Elmi v. Hirsi, 2015 ONSC 269

COURT FILE NO.: CV-14-3377-00/CV-14-4016-00

DATE: 2015-01-14

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Tawfeeque Ismail Elmi et al v. Salma Hirsi et al

BEFORE: Fairburn, J.

COUNSEL: Elizabeth Julien-Wilson, for Tawfeeque Ismail Elmi and Sadhia Elmi

Margaret Osadet, for Salma Hirsi and Khadija Warsame

HEARD: January 9, 2015

E N D O R S E M E N T

1This matter comes before the court in the form of multiple applications, all arising from the same matter.

2The originating application relates to guardianship over Nadeen Tawfeeque Ismail (“Nadeen”), born February 2, 1994, and her property. She is the adult child of Salma Hirsi (“mother”) and Tawfeeque Ismail Elmi (“father”). Although her chronological age is 20, according to the evidence filed to date, there is some suggestion that Nadeen functions at the age of a ten year-old. A June 19, 2014 letter of Dr. James B Chaing, a physician who has been treating Nadeen since she was two years of age, suggests that at the age of 20, she is “developmentally … at the age of ten years approximately”. This letter was marked as Exhibit 2 at the application that forms the subject of this endorsement.

3The application pertaining to the guardianship of Nadeen and her property resides in court file: CV-14-4016-00. In a separate court file, CV-14-3377-00, there resides an application for the production of records. The father seeks Peel Regional Police Services’ (“PRPS”) records pertaining to the mother. He also seeks from the Peel District School Board (“the Board”) records pertaining to Nadeen. He says that the subject records are necessary to pursue his guardianship application. As such, and despite the fact that it rests under a separate court file number, it is an application that is inextricably linked to the core of CV-14-4016-00.

4Also contained within file CV-14-3377-00 is an application brought by the mother, seeking temporary guardianship over Nadeen (who is currently residing with her father). In the alternative, the mother seeks to be provided with overnight access to Nadeen, having her reside with the mother from Monday after school until Friday when she is dropped off at school. This access order, characterized by the father as a “residence order”, is requested by the mother until such time as the guardianship issue is sorted out and ordered upon.

5Under court file CV-14-4016-00, an application is also brought to have the Public Guardian and Trustee (“PGT”) appoint counsel on behalf of Nadeen.

6As it was not clear to me from the material filed for purposes of the January 9th hearing, I called upon counsel to articulate what issues they were raising on that date and their positions in respect to each. Having gleaned their positions in court, I understand the following matters to be in issue.

Consent Matters

1. Production of Records

7The father’s application for the release of records from the PRPS and the Board is consented to by the mother. Having reviewed the December 10, 2014 correspondence from the Attorney General, I am satisfied that the draft order provided by the Attorney General should go as per the draft provided and in accordance with terms and conditions set out in the draft.

8Notably, counsel to the mother and her sister, Khadija Warsame, raised a concern about accessing the PRPS records that they say exist in respect to the father. Like the mother, it is said that the father is also charged with an offence and, indeed, bound by certain bail conditions that preclude contact between the mother and her sister, Ms. Warsame. Having not yet filed an application for these records, the mother’s counsel should attempt to ascertain the position of the father and file an application if she wishes to obtain the release of the records. It may be that, subject to the views of the Attorney General, if an application is brought, this matter can also be dealt with on consent: P. (D.) v. Wagg (2004), 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229 (Ont. C.A.).

9As it relates to the Board records, counsel for the mother also consents to their release. I have reviewed a letter dated December 9, 2014, from counsel to the Board, Jennifer Trépanier, in relation to this matter. I note that Ms. Trépanier makes reference to the privacy in the records sought and specifically requests that if the order for disclosure is to go, it “include the exception that any third party personal information be redacted from a copy of the OSR documentation sought to be provided for the legal proceedings”.

10I agree that these records should be produced by the Board. I have not been provided with a draft order specifically pertaining to the records. Within seven days of the date of this endorsement, counsel for the father should provide to the trial coordinator’s office a draft order in accordance with what counsel have agreed upon, and having regard to the exception noted in the December 9, 2014 correspondence from counsel to the Board. I will review the draft order when it has been provided.

2. Section 3 of the Substitute Decisions Act, 1992

11On a prior occasion before the court, counsel for the father sought the appointment of Paula Bateman as counsel for Nadeen. In a December 10, 2014 letter from the PGT to counsel for the mother and father, they were asked for input as to Ms. Bateman’s background. There is no indication that the letter from the PGT was responded to by either counsel.

12Before the court on January 9, 2015, counsel for the mother suggested that Alexander Procope be considered as counsel for Nadeen. A letter from Mr. Procope dated January 7, 2015, and a copy of his resume was filed on the application. They were marked as Exhibits 1A and 1B respectively.

13The discussion over which counsel should be appointed for Nadeen is premature. The court’s jurisdiction is to direct the PGT to arrange for legal counsel, and not to appoint counsel. Section 3 of the Substitute Decisions Act, 1992 S.O. 1992, c.30 reads:

3.(1) If the capacity of a person who does not have legal representation is in issue in a proceeding under this Act,

(a) the court may direct that the Public Guardian and Trustee arrange for legal representation to be provided for the person; and

(b) the person shall be deemed to have capacity to retain and instruct counsel. 1992, c. 30, s. 3 (1). [emphasis added]

14The capacity of Nadeen is clearly in issue in this matter. She does not currently have legal counsel. This leaves the question as to whether, as a matter of discretion on the part of the court, the PGT should be appointed to arrange for counsel. The parties are in agreement that this should happen and I agree.

15The guardianship proceeding could have a profound impact upon Nadeen, including a potential loss of autonomy over her property and care.

16The facts as alleged by the mother and father are wildly different. In brief compass, the mother says that throughout much of their upbringing, the father had virtually nothing to do with their two children, one of whom is Nadeen. She says that she left Nadeen in the care of the father’s sister, Sadia Elmi, on April 9, 2014. The mother says that she did this because she was going to travel to Africa for a period of time and her sister, who is her co-applicant Khadija Warsame, was in Florida at the time and could not care for Nadeen until her return a short time later. Within a few days of leaving Nadeen in Ms. Elmi’s care and control on April 9th, the mother was served with a motion to change Nadeen’s primary residence.

17The mother says that she responded by cancelling her trip to Africa and attempting to seek the return of Nadeen. She says that she was told by the father that he would give Nadeen back if the mother called the Family Responsibility Office (“FRO”) and told them that she was no longer seeking the amount owing in arrears.

18There does not appear to be dispute over the fact that the father owes a significant sum in child support arrears and has lost his driver’s licence as a result of that fact, forcing him to work outside of the Province. Depending on whose version of the facts one accepts, he is working in Alberta for 2-3 weeks per month, meaning Nadeen (over whom he is seeking guardianship) is currently in the care of his sister, Ms. Elmi, during those periods of time.

19The father suggests that he has not returned Nadeen to her mother, and is seeking her guardianship, because he says she is not safe with her mother. He alleges alcohol and drug abuse problems on behalf of the mother and, indeed, suggests that this is one of the reasons he needs the PRPS records. Moreover, he says that Nadeen does not wish to see her mother. The mother disputes this fact and suggests that Nadeen is suggestable and the subject of intentional alienation on the part of her father.

20In addition, the parents disagree over Nadeen’s level of difficulties. Pointing to Dr. Chiang’s letter noted above, the mother says that she functions at the level of a ten year-old and can’t be expected to decide where she wishes to live. Based upon Individual Education Plan records that the court was directed to (contained within the father’s original application for guardianship), the father suggests that Nadeen is doing well and capable of working independently 100 percent of the time. He says that the court can have confidence in what he claims is her decision not to see her mother.

21The only agreement the parties seem to have is over the fact that independent counsel should be appointed on behalf of Nadeen.

22Bearing in mind the seriousness of the guardianship application, the very different positions of the parties, as well as the conflicting evidence as to Nadeen’s actual needs, I am satisfied that Nadeen needs counsel. As such, I direct the Public Guardian and Trustee to arrange for legal representation to be provided for Nadeen Tawfeeque Ismail.

Non-Consent Matter

The Mother’s Request for Access

23The mother has not seen or heard from Nadeen since she put her temporarily into Sadia Elmi’s care on April 9, 2014. Not surprisingly, she is very anxious to have contact with her daughter.

24The mother brought a previous application to have Nadeen returned to her home. The application was brought pursuant to ss. 22 and 55 of the Substitute Decisions Act. It was heard in this court on August 14 and 21, 2014, and dismissed on September 10, 2014. Among other things, Trimble J. noted that he was without jurisdiction to the make the order requested as ss. 22 and 55 of the Substitute Decisions Act do not speak to the issue of jurisdiction to make a residency order.

25Moreover, without deciding the point, Trimble J. noted that the application might be ill-conceived, in the sense that the interim access/residence remedy should be sought in the Ontario Court of Justice, bearing in mind that on October 13, 2004, Brownstone J. of that court ordered that the parents have joint custody of Nadeen and her brother, with a primary residence being with the mother.

26Counsel to the mother says that in her new attempt for access to Nadeen, she is not asking to reopen Trimble J.’s finding. Rather, she says that her application is now framed as a request for the court to exercise its parens patriae jurisdiction. Although no authority was provided by counsel for the appropriate exercise of jurisdiction under this doctrine, a provincial superior court does have inherent jurisdiction under the parens patriae doctrine to act where necessary to protect those who cannot care for themselves: E. (Mrs.) v. Eve, 1986 CanLII 36 (SCC), [1986] 2 SCR 388 at paras 72-3.

27I find it somewhat curious that until April 9, 2014, the mother seems to have been the custodial parent of Nadeen. There is another child of this previous union between the mother and father and, despite the father’s claim about the mother’s failings to care for Nadeen, their son remains in her care. Based on the record that I have before me, it seems that he has done nothing in respect to that child. This adds to my concern about the length of time that Nadeen has been away from her mother.

28Nonetheless, bearing in mind the fact that there is strong conflicting evidence, and the fact that the PGT is now going to be involved, like Trimble J., I am not inclined to grant the mother’s request for “interim guardianship” or access at this stage. Rather, this matter should move forward with the input of the PGT and with dispatch.

29I would like this matter to come back to me no later than three weeks from now to hear from the PGT as to their views on interim guardianship or access by the mother. I would also like a status report about the progress on having counsel retained for Nadeen.

30As such, I order that counsel for the mother provide to the PGT a copy of this endorsement forthwith upon its release. Counsel for the mother and father should confer with one another, and with counsel for the PGT, about dates to return before me to address temporary access issues and the status of counsel for Nadeen. I order that counsel must be in touch with the trial coordinator no later than January 24th, 2015, with respect to the best date to return for a 9:00 a.m. appearance, with a return date to be no later than three weeks from the date of this endorsement.

31In the interim, it would be beneficial if the parties could agree upon terms of access, and allow for access to Nadeen. Based upon a suggestion in the material filed by the mother on this application, that she has concerns that Nadeen will be married to her cousin under Sharia Law (para 49 of the affidavit of Salma Hirsi, affirmed January 4, 2015), and the implications of any such potential marriage, I order that while the issue of guardianship is being sorted out, Nadeen’s status as a single woman residing in Ontario remain unaltered, unless this court makes an order to the contrary.

Merger of the Court Files

32Owing to the unwieldy nature of the applications, which fall under two separate court files, and the fact that they clearly relate to a single matter, I asked counsel for input on whether the files should be merged. They were in agreement that they should be merged into a single file. As such, I make an order that from here on, all matters be dealt with under file number CV-14-4016-00. Nothing else should be filed under file number 14-3377-00 and this matter, and anything ancillary to it, should be heard only under CV-14-4016-00.

Case Supervision Judge

33Counsel agree that this matter would be well served by the appointment of a case supervision judge. Counsel to the father undertook before me to write to the Regional Senior Justice within one week of January 9, 2015, to request that a judge be appointed for this purpose.

Fairburn J.