minicounsel

COURT FILE NO.: FC-11-2540

DATE: 2012/04/27

RE: F.O., Applicant

AND

B.O., Respondent

BEFORE: Mr. Justice Peter Annis

COUNSEL: Susan E. Galarneau, for the Applicant

Meagan Lepage, for the Respondent

HEARD: April 25, 2012

Introduction

1In opposing motions brought by both parties, the central issue is whether the respondent mother, Ms. B.O., was justified in unilaterally moving to the Toronto area with the parties’ child of the marriage, W.A.O., born […], 2011.

2She justifies her relocation out of fear of her safety and that of the child on account of the alleged abusive behaviour of the applicant father, Mr. F.O..

3The father seeks orders finding the mother in contempt and granting him custody of the child or, in the alternative, requiring the mother to return to Ottawa with the child to resume access previously ordered by the Court.

4The mother requests orders of interim sole custody of the child, that he primarily reside with her in Mississauga, granting the father limited supervised access rights, a restraining order against the father and interim orders for child and spousal support.

The Residency of the Child

5The right of the mother to move with a child is normally considered under the rubric of “Mobility Rights”. In this case the issue has been argued largely around the credibility of the mother regarding her motive to move with the child, in particular whether her actions have been taken to frustrate the father’s access right in a process of alienating the child from the father.

6While it is always difficult to resolve matters of credibility on affidavit material alone, I am satisfied that the father has made out a prima facie case that the mother was not justified in concluding that her safety and that of the child was at risk requiring her either to move into a shelter in Ottawa or move with the child to the Toronto area.

7I am further of the opinion, again based upon the limited record before me, that the father has also made out a prima facie case that the mother has pursued a course of conduct intended to frustrate his right of access to the child, thereby delaying his future entitlement to participate more fully in the life of W.A.O. as he so desires.

Lack of Credibility of the Mother

8The mother has made a number of serious allegations against the father which have necessitated the involvement of the Children’s Aid Society (“CAS”), the Ottawa Police and this Court in previous appearances.

9It is noted that the mother’s many allegations are all unsupported by other witnesses despite the events complained of being relatively numerous and occurring over some months.

10Moreover, the mother’s story changes progressively for the worse in its unsavoury depiction of the father in the various affidavits filed with the Court. Her first affidavit dated October 25, 2011 describes what I would consider to be allegations of verbal harassment and emotional abuse by the father and his family. The main threat outlined in that affidavit concerns an allegation that the father would take the child from her if she applied for a separation. Many of the complaints are directed at the father’s family. They immigrated to Canada from Lebanon in March of 2011, which she notes worsened an already strained relationship.

11The affidavit alleges that the father wishes to take control of the baby and raise him according to his culture only. It contains sundry other grievances about the father spending money improperly, not providing enough support for her, not showing proper decision-making regarding the child, possible adultery by him and more broadly issues regarding the family’s conduct towards her and lack of regard for the baby, including keeping him awake by renovations and loud discussions.

12The contents of the affidavit would definitely not support grounds to deny access to the father. The affidavit contains no allegations that the mother was locked in her room by the family or the other more serious claims of physical abuse or even threats of physical abuse by the father as are alleged in later affidavits.

13A consent order was granted by Master Roger on October 27, 2011 providing access to the father. This order was frustrated by the mother when on October 31, 2001, she relocated to a shelter in Ottawa over an alleged incident that occurred on October 28, 2011 which was the first occasion on which the mother had involved the police. She claimed that the father was refusing to return the child which is denied.

14Of importance to these issues is the officer’s report of the incident. He indicates that the mother stated that the father had never hit her, although she added that he harassed her verbally and that she did not feel safe.

15The Officer's report also noted that “Both parties were happy with living (sic) things status quo for the time being and would try to communicate in a manner that is best for the baby.” This was confirmed by the further report on November 2, 2011, that the “General Occurrence” report was “being cleared as Non-Criminal as it has no evidence or allegation of a Criminal Offence”. It added that the report would be considered final “unless new leads come to light”.

16The mother’s move to the shelter described above resulted in a further urgent motion before Aitken J. on November 10, 2011. At this motion, the mother attended with personnel from the CAS. This was the first time the father learned that allegations of abuse were being made against him to the authorities.

17The motions judge, while noting the un-workability of the previous access order because of the mother’s move to a shelter, stated that “it is important for the development of a relationship between the applicant father and the child that the applicant father have some access to the child.”

18Aitken J. ordered access to the father twice weekly, supervised by the CAS on a without prejudice basis, until November 22, 2011 when the matter was scheduled to return after the mother filed her materials and her lawyer’s retainer was confirmed. On return of the motion on November 22, 2011, a further consent order was made. The CAS again attended at this motion.

19In between her court appearance before Aitken J. and its scheduled return on November 22, 2011 (November 14 and November 17, 2011 reports), the mother provided the police with radically modified versions concerning the father's conduct from that originally reported.

20These include allegations that: the mother was locked in her room for two hours by the father and his mother in 2009; the father threw a screwdriver at her, hitting her right foot; the father hit her on her left arm with a screwdriver in 2008, the father’s mother struck her with a box thrown at her; the father’s sister‑in‑law “poked” her in the face; all the family members had taken her baby away from her, only being returned to feed him; the father threw a vase at her hitting her on the right leg; and that the father “throws stuff at her when he gets mad”.

21Surprisingly, reports of those incidents were not included in the mother’s affidavit of November 18, 2011 before McMunagle J. However the police report on the incident of October 27, 2011 referred to above was attached. The mother repeats the statement made to the police that the father had not hit her. However she then inconsistently alleges that she had been hit on her leg by a vase thrown at her by the father, embellishing it considerably by noting that the father had aimed the vase at her “pregnant belly” and missed.

22She also alleges in her affidavit for the first time that the father had a very violent temper. There had been no previous allegations of violence made against him or relating to his inability to control his temper.

23Despite these allegations, including those made to the police in November, the mother agreed to the consent order granting unsupervised access rights to the father. The order provided for the father to have access to the child on Tuesdays and Thursdays from 4:30 p.m. to 8:15 p.m., and again on Saturdays from 7:45 a.m. to 12:15 p.m. It was foreseen that the schedule would be reviewed when W.A.O. turned six months old ([…], 2012).

24It seems clear that the CAS had no concerns about the father having unsupervised access to the children. They originally closed their file shortly after the complaint was made, until it was reopened when criminal charges were laid against the father. At a later time when requested, the CAS reported that they found nothing of alarm in the father’s care of the child.

25This Court's schedule was adhered to apparently without difficulty until December 13, 2012 when the father was charged with criminal assault. It appears that these charges were based on information provided by the mother to the police on November 14 and 17, 2011. The next report provided is that of December 12, 2011, just prior to the father being charged. The police report that they had been speaking to the mother numerous times “as she kept calling”. There is also reference in that report to a statement provided to the police by the respondent’s mother which has not been introduced into evidence in this matter.

26The criminal charges were withdrawn upon the father providing a recognizance with extremely limited restrictions for someone charged with spousal assault. The only restraint on the father’s activities of relevance to the mother was that of not having any direct or indirect contact with her for a period of nine months. I accept that the father provided the recognizance as the preferable option to waiting nine months for his trial.

27In her affidavit of March 27, 2012, the mother further enlarged on allegations brought against the father. She deposed that the father was regularly stalking her and following her to the shelter. She indicates that this information was given to the police during her November meetings with them “as I feared the Applicant’s anger and controlling actions would escalate”.

28The police reports make no mention of allegations of stalking or similar behaviour. Had these allegations been made to the police, it is difficult to imagine that they would not have been referred to and a follow-up investigation undertaken.

Move to Toronto

29On December 25, 2011, the mother moved from her shelter into subsidized city housing in Ottawa. Shortly thereafter on January 15, 2012 she relocated to a shelter in Toronto. She claims this was necessary because she had received an anonymous letter stating that her husband was angry at her and that she should be cautious because he intended to find her and “get revenge”.

30There is no indication of who authored the anonymous letter. The original letter was apparently given to the Ottawa police in her meeting with them on January 14, 2012. No copy was provided to the applicant or introduced into evidence. The mother is not suggesting that the letter originated with the father. The letter is obviously contrary to his interests as it would justify her fears if in fact attributed to him, or its contents proven to be accurate.

31More importantly, the police report quotes the mother as stating that she “had plans to go stay with a family in Toronto for a while and would be staying with [a person named in the report that the mother identifies] in Toronto as of the 15th of January 2012”.

32It is clear therefore, that the mother had decided to move prior to attending at the police station. There is furthermore no suggestion in the police report that the mother was moving to Toronto because of fears generated by the letter.

33Given the bizarre nature of an anonymous letter containing unsupported allegations against the father and delivered to the mother who was supposedly in hiding, I attach no probative value to it as a causative factor justifying the mother's relocation to Toronto with the child.

34My scepticism about the letter is heightened by the fact that her counsel stated that he had “been notified that this relocation was based on advice of the Ottawa Police Department who believe themselves, that the child would be safer in another jurisdiction”. The father’s counsel requested proof that the police had advised the mother to relocate to Toronto. Although promised, no evidence of police advice to move to Toronto was forthcoming.

35I note that the police report regarding the meeting on January 14, 2012 contains no suggestion that the police advised the mother to move because of the letter, or concerns over the safety of her or the child.

36Given the apparent fabrication of the evidence that she moved to Toronto on the advice of the police where it is clear she had decided to move prior to advising them about the purported anonymous letter, I am of the view that the court should not rule out an explanation that the letter was concocted for the purpose of supporting the mother's decision to relocate to Toronto.

37In light of the foregoing, I reject the reasons advanced by the mother to relocate to Toronto, be they on the advice of the police, her alleged fears instilled from a purported anonymous letter, or out of concerns based on alleged physical abuse, threats or stalking by the father.

Frustration of the Father’s Access to the Child

38In a similar vein, I also conclude that the father has made out a prima facie case that the mother’s actions were motivated for the purpose of frustrating his access rights to W.A.O..

39The mother acted unilaterally on a number of occasions to change her living situation, starting with the move to the separate unit in the matrimonial home, followed by the relocation to shelters in Ottawa and finally moving to Toronto. In addition she also engaged the CAS and the Ottawa Police where the evidence would not support the necessity for their involvement. Her conduct in all of these situations had the effect of curtailing the father’s access rights.

40Of particular concern is that most of these changes occurred shortly after consent orders were arrived at or where the father had put in plans to gain access to the child. I find that there is a pattern linking the mother's conduct to her determination to prevent the father’s access to the child.

41The mother's refusal to provide her consent to the CAS to allow the father to have supervised access after police charges were laid against him is a particularly clear example of her desire to limit the father's access. Despite requests from him through his counsel and requests of the CAS, the mother delayed agreeing to supervised access. She only consented on March 12, 2012 after the charges had been withdrawn against the father and there was no further basis to require access to be supervised.

42In light of the foregoing, I conclude that the father has made out a prima facie case that the mother wilfully contravened the orders of Master Roger and McMunagle J. by her numerous relocations with the child, including her move to Toronto. These relocations were not justified over fears for the mother and child's safety. I find they were undertaken, in part at least, with the intention of frustrating the father’s access rights to the child.

Best Interests of the Child

43Even if no court orders were in place, I would conclude that it is in the best interests of the child that he remain in Ottawa where his father resides. In this regard, I make general reference to the criteria of the Supreme Court of Canada decision in Gordon v. Goertz (1996), 1996 191 (SCC), 19 R.F.L. (4th) 177 regarding the rights of a parent to move with a child.

44Generally the court is required to assess the parent’s ability to meet the needs of the child. This entails an inquiry into what is the best interest of the child having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.

45On the father’s part, he demonstrates stability and love for the child which suggests that he should be able to meet the child’s needs. He is highly educated, holding a Masters degree; he has obtained secure employment with the Government of Canada earning approximately $75,000 annually. He appears to have undertaken responsibility for other members of his immediate family which includes Wissam.

46There can be no issue of his love for the child. He planned to take paternal leave when the child was born so he could fully participate in child rearing and develop a parental relationship with the child. Additionally, he has pursued access rights to the child in the face of obstacles placed in his way by the respondent, including undertaking numerous costly legal steps.

47The mother on the other hand has only recently immigrated to Canada in 2008 as a result of meeting the father on an Internet dating site. Although she appears to have adapted well to the country, her conduct in these matters suggests some degree of instability, or at least indecisiveness which if continued will be unhealthy for the child. She also lacks the comparable family network that the father has in Ottawa (the materials contained no indication of what family members of the mother lived in Toronto).

48Moreover, the mother had obtained employment in Ottawa earning $25,000 with a company providing bankruptcy and insolvency services. She was on maternity leave when these events occurred. She has no obvious career available to her in Toronto, no parent or partner with which to share the tasks of child rearing and to enable her more readily to return to the workforce. She appears to have no financial means to support herself and the child apart from what the father may provide her. The economic realities she and the child face are more difficult to accept when one realizes that she has abandoned her employment in Ottawa increasing the economic challenges for herself and her husband, at least in the near future.

49The Court must also consider the instruction, found in s. 16(10) of the Divorce Act, regarding the willingness of a parent to facilitate contact. The mother’s conduct clearly describes a lack of willingness to involve the father in the child’s life, even to the extent that I conclude it underlines her primary motive for relocating to Toronto.

50I have no difficulty therefore concluding that even setting aside issues involving the mother's motive in moving to Toronto, the best interest of the child would appear to require him to reside in Ottawa with both parents, or alternatively with the father if the mother insists on moving elsewhere.

Interim Order

51I order that the mother return the child to Ottawa within 21 days of this order, either by relocating to Ottawa with the child, or if unwilling to do so by delivering the child to the Children’s Aid Society in Ottawa.

52Inasmuch as the mother has complied with the request of the court that she deposit her passport with her counsel, I do not anticipate nor attempt to set out any sanctions for a failure by the mother to comply with my order. Rest assured however that if required, I will take immediate steps to enforce my order that the child be returned to Ottawa. Obviously I would do so with some regret as it is in the best interests of Wissam that the mother return with him in accordance with my order.

53By these reasons I am requesting the Children’s Aid Society’s cooperation in this matter should the mother decide to not accompany the child when returned to Ottawa. I believe it is unlikely that this will happen, but if the Children’s Aid Society is unable to accommodate this request, it should advise counsel for the parties as soon as possible in order that alternatives may be presented for the child’s care. Counsel for the father is to provide a copy of these reasons forthwith to the CAS, pending taking out the Order.

54Assuming that the mother complies with my order by returning to Ottawa with the child, she will continue to have primary care of Wissam. In such circumstances, the father’s access rights on an unsupervised basis will continue in accordance with the consent order of McMunagle J. dated November 22, 2011.

Custody and Parenting Assessment

55I conclude that no order as to custody of Wissam should be made until the parenting capacity assessment, which the parties have agreed should be undertaken, is completed.

56In the circumstances, the father will be ordered to pay for the assessment. I make this order, as it is not clear that the mother has the means to contribute to the cost of this assessment at this time. The father shall be credited with one half of the cost of the assessment which shall be taken into consideration in the future when financial issues, including support, are finalized.

57If the parties are unable to agree upon the professional to carry out the parenting capacity assessment within seven days of this order, the Court will decide the matter. In such circumstances, the parties are to provide written submissions to the court within seven days thereafter, in addition to providing any further comments on the other party’s submissions within a further three calendar days thereafter.

Support

58The father agrees to pay monthly child support effective May 1, 2012 in the amount of $680 in accordance with the Guidelines based upon his salary of $75,000. This is in addition to the amount of $250 agreed to be paid on a monthly basis commencing November 1, 2011 in accordance with the order of Master Roger which will be varied effective May 1, 20012 as described above. This order was premised on the mother continuing to live at the matrimonial home.

59The mother has refused to accept child support payments in the past. There is no reason for her to decline payment as it is in the interests of the child that the father contribute to his material needs. These payments may also assist in defraying the costs of relocating to Ottawa. The father should provide a further cheque to the mother forthwith for the amount of outstanding child support which she has refused to accept to date.

60The father will also be required to pay retroactive child support representing the difference between the payment of $680 in accordance with the Federal Child Support Guidelines and the $250 agreed to be paid effective November 1, 2011 when the mother moved out of the matrimonial home. These amounts may be set off against any order of costs that I will make in the father’s favour.

61The applicant father did not attempt to address the issue of spousal support payments to the mother. In part this was due to the length of time required to consider the issue of the child’s return. This matter should be concluded. The parties may return before me at 9:00 a.m. on a date to be determined during the next two weeks to complete argument of the issue of spousal support.

Costs

62The father is entitled to his costs of the motion. Written submissions, not to exceed four (4) pages, may be filed by the applicant within ten (10) days of this order, to which the respondent may reply within ten (10) days thereafter.

Annis J.

Date: April 27, 2012

COURT FILE NO.: FC-11-2540

DATE: 2012/04/27

ONTARIO

SUPERIOR COURT OF JUSTICE