JUSTICE / 'IT IS DIFFICULT TO CONCEIVE OF A MORE VICIOUS ATTACK'
Blameless father a victim in brainwashing case
Judge lets mother move child away, but condemns her tactics in denying father access
The Globe and mail, by KIRK MAKIN, JUSTICE REPORTER, May 19, 2009
The family law system has failed Ayman Al-Taher, leaving him just one sustaining force as he battles for his severely alienated daughter: his faith.
A Muslim chaplain at Toronto's Hospital for Sick Children, Mr. Al-Taher's last hope of seeing his 10-year-old child Ihsan slipped away last week, after Ontario Superior Court Judge Leonard Ricchetti permitted her mother to move their daughter to Saudi Arabia.
Mr. Justice Ricchetti expressed frustration that Tasnim Elwan beat the system by flagrantly violating court orders, spiriting Ihsan out of the country, and taking every measure possible to keep them apart.
Mr. Al-Taher is blameless, Judge Ricchetti said. Nonetheless, he said Ihsan has been so thoroughly alienated that granting her father any form of access would be harmful to her.
"I cannot state strongly enough the court's condemnation of the mother's lack of consideration for Ihsan's interest that she have a relationship with her biological father, and the actions she has taken towards the father," Judge Ricchetti said.
"Had there been any other way to achieve Ihsan's best interests than by letting Ihsan remain in her mother's custody, I would have done so without hesitation."
Mr. Al-Taher, a soft-spoken man in his late 30s, said in an interview that he is tortured by the knowledge that Ihsan is still living somewhere in Toronto, pending a decision on who will pay court costs.
"It is still very emotional for me," he said. "Trust me, I have my sleepless nights. I do not think that it would surprise you if I say that I have nightmares in my sleep. But I'm trying to be as objective and realistic as possible."
In his ruling, Judge Ricchetti branded Ihsan's mother, Tasnim Elwan, a mischief-maker, a liar and a manipulator who has systemically thumbed her nose at the court and at common decency.
He said Ms. Elwan falsely accused Mr. Al-Taher of being a Jew-hating member of Hamas who trained in al-Qaeda terrorist camps and who is mentally ill.
"It is difficult to conceive of a more vicious attack on an individual on every basis conceivable," Judge Ricchetti said.
Mr. Al-Taher and Ms. Elwan were married in 1998 and separated on Feb. 14, 2005. They reached a settlement granting Ms. Elwan custody of Ihsan and permission to move to Vancouver. In return, she was to provide Mr. Al-Taher generous access, particularly during vacation periods.
Upon arriving in Vancouver, Ms. Elwan cut off all communication with Mr. Al-Taher and then surreptitiously moved to Saudi Arabia, where she married a wealthy man and immersed Ihsan in local culture.
The RCMP helped Mr. Al-Taher locate his former wife, but it was powerless to do Read More .. because the country has no reciprocal arrangements with Canada in such cases.
Ms. Elwan thwarted every attempt Mr. Al-Taher made to contact Ihsan.
In a recent affidavit, she stated that Ihsan, "has a far better life than she could have with her mentally-disturbed, misogynist, jihadist father."
Ms. Elwan returned to Canada and surrendered her passport only after Judge Ricchetti found her in contempt of court last October. (The contempt matter remains in abeyance.)
In his ruling, Judge Ricchetti suggested his hands were tied after an investigator from Ontario's Office of the Children's Lawyer reported that Ihsan is close to her mother and resents what she sees as her "abandonment" by her father.
Mr. Al-Taher said that the OCL report played right into Ms. Elwan's hands and vindicated her tactics.
"I think my immediate assessment was that the social worker did an injustice to me and my family, my daughter, primarily," Mr. Al-Taher said.
"I question the abilities of the social worker. I question her sensitivity to cultural issues."
Judge Ricchetti ordered that Mr. Al-Taher be allowed to telephone Ihsan regularly. He also ordered that she be given parental alienation counselling in Saudi Arabia.
If Ms. Elwan continues to sabotage her former husband's relationship with their daughter, Judge Ricchetti added, Ihsan is likely to call her to account one day.
Mr. Al-Taher agreed. "That is what I am hoping," he said. "One day, Ihsan will realize: How come she could not connect with her father?"
A PAINFUL REALITY
The Elwan v. Al-Taher case illustrates a painful reality of family law: parental alienation can be a successful tactic.
"While the mother has emotionally traumatized her daughter and thwarted the legal system, the girl is so alienated that this decision was the only realistic option given the resources of the father," said Prof. Nicholas Bala, a family law expert at Queen's University.
"This is obviously a deeply frustrating and tragic case, but it illustrates that ultimately the family courts must make decisions based on the overall best interests of children - not punishing parents."
Prof. Bala said the case also shows that it is urgent for the justice system to respond rapidly when an alienation case surfaces.
"With hindsight we can see that once the mother was able to move with the child and effectively prevent her from seeing her father and him from seeking legal redress, she was able to change her child's perception of reality and destroy the child's relationship with her father," he said.
Prof. Bala said rigorous therapy is sometimes necessary to break a parent's hold over a child.
"There are programs in the United States - such as that of Dr. Richard Warshak - that have had some success in restoring a child's relationship with even a severely alienated parent," he said. "But this would require giving the father custody and suspending contact with the mother. This was not an option in this case due to expense and the father's limited means."
Excerpts from Judge Leonard Ricchetti's ruling:
"The Mother clearly has done everything she can against the Father to prevent the relationship between the Father and Ihsan, without regard to the fact it would be in the best interests of Ihsan to have a relationship with her biological father."
"Unfortunately, as much as the Mother's behaviour has been reprehensible in this case and should not be permitted to have created a situation favourable to her case at the cost of Ihsan's relationship with her Father, the fact is that this Court has no choice but to look to the future and determine what is in Ihsan's best interests."
"Despite my suspicions that the Mother will not permit, encourage or facilitate access to the Father, it is in Ihsan's best interests that the (court) order be varied to permit the Mother to take Ihsan to Saudi Arabia."