Court File and Parties

Court File No.: FS-16-0219 Date: 2020 05 15 Superior Court of Justice - Ontario

Re: Emuesiri Tejiri Medu, Applicant – and – Erere Ohwofasa Medu, Respondent

Before: McSweeney J.

Counsel: Hannah Kazman, for the Applicant Respondent, Self-Represented

Heard: Via Teleconference: April 28, 2020

Endorsement – Other Relief

[1] The Applicant mother moved initially to enforce the parties’ 2018 Final Order of Justice Shaw. Pursuant to that Order, she has sole custody and primary residence of the parties’ three children, aged 9, 8, and 5. By Endorsement dated April 21, 2020 (see Medu v Medu, 2020 ONSC 2465), I ordered a teleconference hearing as a matter of urgency based on her allegation that the Respondent father had overheld the children for approximately a month.

[2] On April 24, 2020 I commenced hearing of the motion via teleconference. Father at that time was in Sioux Lookout where he had taken the children and resided with them since late March. He acknowledged that he did not tell Applicant that he was taking the children to Sioux Lookout, which is in Northern Ontario, and that he did not have her consent to do so.

[3] On April 24, 2020 by endorsement I ordered a timeline for Father’s return of the children to Mother and directed daily phone contact between Mother and children on April 24, 25, and 26, 2020 (see Medu v. Medu, 2020 ONSC 2582).

[4] All other relief sought in the Applicant’s motion was adjourned to the continuation of the motion which was held by teleconference hearing on April 28, 2020.

The Notice of Motion

[5] The Applicant’s Notice of Motion sought various relief:

a. An Order permitting this Motion to be brought during the Suspension of Superior Court Justice Regular Operations on the grounds of urgency; b. An Order that the Respondent, Erere Ohwofasa Medu, shall return the children of the marriage, namely Anomioghene Medu born May 13, 2010, Eferodecha Medu born August 16, 2011 and Ometevwe Medu born April 1, 2014, (hereinafter the "Children") to the Applicant, Emuesiri Tejiri Medu, immediately. c. An Order that the Respondent, Erere Ohwofasa Medu, be required to adhere to the access schedule set out in the Order of Justice Shaw dated September 12, 2018. d. An Order that the Respondent's overnight access on Tuesdays and Thursdays shall be suspended until August 11, 2020, to afford the Applicant, Emuesiri Tejiri Medu, make up access for the 17 overnights of access that have been missed due to the Respondent's withholding the Children. e. An Order that in the event the Respondent, Erere Ohwofasa Medu, is unable to attend at the commencement of his access as set out in Order of Justice Shaw dated September 12, 2018, the parties shall mutually agree on an alternate pick up time and location. f. An Order that where the Respondent, Erere Ohwofasa Medu, does not pick up the children at the commencement of his access as set out in the Order of Justice Shaw dated September 12, 2018, and an alternative exchange date and time must be arranged there shall be no make-up access for any time missed by the Respondent and the Respondent shall be obliged to return the Children at the end of his access period. g. An Order that the Peel Regional Police, the Ontario Provincial Police, the R.C.M.P. or any other enforcement agency necessary shall be directed and authorized to enforce the terms of custody and access outlined in the Order of Justice Shaw dated September 12, 2018, for the benefit of the children of the marriage, namely Anomioghene Medu born May 13, 2010, Eferodecha Medu born August 16, 2011 and Ometevwe Medu born April 1, 2014. h. An Order for costs on a full recovery basis, inclusive of the applicable H.S.T. and all disbursements, to be enforceable through the Family Responsibility Office. i. An Order for such further and other relief as deemed just under the circumstances.

[6] On April 24, 2020 I granted the relief listed in 5(a) and (b) above.

The April 28 teleconference hearing

[7] The continued motion was heard by teleconference on April 28, 2020. Both parties attended the call. Ms Kazman represented the Applicant mother. Mr Medu, Respondent father, was self-represented.

[8] I heard the parties’ submissions on the following headings of relief: 5(c) adherence to final order access schedule; 5(d) make up time for Applicant’s missed access during Father’s withholding; 5(e ) and (f) what adjustment of pickup protocol is appropriate when Father cannot children up in person at the commencement of his access time per the final order; (d) clarification re whether late commencement of Father’s scheduled access entitles him to makeup time at some other date with the children; and (h) Applicant’s request for costs of the motion.

[9] The request for police enforcement became moot upon the return of the children by the Father on the timeline ordered by the court. The parties’ final order does not include a police enforcement clause. Any change to the final order will require a motion to vary.

[10] Nonetheless, it is appropriate for the court to consider what remedial order would be appropriate to address what I find was Respondent’s flagrant breach of the parties’ final order per the facts described in this and my two earlier endorsements.

[11] At the teleconference hearing I considered what access schedule would be best for the children between April 28 and the return of the motion on May 21, 2020. I invited each parent to make submissions based on their three young children’s needs, specifically the fact that they had not seen their mother in over a month, the longest absence in their lives;

[12] I also considered that, as the saying goes, “two wrongs don’t make a right”. That is, I explained to the parties my reluctance to order that their children spend the same long period away from Father as he kept them away from their Mother by overholding them.

Interim Order

[13] On an interim basis, as partial remedy for the Respondent’s overholding of the children after March break 2020 until April 27, 2020, I ordered as follows:

[14] Children shall remain in care of the Applicant mother from until April 27, 2020 until Friday April 15, 2020 consecutively;

[15] On Friday April 15, 2020, the Respondent Father will pick up the children at 3:35 pm from the Applicant mother at the YMCA parking lot located at 20 Union Street, Brampton, ON L6V 1R2, same Brampton YMCA as previous endorsement

[16] Father confirmed at the teleconference, and is hereby ordered, to pick up the children in person, at that time and place, and not to send any other person to do so on his behalf.

[17] On Tuesday May 19, 2020 at 9 am, the Respondent will return the children to the Applicant mother at the same YMCA location. Once again, he agreed, and is hereby ordered, to attend the drop-off personally, and to be at the drop-off location on time at 9 am.

[18] I direct that Respondent father may bring his partner, whom the parties refer to as “Ms. Patricia”, to pick up and drop-offs if he wishes, however she should remain in his car, or otherwise in the background, while the children move in or out of their parents’ vehicles.

Motion adjourned to continue May 21, 2020 at 10:30 am

[19] The parties are directed to attend the continuation and conclusion of this motion on May 21, 2020 at 10:30 am by teleconference hearing. Details of the telephone numbers will be provided to the parties via email by the court.

[20] At the May 21, 2020 reattendance, the court will hear from the Applicant as to what further overnight time with her is proposed as remedy for the parties’ three children in light of their recent overholding by the Respondent.

[21] With respect to relief sought regarding compliance with the parties’ final order, the parties are expected to comply fully with the final order of Justice Shaw unless the court orders otherwise.

[22] Changes to a final order require a motion to vary.

[23] Temporary changes required during the COVID-19 pandemic, which are required to enable parties to comply with an access schedule in a final order, however, may be ordered by the court as a temporary variation. For example, where children are not attending school, which is the transfer location in the final order, an interim variation order may specify an alternate transfer location during school and daycare closure.

[24] The court invites submissions from both parties on May 21, 2020 on the issue of temporary changes needed to enable compliance with the schedule in the final order.

[25] On the issue of who can pick up or drop-off the children as required by the parties’ access schedule, the Respondent has emphasized his difficulty in doing exchanges in person when his work schedule conflicts.

[26] The parties are advised that in the absence of a restriction in the parties’ final order prohibiting them doing so, it is generally reasonable for both parents to each designate a relative, friend or partner who is known to the children, to be able to pick them up at the scheduled times when the parent is unable to do so. As a courtesy to the other parent, it is appropriate to advise the other parent in advance of who will be picking up or dropping off the children.

[27] I would further observe to the parties that by designating someone to do the transfers they cannot attend in person; children’s’ schedules are often less interrupted than where the releasing parent does not permit the children to go with a designated person authorized by the other parent.

[28] In this separated family, the Applicant had questions about Respondent’s common law partner as his designate. He has now provided her with information as requested. Similarly, the Respondent has given the Applicant information he has asked for with regard to her roommates.

[29] Accordingly, the parties are advised that the court is prepared to hear brief submissions on May 21, 2020 prior to providing clarification to the parties with respect to their ability to designate someone to help them with access transfers and exchanges.

Next steps:

[30] The parties are directed to attend the continuation and conclusion of this motion on May 21, 2020 at 10:30 am by teleconference hearing. Details of the telephone numbers will be provided to the parties in advance via email by the court.

[31] The court’s cost decision will be released by separate endorsement.

[32] Upon the courthouse reopening to the public, each party shall file with the SCJ Brampton Trial Office a copy of all the material he or she delivered electronically for this motion, with proof of service, and pay the appropriate fees.

[33] This endorsement is effective when made. No formal order is required.

“Original signed on file”___ McSweeney J. Released: May 15, 2020