Court File and Parties
COURT FILE NO.: FS-22-39 DATE: 2022-May-18 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Seth James LeFort, Applicant AND: Caroline VanEvery-LeFort, Respondent
BEFORE: Justice R. J. Harper
COUNSEL: Birkin Culp, Counsel, for the Applicant Scott, DeGroot, Counsel, for the Respondent
HEARD: May 18, 2022
ENDORSEMENT
Issues
Urgent Motion of Respondent mother to allow her and the parties 8-year-old child to go on a trip to England and Scotland
Response and Cross Motion of the Applicant not consenting to the trip and seeking an order this his motion for decision-making and parenting time proceed as urgent prior to a case conference. He also seeks Orders for Declarations with respect to the priority of the United Nations Declaration on the Rights of Indigenous Peoples Act R.S.C. 2021 over the Divorce Act and the Children’s Law Reform Act. The latter claim will be further explained later in these reasons.
Background
A motion was brought by the Respondent, Caroline VanEvery-Lefort (Caroline) for an Order that the motion be heard on an urgent basis pursuant to Rule 14(4.2) of the Family Law Rules.
The motion sought an Order that the child Kaya’tyenens Sha’tekairwate VanEvery-Lefort, (Kaya’tyenens), born February 23, 2014 is permitted to travel out of Canada to the United Kingdom, in particular: England and Scotland from June 3, 2022 until June 18, 2022. The request is that the child shall travel with the Moving party, Caroline.
The motion also sought an Order that the Applicant father, Seth James Lefort’s (Seth) consent to the travel is to be dispensed with.
Urgency
Justice Broad’s endorsement of May 11, 2022, reads:
I have reviewed the Notice of Motion and supporting affidavit of the respondent dated May 11, 2022.
I am satisfied, based upon the time-sensitive nature of the relief sought, that rule 14(4.2) of the Family Law Rules applies such that in the interests of justice the motion may proceed on an urgent basis prior to the Case Conference.
The urgency of this motion, in the words of Justice Broad, is the time sensitive nature of the proposed trip of Caroline and Kaya’tyenens to England and Scotland. That has already been ruled upon by Justice Broad.
The evidence of Caroline that relates to this trip was not addressed by the father in his affidavit material that was filed with his cross motion.
The trip is scheduled to start June 3, 2022. It is to be for a period from June 3, 2022, until June 18, 2022. A total of 15 days.
This trip was originally planned in 2020. At that time, there was no objection to the trip by the Applicant father (Seth).
Seth and Caroline have been separated since on or about November 15, 2017. Their child Kaya’tyenens (dob February 23, 2014) is presently 8 years old.
From the date of separation in 2017 until February 16, 2022, there was no court Application that was brought before any court. There has been no separation agreement. The parties have worked out any parenting time with their child themselves. They made efforts to attempt to share time with the child in a near equal basis.
Since at least the end of February 2022 the parenting time has been as follows:
The father has the child with him from Thursday evening until Sunday late afternoon or evening on three of every four weekends.
The mother has the child the balance of time.
The father, Seth, commenced an Application in February 2022. His application did not check the box seeking a Divorce. However, he did seek orders under the Divorce Act for :
Support for himself and the child and for decision-making responsibility and parenting time; he also sought that same relief under the Family Law Act and Children’s Law Reform Act.
In the section of his Application that sets out what Orders he is seeking, some of which are as follows:
Shared joint decision-making concerning the child pursuant to s 16 of the Divorce Act
Parenting time that consists of the child being with each parent on a week about basis pursuant to the Divorce Act
Order that the child be enrolled in the Tsi Tyonnheht Onkwawen:na Mohawk Language School on the Tyendinaga Mohawk Territory and the Onkwawnna Kentyohkwa Mohawk Language School on Six Nations of the Grand pursuant to S. 16 of the Divorce Act.
Other relief was also sought for spousal and child support and division of property and equalization pursuant to the Divorce Act, Family Law Act and Children’s Law Reform Act.
The mother, Caroline, filed her Answer and claim on March 23, 2022.
Caroline claimed for orders for:
Sole parenting decision to her.
Schedule of parenting time that does not amount to equal residence but for primary residence with her, spousal and child support and property claims. All relief sought pursuant to the Divorce Act, Family Law Act and Children’s Law Reform Act.
In her Application Caroline does seek a Divorce.
The father asks that his cross motion be heard on an urgent basis. I dismissed that motion for reasons set out below.
No Case Conference has been scheduled.
When the trip to England was first planned it started by Caroline’s mother, sister and nephews indicating that they were planning a trip to England. Scotland and Italy. The child Kaya’tyenens heard about the trip and wanted to go along with her cousin’s, grandmother, aunt and mother.
The father knew about the trip and did not object.
There have been multiple trips that the child has gone on with her mother, including trips to Europe that were consented to by the father. Since separation she has gone to the Netherlands, Belgium, England, Scotland and Mexico.
However, the COVID pandemic caused this trip to be cancelled.
The child has been very disappointed about not being able to go on the trip since.
On a previous trip that the child took to Scotland the child connected with the indigenous community and participated in events with them.
After COVID restrictions started to be relaxed, the planning for the trip was restarted.
The father did not object, however, he did not provide his consent after being requested to by the mother, Caroline.
Caroline stated that either she or her lawyer asked for the consent of the father on a number of occasions.
On March 30, 2022, the father asked the mother for her consent to have the child travel with him to the United States overnight on one of his weekends. The mother consented and asked if he was going to consent to the England trip. Once again the father did not express any objection to the trip, he only commented that he wanted to sort out all of the parenting issues.
On April 4, 2022, the mother asked for consent again but received no response.
The mother was aware that the England trip would disrupt approximately 6 days of parenting time between the father and the child, and she suggested that the father could have the child during the school break in April 2022 for an extra 4 days with 3 more extra days at another time.
There was no response to this request.
On May 4, 2022, the mother’s lawyer sent a travel consent to the father’s lawyer. He requested that the consent be returned by May 11, 2022, in order for the trip to go ahead.
The father’s lawyer replied on May 6, 2022, stating that his client had instructed him to advise that:
“until a comprehensive parenting time share agreement is in placed as proposed in his Application, he is not agreeable to the travel”.
No reason was advanced for the refusal to consent to the trip.
That response caused this urgent motion.
The father did not respond to the claim with respect to the England trip already ruled as urgent and could proceed without a case conference. Instead, the father responded with a Cross Motion that seeks to have all of the parenting decision issues and the parenting time dealt with now.
In addition, he seeks to have the Court make Declaration that all parenting decision-making and parenting time decisions concerning indigenous children must be made in accordance with the United Nations Declaration on the Rights of Indigenous Peoples Act. R.S.C. 2021. He further seeks an Order that Act shall supersede and prevail over the law of the Divorce Act. (my emphasis)
The relief sought by the Applicant father is not the proper subject matter of an interim motion let alone a motion that should proceed urgently without a case conference.
Interim motions for parenting decisions and parenting time are most often holding patterns to preserve as close as possible to a status quo and often there are different versions of what that status quo is. In addition, a court tries to keep a balance between parents so as to preserve their claims.
Most often, there is insufficient evidence to make a final order as the evidence usually conflicts between the parties or simply has not been fully presented in order for the court to make a final determination of the best interests of the child.
Issues such as the impact of the Untied Nations Declaration of the Rights of Indigenous Peoples Act must be part of the pleadings in order to be part of a motion.
The federal and provincial Attorneys General should be given Notice in order to see if either of them wish to participate.
The impact of the claims is especially significant when part of the claim is to have a federal statute such as the Divorce Act be superseded by the United Nations Declaration on the Rights of Indigenous Peoples Act. In addition, the provincial statute, the Children’s Law Reform Act would also be impacted significantly by such a claim.
In this case there is no pleading in this regard and the only time the issue of these statutes is brought forward is on a motion.
There has been no notice to either Attorney General.
It is also significant that the only issue that has been approved to be argued on an urgent basis, prior to a case conference, is the issue of the trip to England and the ability of the child to go on the trip with consent of the father being dispensed with.
That is all that this court is dealing with.
The sole issue is to be decided on the courts determination of what is in the best interest of the child.
The Best Interests.
This 8-year-old child would receive multiple benefits if the trip to England and Scotland with her relatives goes forward.
The learning experience of a child of this age is enormous. She will be able to participate in indigenous events, as she had in the past on a previous trip to Scotland.
Experiencing other lands and cultures is something that cannot be just taught in books. This must have been agreed to by the father on many previous occasions when he consented to the child going on previous international trips.
The child’s bonding with her grandmother, aunt, mothers and cousins on such a trip is also a substantial benefit to the child.
None of the beneficial facts are disputed by the father.
The core of his evidence is reflective of his dispute regarding ongoing parenting time and decision-making time.
There is no doubt that the two distinct indigenous cultures of the mother and the father are extremely important to consider in the longer term. That will not be lost if this trip goes forward.
The father claims that the child will not be in school and will have no contact with the father. He claims he will be disadvantaged.
I do not agree with the father. Make up time has been promised and he did not even respond to that proposal.
This court is not in a position on the evidence before me to make any determination of co-parenting or not nor as to what parenting time will be in the best interest of the child.
The mother has already offered make up time and I am confident that she is a parent who wants the child to have as much contact with the father as is in the child’s best interest.
Disposition.
On a without prejudice basis:
The mother shall have sole decision making for the child until this matter is returned to court.
The child is permitted to go on the trip with the mother.
The consent to travel for this trip of the father is dispensed with
The motions relating to interim decision making and parenting time are adjourned to July 27, 2022, at 11 a.m. for a case conference. This attendance is in person.
.If the Applicant amends his pleadings to plead the Statutes as set out above he needs to serve the Attorneys General for Canada and Ontario to see if they wish to participate in this matter.
Costs
Parties may submit brief written submissions on costs with bill of costs submitted also.
R John Harper.