M.A.W. v. J.A.W.
Between
M.A.W., Applicant, and
J.A.W., Respondent
The Minister of Public Safety and Emergency Preparedness,
Interested Party
J.A.W., Respondent
The Minister of Public Safety and Emergency Preparedness,
Interested Party
[2013] O.J. No. 456
2013 ONCJ 34
Court File No. D53955/11
Ontario Court of Justice
Family Court - Toronto, Ontario
S.B. Sherr J.
Heard: January 28, 2013.
Judgment: January 31, 2013.
Court File No. D53955/11
Ontario Court of Justice
Family Court - Toronto, Ontario
S.B. Sherr J.
Heard: January 28, 2013.
Judgment: January 31, 2013.
(52 paras.)
REASONS FOR DECISION
S.B. SHERR J.:--
Part One - Introduction
1 The
parties have one child together (the child), a daughter, who is five years old.
2 The
respondent (the mother) is subject to a deportation order to Jamaica. She seeks
orders for: sole custody of the child, that the father have reasonable access
to the child on reasonable notice (whether she resides in Canada or Jamaica),
child support, and dispensation of the father's consent for her to obtain
travel documents for the child and for her to travel with her outside of
Canada.
3 The
applicant (the father) brought an application seeking sole custody of the child
and an order that the child not be removed from Canada (a non-removal order).
In his opening statement, he changed that position to ask for joint custody of
the child, with specified access to himself and a non-removal order. By his
closing statement, the father was agreeable to orders that: the child reside
with the mother, whether in Canada or Jamaica; he would have reasonable and
generous access to the child in either country on reasonable notice
(non-specified access) and he would pay child support of $400 per month to the
mother.
4 In
her closing submissions, the mother was agreeable to an order that the father
pay child support of $400 per month, starting on February 1, 2013. She opposed
the father's request for a joint custody or a non-removal order.
5 The
Minister of Public Safety and Emergency Preparedness (the Minister) was added
on consent as an interested party, was permitted to participate 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. The Minister opposes any
order for specified access or that prevents the child's removal from Canada as
such orders may legally interfere with the Minister's plan to deport the
mother.
6 By
the end of the trial, the remaining issues were:
Whether the court
should make a sole or joint custody order.
Whether the court
should make a non-removal order.
Whether the court
should dispense with the father's consent for the mother to obtain travel
documentation for the child and for her to travel with the child outside of
Canada.
Part Two - Background facts
7 The
mother is 44 years old and lives in Toronto, Ontario with the child and a 19-year-old
child from another relationship. The mother was born in Jamaica and came to
Canada in 1998. She has lived in Canada since then. The mother has a third
child, age 15, who has been raised by her relatives in Jamaica. The mother owns
and runs a hair salon in Toronto.
8 The
father is 47 years old and lives in Brampton Ontario. He is a Canadian citizen.
The father has seven children (including the child) from four different
mothers. He is divorced and single. Two of his grown children live with him,
together with one grandchild. The father works full-time at a car wash and has
worked part-time as a music producer.
9 The
parties had an off/on relationship from 1999 until 2006. They never cohabited
or married.
10 The
child is a Canadian citizen.
11 The
parties agreed that the father has always financially supported the child.
Recently, they orally agreed that the father would pay the mother $400 per
month for child support.
Part Three - Mother's immigration status
12 It
is highly unlikely that this case would have come to court if not for the risk
of the mother being deported. The father testified that he has not been
involved in court proceedings with any of the mothers of his other children. He
issued this application because he was concerned about the child's welfare if
the mother was deported to Jamaica.
13 The
mother does not have legal status in Canada. She was arrested and detained by
the Canada Border Service Agency (CBSA) in October of 2001. In May of 2002, she
made a refugee claim and was issued a conditional deportation order. In October
of 2003, her refugee claim was denied. Her application for leave for judicial
review was denied in January of 2004. The mother's application for a
pre-removal risk assessment was denied in December of 2004. In January of 2006,
the mother submitted an application to remain in Canada on humanitarian and
compassionate grounds (H and C application). In October of 2007, the mother was
arrested again by the CBSA, but was released because the child was sick.
Shortly after, she was served with a direction to report for deportation. The
mother then submitted a request for deferral of her removal based on the
medical needs of herself and her children. This was denied. In November of 2007,
the mother brought a motion for a stay of her removal. This was dismissed. On
November 2, 2007, the mother failed to report for removal and an arrest warrant
was issued. The warrant was not executed until May 1, 2011 (at a routine
traffic stop) and the mother was placed in detention.
14 The
father applied for custody of the child on May 11, 2011, while the mother was
in detention.
15 The
mother was released from detention on June 7, 2011. On September 21, 2011, she
was charged with assault with a weapon and uttering a threat to cause death or
bodily harm. The mother's removal to Jamaica is currently stayed pursuant to
section 50 of the Immigration and Refugee Act (Canada) due to these outstanding criminal charges. The Minister plans to
ask the Crown to stay the charges to permit them to proceed with the mother's
removal from Canada.
16 On
January 25, 2012, the mother's H and C application was refused.
17 The
Minister agreed to defer the mother's removal from Canada until after the
completion of this hearing. The Minister is not prepared, subject to court
order, to defer her removal from Canada any further.
18 The
mother has applied for judicial review of the refusal of her H and C
application and this application is scheduled to be heard by the Federal Court
of Canada on February 21, 2013.
Part Four - Primary residence
19 The
mother has been the child's primary caregiver since birth. The child has
thrived in her care. She has responsibly taken care of the child's physical and
emotional needs. The child was described as smart and happy. She has a very
close relationship with her mother and her older sister. The evidence indicates
that the child is safe and secure in the mother's care.
20 The
mother testified that it would be in the best interests of the child if both of
them could continue to live in Canada. She believes that the child would have a
better future here. Her plan for the child, if she is deported to Jamaica,
remains murky. She is unsure where she could afford to live. She is worried
about a former violent boyfriend learning that she has returned to Jamaica and
will want to live far away from where he might be (she testified that her fear
of him and his associates is the reason she initially fled from Jamaica). If
required to return to Jamaica, she hopes to be able to open a hair salon and
rent an apartment for her and her children. She has made no specific
arrangements for any of this.
21 The
mother testified that the child has a close relationship with her father and is
very sad about the possibility of moving away from him. It appears it will be
very difficult for the child if the mother is deported and she moves with her
to Jamaica. Canada is the only home the child has ever known and she would be
separated from her family and friends.
22 The
mother testified that, even with the deficits involved in moving to Jamaica, it
would still be in the child's best interests to reside with her, as she has
been the parent who has always provided for her needs and the child has a
closer bond with her than with the father. She strongly believes that it is
best for the child to live with her, wherever that may be.
23 The
father testified that he preferred that the child live with the mother, whether
she lived in Canada or was deported to Jamaica. He said that young girls should
be with their mothers. He agreed that the mother should arrange for schooling
and medical care for the child if she is deported. He agreed that the child was
doing well in the care of the mother. He testified that he can't take the child
by himself on a full-time basis.
24 The
court finds that it is in the best interests of the child to live with the
mother, whether she lives in Canada or is deported. The court is satisfied that
the mother will be able to positively parent the child if she is deported to
Jamaica. She is fully committed to the child and selflessly looks after her
best interests. She has proven to be resourceful and the court is satisfied
that she will be able to financially support the child, ensure that her medical
and developmental needs are met, and that she is kept safe.
Part Five - Access
25 The
child sees the father frequently, including most weekends. She also enjoys
telephone access with him. The father is an important part of the child's life.
The parties agreed that they have, for the most part, been able to work out
access arrangements between them.
26 The
mother testified that she would facilitate access to the father, whether she
lives in Canada or in Jamaica. She is agreeable to permitting the father
contact with the child by Skype and by telephone if she is in Jamaica. She said
that she would facilitate access for the father in Jamaica on reasonable
notice. She expressed some concern that the father might try and take the child
back to Canada if she gave him unsupervised access.
27 The
father testified that if the mother is deported he will make arrangements to
visit the child in Jamaica. He agreed that the child is too young to travel to
Canada to see him at this time.
28 The
parties both submitted (in closing submissions) that they would prefer a final
access order that was flexible and worded as "reasonable access on
reasonable notice, whether in Canada or Jamaica". The court is content
that such an order is in the best interests of the child. The evidence
indicates that a specified access order is not required. It is highly unlikely
that the issue would have even been before the court, if not for the possible
deportation of the mother. The reality is that the mother may be removed
shortly from Canada, and the court should not make a specified access order
just to frustrate the deportation process, when the terms of access are not in
dispute (see my comments in Canabate v. Ayala 2010 ONCJ 54, paragraphs 58-60 and Ffrench
v. Williams, 2011 ONCJ 406), paragraphs 119-123.
Part Six - Child support
29 At
the start of the trial, it appeared that child support would be a contentious
issue. The father was maintaining that he was only earning $15,000 per annum
and the mother was maintaining that his income was much higher. The analysis
was complicated by the fact that the father was in serious breach of multiple
financial disclosure orders, hadn't updated his financial statement since April
of 2012 (despite court orders) and hadn't provided satisfactory documentation
of his financial affairs.
30 As
the evidence unfolded, the mother agreed that the father had always supported
the child to the best of his ability. The mother believed that the father would
continue to do so. The parties agreed that the father historically gave the
mother support somewhere in the range of $400 per month. They both testified
that they had orally agreed to have the father regularly pay this amount two
months ago, and he was honouring this agreement. They agreed that there should
be an order that the father continue to pay this amount on an ongoing basis.
31 It
is necessary to fix the father's annual income at $44,300 to correlate with a
child support guideline table payment of $400 per month. The evidence supports
making such a finding as:
The father works
full-time (40 hours each week) at a car wash earning $13.23 per hour.
The father has worked
part-time in the music business earning cash. There was inadequate disclosure
of this cash income.
The father owns and
maintains three homes. He rents two of them.
The father is able to
help support five children (he also has two grown children who live with
him).
The father has been
earning sufficient income to pay child support at close to this level in the
past, despite his income tax returns showing marginal income.
An adverse inference is
drawn against the father for his failure to provide complete financial
disclosure and comply with court orders.
There was no evidence
of any medical limitation that would prevent the father from earning this level
of income.
The father appeared to
be intelligent and resourceful and capable of earning a comfortable
income.
The father has agreed
that $400 per month is a fair amount to pay for child support and he has the
ability to pay this to the mother.
32 This
leads to the issues that remained in dispute at the end of the trial.
Part Seven - Non-removal order
33 Presently,
there is a temporary order that the child not be removed from Ontario. The
father sought a continuation of this order. The mother opposed this.
34 The
case law sets out that for the court to exercise its jurisdiction to make a
non-removal order, there must be a genuine lis between the parties. The purpose of non-removal orders under the Children's Law Reform Act is not to frustrate
the deportation of persons who have been ordered removed from Canada pursuant
to immigration legislation, but to prevent parents from removing children from
the jurisdiction in contested family law proceedings. Non-removal orders are
not to be made lightly and must be carefully examined on their facts. See: J.H. v. F.A. 2009 ONCA 17; Wozniak v. Brunton and Minister of Citizenship and Immigration (No.
2), 2004 CanLII 19764 (Ont. S.C.J.).
35 The
evidence is clear that there is no genuine lis between the parties with respect to the issue of non-removal. No
evidence was led that either party has any intention of voluntarily removing
the child from the jurisdiction, save and except through the operation of the
deportation order itself. See: Martin v. Royal, 2012 ONCJ 202. In fact, the mother is fighting very hard to remain
in Canada and has no desire to go to Jamaica with the child.
36 The
temporary non-removal order will be terminated.
Part Seven - Custody
7.1 Legal considerations
37 The
Ontario Court of Appeal in Kaplanis v. Kaplanis [2005] O.J. No. 275 sets out the following principles in
determining whether a joint custody order is appropriate:
There must be evidence
of historical communication between the parents and appropriate communication
between them.
It can't be ordered in
the hope that it will improve their communication.
Just because both
parents are fit does not mean that joint custody should be ordered.
The fact that one
parent professes an inability to communicate does not preclude an order for
joint custody.
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.
The younger the child,
the more important communication is.
38 Joint
custody should not be ordered where there is poor communication and the parties
fundamentally disagree on too many issues affecting the child's best interests.
Graham v. Butto, 2008 ONCA 260, Roy v. Roy [2006] O.J. No. 1872 (Ont. C.A.).
39 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. Griffiths v. Griffiths 2005 CarswellOnt 3209 (O.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. Warcop v. Warcop, 2009
CanLII 6423 (Ont. S.C.J.).
40 Where
a conflict between parents (such as an inability to communicate effectively) is
primarily the fault of one parent, that parent should not be able to use the
conflict as justification to oppose a joint or shared parenting order. To do so
allows an obdurate parent to engineer a result in his or her favour. However,
where the conflict is extreme and there is substantial blame to be leveled
against both parents, a joint or shared custody approach is not appropriate. Geremia v. Harb 2008 CanLII 19764 (Ont.
S.C.J.).
41 The
Ontario Court of Appeal's decision in J.H. v. F.A.,
supra, makes it clear that it is not this court's
function to deal with the mother's immigration issues. This court's sole focus
is on the child'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. See: Canabate v. Ayala, supra.
42 In
J.H and F.A. and The Minister Of Citizenship And
Immigration And the Minister Of Public Safety And Emergency Preparedness 2008 CanLII 7748 (Ont. S.C.J.) wherein it is was suggested that the
best interests of the child should be considered with the deportation of the
mother in mind, the court wrote at paragraph 56:
·
Not every interest of the child
can be satisfied in an order, so judges must evaluate the best interests of the
child in the factual and legal circumstances before them and limit their orders
to matters over which they have jurisdiction.
43 Ultimately,
the court must decide if a joint custody order is in the child's best interests
and consider the factors set out in subsection 24(2) of the Children's Law Reform Act in reaching this
decision. This subsection reads as follows:
·
Best interests of child
·
(2) The
court shall consider all the child's needs and circumstances, including,
the love, affection and
emotional ties between the child and,
each person entitled
to or claiming custody of or access to the child,
other members of the
child's family who reside with the child, and
persons involved in
the child's care and upbringing;
the child's views and
preferences, if they can reasonably be ascertained;
the length of time the
child has lived in a stable home environment;
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;
any plans proposed for
the child's care and upbringing;
the permanence and
stability of the family unit with which it is proposed that the child will
live;
the ability of each
person applying for custody of or access to the child to act as a parent;
and
the relationship by
blood or through an adoption order between the child and each person who is a
party to the application.
7.2 Analysis
44 The
Minister conceded (and the parties agreed) that there is a genuine lis with respect to the issue of whether the
court should order joint custody to the parties or sole custody to the mother.
Accordingly, the court must determine what order is in the child's best
interests.
45 This
is not a case where a joint custody order is required to preserve the father's
relationship with the child. The mother appreciates the importance of the
father's role in the child's life and has always facilitated their
relationship. The court is satisfied that the mother would continue to do her
best to facilitate the child's relationship with the father, even if she is
deported to Jamaica.
46 The
following evidence would support the father's claim for joint custody:
The parties have
cooperated around access arrangements and have been flexible in changing
them.
Both parents have
facilitated the child's relationship with the other parent.
There have been no
significant disagreements on major issues affecting the child.
The father has
financially supported the child.
The child loves both of
her parents and is thriving.
47 Notwithstanding
this evidence, the court finds that it is in the child's best interests to
grant the mother sole custody of the child for the following reasons:
The evidence
demonstrates that the mother has been the parent who has made the major
decisions for the child. The father has shown no previous inclination to be
involved with these decisions. He said that he plans to leave medical and
schooling decisions about the child to the mother. His application for joint
custody appears to be solely motivated by the mother's possible deportation and
his fear of losing his relationship with his child.
The mother has
responsibly made major decisions for the child.
The mother has always
kept the father fully informed about major decisions for the child. Up until
now, he has been content with this arrangement.
The child has had some
special medical needs. When she was younger, she had seizures that required
hospitalization. This is now under control, but she often has breathing issues
that require medical treatment. The mother has been the parent responsible for
attending to the child's medical needs.
The mother described
her relationship with the father as very difficult at times. She said that he
gets very argumentative and rude with her. The father was charged with
assaulting the mother in 2012. I found the mother's evidence about their
relationship credible.
The mother said that
the father has an alcohol problem. She says that a few times each year, he will
call her up drunk. She says that she will withhold access from the father when
he is in this condition. The father did not contradict this evidence.
The father has, at
times, demonstrated questionable judgment. The Peel Children's Aid Society was
involved with the father in 2011 due to allegations of improper supervision of
the child (the mother was in detention at the time). The father also spent time
in jail in 2012 arising out of charges of drinking and driving and breach of
condition. This reflects adversely on his ability to act as a parent.
The father has
demonstrated little regard for court orders in providing financial disclosure.
He has also been difficult and obstructive in complying with undertakings given
in his out-of-court questioning. This makes him a poor candidate for a joint
custody order.
The mother does not
trust the father. She is worried that he is capable of absconding with the
child from Jamaica. She feels this way because the father, on occasion, will
act unilaterally and over-hold the child after access visits. She is also
fearful because he aggressively opposed her taking the child to Jamaica until
this trial started and he might change his mind again.
The level of
communication between the parties is not good enough to justify making a joint
custody issue at this time.
The father did not seem
to appreciate what joint custody means. He seemed more concerned that any
access order is enforceable and that he could be sure that his child was doing
well.
If the mother is
deported to Jamaica, joint custody would not be workable with these parties,
given the distance between them and the challenges in their relationship. It
would not be in the best interests of the child to paralyze the mother from
making decisions for her because the father might be unavailable or
uncooperative.
48 It
is in the child's best
interests that the father be consulted on any major issues about the child and
to receive information from her school and services providers (if he wants such
information).
Part Eight - Travel issues
49 The
evidence indicates that it is in the child's best interests to grant an order
dispensing with the father's consent for the mother to obtain travel
documentation for the child, including passports, and to permit the mother to
travel outside of Canada with the child for the following reasons:
The child must be able
to travel with the mother if she is deported.
The father has been
resistant, up until the start of the trial, to the mother being able to take
the child to Jamaica. There is a real possibility that he will shift his
position again in the future and try to obstruct her from leaving Canada with
the child.
The father has not
respected court orders. The court has little confidence that he would execute
consents on a timely basis for the mother to obtain travel documents for the
child or for her to travel with the child outside of Canada.
Part Nine - Order
50 Cases
like this are very difficult. In a perfect world, the child would be able to
remain in Canada with her mother and continue her positive relationship with
her father and his extended family. They are an important part of her life.
However, this might not be possible. If the mother is deported, it will be very
important that both parents make every effort to ensure that the child can
maximize her contact with the father and his family.
51 A
final order will go on the following terms:
The mother shall have
sole custody of the child, whether she remains in Canada or is deported to
Jamaica.
The mother shall
consult with the father about any major decision regarding the child.
The mother shall
execute any directions necessary for the father to speak to any school the
child attends or any service provider for the child.
The mother shall send
the father copies of the child's report cards upon receipt.
The father shall have
reasonable and generous access to the child, on reasonable notice to the
mother, whether the child resides in Canada or in Jamaica.
If the mother resides
in Jamaica, the father shall not remove the child from Jamaica without the
written, notarized consent of the mother, or prior court order.
If the mother resides
in Jamaica, she shall ensure that the father can have Skype contact with the
child, a minimum of twice each week and telephone contact, initiated by the
father, a minimum of once each week.
The mother may obtain
all travel documentation for the child, including a passport, or a renewal of
passport, without the father's consent.
The mother may travel
outside of Canada with the child without the father's consent.
The existing order that
the child not be removed from the Province of Ontario, dated December 12, 2011,
is terminated.
Based on a fixed income
of $44,300 per annum, the father shall pay the mother the child support
guideline table amount for one child of $400 per month starting on February 1,
2013.
The father shall
provide the mother with complete copies of his income tax returns and notices
of assessment by June 30th each year.
A support deduction
order shall issue.
52 If
the mother chooses to seek her costs, she is to serve and file her written
submissions by February 14, 2013. The father will then have until February 28,
2013 to serve and file any written response. Submissions are not to exceed
three pages, not including any offer to settle or bill of costs.
S.B. SHERR J.
No comments:
Post a Comment