E.M.B.M. Applicant — v. —, 2011 ONCJ 695

Brampton Registry No. 1000/11 DATE: 2010·IX·01 CITATION: E.M.B.M. v. R.A., 2011 ONCJ 695 ONTARIO COURT OF JUSTICE BETWEEN: E.M.B.M. Applicant — AND — R.A. Respondent Before Justice Manjusha B. Pawagi Heard on August 25, 2011 Ruling on Motions released on September 1, 2011 Christina A. Palod .................................................................................................. for the applicant Robert K.

McQueen ............................................................................................ for the respondent PAWAGI, J.: Nature of the Case: [ 1 ] Both of the parents in this case have brought emergency motions before this court with respect to the custody of their two sons, K.K., born […], 2003 (age 8), and B.K., born […], 2006 (age 5). [ 2 ] The Applicant mother first brought an ex parte motion for the return of B.K. to her care.

The Applicant mother alleged that the family had been residing in Egypt about to immigrate to Canada, when the Respondent father left for Canada in April 2011 with B.K. only, leaving the Applicant mother and K.K. behind but taking their passports so they would not be able to follow. On July 27, 2011, Justice Baldock made an ex parte order granting temporary custody of both children to the Applicant mother.

The Respondent father then brought a cross-motion seeking the return of B.K. to his care and seeking custody of both children, or in the alternative, alternate weekend access to both children. [ 3 ] The review of the Applicant mother’s ex parte order, and the Respondent father’s cross-motion were heard on August 25, 2011.

Preliminary issues: [ 4 ] Counsel for the Respondent father raised objections with respect to paragraph 8, and paragraphs 22-28 of the Applicant mother’s affidavit sworn August 22, 2011. [ 5 ] I find that paragraph 8 (the portion respecting what the Respondent father told a neighbour) does not comply with Rule 14(19)(

a) of the Family Law Rules in that the Applicant mother does not identify the source of this information by name, and it is therefore struck.

[ 6 ] With respect to paragraphs 22-28 which contain allegations that the Respondent father abused the children, counsel for the Respondent father was not seeking that they be struck but rather that they be given little weight on the grounds that they raise new material that is not properly part of a reply affidavit. [ 7 ] I note that in the Applicant mother’s Form 35.1: Affidavit in Support of Claim for Custody or Access sworn July 26, 2011, she alleges in paragraph 8 that the “Respondent has beaten K.K. age 8 yrs. with computer cable several times,” but does not mention abuse of the children at all in her affidavit in support of her ex parte motion also sworn July 26, 2011.

In her July 26, 2011 affidavit she describes K.K. burning a photo of his father on the stove, but only in the context of K.K. being angry at his father for keeping his little brother B.K.. [ 8 ] But then in her affidavit sworn August 22, 2011, she again refers to K.K. burning his father’s photo but this time in the context of his father hitting him and B.K., and K.K. suffering from nightmares, bed-wetting, emotional hurt and low self-esteem as a result of his father’s abuse. [ 9 ] In her August 22, 2011 affidavit, the Applicant mother states that on August 19, 2011, both children cried and panicked and wet their beds at the thought of seeing their father.

She states that K.K. cried for over an hour and said, “I will kill myself before I go to see him.” A worker from the shelter contacted Peel Children’s Aid Society out of concern about the children’s reaction and the Society is expected to investigate. [ 10 ] The information about the Respondent father allegedly abusing the children could have, and should have, been included in the Applicant mother’s first affidavit, and consequently will be given little weight in the context of the within motion. [ 11 ] However, the information about the children’s extreme negative reaction to seeing their father and K.K.’ comment about killing himself could not have been included earlier as it occurred on August 19, 2011.

Thus, it is properly part of the Applicant mother’s affidavit sworn August 22, 2011. The Facts: [ 12 ] Both the parties and their children have permanent resident status in Canada and intend to remain in Canada. They agree that this court has jurisdiction over this matter. [ 13 ] The parties agree that the mother was the primary caregiver to both children until B.K. came into his father’s care in April 2011.

The parties disagree on the reason B.K. came into his father’s care: [ 14 ] The Respondent father alleges that the Applicant mother has had mental health issues and suffered from debilitating headaches since January 2011 (feeling she is possessed by demons, seeing ghosts, hearing sounds) and has said she cannot care for both children.

She first gave B.K. to her mother to care for and then to the Respondent father in April 2011, and even sent father a text message on May 4, 2011 saying she did not want B.K. and would send him K.K. as well. [ 15 ] The Applicant mother admits only to suffering from headaches and alleges that the Respondent father tried (through his uncle who holds a high position at the hospital) to get her addicted to a drug which is a main component of morphine, but that she secretly stopped taking it once she found out what it was.

She alleges that the Respondent father just asked to take B.K. for a few days and that she never agreed to, or even knew, that he was going to Canada with him. In her affidavit of August 22, 2011 she does not dispute sending the father the May 4, 2011 text. However, her counsel in submissions on the motion states that the mother denies ever sending such a text. Analysis: Issue 1: Temporary care and custody

[ 16 ] There is no dispute that the Applicant mother was the primary caregiver for the two children. The Respondent father does not raise any concerns about her parenting of the children. With respect to his concerns about her mental health (being possessed by demons, hearing voices, etc.), he makes no link between these concerns and her ability to care for the children. He alleges that she told him she does not wish to care for the children, but she denies this.

Although this properly should have been in her affidavit (refuting the alleged text, etc.), there is no doubt that her position from the outset of this court proceeding is to have the children in her care. Thus, I have no evidence on which to vary the July 27, 2011 order which granted temporary custody of the children to the Applicant mother. Issue 2: Restraining order [ 17 ] The Applicant mother sought a restraining order as part of her ex parte motion.

On July 27, 2011 Justice Baldock while granting her request for temporary custody, found that there were no grounds to grant a restraining order on a without notice basis. The basis for the mother’s claim is found in her July 26, 2011 affidavit, paragraph 3, where she states, “The Respondent has been physically, verbally, mentally abusive to me since my marriage in front of the children.” The Applicant does not provide any further evidence of abuse in her Affidavit of August 22, 2011.

I give no weight to her allegation that the Respondent father tried to drug her through his uncle who works at the hospital where she was being treated, as she gives no basis for her belief. Thus, I find I have no evidence on which to make a restraining order.

Issue 3: Access [ 18 ] While there are serious inconsistencies and omissions in the Applicant mother’s affidavit material, particularly in her leaving out any allegations of child abuse in her first affidavit of July 22, 2011, and referring to the burning photo incident in two different contexts, her allegations of the children’s reaction on August 19, 2011 do raise concerns that must be addressed before an access order can be made. She makes specific allegations of bed wetting, crying and suicidal comments. She also advises that Peel Children’s Aid will be investigating.

While delaying dealing with the issue of access is prejudicial to the father, and potentially to the children, I find that it is outweighed by the need for the court to have an independent body (Children’s Aid) investigate the allegations before an order is made. It is in the best interests of the children to have the outcome of the investigation before the court, before any order for access is made. Issue 4: Office of the Children’s Lawyer [ 19 ] This issue was canvassed with the parties and neither objected to the court requesting the involvement of the Office of the Children’s Lawyer.

This request is made because the court has concerns about each party’s ability to support the children’s relationship with the other party. When B.K. was with his father he had no contact whatsoever with his mother from April to July 2011. Now that the children are both with their mother (from July 27, 2011) they have no contact with their father. The reasons for the lack of contact in both cases is disputed. What the court feels is clear however is that the children are being adversely impacted, emotionally and psychologically, by this dispute between their parents.

It would be of great benefit and would be a protection for them to have an independent position presented on their behalf to the court. Order: [ 20 ] The July 27, 2011 order remains in effect.

The issue of access is adjourned to a date to be set by the trial coordinator in conjunction with counsel. [ 21 ] Order to go requesting the involvement of the Office of the Children’s Lawyer (a copy of this endorsement is to be provided to the Office along with the order). [ 22 ] Peel Children’s Aid is kindly requested to report to the court in writing regarding the outcome of its investigation in this matter (a copy of this endorsement is to be provided to Children’s Aid). Released: September 1, 2011

___________________________ Justice Manjusha B. Pawagi