Court File and Parties
COURT FILE NO.: FC-16-665 DATE: 2016/05/02 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Adeline Hoi-Ming Ng, Applicant AND Kevin James Charles, Respondent
BEFORE: Shelston J.
COUNSEL: Tania Pompilio, counsel for the Applicant Lauren McMurtry for Linsey Sherman, counsel for the Respondent
HEARD: April 26, 2016 (at Ottawa)
Endorsement
Overview
[1] The parties are the parents of Beatrix Sophia Charles (“the child”), born October 25, 2012.
[2] The applicant (“mother”) commenced proceedings on March 29, 2016 seeking sole custody of the child; an order that the child reside in the primary care of the mother with delineated access to the respondent (“father”); an order permitting the mother to move to St. Louis, Missouri with the child; child support; an order requiring the respondent to obtain and maintain a policy of life insurance to secure his child support obligations and for costs on a substantial indemnity basis.
[3] On April 18, 2016, the father picked up the child from daycare and refused to return the child to the mother. Consequently, the mother sought leave to bring a motion in advance of a case conference on an urgent basis. On April 21, 2016, Master MacLeod granted leave as both parties agreed that the motion was urgent.
[4] The mother seeks the following relief: (a) An order that the child be immediately returned to the mother’s primary care; (b) An order implementing a defined interim parenting schedule for the child with the father to have the child in his care every Wednesday evening after daycare until 7 p.m. as well as every Friday from after daycare overnight until Saturday at 7 p.m.; (c) An order abridging the time for service and filing of these documents; (d) An order for costs on a substantial indemnity scale; (e) Such further order as the honourable Court deems just.
[5] The father also was granted permission by the Master to bring a motion in advance of the case conference on an urgent basis seeking the following relief: (a) An order that the parenting terms of a separation agreement which the parties entered into on November 17, 2015 be enforced as follows: (i) the parties will have shared\joint custody of the child; (ii) the parties will care for the child on alternating weeks, from Friday after school or daycare to Friday to school or daycare, in addition to holiday time. (b) In the alternative to item (i) above, an order that the parties care for the child on an equal time schedule in the child’s best interests. (c) An order that the mother disclose evidence that she sought treatment for her mental health issues. (d) An order preventing the mother from removing the child from the jurisdiction without the father’s consent or in accordance with a court order. (e) An order abridging the time for service and filing of these documents. (f) An order for costs on a substantial indemnity basis. (g) Such further order as this honourable Court deems just.
[6] The motion was argued on April 26, 2016. I reserved my decision. On an interim-interim basis, the parties consented to an order, pending the release of my decision, that the child Beatrix shall alternate residences with the parents every two days starting with the mother on April 27, 2016 after daycare and then with the father on April 29, 2016 after daycare. On weekends the exchange shall take place at 5 p.m.
[7] Further, the parties consented that neither party shall remove the child from the city of Ottawa on an interim-interim basis and the parties shall execute the release forms required to permit the Children’s Aid Society of Ottawa to release the contents of their files.
Issue and Parties’ Position
[8] The issue before me is what custodial regime should be put in place regarding the child.
[9] The mother’s position is that the father has unilaterally taken the child from daycare and has retained the child from her care since April 18, 2016. She argues that she has been the main caregiver of the child since birth and it is not in the best interests of the child to be in the custody of the father. She has sought to set aside the parenting agreement dated November 17, 2015, on the grounds that she signed under duress and that she did not have independent legal advice. Further, she submits that the alternate weekly schedule has never been in place.
[10] The father’s position is that there is a valid binding parenting agreement signed by the parties on November 17, 2015, where the parties agreed to a shared/joint custody of the child and that the child would be cared for on an alternating weekly schedule with the transfer day being Friday. The father’s position is that the mother has attempted to unilaterally vary the terms of the parenting agreement. In addition he alleges that he has concerns about the safety of the child in the care of the mother based on allegations that the mother suffered from mental health issues in May-June 2015, and consequently she is a risk to his child.
Facts
[11] The mother is 38 years of age, holds a PhD in biomedical toxicology, and is employed with Health Canada earning $107,000 per year as a drug assessment officer.
[12] The father is a geophysicist who works for Sanders Geophysics Ltd. and earns approximately $85,000 per year. He is required to travel for work.
[13] The parties disagree on how long they dated, whether it was continuous or intermittent, and when they lived together.
[14] Their only child was born on October 23, 2012. The mother says that the father resided with her from October 2012 to July 2013. She alleges that from July 2013 to March 2015 she and the child lived in Toronto. She was able to secure full-time childcare in Toronto and the father would attend two to three weekends per month to visit the child in Toronto.
[15] The mother started a new relationship with Mr. Simon Tang in May 2014. They married on July 10, 2015. Mr. Tang resides in St. Louis, Missouri where he is an Assistant Professor at Washington University, School of Medicine.
[16] In March 2015, the mother’s studies were nearing completion and she was given notice to vacate student housing. She had no other option for care for the child in Toronto and consequently she agreed to send the child to live with the father in Ottawa for four months until June 2015. While the child was in Ottawa, the mother travelled frequently to Ottawa including three extended visits ranging from three to eight days as well as approximately a week of the child living in Toronto with the mother.
[17] In early July 2015, the mother returned to her former employment at Health Canada. She moved to Ottawa on June 30, 2015, but was unable to find suitable accommodation for herself and the child. The mother moved in with the father. On January 22, 2016, she bought her own residence near the father in Ottawa.
[18] In November 2015, the parties signed a parenting agreement. Pursuant to that agreement the parties agreed to have shared/joint custody of the child and that the child would reside equally with the mother and the father on alternate weeks from Friday to Friday and the parties agreed on a very specific holiday schedule.
[19] The parenting agreement is very detailed as to the parties’ rights with respect to the child. Further, the agreement deals with child support, a release of spousal support, provisions for medical and dental coverage and life insurance. The agreement was prepared by a lawyer on the behalf of the father. The mother was afforded the opportunity to obtain independent legal advice but signed a waiver dated November 17, 2015.
[20] In her application dated March 29, 2016, the mother alleges that the parenting agreement was signed under duress and that she signed the agreement without independent legal advice and without understanding the implications of the document as signed.
[21] The father’s position is that the parenting agreement is valid and in his notice of motion he is seeking an order enforcing the terms of the parenting agreement such that the parties have the child in a joint custody arrangement with the child alternating residences every Friday after school or daycare.
[22] In December 2015, the mother learned that she was pregnant with Mr. Tang’s child with the due date of August 18, 2016. The mother seeks to move to St. Louis, Missouri as part of the relief claimed in her application.
Events leading up to April 18, 2016
[23] On January 22, 2016, the mother bought a new residence in Ottawa. She continued to transition from the father’s residence to her new residence.
[24] From January 22, 2016 to February 22, 2016 when the father left for a field assignment in the Yukon, the parties differ as to what were the child care arrangements during this one month. The mother alleges that when she moved into her new home, the child only spent a couple of overnights at the father’s home by herself. Even in those instances, the mother alleges that the child was very upset. The father alleges that the child remained in his care for two weeks at the end of January and the beginning of February.
[25] The father admits that in the two weeks before he left for the Yukon, he did not have the child because the mother refused to allow the child a sleepover at his house. She also told him that she had no intention of implementing the parenting plan.
[26] As a result of the child’s alleged reaction to spending time with the father, the mother concluded the joint time-sharing schedule is not in her best interests and gave instructions to her counsel to commence proceedings. While the father was in the Yukon, the mother commenced proceedings. A copy of the proceedings was emailed to the father by the mother’s counsel on March 29, 2016.
[27] On April 11, 2016, the father returned from the Yukon. Between April 14, 2016 and April 18, 2016, a series of correspondence was exchange between counsel regarding the child.
[28] By letter dated Thursday, April 14, 2016, the mother’s counsel proposed that the father’s access to the child would be every Wednesday evening from after daycare until 7 p.m. as well as alternate weekends from Saturday morning at 10 a.m. overnight until Sunday evening at 7 p.m.
[29] By letter dated Thursday, April 14, 2016, counsel for the father replied and insisted upon the implementation of the parenting agreement until varied by agreement or court order. On that basis, the father proposed to pick up the child after daycare on April 15 for the child could spend a weekend with him.
[30] By letter dated Friday, April 15, 2016, counsel for the father proposed, on a without prejudice basis, a schedule for the upcoming weekend so that the father would have the child from Friday after daycare to 8 p.m. and Saturday from 1 p.m. to daycare Monday morning.
[31] By letter dated Friday, April 15, 2016, counsel for the mother, proposed a schedule for the father and the child from Friday at 4 p.m. until 7 p.m. and Saturday from 10 a.m. overnight until Sunday at 7 p.m. This offer was accepted by counsel for the father by letter dated April 15, 2016 on a without prejudice basis.
April 18, 2016 and allegations of mental health issues with mother
[32] On Monday, April 18, 2016, counsel for the father wrote to the mother’s counsel a letter where she stated the following:
I am enclosing a series of exchanges between Ms. Ng’s sister, Hidy, and Ms. Ng’s current partner, Simon Chang (sic), which were provided to Mr. Charles by Ms. Ng’s sister. The contents of these messages are alarming. They raise serious concerns about Ms. Ng’s mental health, and disclose references of harm toward Beatrix and self-harm.
These messages raise protection issues, which need to be brought to the attention the Children’s Aid Society. I am writing to advise that Mr. Charles has picked up Beatrix at daycare today and is available to care for her this week which, in any event, is consistent with the parties’ parenting agreement.
[33] The same day on Monday, April 18, 2016, counsel for the mother insisted that the child be returned to the mother’s care failing which an emergency motion would be brought. The child was not returned to the mother’s care and both parties brought motions seeking leave to have the motions in advance of a case conference.
[34] In the letter dated April 18, 2016 the father raises, for the first time, the issue of the mother’s mental health. The father alleges at paragraph 8 of his affidavit dated April 21, 2016 the following:
... I had also become increasingly concerned about the Applicant’s judgment and ability to make decisions for Beatrix. I was only concerned because Hidy had recently provided me with copies of correspondence between her and the Applicant’s new husband, Simon Tang, in which the Applicant enters into dissociative states and becomes another person, “Alice”, and discusses self-harm. While the correspondence dates from the summer of 2015, shortly after the Applicant had terminated a pregnancy, the context of the exchanges makes it clear that the Applicant’s health issues pre-date the termination of her pregnancy and are exacerbated by stress. In one message, Adeline tells Simon that “Alice” surfaced approximately 10 years ago.
[35] The mother’s sister Hidy Ng has filed an affidavit where at paragraph 11 she makes the following statement:
- I recently provided Kevin with a copy of the WhatsApp messages that Simon and I exchanged between May and June 2015. I had not provided these messages to Kevin previously because I was scared and unsure what to do. However, when I learned that Adeline was taking the step of trying to limit Kevin’s time with Beatrix and move to the United States, I became extremely concerned for Beatrix’s well-being, and decided that I could not and should not keep this information to myself.
[36] The mother’s husband, Simon Tang, also has filed an affidavit in these proceedings where he indicates he has reviewed the transcript of the messages carefully and he alleges that the transcripts have been altered. He identifies that the transcript includes emotional remarks and exclamation marks allegedly made by him. His evidence is that he rarely uses such remarks or exclamation marks. Further, he indicates that he usually has typos in his messages and that the transcript provided has very few typos. Finally, he indicates that messages that are attributed to him, according to his recollection, were made by Hidy Ng. The allegations are denied by Hidy Ng.
[37] Despite issues regarding the authenticity of the messages, Mr. Tang admits that the mother and he had an unplanned pregnancy in early 2015 which the mother chose to terminate. Both the mother and Mr. Tang confirmed that the termination of the pregnancy was very traumatic on the mother. The mother made comments and appeared to have mood swings which were uncharacteristic for her. Mr. Tang was concerned that she was suffering from postpartum depression.
[38] Mr. Tang alleges that it was Hidy Ng who made comments about the mother having a split personality. The mother herself admits that she experienced symptoms of postpartum depression which were confirmed by her obstetrician.
[39] The mother has obtained affidavit evidence from her manager at Health Canada, a work colleague, her father and her husband all confirming that she does not suffer from any mental health issues. She has further provided letters from a Master’s supervisor at the University of Toronto, the lab manager at Mount Sinai Hospital and a fellow PhD student all confirming that they have not seen any sign of mental illness in the mother.
[40] The father has filed affidavits from himself, Hidy Ng and various family members including his father, step father, aunt and his brother. The only affidavits that deal with the mother’s alleged mental illness are the affidavits of the father and Hidy Ng.
Analysis
[41] The issue of what final custodial arrangement is appropriate as well as the mother’s request to move to St. Louis will be dealt with at a later date. The issue before me is what order should I make until this matter can proceed through the court system.
[42] From a review of the evidence, it is clear that these parties have relied on each other to care for this child since her birth. It is not disputed that the father travelled to Toronto and lived with the mother and the child after the child was born. Further, the mother admits that the father had the primary care of the child from March to June 2015 and that from July 2015 until early February 2016 the child resided with the father in his home with the mother.
[43] Save and except the issue of the allegation of the mother’s mental health, neither party has raised any issue regarding the other parent’s ability to parent.
[44] The real issue at this stage is whether or not the father has met the civil burden of proof that on a balance of probabilities the mother suffers from mental illness that would put the child at risk.
[45] In my view, when the father became aware of the allegations regarding the mother’s mental health is very important. In both the affidavit of the father and the affidavit of Hidy Ng, they use the term “recently”. The father’s affidavit is dated April 21 and Ms. Ng’s affidavit is dated April 20. Counsel for the father admitted that the father became aware of the allegations on April 3, 2016.
[46] What concerns me is that when the father came back from the Yukon on April 11, there is no mention of these allegations in the correspondence exchanged between counsel on April 14 or on 15th. Even though the father was served with the materials by email on March 29, 2016, it was only after the father was served with the original court documents on April 15, 2016, that he decided to act.
[47] Further, the affidavit of Hidy Ng indicates that she decided to advise the father of the allegations only after she learned that the mother was trying to limit the father’s time with the child and moved to the United States. I question is whether she would have made the disclosure if the mother had not planned to move the United States. Also, if the issue was so serious, why did she wait almost a year to make the disclosure?
[48] From my review of the evidence, if the father was truly concerned about his daughter being in the care of the mother due to her mental health after April 3, 2016, he took no action until after being served formally with the court proceedings on April 15, 2016. Further, there is no mention in the correspondence between counsel of any such allegations. Thirdly, the father exercised a self-help remedy by removing the child from daycare and retaining her in his care.
[49] While I appreciate that the father’s position is that the parties have a valid parenting agreement, I do not condone his unilateral action of retaining the child. If he was truly concerned about the best interests of his daughter, he could have brought a motion for leave in advance of a case conference which is exactly what the mother did on April 21, 2016.
[50] At this point in the litigation, the burden of proof is on the father and I find that he has not met the burden of proving that, on a balance of probabilities, the mother currently suffers from mental health that puts the child at risk.
[51] I was also advised that the Children’s Aid Society has been advised and they are conducting an inquiry but as of April 26, 2016, no action had been taken.
[52] The next step is to determine what plan is in the best interests of the child. I am not in a position to determine the validity of the parenting agreement. The issue of whether the mother was under duress and whether she did not understand the consequences of signing the parenting agreement will be left for the trial judge. However, the mother does have a PhD and signed an agreement in November 2015 that acknowledged an equal sharing of the time of the child. The language of the custody provisions of the parenting agreement are in plain English and clear as to their intention.
[53] The Court of Appeal has held when faced with a separation agreement that provides a custodial regime, that it is the best interests of the child that is the paramount consideration and not the interests of the parents as set out in Ligate v. Richardson (1997), 34 O.R. (3d) 424, 1997 CarswellOnt 2185.
[54] In this case, I have a parenting agreement signed by the parties in November 2015. One party wants to enforce it and one party alleges it was signed under duress and that she did not understand its implications. In addition, I cannot determine, at this stage of the proceedings, who was the primary parent from July 2015 to February 2016 as the evidence is contradictory.
[55] From early February to April 18, 2016, the child resided primarily with the mother. The father does not deny this fact but states that during the two-week period before he left, the mother refused to allow the child to go to the father’s home and from February 22, 2016 to April 11, 2016, the father was in the Yukon for work.
[56] The evidence is contradictory as to how the child is coping being in the father’s care since April 18, 2016.
[57] These motions seek an interim-interim order that is made at a very early stage of the litigation. The parties will proceed to a case conference, possibly questioning and then a motion for temporary relief to last until trial.
[58] I find that based on the significant involvement of each parent in this child’s life, the lack of any concern about either party’s parenting of the child; the proximity of the parties residences, I find that it is in the child’s best interests to have equal time with both parents on an interim-interim basis.
[59] I find that on an interim-interim basis the child will reside with one parent on Monday or Tuesday, the other parent on Wednesday and Thursday and that the parties alternate weekends from Friday to Monday morning to daycare.
[60] The parties have the first court date on May 18, 2016. The parties can deal with disclosure issues that they have requested in their various proceedings at that time. The father has requested an order that the mother disclose evidence that she sought treatment for her mental health issues. That request can be dealt with at the case conference.
Disposition
[61] I order the following: (a) On an interim-interim basis, the parties shall have joint custody of the child Beatrix. (b) On an interim-interim basis, the parties will have a two-two-three schedule with the child. Commencing May 1, 2016, the Mother will have the child every Sunday at 7 p.m. until daycare Wednesday morning, the father every Wednesday after daycare until daycare on Friday morning and the parties will alternate weekends starting Friday after daycare to Sunday at 7 p.m. with the father having the child the weekend of Friday May 6, 2016. (c) The parties shall set an expedited case conference to be heard before May 18, 2016. (d) The Office of the Children’s Lawyer (“OCL”) is appointed with a recommendation for a social worker appointed. The parties to complete and fax the intake forms to the OCL by May 6, 2016.
Costs
[62] The applicant shall provide her submissions on costs not to exceed three pages plus her bill of costs and any offer to settle no later than May 13, 2016. The respondent will file his submissions on costs not to exceed three pages plus his bill of costs and any offer to settle no later than May 20, 2016. The applicant shall have the right to file reply submissions by May 25, 2016.
Shelston J. Released: May 2, 2016
ONTARIO SUPERIOR COURT OF JUSTICE RE: ADELINE HOI-MING NG, Applicant AND KEVIN JAMES CHARLES, Respondent BEFORE: Shelston J. COUNSEL: Tania Pompilio, counsel for the Applicant Lauren McMurtry for Linsey Sherman, counsel for the Respondent ENDORSEMENT Shelston J.
