ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-11-1862-2
DATE: 2013/09/06

BETWEEN:

Macédoine Nduwayo

Applicant

– and –

Joséphine Muhonga

Respondent

Macédoine Nduwayo, self‑represented

Joséphine Muhonga, self‑represented

HEARD: May 21, 22 and 23, 2013 (Ottawa)

REASONS FOR DECISION AT TRIAL

R. SMITH J.

Overview

[1] On August 11, 2011 the applicant, Macédoine Nduwayo (the “father” or “husband”), brought a motion to change the divorce order of Moreau J. dated August 23, 2010 to grant him access. Moreau J. Granted a divorce and gave custody of the three children to the respondent mother, Joséphine Muhonga (the “mother” or “wife”), and made no order with regards to access. On February 16, 2012 the father also brought an application seeking custody of the three children or, in the alternative, access to his children.

[2] The father’s motion to vary does not seek custody but only access to the children, however he stated in oral submissions that he seeks custody of the three children. As a result I will address both custody and access considering the factors under both the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), and the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

[3] The mother supports the recommendations in the assessment included as part of the Report of the Children’s Lawyer which recommends that she be granted principal residence and sole custody of the children with access to the father increasing gradually to every second weekend.

Analysis

[4] The factors to be considered when determining custody and access under the Divorce Act are set out at s. 16(8) which include only the best interests of the children as determined by reference to the circumstances.

[5] Section 24(1) of the CLRA also states that matters of custody and access shall be determined in accordance with the best interests of the child. The Court shall consider the child’s needs and circumstances including:

(a) the love, affection and emotional ties between the child and the party claiming custody;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live; and

(g) the ability of each person applying for custody of or access to the child to act as a parent.

Background Facts

[6] The wife was born in Burundi and met her future husband, the applicant, in December of 2002 while he was working as a minister helping children in a school. Ms. Muhonga had been attending the same school. The mother testified that the father had kept her confined for one year and forced her to have sexual relations with him, as a result of which she became pregnant with her first child. She discovered that the applicant was not a minister with the church but rather a refugee in the process of coming to Canada. She testified that the applicant would become physically abusive with her if she would not have sex with him; he would hit her and lock her in her room.

[7] The parties were married in Uganda in November of 2004. There are three children, Promise Selelano Tona, born October 17, 2003, who is now nine years of age; Marvelous Kaze, born April 7, 2006, who is now seven years of age; and Ganza Divin Kira, born June 19, 2011, who is now two years of age. The parties were originally from Burundi but later were married in Uganda. In April of 2008 the parties came to Canada with their two children, Promise and Marvelous, as refugees from Rwanda.

[8] In October of 2008 the parties separated. They were initially separated for two months in August of 2007 but then reconciled and obtained refugee papers in order to come to Canada. Once the parties came to Canada, they settled in Windsor, Ontario where the government provided housing and other assistance.

[9] The respondent testified that her husband’s behaviour started to change when his brother died in Uganda and the husband accused his wife of arranging for her family to murder him. The respondent testified that in September of 2010 her husband told her that he had been diagnosed as bipolar in November of 2008. Her husband behaved in a bizarre manner when he did not take his medications. She testified that the father’s behaviour became erratic as he would force her and the children to leave the house at random times with him, and he would pack his bag and leave without explanation and come back suddenly or not come back for a period of time. The wife went to a women’s shelter with the children in October of 2008.

[10] On February 26, 2009 Justice Paul Kowalyshyn of the Family Court in Windsor issued a final order giving sole custody of the children to the mother. In January of 2009 the husband moved to Edmonton for work and did not attend the court proceedings when custody of the children was granted to the mother in Windsor.

[11] In September of 2010 the husband returned to Windsor and asked his wife for a reconciliation. The parties entered mediation through their religious community and they reconciled for a short period. During this period of reconciliation she became pregnant with Ganza Divin.

[12] Shortly after the reconciliation the husband asked her to move to Alberta. The wife testified that the husband advised her that he was on probation for theft of a car and was required by the terms of his probation to remain in Edmonton. In December of 2010 the wife travelled to Alberta with the two children. The wife testified that the husband asked her to lie in order to obtain social security benefits. She refused and was punished by the husband for refusing to apply.

[13] Unbeknownst to the wife the father had already obtained a divorce by judgment dated August 23, 2010. In the divorce order Justice Moreau granted the wife sole custody of the two children of the marriage at that time. She did not order any access to the father. The wife was not aware that they had been divorced. When the wife left Alberta she returned to live in Ottawa. Once the husband became aware that the wife had moved to Ottawa near her family, he commenced proceedings seeking custody and access to the children.

[14] The wife testified that her husband had prepared a false document which she signed when he asked for a reconciliation. The husband told her and she believed that she was consenting to the reconciliation but other pages attached to the document indicate that she was consenting to an order of joint custody of the children. I accept the wife’s evidence that she did not knowingly consent to the joint custody and believed she was only signing to indicate her consent to the reconciliation. Her explanation accords with common sense.

[15] The applicant father also filed three affidavits from individuals who supervised his access during 2012, namely Bagira Girukwayo, Aline Uwimana and Reverend Pastor John Ditati. I ruled that if the father wished to rely on these three affidavits, which he was given permission to file, he had to produce the witnesses for cross-examination. The mother wished to cross-examine the three witnesses because they had told her that they would state that they signed the affidavits but that the first pages of the affidavits were changed by the father after they were signed by the affiants. The father was given the opportunity to adjourn the proceedings if necessary to allow him to subpoena the witnesses. The father decided not to have the affidavits introduced as evidence. I draw an adverse inference against the father’s credibility for failing to call the three witnesses whose affidavits he sought to rely on and where the mother testified that he had changed the affidavits after they were signed.

[16] On June 29, 2012 Métivier J. ordered the appointment of the Children’s Lawyer and denied the father’s application for joint custody of the girls and she awarded sole interim custody of the children to the mother.

[17] The Report from the Children’s Lawyer was completed by a clinical investigator engaged by the Office of the Children’s Lawyer by the name of Lorraine Ceasor. The assessment recommended that the mother have sole custody of the three children, that the primary residence of the children be with the mother, and further recommended unsupervised access to the father gradually leading to unsupervised access every other Friday after school until Saturday at 7 p.m. on alternate weeks, and then Friday after school until Monday morning at school at 9 a.m. The drop-offs and pick-ups were to be completed at the school. She further recommended that the Christmas holidays be shared and that the father participate in parenting classes to assist him to learn parenting strategies as he has never been in the role of a principal caregiver for the children.

Best Interests of the Children

[18] The Factors set out in s. 16(8) of the Divorce Act include the best interests of the children as determined by the circumstances. Section 24(1) of the Children’s Law Reform Act sets out a number of factors that I have listed above. The best interests of the children is the principal factor.

[19] This application has been brought both under the Divorce Act and under the Children’s Law Reform Act and therefore I will consider both.

Love, Affection and Emotional Ties Between the Children and the Parties Claiming Custody

[20] In this case the mother has had the principal residence of the children since separation and she has also had sole custody of the children both under the divorce order of Moreau J. in August, 2010 and also the order of Kowalyshyn J. in February of 2009. The father has spent a substantial amount of time in Edmonton since the separation and has never been the primary caregiver of the children. As a result the love, affection and emotional ties of the children are much stronger with their mother.

[21] The mother has properly cared for the children since the separation. The father has had limited contact with his children and in fact has had some supervised access in 2012, however has not had access due to the lack of a position at the supervised access centre since 2012.

Stability and Permanence and Ability to Provide Guidance, Education and Necessities

[22] The children are and have been living in a stable home environment with their mother since the separation. The mother has recently obtained employment as a Nurse’s Aide and has received her diploma from a community college this spring.

[23] I conclude the mother has been and continues to be capable of providing a stable, loving home for the children. She is also the better parent to provide guidance, education and the necessities for the children. This finding is confirmed by the clinical assessment of the Office of the Children’s Lawyer which I accept as reliable evidence.

The Parties’ Plans

[24] The father has not provided persuasive evidence that he is able to provide guidance or necessities to the children. The father has not provided any evidence of his living arrangements. In his evidence to the Court and in cross-examination of the mother and witnesses called by her, he was concerned with such issues as the doctrine of the church to which the mother currently belongs. He presented very limited evidence of any plan to care for the children.

[25] I found the mother’s evidence to be very believable and trustworthy and I found that the father was not a credible witness as he had altered documents on two occasions. I also accept the mother’s evidence that she has concerns about the father’s mental state and that she has been threatened and subject to abuse from him during their cohabitation.

[26] I find that it is in the children’s best interests that the stability and permanence of the family unit continue with the mother as recommended by the clinical investigator’s report for the Children’s Lawyer. I also found the mother to be a very good witness who testified in a reasonable, straightforward manner and was concerned with the well-being of her children. In contrast, the father was concerned with trying to show that the mother had either lied or was in contempt of court for not filing documents on the exact date. I find the father’s conduct of altering documents to suit his purposes negatively affected his credibility.

Ability to Parent

[27] The mother’s ability to parent the children is much greater than that of the father. The clinical investigator recommended that the father take parenting classes as he has never been in the role of caregiver with the children. The father’s abusive conduct to the mother is also of concern as the children may observe his abusive conduct to their mother which would be harmful to the children.

[28] The father wrote an email to the wife which I had translated in the Kirundi language. The translator interpreted and translated from the Kirundi language to the English language and also to the French language. The parties were given an opportunity to make additional submissions about the translation of the email.

[29] The wife testified that the email had been sent to her on April 17, 2013, approximately two months before this trial commenced. The mother testified that in the email she would have been ‘Mary’, and ‘Joseph’ referred to the applicant father. These were sexual names that the father used to represent sex between each other. The mother testified that the father used such language so that someone else reading the email would not understand his meaning, but testified that she has a clear understanding of what he means. She understood the email to state that Mary, in this case referring to the mother, should agree with Joseph in all things. The email ends as follows: “If Mary does not make any progress, then nothing will be possible and the case will go even to the Supreme Court for about 16 years and people will hear that Joseph ... .”

[30] The father testified that this email was only news from Africa that he was sharing with the mother. I accept the mother’s evidence as to the meaning of the email. The subject of the email is stated as ‘Mary’, which the mother testified was their way of saying the female sex. I find that the statements that ‘Mary’, meaning the mother, should agree with Joseph in all things and if not, the matter would go for 16 years to the Supreme Court is in fact a threat made by the father to the mother. This was made two months before trial. I further find that the conduct displayed by the father in writing such a letter is conduct that is not related to the best interests of the children and is an attempt to intimidate and threaten the mother into agreeing with him.

Disposition

[31] For the above reasons, and after considering the factors that have been set out in s. 24(1) of the Children’s Law Reform Act, I find that it would be in the best interests of the children that the respondent mother be granted sole custody of the three children and I so order.

[32] I further order that the primary residence of the children will be with the mother.

[33] I find the proposed access as set out in paragraph 3 of the recommendations of the clinical investigator’s report is in the best interests of the children, that there be gradual increased access between the father and the children, increasing to access every second weekend, and I so order.

[34] I also order that the holidays be shared as recommended in paragraph 4(a) and (b) of the report.

Costs

[35] The parties may make submissions on costs if they wish within 10 days.

R. Smith J.

Released: September 6, 2013