COURT FILE NO.: FS-21-00026497-0000 DATE: 20240429

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LEMANN CHARLES Applicant – and – MANTILA JOSEPH Respondent

Counsel: Gene C. Colman, for the Applicant Self-Represented

HEARD: In Writing

A.P. Ramsay J.

REASONS FOR JUDGMENT

Introduction

[1] This is an uncontested trial in writing.

[2] The applicant is the father of the two children, JC and ZC, who are at the centre of this Application. The respondent is their mother. The parties were in a common-law relationship that ended over a dozen years ago. The applicant seeks a final order respecting parenting, decision-making responsibility, and other declaratory relief incidental to parenting in relation to the two children, one of whom had already reached the age of majority at the time the materials were filed, and the other who was months away from attaining the age of majority. Both children have now attained the age of majority.

[3] In the Notice of Motion, the applicant seeks a declaratory order that JC has resided with the applicant since July 25, 2020, for the purpose of obtaining the Canada Child Benefit, and an order that effective from July 25, 2020, ZC resided primarily with the applicant in Toronto. These relief are not sought in the Application.

[4] The applicant did not file a factum.

[5] The respondent mother lives in Orlando, Florida and is self-represented.

[6] The only evidence before the court is that of the applicant.

Service

[7] At the time the Application was commenced on October 29, 2021, the applicant resided in Toronto, Ontario and the respondent resided in Orlando, Florida. The respondent was served personally with the Application in Orlando on January 12, 2022. The lawyers for the applicant submitted the affidavit of service via the Justice Service Online (“JSO”) Portal on March 31, 2022.

[8] On April 4, 2022, the Registrar rejected the document with the explanation: “Other: Service to the USA has to be done according to the Hague convention protocol.”

[9] After five failed attempts to serve the respondent in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 658 U.N.T.S. 163 (November 15, 1965), the applicant brought a 14B motion, i.e., a motion in writing without notice for an order for substituted service. In his endorsement dated August 3, 2022, Diamond J. referred to the controlling authority of Capone v. Fotak, 2022 ONCA 430, noting that pursuant to Article 10 of the Convention, as the United States did not oppose postal service, the Ontario law would apply, which permitted service by postal channels.

[10] I am satisfied that the respondent mother was properly served with the originating process personally on January 12, 2022, as per the affidavit of service of Kimberly Pitre. Ms. Pitre’s affidavit indicates that the respondent was also served with the originating proceedings by way of postal channels on October 15, 2022, though this manner of service would not, in and of itself, constitute proper service of an originating proceeding on a party under the Ontario Family Law Rules, O. Reg. 114/99, in the absence of a returned signed acknowledgement of service, which is filed in the continuing record: see r. 6(3) (c).

[11] The respondent mother has not provided an Answer in the 30 days prescribed by the Family Law Rules. Under r. 10(1), a respondent has 30 days to file an Answer after receiving a family court application.

[12] Pursuant to r. 10(5) of the Family Law Rules, the consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply where the respondent fails to serve and file an Answer. A party who has not served and filed an Answer is not entitled to any further notice of steps in the case except a service of the order and is not entitled to participate in the case in any way. The court may deal with the case in the party’s absence and, under clause 4 of r. 1(8.4), the applicant may choose to proceed to an uncontested trial, which the applicant has chosen to do in this case. Under r. 2(1) of the Family Law Rules, an “uncontested trial” is defined as “a trial at which only the party making the claim provides evidence and submissions.”

Background

[13] The Application was issued on October 29, 2021. The applicant father seeks orders for sole decision-making responsibility with respect to the parties’ two children, ZC born [XXX] 2006, and JC, born [XXX] 2004, including decisions with respect to their health, education, and extracurricular activities.

[14] The applicant father seeks an order directing that effective from July 25, 2020, the children shall reside with him in the City of Toronto, Ontario, and an order that the respondent mother shall have reasonable parenting time with the children at such times as the parents may agree to, which shall include video or telephone contact at all reasonable times.

[15] The applicant father is currently 64 years old. He is employed full time as a technician for kitchen exhaust systems for Pressure Kleen. The respondent mother is apparently unemployed. The parties have three children, currently 35, 20 and 18 years old.

[16] The parties were never married. They were involved in a long-term common-law relationship. Both parties moved to Florida from Haiti as refugees: the applicant on January 1, 2001, and the respondent, apparently having done so three years earlier, on February 1, 1998. The family moved from Orlando, Florida, to Toronto, Ontario, on June 26, 2008.

[17] The parties started living together on December 1, 2003. They separated on October 1, 2012. At the time of their separation, JC was eight years old and ZC was six years old. The respondent mother took the children with her to Florida where they resided for eight years, between October 2012 to July 2020, before being “reunited” with the applicant and their older sister in Canada in July 2020.

[18] The materials before me do no reveal whether there had been any agreement between the parties relating to parenting and decision making, at any time, or provide an explanation as to how and why the children were “reunited” with the applicant father. There is insufficient evidence to determine whether the children’s habitual residence had been Orlando, Florida or Toronto, Ontario. The applicant does not explain how the children came to be living with him in 2020. The applicant indicates that he has been exercising sole decision-making responsibility with respect to both ZC and JC since July 25, 2020. He says the children have not seen the respondent mother since they left Florida in 2020.

Disposition

[19] The Application is dismissed for the reasons below.

Analysis

[20] The applicant takes the position in the materials before me that the “granting of a parenting order will serve to enable Lemann to receive government benefits and such an order will help to facilitate the granting of citizenship to (JC) and (ZC). I note that although no declaratory relief is sought in the Application itself, in the Notice of Motion, the applicant also seeks a declaratory order deeming that JC and ZC resided with him in Toronto since July 25, 2020, for the purpose of obtaining the Canada Child Benefit.

[21] Based on the applicant’s own evidence, he has had de facto sole parenting and decision-making responsibility for the children, now adults. The children have apparently not seen their mother for four years. It appears that the basis for the applicant seeking a final parenting and decision-making order has nothing to do with a dispute between the parties, but rather relate to the applicant’s ability to access government funding and assist with the children’s pathway to citizenship.

[22] Support for this view is found in the explanation provided in the originating process (that is, the Application) for why it was in the best interests of the children that the orders be granted. Some of the grounds identified included the assertion that the children had permanent residency status and wanted to become Canadian citizens, and that the granting of a parenting order would enable the applicant to receive government benefits, which would facilitate the granting of citizenship to the children. The materials indicate that the applicant’s children are not Canadian citizens but would like to become citizens.

[23] Further support for the applicant’s position is the evidence contained in the draft order submitted. Some of the operative paragraphs (as anonymized by me) read:

1. Phone Calls/FaceTime: Should the Respondent-Mother wish to speak with the children, she shall be able to via telephone and video call. A schedule shall not be set and contact with M. should be solely determined by JC and ZC.
2. Residence - ZC: Effective from 25 July 2020, ZC shall reside primarily with the applicant father, who currently resides in Toronto, Ontario.
3. Residence – JC: For the purposes of obtaining the Canada Child Benefit, it is deemed that JC (DOB XXXX) has primarily resided with the father, LC, in Toronto, Ontario, since 25 July 2020.

[24] On an uncontested trial, the trial judge must ensure that the proper evidence is before the court to enable the court to grant the relief sought: Obhan v. Chana, 2021 ONSC 2877, at para. 9; Cedeno v. Cedeno, 2023 ONSC 6686, at para. 3. There is no evidence from the applicant’s children on their wishes and desires. There is no evidence before the court to indicate the basis for a parenting order for a child who is an adult. There is no suggestion that either of the children is a person under disability.

[25] The fact that that the respondent mother has not filed an Answer does not prevent the court from ensuring that proper evidence is filed by the applicant to enable the court to make an order for the relief sought: E.S.R. v. R.S.C., 2019 ONCJ 381, at para. 208; CAS v. J.U. and B.P.-M., 2020 ONSC 3753, 42 R.F.L. (8th) 373, at para. 10.

[26] The applicant has provided no authority for the court to make the order sought.

[27] I am not satisfied that any parenting or decision-making order ought to be made. Since the parties were never married, the parenting issues are governed by the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). Part III of the CLRA addresses the issues of decision-making responsibility, parenting time, contact orders and guardianship. Section 19 outlines the purposes of Part III as follows:

19 The purposes of this Part are,

(a) to ensure that applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children;

(b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in respect of the custody of the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;

(c) to discourage the abduction of children as an alternative to the determination of custody rights by due process; and

(d) to provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of custody and access orders made outside Ontario.

[28] The applicant is seeking decision-making responsibility, parenting time, and to set out the parameters of contact between the children and the respondent mother. The applicant is seeking an order granting him the right to make any decisions for the children, including regarding their education, medical care, upbringing, and extracurricular activities. An Ontario court will not make a “parenting order” unless it has jurisdiction to do so.

[29] Section 18(1) of the CLRA defines several terms including a parenting order and decision-making responsibility. Section 20(5) provides further elaboration of the meaning of parenting time. Under s. 20(5), entitlement to parenting time includes the right to visit with and be visited by the child and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education. Pursuant to s. 28(6) of the CLRA, a right to parenting time includes the right to make day-to-day decisions respecting the child, unless otherwise ordered.

[30] Section 21(1) of the CLRA set out the court’s jurisdiction to make an original parenting order in favour of a parent, and reads as follows:

21 (1) A parent of a child may apply to a court for a parenting order respecting,

(a) decision-making responsibility with respect to the child; and

(b) parenting time with respect to the child.

[31] While in certain circumstances, the court has jurisdiction to make parenting orders with respect to adult children under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), if they continue to meet the definition of “child of the marriage”, no such jurisdiction exists under the CLRA. Courts are also reluctant to make parenting orders which may impact a child’s right to withdraw from parental authority. The barometer remains the best interests of the child.

[32] In J.F.R. v. K.L.L., 2022 ONSC 5067, 164 O.R. (3d) 145, the child involved was developmentally delayed. In reviewing the parenting schedule, Gomery J., as she then was, noted that s. 16.1 of the Divorce Act unambiguously gives the court the power to make parenting orders with respect to an adult child who meets the definition of “child of the marriage”. At para. 13, she stated the following:

The Ontario legislature’s decision to change the definition of child in the Family Law Act, but not the CLRA, does not allow me to disregard the plain language of the federal legislation that governs this application. The Divorce Act does not define a “child of the marriage” differently for the purpose of parenting orders and support orders. This presumably reflects a deliberate legislative choice to give this court the power to make parenting orders with respect to individuals over the age of 18 who remain under their parents’ charge because they are “unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”. [Emphasis added.]

[33] At the time the applicant swore his affidavit on June 30, 2023, JC was 19 years old and ZC was 17 years old. I note, in passing, that there was no evidence filed by either child on their views. As noted by Gomery J. in J.F.R., at para. 21: “As a general rule, a child’s stated views and preferences are given more weight as they get older. This deference to their choices reflects both their maturity and their physical autonomy.”

[34] Under s. 18(1) of the CLRA, a reference to a “child” under Part III is a reference to a minor. As Gomery J. noted, the older a child is, the general rule is that their stated view and preference is given more weight.

[35] The applicant has provided no authority for this court’s jurisdiction to make an order for retroactive parenting time and decision-making responsibility, no authority for the court to make an order for parenting time and decision-making responsibility under the CLRA for children who are in their late teens, and no authority for the court’s jurisdiction to make an order for parenting time and decision-making responsibility for adult children under the CLRA.

[36] In the result, I decline to make the order sought. There is no evidence before me that either of the children, who are the subject of the Application, are under a disability and are unable to withdraw from parental control. I note that in his affidavit, the applicant checked off the box indicating that the children do not have any special medical, educational, mental health or other developmental needs.

Conclusion

[37] In the result, in the absence of any court order and on the materials before me, the applicant has had de facto sole parenting and decision-making responsibility for the children. The children have apparently not seen the respondent mother in four years. The children are adults. The court has no jurisdiction to make parenting and decision-making orders for adult children.

[38] On a final note, no factum was filed. There is a body of cases which establish that a factum is required on an uncontested trial.

[39] A copy of this Endorsement shall be served on the respondent mother by regular mail.

A.P. Ramsay J.

Released: April 29, 2024