COURT FILE NO.: FC-21-570 DATE: 2023/02/28 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Joseph William Randal Martel, Applicant -and- Phuong Thi Nguyen, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Applicant, Self-Represented Huyen Tran, for the Respondent
HEARD: February 23, 2023, In Person
ENDORSEMENT on motion
Overview
[1] The Respondent mother brings a motion seeking final orders for decision-making, the Applicant father’s parenting time, travel with the children, and a restraining order under the summary judgment rule (Rule 16).
[2] The evidence before me on this motion is the mother’s affidavit, served on the father on January 31, 2023. The father did not file any responding material, although he attended the motion and made submissions on his own behalf. The father opposes the motion.
[3] With the exception of the retraining order, the mother’s motion for summary judgment is granted, for the reasons that follow.
Applicable Test
[4] The mother’s motion is brought under Rule 16 of the Family Law Rules O.Reg. 114/99.
[5] The test for summary judgement is summarized by the Court of Appeal in Ramdial v Davis, 2015 ONCA 726.
[6] Rule 16 (6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order for summary judgment.
[7] As the party bringing the motion for summary judgment, the Respondent mother has the burden of showing no genuine issue requiring a trial. As the responding party, the Applicant father must comply with rule 16 (4.1), which requires that he tender evidence of specific facts showing a genuine issue requiring a trial. The responding party may not rest solely on mere allegations or denials, but must set out, in an affidavit or other evidence, “specific facts showing that there is a genuine issue requiring a trial.”
[8] Rule 16 (4.1) reads as follows:
In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.
[9] Each party must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried. Further, the responding party to a motion for summary judgment has an obligation to “lead trump or risk losing”.
[10] Although the father did not file any affidavit evidence on this motion, the mother still bears the initial onus of showing the is no genuine issue requiring a trial to determine the final orders that she seeks. With the exception of the restraining order, for the reasons that follow, I find that the mother has met this onus.
[11] Neither party seeks a divorce in this proceeding and therefore the applicable legislation is the Children’s Law Reform Act R.S.O. 1990, c.C.12.
Background
[12] The parties were married in Vietnam 2013 and separated in February 2021 (Respondent’s position) or March 2021 (Applicant’s position). At the time of separation, they resided in Ottawa. They have two children, X, born [redacted], and Y, born [redacted].
[13] Both children have special needs. X. has been diagnosed with [redacted] and [redacted]. Y. has also been diagnosed with [redacted].
[14] The mother left the matrimonial home with both children on March 16th, 2021, after the father demanded that she leave the home. The children have continued to reside in the mother’s care since that time.
[15] The father commenced this Application on March 29th, 2021, seeking the return of the children to his care. In his application, the father seeks decision-making and primary residence of the children as well as other relief related to police enforcement, documents of the children, and conditions restricting the mother’s ability to travel with the children.
[16] In her Answer, the mother seeks sole decision-making for the children, that they primarily live with her, that the father have supervised parenting time, provisions that allow her to travel with the children without the father’s consent, child support including contribution to section 7 expenses, and annual income disclosure.
[17] The focus of the various court proceedings has been on parenting. Neither parent has filed a financial statement despite the claim for child support, including s.7 expenses, in the Answer.
[18] There have been several court appearances in this matter to date, as follows:
a. On March 30th, 2021, the father brought a motion seeking leave to bring an urgent motion to require the mother to return the children to his care. Leave was granted for the motion to be heard on an urgent basis, scheduled for April 8th, 2021.
b. On April 8th, 2021, a brief adjournment was granted at the mother’s request so that she could retain counsel and file responding material. Pending the return of the motion, Justice Blishen granted the father online video parenting time with the children once per day plus in-person parenting time with the children as deemed appropriate by the Children's Aid Society (“CAS’), who were conducting an investigation in the matter.
c. On April 15th, 2021, the motion was again adjourned, but this time at the father’s request so that he could retain new counsel and file responding material to the mother’s affidavit. An interim without prejudice order was made to address parenting issues pending the return of the motion, including that the children remain in the mother’s care, with the father’s daily video calls continuing, plus in-person supervised access one day a week. The father requested the motion not be returned for at least 30 days, which was granted.
d. On May 27 and 31, 2021, the motion was returned before Justice MacLeod. The father had not provided a responding affidavit but made submissions on the motion. Justice MacLeod dismissed the father’s motion for the children to be returned to the matrimonial home and continued the father’s parenting time under the April 15, 2021 Order without prejudice to the father bringing a further motion for expanded parenting time on proper evidence after a case conference.
e. On July 29, 2021, the father brought a motion without notice seeking leave to bring an urgent motion for the return of the children to his care prior to the case conference scheduled for August 30, 2021. This motion was dismissed.
f. On August 30, 2021, the case conference was held. The case conference ended when the father became upset and asked to leave the conference.
g. On October 28, 2021, the mother sought leave to bring an urgent motion for interim decision-making, communication and a restraining order. The father did not file an affidavit on the motion but made submissions. Associate Justice Kaufman granted leave due to urgency and made interim without prejudice orders including that the mother have sole decision-making responsibility for D.N.M.’s health and schooling (due to medical and school needs).
h. On January 31, 2021, the parties attended before Justice Audet on a Settlement Conference. Justice Audet granted leave for the mother to bring a motion for summary judgment.
[19] The last time the father has had physical contact with the children was at the time of separation. He has refused to exercise in-person supervised parenting time as provided for under the Order of MacEachern J. dated April 15, 2021.
[20] Except for his attempt on July 29, 2021, to seek leave without notice to bring an urgent motion for the children to be placed in his care, the father has not brought a motion to expand his parenting time, as allowed under Justice MacLeod’s endorsement dated May 31, 2021.
[21] On August 26, 2022, the father was charged with criminal harassment involving communications with the mother. He has not had video parenting time with the children since that time. The mother’s position is that she stopped the video calls at the time because of the father’s conditions of release on the criminal charges, which restricted his communications with her. The mother’s view was that she should no longer supervise the video calls because of the release conditions. The father takes issue with the mother’s refusal to continue the video calls. His view is that she has acted illegally in refusing to continue the videocalls. The father has not, however, sought to bring a motion within the family proceedings seeking clarification on his video parenting time, or to propose other supervisors.
[22] The Office of the Children’s Lawyer (‘OCL”) conducted an investigation under s.112 of the Children’s Law Reform Act. They filed a discontinued report with the court on November 18, 2021. The OCL discontinued their report because the father did not take steps to arrange a supervised in-person visit with the children for the OCL to conduct an observation visit. The father has continued to refuse in-person supervised visit because it is his position that supervision is not required, and he believes that it would be harmful to his relationship with the children if they had supervised visits with him. The OCL report notes several observations of the parties and children, and makes several therapeutic recommendations.
[23] On this motion for summary judgment, the mother is not seeking a final order with respect to child support. She is seeking a final order with respect to the parenting issues and a restraining order.
Decision-making
[24] Within these proceedings, each party seeks decision-making authority for the children.
[25] There is no genuine issue requiring a trial to determine what decision-making is in the children's best interests.
[26] The parties have a highly acrimonious relationship. The father is angry and hostile towards the mother. Since separation, the father has persistently fixated on his belief that the mother wrongfully removed the children from his care in March of 2021. The evidence before me, and the father’s submissions, aptly demonstrate his inability to move past this fixation, even for the best interests of the children.
[27] In his submissions, the father was clear that he intended to pursue a private prosecution against the mother to have her criminally charged related to his belief that she had abducted/kidnapped the children in March of 2021 and is responsible for traumatizing the father and the children. The father’s position is that he will not rest until the mother is charged and the truth is known.
[28] The father has also not been able to set this fixation aside for the children’s best interests. An example is his refusal to consent to the school providing supports to the children. He submits this is because he objects to the mother changing the children’s school when she found new housing. There is no genuine issue for trial that it is in the children’s best interests to receive supports from the school related to their special needs. The father’s refusal to consent to the children receiving these supports due to his anger at the mother compromised the children’s best interest.
[29] Another example is the evidence before me that on several occasions the father used his video parenting time to yell at the mother and tell the children that the mother had kidnapped them.
[30] A third example is the father’s repeated hostile, aggressive, excessive and derogatory communications with the mother.
[31] A fourth example is the father’s derogatory communications with the children’s school, medical providers, and other support services.
[32] A fifth example is the father’s refusal to exercise in-person parenting time because of his objection to it being supervised.
[33] Throughout all of the above examples, the father has not been able to move past his upset over the events of the parties’ separation. He believes that the mother lied to him when they married, lied to him after their marriage, had an affair, kidnapped the children, has orchestrated the CAS, police, medical professionals, school and courts against him. What really matters to the father is for the children to know “the truth”, being that the mother is evil, kidnapped the children away from the father, and is responsible for traumatizing the father and the children as a result.
[34] In contrast, the mother has followed medical advice regarding care of the children and worked cooperatively with school, medical and social supports regarding the children’s needs.
[35] There is no genuine issue requiring a trial to determine that it is in the children's best interest for there to be a final order for the mother to have sole decision-making authority for the children.
Parenting Time – Primary Residence
[36] Within these proceedings, each party seeks primary residence for the children.
[37] The children have primarily resided with the mother since March of 2021. The father has not had in-person contact with the children since March of 2021. Except for a without notice request on little evidence in June of 2021, the father has not pursued a motion to increase his parenting time since Justice MacLeod’s May 31, 2021 endorsement. The father has also not exercised any in-person parenting time because of his objection to it being supervised.
[38] There is no genuine issue requiring a trial to determine that it is in the children’s best interests for there to be a final order for the children to continue to primarily reside with the mother.
Parenting Time – Supervised Parenting Time for the Father
[39] The father opposes any supervision of his parenting time, but the evidence before me is replete with examples in support of there being a significant risk that, if unsupervised, the father will expose the children to his anger and hostility towards the mother, which is not in their best interests. The evidence before me supports that father has yelled at the mother during his video calls with the children, communicated to the children that he is angry at their mother, and that he has told the children the mother kidnapped them. I accept that exposing the children to inter-parent conflict is harmful to them. The evidence supports that the father has little insight into the harm caused to the children by being exposed to his anger towards their mother. The evidence supports that the father is committed to sharing his view of events, including his anger towards their mother, with the children. In his submissions, the father was clear that it was his intention to do so.
[40] There is no genuine issue requiring a trial to determine that the children’s best interests are that the father have supervised parenting time. Such supervision should be provided by a neutral professional third-party organization – which is why I have ordered this to be done through Family Services Ottawa’s Supervised Access Program.
Communications
[41] The mother seeks a final order that all communications be through Our Family Wizard. This is a computer application that provides some level of accountability for communications between the parties. I accept that some method of communication needs to be provided, although I am concerned that the father will use such means to communicate with the mother in an inappropriate manner. If the father does not communicate in a respectful manner, this may constitute a material change to warrant varying this order for communications.
Travel
[42] The mother seeks a final order that she be permitted to travel with the children without the father’s consent.
[43] There is no genuine issue requiring a trial to determine that it is highly unlikely that the father would provide his consent to the mother’s reasonable travel proposals for the children. Without an order allowing the mother to authorization travel for the children without the father’s consent, the mother would be forced to come back to the court to get authorization for such travel. It is clear that requiring her to do so at every instance is not in the children’s best interests.
[44] There have been mutual conditions restricting the parties’ travel with the children since the beginning of this proceeding. These interim orders regarding parenting will cease to have effect when final parenting orders are made.
[45] Although the father has not filed an affidavit on this motion to put “his best foot forward”, he has raised concerns about the mother moving the children to Vietnam. The mother is not seeking to relocate with the children to Vietnam as part of a final order, nor is their any suggestion on her part that she intends such a move in the future. I point out that the relocation provisions under the Children’s Law Reform Act would apply to such a proposed relocation if it materialized in the future.
[46] I conclude that there is no genuine issue requiring a trial to determine that it is in the children’s best interest that the mother be permitted to authorize travel for the children, both within Canada and internationally, without requiring the father’s consent. With respect to international travel, this authorization will only apply to reasonable international travel for the purpose of a vacation/holiday, medical or educational purposes, and shall be limited to a period of no more than 30 days outside of Canada. This includes the mother being authorized to apply for the children’s passports.
[47] If the mother seeks to authorize travel for the children outside of Canada for longer periods, she will need the father’s consent or further court order.
[48] If the mother seeks to relocate the children’s residence, she must comply with the relocation requirements under the Children’s Law Reform Act.
Restraining Order
[49] Although the evidence before me supports that the mother has reasonable grounds to fear for her safety, I reluctantly do not grant summary judgment on the restraining order issue because the mother did not seek a restraining order in her Answer. It is not in her pleadings, nor has the mother put the father on notice that she seeks to amend her pleadings to include this claim as part of this summary judgement motion. The issue of the mother seeking a retraining order has been brought up before, but she has never amended her pleadings. For this reason, I do not find that it is appropriate to grant summary judgement on the restraining order issue.
[50] I am concerned about family violence issues and safety factors. The father is currently under conditions of release that restrain him from having contact with the mother as part of his criminal release provisions. There is some time, therefore, for the mother to seek a restraining order in accordance with the Rules.
Child Support
[51] As stated above, the mother did not seek summary judgement on the child support claims contained in her Answer. Neither party has filed a financial statement. The mother has also not filed a withdrawal of her claims to child support. The child support issues remain outstanding as part of this proceeding.
Accordingly, I make the following orders pursuant to the Children's Law Reform Act and Rule 16 of the Family Law Rules:
The Respondent mother’s motion seeking summary judgment on the parenting issues in this proceeding is granted. The child support issues remain outstanding.
There shall be a final order with respect to the parenting issues under the Children's Law Reform Act, as follows:
a. The Respondent mother, Phuong Thi Nguyen, shall have sole decision-making authority for the children, namely, X, born [redacted], and Y, born [redacted].
b. The children shall primarily reside with the Respondent mother.
c. The Applicant father, Joseph William Randal Martel, shall have supervised parenting time with the children to be exercised through Family Services Ottawa’s Supervised Access Program located at 312 Parkdale Ave., Ottawa, Ontario. The father's supervised parenting time shall be no more than three hours per week but may be less depending on the capacity of the Supervised Access Program. Each party shall, forthwith, complete and submit the necessary application to participate in this Supervised Access Program.
d. The Applicant father shall not convey to the children or expose them to: - his anger or hostility towards the mother, - his beliefs or views concerning the events surrounding the parties’ separation, including that the mother kidnapped the children from him, that the mother had an affair, that the mother is responsible for traumatizing the father and the children, and that the mother should be prosecuted, - or otherwise be derogatory towards the mother in the children’s presence. e. The Applicant father shall not communicate with the Respondent mother except with respect to parenting issues, such communication to be done solely through the on-line application “Our Family Wizard”. Each party shall be responsible for their respective share of the fees associated with this service. All communications through “Our Family Wizard” shall be child-focused, and respectful in tone and content.
f. The Respondent mother shall have the right to authorize travel for the children, X, born [redacted], and Y, born [redacted], including within Canada and internationally, without requiring the Applicant father’s consent. With respect to international travel, this authorization only applies to reasonable international travel for the purpose of a vacation or holiday, medical care or educational purposes, during which time the child shall not be absent from Canada for a continuous period exceeding 30 days.
g. If the Respondent mother seeks to authorize travel for the children outside of Canada for a continuous period of longer than 30 days, or for another purpose, she shall require the father's written consent, which shall not be unreasonably withheld, or further court order.
h. The Respondent mother shall be authorized to apply for passports for the children, X, born [redacted], and Y, born [redacted], and any renewals thereto, without requiring the father's consent.
i. If the Respondent mother seeks to relocate the children's residence, she shall comply with the relocation requirements under the Children's Law Reform Act.
The Respondent’s motion seeking summary judgment for a final restraining order is dismissed, without prejudice to her renewing her request for a restraining order, either by summary judgment or otherwise, after filing the appropriate pleading (being either amending her current pleading or bringing a new Application).
Costs
[52] The Respondent mother is the successful party on this motion and is presumptively entitled to her costs. If the mother seeks costs, she shall serve and file written submissions on costs on or before March 7th, 2023, at 4:00 PM. The father may serve and file written submissions in response on or before March 14th, 2023 at 4:00 PM. Cost submissions shall be limited to no more than three pages, double spaced, 12-point font, plus proper attachments (such as offers to settle and bills of costs).
This decision will be sent to publication with the names and birthdates of the children redacted.