COURT FILE NO.: FC-18-1782

DATE: 20190809

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ALICIA SIMMONDS

Applicant

– and –

RICHARD RING

Respondent

Rebecca Rosenstock, for the Applicant

Self-represented

HEARD: August 8, 2019

REASONS FOR decision

audet j.

Overview

1This is an uncontested trial that proceeded before me on August 8, 2019. In her application, the applicant mother seeks a final order granting her sole custody of the parties’ two children, with access to the respondent father to be at her sole discretion. She also seeks an order that the police having jurisdiction where the children are located enforce the terms of the order.

2While one child is here in Ottawa with the mother, the oldest child is currently residing in Halifax, Nova Scotia, presumably with his father.

3The facts presented by this case are unusual, to say the least. Although personally served with the mother’s application on September 16, 2018, the father did not file responding materials and he did not participate in this proceeding. Therefore, my decision is based strictly on the mother’s evidence, which has not been tested by way of cross-examination, and without the benefit of any evidence from the father.

Background

Background

4The parties are the biological parents of two children; Anton Simmonds (13 in a few days), born on August 12, 2006 (“Anton”), and Richard (Ryshawn) Simmonds (11), born on November 30, 2007 (“Ryshawn”). The parties never lived together. They started seeing each other in 2004 while they were both living in Halifax. They separated a few months after Rayshawn was born.

5The mother also has two children from other relationships; one is 10 years of age and the other one was born in October 2018.

6According to the mother’s evidence, she separated from the father due to his continuous engagement in drug trafficking. She states that she was no longer able to tolerate the police continuously showing up at her door as well as other drug dealers who would appear unannounced. She states that around 2014, the father was convicted for drug trafficking and spent approximately seven months in custody.

7Up until the summer of 2017, the parties lived in Halifax, Nova Scotia. According to the evidence provided by the mother, she was solely responsible for caring and raising Anton and Rayshawn since they were born. The father was never left alone with them and the mother would always be present during access, unless she left the children with the paternal grandmother where the father would see them, under her supervision. The father has never resided with the mother, and the children have continuously resided with their mother since their birth (and prior to May 2018). As the children’s primary caregiver, the mother took care of all of the children’s needs. The father did not provide financial assistance to her.

8In July 2017, the mother moved to Ottawa with the children. She states that she decided to move to Ottawa because it was extremely difficult for her to get the children assessed for specialty classes in Halifax. Both Anton and Rayshawn have learning disabilities. Anton is diagnosed with a severe learning disability and memory loss disorder. Although he was supposed to commence grade 7 in his Ottawa school in September 2018, his academic abilities were categorized at a grade 3 level. When she moved to Ottawa, the children were able to be registered in a special learning program, the General Learning Program, at Trillium Elementary School in Ottawa. That is where they attended school for the 2017-2018 school year, while residing with their mother.

9It is the mother’s evidence that the father and the paternal grandmother did not voice any objections to her moving to Ottawa with the children. After the mother and the children arrived in Ottawa in July 2017, the children started school and remained in Ottawa, in their mother’s care, until May 2018. It is the mother’s evidence that during this entire year, the father did not see the children, nor did he attempt to have any contact with them. The paternal grandmother was allowed contact with them, and in fact, saw them two or three times during that year.

10The mother states that she went to Halifax with both children in May 2018 to visit her father who was ill as well as other family members. As Anton voiced his desire to see his father during that time, the mother contacted the father’s girlfriend through Facebook to try and arrange a visit between the father and Anton (she did not have any contact information for the father at that time, not even a telephone number). A few days after their arrival in Halifax, Anton did not return home from the park where he was playing with friends. The mother started contacting the father’s sister as well as the paternal grandmother to find out if they had seen him. She eventually made her way to the father’s girlfriend’s residence where she found both of them as well as the paternal grandmother sitting outside. They confirmed that Anton was inside of the house but that he was sleeping. They refused to allow the mother to see him.

11This led to an altercation which resulted in the police being called and the mother being charged with assault against the father. The mother states that the allegations made by the father against her were fabricated. In any event, the matter is currently before the Criminal Court in Nova Scotia. However, it is the mother’s evidence that the crown is unable to locate the father and they have not been able to communicate with him since the charges were laid. It is the mother’s understanding, based on information received from the Crown and Duty Counsel, that the criminal charges would be dropped if the father could not be contacted.

12Meanwhile, the mother has completely been cut off from Anton’s life and despite her significant attempts to get in contact with him, including indirectly through family members, Anton’s school (which she has been able to locate with the assistance of her family), the police and the Nova Scotia child protection services, the father and paternal grandmother have completely refused to allow the mother to have any form of contact with Anton.

13The evidence before me confirms that the mother has gone to great lengths to find out where her son is living, where he goes to school, and to try to get in contact with him. Among other things, she has done the following;

• she has been able to contact the father’s girlfriend through Facebook, however, that Facebook account has now been deactivated;

• Her brother and sister have attempted to communicate with the father to have the child returned to Ottawa, or at the very least to allow contact between the mother and the child. When they were able to contact the father, he voiced his refusal to return Anton to his mother;

• In July 2018, the mother was informed that the father had started a Family Court proceeding in Halifax with regards to Anton’s care. The court papers were never served on the mother. Despite this, the mother attended the first court appearance in Halifax in July 2018, but the father did not show. The mother has made regular contact with the Family Court in Halifax which confirmed that they did not have any record of the mother being served and that for that reason, the matter would not proceed until she was served. The mother’s evidence is that to this date, the Nova Scotia Family Court proceeding remains dormant;

• In October 2018, through the assistance of her family members who live in Halifax, the mother found out which school Anton was attending. Her family members attended the school to try and speak to Anton. They were able to see him there very briefly;

• In December 2018, the mother went to Halifax for Christmas and attended at Anton’s school to try to get in contact with him. The principal advised that Anton was not in school. However, it is the mother’s evidence that she was later advised by a friend who has a child at the same school that he was, in fact, in the school at the time. As a result, the mother called the school again the next day and spoke to a different individual. She was then advised that because there is no existing custody order, she would not be able to remove Anton from the school or from the father’s care;

• The mother was unable to see Anton or to have any contact with him before she returned to Ottawa. As a result of the criminal charges currently pending against her, she is not permitted to contact the father;

• Based on the mother’s evidence, the child protection services in Halifax were contacted after the mother tried to retrieve Anton in the summer of 2018 from the father’s girlfriend’s residence, after the police were involved. The mother was advised by the child protection services that they were not permitted to remove a child from a parent’s care without a court order. She was also informed that they cannot force the father to hand over the child unless there is a protection concern, and in the absence of a court order;

• Following allegations presumably made by the father against the mother to the child protection services in Halifax, the child protection services in Ottawa were contacted. This resulted in the Children’s Aid Society of Ottawa investigating the mother with regards to the alleged child protection concerns, which included addictions to drugs and alcohol. Pursuant to a letter from the Children’s Aid Society of Ottawa dated February 7, 2019, adduced in evidence, the file has now been closed as no child protection concerns were found.

14When asked why she had not brought this matter before the Ontario court more expeditiously, the mother explained that numerous circumstances made it impossible for her to do so. She explained that a motion was brought on an emergency basis in September 2018 but was dismissed pending receipt of further information with regards to the Nova Scotia Family Court proceeding, which she did not have at the time. In October 2018, the mother gave birth to her fourth child. Then, the Ottawa Children’s Aid Society began its investigation, and the mother felt that that investigation needed to be completed before she could pursue this court proceeding.

15Throughout the months that followed, the mother tried to get information from the child’s school, the police services and the Child Protection Services in Halifax, in the hope of providing the court with a more complete record.

16The mother is of very limited financial means and she is the sole caregiver to three other children (including Rayshawn and a newborn), all of whom are in her care in Ottawa.

Rayshawn

Rayshawn

17In May 2018, Rayshawn declined his mother’s offer to visit with his father because he was concerned about him being withheld by his father and not being allowed to return to his mother’s care. Pursuant to the mother’s evidence, Rayshawn continues to be in his mother’s care and continues to attend school here in Ottawa. Based on the uncontested evidence before me, and in light of the father’s refusal to participate in these proceedings, the following final order will issue with regards to Rayshawn:

1. The applicant mother shall have sole custody of the child, Richard (Rayshawn) Simmonds (11), born on November 30, 2007.

2. Any access between the child and the respondent father shall be at the sole discretion of the mother.

3. Upon request and receipt of an original court order or certified copy of the order, pursuant to section 36 of the children’s Law Reform Act, the police force having jurisdiction in any area where it appears that the child may be, shall locate, apprehend and deliver the child to their mother currently residing at 1971 St. Laurent Boulevard, Ottawa, Ontario.

4. For the purpose of locating and apprehending the child, a member of the police force may enter and search any place where he or she has reasonable grounds to believe that the child may be, with such assistance and such force as are reasonable in the circumstances and such entry or search may be at any time.

Anton

Anton

18I find, based on the uncontested evidence before me, that Ontario has jurisdiction to make an order in relation to the custody of and access to Anton, pursuant to section 22 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 based on the following:

• from July 2017 up until May 2018, the child lived with his mother, in Ottawa, Ontario, with the implied consent and/or acquiescence of the father;

• Anton was removed from his mother’s care by the father in May 2018, and thereafter withheld from her care, without the mother’s consent;

• The child had been living with his mother in Ottawa for a significant period of time before he was withheld by his father in Nova Scotia. Prior to that date, the child had been in his mother’s sole care since birth;

• The mother, as well as Anton’s siblings, all reside in Ottawa since the summer of 2017;

• Substantial evidence concerning the best interests of Anton is available in Ontario;

• While an application related to the parenting of Anton is pending before the Nova Scotia Court, the child was not habitually resident in that province at the time the application was filed in Nova Scotia, and the proceeding in that court has not been pursued by the father, and is currently dormant;

• To the best of my knowledge, no extra provincial order in respect of Anton has been made in Nova Scotia or anywhere else in Canada;

• There is a real and substantial connection between the child in Ontario;

• On the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

19The mother has had no contact whatsoever with Anton since he was removed from her care by the father in May 2018, and against her will. The father has taken no steps to initiate contact between mother and son and appears to find it in his child’s best interest to not have any contact with his mother for over a year, despite her having assumed the role of his sole caregiver since birth. As a result of the father’s actions, Anton has lost his place in the General Learning Program in his school and is now on a waiting list for next year.

20As stated earlier, I am cognizant of the fact that I may only have one side of the story, and in the absence of any responding evidence from the father and the child, I am concerned about making a final order with regards to Anton. For that reason, the following order will be made on a temporary basis, and without prejudice to the father’s ability to file responding materials within the timelines set out below. If and when he does, this motion shall be brought back before me on 14 days’ notice by either party;

1- The applicant mother shall have temporary sole custody of the child, Anton Simmonds (13 in a few days), born on August 12, 2006.

2- The mother shall immediately serve on the respondent father, by special service, the following:

a. affidavit sworn September 14, 2018;

b. her notice of motion dated June 3, 2019;

c. her affidavit for uncontested trial sworn May 30, 2019;

d. her affidavit sworn May 30, 2019;

e. the within reasons for the decision;

f. a copy of the order entered in accordance with this decision.

3- Within 20 days of being personally served with the above materials, the father shall immediately do either of the following:

a. Return the child to back to the applicant mother immediately, in Ottawa;

b. File his responding materials as well as a comprehensive affidavit in response to the mother’s affidavit materials and schedule a date before myself for the return of this motion on an emergency basis. To be clear, leave is granted to the father to bring this motion back before me on an emergency basis;

4- In the event that the child is returned to his mother’s care in accordance with paragraph 3a) above, any access between the child and the respondent father shall be at the sole discretion of the mother pending further order of the court.

5- Upon request and receipt of an original court order or certified copy of the order, pursuant to section 36 of the Ontario Children’s Law Reform Act, the police force having jurisdiction in any area where it appears that the child may be, shall locate, apprehend and deliver the child to their mother currently residing at 1971 St. Laurent Boulevard, Ottawa, Ontario.

6- For the purpose of locating and apprehending the child, a member of the police force may enter and search any place where he or she has reasonable grounds to believe that the child may be, with such assistance and such force as are reasonable in the circumstances and such entry or search may be at any time.

Child Support

Child Support

21Although this was not even discussed during the uncontested trial before me, the mother sought an order for child support in her original application. Regardless of the reasons for Anton currently being in his father’s care, the fact is that he has been in his care for the past year and that any child support order must reflect that fact.

22I do not have sufficient information at this time to make a child support order, as I have no information about the parties’ respective income.

23I shall remain seized of any further motions in this matter.