Court Information

Court File No.: D41116/06A5 Date: 2014-02-03 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Parties

Between: Hibo Elmi Tokaleh, Applicant (mother, respondent in the present proceeding)

And: Mohamed Abdullahi Hassan, Respondent (father, applicant in the present proceeding)

Judicial Officer and Counsel

Before: Justice Robert J. Spence

Heard: 23 November 2012, 21 January, 30 September and 12 December 2013 and 30 January 2014

Reasons for Judgment released on: 3 February 2014

Counsel:

• Mr. F. Nkiry Agbakwa for Ms. Tokaleh
• Mr. Allan M. Goldstein for Mr. Hassan

Introduction

[1] On April 11, 2012 the father commenced an Application ("application") seeking, inter alia, the ability to travel outside Canada with the parties' three children, and permission to apply for the children's passports, without the mother's consent. The three children are now ages 15, 13 and 10 years old. The mother filed her Answer on September 21, 2012 in which she opposed the father's request for relief.

[2] At a case conference held on October 2, 2012, it appeared to the parties and to the court that this issue could be resolved by a half-day trial, as the parties indicated the only witnesses would be themselves. Accordingly, I set November 21, 2012 for trial.

[3] Trial did not commence until November 23, 2012. Trial did not conclude on that day and it was adjourned for another one-half day to January 21, 2013. Once again, trial did not conclude on the second date and it was further adjourned to March 25, 2013.

[4] Subsequently, the parties consented to further adjourn to July 29, 2013. On that date, the requested Somali interpreter was not available, so that the trial was again adjourned to September 30, 2013.

[5] On September 30, 2013, the parties began their submissions. However, they were not able to complete those submissions by the end of the day, so that the matter was adjourned to December 12, 2013 to finish submissions and complete the trial.

[6] On December 12, 2013, the mother's counsel brought a motion to summarily dismiss the application on the grounds that the court had no jurisdiction to consider the merits of the case. The basis for this claimed loss of jurisdiction was that the father's request for relief should have been commenced by motion to change, rather than an application, and this failure to proceed properly constituted an "abuse of process", and was a violation of the "principles of res judicata and/or estoppel".

[7] Father's counsel had been short-served with the jurisdiction motion and requested an adjournment to file responding material and his brief of authorities. I set filing deadlines, but permitted the mother's counsel to begin his argument on the jurisdiction issue.

[8] Submissions on the motion were adjourned to January 30, 2014. By that date, the father's brief of authorities had been filed and both Mr. Agbakwa, for the moving party mother, and Mr. Goldstein, for the responding party father, were able to complete their submissions, following which I reserved judgment on both the jurisdiction issue as well as the trial on the merits.

Issues

[9] There are three issues which I must address in these reasons:

1. Was the father's request for relief defective in that it ought to have been commenced by motion to change rather than application?

2. If the request for relief was defective, was it a defect that deprived the court of jurisdiction to hear the father's claim on the merits?

3. If the court was not deprived of jurisdiction to hear the claim on the merits, should the father's request for passports and travel be granted?

Application or Motion to Change?

[10] Rule 15(5) of the Family Law Rules ("Rules") states:

(5) MOTION TO CHANGE – . . . a party who wants to ask the court to change a final order of agreement shall serve and file,

(a) a motion to change (Form 15); and

(b) a change information form (Form 15A), with all required attachments.

[11] Mother argues that in making the passports and travel claims, father was seeking to change a final order, specifically, my order dated November 30, 2011 ("final order"). On November 3, 2011, following a settlement meeting at the Office of the Children's Lawyer ("OCL"), the parties signed a consent that was intended to resolve all outstanding issues between them on a final basis. The order contained provisions with respect to change of name, custody (to the mother), custody of certain children's documents (not passports), and a detailed liberal access schedule for father.

[12] It is common ground that the parties did have discussions about the travel issue, either just before or just after they consented to the final order, but the final order was silent on the issue of travel.

[13] On March 5, 2012, the father filed a 14B motion which was placed before Justice Brownstone in my absence as the case management judge on this case. Justice Brownstone made the following endorsement:

Form 14B filed by respondent seeking passport/travel rights. A final order, very comprehensive in its terms, dealing with custody and access, was made on consent only a few months ago (November 30/11). Now the respondent seeks to vary that order to permit him to travel with the child outside Canada without applicant's consent during his access and to obtain passports. This should have been dealt with in the proceeding that culminated in the final order . . . . A proper change motion should be brought and respondent will have to establish a material change in circumstances since November 30/11.

[14] The father did not appeal Justice Brownstone's order and, instead, commenced his claim for relief by application on April 11, 2012.

[15] The mother argues that this application constituted a collateral attack on Justice Brownstone's order because instead of issuing a change motion, the father proceeded by application.

[16] During the course of argument Mr. Agbakwa made his position clear, namely, not that father would have been prohibited from arguing the merits of the case had he commenced his request for relief by change motion; rather, it was strictly because he had done so by application that the court was now prevented from hearing that claim for relief. In other words, Mr. Agbakwa submitted the father would have been at liberty to have his claim considered on its merits but for the fact of the allegedly improper originating process.

[17] Simply, the rule against collateral attack states that where a judge makes an order, it is binding and conclusive unless set aside on appeal. See, for example, R. v. Meltzer, [1989] 1 S.C.R. 1764. Mother argues that because Justice Brownstone's order was not set aside, it is binding and conclusive and the father was therefore prohibited from proceeding by application. He should have instead proceeded by motion to change; and his failure to do so was fatal to his claim.

[18] I disagree.

[19] Courts have made it clear that the rule against collateral attack is not an absolute rule to be applied in all circumstances, without regard to context.

[20] In R. v. Domm, 31 O.R. (3d) 540 (C.A.), the court stated at paragraph 22:

. . . remedial concerns must alleviate against the potential injustice caused by an overly strict adherence to the rule against collateral attack.

[21] Similarly, in Fisher v. Fisher, 2008 ABQB 170, 52 R.F.L. (6th) 435 (Alta. Q.B.), the court stated at paragraph 62:

To prevent a collateral attack is to ensure fairness to all parties, but not all collateral attacks are offensive. [There are two exceptions to the rule]. The first exception is that obedience to a court order will be relaxed where no harm will come to the justice system.

[22] Would proceeding by application in the circumstances of this case cause "harm to the justice system"? In my view, it would not.

[23] First, it is not clear to me that, despite Justice Brownstone's order, the request for relief could only be commenced by notice to change. As subrule 15(5) states, a motion to change is required when the party seeks to change a "final order or agreement". The final order in this case was silent on the passport/travel issues. Accordingly, having regard only to the plain meaning of the words in subrule 15(5), the father's request for relief did not seek a change to anything that was dealt with in the final order.

[24] In fairness to Justice Brownstone, he was not the case management judge and he had little familiarity with the background of the case. Nevertheless, I do not have to decide that Justice Brownstone erred; rather, as I noted above, the issue is strictly whether the application itself constituted a collateral attack that would "harm the justice system".

[25] In the result, I conclude that, notwithstanding Justice Brownstone's endorsement, the father commenced his claim for relief correctly by issuing an application, and that application did not constitute a collateral attack of the kind that would harm the justice system.

[26] I will elaborate further on the issue of "harm to the justice system" in the following section of my reasons.

Does an Incorrect Pleading Deprive the Court of Jurisdiction?

[27] If I am incorrect in concluding that the proceeding ought to have been commenced by application, or that the application did not constitute a collateral attack on Justice Brownstone's endorsement, I nevertheless conclude that the court is not deprived of jurisdiction to adjudicate the claim on its merits.

[28] Rule 2 of the Rules states:

PRIMARY OBJECTIVE

(2) The primary objective of these rules is to enable the court to deal with cases justly.

DEALING WITH CASES JUSTLY

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

DUTY TO PROMOTE PRIMARY OBJECTIVE

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

[29] Rule 2 is essentially about requiring the court to ensure that the parties are dealt with fairly, in the interests of justice, and in a way that is cost-effective, having regard to all of the circumstances in the particular case.

[30] Accordingly, the question I have asked myself is, if the father's pleading was improper, has the mother been deprived of a fair hearing and a hearing that accords with the fundamental principles of justice?

[31] The mother's Answer, filed September 21, 2012, acknowledged two things: first, that the final order was "silent as to travel and passports". Second, even though the proceeding had been started by application, the mother covered her bases by pleading as though the claim was effectively a motion to change, when she stated:

There has been no material change in circumstances of the children warranting any change to the status quo or variation to the current final consent order.

[32] There are numerous cases that have been decided since the enactment of the Rules which discuss the import of Rule 2, specifically, that Rule 2 is about ensuring fairness to the parties. In just one example, the Court of Appeal in Titova v. Titov, 2012 ONCA 864 stated at paragraph 48:

Rule 2 . . . provides the court with great latitude to adjudicate cases fairly.

[33] And in Children's Aid Society of Algoma v. O.(M.), Justice John Kukurin stated at paragraph 22:

. . . the primary objective of the Family Law Rules is to enable the court to deal with cases justly. This includes . . . ensuring that the procedure is fair to all parties.

[34] Was the procedure in this case fair? The father filed his application as noted earlier. At the first appearance on June 7, 2012, the mother was given leave to late file her responding materials within 30 days.

[35] On the return of the matter before me on July 18, 2012, mother had yet to file her materials and I gave her further leave to late file to September 4, 2012. On a subsequent 14B consent motion, that leave was further extended to September 27, 2012.

[36] On October 2, 2012, with both parties represented by counsel, the trial procedure was agreed to and trial was set to begin on November 21, 2012.

[37] Mother then retained new counsel, Mr. Agbakwa, on November 6, 2012. On November 21, 2012, the date set for the commencement of trial, Mr. Agbakwa sent an articling student to court, without the mother's file in hand, seeking an adjournment. Despite the father's objection to that request, I was not prepared to force the trial to proceed in the circumstances, including the fact that Mr. Agbakwa was not present in court that day. Accordingly, I adjourned the trial a further two days to November 23, 2012.

[38] As I noted at the outset of these reasons, the trial proceeded on the subsequent days, with both parties ably represented by experienced counsel. Each of the parents testified in chief, and each was thoroughly cross-examined.

[39] Was the procedure fair? Was it just? In my view the answer must be yes. Neither party was deprived of the opportunity to present his and her case, and to have their respective cases challenged by opposing counsel by means of thorough cross-examination. Again, the only jurisdictional objection raised by mother, after the conclusion of the trial on the merits, was the nature of the father's originating process.

[40] Mr. Agbakwa argues, in effect, that the entire procedure must be scrapped because it was commenced by application rather than motion to change; and if the father still wishes to pursue his claim for travel and passports, he must start all over again. In my view, nothing could be more unjust, more unfair to the parties. In my opinion, this would constitute an utter disregard of Rule 2 and the court's duty to promote the primary objective, including the saving of time and expense.

[41] Returning to the question of "harm to the justice system", if the procedure was fair and just, how could it then be said that the procedure was harmful to the justice system? Simply put, mother was not in any way prejudiced by the procedure followed in this case, regardless of the nature of the originating process issued by father.

[42] Before I turn to the merits of the claim, I will address the mother's other objections to the process, namely, that the claim itself was res judicata and an abuse of process.

[43] The principle of res judicata was set out by the Supreme Court of Canada in Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 at paragraph 38:

(1) The issue must be the same as the one decided in the prior decision;

(2) The prior judicial decision must have been final; and

(3) The parties to both proceedings must be the same, or their privies.

[44] Mother relies heavily on the case of Maynard v. Maynard, [1951] SCR 346, wherein the Supreme Court of Canada stated:

The plea of res judicata is not a technical doctrine, but a fundamental doctrine based on the view that there must be an end to litigation . . . . The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the litigation and which the parties, exercising reasonable diligence might have brought forward at the time.

[45] Mother's counsel argues that the issue of travel and passports was something that was within the contemplation of the parties at the time of the litigation and ought to have been "brought forward at the time" the parties negotiated their final consent order. And the father's failure to insist on that issue as part of the final order now prevents him from bringing it forward in a new round of litigation. See also McQuillan v. Native Inter-Tribal Housing Co-Operative Inc., [1998] 42 O.R. (3d) 46.

[46] Abuse of process has been stated as an attempt to advance again issues which were either raised in an earlier action or which were known by the parties and were left unraised at the time of the earlier action. To permit parties to do this would create the danger of conflicting findings on identical issue and would therefore constitute an abuse of process. See Lefebvre v. Strilchuck, at paragraph 37.

[47] Both res judicata and abuse of process are essentially directed to preventing the endless re-litigation of issues that were properly litigated in the past or should/could have been so litigated.

[48] However, the Supreme Court of Canada in Maynard, supra, made it clear that there are "special cases" in which the doctrine of res judicata will not be applied. The present case falls within the category of those special cases for four reasons:

1. It is a family law case;

2. It is a family law case that pertains to children;

3. Rule 15(5) specifically permits, in effect, the re-litigation of previously-decided issues in family cases; and

4. The procedure did not prejudice mother's ability to present her case, or to challenge the father's claim for relief.

[49] As I noted earlier, Rule 15(5) in fact provides for what is, in effect, a re-litigation of issues previously decided. From a public policy perspective, this makes sense. While the court may make "final" orders pertaining to children, for example, custody, access, child support, travel, and so on, the law recognizes that as circumstances change, as children get older, as the needs of the children evolve, a parent should have the ability to return to court to seek changes to orders that no longer reflect the children's changed circumstances.

[50] While this may be self-evident in respect of matters pertaining to children, the law goes even further, beyond children, by recognizing that the whole area of family law itself, is of a unique nature, so that the principles of issue estoppel and res judicata do not necessarily come into play in the way that they do in other types of cases, even where the issue does not pertain directly to children.

[51] The development of the common law reflects the special nature of family law, and why it cannot simply be lumped into all other areas of law when discussing principles such as res judicata and issue estoppel.

[52] The case of Ludmer v. Ludmer, 25 R.F.L. (7th) 397, is an example of how the courts treat family law as a "special" area of law. In that case, the wife had brought repeated motions for the sale or encumbrance of the matrimonial home for the payment of legal fees or interim costs. Despite this repeated re-litigation of the issue, Justice Ruth Mesbur concluded at paragraph 24:

I am not persuaded this is a case where res judicata or issue estoppel apply. The court has a residual stake in the manner in which litigation is conducted, founded on the court's inherent power to control its own process. This is particularly so in family law cases, which are governed by the Family Law Rules. The primary rule is rule 2(2) which provides that the fundamental purpose of the rules is to deal with cases justly. Part of this mandate requires the court to oversee and maintain balance and fairness between the parties.

[53] Rule 2 is, therefore, a large part of what makes family law cases special. Rule 2 is about fairness and justice to the parties.

[54] In Blanchard v. Walker, 25 R.F.L. (7th) 487, Justice Carole Curtis, almost as an aside, began her reasons for judgment by stating at paragraph 7:

Although started as an application, this court case was essentially a motion to change the final consent order of Waldman, J. made 5 August 2003 for joint custody of the child . . .

[55] It did not matter to Justice Curtis that the proceeding began as an application rather than a motion to change. Instead, the court had a full set of pleadings, a trial was held in accordance with the fundamental principles of justice and fairness, and the court was ultimately able to reach a decision on the merits. See also Savoie v. Richard.

[56] As the foregoing examples reveal, again and again we see the courts turning to principles of fairness and justice as paramount in family law cases. Courts dealing with family law issues will not be bound by a rigid adherence to principles such as res judicata, abuse of process, issue estoppel or collateral attack, where that rigid adherence would lead to an injustice and derail the primary objective set out in Rule 2.

[57] And, finally, as I stated earlier, regardless of the originating procedure in this case, mother did not incur any prejudice in the conduct of her case on the merits.

[58] Having regard to all of the foregoing, it would be an astonishing result for this court to conclude that the argued-for defect should lead to a quashing of almost 22 months of pleadings, court appearances, and trial days, all because the proceeding was commenced by application rather than motion to change.

[59] It is necessary as well to comment on the timing of the mother's motion. Mother's counsel did not bring this motion until all the evidence in the trial was completed and final submissions on the merits were concluded, or almost concluded. Mother's present counsel was retained in this matter in early November 2012, more than one year before he brought this jurisdictional motion. In deciding to act for his client, he must be taken to have fully reviewed the file, including the pleadings and the history of the matter, regardless of his assertions to the contrary. Having instead waited until the trial on the merits was virtually concluded before deciding to bring this motion, mother has now brought this motion within the reasoning of Pfann v. Pfann, 2008 CarswellBC 747 (BCSC).

[60] In Pfann, the father had sought a variation in his child and spousal support payments. However, in the three years leading up to the trial of the matter, the father had consistently failed to pay his previous court-ordered support. In closing submissions, mother's counsel argued that the father's application should be summarily dismissed because of the father's ongoing disobedience of the existing court order. The British Columbia Supreme Court stated, at paragraph 28:

While the authorities referred to above and my conclusion that Mr. Pfann has failed to give a convincing explanation for his failure to obey the existing order would arguably lead to the conclusion that this application be dismissed on public policy grounds, I do not think that result should follow.

And at paragraph 31 the Court continued:

Ms. Pfann has taken no steps to enforce the outstanding order. There is no evidence that Mr. Pfann was put on notice that his non-compliance would prevent his motion from being heard. The matter was first raised during closing submissions. If Mr. Pfann had been put on notice that non-compliance with the existing order would prevent his application from going forward, or if he had been found in contempt for failing to pay under that order, public policy might dictate that the application not be heard. In the specific circumstances of this case, such a result is not warranted.

[61] In my view, the timing of the mother's motion in this case falls within the reasoning of Pfann. It is far too late for mother's objection to prevail.

[62] Finally, if another court determines that I am incorrect in my reasoning, and decides that father's application should be summarily dismissed, I would have awarded costs on a full indemnification basis against the mother, from the date of pleadings, to the conclusion of the trial on the merits, for all costs thrown away in the conduct of this litigation, because of the timing of this motion. In that regard, I would rely on subrule 24(11)(f). As I stated, if there was any merit to this motion, it ought to have been brought at least one year ago.

[63] In the result, I dismiss the mother's jurisdictional motion.

The Merits of the Father's Claim

[64] As I noted at the outset, the father seeks the ability to travel with the children, during his own periods of access, and to obtain the children's passports without the mother's consent.

[65] The mother is opposed to this request. She states that if the father is permitted to travel with the children he will take them away from her and not return them to Canada. She alleges, in part, that the father intends to take the children to Somalia where the father still has family, in order to indoctrinate the children into the Somalian culture. She says he made these threats to her three times, once in 2000, once in 2009 and once in 2010. She also testified that in 2009, the father offered her the sum of $10,000 if she were to give him permission to permanently take the children to Somalia.

[66] In her testimony, mother stated: "I worry about them [the children] because I don't trust him [father]". She also stated that she does not trust the father with the children's passports.

[67] For his part, the father claims that he has no desire to take the children to Somalia. Although he was born there, he has lived in Canada since 1986. He says he does have some "far" family members in Somalia, with whom he communicates by telephone sometimes during the holidays; but he has never returned to Somalia since he left there in 1986. In fact, he says that there is no reason for him to travel to Somalia with the children as it is "too risky".

[68] He absolutely denies telling the mother that he would abscond with the children to Somalia, or that he offered her bribe money if she were to let him do so.

[69] Father has a brother who lives in Nashville, U.S.A. and his own mother lives in Sweden. His mother is ill and he would like to take the children to visit her. In addition, the father's brother and sister live in Sweden. The father has also expressed the desire to take the children to Disneyworld in Florida.

[70] There is a long history of parental conflict, as this case has been in the courts, off and on, since 2006. Essentially, there is a high level of distrust between the parties, particularly by the mother towards the father.

[71] On the evidence, I have concluded that it is in the best interests of the children that they be permitted to travel with the father outside Canada, and that father should be allowed to obtain the children's passports without the mother's consent. I come to this conclusion for the reasons contained in the following discussion.

[72] Because the parents disagreed over the issue of custody and access, I requested the OCL to investigate and report in February 2011. The OCL conducted an extensive investigation, including multiple meetings with the children. The child, R., now age 15 years, stated that he was reasonably comfortable with the then-access schedule, but he did state that he would like some adjustments and, as well, that he would like to be able to travel to other countries with his father.

[73] The child K., now age 13 years, also expressed his general satisfaction with the access arrangements and the time he was spending with his father. However he did say that he would like to spend more time with his father over the Christmas holidays, March break and the entire month of July. He also said that he might be interested in travelling to the United States with his father to visit relatives.

[74] In discussions between the OCL clinical investigator and the youngest child, A., now 10 years old, there does not appear to be any indication in the OCL report about A.'s desire to travel outside Canada.

[75] All three children seemed to be relatively content with both parents' involvement in their lives, and reasonably content with the access arrangements.

[76] The OCL report concluded that mother should have sole final custody, with specified liberal access to father, including alternate weekends from Friday to Monday, the other alternate weekends from Saturday to Sunday, the entire month of July, as well as additional specified holiday time. The OCL did not address the travel issue in its final written report.

[77] Following the disclosure meeting with the OCL on November 3, 2011, the parties consented to a final order, essentially in the same terms as recommended by the OCL. It was that consent which was incorporated into the final order.

[78] The mother's stated position since the making of that order is that she would not trust the father to take the children out of Canada under any circumstances, regardless of any safeguards which may be imposed by the court.

[79] I place weight on the wishes of the children. While their wishes are not determinative of the issue the court must take their wishes in account. And as common sense dictates, the older the children – and here two of the three children are teenagers – the greater the weight that should generally be accorded to those wishes.

[80] Apart from her bare assertion regarding the father's intentions, there is no independent evidence to support the mother's allegations regarding the father's intentions to take the children permanently to Somalia, something which the father categorically denies. Furthermore, the fact that the father has lived in Canada for 28 years, and has been a Canadian citizen for 16 years, would suggest otherwise.

[81] On balance, I find it difficult to accept mother's evidence in this regard. Given the high level of distrust by the mother, and her assertion that the father has been threatening for the past 13 years to take the children away from her, the history of the litigation conflicts with the mother's stated concerns. Specifically, I note the following:

1. The mother consented to a temporary access order to father on February 16, 2007, without seeking a non-removal order.

2. The mother consented to a final access order to father on December 18, 2007, without seeking a non-removal order.

3. Again, mother consented to a final order, expanding father's access, on February 9, 2010, without seeking a non-removal order.

4. And, finally, on November 30, 2011, the mother consented to a much-expanded final access order, again without seeking a non-removal order.

[82] If the mother's fear about permanent removal from Canada is as sincerely held a belief as mother would suggest, and if the father had indeed made the threats alleged by mother, and offered the bribe money which she claims, I find it perplexing that she would consent to a number of access orders, without a condition that the children not be removed from Canada; even more so, given that with each successive access order that has been made over the years, with the mother's consent, the father's access has become more and more expanded.

[83] All three children were born in Canada. They have never been to Somalia. As appears from their discussions with the OCL clinical investigator, they are very much a part of Canadian society. If they were very young children, it would be easier for a parent to permanently remove them from Canada, as they would be less able to express their own wishes, or their own wishes would perhaps be less well-formed. However, given their ages, it would be more difficult for them to be permanently removed against their wishes without the father, in effect, forcibly kidnapping them.

[84] Mother has alleged that father has not taken proper care of the children in the past. However, despite one or two minor incidents, the clinical investigator noted that the father does take good care of the boys and that they are "very connected to their father". Mother's unfounded allegations in this respect are, in my opinion, consistent with her unfounded fears regarding the travel and passport issues.

[85] I am not persuaded by the evidence that father either threatened to remove the children from Canada permanently, or that he offered bribe money to the mother in exchange for permanently removing the children from Canada.

[86] The nature of mother's expressed concerns makes it very difficult for father to conclusively rebut because, in order to do so, he would have to effectively prove a negative – that he will not permanently remove the children from Canada.

[87] Accordingly, the court is required to look at the totality of the evidence and decide, on balance, whether it is more likely than not the father would do so if he were given permission to travel with the children. And on the basis of the foregoing, the evidence does not lead me to conclude that the father would attempt to remove the children permanently from Canada. On the contrary, I find on the evidence that the father has no intention of removing the children permanently from Canada if he were given permission to travel with them. Instead, I conclude, on balance, that the father wishes to provide the children with travel opportunities which are currently unavailable to them because of the intransigent position mother has taken.

[88] Returning briefly to the issue of process, if this is in fact an issue properly brought by application, I need only decide on a balance of probabilities that it is in the best interests of the children to allow them to travel with their father. On this basis, and for the foregoing reasons, I do conclude it is in their best interests.

[89] If another court were to decide that the father's claim ought to have been brought by a notice of change rather than an application, then the test is whether there has been a material change in circumstances which affects or is likely to affect the best interests of the children since the making of the final order. In that regard, I do conclude that there has been a material change in circumstances. Since the date the parties entered into their consent on November 3, 2011, the father has made one or more requests of the mother for travel permission and the mother has declined her permission. Furthermore, she has since made it clear that she would not give her permission for such travel under any circumstances. I conclude that these facts are sufficient to constitute a material change in circumstances since the parties entered into their consent on November 3, 2011 which, in turn, led to the making of the final order.

[90] Finally, I conclude that permission to travel, by itself, would be of little use to the father if he could not obtain passports for the children. And given the mother's attitude toward the father, I have grave doubts that she would cooperate in signing a passport application for the children if so requested by the father. Accordingly, the permission to travel must be accompanied by an order permitting father to obtain the children's passports without the mother's consent.

Order

[91] In the result, I make the following order on a final basis:

1. The father may apply for the children's passports without the consent of the mother.

2. The father shall retain guardianship of the children's passports unless the mother requests same for the purpose of a planned trip with the children outside Canada, in which case the mother shall return the passports to the father immediately following that trip.

3. In the event the father wishes to travel outside Canada with the children, he is at liberty to do so provided:

   a. He gives the mother not less than 14 days' notice of his intention to travel;

   b. Not less than 14 days prior to the travel date, he gives the mother a copy of his travel itinerary, including copies of transport tickets (if applicable), as well as an emergency contact number where he can be reached while out of Canada;

   c. In no circumstances will travel be permitted to Somalia; and

   d. He travels with the children only during his own access time unless the mother consents otherwise in writing.

4. In the event mother intends to travel outside Canada with the children, she shall comply with the same conditions imposed on father in subparagraphs 3(a), (b), (c) and (d) herein.

5. Should mother request temporary guardianship of the passports for the purpose of travel, the father shall cooperate by delivering the passports to her within a reasonable period of time so as to facilitate mother's travel with the children. Mother may retain those passports only for so long as necessary for travel purposes, following which she shall forthwith return the children's passports to the father.

[92] In the event father seeks costs, he shall make submissions in writing, within 21 days, submissions to be no longer than 3 pages, excluding any offers to settle as well as a Bill of Costs. The mother's response, with the same conditions, shall be delivered to the court within 14 days after receipt of father's submissions.

Justice Robert J. Spence

February 3, 2014