Court File and Parties
COURT FILE NO.: FS-24-43056-0000 DATE: 2024-11-21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Fatoumata Bah, Applicant AND: Mamadou Diouma Diallo, Respondent
BEFORE: Justice M. Sharma
COUNSEL: Maria Joachim, for the Applicant Brandan McDermott, for the Respondent
HEARD: November 21, 2024
Endorsement
This is the Applicant Mother’s (“Mother”) motion to relocate with the parties’ two children from Toronto to Winnipeg. The Respondent Father (“Father”) seeks to adjourn the motion to a hearing where the Mother’s evidence may be subject to oral cross-examination. The Mother contests the adjournment. She says she has a recent job offer from an employer in Winnipeg, which job commences in December, 2024.
For the following reasons, I grant an adjournment and order this motion be heard as a long motion where the parties may be cross-examined on their affidavit evidence.
The Mother has not complied with a court order around the scheduling of this motion. On October 3, 2024, Horkins J. ordered that if the Mother’s request for relocation was not resolved, “the parties shall discuss how they wish to proceed to have it decided. If necessary, the parties may request an attendance at TBST court to have the hearing of the relocation issue scheduled. Otherwise, it shall be scheduled at the settlement conference.”
There is no evidence that the Mother raised with the Father a discussion on how the relocation should be decided by this Court, nor did the Mother seek an attendance at TBST. Instead, she just filed this 1-hour motion. This Court will not reward a litigant who fails to comply with court orders.
The parties’ affidavits raise credibility issues regarding the Father’s parenting time with the children, efforts by the Mother to limit his parenting time, and the nature of the bond between the children and the Father. These are important and relevant facts in determining whether a relocation is in the best interests of the children. It is not possible to resolve these credibility issues on an affidavit record.
The relief the Mother seeks would create a new status quo and may have permanent implications on the bond between the children and the Father. Procedural fairness requires that the Father be permitted to cross-examine the Mother, given the seriousness of a relocation on this family and its impact in this proceeding.
Furthermore, there is no evidence in the affidavit material of a Notice of Relocation being served on the Father, as is required under the Divorce Act. However, Mother’s counsel advises that a Notice of Relocation was sent and an Objection received.
I appreciate that the Mother has a job opportunity in Winnipeg with a marginally higher salary than what she is currently earning in Toronto. But as part of her evidence, she relies heavily on family ties in Winnipeg, better schools, availability of daycare, and ability to continue with extra-curricular activities for the children. Her evidence is that she has family in Winnipeg who would be nearby and who can support her and the children. While the job opportunity may be new, the existence of family in Winnipeg is not. Whether the job or a desire to be closer with her family is the primary objective for the move will be a relevant factor when the relocation motion is determined.
If the impetus for the move to Winnipeg is truly work related, her efforts to find improved job opportunities in the Toronto area is disputed. Her evidence of those job search efforts is a screenshot of her email inbox, which is barely readable given the size. The contents of those emails were not in evidence. This exhibit is insufficient to establish bona fide efforts to find a better job with a flexible schedule in Toronto.
I adjourn the Mother’s motion to a long motion on February 13, 2025. Parties may re-file fresh motion material that conforms with the Consolidated Provincial Practice Direction for Family Proceedings at the Superior Court of Justice. Leave is granted for the primary Affidavits to be 25 pages, double-spaced, with 25 pages of exhibits. The Applicant’s Reply affidavit shall be no more than 10 pages, with 10 pages of exhibits. Parties will be entitled to cross-examine the opposing party at the motion for no more than 1.5 hours each.
Parties shall deliver motion material pursuant to the following schedule:
a. Applicant to serve and file by January 17, 2025
b. Respondent to serve and file by January 29, 2025
c. Reply affidavit by February 5, 2025
d. Factums shall be served and filed by February 11, 2025
- On consent, I order disclosure of records held by any Children’s Aid Society or police force that holds records in relation to this family.
Costs
The Father was successful in obtaining an adjournment to a long motion date and is presumptively entitled to costs. I decline to award costs to the Father.
The Respondent Father’s affidavit does not comply with the Consolidated Provincial Practice Direction for Family Proceedings in the Superior Court of Justice. It is not double-spaced. The Father’s affidavit also includes argument with quotes and citations from caselaw. Affidavits are to contain facts, not argument or legal authorities.
In these circumstances, it is unfortunate to penalize a party by denying costs when the party is presumptively entitled to costs. This is especially so since it is the Father’s lawyer who prepared improper material. However, for the reasons given in Ramdoo v. Houlden, 2024 ONSC 5994, there appears to be no effective tool for the Court to sanction a lawyer in these circumstances. My limited tool to sanction such behaviour is through a cost order.
I have not condoned the Mother’s failure to follow the process for scheduling this motion, as set out in the Order of Horkins J. Similarly, I will not condone the Respondent’s breach of the Consolidated Practice Direction issued by the Chief Justice by granting the Father costs of today.
Justice M. Sharma
Date: November 21, 2024