A.E.A. v. F.A.H., 2015 ONCJ 339

COURT FILE NO. D60924/13 DATE: 2015-06-22 Citation: A.E.A. v. F.A.H. , 2015 ONCJ 339 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) A.E.A. ) ) ) BARRY NUSSBAUM, for the APPLICANT ) APPLICANT ) ) - and - ) F.A.H. ) RESPONDENT ) PATRICIA A. SMYTH, for the RESPONDENT, ) ) ) ) ) HEARD: JUNE 19, 2015 JUSTICE S.B. SHERR REASONS FOR DECISION Part One – Introduction [ 1 ] The respondent (the mother) has brought a motion for

summary judgment seeking sole custody of the parties’ three children, ages 6, 4 and 3 (the children). She seeks an order that the applicant (the father) have no access to the children, or in the alternative that his access be supervised at the Toronto Supervised Access Centre (TSAC). The mother seeks orders permitting her to travel and obtain government documentation for the children without the father’s consent; child support of $220 per month, retroactive to June 1, 2013, based on the father’s income of $15,300 per annum, and a restraining order.

[2] The applicant (the father) asks the court to dismiss the mother’s motion. He seeks an order for joint custody of the children, anequal time-sharing parenting

schedule and an order preventing the mother from removing the children from Canada. [3] The court reviewed and relied on the affidavits of the mother sworn on June 5, 2015 and June 20, 2015 and the affidavit of thefather sworn on June 15, 2015. Part Two – Legal considerations 2.1

Summary judgment [4] The mother brings this motion pursuant to rule 16 of the Family Law Rules (the rules) – the

summary judgment rule. [5] The case law on

summary judgment in family law matters prior to May 2, 2015 was precisely summarized by Justice RuthMesbur in Native Child and Family Services of Toronto and D.C. 2010 ONSC 1038, where she wrote in paragraphs 4-6: [4] This motion is framed under rule 16 of the Family Law Rules. It is common ground that on a motion for

summary judgmentsuch as this, the court should not be assessing credibility, weighing the evidence or finding the facts. Instead, the court’s role is narrowlylimited to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial. Evaluating credibility,weighing evidence and drawing factual inferences are all functions for the trier of fact. Bedard v. Huard (2000) (ONSC), O.J. No 969. [5] The onus is on the moving party to persuade the court that there is no genuine issue for trial. If there is not, the court isrequired to make a final order and grant

summary judgment. F.I. v. K.F., 2000 CarswellOnt 455 (ONSCJ). When the court looks atwhether there is a genuine issue for trial, the question is not whether there is any evidence to support the responding party’s position, butrather whether the evidence is sufficient to require a trial. Children’s Aid Society of the County of Dufferin v. J.R.,

(2002) CanLII 45515(ONCJ). [6] Rule 16 (4.1) requires that a responding party, however, may not rest on mere allegations or denials, but shall set out in anaffidavit or other evidence, specific facts showing there is a genuine issue for trial. [6] As of May 2, 2015, the rules have been amended to broaden the powers of the court on a

summary judgment motion. Rule 16 hasnow been amended to include the same

summary judgment powers set out in subrules 20.04 (2.1) and (2.2) of the Rules of CivilProcedure. The relevant provisions of rule 16 now read as follows (with amendments bolded): RULE 16:

SUMMARY JUDGMENT WHEN AVAILABLE 16.

(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion forsummary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg.114/99, r. 16 (1). AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for

summary judgment under subrule (1) may be made in any case (including a child protection case) that does not includea divorce claim. O. Reg. 114/99, r. 16 (2). EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuineissue requiring a trial. EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may notrest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issuefor trial. EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusionsunfavourable to the party. NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. POWERS

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial: 1. Weighing the evidence. 2. Evaluating the credibility of a deponent. 3. Drawing any reasonable inference from the evidence. ORAL EVIDENCE (MINI-TRIAL)

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. [ 7 ] The Supreme Court of Canada, in the case of Hryniak v. Mauldin , 2014 SCC 7 , set out the process to be followed in applying the expanded

summary judgment rule in subrules 20.04 (2.1) and (2.2) of the Rules of Civil Procedure . [ 8 ] The court held that the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before the judge, without using the judge’s new fact-finding powers. The legal principles set out in Bedard , above, would still apply at this stage. [ 9 ] If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine if the need for a trial can be avoided by using the new powers.

These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice.

Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole (paragraph 66). [ 10 ] If there are concerns about credibility or clarification of the evidence then those issues can be addressed by calling oral evidence on the motion itself (paragraph 51). This power should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action.

While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for

summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure (paragraph 63). [ 11 ] Where a party seeks to lead oral evidence, it should be prepared to demonstrate why such evidence would assist the motion judge in weighing the evidence, assessing credibility, or drawing inferences and to provide a “will say” statement or other description of the proposed evidence so that the judge will have a basis for setting the scope of the oral evidence (paragraph 64). [ 12 ] The use of the expanded powers is not a full trial on the merits but is designed to determine if there is a genuine issue requiring a trial. [ 13 ] There will be no genuine issue requiring a trial if the

summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure (paragraph 66). [ 14 ] The court also set out the following:

a) Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims (paragraph 5).

b) Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes (paragraph 24).

c) The

summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial (paragraph 34).

d) The Ontario amendments to rule 20 of the Rules of Civil Procedure changed the test for

summary judgment from asking whether the case presents a “genuine issue for trial” to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure (paragraph 43).

e) Where a

summary judgment motion allows the judge to find the necessary facts, to apply the law to the facts and resolve the dispute in a just manner, proceedings at trial would generally not be proportionate, timely or cost-effective (paragraph 50).

f) A process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute (paragraph 50).

g) On a

summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that the court can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The extra powers provided can provide an equally valid, if less extensive, manner of fact finding (paragraph 57).

h) The inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of

summary judgment, as opposed to trial. This would involve a comparison of, among other

things, the cost and speed of both procedures. It may also involve a comparison of the evidence that will beavailable at trial and on the motion as well as the opportunity to fairly evaluate better evidence that would beavailable at trial (paragraph 58). [15] The principles in Hryniak have been applied to

summary judgment motions in family law cases since the amendments to rule 16of the rules became effective on May 2, 2015. See: Children’s Aid Society of Ottawa v. K.A. and E.T., 2015 ONSC 3378, per JusticeTimothy Minnema and Children’s Aid Society of Toronto v. A.G. and A.B., 2015 ONCJ, 331, per Justice Roselyn Zisman. [16] It is also necessary to consider subrule 2 of the rules to ensure that a case is dealt with justly by ensuring the procedure is fair toall parties, saves time and expense and that the case is dealt with in ways that are appropriate to its importance and complexity.

Asummary judgment motion is a tool that can contain and control a child's drift in litigation. This appears to also be in keeping with theprocess set out by the Supreme Court of Canada in Hryniak. See: Children’s Aid Society of Toronto v. A.G. and A.B., supra. [17] In the matter before this court, most of the issues were able to be determined by

summary judgment without applying the newpowers under rule 16. The remaining issues were able to be determined by

summary judgment after applying the new powers. 2.2 Joint custody [18] The Ontario Court of Appeal in Kaplanis v. Kaplanis (ON CA), [2005] O.J. No. 275 (C.A.) sets out thefollowing principles in determining whether a joint custody order is appropriate: 1. There must be evidence of historical communication between the parents and appropriate communication between them. 2. It can’t be ordered in the hope that it will improve their communication. 3. Just because both parents are fit does not mean that joint custody should be ordered. 4.

The fact that one parent professes an inability to communicate does not preclude an order for joint custody. 5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise theymust be able to be addressed on an ongoing basis. 6. The younger the child, the more important communication is. 2.3 Access [19] The court is required to consider what access order is in the children’s best interests. Subsection 24 (2) of the Children’s LawReform Act (the Act) sets out criteria for assessing the best interests of a child.

The court has considered these factors in making thisdecision. [20] A child should have maximum contact with both parents if it is consistent with the child’s best interests. See: Gordon v. Goertz (SCC), [1996] 2 S.C.R. 27. [21] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. Thegreater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D. (ON CJ),[2003] O.J. No. 2946 (OCJ). [22] A parent does not have an absolute right of access.

Access is only to be ordered in circumstances where there will be a benefit tothe child. It is not sufficient to show that access will not harm the child; that is far too low a threshold. However, refusing access shouldonly be ordered in extreme circumstances. See: Worthington v. Worthington (ON SC), 2000CarswellOnt 4889 (SCJ). [23] In V. S. J. v. L.J.G., (ON SC), [2004] O.J. No. 2238 (S.C.) at paragraph 135, Justice Jennifer Blishenprovided a useful overview of the factors that have led courts to terminate access: 1.

Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stressand or fear. See M.(B.P.) v. M.(B.L.D.E.), supra; Stewart v. Bachman, [2003] O.J. No. 433 (Sup.Ct.); Studley v. O'Laughlin, [2000]N.S.J. No. 210 (N.S.S.C.) (Fam.Div.); Dixon v. Hinsley, (ON CJ), [2001] O.J. No. 3707. 2. History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by thechild and/or presents a risk to the child's safety and well being. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J.No. 769(N.B.Q.B.); Abdo v.

Abdo (NS C.A.), (1993), 126 N.S.R. (2d) 1 (N.S.C.A.); Studley v. O'Laughlin, supra. 3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the formercustodial parent. See Tremblay v. Tremblay (AB Q.B.), (1987), 10 R.F.L. (3d) 166; Reeves v. Reeves, [2001] O.J. No.308 (Sup.Ct). 4. Ongoing severe denigration of the other parent. See Frost v. Allen, [1995] M.J. No. 111 (Man.Q.B.); Gorgichuk v.Gorgichuk, supra. 5. Lack of relationship or attachment between noncustodial parent and child. See Studley v. O'Laughlin, supra; M.(B.P.)v. M.(B.L.D.E.), supra.

6. Neglect or abuse to a child on the access visits. See Maxwell v. Maxwell, supra. 7. Older children's wishes and preferences to terminate access. See Gorgichuk v. Gorgichuk, supra; Frost v. Allen,supra; Dixon v. Hinsley, supra; Pavao v. Pavao, [2000] O.J. No. 1010 (Sup.Ct.) Part Three – Material facts [24] The facts that follow were not in dispute or were only baldly denied by the father. [25] The mother is 39 years old. The father is 41 years old. [26] The parties cohabited from July 1, 2008 until they separated on a final basis on June 4, 2012. [27] The parties had the three children together.

The father has no other children. The mother has two children, ages 18 and 19, from aprior relationship. They both live with her. [28] The children have lived with the mother since the parties separated. [29] The parties’ youngest child was born after the parties separated and has never lived with the father. [30] The father would frequently drink alcohol to excess when the parties cohabited.

He repeatedly told the mother that he wouldobtain help, but he never did. [31] The father has had at least three convictions for driving while under the influence. [32] The father also suffered a significant brain injury in late 2008 when he was severely assaulted as the victim of a robbery. He wasin a medically-induced coma for one week and in hospital for one month. [33] The father has been unable to work since this incident and has been in receipt of benefits of $1,200 per month from the OntarioDisability Support Plan (ODSP). These payments are net of income tax. See: Senos v.

Karcz, 2014 ONCA 459 , 120 O.R. (3d)321 (OCA). [34] As a result of the injury, the father suffers from extreme headaches, depression and insomnia. He takes multiple prescriptiondrugs for these conditions. [35] The father would drink alcohol to excess while on these medications when the parties cohabited. [36] The father commenced his application on May 4, 2013 and the mother filed her Answer/Claim. [37] In July of 2013, the father came to the mother’s home very intoxicated and refused to leave. The mother had to call the policebecause the father was becoming aggressive.

The police arrived and no charges were laid. [38] On November 4, 2013, on consent, the court made a without prejudice order that the mother have custody of the children and thefather have supervised access to the children for two hours at the TSAC on alternate weeks. The father also agreed to pay temporarychild support of $220 per week, starting on December 1, 2013.

[ 39 ] The father has not paid any of the child support ordered. [ 40 ] The father has never brought a motion to change the access order. [ 41 ] The mother immediately attended at the TSAC to complete her intake form. [ 42 ] The father delayed in arranging his intake interview with the TSAC. He did not

schedule the interview until April of 2014 – 5 months after the order was made. He did not see the children during this period. [ 43 ] The visits started in June of 2014 at the TSAC. The visits had to be put on hold from August to October of 2014, as the father was seriously injured, due to another assault against him. [ 44 ] The father has exercised six access visits in total since the court made its order on November 4, 2013. He has not seen the children since November 30, 2014. There is disputed evidence about who has cancelled various visits.

This will be reviewed in more detail later in this decision. [ 45 ] At a case conference on December 9, 2014, the court set out the following expectations for the father before his access could be increased:

a) Attend all access visits.

b) Obtain access centre notes.

c) Obtain a hair-strand test for alcohol.

d) Obtain a medical report regarding his injuries and limitations, if any. [ 46 ] The father did not meet any of the expectations set out by the court. The mother filed the TSAC access observation notes on this motion. [ 47 ] On January 31, 2015, the father came to the mother’s home asking to see the children. It took the mother 30 minutes to persuade the father to leave. [ 48 ] On February 26 and 28, 2015, the father attended at the children’s school. He told the principal that he had joint custody of the children.

He was asked to leave and left without incident. [ 49 ] On February 27, 2015, the father called the Children’s Aid Society of Toronto and alleged that the mother’s two eldest children, from her prior relationship, were assaulting the younger children. The allegation was found to be without merit and was closed at intake. [ 50 ] On March 2, 2015, the father contacted the police and alleged that the mother was denying him access to the children. [ 51 ] From March 26 to 28, 2015, the father began making multiple telephone calls to the mother. On March 28, 2015, a woman called

the mother from the father’s phone and left a message that “if you fuck with the father, I will fuck you up”. [ 52 ] The mother applied for a temporary restraining order. It was returnable on April 28, 2015. The father’s lawyer attended on the motion. The father did not. The father did not file responding material. The restraining order was granted.

The order restrains the father from contacting or communicating with the mother and the children, except for the purpose of attending at supervised access visits. [ 53 ] The father has complied with the restraining order. [ 54 ] The TSAC has recently suspended the access, due to the father’s non-attendance. [ 55 ] It is noteworthy that the father did not deny any of these facts, other than writing in one line of his affidavit, “I am not an alcoholic”. Part Four – Analysis [ 56 ] The court is able to grant

summary judgment on several issues without using the new expanded powers set out in subrules 16 (6.1) and (6.2) of the rules. 4.1 Custody [ 57 ] There is no triable issue that the mother should have sole custody of the children for the following reasons:

a) The mother has essentially been the exclusive caregiver for the children since the parties separated in 2012.

b) The children are doing well in the mother’s care.

c) The mother has made responsible decisions for the children.

d) The children have had limited contact with the father since the separation and none since November 30, 2014.

e) The father has a long history of alcohol abuse. It is such a significant problem that his access has had to be supervised.

f) The father’s behaviour has been so concerning in 2015 that a restraining order was granted on April 28, 2015 to protect the mother and the children.

g) There is no communication between the parties. At this point, the restraining order prevents it. There was no shred of evidence to support the father’s bald allegation that he has historically communicated well with the mother. The mother is fearful of him.

h) The father has not taken the steps identified by the court to address the risk concerns that resulted in the order for supervised access.

i) The father has demonstrated a lack of responsibility towards the children, as evidenced by his failure to pay any child support since the parties separated, despite the court order.

j) The father has demonstrated inconsistent interest in the children. He delayed in arranging the supervised visits for 5 months (no explanation was given by him) and he has cancelled many visits. 4.2 Restraining order [ 58 ] There is no triable issue with respect to the mother’s request for a restraining order. The father has still not contested any of the facts that the mother relied upon to obtain the temporary restraining order. He has also taken no steps to obtain treatment to address any of his behaviours that led to the restraining order being granted.

The restraining order is required to protect the mother and the children. 4.3 Child support [ 59 ] There is no triable issue with respect to the mother’s claim for child support. The father has been earning $1,200 per month from ODSP since he issued his application in July of 2013. He has not paid the mother any child support, despite agreeing to pay her $220 per month starting on December 1, 2013. It is appropriate to start the support payments as of July 1, 2013, being the month that this case started. [ 60 ] The father’s income needs to be grossed up as the ODSP payments are net of tax.

A software analysis indicates that the father’s grossed-up income is $15,018 per annum. The Child Support Guidelines (the guidelines) table amount for three children at this income is $211 per month. 4.4 Access [ 61 ] There is no triable issue that if access is to take place, it must continue to be supervised at the TSAC (the mother’s alternative request) since:

a) The father has been unable to sustain the supervised access he has been granted. He has not seen the children since November 30, 2014 and has cancelled several visits since then.

b) The father has not taken any steps to meet the expectations set out by the court on December 9, 2014, in order to move access away from the TSAC.

c) The risk concerns that led to an order for supervised access, set out above, have not abated.

d) The father has not engaged in any treatment to address the risk concerns and continues to deny that they exist.

e) The father’s behaviour has been so concerning that a restraining order was granted to protect the mother and the children in April of 2015.

f) The father demonstrated a lack of boundaries and disrespect for court orders by attempting to see the children at the school in February of 2015. [ 62 ] However, on the face of the record, there does appear to be a genuine issue requiring a trial as to whether the court should make an order for no access , as requested by the mother, as some material facts are in dispute. The mother deposed that the father has cancelled

all but three of the access visits. The father deposed that this is not the case. He alleged that the mother has cancelled at least eight of the access visits and he has only cancelled three visits. He deposed that the mother is attempting to frustrate his relationship with the children. [ 63 ] This leads the court to the second stage of the

summary judgment analysis. The court finds that with the use of the expanded powers under rule 16 (weighing evidence, assessing credibility and drawing any reasonable inference from the evidence) it can make a determination that there is no genuine issue requiring a trial regarding access and make final access orders that are in the best interests of the children.

The court finds that the use of these expanded powers will not be against the interests of justice, will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. [ 64 ] The court also finds that it does not require oral evidence to achieve these objectives. [ 65 ] The court had the benefit in this motion of being able to review comprehensive access records from the TSAC. Neither party challenged their accuracy. These records are independent and prepared in the ordinary course of business by the trained staff at the TSAC.

The court finds that they are the most accurate records of the parties’ attendance at access and about the quality of the father’s access. [ 66 ] The TSAC notes reveal that neither parent’s evidence about attendance was accurate. The notes indicate that the mother has cancelled six visits and the father has cancelled four visits (until the end of March of 2015). The court has not counted the visits cancelled between August and October of 2014, because that was the time when the father was recovering from a second assault. Two visits were also cancelled when the TSAC was closed.

One other visit was cancelled when there was confusion about the start time. [ 67 ] The mother also provided evidence, not denied by the father, that the father cancelled two visits in May of 2015. [ 68 ] The mother offered several reasons for the missed visits, including illnesses and a bad snow day, but the evidence indicates that she has frequently cancelled visits – as has the father. [ 69 ] A review of the TSAC observation notes indicate that the children enjoy the visits with the father when they take place. The children happily greet the father, will hug and kiss him and show affection towards him.

The father brings games, toys and food to the visits, which are accepted by the children. The father organizes his time with the children and engages them in activities. He spends one- on-one time with the children. The father reads to the children and the children smile at him. He asks them about school and engages them in conversation.

At the earlier visits, the oldest child had difficulty separating from the father at the end of the visits. [ 70 ] On occasion, the father had to be redirected by the TSAC staff not to discuss adult matters with the children. [ 71 ] The mother provided no evidence that the children feared their father or did not enjoy the visits when they took place. There is no evidence that the children have emotional distress after visits. There is also no evidence that they are presently reluctant to see him.

In fact, the evidence indicates that the children love their father and enjoy their time with him. [ 72 ] The court finds that it is not in the best interests of the children to terminate access at this time. It is in their best interests to be able to see their father in a safe and structured setting. The mother’s motion for

summary judgment for no access will not be granted, but her alternative claim for

summary judgment for supervised access will be granted. [ 73 ] It is critical for the stability of these children that neither parent cancels access visits unless there is a serious reason to do so. Both parents can be faulted for the access not consistently taking place. [ 74 ] The final order will provide for supervised access to continue, but on terms to ensure that the access inconsistency, which must be confusing for the children, does not continue. The court will also set out what will be expected from the father before the court considers moving access away from the TSAC.

4.5 Travel and obtaining government documentation for the children [ 75 ] The mother seeks an order to permit her to travel with the children outside of Canada and to obtain government documents for them, including passports, without the father’s consent. The father opposes this, asking for an order that the mother not be permitted to remove the children from Canada. [ 76 ] On the face of the record, there appears to be a genuine issue requiring a trial. There is conflicting evidence.

The father claims that there is a risk that the mother will remove the children to Somalia if she is permitted to travel outside of Canada. The mother claims that there is no basis for this allegation. [ 77 ] The court finds that with the use of the expanded powers under rule 16, it can make a determination that there is no genuine issue requiring a trial regarding these issues.

It finds that the use of these expanded powers will not be against the interest of justice and will lead to a fair and just result. [ 78 ] The court also finds that it does not require oral evidence to make this determination. [ 79 ] The father’s allegation that the mother intends to leave the children in Somalia with the maternal grandmother has no air of reality. He provided no evidence to support this allegation. He made this allegation for the first time on June 15, 2015. [ 80 ] The mother provided credible and compelling evidence that she has no intention of leaving the children in Somalia.

She came to Canada from Somalia for a better life 25 years ago and has not returned. She left during the civil war in Somalia. She is a Canadian citizen. The children are Canadian citizens and thriving in Canada. They are established in their school and community. All of the mother’s immediate family resides in either Canada or the United States, with the exception of her father who is a journalist in Mogadishu. The maternal grandmother, her two brothers and sister all reside in Minnesota, not Somalia.

The mother would like to be able to visit with them. [ 81 ] The evidence is clear that the father would not readily cooperate with the mother’s requests to obtain government documentation for the children and to travel with them. It is in the children’s best interests to be able to travel with the mother, enjoy the new experiences that traveling to different places offer and be able to meet and spend time with extended family. There is no genuine issue requiring a trial on these issues. Part Five – Conclusion [ 82 ] The mother’s motion for

summary judgment is granted on the following terms and conditions:

a) The mother shall have final custody of the children.

b) The mother may obtain or renew all government documentation for the children, including passports, without the father’s consent.

c) The mother may travel with the children outside of Canada without the father’s consent, for vacation purposes.

d) The father shall have supervised access to the children at the TSAC on alternate Sundays for two hours, as soon as these visits can be arranged with the TSAC.

e) If the mother cancels an access visit, the visit shall be made up at the earliest opportunity available to the TSAC.

f) If the father cancels an access visit, there shall be no make-up visit.

g) If the father cancels three consecutive visits, visits shall be suspended pending further order of the court.

h) The terms of the temporary restraining order dated April 28, 2015 are now final.

i) Based on an income of $15,018 per annum, the father shall pay the mother the guidelines table amount for three children, of $211 per month, starting on July 1, 2013.

j) The father shall provide the mother with his income tax returns and notices of assessment, each year, on or before June 30th.

k) A support deduction order shall issue.

l) The claims made by the father in his amended application are dismissed. [ 83 ] The father will need to take the following steps before the court will consider moving access away from the TSAC:

a) Attend access visits consistently.

b) Have positive access visits with the children.

c) Continue to comply with the terms of the restraining order.

d) Provide documentary evidence from a qualified professional that he is not abusing alcohol.

e) Provide a medical report setting out his injuries, limitations, course of treatment (including medications) and prognosis.

f) If treatment is recommended, evidence that he is complying with the treatment recommendations. [ 84 ] A copy of these reasons for decision should be provided to the TSAC. The TSAC is requested to reinstate access as soon as possible. It is in the best interests of the children to have a relationship with the father.

This order creates a mechanism to deal with the cancellations of the visits, so that valuable supervised access spots are not lost for other families if the father does not exercise the access ordered. [ 85 ] If the mother wishes to seek her costs of this motion, she is to serve and file written submissions by July 7, 2015. The father will have until July 21, 2015 to respond. Written submissions should not exceed three pages, not including any offer to settle or bill of costs and shall be delivered to the trial coordinator’s office on the second floor of the courthouse. ___________________________ Justice S.B.

Sherr Released: June 22, 2015