Interesting recent case on custody and immigration law, it merits close reading. Undoubtedly, the mother would try to use the case to remain in Canada, even though she has already been ordered deported. The judge in this case, to his credit, did not allow that to sway him, and instead made scathing comments about the mother's conduct, although both parties appeared to have been lying. Do you think that illegal parents should use children's access to bolster their immigration case
Ffrench v. Williams
Between
Melissa Ffrench, Applicant, and
Kevin Williams, Respondent, and
The Minister of Public Safety and Emergency Preparedness,
Interested Party
[2011] O.J. No. 3910
2011 ONCJ 406
Toronto Registry No. D51648/10A6
Ontario Court of Justice
S.B. Sherr J.
Heard: July 25-29, 2011.
Judgment: August 3, 2011.
(143 paras.)
Court Summary:
Custody of Child -- Best interests of child -- Plan of care -- Concrete strategy -- Mother of 2 children (now 1 1/2 and 3 years old) had lived in Canada illegally for past 13 years, earning income and not paying taxes, employment insurance or Canada Pension Plan premiums -- She was now facing deportation order to Jamaica -- Although she hoped to remain in Canada, she sought order that would let her take children with her to Jamaica if she were deported -- In her materials to support her application to remain in Canada on humanitarian and compassionate grounds, mother painted grim picture of village life that she and children would face in Jamaica, including ill and dying parents, dismal accommodations, abject poverty, etc. -- But in her plan of care in support of order to let her remove children to Jamaica, she offered much more upbeat view of spacious home renovations to accommodate her and children, of unexpected recovery in health of her parents who were now able to assist her financially, of nearby schools and community activities -- Court did not find mother's evidence credible -- Court was also concerned over mother's intention to allow father access to child, but only in Jamaica and her intention to defy any court order that would let children to come to Canada -- By contrast, father's plan was rich in details because it was largely based on what was currently in existence where he had support of his extended family of whom children were part -- Father wanted to foster children's bonds with mother and, if she were deported, was ready to bring them on visits to Jamaica -- Court found father's plan was child-focused and appropriate -- Court found it to be in children's best interests that parents share joint custody as long as mother remained in Canada -- If mother were deported, father would assume sole custody with specific access regime set out for mother.
Custody of Child -- Form of order -- Joint custody -- Grounds -- Ability of parties to co-operate -- Review of historical parenting practices -- Mother of 2 children (now 1 1/2 and 3 years old) had lived in Canada illegally for past 13 years, earning income and not paying taxes, employment insurance or Canada Pension Plan premiums -- She was now facing deportation order to Jamaica -- Both parents had shown immaturity and lack of judgment in their relationship to each other and towards children -- Nevertheless, they did have many positive parental traits, as result of which children seemed to be thriving under their care -- They had evolved remarkably stable time-sharing arrangement whereby children moved freely between mother's home and father's home, which were within steps of each other -- Evidence confirmed that, prior to this litigation, parents had been able to communicate on matters affecting children's best interests and court felt that they would recover this ability once stress of this litigation passed -- But to minimize prospect of conflict, court directed that, if parents could not reach agreement about major issues, then father would have final say on educational and religious matters and mother would make final decisions about medical matters -- If, however, mother were deported to Jamaica, father would assume sole custody of children because:
• (a) joint custody would not be workable over physical distance between parents
• (b) it would not serve children's best interest to be uprooted from their community and family in Ontario and to be deprived of opportunities that Canada had to offer them -- Father's plan of care better addressed their emotional, physical and developmental needs -- And father was much more likely to foster their ties to mother than would mother if she were allowed to move children to Jamaica with her.
Custody of Child -- Mobility rights -- Form of order -- Non-removal order -- Grounds -- Risk of parent's abduction of child out of Ontario -- Mother of 2 children (now 1 1/2 and 3 years old) had lived in Canada illegally for past 13 years, earning income "under the table" and not paying taxes, employment insurance or Canada Pension Plan premiums -- She was now facing deportation order to Jamaica -- Court found it to be in children's best interests that parents share joint custody as long as mother remained in Canada but, if she were deported, then father would assume sole custody with specific access regime set out for mother -- Federal immigration minister opposed court's plan to issue non-removal order, lest it complicate process for mother's deportation -- Court agreed that vis-à-vis father, there was no need for non-removal order since he would be most unlikely to attempt to remove children from Ontario -- Mother, on other hand, had show proven proclivity to circumvent laws and rules to attain her objectives -- She had already hidden herself and children from father once before and concern was that, to avoid deportation, she could go "underground" with children elsewhere in North America -- Non-removal orders were not to be made lightly but risk in this case justified granting of order forbidding mother's removal of children from Ontario without court's prior permission.
Cases cited:
Canabate v. Ayala, 2010 ONCJ 54, 193 A.C.W.S. (3d) 515, [2010] O.J. No. 4156, 2010 CarswellOnt 7374 (Ont. C.J.).
Griffiths v. Griffiths, 2005 ONCJ 235, 141 A.C.W.S. (3d) 265, [2005] O.J. No. 3090, 2005 CarswellOnt 3209 (Ont. C.J.).
Growen v. MacKenzie, 2008 ONCJ 170, 170 A.C.W.S. (3d) 344, [2008] O.J. No. 1439, 2008 CarswellOnt 2151 (Ont. C.J.).
Hajkova v. Romany, 2011 ONSC 2850, [2011] O.J. No. 2185, 2011 CarswellOnt 3237 (Ont. S.C.).
Kaplanis v. Kaplanis, 2005 CanLII 1625, 194 O.A.C. 106, 249 D.L.R. (4th) 620, 10 R.F.L. (6th) 373, [2005] O.J. No. 275, 2005 CarswellOnt 266 (Ont. C.A.).
Ladisa v. Ladisa, 2005 CanLII 1627, 193 O.A.C. 336, 11 R.F.L. (6th) 50, [2005] O.J. No. 276, 2005 CarswellOnt 268 (Ont. C.A.).
Warcop v. Warcop, 2009 CanLII 6423, 66 R.F.L. (6th) 438, [2009] O.J. No. 638, 2009 CarswellOnt 782 (Ont. S.C.).
Wozniak v. Brunton and Minister of Citizenship and Immigration (No. 2), 2004 CanLII 19764, 1 R.F.L. (6th) 429, [2004] O.J. No. 939, [2004] O.T.C. 240, 2004 CarswellOnt 943 (Ont. Fam. Ct.).
Statutes, Regulations and Rules cited:
Child Support Guidelines, O. Reg. 391/97 [as amended], section 9.
Children's Law Reform Act, R.S.O. 1990, c. C-12 [as amended], subsection 24(2) and section 36.
Immigration and Refugee Protection Act, S.C. 2001 c. 27 [as amended], paragraph 50(a)
________________________________________
Reasons for Judgment
S.B. SHERR J.:--
1: INTRODUCTION
1 The applicant (the mother) has brought an amended application for custody and child support for her two children:
• * Zyon, born in Toronto on 23 June 2008, and
• * Jeniah, born in Toronto on 6 January 2010.
The mother is without legal status in Canada and is at present subject to a deportation order to Jamaica. While she hopes to remain in Canada, the mother is seeking an order that she be able to take the children with her to Jamaica in the event that she is deported.
2 The respondent (the father) is the biological father of the children and also seeks custody of them. In the alternative, he is asking for a generous specified access order and an order that the children not be removed from the Province of Ontario. The mother supports the court's making a mutual non-removal order being made, provided that she can have it lifted on 48-hours notice if her deportation order is going to be executed. The father claimed child support from the mother (although he did not pursue this issue in final submissions).
3 In the event that the mother is deported to Jamaica, the mother and father each seek generous specified access if the other is awarded custody. The father is prepared to take the children to visit the mother in Jamaica if he is awarded custody. The mother's position is that the father should be restricted to having access in Jamaica if she is awarded custody.
4 The mother and father both also asked for a joint custody order if they are not awarded sole custody of the children.
5 The Minister of Public Safety and Emergency Preparedness (the Minister) was added on consent as an interested party, was permitted to participate fully in the trial and make full submissions. The Minister's intention is to deport the mother to Jamaica shortly after the conclusion of the trial. If the mother is granted custody of the children, the Minister seeks an order dispensing with the father's consent to obtaining passports for the children to facilitate their travelling with the mother to Jamaica. The Minister opposes any order for specified access or preventing the children's removal from the Province of Ontario, as such orders may legally interfere with the Minister's plan to deport the mother. The Minister undertook to delay the mother's deportation until a decision was reached in this case.
6 The primary issues before this court are custody, access, child support and whether an order should be made prohibiting the removal of the children from Ontario by one or both of the parents.
2: BACKGROUND
7 The mother is 30 years old. She was born and raised in Jamaica and obtained her high school diploma there. In 1998, her parents felt that her future would be better in Canada and sent her to live with an uncle in Alberta. The mother was 17 years old when she arrived in Canada. The mother was granted a temporary visitor's visa. It required that she leave Canada in six months. The mother did not return to Jamaica after the expiry of her visitor's visa. She has been in Canada illegally since that time.
8 The mother worked as a nanny for her uncle in Alberta for two years and moved to Toronto in 2000. In that year, she met the father. The mother lived continuously in Toronto until 4 March 2011. She worked at many "under the table" jobs to support herself. She worked as a nanny, a receptionist and a factory worker. She currently lives with her aunt in Hamilton. Because of her current immigration status, she is not permitted to work.
9 The father is 31 years old. He was born in Canada and is a Canadian citizen. He is a high school graduate and took a few college courses at Seneca College after he completed high school. He has been in the workforce since 2003 and currently works for Bell Technical Solutions as a cable puller. He has always lived in Toronto and currently lives with his parents in a home owned by them (533 Winona Drive).
10 The father is the father of a child, age six, from another relationship. This child primarily lives with his mother, but spends considerable time with the father, including spending each Tuesday and Thursday overnight with him, as well as alternate weekends. There is an order that the father and the child's mother have joint custody of this child. The father pays child support of $192 per month for this child.
11 The parents are not married. The mother claims that she had a relationship with the father from 2000 until 20 March 2010 and further claims that she cohabited with the father from the end of 2006 until their separation. The mother claims that the father agreed to marry her in December of 2007 and sponsor her to live in Canada, but that this never happened.
12 The father claims that he dated the mother casually from 2000-2003, lost contact with her for a few years, started a friendship with her again in 2006, became her boyfriend in the summer of 2007 and continued that relationship until 20 March 2010. He denies ever agreeing to marry or to sponsor her. He maintains that he has always lived with his parents at 533 Winona Drive and that he has never cohabited with the mother.
13 When the mother was pregnant with Zyon, the father approached his mother (the paternal grandmother) and asked her whether she would sublet part of a home that she rented (6 Belvidere Avenue) to the mother. This property was located less than one block from the home of the paternal grandmother. The paternal grandmother had rented 6 Belvidere Avenue since 1992, primarily so that her own mother could live there and be close by. The paternal grandmother testified that this was the first time the father had introduced the mother to her as his girlfriend. She testified that she agreed to sublet the property to the mother. The mother resided at 6 Belvidere Avenue from January of 2008 until 23 June 2010.
14 The parents disagree about their respective parenting roles with the children and in whose home the children were residing in throughout their relationship. They each claim to have been, at various times, the primary caregiver of the children. This will be discussed in more detail below.
15 While they disagree on whether they cohabited, it is clear that the parents spent considerable time with each other from, at the least, the middle of 2007 until 20 March 2010. It was also clear that both the mother and father were very involved in parenting the children and that the children often flowed back and forth between the homes at 6 Belvidere Avenue and 533 Winona Drive.
16 Considerable time was spent at the trial dealing with numerous allegations that the parents made against each other. Both of them claimed that the other was physically and emotionally abusive to them during arguments and both described four or five examples of this behaviour. The mother claimed that the father would try to control her by threatening to call immigration when he argued with her. She further alleged that the father was financially irresponsible and that she often did not have adequate food for her and the children. The parents denied the allegations made against them. These allegations will be explored in more detail below.
17 On 20 March 2010, the father was criminally charged with assaulting the mother and required by his release conditions to stay away from her. This ended their relationship. The children remained with the mother at 6 Belvidere Avenue.
18 The mother contacted the father towards the end of March of 2010 (in breach of the father's recognizance). She had found work and wanted his assistance to obtain day care for the children and care for them. The father agreed to this.
19 Shortly after, the paternal grandmother made a decision to give up her lease at 6 Belvidere Avenue as her mother had passed away in the fall of 2009 and she no longer needed to rent this home. The mother had to find new accommodation by the end of June of 2010.
20 The mother arranged to move in with a friend in June of 2010, but this residence was not suitable for the children. The mother agreed with the father that the children would reside with him at 533 Winona Drive on weekdays and with her from Friday nights to Sunday mornings. The children would be picked up on Sunday mornings, go to church with the paternal grandmother and then remain with the father. This arrangement lasted for just over three weeks.
21 On 27 July 2010, the parents agreed that the mother could have the children on that evening (a Wednesday) and would spend the following weekend with the father, as he wanted to take them to the Caribana Festival. Contrary to their agreement, the mother did not return the children to the father.
22 The mother instead took the children that evening to a woman's shelter claiming that the father had been abusive to her. She moved one month later with the children to another woman's shelter and remained there until 1 January 2011. On that date, she moved with the children into the home of a friend.
23 The mother issued this application on 28 July 2010 (she amended it on 27 August 2010). The father also came to court on 28 July 2010, prepared papers and tried to locate and serve the mother. The father could not find her.
24 On 11 August 2010, the father attended at court and obtained an order for temporary custody of the children without notice to the mother. In his affidavit, the father alleged that the mother had had little involvement with the children, never made decisions about them, did not provide a proper home for them, disappeared for months at a time and had rarely seen the children in the past few months. The father acknowledged at trial that all of these statements in his affidavit were false.
25 The mother claims that she learned about the "without notice" order about one week later. She chose not to comply with it. She continued to deny the father access to the children. He did not know where they were.
26 The "without notice" order was set aside on 8 September 2010 by Justice Geraldine F. Waldman. She made a temporary order granting the mother custody of the children. She also made a temporary order that the children not be removed from the Province of Ontario. The father began seeing the children shortly after.
27 On 12 October 2010, the father was granted temporary access to the children each weekend (two overnights in week one, one overnight in week two), with a third party facilitating the exchanges.
28 The criminal trial for the assault charges took place on 12 November 2010. Both parents testified. The mother admitted that the version of the alleged assault that she gave at the criminal trial was different than the version that she initially reported to the police. She testified that she had lied to the police by omitting many details of the assault. She said that a friend had convinced her to do this to protect the father of her children. The criminal charges were subsequently withdrawn.
29 The mother made a humanitarian and compassionate ("H and C") application to the Ministry of Citizenship and Immigration ("MCI") in December of 2010 to remain in Canada.
30 On 18 January 2011, the parents agreed that the father would have an additional overnight visit each week, that a third party was no longer required for exchanges and that the father would pay temporary child support of $161 per month, effective on 1 August 2010, based on an income of $12,400 per annum. A financial disclosure order was also made.
31 On this day, the father also sought the mother's address, ostensibly to facilitate access exchanges. The mother testified that she was resistant to providing her address, but agreed to provide it (outside of the courtroom) to reduce the stress of travel in the winter for the children. She did not want the children to have to travel to a neutral exchange site.
32 On 27 January 2011, the mother was arrested and detained by Canada Border Services for being in the country illegally. The father had informed Canada Border Services where the mother resided.
33 The children remained with the mother in detention. She would not agree to the children's leaving the detention centre. The father was restricted to visiting the children there.
34 On or about 29 January 2011, a bail hearing was held for the mother. It was ordered that she could be released upon posting a $10,000 bond. The mother struggled to find someone to post her bail and remained in detention.
35 On 1 February 2011, the Minister issued an exclusion order because of the mother's having been in Canada without authorization. This means that, if she is deported, the mother will be unable to return to Canada for at least one year. To return, she would have to apply for an "Authorization to Return" from the Canadian Embassy in Jamaica.
36 On 7 February 2011, the Minister granted the mother the right to apply for a pre-removal risk assessment and the mother made this application on 22 February 2011.
37 On 10 February 2011, Justice Waldman ordered that the father's existing access should resume and the father was able to start taking the children from the detention centre.
38 On 4 March 2011, the mother was released from detention with release terms. Her aunt had agreed to be her surety and the Toronto Bail Program agreed to supervise her. Pursuant to her release terms, the mother has to reside with her aunt in Hamilton, report regularly to Canada Border Services and the Toronto Bail Program, and co-operate with any removal from Canada. If the mother breaches any of these terms, the Minister may issue a warrant for her arrest.
39 On 7 March 2011, Justice Waldman made a consent order changing the father's temporary access to each weekend. The court also increased temporary child support as of 15 April 2011 to $375 per month, based on an income of $25,000 per annum.
40 On 29 June 2011, both the mother's "H and C" application and pre-removal risk assessment were denied by the MCI. The mother has applied for leave for judicial review of the "H and C" decision to the Federal Court of Canada. This application remains pending. She has the right to ask for a stay of her removal from Canada in the Federal Court of Canada pending the disposition of her leave application. She also has the right to ask the removals officer for a deferral of her removal from Canada. If this is denied, she then has the right to seek leave to judicially review this decision.
41 The parents acknowledged that the children love and have a good relationship with the other parent. They agree that the other takes good care of the children. They both expressed that it was important that the children have a positive relationship with the other.
42 The mother also acknowledged that the paternal grandmother has a very good relationship with the children. She was confident that the father, with the paternal grandmother's assistance, can care for the children. The father also acknowledged that the mother was capable of caring for the children in Canada.
3: CREDIBILITY OF THE PARENTS
43 The mother and father both lacked credibility. Unless their evidence was uncontested or corroborated by reliable evidence, it was given little, if any, weight.
3.1: The Mother
44 The evidence revealed that the mother will say whatever she feels is necessary to advance her interests. She has shown little regard for the law, court orders or telling the truth. To some extent, this is understandable. She came to Canada, essentially alone, at a very young age. Her uncle in Alberta did not assist in regularizing her immigration status. Since she came to Ontario in 2000, she has done what she feels she needs to do to survive, support her children and remain in Canada with them. Until recently, she has not had much family support. She lives in fear of being deported to Jamaica and losing her relationship with her children. However, understanding the mother's motivation and circumstances does not make her evidence any more reliable.
45 Instances of the mother's lack of credibility and dishonest behaviour include:
• (a) The mother remained in Canada illegally and did not apply to regularize her immigration status until December of 2010. She testified that she never could afford to regularize her immigration status. The cost of the "H and C" application is $550. The mother has been steadily employed for most of her thirteen years in Canada, earning income and not paying taxes. She had credit cards and access to credit cards. She was able to lease a car. There was no financial limitation on her ability to obtain status in Canada.
• (b) The mother chose instead to try to bribe a person whom she thought was a corrupt immigration official in 2009 to regularize her immigration status. She spent at least $1,300 to do this. The mother admitted that she knew that this was intended as a bribe. Counsel for the interested party submitted that the mother showed no indication in her testimony that this was wrong. I agree with her.
• (c) The mother worked illegally in Canada and did not pay taxes, employment insurance or Canada Pension Plan premiums. She admitted participating in a scheme with one employer where her salary was paid to a company controlled by the father.
• (d) The mother was deceptive in the "H and C" process with the MCI. In her application, made in December of 2010, she deposed that she and the children would suffer considerable hardship if they had to return to Jamaica. She detailed extremely harsh conditions if she were forced to return there. She described how her father had cancer and her family was destitute and relied on donations. She claimed that there was not enough room in the family home to accommodate her and the children.
• The mother also deposed that she was a victim of domestic violence and that the father was facing a criminal trial for assaulting her. In the section where she had to describe whether she was financially stable, she represented that she was financially stable in Canada. She did not tell the MCI that she had debts of $17,500, assets of $3 and was reliant on food banks, as she deposed in this case.
• (e) The "H and C" application required the mother to update the MCI if there were any changes in her information that could affect her application. The mother deposed that she was aware of this obligation. She never informed the MCI that the father's criminal charges had been withdrawn.
• In this family law case, the mother deposed that conditions had dramatically improved in Jamaica in the past seven months. Her father was feeling much better, her mother working full-time, her parents were no longer living on donations and renovations were being made to the house in Jamaica to accommodate her and the children.
• The MCI did not make its decision on the "H and C" application until 29 June 2011. At no time did the mother up-date her information, which would clearly have harmed her chances of success. She admitted that she was prepared to let the decision be made based on her outdated information.
• The mother claimed that she did not notify the MCI of any of these changes because she expected that it would contact her if it had any questions. This was nonsense. She was well aware that giving it this updated information would hurt her claim.
• (f) The mother admitted that she twice swore false declarations that the father was the primary parent of the children so that she and the father would be able to obtain child tax benefits.
• (g) The mother admitted lying to the police about the details of the alleged assault of 20 March 2010.
46 In addition to this evidence, the following evidence showed that the mother has little regard for the law or court orders:
• (a) She chose to disregard the court order of 11 August 2010. She acknowledged being told to comply with it, but chose not to do so because she felt that it was unfair. Instead of immediately moving to court to set it aside, she chose to disobey it.
• (b) While in detention, she refused to comply with the temporary access order.1
• (c) She contacted the father in breach of his recognizance shortly after his assault charge, despite admitting that she knew that she was not supposed to do this.
• (d) She testified that, if she were deported to Jamaica with the children and this court made an order that the father have access to the children in Canada, she would not comply with the order. She explained that this is because she is afraid that the children would not be returned to her.
• (e) She attempted to bribe a person whom she thought was a corrupt immigration official.
47 The mother was often evasive and dissembled when presented with her inconsistent evidence. She often blamed third parties for her actions. She took no responsibility for not regularizing her immigration status. It was the fault of many other persons. It was her friend's influence that led to her lying to the police. She did not update her "H and C" information because the MCI failed to contact her. In response to father's counsel's pointing out that she has never paid income taxes, she announced her intention to back-file for the past 12 years of income taxes once her immigration status is regularized. This pronouncement did not help her credibility.
3.2: The Father
48 The father also lacked credibility. Evidence of his dishonesty included:
• (a) His multiple lies in his affidavit presented to the court when he obtained his order without notice on 11 August 2010, being fully aware that the court would rely on his evidence.
• (b) At the outset of the trial, he maintained, through counsel, that he had no involvement in reporting the mother's address to Canada Border Services. I made an order that the Minister advise the court whether the person who contacted it was the father, or a friend or family member associated with the father. It was then revealed that the person who reported the mother's address to Canada Border Services was indeed the father.
• (c) The father testified that his previous lawyer had contacted Canada Border Services in September of 2010 and that subsequently he had several conversations with their agent. He claimed that the nature of those conversations was for him to learn about what would happen if the mother were deported. He tried to rationalize his behaviour by claiming that he would never have given the mother's address to Canada Border Services if he thought that she would be deported. I found this unbelievable. I find that he pressed the mother for her address on the pretext that it would facilitate access and then gave her address to Canada Border Services, hoping that she would be detained and the children placed in his care. This was a profound betrayal of the mother and his children. It was also significantly hypocritical given his long-standing knowledge of her immigration status and participation with her in schemes to obtain income.
• (d) He knowingly participated with the mother to fraudulently obtain child tax benefits for Zyon. He knew that Zyon had been in her primary care in 2008. He also participated in her avoidance of income taxes by having her wages paid to his business.
49 Like the mother, the father also was evasive, dissembled and tried to blame third parties when confronted with his acts of dishonesty. He attributed lying in his affidavit to his frustrations in getting his case before a judge. He also claimed that he had received inadequate advice from duty counsel, although he had been involved in contested litigation with the mother of his other child for one year and clearly understood the importance of telling the truth in an affidavit.
4: FINDINGS ON FACTS IN DISPUTE
4.1: The Nature of the Parents' Relationship
50 In the final analysis, the parents' dispute over the characterization of their relationship is only relevant with respect to credibility. Since the court finds neither parent credible, a determination of this issue is not particularly important. It appears that the parent's relationship intensified once the mother became pregnant with Zyon and the father spent several nights each week at the mother's home at 6 Belvidere Avenue (the frequency of overnights depending on how well they were getting along at the time), while keeping most of his possessions at 533 Winona Drive. I accept the father's evidence that he stayed overnight at 533 Winona Drive on the nights that he had access to his other son. It appears that he moved regularly between 6 Belvidere Avenue and 533 Winona Drive until the relationship broke down in March of 2010. I accept the paternal grandmother's evidence that she was not introduced to the mother until January of 2008 and that her son was living in her home.
4.2: Promise to Marry
51 Again, this dispute was only relevant to credibility. The mother says that she and the father agreed in December of 2007 to be married. The father denied this. The mother's two aunts both testified that the parents announced their intention to marry at a Christmas dinner at one of the aunt's homes. They described in considerable detail how they began to make the wedding cakes and later learned from the mother that there would be no wedding. Both aunts were credible and I find that the parents did tell them that they would be married at this time. However, given the fact that the paternal grandmother testified that the father never told her about a proposed wedding, I also find it likely that the parents decided not to marry very quickly after their announcement to the aunts. The father is very close to his family. It is unlikely that he would have excluded them from any wedding preparations.
4.3: Domestic Violence
52 While it is clear that the parents frequently argued with one another, I cannot find on a balance of probabilities that either parent acted in a violent manner to the other. Neither parent has more credibility with the court than the other. Aside from the one criminal charge, neither parent offered any corroboration of their allegations. Neither provided evidence of medical treatment for injuries. Neither contacted the police. There were no witnesses to any of these alleged incidents. Neither told anyone else contemporaneously about these alleged incidents. In the one incident where charges were laid, the mother acknowledged lying to the police and the charges were withdrawn after both parents testified.
4.4: Controlling Behaviour
53 The mother alleged that the father used her immigration status to control her. She said that he would threaten during arguments to call immigration on her. The father's subsequent behaviour in calling Canada Border Services to gain an upper hand in this litigation gives credence to these allegations. I find that the father did act in a controlling manner from time to time with the mother.
4.5: Failure to Provide Food
54 I do not accept the mother's allegation that the father failed to provide food and necessities for her and the children while they lived at 6 Belvidere Avenue. The paternal grandmother was at this home frequently as she cared for her sick mother. She testified that there were always sufficient food and supplies in the home and that the mother was free to use them. The paternal grandmother permitted the mother to stay in the home at a very low rent ($400 per month) and did not press her to pay rent when she could not work. She was generous with the mother and a credible witness.
55 The mother's two aunts both testified that, once in 2008 and once in 2009, the mother called them claiming that she had no food in the house. They testified that they brought food baskets to her. On one occasion, they brought her $70. While I found the aunts credible, I strongly suspect that the mother could have been acting in a manipulative manner. Aside from these two times, she made no other requests for food.
4.6: Financial Irresponsibility
56 The evidence revealed that the parents were under considerable financial stress and this contributed to the volatility of their relationship. After the mother stopped working in 2008, there often was not enough money to make ends meet. The mother had no source of income and the father only earned $25-30,000 per annum. He also had to pay child support for another child. Since she was not eligible for OHIP, the mother had to pay doctor and hospital fees. These costs were significant. Many of these bills still remain unpaid. The parents owe money on a car lease. The mother has a legitimate complaint that the father has accrued a large amount of parking tickets under her name (she leased the car).
57 The mother also has a legitimate point when she says that the father was irresponsible by not looking for work after the company for which he worked closed in September of 2009. The father admitted that he did not actively look for work, that he felt that he "needed a break from work" and relied for many months on employment insurance payments. Given the family's financial problems, I agree with the mother that this was selfish and irresponsible conduct by the father.
58 The parents disagreed over whether the father has been delinquent in paying child support. Neither the mother nor the father offered corroborative evidence to support their positions and I decline to make a finding that the father has neglected his financial responsibility to these children.
4.7: Parenting Roles and Residence of the Children
59 The respective parenting roles of the parents and where the children resided up until the application was issued were the most important issues in dispute.
60 The mother's evidence is that, with the exception of three weeks in June of 2010, she has always been the primary caregiver of the children. She testified that she cohabited with the father, that he worked long hours and that he would often would go to his parents' home after work and not come home until late in the evening, leaving her alone to care for the children. She claimed that he would often "kick and scream" before agreeing to any request to look after the children. The mother produced no corroborative evidence to support her allegations and I find that she significantly minimized the father's involvement with the children.
61 The father provided a totally different story. He claimed that he was intimately involved with every aspect of raising the children. He said that he arranged doctors and attended medical appointments for them. He stated that he arranged day care for the children and was primarily responsible for taking and picking them up there. He claimed to have almost daily contact with the children when they resided at 6 Belvidere Avenue and that the children constantly went back and forth between 6 Belvidere Avenue and 533 Winona Drive, where he lived.
62 The father claimed that he was the primary caregiver for the children at 533 Winona Drive during 2009. He also claimed that the children primarily resided with him at 533 Winona Drive from March of 2010 until the mother took the children on 27 July 2010.
63 The paternal grandmother testified at length about these issues. While I considered the fact that she was an aligned witness, I found her to be credible and her evidence reliable. She gave her evidence in a balanced manner and did not over-state it. Her evidence did not always support her son's. She impressed the court as a mature and responsible woman. It was clear that she loves the children, has been fully integrated into their lives and has considerable knowledge about them and their living arrangements.
64 The paternal grandmother testified that the mother was Zyon's primary caregiver from the time he was born until the end of 2008. She said that, from an early stage, Zyon frequently moved back and forth between 533 Winona Drive and 6 Belvidere Avenue. She described how the father was involved almost daily with Zyon's care. She testified that she frequently attended at 6 Belvidere Avenue to both care for her mother and see Zyon.
65 The paternal grandmother testified that it was difficult for the mother to take Zyon to day care when she returned to work in January of 2009. She said that the mother would either drop off Zyon early in the morning at 533 Winona Drive or Zyon would just stay overnight with them if the mother was working. Either the father or her husband would take Zyon to day care in the morning and one of them or the mother would pick up Zyon from day care at the end of the day. She said that Zyon spent about half the time during 2009 at 533 Winona Drive and half the time at 6 Belvidere Avenue. The father, she said, would spend time with Zyon at both homes. She said that, while the parents often argued, they would co-operate in making arrangements for Zyon's care.
66 In January of 2010, Janiah was born. The paternal grandmother testified that the mother stayed at home with the children and was again their primary caregiver. As before, the children spent a lot of time in both homes and the father was involved with the children almost daily. She stated that this arrangement lasted until March of 2010 when the mother found work. She testified that the parents then reverted to the arrangement where her son or husband would take and pick up the children from day care on the days that the mother worked. The children would stay over at 533 Winona Drive unless the mother was not scheduled to work the next day. The paternal grandmother said that, during this period, the children resided at 533 Winona Drive the majority of the time.
67 The paternal grandmother confirmed that, in June of 2010, the parenting arrangement changed once again. The children lived at 533 Winona Drive with the father during the weekdays and with the mother one overnight on the weekend.
68 The paternal grandmother testified that she has always been very involved in helping her son with the children and that her family has a very good relationship with them. She described how she has a huge family who often get together for functions and how the children enjoy these occasions. She said that she takes the children to her church every Sunday.
69 I find as follows:
• (a) The paternal grandmother's evidence is the most accurate accounting of the parenting roles of the parents and the living arrangements of the children prior to this application.
• (b) The children have historically moved freely between the homes of the mother and the father.
• (c) Both parents have been very involved with parenting the children.
• (d) The paternal grandparents, and in particular, the paternal grandmother, have been intimately involved in parenting the children.
• (e) At the time of the application, the parents had orally agreed to the children's living with the father on weekdays and with the mother on weekends. This agreement might have been contingent upon the mother's finding suitable accommodation.
• (f) Since July of 2010, the children have lived primarily with the mother, largely as a result of the mother's unilaterally taking the children, contrary to the oral agreement of the parents, and the subsequent temporary court orders.
• (g) The children are comfortable and familiar in the homes of both parents.
5: CUSTODY AND ACCESS
70 This court's sole function is to make custody and access orders in the children's best interests. This court has no jurisdiction to determine whether the applicant remains in Canada.
• 5.1 Factors Set Out in the Children's Law Reform Act
71 Subsection 24(2) of the Children's Law Reform Act, R.S.O. 1990, c. C-12, as amended (the Act), sets out criteria for assessing the best interests of a child. I will consider each of the criteria, as set out in clauses (a) to (h) of subsection 24(2), in the paragraphs below:
• (a) the love, affection and emotional ties between the child and,
• (i) each person entitled to or claiming custody of or access to the child,
• (ii) other members of the child's family who reside with the child, and
• (iii) persons involved in the care and upbringing of the child;
72 The parents both love and are emotionally connected to the children. The children are closely attached to both parents.
73 Despite their flaws that are set out in this judgment, the parents have each shown the following positive parenting characteristics:
• (a) They both legitimately want what they feel is best for the children.
• (b) They are both committed to their children and want to be fully involved in their lives.
• (c) They both presented as intelligent and articulate.
• (d) Both parents had witnesses who testified that they are attentive with the children, care for their physical needs and are wonderful parents. The mother called her two aunts and a shelter worker to say this. The father called the paternal grandmother, his sister and a friend to say this.
• (e) Until July of 2010, they were flexible in arranging who would care for the children.
• (f) They have always looked after the children's physical and medical needs. The collateral witnesses described the children in very positive terms. The children appear to be thriving in the care of both parents. The parents deserve credit for this.
• (g) The father never misses his scheduled time with the children or his other child. This demonstrates a high level of commitment.
• (h) They are both willing and able to seek supports in assisting them with the children.
• (i) Both parents acknowledged the importance of the other's role in the children's lives.
74 I did not hear evidence that would suggest that the children have a closer relationship with one parent more than the other. However, since July of 2010, the children have spent more time in the care of their mother. Given her age and stage of development, this is a more important consideration for Janiah.
75 The children have a close relationship with the paternal grandparents, who have always been very involved in their lives. They also have positive relationships with their half-brother, the father's sister and other members of the father's extended family.
76 Since March of 2011, the children have developed positive relationships with the mother's two aunts. They provide the mother with considerable parenting assistance. The mother lives in the home of one aunt. The other aunt lives nearby and sees the mother and the children daily. As this is a newer relationship, it logically follows that the relationship that the children have with the two aunts is not yet of the same quality as the children have with the paternal grandparents. At this time, the children do not have any real relationship with the maternal grandparents.
• (b) the views and preferences of the child, where such views and preferences can reasonably be ascertained;
77 The children are too young to express views and preferences.
• (c) the length of time the child has lived in a stable home environment;
78 The children have moved between the homes of the mother and the father their entire lives. It is what they know. They appear to do well with this arrangement.
79 The father has lived with his parents at 533 Winona Drive since at least 20 March 2010. He intends to continue to live there. He has been able to provide a stable home environment for the children.
80 The mother has recently struggled to maintain a stable home environment. She moved in June of 2010 from 6 Belvidere Avenue to a friend's home. She then moved to two different woman's shelters in 2010. From there, she moved in with a friend and then she was detained. Since 4 March 2011, she has lived with her aunt in Hamilton. If she is deported, she will return to Jamaica. The children have been frequently moved in her care. The mother demonstrated little insight at trial why frequent moves might be detrimental for the children.
• (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
81 The children do not have special needs at this time. Both parents are equally able to provide the children with guidance and education.
82 The court has concerns about the maturity and judgment of both parents. Both have acted dishonestly and contrary at times to the best interests of their children.
83 The mother showed poor judgment in not regularizing her immigration status. As a result, the children risk losing a substantial relationship with one of their parents. The mother has acted selfishly at times by denying access to the father.
84 The father acted selfishly and vindictively, and with little regard for his children's best interests, in reporting the mother to Canada Border Services. As a result, the mother may be deported.
85 The parents are going to have to do a much better job as role models for their children in the future.
86 The father has the financial support of his family and the court has no concern that the children will receive the necessities of life in his care. If the mother remains in Canada, she has the support of her aunts at this time. Her ability to provide for the children if she is permitted to take the children with her to Jamaica is far less certain and will be discussed in more detail below.
• (e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;
87 The father has provided a reasonable plan to care for the children. They will live with him at his parents' home. This is a home in which the children are comfortable. It is appropriate accommodation for them. He will receive the assistance of his parents and sister in caring for the children. The children would continue to be part of this huge family. The father was able to describe the day cares, schools and community activities in his area for the children. It is a residential community with many children. Church is an important part of the children's lives and they would continue to attend on Sundays. The father told the court who would be the doctor and dentist for the children. The father would continue to work full-time. He testified that he returns from work at about 5 p.m. each day. The children would be enrolled in day care. Zyon would begin kindergarten in September of 2012. The father emphasized that the mother should remain equally involved with the children if she remains in Canada. In testimony, he proposed a joint custody arrangement, with the children spending equal time in both homes. It was evident that the father gave considerable thought to his plan and I find that it is child-focused and appropriate.
88 The mother's plans for the children are understandably fluid, given her uncertain immigration status. If she remains in Canada, the mother intends to live with her aunt in Hamilton. This home is owned by the aunt and is appropriate accommodation for the children. The mother was also able to describe the schools, the church and community activities in her area. The YMCA is close to her home. She currently takes the children to an Early Years Program. She intends to look for subsidized day care for the children. She will have the support of both of her aunts. The mother cannot work at this time because of her immigration status. She hopes to be able to regularize this status and has taken legal steps to do so. It remains very uncertain how successful she will be, as both her "H and C" application and pre-risk removal assessment have been rejected. If she is able to regularize her immigration status, she hopes to find work and eventually find her own accommodation. I have considered that at this time, she is available during the weekdays to care for the children, whereas the father would be reliant on day care.
89 The mother's plan if she is deported to Jamaica is to take the children with her and live with her parents. She now claims that they are in a position to financially assist her and there is appropriate accommodation for the children. She says that there are schools and community activities nearby. She plans to go to her mother's church, which is Seventh Day Adventist. While she hopes to remain in Canada, she testified that it would not be that bad for the children in Jamaica.
90 I did not find the mother's evidence about her plan in Jamaica to be reliable. When she was trying to stay in Canada, she deposed in her "H and C" application that:2
• (a) She is ill-equipped to obtain gainful employment in Jamaica.
• (b) Her father has been diagnosed with prostate cancer and this has taken a severe toll on the entire family.
• (c) Her mother works part-time, cannot support the family and has to rely on donations to make ends meet. Her mother is also unduly burdened by having to care for her ill husband.
• (d) She cannot rely on her family to support her and the children.
• (e) There is no room for her and the children in her parents' home.
• (f) Her family is impoverished and under considerable financial and emotional strain.
• (g) The living conditions in Jamaica would be dramatically worse for the children than what they are used to in Canada and would cause the children undue hardship.
• (h) Removing the children from Canada would hinder their development, psychologically, emotionally and otherwise, and would cause irreparable harm to the children.
91 The mother testified that her parent's circumstances had radically changed in the past seven months. She said that her father is better, her mother is working full-time, her family can now support her and that there is now adequate accommodation for her and the children, as her parents are renovating the home and adding a third room. This evidence was not credible. The mother did not report these improvements to the MCI. The court does not accept it is likely that there has been this dramatic improvement in such a short time -- just in time for this custody case. It might very well be that the mother over-stated the hardship that she would suffer in Jamaica to the MCI in order to buttress her claim to stay in Canada. It is just as likely that she is under-stating the problems that she would face in Jamaica in the family law case.
92 The mother filed an affidavit from her mother. It supported her new account of conditions in Jamaica. I attached little weight to this affidavit. It was devoid of any corroborating detail, even though the mother was aware that the conditions in Jamaica were in issue and she had considerable notice of these trial dates. There was no medical evidence about her father's condition. There was no supporting financial documentation about her parents' circumstances, not even a pay slip or bank statement. There was no evidence of the purported renovation of the home, such as an invoice, or a photograph. I also considered that the evidence was from an aligned witness who was not subject to cross-examination.
93 The mother acknowledged that her parents sent her to Canada so that she would have more opportunities than are available in Jamaica.
94 The mother provided no evidence of job opportunities that she might currently have in Jamaica.
95 Even taking the mother's plan in Jamaica at its highest, it is precarious. Her father has cancer and this could relapse, affecting the ability of her parents to assist her. Her parents live in a rural area in a small home. They have struggled financially, recently relying on donations. Even if their situation recently improved, it is too soon to evaluate whether this will remain the case. It remains uncertain how the children will be supported on a long-term basis in Jamaica. It is likely that their accustomed standard of living would be significantly diminished if they moved there.
96 The mother testified that, if she returns to Jamaica, she would permit access to the father, but only in Jamaica. She said that she would not permit the children to come to Canada, even if this court made such an order, as she did not trust the father to return the children.
97 The mother showed little regard for the children's relationship with the paternal grandparents. When asked about this relationship, she said that "they can travel to Jamaica too".
98 It is likely that the children's relationship with the father and his family would be severely compromised if the court permitted the mother to take the children to Jamaica.
• (f) the permanence and stability of the family unit with which it is proposed that the child will live;
99 The father's plan is permanent and stable.
100 The mother's plan is not as permanent and stable as the father's. Her aunts appeared to me to be fine people, but their relationship with the mother has only recently grown closer. Prior to March of 2011, their contact was restricted to holidays and some phone calls. The mother received bail on or about 29 January 2011. Bail of $10,000 had to be posted for her to be released. The mother's aunt did not post this bail (security on her home for $5,000) until 4 March 2011. The aunts had to think about this long and hard. I am not critical of them about this, but it is indicative of the degree of their attachment to the mother. I have no doubt that the paternal grandmother would have posted the father's security the same day if the situation had been reversed. Further, the mother strikes me as a strong and independent woman. I believe that, once she is no longer required to live with her aunt, she will find her own home as soon as possible. I do not fault her for this. I just note that her current arrangement is likely temporary; her future is very uncertain.
101 I have already set out my concerns with the stability of the mother's plan if she is deported to Jamaica.
• (g) the ability of each person applying for custody of or access to the child to act as a parent; and
102 I have already made many comments about the abilities of each parent to act as parents.
103 The evidence gave me concern about the mother's rigidity. While at times she was able to demonstrate flexibility (proposing generous holiday access if she remained in Canada), she often demonstrated dogmatic thinking. For example:
• (a) When asked whether she would let the children see the father on Father's Day if it was not his weekend, the mother insisted that she would not permit this.
• (b) The mother has also refused the requests of the father to move back the pickup time of the children on Friday evenings from 6:30 p.m. as her sister works until 5 p.m. and traffic from Toronto to Hamilton on Friday evenings is heavy. The mother then complained that the paternal aunt is often late picking up the children.
• (c) The father was willing to share making medical decisions with the mother. The mother was adamant that the father could only speak to doctors after speaking to her first.
• (d) The children have been raised in the Baptist faith. The mother said that, if she moves to Jamaica, she will raise the children as Seventh Day Adventists. She gave no indication that the father should have any say in this change. The father testified that he would prefer that the children remain Baptists, but impressed me with his flexibility. He testified that what was most important was that the children be raised as Christians, have faith in God, and that he could accept this change in their religious practice if they moved to Jamaica.
104 This leads to the next point. I find that the father is more willing to facilitate access to the mother than the other way around. This is a factor in considering the best interests of the children. The mother has made it clear that she will not grant the father access in Canada if she returns to Jamaica. The father, on the other hand, is willing to take the children to see the mother in Jamaica. The mother has proposed a more restrictive parenting schedule for the father than the father has proposed for her if they remain in Canada. The mother has also acted unilaterally in denying access at times to the father, when she felt that he should not see the children, despite court orders.
• (h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
105 This is not a factor.
5.2: Final Analysis
106 The children have very close relationships with both parents. They need both of their parents to be fully involved in their lives to ensure that they grow up emotionally healthy and develop to their full potential. To lose significant involvement with either parent will most likely be devastating to them and compromise their stability and emotional welfare. I have considered that, if the mother is deported to Jamaica without the children, she will be unable to come back to Canada for at least one year.
107 The children are used to spending significant time in the homes of both of their parents. This has worked for these children. This should be preserved, to the extent that it is possible.
108 I find it to be in the best interests of the children that the parents share joint custody of them as long as the mother remains in Canada.
109 The Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 CanLII 1625, 194 O.A.C. 106, 249 D.L.R. (4th) 620, 10 R.F.L. (6th) 373, [2005] O.J. No. 275, 2005 CarswellOnt 266, sets out the following principles in determining whether a joint custody order is appropriate:
• 1. There must be evidence of historical communication between the parents and appropriate communication between them.
• 2. It cannot be ordered in the hope that it will improve their communication.
• 3. Just because both parents are fit does not mean that joint custody should be ordered.
• 4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
• 5. No matter how detailed the custody order, there will always be gaps and unexpected situations and, when they arise, they must be able to be addressed on an ongoing basis.
• 6. The younger the child, the more important communication is.
110 Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See Griffiths v. Griffiths, 2005 ONCJ 235, 141 A.C.W.S. (3d) 265, [2005] O.J. No. 3090, 2005 CarswellOnt 3209 (Ont. C.J.). The issue is whether a reasonable measure of communication and cooperation is in place and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See Warcop v. Warcop, 2009 CanLII 6423, 66 R.F.L. (6th) 438, [2009] O.J. No. 638, 2009 CarswellOnt 782 (Ont. S.C.).
111 In Ladisa v. Ladisa, 2005 CanLII 1627, 193 O.A.C. 336, 11 R.F.L. (6th) 50, [2005] O.J. No. 276, 2005 CarswellOnt 268 (Ont. C.A.), the Ontario Court of Appeal upheld a trial decision awarding joint custody to the parents where, despite their strife, they could, when necessary, communicate effectively and put the interests of the children ahead of their own.
112 In Growen v. MacKenzie, 2008 ONCJ 170, 170 A.C.W.S. (3d) 344, [2008] O.J. No. 1439, 2008 CarswellOnt 2151 (Ont. C.J.), Justice Margaret A. McSorley wrote that the court should look at how parents parented prior to the separation to determine whether co-parenting and co-operation is possible and determine whether the parents can return to this after the stress of litigation is over.
113 In Hajkova v. Romany, 2011 ONSC 2850, [2011] O.J. No. 2185, 2011 CarswellOnt 3237 (Ont. S.C.), the court thoroughly reviewed the case law in this area and wrote at paragraph [17]:
• [17] The courts in recent years have found that in cases where there is conflict between the parents, but there is a degree of cooperation between them in the care of the children, that it may be in the best interests of the children that they have joint custody of the children. An order may be put in place for parallel parenting.
114 The parents both testified that they have, for the most part, been able to communicate when it comes to the best interests of the children. The evidence confirmed this. The parents had free-flowing parenting arrangements between them up until the beginning of this court case, when battle lines were drawn. They have always ensured that the health needs of the children have been taken care of and that the children had relationships with respective family members and friends. They both express an understanding that a good relationship with the other is in the best interests of the children.
115 This court finds that the parents do have the ability to co-operate and to communicate with each other about the best interests of the children and that this ability will likely improve once the stress of this litigation is over.
116 The court is very aware that, historically, the ability of these parents to communicate can vacillate. Accordingly, the court will provide clear direction about who will make final decisions if the parents cannot reach agreement about major issues. The father will be entitled to make final decisions about educational and religious matters. I have given the father the final say over religious issues since he showed more flexibility on this issue and is more likely than the mother to consult with and consider the other parent's opinion. I have given him final say over educational issues since, once school begins, the children will have to live closer to their school. At this point, I believe that the father's living arrangements are more stable and that he has better supports to ensure that the children get to and from school and have their educational needs met. The mother will be entitled to make final decisions about medical matters. She will choose the medical caregivers for the children.
117 In the event that the mother is deported to Jamaica, it is in the best interests of the children to remain in Canada with the father. His plan better addresses the emotional, physical and developmental needs of the children. His plan will better meet the children's needs for permanence, continuity and security. It is not in the best interests of the children to be removed from their community and be deprived of the opportunities that Canada has to offer them -- opportunities that the mother wants them to have. The father is also much more likely to facilitate the mother's relationship with the children than the mother would for him and his family if she were permitted to move with the children to Jamaica.
118 In the event that the mother is deported to Jamaica, the father shall have sole custody of the children. Joint custody would not be workable given the physical distance between the parents.
6: SPECIFIED ACCESS AND NON-REMOVAL ORDERS
6.1: Positions of the Parties and the Law
119 The mother and father both seek specific parenting arrangements. Both fear that the other will take advantage of them if the arrangements are not specific. They also seek an order that the children not be removed from Ontario without the written consent of the other or court order.
120 The Minister urged this court not to make a specified access or non-removal order as this could potentially interfere with the deportation process. Paragraph 50(a) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27, as amended (the "IRPA"), reads as follows:
• 50. Stay. -- A removal order is stayed
• (a) if a decision that was made in a judicial proceeding -- at which the Minister shall be given the opportunity to make submissions -- would be directly contravened by the enforcement of the removal order;
...
121 The Minister was given the right to participate in this trial. The Minister's counsel cross-examined witnesses and made full submissions.
122 In Canabate v. Ayala, 2010 ONCJ 54, 193 A.C.W.S. (3d) 515, [2010] O.J. No. 4156, 2010 CarswellOnt 7374 (Ont. C.J.), I heard a case with many similarities to the case before me. The mother was subject to deportation to Argentina and both parents sought custody and, in the alternative, specified access and non-removal orders. The Minister participated in Canabate v. Ayala and opposed the making of specified access and non-removal orders. In my decision, I reviewed the law that has developed in this area in paragraphs [51]-[53]. I rely again on this law. The law can be summarized as follows:
• (a) There must be a genuine lis for the court to exercise its jurisdiction to make a custody or access order.
• (b) There must be a genuine lis for the court to exercise its jurisdiction to make a non-removal order.
• (c) The family law process should not be used for the sole purpose of frustrating the deportation of persons who have been ordered removed from Canada pursuant to the relevant immigration legislation.
• (d) Non-removal orders are not to be made lightly.
• (e) Each case must be carefully examined on its facts.
123 In Canabate v. Ayala, I found that there was a genuine lis with respect to both the custody-and-access and non-removal issues. I found it to be in the children's best interests to order custody to the mother, specified access to the father and a non-removal order, which the mother could apply to remove on 48 hours notice, if her deportation was about to be executed. I also made the following statements in paragraphs [58]-[60] that apply equally to this case:
• [58] The Court of Appeal decision in J.H. v. F.A., supra, makes it clear that it is not this court's function to deal with the applicant's immigration issues. This court's sole focus is on Joshua's best interests. The issues raised by the Minister are factors to be considered by immigration officials and, if necessary, the Federal Court of Canada.
• [59] The orders that will follow are not made with the intent of frustrating the deportation process, but rather to comply with this court's mandate under the Children's Law Reform Act to determine what orders are in Joshua's best interests in the context of a legitimately contested custody and access dispute. It would be an abrogation of this court's responsibility to do otherwise.
• [60] Whether or not the applicant will be deported will be determined according to immigration legislation. The appropriate decision makers will have the benefit of this decision, which reflects findings regarding Joshua's best interests in the family law context after a contested hearing, in which the Minister fully participated. The Minister may decide to defer the removal of the applicant pending the determination of her humanitarian and compassionate application. It may or may not be determined that a family court decision, where there is a genuine lis with respect to issues of access and non-removal of a child, will invoke the operation of paragraph 50(a) of the Immigration and Refugee Protection Act. The deportation may still proceed. These issues are for others to decide. This court is not interfering with this process.
• 6.2: Access
124 The Minister conceded that there was a genuine custody-and-access lis in this case, but urged me not to make a specified access order, pointing to the prior ability of the parents to manage access arrangements without a court order. I strongly disagree.
125 This is a case that cries out for structured access. In the absence of rules, the parents have shown that they will take advantage of the other. The mother has twice denied the father access for periods of time and, when angered, is inclined to make her own rules. A structured access schedule will facilitate continuity and predictability for the children and a preservation of their relationship with both parents. It will assist in the reduction of their exposure to conflict between their parents. Further, appropriate plans must be made for the children's care when with each parent. It is difficult to do this with an uncertain parenting schedule.
126 I find that it is in the best interests of the children to share equal time with the parents, as long as the mother is in Canada. To reduce the number of transitions, the children will alternate spending weeks in the care of each parent. This schedule will result in an equal sharing of holidays by the parents. This schedule will provide the children with the best that both parents have to offer.
127 This parenting arrangement shall continue until Zyon begins school in September of 2012. At that point, given the current distance between the parents, a week-about arrangement will not be workable. As the father will have final say on educational issues and he has the assistance of his family to get the children to and from school, the children should reside in Toronto during the weekdays. If the mother is able to arrange accommodation in Toronto and is able to make reasonable arrangements to take the children to and from school, there is no reason why the week-about arrangement should not continue. However, if she is unable to arrange this, the children are to live with the father during the weekdays and with the mother on three out of every four weekends. Holidays would be equally divided. If the parents cannot agree on the specific access terms, they can apply to court, on notice, for a summary determination.
128 In the event that the mother is deported to Jamaica, I will hold the father to his promise to facilitate access to her in Jamaica. The children are to be taken to Jamaica no less than twice each year, including for one month in the summer and two weeks over the winter school break. If the mother is able to come to Canada, she will have liberal and generous access here. The father will be responsible for transporting the children.
6.3: Non-Removal
129 The Minister argues that there is not a genuine lis about non-removal.
130 I agree with the Minister that no genuine lis exists with respect to the mother's claim for a non-removal order against the father. There was no evidence that the father would ever remove the children from Ontario.
131 However, I do find that there is a lis with respect to the possibility of the mother's removing the children from Ontario, separate from her request to take the children to Jamaica if she is deported.
132 I find that there is a risk that the mother would remove the children from Ontario if she feels that she is at risk of being deported without them. This risk warrants the making of a non-removal order in the best interests of the children. The mother has already demonstrated that she will act above the law if she feels that it is in her interests to do so and that she will do whatever she feels is necessary to survive in Canada with her children. She is very resourceful. She remained illegally in Canada for thirteen years, was able to work under the table and support herself. She has worked the system to maximize her income.
133 The father deposed in his affidavit in support of his "without notice" motion that the mother had threatened, when they fought, to take the children away to Jamaica. She denied him access for two months after they had an argument in July of 2010. At that time, she was able to successfully hide herself and the children from him for two months. While I think that her threat to remove the children to Jamaica at the time (if made at all, given the father's lack of credibility) was likely an empty one, I think that the father's concern about removal has merit and creates a genuine lis. The concern is that the mother could go underground with the children elsewhere in North America. This is an order that I would have not have hesitated to make if not for the deportation issue.
134 I have seriously considered the pending deportation order in making my decision -- see paragraph [24] of Wozniak v. Brunton and Minister of Citizenship and Immigration (No. 2), 2004 CanLII 19764, 1 R.F.L. (6th) 429, [2004] O.J. No. 939, [2004] O.T.C. 240, 2004 CarswellOnt 943 (Ont. Fam. Ct.) -- but this cannot be the court's dominant consideration when a child's best interests are at stake. It is in the children's best interests to have a relationship with both parents. The children's relationship with the father and extended paternal family could be seriously damaged if the mother removed the children from Ontario. It would be unconscionable and a dereliction of my responsibility to these children if the mother removed the children from Ontario and I had not made a non-removal order only because there is the possibility that it would interfere with the mother's deportation. Whether this order has the effect of interfering with her deportation will be up to others to decide. My focus has to be on the best interests of these children.
135 I wish to emphasize that I am not finding that the mother is likely to remove the children from Ontario, otherwise I would not be granting her equal time with the children. I only find that it is a risk that merits the granting of a non-removal order in the best interests of the children.
7: CHILD SUPPORT
136 I find that the father should pay the table amount of child support for the children pursuant to the Child Support Guidelines, O. Reg. 391/97, as amended. I have considered that this is a shared custody case pursuant to section 9 of the guidelines and have considered the factors set out in that section. I also considered that the father is paying child support for his other child. However, the mother cannot work in Canada as a condition of her release conditions. The father lives with his parents and has their financial support. The table amount is appropriate in these circumstances.
137 The mother asks that child support be adjusted effective from the day that the application was issued. That is a fair request. Support will begin as of 1 August 2010 and the father will be credited with support payments made since that date.
138 The mother did not contest the father's evidence that he earned $21,110 in 2010 or that this will likely be his gross income this year. Accordingly, the father shall pay the mother the guideline table amount for two children in the sum of $323 per month. Annual financial disclosure will be ordered. It is expected that child support shall be adjusted annually in accordance with the father's income.
139 If the mother is deported to Jamaica the father's child support obligation shall terminate and the parties are to immediately notify the Family Responsibility Office.
140 The mother does not have the ability to earn income at this time, whether in Canada or Jamaica. I decline to make an anticipatory child support order against her in the event that she is deported. This does not preclude the father from seeking child support from her in the future if she is able to obtain employment in Jamaica.
8: FINAL ORDER
141 A final order shall go on the following terms:
• (a) The parents shall share joint custody of the children as long as the mother remains in Canada. The parents shall consult each other on all major issues regarding the children. In the event that they cannot reach agreement, the father will have final say over educational and religious issues and the mother will have final say over medical issues.
• (b) The mother will be responsible for arranging a doctor and dentist for the children and immediately advise the father as to who these practitioners are. The father shall be entitled to communicate directly with these practitioners. The father shall use the doctor and dentist selected by the mother unless there is a medical emergency.
• (c) The mother may arrange day care for the children in her area during her weeks with the children.
• (d) As long as the mother remains in Canada, the children shall rotate spending one week with each parent. The exchanges shall take place at the mother's residence each Sunday at 7 p.m. The children's first week with the father shall begin on Sunday, 7 August 2011. The children shall remain with the mother from the date of this decision until the exchange on 7 August 2011. The following access terms will take priority to this schedule:
• (i) The children shall spend Father's Day with the father and Mother's Day with the mother, even if these days do not fall on their regular week, from 10:00 a.m. until 7 p.m.
• (ii) In odd-numbered years, starting in 2011, the children shall be with the mother from 24 December at 6 p.m. until 25 December at 2 p.m. and with the father from 25 December at 2 p.m. until 26 December at 7 p.m. This schedule will be reversed in even-numbered years beginning in 2012.
• (e) The father or his designate shall be responsible for transporting the children for all exchanges.
• (f)
In September of 2012, it is expected that Zyon will attend school near the father's home and the children shall spend their weekdays in Toronto. If the mother is not residing in Toronto, it is expected that the children will spend three out of four weekends with her (the fourth weekend to be spent with the father) and holiday times (including the summer) will be equally divided between the parents. If the parents cannot agree on how to adjust the parenting schedule to accomplish this directive, either of them may move to the court for a summary determination of the issue.
• (g)
If the mother is deported to Jamaica, the sub-paragraphs set out above will no longer be in force and the father shall have sole custody of the children. The father will execute directions to permit the mother to communicate directly with any service provider for the children. This includes doctors, dentists, schools and day-care providers. The father shall also promptly send copies of any of the children's report cards or progress reports to the mother.
• (h) If the mother is deported to Jamaica, the access order will change as follows:
• (i) The father or his designate are to take the children to Jamaica, at the father's expense, a minimum of twice each year. They are to spend the month of July and the two-week winter break with the mother.
• (ii) If the mother is able to come to Canada, she will be entitled to liberal and generous access here.
• (iii) The parents are to arrange for Skype electronic-internet communication. The father is to facilitate the mother having this communication with the children at least 5 times per week for up to 15 minutes.
• (i) The parents are free to agree on further access.
• (j) The mother may not remove the children from the Province of Ontario without prior court order.
• (k) Nothing in this order precludes the father from traveling with the children. If the mother is deported to Jamaica, her consent for the father to obtain passports for the children and travel with them outside of Ontario is dispensed with.
• (l) All police officers wherever the children are located are directed to enforce this order. If the mother over-holds the children, contrary to the terms of this order, they are directed to locate, apprehend and deliver the children to the father pursuant to section 36 of the Children's Law Reform Act.
• (m) Based on his income of $21,110 per annum, the father shall pay the mother the table amount of child support for two children in the sum of $323 per month commencing on 1 August 2010. He is to receive credit for support payments made since that date.
• (n) The parents are to exchange their income tax returns and notices of assessment by 1 June each year. The parents are expected to annually adjust child support in accordance with the father's annual income.
• (o) Ongoing child support shall terminate if the mother is deported to Jamaica. The parents are to immediately notify the Family Responsibility Office if this happens.
• (p) The father's claim for child support is dismissed.
• (q) A support deduction order is to issue. The father is to complete the necessary support deduction forms.
142 If any party is seeking costs, they must contact the trial co-ordinator's office no later than 18 August 2011 to arrange a date to speak to the matter, failing which there will be no order as to costs.
143 I thank all counsel for their helpful presentation of this case.
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