Court File and Parties

Court File No.: FS-16-0219 Date: 2020-04-24 Superior Court of Justice - Ontario

Re: Emuesiri Tejiri Medu, Applicant – and – Erere Ohwofasa Medu, Respondent

Before: McSweeney J.

Counsel: Hannah Kazman, for the Applicant Respondent, Self-Represented

Heard: Via Teleconference: April 24, 2020

Endorsement – Return of the Children

[1] The Applicant mother moves to enforce the parties’ 2018 Final Order of Justice Shaw. Pursuant to that Order, she has sole custody and primary residence of the parties’ three children, aged 9, 8, and 5. The Order gives the children alternate midweek and weekend access, and alternate-year statutory and holiday access, with the Respondent father.

[2] This year, the Order gave the Respondent father access for “Spring Break” (also called March Break). He did not return them at the end of that week. Instead, on March 28, 2020, he took them by car from Peel Region to Sioux Lookout in Northern Ontario without the Applicant’s knowledge or agreement. As at the date of this endorsement, the children remain in the care of the Respondent and his partner in Sioux Lookout, where father has been working as a relief pharmacist. The children have not seen their mother for more than a month.

[3] Father has refused to return the children, claiming that he is entitled to make-up time for his missed access and to half of the “COVID vacation time”. He has told mother that he will return the children on April 27, 2020.

[4] Such extended access time is not in accordance with the parties’ final order. That order does not contemplate the children, absent specific parental agreement, going so long without seeing one of their parents.

[5] On April 21, 2020 I issued an endorsement (see 2020 ONSC 2465) directing that “… this motion may be heard as a matter of urgency relating to the best interests of the children. This is a category of urgency recognized in the Notice to the Profession released by the Chief Justice of the Superior Court of Justice dated March 15, 2020 (and as further amended effective April 6, 2020).”

The Notice of Motion

[6] The Applicant’s Notice of Motion seeks the following relief:

1. An Order permitting this Motion to be brought during the Suspension of Superior Court Justice Regular Operations on the grounds of urgency.
2. An Order that the Respondent, Erere Ohwofasa Medu, shall return the children of the marriage, namely Anomioghene Medu born May 13, 2010, Eferodecha Medu born August 16, 2011 and Ometevwe Medu born April 1, 2014, (hereinafter the "Children") to the Applicant, Emuesiri Tejiri Medu, immediately.
3. An Order that the Respondent, Erere Ohwofasa Medu, be required to adhere to the access schedule set out in the Order of Justice Shaw dated September 12, 2018.
4. An Order that the Respondent's overnight access on Tuesdays and Thursdays shall be suspended until August 11, 2020, to afford the Applicant, Emuesiri Tejiri Medu, make up access for the 17 overnights of access that have been missed due to the Respondent's withholding the Children.
5. An Order that in the event the Respondent, Erere Ohwofasa Medu, is unable to attend at the commencement of his access as set out in Order of Justice Shaw dated September 12, 2018, the parties shall mutually agree on an alternate pick up time and location.
6. An Order that where the Respondent, Erere Ohwofasa Medu, does not pick up the children at the commencement of his access as set out in the Order of Justice Shaw dated September 12, 2018, and an alternative exchange date and time must be arranged there shall be no make up access for any time missed by the Respondent and the Respondent shall be obliged to return the Children at the end of his access period.
7. An Order that the Peel Regional Police, the Ontario Provincial Police, the R.C.M.P. or any other enforcement agency necessary shall be directed and authorized to enforce the terms of custody and access outlined in the Order of Justice Shaw dated September 12, 2018, for the benefit of the children of the marriage, namely Anomioghene Medu born May 13, 2010, Eferodecha Medu born August 16, 2011 and Ometevwe Medu born April 1, 2014.
8. An Order for costs on a full recovery basis, inclusive of the applicable H.S.T. and all disbursements, to be enforceable through the Family Responsibility Office.
9. An Order for such further and other relief as deemed just under the circumstances.

[7] In his affidavit, the Respondent disputes the urgency of the motion. He argues that he has told the Applicant that he will return the children to her on April 27, 2020 and that he still plans to do so. Therefore, he argues that this matter is not urgent, and did not require a motion at all.

The Teleconference Hearing

[8] The motion was heard by teleconference on April 24, 2020 at 10:30 am. Both parties attended the call. Ms Kazman represented the Applicant mother, moving party. Mr Medu, Respondent father, was self-represented.

[9] I advised the parties that at today’s hearing the court will address only the most urgent issue: the return of the children. The remainder of the motion is adjourned to April 28, 2020 before me, as referenced later in this endorsement.

Is this matter urgent?

[10] Applicant’s counsel submitted that the Applicant had tried directly and through counsel to have the Respondent return the children since the end of March break (referred to in the 2018 Shaw Order as “spring break”), without success. Not only did he not tell her that he had a job in Sioux Lookout, the Respondent did not give her information about the children’s whereabouts. She assumed they were still with him in Brampton.

[11] Counsel advised that the Applicant also seeks the assistance of a court order with police enforcement because the Applicant had offered and then rescinded an offer to return the children earlier in April. She is concerned he will do so again without a court order.

[12] The evidence shows that earlier in April the Respondent indicated he was prepared to return the children to the Applicant. He did not do so. Nor has he agreed that he took the children to Sioux Lookout during the Applicant’s parenting time.

[13] The Respondent’s actions of overholding the children, in breach of a court order, in an undisclosed location, justify an urgent hearing of this motion for return of the children. The September 12, 2018 order of Justice Shaw does not permit the extended access to which the Respondent has “helped himself”.

[14] The Respondent has failed to comply with other parts of that order, specifically regarding travel with the children. I cannot agree with the Respondent that this matter is not urgent because he would have returned the children, as he ultimately committed to the Court to do, if this motion had not been brought.

The Respondent’s Return of the Children

[15] When asked by the Court on the teleconference hearing, Respondent father confirmed that as of today, the children continue to be in Sioux Lookout in his care and that of his partner. His relief pharmacist work at the IDA pharmacy in Sioux Lookout will finish today at 6 pm. He and his partner plan to take the children by car from Sioux Lookout back to Brampton leaving on April 25, 2020, arriving likely late evening on Sunday April 26, 2020 in Brampton.

[16] In the Applicant’s affidavits she deposed that despite requests, the Respondent had not given her information including his partner Patricia’s last name, nor the Respondent’s full Brampton address.

[17] At the request of the Court, the Respondent provided the following information to the Court today:

a. His partner’s name is Patricia Rose Marie Dzambic, date of birth 10 December 1975. Ms Dzambic and he have been partners for more than a year and she has provided care to the children while he was at work in Sioux Lookout, and prior to that time during his access time. b. They will be driving the children in his 2016 Toyota Corolla. It is silver in colour and bears Ontario License plate # BZTY 844. c. On return to Brampton he will bring the children directly to his apartment located at 16 Church Street East, Apartment #2, Brampton, ON L6V 1E9. d. He has been and will continue to observe applicable COVID safety protocols while travelling with the children. e. His cell phone number is 647-447-2096. He can and does receive text messages as well as phone calls at that number.

[18] In response to further questions from the Court, the Respondent committed to bring the three children and meet the Applicant at 2 pm on Monday April 27, 2020 in the parking lot of the YMCA where the parties have previously had access exchanges. At that time, he committed to the return of all three children to their mother.

[19] The court also asked the Respondent to suggest how the Applicant can reach the children for their daily call (per the Shaw J final order) between now and their return. He stated that she can call him at 8 pm on his cellphone on April 24, 2020 (today) and he will put the children on the phone. During the April 25 and 26, 2020 travel days, he promised to call her between 2 and 4 pm each day so that she can speak with the children.

[20] During the teleconference I provided an opportunity for the Applicant to speak privately with her counsel. After doing so, counsel confirmed that the Applicant will be available at 2 pm to meet the Respondent on April 27, 2020 for the return of the children to her care. She is also available to make and receive calls from the Respondent for her to speak with the children at the times he proposes.

[21] I advised the parties that I had considered the Applicant’s request for police enforcement assistance in the return of the children and would not be making such an order today.

[22] With respect to such relief, I observe that recent COVID case law has only served to underscore the reluctance of judges to routinely include police enforcement clauses in child custody and access orders. Police involvement, except as a last resort, is to be avoided as it can be psychologically harmful to children and to their family relationships. In the COVID pandemic, it can potentially increase the risk of the children and their family to exposure to the COVID-19 virus.

[23] I have therefore concluded that such a clause is premature today. I reach this conclusion because the Respondent committed to the court, after swearing to tell the truth, that he will return the children directly into the care of their mother on April 27, 2020 at 2 pm as ordered.

[24] As I advised the parties, should the Respondent fail to return the children as ordered, I will consider making further orders, including police enforcement, at the return of this motion on April 28, 2020.

[25] I therefore order as follows:

a. This motion qualifies to be heard as a matter of urgency during the Suspension of Superior Court Justice Regular Operations. b. The Respondent, Erere Ohwofasa Medu, shall return the children of the parties, namely Anomioghene Medu born May 13, 2010, Eferodecha Medu born August 16, 2011 and Ometevwe Medu born April 1, 2014, (hereinafter “the children") to the Applicant, Emuesiri Tejiri Medu (“the Applicant”), on an urgent basis in the manner and time described below c. The Respondent shall deliver the children to the Applicant at 2 p.m. EST on Monday April 27, 2020. The parties and children shall meet at that time in the parking lot at the YMCA located at 20 Union St, Brampton, ON L6V 1R2. Both parties on the teleconference hearing confirmed familiarity with that location as they have previously had access exchanges there. d. For the date April 24, 2020, the Applicant’s phone contact with the children may take place at 8 pm Note to parties: Sioux Lookout is in the GMT time zone one hour behind Peel Region . Accordingly, the Applicant may call the children tonight at 8 p.m. GMT, which is 9 p.m. EST (ie 9 p.m. mother’s time; 8 pm tonight for father and children in Sioux Lookout). e. For the dates April 25 and 26, 2020, the Applicant’s phone contact with the children will be initiated by the Respondent as he will be travelling with the children those days. On both days, the Respondent is to initiate a call with the Applicant between 2 and 4 p.m. EST so that she can speak with the children (not GMT time zone) . f. The remainder of the relief sought by the Applicant in her Notice of Motion dated April 21, 2020, including costs of today, is adjourned to be heard by further teleconference hearing on Tuesday April 28, 2020 at 10:30 a.m. EST. The Brampton Trial Office will provide all parties with details of the teleconference in advance by email.

[26] Upon the courthouse reopening to the public, each party shall file with the SCJ Brampton Trial Office a copy of all the material he or she delivered electronically for this motion, with proof of service, and pay the appropriate fees.

[27] This endorsement is effective when made. No formal order is required.

“Original signed by” ______

McSweeney J.

Released: April 24, 2020