Court File and Parties

Date: March 31, 2020

Court File Number: 30-2020

Ontario Court of Justice At Orangeville

Between:

Luiza Magdalena Placha Applicant

and

John Bradley Bennett Respondent

Heard: March 31st, 2020

Released: March 31st, 2020

Justice B. E. Pugsley

Appearances: None – heard ex parte in Chambers

Endorsement

1. The parties are the parents of a child, Alyssandra Daniella Bennett (F)(DOB: […], 2011). The parties never married and separated in or about October of 2013.

2. The parties never formalized their relationship with regard to their child by agreement or court order. The Applicant (mother)'s material clearly supports a status quo ante whereby the parties mutually arranged that Alyssandra would be in the sole care and custody of the Applicant (mother). All of the child's care has been under the supervision of the Applicant since at least the separation of the parties.

3. The Respondent (father)'s access history has been sporadic and included a period three years ago during which access was complicated by the fact that he was unable to communicate with nor approach the geographical location of the Applicant due to restrictions placed upon the Respondent as part of an 18 month long probation order imposed after he was convicted at Brampton, Ontario, court of uttering threats against the Applicant (see Exhibit "G" to the affidavit of the Applicant sworn on March 31st, 2020).

4. After the Respondent's probation order ended in the fall of 2018, access was arranged between the parties, starting with supervised access and later being expanded to over nights.

5. Early in 2020 the Respondent asked if he could travel with the child to visit relations on his side of the family in Newfoundland and Labrador. The parties agreed that this would take place over the March 2020 school break. As the school break started the Government of Ontario, responding to the escalation of the COVID-19 pandemic, extended the break by a further two weeks. The parties discussed when the child would be returned by the Respondent but did not reach a consensus – the Applicant states that she agreed to a further week but that the Respondent wanted a longer extension of his visit.

6. The Respondent has now refused to return the child to the care of the Applicant (mother) and has it appears made plans to remain with her in Newfoundland and Labrador. In his message exchanges with the Applicant it appears that he has clothed his refusal in whole or in part on the basis that it would be dangerous to the child and to him to come back to Ontario.

7. The Applicant has retained counsel and moved in Chambers for an order that the child be forthwith returned to her care with a direction that the police assist in the enforcement of the requested order. The Applicant's material was emailed to the Respondent for his information but there has been no material received from him as of today.

8. The Applicant seeks broad based relief. Some of that relief (for example the requested restraining order) is not supported on an emergent basis by the material received to date. What is entirely supported by the Applicant's motion is an order that the child be forthwith returned to the custody of the Applicant (mother) so that the child may be returned to the child's usual residence in Dufferin County Ontario.

9. The parties agreed long ago that the Applicant (mother) would have custody of the child. For parts of the child's life since separation the Respondent (father) was not seeing his daughter at all, nor did he take any steps to assert a remedy to that situation. The child's only residence is in Dufferin County Ontario – she goes to school here and all of her community contacts are here. She has never resided with the Respondent more than a few days at a time. The trip to Newfoundland and Labrador was intended by everyone to be a short holiday trip. The Respondent's own residence is in the Greater Toronto Area.

10. It follows therefore that the Ontario Court of Justice at Orangeville has jurisdiction over this matter based upon the ordinary residence of the child, of the parties, and on a balance of convenience.

11. The Respondent may have good intentions to protect his child from exposure to the virus but such intentions cannot be used by him to unilaterally change the custody of the child from the mother to the father, nor unilaterally change her province of residence. The Applicant can be trusted to protect the child from exposure to the virus during the return of the child to her proper home in Ontario.

12. After Alyssandra is returned to Ontario the parties may continue their dialogue about the nature and extent of her contact with the Respondent. The law requires that those steps take place here in Orangeville.

13. I therefore make the following temporary Order:

Order

1. The Applicant (mother) shall have custody of the child of the parties Alyssandra Daniella Bennett (F)(DOB: […], 2011).

2. The Respondent (father) shall have such access to the said child as may be agreed to between the parties in writing, failing which the Respondent's access shall be suspended forthwith pending further court order.

3. The Respondent shall deliver custody of the said child to the Applicant (mother) at the Orangeville Police Service headquarters 390 C Line, Orangeville, Ontario on or before 11:59 am on Saturday April 4th, 2020.

4. If the Respondent (father) does not comply with paragraph 3, above, then the Respondent (father) shall forthwith deliver custody of the said child to the Applicant (mother) at the ferry terminal at Channel-Port-Aux-Basques NL on Tuesday April 7th, 2020, at 12:15 pm at the Marine Atlantic Ferry Terminal.

5. The parties may agree in writing to vary the dates and times set out in Paragraphs 3 and 4, above, save and except that in any event the said child shall be delivered into the custody of the Applicant (mother) not later than April 8th, 2020, at 11:59 pm. For greater certainty, the Respondent (father) shall fully cooperate in any steps required to have the said child delivered to the custody of the Applicant mother forthwith.

6. The Respondent's compliance with the above paragraphs may be considered as a factor with regard to the issue of costs and disbursements herein.

7. The Ontario Provincial Police, Orangeville Police Service, Royal Newfoundland Constabulary, The Royal Canadian Mounted Police and all other police services are directed, requested, and required to enforce this order. In particular the police are directed to apprehend and return the said child to the Applicant (mother) in accordance with this order. If necessary, the police may enter a private residence to effect the enforcement of this order.

8. The Respondent is to be served with this order herein via email to […] and shall be served by the Applicant by special service as soon as possible.

9. Adjourned to April 15th, 2020, at 11:00 am (EDST) for a motion review (30 min); parties shall appear by audio conference call as arranged through the trial coordinator at Orangeville. Documents, including unsworn or non-original documents, may be received by the court office at Orangeville by fax and/or email as arranged though the said trial coordinator.

10. Costs, if any, are reserved to the court disposing of the motion review herein.

Justice B. E. Pugsley Ontario Court of Justice at Orangeville