Reasons for Judgment

Court File No.: FS-23-37909
Date: 2025-01-14
Ontario Superior Court of Justice

Between:
Matila Mougoui, Applicant
– and –
Driss Sekkat, Respondent

Appearances:
Yuliya Kril, for the Applicant
No one appearing for the Respondent

Heard: In Writing

Judge: M. Kraft

Overview

[1] This is an uncontested trial brought by the applicant mother in which she seeks sole decision-making responsibility for the child and orders to permit her to travel with the child without the respondent father’s consent; to renew the child’s government issued documentation; to change the child’s name without the father’s consent; to have primary residence of the child; and to require the father to meet with her personally or through counsel if he wishes to have parenting time with the child in the future.

[2] The mother began this Application for a parenting order. The father did not respond to the mother’s Application. As a result, the mother proceeded to bring this uncontested trial.

[3] The parties are the parents of a child, R.S., born on May 10, 2023, who is 19 months old. R.S. was born in Ontario and has resided with the mother and her parents since birth.

Issues to be Decided

[4] The issues for me to decide at this uncontested trial are:

a. Should this matter proceed to an uncontested trial?
b. If the answer to a. is yes, what parenting order is in the best interests of the child?

Analysis

Issue 1: Have the grounds for an uncontested trial been established?

[5] Rule 10(1) of the Family Law Rules, O. Reg. 114/99 (“FLR”), provides for 30 days in which a Respondent may serve and file an Answer, failing which “[t]he consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply” pursuant to r. 10(5). One of those consequences is the option to proceed to an uncontested trial of the case.

[6] An “uncontested trial” is defined at r. 2(1) as “a trial at which only the party making the claim provides evidence and submissions.”

[7] The mother brought her Application on September 1, 2023 with the Superior Court of Justice, Family Court. It was properly served on the father, at the earliest date on September 1, 2023, and on the latest date by June 2, 2024. The father did not respond in the requisite 30 days as per the FLRs.

[8] The father was served with the mother’s Form 8 Application, Blank Form 10: Answer; Form 35.1 Affidavit; Form 8.01 Automatic Court Order; and an MIP notice (“the mother’s Court Application Documents”) on September 1, 2023 in Washington, D.C. where he lives. An affidavit of service was filed by Erick Navarro, a process server with NationWide SameDay Process service, dated September 7, 2023, confirming that the father was personally served with the mother’s Court Application Documents on September 1, 2023 at 6:56 p.m. at his address in Washington, DC.

[9] In addition, to comply with the Hague Convention on Service, the mother arranged to have the father served through ABC Legal, a service company that works with the United States Central Authority to execute requests for service abroad pursuant to Article 3 of the Convention in order to submit the “request for Service Abroad of Judicial or Extrajudicial Documents form” at the father’s address in Miami. However, service was unsuccessful at the father’s address in Miami. A Declaration of Non-Service of the mother’s Court Application Documents was sworn by a process server, Daisy Lopez, dated December 28, 2023 in which she confirmed that attempted service of these documents were unsuccessful and that:

a. On December 15, 2023, she was unable to access the father’s address due to a private gate/fence and she spoke with neighbours who did not recognize the father’s name;
b. On December 26, 2023, she was unable to access the father’s address due to a private gate/fence and she spoke with neighbours who did not recognize the father’s name;
c. On December 18, 2023, she was unable to access the father’s address due to a private gate/fence and waited;
d. On December 22, 2023, she was unable to access the father’s address due to a private gate/fence although she waited and spoke with neighbours who did not recognize the father’s name;
e. On December 26, 2023, there was no answer at the address; and
f. On December 28, 2023, she was unable to access the address due to a private gate/fence and again she spoke with neighbours who did not recognize the father’s name.

[10] A Declaration of Service was sworn by Delpheny Outland on June 3, 2024 at 10:00 p.m. confirming that on June 6, 2024, she served the father at his Washington address by leaving a copy of the mother’s Court Application documents with an adult named Sarah Jenkins, who identified herself as the father’s roommate, who resided at the address and confirmed that the father resides at the address.

[11] The mother deposes that the father’s lawyer in Washington, USA confirmed that the father was served with the mother’s Court Applicant documents through regular mail. According to the mother, the father’s counsel attempted to negotiate with her but maintained the father’s position which was that he denied he was R.S.’s father. The mother deposes that the father has made it clear to her that he has no interest in her or the child. There is no information on the record as to the name of the father’s lawyer.

[12] Despite being served at his Washington address and by regular mail at his Miami address, the father did not serve or file any responding pleadings.

[13] It is clear that the father has been aware of these proceedings since, the earliest, by September 1, 2023 and, the latest, by June 6, 2024.

[14] The father has failed to respond to the mother’s claim and chosen not to participate in this proceeding. The time for the father to have responded has long since passed. The mother is entitled to advance her claims as she has been waiting to do so since September 1, 2023. Accordingly, this matter is proceeding by way of an uncontested trial.

[15] Affidavit evidence may be relied on at an uncontested trial unless the court directs that oral evidence be given: r. 23(22) FLR. In support of her position, the mother relies on her sworn Form 23C, affidavit in support of the uncontested trial, dated July 18, 2024. I have considered this evidence and her Application, along with her Form 35.1 Affidavit.

Issue 2: Is it in the best interests of the child to grant the parenting orders requested?

[16] Since the parties are not married, the applicable statute that governs parenting of R.S. is the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

[17] Pursuant to s.6(1) of the CLRA, the birth parent of a child is recognized in law to be a parent of the child.

[18] The person whose sperm resulted in the conception of a child conceived through sexual intercourse is, and shall be recognized in law to be, a parent of the child: s.7(1) of the CLRA. It is on this basis that the mother has named the respondent as the father of R.S.

[19] A child’s parents are equally entitled to decision-making responsibility with respect to a child: s.20(1) of the CLRA.

[20] Since the child has resided solely with the mother since birth, and the father has acquiesced to this arrangement and failed to respond to the mother’s requests to meet the child, this arrangement can be seen as his implied consent, the father’s entitlement to decision-making responsibility is suspended pursuant to s.20(4) of the CLRA.

[21] The best interests of the child is the primary consideration in determining a parenting plan. Section 24 of the CLRA endorses a child-centered approach in determining parenting orders: Young v. Young, [1993] 4 S.C.R. 3, at pp. 62-63, per L’Heureux-Dubé J.; Knapp v. Knapp, 2021 ONCA 305, at para. 34.

[22] The best interests of the child requires primary consideration of the children’s physical, emotional and psychological safety, security and well-being: CLRA, ss. 24(1)-(2). Section 24(3) CLRA lists additional factors that must be considered. The CLRA provisions read as follows:

Best interests of the child

24 (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. 2020, c. 25, Sched. 1, s. 6.

Primary consideration

(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. 2020, c. 25, Sched. 1, s. 6.

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

[23] In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. S. 24(5) CLRA.

[24] In this case, the mother seeks a parenting plan that provides
a) sole decision-making for the child to her;
b) that the child live primarily with her;
c) that she have permission to apply for and renew all government-issued identification for the child without the consent of the father;
d) that she have permission to travel with the child without the consent of the father;
e) that she have permission to change the child’s name without the consent of the father; and
f) if the father wishes to see or spend time with the child that he advise the mother and meet with her, either personally or through counsel, on appropriate notice.

[25] Upon review of the mother’s affidavit, I find it is in the best interests of the child to grant the terms of the parenting order requested. In arriving at my decision, I have considered all the best interests factors. Below, I refer to the ones that are most pertinent to the matter.

Background

[26] According to the mother, the parties were in a romantic relationship from about August 2019 to January 28, 2023. They never lived together.

[27] The mother resides in Toronto. The father resides in Miami and Washington.

[28] Prior to the birth of R.S., the mother submits that

a. she tried to reach out to the father.
b. The father cut off all communication with her and blocked her from being able to contact him.
c. He and his family cut off all communication with the mother.
d. Just prior to the birth of R.S., she messaged the father through Facebook Messenger. The father’s response was for the mother to assume that “he no longer exists.”

[29] R.S., born on May 10, 2023 in Toronto.

[30] The father has chosen to be completely uninvolved in the child’s life. He has not met, seen or had any contact with R.S.

[31] Although the mother wants the father to be a part of R.S.’s life, she now accepts that he has no interest in being a parent or in having a relationship with his son. As a result, she commenced this application to ensure that she has decision-making authority in decisions relating to R.S.

Primary Residence and Decision-Making Responsibility

[32] The best interests factors are set out in s.24(3) of the CLRA. Given R.S.’s young age, not every factor listed in s.24(3) is relevant for the court to consider. The factors that I have considered in determining whether it is in R.S.’s best interests for the mother to continue to have sole decision-making responsibility over him and/or that she have primary residence of him are as follows:

a. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
b. The history of care of the child;
c. Any plans for the child’s care;
d. Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; and
e. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child.

[33] I make the following findings based on the best interests factors listed above:

a. The mother has been R.S.’s sole caregiver since birth. She has made all important decisions affecting his life including those about his physical and emotional needs. R.S. is 19-months old. Given his young age, it is critical that he has stability in terms of his caregivers. In these circumstances, it is in his best interests for the mother to have primary residence of him and for her to continue to have sole decision-making responsibility over the important decisions that impact him, such as educational, health and religion.

b. The mother has resided with R.S. and her parents in Toronto since his birth. In addition, the mother’s brother, R.S.’s uncle, resides with the child as set out in the mother’s Form 35.1 Affidavit. The mother’s Form 35.1 Affidavit confirms that she is not working and she is solely responsible for his care, along with having the support of her extended family, including her parents, relatives, and close friends.

c. The mother has deposed in both her Form 35.1 Affidavit and her Form 23C that she is more than willing for the father to have a relationship with R.S. Toward that end, the mother attempted to contact the father before R.S.’s birth and after she arranged for her Court Application Documents to be served on him. The father has denied parentage of R.S. The mother deposes that the father is the biological father of R.S. According to the mother, the father does not wish to have any contact with her or the child.

d. The father has demonstrated that he has no interest in seeing the child, meeting the child, or having any parenting time. Nonetheless, the mother remains willing to support a relationship between the father and R.S. and asks that an order be made that if the father wishes to have parenting time that such parenting time be organized through her and be on reasonable notice to her.

e. The plans for R.S.’s care are that the mother will continue to meet all of his needs, whether those be physical, social or emotional. She deposes that she is capable of doing so on her own and with the generous support of her family, relatives and close friends.

[34] Given the father’s refusal to have any contact with the mother, it is in the child’s best interests for an order to be made authorizing the mother to obtain all necessary government-issued documentation, such as a passport for R.S. without the need for the father’s consent.

[35] Similarly, it is in the child’s best interest to be permitted to travel with the child, in and outside of Canada without the need for the father’s consent.

Order

[36] This Court makes the following Final Order pursuant to s.24 of the Children’s Law Reform Act:

a. The applicant shall be granted sole decision-making responsibility of R.S., born on May 10, 2023;
b. The child, R.S., shall have his primary residence with the applicant.
c. The applicant shall be permitted to apply for and renew any and all government-issued documentation needed for R.S., including but not limited to, a birth certificate, social insurance number, passport, etc.
d. The applicant shall be permitted to travel with R.S., inside and outside of Canada, without the need for the respondent to consent.
e. The applicant shall be permitted to change the child’s name given that she has sole decision-making responsibility.
f. If the respondent wishes to see and/or have parenting time with R.S. at any point in the future, he shall arrange to speak with or meet the applicant personally, or through counsel, to arrange for such time as is consistent with R.S.’s best interests and on reasonable notice to the applicant.

M. Kraft
Released: January 14, 2025