Court File and Parties

Court File No.: DFO-13 10683-00-A3 Date: October 11, 2013 Ontario Court of Justice

Between: Eric Reolon, Applicant — And — Helene Basselin Reolon, Respondent

Before: Justice Heather L. Katarynych

Heard on: October 8, 2013

Motion Decision: October 11, 2013

Counsel:

• Ms. Christina Doris, for the applicant
• Ms. Rita Gonsalves, for the respondent

Decision on Temporary Custody/Mobility/Child-Parent Access

Background

Before the court are competing claims for temporary custody of the subject children.

On September 4, 2013, by order of Mme Justice E. Murray of this court, both children were secured in their father's temporary"without prejudice", custody and care, with a supervised access to their mother, with an order forbidding either parent from removing them from this jurisdiction.

The father seeks an order permitting him to return to France with the children.

The mother, in seeking return of the children to her primary care, makes plain that she wants to remain in Canada with them. In her countermotion returnable on the date of the hearing, she seeks an order requiring supervision of the father's parenting of the children.

That is the status at the time of this hearing.

Procedural History

With the assistance of their counsel, the parents were able to implement a generous access for the children with their mother, far greater than what had been provided in the initial access order, and with supervisors other than the father himself.

When the case first came before me on September 26, 2013, and judicial conferencing went forward rather than the motion hearing itself, to enable mother to retain new counsel, an access schedule was stipulated for the children, and direction provided to both parents about their disclosure responsibilities.

Judgment was reserved at the close of the motion hearing.

Judicial Approach

I have now had opportunity to review the whole of the record placed before the court, with particular attention to the materials filed by the mother, because it is the state of her health and the present unknowns about its fragility that is advanced by the father as reason for his reach to the court for orders entrusting him with the temporary custody of their two young children. She is understandably distressed by the disruption of her own parenting of the children.

I have been mindful that at this point in the litigation, none of evidence has been tested for its credibility, and that it does not represent the whole of the evidence that would be available in a trial forum. I have been particularly mindful that this motion went forward for hearing before investigations in relation to the mother's health could be fully completed, and that ordinarily, the court would await the full results of those investigations before moving to decision-making about her.

However, the circumstances of this case are not ordinary, the timeframe reasonably needed for a more thorough investigation in this jurisdiction is not there, if the interests of the children are to be kept foremost in mind, nor does further delay in temporary decision-making make common sense for the reasons outlined further in this decision.

Both parents have filed a substantial record upon which to rest temporary decision-making at this time.

Findings of Fact

On what was found on the face of the evidentiary record to be credible and trustworthy evidence, these are the findings:

Nature of the Litigation

The case launched by this father in September 2013 has never been an attack on the mother's historic parenting skill and commitment to their two children. What the mother asserts vigorously in her materials about her parenting and her attention to the needs of the children, and what she has made visible in that regard through her actions with respect to their schooling and community and summer camping experience, is not the heart of this litigation.

I took into account that the parents separated in April 2013, and that the ensuing months were times of adjustment for both the parents and the children. I also noted that, to the credit of each of them, the children had good parenting time with each of their parents, and visible indication that their parents were able to make things happen for them, even though father and mother were now living in separate apartments.

But for the crisis that erupted, it is reasonable to believe that this approach to their parenting responsibilities would have been the "norm" for these young children. Both parents clearly treasure their children, and the children treasure both mother and father.

Whatever the allegations now made by the mother about past behaviours of the father that ought now to call for supervision of his parenting, she and the father were managing quite responsibly and without the involvement of the court until the unfolding of events that led to the father's motion.

The Crisis and Mental Health Concerns

There is credible and trustworthy evidence in this record that deterioration in the mother's mental health was what precipitated the father's reach to the court.

Contrary to the mother's stance, what triggered this litigation was not, on the face of this record, the father's attempt to manipulate the court by maligning her.

Contrary to what the mother would have this court find, it was not just what the father conveyed to others, who then took his information and made it their own. Others who had observed the mother in the course of the latter part of the summer, including her first retained lawyer, and the psychiatrist retained by the lawyer to assess the mother's mental health, and two female neighbours who, while articulating their respect and high regard for this mother, also attest to their own concerns, based on their own observations, of the mother's behaviour.

The Children's Aid Society recording of its involvement in this family to date makes plain that it was not this father who had contacted the child protection authorities expressing concern. It was the mother's lawyer (not the present lawyer of record), after discussion between that lawyer and psychiatrist Goldstein who had met with the mother for initial evaluation.

That father did not himself contact the child protection authorities does not invite inference that there was nothing afoot to warrant that contact.

On the face of the record in its entirety on that point, he was trying to manage the crisis without involving an array of others.

Changes in Circumstances

The reality for these children is that their circumstances changed over the course of the summer. Mother was displaying behaviours that provided increasing concern. Father was taking on an increasingly greater role in their day to day life, not by severing their contact with their mother, but providing his own supervision of it, and at the same time trying to persuade the mother to get medical help.

Although the father's initial affidavits had given reason to believe that he had achieved a measure of success in engaging the mother in clinical investigation of whatever had caused the disconnect in her functioning over the course of the summer, the more recent affidavits of the mother display a quite different "take" on what is reasonably needed at this time.

The social worker and the psychologist retained by the mother provide their own opinion, from their observations of the mother and what information she had provided to them, that she is not, in their view, exhibiting signs of mental illness.

On a careful read of the mother's affidavits and other materials filed in her case, she sees no need for psychiatric evaluation at this time. There is no diagnosis, as her counsel points out, and there can be no expectation that she engage a "treatment" if there is nothing to be treated. In short, the questions about her mental health have been answered. The father distorted everything. From her perspective, with the question answered, the children can now be restored to her primary care.

Assessment of Evidence

Although those who have seen the mother more recently have observed none of this disconnect, none of them is positioned to assert that the disconnect is a figment of the father's imagination or the figment of anyone else's imagination.

What precipitated the sorts of behaviours that were causing alarm towards the end of the summer may or may not have been resolved in a manner that shields the children from recurrent disruption. Likelihood of recurrence requires the sort of investigation that was addressed at the beginning of the litigation; examination and collateral investigations undertaken by a clinical psychiatrist, precisely the process that began before this litigation was launched, and then was abruptly ended by the mother in favour of other courses of action.

I took into account in this regard, that neither the social worker nor the psychologist have the fullness of information that is before the court at this time.

I noted that neither the social worker or the psychologist is possessed of the expertise offered by a clinical psychiatrist on the issue of mental health. It was and still is psychiatric evaluation of this mother that was identified as the most immediate need at the time of the crisis to shed light on what was happening, how to deal with it, and how to proactively keep the children shielded from material risk arising from the mother's distortions of reality.

If there is to be properly informed decision-making for these children about the extent to which their mother's parenting of them needs to be supervised, that evaluation needs to be done.

What cannot be said, on the whole of that record, as the mother would have this court find, is that the worrying behaviours never occurred at all.

Specific Concerning Behaviours

There are certain realities for these children that have not been factored into the mother's perspective; notably the following:

This remains a case in which the reach to the court is rooted in a crisis within the family that directly affected the safety and wellbeing of the children if they were to be left unsupervised in the care of their mother. As the summer progressed, there was good reason to be worried about the state of this mother's mental health and the wellbeing of the children if left alone in her care.

The fact of crisis is well grounded. The mother's text messaging in evidence, together with the father's responses to those messages remains vivid illustration of her disconnect with reality at the times of that messaging.

On the evidentiary record in this case and, in particular, the Children's Aid Society recording of its involvement in this family to date, the society was contacted by a counsellor to whom the father had reached for advice, based on his description of what was unfolding in his experience of the mother. The mother's counsel had also contacted the society, after discussion with a psychiatrist to whom she had sent the mother for evaluation and the mother herself.

What the mother herself had been telling him and texting him, and from what the children themselves were conveyed to him, he was very worried that she was in crisis in relation to her mental health and needed psychiatric assessment.

She had told the father that she was hearing voices. She talked about violent flashes in her mind. She had told him that people were breaking into her apartment and bugging it. She had indicated to the father that she had recently been attacked by someone who had taken control of her mind. She spoke of employment with individuals who were not in Canada, not part of their life in Canada. She had suddenly quit her employment, and the quitting echoed a pattern that she had laid down; the acquisition of employment, then a sense that it was unsafe, and quitting. She was now speaking with the children about people who existed only in her imagination. The children were confused. They had waited with their mother in the apartment building lobby one evening, eventually falling asleep on the sofas there, waiting for a man who supposedly was to take them all to a cottage. The man was a figment of their mother's imagination. When father and children returned from a camping trip in late August, she believed that the person who was "spying" on her was attempting to poison the father, and was refusing to allow the children to come to his apartment for fear they, too, would be poisoned. She was insisting that the father throw out all his food and indeed, his toothpaste, before she would allow the children to come to his residence.

On the face of the evidence pertinent to the time of the crisis, the deterioration was real, and it was serious business.

She was initially refusing to see a psychiatrist or take medication, then appeared for a time to be open to evaluation of her health.

Father's Response to Crisis

The records of the society, ordered produced on September 9, 2013 and now part of the evidentiary record in this motion are testament to the father's approach to the crisis in the family, his growing concern about the wellbeing of the mother, his attempts on his own and directly with the mother to manage the deterioration in her mental health, and his own desire to have the crisis resolved by a restoration of the mother's health. His approach was measured, focused on the needs of their young children, and frankly caring of the mother.

It is also plain on the face of that record and indeed, on the whole of the evidentiary record, that he was not alleging that the mother had ever harmed the children or him, or that she has been a neglectful mother.

He had actually held off any reach to the court, trying initially to manage his growing concern on his own, and seeking information from the community health care resources to guide his actions and attitude. So it was, for example, that he turned up at St Michael's Hospital, seeking information about the difference in Canada between a psychologist and a psychiatrist.

He and the mother were in discussion, she appeared to be prepared to seek medical intervention for herself, he wanted to encourage her in that regard. He quite reasonably feared that any precipitous reach on his own to obtain help for her and the children would be interpreted by her as attempt to gain advantage over her in relation to unresolved custody/access of the children.

He provided as much contact for the children with their mother that could be reasonably managed within his work commitments. For a time, he met the mother's desire to accompany the children and father to the children's school.

The father tried – and succeeded in convincing the Children's Aid Society to keep its intervention as low key as possible, telling the society repeatedly that he did not want to exacerbate an already difficult situation for the mother, and assuring the society social worker that he could keep the children safe in mother's company with supervision of their time together. Until other supervisors could be obtained, he arranged his own affairs in a manner that gave the children far more time with their mother than had been initially ordered by the court, in the spirit of trying to assure the mother that he recognized her value in the life of both children, and would do his part to ensure that the children had that made visible to them.

Current Stability Assessment

On the face of the whole of the evidence, what has not subsided is the instability and the seeming inability to get a grip on what is reasonably possible and what is wishful thinking about the future.

There is not adequate assurance on the face of this record that this mother is sufficiently stabilized at this time to resume an unsupervised parenting of these two young children.

In this latter regard, although the mother has voiced concern in her materials about episodes in the father's behaviour that, from her perspective, constitute abuse, there is reasonable ground to believe from the content of her allegations that what is playing out is within the overall distortion in her mind. The Children's Aid Society has found both children quite happy in their father's parenting, and otherwise doing well.

Conclusion

Both parents have much to offer their children. They are both educated professionals, have provided well for their children during their time in Canada, and are kind and loving to their children.

Ethan and Maelys are just six and four years old at the time of writing, and at this age and stage, as a matter of common sense, need parenting that can be counted on to keep them secure and safe.

At this time in the life of the children, it is their father who is able to provide the greater stability in the parenting.

The father is alive to the need of each child to the nurture of their mother. There is no reason to believe on the face of this record that he will act in any manner that withers the mother-children bonds.

I have taken into account in this regard that the geographic distance between the parents may dictate both the nature and the extent of the access.

All access needs to take place in the presence of a responsible adult.

Specific to the Mobility Issue

Although it is phrased as a "mobility" issue in this litigation, what emerged as the essential issue in this regard is whether it is this court's exercise of jurisdiction or the jurisdiction of the courts in the homeland of this family that is better able to serve the needs of these two young children in the wake of the parents' separation and the tasks ahead to sort out long term parenting arrangements.

Reality is that there is still much to be sorted out by these parents on a go-forward basis for themselves and for their children. The parents separated on April 1, 2013. Until the crisis that prompted the reach to this court, everything was being done on an informal basis between the two of them to provide for the children and themselves.

At this point there is a sharp division between the parents on an array of issues. The breadth of the litigation has expanded. That expansion needs to be managed with particular care, if these two young children are not to be caught up in it.

Jurisdictional Findings

The face of the evidence yielded the following findings:

Both parents and the children are ordinarily resident in Europe.

Their homeland is France.

Although the mother wants to remain in Canada and wants the children to remain in Canada with her, there is insurmountable obstacle in her path in that regard.

The family's right to remain in Canada – the work permit granted to the father – expires on December 31, 2013.

This mother has no independent work permit to enable her to remain legally in Canada, nor does she have any employment that might attract work permit consideration by Immigration Canada. She plans to meet with an Immigration lawyer to sort out that problem and is "hopeful" that she will get a work permit. Her expectation that this will unfold by December 31, 2013 is "pie in the sky" hope.

There is no reasonably grounded belief that the mother can fit herself within the requirements of Canada's Immigration law for continuation in Canada at all at this point, and certainly not within the weeks remaining in 2013. This mother cannot dictate the pace at which Immigration Canada processes a work permit application, nor is it apparent on the record that she appreciates what is needed to launch a viable application in that regard.

It is plain on the record that this is not a situation that attracts refugee claim. This is not a case that attracts any proper ability to apply for what mother characterizes as an "independent" work permit or any other permission to remain in Canada from within Canada itself.

The letter filed in evidence from the Immigration lawyer consulted by father's counsel reflects the court's own understanding of the operation of Immigration law. In that regard, it is not unusual in the domestic sittings of this court to have Immigration Canada conducting a "watching brief" on the proceedings with regard to parents who are illegally in Canada. The ordinary issue is not whether the parent remains in Canada. Immigration Canada makes its own decisions on that issue. The issue is whether the children leave Canada with their parent or go into the care of the child protection authorities. The bottom line is that Immigration decision-making can have serious impact on a child's life and that these two children need to be spared that potential.

Financial Considerations

At the time of writing, the mother does not have employment. Although she hopes to obtain work, she has not been able to sustain a continuous employment of late. She abruptly left her employment at the end of the summer. To the extent that her quitting of employment after a few months is tied to issues of emotional health is controversial on this evidentiary record. The bottom line is that she has no present means of financing her desire to remain in Canada, except through the father himself.

Although she is convinced that the father can manage that responsibility, he realistically cannot do that. He has been financing two apartments since the parental separation and finding it increasingly difficult to manage that burden. Although the mother is firmly of the belief that he can do much more, the evidence as a whole does not support the reasonableness of that belief.

Language and Procedural Considerations

The litigation in this court is at the early stages of judicial case management.

There is language discomfort that is already playing out in this case. Neither parent is entirely comfortable in the English language. Each makes that plain. The mother complains that the psychiatrist selected by her lawyer initially in the case interviewed her in English.

Although neither has sought to have this litigation proceed in French language as permitted by Canadian law, it is plain that they both struggle to manage a proceeding that is going forward in the English language. Some of the material already filed in the evidentiary record in relation to the mother's health is in the French language. I took into account that interpretation services can be made available in the court proceeding now underway, but as a matter of common sense, it cannot duplicate the ease available to the parents achieved by a proceeding not sieved through the interpretation of another.

Health Care and Family Support

It is reasonable to expect that the most helpful evaluation of the mother's health is likely to be in France, and with the assistance of those professionals who already have a history with her, who speak her language, and who are readily accessible to the court in France to assist the parents to resolve this litigation. It is, of course, her choice whether to return to France.

Historical health care information relevant to the issue of the mother's current mental health is within medical history maintained in France. Mother produced a measure of it in her materials. It is the father's evidence that important aspects of her medical history are left out; most particularly, psychiatric intervention that she stopped.

These parents have no family in Canada. Extended family reside in France. For the children, that means as a practical matter, that there are no family supports close enough to be readily available to either parent to assist with the children.

His proposed place of residence, if permitted to take the children to France, is the home of his parents.

The father has employment waiting for him that can be delayed a bit to accommodate the father's need to sort out these family issues, but not indefinitely.

That employment includes a measure of financing to assist with travel and moving expenses, and the mother's costs can be encompassed within that employment benefit if she chooses to return to France.

Conclusion on Jurisdiction

In circumstances where the expiry of the ability for these children to remain in Canada is looming so close on the horizon, where there are questions still to be fairly and fully answered in relation to the stability of the mother's mental health, and where there is increasing financial hardship for the family, the longer the controversy about their future extends, it does not serve the interests of either these children or their parents to have longer term decision-making in the hands of this court.

The children deserve to have their future parenting sorted out in a jurisdiction where their parents can go forward on more stable ground in terms of that planning.

That jurisdiction is not Canada.

Orders

For all the foregoing reasons, the following orders are to issue today:

Custody

Both children are to continue in the temporary care and custody of their father until such time as a further order of a court of competent jurisdiction provides otherwise.

The father is to be the sole authority required for any documents required by either child, including but not restricted to health care, education, travel, including passports and visa documents.

The father is to provide the mother on an ongoing basis with information related to the children and their wellbeing and to the extent practicable, include her in school events and community activities in which the children are participants.

Mother-Children Access

The father is to continue to provide the children with as much supervised access to their mother as can be reasonably arranged over the months ahead. That access is to include time with mother in the presence of a responsible adult who can provide a low-key monitoring throughout the mother-children time, generous telephone access, email and SKYPE access and any other means generated by the parents to keep them in good contact with their mother.

The mother is not to interfere with the father's parenting of the children either directly or indirectly.

Residence Outside Canada Under This Order

Permission is given to this father under this court's order to return with the children to France, and reside there with them.

The father is to be in possession of all identification and travel documents, including passports of each child.

The father is also to be in possession of all school and health care information relevant to either child.

Directions to Counsel

The case will be returnable in this court in October 2014, on a date to be scheduled by counsel with the case management unit, if no other court has taken jurisdiction in the case.

This decision is to be released to counsel of record today.

H. L. Katarynych Case Management and Motions Judge

Released October 11, 2013.