Court File and Parties

COURT FILE NO.: FS-20-000137 DATE: 2021 03 05

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

ANDREAS JOHN TOUMA Appellant Gabriella Deokaram for the Appellant

- and -

DANIELLE ELIZABETH MORRISON Respondent Gail K. Macrae for the Respondent

HEARD: Via Zoom on January 7 and 12, 2021

REASONS FOR DECISION

Shaw J.

Introduction and Overview

[1] The Appellant, Andreas Touma, seeks to set aside the order of Clay J., dated November 13, 2020, dismissing his motion for interim shared custody and equal parenting time of his newborn son, who I shall refer to as either “the child” or “D”. He also seeks to set aside Clay J.’s order, dated November 27, 2020, dismissing his application to set aside the November 13, 2020 order.

[2] The motions judge ruled that, pursuant to rule 5(1)(b) of the Family Law Rules, O. Reg. 114/99 (“the Rules”), an application dealing with custody or access to a child must be started in the municipality where the child ordinarily resides. Clay J. found that there was no evidence that D, who was born October 16, 2020 and was one month old, resided in the Municipality of Peel. He held that the case should be commenced in Oshawa, where the child was born and where the Respondent/mother resides.

[3] The November 13, 2020 decision was made in chambers by Clay J. based on his review of the application and motion material filed by Mr. Touma. The Respondent, Ms. Morrison, was served the previous day and did not file any responding material.

[4] Following that order, Mr. Touma moved for an order that Clay J. recuse himself and that his order be set aside based on the ground that there was a reasonable apprehension of bias. Mr. Touma again requested that the court hear his motion for interim joint custody and shared parenting time on an urgent basis. He claimed that D had two habitual residences, and one was in Peel where Mr. Touma resides. Clay J. dismissed that application on November 25, 2020, and found that there was no reasonable apprehension of bias requiring that he recuse himself.

[5] For the reasons that follow, I dismiss the appeal.

Standard of Review

[6] It is not disputed that on questions of law the standard of review is one of correctness. With respect to questions of fact, an appellate court ought to defer to the motions judge and not interfere, unless there is a misapprehension of the facts based on the evidence resulting in a palpable and overriding error.

Review of the Proceedings and Decisions

[7] For the most part, the underlying facts in the matter are not in dispute. Mr. Touma and Ms. Morrison were involved in a relationship for a few months in 2016. The relationship resumed in September 2019. Ms. Morrison became pregnant in February 2020 and the relationship ended in March 2020. Their son, D, was born on October 16, 2020 in a hospital in Oshawa, where Ms. Morrison has lived since October 2019. Mr. Touma has lived in Mississauga, which is in the Region of Peel, (“Peel”) since 2004. Mr. Touma was present for the birth of D. Ms. Morrison left the hospital on October 18, 2020 with D and he has remained in her care since. It is not disputed that D has never spent any time with Mr. Touma in Peel.

[8] In his initial affidavit filed in support of his motion seeking parenting time on an urgent basis, Mr. Touma described some incidents of conflict that occurred in the hospital after D was born involving himself and some members of the hospital staff.

[9] According to Mr. Touma, he and Ms. Morrison agreed, prior to D’s birth, that he would spend 10 days at Ms. Morrison’s home to care for D. Following the birth, Ms. Morrison no longer agreed to that. According to Mr. Touma, he attended two of D’s medical appointments in Oshawa on October 20 and 22, 2020. He thereafter contacted Ms. Morrison daily, up to October 30, 2020, trying to arrange to have parenting time with D, but Ms. Morrison did not respond. Mr. Touma alleges that Ms. Morrison deliberately withheld D from him which is contrary to D’s best interest as it is necessary that his newborn son have bonding time with his father.

[10] As a result of his inability to make arrangements to see his newborn son, on November 11, 2020, Mr. Touma brought a motion on an urgent basis seeking interim joint custody and equal parenting time. In addition to his notice of motion and affidavit, Mr. Touma filed a Form 8 Application and a Form 35.1 Affidavit in Support of a Claim for Custody or Access. The material was served on Ms. Morrison on November 12, 2020 and was before Clay J. the following day.

[11] There are differences in the Form 8 and Form 35.1 that Mr. Touma attached to his appeal materials and the copies that Ms. Morrison says she was served with on November 12, 2020.

[12] Attached to Mr. Touma’s affidavit in support of this appeal, sworn on December 16, 2020, was a copy of the unissued Form 8 Application. On page three of that form, he states that Ms. Morrison lived in Oshawa since October 2019 and he lived in Peel since 2004. The form also states that he and Ms. Morrison never lived together. On the same page, he stated that their son resided in Peel and was living with both parties.

[13] Attached to one of the affidavits Ms. Morrison filed in reply to the appeal was a copy of page three of the Application she was served with, which appears to be different from page three of the Application attached to Mr. Touma’s affidavit. On page three of the Application she was served with, it states that the child was living in Peel, but it leaves blank the section that asked Mr. Touma to state with whom the child was living.

[14] On page one of the Form 35.1 attached to Mr. Touma’s affidavit, dated November 5, 2020, when asked to name the people with whom the child resides, he stated: “Applicant has excluded the Respondent from equal parenting time.” On page three of the form, when asked to identify the caregiver(s) with whom the child has lived since birth, he listed himself and Ms. Morrison, and stated that she had excluded him from exercising his equal parenting time.

[15] On page one of Mr. Touma’s Form 35.1 that was served on Ms. Morrison, the section to identify the names of all the people with whom the child resides was blank.

[16] It is not clear to me what version of Form 8 and Form 35.1 were before Clay J. when he had Mr. Touma’s materials before him in chambers. As noted by Clay J. in his reasons dated November 13, 2020, in the Application, Mr. Touma did not set out where the child lived and he also noted that Mr. Touma left that information off of the Form 35.1 affidavit. I presume, therefore, that the materials before Clay J. was the material that was served on Ms. Morrison and was attached to her affidavit.

[17] Clay J. found that Mr. Touma’s counsel knew that an application concerning custody of a child must be brought in the judicial district where the child resides. (Peel is located in the Central West judicial district.) He found that the residence of the child was intentionally withheld on the Form 8 and Form 35.1.

[18] Based on his review of Mr. Touma’s material, he concluded that it was clear that the child was living with Ms. Morrison since birth in Oshawa and that the application should be commenced in Oshawa. (Oshawa is located in the Central East judicial district.)

[19] In his reasons, Clay J. expressed concern that there was no evidence that Mr. Touma’s lawyer, Ms. Deokaram, tried to contact Ms. Morrison before bringing the motion, and that Ms. Morrison was served only the day earlier. He found that it was not an urgent matter. Clay J. also commented that the service of the motion record “must have caused unnecessary stress for the mother.” He also commented that he understood that Mr. Touma “has a strong desire to see the baby as soon as possible.” He also found that the material was served improperly as there was no order for service by email.

[20] Rather than appeal that decision, counsel for Mr. Touma filed another motion seeking an order Clay J. be recused and that his order dated November 13, 2020 be set aside on the basis that his reasons demonstrated a reasonable apprehension of bias against Mr. Touma. Mr. Touma also sought an order for interim shared custody of his son and for a shared parenting schedule.

[21] In his affidavit sworn November 18, 2020 filed in support of that motion, Mr. Touma alleged that there was no jurisdiction motion before Clay J. and, therefore, Clay J. had no authority to make a decision on that issue. He also swore that there was a breach of s. 15 of the Charter as Clay J.’s decision effectively found that a mother’s unilateral choice of where to give birth to her child, without the consent or approval of the father, would permit an extra benefit of the law to the mother as the mother can then determine the habitual residence of the child on the basis of where she gives birth. Mr. Touma asserted in his affidavit that a father who lives in a different geographic region from the mother could therefore never be found to be where the child is habitually resident. He alleged that this created an arbitrary and unequal benefit of the law in favour of mothers and gives the mother greater protection of the law.

[22] Mr. Touma also asserted that Clay J.’s comment that the application served the day before “must have caused unnecessary stress for the mother” raised a reasonable apprehension of bias in favour of Ms. Morrison as he failed to comment on Mr. Touma’s distress in not being able to see his son. He also alleged that at law he is entitled to equal parenting time with D unless such an order is not in the child’s best interest. His position was that Clay J.’s comments made him an advocate for Ms. Morrison.

[23] Mr. Touma asserted that he was acting in his son’s best interest in bringing a motion rather than resorting to self-help by taking his son with him after a doctor’s appointment he attended on October 22, 2020. He also pointed to the fact that he did not contact the police to report that Ms. Morrison had kidnapped their son by wilfully refusing him parenting time, as evidence that he was acting in D’s best interest.

[24] He also stated in his affidavit that Clay J.’s bias was evident in his comments about the method by which Ms. Morrison was served.

[25] Clay J. reviewed the material filed by Mr. Touma in chambers on November 25, 2020. Ms. Morrison was served but did not file any responding materials.

[26] In his reasons, Clay J. indicated that the court was sent an email on November 13, 2020 from Ms. Morrison’s counsel, Ms. Macrae, who stated that she was counsel for Ms. Morrison and was issuing an application for custody in Oshawa. He commented that counsel are not to communicate with a judge by email, and he saw this email not as an attempt to communicate with him but to advise court staff that there was a parallel proceeding. In his reasons, Clay J. stated that he did not see that email on November 13, 2020 and it did not factor into his decision that day. He also commented that the contents of the email did not factor into his decision on November 25, 2020, as he cannot consider email communications that are not part of an affidavit before the court.

[27] In dismissing the request for his recusal, Clay J. found that the comment he made regarding the stress caused to Ms. Morrison was not evidence of bias, and that no reasonably informed and objective person would consider that as evidence of bias. He also noted that he commented with understanding Mr. Touma’s desire to see his son.

[28] He then addressed Mr. Touma’s submission that the issue of jurisdiction was not before him and that he should have considered that D could have two habitual residences, one in Oshawa and one in Peel. He again noted that the Application and Form 35 did not state where the child resided and there was no evidence that the parties had ever shared a residence.

[29] He found that Mr. Touma’s argument for habitual residence is based on s. 22 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“the CLRA”), which deals with whether an Ontario court has jurisdiction and not which court within Ontario should hear the case. He found that rule 5(1)(b) of the Rules governs where a case for custody is to be started and it is the municipality where the children “ordinarily resides”. He also noted that, according r. 5(3), a clerk of the court is to refuse documents if the child does not ordinarily reside in the municipality where the application is filed. He noted that the clerk in this matter had tried to refuse the application, but counsel for Mr. Touma, Ms. Deokaram, insisted that the material be brought to a judge.

[30] He concluded that there were no grounds to set aside his November 13, 2020 order, and the motion was dismissed.

[31] Mr. Touma filed a third motion dated December 9, 2020 seeking to set aside both orders on the basis of a mistake pursuant to r. 25(19) of the Rules. He also sought an order that he be granted interim equally parenting time with his son and that the motion be heard on an urgent basis. Attached to his affidavit filed in support of that relief was an updated Form 35.1. On page one of that form, he indicated that the child lived with both parents and then added that Ms. Morrison had prevented him from equal parenting time. At page three, in response to the question about who have been the child’s caregivers since birth, he listed himself and Ms. Morrison and stated that his son would be in his care but that Ms. Morrison had unilaterally removed him from his care and that she had excluded him from exercising equal parenting time.

[32] This motion was not accepted for filing by the court office, on the basis that Clay J. indicated that there was no mistake on the face of the order.

[33] Mr. Touma then issued a Notice of Appeal in this court appealing the two decisions of Clay J. He filed affidavits dated December 22, 2020 and January 4, 2021 and a 101-paragraph factum referencing 19 decisions. During my hearing of the appeal, for reasons to be explained, I adjourned the hearing to allow Mr. Touma to file another affidavit after he received some new evidence during the hearing of the appeal.

[34] Ms. Morrison responded to the appeal and filed affidavits dated December 21, 2020, December 30, 2020, and January 12, 2021. She also filed a 51-paragraph factum.

Position of the Parties

[35] With respect to the December 13, 2020 order, Mr. Touma claims that there was a breach of fundamental justice and procedural fairness as his counsel was not given notice or an opportunity to make any submissions before Clay J. made a finding of jurisdiction and ordered that the matter should be heard in Oshawa. If there was such a breach, Mr. Touma asserts that the order should be set aside and replaced with an order that D has a habitual residence in Mississauga and the application can be commenced in Peel.

[36] He also claims that there was a breach of his s. 15 Charter rights for the reasons set out above.

[37] With respect to the November 27, 2020 order, Mr. Touma’s position is that the conduct of Clay J. gives rise to a reasonable apprehension of bias and as such he erred in refusing to recuse himself. In addition to the comments he made in his reasons as set out above, he also alleges that counsel for Ms. Morrison sent Clay J. a “private and secret” email which was in breach of r. 1.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Counsel for Mr. Touma was not copied with this email and only received a copy during the course of the appeal when I Ms. Macrae to send it to myself and Ms. Deokaram. Mr. Touma alleges that Clay J. should not have read the email and that, by reading it without a copy being provided to Ms. Deokaram, there is a reasonable apprehension of bias.

[38] Ms. Morrison’s position is that Clay J.’s decision dealt with where an application is to be commenced pursuant to r. 5 of the Rules and did not deal with jurisdiction. She alleges that Clay J. was obligated to follow the rules and there was no breach of natural justice or procedural fairness. It is also her position that there was no basis for Clay J. to recuse himself.

ANALYSIS

a) Was Mr. Touma Denied Natural Justice or Procedural Fairness?

[39] I will first address Mr. Touma’s basis for appeal that he was denied natural justice and procedural fairness when Clay J. made his finding that the application should be commenced in Oshawa and not Peel without hearing any submissions from counsel. He asserts that if I find there was a denial of natural justice, the decision should be set aside and replaced with a finding that the application can be commenced in Peel.

[40] In my view, Mr. Touma has confused the concepts of jurisdiction, which involves an assessment of habitual residence of the child as per s. 22 of the CLRA, with the concept of where an action is to be commenced, which involves an assessment of ordinary residence under r. 5 of the Rules. To be clear, Clay J. did not make any finding of jurisdiction as it relates to habitual residence, but only dealt with the issue of where an application ought to be commenced pursuant to r. 5 of the Rules.

[41] The relevant section of Rule 5 states as follows:

WHERE CASE STARTS

5. (1) Subject to sections 21.8 and 21.11 of the Courts of Justice Act (territorial jurisdiction — Family Court), a case shall be started, (a) in the municipality where a party resides; (b) if the case deals with custody of or access to a child, in the municipality where the child ordinarily resides, except for cases described in, (i) section 22 (jurisdiction of an Ontario court) of the Children’s Law Reform Act, and (ii) subsection 91 (2) (place for child protection hearing) and subsection 203 (1) (place for adoption proceeding) of the Child, Youth and Family Services Act, 2017; or (c) in a municipality chosen by all parties, but only with the court’s permission given in advance in that municipality. O. Reg. 114/99, r. 5 (1) ; O. Reg. 298/18, s. 6 (1).

STARTING CASE — DANGER TO CHILD OR PARTY (2) Subject to sections 21.8 and 21.11 of the Courts of Justice Act, if there is immediate danger that a child may be removed from Ontario or immediate danger to a child’s or party’s health or safety, a party may start a case in any municipality and a motion may be heard in that municipality, but the case shall be transferred to a municipality referred to in subrule (1) immediately after the motion is heard, unless the court orders otherwise. O. Reg. 114/99, r. 5 (2).

CLERK TO REFUSE DOCUMENTS IF CASE IN WRONG PLACE (3) The clerk shall refuse to accept an application for filing unless, (a) the case is started in the municipality where a party resides; (b) the case deals with custody of or access to a child and is started in the municipality where the child ordinarily resides; (c) the case is started in a municipality chosen by all parties and the order permitting the case to be started there is filed with the application; or (d) the lawyer or party asking to file the application says in writing that the case is one that is permitted by clause (1) (b) or subrule (2) to be started in that municipality. O. Reg. 114/99, r. 5 (3).

PLACE FOR STEPS OTHER THAN ENFORCEMENT (4) All steps in the case, other than enforcement, shall take place in the municipality where the case is started or transferred. O. Reg. 114/99, r. 5 (4).

TRANSFER TO ANOTHER MUNICIPALITY (8) If it is substantially more convenient to deal with a case or any step in the case in another municipality, the court may, on motion, order that the case or step be transferred there. O. Reg. 114/99, r. 5 (8).

[42] The rule is clear that a case that deals with custody or access to a child must be commenced in the municipality where the child ordinarily resides. There is an exception to the rule, however, as it does not apply to cases dealing with s. 22 of the CLRA. There is also an exception that provides for an interim motion to be heard in a municipality other than where the child resides if there is immediate danger to the child’s health or safety.

[43] Section 22 of the CLRA states as follows:

Jurisdiction

22 (1) A court shall only exercise its jurisdiction to make an order for custody of or access to a child where, (a) the child is habitually resident in Ontario at the commencement of the application for the order; (b) although the child is not habitually resident in Ontario, the court is satisfied, (i) that the child is physically present in Ontario at the commencement of the application for the order, (ii) that substantial evidence concerning the best interests of the child is available in Ontario, (iii) that no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident, (iv) that no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario, (v) that the child has a real and substantial connection with Ontario, and (vi) that, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. R.S.O. 1990, c. C.12, s. 22 (1).

Habitual residence (2) A child is habitually resident in the place where he or she resided, (a) with both parents; (b) where the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order; or (c) with a person other than a parent on a permanent basis for a significant period of time,whichever last occurred. R.S.O. 1990, c. C.12, s. 22 (2) ; 2016, c. 23, s. 6.

Abduction (3) The removal or withholding of a child without the consent of the person having custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld. R.S.O. 1990, c. C.12, s. 22 (3).

[44] A determination of habitual residence under section 22 of the CLRA applies where there is a jurisdictional contest between Ontario and somewhere outside of Ontario: Neshkiwe v. Hare, 2020 ONCJ 149, at para. 136. It does not address jurisdiction as between courts within Ontario, but as between Ontario courts and courts outside Ontario.

[45] The issue of habitual residence as contemplated under s. 22 of the CLRA is different than the narrower issue of where an application is to commence based on ordinary residence according to the Family Law Rules.

[46] In Mohr v. Sweeney, 2016 ONSC 2248, McGee J. addressed the issue of venue. At para. 10, she found that where a child is primarily resident with one parent, that parent’s home is the child’s primary residence for the purposes of deciding where the application is to issue, even if the other parent has access. At para. 11, McGee J. found that the child had been primarily residence since birth with the mother and had never been under the primary care of the father. Further, at para. 12, McGee J. found that where a proceeding has been commenced in a municipality where the child does not reside, the remedy is for the court to transfer the proceeding to the municipality where the child ordinarily resides.

[47] There was no evidence before Clay J. that the child ever resided in Peel or has ever been to Peel. Mr. Touma does not dispute that. Ms. Morrison has been living in Oshawa since 2019. It is not in dispute that D was born in the hospital in Oshawa and has lived with Ms. Morrison in Oshawa since his birth.

[48] The determination of where an application is to be commenced has no bearing on a determination of the child’s primary residence if that is contested, as it is in this case. Mr. Touma may still advance those arguments but r. 5 clearly requires that application be commenced in Oshawa.

[49] In my view, the purpose of r. 5 is to avoid a multiplicity or parallel proceedings. It also provides for an orderly, clear and concise understanding of where an application involving custody or access is to be commenced. It also contemplates a summary determination of the issue as there is a requirement for the clerk to refuse to issue an application unless the child is ordinarily resident in the municipality where the application is filed.

[50] There was no requirement for Clay J. to give Mr. Touma notice that he was going to decide where the application should be commenced. There was also no requirement that Clay J. hear any oral submissions on this issue and therefore no breach of procedural fairness or natural justice. The issue could have been determined by the court clerk. It was therefore appropriate for Clay J. to make the determination based on the written materials filed by Mr. Touma.

[51] Based on the evidence before Clay J., he made no palpable and overwhelming error in his finding of fact that D’s ordinary residence is in Oshawa, where he was born and where Ms. Morrison resides, for the purpose of determining where the application is to be commenced.

[52] The issue of jurisdiction was not determined by Clay J. He made a finding of where the application should be commenced. He made no other substantive finding and it was therefore appropriate for Clay J. to make that determination on the written materials filed with the court.

[53] Mr. Touma argues that it is “absurd” that a clerk can determine where a child ordinarily resides. That is, however, what r. 5(3) specifically states. The heading for that section is also clear and states: “Clerk to Refuse Documents if Case in Wrong Place.” In addition, the wording is mandatory stating that a clerk shall refuse to accept an application for filing, unless the application deals with custody and is started in the municipality where the child ordinarily resides.

[54] Mr. Touma also argues that, had he been aware that this was an issue, he would have pleaded that the child ordinarily resides with him. Had Mr. Touma claimed that his son was ordinarily resident with him in Mississauga, in my view, he would have been misleading the court as there is no evidence that D ever lived with Mr. Touma or spent any time with him in Mississauga. D. has lived with Ms. Morrison since his birth. To state otherwise to the court would not have been accurate.

[55] Mr. Touma says that, based on r. 5(2), the application should commence in Peel and the motion heard on the basis that there is immediate danger to D’s health or safety as his son is being deprived of crucial bonding time with his father.

[56] While courts have recognized the importance of an infant bonding with parents, Clay J. made no error in law in finding that the matter was not urgent. Although r. 5(2) was not pleaded, I am satisfied that if Clay J. had any concerns about D’s health or safety based on the lack of bonding with Mr. Touma, he would have heard the motion. There is no basis to interfere with Clay J.’s determination of the lack of urgency which was an exercise of his discretion.

[57] Furthermore, Mr. Touma’s assertion that r. 5(2) should be interpreted to allow him to commence the proceeding in a municipality where D is not ordinarily resident is not a reasonable interpretation of the rule. In my view, r. 5(2) sets out a limited exception to the ordinary rule of where an application is to commence. The rule should be interpreted narrowly and not in the broad sense proposed by Mr. Touma. The fact that Mr. Touma had not seen D for one month does not constitute “immediate danger to a child’s health or safety” due to a lack of bonding for that time period.

[58] While I have found that there Clay J. made no error in determining the issue based on the written record before him, I will address Mr. Touma’s assertion that a child can have two habitual residences.

[59] According to Mr. Touma, if D has two habitual residences, the application can be commenced in Peel. He also argues that a child is ordinarily resident in a place where the child has a real and substantial connection. His position is that while his son has never lived in Mississauga, D has a habitual residence in Mississauga as Mr. Touma is entitled at law to a 50/50 parenting arrangement. In addition, he has made arrangements for his son’s childcare in Mississauga and has a medical doctor who will also care for him. This, he argues, establishes a real and substantial connection to Peel. Accordingly, he has habitual residences in both in Peel and Oshawa.

[60] Mr. Touma referred to a number of decisions that are all distinguishable as they deal with challenges to jurisdiction as between Ontario and another province or country. They also deal with either the interpretation of s. 22 of the CLRA or the interpretation of “ordinarily resident” under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). He did not provide any jurisprudence interpreting “ordinary resident” under r. 5.

[61] Mr. Touma argues that Robert v. Ascani, 2015 ONSC 611 (Div. Ct.) stands for the proposition that a child can have two habitual residences. That was a case dealing with a determination of jurisdiction as between Ontario and Quebec pursuant to s. 22 of the CLRA and not where an action commences under r. 5.

[62] He also relied on Ellis v. Wentzell-Ellis, 2010 ONCA 347, which he says stands for the proposition that there is no difference between the terms “ordinarily resident” and “habitual residence”. That case dealt with issues of jurisdiction as between Ontario and England and the operation of the Hague Convention. It did not deal with the term “ordinarily resident” as it relates to r. 5 or the municipality in Ontario in which an action should be commenced.

[63] He relied on Wang v. Lin, 2012 ONCA 33, which he says stands for the proposition that a child’s ordinary residence is where the child has a real and substantial connection. Again, that was a case in which the court had to determine jurisdiction as between Canada and China and principles surrounding the common law determination of real and substantial connection. It also dealt with the issue of ordinary residence pursuant to the Divorce Act and whether the wife had been ordinarily resident in Canada for one year for the purpose of commencing the divorce action. It did not deal with the issue of ordinary residence in the context of r. 5.

[64] Mr. Touma also relied on Knowles v. Lindstrom, 2014 ONCA 116 and McFadden v. Sprague. Again, those cases dealt with jurisdictional challenges between Ontario and other countries. Those cases are also of limited assistance in dealing with the interpretation of r. 5 of the Rules.

[65] Mr. Touma claims that ordinary residence cannot be established by one party unilaterally withholding a child in one jurisdiction. He argues that Ms. Morrison’s unilateral action and bad faith in denying him parenting time cannot then be used to establish the child’s ordinary residence.

[66] Clay J.’s finding of ordinary residence was for the sole procedural purpose of determining where in Ontario the application should be commenced. It was based on his review of the material Mr. Touma filed with the court and his description of where the parties live and where D has lived since his birth. As indicated above, Clay J. made no error in fact in making his determination.

[67] Clay J. made no finding of parenting or jurisdiction. Mr. Touma will be able to advance his arguments regarding those issues when this application is commenced in Oshawa. He will also be able to advance his arguments that the matter should be moved to the Central West region.

[68] During her submissions and in the factum, Ms. Deokaram argued that the law states that each parent is entitled to 50/50 parenting time, unless that would be contrary to the best interests of the child. She also argued that it is undisputed law that it is in the child’s best interest to spend equal time with each parent. She also referred to Mr. Touma’s statutory right to equal parenting time.

[69] I am unaware of any legislation or binding jurisprudence that states there is a presumption of shared parenting or a statutory right to shared parenting. While there is a principal of maximum contact, that is not the same thing as saying there is a presumption of 50/50 parenting or that the presumption is that shared parenting is in the best interest of the child. What is in a child’s best interest turns on the unique circumstance of each case and, in some cases, it is a 50/50 parenting arrangement. That is not, however, the starting point or the presumption in determining the parenting arrangement that is in a child’s best interest, contrary to what Mr. Touma argues.

b) Was There a Breach of s. 15 of the Charter?

[70] I will briefly address Mr. Touma’s claims that Clay J.’s finding that the child was ordinarily resident in Oshawa as that is where he was born violated s. 15 of the Charter.

[71] Section 15 of the Charter states:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[72] In my view, Mr. Touma is conflating the issue of habitual residence for the purpose of establishing jurisdiction with the concept or ordinary residence for the purpose of determining only where an application is to be commenced. Clay J. made no finding of habitual residence or any finding regarding the ultimate parenting and residential determination for the child. Mr. Touma asserts that, based on Clay J.’s finding, no father who resides in a different geographic region from the mother could have the child’s habitual residence. This is not what Clay J. determined. He determined a very narrow procedural issue about where an action was to be commenced. Mr. Touma can argue the issue of residency and parenting of his son in the application commenced in Oshawa. There is no Charter breach.

c) Apprehension of Bias

[73] Mr. Touma asserts that Clay J. erred in failing to recuse himself from hearing the motion on the basis that there was a reasonable apprehension of bias. The allegation of bias relates to an email that Ms. Morrison’s counsel, Ms. Macrae, sent to the court and comments made by Clay J. in his November 13, 2020 reasons which Mr. Touma says reveal a lack of impartiality.

[74] In two recent decisions, Daley J. from this court reviewed in detail the applicable legal framework for recusal motions based on bias or the reasonable apprehension of bias: Fatahi-Ghandehari v. Wilson, 2019 ONSC 3584 and Cosentino v. Dominaco Developments Inc., 2018 ONSC 4092. He also referenced a decision of Durno J. in R. v. Singh, 2018 ONSC 1534, which addressed the issue.

[75] At paragraphs 31-42, in Cosentino, Daley J. reviewed the legal principles or test to be considered in determining if there is a reasonable apprehension of bias. The threshold for a finding of a real or perceived bias is a high one as it calls into question judicial integrity which is a cornerstone of the rule of law. It is not an assertion that should be made lightly but one that must be considered when raised by counsel who bears the onus of proof on a balance of probabilities: at paras. 38-39.

[76] The test has two objective elements. The first is that the person considering the alleged bias must be reasonable and the apprehension of bias must also be reasonable in the circumstances. Further, the reasonable person must be an informed person with knowledge of all of the circumstances, including the traditions of integrity and impartiality: at para. 33.

[77] Bias denotes a state of mind that is in some way predisposed to a particular result or that is closed with regard to certain issues: at para. 34. As judges, judicial integrity includes the expectation that we are aware of and strive to overcome personal bias and partiality: at para. 35. Impartiality and judicial integrity are central to the administration of justice. There is a strong presumption of such impartiality: at para. 39. Accordingly, there is a high threshold for showing bias requiring cogent evidence that a reasonable person apprised of all the relevant circumstances would conclude that the judge failed to decide the issues impartially and independently: at paras. 40, 42.

[78] On a motion seeking recusal, it is not necessary to establish actual bias. Recusal is warranted if there is a reasonable apprehension of bias.

[79] In his affidavit and factum, Mr. Touma references a “secret and private email”, which he says Ms. Macrae sent directly to Clay J. and that Clay J. read before he released his reasons dated November 13, 2020. He alleges that by accepting that “secret and private communication” and reading it, Clay J.’s actions are worthy of “stern sanction” from the Superior Court of Justice. Mr. Touma also alleges that by reading the email when Ms. Deokaram was not given a copy is evidence of Clay J.’s lack of impartiality.

[80] To be clear, the role of this court on appeal is to determine if Clay J. erred in his reasons. It is not the role of this court to deliver any sort of sanction.

[81] The email in question is dated November 13, 2020. It was sent by Ms. Macrae to the Brampton court office using the email Brampton.ocj.courts@ontario.ca. During submissions, Ms. Deokaram agreed that there was no evidence that this email was sent directly to Clay J. by Ms. Macrae as Mr. Touma alleged in his materials. It is not in dispute that Ms. Deokaram was not copied with the email. She first received a copy when I requested that Ms. Macrae provide her with a copy during submissions. The hearing of the appeal was then adjourned so that Ms. Deokaran could have time to review it with her client and provide a further affidavit, if she thought necessary.

[82] The email does not just indicate that Ms. Morrison was opposing the application being commenced in Oshawa but goes further and discusses concerns about Mr. Touma’s behaviour at the Oshawa Hospital with his son. The relevant portions of the email are as follows:

The motion involves a three week old infant. The mother resides in Oshawa, and the baby was both there. The father has never cared for the infant. The parties were not cohabiting when the child was conceived.

There were significant issues at the Oshawa Hospital when the child was born…

… I also wish the court to be aware that there are significant concerns with respect to the stability of the father as evidenced by the hospital records at the time of the child’s birth three weeks ago.

[83] Clay J. did not refer to this email in his November 13, 2020 reasons. In his reasons dated November 25, 2020, he states:

I begin by noting that at the time I made my order of November 13 I was aware that the mother had been served by email in the later afternoon the day before the urgent motion but I was unaware that the mother had retained counsel. The court was sent an email on November 13/20 by Ms. Macrae who stated that she was counsel for Ms. Morrison and that she was issuing an Application in Oshawa.

Counsel are not to communicate with a judge by email and I see the email not as attempt to communicate with a judge but simply to advise the court staff that there may be a parallel proceeding. I did not see the email on November 13 so it did not factor into my endorsement that day. The contents of the email also do not factor into my decision on the motion before me as I cannot consider email communications that are not part of an affidavit when addressing a motion.

[84] I agree with Mr. Touma that this email should have been copied to Ms. Deokaram. Furthermore, the email went beyond just informing the court of a parallel proceeding; it addressed substantive issues that ought to have been contained in an affidavit and not in an email to the court.

[85] Mr. Touma asserts that Clay J. read the email and then “tried to defend or protect Ms. Macrae’s and his unethical behaviour by stating the email was not a form of communication.”

[86] Let me be very clear; there is no evidence of any unethical behaviour by Clay J. In his reasons of November 25, 2020. Clay J. stated that he neither saw nor read the email when he made his November 13, 2020 decision. Furthermore, he clearly stated that he did not consider the contents of the email when he considered the motion before him on November 25, 2020. He did not state, as Mr. Touma alleges, that the email was not a communication. Rather, he commented that he cannot consider email communications that are not part of an affidavit before him.

[87] In my view, Clay J. correctly instructed himself not to consider the content of the email. As trial judges, it is not uncommon that we hear arguments or submissions that we then cannot consider when reaching our final decision. Similarly, it is also common during jury trials that the jury hears evidence that we then instruct them not to consider. The hearing of that evidence does not automatically result in a mistrial if the trier of fact is correctly instructed on how to consider the evidence, if at all.

[88] I am satisfied that Clay J. dealt with the email appropriately. He did not know of it or read it before he made his ruling that the application ought to be commenced in Oshawa. There is no evidence that he acted “unethically”, as Mr. Touma alleges, or that his conduct deserves sanction whatsoever. Furthermore, his reading of that email does not give rise to the apprehension of bias. Clay J. clearly dealt with that email in his reasons and expressly stated he did not see it prior to releasing his first decision and did not consider it when he released his second decision.

[89] Before leaving this issue, I will also comment that too many counsel are sending emails to the court which are inappropriate, particularly when they contain substantive arguments as was set out in the email from Ms. Macrae. Ms. Deokaram also sent an inappropriate email to the trial office in Oshawa, dated December 11, 2020. In that email, Ms. Deokaram stated that it was improper for Ms. Macrae to file an application in Oshawa, as her client “has kidnapped the child and not afforded by [sic] client access to his son.” She stated that Ms. Macrae was “sneakily” attempting to issue another application and that she had sent a “private email” to Clay J. She said that Ms. Macrae’s unethical behaviour will be reported to the Law Society.

[90] While this email was copied to Ms. Macrae, in my view, its contents are also clearly inappropriate. First, there is no evidence the child was kidnapped as is alleged. Not allowing access or parenting time is not kidnapping. Secondly, there was no need to inform the court office in Oshawa that Ms. Deokaram thought Ms. Macrae’s actions were unethical and that she would be reporting her to the Law Society.

[91] Both counsel in this matter sent emails to court staff with inappropriate content. All that was required was an email informing the court office of proceedings in another court – nothing more. Emails that contain inflammatory comments about the behaviour or conduct of parties or counsel are not helpful and will only cause greater division in a proceeding already marked with conflict and acrimony.

[92] The second allegation of a lack of impartiality or of a reasonable apprehension of bias stems from Clay J.’s comment that service of the motion material the day before the motion was to be heard “must have “caused unnecessary stress for the mother.” This comment was made under the heading “Sharp practice” in which Clay J. also commented that he understood that “the father has as strong desire to see the baby as soon as possible.” According to Clay J., counsel for Mr. Touma should have written to Ms. Morrison asking her to respond to his request to arrange to see the child rather than serving her with a motion in the wrong court the day before it was to be heard. Clay J. also questioned the appropriateness of service on Ms. Morrison by email.

[93] Clay J.’s comments about the unnecessary stress that service of the motion on Ms. Morrison the day before the motion do not reveal a bias or a reasonable apprehension of bias. Although his comment may not have been necessary, he was, in essence, stating the obvious. Service of a motion seeking joint parenting of a one-month old infant would cause stress. Furthermore, he balanced that observation with a comment of his understanding that Mr. Touma wanted to see his baby as soon as possible, which again was stating what I consider to be the obvious.

[94] Clay J.’s comments regarding service do not give rise to a reasonable apprehension of bias. It is not uncommon that a judge will comment on the means of service and whether a party was given enough time to respond when served on short notice, as in this case. Those comments did not deal with the substantive issue that he determined. His comments were, in essence, obiter. While Mr. Touma may not agree and service by email may well have been appropriate, given the high threshold test that must be met in a recusal motion, I am satisfied that Clay J. made no error in law in refusing to recuse himself.

[95] In my view, a right-minded person would not think, in all of the circumstances, that there was a real likelihood of bias on the part of Clay J. for any of the reasons set out by Mr. Touma, either when considered separately or collectively.

[96] I will address one last issue. Legal arguments should not be set out in an affidavit. Legal arguments are to be set out in a factum. Counsel should ensure that they understand what to include in their clients’ affidavits and refrain from making any legal argument therein.

Conclusion

[97] Mr. Touma’s appeal is dismissed and the application is to be commenced in Oshawa. Ms. Morrison is entitled to costs. If the parties cannot agree on quantum, Ms. Morrison shall serve and file any relevant offers to settle, cost outline, and written submissions (no more than two (2) pages, double-spaced, 12-point font) by April 1, 2021. Mr. Touma shall serve and file his response (no more than two (2) pages, double-spaced, 12-point font) together with any relevant offer to settle by April 15, 2021.

Released: March 5, 2021

COURT FILE NO.: FS-20-000137 DATE: 2021 03 05 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ANDREAS TOUMA, Appellant - and - ELIZABETH MORRISON, Respondent REASONS FOR DECISION L. Shaw J. Released: March 5, 2021