COURT FILE NO.: 16-0485 DATE: 2017/05/29 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Fouzia Elmoukousi, Applicant AND Abdessamad Marine, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Robert D. Hammond, for the Applicant Tshiombo Achille Kabongo, for the Respondent

HEARD: May 9, 2017

Endorsement

[1] The Respondent, Abdessamad Marine (the father) brings a motion for the following:

• an order setting aside the Order of Justice Tranmer dated November 22, 2016 (Final Order) which was obtained on default;
• an order returning the child to Quebec; and
• an order granting joint custody and equal time with the child.

[2] The Applicant mother Fouzia Emoukoudi, opposes the motion on the basis that Mr. Marine has not satisfied the requirements to set aside the order pursuant to Rule 25 (19)(e) of the Family Law Rules, O. Reg. 114/99 (the “FLRs”).

[3] For the reasons that follow, the Court sets aside the Final Order.

[4] The issues of jurisdiction and custody/access are adjourned to a date to be determined, at which time a full record of the evidence and authorities will be filed regarding jurisdiction and what is in the child’s best interests. The date for this motion must be scheduled as soon as possible.

Background

[5] The parties were married in Morocco on June 18, 2013 and commenced living together in April 2014 when Mr. Marine immigrated to Canada. They separated on March 4, 2015 and were divorced in Morocco on July 27, 2015. The parties had one child of the relationship Yussef Marine born July 24, 2015.

[6] At the time of the separation, the parties were residing in Montreal. The father had been charged with assault and at the trial, the charges were dismissed as the mother recanted her evidence.

[7] Sometime in 2016, the mother and the child moved to Brockville, Ontario. She indicates that she was leaving an abusive relationship. The father denies this abuse and alleges that, in doing so, she was attempting to prevent him from obtaining his Canadian permanent status as she sponsored him. He alleges that she left with no notice or consent, hence abducting the child.

[8] On August 26, 2106, the mother commenced an application pursuant to the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) and Family Law Act, R.S.O. 1990, c. F.3 (“FLA”). Service was affected on the father by personal service on September 16, 2016. Mr. Marine did not file his materials within 30 days as required by the FLRs.

[9] On October 6, 2016, the mother’s counsel received a letter from Quebec Legal Aid indicating that the father would be responding to the Application. There was also a phone conversation with mother’s counsel at which time the father was granted extra time to respond.

[10] On November 2, 2016, the mother’s counsel sent another letter as the mother was alleging that she was being stalked by the father. Counsel for the mother also reminded the father that time for his answer had elapsed. She then proceeded to obtain a date.

[11] The father did not attend the first court return date of November 14, 2016. The Court adjourned the matter to November 22, 2016 for an uncontested hearing.

[12] At that time, Justice Tranmer’s order indicated that the father did not appear. He ordered the following:

• both parents are parents with the meaning of the Children’s Law Reform Act and Family Law Act;
• the mother would have sole custody of the child;
• he would have supervised access at the Rose Garden Family Support Centre in Brockville to not more than two visits per month for up to two hours;
• commencing September 1, 2016, he would pay child support in the amount of $172 per month based on an annual income of $21,500;
• commencing November 1, 2016, he would pay spousal support in the amount of $516 per month;
• the father is required to send the “carnet famille” relating to the child to Mr Hammond’s office; and
• costs of $500.

Father’s Position

[13] The father states he had applied for Legal Aid and was planning to initiate proceedings in Quebec in July 2016. On October 5, 2016, he was deemed eligible for a Legal Aid Certificate.

[14] However, he states that the mother left Montreal in August 2016 (she states it was in April 2016). She left Montreal with the child, without notice or consent to move to Brockville. He was served with the Ontario Court documents in September, 2016. They were in English which he does not read or understand. The institution of Ontario proceedings required him to apply for an inter-provincial legal aid certificate to allow him to obtain an Ontario lawyer.

[15] Quebec Legal Aid sent the mother’s lawyer a letter dated October 6, 2016 confirming the father would file a response within 15 days.

[16] On November 8, 2016, the mother’s lawyer sent a letter to Quebec Legal Aid reminding them that an answer had not been filed. There was no contact between the father, Quebec Legal Aid or his lawyer until January 26, 2017 when his current lawyer contacted the mother’s counsel.

[17] The father provided evidence to the effect that he thought the lawyer, who had been assigned to him through legal aid, would appear for him in court at the November 2016 hearing. His lack of attendance was not his fault and he had all intentions of asserting his rights and participating in the court process.

[18] He wishes the Court to have all the evidence necessary for it to determine what is in the child’s best interests. He also wishes the child returned to Montreal.

[19] His current lawyer has written to his previous lawyer requesting an explanation for his non-attendance at the November 2016 hearing but none has been forthcoming.

Mother’s position

[20] The mother states she left Montreal in April 2016 as the father was becoming aggressive. In addition, she was having trouble finding daycare for the child and her ability to obtain Quebec social services was limited.

[21] She states that his visits with the child were sporadic. He had visits with the child on 2 occasions in April and May 2016 in Brockville. Prior to that, the visits were once a month and lasted about 30 minutes. His last visit was May 14, 2016 and he has not requested a visit since that time.

[22] He has not made any inquiries regarding the child’s well-being and development nor has he provided financial assistance.

[23] Even after the final order, no attempts were made to contact and implement the supervised visits he was permitted pursuant to the Final Order.

[24] The mother is requesting an order allowing her to apply for a passport for the child and the ability to travel outside Canada, both without the father’s consent.

The Law

[25] Rule 25(19) of the FLRs permits the Court to set aside a court order under certain circumstances, as follows:

(19) The court may, on motion, change an order that, (a) was obtained by fraud; (b) contains a mistake; (c) needs to be changed to deal with a matter that was before the court but that it did not decide; (d) was made without notice; or (e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present. O. Reg. 151/08, s. 6.

[26] The father is proceeding under Rule 25(19)(e) of the FLRs. In Magri v. Cellupica, 2014 ONSC 2316, Justice Mulligan stated the following at para. 15:

The word “unable” in 25(19)(e) should be given a broad interpretation in accordance with the spirit of this rule. Ms. Magri had a lawyer who was on the record and therefore an officer of the court with respect to this matter. A client who is advised by his or her lawyer not to attend court should be able to rely on that advice. To require clients to attend court in spite of their lawyer’s advice would lead to absurd results.

[27] In Gotkowski v. Gotkowski, 2012 ONSC 5579, Justice Arrell provided his analysis which was fact driven. In that case, he accepted the Applicant’s explanation for not attending and that she was self-represented and of limited income. She was also confused regarding the multiplicity of proceedings. In addition, the Respondent knew that the Applicant intended to respond.

Decision

[28] The Court finds that:

• the father intended to deal with the issues of the separation as he was planning to initiate his own proceedings;
• he immediately took steps to obtain legal aid;
• upon being served, he made arrangements to obtain an intra-provincial certificate;
• there were challenges and delays because it was an extra-provincial application;
• he honestly thought the Ontario lawyer assigned to him would attend in November;
• after being served with the default Order, he continued to pursue his rights by retaining his current lawyer;
• the father immediately retained his current lawyer who wrote to the mother’s lawyer in January 2017;
• he moved for an order to set aside the Final Order when it became clear that the mother would not consent to an order; and
• he was served with documents in the English language that provided some challenges to him.

[29] It should be noted that the mother’s application did proceed through the courts in an expeditious matter. Within 60 days of service, the mother was able to obtain a motion for trial on an uncontested basis. The father being an out-of-town litigant, unilingual and without funds, was at the mercy of the legal aid plan and had challenges in securing legal counsel. On top of this, the lawyer assigned to him through legal aid process did not attend court in November 2016 when the father was under the impression he would be there.

[30] The mother represented that the child has medical issues. No evidence was provided regarding the details or the needs of the child and how each parent can meet those needs. A full motion is needed to deal with parenting. The Court will also require jurisprudence with respect to the jurisdictional issue.

[31] The mother is entitled to her costs thrown away. If the parties cannot agree on the quantum, I will receive a 2-page submission with a bill of costs from the mother by June 16, 2017 and the father’s 2-page submission by June 23, 2017.

Madam Justice A. Doyle

Date: May 29, 2017

COURT FILE NO.: 16-0485 DATE: 2017/05/29 ONTARIO SUPERIOR COURT OF JUSTICE RE: Fouzia Elmoukousi, Applicant AND Abdessamad Marine, Respondent BEFORE: Justice A. Doyle COUNSEL: Robert D. Hammond, for the Applicant Tshiombo Achille Kabongo, for the Respondent HEARD: May 9, 2017 ENDORSEMENT Madam Justice A. Doyle

Released: 2017/05/29