Court File and Parties
Court File No.: D80265/15 Date: January 8, 2016
Ontario Court of Justice
Re: Daniella Kimesha Doyle – Applicant And: Karim Joel Gebon – Respondent
Before: Justice Roselyn Zisman
Counsel:
- Tricia Simon, for the Applicant
- Karim Joel Gebon, on his own behalf
- Nadine Silverman, counsel for the Department of Justice Canada, on behalf of the Minister of Public Safety and Emergency Preparedness, interested party
Heard On: December 15 and 18, 2015
Reasons for Decision
1. Introduction
1The applicant ("mother") commenced an Application, on February 10, 2015, for custody of Serrenity Autumn Gebon born October 31, 2012 ("the child" or "Serrenity"), ancillary orders for travel and obtaining documentation for the child without the Respondent's ("father") consent and child support both ongoing and retroactive. The father filed an Answer requesting an order for sole custody, or in the alternative joint custody and an order that the mother not be permitted to remove the child from the jurisdiction. The father's Answer alerted the court to the mother's pending removal from Canada.
2On May 11, 2015 the parties entered into a temporary consent that provided the father have specified access on alternate week-ends from Friday at 7:00 p.m. to Sunday at 7:00 p.m. and for the entire first week on each month from Monday to Sunday. It was agreed that the father pay child support of $259.00 per month based on his income of $31,200.00. The parties also agreed that neither party be permitted to remove the child from Ontario without the prior written consent of the other party or Court order. There was no order as to custody or primary residence.
3The proceedings were adjourned several times as the parties were waiting for a decision regarding the mother's immigration status.
4On October 21, 2015 Ms Silverman of the Department of Justice advised the court that the mother's removal date was now scheduled for December 21, 2015.
5The mother requested sole custody, child support and the ability to remove the child to St. Vincent. The father opposed the mother's request and sought sole custody, whether or not the mother remained in the jurisdiction or in the alternative, joint custody with primary residence to himself and a continuation of the non-removal order.
6In view of the pending removal of the mother, an early trial prior to December 21st was required. The parties agreed to a focused trial, pursuant to Family Law Rules 1 (7). Both parties were required to file affidavits as their evidence in chief subject to cross-examination by the opposing party. The mother advised that she would call herself and her uncle as a witness and the father advised that he would call himself and his common law spouse as a witness.
7Both parties were ordered to serve and file their affidavits by December 1st. The applicant subsequently requested leave to serve and file her affidavit by December 14th, 2015. Both parties filed their affidavits at the commencement of the trial.
8At the trial in addition to the affidavits both parties relied upon, the mother only called herself as a witness. The father and his common law spouse testified.
9The issues to be determined are as follows:
a) Whether the court should order sole or joint custody;
b) Whether the court should make a non-removal order;
c) Whether the court should dispense with the father's consent to enable the mother to obtain travel documentation for the child and for her to travel with the child outside of Canada; and
d) Whether the court should order retroactive and ongoing child support and the quantum of such support.
2. Background
10The mother is 24 years old. The mother was born in St. Vincent and came to Canada when she was 16 years old. She was brought to Canada by her mother. The mother was only in possession of a visitor's visa and did not return to St. Vincent. Apparently the maternal grandmother had no legal status either as she was deported sometime in 2014 or 2015.
11The father is 24 years old. He was born in Canada. When he was less than a year old he was sent to Grenada and then returned to live in Canada when he was a teenager.
12The parties met shortly after the mother arrived in Canada in 2008 and began to live together in 2011. Serrenity was born on October 31, 2012. The parties resided with the maternal grandmother and her partner until they separated. The parties separated in 2013 and had an on and off relationship for several months, then they were married on August 23, 2014 and separated on a final basis in October 2014.
13The parties agree that when they separated they agreed that the child remain in the mother's primary care and that the father was to have generous access as arranged between them.
14The mother has been able to obtain medical care for the child in Ontario and was able in October 2015 to enroll the child in daycare. The mother has been able to work for cash at various times and testified that she was working up to 12 hours a day at a restaurant but was vague as to when this occurred.
15The father was previously employed from May 2010 to August 2015 as a general labourer and earned about $33,988. As of October 26, 2015 he has been employed along with his common law spouse as an assistant residential manager for several apartment buildings. He earns $25,100 annually and he receives an apartment as a taxable benefit of $8,100 annually.
16There is a dispute between the parties as to how often the father exercised access, if the mother interfered with the father's ability to exercise access, if the father supported the child, and the mother's prospects if she is deported to St. Vincent.
3. Credibility Issues
17I found the mother's evidence to be vague, contradictory and lacking in credibility in that she would say whatever was necessary to support her case. Although it may be understandable that the mother needed to do whatever was necessary to remain in Canada and support her child, nevertheless her motivation and circumstances do not enhance her reliability.
18Examples of the mother's lack of credibility and dishonesty are as follows:
a) The mother remained in Canada illegally and provided no evidence that she attempted to legalize her status until she was discovered by the immigration authorities in January 2015;
b) The mother worked illegally in Canada, did not pay income tax or employment insurance or Canada Pension Plan premiums;
c) The mother urged the father to claim the child lived primarily with him so that he could claim the child tax benefit and blamed the father when he refused to lie and apply for this benefit;
d) The mother's sworn affidavit made a general claim that the father was abusive to her but then offered no specific evidence of this claim except for one incident where she alleged he threw her out of their bed. This allegation was non-specific with respect to a date or any other details at all. The father was not cross-examined about this incident or any other incidents. The father denied that he was ever abusive to the mother;
e) The mother alleged that the father failed to support the child but then did not explain why she waited to begin court proceedings until there was an imminent threat that she would be removed from Canada. The mother initially denied that the father provided her with some funds and supplies and then admitted that he did but then only when she begged him;
f) The mother testified that she always told the father where she was residing but then admitted that she told him after they moved; and
g) The mother testified that both she and the child would have access to good educational prospects, health care and housing in St. Vincent. But in response to a question from the court the mother admitted that she has filed a Humanitarian and Compassionate Application ("H & C") to remain in Canada based on the lack of such opportunities in St. Vincent.
19I find that where there is a discrepancy between the evidence of the mother and father that the father's evidence is more credible. The father's evidence was in many respects corroborated by Lashawna Barry-Green, his common law spouse, who I also found to be a credible witness. Both testified that they frequently did not know where the mother and child were residing and that it was only after the mother had moved that she would contact the father if she needed something. They both testified that the mother would not facilitate access. The father gave specific examples of when the mother denied access and his attempts to arrange access.
4. Evidentiary Issues
20The mother relied on her affidavit sworn December 8th, 2015 filed in court on December 15th. Attached to that affidavit is a medical note, a letter from the maternal grandmother, government of Canada travel advisory, information about the United Kingdom and Canada admission requirements for foreign students and numerous excerpts from UNICEF and from government and visitors' websites regarding St. Vincent.
21The father, who was self-represented and not a sophisticated litigant, did not object to the admissibility of any of this evidence. However, the father in both his affidavit and his testimony clearly did not agree that the child would receive the same benefits of health care, education or quality of life in St. Vincent as she would receive if she remained in Canada.
22The court has a gate keeper role in any proceeding and an obligation to ensure that only admissible and relevant evidence is permitted to be introduced and relied upon in any decision that is made whether or not it is objected to by an opposing party and in particular when the opposing party is self-represented.
23Counsel for the mother did not provide the court with any case law regarding the admission of these exhibits and essentially submitted that the exhibits should be admitted and the weight to be attributed decided by the court. Counsel for the mother submitted that the medical report and the letter from the maternal grandmother should be admitted on the basis that they are relevant. Counsel for the mother also submitted that the other information was from government websites or reliable sources and therefore the court should admit the documents and then could put whatever weight the court deemed appropriate on the information contained therein.
24I discern from this submission that it is being submitted that the evidence is admissible as it is relevant to a material issue in dispute and that the court can take judicial notice of the documents attached to the mother's affidavit as exhibits.
25I discern from this submission that it is being submitted that the evidence is admissible as it is relevant to a material issue in dispute and that the court can take judicial notice of the documents attached to the mother's affidavit as exhibits. With respect to the issue of judicial notice, the Supreme Court of Canada in the case of R. v. Spence confirmed a strict approach to the concept of judicial notice as follows:
Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.
26The Supreme Court identified different types of facts that can be subject to judicial notice namely:
"Adjudicative facts" are facts to be determined in the litigation between the parties. For example, the fact that a camel is a domestic animal or that the cost of raising children increases as children get older.
"Legislative facts" are facts that have relevance to legal reasoning and the law-making process and involve broad considerations of policy. These facts assist in determining questions of law and are not intended to assist in resolving questions of fact. For example, when the court considers the constitutionality of a statute or interpretation of a statute the court can rely on social science research, commissions and studies.
"Social context facts" are facts that are used to construct a frame of reference or background for deciding factual issues crucial to the resolution of a particular case. These are not facts in the true sense of the word but rather they are general explanations about society or human behaviour. Examples include the court's acceptance of the "battered wife syndrome" or the effect of "the feminization of poverty". The information may be presented by experts or may be accepted by the court as matters of common knowledge.
27Most importantly for this case, the Supreme Court held that regardless of the classification of a "fact" proposed for judicial notice, whether social, legislative or adjudicative"the closer the fact approaches the dispositive issue, the more the court ought to insist on compliance" with the strict criteria for trustworthiness. In other words, the court should require stringent proof of facts the closer to the centre of controversy between the parties as distinguished from background facts at or near the periphery.
28In this context I make the following rulings:
a) Copy of a medical note dated October 29, 2015 from Sarah Kipp, a registered nurse practitioner, confirming that the mother has taken the child to the medical clinic since November 11, 2012 and that she is healthy and up to date on her immunizations. Despite the fact that this "note" was not filed in accordance with the requirements of section 52 (2) of the Evidence Act, as the note contains non-controversial information from a professional non-party, I would exercise my discretion in admitting the note. However, I put no weight on the comment in the note about the child being solely cared for by the mother over the last year as this information could only have been relayed by the mother and Ms Kip was not available for cross-examination;
b) Copy of letter from Deserie Prince the maternal grandmother. This letter outlines the mother's role in caring for the child, opinions about the father and information about the supports available for the mother in St. Vincent. It was agreed that all evidence in chief would be introduced by affidavit subject to cross-examination. The inclusion of this letter is an inappropriate means to circumvent that agreement. I find that this letter is not admissible as it deals with issues in dispute between the parties. Counsel for the mother had ample opportunity to obtain a sworn affidavit from the maternal grandmother and arrangements could then have been made for her to be cross-examined. Counsel for the mother did not raise the issue of obtaining such evidence when the procedure for this trial was canvassed. It would be unfair to the father to permit such evidence to be admitted in this format without the opportunity for cross-examination. Letters attached to affidavits used on motions have similarly been ruled inadmissible and an even higher standard should be used in a trial context;
c) Government of Canada Advisory indicating there is no nationwide advisory in effect for St. Vincent and the Grenadines. Travel advisories from the government of Canada have been admitted on motions on the basis that this is credible and trustworthy evidence. I find that this evidence is reliable and non-controversial and the court can take judicial notice of the safety of life in St. Vincent. I also note that this was not raised as a concern by the father;
d) A list of the laws of St. Vincent with respect to children excerpted from the UNICEF Children's Law Data base. It is pertinent to state that the basic requirement for the admission of evidence is relevance. I find that a list of the laws in St. Vincent is not relevant or helpful to the court in determining the issues in this case;
e) Excerpts about the religion, education system, daycare and healthcare in St. Vincent from various websites that may or may not be official government websites. It was submitted that just as the government of Canada's travel advisory was admitted by the court that similarly these various excerpts about St. Vincent should be admitted. Firstly, except for the website addresses at the bottom of pages there is no evidence that these are "official" government websites, and the mother's affidavit that attaches these exhibits does not indicate the source of the information or the nature of the website or who provides the information for the websites. Counsel submitted that the court should take judicial notice that these appear to be government sponsored websites. The court should not be put in a position of looking up the web addresses to determine the authenticity of the websites. Therefore the court cannot determine if the sources of the information are of "indisputable accuracy." Secondly, the use of selected pieces of information is concerning as the information selected may not be reflective of all of the information available. Thirdly, such general information is not relevant or helpful to the court with respect to the issues in dispute. Fourthly, as the conditions and opportunities in St. Vincent are the essence of the dispute between the parties, the highest standard of reliability and trustworthiness must be applied to such evidence. The evidence proffered does not meet that standard. To admit such evidence on the basis that the court should take judicial notice of the information which then deprives the father of the opportunity to test the information through cross-examination is unfair to the father and does not assist the court;
f) Admission requirements from the United Kingdom and York University to indicate that students from St. Vincent are accepted and the qualifications necessary for acceptance and excerpts from the Education Act of Ontario. I find that this general evidence is not relevant or of assistance to the court; and
g) Excerpts from the "St. Vincent and the Grenadines - Millennium Development Goals Report 2012" of the United Nations Development Program purporting to indicate that St. Vincent has achieved significant progress in meeting the goals set for children and its general population. The only parts of the report submitted were the front page setting out some general information about the program and only a portion of the summary of the goals achieved. I again find such bits and pieces of information are not relevant or useful to the court. The author or authors are not even listed and the report is not signed. This information, which again is the essence of the dispute between the parties, cannot simply be attached to an affidavit without affording the opposing party an opportunity to test the evidence through cross-examination or without affording the court an opportunity to also ask questions or clarify the information.
29In summary, except for the medical note and the travel advisory by the government of Canada, none of the exhibits to the mother's affidavit are admissible and have not been relied upon in reaching this decision.
5. Findings with Respect to Disputed Facts
30Based on the evidence I accept, I find that:
a) Prior to the separation, both parties took an active role in parenting the child. Although the mother was the primary caregiver, when the mother was working or attending night school or on the week-ends the father primarily cared for the child;
b) After the separation, the mother was the primary caregiver. The mother ensured the child's day to day needs were met and she ensured the child's health care needs were met;
c) After the separation, the father was involved with the child and exercised access. The mother considered the father to be a good parent and trusted him to care for the child when she was not available;
d) Both parents have a close and loving relationship with the child;
e) Prior to the court proceedings, generally the parties co-operated in making parenting and informal child support arrangements;
f) Although the parties do not agree on where the child's primary residence should be, they have generally co-operated during the court process. Although there are some discrepancies in their evidence regarding whether or not the father was exercising access in accordance with the temporary order, the parties have not engaged in any serious disagreements or conflict as frequently seen by the court;
g) The mother moved frequently and lived in several different cities in Ontario and did not advise the father until after she moved where she could be reached and from time to time interfered with his ability to exercise access; and
h) Both parties recognize the importance of the role of the other parent in the child's life and would attempt to facilitate contact between the child and her other parent.
6. Legal Considerations Regarding Custody and Access
31The court's function is to determine what custody and access orders are in the child's best interests irrespective of whether or not the mother remains in Canada.
32Subsection 24 (2) (a) to (h) of the Children's Law Reform Act, R.S.O. 1990, c. C-12, as amended sets out the criteria for assessing the best interests of a child. I find it useful to review those criteria in the context of the evidence I have accepted.
(a) The love, affection and emotional ties between the child and each person entitled to or claiming custody of or access to the child
33Neither parent disputed that they both love and are emotionally connected to the child and that the child is attached to them both. However, the child has resided in the fulltime care of the mother and this is an important consideration.
34Ms Barry-Green, the father's common law spouse testified that she has a close relationship with the child and spends time with the child whenever she is with the father. But she has been cognizant of her role and has not held herself out as a step-mother or tried to replace the mother in the child's life. However, if the child was placed in the care of the father, Ms Barry-Green was clear that she would gladly accept a more involved role if the child resided with her and the father on a full-time basis.
35The father also testified that he has an extended family that love the child and that the child loves spending time with her paternal family.
(b) Views and preferences of the child, where such views and preferences can reasonably be ascertained
36The child is only three years old and is too young to express any views.
(c) The length of time the child has lived in a stable environment
37The mother has not been able to maintain a stable environment for the child since the separation. The father testified that she has moved at least 4 times since the separation and at times she was couch surfing with people she did not even know. The mother did not address the issue of her housing in her affidavit and was vague in her evidence as to where she lived, for how long and with whom.
38The mother did not express any concern about the impact of these moves on the child. The mother did not provide any evidence about her current accommodations. If she is able to remain in Canada, she did not provide any evidence about where she would be living.
39If the mother is deported, she will live in St. Vincent with her mother, grandmother and brother. She testified that they live in a 4 bedroom house and there is a separate room available for her and the child. The father testified that the mother told him that the family lives in a 2 bedroom house where currently the maternal grandmother, the maternal great grandmother and the maternal uncle reside and there would therefore not be room for the mother and child to have a separate room. It would have been helpful if the mother had produced some photographs of the home as the court is now left with two divergent descriptions of the accommodations in St. Vincent. I find that the father's description of the housing and general life in St. Vincent to be more credible.
40The father after the separation lived with his aunt. He now has accommodations through his employment namely, a two storey, two bedroom plus den apartment with a separate room for the child.
(d) The ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessities of life and any special needs of the child
41The child has no special needs, and according to the note from the nurse practitioner who oversees her health needs she is developing normally and meeting all of her milestones. The mother testified that the medical clinic she attended provided services to people in her situation. The mother's evidence was not clear with respect to why there would be any difficulties obtaining medical care for the child or if so what those difficulties were. The father testified that he put the mother and child on his extended medical coverage plan so their medical and dental needs can be met.
42The mother testified that she has recently been able to enroll the child in a daycare. She provided no details, not the location, how she funded the cost or the name of the daycare, except to say it was arranged through Red Door. The mother also testified that if she is deported to St. Vincent she will care for the child at home and then enroll the child in daycare and school. The mother's affidavit or her testimony provided no details about the particular daycare or school.
43The father deposed that there is a daycare in his apartment building and a school close by. The father testified that if there is not an immediate opening for the daycare, then his aunt who recently retired and is caring for her grandchild would also be able to care for Serrenity. Either he or his spouse could drive her back and forth as they have flexibility in their employment.
44I have concerns that the mother did not take steps to normalize her immigration status and as a result she has moved around and not provided stability for the child. The mother blames the father for her lack of status as he promised to obtain legal status for her when they were married. The father's affidavit states that he did not know of the mother's immigration status until she told him she was pregnant and that she has not kept him advised of her immigration status or the legal proceedings.
45Once the parties separated, the mother should have recognized that she needed to ensure that she could remain in Canada and made the necessary applications. Instead, it appears from the mother's evidence that she chose to remain living under the radar, moving from place to place and working for cash. According to the father, when the immigration authorities came to remove the maternal grandmother they discovered the mother also had no legal status in Canada and arrested her also.
46The father deposed that a friend of the mother's called him to get the child when she was detained whereas the mother testified that she called the father directly. In any event, the father picked up the child and immediately made arrangements for his sister to care for the child while he worked. He ensured the child spoke to her mother daily. When he was told by the mother that her friend wanted to pick up the child to take her to see the mother in detention, he agreed as he appreciated that the child needed to maintain contact with her mother. But then when the mother was released from detention, she kept the child and only sent the father a text stating they were fine. Thereafter, for some time the father had no idea where they were.
47The mother was unclear about what supports she has in Canada if she is able to remain here. The mother listed her aunt and uncle as supports on the 35.1 affidavit she filed with her application. The mother was originally planning to call her uncle as a witness but she did not and there was no explanation provided as to why he was not called. The father testified that he recently spoke to the mother's cousin who was also deported. Although I did not admit the contents of the father's conversation as it was hearsay, the mother never explained if her uncle and aunt or this cousin had been part of her plan or if she had other relatives to support her in Canada. She did not explain if she had relatives in Ontario why her and the child had not stayed with them and why she was forced to move around.
48If the mother is deported, she has the support of her extended family who reside in St. Vincent but there was no admissible evidence as to the extent of the assistance they can provide. What is undisputed is that the maternal grandmother also wished to remain in Canada and sent for the mother to come here when she was a teenager. The father deposed that the mother told him that the family business is not doing well and basically her family is "sitting around" and that life is very hard in St. Vincent. The mother disputed this evidence and painted a picture of how well her family is doing running a restaurant and a bar.
49I have no concerns that both parties are willing and capable of providing the child with guidance and education. But the father has greater financial security than the mother and a greater support network and he is in a better position to provide the child with the necessities of life while she is in his care. If the mother remains in Canada, it is not clear what supports she has or what her financial circumstances will be. If the mother is permitted to take the child to St. Vincent, her financial circumstances and ability to provide the necessities of life are unclear. The mother is depending on the father paying child support in accordance with the child support guidelines which if she lived in St. Vincent would provide her with sufficient funds to meet the child's needs.
(e) The plan proposed by each person applying for custody or access to the child for the child's care and upbringing
50The father has proposed a reasonable plan to care for the child. Ms Barry-Green, who is an important part of the fathers' plan, has a degree in early childhood education, worked as an education assistant and is now in her second year of an online university program through Carlton University to obtain her undergraduate degree in child psychology. The father has many supports in the Greater Toronto Area. The father deposed that in addition to his common law spouse, he has a sister, nieces, aunts, cousins and close friends in the Greater Toronto Area who frequently visit and have a close relationship with Serrenity and can assist him. His mother who resides in Montreal attended court on the first day of the trial and the father has another sister who resides with her family in Alberta. His relatives visit frequently. As previously indicated there is a daycare in his apartment building and pending there being an opening, his aunt can care for the child.
51If the mother remains in Canada, the father is still seeking primary residence due to his concerns about the mother's lack of stability that has impacted on her ability to care for the child. He deposed that he wished sole custody but would be content with joint custody. He deposed that the parties communicate respectfully with each other. They separated on good terms and he was co-operative with the mother and helped when she needed his help. He has been involved in all of the decisions regarding the child. The father further believes that it is his daughter's best interests that he be fully involved in her life.
52The mother's plan is more precarious as her immigration status is still pending. The mother has applied for a stay of her removal order and also applied to remain in Canada on a H & C basis. These decisions were still pending at the end of the trial. Counsel for the Minister advised the court that it has agreed to defer the mother's removal from Canada until this court rendered its decision. Counsel for the Minister also advised the court that if the mother is removed she would be unable to apply to re-enter Canada for one year.
53The mother provided no details of her education or employment plan if she is allowed to remain in Canada. If she resides in St. Vincent, she testified that she could easily be a teacher as she has completed high school and a college degree is not necessary in St. Vincent to be a teacher. She also testified that she really was interested in becoming a nurse, that she could easily be accepted into nursing school, and due to the shortage of nurses the government pays students while they study. She provided no evidence to corroborate this testimony. As it appeared to the court from the mother's evidence in chief that she was planning to go to the United Kingdom to study, the mother provided reply evidence to clarify her evidence in chief and stated that she only meant that nurses were so badly needed that after her training she could even get a job in the UK but she had no plans to move there.
54With respect to her family's ability to assist her financially, the mother provided no corroborating evidence and could then not explain why if life was so comfortable for her mother in St. Vincent and there were so many jobs and educational opportunities why both her and her mother had done everything they could do to remain in Canada.
55I do not find the mother's evidence about her plan to live with her daughter in St. Vincent to be reliable. I draw an adverse inference from the fact the mother did not provide copies of any of her immigration applications, especially her H & C application.
56I find that if the mother was permitted to remove the child to St. Vincent her lifestyle would be greatly diminished. I find that she would not have the opportunities that can be afforded to her in Canada if she is able to reside here legally with her mother or with her father.
57Although the mother stated that she would encourage a relationship with the father and allow the child to travel to Canada, she provided no evidence of how that would be accomplished, especially at Serrenity's age, and she had not considered how the child could travel on her own. The mother did propose that the father could travel to St. Vincent to either visit the child there, or that he could travel to St. Vincent and bring the child back with him to Canada and then travel back with her to St. Vincent. The mother did not provide any evidence of the cost of travel nor did she propose that she would agree to reduce his child support obligation.
58The father proposed that if the mother was deported that he would facilitate access but he also did not provide any evidence of the cost or practically how this could be done.
59Both parties were agreeable to Skype, Facebook and other internet and telephone access.
60The father expressed concerns about how difficult it was for him to be raised in Grenada as a child and then be returned to Canada as a teenager. He found it difficult to adjust to the education system and to adjust emotionally and socially and he did not wish his daughter to have the negative experiences he had. He wanted his daughter to have all of the opportunities Canada could offer her.
61By his actions, I find that the father is the parent who understands the importance of the mother's role in the child's life and I find that he would facilitate that contact more than the mother. For example, the father indicated that in the last month, he has permitted the mother more contact with the child as he understood the mother would be removed from Canada and he appreciated that she would want to spend as much time with the child as possible. The mother, on the other hand, reaches out to the father when she needs him to do something or when she needs things from him. She lacks an appreciation of the importance of the father's role in the child's life.
62Although there will be difficulties maintaining a relationship with both parents if the mother is permitted to remove the child from Canada, based on the past history I find that it is more likely that the father will facilitate the child's relationship with her mother. If the child is removed, she will lose the opportunity to develop a relationship with her extended paternal family.
(f) The permanence and stability of the family unit with which it is proposed that the child will live
63The father and Ms Barry-Green have resided in a committed relationship for over a year. The father has, except for a brief time, been steadily employed and is financially stable.
64The mother's plan is not as permanent or stable as the father's plan given the uncertainty of her immigration status. Either in Canada, if she is permitted to remain, or in St. Vincent her plan is in flux. She will need to find permanent accommodations and a job or some further training regardless of where she is living.
(h) The relationship by blood or through an adoption order between the child and each person who is a party to the application
65As the parties are both the biological parents of the child this is not a factor.
7. Analysis of Custody and Access
66In the case of Ffrench v. Williams, Justice Sherr thoroughly reviewed the legal principles in parenting cases when one parent is subject to a deportation order as follows:
(a) There must be a genuine lis for the court to exercise its jurisdiction to make a custody or access order.
(b) There must be a genuine lis for the court to exercise its jurisdiction to make a non-removal order.
(c) The family law process should not be used for the sole purpose of frustrating the deportation of persons who have been ordered removed from Canada pursuant to the relevant immigration legislation.
(d) Non-removal orders are not to be made lightly.
(e) Each case must be carefully examined on its facts.
67In this case, there is a genuine issue between the parties with respect to what custody and access arrangements are in the child's best interests.
68Both parents have a close relationship with the child. This child, as with most children, requires both parents to be involved to ensure that all of her emotional, psychological, social and physical needs are met.
69The mother's immigration appeals and H & C application may be granted. If not, she will be allowed to apply to re-enter Canada within one year. No evidence was presented by the mother about how easy or difficult this may be if the child remains in Canada. The mother could have filed an affidavit from her immigration counsel to explain her options and the likelihood of the success of her pending legal proceedings or provided a copy of her various immigration motions, applications and appeals.
70The parties both come from similar cultural backgrounds as does the father's spouse. The mother is raising the child as a Christian and the father has no objection to this. The parties were able to make arrangements for a parenting schedule before the court proceedings and they entered into a consent temporary order once the case was before the court. There is no evidence of any serious conflicts or different views or philosophies about raising a child. Both parents want the child to have every opportunity for good health care, a good education and opportunities to enjoy various activities. The mother is fighting extremely hard to stay in Canada to provide those opportunities for this child.
71The Ontario Court of Appeal in Kaplanis v. Kaplanis set out the following principles in determining whether or not a joint custody order is appropriate:
There must be evidence of historical communication between the parents and appropriate communication between them.
It cannot be ordered in the hope that it will improve their communication.
Just because both parents are fit does not mean that joint custody should be ordered.
The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
No matter how detailed the custody order, there will always be gaps and unexpected situations and, when they arise, they must be able to be addressed on an ongoing basis.
The younger the child, the more important communication is.
72Courts do not expect perfect communication, but only that a reasonable measure of communication and co-operation is in place and achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. The historical ability of the parents to parent prior to the separation and after the separation but prior to court proceedings can be a good indication if the parents will be able to co-operatively parent after the litigation is over.
73The courts have also considered that even when communication is not perfect, a joint custody order may be necessary where one parent has interfered with the relationship of the other parent with the child. In this case, there is evidence that the mother has not always kept the father advised of her whereabouts and denied the father access. Although some of the mother's conduct and lack of stability may be a result of her uncertain and illegal status in Canada, nevertheless she has deprived the father of contact with the child from time to time. A joint custody order will ensure the father remains involved in the child's life if the mother is permitted to remain in Canada. The mother has been able to stay in this country without any legal status for over seven years and therefore there is also a concern that if she is not able to remain legally she may further resort to illegal means to reside here. It is my experience that a joint custody order will provide the father with a greater ability to obtain information and to obtain assistance from various authorities to locate the child if this should become necessary.
74I find that both parties have the ability to communicate and co-operate with respect to decisions regarding the child. However, in the event that the parties are unable to agree on some decisions, it is prudent to make an order that specifies their decision making authority. I find that the mother should be given final decision making authority regarding any medical issues as she has chosen the medical caregivers for the child and has ensured the child's health needs are met. As the mother is more involved in the religious life of the child she should also have final decision making with respect to any issues regarding the child's religious training.
75As there is uncertainty as to where the mother will be residing, I find that the father should be able to make educational decisions and choose the child's school once she is of school age. Given his own background he is the parent who is most concerned and able to make appropriate educational decisions for the child. He and his spouse's living arrangements are more settled and stable and they can organize and arrange for the child to be transported to and from school. Once the child commences school, the mother may have to move closer to the father's address, or the child will reside with the father during the week and the mother on most week-ends.
76As the mother has been the primary caregiver of the child, I find that it is in the child's best interests to remain in her primary care, as long as she is residing in Canada, with extensive access to the father.
77If the mother is removed from Canada to St. Vincent, I find that it is in the child's best interests to remain in the care of the father in Canada. His plan better addresses the needs of the child for stability and permanence and ensures that she will continue to enjoy the opportunities that Canada offers and that the mother seeks for the child. The father is the parent more likely to facilitate the mother's relationship with the child.
78If the mother is removed from Canada, then the father shall have sole custody as a joint custody order is not practically workable.
8. Access and Non-Removal Orders
79The mother seeks an order that she be permitted to remove the child from Canada so that if she is deported she can bring the child with her. In this scenario, the mother does not seek an order for specified access to the father.
80As the father is seeking an order that the child be placed in his care whether or not the mother is removed from Canada, he seeks a continuation of the temporary non-removal order but only as it relates to the mother.
81If the mother is permitted to remain in Canada, I find that a specified access order for the father is necessary to ensure that the father is able to maintain his important relationship with the child and so that if there are any issues with the mother interfering with his access, the access order can be enforced. Neither party made any specific submissions as to the father's access but in the circumstances I find that the father should be able to have the child in his care three out of four week-ends a month and equally share the holidays. Once the child commences school, if the mother does not live in the same school district as the father, I find that the order should be reversed with the child residing with the father during the week and with the mother for three out of four week-ends a month.
82If the mother is deported, then the parties should facilitate contact through Skype, Facebook and other electronic internet and telephone access.
83At the present time there is a mutual non-removal order. The Ontario Court of Appeal in the case of J.H. v. F.A. has clearly stated that the purpose of a non-removal order under the Children's Law Reform Act is not to be used to frustrate the deportation of persons who have been ordered removed from Canada pursuant to the relevant immigration legislation, but to prevent parents removing children from the jurisdiction in contested family law proceedings.
84In this case, there is no basis for an order preventing the father from removing the child from Canada as there is no evidence to suggest that he intends to move permanently from the country. The father should be permitted to travel with the child without the consent of the mother and obtain government issued documents for the child, if the mother is removed from Canada.
85I find that there is a need for a non-removal order against the mother removing the child from Ontario separate and apart from her desire to take the child with her to St. Vincent if she is ordered deported. I find that there is a risk that the mother may attempt to remove the child from Ontario if she feels she is on the verge of being deported without the child. The mother has been able to avoid detection and remain in this country for a considerable number of years and there is a risk that she could again go underground and remove the child from Ontario.
86There were no submissions made by counsel for the mother or the Minister about the impact such a non-removal order will have on the mother's immigration status or her pending H & C application. The caselaw suggests that a non-removal order made in a family law proceeding will not stay an order for deportation. However, my role is to make an order that I find is in the best interests of the child without regard to the impact my order may have on the mother's immigration status.
9. Child Support
87As long as the mother remains in Canada, the father is willing to pay child support in accordance with the Child Support Guidelines. The father made no further submissions on this issue. The mother did not contest the evidence with respect to the father's income and both parties are content with the current temporary child support order being made a final order.
88If the mother is deported, the father's child support obligation shall be terminated. The parties shall both advise the Family Responsibility Office immediately. If the mother does not advise the Family Responsibility Office or if a formal order of termination is required, the father may submit a Form 14B with his sworn affidavit confirming the date the mother was removed from the jurisdiction so that an order may be made terminating the father's child support obligation.
89As there is no evidence with respect to the mother's ability to earn an income in St. Vincent, I do not make any order with respect to her obligation to pay child support to the father if she is deported.
90The mother has claimed an order for retroactive child support as she testified that the father did not support the child since the separation. She requested child support not just from the final date of separation but also for the prior period of separation. The mother did not provide any evidence with respect to the dates of the prior separation or why she did not commence court proceedings earlier or if she requested the father pay a fixed amount of child support. The father stated that he always supported the child by providing the mother with money and he also provided diapers, milk, clothing, bottles, food, toys and whatever the mother requested. He also paid the mother's rent several times. He testified that after the separation the mother still had access to their joint bank account. I accept the father's evidence on this issue and find that both parties were content with the informal child support arrangements, that the child's needs were met and that the mother did not request a formal amount of child support until the court proceedings. I am not prepared to order retroactive child support.
10. Final Order
91There will be a final order as follows:
a) The parties shall have joint custody of the child Serrenity Autumn Gebon born on October 31, 2012 as long as the Applicant remains in Canada.
b) The parties shall consult with each other on all major issues regarding the child. In the event the parties cannot reach an agreement, the Applicant shall have the final say over medical and religious issues and the Respondent shall have the final say over educational issues to include before and after school care once the child commences school.
c) Prior to the child commencing school, the Applicant may arrange daycare for the child. The Applicant shall immediately advise the Respondent of the name and location of the child's daycare and the Respondent shall be entitled to communicate directly with the daycare.
d) The Applicant shall advise the Respondent of the child's doctor and dentist and advise the Respondent immediately of any change in the health practitioners who are caring for the child. The Respondent shall be entitled to communicate directly with these practitioners.
e) As long as the Applicant remains in Canada, the child shall reside in her primary care. The child shall reside with the Respondent on the first three week-ends of every month from Friday at 7:00 p.m. to Sunday at 7:00 p.m. The Respondent or his designate shall be responsible for transporting the child.
f) As long as the Applicant remains in Canada, the child shall attend a school in the Respondent's school district. If the Applicant does not reside in the school district where the child attends school, the residential schedule shall be reversed during the school months with the child residing with the Respondent during the week and with the Applicant on the first three week-ends of each month.
g) As long as the Applicant resides in Canada, the child shall reside with each party for holidays as follows:
(i) Mother's Day with the Applicant and Father's Day with the Respondent from 10:00 a.m. to 7:00 p.m. regardless of the regular schedule;
(ii) Alternate weeks during July and August;
(iii) In even years as of 2016, the child shall be with the Respondent from December 24th at 7:00 p.m. to December 25th at 2:00 p.m. and with the Applicant from December 25th at 2:00 p.m. to December 26th at 7:00 p.m. This schedule shall be reversed in odd years as of 2017.
h) The Applicant shall advise the Respondent of her current address and telephone number and shall advise him immediately of any change in her contact information.
i) If the Applicant is ordered to be deported to St. Vincent, she shall immediately advise the Respondent of her removal date and arrange for the child to be placed in the care of the Respondent.
j) If the Applicant is deported to St. Vincent, the above parenting schedule and decision making authority shall no longer be in force and the Respondent shall have sole custody of the child. The Respondent shall execute any necessary directions and consents to permit the Applicant to communicate directly with any service provider for the child, including doctors, dentists, schools or daycare providers. The Respondent shall immediately advise the Applicant of the names and contact information for these providers.
k) If the Applicant is deported to St. Vincent, the access shall change as follows:
(i) The Respondent or his designate shall take the child to St. Vincent at least once a year for a minimum of two weeks;
(ii) If the Applicant is permitted to visit Canada, she shall have liberal and generous access to the child;
(iii) The parties shall arrange for Skype, Facebook and other electronic-internet communication at a minimum of once a week for at least 15 minutes. The Applicant shall also be permitted reasonable telephone access to the child.
l) The parties are at liberty to arrange any further or other access.
m) The Applicant shall not remove the child from the Province of Ontario without a prior court order.
n) The Respondent is at liberty to travel with the child outside of the Province of Ontario. In the event the Applicant is deported to St. Vincent, the Respondent shall be permitted to obtain a passport for the child or any other government issued documents and travel with the child without the Applicant's written authorization or consent.
o) All police officers having jurisdiction wherever the child is located are authorized to enforce the terms of this order. In the event the Applicant does not comply with the terms of this order, the police are directed to locate, apprehend and deliver the child to the Respondent pursuant to section 36 of the Children's Law Reform Act.
p) Based on the Respondent's income of $32,100 per year, he shall pay the Applicant child support of $259.00 per month as of January 1, 2016. The Respondent shall receive credit for any support payments made since that date.
q) If the Applicant is deported to St. Vincent, child support shall terminate. The parties are to immediately notify the Family Responsibility Office. If such notification is not made or acceptable to the Family Responsibility Office, the Respondent shall be permitted to apply to the court without notice to the Applicant, by means of a Form 14B to obtain a summary order terminating his child support obligation.
r) Both parties shall annually exchange their income tax returns and Notices of Assessment, or equivalent forms if the Applicant is residing in St. Vincent, by June 30th each year as of June 30th 2016. If the parties cannot agree on child support, either one may apply to the court.
s) Support Deduction Order to issue.
92I do not find that this would be an appropriate case for costs to be ordered.
Released: January 8, 2016
Justice Roselyn Zisman