2011 ONSC 1716, 2011 ONSC 1716

CITATION: Ndju v. Fort, 2011 ONSC 1716 COURT FILE NO.: FC-09-1110 DATE: 2011/03/17 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Michael Ndju, Applicant AND Edline Fort, Respondent BEFORE: Mr. Justice Peter Annis COUNSEL: Pamela Barron, Counsel, for the Applicant Suzanne Y.

Côté, Counsel, for the Respondent HEARD: March 16, 2011 ENDORSEMENT [1] The respondent seeks an order of varying the order of Roy J. dated October 7, 2009 and the order of Maranger J. datedSeptember 14, 2010 to provide that the respondent/mother be allowed to travel to and from Haiti with the child of the relationship,Mayleen Fort born April 28, 2009 during the period of March 23, 2011 to April 6, 2011, so long as she provides a detailed itinerary ofher travel plans and other similar information regarding the trip. [2] As indicated at the completion of oral submissions, I am not prepared to grant the order permitting the mother to take thechild to Haiti because I conclude that it is not in Mayleen’s best interests to do so.

Despite the considerable evidence that the mother ledestablishing that she and family members in Haiti had taken every conceivable measure to protect the child while in Haiti, I neverthelessconclude that the risks are too great to be able to change my view that it is not in the child’s best interest to travel to Haiti in theseturbulent times in that country. [3] In the first place, the child is under two years of age and the purpose of the trip, which is to allow her dying grandmother tosee her granddaughter before she passes on, while of obvious significant emotional benefit to the grandmother and the mother, I concludewill do little to mark a child of such tender years.

The trip is essentially made in the interests of the grandmother and the mother and notthe infant. [4] More importantly, the father placed evidence of travel advisories from both the Canadian government and that of the UnitedStates warning against all non-essential visits to Haiti due to the civil unrest that plagues the country since the earthquake in January2010. These advisories and other documents also make reference to civil unrest being linked to ongoing presidential elections. References are made to the unpredictability of violence occurring throughout the country.

Murder, kidnapping, armed robberies,burglaries and carjackings have been occurring even in daylight hours. The general Haitian population, regardless of social class, can beconsidered at risk of being kidnapped in a number of cases, travelers arriving at Port-au-Prince were attacked and robbed shortly afterdeparting the airport. [5] It is noteworthy that the mother intends to arrive three days after the continuing presidential elections. Last year protests anddemonstrations and violent disruptions occurred in Port-au-Prince and throughout the country linked to these elections.

Her visittherefore appears to coincide with a time of heightened danger for anyone residing in Haiti. [6] Evidence was also introduced that the earthquake has contributed to a situation of rampant cholera which according to thePan American Health Organization has resulted in more than 243,000 cases, including over 4,500 deaths as of February 2011.

A reportproduced by UNICEF highlighted that the disease quickly spread to all 10 departments of the country and that the political crisisfollowing the November elections made matters worse with insecurity impeding humanitarian actors’ capacity to move swiftly to savelives and to contain the disease. [7] The mother cited the case of Kazdan v. Kazdan, (ONCA) where the court permitted a mother withterminal illness to travel to Israel with two young children.

There is no comparing the situation prevalent in Israel at that time to Haititoday where governments are advising citizens to avoid all non-essential travel to the country. Moreover, I judge the situation of anillness of the mother differently from that of the children’s grandmother in terms of the trip being in the best interests of the child.

However, even were the mother ill in the circumstances of civil unrest, disease and pending elections in Haiti, I would hesitate to makethe order requested. [8] Accordingly, the mother’s motion for leave to travel to Haiti with the children is dismissed. [9] The mother also seeks an order dispensing with the requirement that the biological father/applicant sign a consent to apassport being issued for the child by Passport Canada. The father raises concerns about the mother possibly absconding with the childand remaining in Haiti. I reject this argument as being completely without foundation.

The mother though born in Haiti has lived inCanada since six years old, she has been educated here, is employed as a nurse here and now is raising a family in Canada. [10] The mother referred the court to the decision of Johnson v. Johnson [1996] O.J. No. 490 (General Division) in which Weekes

J. concluded that the mere fact that the applicant had relatives in a country which was not a signatory state to the Hague Convention would not justify making an order preventing travel with the child in the absence of evidence that there was some possibility that the children might be abducted.

I concur with that reasoning which is directly applicable to this matter. [ 11 ] I grant the order dispensing with the requirement that the biological father sign a consent to a passport being issued for the child, subject to the limitation that no action is to be taken to implement this order until after April 6, 2011. [ 12 ] The father may make submissions with respect to costs to be filed within seven (7) days of the date of this order. The mother may reply seven (7) days thereafter. Annis J. Date: March 17, 2011 CITATION : Ndju v.

Fort, 2011 ONSC 1716 COURT FILE NO.: FC-09-1110 DATE: 2011/03/17 ONTARIO SUPERIOR COURT OF JUSTICE RE: Michael Ndju, Applicant AND Edline Fort, Respondent BEFORE: Mr. Justice Peter Annis COUNSEL: Pamela Barron, Counsel, for the Applicant Suzanne Y. Côté, Counsel, for the Respondent ENDORSEMENT Annis J. Released: March 17, 2011