COURT FILE NO.: FC-19-1098
DATE: 20200515
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Alex Ade-Ajayi, Applicant
AND:
Mary-Theresa Ngure, Respondent
BEFORE: The Honourable Madam Justice R.A. Wildman
COUNSEL: James Bennett, Counsel for the Applicant
Respondent self-represented
HEARD: In Writing
ENDORSEMENT
As a result of the current COVID-19 pandemic, Superior Court of Justice (“the Superior Court”) operations are limited at this time, as set out in the Notice to Profession, the Public and Media regarding Civil and Family Proceedings of the Chief Justice of Ontario. Further information about the matters currently being dealt with by the Superior Court is available on the Superior Court’s website at https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/#PROVINCIAL_NOTICE.
This is a 14B motion that has been sent to me for review remotely. As I am not in the courthouse, I do not have access to the full court file and am relying solely on the information provided to me by the parties for today’s hearing.
This motion relates to two children, Folusho Ade-Ajayi (dob August 20, 2004) and Tinuke Ade-Ajayi (dob March 3, 2006). Ms. Ngure acknowledges that the children have been living with their father since August 2014. She says she has access with them on alternate weekends and holidays.
Both parties have raised various issues in the voluminous materials filed. Ms. Ngure says that the children began living with Mr. Ade-Ajayi in August of 2014, when they went for an access visit and he refused to return them. She says the court ordered an investigation by the Office of the Children’s Lawyer (OCL) on January 5, 2015 and requests that I order that this investigation be completed. There is already a Motion to Change before the court, which proceeded to a DRO hearing on March 11, 2020.
Despite recommendations by the DRO, the parties were unable to resolve anything and a settlement conference was scheduled before a judge for August 5, 2020. Given the current limited operations of the court, it is unclear whether that conference will need to be adjourned but, unless the parties reach an agreement, it will proceed at some point. The court will address the parenting issues and the 5-year-old OCL order at that conference. I note that the DRO endorsed “If there is no substantial reason for the OCL to become involved then it is not an order that needs to be made”. Nothing in the material filed by either party raised an urgent issue related to custody, access or the OCL that would qualify for court intervention prior to the August 5 settlement conference.
However, what is urgent is the issue of ongoing child support and arrears being collected by FRO. Apparently, on January 18, 2013, Mr. Ade-Ajayi was ordered to pay Ms. Ngure approximately $20,000 in arrears of support for 2008-12, and ongoing support of $524 per month. I do not have a copy of that order but the DRO endorsement clarifies that it was made as a result of an uncontested trial, in which Mr. Ade-Ajayi did not participate. Mr. Ade-Ajayi says that the order was based on an unrealistic imputed income.
In any event, both parties agree that the children went to live with Mr. Ade-Ajayi in 2014 and have remained in his primary care ever since. It appears that the original January 18 2013 order is still in effect, as Mr. Ade-Ajayi has filed a letter from the Family Responsibility Office (“FRO”) confirming that they continue to enforce that order. According to Mr. Ade-Ajayi, Ms. Ngure refuses to consent to a change to that order and has collected various amounts over the years since the children came to live with him, primarily as a result of federal garnishments. For example, he says that she received $11,210.38 in 2019. His immediate concern is that, as a result of a federal garnishment, FRO is collecting monies payable to him from the Canadian government for emergency pandemic relief. He says this totals $1,327.46 since the pandemic began, including an emergency Canada Child Benefit GST payment in April to alleviate economic hardship for the children.
Mr. Ade-Ajayi also points out that Ms. Ngure has paid him no child support since the children have come to live with him.
Although Mr. Ade-Ajayi says the children are enduring economic hardship as a result of government benefits being sent to their mother for ongoing support and arrears, he does not set out his current financial situation and how he has been impacted by the pandemic. The Court is not clear about whether or not he is working or continuing to receive an income. Ms. Ngure claims that he is “driving a high end luxury lexus” and that “He owns a boat and holds lavish parties on the boat while claiming to be unfit to work”.
No doubt all of this will be addressed as part of the Motion to Change. However, what is clear is that Ms. Ngure should not be receiving ongoing child support, if the children are living primarily with Mr. Ade-Ajayi. She should also not be receiving any emergency benefits that are being provided by the government for the children’s needs during this pandemic. The priority is the children’s immediate needs, not repayment of arrears that are under dispute or ongoing support for children who are not living with her.
As the Family Responsibility Office was not served with this motion, the court is limited in what orders can be made related to enforcement. However, in the current circumstances, I am prepared to order that the January 18, 2013 support order being enforced by FRO is temporarily stayed. Hopefully FRO will consent to returning any money it has collected during this pandemic to Mr. Ade-Ajayi, if it has not yet been paid to Ms. Ngure, as she claims. If FRO requires a court order to have that happen, and waives any need to have been served with the request, I am prepared to say that this endorsement should be interpreted as providing them with authority to return any monies collected after March 19, 2020 to Mr. Ade-Ajayi, if they are still be held by FRO.
Mr. Bennett should ensure that FRO is served with a copy of this endorsement and an SDO, which should stop any ongoing enforcement. Once the Motion to Change is dealt with by the court, and the court has made a new order for the proper amount of ongoing support and arrears, FRO will be able to adjust its records accordingly and determine what, if any, ongoing enforcement needs to continue against either party.
Other requested orders
The other issues raised by the parties do not meet the definition of “urgency” or “pressing” to qualify for service at this time.
Regarding the father’s requested orders, the court cannot order that “enforcement by FRO be terminated” without FRO being served and without the child support issues being determined in the Motion to Change. The court is also not prepared to deal with the requests that past payments made to Ms. Ngure be returned, until the Motion to Change is completed. The issues of disclosure are not urgent and will be dealt with in the Motion to Change, as will the request for costs. I am prepared to reserve the question of costs to the Motion to Change, subject to my comments below.
Regarding the mother’s requested orders, as she has now signed the Notice to Act in Person, the request to have Ms. Goldberg Schreiber remove herself from the file is no longer necessary. As mentioned previously, the requests related to the OCL will be dealt with at the settlement conference, as will the issue of costs.
Comments regarding the behaviour of the parties
While it is uncomfortable to comment negatively about the parties, particularly during what is, I am sure, a very difficult and stressful time for everyone, it is unfair for the court not to give each of them some guidance about appropriate behaviour in court proceedings. Hopefully, the parties will understand that these comments are intended as constructive suggestions to educate them about future court filings rather than to chastise them for mistakes made when, perhaps, they did not know any better.
First, for the benefit to Ms. Ngure, the court expects people to accede to reasonable requests from the other side. Failure to do so impacts on the credibility of a litigant and will likely attract cost consequences, even if a party is self-represented. Although I am not making a cost order today, I am reserving the issue of costs of today’s proceedings to the judge at the settlement conference or final hearing.
This matter has taken several hours today and should not have been necessary. It is hard to understand why Ms. Ngure would not, at the very least, consent to an order terminating Mr. Ade-Ajayi’s ongoing child support obligations during the time that the children have been living with him. Her failure to do so will likely attract a cost award, unless she has information to provide to the presiding judge to justify her lack of consent. In future, if reasonable requests such as this are made, she should consider trying to accommodate them, rather than risk a cost award by requiring Mr. Ade-Ajayi to incur further legal costs to obtain the requested order.
Next, for the benefit of Mr. Aje-Ajayi, I would respectfully suggest that he and his counsel review the opening paragraph of Justice Marvin Kurz’s recent decision in Alsawwah v. Afifi, 2020 ONC 2883 (SCJ), as well as his very helpful comments under the heading “A Word or two About Rhetorical Excess in Family Litigation” beginning at paragraph 103. In particular, I direct them to point number 5 in paragraph 108: Affidavits that read as argument rather than a recitation of facts are not persuasive. They speak to careless drafting.
Affidavits are intended to set out facts for the court. Mr. Ade-Ajuri’s opinions and unflattering characterizations of Ms. Ngure’s conduct were not helpful. The name-calling and adversarial rhetoric were not appropriate or persuasive. Today’s order is being made in spite of the tone of Mr. Ade-Ajuri’s material, not because of it.
Ms. Ngure is to be congratulated for not responding in kind. Her restraint in focusing on the issues, rather than engaging in an unproductive war of words, is something that should be taken into account by the judge who ultimately will be deciding costs, if the parties cannot agree.
Order
- Order to go:
(1) The child support and arrears provisions of the order of January 18, 2013 are stayed until further court order.
(2) To the extent they are able to do so, the Family Responsibility Office is requested to return any payments collected since March 19, 2020 to Mr. Ade-Ajayi and adjust the Statement of Arrears accordingly.
(3) As Ms. Ngure has filed a Notice of Change of Representation, Ms. Goldberg-Schrieber is removed as counsel of record for the Respondent.
(4) Costs for today’s hearing (one-half day) are reserved to the final settlement or judge conducting the hearing of the Motion to Change.
(5) All other matters raised in today’s 14B motions are to be dealt with in the Motion to Change, currently next scheduled to be before the court for a settlement conference on August 5, 2020.
Reasons Deemed an Order
- In the circumstances of the COVID-19 emergency, this Endorsement is deemed to be an Order of the Court that is operative and enforceable from the time of its release, pending the issuance and entering of a formal, typed Order.
Wildman J.
Date: May 15, 2020