CITATION: Nwankpo v. Okechukwu, 2016 ONSC 966
COURT FILE NO.: FC-16-206-0
DATE: 2016/02/08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Onyinye Nwankpo, Applicant
AND
Tommy Chiwatalu Okechukwu, Respondent
BEFORE: Madam Justice S. Corthorn
COUNSEL: Allison Lendor, Counsel for the Applicant
No one appearing for the Respondent
HEARD: January 28, 2016 (with additional materials filed on February 1 and 4, 2016)
ENDORSEMENT
Background
[1] The applicant and her two children travelled to Nigeria to visit with family during the Christmas holiday period in December 2015 and January 2016. It was the intention of the applicant to return with the children to Ottawa in early 2016. She was, however, unable to do so. The applicant and the children, who ordinarily reside in Ottawa, remain in Nigeria as of the date of this endorsement.
[2] The applicant and the children remain in Nigeria because:
a) The youngest child’s Canadian passport had expired before she left Canada with her mother and older brother. The brother’s Canadian passport was and remains in good standing;
b) The youngest child has dual citizenship (Canadian and Nigerian). The applicant chose to travel to Nigeria relying on the youngest child’s Nigerian passport for entry to Nigeria;
c) The youngest child was not permitted to return to Canada on the basis of her Nigerian passport alone; and
d) The children’s father, who resides in Nigeria, did not co-operate to provide his signature, when requested by the applicant to do so, on the application submitted to the Canadian Embassy in Nigeria for the renewal of the youngest child’s Canadian passport.
[3] Without an order of the Court with respect to custody of the youngest child to provide to the Canadian Embassy, or the co-operation of the respondent for the renewal of the youngest child’s Canadian passport, the applicant is unable to return to Canada with both children. The applicant brings this motion for an order addressing the manner and timing of service of the motion materials on the respondent, the renewal of the youngest child’s passport, and travel with the children outside Canada without the consent of the respondent.
Service of the Motion Materials
[4] The relief requested by the applicant is an order permitting substituted service by e-mail, validating service by e-mail, and abridging the time for service taking into consideration the return date of the motion (January 28, 2016). The only affidavit material initially filed in support of the relief requested by the applicant is an affidavit sworn by the applicant in Nigeria on January 21, 2016. The original affidavit was filed with the Court.
[5] In support of the relief requested with respect to service, the applicant’s evidence is as follows:
- She does not know the whereabouts of the respondent. The applicant made repeated efforts to contact the respondent and request that he sign the document required by the Canadian Embassy to process the application for renewal of the Canadian passport for the youngest child, Daisy Kamsiyochi Okechukwu, born May 14, 2012 (“Daisy”).
- The only contact information that the applicant has for the respondent is his telephone number and an e-mail address (don_tee2@yahoo.com).
- Upon arriving in Nigeria on December 4, 2015, the applicant sent a text message to the respondent informing him that she “needed to sit down and talk with him.”
- The respondent “avoided” the applicant. She believes the respondent did so because of pending civil and criminal proceedings against the respondent.
[6] With respect to the respondent’s ‘avoidance’ of her, the applicant includes as exhibits to her affidavit a series of e-mail messages exchanged with the respondent. In those messages reference is made by the respondent to the applicant’s father having possession of the respondent’s passport. The respondent requests that the applicant have her father return the passport to the respondent to “enable” him to sign for Daisy’s passport. The respondent says that he needs his documents to attend at the Canadian Embassy in Nigeria.
[7] In her affidavit, the applicant describes a complicated history between her father and the respondent arising from a business venture into which they entered, criminal charges against the respondent in the context of that venture, and the respondent’s arrest in Nigeria as he attempted to flee the country. The applicant’s evidence is that the respondent remains in Nigeria, released from prison on bail pending trial on criminal charges of forgery and misappropriation of funds.
[8] The most recent of the messages between the respondent and the applicant is dated January 12, 2016. In that message the respondent says, in reference to Daisy and her older brother, “If only you had deemed it necessary to do the right thing as expected before submission, we wouldn’t be here.” The respondent also says that he is a responsible parent and wants to ensure that his children “get the best”.
[9] The applicant also includes as exhibits to her affidavit copies of e-mail messages exchanged with representatives of the Canadian Embassy. On the basis of those messages and other communication with the representatives of the Canadian Embassy, the applicant believes that the respondent attended at the Canadian Embassy on one or two occasions but did not provide his signature as required for the renewal application.
[10] In her affidavit, the applicant expresses her belief that the respondent is, “acting in bad faith in refusing to sign Daisy’s passport Application to allow her Canadian passport to be [renewed]”.
[11] On the return of the motion, additional evidence was requested with respect to the substantive issue – an order for the purpose of renewal of Daisy’s Canadian passport. The affidavit materials filed subsequent to January 28, 2016 also deal with the issue of service of the motion materials on the respondent.
[12] An affidavit in the name of a law clerk with the office of counsel for the applicant (“the Fowles affidavit”) includes as an exhibit an e-mail message sent by counsel for the applicant on February 1, 2016 to the respondent. To that message are attached a series of documents including the notice of motion and the applicant’s affidavit. The Fowles affidavit does not include any evidence in support of a finding that the documents sent by e-mail actually reached the respondent.
[13] A further affidavit in the name of a law clerk with the office of counsel for the applicant (“the Delaney affidavit”) was filed. Much of the evidence is based on information provided to Ms. Delaney by counsel for the applicant as to the latter’s efforts to send documents to the respondent by e-mail and serve him with the documents. Exhibits to the Delaney affidavit include:
- E-mail messages sent by counsel for the applicant to the respondent on February 3 and 4, 2016;
- A specific description of the documents attached to those e-mail messages;
- Record from an e-mail tracking service (“Campaigner”) that the e-mail messages were received at the respondent’s e-mail address; and
- Record from Campaigner that at least one of the e-mail messages was opened.
[14] All e-mail messages sent by counsel for the applicant were sent to the e-mail address at which the applicant had been communicating with the respondent - don_tee2@yahoo.com. Ms. Delaney’s evidence is that counsel for the applicant has not received any communication from the respondent with respect to the e-mail messages sent to him on February 1, 3, and 4, 2016. There is no evidence that the respondent consented to be served by e-mail with the documents relevant to this motion (as required by rule 6(2)(e) of the FLR for ‘regular service’ by e-mail). There is no evidence that it was the respondent who received and opened the one e-mail message that has been opened or as to which of the three e-mail messages sent by counsel for the applicant was opened.
[15] On the basis of the affidavit evidence, including the exhibits to the Delaney affidavit, I am unable to conclude that the respondent has been served – before or after the original return date – with any of the documents relevant to this motion.
[16] For the applicant to be entitled to an order abridging the time for service of the notice of motion and the applicant’s affidavit requires that the respondent received the relevant documents prior to the date of the motion. Evidence is lacking that any of the relevant documents were served on the respondent prior to the return date for the motion. No affidavit of service was filed in that regard. The record does not include a copy of an e-mail message sent to the respondent prior to the return date of the motion providing him with a copy of the notice of motion and the applicant’s affidavit.
[17] I am therefore unable to make an order abridging the time for service or validating the ‘service’, prior to the return date of the motion, of the notice of motion and applicant’s affidavit on the respondent. The relief requested by the applicant with respect to service of the documents is denied.
Leave to Proceed with Motion without Notice
[18] Given that the applicant is not successful in obtaining relief with respect to service of the notice of motion and her affidavit, she requires leave for the motion to be heard without notice to the respondent. The applicant’s evidence as to her circumstances, those of her children, and the respondent’s circumstances is as follows:
- The applicant and the respondent were married in Nigeria in December 2008 and have, since that time been living in different countries.
- The applicant has lived in Ottawa for the past six years. Both children were born in Ottawa – Daisy in 2012 and her older brother, David Kosisochukwu Okechukwu (“David”) in February 2011.
- The respondent has visited the applicant and the children in Ottawa from time-to-time, most recently in January 2014.
- The respondent does not provide financial support to the applicant or the children.
- The applicant travelled with the children to Nigeria on December 4, 2015 and planned to return to Canada on January 7, 2016. The return date was selected so as to permit the children to resume their schooling and the applicant to resume her affairs.
- The applicant is advised by the Canadian Embassy that to renew Daisy’s passport the applicant must produce an order granting her sole custody of the children or the respondent must sign a consent form for the application for renewal.
[19] The Fowles affidavit includes as exhibits various documents confirming the ties which the applicant and the children have to Ottawa. Those documents are addressed in detail below. They are relevant to the issue of leave to proceed with the motion without notice to the respondent.
[20] Rule 14(12) of the Family Law Rules, O. Reg. 114/99 (“FLR”) sets out the circumstances in which a motion may be heard without notice to the responding party:
A motion may be made without notice if,
(a) The nature or circumstances of the motion make notice unnecessary or not reasonably possible;
(b) There is an immediate danger of a child’s removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences;
(c) There is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; or
(d) Service of a motion of motion would probably have serious consequences.
[21] Given the circumstances in which the applicant and her children find themselves, the inability of the applicant to secure the co-operation of the respondent with respect the renewal of Daisy’s passport, and the importance to the children of returning to Ottawa to resume their schooling and normal routine, I find that the applicant has satisfied the first of the four possible criteria listed in rule 14(12) of the FLR. The applicant is granted leave to proceed with the motion without notice to the respondent.
[22] The applicant is required to effect service of this endorsement, the order issued and entered pursuant to this endorsement, the notice of motion, and all supporting affidavits on the respondent in accordance with rule 14(15) of the FLR; service of the aforesaid documents is to be effected immediately.
[23] At the conclusion of this endorsement I deal with the requirement pursuant to rule 14(14) of the FLR for the applicant to bring this matter back before the court.
Renewal of Daisy’s Passport
[24] In the typical scenario, a parent intending to travel outside Canada with their child or children seeks relief from the Court prior to the date of departure. The relief sought is an order permitting the parent to obtain a passport for the child(ren) without the consent of the other parent which is otherwise necessary. It is unusual to receive a request for relief of this kind from a parent who has travelled with a child outside the country and is unable to return to Canada because the child lacks a valid Canadian passport. It is obvious that prudence on the applicant’s part dictated that she both bring a motion for an order permitting her to renew Daisy’s passport and renew the passport prior to travelling outside Canada with her children
[25] The applicant’s affidavit is lacking in anything other than general evidence as to her ties and those of her children to Canada. For that reason, I required that counsel for the applicant submit further affidavit materials with evidence as to those ties. The Fowles affidavit includes the following documents as exhibits:
Nov. 2, 2015 A letter from the managing owner of Fittown Incorporated informing the applicant that she is hired as the Manager of ‘My Gym Children’s Fitness Center Ottawa’ and is to commence work on February 8, 2016. The author of the letter says that the applicant will be paid $25 per hour in that position.
Jan. 29, 2016 A letter from the Principal of Ottawa Christian School confirming that David is enrolled with the school for the 2015-16 academic year and was expected back in class as of January 4, 2016.
Jan. 29, 2016 A letter from an individual in the ‘Accounts’ department of Little Scholars Montessori confirming that Daisy is a full-time student in the program. The author of the letter says that tuition for the program is $823 per month and “[Daisy] has been doing well at LSM.”
Various dates A series of documents related to the applicant’s purchase of a home in Ottawa in November 2014. The purchase price is $275,000. Included are copies of documents executed by the applicant when the home was purchased and with respect to a mortgage taken out to facilitate the purchase of the home. The mortgage is in the principal amount of $247,727. Also included are a number of utility bills in the name of the applicant for the home.
[26] The Fowles affidavit also includes as exhibits a copy of the Work Permit issued by Citizenship and Immigration Canada to the applicant. That document was issued in June 2014 and permits the applicant to remain in Canada for three years. A copy of David’s Canadian passport, which remains valid, is also included as an exhibit to the Fowles affidavit.
[27] On the basis of the exhibits to the Fowles affidavit and the evidence of the applicant with respect to her ties and those of her children to Ottawa, I find that the applicant and her children are ordinarily resident in the Ottawa area and have been so for a number of years.
[28] It is important for the children to resume their routine. By the time the applicant and her children return to Ottawa, the children will have missed more than one month of school.
[29] In an e-mail message from an individual at the Canadian Embassy sent to the applicant on January 7, 2016 the author of the message says, “The passport office requested for a court order giving you full custody of the child.” In an e-mail message to the applicant on January 11, 2016 the same individual says, “At this moment no document will be issued to the child without the consent of the father.” Copies of both messages are attached as exhibits to the applicant’s affidavit.
[30] The evidence as to the requirements of the Canadian Embassy in Nigeria with respect to the application for renewal of Daisy’s Canadian passport is contradictory. So as to maximize the potential for the applicant to renew Daisy’s Canadian passport, through the Canadian Embassy in Nigeria, the applicant is granted the following relief:
- The requirement for Tommy Chiwatalu Okechukwu to provide his consent to the application for renewal of the Canadian passport for Daisy is dispensed with.
- If the relief provided immediately above is not satisfactory for the purpose of the application for the renewal of the Canadian passport for Daisy, then on a temporary and without prejudice basis, the applicant shall have sole custody of Daisy.
- The applicant shall, on a temporary and without prejudice basis, have the ability to travel with Daisy and David from Nigeria to Canada without the consent of the respondent.
- The terms of this order shall remain in effect for a maximum of 90 days from the date of this endorsement or until a further order of the Court in the 90-day period.
[31] In the application issued on January 21, 2016 the applicant seeks sole custody of the children. She also seeks relief with respect to “Passport and Travel”. The first appearance date is April 4, 2016. I am not prepared to grant anything other than time-limited – relief specifically to allow the applicant and the children to return to Canada – given that the application is at an early stage. The period within which the respondent is to deliver an answer has not yet expired. His position on the issues to be addressed on the application is unknown.
Bringing the Matter Back Before the Court
[32] Pursuant to rule 14(14) of the FLR, an order made on a motion without notice “shall require the matter to come back to the court and, if possible to the same judge, within 14 days or on a date chosen by the court.” The orders made in this endorsement are restricted to: a) leave to proceed without notice to the respondent; and b) relief with respect to the return of the applicant and the two children to Ottawa from what was intended to be a time-limited holiday in Nigeria. The substantive purpose of the order will be fulfilled upon Daisy’s Canadian passport being renewed and the applicant, Daisy, and David returning to and resuming their normal lives in Ottawa.
[33] There is, in my view, no purpose to be served in requiring the applicant to bring this matter back before the Court within 14 days of the date of the order. It is uncertain that she will be back in Ottawa within that 14-day period. The first return date for the application (April 4, 2016) falls within the 90-day period during which my order remains in effect. The applicant is therefore required to bring this matter back before the court on April 4, 2016 at the same time as the first appearance on the application.
Summary
[34] For the reasons set out above, I order as follows:
The motion for an order abridging the time for service and validating service of the notice of motion and the affidavit (general) of the applicant is dismissed.
The applicant is granted leave to proceed, without notice to the respondent, with the motion for relief with respect to the application for renewal of the Canadian passport of Daisy Kamsiyochi Okechukwu, born May 14, 2012 (“Daisy”).
The applicant shall bring this matter back before the Court on April 4, 2016 at the same time as the first appearance in the application.
The applicant shall immediately serve the respondent with a copy of the endorsement herein dated February 8, 2016, this order, the notice of motion dated January 21, 2016, and all supporting affidavits in accordance with the Family Law Rules, O. Reg. 114/99 as amended.
With respect to the application for renewal of Daisy’s Canadian passport:
a) The requirement for Tommy Chiwatalu Okechukwu to provide his consent to the application for renewal of the Canadian passport for is dispensed with; and
b) If the relief provided in paragraph (a) immediately above is not satisfactory for the purpose of the application for the renewal of Daisy’s Canadian passport, then on a temporary and without prejudice basis, the applicant shall have sole custody of Daisy.
The applicant shall, on a temporary and without prejudice basis, have the ability to travel with Daisy Kamsiyochi Okechukwu, born May 14, 2012 and David Kosisochukwu Okechukwu born February 28, 2011 from Nigeria to Canada without the consent of the respondent.
Paragraphs 5 and 6 of this order shall remain in effect for a maximum of 90 days from the date of this endorsement or unless and until a further order of the Court is made in the 90-day period.
There shall be no costs on the motion.
Madam Justice S. Corthorn
Date: February 8, 2016
CITATION: Nwankpo v. Okechukwu, 2016 ONSC 966
COURT FILE NO.: FC-16-206-0
DATE: 2016/02/08
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Onyinye Nwankpo, Applicant
AND
Tommy Chiwatalu Okechukwu, Respondent
BEFORE: Madam Justice S. Corthorn
COUNSEL: Allison Lendor, Counsel for the Applicant
No one appearing for the Respondent
ENDORSEMENT
Justice S. Corthorn
Released: February 8, 2016