ONTARIO COURT OF JUSTICE
CITATION: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 68
DATE: February 2, 2021
COURT FILE No.: D31342/19
BETWEEN:
Cletus Oppong Wiafe
Applicant
— AND —
Gifty Afoakwa-Yeboah
Respondent
Before Justice Roselyn Zisman
Heard on December 30 and 31, 2020 and January 5, 2021.
Reasons for Judgment released on February 2, 2021
Glenda Perry .................................................................................. counsel for the applicant
Gabriella V. Deokaran.............................................................. counsel for the respondent
Decision on Motion
Zisman, J.:
1. Introduction
[1] This is a motion by the Applicant (father) for an order that the child Danett Oppong Wiafe born […], 2017 (the child or Danett) be returned to the City of Toronto or Peel Region, that the place of residence of the child not be changed without the consent of the other party, that the child live in the primary care of the father and for compensatory access. If the child is not voluntarily returned, the father requests an order for police assistance. The father also requests an order that the mother immediately provide her current address and update this information on an ongoing basis.
[2] The father’s motion was initially returnable on September 29, 2020. The motion originally requested in the alternative, that there be an order for shared residence but this relief was subsequently withdrawn.
[3] The Respondent (mother) filed an amended Notice of Motion returnable November 12, 2020 (although no original Notice of Motion was ever filed). The mother sought an order that the time to serve and file the Notice of Motion and affidavit be extended under the timetable set on October 7th, that the motion be heard on an urgent basis, that I be recused from hearing any matters in these proceedings, granting the mother permission to move with the child to London Ontario, that the access exchange location be changed to 214 Cross Avenue in London and protecting the mother’s address from being released to the father. The mother also sought child support and arrears of child support.
[4] The motions were finally heard over 3 days on December 30 and December 31, 2020 and January 5, 2021.
[5] I advised mother’s counsel that as the focus of the motions had always been on the parenting issues and given that there had not been time to argue the financial issues that the issue of child support and arrears of support would be determined at trial. Both counsel were directed to exchange requests for financial disclosure and further conference this issue before the case management judge.
[6] This is my decision with respect to the parenting issues and the issue of mobility.
2. Undisputed background facts
[7] The parties are the biological parents of the child Danett.
[8] The parties were in a relationship from about October 2016 to February 2019.The parties never lived together.
[9] The mother has another child Neriah Nkunim Adjei born […], 2020. The father of this child, who is the mother’s husband, resides in Ghana. Neriah was born in Canada.
[10] The father has two other children Daniel Oppong Wiafe born […], 2011 and Daniella Oppong Wiafe born […], 2014. Pursuant to a final order dated December 11, 2019 the father has joint custody with the mother of these children. For the last 5 years and confirmed in the final court order, the children reside with each parent on a shared 50% residential arrangement. The father also has two older children who reside in Ghana with their mother.
[11] Danett has resided in the primary care of the mother since birth.
[12] Commencing in February 2019, the mother began to ask the father to sign the child’s passport and to sign a consent for her to travel with the child to Ghana to spend time with her ill mother. The father eventually signed a consent for her to travel for 3 weeks from May 7 to June 2, 2019.
[13] The mother’s stay in Ghana was extended. The mother subsequently sent a text to the father that she would be returning to Canada on October 12th. When the father contacted the mother on October 12th requesting to see the child, the mother advised that she was in Edmonton, Alberta.
[14] The father immediately commenced an application. An urgent motion without notice to the mother was heard on October 18, 2019.
[15] The mother and child returned to Toronto on about November 6, 2019. The parties agreed to a temporary without prejudice order for access to the father.
[16] The mother and child resided in a shelter in Toronto as of November 2019. Due to COVID-19, the shelter was in complete lock down and the father did not have any in person access as of March 14, 2020.
[17] The mother moved with the child to London, Ontario on or about June 30, 2020.
[18] The parties have been engaged in extensive litigation the details of which are outlined later in this decision.
[19] As of October 30, 2020, the child has been in the care of the father.
[20] There is an outstanding order that the mother exercise access once a week for 5 hours.
[21] Other than these basic facts there is nothing the parties agree upon.
[22] The parties disagree as to the extent of the father’s involvement in the child’s life prior to the separation, disagree regarding the mother’s allegations of domestic violence, disagree as to whether the mother has intentionally interfered with the father’s relationship with the child and disagree to whether the father consented to the mother’s move to London, Ontario. Both parents raise concerns about the other parent’s ability to meet the needs of the child. They both raise issues about the other parent’s truthfulness.
3. Litigation history
[23] The parties have engaged in lengthy litigation at all levels of court that unfortunately has clouded the issues and delayed this motion. The allegations made by counsel against each other have also caused further acrimony.
[24] A review of the litigation history is relevant to the issues on this motion.
[25] The father commenced an Application on October 18, 2019 requesting an order prohibiting the mother from removing the child from Ontario and/or Canada without his prior written consent, prohibiting the mother from travelling with the child without his prior written consent, ordering the child be returned to Ontario, granting the father custody or in the alternative, joint custody with a shared/parallel parenting plan and an order for immediate access to himself.
[26] On October 18, 2019 an urgent motion without notice to the mother was heard for similar relief. Justice Sager made a temporary without prejudice order that neither party remove the child from Ontario without a further court order. The father was required to immediately serve the mother with his Application, 35.1 affidavit, his motion materials and a copy of the court’s endorsement. The matter was adjourned to October 24th.
[27] On October 24, 2019 a friend of the mother’s attended court and confirmed that the mother was in Edmonton. An order was made that the mother keep the father advised on her current address and phone number and the matter was adjourned to November 8, 2019 peremptory to the mother who was warned that if she did not attend court an order may be made in her absence. The order of October 18th was to continue in full force and effect.
[28] On November 8, 2019 the mother attended court and was represented by counsel Osei Owusu who represented her on that attendance as an agent.
[29] On a temporary basis, the parties consented to an order that neither party remove the child from the Greater Toronto Area (GTA) without the prior written consent of the other party or further court order. It was further agreed, on a temporary without prejudice basis, that the father would have access three times a week on Saturdays, Tuesdays and Thursdays for 3 hours each visit with access exchanges at the Woodbine Mall in Toronto. The initial 3 visits were to be in the presence of the mother, the next 3 visits with the first half hour in the presence of the mother and thereafter the visits were unsupervised. The father was not to leave the child in the extended care of a third party.
[30] The next court attendance of January 2, 2020 was adjourned to March 9, 2020 as the mother had still not served and filed her Answer and 35.1 affidavit. She was granted a further extension to do so.
[31] The March 9, 2020 attendance was adjourned again to April 20, 2020 as the father was in the process of retaining new counsel.
[32] Due to COVID-19 and the suspension of regular court services the case was adjourned several times.
[33] The matter was before Justice Sager for a case conference on August 19, 2020 at which time a date of September 29th was set for the father’s motion for an order that the child be returned from London Ontario and for other relief. Timelines for serving and filing materials were set out.
[34] The father’s motion scheduled to proceed before Justice Sager on September 29, 2020 did not proceed. The mother had retained new counsel who sought an adjournment as she had recently been retained and was unable to comply with the timelines set on August 19th. Counsel for the father opposed the adjournment and requested an order that the child be placed in his care if the adjournment was granted. The adjournment was granted to October 7, 2020 and the mother was given a further extension until September 30th[^1] to serve and file her responding materials.
[35] On September 29, 2020 Justice Sager endorsed that the mother should be prepared to provide the court with her current address should she be ordered to do so at the next court date.
[36] On October 1, 2020 a 14B motion was filed on behalf of the mother seeking a copy of the transcript of the September 29th attendance. The deponent, who does not identify her relationship to the mother, states that, “Our client intends to review the same [transcript] to potentially address the issue of reasonable apprehension of bias and/or appeal.”
[37] On October 5, 2020 Justice Sager ordered that the motion should proceed before a different judge due to the importance of the issues raised by the father and as a result of the mother’s counsel’s allegation of potential apprehension of bias by her.
[38] There was never a motion filed by mother’s counsel for Justice Sager to recuse herself. Further, there was no finding or agreement that there was an apprehension of bias by Justice Sager and that therefore she should recuse herself from hearing the motion.[^2] The transfer was done solely to avoid delay in the hearing of the motion.
[39] On October 7, 2020, the motion was before me by telephone conference. Counsel on behalf of the mother requested another adjournment. The adjournment was opposed by father’s counsel or if the adjournment was granted, he again requested that the child be placed in his care. The mother was not on the telephone.
[40] Although the adjournment was granted, an order was made to place the child in the care of the father pending a return of the motion on November 12, 2020. An order was also made for police assistance if the mother did not voluntarily place the child in the father’s care. The mother’s time to file her responding affidavit was again further extended to October 26, 2020 and any reply by the father to November 9, 2020.
[41] On my own motion and to require compliance with the order of October 7th, the mother and child were ordered to attend court in person on October 21st.
[42] On October 20th, the court received a 14B motion supported by an affidavit from mother’s counsel’s law clerk indicating that counsel could not attend the hearing on October 21st as she had a hearing in the Divisional Court. No alternate days for attendance or alternate method of attendance were offered.
[43] The affidavit of the law clerk attached a medical note dated October 19th from the Four Corners Health Centre in Mississauga signed by “Aalla Sidahmed”[^3] that stated that the mother reported that she developed a fever on October 14th and a cough on October 15th and was required to self-isolate for 10 days that is, until October 24th.
[44] On October 21st neither the mother or her counsel attended court in person or on the telephone. As a result of the medical note, the matter was adjourned to October 30th for the mother and child to attend in person in order to ensure compliance with the court order of October 7th that the child be placed in the father’s care.[^4]
[45] However, the endorsement stipulated that if the mother or her counsel could not attend in person for medical reasons then they were to advise the court if they wished to attend by telephone conference or Zoom by the end of day. The endorsement further indicated that if counsel did not contact the trial coordinator the matter would proceed by telephone conference.
[46] On October 29th the court received a 14B motion supported by an affidavit of the mother with a further note from the same medical clinic dated October 27th that the mother self-reported that she had a fever as of October 27th and was again advised to self-isolate for 10 days, that is until November 6th. The endorsement notes that there was no reference to the mother having a COVID test.
[47] As mother’s counsel had not advised the court as to how she wished to proceed for the attendance on October 30th,it therefore proceeded by telephone conference. Neither the mother nor her counsel participated. Father’s counsel was on the telephone and advised the court that the mother’s counsel had still not served her responding affidavit or cross-motion in accordance with the October 26th deadline.
[48] The court did receive an “urgent” affidavit allegedly from the mother that was unsigned, unsworn and with no affidavit of service on the morning of October 30th indicating that mother’s counsel was not available as she was in the Divisional Court. No alternate days for an attendance were provided.
[49] In the interim, counsel for the mother attempted to bring an urgent motion for a stay of the October 7th order in the Superior Court of Justice in Brampton. On October 13th Justice Tzimas released an endorsement that the court would not hear the motion as a Notice of Appeal had not been filed and the court had no jurisdiction to hear the appeal. Counsel was directed to follow the Notice to Profession regarding proceedings in the Divisional Court.
[50] Counsel for the mother followed these instructions and the matter came to the attention of the Divisional Court on October 14th. Justice Favreau directed that the underlying order was interlocutory and that the proper appeal route was to the Superior Court of Justice. A motion for a stay[^5] was then initiated in the Superior Court of Justice in Toronto.
[51] On October 20th, the mother’s stay motion was dismissed. However, Justice Nakonechny ordered that the mother have access to the child in Mississauga for 5 hours each weekend commencing October 31st , on dates and times to be agreed upon between the parties.
[52] On October 30, 2020, mother’s counsel brought an urgent motion before Justice Juriansz of the Ontario Court of Appeal to stay the order of Justice Nakonechny. The court held that it did not have jurisdiction and dismissed the motion.
[53] Counsel for the mother then proceeded to seek a stay of Justice Nakonechny’s order in the Divisional Court.
[54] In a written endorsement of Justice Corbett dated November 26, 2020, he dismissed the appeal. Justice Corbett confirmed that pursuant to Rule 2.1.01 of the Rules of Civil Procedure, mother’s counsel was given notice on November 5th that the court was considering dismissing the appeal as frivolous, vexatious and an abuse of process.
[55] On November 30th Justice Corbett issued an order that having read the submissions provided by the mother’s counsel, that the appeal to the Divisional Court was dismissed as frivolous, vexatious and an abuse of process.
[56] On November 10, 2020 at 4:49 p.m. this court received a 14B motion from the mother’s counsel to abridge the time for service and filing of the mother’s affidavit sworn on November 9th, 2020[^6] as it contained important updating information. As this motion was not reviewed by the court until November 12th, it was addressed on November 12th court attendance.
[57] On November 12th, the substantive motion did not proceed as the mother’s counsel sought to proceed with her motion for me to recuse myself on the grounds of reasonable apprehension of bias. Counsel had previously been given leave to bring this motion on November 12th or if an earlier date was required that the trial coordinator was to be contacted. An earlier date was not sought.
[58] Although 1.5 hours had been allocated for the recusal motion, it was not completed. The continuation of the recusal motion was adjourned to be heard on November 26th for a further 1.5 hours. It could not proceed on November 26th and was then adjourned to December 8th at 2:00 p.m. and heard for a further 3 hours. The decision was reserved.
[59] On December 8, 2020 at the conclusion of the recusal motion, a date of December 30th was set for the substantive motion to be argued.
[60] Both counsel were given leave to serve and file Reply affidavits limited to 20 pages not including exhibits. In view of the various allegations made by counsel against each other with respect to documents allegedly emailed not being received or only partially received, an order was made that the affidavits be hand delivered or couriered to opposing counsel and to the court.
[61] On December 24th, a further 14B motion was submitted by mother’s counsel with respect to the inadmissibility of the father’s reply affidavit allegedly served with less notice than required by the Family Law Rules (FLR).
[62] On December 24th, an endorsement was sent to both counsel that the motion was proceeding on December 30th and it was in the best interests of the child that all materials be considered by the court. The endorsement further provided that if the mother’s counsel required more time to serve and file her reply affidavit, she could do so by December 30th at 10:00 a.m.
[63] The endorsement further stated that the court staff would not respond to any further emails sent by either counsel and all issues would be dealt with by the court on the return date of December 30th.
[64] On December 15th, I released a written decision and dismissed the motion for recusal.
[65] As a result, I heard the substantive motion on December 30 and December 31, 2020 and on January 5, 2021. The Notices of Motion and Confirmations requested that for this motion the court rely on all the pleadings, all affidavits filed in the Continuing Record and the endorsements and previous orders made by the court. Both counsel made refence to the proceedings in other courts and attached as exhibits to their client’s affidavit copies of endorsements and orders from other courts.
[66] Both counsel were advised during the hearing of the motion that a trial in this matter needed to be heard as soon as possible. Both counsel agreed that they would be prepared to proceed to trial in the week of March 15 to 19 and/or March 22 to 29, 2021 with the exception of one or two previously scheduled matters. A settlement conference and initial trial planning hearing before Justice Sager has been scheduled for January 21, 2021 at 9:00 a.m. Father’s counsel indicated that there are several motions for third party records that she wished to bring and she was given leave for such motions to be heard on January 21st or another date scheduled by Justice Sager.
[67] Both counsel were advised that strict timelines would be set for the hearing of the trial and a further trial management conference may be scheduled before the trial judge to further refine any trial planning and to address any pre-trial evidentiary issues.
[68] While the matter continued before this court, the case was again before the Superior Court of Justice with respect to a motion by the mother to find the father in contempt of the order of Justice Nakonechny granting the mother access for 5 hours once a week on the weekend.
[69] On November 17, 2020 Justice Nakonechny ordered that the contempt motion be heard on November 26th for one hour before herself, if she was available. The mother was ordered to have access from 12 noon to 5:00 p.m. to be exercised in Mississauga with exchanges at the front desk of Division 11 Peel Police Station. The mother was required to give the child’s passport to the father at the beginning of the access and the father was to return it at the end of the access. This term was made without prejudice and was not to be a finding against the mother. A police enforcement clause was also made to enforce the terms of access and to ensure that the child was returned to the father at the end of the access visit.
[70] The contempt motion was heard on December 3, 2020 before Justice Nishikawa. On that date, a short endorsement stated that the motion was scheduled as a regular motion but took 1.75 hours to argue. The decision was reserved. Counsel for the mother was ordered to re-file her Reply affidavit that was over 300 pages with all exhibits by noon December 4th. The access ordered by Justice Nakonechny on November 17th was to continue.
[71] On December 10, 2020 Justice Nishikawa released her decision. The motion for contempt, that sought that the child be returned to the care of the mother and that the father be imprisoned for 30 days, was dismissed. The mother was ordered to pay costs to the father of $3,360.81.
[72] Based on the mother’s reply affidavit of December 31st, it appears there may be more proceedings in the Superior Court of Justice and the Divisional Court.
4. Issues to be determined
[73] With this background the court must determine the following issues:
Should the mother be permitted to move and remain in London Ontario on a temporary basis?
What parenting arrangements are in the child’s best interests?
Should the mother be required to reveal her current address and contact information?
5. Preliminary Procedural and Evidentiary issues
5.1 Admissibility of father’s responding/reply affidavit sworn December 22, 2020.
[74] Counsel for the mother objected to the admissibility to the father’s responding and reply affidavit sworn December 22, 2020
[75] On December 24th the court received an “urgent confirmation” from mother’s counsel objecting to the admissibility of the father’s responding/reply affidavit sworn December 22nd on the basis that it was not served until December 23rd.It was submitted that the affidavit is therefore not in compliance with the subrule 14 (11.4) FLR that requires an affidavit in response to a motion to be served and filed 4 days before the hearing. I note that pursuant to subrule 14 (11.5) a reply affidavit may be served no later than 2:00 p.m. 3 days before the motion.
[76] The Confirmation also indicated that the mother’s counsel would not agree to any adjournment of the motion unless the child was returned to the mother. The Confirmation further stated that, “The Court is not permitted to read the Applicant’s responding affidavit, even if Ms Perry’s office provided a false affidavit in order to get her materials filed.”
[77] As the father’s affidavit was both a response to the mother’s affidavit and a reply to his own motion, I find that it should have been served 4 days before the hearing of the motions.
[78] At the commencement of the motion, the issue of the admissibility of the father’s response/reply affidavit was addressed by the mother’s counsel.
[79] An affidavit of service was filed sworn by Leticia Adjel stating that the father’s affidavit was left at the office of mother’s counsel on December 22nd at 1:56 p.m. Ms Adjel deposes that there was a notice dated March 20, 2020 on counsel’s office door that stated that the office was closed and instructing people to call or email the office. There was no one present and no other tenant to leave the document with and accordingly it was left outside the door of the office. Photos were attached to the affidavit of service of the notice on mother’s counsel’s door and the document that was left on the floor outside of the door of mother’s counsel’s office.
[80] Further, attached to the affidavit of service was a copy of an email, sent by father’s counsel to the mother’s counsel on December 22nd at 1:32 p.m., stating that the process server was at her office and she would wait 15 minutes for counsel to attend to pick up the document. A further email was sent to advise counsel that the affidavit had been left. Ms Adjel also emailed mother’s counsel the affidavit on that day at 2:49 p.m.
[81] On December 8th, when the order was made for both counsel to hand deliver or courier their affidavits to the other counsel, mother’s counsel did not advise the court or opposing counsel that no one would be at her office to receive the documents. She did not provide an alternative address for delivery of documents.
[82] Counsel for the mother submitted that Ms Adjel is a friend of the father’s and implied that she may be filing a false affidavit. I agree that Ms Adjel’s relationship to the father should have been clearly stated on the affidavit of service.
[83] It was submitted by mother’s counsel that the affidavit should not be admitted without an opportunity to cross-examine the affiant Ms Adjel. However, mother’s counsel wished to proceed with the motions and if this relief was granted the father would have been deprived of the opportunity to respond and reply to the mother’s affidavit.
[84] When the court attempted to clarify what documents were not received, mother’s counsel agreed that she received the entire affidavit but then submitted she did not receive all the exhibits. When further questioned she was not clear with respect to exactly which exhibits she did not receive either in the hard copy that was left at her office or in the emailed version.
[85] Mother’s counsel did not notify father’s counsel of what exhibits she was missing. Almost all the exhibits were documents that she was already in receipt of such as, court orders and endorsements, correspondance between counsel, and texts between the parties.
[86] In the mother’s reply affidavit, she responds to or explains the other documents that the father attached to his affidavit such as a doctor’s letter, a dentist’s letter and the child’s dental chart, an email regarding his daycare subsidy and What’s Apps messages from a Quebec area code. I therefore draw the inference that the mother and her counsel were served with these exhibits.
[87] I find on a balance of probabilities that the father’s affidavit with all exhibits sworn December 22nd was properly served on the mother’s counsel on December 22nd and that the affidavit is admissible. I make this finding despite the mother’ statement in her reply affidavit sworn December 31st that she received the affidavit from her counsel and it was missing the majority of the exhibits and as a result she did not have time to properly prepare a reply affidavit. In view of the length of the mother’s reply affidavit and the exhibits it appears she had ample opportunity to reply.
[88] In the mother’s reply affidavit, she also raises issues with respect to the admissibility of paragraphs 5 to 24 of the father’s December 22nd affidavit as an attempt to relitigate the prior litigation. I do not find this argument persuasive. The father’s affidavit of December 22, 2020 merely outlines the litigation that has occurred since his initial affidavit of September 9th, 2020 and is proper response or reply to the mother’s affidavit.
5.2 Admissibility of mother’s reply affidavit
[89] On the morning of December 30th, counsel for the mother emailed the court and counsel for the father, the mother’s reply affidavit. The affidavit itself on the front page indicated a date of December 23rd and the subsequent pages had the date of December 29th. Although the page with the jurat was not emailed, it was subsequently emailed and indicated it was sworn and commissioned on December 301st. Exhibits up to exhibit “P” were attached although the affidavit referred to exhibits from “A to Z” and “AA to CC.”
[90] During the mother’s counsel’s submissions in the morning, the discrepancy in the dates were pointed out to counsel and the fact that all the exhibits had not been emailed. Over the lunch hour, mother’s counsel then emailed to the court and to father’s counsel a compete affidavit with three separate sets of exhibits that totalled about 345 pages.
[91] The dates on the front and subsequent pages had been changed to December 31st. There was no indication that the changes had been initialled by the mother and it appeared that further exhibits had been added. There were missing exhibits and the exhibits were out of order.[^7]
[92] In any event, given the length of the affidavit and the fact that the exhibits were not bookmarked, counsel was ordered to file 2 copies of the affidavit with all exhibits tabbed at the court office by January 4th by noon. The court staff would then notify father’s counsel to pick up the affidavit from the court office. This was done to avoid any further allegations that complete copies of documents were not received.
[93] A further 1 hour was reserved to hear this matter on January 5th. Father’s counsel was given 20 minutes for submissions on the admissibility of all or parts of the Reply affidavit and a further 20 minutes to reply to the mother’s submissions regarding her motion. The mother’s counsel was given 20 minutes to respond to the admissibility of all or parts of the mother’s reply affidavit. As mother’s counsel had already replied to the father’s motion further time was not provided to her for any further reply.
[94] On January 5th, father’s counsel submitted that given the length of the mother’s reply affidavit it would be impossible to make submissions with respect to each individual paragraph or exhibit. She submitted that most of the reply affidavit was argumentative, speculative and contained opinion as opposed to evidence. She submitted that the mother had not responded to the serious allegations made by the father with respect to the mother’s untruths in her affidavit of October 8th and tried to divert from the facts. Counsel left it to the court to determine the admissibility and/or weight to be attributed to the mother’s reply affidavit.
[95] Father’s counsel adhered to the time limit set by the court and ran out of time to further address the issue of the access the father would provide to the mother if the child remained in his care or the access he wished if the child was returned to the mother’s care.
[96] Counsel for the mother did not adhere to the time limits. In view of her strong objections that she should also be granted an opportunity to make further reply submissions to the father’s motion, she was granted a further 20 minutes for further reply. But mother’s counsel continued to make submissions for a further 45 minutes at which time the court had not choice but to simply require the submissions to stop due to other cases that were scheduled. Counsel spent time making submissions about the applicable law and raised new issues that clearly were not proper reply.
[97] Subrule 14 (20) FLR sets out the restrictions on evidence that can be used on a motion as follows:
Restrictions on evidence. - The following restrictions apply to evidence for use on a motion, unless the court orders otherwise:
1.The party making the motion shall serve all the evidence in support of the motion with the notice of motion.
2.The party responding to the motion shall then serve all the evidence in response.
3.The party making the motion may then serve evidence replying to any new matters raised by the evidence served by the party responding to the motion. [emphasis added]
4.No other evidence may be used.
[98] As is evident, the filing of reply evidence is discretionary and is restricted to filing evidence in response to new evidence raised in the opposing party’s responding affidavit. The restriction is to ensure that each party has a fair and equal opportunity to argue the issues. It is not to permit a party in reply to confirm or restate evidence that was already made or which could have been made in the party’s initial affidavit.
[99] The importance of the rule to limit reply evidence is of particular importance in family law matters. Each new allegation raised in this manner will cause the opposing party to request another opportunity to reply thereby further escalating the conflict and further delaying the proceedings.
[100] In determining whether to restrict the evidence in the mother’s reply affidavit, I am mindful that it is important for the court to receive relevant evidence with respect to the best interests of a child.
[101] As stated by Justice Himel in the case of Winston v. Lofranco,[^8] where she granted leave to file a further affidavit on a motion, the court should take an expansive rather than technical approach to the admission of evidence when children are involved, provided the evidence is relevant, necessary and probative.
[102] In applying and balancing these principles, I find that if the offending parts of the mother’s reply affidavit are permitted to be admitted then the father has been deprived of a fair process as he is not able to respond to new allegations being raised.
[103] The mother has split her evidence between her affidavit sworn October 8th and the reply affidavit sworn December 31st. The mother repeats and expands upon evidence already in her October 8th affidavit or that was available when she prepared her October 8th affidavit. This results in the father not being able to reply to the new allegations made by the mother.
[104] In the mother’s October 8th affidavit, in support of her Notice of Motion, she indicated that her counsel was able to contact counsel for Ms Tachie, the father’s former partner and mother of his children, and obtained a copy of her court documents. She quotes extensively from Ms Tachie’s Application and attached as exhibits a copy of the Application and an ex parte order. The more current court order that provided, on consent, for a joint and shared custody parenting arrangement is not referred to.
[105] In the reply affidavit of December 31st the mother refers extensively to excerpts and recommendations from a section 112 report from the Office of the Children’s Lawyer (OCL) and includes portions of the report with respect to information obtained from collateral sources. There is no explanation to why this evidence was not in the mother’s initial affidavit so that the father could respond. The clinician who prepared the report is not named and the entire report is not included.
[106] The basic requirements for evidence to be admissible is that the evidence is relevant, necessary and probative. Even if the relationship between the father and his former partner is relevant it is not necessary or probative in the form and manner it has been adduced. The parties did not accept the recommendations in the OCL report. The OCL clinician who prepared the report was not subject to scrutiny as the report was never cross-examined upon. Nor was any of the collateral information relied upon in the report subject to scrutiny.
[107] The mother in her reply affidavit questions if the father has Munchausen by Proxy as she alleges that he has a history of fabricating medical information and attaches as exhibit “S” an article about Munchausen by Proxy. The mother bases her concerns again on information she has obtained from Ms Tachie and the OCL report. If this is included to request the court take judicial notice of this mental health disorder and that the father suffers from this condition then clearly, I decline to do so as there is no basis in the admissible evidence to come to this conclusion. Further, this is again not proper reply.
[108] Accordingly, paragraphs 40, 52, 53, 54,65, 70 (1), 70 (2),70 (3) and 80 and exhibits, “M”, “N”, “S”, “T”, “U” and “EE” are struck from the mother’s December 31st affidavit.[^9]
[109] There are many references in the mother’s reply affidavit that appear to be attempting to relitigate the proceedings that have been held specifically with respect to the motion to stay before Justice Nakonechny and the contempt motion before Justice Nishikawa. As opposed to striking these references, I will simply assign no weight to the portions of the affidavit that attempt to relitigate prior proceedings.
[110] Counsel for the mother attaches as exhibits many extraneous documents such as her costs submissions, exhibit “W”, with respect to a motion in the Superior Court of Justice and copies of the mother’s affidavits with respect to the contempt motion.
[111] In paragraph 74 the mother deposes that she attaches as exhibit “DD,”[^10] the mother’s affidavit dated November 10 and 16 and December 1, 2020 filed on the contempt motion in the Superior Court of Justice. However, what is attached as exhibit “DD” in the affidavit filed with the court are affidavits are dated of October 9th and December 22nd. The December 22nd affidavit appears to be the same reply affidavit that is filed on this motion.
[112] There are also missing exhibits including exhibit “G” that was purported to be the mother’s negative COVID-19 test, exhibit “AA” that was purported to be a video of the child stating that the father injured her.
[113] I point out these discrepancies due to the confusion created by mother’s counsel in the manner that this affidavit was prepared.
[114] In summary, I find that the paragraphs of the mother’s December 31th affidavit that are admissible as reply relate to evidence with respect to the mother’s version of events that occurred after the October 7th order to place the child in the care of the father, evidence responding to the father’s allegations of possible neglect of the child’s medical and dental needs and evidence with respect to access since the child was apprehended by the police on October 30th and placed in the father’s care.
5.3 Hearsay
5.3. (a) Position of the parties and general principles
[115] Counsel for the mother objected to the hearsay in the father’s affidavit. In particular, she objected to evidence with respect to statements the father alleges were made by the police regarding enforcement of the October 7th order to place the child in the care of the mother and statements attributed to Dr. Nangassam who examined the child while she was in the care of the father.
[116] When it was pointed out that the mother’s affidavit contains hearsay based on comments made by Ms. Taiche, the mother of the father’s other children, counsel for the mother submitted that as there were documents to support this evidence, it was no longer hearsay.
[117] With respect to some statements attributed to the child in the mother and the father’s reply affidavits, counsel for the mother on December 31st submitted that the child’s statements were not being admitted for the truth. She further submitted that there were statements allegedly made by the child regarding her close bonds to the mother, that the child cried when taken away from her mother and being overjoyed when she saw the mother again. Counsel acknowledged that even if admissible, no weight would be attributed to any such statements due to the child’s young age.
[118] Accordingly, it was my understanding that it was agreed that any statements by the child were not being admitted for the truth but simply to indicate what steps were taken as a result that is, simply for context.
[119] Counsel for the father did not submit that any of the child’s statement to the father should be admitted for the truth but for narrative or context that is, to explain certain steps he took as a result. For example, the father deposes that after access visits with her mother the child kept asking him if he was going to hurt her and made statements such as, “daddy please don’t hurt me...daddy will you hurt me?” He deposed that as a result of the mother’s allegations that he caused an injury to the child’s chin and the child’s subsequent comments, he took the child to a medical clinic to prove that there was no injury.
[120] However, in mother counsel’s reply submissions on January 5th, she began to argue that in accordance with R. v. Khan[^11] the child’s statements were admissible as being reasonably necessary and reliable.
[121] Given the unclear submissions by counsel, I find it necessary to briefly review the issue of hearsay.
[122] In R. v. Bradshaw[^12] the Supreme Court of Canada provided a synthesis and reorganization of the law pertaining to the admissibility of hearsay statements. The court discussed that the dangers of hearsay can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability).
[123] Procedural reliability is established when “there are adequate substitutes for testing the evidence”, given that the declarant has not stated the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination. These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement.
[124] Substantive reliability is established if the statement is inherently trustworthy. To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement.
[125] The two approaches to establishing threshold reliability may work in tandem. Procedural reliability and substantive reliability are not mutually exclusive and “factors relevant to one can complement the other”.
5.3 (b) Admission of child’s statements
[126] I only refer to the statements or gestures that the mother wishes admitted for their truth as the father did not argue that the statements in his affidavit with respect to the child’s statement were being adduced for the truth.
[127] Counsel for the mother did not direct the court to the actual statements she wished admitted. Based on my review of the reply affidavit, there are only three .references.
[128] In the mother’s reply affidavit, paragraph 62, the mother refers to Danett crying and screaming when removed from her care.
[129] In the mother’s reply affidavit, paragraph 71 (b) the mother deposes that the child stated with respect to a scratch on her chin that, “Daddy did it.”
[130] The only other reference to a child’s statement or state of mind is referred to in paragraph 70 (2) of the mother’s reply affidavit, where the mother states that the father yells and screams at Danett, she often cries because she misses her mother and that when she cries she is put in a room by herself. The source of this information is Ms Tachie who advised the mother that her children told her this.
[131] The principles set out in Bradshaw are important to assess the admissibility of children’s statements on a motion or if admissible, how much weight to place on them.
[132] The mother did not set out an evidentiary foundation to establish either procedural or substantive reliability for the child’s statements as set out in Bradshaw. This evidentiary foundation is essential if the court is going to admit or place any weight on these statements.
[133] I find that the statements attributed to the child are not admissible. But if admissible, I would place no weight on them. The statements that counsel for the mother seeks to rely upon do not meet threshold reliability and should be given little, if any, weight on a motion. The child’s statements do not meet threshold reliability – procedurally, substantively or combined. They are not inherently trustworthy.
[134] With respect to procedurally reliability, the child’s statements were not made to an independent person, there are no contemporaneous notes or any notes, there is no context for the statements and no way to assess if the child’s statement were spontaneous. There is no adequate substitute for testing this evidence for the court to be able to evaluate the truth and accuracy of the statements.
[135] With respect to substantive reliability, similar concerns exist with respect to the lack of independence and the mother has a vested interest in the outcome of the motions. The child is only 3 years old and the statements are inherently untrustworthy. The mother may not be telling the truth or the mother may be improperly interpreting the statements. The child may have been prompted or asked leading questions.
[136] In the case of the statements allegedly made by the father’s other children that is conveyed by their mother Ms Tachie to the mother, they are not only hearsay but double hearsay. The statements are repeated by the mother who has a vested interest in this litigation. They do not meet the threshold test of reliability.
5.3 (c) Statements attributed to Ms Tachie
[137] In the mother’s reply affidavit, she refers to many statements made by Ms Tachie and explains that Ms Tachie did not file an affidavit because she was afraid to do so because of her fear of the father. I am not prepared to admit this hearsay evidence.
[138] I do not find that based on a statement from the mother that Ms Tachie was afraid to file an affidavit to be persuasive. There is no context or details provided.
[139] If Ms Tachie was prepared to make statements to the mother and provide her court documents to the mother being aware that they would be used in a court proceeding, it does not make common sense that she would then be afraid of filing an affidavit to confirm those facts. By simply providing information to the mother, she avoids the prospect of being cross-examined.
[140] I find that any statements allegedly made by Ms Tachie to the mother do not meet the test for threshold reliability.
5.3 (d) Admission of hearsay from the police
[141] Counsel for the mother objected to the refences in the father’s responding/reply affidavit to information he received from the police that the mother was not complying with the order for the child to be placed in his care. The father also repeated information he received from the police when the mother attended unannounced at his home on October 31st demanding to exercise access. According to the father, the police denied telling the mother they were coming to enforce the access order as alleged by the mother in a text message to the father.
[142] The father provides the names of the police and their badge numbers. He further deposes that his counsel requested the mother consent to the release of all police records with respect to both parties and the mother’s counsel refused.
[143] The mother in her October 8th affidavit alleges that the father had a friend call her mother in Ghana and told her that the Peel police were trying to locate the mother to arrest her. The mother deposes that she spoke to the Peel police who confirmed that there were no records of anyone calling her or any records or communication from the father. The police further confirmed they had no intentions of arresting her.
[144] The mother in her reply affidavit refers to statements made by the police when she called them due to allegations that the father’s new girlfriend was calling and harassing her.
[145] It appears that the mother has no issue with including hearsay information in her affidavit that the court should admit but that the same criteria should not be applied to the father’s affidavit. Further, it makes the mother’s position that she would not consent to the release of police records more difficult to understand.
[146] I find that in view of the mother’s refusal to provide consent for the records of the London and Peel police to be provided that the evidence is admissible as given the time frame there was no opportunity to obtain those records. I draw a negative inference from the mother’s refusal to consent to the release of the police records.
[147] Also, in view of the concerns about the mother’s credibility, I would not admit the statements she attributes were made by the police to her.
[148] However, in view of the fact that the father is not a neutral party I only give limited weight to the information he alleges was provided by the police information except as corroborated by other independent evidence.
5.3 (e) Hearsay statement from other third parties
[149] The mother relies on statements made by her mother, the father’s mother and one of the father’s older daughters in Ghana.
[150] The father also relies on statements from his mother and some statements made by a friend of his.
[151] None of these statements are probative and even if admissible, no weight is attributable to them
5.3 (f) Admission of letters attached to affidavits
[152] The father and mother both attach letters from neutral professionals such as from doctors and a dentist that I find are admissible.
[153] Counsel for the mother objects to the father’s refence to information he received from a doctor and dentist but then in the mother’s reply affidavit she deposes at length with respect to information she obtained from Dr. Sidahmed to dispute that the father’s allegation that the child is overweight.
[154] I have only relied on any letters or records from any doctor or dentist that were filed as exhibits to both parents’ affidavits and not relied on statements either parent alleges was made to them by a doctor or dentist for their truth.
[155] However, there is a letter attached to the mother’s October 8th affidavit as exhibit “CC” from the mother’s counsellor Krista Slavik who describes herself as a Transitional Housing Support Counsellor/Advocate” from Interim House. In the mother’s affidavit of October 8th, the front page of the letter was missing. Mother’s counsel was requested to forward the entire letter to father’s counsel and it is therefore included in the father’s affidavit as exhibit “X”.
[156] The letter dated September 1, 2020 indicates that Interim House is an anti-violence organization that provides shelter, counselling, advocacy and supports to people who have experienced violence. The letter confirms that the mother was very pro active in looking for housing and explains why she needed to look outside of Toronto.
[157] The issue of why the mother moved outside of Toronto in contravention of a non-removal order is a pivotal issue on this motion. The letter states that it would not be ethical to penalize her choice to move to London. The letter further states, “I am strongly encouraging recognition of her work to secure housing for her and her family, and afford the challenges and barriers she successfully overcome as a survivor of violence, a single mother, a woman of colour and a person of low income.”
[158] As this letter was dated September 1, 2020 there is no explanation as to why a sworn affidavit could not have been obtained from Ms Slavik and why the mother needed to rely on hearsay. Just because the hearsay evidence is in a letter does not change the nature of the evidence being relied upon.
[159] The mother also attaches as exhibit “G” a letter from Star Rogers dated September 30, 2020 who is a Program Supervisor from Interim House. The letter states that the mother disclosed verbal, emotional and financial abuse from the father. She further states that the mother reported that the father would threaten to take Danett away from her if she did not return to Ontario. There is no explanation as to why Ms Rogers could not have sworn an affidavit. Given the importance of the issue of domestic violence as alleged by the mother and denied by the father, I am not prepared to admit the letter of Ms Rogers on the same basis as with respect to the letter from Ms Slavik.
[160] The danger of relying on such letters attached to an affidavit was outlined by Justice Vogelsang in the case of Lisanti v. Lisanti[^13] at paragraphs 5 and 6 as follows:
There has been a disturbing tendency in recent months to attempt to incorporate, in motion material, renditions of statements allegedly made by parties or other sources without their inclusion in an affidavit. The rules, however, require evidence on a motion to be by way of affidavit. The basis of that requirement is obvious. Without the possibility of testing an allegation through cross-examination, there is an incentive to swell the evidence freely with unsupported statements by persons not clearly identified and, therefore, safe from inquisition. That is the situation with this exhibit.
Mr. Winninger argued that the issue is the weight to be given to the exhibit and not its admissibility. I do not agree. It is not enough to characterize the requirement in the rules as a “general rule” only. The fact that the statements made may possess some superficial relevance does not, in my view, transform inadmissible evidence into an acceptable form. If the respondent wishes to describe events during her marriage or happenings that were said by somebody else to have occurred during an access visit, then she must state them herself in an affidavit, if they are to be considered. The production of these statements in their present form is improper, greatly prejudicial and scandalous. It cannot be salvaged by resort to a plea concerning urgency or the demands of time.
[161] The Ontario Court of Appeal in the case of Katz v. Katz[^14] affirmed this same approach and concern and stated as follows:
Before making an order that efficacy of which will depend on the truth of the contents of a letter, a court should at a minimum, require an affidavit from the author of the letter attesting to its contents.
[162] I also adopt the comments of Justice Price in the case of Ceho v. Ceho[^15] as follows:
Where an unsworn letter or report is tendered for the truth of its contents in respect of contested facts, the closer those facts come to the dispositive issue, the closer scrutiny the letter or report deserves, including submitting to meaningful cross-examination evidence from witnesses with first-hand knowledge of the facts.
[163] In addition to these grounds of inadmissibility, counsel for the father relied on the Ontario Court of Appeal case of R. v. D.K [^16] for the principle that prior consistent statements are presumptively inadmissible. Justice Trotter, speaking for the court, stated that there are several rationales for this rule, including that prior consistent statements (1) lack probative value; (2) are often self-serving; and (3) are hearsay.
[164] Justice Trotter further stated that:
The overwhelming danger is that a trier of fact may improperly use the mere repetition of a statement as a badge of testimonial trustworthiness. As Hourigan J.A. said for the majority in Khan: “[S]uch evidence cannot be used for the prohibited inference that consistency enhances credibility, or the incorrect conclusion that the simple making of a prior consistent statement corroborates in-court testimony.”
[165] I find that both letters from the counsellors at Interim House are inadmissible. The letters both rely on self-reporting from the mother with respect to allegations of domestic violence which is being presented as a prior consistent statement to bolster the mother’s allegations of domestic violence. The issue of whether there was domestic violence is a pivotal issue on this motion as it is the basis for the mother’s position that she should not be required to reveal her address to the father. Also such evidence may impact on the parenting decision that is made. Further, the issue why the mother needed to move outside of Toronto is also a pivotal issue.
[166] Without the benefit of a sworn affidavit and the opportunity of cross-examination there are several questions that are unclear from the letters. For example, why did the mother not qualify for priority housing if she was a victim of domestic violence as the letter indicates the only basis for subsidized housing was based on the fact the mother was homeless. Further, as the mother began to apply for housing outside of Toronto as early as November 15,, 2019 for the Niagara Region, November 18, 2019 for Halton region and December 14, 2019 for the Hamilton Region, it is not clear if the mother advised the counsellor or any housing authority that she was bound by a court order not to move outside of the GTA. Given the importance of this evidence I am not prepared to have it admitted in a letter rather than by sworn affidavit.
6. Credibility
[167] Although the issue of ultimate credibility should be left for trial, on temporary motions it may still be necessary to make some findings in order to determine the issues.
[168] In this case in order to determine on a temporary basis the parenting issues and if the mother should be permitted to remain in London, it is necessary on a preliminary basis to assess the credibility of both parties.
[169] There are issues with the credibility of both parents.
[170] With respect to the father this largely relates to his tendency to exaggerate. For example, he states in his affidavit that when Danett was placed in his care she was overweight. He took her to a walk-in clinic and was told that Danett’s weight was dangerous for her health. But the note he produced from Dr. Hamideh dated November 20, 2020 simply states that the average weight for a child who is 3 years old is 33 lbs. and Danett weighed 57 lbs.
[171] The mother has made many misrepresentations in her affidavit that raise serious issues regarding her credibility. The most salient are as follows:
- The mother in her October 8th affidavit at paragraph 4 deposes that she advised the father that she was on vacation in Edmonton. But then in paragraphs 52-53 she deposes that she went there as she had lost her housing in Toronto due to her extended stay in Ghana.
The mother then deposes that she advised the father on October 12th, prior to going to Edmonton that she was taking a short trip to Edmonton. The mother attaches as exhibit “O” a message she deposes proves that she informed the father that she arrived in Canada and was going to Edmonton. However, the text message by the mother on October 12th simply states that she and the child arrived in Canada. When the father asks to see Danett, the mother then tells him that they are in Edmonton. This is relevant as the mother alleges that the father obtained the ex parte order of October 18th, 2019 on false pretences.
- The mother deposes at paragraph 137 of her affidavit of October 8th that the child has a new dentist Dr. Billion and that she recently visited the dentist. A photograph of Danett in the dentist chair is attached as exhibit “LL”. However, the photo has a date stamp of “October 26th.”
Although this affidavit is allegedly sworn on October 8th it was not served and filed until November 12th.
In his reply affidavit, the father attaches the dental records of Dr. Billion that indicate the child’s first appointment was October 26th (Exhibit “M”). The mother in her reply affidavit then alleges that she took the child to see the dentist in September 2020 to schedule an appointment. The mother deposes that at this time Danett met the dentist to make her feel more comfortable and then states the picture was taken in September.
This makes no common sense as it is clear from the records that no such visit occurred. According to the dental records, all patients are required to have a COVID-19 screening, so if the mother had taken the child there for a pre-visit there would still be a record of that. Further, the mother offers no explanation as to the time stamp on the photograph and how she could have sworn her affidavit on October 8th and included a photograph with a date stamp of October 26th.
- The mother deposes in her October 8th affidavit that Danett has a new doctor in London, named Dr. Ardelean. She states, “ Danett really likes her new doctor. The doctor is very kind and patient with Danett. Danett recently had a check up and she was found to be in perfect health.”
However, in the father’s reply affidavit he attached as exhibit “L” a letter from Dr. Ardelean dated December 15th that states, I have not seen Danett in my clinic. Mom booked an appointment for tomorrow. This appointment is cancelled.”
In her reply affidavit, the mother states, “I never made any false statements in my affidavit. Dr. Alderson was Danett’s health care provider and her first appointment was scheduled for December 11, 2020.” She then accuses the father of pressuring and intimidating the doctor. A further letter from the Dr. Ardelean is attached as exhibit “O” to the mother’s reply affidavit that states, “I have never seen Danett in my clinic. Mom booked the first appointment for December 16, 2020.”
4.The mother accuses the father of contacting her doctor in Ghana to obtain a copy of her medical file. The father did text the chief medical officer of the clinic to inquire if the letter received by the father from the mother’s dcotor was from his medical clinic as the letter did not have a letterhead or email address. But the father does not ask the doctor for the mother’s medical files. A copy of the texts are attached as exhibit “P” to the mother’s reply affidavit.
The mother misrepresents in her reply affidavit the nature of the exhibits that are attached. For example, she states that she has attached proof of her negative COVID-19 test but all that was attached to exhibit “G” are copies of medical notes from a medical clinic in Mississauga that states the mother self-reported a fever and was required to self-isolate on two separate occasions.
The issue of the truth of the mother’s self-reporting COVID-19 symptoms is relevant as it is purported to be the reason the mother was not able to comply with the October 7th order for the child to be placed in the care of the father. Further, the issue of a negative test is also relevant as in accordance with the medical letter of October 27th the mother would have been required to self-isolate until November 6th. But the mother claims she attended at the father’s residence on October 31st to see the child as she had received a negative COVID test. That test was not produced nor was a letter from a medical doctor that confirmed if the mother had a negative test she no longer needed to be in self-isolate.
- The mother deposes that the Divisional Court is reconsidering its decision referring to the November 30, 2020 order of Justice Corbett that dismissed the appeal of Justice Nakonechny order as being frivolous, vexatious or otherwise an abuse of the Court process.
She deposes, “It is interesting that when a complaint to the Judicial Council (Complaint number CJC 20-0433) is made, how judges start to act properly.” However, all that is attached as exhibit “ K” is an email from a court staff that advises any issues the mother’s counsel wishes to raise regarding the mother’s entitlement to bring a motion under rule 59.06 [ process to amend, set aside or vary an order]can be provided as part of her response to the Rule 2.1 notice [ Rule 2.1 provides that a court may on its own initiative stay or dismiss a proceeding if found to be frivolous, vexatious and an abuse of the court’s process.]
[172] I have outlined several instances of the mother’s affidavits and the exhibits she attaches and relies upon that are based on serious misrepresentations and outright falsehoods.
[173] Credibility is a major issue on this motion that relate to all the issues. The court cannot simply disregard the allegations that have proven to be false such as issues with respect to when the child attended a doctor or dentist or misrepresentations abut the court process or referring to exhibits that are not attached and then accept the balance of the mother’s affidavit evidence as being totally truthful.
[174] I find that where there is a contradiction between the mother and father’s version of events that the father’s version of events is more credible at this stage of the proceedings.
7. Discussion
7.1 Should there be a temporary order permitting the mother to move and remain with the child in London?
7.1 (a) Applicable legal principles
[175] The leading authority on the issue of mobility is the decision of the Supreme Court of Canada in Gordon v. Goertz,[^17] in which the Court stated at paragraph 49 and 50 as follows:
The law can be summarized as follows:
This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
The focus is on the best interests of the child, not the interests and rights of the parents.
More particularly the judge should consider, inter alia:
(a)
the existing custody arrangement and relationship between the child and the custodial parent;
(b)
the existing access arrangement and the relationship between the child and the access parent;
(c)
the desirability of maximizing contact between the child and both parents;
(d)
the view of the child;
(e)
the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
(f)
disruption to the child of a change in custody;
(g)
disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
In the end, the importance of the child’s remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?
[176] The factors that a court should consider when asked to decide a request to relocate on a temporary basis were discussed the often-cited case of Plumley v. Plumley[^18] as follows:
A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.
Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.
[177] In Cox v. Darling[^19] Justice Stanley Sherr observed as follows:
Courts need to be very cautious in permitting temporary moves in mobility cases because the child-focused inquiry required under Gordon v. Goertz, supra, is very difficult, if not impossible, to accomplish on the conflicting affidavits that one receives in these cases. See Kennedy v. Hull, 2005 ONCJ 275, 143 A.C.W.S. (3d) 519, [2005] O.J. No. 4719, 2005 CarswellOnt 5936 (Ont. C.J.).
Further, courts do not like to create disruptions in the lives of children by making an order that, if later reversed, will result in further disruption. See Goodship v. McMaster, 2003 CanLII 53670, 126 A.C.W.S. (3d) 815, [2003] O.J. No. 4255, 2003 CarswellOnt 4502 (Ont. C.J.).
[178] In the case of Bjornson v. Creighton[^20], the Ontario Court of Appeal observed that there is a relationship between a primary caregiver’s “emotional, psychological, social and economic well-being and the quality of a child’s primary care-giving environment”. The court observed that it is important to appreciate the potential negative effects on a child if the child’s primary caregiver is prevented from relocating and the potential positive effects for her if her primary caregiver is permitted to relocate.
7.1 (b) Application of law to the facts
[179] Applying these principles to the facts of this case, the undisputed fact is the child was in the primary care of the mother since birth and she was the de facto custodial parent.
[180] However, I accept the father’s evidence that he spent considerable time with the child often in the mother’s presence and that he was much more involved in the child’s life than admitted by the mother.
[181] The undisputed fact is that the mother extended her stay with the child in Ghana from a 3 week stay to 5 or 6 months. Whether the mother was required to extend her visit to Ghana as a result of the father’s behaviour is an issue that will have to be determined at trial.
[182] The further undisputed fact is that there was a consent court order of November 8, 2019 that on a temporary basis neither party remove the child from the GTA without the prior written consent of the other party or further court order.
[183] It is the mother’s position that there was a conflict in the orders that created confusion namely, that there was the prior ex parte order of October 18, 2019 that provided that neither party remove the child from the province of Ontario without a further court order.
[184] The temporary ex parte order of October 18th was granted on the basis that the father alleged that the mother had removed the child from Ontario and was at that time in Edmonton.
[185] The order of October 18th was a temporary without prejudice order. It was replaced by the temporary consent order of November 8th.
[186] As the onus is on the party seeking to move, it should have been clear to the mother that she needed the written consent of the father or a court order to move out of the GTA. If there was any confusion then the onus was on her to clarify the issue with the court. Even during the slow down of court proceedings due to the pandemic, the mother could have and should have brought an urgent motion before the court to permit the move.
[187] The mother then submits that the father was aware of the move and consented. She relies on text messages on June 23, 2020 where she advises him that she has obtained housing in London and will be moving. She confirms that she moved on June 30th and the father’s response is, “I see.”
[188] The mother’s counsel sent the father a letter dated June 30th confirming that the mother had moved and suggested a new access exchange arrangement that was not agreeable to the father. The mother attached to her affidavit a text message from the father sent several weeks later requesting access in accordance with the outstanding order of November 8th. She submits that this is proof that the father consented to her move.
[189] It is the father’s position that he did not consent to the move, that there was no agreement regarding his access and that he did not know how to stop the move. It was his position that initially he thought the mother was lying about the move so he did not do anything. He then states that as there was a court date scheduled for August 19th, he felt he should deal with the issue on that date. In fact, that is exactly what happened as he obtained leave to bring a motion for the return of the child to the GTA.
[190] On this motion, I have not admitted the letters from Interim Place so there is no evidence to corroborate the mother’s position that she had no alternative but to move to London and that no closer accommodations were available.
[191] On this motion, the court is not being requested to permit a temporary move but being requested to sanction a move by the mother that has already taken place.
[192] A court does not look favourably upon a parent who has unilaterally taken steps to upset a status quo in order to obtain an advantage in a parenting dispute. The court expects litigants to abide by court orders. A cautious approach should be taken on temporary motions with respect to mobility to safeguard the best interests of a child and to avoid a parent’s manipulation of the court process.
[193] Before the separation and before the mother moved to London with the child, the child’s home base was in this jurisdiction.
[194] There is abundant caselaw that permits moves but only after a thorough consideration of all of the evidence. The court must consider if a parent should be permitted to unilaterally move, impose a change to the other parent’s relationship with the child and create a self-serving new status quo in face of a court order that prohibits a move and in the midst of ongoing litigation.
[195] A court cannot sanction moves in contravention of a court order. With the passage of time, the moving parent takes the position that even if the move was not sanctioned, it would not be in the best interests of the child to be removed from the environment where she has become settled. This is precisely what the mother is doing on this motion.
[196] I find that the mother moved out of the GTA in contravention of an outstanding court order and without the court’s authorization. On the basis of the evidence presented on this motion and my concerns about the mother’s credibility, I find that the father did not consent to the mother moving out of the GTA.
[197] The ultimate issue as to whether the father consented to the move or whether an order is made to permit the move, regardless of the circumstances, as being in the child’s best interests will need to be determined at trial.
[198] I find that there are no compelling reasons to justify the mother’s move to London on this temporary motion in contravention of a court order.
[199] The burden on the mother was to provide compelling evidence that the move was justified in contravention of a court order that prohibited the move. The mother provided no credible evidence as to why she did not come to court to clarify if she was permitted to move and to obtain an order permitting the move.
[200] There are material issues in dispute that may impact the outcome. Although the child has lived primarily in the mother’s care, there is no custody order. There is a dispute about the extent of the father’s role in the child’s life.
[201] Further, the father was deprived of developing a relationship with the child due to the mother’s extended stay in Ghana and then due to the onset of the pandemic. There is a dispute regarding whether the mother has purposely interfered with the father’s role in the child’s life.
[202] The mother moved away from Toronto but not to anyone such as, family or friends or to a job in the London area. There is no admissible evidence before the court as to whether the mother made sincere efforts to obtain housing in the GTA.
[203] There are further material facts in dispute that may impact the outcome such as, the stability of the mother and her ability to meet the medical and emotional needs of the child.
[204] However, I am left with the practical dilemma that the trial is scheduled to proceed on or about March 15, 2021 and the trial judge may determine that the mother is permitted to move and remain in London.
[205] There is no dispute that the mother has obtained subsidized housing in London.
[206] It was submitted that if the child was ordered to be returned to the GTA, the mother would return with her and be required to live in a shelter. This evidence was not in any of the mother’s affidavits but I accept that this could happen. I am concerned that if the mother and child are ordered to return to the GTA that could jeopardize their housing, if at trial the mother is then permitted to remain in London with the child.
[207] Accordingly, I order that on a temporary basis the child must be returned to the GTA but that implementation of the order is stayed until a trial decision is rendered in this court.
7.2 What parenting arrangements are in the child’s best interests?
7.2 (a) Applicable legal principles
[208] Subsection 24 (1) of the Children’s Law Reform Act (CLRA) provides that the court shall make custody and access decisions that are in the best interests of the child.
[209] Subsection 24 (2) of the CLRA sets out the factors for the court to consider in making that determination. No one factor is determinative of the issue and no one factor has greater weight than the other.[^21]
[210] Subsection 24 (3) of the CLRA sets out that the court shall only consider a parent’s past conduct if it is relevant to their parenting.
[211] Subsection 24 (4) of the CLRA sets out that in assessing a person’s ability to act as a parent the court shall consider any violence and abuse against the other parent or a child.
[212] An important consideration in determining a child’s best interests is the principle that a child should have maximum contact with both parents if it is consistent with the child’s best interests.[^22]
[213] As this is a temporary motion the court is also required to consider the principles with respect to temporary orders.
[214] A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be later fully canvassed at subsequent conferences and if not, the issues will be resolved at a trial.[^23]
[215] The status quo should be maintained until trial unless there is material evidence that the child’s best interests requires an immediate change.[^24]
[216] On motions for temporary custody, serious consideration must be given to the status quo and compelling reasons are required to support any change, with the best interests of the child being determinative.[^25]
[217] However, one of the principles that the court must follow in these matters, as previously discussed, is to discourage self-help and rather, encourage parties to put the matter before a judge if they cannot resolve custody and access matters between themselves.[^26]
[218] This is particularly applicable in cases such as this one, where not much time has elapsed between the child’s removal and the hearing of the temporary motion. The mother moved with the child on June 30, 2020 and the temporary motion was originally scheduled for September 29, 2020. The mother is responsible for the delay in the motion not proceeding expeditiously.
[219] Children should have maximum contact with both parents if it is consistent with the child’s best interests.[^27]
[220] The party seeking to reduce normal access will generally be required to provide a justification for taking such a position. The greater the restriction sought, the more important it is to justify that restriction. [^28]
7.2 (b) Application of the legal principles to the facts
[221] In applying these legal principles and using the framework of the factors that are set out in subsection 24 (2), (3) and (4) of the CLRA and are relevant on this motion, I make the following findings.
(i) Love, affection and ties between the child and parent and other family members
[222] The mother has been the child’s primary parent since birth. I draw the commonsense inference that she has a close and loving relationship with her mother. The mother deposes that the child speaks to the maternal grandmother and her step-father in Ghana every day. Despite finding that the mother tends to exaggerate and misrepresent information, I am still prepared to accept that the child has a positive relationship with her maternal extended family.
[223] I accept that the child has a loving relationship with her baby half-sister. Although the mother even feels the need to exaggerate this relationship also. For example, she deposes that Danett and her 5-month-old sister play together, read together, watch movies together and that Danett loves chasing her sister around the backyard while they both play tag with each other. Why the mother would find the need to make these statements with respect to a 5-month old who obviously can’t play tag or play together with Danett is hard to understand. Although initially these exaggerated statements can be overlooked, when they persist throughout the mother’s affidavits it raises further concerns about the mother’s truthfulness or if she is carefully reading the affidavits she deposes are true.
[224] I find that the father also has a close and loving relationship with Danett. I accept his evidence as more credible than the mother’s, that he had a relationship with the child that was interrupted by the mother staying in Ghana for 5 to 6 months. I accept his evidence that despite this absence and despite the further interruption of their relationship due to the pandemic that she recognized him and was glad to be with him when she was placed in his care on October 30th. I also accept his evidence that the child has a relationship with his other children. Since the child has been placed in the father’s full-time care, he has had a further opportunity to renew and develop a closer relationship with her.
[225] I therefore find that the child has a close and loving relationship with both her parents and her extended family and half-siblings.
(ii) Child’s views and preferences
[226] The child is too young to express her views and preferences. Any statements allegedly attributed to the child with respect to where she wishes to live or missing a parent are not admitted for their truth.
(iii) Length of time child has resided in a stable environment
[227] The child has lived primarily with the mother but I find that there has been a lack of stability. The mother initially lived in Toronto, then went to Ghana for about 5 to 6 months and as a result lost her housing in Toronto. She then went to Edmonton and may have returned to Toronto in between and then was forced to reside in a shelter. She then moved to London on June 30, 2020 and has had stability since that time.
[228] It is not exactly clear how long the mother remained in Ghana or when she went Edmonton. This information was requested in several Requests for Information that were served on the mother in October and November 2020 that have not been complied with.
[229] The father has resided in the same apartment for several years. There is no issue with respect to the stability of his accommodations.
(iv) Ability and willingness to meet needs of the child
[230] Both parents depose that they are able and willing to meet the child’s need. Danett has no special needs.
[231] The father raises concerns about the mother not meeting the child’s medical or dental needs. If it were not for the fact that the mother did not tell the truth in her affidavit, I would have concluded that both parties are able to meet the medical and dental needs of the child.
[232] The mother did not arrange until recently for the child to have a doctor or a dentist in London despite moving to London in June 2020.
[233] It is extremely concerning that the mother felt the need to mislead the court by saying the child had seen Dr. Ardelean when clearly, she had not.
[234] It is concerning that the mother in her October 8th affidavit deposed that the child had gone to the dentist and attached a photo dated October 26th that I find was added after the affidavit was purportedly sworn by her. The mother then further deposes that the child had gone to the dentist in September 2020 that I find is also not credible.
[235] The father raises some issues with respect to concerns about the child’s weight, a bladder condition and a high sugar count that are being investigated. The father deposes that he has requested the medical records but they were not available for this motion.
[236] On this motion, although there do not appear to be any major issues with respect to the mother meeting the needs of the child, I cannot conclude that the mother is meeting the child’s medical or dental needs due to the misinformation she has provided. This issue will need to be further explored at trial.
[237] The mother relies on issues raised in the litigation between the father and the mother of his other children as proof that he is not able to meet Danett’s needs. I have ruled that none of that evidence is admissible.
[238] But the fact that the mother includes and almost exclusively relies on that information indicates that she has no first-hand concerns about the father and his ability to meet this child’s needs.
[239] I find that based on the admissible evidence on this motion that the father is able and willing to meet the needs of the child. I am unable to make the same finding with respect to the mother at this stage of the litigation.
(v) Plans proposed by both parents
[240] Both parents have advanced similar plans for the child that include arranging daycare and involving her in a relationship with her half-siblings. The mother does add a caveat that she is not agreeable to Danett attending daycare during the provincial lockdown.
[241] The mother’s plan is to stay in London and the father’s plan is to provide a home for Danett with his other children in Mississauga. Other than the fact that the mother’s plan involves continuing the status quo of her being the primary parent, there is no difference in their plans.
[242] With respect to access, if the child is placed in the mother’s care, she proposes that the father has access on alternate week-ends from Saturday to Sunday with the exchange at the Oakville Go station.
[243] But then in the mother’s October 8th affidavit at paragraph 157, she deposes that before the father exercises access, he should take an anger management course and demonstrate a genuine change in his violent behaviour.
[244] However, mother’s counsel submitted that this was not a pre-condition to the father exercising access but the mother would prefer this and that the father should make an effort to take a parenting course.
[245] In view of my findings that the mother has disobeyed several court orders, I have serious concerns that the mother would not comply with any order made for access.
[246] In the mother’s reply affidavit, she deposes that she has medical issues[^29] that place her at heightened risk to the coronavirus and that due to her baby’s young age that she is also at heightened risk. I am concerned that the mother may again allege that she is not feeling well as a reason not to return Danett after an access visit.
[247] With respect to the father, he was quite rigid in his plan and only indicated that he would be prepared to continue the current order for access that is, 5 hours of day access once a week. Father’s counsel then wished to address the issue again in her reply submissions but unfortunately ran out of time and abided by the time limits set. The court therefore does not have a clear understanding of his proposal.
[248] I have concerns that the father attempted to impose conditions on the access order, made on October 20th by Justice Nakonechny, that included a term that the mother’s access should be supervised. Although the contempt motion before Justice Nishikawa was dismissed, nevertheless there was evidence that the father did not fully cooperate in organizing access for the mother.
[249] However, the father has now complied with the access order and offered make-up access for the mother’s two missed access visits.
[250] Although I have concerns with respect to both parents compliance with court ordered access, I have less concern that the father will comply with whatever order is made by this court.
[251] Based on the history any order will need to be detailed and specific and continue to require police enforcement.
(vi) Permanence and stability of the family unit
[252] The mother has arranged for her husband to come to Toronto from Ghana. She deposed that he was to come in November but that has been delayed. Although this will be an adjustment, if the mother can be believed that Danett speaks to him every day, this should not be a difficult adjustment.
[253] However, there is no evidence provided by the mother with respect to the details of the relationship between her and her husband. There is no information about how they know each other, the length of their relationship or if they have ever lived together and so on. It is therefore hard to predict the strength of that relationship.
[254] The father lives alone with his children. There is no information about whether he is in a relationship although the mother deposes that his girlfriend is harassing her.
[255] I find that for this motion the issue of the permanence and stability of the family unit the child will live in is a neutral factor.
(vii) Ability to act as a parent
[256] I find that the father has the ability to act as a parent. He has a joint and shared custody arrangement with his other children. There is no evidence that he is not meeting the needs of those children and therefore this is a good indication that he can act as a parent to Danett and appropriately meet her needs.
[257] With respect to the mother, she has acted as a parent to both Danett and her new baby without any major concerns. She is capable of meeting their instrumental needs.
[258] However, the contents of the mother’s affidavits and her general approach to this litigation cause me great concern about her inability to place the needs of the child ahead of her own needs.
[259] Although a party’s affidavit is drafted by their counsel and although counsel speaks for the party in court proceedings nevertheless, a party must be held accountable for the positions that their counsel takes, their litigation strategy and the contents of an affidavit the party swears to be accurate.
[260] In this case, I presume that the mother read her affidavits before she swore them to be correct and accurate, agreed to the tone of the affidavits, agreed to the accusations that were made and that she authorized the litigation strategy of her counsel.
[261] The mother’s actions resulted in the child being “apprehended” by the police and placed in a police cruiser rather than the mother agreeing to a peaceful and calm transition to the father’s care.
[262] Even if the mother was self-isolating and unable to transfer the child as stated in her counsel’s letter of October 23rd, she does not outline how or when the child could be placed in the father’s care without the involvement of the police. Instead, she states, “ The child cannot be transferred in violation of Public Health protocols. My client will be reporting this issue to the Ministry.”
[263] The mother chose to attend at the father’s residence on October 31st demanding to see the child when she was aware that there had been no agreement about the details of the access ordered on October 20th by Justice Nakonechny. She attended even after being asked by the father not to come. She did not respond to the father’s inquiry if she no longer was under self-isolation as she had initially stated that she was in quarantine until November 6th. Nevertheless, the mother attended at the father’s house unannounced and caused a commotion that could be heard by the child and required the police to be involved.
[264] The mother’s actions on these two occasions show a lack of self-regulation and insight into the effect her behaviour would have on her daughter.
[265] The mother has accused every judicial officer involved in this case at all levels of court of bias or incompetence. She has made multiple complaints against the father’s counsel, the police, threatened to go to the media and complained about how the system has treated her unfairly.
[266] The language used in the mother’s affidavits is defiant and challenging. The tone is argumentative and offensive. The language and tone she uses causes concern about her perception and inability to accept outcomes that she does not agree with.
[267] The mother has accused the father and his friend of removing exhibits from his responding/reply affidavit that was left at her counsel’s door after taking a picture to show the affidavit was left. She accuses him of fabricating a text from her. She has called the father a liar, a violently jealous person, a deadbeat, a bully, an abuser and an abusive mastermind liar. She has deposed that she has been treated unfairly because she is poor, a racialized minority and single parent. But I find her comments are based on the fact that she does not agree with the orders that have been made.
[268] Several examples[^30] of such comments in her affidavit as follows:
- “It is also interesting that Justice Nakonechny felt the need to send Justice Zisman a copy of her decision supporting Justice Zisman. This is clear institutional bias which is being addressed by the Ministry of Attorney General’s Office.” She then states that a copy of the email is attached but no such email is attached.
- “It should be noted that Justice Corbett has a history of findings of reasonable apprehension of bias made against him by upper Courts. I guess he has not learnt that his arbitrary and biased decisions making needs to be curtailed.”
- “ It shocks the conscience that Ms Perry continues to be able to practice law considering the number of unethical tactics she engages in.”
- “ Ms Perry’s [father’s counsel] motto is if you cannot win based on merit, then lie, lie and hope that your privilege will mean that a blind eye will be turned to your lies. The fact that Ms Perry has not been disbarred is mind-blowing.”
- “It should be noted that Justice Nishikawa was misled on the Motion [contempt] and I intend to advise the Court of Ms Baumal [counsel for the father on the contempt motion] lies. …Ms Baumal unethical misrepresented that the parties were not able to agree on the date and time of access.”
- “The [police] Officers were reported to the Ministry of Health for violating self-isolation. They were upset with me for making the report. Further, the London Police were outright racist to me.”
[269] With respect to allegations of domestic violence and abuse against the father, I do not find that there is any credible evidence presented.
[270] In the mother’s Answer and 35.1 affidavit the mother does not mention any issues of domestic violence against the father. The mother then blames her lawyer at the time for omitting this information.
[271] The issue of the father’s belief that he can predict the future and has spiritual visions was raised by the mother as an example of abuse and used by the mother to justify her reason for the extended stay in Ghana. I agree with the submissions of father’s counsel that a party’s cultural belief should not be used as an example of abuse. As set out in the letter the mother produced from her doctor in Ghana, people in Ghana are very superstitious and take such predictions seriously.
[272] The father does not deny that he has such powers. He agrees that he sent the mother a text to warn her that her mother could become ill when she leaves Ghana. He then tells her to keep an eye on the child but to relax and have fun. The mother simply responds thanking the father for the information. There is no indication that the message caused her trauma.
[273] However, the mother claims that she suffered trauma and was required to undergo psychiatric counselling as a result of the father’s prediction. Counsel for the mother went further in her submissions and stated that the mother needed to be hospitalized.
[274] This issue will also need to be resolved at trial. Yet despite the fact that disclosure of the mother’s medical records while she was in Ghana might corroborate the effect on the mother of the father’s prediction, the mother has ignored the Request for Information that requests this disclosure.
[275] The mother relies on her self-reporting to the counsellors at Interim House and the father’s relationship with Ms Tachie as evidence of his abuse. I have found the letters from Interim House and the excerpts from the litigation between the father and Ms Tachie not to be admissible on this motion.
[276] Although in many cases there is no corroboration of domestic violence, in view of my findings regarding the mother’s credibility I do not accept her allegations. Even if I am wrong and those allegations are found to be credible, they do not impact on the father’s ability to act as a parent to Danett.
[277] Pending trial, I have serious reservations about the ability of the mother to meet the emotional needs of the child. According to the father, after Danett’s visits with her mother there is already an indication that she is inappropriately speaking to the child and making unsubstantiated allegations.
[278] I also find that the father is best able to meet the child’s health care related needs. Even though the father may have exaggerated concerns about the child’s weight or the lack of dental care, he has followed up with concerns appropriately and has been truthful whereas the mother has not even been truthful about who Danett’s doctor is or when she saw her doctor and dentist.
[279] Pending trial that will take place shortly, I find that the father should have the authority to make any health-related issues that may arise for the child. This includes both medical and dental issues.
(viii) Ability to encourage a relationship with the other parent
[280] I have concerns about both parents regarding their respective abilities to encourage a relationship with the other parent.
[281] The mother’s alleged history with respect to interfering with the father’s contact with the child will need to be determined at trial as there are credibility issues.
[282] However, there are concerns about the father. The father was ordered to provide access to the mother in the order of Justice Nakonechny for 5 hours as agreed upon between the parties.
[283] Both parties in their affidavits attempt to relitigate what happened and the background that led to the contempt motion that was commenced by the mother.
[284] The fact that the mother moved immediately to a contempt motion as opposed to trying to resolve the issues leads me to the conclusion that the mother’s litigious approach does not bode well for facilitating a relationship between the child and the father.
[285] As indicated by Justice Nishikaw in her reasons in dismissing the mother’s contempt motion, “ ..bringing a contempt motion at such an early stage, as a first resort as opposed to a last one, is an example of raising the stakes and intensifying the conflict in a manner unhelpful to the parties or the child.”
[286] However, it is also clear from the reasons of Justice Nishikawa that she concluded that the father should have made more meaningful efforts towards agreeing to dates and times for the mother to exercise her access.
[287] The father had no right to impose terms on the access. If he was unsatisfied with the access ordered by Justice Nakonechny then he should have appealed her order or requested some additional terms such as, enforcement by police if the mother did not return the child, terms to provide proof of a negative Covid-19 test or the deposit of the child’s passport. He had no authority to try to impose these terms himself.
[288] Although it was reasonable for the mother to request some virtual access, this was not in the court order and therefore she should not have accused the father of breaching the access order. On the other hand, there is no reason why virtual access should not have been agreed upon even if the father maintained the ability to supervise and curtail the virtual access if the mother said something inappropriate.
[289] Although the father agreed to make up visits for the first 2 visits missed by the mother, the mother requested that these be incorporated into overnight visits. When the father refused, she accused him of being unreasonable. Rather, I find she was being unreasonable as the order for access was only for 5 hours of access not overnight access.
[290] Since the contempt motion, there have been no further allegations that the father is not complying with the court ordered access.
[291] However, in all the pages and pages of her reply affidavit the mother does not explain why she cancelled her visits on December12th and December18th and simply advises the father that she can't make the visits due to “unforeseen circumstances.” This is a very important issue as the mother has been so concerned about the impact of the child being taken away from her, I find that she should have in her affidavit provided some explanation. This has raised concerns by the father that the mother may not be in the jurisdiction.
(ix) Conclusion with respect to parenting arrangements
[292] I have considered that on this temporary motion the onus is on the father to prove that there are compelling reasons to change the status quo that is, that the child be placed in his primary care rather than being returned to the primary care of the mother. I have also considered that at the time the mother removed the child from this jurisdiction, the father was only having day access to the child and that despite the mother moving out of the jurisdiction, his access could be accommodated.
[293] However, I have also considered that the mother changed the physical status quo by moving, in violation of a court order. I have considered that that as a result of the mother’s ongoing inability to serve and file her responding motion materials that this motion did not proceed as originally scheduled on September 29th. I have considered that the mother has done everything in her power to thwart the order of October 7th that required the child to be in the care of her father as a term of the adjournment requested by the mother.
[294] Although I do not conclude that the mother misled the court with respect to her need to self-isolate days after the order of October 7th , it is suspicious that as soon as the police placed the child in the care of the father, the mother then reported that she had a negative Covid-19 test and no longer needed to self-isolate. It is also suspicious that a copy of that test was never produced on this motion.
[295] The mother’s approach to this litigation, her misrepresentations and the tone of her affidavits raise issues with respect to her inability to put the needs of this child ahead of her need to win. The many references to the judicial system being unfair to her, the errors by judicial officers, accusations against opposing counsel and the father of engaging in unethical tactics and accusations of conspiracy against court staff [^31] lead me to conclude that she is intent upon escalating the conflict.
[296] To be clear this is not to be critical of the mother’s absolute right to appeal any court decision that she does not agree with but it is the manner in which she has proceeded to do so that leads me to question her priorities.
[297] I also have considered that the mother has interfered with the father having a meaningful relationship with Danett. It may be at trial, that her reasons for extending her stay for 5 to 6 months in Ghana is found to be credible. However, on this motion I find that the mother purposefully extended her stay. Although neither parent can be blamed for the father’s inability to have ongoing in person parenting time due to the pandemic, I have considered that if the court had been operating at full capacity and but for the pandemic it is probable that the father would have had expanded overnight access by now.
[298] I have also considered that for the last three months the father has had the child in his primary care. Although this does not create a new status quo, I am not prepared to overlook the fact that I find on this motion that the mother violated the court order not to move outside of the GTA and violated the order that required her to provide access to the father with the exchanges at the Woodbine Mall.
[299] I have also considered that the trial is scheduled to proceed in about 6 weeks and as a result, I am not requiring the mother to return the child to the GTA.
[300] I conclude that the mother’s defiance of court orders and conduct are compelling reasons to change the status quo on a temporary basis.
[301] Danett has become accustomed to residing with her father and based on the evidence on this motion is doing well in his care.
[302] However, I also find that it is in the best interests of the child to spend more time with her mother and half-sister.
[303] The mother’s time with Danett should be expanded. I agree that the father has valid concerns that the mother may not abide by a court order and not return the child at the end of an access visit. However, that concern can be dealt with by requiring an ongoing order for police enforcement and not permitting the mother to refuse to return the child if she is again required to self-isolate or tests positive for the coronavirus.
[304] For these reasons, there will be an order that the child remain in the care of the father. The father will have the authority to make all health care decisions for the child. The father shall advise the mother of the outcome of any medical or dental appointments.
[305] I am not making an order that the mother be able to attend at such appointments as given the conflict between the parties, I do not find that this would be in the child’s best interests at this time.
[306] I am also not making an order as requested by the father that he be given clear authority to register the child in daycare. Given that the trial is scheduled for mid-March it would be disruptive to the child to be enrolled in a daycare program by the father if she is then placed in the care of the mother and then enrolled in another daycare program.
[307] There will be an order that the child shall be in the mother’s care on alternate week-ends from Friday at 10:00 a.m. to Sunday at 6:00 p.m. with the exchanges to continue to be at the front desk of 11 Division Peel police station at 3030 Erin Mills Parkway, Mississauga, Ontario.
[308] I also order that the mother have virtual access once a week on Wednesdays at 7:00 p.m. until 7:30 p.m. The father shall place the call and may supervise the call and terminate it, if the mother says anything that is inappropriate.
[309] No submissions were made with respect to the necessity of the mother continuing to provide the child’s passport at the beginning of an access visit.
[310] In view of the mother previously leaving the jurisdiction and pending trial, I find that this is a prudent safeguard. But to be clear this is not a finding that the mother is a flight risk.
7.3 Is the mother required to reveal her address and telephone number?
[311] The mother seeks an order protecting her address from being released to the father. It is submitted by mother’s counsel that I have no authority to overrule Justice Sager’s order.
[312] However, this submission is unclear. As pointed out during submissions the order of Justice Sager dated October 24, 2019 requires that the mother keep the father and his counsel advised of her current address and phone number. That order was never varied or appealed.
[313] On September 29, 2020 when Justice Sager granted the adjournment of the father’s motion to October 7th she endorsed that, “The mother shall be prepared to provide the court with her current address should she be ordered to do so at the next court date.”
[314] Counsel for the mother’s submissions are therefore unclear as the only order in place is the October 24, 2019 order.
[315] The mother goes so far as to depose that, “ I am under no obligation to reveal my address.”
[316] I requested that mother’s counsel provide me with any case law supporting her position that the mother’s address should not be revealed. The only case she provided was a civil estate case[^32] with respect to granting a stay of an order that required information about beneficiaries to be released pending an appeal to the Supreme Court of Canada. The case is not relevant or helpful to a family law case where it is generally accepted that parents have the right to know the contact information of the other parent.
[317] Counsel for the mother then submitted that it was not necessary for the father to know the mother’s address as the police were aware of the address and the exchange takes place at a police station.
[318] The order for the police to assist the father in enforcement of the October 7th order took until October 30th to enforce. As the mother did not consent to the release of the police records, I have no information as to how long it took the police to locate the mother’s phone number and address and if when they did contact her, she cooperated.
[319] There is a further concern that the mother could move or that she is not using her own telephone number but rerouting her calls through a Quebec area code number. The father provided copies of the text messages.[^33]
[320] The mother denies she made these calls and states that the father is a liar that he fabricated the French auto message and that he is an “abusive mastermind” and these are “evil mind games” that he plays. These are serious allegations and is another credibility issue that will need to be resolved at trial.
[321] There are many situations that can arise that require both parents to be able to contact each other and be aware of each other’s addresses and telephone numbers, not just a situation where a parent does not comply with court ordered parenting times. For example, there may be medical issues, school issues or simply a child forgetting items she needs at one parent’s home that need to be retrieved. Further, if one parent advises a third party such as a school or health professional that her address is not to be revealed it leads the third party to assume that the other parent may pose a risk to the child.
[322] In this case, even if the mother’s allegations of domestic violence against the father were to be believed, they are not of a nature that would justify her position that she should not be required to reveal her address.
[323] After Justice Sager’s endorsement of September 29th the motion was adjourned to be heard before me on October 7th and despite the importance of the motion, the mother did not participate on that telephone conference and has not participated on the subsequent court attendances before me. Accordingly, she avoided being questioned and ordered directly to reveal her address pursuant to Justice Sager’s endorsement and pursuant to the order of October 24, 2019.
[324] This motion is the return of the motion that has been on adjournment since September 29th, therefore I am ordering that the mother reveal her current address and phone number immediately.
[325] There is no evidence presented that would support a variation of the October 24th order and given subsequent events it is even more important for the mother to confirm her current address and telephone number.
[326] Ironically, unless the mother misled the dentist, the child’s chart indicates that the mother’s address is 1263 Lawson London, Ontario N6G5K9 and that her telephone number is 437 242-9207.
[327] The mother will be ordered to provide proof of this address and telephone number such as a utility bill and a telephone bill or if this is not her correct contact information then the mother is required to provide proof of her contact address and telephone number.
[328] Until the mother provides proof of her address and telephone number, the expanded access shall not commence.
8. Order
[329] There will be a temporary order as follows:
The child Danett Oppong Wiafe born […], 2017 shall immediately be returned to the City of Toronto or the Greater Toronto Area. The child’s residence shall be the City of Toronto or the Greater Toronto Area. This order is stayed until a trial decision is rendered by this court.
The child shall be placed in the primary care of the Applicant father.
The Applicant father shall be permitted to make all medical and health related decisions, including dental decisions, with respect to the child. The Applicant father shall advise the Respondent mother in writing of all appointments with any treatment providers for the child and provide the Respondent mother with a copy of any medical or dental chart, note or report that he obtains with respect to the child’s health.
The Respondent mother shall have parenting time with the child every Saturday from noon to 5:00 p.m. until she provides documentary proof to the Applicant father’s counsel of her address and current telephone number. Such proof can consist for example, of a utility and telephone bill.
Upon the Applicant father’s counsel confirming in writing, that the necessary proof of the Respondent mother’s address and telephone number have been received and that this Order has been issued and entered, the Respondent mother’s parenting time shall occur on alternate Fridays from 10:00 a.m. to Sunday at 5:00 p.m. to commence on the Friday after these conditions have been complied with.
The exchanges shall continue to occur at the front desk of the Peel police station at 3030 Erin Mills parkway, Mississauga, Ontario.
At the commencement of the parenting time, the Respondent mother shall provide the Applicant father with the child’s passport and at the end of the parenting time the Applicant father shall return the passport.
If the child is in the care of the Respondent mother and the Respondent mother or someone in her household is required to self-isolate due to concerns about exposure to COVID-19 or due to contracting COVID-19, the child shall be immediately placed in the care of the Applicant father.
The Respondent mother shall have virtual access to the child on every Wednesday at 7:00 p.m. until 7:30 p.m. The Applicant father shall place the call and may supervise the call and terminate it, if the Respondent mother says anything that he deems to be inappropriate. The virtual access will commence on the Wednesday after the mother provides proof of her telephone number.
Neither party shall discuss with the child or in the child’s presence the litigation or make disparaging comments about the other parent.
If the Respondent mother, does not abide by the terms of this Order, the Applicant father shall be permitted to immediately suspend the Respondent mother’s parenting time. The Respondent mother shall be permitted to bring an urgent motion on short notice to reinstate her parenting time.
The Peel Regional Police, OPP, London Police Service or any other police force having jurisdiction in any area where it appears the child, Danett Oppong Wiafe born […], 2017, may be, shall locate, apprehend and deliver the child for purposes of enforcing the terms of access in this order and to ensure that the child is returned to the Applicant father at the end of the access visit.
Counsel for the Applicant shall immediately prepare this Order. In order to expediate the order being issued and entered, approval of the order by counsel for the Respondent shall be dispensed with. The draft order is to emailed to the trial coordinator and to my attention.
If counsel cannot agree on costs, counsel for the Applicant shall submit cost submissions, not to exceed 3 pages with any offer to settle and a bill of costs attached within 15 days. Counsel for the Respondent shall submit her response, on the same terms, within 15 days of receiving the Applicant’s cost submissions. Cost submissions are to be emailed to the trial coordinator.
Released: February 2, 2021
Signed: Justice Roselyn Zisman
[^1]: The mother was ordered on August 19, 2020 to serve her affidavit on September 23rd. By 14B motion filed September 28th mother’s counsel sought an extension to serve her affidavit that day on September 28th. On consent she was granted an extension to September 30th but she did not comply with this extension either.
[^2]: Counsel for the mother repeatedly made statements that Justice Sager had recused herself due to apprehension of bias and had to be corrected by the court.
[^3]: At the time there was no indication if Aalla Sidahmed was a medical doctor but a subsequent letter confirms she is a doctor.
[^4]: There were ongoing issues raised by the father’s counsel regarding the inability to enforce the October 7th order as the mother’s address was unknown.
[^5]: I assume that a Notice of Appeal was also filed but a copy of the Notice of Appeal has not been filed in this court or attached to either parties’ affidavits.
[^6]: The date of the affidavit is confusing as the front page indicates a date of October 9th but it was sworn by the mother on November 9th but all of the attached exhibits are commissioned on October 9th. Further it is an affidavit that was filed in the Superior Court of Justice as per the heading and the mother refers to herself as the Appellant.
[^7]: A further affidavit was submitted by the mother on January 5th deposing that the first affidavit was sent in error and that she reviewed the changes on December 31st and resigned the affidavit and she is satisfied with the corrections. Other than the date whatever corrections were made are not identified. I have relied on the version of the December 31st affidavit that was delivered to the court as there were actually 3 versions of the affidavit not two.
[^8]: 2004 CanLII 7043 (ON SC), 2004 O.J. 3418 (SCJ)
[^9]: Paragraph 65 refers to exhibit “M” as proof from Ms Tachie about daycare but the exhibit M attached to the affidavit received by the court is a copy of Justice Nakonechny’s November 17, 2020 order Paragraph 80 refers to exhibit “EE” but that exhibit was not included in the court copy. If these exhibits are attached to another version of the December 31st affidavit then I find that they should also be struck.
[^10]: Exhibit “DD” is over 100 pages.
[^11]: 2017 ONCA 114 leave to appeal to SCC refused [2017] SCCA 139
[^12]: 2017 SCC 35 at paras. 27-28, 30, 32
[^13]: 1990 CarswellOnt 219
[^14]: 2014 ONCA 606 at para. 63
[^15]: [2015] O.J. No. 4504 (SCJ) para. 50 and cases cited therein
[^16]: 2020 ONCA 79 paras. 34-35 references omitted
[^17]: (1996) S.C.R. 27
[^18]: 1999 CanLII 13990 (ON SCJ), 1999 CarswellOnt 3503 (Ont. Fam. Ct.)
[^19]: 2008 ONCJ 91
[^20]: 2002 CanLii 45125
[^21]: Libbus v. Libbus, [2008] O.J. No. 4148 (Ont. S.C.) at para. 88
[^22]: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at para. 24 and 25
[^23]: Coe v. Tope, 2014 ONSC 4002 at para. 25; Costello and McLean 2014 ONSC 7332 at para. 11
[^24]: See above and cases cited therein
[^25]: See McEachern v. McEachern (1994), 1994 CanLII 7379 (ON SC)l Mother’s counsel refers to the case of Cole v. Barrett 2020 ONSC 2339 at para 25 for the same principles
[^26]: Howard v. Howard, 1999 CanLII 15197 (ON Fam.Ct.)
[^27]: Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27
[^28]: M.A. v. J.D. 2003 CanLII 52807 (ON CJ), [2003] O.J. No. 2946 at para. 24
[^29]: There is no information provided regarding the mother’s medical issues although her affidavit deposes that further medical evidence will be provided. The mother has also not responded to a Request for Information that includes disclosure of a copy of her medical records in Ghana and in Ontario
[^30]: I have not included comments made about myself as I am advised that my order of October 7th placing the child with the father as a term of an adjournment and the Order of December 15th dismissing the recusal motion are under appeal. However, a copy of the Notices of Appeal has not been filed with this court.
[^31]: Mother’s counsel has accused court staff of purposely blocking her from several Zoom hearings.
[^32]: Donovan v. Sherman Estate, 2019 ONCA 456
[^33]: Exhibit “s” to affidavit sworn December 22, 2020.