Aryee v. Nyantakyi, 2020 ONSC 7697

CITATION: Aryee v. Nyantakyi, 2020 ONSC 7697

DIVISIONAL COURT FILE NO.: 566-20

DATE: 2020/12/18

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

ELIZABETH NYANTAKYI

Applicant (Respondent in Appeal)

– and –

JAMES BENNETT ARYEE

Respondent (Appellant, Moving Party)

Deanna Paolucci, Counsel for the Applicant (Respondent in Appeal)

David Gray, Counsel for the Respondent (Appellant in appeal)

HEARD: Motion for stay pending appeal held on December 11, 2020-Via Zoom

AMENDED REASONS FOR decision

The text of the original Reasons for Decision of December 11, 2020 was corrected on December 18, 2020, at paras. 17 and 46 and the explanation of the correction is appended.

doyle j.

1The Respondent father (the Appellant in this appeal) moves for a stay pending appeal of the order of Justice Kershman of the Superior Court dated November 16, 2020 which ordered the following:

• The father to provide a notarized copy of the passport and OHIP card of the child of the marriage, Phillip Jesse Aryee, to the Respondent mother within 10 days; and

• Costs in the amount of $2,000 in favour of the mother to be paid by the father within 30 days.

2The mother requests a dismissal of the motion and costs in the amount of $5,000.

3Rule 63.02(1) of the Rules of Civil Procedure R.R.O 1990, Reg. 194 permits a stay of an order whose decision is being appealed on such terms as are just.

4For the reasons that follow, the motion for a stay is dismissed.

Brief Background

5The parties were married in August 2001, separated in October 2004, and divorced in November 2006. Their child, Philip born October 7, 2003 is severely autistic, non-verbal and requires assistance in his day to day functions.

6Due to a number of parenting concerns, the mother brought a motion to change the 2018 Final Order of the Maryland Court which granted joint custody to the parents and a week about parenting schedule in Ottawa. There is no provision dealing with which parent is to be the holder of the child’s documents.

7The mother was living in Ottawa as a diplomat from Ghana with a term to end March 2020. Due to the pandemic, her term was extended until August 31, 2020. She returned to Ghana but applied to return to Canada with a travel visa so she could continue the week about access with Philip. She has not seen Philip since August 2020.

8The Canadian government regulations were amended due to the Covid-19 outbreak, which required that foreigners entering the country must have immediate family in the country to gain entry. As she was not able to obtain the father’s cooperation to obtain a copy of Philip’s documents, the mother obtained an Order dated October 23, 2020 to bring an emergency motion to deal with this relief.

9At the motion before Justice Kershman on November 9, 2020, the father argued that he was not prepared to disclose the passport as it contained his own personal information and he feared that the mother would abduct the child if she obtained this document. Since she is in Ghana, there was no need to obtain a copy of the child’s OHIP card.

10At the November 13, 2020 hearing set for Justice Kershman to provide his oral reasons, the father advised the Court that there were other documents that could suffice other than the child’s passport.

11Nevertheless, the Court ordered the delivery of a notarized copy of the passport to facilitate the mother’s travel visa. He also order a notarial copy of the child’s OHIP card to be delivered to the mother.

12The transcript of the oral reasons were not available for this motion; however, a copy of the audio recording has been shared with counsel and this Court.

13The Court did not accept that the child’s passport contained the father’s personal information and the Court found that it is necessary for the mother to obtain a copy of his passport to enter Canada and a copy of the OHIP card to access medical services.

Father’s Position

14The father argues that applying the test in R.J.R.-Macdonald v. Canada (A.G.), 1994 117 (SCC), [1994] 1 S.C.R. 311, should lead to the grant of a stay. The Lefebvre v. Lefebvre decision 2002 17966 (ON CA), [2002], 167 OAC 85, confirms that this test applies to family law matters with the overriding consideration being the best interests of the child.

15The father submits that there is a serious issue to be tried as to the correctness of the decision under appeal, that he will suffer irreparable harm if the stay is not granted, and that the balance of convenience favours granting a stay.

16The father argues that the motion Judge erred as follows:

• That, according to immigration law, the return of the mother to Canada can be accomplished by proof of the child’s citizenship certificate and his passport is not required;

• That there is a flight risk that the mother will abduct the child because:

• In 2018, the mother attempted to take the child across the border without his consent;

• The mother’s motion to change indicates an intention to move the child to Ghana; and

• The mother can arrange for the falsification of travel documents if she is in possession of the notarial copy of the child’s passport.

17In addition, he submits that:

• There was procedural unfairness as he was not given time to prepare his documents for the urgent motion as he was served with the mother’s motion materials on October 16, 2020 and the matter was deemed urgent on October 23, 2020; and

• For the main motion, he was served with the materials on October 28, 2020 and the motion proceeded on November 9, 2020. He was permitted to file only one affidavit pursuant to the Order dated October 23, 2020.

Mother’s Position

18The mother submits that the father has failed to satisfy the criteria necessary to obtain a stay.

19The best interests of the child is an overriding consideration.

20There is no evidence before the Court that the mother will abduct the child.

21The father is attempting to delay the process thereby preventing her from returning to Canada and resuming the equal parenting time with their child. She has brought a contempt motion in Family Court to deal with the enforcement of the order.

Fresh evidence

22The father has filed the affidavit of Kehinde Olalere dated December 7, 2020, a lawyer practicing immigration law, citizenship law and refugee law in Canada since 2010. He has prior experience of 17 years with the Department of Citizenship and Immigration Canada as a manager of 17 employees.

23Mr. Olalere purports to provide an expert opinion to the Court. Time constraints did not permit the father to meet the requirements under the Rules.

24He indicates that the affidavit from this very knowledgeable individual confirms that, due to the COVID-19 restrictions, exceptions have been made to immediate family members and family status can be established by producing the following documentation:

• Copy of the birth certificate of the child listing the names of both parents (to establish relationship); and

• Copy of the Canadian citizenship certificate for the child OR biodata page of child’s Canadian travel passport (to establish status in Canada).

25The father submits it was not necessary for the motions Judge to order production of the child’s passport. Therefore, the motions Judge erred in law.

26The father referred the Court to a child protection matter heard by the Supreme Court in Catholic CAS of Metro Toronto v. M.C. 1994 83 where the Court stated that the R. v. Palmer [1980] S.C.C. 759 applied but that in accordance with the philosophy of the child protection legislations it is important that the Court have accurate and up-to-date information regarding the children in the child welfare courts.

27I prefer the reasoning set out in Gayle v. Gayle 2020 ONSC 5810 dealing with a family matter where the Divisional Court applies the test in R. v. Palmer .

28In accordance with R. v. Palmer, the father will have to satisfy the following:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial,

(3) The evidence must be credible in the sense that it is reasonably capable of belief.

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

29No motion for fresh evidence has been filed but this relief was set out in the father’s Notice of Motion requesting leave.

30Regarding the first prong of Palmer, the Court notes that the mother’s motion was brought on an urgent basis and there were timely filings required by both parties. Although the motion was served in accordance with the timelines set out in the Family Law Rules, the father in his affidavit filed indicates that he was pressed to prepare his paperwork, he was recovering from minor eye surgery and his counsel also had pressures of other matters.

31Therefore, I found that given the above, there was not a lack of due diligence on the father’s part for failing to provide this evidence at the original motion.

32Regarding the second prong, I find that it is relevant to the issue of the correctness of the order as it deals with what documentation is necessary to permit the mother to re-enter Canada with a travel visa.

33Thirdly, this evidence contained in the affidavit of the immigration lawyer is credible as the deponent has vast experience in immigration law.

34Finally, I find that had such evidence been filed at the motion, it could have affected the motions judge’s decision and he could have considered other options other than ordering the production of the notarized copy of the passport. Therefore, it could have affected the result.

35Therefore, the Court will consider this fresh evidence.

Analysis

Serious issue to be tried

36For an interim order, the Court in Belton v. Spencer, 2020 ONCA 623, stated that the appellant must show that the motion judge acted upon a wrong or inapplicable principle of law or exercised his discretion arbitrarily or capriciously.

37The correctness test is a low threshold, higher than frivolous or vexatious but lower than the probable success on appeal (see Govan v. Dobron 2018 ONSC 5033 at para. 27).

38The father questions the mother’s request for this specific document when other documents suffice. Regarding the fear of abduction, the mother explains her attempts to visit her relatives in the U.S. in 2018 with the child and the father’s resistance to these trips.

39Based on this fresh evidence, it would appear that the father has an argument that other documents, i.e. Certificate of Citizenship, would have sufficed for the mother to obtain a travel visa. He does have a case that other document would meet the mother travel visa requirements.

40Neither counsel was able to advise the Court whether the child has a Certificate of Citizenship.

41Regarding production of the OHIP card, there is little merit in the father’s argument that the motion’s judge erred in ordering a notarized copy to the mother to permit her to be reimbursed for health care costs covered by the provincial plan and to allow her to access health services for Philip when he returns to Canada.

42Regarding procedural fairness, the evidence at the motion demonstrated that the mother who has not seen the child since August 2020, was trying to return to Canada and needed copies of the child’s documents for her travel visa and she was given Court permission to bring an urgent motion.

43I note that the father was recovering from minor eye surgery and he was given time to respond to the materials.

44The Court permitted him time to respond to the request for an urgent motion.

45He was served with the materials for the motion on October 28, 2020. The motion was heard on November 9, 2020.

46The Family Law Rules, r. 14(11) requires service of a motion six days before the motion is to be heard. The father was accorded this time. I do note that he was only permitted to file one affidavit pursuant to the Order dated October 19, 2020.

47Based on the above, I do not find that that the father has a strong case regarding lack of procedural fairness.

Irreparable harm

48In 754223 Ontario Ltd. v. R-M Trust Co., [1997] O.J. No. 282, at para. 46 (Q.L.), the court stated that the appellant must demonstrate that the evidence is sufficient to support a finding that the moving party would suffer such harm not that it is merely likely.

49In Closner v. Closner, 2019 ONSC 703, the Divisional Court stated this prong of the stay test must be focused on the child. It must be the irreparable harm to the child that must be avoided.

50There will be irreparable harm to the child if there is further delay in producing these documents. The child is a special needs child with severe autism and is non-verbal. The evidence establishes he utilizes various aspects of our medical system and the mother has been played a major role in connecting him to those resources. She was the child’s main caregiver until the 2018 Michigan Court Order.

51Delay in the mother returning to Canada could result in serious harm to Philip’s physical and emotional well-being.

52Regarding the child’s OHIP card, the mother has had to pay out of pocket medical expenses while the child was in his care as she did not have the card. Also, the absence of the health card, barred her from registering the child for further services and created obstacles to necessary medical attention as he requires medical attention as he is a special-needs, non-verbal autistic child.

53I am not persuaded that the father will suffer irreparable harm.

54He submits that the mother is a flight risk as she tried to enter the U.S. twice in 2018. The first time the mother wanted to attend a prayer meeting and despite a police officer’s advice that she could travel, she was stopped by border officials. The second time in 2018, the father would not permit the mother to attend the U.S. to visit the child’s aunts.

55He states that the mother kept the child from him for 12 years. (see para. 35 of his affidavit sworn December 5, 2020). No further details or copies of court orders or agreements regarding this allegation are provided.

56The mother refers the court to her motion to change but that has little information regarding these 12 years. However, in para. 25 of her affidavit dated December 9, 2020 she refers to a Memorandum of Understanding dated 2014 where the father acknowledged that Philip could remain in the U.S. because of the progress he was making. This is not indicative of estrangement but rather of the father’s involvement with the upbringing of the child.

57Therefore, there is no corroborating evidence on the record before me that the mother caused an estrangement of the child from the father.

58The mother indicates that she has a Ghanaian passport for the child and if she had wanted to abduct the child she could done this previously.

59She is proceeding through the proper channels, i.e. the Court system requesting in her motion to change the right to move with the child to Ghana. She has no intention to move the child illegally.

60I note that in his oral reasons, Justice Kershman made an Order that the child is not to be removed from Ottawa but his endorsement dated November 16, 2020 indicates that the child’s habitual residence will remain in Ottawa.

61This Court orders that the child will not be removed from the Ottawa area without a further Court Order or written consent of the other parent.

The balance of convenience

62When determining the issue of the balance of convenience, the Federal Court in Shaikh v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 159, stated that when determining the balance of convenience “the court must decide which of the two parties will suffer the greater harm from the granting or refusal of a stay”. (at para. 53)

63The father has not demonstrated that the balance of convenience favours a stay. The child is estranged from his mother who has played a prominent role in his life. She cannot be with him physically unless she has his documents that will permit her the travel visa to enter Canada.

64She had been involved with the child since birth and she was involved in the day to day upbringing and his medical needs. It is in the child’s best interests that he be reunited with his mother and that she resume playing an active role in his life and meeting his medical needs.

65The balance of convenience favours the child being able to benefit from provincial health services and allow his mother to return to Canada to be reunited with him.

Conclusion

66Therefore, having regard to the strength of the grounds of appeal, the absence of irreparable harm, the balance of convenience and the best interests of the child, I am not persuaded that the order compelling the production of Philip’s notarized passport and notarized OHIP card should be enjoined pending the hearing of the appeal.

67The Court orders that the child will not be removed from the Ottawa area without a further Court Order or written consent of the other parent.

68The motion is dismissed with costs to the respondent, fixed at $5000.

Justice A. Doyle

Released: December 18, 2020

Appendix

17In addition, he submits that:

• There was procedural unfairness as he was not given time to prepare his documents for the urgent motion as he was served with the mother’s motion materials on October 12, 2020 October 16, 2020 and the matter was deemed urgent on October 23, 2020; and

• For the main motion, he was served with the materials on October 28, 2020 and the motion proceeded on November 9, 2020. He was permitted to file only one affidavit pursuant to the Order dated October 23, 2020.

46The Family Law Rules, r. 14(11) requires service of a motion six days before the motion is to be heard. The father was accorded this time. I do note that he was only permitted to file one affidavit pursuant to the Order dated October 19, 2020. October 23, 2020.