F. v. M., 2011 ONCJ 719

Milton Registry No. 81/10 DATE: 2011·XI·02 CITATION: F. v. M. , 2011 ONCJ 719 ONTARIO COURT OF JUSTICE RE: A.F. – Applicant and T.M. - Respondent BEFORE: JUSTICE ROSELYN ZISMAN COUNSEL: Jeffrey S. Hart -for the Applicant T.M. - Self represented E N D O R S E M E N T JUSTICE R. ZISMAN ( endorsement ):— 1: INTRODUCTION [ 1 ] This is a motion for

summary judgment by the applicant, A.F.. Ms. F. seeks a final order for the following relief: 1. An order for sole custody of the children of the marriage, M.M1 born April […], 1999 and M.M2. born May […], 2006; 2. An order that the Applicant be permitted to travel abroad with the children without the Respondent’s consent; and 3. An order that the Respondent’s access to the children occur only in Ontario and that his access is supervised by either a mutually agreed third party or at a supervised access centre. [ 2 ] The Respondent opposes this relief on a

summary judgement motion and seeks a trial. It is his position that: 1. The parties should be granted joint custody. He does not oppose the Applicant having primary care of the children; 2. The Applicant should be prohibited from travelling to Pakistan and should require his consent for any travel; and 3. The Respondent should be permitted to exercise access to the children in British Columbia where he resides.

Background Chronology [ 3 ] The parties were married on January 2, 1998. They are the parents of the two children, M1. and M2.. The parties separated from November 2006 to March 2007, briefly reconciled and then permanently separated on April 2, 2007. [ 4 ] Ms. F. has been the children’s de facto custodial parent since April 2007 and has been solely responsible for making all decisions regarding the children. [ 5 ] Ms. F. commenced an Interjurisdictional Support Orders Act application for child support and an order was issued on September 4, 2009 by the provincial Court of British Columbia. Mr.

M. was ordered to pay child support of $543.00 per month based on an imputed income of $35,000.00. [ 6 ] Ms. F. commenced this application on June 22, 2010. She sought essentially the same relief that is now being requested in this

summary judgement motion, except that she initially sought a restraining order but did not pursue that relief. [ 7 ] The Respondent, T.M., who resides in British Columbia, filed his answer on August 25, 2010.

Although it is difficult to ascertain his position based on the extraneous comments and rambling nature of the answer, I believe a reasonable reading of his response would be that he does not agree that the mother has had de facto custody and opposes her claim for sole custody; he is opposed to the children travelling to Pakistan because of security issues but would agree to facilitate travel to anywhere but Pakistan if the mother can justify the need for the travel and there is joint agreement.

He also requests unsupervised access to be exercised in British Columbia. [ 8 ] The proceedings were adjourned several times as the father had retained counsel in this jurisdiction who was attempting to obtain instructions from him. [ 9 ] On January 26, 2011, the father was present for a case conference along with his counsel. The parties consented to a temporary order that the children continue to have their primary residence with the mother, that the father have one access visit supervised by the children’s uncle and if it went well another visit would be arranged.

The parties agreed that they were both entitled to conduct questioning and bring motions for temporary relief. [ 10 ] The matter was before the court again on April 14, 2011. As the mother’s motion for travel and passport issues was not properly served or filed, it did not proceed. The father was present but was no longer represented. The parties agreed to the father having two supervised access visits.

Further it was agreed that the father could have telephone access once a week on condition that he not record the calls and that he not speak negatively about the mother with the children. [ 11 ] At the request of the father, the settlement conference on June 10, 2011 proceeded with the father being able to participate by telephone conference call. At the time, the father agreed that the mother had been the primary parent but he wished to pursue joint custody.

The father also agreed that he would sign the children’s passport applications but he was opposed to the children travelling to Pakistan and wished his access to the children to take place in British Columbia. [ 12 ] Counsel for the Applicant brought this motion for

summary judgement on the basis that there was no genuine issue for trial and that the relief requested should be granted without the necessity of a trial. A timetable was set for the serving and filing of materials. The Respondent was permitted to participate via telephone conference call. [ 13 ] The motion proceeded on August 26, 2011. Leave was granted to permit the Respondent to file his responding affidavit despite late service. Evidence regarding Custody and Access [ 14 ] The children have resided with the Applicant since April 2, 2007 when the parties separated.

According to the Applicant, on April 2, 2007, the parties were involved in a heated argument that unfortunately took place in front of their daughter, M1. who was very upset and scared. M1. went to a neighbour’s house and called the police. The police advised that either Mr. M. leave the residence or that Ms. F. leave with the children. As Mr. M. would not leave, Ms. F. took the children and went to a shelter. The parties at the time were residing in Edmonton, Alberta. [ 15 ] On April 6, 2007 Ms. F. and the children came to Halton region where her sister resided.

She subsequently found accommodations for herself and the children. [ 16 ] She has been solely responsible for raising the children and meeting all of their needs. The Applicant attached to her affidavit, in support of this motion, copies of the children’s report cards. M. who is now in Grade 7 is doing well academically, attends school regularly and is actively involved in many school programs. M2. is now in senior kindergarten. Her report card indicates she is meeting all of her academic goals and has successfully participated in the school programs.

The Applicant also provided copies of the children’s immunization records as proof that their immunizations are up to date and also deposes that the children’s general health is excellent. [ 17 ] The Respondent does not dispute that the mother is meeting the children’s needs or that they should remain in the mother’s primary care.

He deposed that he was being “stalked/intimidated/harassed” because of his “tips to law enforcement about some criminal activity.” He states that during 2006-2007 numerous minor incidents occurred that targeted the children and that he complained to the RCMP but there was no investigation. He then states that after 2009, “the people involved somehow got the information & now I am directly targeted by them [may be my family as well].” The Respondent then submitted that as a result his children would not be safe in his care and that is why he is agreeing that they remain in the care of their mother.

[ 18 ] The Respondent‘s affidavit states that he is not fighting a custody battle but is fighting for his children’s best interests. It is his position that there is no evidence that he is a bad parent. He wishes an order for joint custody so he can be part of the children’s lives and protect them. He also alleges that if the mother is given sole control she will diminish his role in the children’s lives. [ 19 ] The Respondent also alleges that the mother has mental health problems but does not specify what those are.

He attached to his affidavit a notarized statement from his brother dated January 1, 2007 outlining his concerns about the mother’s stability and her ability to care for the children which he personally witnessed when the parties were visiting in Pakistan. [ 20 ] The Applicant is not agreeable to an order of joint custody as there is a history of violent and unpredictable behaviour by the Respondent.

She deposes that the Respondent was charged with assaulting her in July 2006 and that the parties went to marriage counseling in September 2006 but then separated after another incident of domestic violence. [ 21 ] The Applicant attached to her affidavit correspondence from Dr. Sadiq dated January 15, 2007. The letter indicates that it was requested by the Respondent and a copy was provided to the Applicant.

The letter indicates that the Respondent was required to attend counseling for his anger management and marital counseling as a result of his agreement with child protection services because of his charge of assaulting the Applicant. Dr. Sadiq assessed the Respondent as having paranoid delusions and feelings of persecution. The report concludes that, “Mr.

M. is likely to continue to suffer from frustrations, anger and depression along with marital problems until either the marriage is dissolved, or he finds some way to get rid of, what appears to be, his delusional thinking.” [ 22 ] It is the position of the Applicant that based on her interaction with him, she believes that his condition is not being treated and has likely worsened. Any request of disclosure about his treatment or what medication he is taking has been met with hostility. [ 23 ] The Respondent objects to the use of Dr.

Sadiq’s assessment of him as being hearsay and that it should be excluded from evidence. He did not dispute the contents of the report but rather that he did not consent to the release of the report to the Applicant. In any event, I put no weight on the report of Dr. Sadiq as it is a somewhat dated report and has not been subject to cross-examination or otherwise scrutinized. [ 24 ] The Respondent did not dispute that he assaulted the Applicant. He does not dispute that as a result of a violent argument the Applicant and children left the home.

He does not dispute that since 2007 the Applicant has been the parent solely responsible for making all of the decisions regarding the children. He did not refer to any specific decisions she has made that were contrary to the best interests of the children. [ 25 ] The Respondent had supervised access to the children in January and in April 2011 when he was in this jurisdiction. Prior to that time he had not seen the children for four years. He now wishes access to take place in British Columbia but presents no specifics.

He alleges that the Applicant is interfering with his telephone access as the children blame him for not being able to travel to Pakistan to see their grandmother before she died. [ 26 ] The Applicant agrees that both children are very upset over the fact that their father would not allow them to visit their grandmother before she died. She also agrees that M1. who is 12 years old does not wish to see her father at the present time.

Evidence regarding passport and travel issues [ 27 ] The Applicant initially sought an order that she could travel with the children to Pakistan as she was hoping the children would be able to visit with their ill maternal grandmother. Unfortunately the maternal grandmother passed away before she could make the necessary arrangements. [ 28 ] Although the pressing need for obtaining the children’s passports and travel to Pakistan has now passed, the Applicant is seeking an order to obtain the passports without the Respondent’s consent.

In the future she wishes the opportunity to travel with the children to visit with extended family in Pakistan. [ 29 ] The Respondent had agreed to sign the children’s passport applications at the court attendance on June 10, 2011 and was ordered to do so within 10 days. Although the Respondent did so, he sent a U.S. application for M1. and a Canadian application for M2.. He also included a travel consent authorizing the children to travel anywhere but Pakistan. [ 30 ] The Respondent relies on a travel consent he signed at the time of the separation in April 2007.

He alleges that he cannot trust the mother because she breached the terms of that consent. The consent had many conditions and stipulations including that the mother not allow the children to have any contact with the maternal grandparents or the maternal uncle. It appears from that consent that he was prepared to allow the Applicant to take the children to Pakistan for up to a year.

In any event that consent was time limited and is no longer valid. [ 31 ] It is also the Respondent’s position that it is unsafe to travel to Pakistan and that it would not be safe for the children to left in the care of the Applicant’s brother. The Applicant states that her brother has not lived in Pakistan for four years. The Law [ 32 ] Rule 16 of the Family Law Rules allows a party to seek

summary judgment without a trial on all or part of a claim after the respondent has served an Answer or after the time for serving an Answer has expired. [ 33 ] Rule 16 (2) provides that a motion for

summary judgment is available in any case. [ 34 ] Rule 16 (4) requires that the party making the motion serve an affidavit or other evidence that sets out the specific facts showing that there is no genuine issue requiring a trial.

[35] Rule 16 (4.1) provides that the responding party must also set out in an affidavit or other evidence specific facts showing thatthere is a genuine issue for trial. The responding party cannot make mere allegations or denials of the evidence. [36] Rule 16 (6) is mandatory that is, if the court concludes that there is no genuine issue requiring a trial of a claim, the court shallmake a final order accordingly. [37] Rule 2(5) is also relevant as it require that a court manage a case to promote the primary objectives of the rules which is to enablea court to justly deal with cases. [38] It is well established that

summary judgment is available in custody and access matters. (See for example, Barry v. Morgan(2005) Carswell Ont 1793; L. (Y.Q.) v. H. (T.T.)

(2006) CarswellOnt 2389; Minawi v. Minawai

(2002) CarswellOnt 4426; Gardner v.Gardner2005 CarswellOnt 3938). [39] In determining whether or not a genuine issue for trial exists, the court is not to assess credibility, weigh evidence or find thefacts. The court’s role on such a motion is narrowly limited to assessing the threshold issue of whether or not a genuine issue existsrequiring a trial. [40] The court must take a hard look at the merits of the case to determine there is a genuine issue for trial.

The onus is on themoving party to show there is no genuine issue for trial on a balance of probabilities. [41] The court must review all of the evidence to determine whether there is a basis for the final order sought. A properconsideration of the record is necessary. Then the court must determine whether there are specific facts that support a triable issue. A“genuine issue” must relate to a material fact. A mere factual conflict does not, in and of itself, lead to the necessity of a trial.

It is notsufficient for the responding party to make mere allegations or blanket denials or self serving affidavits that are not supported by specificfacts to defeat a claim for

summary judgment. APPLICATION OF THE LAW TO THE FACTS Custody and Access [42] It is difficult to ascertain the basis for the Respondent’s position that there is a genuine issue for trial regard whether or not thereshould be an order for joint custody as opposed to sole custody. It appears that the Respondent feels there should be a trial on this issuebecause he is not a “bad parent” and therefore should be granted joint custody. However, the law with respect to joint custody is wellsettled.

Absent evidence of the parent’s ability to co-operate and communicate effectively with one another, joint custody is notappropriate. (See Kaplanis v. Kaplanis (ON CA), [2005] O. J. No. 275 (C.A.)). [43] There are no material facts that the Respondent disputes that are relevant to the issue of custody.

The parties have had virtuallyno communication since the separation and have not been able to co-operate on the one issue that has arisen namely whether or not themother could travel with the children to Pakistan. [44] Further it is clear from the rambling, unfocused and irrelevant nature of the Respondent’s allegations and statements in hispleadings and in his oral submissions that communication and discussion between the parties about the children’s best interests would beimpossible. [45] Based on the history of domestic violence by the Respondent, the lack of a history of joint decision making, their inability tocommunicate or agree on major issues regarding the children and the practical difficulty of communicating with the Respondent due tothe three hour time difference, there is no basis for an order of joint custody.

The Applicant has met her onus to show there is notgenuine issue for trial on the issue of custody. [46] Based on the limited access the Respondent has had with the children in the last 4 years and his current estrangement from hiseldest daughter, his position for unsupervised access to take place out of this jurisdiction raises no genuine issue for trial. TheRespondent did not dispute his limited contact with the children. The Respondent did not suggest any plan for some transitional accessand did not present any evidence as to when or how often he could visit the children.

The Applicant has met the onus of proving there isno genuine issue for trial on the issue of the Respondent’s access, namely that it should continue to be supervised and take place in thisjurisdiction. [47] With respect to the telephone access, there were no specific submissions on this issue by the Applicant. The Respondent’sposition is that he wished telephone access and that the Applicant was interfering with it. I would simply continue the current temporaryorder as being consistent with the children’s best interests and on the basis that the parties previously consented to it.

Such an issuedoes not require a trial. [48] Therefore based on the uncontroverted evidence before me, I am satisfied that it continues to be in the children’s best interests toremain in the sole custody of the Applicant subject to supervised access to the Respondent when he is in this jurisdiction. Passport and travel consent [49] The Applicant has demonstrated that she has always acted in the best interests of the children.

There is no reason to believe thatshe would travel anywhere with the children that would jeopardize their safety. [50] The Respondent relies on articles from unknown news sources outlining concerns about travel to Pakistan. The Respondent has

not provided any credible evidence to substantiate his allegations that the Applicant’s future travel plans, that would include travel to Pakistan, raise a genuine issue for trial. [ 51 ] It is also clear on the evidence that the Respondent has not and will not in the future co-operate in executing passport applications and consents to travel for the children. [ 52 ] Therefore, I would also grant the Applicant’s motion for

summary judgement on this issue and permit the Applicant to obtain passports for the children and travel with the children without the Respondent’s consent. ORDER [ 53 ] The Applicant’s motion for

summary judgement is granted as follows: 1. The Applicant shall have custody of the children of the marriage, M.M1 born April […], 1999 and M.M2. born May […], 2006; 2. The Respondent shall have reasonable access to the children on reasonable notice to the Applicant. Such access to occur in the jurisdiction where the children reside and to be supervised by a mutually acceptable third party. If the parties cannot agree on a supervisor, the Applicant shall have the final choice; 3. The Respondent shall have telephone access to the children once a week on Monday between 7:00 to 7:30 p.m. Ontario time.

The Respondent shall not speak negatively about the Applicant during these calls, use the calls as an opportunity to harass the Applicant or record the calls. If the Respondent breaches these terms, the Applicant can immediately terminate the telephone call; 4. The Applicant shall be permitted to apply for passports, renewal of passports or any travel documents on behalf of the children without the consent or signature of the Respondent. The Applicant shall be permitted to travel with the children outside of Canada without the Respondent’s consent or signature; 5.

If the Applicant is seeking costs, brief written submissions as to costs with a Bill of Costs is be served and filed within 14 days and any response by the Respondent to be served and filed within 14 days thereafter. 2 November 2011 Justice Roselyn Zisman