COURT FILE NO.: FC-20-600

DATE: 20221216

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jessica Woodley Applicant

– and –

John Cipolla Respondent

Jeremy Herron, for the Applicant

Unrepresented

HEARD: December 7, 2022

REASONS FOR DECISION

McDERMOT J.

Introduction

[1] The Applicant Mother and the Respondent Father are the parents of one child, Vela, who is seven. They separated in January, 2017 and were divorced in New York state in January, 2019. Since separation, Vela has lived with her mother. Other than some virtual visits, Vela has not had parenting time with her father since January, 2022 when he took Vela to the United States for parenting time and then failed to return her to her mother’s care when he agreed to do so.

[2] The Applicant Mother, Ms. Woodley, lives in Port McNicoll with her new partner. The Respondent Father, John Cipolla (he wishes to be referred to only by his first and last name), presently lives in the United States. He is subject to criminal charges and a bench warrant issued in Ontario and has not returned to Canada for some time for fear of being arrested. He has recently returned to Canada and was arrested. He has been released subject to bail conditions.

[3] The Applicant Mother commenced these proceedings in July, 2020. The Respondent Father filed an Answer and Claim by Respondent on September 18, 2020. Both parties have claimed full rights to decision making concerning Vela and for primary care of Vela.

[4] This litigation has been challenging throughout. Part of this is because of the behaviour of the Respondent Father, who has overheld Vela after his parenting time on four occasions, two of which required emergency orders for return of Vela to the care of the Applicant Mother.

[5] However, this is not the only reason the litigation is challenging. John Cipolla is displeased by the direction of these proceedings and has brought collateral attacks on this application on at least three occasions. Firstly, on February 8, 2021, he brought six civil lawsuits against various defendants, including the Applicant, the Applicant’s partner, the Applicant’s lawyer, executives and counsel for Legal Aid Ontario as well as several members of the Applicant’s family. He claimed damages of $2,250,000 in each of these lawsuits (other than the lawsuit against the Applicant, against whom he claimed $3,250,000) for trespass against his property. The property in issue was stated to be his daughter, Vela.

[6] John Cipolla decided as well to have recourse to an “alternative court”, namely the “Common Law Court, Great Britain and International.” In a “Lawful Notice” dated February 17, 2021 and filed by John Cipolla, he states that “the Common Law Court, Great Britain and International was created on the 11th June 2017, to address the failings in the statutory judicial system and to provide a lawful remedy for living men and living women, this would address all harm, loss and injury suffered.” The notice states that “the ONTARIO SUPERIOR COURT of JUSTICE had no authority over a living man or woman. This stance confirms that they are failing to comply with the Declarations of Arbroath 1320 and the Common Law Court 2018, they are therefore guilty of binding the people into slavery”. He accuses the Ontario Superior Court of Justice of “abuse of position, Theft of Property, Criminal Coercion, Uttering, the Failure to accept the positions of a living man or woman, Refusal to Comply with common law, Tyranny and Treason.” He demands that “the use of my property (VELA SUMMER CIPOLLA) must cease immediately.”[^1]

[7] By endorsement dated March 8, 2021, Boswell J. of this court dismissed the six lawsuits under rule 2.1.01 of the [Rules of Civil Procedure][^2] as being frivolous and vexatious. He called the lawsuits “nonsensical”. He also issued a second endorsement on March 24, 2021 addressing the “lawful notice”, calling it “rubbish” and warned Mr. Cipolla to “clean up his act” failing which he would be found to be a vexatious litigant.

[8] As this trial date approached, John Cipolla decided to have recourse to another “alternative court”, being the ASKIT Judicial Tribunal of the Anishinabek Solutrean Metis Indigenous Nation (ASMIN). On May 22, 2022, that “Tribunal” purported to issue a “perspicacity”[^3] granting John Cipolla decision making concerning Vela. It is confusing as to where Vela was to live as it says that care would be shared equally but also stated that Vela’s primary residence would be with the Respondent Father in New York State.

[9] Since that “decision” was issued, John Cipolla has only participated marginally in these proceedings. He says that the decision of the ASMIN tribunal usurps the jurisdiction of the Ontario Superior Court of Justice. He refused to participate in the Trial Scheduling Conference before Justice Douglas on October 19, 2022, and Justice Douglas stated that the respondent “does not recognize the jurisdiction of the court and did not meaningfully participate” that day. He reiterated his position on jurisdiction before Justice Wildman at the Trial Management Conference on November 30, 2022 and asked her “to note in this endorsement that ‘this matter has been dealt with in full by the ASMIN tribunal and is now closed.’”

[10] Before and after the “decision” of the ASMIN tribunal, John Cipolla engaged in litigation conduct that would be grounds for disciplinary action had a solicitor committed these offences. His conduct can only be described as outrageous and disrespectful. In his March 24, 2021 affidavit, he referred to Mr. Herron, solicitor for the Applicant as “Jeremy unscrupulous Herron.” On October 31, 2022 after the Trial Scheduling Conference, he communicated by email directly to Justice Douglas, stating as follows:

The attached UCC1, UCC1 amendments, PPSA Registration and International Apostille filings prove that I hold both legal and Equitable title to my estate and Legal Title to the VELA SUMMER CIPOLLA estate in my capacity as Secured Party Creditor (SPC), Holder-in-Due-Course (HDC), and Real Party In Interest (RPII). The Crown does, however, hold legal title to opposition, THE JESSICA WOODLEY ESTATE, since she (Jessica Woodley) is presumed to be a "minor" in the nature of Title 31 Code of Federal Regulations 363.6 or the equivalent, applicable Canadian law as a British subject held in trust.

[11] John Cipolla suggests to Justice Douglas that he could file a security interest in Vela under the Personal Property Security Act and states that

Since VELA SUMMER CIPOLLA (in commerce) is my property, I require an order, from you, that JESSICA WOODLEY (Jessica Woodley), and her Crown Trustee, be ordered to pay child support, for Vela Summer Cipolla (Vela), to John Cipolla in the amount of $10,000. monthly for the next 15 years (Vela's 22nd birthday/last year of college).[^4]

[12] John Cipolla threatened court staff who were just doing their job. When the trial coordinator sent him the Zoom link for the trial, he accused her of harassment, stating that:

This is the 3rd time that I’ve advised you, SCJ, Family Branch and Family Registrar team (and J Wildman today) that this matter was adjudicated in the ASMIN Tribunal last May and a final order issued- see my 11/22/2022 email with attachments A-G. In addition, I stated that if if I received anymore correspondence with respect to this matter from SCJ, Family Branch Registrars, TC, Judges or opposing counsel that it would be deemed by me to be a threat, harassment and intimidation and that I would file criminal charges. Do I need to seek a restraining order? Cease and desist immediately.[^5]

[13] But most of his vitriol has been reserved to the judges who were involved in this matter. In 2021, John Cipolla accused Healey J. of this court of corruption and incompetence. He recorded a case conference before Graham J. on February 19, 2021 contrary to s. 136 of [Courts of Justice Act][^6]. John Cipolla had a Trial Management Conference with Justice Wildman on November 30, 2022 and again breached s. 136 of the Courts of Justice Act and prepared a transcript of the hearing. He emailed Justice Wildman, accusing her of conspiracy, intimidating a court participant, and terrorism. He purported to send an invoice for $25,000 per day to Justices Douglas and McCarthy for “carrying out Endorsements” that they had issued in this matter and accused Justice McCarthy of fraud.

[14] When John Cipolla found out that I would be doing the trial, he began to email me directly as well. He emailed me an affidavit that stated that the ASMIN Tribunal had exclusive jurisdiction n because of his aboriginal status. He said in his email that, as a result, “This concludes the matter in your court.”

[15] The night before the trial, John Cipolla decided that he would have other members of ASMIN email me, other judges of the Superior Court in Barrie who have presided over this matter as well as the Chief Justice of the Superior Court of Justice, the Senior Family Judge and the Regional Senior Justice. Members of the Ontario judiciary suffered through 10 to 15 unsolicited emails throughout the night. The emails attached the decision of the ASMIN tribunal and typically stated as follows:

The long standing abuses to indigenous are continuing despite UNDRIP

One People's Federation. Attached pls find ASMIN Tribunal Notice including final order and Envoy appointment from G.C. Mukwa to colonial Superior Court Justice J. McDermot Notifying him that he needs to heed Indigenous Tribunals, laws, customs and traditions.

[16] John Cipolla denied having anything to do with this when he spoke to the matter at the commencement of the trial on December 7, 2022, but this was untrue: his email of December 6, 2022 to other members of ASMIN was mistakenly included with one of the emails to the court and stated, “Aloha. Can all of you pls send an email blast like the one below to all the same emails, attach the ASMIN tribunal letter and bc me before 9:15 am this morning? If it’s after 9:30 am send it any way regardless.” The email contained the script noted above. It was clear that he was responsible for numerous emails being sent to various judges of this court demanding that the court decline jurisdiction in this case.

[17] John Cipolla appeared at this trial but only to argue that this court had no jurisdiction over him or his daughter due to their aboriginal heritage. That issue was argued and I determined that the trial would proceed and the court had jurisdiction. John Cipolla then asked me if he was being compelled attend the trial and I told him he was not. He then said that he would not participate in the trial and left the zoom meeting before the trial was completed. The trial was based on the Applicant Mother’s evidence by affidavit sworn December 2, 2022. John Cipolla did not file an affidavit, call any evidence, cross- examine the Applicant, as he was entitled to do, or file any material other than the affidavit disputing jurisdiction, and by the time the Applicant Mother had completed her case, he had left the trial.

Jurisdiction

[18] John Cipolla says that this court does not have jurisdiction for several reasons:

a. He says that he is indigenous and that the decision of the ASMIN tribunal has usurped jurisdiction from the Ontario Superior Court of Justice.

b. He also, in his submissions, stated that his discharge of a bond has also removed jurisdiction from the Superior Court of Justice.

[19] This application for a parenting order was brought by the Applicant under the provisions of the [Children’s Law Reform Act][^7]. Under s. 22(1)(a) of the CLRA, jurisdiction in a proceeding is dictated by the residence of the child: if the child is “habitually resident” in Ontario at the commencement of proceedings, the Ontario court, in this case the Family Division of the Superior Court of Justice, has jurisdiction to address parenting issues. There is no doubt that this was the case with respect to Vela, who was then (as of the date the Application was issued) living with her mother in Port McNicoll, Ontario. Mr. Cipolla was also living in Port McNicoll on that date and confirmed as much when he filed his Answer and Claim by Respondent on September 11, 2020. There is no question that this court had jurisdiction to address this matter under the provisions of the CLRA when Ms. Woodley commenced these proceedings.

[20] John Cipolla not only requested in his Answer that the application be dismissed; he also requested a parenting order to be made by this court. In doing so, he attorned to the jurisdiction of this court. However, he suffered a number of setbacks in this proceeding, including dismissal of two motions for shared care and then “100% access”, the granting of two orders returning the child to the Applicant Mother after he overheld the child, the dismissal of his lawsuits against the Applicant, her parents and Legal Aid and finally an order quashing his witness summonses to legal aid officials. Because of this, John Cipolla decided that it would be best for him to proceed to obtain a default “order” made by the ASMIN Tribunal. He believed that this forum would be more favourable to him and he was right.

[21] It is important to note that John Cipolla did not properly take steps to have this court decline jurisdiction which he should have done prior to proceeding in another forum. The proper course of action would be to move that this court decline jurisdiction under s. 25 of the CLRA and then bring new proceedings. It was not good practice for John Cipolla to bring default proceedings elsewhere in the face of a properly constituted court and then present the order as a fait accompli.

[22] The decision of the ASMIN Tribunal proceeded by way of default hearing. In that decision John Cipolla was given legal “decision-making” over Vela with equal shared care. The decision was confusing and conflicting: although the “perspicacity” says that care would be shared, it also says that the primary residence of Vela was with John Cipolla in New York State. It further provided that Ms. Woodley would pay $300 per month in child support as well as more than $36,000 in costs. The document states that, “This Decision amends and supersedes any previous or subsequent orders, endorsements or agreements of any family court in which these parties are litigating on Turtle Island, unless a Treaty among ASMIN - Canada - USA directs otherwise.”

[23] John Cipolla’s argument was summed up in his affidavit sworn on November 22, 2022,[^8] referred to in argument and emailed to me (but not properly filed with the court) which stated as follows:

The ASMIN Tribunal is the only venue with jurisdiction since Vela and i are Indigenous and this action occurred on our unceded land- see attached Daniels v. Canada 2016 [17] where the sec recognized the Metis of eastern Canada, Art Ill of UNDRIP(2021) & OAS(1990) recognized the right of self determination, Tsilhoq'in (2014) [69] sec held that Terra Nullius never applied in Canada, in Desaultel (2021) [72] the sec held the Crown had a duty to consult when they have notice of a aboriginal right or title and Canada's Truth & Reconcilliation Report part 5 that protects Indigenous posterity. In 2021 i was appointed Envoy of ASMIN.

[24] There has been controversy in the news recently concerning individuals who have falsely claimed First Nations ancestry to gain an academic or occupational advantage. Similarly, an individual or a group of individuals do not become First Nations based only on their say so or membership in an illegitimate organization. ASMIN appears to be such a group and there was no evidence of recognition of ASMIN as being a First Nations in Canada or the United States. Indeed, the group remains unrecognized by any aboriginal or governmental authority as a first nation in this province and it appears that anyone, regardless of indigenous status, can join ASMIN by payment of a fee of $225: see Mukwa v. Farm Credit of Canada, 2021 ONSC 1632 as aff’d by 2022 ONCA 320.

[25] This is not the first time that a member of ASMIN has utilized the arguments noted above concerning aboriginal right or title. For example, arguments concerning unceded land and the Tsilhoq'in case[^9] were relied upon by Mr. Mukwa in an attempt to stop foreclosure proceedings in the Farm Credit case noted above. Both this court and the Ontario Court of Appeal made short shrift of those claims, and quickly dismissed them. Indeed, the Plaintiff in that case, Grand Chief Wabiska Mukwa, appears to be the decision maker in the “perspicacity” of the ASMIN Tribunal noted above.

[26] Mr. Herron, in his submissions, stated that John Cipolla had engaged in tactics known as OPCA [Organized Pseudolegal Commercial Argument]. Those tactics were described by Rooke C.J.A. in Meads v. Meads, 2012 ABQB 571 as comparable to “medieval alchemy”; a vain attempt to turn base metals into gold but held out as legitimate. Rooke C.J.A. described the arguments made by OPCA litigants as mostly nonsensical and a purposeful abuse of the court system in order to achieve a result without addressing the merits of the litigation. This is because, as discovered by John Cipolla, OPCA litigants almost invariably have no reasonable expectation of litigation success based on the merits. Rooke C.J.A., in a detailed decision, notes a number of OPCA tactics, including:

• unique nomenclature and name motifs;

• a concept that “everything is a contract”;

• a denial that the court has jurisdiction over an OPCA litigant;

• use of “obsolete, foreign, or typically otherwise irrelevant legislation”; and

• egregious litigation conduct.

[27] In argument, John Cipolla took great exception to the statement by Mr. Herron that he engaged in OPCA tactics. However, I believe that his strong reaction to this suggestion shows that he is well aware that he meets the standard criterion of an OPCA litigant. In fact, the individual who gave John Cipolla his “default” hearing, “Grand Chief” Wabiska Mukwa, was denounced in several cases as having used OPCA tactics: See Mukwa v. Farm Credit Canada, supra, Sarac v. Wilstar Management Inc., 2021 ONSC 7776 and National Bank of Canada v. Guibord, 2021 ONSC 6549. Mr. Mukwa was unsuccessful in all of those cases, mostly involving mortgage remedies or landlord and tenant issues.

[28] John Cipolla used similar tactics in this litigation as were described by Justice Rooke in Meads, which was, as with the present case, a matrimonial cause where the Respondent sought to avoid disclosure obligations. Cipolla goes by the name of “i; a man; have no legal name only a christian name. John Cipolla: a man. SPC/HDC/RPII/Trustee/Bailee.”[^10] He has used unique documentation, including identification by thumbprint. He relies upon a selective reference to Supreme Court of Canada decisions, including a statement that there is a “right to consult” under Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 even though that was a land claims case, not one involving parenting of a child. He filed an article concerning the applicability of United States jurisprudence in Canada and questioned the promulgation of the British North America Act. He engaged in odious litigation conduct noted above.

[29] However, John Cipolla focused his arguments on jurisdictional issues. In Meads, Rooke C.J.A. said [at para. 267]:

A very common OPCA scheme category is that the OPCA litigant is in some manner outside the jurisdiction of the court or state, or is somehow rendered immune from legal obligations. This category has three general forms:

1. the jurisdiction of the court is restricted to certain specific domains, and the OPCA litigant falls outside those categories;

2. the jurisdiction of the court is eliminated due to some defect; and

3. the OPCA litigant is in some manner immunized from the court's actions.

[30] John Cipolla cloaks his argument in the guise of indigenous rights. He says that he, along with Vela, is indigenous and that the only valid authority is the ASMIN tribunal. He issued a trespass notice concerning these proceedings. He argues a number of Supreme Court of Canada precedents saying that the Canadian or Ontario Courts have no jurisdiction because of the “right to consult” contained in the Tsilhqot’in Nation decision.

[31] As noted, these arguments have been previously used by the “Chief Justice” of the ASMIN tribunal, Wabiska Mukwa, in his own litigation. In Sarac, Myers J. determined that the ASMIN tribunal was “not a domestic tribunal exercising a jurisdiction on behalf of a First Nation that has been recognized by the Court of Appeal for Ontario.” The order of the ASMIN tribunal in this case was certainly not recognized by the Saint Regis Mohawk Tribal Court[^11] and the John Cipolla has not demonstrated any valid reason why this court should recognize the order.

[32] Finally, in Guibord, Mew J. found Tsilhqot’in inapplicable to the commercial dispute before the court in that case [at para. 13]:

No duty to consult arises in this case because, as will be further discussed below, the pleaded dispute between the parties does not raise justiciable issues of aboriginal title, nor is the Crown a party.

[33] That is the case here. This is a matrimonial cause involving the parenting of a child. To suggest that the Respondent Father has a proprietary interest in his daughter (by, for example, filing a PPSA security interest) is, in the words of Boswell J., offensive. The case at bar involves the best interests of a child, not the disposition of property or a land claim. There is no “right to consult” in the present case.

[34] In Sarac, Myers J. spoke of the suggestion that ASMIN is defending Aboriginal rights:

This country recognizes that real injustices have been inflicted upon its Indigenous communities including the Metis People. Litigants who try to avoid their financial responsibilities by wrapping themselves in the garb of Indigenous Peoples' real victimhood and suffering to tie up the courts with illegitimate and abusive claims deserve not another moment of court time or attention.

[35] I cannot agree more. There is no question that Indigenous people in Canada, especially children, have suffered greatly and deserve redress and respect. To make arguments in an in personam case based on an Indigenous land claim supported by a made-up tribunal promulgated by an illegitimate organization posing as a First Nation does nothing more than a disservice to the efforts of Canada’s First Nations. It dilutes and cheapens legitimate claims by Indigenous peoples in Canada and deserves no consideration by this court, which must focus only on the best interests of the child who is the subject matter of this case. It is to be noted that John Cipolla could have addressed Vela’s Indigenous ancestry in the context of Vela’s best interests under s. 24(3)(f) of the CLRA. However, as far as I can see, he has never raised that issue in this court or in these proceedings.

[36] Moreover, John Cipolla cannot complain about this court having jurisdiction when he had filed an Answer and Claim by Respondent requesting a parenting order. That Answer was never withdrawn. By filing the Answer in this proceeding, John Cipolla attorned to the jurisdiction of this court and confirmed that the Ontario Superior Court of Justice had the unquestioned authority to make parenting decisions concerning Vela.

[37] There is also no evidence that Ms. Woodley agreed that the ASMIN tribunal had jurisdiction in this matter, especially insofar as the proceedings were noted as having been default proceedings. Moreover, even were that tribunal legitimate and even had Ms. Woodley attorned to that court, the jurisdiction of the Ontario courts is not necessarily dictated by attornment to any jurisdiction but rather the habitual residence of the child and the factors under s. 22 of the CLRA: see Murray v. Ceruti, 2014 ONCA 649 where the court stated [at para. 40]:

However, assuming without deciding that the respondent did attorn, it is important to have regard to the role of attornment in a jurisdictional analysis under the CLRA. Attornment is not referenced in the CLRA. At most, it is a factor to be considered in the analysis mandated by s. 22(1)(b), and in the analysis of whether to decline jurisdiction under s. 25. On the facts of this case, it is not dispositive of either issue.

[38] Finally, John Cipolla filed a document entitled “Discharge Document No. 3” which purports to be a discharge of a bond. There are a number of different documents contained in this filing, including a purported lien against the pleadings in this case, a “UCC Financing Statement” supposedly issued in Colorado, a “Hold Harmless and Indemnity Agreement” in favour of the “John Edward Cipolla Trust”, a “Common Law Copyright Notice” in favour of the said trust advising that this court was in breach of copyright law, a “Notice Concerning Fiduciary Relationship” and an “Affidavit of Truth” attaching discharged bonds. All of these documents appear to have been issued in the United States and many appear to be irrelevant to these proceedings. Many are confirmed by “digital fingerprint” and are largely incomprehensible and irrelevant.

[39] During argument, John Cipolla asked me to confirm that this document deprived the Ontario Superior Court of Justice of jurisdiction. When I asked him how that could possibly be the case, John Cipolla told me to go and do my research. He was unwilling to explain to me how the document had anything to do with the case or the jurisdiction of the court, probably because the document was complete nonsense and incomprehensible. However, I suspect that these documents are related to the concept often relied upon by OPCA litigants that “everything is a contract” noted by Rooke C.J.A. in Meads, supra. The court’s review of the document confirms that it has nothing to do with this case or the best interests of Vela.

[40] As noted above, and similarly to other examples of OPCA litigation, the Respondent’s submissions appear to me to be an intent to avoid any examination by the court of the merits of his case. The arguments on jurisdiction, the filing of some sort of bond discharge, the reliance on a decision by a tribunal of a dubious organization are all designed to obfuscate and deflect the court from its mission of determining what type of parenting order is in the child’s best interests. The documents filed by the Respondent are completely nonsensical and have no legal effect and I therefore reject them wholly.

[41] As I advised at the commencement of trial, I find that this court has jurisdiction, and the trial proceeded. Soon after this ruling, Mr. Cipolla, who participated by Zoom, left the meeting, refusing to participate in the hearing.

Parenting Issues

[42] The only issue that this trial was to address was the parenting of Vela including decision making and time sharing. I am advised that child support was addressed in a previous order of this court.

[43] The parties attended at a Trial Management Conference on November 30, 2022. Justice Wildman of this court directed that the parties file their evidence-in-chief by way of affidavit evidence. John Cipolla had previously filed an affidavit which only dealt with jurisdiction and not the best interests of Vela. Ms. Woodley filed an affidavit sworn December 2, 2022, which addressed Vela’s best interests and provided a history of the parental conflicts which have lately plagued these parties. John Cipolla did not file an affidavit pursuant to Justice Wildman’s endorsement. He did not remain at the trial to cross examine Ms. Woodley on her evidence in chief. Ms. Woodley called no evidence other than her affidavit.

[44] Ms. Woodley’s affidavit addresses the present living conditions of Vela in her home with her partner in Honey Harbour. Vela lives there with her mother, her stepfather, Andrew Nicholson and Vela’s stepbrother, Trent Woodley-Nicholson, born May 3, 2022. The Applicant and Vela have lived with Mr. Nicholson in his home since the end of 2020. Vela attends school in Honey Harbour. According to the affidavit, Vela has a close and loving relationship with both Ms. Woodley and her partner. Ms. Woodley ensures that Vela remains in touch with John Cipolla’s family and also facilitates virtual contact between John Cipolla and Vela. She is, according to the affidavit, thriving in her present environment and all of her needs are being met.

[45] Ms. Woodley also deposes to the fact that Vela loves her father, John Cipolla and enjoys her virtual visits with him which are weekly. However, the affidavit discloses a serious history of family violence at the hands of John Cipolla including physical assaults against Ms. Woodley by John Cipolla for which criminal charges were laid and resolved by peace bond.

[46] John Cipolla is an American citizen and lives near Buffalo in New York State. He takes care of his mother who is terminally ill. He has recently returned to Canada and was arrested on criminal charges pursuant to a Bench Warrant issued by the Ontario Court of Justice in Barrie. He was released on bail on December 14, 2022 and cannot return to the United States except to assist his ailing mother.

[47] The parties separated in 2017. They obtained a divorce in New York State in 2019. After this, the parties came back to Canada and lived with the Applicant’s parents but separate and apart. In March, 2020, John Cipolla left to live in a residence in Port McNicoll, leaving Vela in the care of the Applicant. A temporary order was made on September 17, 2020 which sets out John Cipolla’s parenting time which included every second weekend and midweek parenting time.

[48] The affidavit outlines four different occasions where John Cipolla refused to return Vela after parenting time. On one occasion, John Cipolla forcibly removed Vela from the care of Andrew Nicholson. On two other occasions, John Cipolla took Vela to New York State and refused to return Vela. On two occasions, Ms. Woodley was forced to obtain emergency court orders for the return of Vela from the Respondent’s care when he overheld Vela after parenting time. Ms. Woodley has had to avail herself of police assistance on a number of occasions. On the last occasion, in December, 2021, John Cipolla asked to take Vela to Florida with his family, returning on January 18, 2022. Ms. Woodley agreed to the requested parenting time but then discovered that due to criminal charges in Canada, John Cipolla could not return Vela to Canada as promised. He did not return Vela when he was supposed to and Ms. Woodley retrieved Vela on January 27, 2022 pursuant to an urgent court order made by this court. The order provided that John Cipolla would not have in person parenting time until he returned to Canada after which the September 17 order would resume. John Cipolla has had only virtual parenting time with Vela since January 27, 2022. Ms. Woodley deposes that she has not communicated directly with John Cipolla in over a year.

[49] The court notes that John Cipolla has filed, as an attachment to his affidavit, an “agreement” between himself and Ms. Woodley. In that “agreement”, Mr. Nicholson is referred to as a “pedophile” and a “child rapist.” In addition, according to that agreement, it is Ms. Woodley and not John Cipolla who has overheld Vela. The five page document asserts, “Jessica has claimed Andrew Nicholson was her childhood pedophile rapist and staying with him is endangering vela.”[^12]

[50] Although John Cipolla refers to this document as an agreement, there is no proof of execution of the document by the Applicant or, for that matter, by the Respondent. The document does not meet the formality of being a domestic contract under s. 55(1) of the [Family Law Act][^13]. The Respondent did not give any evidence about execution of the document or on what basis he could assert that it was an agreement between the parties. It is an unsworn document and nowhere does John Cipolla adopt the contents of the document as being true. I do not find it to be evidence of the facts that are set out in the document or that there was any sort of agreement binding the parties.

[51] It is clear from the materials that these parties cannot communicate or co-parent Vela and that shared decision making is not in the best interests of Vela at this time: see Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 (C.A.). As well, Vela’s needs are being met in the care of the Applicant and there is no evidence contradicting the fact that Vela is presently in a loving home with the Applicant who is successfully parenting Vela. It is in Vela’s best interests that the Applicant Mother have sole decision making and primary residence of Vela.

[52] It is also apparent that Vela should not be permitted to travel outside of Ontario with the Respondent and that the Respondent will not obey any order of this court. The Respondent’s denial of this court’s jurisdiction on dubious grounds makes that clearly apparent. Parenting time should be at the discretion of the Applicant as to supervision, location, duration and when the parenting time takes place.

[53] Because of the history of this matter, Ms. Woodley should have the right to obtain a passport for Vela without the Respondent’s signature.

[54] Therefore, final order to go:

a. The Applicant Mother shall have sole decision-making authority concerning Vela.

b. Vela shall have her primary residence with the Applicant Mother.

c. The Respondent Father shall have parenting time at the sole discretion of the Applicant Mother as to duration, supervision, place and time.

d. The Respondent Father shall not be permitted to remove Vela from the Province of Ontario.

e. Police to assist in enforcement of this order as per Schedule A.

f. The Applicant Mother shall be permitted to apply for a passport for the child without the necessity of the Respondent Father’s signature and the Applicant Mother may travel with the child outside of Ontario without permission of the Respondent Father.

g. The Respondent Father’s claims for parenting time and decision-making as set out in his Answer and Claim by Respondent are dismissed.

[55] The Applicant Mother is entitled to her costs of this proceeding. If she wishes to pursue her claim for costs, she may provide written submissions as to the quantum of costs on notice to the Respondent Father on a twenty day turnaround. Submissions to be no more than five pages in length not including offers to settle and bills of costs.

Justice J.P.L. McDermot

Released: December 16, 2022

Schedule “A”

Pursuant to section 141 of the Courts of Justice Act and section 36 (2) of the Children’s Law Reform Act, the Ontario Provincial Police, the local Police Service and any other law enforcement agencies having jurisdiction to enforce the provisions of this Order in the Province of Ontario, in the area where the child and/or children is/are located, shall assist as required for enforcing the provisions of this Order and shall specifically take all such action as required to locate, apprehend and deliver the said child and/or children to Jessica Woodley, including utilization of the powers of search and entry at any time. This order expires upon further order of the court.

[^1]: See the exhibits to John Cipolla’s affidavit sworn March 18, 2021 appended to Justice Boswell’s endorsement of March 24, 2021.

[^2]: R.R.O. 1990, Reg. 194

[^3]: Attached as part of Ex. F to Jessica Woodley’s affidavit sworn December 2, 2022 (Trial Ex. 1).

[^4]: Email to Bev Taylor, cc to Justice Douglas dated October 31, 2022.

[^5]: Email from John Cipolla to Barrie Trial Coordinator dated November 30, 2022.

[^6]: R.S.O. 1990, c. C.43.

[^7]: R.S.O. 1990, c. C.12. As the parties were divorced in New York State, this was a foreign divorce which does not permit commencement of corollary relief proceedings under the Divorce Act in Canada: see Omyansky v. Omyansky, 2007 ONCA 427, [2007] O.J. No. 2298 (C.A.).

[^8]: John Cipolla failed to file this affidavit with the court and also did not make it an exhibit at trial. For the record, I have placed a hard copy of this affidavit and exhibits on the court file.

[^9]: Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257

[^10]: See the style of cause in John Cipolla’s affidavit sworn November 11, 2022.

[^11]: See Ex. G to the affidavit of the Applicant sworn December 2, 2022 (Trial Ex. 1).

[^12]: Attachment E to the Respondent’s affidavit sworn November 22, 2022.

[^13]: R.S.O. 1990, c. F.3