ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY LAW

COURT FILE NO.: FS-12-376954
DATE: 20121023

BETWEEN:

A.A., Applicant – and – T.L.A.A., Respondent

Andrea B. Scharf , Counsel for the Applicant

Unrepresented (did not appear at the Trial)

HEARD: SEPTEMBER 21 and 22, 2012

ENDORSEMENT: GREER J. :

[ 1 ] The Applicant, A.A. (“the Father”), moves for final sole custody of the parties’ daughter, E.1 (E.1) A. (“E.1”) who was born on […], 2011. The Respondent, T.L.A.A. (“the Mother”) and the Father were married on March 31, 2010 and separated on July 3, 2011, after a brief relationship and marriage. The Trial proceeded on an uncontested basis since the Mother informed the Court, through the Father’s counsel, that she would not be appearing.

Some background information

[ 2 ] The parties met on the internet, with the Mother moving from the United States to meet the Father. They began living together. After the Mother became pregnant, the parties married. E.1 was born in Toronto and is a Canadian citizen.

[ 3 ] On November 21, 2011, the matter was transferred from the Provincial Ontario Court of Justice to the Superior Court of Justice. At that point, the address of the Mother was unknown because she had fled the country, taking E.1 with her.

[ 4 ] On January 24, 2012, the Father appeared before Madam Justice Mesbur on a Motion for a declaration of the parentage of E.1, since the Mother did not put the Father’s name on E.1’s birth registration. Madam Justice Mesbur, in her Order of that date (“the Order”), ordered that a Declaration of paternity issue. The Father also asked the Court for a “chasing Order” under The Hague Convention, to have E.1 returned to Canada. He believed that the Mother had gone to the U.S.A., given that she was born there and had lived there before the parties met. The Order was made that the Father could apply for E.1’s passport without the Mother’s consent and he was given temporary custody of E.1 so that he could pursue bringing E.1 back to Canada under The Hague Convention.

[ 5 ] The Police were directed to enforce the Orders and after 8 months from the date of the disappearance of the Mother and E.1, she was found to be in California in the Fresno area with a cult group, Mother had gone to live with, called the “Trumpet Call of God.” Once E.1 was located by the authorities in California, she returned to Canada with the Father on February 27, 2012.

[ 6 ] A custody and access hearing was held before Mr. Justice Czutrin on March 22, 2012. The Mother was then represented by counsel. A supervised access schedule was arranged so that the Mother could see E.1. The Mother returned to the U.S.A. where she had previously resided. She is an American citizen, with no status in Canada. Her visitor’s visa expired and even though the parties were married, the Father had never sought to sponsor the Mother, or if he had tried, no sponsorship had been completed.

[ 7 ] A schedule was set down leading to a Trial, and a Motion was heard regarding temporary custody of E.1. Madam Justice Mesbur, in her written Endorsement of April 2, 2012, sets out the unhappy history of the parties’ relationship and marriage. It is alleged that acts of violence took place during the marriage. The Mother sought refuge in a shelter. Charges were laid against Father. Both parties, however, had troubled histories.

[ 8 ] Madam Justice Mesbur sets out in great detail how Mother became involved with The Trumpet Call of God and her participation in the group supporting that cult. The Court made an Order that E.1 remain in Father’s temporary care. The Trial was set to take place about 6 weeks after that Order. The Father was ordered to enter immediately into a voluntary supervision arrangement with the Children’s Aid Society of Toronto (the “CAS”). The Mother was given a temporary supervised access schedule.

[ 9 ] The Mother had another child, T., who was born in the U.S.A. As that child’s father had not taken good care of T. after the Mother left for Canada, she was eventually brought to join her Mother in Toronto.

[ 10 ] T. was 5 years old at the time and so the lives of two small children were now involved in this high conflict situation.

[ 11 ] A Trial Management Conference was held on April 27, 2012. Both parties were represented by counsel. The Trial was to proceed in May but was adjourned on May 15, 2012. The OCL was to be brought in to do a S.112 assessment, and there was to be another Motion on access issues. On July 3, 2012 the Mother sought to change the terms of the temporary custody Order. By that time, the Mother had relocated to California and wanted to take E.1 on a visit. The issue was put over until the Trial, awaiting the OCL Report.

[ 12 ] The Mother discharged her counsel on or around August 27, 2012, saying that she was going to represent herself. In a Trial Management Conference held before Madam Justice Mesbur on September 12, 2012, she was informed by Father’s counsel that the Mother would not be attending. The Trial was therefore set to proceed on an uncontested basis.

The Trial

[ 13 ] The Mother sent an e-mail dated September 6, 2012 to the Father’s counsel which reads:

I do not wish to withdraw from the trial. I am simply stating that Jesus Christ will be appearing on my behalf and in my defense (sic). This fact will become self-evident in the days to come. Please be advised that my signature is not required as my letter, including a print out of this correspondence should suffice as evidence for the courts should you still feel the need to proceed.

I am satisfied, based on counsel’s submissions and on her Confirmation Form filed with the Court, with e-mails attached, that the Mother is fully aware that the Trial was to proceed on the day it was set down for, and that she chose not to appear. She did “withdraw” from the Trial by terminating her counsel and by failing to appear herself.

[ 14 ] The issues which were to be before the Court are as follows:

1. Custody and access of E.1
2. Retroactive and on-going child support and S.7 expenses
3. Status of the Mother’s other child, T.
4. Imputation of income of Father
5. Spousal support for Mother
6. Insurance coverage and medical and dental benefits
7. Restraining Order
8. Divorce
9. An amendment to the birth registry of E.1

[ 15 ] Given the fact that the Trial proceeded on an uncontested basis, the issues respecting T., the imputation of income of Father, spousal support for Mother, insurance coverage and medical and dental benefits and a Restraining Order are no longer before me.

[ 16 ] T., along with the Mother, had no status in Canada. While the Father provided a residence for T. to live in for a short period, it was only because T.’s father in the U.S.A. could not take care of her, that she arrived in Canada. There is no evidence that the Father was ever in loco parentis to her over the short period they were here.

[ 17 ] The Father owes no child support for T., nor does he owe the Mother any spousal support, given the short-term marriage of the parties and the Mother’s return to the U.S.A. in breach of The Hague Convention. The Father is still receiving some social assistance so he never was in any position to buy life insurance or become a member of any medical or dental plan.

[ 18 ] The Mother was requesting a Restraining Order be granted to her, ordering the Father to refrain from contact. That request is dismissed, given the Mother’s return to the U.S.A. This is not to say that the Father did not have a long criminal record for violence and other crimes in his past and with respect to his relationship with the Mother. As will be seen, however, through evidence given at Trial, the Father has attempted to rehabilitate himself with the help of others, and I am satisfied that he poses no threat to E.1 or to the Mother.

[ 19 ] At the end of the Trial, I granted the Father a Divorce and ordered that a copy of the Divorce Order be sent to the Mother when an address is found for her. The Mother, however, can be contacted by e-mail and any confirmation or copy of a document can be sent to her by that method. She is said by her former counsel, in his Trial Management Conference Brief, to have been living in Kingsburg, California and receiving social assistance from the State when E.1 was apprehended. Her e-mail gives no location as to where she is now.

The Report of the Office of the Children’s Lawyer

[ 20 ] Tara Noble is the Clinical Investigator with the Children’s Lawyer, in this case. Her Report is attached to her Affidavit sworn by her on September 11, 2012. When the OCL was asked to provide a S.112 Report, both parties were asking for sole custody of E.1. The Report sets out the family history of the parties, observations of the Investigator when the parties interacted with E.1. Other persons were interviewed also, including T., E.2 (the Father’s other 14-year-old child).

[ 21 ] It is clear from the Report that each parent has strengths and weaknesses. Their weaknesses, however, outweigh their strengths. For example, the Report says on p.12 that the Mother has “…a history of transiency, poor partner choices and minimal stable resources.” The Report says on p.11 that the Father also presents with significant risks, including an extensive criminal record that includes partner-assaults. There is also a history of Child Protection Services.

[ 22 ] In the Summary provisions of the Report, it states that there is ‘…no easy or straight forward decision regarding who would best meet all of E.1’s on-going needs.” It says that the Father currently displays “…the ability to provide a stable home environment and attentive parenting.” As for the Mother, it says that she “…has a history of aggressive behaviour, however no current concerns have been noted. It further says that she has a tendency to be “impulsive and made decisions based on her needs, with little forethought or consideration regarding the potential negative impact on her children.”

[ 23 ] The OCL recommends that the Father have sole custody of E.1, with the Mother to have scheduled access 3 or 4 times per year. They are to each share travel and accommodation expenses. The Mother is to be given access to all of E.1’s medical and educational information. It also recommends that the Father continue with counselling and that he continue to co-operate with the CAS.

The Cult Issue

[ 24 ] It was the Mother’s position, in her former counsel’s Opening Statement, which was filed with the Court, that she is not a member of a cult. It is said she holds “strong Christian beliefs” and was not living at a “cult compound” when she and E.1 were apprehended in California. In my view, the evidence presented at Trial shows that this is not the case. The Mother clearly was a cult member.

[ 25 ] The Father was able to trace the Mother’s whereabouts to the cult in Fresno, by posing as a cult member on the internet. He says that the Mother began her involvement with the “Trumpet Call of God” group through a web page it operated. Entered as Exhibits at Trial were posters, cards, and letters from the “Prophet” who was a man named Timothy. He appears to be the operative person from the evidence I saw.

[ 26 ] There were also study groups on the internet with other cult members. The Mother participated in these and the Prophet (“Timothy”) presented his “letters” through this medium. Cult messages were posted by the Mother in the apartment window, says the Father and he says the Mother took E.1 and T. out with her when she passed out leaflets to the public about the cult.

[ 27 ] Father says the cult posted videos on U-Tube and that audios were available from this source. The cult, says Father, wanted its members to home-school their children and he says the Mother took T. out of school to do this. He says the Mother’s friend, Amy, was one of the “prophetesses” of the cult and that the Mother hoped to become one. The Mother had a list of “Flock numbers”, being the phone numbers of 6 other members, including Amy.

[ 28 ] Exhibit 18 is a typed message from the Mother to other members explaining that she was raised as a Wican for 7 years. Her own mother was an active member and she frequently participated in occult rituals. She sets out in some detail what took place at these rituals. She says she and her first husband were involved in “New Age Agenda” and that they believed they were “Twin Souls”. These indicia point to a cult group.

[ 29 ] The Father filed a report prepared by Rick Ross, an American who operates a non-profit corporation devoted to the study of destructive cults, controversial groups and movements. He says he has appeared as an expert witness on cults, in the United States Federal Court and other state courts. He says his corporation operates a “message board” that can be accessed by the general public, which has received complaints since 2008 about the “Trumpet Call of God” cult. He says there are 20 to 30 active internet members led by Speed Timothy Rathburn. From the research Mr. Ross has done, he concludes that the “Trumpet Call of God” is a destructive cult and a potentially dangerous group.

[ 30 ] Mr. Ross sets out how the members become exploited by their leader. He points to the “Letters from God” that Speed Timothy Rathburn sends out to the members, and how the cult breaks down individual thinking and applies interpersonal pressure to promote conformity. The cult leader may then exploit the members sexually and/or financially.

The involvement of the CAS

[ 31 ] Mr. Kofi Asante (“Asante”), a Family Service Worker with the CAS, gave evidence at Trial. He says that Father’s family first became involved with the CAS in 2005. It later became involved after the Order of Madam Justice Mesbur set out the voluntary supervision Order for the Father to follow.

[ 32 ] Asante met with the Father and spoke to him about a Parenting Course, a CAS run programme that the Father agreed to attend. It is Asante’s evidence that the CAS has no concerns about the Father caring for E.1. Asante provides supportive counselling and the supervision programme for the Father will run for 12 months.

[ 33 ] Asante says that while times of visits are usually set up with the parent, the CAS has the power to, at any time, attend at the parent’s residence. He attended on the Father one morning at 8:00 a.m. and found that Father was properly feeding E.1 her breakfast. It is also his evidence that E.1 is very attached to her Father and that she is very talkative when in Asante’s presence.

[ 34 ] The Father says that he is also prepared to take an Anger Management Course to help with his parenting. He says, “I love Kofi …he is a blessing to me and I am glad to have him in my life.”

Evidence of other witnesses

[ 35 ] T.M. gave evidence at Trial. He was a neighbour at the 269 Queen Street West complex when the Father and Mother lived there with E.1 and T.. It is his evidence that he never saw T. go to school. He says he knew that the couple argued and he often heard them raise their voices. He says his youngest daughter sometimes played with T. in the courtyard of the complex but he says he often saw T. playing alone and unsupervised in that area. He says his wife was often concerned about T. being left alone and that she sometimes appeared dirty and hungry. It was their view that the Mother was not a very capable parent.

[ 36 ] J.D. (“J.D.”) gave evidence at Trial. She says she has known the Father for about 4 to 5 years. They became good friends over the years and the Father stayed at her home with her family in Brampton at one point. She also acted as a surety for the Father when he was charged with assault in 2011. J.D. has 3 adult children of her own and one assisted the Father when he had access with the children after the assault incident.

[ 37 ] J.D. says that she met the Mother and was told by her that she was going somewhere in the U.S.A. to join her “religion.” Based on that, J.D. says she told the Father that the Mother might do this. After the Mother left and E.1 was returned, J.D. says that she saw the Father with E.1 and he was a good father. She sees E.1 as being in a “safe and loving relationship” with her Father.

[ 38 ] T.S. (“T.S.”) swore two affidavits in support of the Father’s position in this litigation. He has known the Father for about 5 years and spent a month with the couple after E.1 was born. He says the Mother was “often aloof” and spent a lot of time down-loading things off the computer. He saw the posters the Mother had and confirms the Father’s evidence about her taking the children out to hand out leaflets. He also confirms that T. was not in school when he was with them.

[ 39 ] T.S. says that the Father was the primary cook in the family and helped care for the family before the Mother left. He also was the person who picked up E.1 and the Father when they returned from California. He also acted as the supervisor for some of the visits by the Mother with E.1, after E.1 was brought back from California. He says he saw no evidence that the Father was abusive to the Mother. He last saw E.1 a few weeks before the Trial and remarked how she was thriving in the care of her Father.

Analysis and Conclusions

[ 40 ] I am satisfied, based on the evidence before me and as set out in this Endorsement, that the Father should be granted final sole custody of E.1. An Order granting this shall go accordingly. This is supported by the findings of the OCL and by the support the Father is receiving from the CAS. Independent witnesses who observed the Father, both before and after the parties’ relationship failed, confirm that he is a good father to E.1.

[ 41 ] The Mother, on the evidence of the OCL and others, makes decisions based on her own needs and not the needs of her children. T. was observed by others as not being in attendance in school, was often left alone by the Mother when the child was of tender years, and sometimes appeared neglected. There is no evidence to show that the same pattern would not have taken place with E.1, as she grew up. The Mother’s flight to California is simply one more example of the Mother’s selfish childish behaviour.

[ 42 ] It is clear that the Mother belonged to the cult, “Trumpet Call of God”, and there is a reasonable inference that this is what she returned to. What is known about her own relationship with her family in Northwest United States, is that it was one of instability. At the age of 24, she has had 2 marriages and one common law relationship. Her two children were the products of unstable relationships and her inability to see past her own needs.

[ 43 ] What, then, should be put in place for the Mother’s access to E.1? From the Mother’s past behavior, it can be seen that she cannot be trusted to be alone with E.1, should the Mother want access to E.1 in Toronto. The Father cannot, at this point in his life, cross the border with E.1 to arrange for her to see her Mother in the United States. He has a criminal record that remains for the time-being, although he hopes to be able to have it expunged.

[ 44 ] The Mother was last on social welfare in California, has no record of work of which I am aware, and has no money. She abandoned her right to be at the Trial, and while her faith in Jesus is strong, it is not helpful in determining what is in E.1’s best interests. If she is to have any access to E.1, it shall be supervised access at a supervised access centre in Toronto, or supervised by one of the Father’s friends and/or relatives. All arrangements shall be made in writing, either between the parties, or through their counsel. Nothing shall be arranged on an ad hoc basis, if the Mother simply arrives in Canada and demands access.

[ 45 ] In the past, the Mother had access through Skype and by telephone, which can continue to take place with the Father’s assistance on a once per week basis only. In my view, each party has to learn to live in an orderly and organized fashion, hopefully around a work schedule. Access by this method cannot simply take place on a whim of the Mother.

[ 46 ] As noted earlier by me, child and spousal support are no longer issues and I have found that the Father was never in loco parentis to T..

[ 47 ] The Mother will receive a copy of this Endorsement from the Father’s counsel through e-mail, as she has no known postal address to which the Court can send a copy.

Costs

[ 48 ] The Father is the successful party in this litigation and is entitled to his Costs, if asked for. He and the Court are aware that the Mother received $1,000 from the Father during earlier proceedings and it appears she may be judgment proof. Counsel may make Costs Submissions to me in writing no longer than 3 pages with time dockets and case law within 30 days of this Order.

Greer J.

Released: October 23, 2012

COURT FILE NO.: FS-12-376954
DATE: 20121023
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY LAW

BETWEEN:

A.A., Applicant – and – T.L.A.A., Respondent

ENDORSEMENT

Greer J.

Released: October 23, 2012