ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Rana Hatem
Applicant
– and –
Ayman Kamal Ramadan
Respondent
Counsel:
Mr. Sam Garcea, for the Applicant
Self-Represented Respondent
HEARD: September 6, 2019
Judgment
the honourable mr. justice a. pazaratz
1This is the Applicant mother’s motion to set aside the temporary order of Justice Bale dated August 9, 2019. The background, briefly:
2The parties were married January 7, 1999.
3They separated October 2, 2015.
4They have three children, Youssef (now 19); Omar (now 15); and Ahmed (now 14).
5On June 19, 2018 the Applicant commenced these proceedings, represented by counsel.
6For a period of time the Respondent father had counsel but during all periods relevant to this motion he has been representing himself.
7The file is somewhat complex, involving serious allegations back and forth. One of the issues is custody. Regrettably the Office of the Children’s Lawyer declined the court’s request that it become involved.
8At a July 15, 2019 “To be Spoken To” attendance Justice Chappel noted that the Applicant mother was claiming one half of the Canada Child Benefit (“CCB”), while the Respondent father stated that the children were primarily in his care. Justice Chappel endorsed: “The issues of custody and primary residence need to be determined in order to address the living arrangements of the children, decision making and entitlement to the CCB.”
9That same day the self-represented Respondent brought a motion seeking sole custody of Omar and Ahmed, primary residence to the Respondent, and “unconditioned (sic) access to the Applicant/mother as per their wishes.” The Respondent did not seek a custody designation in relation to 19 year old Youssef, even though he said all three children were living with him.
10The Respondent’s motion documents were served on the Applicant’s counsel Mr. Garcea on July 15, 2019 pursuant to the Rules. The motion was originally returnable August 2, 2019.
11When the motion came before me on August 2, 2019 the Applicant’s solicitor Mr. Garcea requested an adjournment. Counsel acknowledged that the materials had been served more than two weeks earlier, but Mr. Garcea indicated he had been away on vacation and hadn’t had an opportunity to obtain instructions and prepare reply materials. Mr. Garcea was only requesting a one-week adjournment, which I granted despite the Respondent’s objection.
12On August 9, 2019 the motion came before Justice Bale. Mr. Garcea was present without the Applicant, and no materials had been filed on the Applicant’s behalf. Justice Bale made the following endorsement:
“The Respondent has brought a motion for temporary custody & primary residence of the children which in effect formalizes the de facto custody arrangements that have been in place since June 2018. The motion was served on counsel for the Applicant who in turn provided same to the Applicant. The Applicant has been unresponsive to her counsel and has not provided any opposition to the Respondent’s motion. As such there shall be a temporary order as follows:
The Respondent father shall have custody of the children (Omar and Ahmed)
The children shall reside primarily with the Respondent father
The Applicant mother may have reasonable access to the children in consideration of the wishes of the children.”
13That is the order the Applicant now seeks to set aside.
14The Applicant’s affidavit of August 22,2019 includes the following information in support of her request:
a. Prior to August 2, 2019 her lawyer Mr. Garcea was away on vacation and returned the week that the motion was served.
b. Mr. Garcea’s office contacted her on August 2, 2019 and set up an appointment for Monday August 5, 2019, which as it happens was a holiday Monday.
c. The Applicant attended at Mr. Garcea’s building on August 5, 2019 for the 7:00 p.m. appointment but the office building doors lock at 6:00 p.m. The Applicant telephoned Mr. Garcea’s office to gain access to the building, but no one answered.
d. As it happens, Mr. Garcea was in his office waiting for the Applicant, but there was a miscommunication. He was expecting the Applicant to call him on his personal cell phone, to alert him that she was waiting outside. But the Applicant didn’t realize she was to call him on his cell phone, so they didn’t connect.
e. The Applicant intended to defend the motion for custody.
15With respect to the merits of the custody claim, the Applicant stated:
a. Upon separation the children resided primarily with her for at least three months.
b. Subsequently the Respondent rented a house and “convinced the children to go and spend time with him.”
c. “The children have resided with both parties equally since that time.”
d. The Applicant believes the Respondent is seeking custody because he is facing a criminal charge, and he feels the Crown is less likely to seek incarceration if the father has custody of his children.
16The Applicant’s narrative in relation to the custody issue is surprisingly limited and imprecise, given the detailed information set out in the Respondent’s affidavits in support of his original motion and in response to the Applicant’s motion to set aside.
17The Respondent’s original affidavit sworn July 15, 2019 (which was the only evidence before Justice Bale on August 9, 2019) included the following:
a. He has been responsible for all decisions relating to the three children since they were born.
b. The children were living with both parties in the same residence until August 2018.
c. All three children have chosen to live with the Respondent since then.
d. He attaches a police report dated Sept 3, 2018 in relation to a “Child Custody Dispute – Domestic”. Officers spoke privately to Omar and Ahmed who advised that “it was their choice to come stay with their father.” The children advised the police that they could go to the mother’s house any time they wanted.
e. The Respondent stated the children would see the Applicant occasionally for short visits.
f. The oldest child alternates time between the Respondent’s residence and his apartment while attending medical school in London, Ontario.
g. The Respondent stated that since September 2018 he has been receiving 50% of the Canada Child Benefit because the Applicant “somehow” convinced Canada Revenue Agency that they had a shared custody arrangement.
h. He said in 2016, 2017 and 2018 (until September) the Applicant collected the full Canada Child Benefit even while she was living outside of Canada, and even while she was “admitted to mental care hospital.”
18The Respondent’s affidavit of August 26, 2019 repeated much of that narrative. It included the following additional information:
a. In 2014 the Applicant developed mental health issues which resulted in abusive behaviour and assaults on the children and on the Respondent.
b. For a period of time the mother’s access had to be supervised after Omar reported to CAS that the mother had “hit him very hard without any reason”.
c. Hamilton CAS has been involved, and he attached letters from the agency. An April 29, 2019 letter confirms the Society had been involved regarding “reported concerns with respect to the mother’s mental health, however these issues have been resolved”.
d. The children have been living permanently with him since June 2018.
e. The Respondent is seeking a temporary custody order for two reasons: To keep them safe from the Applicant’s irresponsible behaviour; And to qualify for the full CCB, as he requires the funds to provide for the children.
19Mr. Garcea did not request an opportunity to respond to the Respondent’s August 26, 2019 affidavit.
20Mr. Garcea assumes full responsibility for the fact that the Applicant failed to file any materials for the August 9, 2019 motion. In ordinary circumstances the court would be inclined to accommodate requests to correct problems which arose as a result of simple scheduling errors or miscommunications.
21But the subject matter here is important. And while the Applicant frames her request as an effort to get the parties back to equal footing from a litigation point of view, the Respondent says the order in question specifically benefits the children and should not be set aside without compelling reasons.
22Rule 25(19) has been held to provide authority to set aside orders. Gray v. Gray, 2017 ONCA 100. The rule states that a 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.
23Mr. Garcea acknowledges that the Applicant’s request is really based on 25(19)(e). The Applicant was clearly given notice, so the issue is whether the Applicant was unable to respond “for a reason satisfactory to the court.”
24The Applicant’s counsel submits that at this stage in the process, the only consideration is his and his client’s explanation as to why materials were not filed. Mr. Garcea acknowledges the Applicant may not have fully addressed all of the issues raised by the Respondent “on the merits” in relation to the custody claim. But he says that information can be supplemented by a further affidavit from his client if the August 9, 2019 order is set aside.
25I disagree that the Applicant had no obligation to address the merits of the claims she would seek to pursue if she is successful in setting aside the August 9, 2019 order. Indeed, in her materials she gives some evidence on the custody issue. She simply doesn’t give very much evidence on the custody issue.
26As Summers, J. noted in Stewart v. Fuhgeh 2019 ONSC 4447 (SCJ), in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, the Court of Appeal set out five factors to be considered by the court in the exercise of its discretion to set aside a default order:
Whether the moving party moved promptly after learning of the default judgment;
Whether the moving party has a plausible explanation for the failure to respond and comply with the Rules;
Whether the facts establish that the moving party has an arguable case on the merits;
What is the potential prejudice to the moving party if the default order is not set aside and what is the potential prejudice to the other party if the order is set aside;
What is the effect of the order made by the court on the overall integrity of the administration of justice.
27I am satisfied that the Applicant moved promptly to seek to set aside the August 9, 2019 order.
28I am less convinced that the Applicant has provided “a reason satisfactory to the court” to explain her failure to respond to the motion.
a. The likelihood of the Respondent bringing the motion – and the significance of the motion – was clearly set out in Justice Chappel’s endorsement of July 15, 2019.
b. The self-represented Respondent father followed all of the correct procedures. He served the materials on July 15, 2019 giving plenty of notice in advance of the August 2, 2019 return date.
c. While Mr. Garcea advises that he was on vacation when the papers were received at his office, the Applicant’s affidavit says he returned from vacation during the same week that the papers were served. That means that Mr. Garcea would have been back in the office perhaps two weeks prior to the August 2, 2019 initial return date.
d. No explanation has been provided as to why Mr. Garcea’s office apparently didn’t communicate with the Applicant prior to August 2, 2019.
e. While I accept that there may have been a mix-up on Monday August 5, 2019 as to the Applicant calling the wrong number and failing to gain access to Mr. Garcea’s office, no explanation has been provided as to any follow-up efforts on the Tuesday, Wednesday or Thursday of that week to reschedule an appointment. As stated, the Applicant did not attend court for the Friday August 9, 2019 motion.
f. No evidence has been provided as to why Mr. Garcea advised Justice Bale that “the Applicant has been unresponsive to her counsel.” If it was a matter of an August 5, 2019 appointment being missed through mis-communication, there would have been time to reschedule an appointment. And at the very least the scheduling mix-up should have been communicated to Justice Bale.
g. Between the lack of any real effort to prepare materials prior to August 2, and the lack of diligence after August 2, 2019, I am not satisfied that the Applicant has provided a satisfactory explanation for failing to submit responding materials during the approximately 25 days which elapsed between the date the Respondent served his motion and the date Justice Bale made her order.
29In custody cases, courts have to be especially cautious. We want to make sure all relevant information is available. By the same time we need to be mindful of the implications and consequences for children if an order is made -- and if an order is rescinded.
a. The father’s materials set out significant financial hardship for his family unit (and for the children) if the father does not receive the full CCB which he would be entitled to if the children are residing primarily in his custody. The mother’s materials do not really address this issue.
b. The father’s materials provide details and a very specific narrative in support of his assertion that the children have been residing overwhelmingly with him and only visit the mother occasionally. In contrast, the mother has provided only a very general statement that the children have been residing with the parties equally. She does not respond to very specific allegations by the father. She provides no evidence to suggest that the children will be better off if the order is rescinded, or that the children would be better off if she is allowed to file materials on a motion or cross-motion.
c. The father’s materials focus on the best interests of the children. In contrast, the mother’s materials focus on litigation strategies between the parties. She wants to vacate the custody order because she doesn’t want the Respondent to have a tactical advantage. She also objects to him using a custody order to seek more lenient treatment in relation to his pending criminal charges.
30We are only dealing with a temporary order. The father has identified that if the August 9, 2019 order is set aside, it will create prejudice for him and for the children which will outweigh any prejudice to the Applicant if the order remains in place. I find the Respondent’s evidence to be compelling and child-focussed. I am not satisfied that the mother has satisfied the requirements of Rule 25(19), and I am not satisfied that the interests of the children or the interests of the administration of justice require that Justice Bale’s August 9, 2019 temporary order be set aside.
31The Applicant’s motion is dismissed.
32If either party is seeking costs, they should contact the Trial Coordinator within 30 days to arrange a mutually convenient 15 minute attendance on this issue.
Pazaratz J.
Released: September 10, 2019
COURT FILE NO.: 821/18
DATE: 2019-09-10
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Rana Hatem
Applicant
– and –
Ayman Kamal Ramadan
Respondent
REASONS FOR JUDGMENT
The Honourable Mr. Justice A. Pazaratz
Released: September 10, 2019