Court File and Parties

Court File No.: D80974/15 Date: 2016-08-31 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5X5

Re: Thuy To Uyen Khuu (applicant mother) - and - Quoc Hoang Tran aka Hoang Quoc Tran (respondent father)

Before: Justice Robert J. Spence

Counsel:

• Ms. Glenda Perry – counsel for mother
• Ms. Pamela Jacobson – counsel for father

Motion Heard: August 29, 2016 Decision Released: August 31, 2016

Reasons for Decision

Introduction

[1] The mother has brought a motion seeking an order that she be allowed to obtain a passport and government documents for the parties' 10 year-old child, and to travel outside of Canada for vacation purposes with the child, all without the consent of the father.

[2] The father is opposed to this blanket request by the mother and asks the court to require the mother to consult with him, and obtain his consent, before any such documents are issued and any proposed travel takes place.

[3] Additionally, the father is opposed to any travel by the mother and the child to a country which is not a signatory to the Hague Convention. He argues that the mother will likely abscond with the child and this will permanently sever his relationship with the child.

[4] At the court attendance on June 7, 2016, the parties consented to the procedure whereby the court would make a final order on these issues, on motion and affidavit evidence alone.

[5] This is my decision on that motion.

Background

[6] The parties were married in Vietnam in 2004. They have lived in Canada since in or about 2005. Their daughter was born in February 2006.

[7] The parents separated in 2011. They were granted a divorce in 2012. The divorce did not address any corollary relief issues.

[8] Following their separation in 2011, the parties remained together under the same roof for the benefit of their daughter. Their living arrangement was not for the purpose of a reconciliation.

[9] In October 2014, the father assaulted the mother. She left the family residence with the child on that date. The father was convicted of this assault in 2016 and he was placed on probation for 12 months.

[10] The parents have never communicated since the date of that assault; nor have they seen each other, apart from attendances in court.

[11] The father did not see the child following the date of the assault, until May 18, 2016 when the parties consented to an order that he would have access to the child on alternate Sundays for up to two hours per visit, supervised at Access for Parents and Children Ontario.

[12] On June 4, 2015, the mother commenced an application seeking, inter alia, sole custody of the child, child support and a restraining order, as well as the relief requested in the present motion.

[13] The parents, together with the assistance of their respective counsel, entered into a consent order on June 7, 2016, providing for sole final custody to mother and final child support payable by father to mother in the amount of $187 per month, based on minimum wage income to father in the amount of $23,400 per year.

[14] The final issues, namely, the issues in this motion are the subject of this decision.

Father's Position

[15] The father argues that it is premature to grant the relief which mother is seeking. He argues that the mother seeks this order for the sole purpose of undermining his relationship with the child, possibly severing it entirely.

[16] He points to what he claims are indicia that the mother would be unlikely to return to Canada if she were given the power to travel with the child anywhere she chooses, and without his consent. He says these indicia include:

1. mother has no financial resources;
2. she has no job and is in receipt of social assistance;
3. she has no property in Canada, no car and no investments;
4. she has no prospects in Canada, no job training and no skills;
5. her family resides in Vietnam;
6. Vietnam is not a signatory to the Hague Convention;
7. she has failed to nurture the relationship between the child and the paternal grandmother who, until the parties separated, was actively involved in the child's life; and
8. she has no concrete plans to travel on a specific date; the order she seeks is for her "sole convenience".

[17] The father argues that there is no reason to believe he would not cooperate with mother should she wish to travel with the child, provided she gives him appropriate notice and provided she does not plan to travel to a non-Hague country.

Mother's Position

[18] Mother submits the following in support of her position that she is not a flight risk in the event she were allowed to travel outside Canada with the child:

1. she has lived in Toronto since 2005;
2. she is a permanent resident of Canada;
3. she applied for Canadian citizenship in April 2016;
4. the child was born in Canada and is a Canadian citizen;
5. mother is learning English and her English language skills are improving;
6. the child's primary language is English; her ability to speak Vietnamese is poor;
7. the child is connected to her current school and she has a lot of friends there;
8. the child participates in other social activities including camps, piano classes and tutoring programs; and
9. her brother in Vietnam is planning to be married in the summer of 2017 and this will be a significant family event for both mother as well as the child.

Discussion

[19] I have attempted to set out the main points of each party in support of their respective positions.

[20] The essence of the father's argument is that mother is a flight risk and she should not be given the broad and unfettered powers she is now seeking.

[21] The father argues strenuously that the mother wants to sever the connection between himself and the child, and that has always been her intention.

[22] However, the evidence does not support this submission.

[23] Even prior to mother commencing her application in this court, she attempted to reach out to the father with the assistance of her counsel, Ms. Perry, in an effort to resolve the issues of custody and access without initiating court proceedings.

[24] This attempt was done through the father's sister, who agreed to act as an intermediary. The sister subsequently confirmed to Ms. Perry that she had contacted the father, and relayed to him the mother's wish to resolve the issues without the need for court involvement.

[25] Although all of this was done by mother and father's sister in February 2015, the father never responded to Ms. Perry or made any sort of proposal himself to resolve the issues.

[26] Despite having been assaulted by the father, the mother's desire to reach out to him to resolve the issues and to thereby avoid court proceedings, indicates a sincere attempt on mother's part to do the exact opposite of what father now claims, namely, to cut him out of the child's life.

[27] During the course of argument on this motion, I raised with father's counsel the issue of father's violence toward mother. Specifically, I queried whether, in the face of his violence toward her, it is reasonable to expect mother to now attempt to work cooperatively with father insofar as the child's passport and government documents are concerned, as well as any proposed travel arrangements.

[28] Father's counsel argued that this assault was simply a "one-off", and because it occurred more than 1-1/2 years ago, the court should have no reason to believe father would fail to cooperate with mother's reasonable requests.[1]

[29] However, there are two rather disturbing pieces of evidence – or non-evidence - regarding this so-called one-off assault.

[30] First, nowhere in any of father's material does he show any remorse for having attacked the mother. Nowhere does he explain the events of that day, why he did what he did, and what changes have occurred since then which make it more likely than not that a repeat will not occur.

[31] Nowhere does father explain why mother would have nothing to fear were she to approach him – whether in person or otherwise – in an attempt to negotiate the travel issues.

[32] In other words, he does not demonstrate any insight into his actions; and thus, he gives mother no reason to believe that he would, in the future, act in a reasonable and cooperative manner with her.

[33] The father needs to be accountable for his violence toward the mother. He has demonstrated no accountability whatsoever.

[34] Second, mother's Form 35.1 affidavit, sworn June 4, 2015, and filed concurrently with her application, sets out a detailed description of what occurred on that day in October 2014; that description included choking and threats of death.

[35] None of this was denied by the father.

[36] Furthermore, the Form 35.1 affidavit reveals a pattern of abusive and assaultive behaviour by the father toward the mother – apart from the incident in October 2014 - including threats, actual bodily harm and yelling at the child in the heat of anger.

[37] None of this was denied by the father.

[38] Father argues that mother should be required to reach out to him and to seek his permission each time she wishes to obtain government documents for the child, and each time she wishes to travel with the child.

[39] Mother is afraid of the father. In my view, this subjective fear is very understandable. Her fear is well-founded on the objectively ascertainable evidence.

[40] In Fawcett v. Richards, Justice Ricchetti stated at paragraph 68 [my emphasis]:

I am persuaded that the Father's consent for future travel is not necessary given the inability to communicate between the parties. As a result, provided that the Mother advise the Father of the travel outside of Canada at least two weeks in advance and it does not interfere with the Father's access (without his consent), the Father's consent for the travel by Aiden is dispensed with.

[41] In this case, father claims that he has the ability to communicate with mother. I very much doubt that is true.

[42] As I noted earlier, when mother and her counsel attempted to reach out to the father to communicate with him in an effort to resolve the custody and access issues without initiating court proceedings, the father failed to respond.

[43] The father did not see the child after the parties separated in October 2014. He took no steps to initiate a custody or access proceeding.

[44] He claims he did not know the mother's whereabouts and this lack of information was a roadblock in any efforts he might have otherwise made in this regard.

[45] He blames the mother for "hiding" her address and he relies on this assertion to claim that mother is likely to engage in "mischief", specifically, the severing of his relationship with the child.

[46] These assertions are disingenuous, given father's failure to respond to mother's counsel's efforts to negotiate with the father prior to the initiation of court proceedings.

[47] The father was the perpetrator of the acts which led to the parties' separation. Instead of demonstrating sincere remorse he now takes the tack of blaming the victim.

[48] Furthermore, communication is a two-way street. Given the history of this matter it would be unreasonable for the court to impose an obligation on the mother to communicate with the father each time she wished to travel with the child.

[49] It would be unfair to the mother and to the child to require the mother to hire a lawyer and possibly commence legal proceedings each time she wished to travel with the child outside of Canada.

[50] The mother is a person of very modest financial means and she can ill-afford to assume the financial burden of such a process. Money needlessly wasted on such proceedings is money which is not available for the child.

[51] Additionally, the delay involved in any such process would possibly mean the child would lose the opportunity to travel and enjoy the benefits of any particular trip.

[52] The court must be guided by the "Primary Objective" in Rule 2(2) of the Family Law Rules, which states [my emphasis]:

PRIMARY OBJECTIVE

(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).

DEALING WITH CASES JUSTLY

(3) Dealing with a case justly includes,

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

(b) saving expense and time;

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

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).

[53] How can it be said that it would be "just", that it would save "expense and time" and that the court would be allocating resources appropriately if the court were to make an order – the order which father is seeking - which virtually guaranteed that the parties would be back in court in a few months' time on a motion to travel to Vietnam?

[54] The mother's family lives in Vietnam. The mother's brother will be married in Vietnam, likely in the summer of 2017. When this occurs, the child will be 11 years old. The child would likely enjoy and benefit from such a trip and the opportunity to spend time with her maternal family.

[55] The father's argument does not persuade the court that the mother would more likely than not abscond with the child if the mother were given the right to travel without his consent.

[56] In my view, the father's actions, including his violent behaviour toward the mother, indicate to the court that he wishes to control the mother and to impose limits on her life.

[57] For all of the foregoing, the court concludes:

1. Both the mother and the child are strongly connected to Canada and, in particular, Toronto.

2. The mother has no intention of removing the child from Canada in order to sever the relationship between the father and the child.

3. It would be unreasonable and contrary to the child's best interests to require the mother to attempt to negotiate with the father each time she wished to travel outside Canada with the child.

Conclusion

[58] In the result, the court makes the following order on a final basis:

1. The mother shall be at liberty to apply for and obtain the child's passport and all other government-related documents pertaining to the child, without the father's consent.

2. The mother shall be at liberty to travel outside Canada with the child, for the purposes of vacation, without the father's consent.

3. The mother shall provide the father with 14 days' notice of any intended travel outside of Canada with the child, for travel duration of longer than 4 days. The notice shall include a copy of the return transit documents and an emergency contact number for the mother while she is outside of Canada. If the mother is travelling by automobile or other non-commercial transit, she shall provide the details of where she and the child will be travelling and the date she and the child will be returning to Toronto.

4. For travel outside of Canada of a duration not exceeding 4 days, the mother shall provide 7 days' notice to the father, which notice shall include the dates of leaving and returning to Toronto, and the travel destination, as well as an emergency contact number.

5. To facilitate any notices that will be given by the mother to the father, the father shall forthwith convey to the mother, through their respective solicitors, the father's email address where he can be contacted. In the event the father changes his email address, he shall ensure that his new email address is conveyed to the mother. Any notice given by the mother to the father's email address shall be deemed to be adequate notice as required by this order.

6. In the event that the travel with the child causes the child to miss more than one scheduled access period with the father, the mother shall agree to reasonable makeup access following the child's return from travel.

[59] If the parents are unable to agree on reasonable makeup access I may be spoken to. However I caution both parents to be reasonable insofar as makeup access is concerned as there may be cost consequences if a court attendance is required and if I determine that either parent acted unreasonably in negotiating this issue.

[60] In the negotiation of this issue, the parties shall consider that it is not necessarily reasonable to simply translate every day, or every hour of missed access into an equivalent day, or equivalent hour, of makeup access. Further, if the makeup access is to be significant, it should occur over a reasonably extended period of time, rather than in a concentrated period immediately following the child's return to Canada.

[61] In the event the mother seeks her costs of this motion, she shall make submissions in writing, not to exceed two pages in length, exclusive of any bill of costs or supporting documents, submissions to be made within 21 days following the release of these reasons. Father's responding submissions, also not to exceed two pages in length, to be filed within 15 days thereafter.

Justice Robert J. Spence August 31, 2016

[1] Notwithstanding father's adamant refusal to consent to any travel whatsoever to a non-Hague country, which includes Vietnam