COURT FILE NO.: FC-21-570
DATE: 2021/05/31
COURT OF ONTARIO,
SUPERIOR COURT OF JUSTICE,
FAMILY COURT (Ottawa)
RE: Joseph William Randal Martel, Applicant
AND:
Phuong Thi Nguyen, Respondent
BEFORE: Regional Senior Justice Calum MacLeod
COUNSEL: Joseph Martel, self representing
Huyen Tran, for the Respondent
HEARD: May 27, 2021 & May 31, 2021
REASONS FOR DECISION
[1] Due to ongoing COVID-19 restrictions and precautions, this motion was argued by videoconference and documents were available in electronic form. All references to court appearances in this document refer to appearances in a virtual court room unless otherwise noted.
[2] I heard argument on May 27th, 2021 and at a brief reattendance on May 31st, 2021. I gave reasons orally but advised the parties that I would provide those reasons in writing. The signed copy of the written reasons is the official copy. There have been minor editorial changes.
[3] This motion first came before the court as an urgent matter on March 30th, 2021. On that date, the matter was before Justice Engelking. It was before Justice Blishen on April 8th, 2021 and Justice MacEachern on April 15th, 2021. In the first instance, the motion was adjourned for service. In the latter two instances, the motion was adjourned on terms.
[4] As often happens when urgent motions are brought in advance of a case conference, the issues are not well defined, exchange of material is chaotic, events happen out of sequence and there is not a properly organized record before the court. This is exacerbated by the COVID-19 restrictions and resulting delays in securing court dates and further exacerbated by the fact that the applicant no longer has counsel.
[5] I had access to the following material: The Applicant’s Notice of Motion and supporting affidavit dated March 29th, 2021; The Respondent’s Notice of Cross-Motion and supporting affidavit, sworn April 13th, 2021; The Application and Answer and the supporting Forms 35.1; The endorsements of Justices Engelking, Blishen and MacEachern; A supplementary affidavit sworn by the respondent on May 19th, 2021.
[6] Certain facts are undisputed. The parties married in Vietnam on June 28th, 2013. They have two children, David William Nguyen Martel, born January 9th, 2014, and Alexander William Nguyen Martel, born November 2nd, 2017.
[7] The parties separated at some point in February or March (they give dates of February 15th and March 15th in their materials) but physical separation occurred on March 16th, 2021 when the respondent left their residence with the children and moved to a shelter.
[8] It is undisputed that the respondent took the children without the knowledge or consent of the applicant. Initially the applicant did not know the whereabouts of the respondent or the children although he could contact her by e-mail. The applicant contacted a lawyer in Mississauga to take legal action. He also contacted the Children’s Aid Society (CAS).
[9] On March 29th, 2021, the applicant started this court proceeding by filing an application and on March 30th, 2021 his counsel sought to bring an urgent motion without notice. Justice Engelking accepted that the motion met the criteria for urgency but required service of the materials on the respondent (by email) and adjourned the motion to April 8th, 2021. It is worth noting that the affidavit (besides alleging a history of adultery by the respondent) recites that the children were in an unknown location and the applicant feared the respondent might take them to Vietnam.
[10] On April 8th, 2021 the parties both appeared in front of Justice Blishen with counsel and the motion was adjourned to permit the respondent to retain Ms. Tran and to prepare responding materials. Certain terms were imposed. The applicant was granted video access once a day and the applicant was to have in-person parenting time as deemed appropriate by the CAS.
[11] On April 15th, 2021 the parties appeared before Justice MacEachern with counsel but counsel for the applicant advised that he would have to withdraw and was allowed off the record. Justice MacEachern made an order for an investigation by the Office of the Children’s Lawyer, for the production of CAS records. She adjourned the motion (and cross motion) to a date to be fixed (which became this date before me). She provided for the continuation of the video access and provided that the applicant could have parenting time every weekend from 9 to 7 on Saturday or Sunday as long as it was supervised by a friend or family member of the applicant.
[12] The reason that Justice MacEachern imposed a supervision term was because, at the time, the respondent’s affidavit raised concerns about the applicant’s anger towards her and the children’s exposure to that anger. The applicant had not yet responded to that affidavit material which had been prepared on April 13th, 2021. The incidents described in that affidavit (which seemingly started in February of 2021) included the applicant yelling and swearing at the children, screaming and yelling at the respondent, calling her “evil” and accusing her of cheating in front of the children.
[13] The respondent also deposed that the applicant was verbally aggressive towards her in front of the police when she went to recover her belongings and has behaved inappropriately during the video calls. The respondent states that the applicant continues to talk negatively about her in front of the children, told the children she was trying to replace him with another family, and told them that the respondent stole or kidnapped the children. She describes his level of anger and resentment as “overwhelming”.
[14] As noted by Justice MacEachern there is a draft parenting agreement dated February 27th, 2021, which contemplated a form of shared parenting in which Alexander would reside primarily with the respondent and David primarily with the applicant. The parties disagree as to who drafted it and it was never signed.
[15] Since the last court appearance, before Justice MacEachern, it does not appear that the applicant has prepared an affidavit to respond to the respondent’s sworn testimony. The respondent however has sworn a supplementary affidavit which annexes a number of exhibits. These include the CAS notes, a series of emails between the parties and what purport to be “transcripts” of conversations taking place during the video access.
[16] It is common ground that the applicant has not had any in-person access since February. Why there was no access pursuant to Justice Blishen’s order was not explained. There has been no access pursuant to Justice MacEachern’s order because the applicant has not proposed anyone to supervise the access. The applicant does not believe there is any basis for access being supervised and he does not want to ask his brother or a friend to spend a day with him just so that he can be with his children.
[17] In deference to the urgency of the situation and to the fact that the applicant is now representing himself, I allowed him to inform the court of facts he wished to put before the court but I did not put him under oath or receive it as sworn testimony. Nor was he cross examined.
[18] The parties agree that David has had a very difficult time at school and has recently been diagnosed with a form of autism. He is in the process of an assessment at CHEO. He was at one time prescribed medication, but he has not been receiving that medication since at least February. The applicant believes that only he is properly equipped to deal with David’s needs. He is concerned that David is not attending school regularly at the moment. He also believes that he was essentially the primary care giver for the children. He describes himself as self employed and indicated that he organizes his work life in order to care for the children.
[19] Needless to say, the respondent describes matters very differently. She has deposed that the applicant neglects the children and spends most of his time and the household income on his “rocket hobby”. This is what the applicant describes as being self employed in the aerospace industry at least pre-Covid.
[20] The biggest complaint by the applicant is the allegation that he has been abusive or inappropriate with the children or in front of the children. He feels that the police, the CAS and other actors believed the respondent, jumped to conclusions and did not properly investigate. He believes the respondent has invented these concerns and blown matters out of proportion in order to gain an advantage over him.
[21] Mr. Martel may ultimately be correct that the allegations against him cannot be proven. It is not lost on the court that the respondent’s affidavits contain assertions and conclusions that are not supported by independently verifiable observations or forensic evidence. There are also many questions that need to be answered. But as I explained to the applicant, courts must act at each stage on the available evidence and not on speculation. Since we are at a very preliminary stage of the court proceeding, with only skeleton affidavits, the information available to the court is limited and it is not possible to conduct an investigation in the middle of a motion.
[22] Temporary orders made at this stage in a proceeding compel the court to make judgments about the best interests of children on an inadequate factual record. These decisions are not final or conclusive and some of the evidence available at this stage might not be admissible at trial. For example, the notes produced by the CAS which contain information gleaned from the children are hearsay and not at this point subject to a business records notice. Similarly, transcriptions of video calls with the children which appear to have been surreptitiously recorded and cannot be verified for accuracy must be viewed with caution. These records which provide support to the respondent’s affidavit do not prove that her concerns are accurate, but they do demonstrate cause for concern. They illustrate that some independent evidence is available.
[23] The sole test when making a parenting order, is the best interests of the children. It is important that children be protected from conflict between their parents while maximizing contact with each if it is reasonable to do so. When it comes to concerns about safety, the court must proceed cautiously.
[24] The following facts appear from the evidence that is available at this time:
a. The respondent unilaterally left the family home and took the children.
b. The children are with the respondent in a secure and safe location.
c. The applicant has daily access to the children by video.
d. The applicant has been provided a weekly right to exercise parenting time in person if he does so in the presence of another responsible adult.
e. The respondent would be comfortable with the applicant’s brother or a friend of the applicant as a responsible adult.
f. The only reasons the applicant is not seeing the children is his refusal to ask anyone to facilitate such contact by accompanying him and supervising the access.
g. The applicant has demonstrated anger and hostility in his words and actions and he apparently hung up on the CAS worker. He demonstrates a deep anger towards the respondent.
h. The CAS has documented concerns about anger management by the applicant in their interviews with the parties and the children.
i. The applicant has used inappropriate language with the children such as kidnapped and abducted and putting blame on their “heartless” mother.
j. The applicant is the owner of registered firearms. There is no evidence that he has ever behaved inappropriately with a weapon or made any threat to use a weapon.
k. David is struggling with school, has behavioural issues, has been diagnosed with autism and is receiving service from CHEO. There is some reason to be concerned that he has not been in daily on-line attendance at school. The parties disagree about how often he has been attending and if reduced attendance has been approved by the principal.
l. The court has made an order requesting investigation by the Office of the Children’s Lawyer. There has not yet been any formal response from the OCL.
m. The respondent is a permanent resident of Canada and a citizen of Vietnam. She has family in Vietnam. The court has already imposed a restriction on either party removing the children from the National Capital Region.
n. The applicant was calm and respectful and able to articulate his position when he appeared in front of me. He did however appear to be somewhat rigid in his expectations. He resisted an order requiring the parties to participate in mediation on the basis that it would be pointless. He had great difficulty accepting any form of supervision or restriction.
[25] Under these circumstances, on the basis of the available evidence, it would not be prudent to order the children returned to the matrimonial home and put into the unsupervised care of the applicant.
[26] The children should have time with their father providing he can behave appropriately and resist the temptation to vent hostility against the respondent.
[27] It is to be hoped that the Office of the Children’s Lawyer will provide service in the very near future. The applicant told the court that he contacted the OCL and was advised that a social worker had been appointed but neither the court nor counsel for the respondent have received any formal notification.
[28] In the meantime, the parties are required to complete their financial statements and other disclosure required by the Family Law Rules and to take the steps necessary to move this proceeding forwards.
[29] I had contemplated waiving the requirement for a case conference in light of the discussion of the issues that took place during the motion. I have decided not to dos so. In these circumstances, it appears to me that a discussion of all of the issues, any further disclosure requirements and a strict timetable for the proceeding will be essential at least if the applicant continues to be unrepresented and unless the parties can reach procedural agreements without further court assistance.
[30] In conclusion, the court orders as follows:
a. The motion to return the children to the matrimonial residence and put them in the primary care of the father is dismissed.
b. The parenting arrangements set out in the order of Justice MacEachern will continue. That is the father shall have daily video calls and access on the weekends in the presence of another responsible adult.
c. This order is without prejudice to a further motion for expanced parenting time on proper evidence after the case conference has been held and disclosure is complete.
d. Neither parent may remove the children from the National Capital Region without the written consent of the other parent or a court order.
e. The mother shall ensure that David attends school and will continue to take him to his appointments at CHEO. The father is to be kept informed of all of these steps and appointments and is entitled to information from the treating physicians or the school.
f. Neither party shall discuss the separation or the court proceedings with the children. Both parents shall teach the children to love and respect the other parent and shall not speak about the other parent in negative or disparaging terms.
g. Costs of this motion are reserved to the judge conducting the trial or otherwise disposing of the matter.
Regional Senior Justice C. MacLeod
Date: May 31, 2021
COURT FILE NO.: FC-21-570
DATE: 2021/05/31
COURT OF ONTARIO,
SUPERIOR COURT OF JUSTICE,
FAMILY COURT (Ottawa)
RE: Joseph William Randal Martel, Applicant
AND:
Phuong Thi Nguyen, Respondent
BEFORE: Regional Senior Justice C. MacLeod
COUNSEL: Joseph Martel, self representing
Huyen Tran, for the Respondent
reasons FOR DECISION
Regional Senior Justice C. MacLeod
Released: 2021/05/31