COURT FILE NO.: FC-16-657 DATE: 2016/04/27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: STEPHANIE DE SILVA, Applicant AND DELAN DE SILVA, Respondent

BEFORE: Shelston J.

COUNSEL: Emily Comor, counsel for the Applicant John E. Summers, counsel for the Respondent

HEARD: April 21, 2016 (at Ottawa)

Endorsement

Overview

[1] On March 28, 2016, the respondent (“father”) travelled to Mexico for a vacation to return on April 2, 2016. Unbeknownst to the father on March 24, 2016, the applicant (“mother”) commenced proceedings. On March 28, 2016, the father left on his trip. On March 29, 2016, the mother sought and obtained leave from the Court to bring an ex parte motion before a case conference.

[2] On March 31, 2016, Justice Beaudoin granted an ex parte order as follows:

1. The Applicant, Stephanie De Silva, shall have interim interim sole custody of the children namely A.D. born […], 2005 (“A.D.”), N.D. born […], 2008 (“N.D.”) and C.D. born […], 2010 (“C.D.”).
2. The Applicant shall have interim interim exclusive possession of the matrimonial home at 44 N[…] Avenue.
3. The Respondent, Delan De Silva, shall be restrained from contacting the Applicant, Stephanie De Silva, directly or indirectly and shall not attend within 500 metres of her home, her parent’s home at 1672 S[…] Street, or her place of work at 250 L[…] Avenue Ontario.
4. The Respondent shall be restrained from contacting the children, A.D., N.D. and/or C.D., directly or indirectly and shall not attend within 500 metres of their home, school or day care, except for the purpose of exercising access as may be ordered or agreed to between the parties.
5. This order shall be served on the Respondent at his email address ([email]) and the Continuing Record together with a copy of the order shall be served on the Respondent by courier at his parent’s (S.D. and J.D.) home at 14 H[…], Ontario and this shall be sufficient service.
6. This motion shall be returned to Court on April 12, 2016 at 10 AM.
7. The costs of today’s attendance are reserved to the hearing of the motion.

[3] The father returned April 2, 2016 and became aware of the order. On April 12, 2016, at the request of counsel for the respondent who had just been retained, the motion was adjourned to April 21, 2016.

[4] The applicant seeks to continue the order of Justice Beaudoin. She advises that there is a case conference scheduled for June 29, 2016, at 10 a.m. On access, she proposes that it be supervised in the community for two hours at a time as determined by the court.

[5] The respondent’s position is that the order of Justice Beaudoin should be set aside based on material nondisclosure by the applicant and that the parties should be placed in the position they were prior to the order being made.

[6] The issue before me is whether or not to set aside the order of Justice Beaudoin or continue it.

[7] The parties did agree and consent to the appointment of the Office of the Children’s lawyer with a recommendation to appoint a social worker.

Facts

[8] The parties met at Carleton University in 1999 and married on August 21, 2004.The mother is a manager of the National Pharmaceutical Inspection Program at Health Canada. Her base salary is $[…]. Her hours of work are between 9 a.m. and 5 p.m. The respondent is an IT consultant currently working with the Canada Border Services.

[9] There are three children of the relationship namely, A.D., born […], 2005; N.D., born […], 2008 and C.D. born […], 2010.

Ex parte Motion on March 31, 2016

[10] The mother filed three affidavits before Justice Beaudoin on March 31, 2016. The mother alleged in her affidavits the following facts:

(a) She is extremely frightened of the father. (b) The father was increasingly volatile over the last seven years including hitting the children, pushing them, locking them in their rooms, turning off the light in the bathroom to deliberately scare N.D., leaving A.D. in the driveway and driving away instead of taking her to school; threatening to kill the children, threatened to rip their heads off, put them in jail and throw them over the fence amongst other things. (c) He has conducted physical abuse and emotional abuse as he is cruel to the children by saying extremely derogative things to them such as calling them “dumb”, “stupid”, “bloody idiot”, “useless”, “God damn you” and the like. (d) He is controlling, insulting towards the mother, has pushed her and shoved her on numerous occasions including when she was pregnant, undermines her decisions, criticizes her and withholds the car keys as a punishment. (e) The father’s volatility has only increased over time. (f) The mother admits that at moments he can be very kind and loving but will become very scary with little provocation. The father has been very helpful with the children and household chores including taking a one-year unpaid parenting leave after her maternity leave following the birth of N.D.. However she attests to the fact that his volatility has only increased and she tries very hard never to leave the children alone with him and if she does leave him with the children it is almost always after they have gone to sleep at night. (g) That she is very fearful that he will become enraged when he learns that she wishes to separate. She is concerned that he will attempt to hurt the children out of revenge or out of anger or try to kill himself. (h) She repeats comments made to her by the children that can only be described as very negative with respect to the father.

[11] Based on all these factors, the mother was waiting for the proper time to commence proceedings which occurred when the father left for a five-day holiday to Mexico with friends from March 28, 2016 to April 2, 2016. It was during this period of time that the mother sought leave to bring an ex parte motion.

[12] Attached as exhibit A to the mother’s affidavit is a 34-page document which she describes as a log that she started in 2012 documenting the actions of the father. The document contains significant hearsay evidence. As well there is no information provided to the court as to why there are gaps in the log, whether the log’s information was put down contemporaneous with the events or other information sufficient to allow the court to determine whether or not it should be admitted as evidence. As a result of a lack of evidence regarding the creation of this log, I will not rely on the allegations contained therein.

[13] Further, the applicant has prepared a second affidavit dated March 24, 2016, which effectively is a shorter version of the long affidavit dated March 24, 2016. Finally, the mother filed an affidavit by Monica Pereira, her mother, in support of her daughter’s application.

Evidence of the Father

[14] The father filed an affidavit dated April 15, 2016, which responds to the allegations raised by the mother.

[15] The father had previously worked as a civilian employee for the RCMP for 11 years and currently is working as a consultant doing contract work for various federal government departments including Canada Border Services. The affidavit evidence indicates that the father was the Vice President of the Board of Directors of the Parent Resource Centre from September 2009 to September 2010; in February 2016 he has been a volunteer coordinator for a local soccer club; and currently was involved in charity organizations.

[16] In addition, the affidavit evidence discloses that in the last 10 years the father has been involved in the children lives, being responsible to drop the children off at school, being responsible for disciplining the children, involved in grocery shopping, cooking meals and cleaning the house.

[17] The father denies the allegations that he would ever seek revenge or hurt his children or the mother upon learning about any separation. The father’s affidavit contests many of the allegations raised by the mother and indicates that the parties had fundamental issues regarding the discipline of their children.

[18] The father has provided letters from three individuals being Msgr. Joseph Muldoon; Dr. Mitchell Machado (a physician and friend for over 30 years) and a letter dated April 8, 2016 from Dr. Bapen (a physician and friend since 1984). These three individuals attest to the good nature of the father and his dedication to his children. I advised counsel that the letters were not in affidavit form and would not be admitted as evidence in this proceeding.

[19] The father did file five sworn affidavits from the paternal grandmother denying the allegations raised by the mother; an affidavit from the father’s brother denying the allegations raised by the mother; an affidavit from José Velasquez, a friend of the father since 1998; Darren Eddy, a friend for four years and Craig Hicks, a neighbour of the father.

[20] These five affidavits attest to the close and loving relationship that the father has with his children. The affidavits support the father’s allegation that he has an excellent relationship with his children. The witnesses provide examples of the father’s relationship with his children in the matrimonial home, at family functions, at sporting events like soccer games, at academic and extracurricular activities of the children and in the neighbourhood where the father lives with his children.

[21] These affidavits do not support the contention raised by the mother as to the alleged dysfunctional relationship the father has with his children. To the contrary, these affidavits support a finding that the father has a close and loving relationship with his children and that the children are not afraid of the father.

Analysis

[22] At this stage, the court only has affidavit evidence from the parties. Not surprisingly, the evidence is contradictory.

[23] The father has been able to obtain five affidavits in a short period of time to respond to the order of Justice Beaudoin.

[24] In my view, the burden of proof is on the applicant on a balance of probabilities to persuade the court that the allegations she makes are true. Counsel for the father argues that the applicant has not met that burden of proof and that the order of Justice Beaudoin should be set aside.

[25] In addition, counsel for the father asserts that the court should set aside the order of Justice Beaudoin because of material nondisclosure by the mother. The father provides a list of actors that were not disclosed to Justice Beaudoin which he says amount to material nondisclosure requiring the court to set aside the order. Examples are as follows:

(a) The mother failed to advise that on March 29, 2016, that the father and his brother had Face Time interaction with the children from Cancun. (b) That the mother failed to advise the court of the contents of the discussion between the father and his children on March 29 2016. (c) That the mother failed to advise the court about the father having the children and his parents’ home for Easter without the mother. (d) Failed to advise the court as to the father’s volunteering in regard to soccer and other events; failed to provide information about the father’s volunteering at school and his responsibility to take the children to their activities and to school.

[26] The mother’s reply affidavit confirms facts that were not before Justice Beaudoin such as that the children love their father, that he has shared in the parenting obligation, that he takes the children to school and that the parties attended marriage counselling in 2015.

[27] The affidavit of D.D., the father’s brother, confirms that the father had Face Time calls with his children while in Mexico during which one of the calls was two days before the order of Justice Beaudoin. Specifically, at paragraph five of the affidavit dated April 15, 2015 the brother states:

… The children were extremely happy to speak with their father and they were asking him lots of questions about the hotel and our vacation. A.D. talked about her recent test and Dell congratulated her on the results. All of the children asked when he was coming home as they were excited to see him and told him repeatedly how much they missed him and how much they loved him. It was a very loving and happy conversation.

[28] Interestingly, the mother’s log did not record that conversation. Further, counsel for the applicant admitted that that information was never provided to Justice Beaudoin.

[29] The mother did provide some information about the father’s role with the children but many of the allegations before Justice Beaudoin centred on the risk to the children. The father’s evidence tendered by him is inconsistent with the mother’s allegations. Given that many of the incidents referred to by the mother happened in the home without witnesses, the court would have expected to have evidence that the children are afraid or reluctant to be with the father based on the allegations made. However, the preponderance of the evidence does not reflect any such concern by the children with their father.

Jurisprudence

[30] Courts have consistently held that where a party obtains an ex parte order, they must make full and frank disclosure of all relevant information about both parties to the court.

[31] In Bonello v. Bonello, 2009 CarswellOnt 1903 (Ont. S.C.J.), one party had obtained an ex parte order granting interim custody of two children based on various allegations, including that the mother was not mentally sound. The mother filed a letter from her psychiatrist. The letter expressed no concern about the mother's ability to parent. The mother also filed affidavits showing that the mother had family, neighbourhood and community support. The court set aside the order awarded the mother custody and granted the father liberal access.

[32] In Bernier v. Shepherd, 2014 ONSC 6616, (2014), 52 R.F.L. (7th) 405, Justice Lalonde set aside an ex parte order and held at para. 49:

49 Based on all the evidence, which consisted of numerous unnecessary affidavits, I find that the Father's evidence is suspect and must be approached with caution. This stems from the information or lack of information given to the judge hearing the ex parte motion. For instance, the Father:

• failed to give the judge a clear picture of the Mother's periods of hospitalization. Two of the three periods of hospitalization that were mentioned in his affidavit were due to post-partum depression following the birth of each child. This is not unusual as post-partum depression is frequently experienced by women after giving birth;
• failed to tell the judge that the Mother has been steadily employed as an accountant for the past 6 years and especially that she was working three days a week at the time of the Father's ex parte application;
• failed to tell the judge that the acute bipolar episode of May to July 2012 was caused in part due to her pregnancy with daughter Savannah and in part by the Father's verbal and emotional abuse. Witnesses, medical and non-medical, have testified that all was not well in the parties' marriage;
• told the judge that the Mother had not taken her medication since March 2014. This was contradicted by Dr. Bisserbe in his July 29, 2014, report written roughly one month after the ex parte motion. The report establishes that the Mother has been compliant with medication, that her lithium levels have been regularly monitored and are consistent with the prescribed treatment.

[33] In Lee v. Belperio, 2012 ONSC 5422, Justice McGee dealt with an ex parte order being made on September 13, 2012, granting a restraining order preventing the father from contacting or communicating with the mother and daughters. The order terminated on September 21, 2012 when the matter was argued before Justice McGee. At paras. 29 and 30 of her decision, Justice McGee states:

29 No parent should be caught off guard when the interests of children are at stake. An early motion is not an opportunity for a pre-emptive strike.

30 It is generally the practice that a judge will not change the status quo prior to a full hearing unless harm to the children is apprehended or there are unusual circumstances.

[34] Justice McGee goes on to indicate that upon a review of the father’s responding material, a fuller view of the facts emerges. In that instance the court terminated the ex parte order and ordered the parties to abide by the terms of a separation agreement regarding the time-sharing of the children.

[35] In my view, the mother has not been completely forthright with Justice Beaudoin. She failed to provide the full picture and selected only evidence that supported her claim. I agree with Justice McGee that no parent should be subjected to a pre-emptive strike regarding their own children. In this case, the parties lived together in the matrimonial home with all three children prior to the father taking a five-day trip to Mexico.

[36] There is no evidence of police involvement, the Children’s Aid Society, school or any third party to support any of the mother’s allegations save her own mother. Conversely, the father has filed five affidavits all supporting the father’s relationship with his children.

[37] Based on a review of all the evidence, I set aside the order of Justice Beaudoin dated March 31, 2016.

[38] Counsel for the father submits that if I were to set aside the order of Justice Beaudoin, there is no claim for relief before the court and the parties would be left in the position that they were prior to the commencement of these proceedings. I disagree. I retain jurisdiction to deal with this matter pursuant to the relief claimed in the Notice of Motion filed by the mother or based on my inherent parens patriae jurisdiction of the Superior Court.

[39] I intend to place the children as close to the same position they were prior to the commencement of proceedings. I am aware that both parents have the support of their parents (the grandparents of the children).

Disposition

[40] I order the following:

(a) On an interim-interim basis, the parties shall have joint custody of the children, namely, A.D. born […], 2005 (“A.D.”), N.D. born […], 2008 (“N.D.”) and C.D. born […], 2010 (“C.D.”) regarding any decisions affecting the children. (b) On an interim-interim basis, the children will remain in the matrimonial home located at 44 N[…] Avenue; (c) On an interim-interim basis, the parties shall alternate exclusive possession of the matrimonial home located at 44 N[…] Avenue as follows: - The mother until Friday, April 29, 2016 at 12 p.m.; - The father from April 29, 2016 at 12 p.m. until Sunday May 1st at 7 p.m.; - Commencing Monday, May 2, 2016, the parties will have a two-two-three schedule with the children in the matrimonial home. The mother will have the children every Monday and Tuesday until school or daycare Wednesday morning, the father every Wednesday after school and every Thursday until school or daycare Friday morning and the parties will alternate Friday after school to Sunday at 7 p.m.; (d) The case conference date of June 29, 2016, is vacated. The parties shall set an expedited case conference to be heard by May 14, 2016. (e) The Office of the Children’s Lawyer (“OCL”) is appointed with a recommendation for a social worker appointed. The parties to complete and fax the intake forms to the OCL by May 6, 2016.

Costs

[41] The respondent was the successful party on this motion. The respondent shall provide his submissions on costs not to exceed three pages plus his bill of costs and any offer to settle no later than May 6, 2016. The applicant will file her submissions on costs not to exceed three pages plus his bill of costs and any offer to settle no later than May 13, 2016. The applicant shall have the right to file reply submissions by May 18, 2016.

Released: April 27, 2016 Shelston J.