Ontario Superior Court of Justice
Between: Ardo Warsame, Applicant And: Muhammad Musa Abdulla, Respondent
Counsel: Aron David, for the Applicant Self-represented, Respondent
Heard: June 18, 2020
Endorsement
Faieta J.
1The Applicant mother brings this motion for, amongst other things, an Order that requires the Respondent father, who resides in Michigan, to immediately return their five-year old daughter, Aiya and that the Respondent father have no face to face access with Aiya.
Background
2The parties were married in April, 2012. At that time, the Applicant lived in Toronto and the Respondent resided in Lansing, Michigan. The Respondent moved to Toronto in July 2013. Their daughter, Aiya Musa Abdulla, was born on March 6, 2015. The parties separated on April 23, 2016. After their separation the Respondent returned to Lansing, Michigan where he works. He has remarried and lives with his spouse and two children.
3Under the terms of a Order granted on consent on July 3, 2019 (“the Consent Order”), the Applicant has sole custody of Aiya. The Respondent has access to Aiya as follows:
- Every second Friday of the month with access taking place in the Greater Toronto area from Friday pick-up, which usually occurs at 3 pm, at the Applicant’s residence, until Sunday evening (approximately 6 pm) drop off at the Applicant’s residence;
- The last Thursday of every month until Sunday at 3:30 pm with such access being permitted to take place at the residence of the Respondent in Lansing, Michigan;
- Winter break is equally shared with each party having one half as agreed upon between the parties;
- The parties share March break with the Respondent having Aiya for March break in even years and the Applicant having Aiya for March break in odd years;
- The parties share the two Eids with the Applicant having Aiya for the first Eid and the Respondent having Aiya for the second Eid;
- For 2020 onwards, the parties share the summer break with the usual access schedule being suspended for July and August only and the Respondent having access with Aiya for four weeks during the summer break, non-consecutive, unless otherwise agreed upon by the parties. The specific weeks shall be arranged between the parties by April 30th each year;
- The Respondent may travel with Aiya during his parenting time with her on condition that he provide the Applicant with a copy of the itinerary and contact information at which he can be reached during the vacation.
4Until the COVID-19 pandemic, the parties have complied with the Consent Order.
5The Respondent last saw Aiya on March 21, 2020 after he returned her to the Applicant at the end of March break.
6Thereafter the Applicant refused to permit Aiya to travel with the Respondent to his home in Michigan. She was concerned for Aiya’s health as it is her belief that the social distancing requirements in the United States have loosened. The Applicant was also concerned that Aiya would have to be quarantined for 14 days upon her return to Canada in the event that she went to Michigan in accordance with a federal emergency order.
7The Respondent states that the Applicant refused to allow him to exercise his right of access in Toronto. The Applicant states that she did not refuse to permit the Respondent to have access to Aiya. However, the Applicant imposed a condition not found in the Consent Order that required the Respondent to provide proof that he had booked a hotel in Ontario before picked up Aiya. The Applicant states that she imposed this condition because about one year prior to the issuance of the Consent Order, the Respondent had taken Aiya to his home in Michigan rather than remain in the Toronto area without notifying the Applicant of his intentions.
8The Respondent states that the Applicant told him on a few occasions that he would be able to see Aiya “when COVID is over”.
9On June 12, 2020 the Respondent emailed a copy of his Toronto hotel itinerary for the upcoming weekend to the Applicant. The Respondent picked up Aiya from the Applicant on June 12, 2020. On June 14, 2020 the Respondent emailed the Applicant to say that Aiya was with him at his home in Michigan and would be staying at his home until August 3, 2020 in order to make up lost access time and the upcoming four-week vacation time. His email stated:
I will not be reading any angry texts or getting any angry calls, however you are free to talk with Aiya. If my phone is bogged down by negative threats, I may not see your requests to talk to Aiya.
10The Respondent denies that his removal of Aiya to Michigan on June 12, 2020 was contrary to the Consent Order on the basis that the Applicant had not complied with the access schedule in the Consent Order since March, 2020.
11The Respondent states that he wanted to see Aiya for an extended period to avoid her from having to repeatedly enter quarantine upon her return to Toronto. He states that Aiya did not experience any negative impact when she stayed with him for up to one week in the past during March break and Winter break. Over the last week, the Applicant has spoken with Aiya on several occasions. The Respondent acknowledges that Aiya has told the Applicant on more than one occasion that she misses her.
12The Applicant contacted the Toronto Police Service to seek their assistance in having Aiya returned to Toronto. She was advised that they could not provide assistance, nor contact the local Michigan police, without a police enforcement Order.
Analysis
13On June 15, 2020, Justice Shore found that the motion was presumptively urgent within the meaning of the Notice to Profession dated May 13, 2020 and scheduled it for a hearing. This finding is not disputed.
14I adopt the views expressed by Justice Pazaratz in Ribeiro v Wright, 2020 ONSC 1829 at paras. 20-24:
20 If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion - but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time. They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing.
21 We will deal with COVID-19 parenting issues on a case-by-case basis.
a. The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols. b. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to - including social distancing; use of disinfectants; compliance with public safety directives; etc. c. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner. d. Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed. This is a very good time for both custodial and access parents to spend time with their child at home.
22 Everyone should be clear about expectations during this crisis. Parents want judges to protect their children. But with limited judicial resources and a rapidly changing landscape, we need parents to act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.
23 Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families. We know there’s a problem. What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.
24 In family court we are used to dealing with parenting disputes. But right now it’s not “business as usual” for any of us. The court system will always be here to deal with truly urgent matters, especially involving children. But that means there will be little time or tolerance for people who don’t take parenting responsibilities or COVID-19 seriously. [Emphasis added]
15Rather than working cooperatively during the COVID-19 pandemic, both parents are guilty of ignoring the Consent Order and exercising self-help. The Applicant should have brought a motion in March 2020 for an Order to temporarily vary the access provisions of the Consent Order before unilaterally taking such action. The Respondent should have brought a motion for make up access time before unilaterally attempting to take such action.
16The best interests of Aiya are paramount. Given that: 1) Aiya’s relationship with her father is important; 2) Aiya has been denied access to her father for a few months contrary to the terms of the Consent Order; 3) it is unclear when COVID-19 travel restrictions will end, it is my view that it is in Aiya’s best interests to remain with the Respondent for another eight days and then be returned to the Applicant by 3 pm on June 24, 2020. The Respondent will thereafter be permitted to have parenting time with Aiya within the Province of Ontario from 3 pm on Friday July 23, 2020 until 6 pm on Sunday, July 26, 2020 and from 3 pm on Friday August 28, 2020 until 6 pm on Sunday, August 30, 2020. Given the Respondent’s past behaviour, trust is a concern. To that end, such access will not be permitted unless the Respondent deposits his passport with the Applicant. The Respondent asks that the four weeks of summer access be made up in the future. That issue, and any other issue related to access, can be addressed at a case conference to be held on August 26, 2020.
Order
17I grant the following Order:
The Respondent, Muhammad Musa Abdulla, shall return the child, Aiya Musa Abdulla, born March 6, 2015, to the Applicant, Ardo Warsame, at her address 2089 Lawrence Avenue West, Apartment 305, Toronto, Ontario, M9N 1H8, by 3 pm on June 26, 2020;
The Respondent, Muhammad Musa Abdulla, shall not remove the child, Aiya Musa Abdulla, born March 6, 2015, from the Province of Ontario, without the prior written consent of the Applicant, Ardo Warsame, or further Order of this Court;
The Respondent, Muhammad Musa Abdulla, shall have access with the child, Aiya Musa Abdulla, born March 6, 2015 within the Province of Ontario, upon delivering his passport to the Applicant at pick-up until Aiya’s return: a) from 3 pm on Friday July 23, 2020 until 6 pm on Sunday, July 26, 2020 with pick-up and drop-off occurring at the Applicant’s residence, 2089 Lawrence Avenue West, Apartment 305, Toronto, Ontario, M9N 1H8; and, b) from 3 pm on Friday August 28, 2020 until 6 pm on Sunday, August 30, 2020 with pick-up and drop-off occurring at the Applicant’s residence, 2089 Lawrence Avenue West, Apartment 305, Toronto, Ontario, M9N 1H8.
The Toronto Police, Ontario Provincial Police, Royal Canadian Mounted Police and any other police or law enforcement agency with jurisdiction in any area where it appears that the child, Aiya Musa Abdulla, may be are hereby directed to enforce the terms of this Court Order pursuant to s.36 of the Children’s Law Reform Act;
Success on this motion is divided and there shall be no order as to costs.
The parties shall attend a case conference on August 26, 2020 at 9:15 am to be held by teleconference;
This Order takes immediate effect without a formal Order being signed and entered.
Faieta J.
Date: June 18, 2020