Hill-Reyes v. Reyes Keris, 2025 ONSC 2855

Court File No.: FC-22-1182
Date: 2025/05/14
Ontario Superior Court of Justice

RE: Marie Veronique Cristine Hill-Reyes, Applicant
-and-
Valentin Alberto Reyes Keris and Leidy Acosta Pena, Respondents

Counsel:
Jefferey Behrendt appearing for Ms. Hill-Reyes
Achille Kabongo appearing for Mr. Reyes
Ms. Pena, self-represented

Heard: April 22, 2025

Reasons for Decision
Audrey Audet

Introduction

[1] This is the return of a motion brought by the Applicant, Ms. Hill-Reyes (“Ms. Hill-Reyes”), seeking a declaration that the added Respondent, Ms. Pena, is in default due to her failure to serve and file an Answer, and imposing upon her all the consequences set out in subrule 1(8.4) of the Family Law Rules, preventing her from participating any further in this proceeding (except as a witness, at the request of either party).

[2] When this motion was first before me on March 6, 2025, I made a very detailed order meant to facilitate Ms. Pena’s participation in this motion because she is self-represented, she lives in the Dominican Republic, and she only speaks Spanish.

[3] Ms. Pena was present today, virtually, and she was assisted by two Spanish interpreters who provided consecutive interpretation for the entire motion hearing. Ms. Pena was also allowed to make oral submissions.

Background

[4] It is important to restate the unique history of this family which led to this motion.

[5] Ms. Hill-Reyes is the Applicant in this proceeding and is the adoptive mother of D.J. (9) and the biological mother of E.F. (2). Mr. Reyes Keris was originally named as the only Respondent in this proceeding and is the biological father of both children. Ms. Pena was added by Mr. Reyes Keris as a co-Respondent in this proceeding on September 6, 2022, upon filing his Answer. Ms. Pena is the biological mother of D.J., and she resides in the Dominican Republic.

[6] Ms. Hill-Reyes and Mr. Reyes Keris began their relationship in 2018 when D.J. was only two years old. At that time, he was living primarily in Mr. Reyes Keris’ and his paternal grandmother’s care, in the Dominican Republic. This had been the case since D.J. was four (4) months old. I do not know what parenting time or contact, if any, D.J. had with his biological mother during that time. It is Ms. Hill-Reyes’ evidence that Ms. Pena did not have a relationship with D.J. throughout the time she was in a relationship with Mr. Reyes-Keris.

[7] Ms. Hill-Reyes and Mr. Reyes Keris married in December 2018, following which Ms. Hill-Reyes initiated a sponsorship process to allow Mr. Reyes Keris and D.J. to immigrate to Canada. While that process took its course, Ms. Hill-Reyes travelled frequently to the Dominican Republic to spend lengthy periods of time with Mr. Reyes Keris and D.J.

[8] While D.J. and his father were still living in the Dominican Republic, Mr. Reyes Keris procured a written consent from Ms. Pena which was signed before a Notary in the Dominican Republic confirming (at least on its face) that she consented to Mr. Reyes Keris’ plan to immigrate to Canada permanently with D.J.

[9] Mr. Reyes Keris immigrated to Canada and became a Permanent Resident in December 2020. D.J. immigrated to Canada and became a Permanent Resident in February 2021. In October 2021, Ms. Hill-Reyes and Mr. Reyes Keris initiated adoption proceedings for Ms. Hill-Reyes to formally adopt D.J. The adoption order was granted on May 1, 2022, by Mackinnon J., based on all the evidence provided to her by both parties. That order was never appealed.

[10] On or about December 5, 2021, Mr. Reyes Keris travelled to the Dominican Republic leaving D.J. in the care of Ms. Hill-Reyes. The parties separated shortly thereafter, on or about December 16, 2021. At that time, Ms. Hill-Reyes was pregnant with E.F. D.J. has remained in the full-time care of his mother since the parties separated and has had very limited parenting time with this father. Mr. Reyes Keris has never met E.F., by his own choice.

Litigation History

[11] On June 29, 2022, Ms. Hill-Reyes filed her Application seeking a divorce, sole decision-making and primary care of D.J. (E.F. was not yet born), child support, exclusive possession of the matrimonial home and a restraining order.

[12] Ms. Hill-Reyes had difficulty locating Mr. Reyes Keris for the purpose of serving him with her Application, but she was ultimately able to do so on August 22, 2022, after he returned to Canada. Mr. Reyes Keris served his Answer on September 13, 2022, seeking only spousal support and a restraining order. His Answer was later amended to seek decision-making responsibility for both children, parenting time and child support. It is very difficult to understand the exact relief Mr. Reyes Keris seeks in his pleadings, as they are plagued with allegations, accusations and claims but fail to set out clearly the orders that Mr. Reyes Keris seeks.

[13] As part of the allegations made in his Amended Answer (and in the voluminous affidavit materials that he filed in the context of multiple court appearances), Mr. Reyes Keris takes the position that the adoption order for D.J. was obtained fraudulently by Ms. Hill-Reyes, and that he never gave valid consent to it. It is not clear whether he seeks to set aside the adoption order or to appeal it, or whether he wants the court to simply ignore it and order the return of the child to the Dominican Republic.

[14] It is important to note, at this juncture, that it is at that stage of the proceedings that Mr. Reyes Keris added Ms. Pena as a co-Respondent in this matter. However, Mr. Reyes Keris does not assert any claims against Ms. Pena; he adds her as a respondent to support his own claim against Ms. Hill-Reyes that the adoption order was obtained fraudulently. Up until then – and still to this day – Ms. Pena had never initiated a proceeding before the Canadian Courts to seek the return of D.J. to the Dominican Republic.

[15] A responding party is permitted to include in their Answer a claim that they make against a third party, who then becomes an added party to the case. However, it is not permissible to add a party simply to support claims that a Respondent makes against an Applicant. Testimony by that person suffices. I am simply mentioning this because in my view, there are no valid claim asserted by Mr. Reyes Keris against Ms. Pena in his Answer and as such, her very presence as a co-respondent in this proceeding is procedurally incorrect – something that the judges who have dealt with this matter in the past, including myself, failed to notice.

[16] I have also mentioned to Mr. Reyes Keris’ counsel previously, and I repeat here, that although I was able to locate his client’s Answer and Amended Answer on Case Center, those documents along with affidavits of service of same on Ms. Hill-Reyes and Ms. Pena do not appear to have ever been filed properly with the Court. The Court’s digital file does not contain copies of them. This must be rectified forthwith.

[17] As I do not have an affidavit of service of the pleadings on Ms. Pena, I am not sure when and how she was served with them. Nonetheless, she first appeared before the Court in this matter during a second case conference held on April 12, 2023, and therefore has had notice and knowledge of this proceeding since at least that time.

[18] In the context of an urgent motion heard on October 20, 2022, Parfett J. made a temporary order allowing for telephone or video parenting time between D.J. and his father at least once per week. She also ordered that French, English and Spanish interpretation be made available during the case conference scheduled to be heard on December 14, 2022.

[19] At the case conference held on December 14, 2022, before Fortier J., she noted that Ms. Pena was not present “although provided with the zoom link”. She granted her leave to serve and file an Answer by January 20, 2023. She ordered Mr. Reyes Keris to serve and file his Amended Answer by February 17, 2023.

[20] The parties attended a second case conference on April 12, 2023, to address Ms. Hill-Reyes’s alleged failure to allow virtual parenting time between D.J. and his father. The parties were able to reach a temporary without prejudice order by way of which Mr. Reyes Keris’ virtual parenting time with D.J. would resume, and the parties would apply to the Supervised Access Program at the Family Services Ottawa to resume in-person (supervised) parenting time between D.J. and his father. The Office of the Children’s Lawyer was also appointed.

[21] In the context of that case conference, all parties were present, including Ms. Pena. However, as Mr. Reyes Keris (who added her as a party) had not made arrangements for the presence of a Spanish interpreter, she could not participate. In any event, since the second case conference was permitted to address, strictly, Mr. Reyes Keris’ parenting time, it proceeded regardless. The court directed the parties to ensure that there would be a Spanish interpreter at future court hearings.

[22] On April 13, 2023, I ordered that Shelston J. would be case managing this matter on a go forward basis, and that I would hear all motions.

[23] A case management conference was heard on July 6, 2023, by Shelston J. At that time, all parties were present, and Ms. Pena had the benefit of a Spanish interpreter. She and Mr. Reyes Keris took the position that D.J. had been abducted from the Dominican Republic and that his adoption was fraudulently obtained. Ms. Pena had still not served or filed an Answer at that time. Several procedural orders were made on that day, including requiring Ms. Pena to provide documentary disclosure of her application for custody of D.J. which she allegedly filed in the Dominican Republic (documents which to this day she has not produced). The parties were also permitted to proceed to questioning.

[24] In a contested motion heard by me on August 17, 2023, I ordered the production of the entire adoption file in the possession of Ms. Sharp, who provided Mr. Reyes Keris with independent legal advice with regards to the adoption of D.J. by Ms. Hill-Reyes. It is notable that although he claims that D.J.’s adoption was obtained by fraud by Ms. Hill-Reyes, Mr. Reyes Keris is the one who strongly opposed the disclosure of Ms. Sharp’s adoption file.

[25] On October 3, 2023, I heard a motion brought by Mr. Reyes Keris seeking parenting time with the child. Ms. Pena did not attend the motion hearing, nor did she file any materials. For the lengthy reasons set out in my decision dated October 4, 2023, I granted Ms. Hill-Reyes interim sole-decision making responsibility for both children, virtual parenting time between Mr. Reyes Keris and D.J. once per week, and supervised parenting time between both children and their father for one hour every three weeks.

[26] During a case management conference heard on December 22, 2023, Shelston J. gave directions as to the dates and duration of questioning of all parties, and ordered that Ms. Pena be questioned by Ms. Hill-Reyes’ counsel on March 29, 2024, virtually, for up to four hours. Ms. Pena was indeed questioned on that day, in the presence of a Spanish interpreter.

[27] On September 11, 2024, another case management conference was heard by Shelston J. At that time, many issues were canvassed, including Ms. Pena’s failure to file an Answer despite having been granted extensions of time to do so. The court also noted that Mr. Reyes Keris had not exercised his parenting rights since March 2024, despite the existing court order. Among other things, Shelston J. made the following order, at para. 5:

The respondent mother is to serve and file an answer by October 25, 2024. No further extensions shall be granted. In the event that the respondent mother fails to file an answer by October 25, 2024, the applicant may move to note the respondent father in default.

[28] The word “mother” was underlined twice by Shelston J. in his endorsement because there were concerns that it was Mr. Reyes Keris, not Ms. Pena, who was attempting to file an Answer on her behalf, and generally driving her case for her (an Answer purporting to have been signed by Ms. Pena, written in Spanish, had earlier been served upon Ms. Hill-Reyes by Mr. Reyes Keris’ counsel, although Ms. Pena confirmed during her questioning that she had never given Mr. Reyes Keris authority to do so on her behalf, and none had ever been filed with the Court by her).

[29] The reason why this is a concern in this case is because Ms. Hill-Reyes alleges in her motion materials that Mr. Reyes Keris faces criminal charges in the Dominican Republic in relation to D.J.’s alleged abduction by him. According to Ms. Hill-Reyes, D.J.’s return to the Dominican Republic by his father is his “ticket to freedom” in that country, which according to her is the sole reason why Mr. Reyes Keris is pursuing parenting rights to D.J. (without exercising those granted to him by this Court) and seeking to have his Canadian adoption declared invalid and fraudulent.

[30] Ms. Pena was present at the September 11, 2024, case conference before Shelston J., and she had the benefit of a Spanish interpreter.

[31] Despite this last deadline within which she was permitted to serve and file an Answer, Ms. Pena did not. As a result, Ms. Hill-Reyes brought a motion which was heard by me on March 6, 2025, seeking (among many other relief) a declaration that Ms. Pena is in default and imposing upon her the consequences set out in subrule 1(8.4) of the Family Law Rules, preventing her from further participating in these proceedings.

[32] Ms. Pena was not present at that motion, although she appeared briefly on the zoom call but then left. She had not filed any materials in response to Ms. Hill-Reyes’ motion, and she had failed to respond to Ms. Hill-Reyes’ counsel’s requests to confirm whether she needed an interpreter for the motion.

[33] In my decision released on March 7, 2025, I wrote:

Ms. Pena does not speak English or French, only Spanish. She resides in the Dominican Republic. She has not been able to retain Canadian counsel to assist her in these proceedings since it started almost three years ago (I understand that she does not have the financial means to do so). When she receives court documents, Ms. Pena must take steps to have them translated or explained to her in Spanish. Obviously, she is faced with many challenges in her ability to participate in this proceeding. We did not have an interpreter today to assist Ms. Pena in any event, due to her failure to respond to Ms. Hill-Reyes’s counsel’s requests (which she may or may not have understood since they would have been written in English).

While I understand Ms. Pena’s predicament, this legal proceeding cannot be delayed any further and the issue of what her participation in this proceeding will look like, in the absence of a proper Answer setting out her position, will have to be assessed. At the motion hearing today, I advised the parties that Ms. Hill-Reyes’s motion to have Ms. Pena deemed in default in this legal proceeding would be adjourned to another day, because I was of the view that it would be unfair for me to decide this issue without being satisfied that Ms. Pena had received proper notice and reasonable accommodations to allow meaningful participation on her part.

[34] Based on the above, I made the following orders:

3. Ms. Hill-Reyes’s motion to deem Ms. Pena in default in these proceedings is adjourned.

4. This motion shall return before me within 30 days after a Spanish translation of this endorsement has been provided to Ms. Pena by the Court’s translation services.

5. The motion hearing will be scheduled for one hour and will be held virtually for all.

6. The applicant mother and the respondent father are not permitted to serve or file any additional materials for the purpose of this motion, other than a confirmation form as required by the Rules.

7. An order is made requiring the Court’s translation services to provide to Ms. Pena, on a rush basis, a Spanish translation of the within endorsement.

8. For the purpose of the motion hearing, the court shall make all necessary arrangements to provide the services of an English to Spanish interpreter, as well as a French to Spanish interpreter, to assist Ms. Pena during this hearing (the applicant mother proceeds in English, whereas the respondent father proceeds in French: Ms. Pena does not speak either). The translation from French/English to Spanish will be consecutive.

9. If counsel for the applicant mother requires French to English translation, he must ensure that his interpreter is able to use the simultaneous translation feature embedded in Zoom (see enclosed Guides).

10. Court staff shall ensure that the simultaneous translation feature in Zoom is activated in the Zoom call.

11. It shall be the responsibility of Mr. Reyes Keris, who added Ms. Pena as co-respondent in this proceeding and who speaks Spanish, to ensure that Ms. Pena is notified, in Spanish, of the next court date and that she is provided with instructions, in Spanish, as to how to connect to the virtual motion hearing.

12. No documents will be accepted from Ms. Pena coming from Mr. Reyes Keris or his counsel for the purpose of this motion hearing. If Ms. Pena wishes to file documents with the court for the purpose of the motion hearing, she must find a way to have them translated into English or French, and she can hand them to the parties and the Court on the day of the motion hearing, if she has been unable to file them with the court as per the proper procedure.

The Within Motion

[35] The motion returned before me on April 22, 2025. All parties were present, assisted by an English to French interpreter (for Mr. Reyes Keris), a French to English interpreter (for Ms. Hill-Reyes’s counsel) and two Spanish interpreters (from French and English to Spanish, for Ms. Pena).

[36] For the purpose of this motion hearing, Ms. Pena had served and uploaded on Case Center a two-page affidavit written in Spanish, sworn on April 16, 2025, as well as a second affidavit, this one written in English, sworn on the same date, essentially repeating the same evidence. In other words, the Court was not provided with a certified English translation of Ms. Pena’s original Spanish affidavit; she provided two affidavits (containing essentially the same evidence), one sworn in Spanish, and one sworn in English. By Ms. Pena’s admission, she does not speak or understand English. These two affidavits were sworn in front of an Ontario lawyer who does not represent her in this proceeding. How she was able to swear an affidavit written in English is puzzling. What ought to have been done is for her Spanish affidavit to be translated into English by a certified interpreter, or evidence provided that the English version of her affidavit was reviewed by Ms. Pena with the assistance of an interpreter or an English-Spanish speaking lawyer who confirmed that she understood and approved the content of her affidavit. In any event, I accepted both affidavits.

[37] Counsel for Ms. Hill-Reyes brought the Court’s attention to many circumstances which lead, according to him, to the clear conclusion that these documents were indeed prepared by Mr. Reyes Keris or his counsel, and not by Ms. Pena. However, for the purpose of the motion, it is not necessary for me to come to any conclusions in that regard.

[38] Ms. Pena was present at the motion hearing, and she reiterated orally the contents of her affidavit during her brief submissions. Essentially, in her (English) two-page affidavit Ms. Pena re-asserts what she has already communicated to the Court verbally before – whenever she did attend a court hearing. She states that she never consented to D.J. relocating permanently to Canada; that at Mr. Reyes Keris’ request she consented to him travelling with his father to Canada for a period of three months in February 2021; that she was not aware nor did she consent to D.J.’s adoption by Ms. Hill-Reyes; that she submitted her Answer previously setting out her objection to Ms. Hill-Reyes’s adoption of D.J. and asking for his return (something she apparently denied during her questioning); that she lives in the Dominican Republic and has no knowledge of Canadian law; that she does not have the means to retain a lawyer; and that she wishes to seek the return of D.J. to her care in the Dominican Republic. Attached as an exhibit to her affidavit was a copy of the same Answer written in Spanish that was the subject of the case conference before Shelston J. in September 2024.

[39] Ms. Pena has still not served or filed an Answer or any of the other court documents that she was required to serve and file to be an active participant in these proceedings.

[40] This matter is proceeding to trial in September 2025, after three years of high conflict litigation.

[41] There have been a number of cost orders made against Mr. Reyes Keris since this proceeding was commenced, none of which have yet been paid. Despite court orders allowing for parenting time between Mr. Reyes Keris and D.J., Mr. Reyes Keris has had very little meaningful contact with him and has never sought to have any contact with E.F., whom he has never met. For reasons unknown to me, Mr. Reyes Keris was not present at the motion hearing before me, although his counsel was present.

Analysis

[42] While I acknowledge the many barriers faced by Ms. Pena in this proceeding, the fact is that since D.J. immigrated to Canada in February 2021, she never initiated a legal proceeding against Ms. Hill-Reyes and Mr. Reyes Keris in Canada to assert her claims in relation to D.J. She has had knowledge of this proceeding since at least April 2023, and she has not yet filed a proper Answer in which she asserts her specific claims against the other parties. She was given many extensions of time within which to do so, and the last extension given to her by Shelston J. on September 11, 2024, requiring that an Answer be filed by her by October 25, 2024, was made peremptory to her. Ms. Pena was present at that hearing and the need for her to file an Answer was explained to her, in Spanish. In my March 6, 2025, Endorsement, Ms. Pena’s failure to serve and file a proper Answer in this proceeding was once again discussed. My Endorsement was translated into Spanish, at the Court’s request, for her benefit. Yet, to this day Ms. Pena has not filed an Answer and related documents.

[43] Ms. Pena has also not provided the disclosure of the custody proceedings that she asserts she initiated in the Dominican Republic, as she was ordered to provide by the Court many months ago.

[44] Pleadings are not just a procedural step. Their primary functions are to articulate clearly the claims being made by each party, to set out the materials facts supporting those claims, and to communicate to the other party(ies) and the Court their position on the claims being advanced by the other party(ies). The exchange of pleadings is the foundation of a family court proceeding, and it determines how the case will be conducted on a go-forward basis from a procedural and substantive perspective. To be an active participant in a proceeding, a party must file their pleading.

[45] The importance of pleadings was described as follows by the Court in Moghimi v. Dashti, 2016 ONSC 2116, para 16:

Pleadings have important purposes in the just determination of a dispute. They provide notice to the other party of the case that she has to meet. There is no principle more important to the fairness of a dispute resolution process than that each side is entitled to fair notice. Once the parties know what the case is about, they make choices and take actions. They produce relevant documents based on the issues raised and facts pleaded in support of those issues. They may question the other parties and possibly third parties as well on the facts that underlie the issues or which arise from the documents produced. At trial, the pleadings set the scope of the admissibility of evidence. Evidence presented at trial must be relevant to an issue joined in the pleadings.

[46] After two years of litigation in this case, Ms. Pena has not asserted any claims in this litigation, other than repeating Mr. Reyes Keris’ own claims. She has been given numerous opportunities to do so and to become an active participant in this matter. She was given one last extension of time within which to serve and file her Answer in this proceeding, and she did not. While she has attended some of the court hearings, she never filed any materials, as required by the Family Law Rules, except for the two-page affidavit filed for the purpose of the most recent motion before me. The trial is proceeding in September 2025, and the Applicant’s preparation for this trial, which includes marshalling her evidence and that adduced by Mr. Reyes Keris, researching the law on the claims being advanced, and determining her legal strategy for the upcoming trial, should have commenced months ago.

[47] The procedure needs to be fair for all, not just for Ms. Pena. Ms. Hill-Reyes is also entitled to procedural fairness. The best interests of two young children are at stake here, and this is a high conflict file which requires finality. These children cannot wait any longer. Furthermore, nothing prevents Ms. Pena from testifying at trial on behalf of Mr. Reyes Keris if Mr. Reyes Keris wishes to rely on her testimony in support of the claims that he advances in this proceeding against Ms. Hill-Reyes.

[48] Considering all the above, I find that Ms. Pena is in default in this proceeding, and the consequences set out in subrule 1(8.4), paras. 1 to 4 of the Family Law Rules are imposed, namely:

1. She is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order);
2. She is not entitled to participate in the case in any way, except as a witness;
3. The court may deal with the case in her absence;
4. As far as Ms. Pena is concerned, the case shall proceed as an uncontested trial.

Costs

[49] Given the circumstances, I will not entertain a request for costs against Ms. Pena.

[50] If the remaining parties are unable to agree on costs for this entire motion (including the previous motion hearing held on March 6, 2025), I will accept brief written submissions not exceeding five (5) pages, double-spaced, plus a Bill of Costs and relevant offers to settle, along the following timelines:

1. Ms. Hill-Reyes shall serve and file her submissions by May 23, 2025;
2. Mr. Reyes Keris shall serve and file his submissions by May 30, 2025;
3. Any reply by Ms. Hill-Reyes shall be served and filed by June 6, 2025.

French Translation

[51] This decision was originally written in English and is released to the parties immediately to avoid any further delays in scheduling the return of the motion before me, the Trial Management Conference, and the trial in this matter. However, it shall be translated into Spanish and a Spanish translation provided to Mr. Reyes Keris and Ms. Pena as soon as possible (since Mr. Reyes Keris’ first language is Spanish, and since his counsel speaks and understands English, for this time only I saw no need to have my decision translated into French).

Justice Audrey Audet
Date: May 14, 2025