Rannelli v. Kamara, 2011 ONCJ 702

Toronto Registry No. DFO 11 10091 A4 DATE: 2011·X·06 CITATION: Rannelli v. Kamara , 2011 ONCJ 702 ONTARIO COURT OF JUSTICE BETWEEN: LAURA-LYNN RANNELLI Applicant — AND — SAIDU KAMARA Respondent Before Justice Ellen B. Murray Heard on 21 September 20011 Reasons for decision released on 6 October 2011 Laura-Lynn Rannelli ............................................................................................. on her own behalf Kathryn L. Smithen ............................................................................................ for the respondent [ 1 ] JUSTICE E.B.

MURRAY:— This case raises the issue of the limits of a court’s power under Rule 16, and how the use of that rule may be informed by Rule 2. Background [ 2 ] The Applicant, Laura Rannelli, is the mother of the child Kaleb Kamara, born September 12, 2007. The Respondent, Saidu Kamara, is the child’s father. The Applicant is 36 years of age, and works as a TTC driver. The Respondent is 32 years of age. He has not had consistent employment since before Kaleb was born, and is presently incarcerated. The parties were in an on-and-off relationship, finally separating in May 2010.

Kaleb lived with and was cared for by the Applicant during the parties’ separations, and has continued to be in her care since their final separation. History of the case [ 3 ] The Applicant, who is self-represented, began this case in January 2011, seeking an order for custody and child support, including a claim for a contribution to daycare costs. The Respondent failed to prepare an Answer and Financial statement within the time permitted by the Rules.

He and the Applicant attended before the first appearance clerk on March 16, 2011, and, on consent, time was extended for the Respondent to prepare, serve, and file the required documents. The case was adjourned to the first appearance clerk on April 26, 2011. [ 4 ] The Respondent subsequently served an Answer seeking joint custody, and access to Kaleb on weekends.

Although the Respondent indicated that he was willing to pay support “based on my annual income”, his financial statement suggested that he had no income; the statement, although sworn, was entirely blank, except for an entry for rent and for CPP contributions paid. Further, the Respondent did not serve and file his tax returns and notices of assessment for the past three years, as required by the Guidelines. [ 5 ] The same day that the Respondent filed these documents with the court, he was arrested by Toronto police on a series of fraud charges, and detained.

On April 26, 2011, the Applicant attended again before the first appearance clerk. The Respondent did not attend, but his sister came, and advised that he expected to be released shortly. [ 6 ] The matter was put over for a case conference before me on June 6, 2011. [ 7 ] On June 6, 2011, the Applicant attended court. The Respondent did not, but an agent delivered a letter to the court from a solicitor requesting an adjournment, to allow him to apply for legal aid and retain counsel.

The matter was adjourned to July 8, 2011. [ 8 ] On June 15,2011 the Applicant served a motion returnable July 8 ,2011 seeking final orders for custody, supervised access, child support, and permission to travel with the child for vacations without the Respondent’s consent. The Applicant alleged that

the Respondent was an irresponsible and often-absent father, a father who had neglected to pay any child support. With respect to her claim for supervised access, the Applicant stated that she had been able to “verify that Saidu Kamara has been living a life of crime, unacceptable for parenting”. Her affidavit detailed an occasion in January 2011 when Kaleb was returned by the Respondent after a visit of several days suffering from conjunctivitis. The Respondent had not sought medical treatment for the child.

The affidavit also related an incident the night before the Respondent’s arrest in March 2011 when the Respondent attempted to pick the child up for a visit in a vehicle equipped with a child car seat that was unsafe, given the child’s weight. [ 9 ] The Respondent filed no reply material on the motion. [ 10 ] On July 8, 2011 the Applicant attended. The Respondent did not, but a solicitor retained by him did. She advised that the Respondent had been granted bail and expected to be released shortly.

The Applicant voiced her frustration; this was the fourth time she had taken off work to attend court, and the Respondent was still not ready to proceed. [ 11 ] I adjourned the motion, but made a temporary without prejudice order that day granting custody to the Applicant and access to the Respondent, supervised by his father.

I ordered that the Respondent serve and file a proper financial statement, with tax returns and notices of assessment for the past three years, and that he provide disclosure with respect to the particulars of the criminal charges that he faced, and proof of current income, or, if unemployed, the particulars and results of his job search. The Applicant was to provide documentation of her current and 2010 income, and the details of special expenses clamed. [ 12 ] The return date of the motion was September 21, 2011, marked peremptory to the Respondent. I indicated that I would treat the Applicant’s motion as a

summary judgement motion, as she was seeking relief on a final basis. I explained to the Applicant the requirements of Rule 16. [ 13 ] The Applicant served the required disclosure, and attended court on September 21, 2011. [ 14 ] The Respondent did not file an affidavit or financial statement, or make any of the required disclosure. The Respondent’s solicitor indicated that although he had been granted bail on his Ontario charges that he was never released, as courts in Alberta had issued a Canada-wide warrant for his arrest. Edmonton police came to Toronto and escorted him to Alberta.

He is detained there on serious fraud charges, and faces a wait of 12-18 months to complete a preliminary and go to trial. If convicted, he faces perhaps a further 18 months incarceration. [ 15 ] The Respondent’s solicitor was unable to arrange to have the Respondent swear an affidavit or financial statement. She did not request an adjournment to make further efforts to have him provide evidence. Counsel offered an affidavit sworn by her assistant, relating the details of conversations that counsel herself had conducted with the Respondent related to the issues of custody and access.

I did not admit this affidavit, as it constituted counsel’s own evidence on the motion. [ 16 ] From the information provided by the Respondent’s counsel I concluded that the Respondent will be unable to participate meaningfully in this case and will be unable to exercise anything other than telephone access for at least 12-18 months. [ 17 ] Although the Respondent failed to comply with the disclosure ordered, he brought a motion seeking an order that the Applicant be required to accept collect phone calls from the Respondent for the purpose of telephone access, and that she sign a series of releases of information from third party service providers related to the child.

The

summary judgement motion [ 18 ] On the

summary judgment motion, the Respondent argued for the relief originally requested by her in the motion brought July 8, 2011. The Respondent’s counsel submitted that there are triable issues with respect to each head of relief requested, and that the motion should be dismissed. [ 19 ] I found that in the circumstances of this case that there were no issues of material fact requiring a trial, granted some of the relief requested, and made the appropriate disposition with respect to the remaining issues, with reasons to follow. These are these reasons. My order is set out at the end of these reasons.

Applicable law [ 20 ] Rule 16 (1) of the Family Law Rules provides that after a respondent has filed an answer or the time allowed for serving an answer has expired, that any party may bring a motion asking for a final order without a trial. [ 21 ] The onus is on the moving party to provide evidence showing that there is no “genuine issue requiring a trial” (R. 16(4)). The reference to a “genuine issue” is to an issue of material fact relevant to an issue in the case.

There may be many disagreements between the parties that are not relevant to a legal issue in the case; those disagreements will not require a trial. [ 22 ] The responding party has an obligation to provide affidavit evidence with “specific facts showing that there is a genuine issue for trial”. (R. 16(4.1)) However, even if no responding affidavit is filed—as was the case here—the court still has an obligation to weigh the evidence that the moving party presents to determine whether she has met her onus. [ 23 ] The Court of Appeal has found that a court hearing a

summary judgement motion may not weigh evidence, draw inferences from evidence, or assess credibility. [1] Rule 20 of the Rules of Civil Procedure has been amended to allow courts to perform these functions, where appropriate, in deciding a

summary judgment motion. The Family Law Rules have not been amended to allow this. Some courts hearing cases governed by the Family Law Rules have found that this change in the Rules of Civil Procedure can be drawn upon in deciding motions for

summary judgment in family cases [2] . In this case, I do not need to decide whether this is

permissible. Without drawing on these expanded powers, I have concluded that there is no issue of material fact that requires a trial. [24] If the court finds that there is no genuine issue in the case requiring a trial, then the court shall decide the issue and makea final order accordingly. (R. 16(6)) [25] Subrule 16(12) permits a court to on motion dismiss or suspend a case because it is “a waste of time”. See Warnica v.Gering, , 142 A.C.W.S. (3d) 87, [2005] O.J. No. 3655, 2005 Cars​well​Ont 3989 (Ont.

C.A.) [26] The provisions of R. 16, and in particular the question of whether there is a genuine issue of material fact requiring atrial, must be interpreted within the lens of Rule 2, which sets out the primary objective of the Rules — to deal with cases justly — andparticularizes what that objective may require in a case.[3] [27] One value that the primary objective promotes is proportionality—dealing with each case in a way that is appropriate toits “importance and complexity”, and in a manner that is timely and cost effective. [28] The court and the parties and their lawyers are required to apply these rules in a way that promotes the primary objective.The court’s duty to manage cases, set out at R. 2(5), includes: • “ (

a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial…. and • (

e) considering whether the likely benefits of taking a step justify the cost”. [29] Rule 2 has been used to make a final decision in a case without trial, or in a truncated hearing process. Courts haveinvoked Rule 2 in deciding that, in the appropriate case : • a final order may be made at a case conference in a case of dubious merit in which each party has ignored an order for disclosure. See Merko v. Merko, 2008 ONCJ 530, 59 R.F.L. (6th) 439, [2008] O.J. No. 4273, 2008 Cars​well​Ont 6361 (Ont.

C.J.). • a final order about minor unresolved issues may be made after a “focussed hearing”, in which affdavit evidence only is considered. See Figurado v. Figurado, 2009 ONCJ 134, 176 A.C.W.S. (3d) 442, [2009] W.D.F.L. 2352, [2009] O.J. No. 1443, 2009 Cars​well​Ont1857 (Ont. C.J.). • a court may limit cross-examination, so that the “courtroom not be allowed to become a litigant’s playroom”. See Joseph F. v.Valerie C. (No. 4), , 100 A.C.W.S. 442, [2000] O.J. No. 2538, 2000 Cars​well​Ont 2370 (Ont. Fam. Ct.). [30] As Justice June A. Maresca observed in Merko v.

Merko, supra: “There is no absolute right to trial of an issue. There mustbe some reason to expend the personal and societal resources necessary for a court to adjudicate the issue”. Application to the facts of this case [31] I address below the issue of whether Applicant has met the onus required in a

summary judgement motion. Custody [32] The Applicant’s evidence is that she is the parent who has consistently taken the responsibility to meet the child’sphysical, emotional, financial and social needs. She deposes that the Respondent travels frequently, is inconsistent in his contact with herand the child, and when he is in contact, is irresponsible with respect to the child’s safety and the provision for his basic needs. She isunable to communicate with or trust the Respondent. [33] The Respondent’s counsel submits that the Applicant is attempting to alienate Kaleb from him.

The Respondent sees anorder for joint custody as a bulwark against alienation, and argues that a trial is required to determine whether such an order should bemade. [34] The evidence establishes that there is no triable issue relevant to the appropriate custodial arrangement for Kaleb. [35] The lack of trust between the parties and the absence of evidence indicating that there was effective joint decision-makingby them prior to this litigation — coupled with the fact that the Respondent lives in Saskatchewan in circumstances which severelyrestrict avenues for effective communication — establishes to my satisfaction that that an order for joint custody is not viable. [36] The Applicant has been diligent in meeting all the child’s needs, and she should have the authority to make decisions withrespect to the child which an order for custody will grant. [37] There are rare circumstances in which an order of joint custody may be an appropriate response to a finding that oneparent is attempting to alienate a child from the other parent, but in this case, there is no evidence that the Applicant is attempting toalienate Kaleb from the Respondent.

On the contrary, the evidence is that she is facilitating the child’s connection with the Respondentand his extended family under difficult circumstances. She allows the child to speak with the Respondent by phone, and arranges visits

with the paternal grandfather which entails contact with other members of the Respondent’s extended family. [ 38 ] In my view, there is no question that the order that is in Kaleb’s best interest that the Applicant have custody of him. Travel with the child [ 39 ] There is no triable issue evident with respect to the Applicant’s claim to allow the child to travel with her outside Canada. She deposes that she wishes to be able to take Kaleb on family vacations to, for example, Disneyland.

She fears that the Respondent will not consent to such a trip because she did not permit him last fall to take Kaleb on a trip to Sierra Leone (a location which, based on the Respondent’s own reports to her, she feared was not safe). [ 40 ] The Respondent does not object to the Applicant travelling with the child.

His counsel submits, however, that the issue of whether travel to Sierra Leone with the Respondent should be allowed for the child raises a triable issue that should prevent the Applicant from obtaining the order sought. [ 41 ] The Respondent did not claim in his answer an order allowing him to take the child out of the country for trips and, indeed, his present circumstances mean that he will not be in a position to undertake such travel. His desire to do so in the distant future does not raise a triable issue as to whether the Applicant should be permitted to travel with the child now.

Child support [ 42 ] The Applicant accepts that the Respondent has had no income since he was detained on March 23, 2011, and that he will likely not have income while he is detained, or, if convicted, while he is incarcerated. It was during argument of the motion that the Applicant came to the understanding that the court’s authority to order child support under the Guidelines is based on the Respondent’s income, actual or imputed. She then acknowledged that no order for current child support should issue.

Access [ 43 ] What remains is the question of whether there is an issue of fact requiring a trial to determine appropriate access between the Respondent and Kaleb. [ 44 ] In my view, there is not—not because the Applicant has met the onus of establishing that there is no genuine issue for trial regarding her claim for supervised access, but because, given the likely duration of the Respondent’s detention, it would be a speculative exercise and what Rule 16(12) describes as “a waste of time” to attempt to determine now the particulars of access that the Respondent may exercise in the future. [ 45 ] If the Respondent was in a position to exercise face-to-face access with Kaleb now, the Applicant’s evidence would not persuade me that there was no question that this access should be supervised.

Even if the Respondent is guilty of the charges he faces, these are non-violent offences which would not in themselves usually indicate a need for supervised access. The January incident of alleged neglect of the child now raised by the Applicant predates her initial application, in which she did not request supervised access. This leads me to question how seriously the Applicant took this incident at the time.

Even if the allegations with respect to two incidents of neglect are accurate, if they are the only problems with the Respondent’s care of the child over the past 4 years, I question whether supervised access is required or whether conditions in an order would be sufficient. [ 46 ] However, the fact is that the Respondent will be detained out of province for at least a year, and perhaps two or three years. It does not make sense—from a judicial or a developmental point of view— to attempt to structure his future access to Kaleb now. [ 47 ] The Applicant is in agreement that an order for telephone access issue.

She has already signed releases to allow the Respondent to obtain information about Kaleb from some third-party service providers, and is content that he pursue his right under the Act to continue to obtain such information. The Respondent would like to keep the case alive in order to have the court monitor the Applicant’s compliance with these orders.

The Applicant does not want to keep attending court for another 12-18 months to deal with any new issues which the Respondent may wish to bring to court, and to wait until he is ready to engage in the case. [ 48 ] Considering the directives of Rule 2, I will order on a final basis that, in addition to telephone access, that the Respondent, when released, shall have reasonable access on terms agreed by the parties. If the parties are unable to agree on those terms, than either may return to court.

To continue the case until the Respondent is in a position to participate would involve an ongoing expenditure of time and money by the Applicant, and be an unnecessary drain on the resources of the court and of Respondent’s counsel. [ 49 ] The order which I released on September 22, 2011 is set out below. 1. The Applicant shall have custody of the child, Kaleb Kamara born September 12, 2007. 2. The Respondent shall have reasonable telephone access to the child. In addition, when he is released from detention he shall have reasonable access on terms as agreed between the parties. 3.

As a parent with a right of access, the Respondent is entitled to make inquiries and to be given information as to the health, education and welfare of the child from the child's school, doctor and other third party service providers. 4. The Applicant shall have the right to apply for and obtain a passport for the child and to take the child out of Canada for vacation purposes without seeking the consent of the Respondent. If the Applicant undertakes such trips, she shall advise the Respondent in

advance of the particulars of the trip. 5. There shall be no order for child support, as the Respondent apparently has no current ability to pay support. However, since the financial disclosure ordered from the Respondent previously has not been supplied, the Applicant's right to raise the question of child support for the period prior to the date of any fresh support claim by herself is preserved. 6.

The Respondent shall advise the Applicant forthwith when he is released from detention, and provide documentary confirmation of the status of any criminal charges he continues to face, the terms of a release order, and the terms of any sentence for which he has been convicted. He shall also advise of his address and other contact information. 7.

Within 60 days of his release, the Respondent shall forward to the Applicant : • Documentary confirmation of any employment he has obtained, with information as to salary and benefits; • Documentary confirmation of any self-employment, with particulars as to income earned; • If the Respondent is not employed or self-employed, documentary confirmation of all efforts made to obtain employment, and the results of such efforts; • Copies of tax returns and Notices of Assessment for 2008, 2009, and 2010; • A sworn financial statement in form 13, setting out full particulars as to income, expenses, assets and debts.

Released: 6 October 2011 Signed: Justice Ellen B. Murray (

a) ensuring that the procedure is fair to all parties; (

b) saving expense and time; (

c) dealing with the case in ways that are appropriate to its importance and complexity; and (

d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.”