SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Saheedat Olasumbo Abbas, Applicant
AND
Adeyinka Ayoade, Respondent
BEFORE: Blishen J.
COUNSEL: Kristie Smith for the Applicant
Isaac Sechere, for the Respondent
HEARD: September 15, 2020
ENDORSEMENT
Introduction
[1]
Introduction
This is an interim mobility motion.
2The applicant mother requests a temporary order that the primary residence of the parties’ two children remain with her. She also seeks the court’s permission to relocate to St. John’s, Newfoundland in order to pursue an employment opportunity which qualifies her and through her the children, to apply for a provincial immigration nominee program, leading to permanent resident status in Canada.
3The parties are originally from Nigeria and came to Canada as refugee claimants in July 2018. They separated in May 2020.
4On August 26, 2020, the applicant mother, Ms. Abbas, filed an Application requesting orders for custody and child support with respect to the parties two children, Zarah, age 5 (born December 13, 2014) and Zabreen, aged 2 (born December 19, 2017). At the same time, she filed a Notice of Motion and Affidavit requesting, on an urgent basis, an order that the primary residence
of the children be with her and she be permitted to relocate to St. John’s, Newfoundland. She also requested an order for child support and the sharing of section 7 expenses.
5On September 8, 2020, Justice Doyle found the temporary parenting arrangements and the mother’s request to relocate to St. John’s, urgent, due to the COVID-19 global pandemic, pursuant to the Notice to the Profession issued by the Chief Justice of the Superior Court on March 15, 2020 and the further Notice issued by the Local Administrative Judge on April 15, 2020.
6Although the motion was pending, the mother flew to St. John’s with the children on September 7, 2020 in order to preserve her employment opportunity.
7On this motion, the question is whether it is in the best interests of Zarah and Zabreen to remain in the primary care of their mother and relocate to St. John’s, Newfoundland on a temporary basis.
Background
[8]
Background
The parties married in Lagos, Nigeria on September 17, 2014. Their relationship was characterized by conflict. In the late summer or early fall of 2017, Ms. Abbas, who was five months pregnant with Zabreen, took Zarah and left the matrimonial home, alleging domestic violence by Mr. Ayoade. She left Zarah with her parents and travelled to the U.S. for Zabreen’s birth. Mr. Ayoade filed a divorce application in Nigeria. The parties subsequently reunited in the
U.S. and reconciled prior to Zabreen’s birth on December 19, 2017. They returned to Nigeria in January 2018. The divorce application was withdrawn.
9In July 2018, the family arrived in Canada as refugee claimants and retained an immigration lawyer.
10In March 2020, Ms. Abbas told her husband she wished to end the relationship and would not renew their joint lease which was to end in June.
11She raised the issue of the lease and a plan for separation again on May 11, 2020. Mr. Ayoade did not want to discuss the situation. Ms. Abbas began to draft a separation agreement online which led to conflict between the parties. Ms. Abbas took the children to a friend’s home and returned to the residence the following day. Again, the situation escalated. Ms. Abbas alleges
Mr. Ayoade yelled at her, hit her and accused her of abduction. She called the police for assistance and provided a statement but declined to press charges. Ms. Abbas left the residence. The children have remained in her full- time care since separation with limited contact by their father.
12Mr. Ayoade denies any domestic violence and states the allegations are part of a pattern exhibited by Ms. Abbas whenever she wishes to take the children away, as she did in 2017.
13After separation, Mr. Ayoade retained a new immigration lawyer who wrote to the Immigration and Refugee Board - Refugee Protection Division on Mr. Ayoade’s behalf, requesting a severance of his claim for protection from the rest of his family. The letter indicated the parties no longer lived together and Mr. Ayoade did not feel comfortable or safe with Ms. Abbas. The breakdown in the marriage was caused by Ms. Abbas’ disapproval of her husband’s bi-sexuality. Mr. Ayoade would be uncomfortable testifying before the Refugee Protection Division about his sexuality with his wife present. The refugee claims were severed. At Mr. Ayoade’s request, the children remained on their mother’s claim. Both claims are still pending and no hearing dates have been sent.
14Once Mr. Ayoade severed his claim from that of his wife and children, Ms. Abbas began to research other alternatives as possible pathways to permanent residency for herself and the children. In late July, she learned of a provincial nominee program in Newfoundland available to skilled workers, including refugee claimants, which can provide a path to permanent resident status in Canada. Based on her research, Ms. Abbas indicated the Newfoundland program is the only provincial program accepting refugee applicants at this time.
15Ms. Abbas was employed as a financial advisor in a permanent, full-time position at Scotiabank in Ottawa. Coincidentally in July, she saw a posting for a full-time financial advisor at a Scotiabank branch in St. John’s, Newfoundland. The posting did not have a start date due to COVID-19 restrictions. Given that she had been employed with Scotiabank for less than a year, she had to seek special approval from management in order to apply for a transfer. In early August, her manager provided approval and Ms. Abbas submitted a transfer application. On August 12, Ms. Abbas notified Mr. Ayoade through counsel of the opportunity to relocate with the children to Newfoundland.
16Between the physical separation of the parties on May 11, 2020 and the letter regarding the possible relocation on August 12, 2020, Mr. Ayoade had not seen the children. It is Ms. Abbas’ evidence that the lack of contact was his choice and consistent with his indication on separation that she could take the children – he did not care. It is also consistent with his severing not just her, but the children as well, from his refugee claim.
17Mr. Ayoade requested some telephone contact in May but states he stopped making requests due to Ms. Abbas’ hostility and insults. When Zarah expressed an interest in speaking with her father in June, Ms. Abbas had difficulty reaching Mr. Ayoade but after an email exchange, a call was arranged on June 28. In July, there was correspondence between counsel regarding possible access. Ms. Abbas was not opposed to access and requested a proposal regarding a possible schedule. None was forthcoming until Mr. Ayoade was notified on August 12 of Ms. Abbas’ request to relocate to Newfoundland with the children. On August 17, Mr. Ayoade’s counsel requested further details about the opportunity for relocation and requested access for a day visit once every two weeks.
18Thereafter, Mr. Ayoade had a telephone call with the children on the weekend of August 15-16 and a five hour in person visit with the children on August 23. This was the first visit since the date of separation.
19On August 20, Ms. Abbas was formally offered a job as financial advisor at the Scotiabank branch in St. John’s, Newfoundland, with a start date of September 23, 2020. She immediately provided further information to Mr. Ayoade through counsel with respect to the opportunity to relocate, including details as to: the job offer, start date, lease of accommodation and school for Zarah. Her counsel requested Mr. Ayoade’s position with respect to the proposed relocation and suggested a four-way settlement meeting. Mr. Ayoade’s counsel then requested further evidence of the job offer, the lease and the school registration, which was provided on August 25. There was no response from Mr. Ayoade or his counsel regarding a settlement meeting. Ms. Abbas filed her Application, Notice of Motion and Affidavit on August 26, 2020.
20On August 27, Mr. Ayoade’s counsel further questioned the plans for relocation and requested a visit with the children on August 30 from noon to 5:00 p.m. As prior plans had been made, Ms. Abbas agreed to Zoom access on August 30. Since that time, the only requests for
access have been via Zoom, which counsel indicates is Mr. Ayoade’s preference. He had Zoom access with the girls on August 30, September 6 and September 7.
21Having received no response from Mr. Ayoade regarding a plan for the children to remain in Ottawa with him, Ms. Abbas requested a face to face meeting with Mr. Ayoade to discuss her proposed relocation with the children. Mr. Ayoade declined but indicated he would do a Zoom call. On September 3, the parties discussed the situation. Ms. Abbas explained her existing lease and utility accounts in Ottawa would terminate on September 7 as a new tenant was moving in on that day. She asked Mr. Ayoade whether he agreed to her leaving and if not, what was his plan for the children to remain in Ottawa with him. Mr. Ayoade did not respond nor provide any information about a plan for the children to remain in Ottawa. Given the lack of response and the time constraints, Ms. Abbas flew to St. John’s with the children on September 7. She and the children had to quarantine for 14 days in St. John’s prior to her commencing employment on September 23. Ms. Abbas left with her motion pending and without a resolution, either on consent or by court order.
22Immediately upon arrival Ms. Abbas sent Mr. Ayoade confirmation of their safe arrival and further details as to their accommodations, school and daycare. She proposed daily telephone access. Her Notice of Motion also requests an order for generous, liberal Zoom access and in person access during holiday periods in Ottawa and in St. John’s, upon reasonable notice.
Positions of the Parties
[23]
Positions of the Parties
On this motion, the mother is requesting a temporary order that the children have their primary residence with her and that she be permitted to relocate with them to St. Johns, Newfoundland. She argues this is in the children’s best interests as she has always been their primary caregiver, has made the important decisions for them throughout their lives and has continued to do so since separation. The children are doing well in her care and she should be permitted to relocate with them in order to advance her goal of obtaining permanent resident status for herself and the children in Canada. Further, the father is not requesting an order that the children’s primary residence be with him in Ottawa. As was noted by his counsel, his preference is for Zoom access at this time.
24The father argues the reason for the move as a pathway to permanent resident status is not possible while there are still outstanding custody and access issues. Further, Ms. Abbas still has a refugee claim outstanding which could be successful at which point she could apply for the Immigration Nominee Program in Ontario. She has moved the children on mere speculation and should have waited for a trial of the issues.
Law
[25]
Law
On a temporary mobility motion the overall framework within which a request is to be considered is the best interests of the child.
26On an originating application for custody or access, an interim order may be made pursuant to s.16(2) of the Divorce Act, Act (R.S.C., 1985, c. 3 (2nd Supp.)). In making such an order, s.16(8) provides that the court shall take into consideration only the best interests of the child as determined by reference to the conditions, means, needs and other circumstances of the child.
27In making any interim order for custody the court is not to consider the past conduct of any person unless that conduct is relevant to the ability of the person to act as the parent of the child (see Divorce Act s. 16(9)). Further, pursuant to s.16(10) the courts must give effect to the principle that the child should have as much contact with each spouse as is consistent with the best interests of the child. The court must take into consideration the willingness of the person who is seeking custody to facilitate that contact.
28Although these parties were married, the relevant best interest factors outlined under s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 may be considered as follows:
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28,
s. 2.
29The leading case on mobility issues remains Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] SCJ No. 52, 19 RFL (4th) 177 (S.C.C.) which was an application to vary an existing custody/access order. That case emphasizes the fact that each case turns on its own unique circumstances with the only issue being the best interests of the child in the particular circumstances of the case. The focus must always be on the best interests of the child, not on the interests and rights of the parents.
30In para. 49, McLachlin J. as she then was, writing for the majority stated:
- More particularly the judge should consider, inter alia:
(a) the existing custody arrangement and relationship between the child and the custodial parent;
(b) the existing access arrangement and the relationship between the child and the access parent;
(c) the desirability of maximizing contact between the child and both parents;
(d) the views of the child;
(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
(f) disruption to the child of a change in custody;
(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
31The legal principles applicable to interim motions on mobility are well settled and are outlined in Plumley v. Plumley, 1999 CanLII 13990 (ON SC) where the court stated at para. 7:
It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:
A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.
Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.
32In Geoffrion v. Bélanger, 2017 ONSC 5349 the court referred to Datars v. Graham, 2007 CanLII 34430, 41 RFL (651) where the court stated at para. 16:
The problem that this court faces on this motion, however, as McSorley J. observed in Kennedy, is that it is difficult if not impossible in most cases to complete the extensive child-focused inquiry required under Gordon v. Goertz on the typically conflicting and incomplete affidavit evidence that is often available to the court on interim motions. Consequently, the general reluctance of the court to effect fundamental changes in a child's lifestyle on interim motions has resulted in a slightly more restrictive approach to interim mobility cases, one that recognizes the short-term nature of interim orders and the summary nature of interim motions. As well, since the decision on an interim motion in a mobility case will often strongly influence the final outcome, particularly where relocation is permitted, caution is called for, especially since even more disruption may be caused in a child’s life if an interim order permitting the move is later reversed after trial: Downey v. Sterling, [2006] O.N.C.J. 490; Goodship v. McMaster, 2003 CanLII 53670 (ON CJ), [2003]
O.J. No. 4255 (Ont. C.J.) .
33Recently Akbarali J. reviewed the law on interim mobility motions in Yenovkian v. Gulian, 2018 ONSC 5331. Considering all the circumstances of that case, and in the best interests of the children, the mother was permitted to move with the children back to England on a temporary basis pending trial of the custody and access issues in Ontario. The court considered, inter alia, the following in permitting the move:
(a) the evidence of the mother had been the children’s primary caregiver;
(b) the father had exercised less access than he could have and that was available to him;
(c) the mother had an appropriate interim plan for the care of the children, whereas there was an absence of any workable plan put forward by the father for the children;
(d) the mother did not have permanent legal status in Canada, she had visitor’s status only which was about to expire;
(e) allowing the move would be less disruptive to the children.
(see Yenovkian v. Gulian at paras. 35, 42, 43, 48, 54, and 57-58.)
Analysis
[34]
Analysis
As was stated by the court in Datars v. Graham, supra, it is not possible in this case to complete an extensive child focussed inquiry on the conflicting and incomplete affidavit evidence provided to me on this interim motion. I note, in particular, the absence of any concrete plan presented by the father. His affidavit evidence focussed on the flaws in the mother’s plan and highlighted certain argued factual inaccuracies in her evidence. There are credibility issues with respect to both parties.
35There are gaps in the evidentiary record on this interim motion as follows:
What was the basis for the family’s application to the Immigration and Refugee Board? Mr. Ayoade refers to his bisexuality but also mentions female genital mutilation. He argues Ms. Abbas and the children still have a strong refugee claim, although it has now been severed from his claim. The question remains what was the basis for the application and who were the applicants? Ms. Abbas argues the main applicant was Mr. Ayoade based on his persecution. The application was not provided on the motion.
No information was provided from the Immigration and Refugee Board as to the implications of Mr. Ayoade’s request to sever his claim from that of Ms. Abbas and the children.
Ms. Abbas’ claim and that of the children is at what stage of the refugee application process? What is the next step, and what is the timing? No information was provided.
Ms. Abbas’ affidavit indicates she would not be eligible to apply to the Provincial Nominee Program in Ontario if she is a refugee claimant with a pending application. She provided part of a document which appears to be from the Immigration and Refugee Board website indicating refugee claimants would “need to resolve their refugee claim before applying to OINP.” This evidence is unclear and can be given little weight.
Ms. Abbas deposed that if she and the children continued with their refugee claim and were refused, they would have to leave Canada in order to apply for the Provincial Nominee Program. Again, there is no direct evidence in this regard.
In support of his argument Mr. Ayoade attached part of a document which appears to be from the internet regarding the Newfoundland and Labrador Provincial Nominee Program. It indicates a skilled worker is not eligible for that program if “you have unresolved custody or child support disputes”. Again, this is inadequate evidence and can be given little weight. The question remains would a temporary order with respect to custody or child support be sufficient? Are there exceptions? What exactly are the criteria?
36In summary there are many unanswered questions specifically relating to Ms. Abba’s reason for moving to St. John’s.
37However, on this motion it is important to emphasize the only consideration is what is in the children’s best interests on a temporary basis. Ms. Abbas’s reason for relocating is only one aspect of the overall inquiry.
38Regarding Zarah and Zabreen’s best interests, based solely on the affidavit evidence provided, I make the following findings:
Although Mr. Ayoade was involved in caring for the children from time to time when the parties resided together, Ms. Abbas was the primary caregiver and made most of the important decisions for the children, including attending to their medical care and enrolling them in daycare and school. Since separation she has been their full-time caregiver, with minimal access sought or exercised by their father.
The children are safe and comfortable in their mother’s care. This is not contested by Mr. Ayoade.
Ms. Abbas made appropriate arrangements for the care of the children in St. John’s including locating housing, enrolling Zarah in school and enrolling both children in daycare. She shared all the details of these arrangements as they were made and invited Mr. Ayoade’s input.
Mr. Ayoade never suggested and did not argue that the primary residence of the children should be changed to him. He severed his refugee claim from the mother’s and indicated the children should remain on their mother’s claim. It is possible the outcome for his claim and children’s claim could be different. He could be ordered to leave, while the children could stay or vice versa.
Ms. Abbas is agreeable to facilitating access between Mr. Ayoade and the children both by Zoom and in person and provided a plan for access from her first relocation proposal. In addition, she proposed a four-way meeting to discuss her proposed move and his access, which Mr. Ayoade declined. He has not provided evidence as to the impact of the proposed move on his access relationship with the children nor has he provided any evidence as to whether he would be willing or able to move to Newfoundland or to visit the children in Newfoundland.
Ms. Abbas seeks the court’s permission to move in order to bolster her case for permanent resident status for herself and the children. She was able to obtain a transfer of her employment to St. John’s, Newfoundland in order to apply for the Newfoundland
Provincial Nominee Program as a skilled worker. As previously noted, it is not clear whether her application would be considered, given the outstanding custody and access issues. However, if she waited for a final resolution of all issues before the court, she would lose the job opportunity available to her now.
Although it is disruptive for the children to move from their community, school and daycare, they are very young, at five and two years of age. The children have only been in Canada since July 2018. COVID-19 has minimized community involvement for Zarah and Zabreen over the past six months, as it has for all children.
Mr. Ayoade presented no plan for the children to remain with him in Ottawa. It is unclear where they would live, whether it is suitable, where they would attend school and daycare or what contact the father would facilitate between the children and the mother.
Mr. Ayoade has paid only $200.00 in child support since separation. He has not contributed to Zarah’s dental expense nor did he have the children enrolled as beneficiaries of the health and dental plan through his employment.
Conclusion
[39]
Conclusion
Although Ms. Abbas left with the children prior to the court’s decision on this motion, she filed her application and brought this motion in advance. She has attorned to the jurisdiction of this court and this court will make the final determination as to what is in the long-term best interests of the children. She informed Mr. Ayoade of her proposed relocation and all the details of her plan. He presented no alternative plan other than to argue she should remain here until a final determination of the custody and access issues, which would have meant a loss of her job opportunity and a possible path to permanent resident status and stability for her and the children.
40Over the past four months since separation, Mr Ayoade has had telephone and Zoom access and one in person visit with his daughters. His preference has been for Zoom access. He does not contest the primary residence of the children remaining with Ms. Abbas. This has been the status quo. There is a strong probability Ms. Abbas will be the successful party as to the issue of primary residence and custody at trial.
41Despite the incomplete and conflicting affidavit evidence with respect to some of the facts and as to the basis upon which Ms. Abbas relocated, I find on a balance of probabilities it is in the children’s best interests to remain with their mother in St. John’s, Newfoundland on a temporary basis. I note Ms. Abbas is not requesting an order of sole custody at this time.
42I make the following temporary order:
The primary residence of the children Zarah Ayoade born December 13, 2014 and Zabreen Ayoade born December 19, 2017 shall be with the applicant mother.
The applicant mother is permitted to relocate to St. John’s, Newfoundland with the children.
The respondent father shall have generous and liberal video (e.g. Zoom) access with the children, as may be arranged between the parties a minimum of twice per week for one hour each. The length of the virtual access can be adjusted as agreed between the parties based on the children’s needs and interests.
The respondent father shall have telephone access as arranged between the parties on the days he does not have video access.
If requested by the respondent father, the applicant mother shall bring the children to Ottawa for in-person access with their father once prior to the return of this matter. The dates and times of that in-person access are to be arranged between the parties. The costs are to be equally shared.
On consent on a without prejudice basis, the father is to pay child support for the two children in the amount of $552.00 per month as per the Federal Child Support Guidelines, based on his projected income for 2020 of $36,503.00, commencing October 1, 2020 and on the first of each month thereafter. Adjustments based upon disclosure of Mr. Ayoade’s actual 2020 income and possible access costs, as well as retroactivity remain to be determined.
This matter is to return before this court for a Settlement Conference on a date to be set by the trial coordinator to be held prior to December 15, 2020. At that time the parties
are to provide the court with further evidence as outlined above regarding the refugee claim and the Provincial Immigration Nominee Programs. Detailed, complete Settlement Conference Briefs are to be filed including Offers to Settle, along with up-to-date Financial Statements with required attachments. A date should be obtained from trial co- ordination as soon as possible. The parties are encouraged to continue negotiations with a view to resolution without the necessity of further court involvement.
Costs
[43]
Costs
Ms. Abbas was the more successful party and is entitled to costs. If the parties cannot agree upon quantum, the applicant shall provide costs submissions not to exceed two pages plus a Bill of Costs and any Offers to Settle by October 9, 2020. The respondent is to provide his costs submissions not to exceed two pages plus a Bill of Costs and any Offers to Settle by October 23, 2020 and reply submissions by the applicant are due by October 30, 2020. Please forward the costs submissions by email to scj.assistants@ontario.ca.
Blishen J.
Date: September 28, 2020
COURT FILE NO.: FC-20-1174
DATE: 2020/09/28
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Saheedat Olasumbo Abbas, Applicant
AND
Adeyinka Ayoade, Respondent
BEFORE: Blishen J.
COUNSEL: Kristie Smith for the Applicant
Isaac Sechere, for the Respondent
ENDORSEMENT
Blishen J.
Released: September 28, 2020