine-year-old hates her father because he abandoned her - or so she thinks. When he managed, with the RCMP's help, to trace her to Saudi Arabia after her mother in effect kidnapped her, and made his way to that country for 10 days, he was permitted just 15 minutes with her. Some abandonment. And now he is to be allowed one telephone call a month, which the judge doesn't expect Ms. Elwan will allow, anyway.

Ms. Elwan makes no secret of her disgust with her former spouse, Ayman Al-Taher, a chaplain at Mount Sinai Hospital in Toronto. She calls him a mentally disturbed supporter of Hamas and al-Qaeda. If those accusations were true, asked Mr. Justice Leonard Ricchetti, why then did she agree, in a formal, court- approved settlement, to allow him any access to their daughter? And why, he asked, make that settlement if she never intended to comply with its terms? (She was found in contempt of court for taking her child to Saudi Arabia.)

Even so, Judge Ricchetti rejected Mr. al-Taher's attempt to wrest custody from his ex-spouse when she temporarily returned to Canada. To take the child from her loving relationship with her mother and turn her over to a father she is unprepared to love would be traumatic, he said. Also, "the father's income is not substantial and cannot compare with what can be offered to meet [the child's] needs in Saudi Arabia." The father is dismissed for lack of funds.

Children are entitled to have as much contact as possible with both their parents. But that principle of law was knocked easily aside by an abusive parent. (Denying a child contact with another parent is deemed abuse in Ontario child-protection law.) Is it more important for a girl to have "a seven-bedroom home with two nannies" or a father, even if he is a hospital chaplain of limited means? One wonders whether a court, if the situation were reversed, would dispose so readily of a responsible mother of limited means.

The judge is saying, in effect, "Sorry, that's the best we can do in the circumstances." But that's not nearly good enough. The first step should be to strengthen the presumption that a child is entitled to both parents. Abusers should not be rewarded for their abuse. A child should not lose her father, and a father his daughter, to spare her the short-term trauma of a reunion.