COURT FILE NO.: FC-21-2286
DATE: 2021/12/23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: C.M., Applicant
-and-
J.P., Respondent
BEFORE: Justice Pam MacEachern
COUNSEL: Martin Reesink, for the Applicant Respondent, Self-Represented
HEARD: December 23, 2021 in Writing
ENDORSEMENT
[1] The Applicant seeks to bring an urgent motion without notice seeking a temporary order that the child, A., age 7, reside with him, and that he have sole-decision making authority, until such time as the Respondent mother provides evidence of a safe environment for the child.
[2] The Applicant brings this motion without notice under Rule 14(12) and (d). His position is that there is immediate danger to the child and that service of this motion would have immediate consequences. His material also suggests that there is an immediate danger of the child’s removal from Ontario (Rule 14(12)(b)).
[3] This is a new Application. The Applicant has filed his Application with the court today. A case conference has not been held.
[4] The material before me is as follows:
a. Applicant’s Notice of Motion dated December 21, 2021
b. Affidavit of C.M., sworn December 17, 2021;
c. Affidavit of D.A, sworn December 17, 2021;
d. Affidavit of J.S, sworn December 17, 2021;
e. Form 35.1 of C.M., sworn December 21, 2021;
f. Form 35.1A of C.M., sworn December 21, 2021;
g. Applicant’s conditions of release dated November 23, 2021;
h. Applicant’s “Explicit Instructions of Filer” dated December 22, 2021.
[5] For the reasons that follow, I dismiss the Applicant’s motion.
[6] The evidence before me does not support a finding that the child is in immediate danger. In particular:
a. There is no evidence before me about how the child is doing, that the child’s well-being is in peril, or that the child has been harmed.
b. There is scant evidence before me about the Applicant’s contact with the child upon which he could observe any concerns about the child’s well-being. His evidence in his affidavit is that up until May 2021, he had regular monthly parenting time with the child. While the Applicant does not state this explicitly (and he should have), I infer from the evidence before me that he has not had any contact with the child since May of 2021. There is no evidence about why the Applicant’s contact with the child stopped in May of 2021, or what efforts the Applicant has made to contact the child or the Respondent since that time. At the same time, the Applicant states that he “knows” that the Respondent may have hired a lawyer. This suggests he has had some communication with the Respondent, but he has not disclosed these.
c. I do not find that the Applicant’s evidence about the nature of the Respondent’s work, in itself, supports finding that the child is in immediate danger.
d. There is no evidence that the child is exposed to the mother’s work. The Applicant’s supposition that the child is exposed to the mother’s clientele is pure conjecture.
e. The text messages attached to the Applicant’s affidavit provide little assistance to the Applicant’s claims. The Applicant does not state in his affidavit when the texts were posted, or when he discovered them. I infer that he saw the posts at the time they were posted. The texts themselves are not dated or state only a month and day, with no year. Some of the texts are from October of an unknown year, and some are from January of an unknown year. Either way, the texts are not new information that raises a situation of urgency, nor do they support a finding that the child is in immediate danger.
f. The fact that the mother reposted a message from another person warning of a dangerous client is not evidence that the child is exposed to dangerous clients. The other texts support that the mother left an abusive relationship in January, which is positive, and that her work hours (weekdays 11 to 4/10 to 4 or on certain weekends) appear to be when the child would be in school (and I have no evidence the child is not in school) or in another person’s care.
g. Paragraphs 5 and 6 of the Applicant’s affidavit do not identify the source of the information by name nor that the Applicant believes the information is true. These paragraphs are not admissible on this motion under Rule 14(19).
h. The Applicant also refers to the Respondent’s precarious financial situation as supporting a finding that the child is at risk. There is no evidence before me that the Respondent is in a precarious financial position. I also find it unusual that while the Applicant refers to the Respondent’s financial situation, he does not refer to the child support he is providing to the Respondent to assist in addressing his apparent concern on this front.
i. I do not find that the Respondent’s Amazon wish list supports a finding that the child is in immediate danger.
j. I do not find that Covid-19 and the new variant (Omicron) supports a finding that the child is in immediate danger. The Applicant’s argument is that because of the mother’s work, she has a risk of exposure to covid, and therefore the child is also at risk of exposure. While such an allegation, if true, may be relevant in assessing the best interests of a child, it does not, at this point, give rise to a finding of the child being in immediate danger. At this point in the pandemic, there is widespread community transmission of the highly contagious Omicron variant. Thousands of children have been exposed to covid in recent months while at school or elsewhere. This is unfortunate but it does not mean that a child who is in a situation (such as attending school) where they may be exposed to the virus is in immediate danger to warrant removing the child from their primary parent’s care on a motion heard without notice.
k. The Applicant’s allegation that the mother was not forthcoming with him in May of 2021 about the child’s exposure to Covid also does not support that the child is in immediate danger.
l. The Applicant refers to the mother’s recent involvement with child protection services in his Form 35.1A but does not provide any information about their involvement. The Applicant’s form 35.1A refers to the Applicant having been in recent contact with York CAS. Yet at the same time, the Applicant does not provide any evidence that he has reported his concerns about the child’s well-being to the child protection services, or what action, if any, they have taken. If the Applicant really was concerned that the child was in immediate danger, I would have expected him to report these concerns to child protection authorities. He has either not done so, which suggests that he is not truly concerned about the child’s immediate safety, or he has done so and the protection authorities have determined that the child is not in need of protection. Either way, this does not support a finding that the child is in immediate danger.
m. The evidence that the mother drank to excess and slept for 8 hours in November of 2020 also does not support a finding that the child is in immediate danger.
[7] I also do not accept that the service of this motion on the Respondent would have serious consequences. The Applicant suggests that the Respondent would move with the child if she was aware of this motion, and that this includes the risk she will move the child outside of Ontario. The only evidence to support this assertion is one line in his affidavit that states she moved to a new residence without informing him. There is nothing else. At the same time, in these proceedings, the Applicant does not disclose the address where he resides in his Form 35.1, although it is written onto the first page of the Application, signed on his behalf by his lawyer. It is certainly not clear to me that the Applicant has provided his address to the Respondent. In addition, the fact that the Respondent has moved and not provided her address to the Applicant, if true, on its own, does not support a finding that service of this motion (even short service) would have serious consequences. There needs to be something more than this, and there simply is not on the evidence before me. The Respondent may have legitimate reasons for not wanting the Applicant to know where she resides, such as reasons relating to why the Applicant’s contact with the child stopped after May of 2021, or the Respondent’s serious criminal charges in November of 2021.
[8] I also do not accept the father’s statement that he does not know where the child is as a basis to find that this motion should be heard without notice, or that the child is in immediate danger, particularly given the lack of information about the father’s efforts to contact the Respondent or the child, whether the child is attending school, how the father knows that the mother may have hired a lawyer, and about whether the father reported his concerns to the child protection authorities.
[9] In stating the above reasons, I bring to the Applicant’s attention that his duty, on a motion filed without notice to the other side, is to provide full and frank disclosure of all material facts, including facts that are not in his favour and would have likely been raised by the other side if they had notice. His material filed on this motion falls far short of meeting this duty.
[10] I also do not find, on the evidence before me, that it is in the child’s best interests to be placed in the Applicant’s temporary care. In particular:
a. The Applicant’s Form 35.1 states that the child has been in the primary care of her mother since birth. Removing the child from her primary care provider since birth would be very disruptive.
b. There is no evidence before me that the child is not doing well at this time, in her mother’s care.
c. Although the Applicant raises “urgent” issues of concern about the child’s safety in the mother’s care, most of these concerns relate to circumstances that existed many months ago. The credibility of the Applicant’s concerns is undermined by the fact that he does not explain why he did not raise these concerns earlier.
d. The concerns raised by the Applicant, as explained above, do not support a finding that the child’s needs are not being met in her mother’s care.
e. There is no evidence that the child protection authorities, who have been involved in the past, and to whom the Applicant could have reported his concerns, have taken the position that the child is in need of protection.
f. The Applicant provides little evidence about his ability to care for and meet the needs of the child, other than that he used to, before May of 2021, see her monthly. That is effectively the extent of it.
g. The Applicant provides little evidence of his relationship with the child, other than that prior to May of 2021 he saw the child monthly.
h. The Applicant lives in Ottawa and the child lives in the Toronto area, and presumably attends school in Toronto. Moving to Ottawa would be very disruptive and take the child away from her community.
i. The Applicant’s Form 35.1 and release conditions support that the Applicant was criminally changed on November 15, 2021, with several counts involving possession of restricted or prohibited firearms and possession of cocaine. These charges appear significantly more serious than the conduct he alleges against the Respondent, yet the Applicant does not provide any evidence addressing these charges.
[11] For the above reasons, I dismiss the Applicant’s motion. If the Applicant wishes to bring a motion concerning temporary parenting, he needs to do so on notice to the Respondent.
[12] I am also not relieving the Applicant of the requirement that a case conference be held prior to a motion being brought. The information before me today does not warrant a finding of urgency that would allow a motion before a case conference.
[13] There is an issue of whether this proceeding should have been commenced in Ottawa. Rule 5 requires that a case that deals with parenting issues shall be started in the municipality where the child habitually resides. The Applicant started this case in Ottawa although it is not contested that the child does not habitually reside in Ottawa. He relies on Rule 5(2) which allows him to start a case in any municipality if there is an immediate danger that a child may be removed from Ontario or immediate danger to the child’s health or safety. For the reasons set out above, I do not find that either of these criteria is met. This means that the Applicant has started this Application in the wrong place, and it is dismissed on that basis.
[14] But I have dealt with his motion and dismissed it. So I am ordering that the Applicant serve a copy of all of his Application material, and motion material, and my endorsement, on the Respondent.
[15] To be clear, if the Applicant wishes to pursue this matter, he will need to start an Application in the municipality where the child habitually resides. This is not Ottawa. If the Applicant’s position continues to be that he does not know the municipality where the child’s current habitual residence is, he should bring a motion, on proper evidence, to the court for the municipality of the child’s last known habitual residence is located (being, at this time, 270 Richard Clarke Drive, North York, Ontario) seeking leave to bring the proceeding in that court.
[16] One final comment with respect to service on the Respondent. I note that while the Applicant states that he does not know where the Respondent is currently residing, he does not state that he does not know how to contact the Respondent. His material suggests that he does. He knows where she works. He has access to her social media postings. He knows that she may have hired a lawyer. I infer from the evidence that he has had communications with her. So I would expect the Applicant to make reasonable efforts to serve the Respondent and, if he seeks an order for substituted service, that his evidence in support of such a motion, including his proposal for service on her, would meet the requirements under Rule 6(15).
[17] I have provided for the parties’ initials to be used in the version of this endorsement sent to publication because I find it is necessary to protect the child’s best interests that the child’s identity be protected, given the allegations involved.
For the above reasons, I make the following orders:
The Applicant’s motion, without notice to the Respondent, to have the child placed in his temporary care is dismissed, pursuant to the Children’s Law Reform Act, and the Family Law Rules;
Pursuant to the Family Law Rules (Rule 5), this Application is dismissed because it was started in the wrong location. If the Applicant wishes to pursue this matter, he must start an Application in the municipality where the child habitually resides. The dismissal of this Application is without prejudice to the Applicant starting a new Application in the correct location.
The Applicant shall take immediate steps to serve the Respondent with a copy of his Application materials, including the material he filed on this motion, and this endorsement.
A copy of this endorsement may be released to publication with initials for the parties and the child, and removing the child’s birthdate. (Pursuant to CLRA s.70)
Justice P. MacEachern
Date: December 23, 2021
COURT FILE NO.: FC-21-2286
DATE: 2021/12/23
ONTARIO SUPERIOR COURT OF JUSTICE
RE: C.M., Applicant
-and-
J.P., Respondent
BEFORE: Justice Pam MacEachern
COUNSEL: Martin Reesink, for the Applicant Respondent, Self-Represented
ENDORSEMENT
Justice Pam MacEachern
Released: December 23, 2021