Court File and Parties
COURT FILE NO.: FC-18-1577 DATE: 2019/12/18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Efrem Legasse Molla, Applicant AND Selenat Tariku Kebry, Respondent
BEFORE: Justice Engelking
COUNSEL: Senayit Belay, Counsel for the Applicant Kevin Doyle, Counsel for the Respondent
HEARD: October 10, 2019
ENDORSEMENT
1The parties were married in Khartoum, Sudan in 2006. Their first child, Amanuel Legasse, was born on August 13, 2008. The family immigrated to Canada on August 26, 2009. They lived in Ottawa, Ontario. The Applicant father, the Respondent mother and the child Amanuel all have permanent resident status in Canada. The parties’ second child, Dawit Legasse, was born on February 25, 2016 in Ottawa. He is a Canadian citizen.
2On November 19, 2016, the Respondent mother and the children travelled to Addis Ababa, Ethiopia for a six-month visit with the mother’s family with the consent of the Applicant father. The mother and the children had a return flight booked for May 20, 2017. Shortly before the return, the mother advised the father that she wished to stay a little longer for a particular Ethiopian holiday. Although he would have preferred them to return, and although the money for the May 20, 2017 ticket would be lost, the father agreed for the mother and the children to stay a little while longer in Ethiopia.
3On July 24, 2017, the mother advised the father by text: “I am ready to come”. The parties then both looked for suitable/affordable tickets. On August 12, 2017, the father sent the mother by text a copy of a flight itinerary for August 16, 2017. On August 16, 2017, the mother sent a text to the father advising him that she had a problem. They spoke on the phone and the mother told the father that both her and Amanuel’s Permanent Residence Cards had expired so they could not fly home. The father’s evidence was that he was not told by the mother of the expiry date of the cards by the mother. The mother’s evidence was that the father did not have enough money to get the tickets earlier and, by the time he did, the cards had expired. I find the father’s evidence more believable in this regard, as it defies logic that he would spend money (of which he didn’t have a surplus) on tickets that could not be used.
4In any event, On August 17, 2017, at 1:58 a.m., the mother texted the father: “…we coming soon my love”. On August 23, 2017, the father sent the mother $614 Canadian dollars for her application to renew the Permanent Resident Cards. On September 20, 2017, the mother advised the father that the children would not be allowed to return to Canada. The father knew this to not be true as Dawit is a Canadian citizen and Amanuel’s Permanent Resident status was not in jeopardy; all that was required was an updated card. The parties argued over the issue and the father indicated to the mother that she could stay in Ethiopia if she wished but the children needed to return to Canada. The mother ceased to have any further communication with the father after September 20, 2017. Prior to September 20, 2017, the father had regular and frequent contact with the mother and the children, evidence of much of which was attached as exhibits to the father’s various affidavits and which showed them to be very much a couple and planning matters together.
5According to the father’s evidence, he consistently attempted to contact his children and/or ascertain their whereabouts from that time forward. He indicated that when he called the mother’s family members, they either did not take his calls or hung up on him. Between October of 2017 and May of 2018, he made several efforts through several agencies to try and get information on how to get his children returned to Canada. It is confirmed that in October of 2017, the father consulted with a lawyer, Salim James Levy, through the Ottawa Community Immigrant Services Organization (“OCISO”). In or about December of 2017, the father heard through a mutual friend of his and the mother that the mother had left Ethiopia. He had attended police stations on six occasions in an effort to make a report and was finally able to do so in May of 2018, at which time he was assisted in getting a lawyer through Legal Aid Ontario.
6After obtaining a lawyer, the father brought an application for custody of the children which was served on the mother by email on August 16, 2017. Only in response to this application did the father find out that the mother was residing in Canada and was in fact, living in Toronto, Ontario. Also, only in response did the mother also provide a new telephone number to the maternal grandmother through which the father could finally once again have contact with the children, something he had been without for eleven months.
7The mother’s evidence confirms that she left Ethiopia in October of 2017 and took up residence in Toronto, Ontario. None of her affidavits provide the specific date at which the mother left Ethiopia, however, when she was cross-examined on her affidavits at the hearing, she stated she left Ethiopia on October 2, 2017. The mother left the children in Addis Ababa with her mother, Ms. Yangusenashe Takela. The mother stated in her evidence that she decided sometime “around” the aborted August 17, 2017 return and the obtaining of new travel documents that she could no longer live with the father. In her affidavit sworn on September 24, 2018, the mother explains that she left the children in Ethiopia because she “had no place to stay” and “it was not safe to take the children to Efrem”1. In her affidavit sworn on November 9, 2018, the mother said at paragraph 13: “As I could not afford to give the children a decent life in Canada right away, I made plans to have the children stay with my mother in Addis Ababa while I travelled to Toronto”.2
8In response to the father’s application and request for an urgent motion for the return of his children in September of 2018, the mother consented to a temporary without prejudice order of Justice Swartz dated September 25, 2018. The father cannot travel to Ethiopia because he has claimed political asylum in Canada and is not yet a Canadian citizen. With respect to the issue of the return of the children to Ottawa, Justice Swartz’s order provided as follows:
Return of the Children to Ottawa, Ontario
The children of the marriage, namely Amanuel Efrem Legasse, born August 13, 2008 and Dawit Efrem Legasse, born February 25, 2016, shall return to Ottawa, Ontario within 60 days of today’s date.
The Respondent mother shall facilitate the return of the children, in coordination with the children’s maternal grandmother, Yangusenashe Takela, with whom the children currently reside in Addis Ababa, Ethiopia, as follows:
a. An application for a travel document for Amanuel Legasse will be submitted within 15 days of today’s date and proof of same will be sent to the Applicant via counsel immediately upon being submitted;
b. The Respondent shall keep the Applicant apprised of any developments with respect to the status of Amanuel’s travel document application;
c. Kibrom Gebregergis shall travel to Addis Ababa, Ethiopia to escort the children to Ottawa, Ontario and the maternal grandmother shall provide Mr. Gebregergis with the children’s passports and travel documents;
d. The parties shall sign a travel consent allowing Kibrom Gebregergis to travel to Addis Ababa, Ethiopia and escourt [sic] the children back to Ottawa, Ontario;
e. The maternal grandmother shall ensure the children are ready to travel home;
f. The Respondent shall ensure the maternal grandmother facilitates phone access and/or video chat access via What’s App between the children and the Applicant at least 3 times per week.
The Respondent shall move to Ottawa within 60 days of today’s date.
The Respondent shall deposit her Ethiopian Passport and Canadian Travel document with her counsel no later than October 2, 2018.
9Justice Swartz also set a case conference for October 19, 2018. With respect to paragraph 4 a. above, the Respondent mother did not apply for a travel document for Amanuel within 15 days of the order, nor did she provide the Applicant father of proof for same. Rather, she provided proof on October 18, 2017, one day before the scheduled case conference that she had applied for a travel document for Amanuel. The mother did not provide any explanation in her materials as to why she did not apply within the 15 days provided for in the order.
10With respect to paragraph 4 b. above, the Respondent mother did not keep the Applicant father apprised of the status of the application for Amanuel’s travel document. In fact, the father found out only at the next court date of November 20, 2017, that Amanuel’s travel document had been issued. He was, therefore, unable to make travel arrangement for Mr. Gebregergis prior to the November 20, 2017 court appearance. An illegible copy of the document was provided to the father on November 28, 2017, and a legible copy, which showed that the document had been actually issued on November 2, 2017, was only provided to him in December of 2018. The mother did not provide any explanation as to why she had not advised the father that the document was issued on November 2, 2017, or why she had failed to keep him apprised of the status of the application as required by the court order.
11With respect to paragraph 4. f. above, the Applicant’s evidence is that he has not had phone or video access to the children three times per week, and that the grandmother regularly interferes with that happening.
12With respect to paragraph 5 of Justice Swartz’s order, the mother has never moved to Ottawa. Her explanation is that she understood it to mean that she was to move to Ottawa upon the return of the children to this jurisdiction such that custody of and access to them could be determined.
13With respect to paragraph 6 of the order, the mother did surrender her passport and travel documents to her counsel as required.
14On the 19th of October 2017, Master Fortier made a disclosure order for the mother to provide a copy of Amanuel’s passport and stamped VISA from 2017 and certified transcripts from the schools that Amanuel attended in Addis Ababa, along with contact information for the schools. She also ordered that the costs of Mr. Gebregergis’ travel to Ethiopia would be equally shared by the parties and she set a motion for custody and access to be determined for November 20, 2017. The mother has never provided the disclosure, nor has she paid for one half of Mr. Gebregergis’ travel.
15On November 20, 2018, the motion was adjourned to a telephone conference with the parties to discuss the end of Amanuel’s school term and the return of the children to Ottawa. As I have indicated above, it was only on this date that the father became aware that a travel document for Amanuel had been issued.
16On December 6, 2018, Justice Kershman released an endorsement with respect to the November 28, 2018 teleconference with the parties. Justice Kershman ordered, inter alia:
The Applicant (“Father”) has made arrangements for the children to return to Canada accompanied by the third-party escort being Kibrom Gebregergis Tsegay, who will travel to Addis Ababa, Ethiopia, to pick up the two children being Amanuel Efrem Legasse Born August 13, 2008 and Dawit Efrem Legasse born February 25, 2016.
Kibrom Gebregergis Tsegay shall pick up the children in Addis Ababa, Ethiopia from the maternal grandmother, Yangusenashe Takela, with whom the children currently reside. Mr. Tsegay and the children shall leave Addis Ababa, Ethiopia by plane on December 19, 2018 and arrive in Ottawa, Ontario Canada on December 20, 2018.
The children shall reside with the Respondent (“Mother”) in Ottawa, Ontario pending a motion being heard by the Court at a date to be determined in the future.
Amanuel Efrem Legasse shall attend school in Ottawa.
Up front payment for the airline tickets shall be made by the Applicant (“Father”).
The Father and the Mother shall communicate with each other by email or by text about the Father’s access after the children have arrived and have rested for 24 hours. The Mother shall provide the contact information for email and/or text within the next 5 days to her Counsel who will then provide it to the Father’s Counsel. The Father can attend at the airport to meet the children. The Mother will take the children to live with her in Ottawa and the father will have access to the children.
The Father’s counsel will prepare travel consents which shall be signed by the Mother no later than December 10, 2018 and returned by her counsel to the Father’s counsel no later than December 12, 2018.
Kibrom Gebregergis Tsegay will arrange with Ms. Takela for arrangements to pick up the children in enough time to arrive at the airport for the flight.
Kibrom Gebregergis Tsegay will advise if the flight is delayed or cancelled for any reason.
The Court will obtain a motion date for the motion that was adjourned on November 20, 2018. The motion will only be heard if the children arrive in Canada and are living with the Mother in Ottawa, Ontario. In the event that the children do not return, the motion will be cancelled.
17On December 10, 2018, the mother signed the required travel consent permitting the children to travel from Ethiopia to Canada in the company of Mr. Gebregergis, as did the father on December 12, 2018. On December 13, 2018, the day before Mr. Gebregergis was to depart, the father received a text message from the mother’s brother, Mr. Capital Kebry, advising him that the grandmother would not be releasing the children to Mr. Gebregergis. Specifically, Mr. Kebry’s message stated the following:
Dear Epren.
This is Capital, How are you?
I have been informed you are expecting Emanuel and Dawit to arrive to Canada soon through proxy. And I have been told this proxy person called Kiberom [sic] will come to Addis. But since Ours [sic] mother have been declared by court as there [sic] guardian we will be obliged to keep them safe under our custody.
There for sending the kids through third party will be breach of Ethiopian law and we will be held liable under Ethiopian court of law.
I am sending you this text in advance to inform you we will not give our kids to third party whomever he is. And if the sole reason of Kibrom coming to Addis is to take the kids I here by inform you to tell him to not waste his time and resource.
18At this point, the grandmother was apparently refusing to allow the children to return to Canada with Mr. Gebregergis on the basis that she was their legal guardian, having previously obtained a court order in Ethiopia. The mother’s counsel provided to the father’s counsel what was purported to be a court order from “Addis Ababa City First Instance Court” dated October 20, 2017, a purported English translation of which states (in part):
The court acknowledge that the petition of the applicant is supported with affidavit and testimony of witnesses. Accordingly, the court hereby confirm and acknowledge that the applicant Mrs. Yengusnesh Kibret Takele is legal and administrator of the child mentioned under letter A and B child Amanuel Efrem and Dawit Efrem in accordance with the revised family law proclamation No: 213/92 of Article 225/A.
19The mother’s position was that the grandmother was doing this of her own accord and that she had nothing to do with it.
20Because it was too late to get a refund on the ticket and because the father hoped that Mr. Gebregergis might still be able to bring the children home once he had an opportunity to speak to the grandmother, the decision was made for Mr. Gebregergis to travel to Addis Ababa anyway. Mr. Gebregergis filed an affidavit in support of the father’s motion for a contempt order. Upon his arrival in Addis Ababa, Mr. Gebregergis went to the Canadian Embassy to seek assistance; he was advised that they could not help as it was a family matter.3 Mr. Gebregergis then spoke to the maternal grandmother on the telephone for approximately two hours, but she refused to surrender the children to him.
21On December 18, 2018, the father brought an emergency motion to court in Ottawa in an effort to still somehow get the children brought back by Mr. Gebregergis. Justice Kershman made an order on that date which first granted joint custody of the children to the Applicant and the Respondent, and second provided: “2. If the children return to Ottawa by December 20, 2018 in accordance with the order of Justice Kershman dated December 6, 2018, then this custody order shall be rescinded and the interim motion for custody shall proceed as planned.” The children were not returned to Ottawa.
22The parties attended a settlement conference on May 15, 2019, at which Justice Audet made a temporary order for the mother to disclose to the father copies of the three invitation letters the mother sent for the grandmother’s visits to Canada, to make her best efforts to disclose an untranslated copy of the purported Ethiopian court order and all materials filed in Ethiopian courts in relation to the children and to make best efforts to provide evidence from the children’s schools or daycares that Amanuel and Dawit attended in Addis Ababa, setting out the exact dates that he attended the schools (attendance records).
Contempt Findings Claimed
23The Applicant father now seeks findings that the Respondent mother is in contempt of court as follows:
For failing to facilitate the return of the children to Ottawa as ordered in paragraphs 3 and 4 of Justice Swartz’s temporary order of September 25, 2018;
For failing to move to Ottawa within 60 days as per paragraph 5 of Justice Swartz’s temporary order of September 25, 2018;
For failing to cooperate in the facilitating of the return of the children to Ottawa as ordered in paragraphs 1 and 2 of the temporary order of Justice Kershman dated December 6, 2018;
For failing to move to Ottawa to reside with the children and for failing to have Amanuel attend school in Ottawa pursuant to paragraphs 3 and 4 of Justice Kershman’s order of December 6, 2018;
For failing to provide disclosure as ordered by Justice Audet on May 15, 2019; and,
For failing to pay for one half of the travel of the third-party escort pursuant to the temporary order of Justice Fortier dated October 29, 2018.
The Law
24I will deal with each claim in turn, but first I set out the law of contempt. The Ontario Court of Appeal set out the test to be met in determining contempt in G.(N.) et al v. Prescott-Russell Services for Children and Adults, 2006 CanLII 81792 (ON CA), [2006] O.J. No. 2488 (C.A.) at paragraph 27:
The order that was breached must state clearly and unequivocally what should and should not be done.
The party who disobeys the order must do so deliberately and wilfully.
The evidence must show contempt beyond a reasonable doubt. Any doubt must clearly be resolved in favour of the person or entity alleged to have breached the order.
25In the context of family proceedings, the legal principles applicable have been set out in Janowski v. Zebrowski, 2019 ONSC 4046 to include that the purpose of a contempt order is to force compliance by the defaulting parent, disobedience of court orders must have consequences, civil contempt is a remedy of last resort imposed sparingly and cautiously in family proceedings, the “wilfulness” to disobey must be purposeful and not accidental, the absence of “contumacious intent” for the breach is a mitigating but not exculpatory factor, a parent is not entitled to ignore an order and a parent must take all reasonable steps to ensure compliance with the order.4 Significantly, at paragraph 24, subparagraph k. of Janowski, Justice Trimble stated:
k. There must be clear and compelling reasons to legally justify violation of an order. In order to this, the parent must show, by admissible evidence, that he or she has a reasonably held belief that there is a good reason to defy the order, such as imminent harm to the children. Putting it another way, the defaulting parent’s belief must be sincerely held. A sincere belief of immanent [sic] harm or danger, alone, is not sufficient. There must be a validly objective justification for the breach based on the child’s needs and interests, based in evidence. (Kassay v. Kassay, 2000 CanLII 22444 (ON SC), [2000] O.J. No. 3373 (S.C.), at para. 25; Docherty v. Catherwood, 2015 ONSC 5240, at para. 19; and Houben v. Maxwell, 2016 ONSC 2846, at p. 12 and 23, Jackson v. Jackson, 2016 ONSC 3466, at para. 59 and 61). (emphasis added)
26The Ontario Court of Appeal has additionally recently held in Chong v. Donnelly, 2019 ONCA 799 that even when the three elements as set out in G.(N.), supra are made out, the court should consider whether it should exercise its discretion to decline to make a finding of contempt.
Analysis
27With respect to the first claim of the Respondent failing to facilitate the return of the children to Ottawa, as ordered in paragraphs 3 and 4 of Justice Swartz, there is no doubt that the terms of the order were clear and unequivocal. Pursuant to paragraph 3 of the order, the children were to return to Ottawa within 60 days of September 25, 2018. They did not do so. I cannot, however, find that her failure to do so within 60 days was willful and deliberate, as the parties were working throughout October, November and December to have the children return.
28Pursuant to paragraph 4 a. of the Swartz J. order, the mother was to facilitate the children’s return by applying for a travel document for Amanuel within 15 days of September 25, 2018, or by October 10, 2018. She did not do that. The mother provided no explanation for the delay in either her affidavits or her viva voce evidence given at the hearing. The only evidence in the record which may speak to that issue is an email from the mother to the father’s counsel dated October 11, 2018, at 10:34 a.m. which states: “Hi, Senayite Amanual paper doesn’t finish yet because they ask my mom legal guardian so she is on prossess, so I like to ask for more days if its possible. Thank you.” This email is attached as Exhibit “G” to the affidavit of the father sworn on December 18, 2018.5
29The significance of this email is twofold: 1) it may support that the mother’s delay was not “willful” within the meaning of G.(N.), but 2) it also means that the mother was aware of the grandmother’s “guardianship” of the children well before December 13, 2018. Indeed, the mother testified that she first found out about the grandmother’s purported Ethiopian court order when she was applying for Amanuel’s VISA to travel. Given that I cannot find the mother’s non-compliance with this term of the order deliberate and willful, I decline to make a finding of contempt in relation thereto.
30The second thing that the mother was required to do by paragraph 4 b. of the order of Justice Swartz was to keep the father “apprised of any developments with respect to the status of Amanuel’s travel documents application.” This she did not do. Although Amanuel’s VISA was issued on November 2, 2018, the first that the father learned of it was at court on November 20, 2018. At that point, he (and the court) knew that it had been issued, but not when it had been issued. The father was provided with a copy by counsel for the mother at the end of November, but the copy was not legible such that the date of issue could be readily ascertained. Not until sometime in December did the father see a copy of the VISA, which clearly showed that it had been issued on November 2, 2018. Again, the mother provided no explanation, either by affidavit or in her viva voce evidence as to why she did not inform the father of the VISA on the date that it was issued. She was required, clearly and unequivocally to do so by order of Justice Swartz. I can only conclude that her unexplained failure to obey the order was purposeful and willful, and that it was intended to delay the ability of the father to arrange flights for Mr. Gebregergis and the children. Again, having no other explanation, I find no doubt that can be resolved in favour of the mother in this regard.
31With respect to paragraph 5 of the order of Justice Swartz, the mother did not, within 60 days of the order, move to Ottawa. Indeed, she has never moved to Ottawa; she still resides in Toronto, Ontario. Paragraph 5 of Justice Swartz’s order states clearly what should be done: “The Respondent shall move to Ottawa within 60 days of today’s date”. The order was made on consent, with the mother having the benefit of being assisted by duty counsel and an Ahmaric interpreter.
32The mother’s explanation as to why she has not moved to Ottawa is that she understood it to mean that she was to move to Ottawa upon the return of the children. Because the children have not returned, she has not moved. The mother testified that she comes to Ottawa for court dates, and upon return of the children to Ottawa, she would “move” here temporarily, that is she would stay with a friend or in a shelter, if necessary, until such time as the court determined the custody and access issues. She, however, has absolutely no intention of living in Ottawa. This is evinced by paragraph 11 of the temporary order of Justice Kershman dated December 6, 2018, which provides as follows:
- The Mother’s counsel advises that he will be bringing a cross-motion in relation to mobility which hopefully will be heard at the same time as the motion. The Mother’s counsel will serve the notice of cross-motion within fourteen days of November 28, 2018.
33No such Notice of Cross-Motion has ever been filed, presumably because the children have not returned, and the custody/access motion has not been held.
34The mother’s lack of intention to move to Ottawa is also evinced by her own evidence of her search for housing through Interval House in Toronto, Ontario. By letter dated September 16, 2019, Chantel Nelson, the Housing Partnership Coordinator, confirmed that the mother had been a client since December of 2018 and has been looking for a two or three-bedroom apartment in Toronto, Ontario since January of 2019.6
35The mother failed to obey paragraph 5 of Justice Swartz’s order of September 25, 2018 and I find that her failure was deliberate and purposeful. She simply elected to apply her own interpretation of the order rather than to comply with its plain wording. However, I do find that a reasonable doubt is raised by the non-return of the children and her evidence as to her own understanding of to what she consented, and I must resolve that doubt in favour of the mother.
36Paragraph 1 of Justice Kershman’s temporary order of December 6, 2018 provides that Mr. Gebregergis Tsegay will travel to Addis Ababa and pick up the children. It simply states a fact and does not require compliance from the mother.
37Paragraph 2 of the order provides: “Kibrom Gebregergis Tsegay shall pick up the children in Addis Ababa, Ethiopia from the maternal grandmother, Yangusenashe Takela, with whom the children currently reside. Mr. Tsegay and the children shall leave Addis Ababa, Ethiopia by plane on December 19, 2018 and arrive in Ottawa, Ontario Canada on December 20, 2018”. Although this paragraph requires no overt action on the part of the mother, it is the non-compliance with this part of the order which has resulted in the non-return of the children to Canada. The mother professes to have had nothing to do with it, and to have found out at about the same time as the father (on or about December 13, 2018) that the grandmother was refusing to hand the children over to Mr. Gebregergis, ostensibly on the basis that she would be doing something not permitted by Ethiopian law. The mother testified that she was agreeing that the children should return to Canada in the company of the third-party escort, and that she provided the Consent to Travel document required by paragraph 7 of the Kershman J. order. Her position is that it was not she who prevented the children from leaving Addis Ababa in the company of Mr. Gebregergis, but her mother, who unilaterally did so.
38Interestingly, and although the mother was aware from at least October 11, 2018, the first the father had ever heard of the grandmother having obtained any kind of order in relation to the custody or guardianship of the children in Ethiopia was on December 13, 2018. According to the mother, the grandmother obtained some legal advice shortly before the anticipated departure of the children that handing them over to a third-party in the face of the order would be contrary to the law in Ethiopia. For the purposes of this motion, I do not consider the authenticity of the Ethiopian order to have been established. There was no evidence of any notice having been given to the father of the grandmother’s application, if there was one, nor was expert evidence provided as to the family law regime in Ethiopia. Although the mother produced a translated document on the day of the hearing, which purported to support or be the legal advice given, it was not admissible evidence. First, what the mother reported she was told by the grandmother (as well as by her brother, Capital) was hearsay in its worst form. Second, no expert was produced and/or qualified to proffer the opinion being given.
39It is difficult, though I suppose not impossible, to believe that the mother was not a party to the decision being taken by her mother and her brother to not hand the children over to Mr. Gebregergis. The mother has obstructed the father from having the children return to Canada at every possible opportunity since May of 2017:
First, she delayed their departure in May of 2017, by a couple of months, albeit with the reluctant consent of the father;
Second, she delayed their departure in August of 2017;
Third, she failed to subsequently follow through on obtaining the necessary travel documents for herself and Amanuel, despite that the father had sent her a further $600 to do so (though, as discussed below, she had them by no later than November 14, 2017);
Fourth, she ceased to communicate with the father at all from September 20, 2017 onwards;
Fifth, she left Ethiopia without the children on October 2, 2017, without informing the father;
Sixth, she failed to inform the father about her or the children’s whereabouts anytime prior to being served with the father’s application in August of 2018;
Seventh, she failed to apply for travel documents for Amanuel within 15 days of Justice Swartz’s order;
Eighth, she failed to keep the father apprised of the status of Amanuel’s travel document application, and specifically that a VISA had been issued on November 2, 2018;
Ninth, she failed to advise the father of the grandmother having obtained some kind of legal status over the children prior to December 13, 2018; and,
Finally, she has taken no steps to move to Ottawa in anticipation of the children coming.
40The more likely scenario is that the mother left the children with the grandmother with a specific plan to have the grandmother shortly bring them to her in Toronto, Ontario. Indeed, the mother has applied three times to have the grandmother granted a six-month visitors VISA. Notwithstanding that the mother has stated that her reasons for leaving the children behind were that she had no place to live and no money, her first application to have her mother be permitted to visit Canada was submitted on November 14, 2017, or slightly over one month after her arrival.7 In it, the mother declares to be working at Prologix making $500 per week and to be able to meet all of her mother’s needs in Canada, including by providing accommodations at her address. The mother also indicates in this document that her “two kids are missing me a lot and missing their country Canada.” She also, incidentally, enclosed with her Statutory Declaration what one can only assume were perfectly valid Permanent Residence cards for herself and Amanuel. This request was rejected by the High Commission for Canada on November 30, 2017, as it was not satisfied that the grandmother would leave Canada at the end of her stay as a temporary resident based on her “personal assets and financial status”.8 This is despite the mother’s evidence (with which the father does not agree) regarding what she refers to as the grandmother’s relatively high standard of living in Ethiopia.
41The mother’s second attempt to have the grandmother permitted to come to Canada was dated January 23, 2018.9 In this attempt, the mother again declared that her kids were missing her and missing Canada. It was rejected by the High Commission on February 1, 2018, citing not being satisfied that the grandmother would leave Canada at the end of her stay as a temporary resident based on her travel history, family ties in Canada and place of residence, length of her proposed stay in Canada, purpose of her visit and personal assets and financial status.10
42Despite the failure of these attempts, despite that her children were missing her and Canada and despite that the mother did not surrender her passport to her counsel until October 2, 2018, she did not return to Ethiopia to bring her children back to Canada, where they were clearly ordinarily resident prior to her vacation commencing in November of 2016.
43The mother submitted yet a third request to have her mother be permitted to come to Canada with the children, this one in February of 2019. Pursuant to the order of Justice Audet dated May 15, 2019, the mother was to produce “copies of all three invitation letters she sent for the maternal grandmother to visit Canada”. She has not provided disclosure of her letter of invitation or Statutory Declaration for the February 2019 request. She has not, again without explanation, complied with this provision of Justice Audet’s order. She did, however, provide a copy of a letter from her MP which is dated February 1, 2019, supporting the request. Although the mother confirmed in her viva voce testimony that the request was, once again, rejected by the High Commission, no documentary evidence of the rejection was provided.
44The mother has, in the meantime, continued to live and work in Toronto, Ontario. She appears content to leave her children with their grandmother, despite that they have not seen her or their father personally for two and three years respectively. Whether or not she colluded in the decision of the grandmother to not hand the children over to the person whom the parents had identified and consented to as an appropriate escort, the mother does not appear perturbed by it. Having said that, I cannot conclude that the mother is in contempt of paragraph 2 of Justice Kershman’s order. As I have indicated above, there was no positive obligation upon her in that paragraph, and though I suspect that she agreed with the grandmother’s decision, the evidence before me does not establish beyond a reasonable doubt that she had control over it.
45My findings with respect to paragraphs 3 and 4 of Justice Kershman’s order of December 6, 2018, are in keeping with my findings above regarding the mother’s failure to move to Ottawa. Any doubt I have must be resolved in the mother’s favour. Amanuel, moreover, cannot attend school in Ottawa until he is in Ottawa. I have found that I cannot hold the mother in contempt for Amanuel not being in Ottawa pursuant to Justice Kershman’s order, hence, I cannot find her in contempt for Amaneul not currently being in school in Ottawa.
46Finally, with respect to school records for Amanuel and the Ethiopian court file, the order of Justice Audet referenced her “best efforts”. The mother has indicated that she has asked her mother for what has been requested, and she has given what she has received from her mother. She cannot be held in contempt for not providing more.
Conclusion on Contempt
47I find as follows:
(a) The Respondent mother failed to obey paragraph 3 of the temporary order of Justice Swartz dated September 25, 2018. I cannot find that her failure to have the children return within 60 days of the order, however, was deliberate and willful and I decline to find her in contempt of this provision;
(b) The Respondent mother failed to obey paragraph 4. a. of the temporary order of Justice Swartz dated September 25, 2018. She, however, ultimately made the application. I am unable to conclude that her disobedience was purposeful and willful, and I decline to find her in contempt of this provision;
(c) The Respondent mother failed to comply with paragraph 4 b. of the temporary order of Justice Swartz dated September 25, 2018. She did so in a purposeful and willful fashion. However, I exercise my discretion and decline to find her in contempt of this provision;
(d) The Respondent mother has failed to obey paragraph 5 of the temporary order of Justice Swartz dated September 25, 2018. However, I cannot find contempt beyond a reasonable doubt based on her evidence of her understanding of the order, and the doubt that I do have must be resolved in her favour;
(e) I make no finding of contempt in respect to paragraphs 1 and 2 of Justice Kershman’s order of December 6, 2018;
(f) I make no finding of contempt in respect of paragraphs 3 and 4 of Justice Kershman’s order of December 6, 2018;
(g) The Respondent mother failed to comply with Justice Audet’s temporary order dated May 15, 2019, requiring her to provide copies of all three of her invitation letters for the maternal grandmother to visit Canada. I exercise my discretion and decline to find her in contempt of this provision; and,
(h) I make no finding of contempt with respect to the remaining disclosure ordered by Justice Audet.
Temporary Order
48Although I have not found the mother in contempt of specific provisions of the various orders made, and most particularly paragraph 3 of Justice Swartz’s order of September 25, 2018 and paragraph 2 of Justice Kershman’s order of December 6, 2018, both of which would have resulted in the children’s return to Ottawa, I do find that she has undermined the court process by wilful non-cooperation and non-disclosure. These actions could, viewed in their totality, constitute contempt, however I defer any such finding until the return of this matter pursuant to my below order. The mother has unlawfully withheld the children from their father from the time he ceased to consent to them being in Ethiopia on September 20, 2017. She cannot ignore court orders and the court’s processes with impunity.
49The mother testified that she is willing to do all that she can to comply with any court order which would result in the return of her children to Canada. She testified further that she believed there would be no issue with her going to Ethiopia and bringing the children back with her. She expressed being very confident that her mother would give the children to her, and that the Ethiopian court order would present no problem as the grandmother would have a parent to whom “custody could be transferred”. The mother indicated that she would be prepared to go to court in Addis Ababa, if necessary, to demonstrate that she is present in the country and ready to resume care of the children. She testified, in fact, that the only thing preventing her from doing so is the surrender of her passport.
50The mother made many broad and unsupported allegations against the father in her affidavit evidence. When she was cross-examined on them, she provided no specifics, but for one incident in 2012 when the father was angry with her for staying out all night with Amanuel and not letting him know when she would be coming back. In the end, she stated that he had slapped her across the face and “it wasn’t that serious”. As with her affidavits, the mother’s viva voce testimony was riddled with contradictions and/or very general statements, such as he was “more serious” or “unhappy” after 2012, and that things were “more peaceful” before 2012. At one point, the mother testified that she agreed that she would move to Ottawa in September of 2018, because she thought the father “had changed”, but that she realized later that he hadn’t. This was completely contrary to her evidence that she understood Justice Swartz’s order to mean she only had to move to Ottawa once the children arrived from Ethiopia.
51In relation to the father, the mother stated in her testimony: “he is a good person/dad”. This characterization is much more in keeping with the evidence provided by the father, including copies of numerous text message exchanges with the mother between November of 2016 and September of 2017 where she advised him of how much the children were missing and wanting to see him. It also included some text messages between the father and Amanuel to the same effect. On the totality of the evidence before me, I am unable to conclude that the father would not be capable of caring for the children.
52Based on all of the evidence before me, I make a new order as follows:
Paragraph 6 of the temporary order of Justice Swartz dated September 25, 2018 is hereby varied such that the Respondent mother’s Ethiopian passport and Canadian Travel documents shall be returned to her;
The Respondent mother shall travel to Addis Ababa, Ethiopia at her own expense to retrieve the children of the marriage, Amanuel Efrem Legasse, born August 13, 2008 and Dawit Efrem Legasse born February 25, 2016, and bring them to Ottawa, Ontario Canada by no later than February 28, 2020;
Paragraph 5 of the temporary order of Justice Swartz dated September 25, 2018 is hereby rescinded. The Respondent mother shall not be required to move to or reside in Ottawa;
Paragraph 3 of the temporary order of Justice Kershman dated December 6, 2018 is hereby rescinded;
Paragraph 2 of the temporary order of Justice Kershman dated December 18, 2018 is hereby rescinded. Paragraph 1 of that order granting the Applicant father and the Respondent mother joint custody of the children shall remain in full force and effect;
The children shall reside in Ottawa, Ontario immediately upon their arrival in Canada;
If the Respondent mother is prepared to reside in Ottawa, Ontario at the time of the children’s arrival, the children shall reside with her pending a motion being heard by the Court to determine primary residence and parenting time for the children at a date to be determined in the future;
If the Respondent mother is not prepared to reside in Ottawa, Ontario at the time of the children’s arrival, the children shall reside with the Applicant father pending a motion being heard by the Court to determine primary residence and parenting time for the children at a date to be determined in the future;
The child, Amanuel, and if applicable, the child, Dawit, shall attend school in Ottawa, Ontario;
The matter shall return before me on March 2, 2020 at 2:00 p.m. to determine next steps. The Respondent mother is to attend this court date in person. If she fails to attend without just cause, she may be held in contempt by me and/or a warrant for her arrest may be issued; and,
If on March 2, 2020, it is determined that the children have not been returned to Ottawa, Ontario Canada by no later than February 28, 2020, as ordered, the Respondent mother may be held in contempt by me, and a penalty which may include a period of imprisonment may be imposed by me.
Costs
53If the parties are unable to agree on liability for costs of the contempt motion by January 10, 2020, counsel may make written submissions of no more than three pages, along with copies of their bills of costs and offers to settle, to me at intervals of 10 days from that date and I will make an order.
Justice Engelking
Date: December 18, 2019
Footnotes
- Affidavit of Selenat Kerby sworn on September 24, 2018, paragraph 33, Tab 3, Vol. 1 of the CR
- Affidavit of Selenat Kerby sworn on November 9, 2018, paragraph 13, Tab 12, Vol. 1 of the CR
- Affidavit of Kibrom Gebregergis Tsegay sworn on September 20, 2019, paragraph 10, Tab 5, Vol. 2 of the CR
- Janowski v. Zebrowski, 2019 ONSC 4046 at paragraph 24, subparagraphs a, b, d, h, i, j and o.
- Affidavit of Efrem Molla sworn December 18, 2018, Exhibit “G”, Tab 2, Vol. 2 of the CR
- Affidavit of Selenat Kebry sworn October 1, 2019, Exhibit “A”, Tab 6, Vol. 2 of the CR.
- Affidavit of Selenat Kebry sworn on November 9, 2018, Exhibit “C”, Tab 12, Vo. 1 of the CR
- Affidavit of Selenat Kebry sworn on November 9, 2018, Exhibit “D”, Tab 12, Vo. 1 of the CR
- Affidavit of Selenat Kebry sworn on November 9, 2018, Exhibit “E”, Tab 12, Vo. 1 of the CR
- Affidavit of Selenat Kebry sworn on November 9, 2018, Exhibit “F”, Tab 12, Vo. 1 of the CR