Patterson v. Osazuma, 2015 ONCJ 454

COURT FILE NO. D57475/12 DATE: 2015-08-19 Citation: Patterson v. Osazuma , 2015 ONCJ 454 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) KAY ANN PATTERSON ) ) ) WIRI KAPURURA, FOR THE APPLICANT ) APPLICANT ) ) - and – ) KELVIN OSAZUMA ) GLADYS AGHIMIEN, FOR THE RESPONDENT RESPONDENT ) THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS INTERESTED PARTY ) ) ) RACHEL HEPBURN CRAIG, DEPARTMENT OF JUSTICE (CANADA), on behalf of the MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS ) ) ) ) HEARD: AUGUST 17, 2015

REASONS FOR DECISION Part One – Introduction [ 1 ] The parties have both brought motions to change the final order of Justice Carole Curtis, dated June 12, 2013 (the existing order). This order provides: that the parties have joint custody of their seven-year-old daughter (the child); a specified access

schedule for the father; that the child not be removed from Canada without the consent of the other party or prior court order; and that the father pay the mother child support of $182 per month. The existing order was obtained on consent. [ 2 ] The parties have brought their respective motions to change because the mother has been notified by the Minister of Public Safety and Emergency Preparedness (the Minister) that she is going to be deported to St. Vincent. [ 3 ] The applicant (the mother) asks for sole custody of the child and permission to take the child with her to St. Vincent if she is deported.

She proposed reducing the father’s child support obligation to $100 per month if this happens. She asked that the father pay his present child support arrears of $3,168 forthwith. [ 4 ] The respondent (the father) asks for sole custody of the child and a termination of his support obligation if the mother is deported. [ 5 ] Both parties are content that the terms of the existing order remain in force while the mother remains in Canada. [ 6 ] The Minister asks that the court not make an order which interferes with the deportation of the mother.

The Minister was given permission to participate in the case and make submissions. [ 7 ] The court conducted a trial of the motions to change. Both parties gave oral evidence and were cross-examined. [ 8 ] The issues for this court to determine are:

a) Is there a genuine lis with respect to the issues of custody, access and non-removal of the child?

b) Has there been a material change in circumstances affecting the best interests of the child that warrants changing the terms of the existing order?

c) If so, what parenting order is in the best interests of the child?

d) Should there be any changes to the existing child support order based on any new parenting order of this court?

e) How should the court deal with the present support arrears of the father? Part Two – Background facts [ 9 ] The mother is 34 years old. She was born and raised in St. Vincent. She came to Canada as a temporary resident in 2003. She overstayed and has no legal status in Canada. [ 10 ] The mother was previously married. She deposed that she was physically abused by her ex-husband. She also deposed that she was physically abused by a former boyfriend in St. Vincent. [ 11 ] The mother is employed full-time as a cleaner.

She was described as a hard worker. [ 12 ] The mother lives alone with the child (when the child is in her care). [ 13 ] The father is 39 years old. He was born and raised in Nigeria. He came to Canada in 2001 and became a permanent resident of Canada in 2009. [ 14 ] The father is married. He has sponsored his wife to come to Canada from Grenada.

She will be arriving in Canada in September of 2015 and will reside with the father. [ 15 ] The father presently has two part-time jobs working as a personal support worker. [ 16 ] The father presently lives alone with the child (when the child is in his care). [ 17 ] The parties met in 2006, began living together in 2007 and separated in 2009. The child was born in 2008. [ 18 ] The child is the only child of either party. [ 19 ] The mother was arrested for overstaying her temporary resident visa on March 28, 2011.

She was released on conditions. [ 20 ] The mother commenced an application for refugee protection on April 14, 2011. This application was refused on January 16, 2012. [ 21 ] On March 21, 2012, the mother submitted an application for permanent residence based on humanitarian and compassionate grounds under

section 25 of the Immigration and Refugee Protection Act (Canada) ( IRPA ). This application was refused on June 16, 2013. [ 22 ] The mother commenced an application in this court for custody and child support on September 10, 2012. The father filed an Answer/Claim seeking joint custody of the child. The Minister was not notified of this proceeding and did not participate in it. This proceeding resulted in the existing order. [ 23 ] The mother submitted an application for a Pre-Removal Risk Assessment in 2013. This resulted in a stay of her deportation. This application was dismissed on June 12, 2014 and the stay of her deportation was lifted.

[ 24 ] The Minister has deferred enforcing the deportation of the mother pending the outcome of this decision. [ 25 ] The mother deposed that she intends to bring another humanitarian and compassionate application. This will not, by itself, stay her deportation. Part Three – The existing parenting arrangement [ 26 ] The existing order provides that the father’s parenting time will be on alternate weekends from Thursday after school until Sunday at 9 a.m., together with two overnight visits on Mondays and Thursdays each week.

The existing order also provides for generous holiday time. [ 27 ] The parties agreed that they have rearranged parenting time on their own, although they disagreed on how much time the child has spent with each parent. [ 28 ] The evidence informed the court that the child spends at least 50% of her time with the father. The parents have worked very well together to ensure that the child is well cared for and spends a lot of time with each parent. The father takes the child to school on most mornings. Either the father or the child’s babysitter picks up the child from school.

The child then usually spends time with the mother. The father often picks up the child from the mother’s home when he finishes work and she sleeps at his home. On other evenings, the child sleeps at the mother’s home and the mother brings the child to the father’s home before she starts work at 7 a.m., for the father to take the child to school. The parties divide time with the child on weekends. The parties frequently change the

schedule to accommodate their respective work schedules or trips. The court heard that the child has spent most of the past two weeks with the father and that the child spent the month of April with the mother when the father traveled out of the country. [ 29 ] The parties agreed that this parenting arrangement is working very well for the child. They agree that the joint custody order is working and they are able to make major decisions together in the best interests of the child. Neither party would have returned to court, if not for the pending deportation of the mother.

Part Four – Positions of the parties 4.1 The mother [ 30 ] The mother deposed that it is in the best interests of the child to live with her in St. Vincent if she is deported. She seeks an order for sole custody of the child. Her plan would be to live in her parents’ home in St. Vincent. She said that she would have the support of her parents and siblings. She said that there is a school close to her parents’ home that the child will attend. [ 31 ] The mother provided a detailed plan to facilitate the father’s contact with the child if she is living in St. Vincent.

She would facilitate telephone calls 2 to 3 times a week, Skype access once a week and on special occasions, in-person access in St. Vincent 2 to 3 times a year, as well as time in Canada on school holidays. [ 32 ] The mother said that she would agree to reduce the father’s support obligation to $100 per month in recognition of his additional travel costs. [ 33 ] The mother deposed that she is closely bonded with the child. She said that she has had to solely bear the cost of supporting the child.

The father has not paid child support since April of 2014. [ 34 ] The mother claimed that the father was violent to her when they cohabited, although there have been no allegations of abuse since their separation in 2009. [ 35 ] The mother questioned the father’s ability to look after the child on a long-term basis. She says that he over-relies on his family

for parenting assistance. She said that he often asks her for parenting assistance and for money. She said that he often asks her to provide lunches for the child. [ 36 ] The mother questioned whether the father would facilitate access to her if the child remained in Canada. She argued that the father’s failure to comply with the child support order was evidence of his disrespect for court orders. [ 37 ] The mother conceded that she wants to stay in Canada to give the child a better life. She agreed that the education, health and social services system is better in Canada than in St. Vincent.

She said that the child’s standard of living would be better in Canada. She has steady employment in Canada and no present job prospects in St. Vincent. The mother stated that she made a refugee claim because of her fear of domestic violence in St. Vincent from her former boyfriend. 4.2 The father [ 38 ] The father feels that it is in the child’s best interests to stay with him in Canada if the mother is deported and seeks an order for sole custody if this happens. He deposed that the child is very close to him.

He says that he is the parent who has been more attentive to the child’s academic and medical needs. [ 39 ] The father said that he has an excellent support network to help him raise the child. He has two sisters who live in his apartment building who provide parenting assistance when he is at work. One of the sisters has a child close in age to the child. He deposed that the child is very close with this cousin. The father said that he will also have the assistance of his wife who will arrive in September.

He stated that the child speaks on the phone frequently with his wife and is excited about her coming to live with them. [ 40 ] The father says that Canada is the only place the child has ever known. She is a Canadian citizen. The child, he said, has many friends, is comfortable at her school and has close relationships with her large paternal family in Canada. [ 41 ] The father submitted that all of the child’s needs would be better met in Canada. [ 42 ] The father proposed that the child spend two months each summer with the mother. He is prepared to pay the child’s travel costs.

He also proposed generous telephone and Skype contact between the child and the mother. [ 43 ] The father denied any domestic violence in his relationship with the mother. Part Five – Interplay between immigration and family law 5.1 Legal considerations [ 44 ] The Minister asked this court not to make any order that could potentially interfere with the deportation process – in particular not to make a specified access or non-removal from Canada order. Paragraph 50 (

a) of 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; ... [ 45 ] The Minister was given the right to participate in this trial and made submissions.

[46] In paragraphs 122-123 of Ffrench v. Williams,2011 ONCJ 406, I reviewed the legal considerations in parenting cases when aparent is subject to a deportation order as follows: 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 parentssought custody and, in the alternative, specified access and non-removal orders. The Minister participated in Canabate v. Ayala andopposed the making of specified access and non-removal orders.

In my decision, I reviewed the law that has developed in this area inparagraphs [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 orderedremoved 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 thefollowing statements in paragraphs [58]-[60] that apply equally to this case: [58] The Court of Appeal decision in J.H. v. F.A., 2009 ONCA 17 , [2009] O.J.

No. 88, supra, makes it clear that it is not thiscourt's function to deal with the applicant's immigration issues. This court's sole focus is on Joshua's best interests. The issues raised bythe 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'smandate under the Children's Law Reform Act to determine what orders are in Joshua's best interests in the context of a legitimatelycontested 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 decisionmakers will have the benefit of this decision, which reflects findings regarding Joshua's best interests in the family law context after acontested hearing, in which the Minister fully participated. The Minister may decide to defer the removal of the applicant pending thedetermination of her humanitarian and compassionate application.

It may or may not be determined that a family court decision, wherethere is a genuine lis with respect to issues of access and non-removal of a child, will invoke the operation of paragraph 50(

a) ofthe Immigration and Refugee Protection Act. The deportation may still proceed. These issues are for others to decide. This court is notinterfering with this process. [47] The purpose of non-removal orders under the Act is not to frustrate the deportation of persons who have been ordered removedfrom Canada pursuant to immigration legislation, but to prevent parents from removing children from the jurisdiction in contested familylaw proceedings. Non-removal orders are not to be made lightly and must be carefully examined on their facts. See: J.H. v. F.A. 2009ONCA 17; Wozniak v.

Brunton and Minister of Citizenship and Immigration (No. 2), (ON SC), (Ont. S.C.J.). If no evidence is led that either party has any intention of voluntarily removing the child from the jurisdiction, save andexcept through the operation of the deportation order itself, there is no lis. See: Martin v. Royal, [2012] ONCJ 202. [48] In Ffrench, I found there was a genuine lis with respect to the issues of custody, access and non-removal. I made an order for

joint custody of the child if the mother remained in Canada and sole custody of the child to the father if the mother was deported to Jamaica. A specified access order was made. I also made an order prohibiting the mother from removing the child from Canada. [ 49 ] In M.A.W. v. J.A.W ., 2013 ONCJ 34 , this court dealt with a dispute similar to this case. In M.A.W . , I found that there was a genuine lis with respect to the issue of custody, but no genuine lis with respect to the issues of access and the non-removal of the child from Canada.

I granted custody of the child to the mother and she was permitted to take the child with her to Jamaica once she was deported. I found that the parties cooperated very well with respect to access and declined to make a specified access order – instead granting the father reasonable and generous access. I wrote the following at paragraph 28: 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. 5.2 Analysis [ 50 ] In this case, there is a genuine lis as to who should have custody of the child if the mother is deported.

Each party genuinely believes that his or her plan will best meet the needs of the child. [ 51 ] The parties agree that the existing joint custody order should continue while the mother remains in Canada. [ 52 ] What is more troublesome is whether there is a genuine lis with respect to the issues of access and non-removal of the child from Canada. [ 53 ] The court considered that this case is different from the cases reviewed above since it is a motion to change and not an original application – the court has already made specified access and non-removal orders.

However, this difference is tempered by the fact that the Minister was not put on notice and did not participate or make submissions in the original proceeding. Based on a plain reading of

section 50 of the IRPA , this would seem to preclude a stay of deportation being ordered pursuant to that section. [ 54 ] In these circumstances the court must still determine if a lis exists once the Minister becomes involved in the case. To find otherwise could lead to considerable mischief. In situations where there is a possibility that one parent could be deported, parents might cooperate to come to court, not notify the Minister, not advise the court about the possibility of deportation and then consent to an order with specified access and non-removal terms.

They could then argue that the issue of lis has already been determined once the Minister is involved on the motion to change. This would then permit them to argue that their specified access and non-removal orders are grounds for a stay under

section 50 of the IRPA (as the Minister had the opportunity to make submissions on the motion to change). Permitting this scenario to take place would be an unacceptable use of the family law system to frustrate the deportation process [1] and be contrary to public policy. [ 55 ] The court finds that there is no genuine lis with respect to the access issue while the parties remain in Canada. The parties have not followed the court order since it was made and frequently change it. They are to be commended for their ability to be flexible with the

schedule to meet the best interests of the child. They have an understanding that the child will spend almost equal time with both of them. There is no evidence to lead the court to believe that this arrangement would change while the mother is in Canada. [ 56 ] The court finds that there is a genuine lis with respect to the access issue if the mother is deported. The parties have some residual distrust from their relationship as to whether the other would facilitate a long-distance relationship between the child and the other party.

It is in the child’s best interests that a specified access order be made if the mother is deported. [ 57 ] The court finds that there is no genuine lis with respect to the non-removal issue. 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. Part Six – Material change in circumstances

[58]

Section 29 of the Children's Law Reform Act (the Act) provides the statutory authority for varying a custody or access order. Itstates: A court shall not make an order under this Part that varies an order in respect of custodyor access made by a court in Ontario unless there has been a material change incircumstances that affects or is likely to affect the best interests of the child. [59] The Supreme Court of Canada decision in Gordon v. Goertz (1996) (SCC), 19 R.F.L. (4th) 177 S.C.C. sets out atwo-stage process for the court to conduct:

a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child.

b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all therelevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. [60] The court finds that there has been a material change in circumstances affecting the best interests of the child that warrants areview of the existing order for the following reasons:

a) The mother is now subject to deportation to St. Vincent. A review of the pleadings and affidavits filed in the original courtproceeding informs the court that the possibility of the mother being deported was not pleaded, presented to the court or addressed in anyform in the existing order. At that time, the mother’s Pre-Removal Risk Assessment had been filed and her deportation was stayed. Themother has been in Canada since 2003. The parties operated as if the mother would remain in Canada.

b) The existing order will be unworkable if the mother is deported to St. Vincent. It is essential to the best interests of the childthat the court determine the parenting arrangements if the mother is deported.

c) The Minster is now involved in the court proceedings. As explained above, this warrants an examination of whether there is agenuine lis with respect to the issues of custody, access and non-removal.

d) The existing order provides for a primary residence

schedule with the mother. The reality of the child’s parenting time with thefather is much different. The father exercises shared parenting time with the mother, seeing the child daily during the week. The courtorder should reflect this reality. Part Seven – Best interests of the child 7.1 Best interest factors under subsection 24 (2) of the Act [61] Subsection 24 (2) of the Act sets out factors for the court to consider in determining a child’s best interests. The court will reviewthese factors below. Factor #1: 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 child's care and upbringing. [62] The court finds that the parents love the child very much. The court also finds that the child loves her parents very much. [63] The child has a close relationship with the father’s sisters and her paternal cousins in Toronto. [64] The child does not know her maternal family in St. Vincent very well. The child’s maternal grandmother has visited her twice inCanada.

Factor #2 The child's views and preferences, if they can reasonably be ascertained [ 65 ] The child loves both parents and wants to spend significant time with both of them. No evidence was led about a preference of where she wanted to live. Factor #3 The length of time the child has lived in a stable home environment. [ 66 ] Both parents have provided stable home environments for the child. The mother argued that the father’s housing for the child has been inconsistent. He has moved twice since the existing order was made.

However, these moves were made to obtain better housing for the child from Toronto Community Housing once it became available. The father now has comfortable accommodation for the child and has no plans to move.

Factor #4 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. [ 67 ] The evidence established that the father has taken the lead in looking after the educational needs of the child. [ 68 ] The father has worked very closely with the school to address some behavioural challenges of the child. In particular, he is in frequent contact with a social worker from the school. The social worker provided evidence that:

a) The father contacted him for parenting support for the child.

b) The father has been receptive to coming to the school for meetings.

c) The father has met with him and other school officials several times to deal with treatment strategies for the child.

d) The father’s relationship with the child is very positive.

e) The child was sad when the father was traveling (for one month in 2015) and happy when he returned.

f) The child demonstrated consistent stability in school during times she was staying primarily with the father. [ 69 ] The court finds that the mother over-stated her involvement with the school. She was unable to name the child’s present school principal or the child’s teacher when asked. [ 70 ] The court accepts the father’s evidence that he is the parent who primarily helps the child with homework and ensures that it is completed. [ 71 ] The father demonstrated more knowledge of the child’s social relationships than the mother. The mother was unable to name any of the child’s friends.

The father was able to do this. [ 72 ] The father has shown irresponsibility in one area – the non- payment of child support that was ordered by Justice Curtis. The father dissembled when explaining his non-payment of support. His excuses made little sense. He promised to put the payments back into good standing immediately, but gave the court little confidence that this would happen anytime soon.

If he was serious about paying his child support, it would have happened already. [ 73 ] The court recognizes that the father likely could have moved to change the support order based on the fact that the parties have had a shared parenting arrangement and have comparable incomes. However, his remedy was to come to court to change the order. These changes do not excuse his breach of the order. Factor #5 - Any plans proposed for the child's care and upbringing [ 74 ] The father provided a good plan to care for the child. It would be, for the most part, a continuation of the present plan.

The child would go to the same school and see the same doctors. [ 75 ] The father has a strong support network with whom the child is comfortable. He has reliable supports in place to care for the child when he is working. [ 76 ] The father’s spouse will also provide parenting assistance when she arrives in Canada next month. [ 77 ] The father has demonstrated that he is able to positively care for the child. He has plans to have her participate in soccer. He arranged ballet for her in the past. [ 78 ] Understandably, the mother’s plan is less clear if she is deported. She hopes to remain in Canada.

She does not have a job waiting for her in St. Vincent. She didn’t provide any real detail of services available for the child in St. Vincent. She acknowledged that the schools, social services and standard of living are better in Canada than in St. Vincent. Factor #6 The permanence and stability of the family unit with which it is proposed that the child will live [ 79 ] The father’s family unit appears to be stable, although it remains to be seen how the child will adapt to living with the father’s wife on a long-term basis. [ 80 ] Due to the pending deportation, the mother’s family unit is less stable.

Factor #7 The ability of each person applying for custody of or access to the child to act as a parent

[ 81 ] The parties presented with different strengths and weaknesses. [ 82 ] The mother presented as a loving and caring parent who has a close relationship with the child. [ 83 ] The mother is responsible and hard-working. She is a good role model for the child. [ 84 ] The mother is also very generous.

She has lent the father money when he has requested it (despite the fact that he was not paying her the court-ordered child support). [ 85 ] The mother has been very flexible in rearranging access and facilitating the child’s relationship with the father. [ 86 ] The father’s concerns about the mother’s willingness to facilitate his relationship with the child were not borne out by the evidence. [ 87 ] Perhaps, due to her busy schedule, the mother has not been as involved with the child’s education and social activities as the father. [ 88 ] The father also presented as a loving and caring parent who has a close relationship with the child. [ 89 ] The father has shown significant commitment to the child.

He has arranged his work

schedule to be available to exchange her at school, meet frequently with school staff and take the child to appointments. [ 90 ] The evidence did not support the mother’s allegation that the father unduly delegates caregiving of the child to family members. The evidence indicated that the father is deeply involved in caring for the child. He demonstrated a strong understanding of the child and her needs. [ 91 ] The mother argued that the father’s breach of the support order was evidence that he would not comply with an access order if she was deported. The court does not draw that conclusion.

In fact, the evidence shows that the father is very flexible about rearranging access when requested by the mother and values the child’s relationship with the mother. [ 92 ] The father can be faulted for not meeting his financial responsibilities. This is an important facet of parenting.

Factor #8 The relationship by blood or through an adoption order between the child and each person who is a party to the application. [ 93 ] This was a neutral factor in making this decision. 7.2 Domestic violence [ 94 ] The court is required under subsections 24 (3) and (4) of the Act to consider domestic violence when determining the best interests of a child. [ 95 ] The mother did not establish on a balance of probabilities her historical allegations of domestic violence. She provided no corroborative evidence to support her allegations.

She did not raise this issue in the original court proceedings. 7.3 Discussion [ 96 ] It is clearly in the child’s best interests to continue to have the present level of contact and care from both parents. She is thriving in this arrangement and receives the best that each parent has to offer her. If the mother is deported, the court has little doubt that this will be emotionally harmful for the child.

She will lose a significant level of contact, guidance, love and care that has been essential to her welfare from one of her parents. [ 97 ] However, this court has no control over whether the mother is deported and must make decisions about what parenting order is in the best interests of the child. [ 98 ] The court finds that a continuation of the joint custody order is in the child’s best interests for so long as the mother remains in Canada. The parties are both fully involved in the child’s life. They have worked cooperatively with one another in arranging a parenting

schedule that meets the child’s needs. They have shown the ability to make joint decisions together in the best interests of the child. [ 99 ] The evidence indicates that a specified access order is not required while the mother remains in Canada. The parties have a fluid parenting

schedule which changes in accordance with the needs of the child and the parents’ schedules. The access terms of the existing access order are not followed and are no longer indicative of what is happening. It is highly unlikely that the issue would have even been before the court, if not for the pending 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. The order will provide that the shared parenting of the child will continue while the mother resides in Canada.

[ 100 ] The parties both sought sole custody orders if the mother is deported. They both recognized that a joint custody order is not viable if they live far apart. [ 101 ] The court finds that if the mother is deported, it is in the child’s best interests to remain with her father in Canada for the following reasons:

a) The parties are both good parents and capable of meeting the child’s needs on a day-to-day basis.

b) The child will have more opportunities to meet her potential growing up in Canada than in St. Vincent. She will enjoy a higher standard of living in Canada. She will likely receive better education and health care and have access to better services. Services may be needed if her behavioural issues continue.

c) The child is a Canadian citizen. She has grown up in Canada and has never been to St. Vincent. Canada is her home.

d) The child has an established social network in Canada. She is comfortable and doing well at her school. She has a social worker to assist her. The child is sociable and has friends in Canada.

e) The child has a close relationship with her paternal family in Canada. She does not have the same quality of relationships with her maternal family.

f) The child’s need for stability and continuity is better met in Canada.

g) The father has demonstrated a better ability to meet the child’s academic and social needs than the mother.

h) The father’s plan of care better meets the child’s emotional, physical and developmental needs than that of the mother’s. [ 102 ] The court agrees with the parties that a joint custody order is not viable if the parties live far apart. The order will provide that the father be required to keep the mother informed and consult her regarding all major issues regarding the child.

The mother will also be given the right to obtain information about the child directly from her teachers, doctors and other service providers. [ 103 ] It is in the child’s best interests to maximize her contact with the mother, to the extent that is reasonably possible, if the mother is deported. [ 104 ] It is also in the child’s best interests to specify the mother’s access to the child if she is deported. Both parents expressed some distrust of the other. It is essential that the child’s beneficial relationship with the mother be fostered and maintained.

The order will provide that the child will spend extended holiday time with the mother. Part Eight – Child support [ 105 ] The father did not ask to change the child support order if the mother remained in Canada. [ 106 ] The father indicated that he will not seek child support from the mother if she is deported. He only asks that his ongoing child support obligation be terminated. That is reasonable.

[ 107 ] The mother did not seek a change to the child support order if she remains in Canada. She did not oppose the father’s request to terminate child support if the child remains with the father in Canada. [ 108 ] The mother asks that the father pay the outstanding support arrears of $3,168 immediately. [ 109 ] The court finds that the father cannot pay the arrears as aggressively as requested by the mother. He only earns $25,000 per annum. He will be required to repay the arrears at the rate of $150 per month while the mother is in Canada.

If the mother is deported, the arrears payments will increase to $250 per month, until they are repaid. Part Nine – Conclusion [ 110 ] A final order shall go on the following terms:

a) Paragraphs 1, 2 and 4 of the existing order of Justice Curtis, dated June 12, 2013, are terminated. Paragraphs 3 and 5 of that order shall continue.

b) The parties shall have joint custody of the child while the mother remains in Canada.

c) The parties shall equally share parenting time with the child while the mother remains in Canada, on a

schedule agreed to by the parties.

d) If the mother is deported, clauses (

b) and (

c) above shall terminate and be replaced by the following order: 1. The father shall have sole custody of the child. 2. The father shall keep the mother informed and consult with her regarding all major issues concerning the child. 3. The father shall execute directions to permit the mother to communicate directly with any service provider for the child. This includes doctors, dentists, schools and child-care providers. The father shall also promptly send copies of any of the child's report cards or progress reports to the mother. 4. The mother shall have access to the child as follows: i.

Two months each summer in St. Vincent. ii. Starting in 2016, and in alternate years, the child shall spend the Canadian two-week winter school holiday with the mother in St. Vincent. iii. The father shall pay for the child’s travel costs to and from St. Vincent during the summer access. iv. The mother shall pay for the child’s travel costs to and from St. Vincent during the

winter break access. v. Telephone access, a minimum of once per week. vi. Skype or Facetime access, a minimum of three times per week. vii. If the mother is able to travel to Canada, reasonable and generous time with the child, including overnights in Canada. viii. Such further and other access as the parties may agree to. 5. The father’s child support obligation will terminate.

e) The father shall repay support arrears at the rate of $150 per month, starting on October 1, 2015. If the mother is deported to St. Vincent, the payments shall increase to $250 per month, beginning on the first day of the first month, after her deportation, until the arrears are repaid in full.

f) The father shall immediately notify the Director of the Family Responsibility Office if the mother is deported.

g) Nothing in this order will preclude the Director of the Family Responsibility Office from collecting support arrears from any government source (including HST or income tax refunds) or any lottery or prize winnings.

h) A support deduction order shall issue. [ 111 ] If either party seeks costs, they are to make written submissions by August 28, 2015. The other party will have until September 11, 2015 to respond. Submissions should not exceed 3 pages, not including any Bill of Costs or Offer to Settle. Submissions should be delivered to the trial coordinator on the second floor of the courthouse. ___________________________ Justice S.B. Sherr Released: August 19, 2015