Court File and Parties
COURT FILE NO.: FC-23-338 DATE: 2023-05-09 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Mindy Jo Johnston, Applicant AND: Roger Da Silva, Respondent
BEFORE: The Honourable Madam Justice R.S. Jain
COUNSEL: Stephanie Martinez, Counsel for the Applicant Ryan Manilla, Counsel for the Respondent
HEARD: April 27, 2023
Ruling on Motion
Introduction and Preliminary Issue
1The parties were married on August 10, 2012. They have four children together, namely, Daniel John Da Silva born July 18, 2012, Joshua Emanuel Da Silva born September 16, 2013, Rachel Eve Da Silva born December 7, 2014 and Benjamin Thomas Da Silva born May 3, 2016 (“the children”). They have resided together in the matrimonial home in Bradford, Ontario since September 2013. The parties separated on January 7, 2023 when the Applicant took the children for a family visit to South Carolina, U.S.A. At the time of this motion, the Applicant and the children remain in South Carolina, U.S.A. residing with family.
2This matter came before me as the return of an urgent 14B motion (without notice) dated March 30, 2023 by the Applicant Mother (Applicant). In addition to the procedural relief sought in the 14B motion, the Applicant sought an order permitting her to submit evidence to the court, on a motion without notice to the Respondent, on the basis of urgency and fear of danger to the Applicant and the children as outlined in her affidavit. In the Applicant’s affidavit dated March 30, 2023, the Applicant stated that her affidavit was in support of her “urgent motion for relocation and the relief sought in my Notice of Motion dated March 17, 2023.”
3On March 31, 2023, Vallee J. made a temporary, without prejudice Order granting the relief sought in the Applicant’s 14B motion and further made an Order permitting the Applicant and the children to remain in South Carolina until further order of the court. The motion was adjourned to April 6, 2023. The Respondent Father (Respondent) was served on April 3, 2023. The Applicant’s Affidavit of Service refers to the Form 8, 8.0.1, 13.1, 14A, 14B, 14D, 35.1, First Appearance Hearing Info Package, and Endorsement of Justice Vallee. It does not appear to include a Notice of Motion dated March 17, 2023 to permit interim relocation to South Carolina with the children. The matter returned before McDermot J. on April 6, 2023 and was adjourned to today to give the Respondent time to serve and file responding materials and the Applicant time to serve and file reply.
4The Applicant’s 14C Confirmation confirmed and specified that the Applicant sought an order permitting her to temporarily remain in South Carolina with the children until further order of the court, (effectively, she wished to extend the temporary Order of Vallee J. made on March 31, 2023). The court could not locate the Applicant’s Notice of Motion dated March 17, 2023 in the physical file, electronic file, or on Caselines. The only motion that could be located was the 14B Motion dated March 30, 2023 that does not contain a request to permit interim relocation. Despite there being no Notice of Motion form regarding relocation filed with the court, the Respondent did not raise any procedural objection to the motion proceeding. He served and filed a responding affidavit dated April 19, 2023. The Applicant served and filed a reply affidavit dated April 21, 2023.
5Procedurally, the only motion properly filed before the court is the Applicant’s 14B motion, (which does not include a request for an Order permitting her to temporarily relocate to and remain in South Carolina with the children). However, the Respondent was served with the endorsement and Order of Vallee J. dated March 31, 2023; the issued Application wherein it is clear that the Applicant wishes to relocate; and two affidavits of the Applicant wherein she makes it very clear she is requesting an order to permit her to temporarily remain in South Carolina with the children until further order. The Respondent served and filed materials opposing the order sought by the Applicant. He did not file a Notice of Motion, however, he specifically requested that the Court “deny the Applicant’s requested Order that she and the children remain in South Carolina until further Order of the Court.” Therefore, despite the procedural deficiency, I am satisfied that the Respondent received sufficient notice of the interim relief sought by the Applicant, and I find the Applicant’s motion requesting an order permitting her to temporarily remain in South Carolina with the children is deemed to be properly before the court.
Issue
6The sole issue for the court to consider is,
Should the court grant or deny the Applicant’s request for an order permitting her to temporarily remain in South Carolina with the children until further order of the court?
Decision
7For reasons set out below, the Order of Vallee J. dated March 31, 2023 is hereby extended. The Applicant is permitted to remain in South Carolina with the children until further order of this court.
Analysis
8On or around January 7, 2023, the Applicant left Canada with the children to visit family in South Carolina. This trip was consented to by the Respondent. The Applicant stated in her affidavit that she intended on using this opportunity to escape the abusive situation that she and the children were living in with the Respondent. She is asking for an order permitting her to remain in South Carolina with the children until further court order. She stated that she had no other choice but to leave with the children under false pretenses so that she could “relocate” with the children “to a place far from Roger where we will be safe and protected.” Counsel Ms. Martinez says that the details in the Applicant’s affidavits just touch the surface of her safety concerns. The Applicant believes that she is at grave risk and that the circumstances living with the Respondent were intolerable.
9In her affidavits, the Applicant outlined many details of historic and ongoing allegations of financial, physical emotional/psychological abuse that she and the children have suffered at the hands of the Respondent. She stated that she and the children “have suffered many years of mental, physical and financial abuse” and that they “no longer wish to live in an environment that is toxic, dangerous, and untenable.” She provided many examples of the mistreatment that she and the children have suffered. In my view, if only a few of these examples are accurate, the Applicant and children have been living in a horrible situation of coercive and controlling behaviour exercised by the Respondent that included neglect, financial insecurity, food insecurity, and physical and emotional/psychological abuse. The Applicant states that the alleged family violence has caused her to fear for her own safety and the safety of the children.
10In the Respondent’s materials, he stated that he “vehemently denies” all of the serious allegations the Applicant has made against him. He stated that he has “no criminal record, no pending criminal charges and no Children’s Aid record and, no outstanding Children’s Aid investigations.” This, however, is not completely accurate. The evidence filed by the Applicant shows that she reported some of the allegations to the police in November, 2022. The police found there was “insufficient grounds to proceed” with charges, and the CAS has closed their file because the children and the Applicant “are not in Ontario at the moment and are not in imminent danger.”
11The Respondent denied all the allegations made against him and stated that the Applicant’s allegations cannot be relied upon because they are not proven. He submitted that she delayed in reporting the alleged abuse, and she lacks credibility. Despite the Respondent’s denials, I find there is some independent evidence to support the Applicant’s allegations and fears, (police and CAS involvement and also the involvement of the family’s pastor). In addition, I found many of the statements in the Respondent’s own affidavit to be less of a “vehement denial,” and more of a minimization of the seriousness of the allegations, and/or deflection of responsibility onto the Applicant regarding the allegations.
12The Respondent further used the affidavit as an opportunity to criticize the Applicant’s cooking, cleaning and her adequacy as the homemaker and primary caregiver of the children. He questioned her credibility and mental health because of her delay in reporting the allegations of family violence and by bringing up allegations of her historic childhood trauma. In my view, the Respondent’s affidavit contained many statements based upon some of the common myths and stereotypes about Applicant’s who make false claims of family violence to gain an advantage in family court. The court does not dispute that this has occurred in some cases, however, a delay in reporting and/or the past behaviour of the alleged victim do not definitively prove that the allegations of family violence did not occur. Not unlike myths and stereotypes in other types of assault cases, there is no one model or rule for how a victim of trauma and/or family violence behaves. (See summary of myths and stereotypes about victims of trauma and sexual assault in R. v. D.R., 2022 NLCA 2 at 17-33; majority affirmed 2022 SCC 50).
13Family violence, power imbalance and control issues are serious and red flags respecting safety that cannot be ignored. Recent changes to the Divorce Act, require courts to consider the impact of family violence. Family violence is defined in section 2 (1) of the Divorce Act as follows,
“family violence” means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person – and in the case of a child, the direct or indirect exposure to such conduct – and includes
(a) Physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
(b) Sexual abuse;
(c) Threats to kill or cause bodily harm to any person;
(d) Harassment, including stalking;
(e) The failure to provide the necessities of life;
(f) Psychological abuse;
(g) Financial abuse;
(h) Threats to kill or harm an animal or damage property; and
(i) The killing or harming of an animal or the damaging of property.
14In situations of coercive controlling family violence, it is actually very common for the victim to delay reporting the allegations, because of the level of coercion and control being exerted upon them when they are in the relationship. It is also common for their stories to have some degree of inconsistency in the details and timelines because they are recovering from the effects of prolonged stress and trauma. In the circumstances of this case, it is my view that the delayed and/or non-reporting of the alleged abuses and the lack of sufficient evidence to lay charges, does not mean that the Applicant’s allegations and reports are untrue or that the Applicant lacks credibility.
15In matters of interim relocation, each case turns on its own set of facts. It is acknowledged that the Applicant has not complied with the notice provisions contained in s. 16.9 of the Divorce Act [1] for an application for an order permitting her to relocate with the children. The notice provisions and burden of proof provisions in the Divorce Act provide assistance to the courts in situations where there are Orders or Agreements in place regarding the decision-making responsibility, mobility and parenting time. However, whether there is an Order/Agreement in place or not, in all cases, pursuant to s. 16.9 (3) (4) the court may provide that the notice requirements “do not apply or may modify them, including where there is a risk of family violence.” When there is a risk of family violence, the court may make an order that their application may be made without notice. The Order of Vallee J. granted the Applicant permission to issue her Application and Motion without notice.
16Now that the Respondent has received notice, the next question is whether or not it is the Applicant or the Respondent that bears the burden of proof to justify the interim move pursuant to s. 16.93 of the Divorce Act. The Applicant listed the date of January 7, 2023 as the date of separation. This is the same date that she and the children left for South Carolina. Neither party made submissions to the court on the issue of burden of proof, however, both parties acknowledged that the Applicant was the primary caregiver prior to separation. There was no Order or Agreement in place at the time of separation. In my view, since this is an interim motion and there was no Order or Agreement in place, this matter falls into the category of s. 16.93 (3) of the Divorce Act whereby both of the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the children.
17The effect of s. 16.92(1) is that, in deciding whether to authorize the Applicant’s interim relocation with the children, I must consider both the relevant statutory factors pertaining to the children’s best interests, as set out in ss. 16(3), (4) and (6) of the Divorce Act, as well as the factors related to the proposed relocation set out in s. 16.92(1) thereof.
18It is difficult, if not impossible for the court to complete an extensive child focused inquiry based on an incomplete record and conflicting affidavit evidence. At the same time, there is insufficient evidence to determine whether it is safe or in the children’s best interests to return to Canada, even though this is their habitual residence.
19The Supreme Court of Canada has made many important comments about how the courts have increasingly recognized that any family violence or abuse may affect a child’s welfare and should be considered in relocation decisions. (See Barendregt v. Grebliuans, 2022 SCC 22 at paras. 141-147). Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives. Harm can result from direct or indirect exposure to domestic conflicts and domestic violence allegations are notoriously difficult to prove. Because family violence may be a reason for the relocation and given the grave implications that any form of family violence poses for the positive development of children, this is an important factor in relocation cases (in addition to all the other factors the court must consider).
20The Applicant is a U.S. citizen and one of the children was born in the U.S.A. Their only home for the majority of the children’s lives has been in Canada. The parties had what the Respondent calls a “traditional” marriage whereby he worked outside the home and was the sole financial provider. The Applicant is and always has been the acknowledged primary caregiver of the children. She continues to homeschool the children, which historically was the case when they were all in Canada. The Applicant is completely financially dependant upon the Respondent. At this time, she has no way to support herself or the children in Ontario or in South Carolina. The Respondent consented to the Applicant taking the children down to South Carolina for an extended visit with her family. In South Carolina, the Applicant’s sister and family have been and continue to voluntarily support the Applicant and the children. The Applicant feels safe with the children in South Carolina.
21During the motion, I asked the Applicant’s counsel, Ms. Martinez, to show me where the Applicant had outlined her plan for this interim relocation. She advised it was found at paragraph 21 of her client’s affidavit dated April 21, 2023. Paragraph 21 discussed the high level of fear that the Applicant has of the Respondent and that she has no trust for him to be “in close proximity” to her or the children. She discussed how she has been unable to seek help in the past and that she has no family in Ontario or even close by. She is completely isolated in Ontario. She further stated that everything is under the Respondent’s “name and control.” She stated that living with her sister and her family in South Carolina is in the best interests of her and the children because: she has the support of her sister and her family in South Carolina; she has her first debit card in her name; her sister and her husband have been financially supporting her and the children in the “absence of receiving support from the Respondent.” Further, the children “continue to be homeschooled” and she continues to “ensure the children have daily telephone/video calls with the Respondent” which she initially facilitated, but now her brother-in-law has taken over.
22In my view, paragraph 21 contains sufficient information about the Applicant and the children’s situation, and a very temporary plan to reside with family. It does not discuss how the Applicant will support herself or the children into the future. For example, does she plan on going to school or upgrading her education and/or skills to make herself employable? Will the children be enrolled in school or continue being homeschooled? What is her long-term plan for where she and the children will reside? What is the plan for how she will support the Respondent’s in-person parenting time in the addition to the FaceTime calls? The Applicant needs to provide a more detailed and comprehensive plan for the long term.
23The Respondent requested that the court deny the Applicant’s request and stated that he may bring a Hague Application to return the children to Ontario. From the Respondent’s perspective, and at first glance, the Applicant’s act of leaving the country with the children on the pretext of it being a family visit does not seem reasonable. The Respondent stated that the Applicant had other options available to her and that she has “no excuse for unilaterally and wrongfully taking the kids out of Canada” and that she “only cares about her own best interest and not that of the children otherwise she could have applied to the court in advance before doing what she did.” He stated that she could have left the marriage and remained in Canada because “Canada has police and laws so things can be put in place to protect the Applicant and ensure she feels safe.”
24The Respondent may decide to bring a Hague Application for an Order to return the children to their habitual residence, that is his prerogative. However, the Applicant will likely claim that an exception should be made under these circumstances due to the risk of family violence. It will be up to the discretion of the presiding judge to determine the issue. The Applicant’s materials state that she had “no choice but to leave the matrimonial home under other pretenses in order to relocate with the children to a place far from Roger where we will be safe and protected.” The Respondent’s affidavit confirmed that he never would have agreed to the Applicant leaving the jurisdiction with the children had he known her “true intention” that she was leaving him. In her reply affidavit the Applicant stated that she “did not leave with the intention of staying here, but when my sister and brother-in-law found out about what had been going on in my marriage, they intervened and helped me get therapy and counseling.” In my view, these comments indicate to the court that the Applicant left on January 7, 2023 with the intent to separate on a final basis, however, her intention and plan to remain in South Carolina was only solidified after she was free from the control of the Respondent. She needed and received the support of her family and received some therapy. The Applicant stated that she feels safe and financially secure in South Carolina for both her sake, and the children’s sake.
25The court does not have the independent views of the children. The Applicant stated that the children are thriving in her care in South Carolina. She stated they are finally able to socialize with other children and get involved in sports and other activities. They are even attending counselling. The Respondent stated that the children are missing him, and they want to come back to Canada. In my view, all of these statements about the children (by both the Applicant and Respondent) can be true at the same time.
26The undisputed facts of this matter are that the Respondent consented to the Applicant and children leaving Ontario in early January, 2023 and going to South Carolina to stay with the Applicant’s family. Except for the regular FaceTime calls, he has not seen the children since January 7, 2023. He has provided no evidence that prior to this motion, he was concerned at all about their care or their lengthy absence from Ontario or that he had a clear expected date for their return. Despite his evidence that the children have told him that they love him and miss him and they “want to come home,” he did not provide any evidence that he even requested their return prior to being served with the Application. The Respondent stated in his affidavit that he has “grave concerns about the Applicant removing the children from the jurisdiction and relocating with family that they have not seen since 2019.” He gave no details of his “grave concerns” about the family. He mentioned that the children do not have healthcare and cannot attend school in the United States, knowing the children are being homeschooled. In my view, his statements about having “grave concerns” directly contradict the fact that he “permitted” the Applicant to leave with the children to go stay with the Applicant’s family for an undefined amount of time. Unfortunately, the court suspects the Respondent’s true intentions, and the reasonableness of the Respondent’s position in this motion.
27The Respondent’s affidavit contains significant contradictions, minimizations and deflections that in the court’s view, actually support the Applicant’s allegations of having suffered family violence of a coercive and controlling nature. For example:
a. The Respondent admitted that he spanks the children but says that he doesn’t “beat them.” He admitted that he recently “accidently bonked” Joshua’s nose when Joshua was “pestering” him. He admitted that Joshua’s nose bled. He goes on to minimize the nosebleed by saying that Joshua is “prone” to nosebleeds. The Respondent further admitted that on another occasion, he went to “tap” Joshua with the back of his hand on Joshua’s shoulder and that he “accidentally hit him a bit harder.” He stated that he apologized. The Respondent did not provide any explanation for the other incidents wherein it is alleged he gave Joshua bloody noses. The court can’t help but ask, how many times has the Respondent hurt the children and claimed they were accidental?
b. The Respondent denied that he searched “how to cut your wife in pieces and hide it.” Instead, he stated it was a news article that “popped up” on his phone. The Applicant stated that she was alerted to this search and that when she confronted the Respondent about it, he told her he was in a “dark place” but refused to go to counselling.
c. The Respondent denied he did anything wrong when he threw a knife near the Applicant during an argument. Instead, he stated that he “tossed” the knife aiming for the dishwasher and “missed the basket and the tip got stuck” in the dishwasher door.
d. The Respondent denied that he caused any damage to the walls, yet he admitted that he “did throw a 3 hole punch at a wall in a room that I was in alone.” He stated that no one was around, but at the same time, he blamed the Applicant because she was apparently “yelling and berating” him. The court asks which is it? Was he alone and angry and throwing things at the wall? Or was the Applicant present when he was angry and throwing things at the wall? What treatment has the Respondent sought out to help with his anger?
e. The Respondent stated that it is not in the best interests for the children to remain in South Carolina with the Applicant because she is “not working” and she is “unable to support” the children. He stated that he is the primary earner for the family. Despite this, I have no evidence that the Respondent has been supporting the Applicant and children financially since they left in January. In fact, the Applicant stated that the Respondent has refused to provide any financial support despite him knowing they are completely financially dependant upon him. From the evidence before me, the actions of the Respondent have actually shown little to no concern for the Applicant and the children since they left. The Respondent seems to be perfectly fine with the Applicant and children being supported by her family for months on end. He has offered no assistance to them since they left, nor has he offered to assist in their return (if they were ordered to do so).
f. The Respondent denied the allegations of financial control, financial insecurity, food insecurity and neglect, instead, he:
a. Stated in his affidavit that he and the Applicant “have a traditional marriage, where she works within the home.” He went on to say that she “homeschools the children and I earn the income to support the family.” He admitted he earns approximately $80,000.00 per year and that he fell behind in the mortgage and other bills.
b. Downplayed the severity of his actions and the control he had over the Applicant. Failed to recognize that the document signed by the parties with their pastor that confirmed that the Respondent was the person with total financial control and that he was responsible for handling the family’s finances. The document further confirmed that the Applicant did not have her own debit card, did not have access to any accounts, and was never consulted with regards to financial decisions.
c. Stated that he provided everything for the Applicant and children, yet, admitted that he only paid for the children’s underwear, socks and shoes.
d. Acknowledged that the children’s clothing are “hand me downs” or from a “free clothing place that is open to residents of Bradford.” Then went on to gaslight the Applicant and blame her for why the children are wearing clothes that are too big because “she couldn’t be bothered to search for the right size or didn’t want to wash his clothes.”
e. Stated that the home was always stocked with food, yet, admitted and acknowledged that the Applicant went to the food bank and called it her “choice” to do so. The court seriously doubts that anyone “chooses” to go to the foodbank unless they need to.
f. Denied that he controlled the thermostat in the house, yet admitted he locked it and then alleged the Applicant “forgot” the code.
g. Denied that he kept the blinds closed in the house, yet admitted he “requested” the front blinds remain closed so that neighbours could not see inside.
h. Blamed the Applicant for why he did not file for the Canada Child Tax Benefit and why he didn’t file his income tax returns for ten years. Then, he stated that he has now finally filed the tax returns, (he provided no evidence of same).
i. Offered to leave the matrimonial home if the Applicant and children return to Canada, but flatly denies offering to pay any support.
28The Respondent stated that the Applicant’s allegations were all exaggerations or outright lies that were made up as an excuse to help her leave the country without following proper procedure. Yet, in November 2022, the Applicant sought the help of the police (with the encouragement of her Pastor). The police have determined that there is insufficient evidence to proceed with criminal charges. This does not mean that the family violence alleged by the Applicant did not occur. The standard of proof is much higher in a criminal context for charges to be laid. The fact that the Respondent has never been charged criminally does not mean he was not abusive or neglectful or coercive controlling. In my view, if the Applicant and the children return to Ontario, there are likely genuine child protection issues as alleged by the Applicant. If the Respondent was successful in bringing a Hague Application, the Children’s Aid Society and/or the OCL would have to be contacted and/or become involved with this family. If ordered to return, the Applicant and children will be isolated and vulnerable, at risk of harm, and without any support.
29In my view, it is quite clear that prior to separation, the Applicant has been the primary caregiver of the children and she has been making most or all the decisions for their health, education and well-being. There are no concerns about the Applicant’s parenting and care of the children. However, there are serious allegations and evidence of coercive controlling and abusive behaviour exhibited by the Respondent towards the Applicant and the children. Justice Vallee is correct when she said that “if only some of these allegations are true, they show that the Applicant and the children have been in a desperate situation.” In my view, there is a grave risk that if the Applicant returns with the children right now, the Applicant and the children would be exposed to physical, or psychological harm and/or placed in an intolerable situation.
30There are many things that still need to be resolved on an interim basis. Parties and counsel need to negotiate interim parenting time for the Respondent, immediate commencement of child and spousal support payments, financial disclosure and the possible sale of the matrimonial home. If the Applicant and the children return to Ontario, a no-contact order against the Respondent may be reasonable, along with an order for exclusive possession of the matrimonial home to the Applicant pending the possible sale. Further, there is a need for an OCL for the children and considering their ages being 10 and under, a s. 112 [2] would be ideal. All of these things can be achieved through a negotiation between counsel before and/or at a case conference so that a consent order could be made.
31Now that the court has heard both parties’ stories, the only thing that is clear and undisputed is the fact that the Applicant is and has historically been the primary caregiver for the children. The Respondent is a parent, but how “active,” skilled and caring he is as a parent is disputed. Even the Respondent’s plan for the children (if they were to return to Canada) proposes that the children remain in the Applicant’s primary care. I am satisfied with the evidence provided by the Applicant that it is in the best interests of the children to remain in her care whether she is in Ontario, or whether she is in South Carolina. Considering the serious nature of the family violence allegations; and the contradictions and minimizing deflections contained in the Respondent’s materials, it is my view that the Applicant and children remain safe where they are, in the care of the Applicant, in South Carolina. In my view, if this matter goes all the way to trial, there is a strong possibility that the Applicant will be successful in obtaining an order for decision-making responsibility and primary care of the children. I find it hard to believe that a trial judge would award the Respondent decision-making responsibility and primary care, simply because of the Applicant’s move, (see Plumley v. Plumley). I am satisfied with the evidence filed by the Applicant that is in the best interests of the children to extend and continue the Order made by Vallee J. on March 31, 2023.
Conclusion
32For the reasons set out above, and pursuant to s. 16 (1), (2) (3) (4) and s. 16.93 (3) of the Divorce Act, the Order of Vallee J. dated March 31, 2023 is hereby extended until further order of this court. This matter requires a case conference as soon as possible after the Respondent’s pleadings have been served.
33For the reasons set out above, temporary order to go:
i. The Applicant is permitted to remain in South Carolina with the children until further order of this court.
ii. This matter is adjourned to an urgent case conference set for June 23, 2023 at 9:30 a.m.
JAIN J. Date: May 9, 2023