Court File and Parties

DATE: October 11, 2024 COURT FILE NO.: D61061/13 ONTARIO COURT OF JUSTICE

B E T W E E N:

C.W. APPLICANT

SAMALIE NSUBUGA, for the APPLICANT

- and –

S.C. RESPONDENT

NOT ATTENDING

HEARD: OCTOBER 9, 2024

JUSTICE S.B. SHERR

Endorsement

Part One – Introduction

[1] The applicant (the father) has brought an ex parte application, pursuant to section 7 of the Family Orders and Agreements Enforcement Assistance Act (Canada) (the Act) in relation to the enforcement of an order related to parenting time.

[2] The father seeks an order authorizing a court official to make an application to the Minister of Justice Canada (the Minister) under section 12 of the Act to search for and release to the official the following information that can be found in federal information banks designated under section 2 of the Release of Information for Family Orders and Agreements Assistance Regulations SOR/2023-15 [1]:

a) The address of S.C. (the mother). [2] b) The name and address of the mother’s employer. c) The address of the parties’ child N.C., age 11 (the child).

Part Two – Brief background

[3] The parties had a relationship between 2010 and 2013. They have the one child together.

[4] The father issued an application in this court on June 5, 2013 for parenting time with the child. [3]

[5] On November 4, 2013, on consent, the court ordered that the father have parenting time with the child on three of every four weekends, plus extended holiday time.

[6] On March 4, 2014, the court ordered that the mother have final decision-making responsibility for the child.

[7] On February 27, 2017, the father issued a motion to change seeking primary residence and decision-making responsibility for the child. The mother opposed this motion.

[8] On June 8, 2018, the court suspended the father’s parenting time with the child pending an investigation by the Children’s Aid Society of Toronto (the society). On June 15, 2018, the parties agreed that the father’s parenting time with the child would be supervised by the society on a temporary basis. The parties subsequently agreed to parenting time taking place with the assistance of a third party.

[9] On October 30, 2019, on consent, the court made a final order that the father have parenting time with the child on three consecutive weekends each month, plus extended time on holidays (the existing order).

[10] The father attested that the mother blocked his parenting time with the child between May and October 2020. He subsequently had some telephone contact with the child and the mother. The father said he last had contact with the mother and the child on March 21, 2021.

[11] The father said he has been unable to locate the mother or the child since then.

[12] The father deposed he attended at court to obtain advice in April 2022. He said it took a long time for him to find a lawyer to take his case.

[13] The father issued a motion for contempt on January 17, 2024. He was unable to locate the mother to serve her with the motion.

[14] On March 4, 2024, after discussion with the father’s counsel, the court dismissed the contempt motion without prejudice to the father’s right to bring an enforcement motion.

[15] The father brought his enforcement motion. He sought the relief requested in this application and also sought orders for the society and the Director of the Family Responsibility Office (the Director) to disclose the mother’s address. The court adjourned the matter on June 18, 2024, and directed the father to serve the third parties with his motion.

[16] The matter returned to court on September 4, 2024. The society attended. The court ordered the society to provide the mother’s last known address in its records, pursuant to subsection 39 of the Children’s Law Reform Act. The society provided this address.

[17] The father had not served the Director with his notice of motion, so it was adjourned.

[18] Further, the father’s affidavit evidence did not adequately address the criteria set out in the Act for the court to make the orders sought by him in his ex parte application. The court adjourned his application to permit him to file a supplementary affidavit.

[19] The case returned to court on October 9, 2024. The Director advised the court that the last known address it had in its records for the mother pre-existed the existing order. The mother and the child are no longer at that address. Further, the father’s counsel advised the court that the mother and the child do not live at the address provided by the society on September 4, 2024.

Part Three – The legislative pathway

[20] Section 7 of the Act provides the basis for the court to enforce a family provision:

Application to court

7 Any person, body or service that is seeking to have a support provision established or varied or that is entitled to have a family provision enforced may, on application, which may be made ex parte, request that a court authorize an official of the court to make an application under section 12.

[21] A family provision is defined in subsection 2 (1) of the Act as follows:

family provision means a support provision, a parenting provision, a contact provision, a custody provision or an access provision.

[22] Subsection 2 (1) of the Act defines a parenting provision as follows:

parenting provision means a provision in an order made under subsection 16.1(1) or (2) of the Divorce Act or a provision of a similar nature in an order made under provincial law;

[23] Section 9 of the Act sets out what should be contained in an application for the enforcement of a family provision. Subsection 9 (2) of the Act specifically sets out what should be contained in an ex parte application. Section 9 reads as follows:

Ex parte application

(2) If the application is made ex parte, the affidavit referred to in paragraph (1)(a) must also

(a) state that reasonable steps have been taken to locate the person, child or children referred to in subparagraph (1)(a)(iii) and that the person, child or children has or have not been located; and (b) set out the particulars of those reasonable steps.

Marginal note: Ex parte application by individual

(3) If the application is made ex parte by an individual,

(a) the application must also be accompanied by the results of a recent criminal record check in respect of the applicant and copies of the documents referred to in subparagraph (b)(ii), if any; and (b) the affidavit referred to in paragraph (1)(a) must also

(i) state that the sole purpose of the application is to obtain information to enforce the family provision, (ii) state whether or not there is a court order, agreement, undertaking or recognizance or any other document that is of a similar nature that restricts the applicant’s communication or contact with the person, child or children referred to in subparagraph (1)(a)(iii), or there is a proceeding respecting such a restriction, (iii) state whether or not the applicant has caused or has attempted to cause physical harm to the person, child or children or has caused them to fear for their safety or security or that of another person, and (iv) state whether or not the applicant has been charged with or found guilty of an offence against the person, child or children.

[24] Section 10 of the Act provides the court with the ability to make an order authorizing a court official to make an application under section 12 of the Act to obtain information from the Minister to enforce a family provision. Section 10 reads as follows:

Authorization

10 A court seized of a valid application under section 7 may make an order in writing authorizing an official of the court to make an application under section 12, if the court is satisfied,

(a) that the sole purpose of the application is to obtain information for the establishment or variation of a support provision or the enforcement of a family provision; (b) that the order is not likely to jeopardize the safety or security of any person; and (c) in the case of an ex parte application, that the steps referred to in paragraph 8(2)(a) or paragraph 9 (2) (a), as the case may be, have been taken.

[25] Section 12 of the Act reads as follows:

Application for release of information

12 (1) An official who is authorized to do so under section 10 may apply to the Minister, in the time and manner prescribed by the regulations, to have the information banks searched in order to release the information prescribed by the regulations to the official.

Marginal note: Supporting documents

(2) The application must be accompanied by a copy of the order made under section 10 that authorizes the making of the application.

[26] To protect individual privacy rights, the Act provides that absent an order to the contrary, the Minister must inform the persons whose information is being requested before the information is released if an application was made ex parte. Subsection 12.1 of the Act reads as follows:

Release of information — duty to inform

12.1 Unless the court orders otherwise, if the application is made ex parte by an individual, the Minister shall release information under this Part to the official who made the application only if the Minister has sent to the person referred to in paragraph 8(2)(a) or 9(2)(a) a copy of the order that authorizes the making of the application and a notice informing them that information will be released.

[27] And section 11 of the Act reads as follows:

Non-disclosure of order

11 In the case of an application made ex parte by an individual, the court may order that the Minister shall not, under section 12.1, send to the person referred to in paragraph 8(2)(a) or 9(2) (a), as the case may be, a copy of the order that authorizes the making of the application and a notice informing them that information will be released.

[28] Section 13 of the Act provides that the information requested is to be provided to the court official who will give the information to the court. The information shall be sealed. The court may determine who the information is disclosed to, as it considers appropriate, and may make any order to protect the confidentiality of the information. These measures are in place to reduce the risk of inadvertent or unauthorized disclosure and to ensure the safety, security and privacy rights of the persons whose information is being released. Section 13 reads as follows:

Information given to court

13 (1) If information is released under this Part to an official who is authorized under section 10 to apply for the release under section 12, the official shall give the information to the court that granted the authorization.

Marginal note: Sealing of information

(2) The information received by the official and subsequently given to the court shall be sealed and kept in a location to which the public has no access.

Marginal note: Disclosure of information

(3) The court may, for the purpose of establishing or varying a support provision or enforcing a family provision, disclose the information to any person, service or body or official of the court that it considers appropriate and may make any order to protect the confidentiality of the information.

Part Four – Analysis

4.1 The evidence in support of the application

[29] The first step in the analysis is to determine if the father has provided the required evidence set out in section 9 of the Act.

[30] The court finds that the father has taken reasonable steps to locate the mother and the child as set out in subsection 9 (1) of the Act. He has done the following to locate them:

a) He made several calls to the mother. They were blocked. He had his mother call the mother. These calls went unanswered. They subsequently learned the mother’s phone number had been changed. b) He sent a process server to the mother’s last known address. c) He contacted the mother’s prior legal counsel. d) He contacted Toronto Police Services and provided a statement. e) He conducted searches of the mother on Google, Facebook and X and provided evidence of those searches. f) He brought third party disclosure motions pursuant to section 39 of the Children’s Law Reform Act to obtain an address for the mother and the child. He sent a process server to the address provided by the society to the court.

[31] The father’s attempts to locate the mother and the child have been unsuccessful.

[32] Since this is an ex parte application, the father is also required to provide the evidence set out in subsection 9 (2) of the Act. He did this, as he:

a) Provided recent police records and vulnerable sectors checks. The results of both were negative. b) Deposed that the sole purpose of this motion was to enforce the family provision – specifically the parenting time ordered in the existing order. c) Deposed there is no other court order, agreement, undertaking or recognizance or any other document that is of a similar nature that restricts his communication or contact with the mother or the child, or there is a proceeding respecting such a restriction. d) Deposed he has not caused or attempted to cause physical harm to the mother or the child or has caused them to fear for their safety or security or that of another person. e) Deposed he has not been charged with or found guilty of an offence against the person, child or children.

[33] The mother consented to the existing order. The parties were frequently involved in litigation between 2013 and 2019. The mother knew, or ought to have known, the process required to change an order she felt was no longer in the child’s best interests and not to unilaterally terminate the father’s parenting time with the child and disappear.

[34] The existing order is presumptively in the child’s best interests until the mother demonstrates otherwise.

[35] It is in the child’s best interests to locate her and the mother. This will enable the father to serve the mother with his court materials and enforce the existing order. It will also give the mother the opportunity to come to court and provide any evidence she believes demonstrates that the existing order is no longer in the child’s best interests.

4.2 Section 10 of the Act

[36] The second step in the analysis is for the court to determine if it should make an order under section 10 of the Act to authorize a court official to make an application to the Minister pursuant to section 12 of the Act.

[37] The court is satisfied, as required by section 10 of the Act, that the sole purpose of the application is to obtain information for the enforcement of a family provision.

[38] Section 10 contains safeguards to ensure the safety or security of any person. The court must be satisfied that the order will not jeopardize the safety and security of the mother or the child.

[39] There is a historical concern about the father. In 2018, his parenting time was suspended and was then supervised for about one year. However, by October 2019, the mother consented to restore generous and unsupervised parenting time between him and the child. The mother was represented by senior family counsel when she made that agreement.

[40] Since the existing order was made, there has been no evidence presented to the court that the father poses a safety or security risk to the mother or the child. The mother could have brought the matter back to court if she felt this was the case. She did not do this. There is also no evidence before the court that she has laid criminal charges against him or that she has made further reports to the society about him. She just stopped his parenting time and disappeared.

[41] The court finds this order will not jeopardize the safety and security of the mother or the child.

4.3 Notification to the mother and the child

[42] The third step in this analysis is to determine whether the court should make an order pursuant to sections 11 and 12.1 of the Act directing the Minister not to provide the mother and the child with a copy of the order that authorizes the making of the ex parte application and a notice informing them that information will be released.

[43] When asked, the father’s counsel asked the court not to make such an order. The father wants the mother to engage in the court process. The court will order that notice under section 12.1 of the Act and a copy of the order made pursuant to section 10 of the Act shall be sent by the Minister to the mother and the child.

4.4 Confidentiality and section 13 of the Act

[44] The fourth and final step in the analysis is to determine if the court should make confidentiality orders regarding the information received from the Minister over and above those required in section 13 of the Act.

[45] The father asks the court not to place any further restrictions on the information received by the court official from the Minister.

[46] The court will defer its decision on this issue until after it receives and reviews the information received from the Minister through the court official.

[47] It is common practice for courts to vet information from third parties and weigh privacy concerns prior to determining what information should be released and whether any conditions should be attached to their release. See: Godwin v. Bryceland 2008 ONCJ 495, [2008] O.J. No 4039 (OCJ); Samson v. Simard 2008 NSSC 87. Potential restrictions could include:

a) Not releasing the information to the father and his counsel. Instead, the court could order that the court documents be sent to the Sheriff to be served on the mother at an address provided in the information. b) Only releasing the information to the father’s counsel, or to anyone assisting her. c) The information be inspected but not copied. d) The use of the information be restricted to the litigation. e) Publication bans. f) The information be returned or destroyed at the end of the litigation. g) Only part of the information be produced.

[48] The court will take a cautious approach regarding the confidentiality issue. This is a new process and the court does not know how much detail will be provided to the court official by the Minister. The court needs to be sensitive to the historical conflict between the parties and the privacy interests of the mother and the child. Depending on what information is received from the Minister, the court may invite further submissions at that time.

Part Five – Conclusion

[49] Justice Canada has provided a suggested form for orders made pursuant to the Act. The court will make this order in accordance with this form.

[50] The court finds pursuant to section 10 of the Act:

a) It is satisfied that the sole purpose of the application is to obtain information to enforce a family court order dated October 30, 2019, under this file number. b) This order is not likely to jeopardize the safety or security of any person. c) Reasonable steps have been taken to locate the person and/or child named in the order the applicant is seeking to have enforced and they have not been located.

[51] This court orders that:

a) The court official is authorized to make an application to the Minister under section 12 of the Act to search for and release to the official the following information that can be found in federal information banks designated under section 2 of the Release of Information for Family Orders and Agreements Assistance Regulations, SOR/2023-125: i) The mother’s address. ii) The name and address of the mother’s employer. iii) The child’s address. b) Pursuant to subsection 13 (2) of the Act, the information received by the court official and subsequently given to the court shall be sealed and kept in a location to which the public has no access. c) Pursuant to subsection 13 (3) of the Act, at this time, the information shall only be disclosed to the court official who shall provide it to the court. Once the court reviews the information, it will determine whether further provisions regarding confidentiality of the information are required. d) Notice under section 12.1 of the Act and a copy of the order made pursuant to section 10 of the Act shall be sent by the Minister to the person whose information is sought.

[52] The court official should send a copy of this endorsement, together with an issued copy of this order to the Minister.

[53] Costs of this motion are reserved.

[54] The court will advise counsel for the father once it receives the requested information and whether further submissions will be required regarding the release of the information.

[55] This matter will return to court on December 3, 2024, at 2 p.m., by videoconference.

Released: October 11, 2024

Justice Stanley B. Sherr

Footnotes

[1] This is a federal regulation made with respect to the Act. [2] The full names and dates of birth of the mother and the child will be contained in the issued court order. [3] The decision used the terms custody and access. The court will use the current language of decision-making responsibility and parenting time in this decision.