REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE H.C.A.NO. 2276 OF 2003 IN THE MATTER OF JORDAN ISIAH KHAN, A MINOR AND IN THE MATTER OF THE FAMILY LAW (GUARDIANSHIP OF MINORS, DOMICILE AND MAINTENANCE) ACT NO. 15 OF 1981 AND IN THE MATTER OF AN APPLICATION ON THE PART OF JENNIFER KHAN TO HAVE THE SAID CHILD MADE A WARD OF THE COURT BETWEEN JENNIFER KHAN Plaintiff AND DANIELLE RUSSELL Defendant AND H.C.A. NO. 765 OF 2003 IN THE MATTER OF JORDAN ISIAH KHAN, A MINOR AND IN THE MATTER OF THE FAMILY LAW (GUARDIANSHIP OF MINORS, DOMICILE AND MAINTENANCE) CHAPTER: 46.08 DANIELLE RUSSELL Plaintiff AND JENNIFER KHAN Defendant BEFORE THE HONOURABLE MADAM JUSTICE JUDITH JONES Appearances: Ms. Joan Byrne for Jennifer Khan Mrs. Daly for Danielle Russell JUDGEMENT Before the Court are cross applications for the custody of Jordan Isaiah Khan (hereinafter called “Jordan”) a minor born on the 20 th August 1995. The application first in time is that of Jennifer Khan, Jordan’s paternal aunt (hereinafter called “the Aunt”) by way of an originating summons dated the 19 th August 2003 filed in High Court Action No. 2276 of 2003. Page 1 of 12
This application, which originally took the form of an ex-parte application to make Jordan a ward of court and for his care and control, was brought against Jordan’s mother, Danielle Russell (hereinafter called “the Mother”). Upon the Aunt’s application Jordan was on the 19 th August 2003 made a ward of this Court and an interim order for his care and control granted to the Aunt. By an order made on the 4th May 2004 leave was granted to the Aunt to amend her originating summons to seek an order for the custody of Jordan. The second application is that of the Mother and is made by way of an originating summons dated the 22 nd March 2004 in High Court Action No.765 of 2004. In these proceedings brought against the Aunt the Mother applied for the custody of Jordan; an order that the defendant immediately deliver him into her custody and leave to remove Jordan out of the jurisdiction. By consent both proceedings were heard together.
Jordan was born in Ontario Canada to the Mother and Gustav Khan (hereinafter called the “Father”). The Mother, aged 29 years and Father aged 39 years, are unmarried. Jordan is now 8 years old. The father is the younger brother of the Aunt. Both the Mother and the Father are Canadian citizens and reside in Ontario, Canada. Jordan was born in Canada. The Father is of Trinidadian parentage. The Father comes from a relatively wealthy family who although they originate in Trinidad move between Canada and Trinidad and Tobago with great regularity. The Father has both a brother and a sister who it seems have settled in Toronto and three of Jordan’s paternal cousins aged 24 years, 22 years and 11 years live in Toronto. The Aunt aged 49 years is the eldest child of her parents, unmarried with no children and lives in Trinidad with her parents. The grandfather is aged 73 years and the grandmother aged 67 years. Jordan has from age 4 years traveled between Trinidad and Tobago and Canada.
At the core of this dispute is the fact that the Father is a drug addict. It is accepted that his addiction predated by many years his relationship with the Mother.
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According to the Aunt when the family discovered that the Father had a drug problem they sent the Father back to Canada where he had been born. In or around the year 2001 the Father was convicted on five charges of armed robbery and at the time of the hearing of the matter had just completed serving a threeyear jail sentence and was at a rehabilitation center. There was produced to the Court a psychological risk assessment prepared by the Bath Institution on the Father (hereinafter called “the Bath Institution report”) and various supporting documents. This report was prepared, it seems, for the consideration of the parole board on the Father’s parole hearing. Among other things the report reveals that his offence history included 21 prior adult convictions and that available information suggested that his addiction possibly started as early as aged 14 years.
The Mother and Father began dating in the year 1993 and began to live together about one year later. According to the Mother the Father began physically assaulting her some 8 months into the relationship. After some three and a half years of this abuse she began reporting the assaults to the police. Thereafter the Father was in and out of jail regularly, on offences ranging from assault on the Mother to armed robbery. In November 1997 the Mother obtained an interim custody order for Jordan. This order provides that the father have no access to Jordan. This order is still in force.
It is not in dispute that in order to provide for her family the Mother was forced to work two sometimes three jobs, sometimes until 2.00am in the morning. Her evidence is that even when the father was not incarcerated his behavior was such that she was reluctant to leave Jordan with him unsupervised and accordingly would be forced to ensure that that babysitting services were provided. According to the Mother during the time that she knew the Father he only worked for a sum total of two to three months. It is accepted that because of the Father’s severe addiction the family’s financial support was met by the Mother with help from the father’s family, the Aunt in particular.
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It is clear from the evidence that the Father’s family was extremely supportive of the plight of the Mother in her attempts to provide a home for Jordan and appreciative of her efforts with the Father. There is no dispute that from aged 4 years Jordan spent a lot of his life in Trinidad. By consent a chart was put into evidence which vividly depicted Jordan’s movements between Canada and Trinidad. The chart reveals that up to July 1999 Jordan spent all of his life with the exception of a period of two weeks in September 1996, when he visited Trinidad with his parents, in Canada with his parents. Given the evidence before the Court it is clear that the majority of that time was in fact spent under the care and control of the Mother while the Father was incarcerated. Thereafter most of Jordan’s life was spent in Trinidad with or without his parents. Although there is no consensus between the Aunt and the Mother as to all of the circumstances leading to Jordan’s visits to Trinidad it is fair to say that the Father’s family and their home in Trinidad offered to the Mother a place where Jordan could be safe and comfortable.
To a large extent most of the facts before the Court are not in dispute. What is in dispute is the interpretation placed on these facts by the parties and the motives attributed each to the other. Save for an affidavit sworn by the Grandmother who was not cross-examined the only sworn evidence in this case is that of the Aunt and the Mother, both of whom were cross-examined at length. Also put before the Court by the Mother are three documents purporting to be those of the Father, two of which are typewritten and the other in handwriting. Of some importance are the circumstances surrounding Jordan’s most recent trip to Trinidad, a visit which has lasted some 19 months and which has given rise to the applications before the Court. In August 2002 the Aunt was in Toronto having just brought Jordan from Trinidad. According to the Mother the Aunt was due to return to Trinidad in the month of September 2002.
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The Mother claims that this period was a particularly trying one for her in that she had recently communicated to the Father her intention to finally end the relationship and, as in the past when she had attempted to do so, he had begun to harass and pressure her. The Father was at that time due to be released from prison into a rehabilitation facility where, she says, it was possible for him to be at liberty for up to 16 hours a day. As well, she claims, things were not going too smoothly with the Aunt and herself as the Aunt was attempting to take full control of her life and her involvement with Jordan. At her wits end and fearful for the future she left Toronto for a few days leaving a note for the Aunt which among other things requested that the Aunt look after Jordan for her.
According to the Aunt she had gone out with Jordan and her other nephews for the day and came back at around 7.30 p.m. to be handed a note from the Mother by the landlady’s daughter, who she claimed, was in tears. The contents of the note are, in part, worth repeating. It is addressed to the Aunt, in it the Mother states: “ I had to leave for a while. I don’t want to be with Gus but he won’t let me leave. I want everyone to leave me alone so I can finally live my life in peace and happiness. Please take care of Jordan………..Please just try and understand I can’t go on anymore living a life I hate. I need to be alone and away from everyone. Thank you Jenny. Danielle. Please tell Jordan Mommy loves him.
The Aunt took this note as authority to take Jordan back to Trinidad and left Canada with Jordan for Trinidad the following day, the 20 th August 2002. Jordan has since that date not returned to Canada or to the Mother’s custody. The Aunt’s claim to the Court is that Jordan had been left in the Aunt’s care on numerous occasions because it suited the Mother to do so at the time.
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She claims that this has been the pattern throughout Jordan’s life and that she, the Aunt, has always been there for Jordan. In her affidavits the Aunt paints a picture of a young irresponsible mother who is unable to get her life together, who continues in an abusive and unhealthy relationship and who is content to allow her son to be sent back and forth between Trinidad and Ontario at her whim and fancy. The claim is that Jordan is settled in Trinidad where he has lived for the last 19 months, that those 19 months have been the most stable in his life and that the Court should, in recognition of this, award the custody of Jordan to the Aunt. The evidence before the Court is that the Aunt and the Grandparents run a successful business owned by them. They live in comfortable surroundings in a relatively upscale residential area in Trinidad and Tobago. They have a fulltime maid and a male assistant whom the Aunt says has lived with them for the past 27 years and is like one of the family. Jordan attends a private school and is enrolled in football classes. He is well settled in the school and has friends whom he invites home. He also plays Kiddies’ carnival and has won various trophies for his portrayals.
The Mother while not denying that Jordan has been well looked after by the Father’s family says that it was never her intention to have the Aunt take Jordan to Trinidad at all far less permanently and that on discovering same she was promised by both the Aunt and the Grandparents that his stay would be temporary. She claims that in Jordan’s absence she went about organizing her life for his return. She claims that after having done so she was met by excuse after excuse as to why Jordan could not be returned to her custody. These excuses continued, she claims right up until she was served with the order making Jordan a ward of this court. With respect to her prior life she paints a picture of a single Mother struggling to make ends meet and provide for her son while still trying to be supportive of the Father.
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She says that she now works one job, is no longer required to work weekends and is making sufficient income from that job to adequately support Jordan and herself. According to her she is the tenant of a three-bedroom apartment in a quiet family oriented residential area. Jordan has the use of a sizable backyard and the school in which it is her intention to enroll Jordan is in close proximity to the apartment and her place of work. She says that should she be awarded the custody of Jordan she will change her working hours to allow her to leave work at 5p.m. In any event she states that there is available at the school an in- house daycare service up to 6pm. With respect to her relationship with the Father she states that it has ended and that although it is not her intention to deny him access to his son she will use the facilities available in Toronto for him to have comfortable supervised access with Jordan.
With respect to the letters from the Father placed before the Court. Some attempt was made at the hearing to challenge these letters as not really being that of the Father’s since two of them were prepared for him by someone else. These two letters are typewritten.. No allegation has been made either in the affidavits or in cross-examination that the signature on both letters is not that of the Father. Neither was there any real challenge to the authenticity of the handwritten letter. Indeed the Aunt was given the opportunity by the Court to comment at large on the said handwritten letter and although challenging some of the contents did not claim that it was not her brother’s document. It is clear that in terms of style and grammar the typewritten letters were drafted by someone else. Indeed the evidence of the Mother under cross-examination was that these two letters were drafted by someone assisting her in the preparation of her case. The question of course is how much weight is to be placed on the contents of the letters given the fact that it was prepared by someone assisting the Mother in her case, the Father’s history and the fact that this was not sworn testimony.
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All three letters are in support of the Mother’s quest for the custody of Jordan and indicates the Father’s confidence that Jordan’s welfare will be best served with the Mother. Two of these letters are addressed “To whom it may concern’ and one is addressed to the grandparents. It is the handwritten letter, which is of greatest concern to the Court. This letter in support of the Mother’s application contains additional facts to which reference will be made at a later stage. Also before the Court are two reports prepared by experts in their field. The first is a report of the National Family Services Division prepared in March 2004 pursuant to a request from International Social Service (ISS) Canada. According to the Aunt this was requested by the ISS as a result of the Mother’s allegations of sexual impropriety on the part of the Aunt. According to the officer preparing the report the report was requested by the ISS after the Mother had sought the assistance of that body and the Children’s Aid Society of Canada regarding her son. What exactly was the mandate of the officer is unclear and is not stated in the report. The report is based on one visit to the home of the Aunt and the Grandparents by the officer at which time she viewed the physical surroundings and spoke to the Aunt, Jordan and the Grandparents. In the main the report contains information, which, although stated as fact, could only have been told the officer by the Aunt or the Grandparents. Most of these facts have not been supported by the evidence or have been shown to be untrue by the evidence before the Court. One glaring example of this is the officer’s claim that the Aunt “continued to send money regularly to assist Danielle”. The officer states that these remittances averaged $600.00 monthly and claimed to have seen the remittances. In truth and in fact the cross examination of the Aunt revealed that the only copies of remittances held by the Aunt not only showed that they were not made regularly but also showed that they did not nearly approximate the sum suggested.
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At the request of the Court and with the consent of the parties arrangements were made for Jordan and the Mother to be seen by an expert so that the Court could have before it some evidence of the nature and quality of the relationship between them. The sessions were conducted by a children and adolescents’ psychologist chosen by the Attorneys and were conducted over a period of two days for a total of five hours. The sessions comprised individual and joint sessions with the Mother and Jordan. According to the Psychologist there exists “a strong warm bond between mother and son” which although “it has been severely stressed by the years of separation” the child “is eager to reconnect with his mother.” The report also reveals Jordan’s high level of confusion over the feeling that he is being called upon to make a choice between his mother and father on the one hand and his Aunt and grandparents on the other and what she terms as a high level of ambivalence and sadness in response to male- female relationships. Also disclosed by the report is the Psychologist’s concern over Jordan’s poor reading skills.
There has been in this case an allegation made by the Mother of inappropriate behavior on the part of the Aunt with respect to Jordan. I put the allegation no higher than this. This issue was first raised by the Aunt in her affidavit in support of her ex-parte application and explained by the Mother in her affidavit in response. While not, it seems, forming the basis for the Mother’s case before the Court such a claim must be of some concern to a Court dealing with the welfare of a child. This is particularly so when viewed together with the contents of the father’s handwritten letter and the Bath Institution report. Of greater concern to me are the father’s claims of sexual abuse as a child. Attorney for the Aunt urges me to find that the information put before the Court by the Father is, given the Father’s particular problems, unreliable and that the Court ought not to accept same.
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The handwritten letter from the father makes reference to, among other things, his claim of sexual abuse as a child by a family member. The fact that this allegation repeats similar claims made by him to the psychologists at the Bath Institute and referred to in the Bath Institute’s report is of significance.
With respect to the evidence given before me I found the Mother to be a witness of the truth. She gave her evidence in a straightforward manner and gave the impression of being honest even where the information volunteered was not necessarily in her favour. The Aunt on the other hand was, I found, not beyond stretching the truth to suit her own ends as shown by her affidavit in support of her ex-parte application and the report of the National Family Services Division. She gave the impression of a person who could be manipulative and controlling. I therefore accept the evidence of the Mother and where in conflict with that of the Aunt prefer the Mother’s evidence. With respect to the Father while recognizing that the Father’s history clearly demonstrates that he has not always been truthful I can see no reason to doubt his statements as to the Mother’s role in Jordan’s care. With respect to his claims as to sexual abuse as a child while I am not prepared to make a finding of fact on these claims it is of sufficient concern to me to be a factor to be taken into consideration in determining what is best for Jordan. It is however not the Court’s duty to determine this dispute on the basis of whose evidence is preferred. At the end of the day the only issue to be determined by the Court is what is in the best interests of the child. The Family Law (Guardianship of Minors, Domicile and Maintenance) Act 1981 mandates the Court in determining questions of the custody of a child to regard the welfare of the minor as the first and paramount consideration. This is ultimately the only issue to be determined by the Court.
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The fact that the custody battle is between a parent and a non parent does not, in my view obviate the need for the Court to consider and evaluate what each party can offer the child in the future and is only one of the considerations that the Court must take into account in determining where the child’s best interests lie. The Attorneys in this case have referred to many authorities in an effort to assist the Court in its determination. At the end of the day while it is important to bear in mind how other courts have dealt with similar cases, save that the welfare of the child is the first and paramount consideration, it is clear that each case turns on its own particular facts. It is not in dispute that in Trinidad the Aunt and the Father’s family are able to provide Jordan with an extremely high standard of living. Jordan attends a private school and engages in various extra-curricular activities. In the year 2002 the Aunt took Jordan to Europe on vacation. According to the Aunt she and her parents dote on Jordan and it is not in doubt that Jordan has a good relationship with them. It is clear that when with the Aunt and the Father’s family Jordan enjoys a level of wealth and privilege, which the Mother cannot provide. However a comparison of the material benefits available to a child is only one of the factors that a Court must bear in mind in arriving at its decision. There are other considerations as for example the age and disposition of the parties. In this particular case there is as well the Father’s life history to be considered. There is no evidence before the Court that any consideration has been given by the Father’s family to the causes of the Father’s life of drugs and crime and whereas it may very well not be attributable to the manner in which the Father was raised, it is clear that if custody were to be granted to the Aunt Jordan would be raised in the same environment in which the father was raised. This alone is of sufficient concern and importance to tip the scales in favour of granting the custody of Jordan to the Mother.
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In the circumstances I propose to grant the custody of Jordan to the Mother and grant her leave to remove the child out of the jurisdiction. I therefore order as follows: 1. The order of Mr. Justice Smith of the 19 th August 2003 is hereby discharged; 2. The custody of the minor child Jordan Isaiah Khan is granted to the Mother, Danielle Russell; 3. Leave is hereby granted to the said Danielle Russell to remove the said child out of the jurisdiction; 4. The Aunt Jennifer Khan do immediately deliver up the said minor into the custody of the Mother Danielle Russell; 5. Jennifer Khan to pay to Danielle Russell the costs of the applications fit for Advocate Attorney.
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