Court File and Parties

COURT FILE NO.: FS-18-1432 DATE: 20230727 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARIE CEL RAMIREZ ALBANEZ, Applicant AND: NOEL KEITH SAMUDA, Respondent

BEFORE: M. D. Faieta J.

COUNSEL: Vithu Ramachandran, for the Applicant Rose A. Fadoul, for the Respondent

HEARD: June 15, 2023

Endorsement

Faieta J.

[1] The Respondent father brings a motion for permission to travel to Jamaica with his six-year-old son (“ZS”) for one week in August 2023.

[2] The Applicant mother objects to the Respondent’s travel request on the basis that: (1) the Respondent will not return ZS to Canada; (2) she believes that ZS will be unsafe with the Respondent in Jamaica; (3) ZS does not want to travel to Jamaica with the Respondent; (4) it will interfere with the investigation of the Children’s Aid Society.

Background

[3] The parties had a relationship for about one-year which ended several months prior to the birth of ZS.

[4] An order for temporary child support was granted by C. Gilmore, J. on June 12, 2019. The behaviour of both parties in this case was called into question. See paragraphs 41, 54, 58, 59 and 73.

[5] On December 2, 2019, Goodman J. requested the involvement of the Office of the Children’s Lawyer. The report of Allyson Gardner, MSW, Clinical Investigator, was released on January 4, 2021. It states that the ZS has a strong connection with the Respondent father and that ZS meets his needs when ZS is in his care. It further states that “there is evidence to suggest that the questioning of Mr. Samuda’s competence is unsubstantiated by external sources. The CAS does not verify any of Ms. Ramirez Albanez’s concerns about ZS’s safety in Mr. Samuda’s care. Ms. Samuda’s parenting are ongoing despite CAS investigations that do not verify protection concerns… Communication is an obstacle for Ms. Ramirez Albanez and Mr. Samuda, and the mistrust that is present in the relationship between them is not conducive to a coparenting arrangement. There is no evidence that they can set aside their differences and work together for the benefit of ZS.”

[6] The temporary Order of Diamond J. dated May 5, 2022, which the parties advise was made on consent, addresses parenting time. ZS is to be in the Respondent father’s care on alternate weekends from Friday after school until Monday morning drop off as well as every Wednesday after school until Thursday morning drop off. The regular schedule continues through the summer with the exception that ZS is to spend one week in the Respondent’s care during the summer.

[7] The Order also addresses travel. It states:

35. ZS may travel with either the Respondent or the applicant as per the usual holiday schedule. Should either desire to travel with ZS for vacation purposes, he or she shall advise the other parent in writing of dates of travel, location, flight details (if applicable), addresses, and phone numbers where they can be reached. This information should be provided as soon as the information is available and no later than seven days before the intention to travel.

36. The written, notarized consent required by customs/immigration and the necessary documentation required for travel (ie. Birth certificate, passport) shall be provided to the other parent no less than one week after the written notice of the intention to travel and location of travel has been made.

37. The travelling parent will be responsible for the payment of the notarization. The letter of consent will not be unreasonably withheld.

38. The parties shall ensure that the travel plans do not interfere with the recommendations of ZS’s counsellors.

39. The travel provisions shall commence on November 18, 2022. ..

[8] The travel provisions of the Order largely reflect the recommendations of the OCL.

[9] The Respondent father states that he wishes to attend the one-year memorial marking the passing of his mother in August 2023. The Respondent has four brothers that reside in Jamaica and his other siblings will travel from Canada and the United Kingdom for that event. He would like to introduce ZS to his paternal family including his stepsister. The Respondent and ZS will stay with relatives during this trip.

[10] The Respondent has offered to pledge his home in Mississauga as security for the return of ZS.

Analysis

[11] Whether a child should be permitted to travel with a parent turns solely on the best interests of the child. Subsections 24(1) and (2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, state:

(1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Abduction Risk

[12] The Applicant mother submits that she believes that the Respondent will not return to Canada with ZS because there was a bin outside of the Respondent’s home, some time ago, and suggests that he had loaded the contents of his home into that bin for purposes of moving to Jamaica to live in a hotel that he is constructing. This allegation is denied. There is no evidence to support the Applicant’s allegations other than a bin was outside his home. The Applicant states that the Respondent is also building a home in Jamaica. I find that there is an insufficient evidentiary basis for the Applicant’s fear that the Respondent will not return the child to Canada.

Safety Risk

[13] Both parties, the CAS and ZS’s therapist acknowledge that ZS exhibits sexual knowledge well beyond his years. ZS has told the CAS and the Applicant that he has witnessed the Respondent engaging in sexual acts in June 2021 and February 2022.

[14] A letter to the Applicant dated April 25, 2022, from the Peel Children’s Aid Society states:

After reviewing all of the evidence brought forward throughout the course of the investigation, it was determined that the allegation – Risk That the Child Is Likely to be Sexually Harmed/Questionable Sexual Activity by a Caregiver – is NOT VERIFIED as there is insufficient evidence to suggest that the father is exposing [ZS] to sexual behaviours and/or activities. However, the allegation – Child Exhibits Sexual Behaviour with No Maltreater Identified – is VERIFIED given that [ZS] exhibits unexplained sexual behaviour indicative of knowledge/experience beyond his age and development, where no specific abuse allegation has been made.

Given that the Society has not concerns about your child being in the care of either parent at this time, your file is being closed at the Advice & Assessment level with no further service require.

[15] The Respondent states that he has never engaged in “inappropriate sexual behaviour” while ZS has been in his care. The Respondent states that such exposure could have come from the Applicant’s home particularly given that he primarily resides with the Applicant. He states that ZS shares a bedroom with a troubled 11-year-old stepbrother in the Applicant’s two-bedroom apartment. ZS has told the Respondent’s girlfriend (since August 2022) that he has seen pictures of “boobies” on his stepbrother’s I-Pad.

[16] The Applicant unilaterally suspend the Respondent’s parenting time from December 2021 until May 5, 2022, at which time the Consent Order was granted which, amongst other things, provides the Respondent with three consecutive overnights (Friday afternoon to Monday morning) with ZS every other week.

[17] At the Applicant’s request, the Peel CAS has opened at least two investigations in 2023. After the first investigation was closed, the CAS advised the Applicant in early June 2023 that this family’s file was being was assigned to a worker on the Domestic Violence Team. The Applicant is concerned that the investigation will be prejudiced if ZS is away for one week in Jamaica in August 2023.

[18] Finally, there is no evidence that paragraph 37 of the Order is applicable, given that there is no evidence that ZS currently has a counsellor, nor is there evidence that the requested travel would interfere with a counsellor’s recommendations.

[19] I find that there is insufficient evidence to show that ZS being in the care of his father poses a safety risk to the child. If there were such evidence, it should not only inform the Respondent’s request to travel but also the regular parenting time that he spends with the child. This finding may be revisited by this Court in the event that the investigation of the CAS results in the conclusion that the Respondent has harmed the child.

Voice of the Child

[20] The Respondent states that ZS has told him and his girlfriend, Dalia Rosa, that he excited about travelling to Jamaica.

[21] The Applicant states that ZS has told her and others that he does not wish to travel to Jamaica. On March 6, 2023, the child told the CAS that he wishes to travel to the Philippines, his mother’s country, in order to learn their language and meet family. ZS told the CAS that he had only one worry. He stated that he did not want to go to Jamaica as he worried that he would be kept forever in Jamaica. There is nothing in the notes of the CAS that explains why ZS expressed this concern.

[22] It appears that the parental mistrust noted in the OCL report has influenced and informs the child’s views.

Order

[23] I find that it is in ZS’s best interests to travel with the Respondent to Jamaica for one week so that he may meet and spend time with his paternal relatives, learn more about his heritage and spend time with his father. Given the evidence, I place little weight on the concerns raised by the Applicant. However, this Order is made on a without prejudice basis pending the outcome of the current CAS investigation.

[24] The Respondent seeks his partial indemnity costs of $11,303.00. The Applicant submits that her costs were $2,717.00. The fixing of costs in a family law proceeding is governed by the touchstone considerations of reasonableness and proportionality: See Parmar v. Flora, 2023 ONSC 2327, at para. 4. The Respondent was the successful party on this motion and is presumptively entitled to his costs. I find that there was no bad faith by either party nor was there an offer to settle that would trigger full indemnity costs under Rule 18. While this case was important to the parties, the issue was not complex. Having regard to the factors described above, the objectives of a costs award in a family law proceeding and the touchstone considerations of reasonableness and proportionality, I find that it is just to order that the Applicant pay costs of $5,000.00, inclusive of disbursements and taxes, to the Respondent within 30 days.

[25] Order to go as follows on a without prejudice basis:

(a) By August 4, 2023 the Applicant shall create a file marked “Orders and Endorsements” on Caselines and shall upload to that folder all Orders and Endorsements in this case.

(b) By August 1, 2023, the Respondent shall, in respect of his travel to Jamaica with ZS from August 13, 2023, to August 20, 2023, notify the Applicant in writing of the flight details, addresses, and phone numbers where the Respondent and ZS can be reached.

(c) The Respondent shall be permitted to travel with the child, ZS, to Jamaica from August 13, 2023, to August 20, 2023.

(d) The Applicant’s consent or authorization for the Respondent to travel with Zane to Jamaica from August 13, 2023, to August 20, 2023, is dispensed with.

(e) The Respondent may apply for a passport for the child, ZS, without the Applicant’s consent or authorization if, by July 31, 2023, the Applicant fails to deliver the passport of ZS in accordance with paragraph 36 of the Order dated May 20, 2022 issued by Diamond J.

(f) The Applicant shall pay costs of $5,000.00, inclusive of disbursements and taxes, to the Respondent within 30 days.

Mr. Justice M. D. Faieta Released: July 27, 2023