Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Josmer Volmy Altidore Applicant
– and –
Nadia Messaoud Respondent
COUNSEL:
Stephen Codas and Stephanie Romano, for the Applicant
Self represented
HEARD: September 12, 2019
Reasons for Judgment
E.L. NAKONECHNY, J.
1The Applicant father brings this motion for summary judgment for an Order recognizing the final Order of Lord Justice Hamblen and Lord Justice Peter Jackson of Her Majesty’s Court of Appeal of the United Kingdom, as amended, dated April 20, 2018 (“the Final U.K. Order”) as an Order of the Ontario Superior Court of Justice pursuant to section 41(1) of the Children’s Law Reform Act, R.S.O 1990, c. C. 12, as am.
2The parties had a brief relationship in the United Kingdom in 2014. They were not married and did not cohabit. The Respondent mother is a U.K. citizen and resides in Cheshire, U.K. The father was residing in the U.K. when the parties met. He played football for Sunderland, an English Premier League Club.
3The father signed to play football with Toronto FC in January 2015. He has resided in Toronto, Ontario since that date.
4The parties have a child, C. Messaoud-Altidore (“C.”), born October 21, 2014, almost age 5. C. was diagnosed with autistic spectrum disorder in October 2017.
5The Final U.K. Order provides that the father may move C. permanently from the jurisdiction of England and Wales to “live primarily with” him in Canada. It provides a schedule of when C. shall “spend time with” the mother both in Toronto and the U.K., a schedule for Facetime or Skype calls and that the father consult the mother and keep her fully informed regarding the child’s health and treatment. In English proceedings a “live with” order is the equivalent of an Ontario custody order and a “spend time with” order if the equivalent of an Ontario access order. The father is required to pay the cost of the child’s travel to the U.K., the mother’s travel to and accommodation in Canada and the cost of renewing the child’s British passport as required.
6C. has resided in Toronto, Ontario since April 2018.
The U.K. Litigation
7The U.K. proceeding commenced in the High Court of Justice, Family Division, in Manchester, England in September 2015. On April 16, 2016, the parties entered into a consent Order of His Honour Judge Jordan (“the April 2016 Order”). This Order included a “shared care arrangement” and “parenting plan” whereby C. shared his residence between the parties, spending eight weeks with the mother in England and four weeks (increasing to six weeks) with the father in Canada.
8The April 2016 Order provided that the parties would have the assistance of the Children and Family Court Advisory and Support Service (“Cafcass”) which is a public organization tasked with promoting the welfare of children and families involved in family court proceedings.
9The parties returned to court a number of times in 2016 and 2017 regarding the enforcement and implementation of the April 2016 Order. In July 2017 the mother was ordered to undergo a psychological assessment.
10In December 2017, the father sought a variation of the child arrangements in the April 2016 Order. He asked that the child live primarily with him in Canada with access time to the mother.
11The hearing took place over four days before Jordan, J. The parties were each represented by counsel. The Children’s Guardian was appointed to represent C.
12The court heard evidence from the parties, the child’s paternal grandparents, and the Children’s Guardian. Cafcass filed three case analysis reports which recommended that C. reside primarily with the father in Canada. The record before the court was comprised of five “bundles” of “extensive documentation”.
13Jordan J released a 54-page Judgement on December 29, 2017 (“the December 2017 Judgment”). A final version was released on January 16, 2018. In the December 2017 Judgment, Jordan J. notes that this is a high conflict case which has been continuing between the parties “since virtually the child was born in October 2014” at para. 7.
14Jordan, J. sets out the law governing his analysis of the case: “The starting point in any case involving a child is that the welfare of the child is the court’s paramount consideration. Further, delay is prejudicial to the welfare of the child. The court must have regard to the welfare checklist under 1(3) of the Children Act 1989. Also, there is a presumption under s. 2A that, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.” at para. 52.
15The mother sought and was granted leave to appeal the December 2017 Judgment. The grounds of appeal were: 1 - Judge Jordan erred in finding that the respondent had not changed her behaviour and consequently was unable to meet the child’s emotional needs, and 2- Judge Jordan erred in finding that C. was living in a “conflicted household”, that he had suffered harm, and that the respondent’s behaviour fell within the definition of domestic abuse.
16The appeal was heard on April 18, 2018 by Her Majesty’s Court of Appeal (Civil Division) before Lord Justice Hamblen and Lord Justice Peter Jackson. Both parties were represented by counsel. C was represented by the Children’s Guardian.
17The Final U.K. Order dismisses the mother’s appeal and makes a substituted and updated Order that replaces the December 2017 Judgment.
The Ontario litigation
18The father commenced this Application in November 2018. The mother served an Answer which was filed with the Court at the hearing of this motion on consent. In the Answer, the mother claims that the father is in breach of certain provisions of the Final U.K. Order, in particular, the schedule of Facetime communication, provision of health records and treatment information and denial of her requests for additional time with the child. The mother also seeks leave to vary or set aside the Final U.K. Order.
19In his Reply, the father denies the breaches of the Final U.K. Order alleged by the mother.
20The parties attended a case conference before Paisley, J. on March 22, 2019. The mother was represented by counsel on a limited retainer. She attended by conference call from Manchester.
21The father served his material for this motion on July 12, 2019. The mother swore an Affidavit in support of this motion dated September 9, 2019, served on the Applicant’s counsel on September 10. Mr. Codas agreed to the late service and filing of the Affidavit at the hearing of this motion.
The Mother’s Position
22The mother opposes the relief sought by the father. She argues that the father is in breach of the Final U.K. Order by denying her parenting time and not providing health and treatment information as required. She argues that the U.K. court needs to “maintain jurisdiction” to enforce these breaches.
23The mother takes the position that the Final U.K. Order is no longer in the best interests of C. She states that the current contact schedule is not sufficient quality time and needs to be expanded. The child’s school holiday schedule has changed and there is more holiday time available for the child to be with the mother.
24The mother states that the child has suffered physical and developmental regression as a result of spending too much time with a nanny, rather than the father, and that his current school, Rosedale Day School, is not equipped to meet his special needs. She wishes to vary the Final U.K. Order to increase her parenting time to ensure that the child’s needs are properly met.
25The mother says she does not want to continue the litigation. She would agree to the Order sought by the father on this motion if he complied with the Final U.K. Order and provided her with additional parenting time and the child’s health information.
The Father’s Position
26The father denies he is in breach of the Final U.K. Order. He states that he has kept the mother apprised of all the child’s health information and complied with the time that the mother is scheduled to spend with the child.
27The father has concerns with the mother’s requests for additional time with the child. He refers to the findings of Jordan, J. in the December 2017 Judgment, in particular, the finding that, as a result of his autism, C. is a child with greater needs for clarity, certainty, and not to live in a conflicted household. Jordan, J. found that while C.’s physical and education needs could be met by both parents, his emotional needs were not being met by the mother and that C. had “suffered harm within an abusive environment as a consequence of the mother’s behaviour” at para. 237.
28The father also relies on the findings of Jordan, J. regarding the mother’s credibility as a witness. These findings were based on the judge’s experience having case managed the matter for a lengthy period and having an “enormous number of hearings with her in attendance, in part representing herself and in part represented by leading counsel and senior and junior counsel” at para. 144. Jordan, J. found that the mother was a “difficult historian” who demonstrated a “lack of insight and change”. She acted “wholly inappropriately” and acknowledged her conduct was damaging to the child.
29The father argues that the recognition of the Final U.K. Order under s. 41(1) of the CLRA is a question of law. The section compels the court to recognize the Order unless there is evidence proving one of the enumerated exceptions in subsections 41(1) (a) to (e). The father states there is no evidence to support any of the exceptions so there is no genuine issue for trial.
The Law
Summary Judgment under the Family Law Rules
30Rule 16(6) of the Family Law Rules, O. Reg. 114/99 provides: If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
31The onus is on the moving party to show that there is no genuine issue requiring a trial. Rule 16(4) requires the moving party to serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
32Rule 16(4.1) states that the responding party may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing there is a genuine issue for trial.
33In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out the process to be followed by a court in applying the summary judgment rules. In Phillion v. Phillion, 2015 ONSC 4255 at para. 17, Kent, J. summarized the process as follows:
First, the motions judge should take a liberal approach only on the evidence before her, without using the new fact-finding powers under the second part of this test. If the summary judgment process provides the motions judge with the evidence required to justly determine the motion, it will be held that there is no genuine issue requiring a trial; and
Second, if there appears to be a genuine issue requiring a trial, the motions judge is entitled, at his discretion, to weigh evidence, evaluate credibility, and draw reasonable inferences, in order to determine if the need for a trial can be avoided using these new tools to come to a fair and just result.
34Rule 16(6.1) of the Family Law Rules sets out the court’s powers on a motion for summary judgment:
(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
weighing of evidence,
evaluating the credibility of a deponent;
drawing any reasonable inference from the evidence.
35The powers are discretionary and should be used if doing so will lead to a fair and just result, consistent with the primary objectives of Rule 2(2) of the Family Law Rules: fairness, timeliness, affordability and dealing with the case in ways that are appropriate to its importance and complexity.
36At paragraph 49 of Hryniak, the court states: “There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits using the summary judgment process. This will be the case when the process: (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”
37The rule that each party on a summary judgment motion must put its “best foot forward” continues to apply: Cuthbert v. T.D. Canada Trust, 2010 ONSC 830 at para. 12; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, aff’d 2014 ONCA 878, leave to appeal refused [2015] S.C.C.A. No. 97 at para. 32.
Section 41(1) of the CLRA
38Section 41(1) of the CLRA reads as follows:
41.(1) Upon application by any person in whose favour an order for custody of or access to a child has been made by an extra-provincial tribunal, the court shall recognize the order unless the court is satisfied,
a) that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;
b) that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;
c) that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;
d) that the order of the extra-provincial tribunal is contrary to the law of public policy in Ontario; or,
e) that in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario.
39Section 22(1)(a) of the CLRA provides that a court shall only exercise its jurisdiction to make an order for custody of or access to a child where the child is habitually resident in Ontario at the commencement of the application for the order.
40The language of section 41(1) is mandatory. The mother has produced no evidence proving that any of the exceptions in sub paragraphs (a) to (e) have been met:
a. and b: The mother had notice and participated fully with counsel in the hearings which resulted in the December 2017 Order and the Final U.K. Order.
c. Jordan J. references the welfare checklist of the Children Act 1989 in the December 2017 Judgment and states specifically that the welfare of the child is the paramount consideration in the determination of the case.
d. The Final U.K. Order is not contrary to public policy in Ontario.
e. Both the High Court of Justice, Family Division and Her Majesty’s Court of Appeal in the U.K. would have jurisdiction if they were courts in Ontario. The parties and the child were domiciled in the U.K. when the application was commenced. The child was born in the U.K. There was no other application or order in respect of the child.
The “Real and Substantial Connection” Test
41The Supreme Court of Canada has held that the “real and substantial connection” test should be applied by a court when determining whether it will recognize interprovincial or foreign judgments. A court should recognize and enforce the judgments of another if that court properly exercised its jurisdiction in the action; where it had a real and substantial connection with either the subject matter of the action or the defendant: Beals v. Saldanha, 2003 SCC 72 at paras 23 and 29.
42The mother does not dispute that the High Court of Justice, Family Division and Her Majesty’s Court of Appeal had jurisdiction to make their orders in the U.K. litigation. C. was born in the U.K. and resided there throughout the litigation until the Final U.K. Order.
43The mother still resides in the U.K. She had notice of and took part in all of the litigation with counsel. The mother does not argue that the U.K. courts did not have a “real and substantial connection” to the case.
Order
44Based on the evidence before me and for the reasons set out above, I am satisfied that the father has established a prima facie case that there is no genuine issue requiring a trial in this matter. The mother has not met her onus to establish that there is a genuine issue requiring a trial. In my opinion, summary judgment is a timely, affordable and appropriate procedure in this case. I have sufficient evidence on all relevant points to allow me to justly determine the motion.
45Order to go as follows:
a. The Final Order of Lord Justice Hamblen and Lord Justice Peter Jackson of Her Majesty’s Court of Appeal of the United Kingdom as amended and dated April 20, 2018 is hereby recognized and deemed to be an Order of the Superior Court of Ontario and enforceable as such pursuant to section 41(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C 12.
46After hearing the motion on September 12, I reserved my decision to be released orally on September 13. I advised the parties I would hear costs submissions on September 13 after the release of my decision and would make a costs Order at that time.
E.L. Nakonechny, J.
Released: September 13, 2019
COURT FILE NO.: FS-18-006042
DATE: 20190913
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Josmer Volmy Altidore Applicant
– and –
Nadia Messaoud Respondent
REASONS FOR JUDGMENT
E.L. Nakonechny, J.
Released: September 13, 2019