COURT FILE NO.: FS-17-415935 DATE: 20180911 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Vem Miller Yenovkian AND: Sonia Helen Gulian
BEFORE: J.T. Akbarali J.
COUNSEL: Carol Shirtliff-Hinds for the Applicant Esther Lenkinski for the Respondent
HEARD: September 4, 2018
Endorsement
Overview
1The parties to this litigation are spouses who separated in October 2016. They have two children: S, who is 11 years old and has been diagnosed with an unspecified neurodevelopment disorder, and V, who is 7 years old.
2Each party brought a motion before me. The respondent wife’s notice of motion sought a summary judgment granting her the right to relocate with the children to England permanently, or alternatively, an interim order to that same effect. She also sought an order for child and spousal support based on imputing income to the husband of $250,000, and an order for security for costs. The applicant husband sought an order for temporary sole custody and a s. 30 assessment [1].
3At the outset of the motion on September 5, 2018, the husband brought a motion arguing that I should recuse myself for bias, because I had heard an urgent motion in this matter on June 26, 2018, in which I granted temporary, without prejudice custody to the wife, after the husband overheld the children after an access visit and refused to disclose their location. I denied the recusal motion for oral reasons given at the hearing. However, the effect of the bias motion, coupled with the parties having additional evidence for me to review that had not been filed in advance of the motion, delayed the start of what was booked as a half day motion to midday. It became apparent that even devoting the entire day to the matter, there was not sufficient time to address all the issues raised in the parties’ motions. On consent of the parties, the motion proceeded with respect to the following issues only:
a. the wife’s motion for a permanent or interim order allowing her to return to England with the children; b. the husband’s motion for temporary sole custody; c. the husband’s motion for a s. 30 assessment; and d. the husband’s request for unsupervised access if his motion for temporary sole custody was not successful.
4Following the hearing of the motion, I wrote to the parties to seek further submissions on whether the Office of the Children’s Lawyer should be asked to prepare a Voices of the Child report, and what measures or security were available to ensure the wife would return the children to Ontario if an interim order were granted allowing her to return with the children to England pending trial of the custody, access and mobility issues. Due to scheduling conflicts, and in view of the urgency of the issues, the parties and I participated in a telephone conference on September 7, 2018 during which oral submissions on these issues were made. Before the telephone conference, the parties filed further affidavit evidence on these issues, and on issues relevant to the motion, on consent.
5These reasons deal only with the issues listed above. The balance of the relief sought is adjourned, to be rescheduled by counsel once they have agreed upon a timetable to address outstanding disclosure issues and any other filings required to complete the evidentiary record. If I am available, I will hear the balance of the motion, but I am not seized.
Conclusion
6I have determined that it is the best interests of the children that the wife shall continue to have interim sole custody of the children and may, subject to the conditions I describe below, return with them to England until the start of the trial of the custody, access and mobility issues, which should proceed on an expedited basis. I have determined that the husband shall be entitled to reasonable access to the children, which shall continue to be supervised by an independent supervisor, paid for by the husband. I have determined that the parties shall equally share the costs of a Voices of the Child report prepared by Andrea Himel. I dismiss the husband’s motion for temporary sole custody and a s. 30 assessment. I also dismiss the wife’s motion for summary judgment on the custody and mobility issues.
Background
7The parties married on October 29, 2000 and separated on September 19, 2016. The husband is a Canadian and American citizen. His parents live in Toronto. The wife is a citizen of the United Kingdom. Her parents live in London, England.
8During their marriage the parties lived in Los Angeles where the husband worked or works as a television producer. The wife alleges he also works as a marijuana distributor. The husband has not been specific about the nature of his work in his evidence.
9The parties have children who are Canadian citizens. S was born in 2007 and V in 2011. The children were at school or homeschooled in Los Angeles in 2011-2012, in London in 2013 and in Toronto in 2014. In 2015, the family returned to Los Angeles for three months, and then returned again to Toronto until October 2016, when the wife took the children to England.
10When the parties came to Toronto in 2014, they bought a house in Toronto. Despite having a home here and the children attending school here, the husband continued to travel to Los Angeles for work, and would spend significant periods of time there, up to three months of each year. The wife returned often to England with the children, in part because she had no legal status in Canada beyond that of visitor, and had to avoid overstaying the permitted six months.
11The wife continues to have no status in Canada beyond that of visitor. Her most recent entry to the country was on June 18 2018, so her visitor’s status will expire in December 2018 unless it is extended. Each party blames the other for the fact that she has not secured any kind of legal status in Canada.
12The wife states that after the parties separated, she decided to take the children home to England for a visit, and purchased return airline tickets, intending to be gone for two weeks. The wife states that the husband always knew where the children were because she emailed his parents on arriving in England. She also states that she left Ontario with the children on October 16, 2016 because of the husband’s long standing physical and emotional abuse of her and the children, and her fear that the husband’s emotional stability was crumbling. She decided to stay in England because she was concerned for her and the children’s safety and points to some troubling emails and text messages that the husband sent her and her parents after the parties separated. He used phrases like “Hail Satan”, made statements threatening to harm himself, and appeared on one occasion to threaten the wife’s mother by suggesting he would “feel rejected and …try to hurt [her]”. It is not clear if he meant hurt her physically or emotionally.
13The husband commenced proceedings in England under the Hague Convention. Unhappily, these proceedings took some 21 months to conclude. The English court was critical of the wife for delaying the litigation. Eventually, the court determined that the children should be returned to Ontario and decision-making for the family should pass to this court. After an unsuccessful appeal of that decision, the wife returned with the children to Ontario on June 18, 2018.
14During the time the children were in England, the husband was never permitted unsupervised access to the children. Pursuant to the order of the English court, all access was supervised. In most cases, it was supervised by the husband’s parents. On one occasion it was supervised by an independent social worker. The social worker’s notes indicate erratic and unacceptable behaviour on the part of the husband such that the social worker nearly terminated the visit. However, after speaking to his lawyer, the husband calmed down and the access visit continued. The husband states that the independent social worker’s report is not reliable and that she was trying to protect her own failings in the supervisor role by blaming him for the problems in the visit. I do not find this explanation credible, and prefer the independent social worker’s notes documenting the events of the visit over the husband’s self-serving denial.
15Before the wife’s return to Ontario, the parties entered into a consent mirror order, signed by Stewart J. on June 8, 2018, which mirrored an English order in the Hague proceedings. Among other things, it provided that, if the wife permitted the husband to have contact with the children prior to the first hearing in this court, the husband “shall comply with any conditions that be agreed in that regard…”
16On June 24, 2018, after the wife’s return to Ontario with the children, the husband had access to them pursuant to terms agreed upon that included that access would be supervised by his parents, and that he would return the children on June 25, 2018. However, he did not do so. With the apparent support of his parents, he overheld the children, prompting the wife’s emergency motion that I heard on June 26, 2018. At that time, the husband alleged that S had disclosed that she had been hit by the wife and the wife’s mother (S’s maternal grandmother). The husband advised that he had called the Children’s Aid Society. He refused to disclose the children’s whereabouts.
17The allegation of abuse that the husband made before me in June 2018 followed 13 separate allegations made to various authorities – child protection, police and school – in the United Kingdom, none of which had ever been substantiated. His own evidence filed on that motion suggested that these allegations of abuse pre-dated the parties’ separation and that after S had made these allegations while the parties were married, the husband continued to leave S in the wife’s care for months at a time while he worked in Los Angeles.
18I ordered that the husband return the children to the wife, and granted her temporary, without prejudice sole custody which was, in my view, necessary to invoke the provisions of s. 36 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, providing for police assistance in returning the children. Since the husband’s parents had participated in the overholding of the children, I determined that future access visits had to be supervised by Brayden or another agency offering supervision services to which the parties agreed. I granted the husband access on a specified schedule, which regularized as of August 3, 2018 to Fridays at noon until Mondays at 4 pm. I ordered that the husband pay $16,167.19 in costs for the motion. I also ordered that the husband’s then-counsel continue to hold his Canadian passport during access visits, which condition has been complied with, and also that the husband, as soon as practicable, deposit his American passport with his counsel during access visits, which has not been done.
19The parties had a case conference on July 9, 2018, the endorsement from which attached a consent which included provisions for a single payment of support in the amount of $5,795 [2], marking the first support payment from the husband since the parties’ separation, and for a lump sum payment of $1,395.80 in respect of airfare. However, although the amount for airfare was paid, the wife’s evidence is that the support remains unpaid. The husband states he wrote a cheque which was returned to him, but I have no evidence of this cheque and the wife denies that she returned any cheque. In addition, the costs I ordered remain unpaid, as does a $1000 costs award in favour of the wife that comprises part of the July 9, 2018 case conference endorsement.
20A consent entered into at an earlier case conference on June 8, 2018 required the husband to provide a copy of his American passport, but he has not provided it. This disclosure is important, because the husband’s residence is uncertain. In his affidavit sworn on June 28, 2018, he deposes that he “now” lives in Los Angeles. That he lived in Los Angeles was never disclosed to the court in the Hague proceedings. Moreover, in his affidavit sworn on August 29, 2018, he deposes that he lives permanently in Toronto. He does not say when he moved, or where in Toronto he lives. I will return to the topic of the husband’s residence below. At this point it is sufficient to note that, contrary to my order, he has not deposited his American passport with counsel during access visits, which the wife has allowed to proceed nonetheless, and he has not complied with the consent order requiring him to disclose a copy of his American passport.
21At this time, much financial disclosure also remains outstanding. There have been no cross-examinations on affidavits filed or any questioning. In their evidence filed on this motion the parties make serious allegations against each other. The husband alleges the wife is addicted to alcohol, has driven while impaired, and abuses S. The wife alleges that the husband is addicted to drugs, abused her and the children, physically and emotionally, throughout the marriage, and continues to abuse S, by questioning her repeatedly and videotaping her to try to secure evidence to bolster his case for custody. There is evidence, which I accepted in my earlier reasons in June 2018 and which is not denied, that the husband has videotaped the children for the purposes of obtaining evidence of abuse.
22There is also evidence in the form of the reports of the access supervisor that the husband has a loving relationship with S and V and, apart from the concern the wife raises with respect to the husband’s inappropriate questioning of the children, speaks to the children appropriately.
23Since June 2018, the husband has made two further complaints of abuse to the Children’s Aid Society. The record indicates these files have been closed. Most recently, the independent access supervisor referred the family to the CAS after a disclosure S made during a supervised access visit over Labour Day weekend. The CAS has confirmed it will not be taking any steps in regards to this latest referral.
Custody and Mobility Issues
24As I have noted, the husband is seeking a change in interim custody arrangements, in that he seeks an order granting him temporary sole custody of the children pending trial. The wife is seeking an order allowing her to return to England with the children, on a permanent or interim basis.
25In my view, the record does not allow me to reach conclusions on the question of mobility on a permanent basis. Rather, the permanent resolution of whether the children should return to England requires a trial with viva voce evidence and is an issue that is bound up with the final determination of the custody and access issues. Each party makes serious allegations against the other which are relevant to each party’s ability to parent. Each party has wrongly withheld the children from the other. While the children have primarily been in the care of the wife, the access supervisor’s notes record a loving relationship between the husband and the children. An assessment of the children’s best interests requires a fuller examination of the children’s circumstances with oral evidence and cross-examinations.
26Moreover, there are gaps in the evidentiary record which impede my ability to reach a conclusion on the mobility issue on a final basis. As will become apparent in my discussion of the interim mobility order sought by the wife, and the temporary custody order sought by the husband, there are significant questions as to the husband’s plan for the children were they to remain in Canada. While it is his obligation on a summary judgment motion to put his best foot forward, I am not prepared to rely on his failure to do so to make a permanent order returning the children to England, when I have serious questions as to what the children’s long-term best interests require in terms of custody, access and mobility. In addition, the children’s views are relevant; I address these below, in my discussion of the s. 30 assessment and the Voices of the Child report.
27The record that exists does not allow me to reach a fair and just determination on the merits because the process does not allow me to make the necessary findings of fact and apply the law to the facts. Summary judgment would not, in this case, be a proportionate, more expeditious and less expensive means to achieve a just result because I am not confident that a summary result on this motion would be just: Hryniak v. Mauldin, 2014 SCC 7 at para. 49. Thus, the question that remains before me is whether the wife should be permitted to return with the children to England pending the trial of the custody, access and mobility issues, and whether the temporary custody arrangements for the children should be disturbed at this time to shift custody to the husband. Because these issues are intertwined, I address them together.
28The husband argues the wife should not be allowed to return with the children to England. He states that the children should not be deprived of a relationship with him by living in England. He states the children can have their educational needs accommodated in Ontario. He states that if the wife returns with the children to England there is no guarantee she will return to Ontario with the children for trial, and having been through an exhaustive Hague proceeding in England, he should not be forced to repeat that process if she fails to return. He seeks temporary sole custody of the children because he states the wife puts her own needs before the children’s needs, and he alleges that the wife and her mother, S’s maternal grandmother, abuse S.
29The legal framework within which a request for custody, whether temporary or permanent, should be made is set out in ss. 72 and 24 of the Children’s Law Reform Act, and/or s. 16 of the Divorce Act. Section 24 of the Children’s Law Reform Act provides, in part:
Merits of application for custody or access
24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or (b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2).
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse; (b) a parent of the child to whom the application relates; (c) a member of the person’s household; or (d) any child. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2, 3).
30Section 16(2) of the Divorce Act also allows for a temporary order where a claim for custody has been made. Section 16(8) provides that in making an order under that section, the court shall take into consideration only the best interests of the child, determined by reference to the conditions, means, needs, and other circumstances of the child.
31The legal framework within which a temporary mobility order should be considered was summarized recently by Engelking J. in C.C. v. J.B., 2018, Ottawa FC-18-1002, (S.C.J.) as follows:
54The leading case on mobility issues remains Gordon v. Goertz. In paragraph 49 of the case, McLachlin J., as she then was, writing for the majority stated:
The law is summarized as follows:
The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change of circumstances affecting the child.
If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and ability of the respective parents to satisfy them.
This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.
The focus is on the best interests of the child, not the interests and rights of the parents.
More particularly, the judge should consider, inter alia: a. The existing custody arrangement and relationship between the child and the custodial parent; b. The existing access arrangement and the relationship between the child and the access parent; c. The desirability of maximizing contact between the child and both parents; d. The views of the child; e. The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; f. Disruption to the child of a change in custody; g. Disruption to the child consequent on the removal from family, schools, and the community he or she has come to know.
55Marshman J. stated in Plumley v. Plumley at paragraph 7 that the important factors in deciding a mobility issue on an interim basis are:
- A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
- There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interest of the children might dictate that they commence school at a new location.
- Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at trial.
56In Cox v. Darling, Justice Sherr of the Ontario Court of Justice noted that “Courts need to be very cautious in permitting temporary moves in mobility cases because the child-focused inquiry required under Gordon v. Goertz, supra, is very difficult, if not impossible, to accomplish on the conflicting affidavits that one receives in these cases.” Sherr J. stated further in the same paragraph that “courts do not like to create disruptions in the lives of children by making an order that, if later reversed, will result in further disruption.” [cites omitted]
32In my view, the material change required in Gordon v. Goertz is not here a necessary criteria because there is no true status quo in this case, and certainly none reached after consideration by a court of the best interests of the children. The English court ordered the wife to return to Ontario based on its determination that Ontario was the appropriate jurisdiction in which to determine the child-related issues, not because it found that it was in the best interests of the children to be in Ontario. My order of June 26, 2018 granted temporary without prejudice custody to the wife in aid of seeking the assistance of the police to secure the children’s return, not because a determination had been made in respect of the best interests of the children. In this sense, the relief sought in these motions are better considered orders of first instance, not a variation requiring a material change.
33However, if a material change were required in order to grant a temporary order allowing the wife to return to England, I would find that requirement satisfied by the material changes in the children’s accommodation, and educational and medical situation since their return to Ontario, as I describe more fully below.
34It is my view that the children’s best interests – right now, pending a full trial – require that the husband’s motion for temporary sole custody of the children be dismissed, and an order issue allowing the wife to return to England with the children pending the trial of the custody, access and mobility issues. I reach these conclusions for the reasons set out below.
The Parties’ Relationship with the Children and Ability to Parent
35The evidence supports the wife’s contention that she has always been the children’s primary caregiver. Although the husband alleges he was their primary caregiver, his evidence is inconsistent in this regard. At different times in his affidavits he states that the parties shared caregiving duties and also that his parents were the primary caregivers. His evidence also indicates he left the children in Toronto in the care of the wife for lengthy periods of time – as much as three months per year – while he worked in Los Angeles.
36The evidence suggests that the children are happy living with the wife and the maternal grandparents. The evidence also discloses that the children have a loving relationship with the husband. Each party, however, has concerns about the other’s ability to parent. The husband makes allegations that the wife and the wife’s mother abuse S. The wife alleges that the husband abuses the children, physically and emotionally.
37I do not accept the husband’s allegations of abusive behaviour on the part of the wife or her mother. Fifteen separate investigations have been spawned by the husband’s complaints in the United Kingdom and in Ontario, plus one referral to the CAS made by the access supervisor in Ontario. The wife deposes that police came to her parents’ home in England twelve times, and spoke with the children on those visits – a level of police involvement that, in my view, is detrimental to the children. All of these investigations have been closed.
38The husband points to the recent disclosure over the Labour Day weekend, wherein S wrote a note indicating that the wife and the wife’s mother shout at and slap her. The access supervisor’s notes record that S claimed to be relating an incident that occurred in London and which can thus be understood to be a disclosure that has already been investigated. In any event, the CAS has confirmed it is taking no steps in relation to this disclosure, which was referred to it by the access supervisor.
39The husband states that S has no sense of safety around the wife and the maternal grandmother and that is the reason for the repeated disclosures. In my view, it is equally possible that the husband’s obsession with his belief, never substantiated, that S has been abused, is front and centre in his relationship with S, leading to his questioning her in a manner that upsets her. This possibility is also supported by the access supervisor’s notes. The husband’s repeated questioning and videotaping of the children is behaviour that the wife states is abusive. It is clear that the conflict between the parties, around this issue and generally, is creating significant difficulty for S.
40I am particularly concerned about the increase in S’s troubling behaviours. S’s school reports from England disclose a gradual improvement in some troubling behaviours over the past two school terms. In particular, they note that S used to engage in anxiety-related behaviours including pacing around the playground which were not observed more recently by school officials. However, the most recent supervision notes from the husband’s visits in Ontario disclose S displaying anxious behaviour, including pacing. The current situation is stressful for the children and it is untenable.
41While I make no finding one way or another as to whether S has been shouted at or slapped, or whether if she has, it amounts to ongoing or abusive behaviour, in my view the questions about the abuse of S must also consider the husband’s behaviour in questioning and videotaping S, in addition to the other serious allegations of abuse the parties have made against each other. All of this must be sorted out at trial on a proper record. In the interim, multiple investigations have concluded that S is happy living with the wife and the maternal grandparents and there are no safety concerns sufficient for any authority to keep an open file.
42While the children have a loving relationship with the husband, I note that he has not availed himself of all the access rights which I granted him in my order of June 26, 2018. I accept his evidence that the cost of supervised overnight access is too expensive; however, he has limited his access to four hours a day on weekend days when he could exercise access for greater periods of time during the day. I cannot reconcile the husband’s position that the costs of an access supervisor for longer daytime access are not affordable in view of his position about funding the children’s Ontario education, which I address below.
The Parties’ Plans for the Children
43The wife has an appropriate interim plan for the care of the children. She can return with the children to her parents’ house in London, England, where the children lived for 21 months before returning to Ontario in June. The house is large, with a large garden. The wife has extended family support in England and the children have relationships with their extended family, including cousins.
44While the husband suggests that the wife wants to return to England because she has re-partnered there, I see nothing blameworthy in that desire. The wife’s family, new partner and support systems are in England. She will be happier in England. That, in turn, will benefit the children if they are in her custody.
45The wife states that she has or can have work with her parents’ company in England, while she cannot work in Ontario. Other evidence suggests the wife has not been seriously looking for work in England. While her inability to work in Ontario is problematic for her ability to succeed here in the long term, I do not place much weight on the work available to her in England, given the lack of evidence that she has been working there to date.
46The schooling plan for the children in England is appropriate. I am particularly impressed with the support available to S at the school she has been attending in England to assist her with her academic challenges. S is academically two years behind her classmates of the same age. She has available to her a one on one teaching assistant support in core subjects, as well as funding for computer and other educational tools, and designated teaching assistance until she graduates Grade 12. Moreover, she is being funded for speech and language therapy. All of this support is paid for by the state, but to keep it, S must access it commencing in her first term in England, which began on Sept. 3, 2018.
47In England, the children also have an established relationship with a family physician.
48In contrast, the husband has no workable plan, or at least none made out on the evidence, to meet the children’s needs in Ontario. For example, there is no workable plan for the children’s residence. Currently, the wife and the children are sleeping on blow up mattresses in the wife’s aunt’s basement. The husband has not paid meaningful child or spousal support since separation. He deposes he is currently earning no income. The wife cannot earn income in Ontario as she has no legal status here. There is no plan in evidence to properly house the wife and/or the children in Ontario.
49Towards the end of follow-up telephone submissions that took place after the hearing of the motion, the husband’s lawyer threw out the suggestion that the wife and children could relocate to the parties’ matrimonial home. It was not clear to me that the husband had knowledge of that suggestion. I note that, while he told the English court that the home could be made available for the wife and children, he did not disclose that he had sold the home (a sale which later fell through and which the husband entered into without disclosing that the home was a matrimonial home) and he has not made the house available to them up to this time. There is no evidence before me that the husband agrees to allow the wife and children to occupy the matrimonial home which, in any event, is now again listed for sale [3]. There was no suggestion that the home be taken off the market, thus making this particular housing suggestion, if indeed it was one, precarious and possibly disruptive to the children.
50Moreover, the educational plan the husband advances for the children is not realistic. The husband proposes two options. First, he states the children can attend WillowWood, a private school. Basic tuition is approximately $21,000 per year, but S will need extra supports that are likely to cost an additional $3,500 per year or more. There is some suggestion, but no evidence, that the husband’s parents would pay for the school. With the wife unable to work in Ontario given her lack of immigration status, and the husband not paying support and deposing he has no income, and no evidence that WillowWood can be funded, or even that WillowWood has space for the children, this is not a plan. At best, it is an idea.
51The husband’s alternative education plan is that the children can go to St. Bonaventure Catholic School, which they attended when they lived in Ontario. There is no evidence before me that the children are eligible to attend this school. There is no evidence, for example, that either parent lives in the catchment district for St. Bonaventure. Moreover, the wife’s evidence is that the children are not eligible for publicly funded education in Ontario because she is the custodial parent, and she has no legal status in Ontario. The cost for each child to attend public school in Ontario would be about $12,000 per year, and there is no plan for funding that expense.
52Neither education plan advanced by the husband would provide the one on one support or other educational supports that are publicly funded and available to S in England.
53The wife and children are also not currently entitled to OHIP coverage, and the wife will not become entitled unless her immigration status changes. At the moment, they have no medical providers in Ontario and rely on temporary travel insurance. The parties entered into a consent order under which the husband was to provide information about the medical and dental benefits available to the wife and children, and the cost thereof, by June 15, 2018, but he has not done so. There is no long term plan to manage the children’s medical care in Ontario.
Where can the wife live? Where does the husband live?
54The wife’s legal visitor’s status in Ontario will expire in December 2018 unless it is extended. The husband’s suggestion for managing this lack of status is that he should become the sole custodial parent pending trial. He has no plan for parenting time for the wife should he become the sole custodial parent. In my view, this is not a realistic plan. The husband has had only supervised access to the children since Sept. 2016. The evidence is that S does not respond well to change. The wife has been a constant presence in the children’s lives since birth. It would be disruptive to temporarily change the children’s primary custodial parent before trial, and particularly so for S. If changes are to be made to the children’s arrangements, they should be made once only, after a final determination of the custody, access and mobility issues on a full evidentiary record.
55Moreover, I am not convinced that the husband even lives in Ontario. As I noted, he failed to disclose to the English court in the Hague proceedings that he was living in Los Angeles. In June 2018 he deposed that he “now” lives in Los Angeles, while two months later, his affidavit states he lives permanently in Ontario. However, the more recent affidavit does not describe when he moved, or where he lives in Ontario. The affidavit (read generously) implies that he began to transition to Ontario about three months ago, or a month before he deposed that he “now” lives in Los Angeles in an affidavit that says nothing about any plans or intention to move to Ontario.
56The husband’s evidence around his work is also confusing. He deposes that after the wife took the children to England, he was so distressed that he could not function properly and he lost the contract work he had. However, he also states that he has been “transitioning” his business from one with five employees to one where he is the only worker. It is not clear to me how he managed to pay five employees after he lost the contract work in 2016 until now, when he is “transitioning” his business. Moreover, he never specifically deposes that the business will be in Toronto, but he states that he will be able to focus on his work and his children from one location. His credit card statements suggest he travels between Los Angeles and Toronto on return flights that begin and end in Los Angeles, not Toronto. The statements also show many purchases in Los Angeles. If he is travelling from Los Angeles to see the children, having not disclosed that he lives in Los Angeles to the Hague court, I see no reason why the children should be sleeping on blow up mattresses in a basement, without a proper plan for their education and health care, in case the husband should decide to visit, simply because the trip from Los Angeles to Toronto is shorter for him than the trip from Los Angeles to England.
Disruption to the Children
57This case is unusual because the current situation – the children in Ontario – is not the status quo as understood by the children. They have been living in England for almost two years. Their school and home are in England. If they return to England, their absence from June to September will feel like an extended summer vacation. If, after trial, a determination is made that the children must return permanently to Ontario, either in the custody of the wife or the husband, their circumstances will change once. Alternatively, if the children remain in Ontario, living in precarious circumstances and beginning school here, and at trial it is determined that they may return to England with the wife, their circumstances will change twice. Returning the children to England thus better preserves the status quo as the children understand it.
58I recognize there is some inherent unfairness in this, because the current status quo was engineered by the wife taking the children to England when she was not entitled to do so. The wife should not be rewarded for that behaviour. However, my focus is not on punishing the wife nor on the rights of the husband, who has also engaged in questionable behaviour by overholding the children, videotaping and questioning them, failing to disclose his residence to the Hague court (among other disclosure failings), and by failing to respect court orders, including those entered into on consent. Rather, my singular focus is on the best interests of the children. In my view, the best interests of the children is to minimize the disruption in their lives as much as possible. This is especially necessary for S, who everyone agrees does not cope well with change.
Probable Result at Trial
59In my view, given the wife’s status throughout the children’s lifetime as their primary caregiver, and her lack of any legal status in Canada, there is a strong probability that the wife will be granted a final order for custody of the children and be allowed to remain in England. The husband’s concerns about the wife’s parenting abilities hinge largely on his allegations of abuse, none of which have ever been substantiated despite numerous investigations.
Conclusion on Temporary Mobility and Custody
60Accordingly, I conclude that it is in the children’s best interests for the wife to continue to have temporary sole custody and to return to England with the children until the trial of the custody, access and mobility issues. However, it is necessary that there be some measures in place to ensure that the wife returns the children to Ontario for the trial.
61The wife’s counsel has indicated that, although the wife is impecunious, her father is prepared to post $10,000 as security for her return. I thus order that $10,000 be deposited by the wife with the accountant of the Superior Court of Justice to the credit of this action.
62I also direct that the wife move forthwith to take out a mirror order in England which shall include the following terms:
a. The wife shall return the children to Ontario for the purposes of the trial of the custody, access and mobility issues, or when called upon to do so by the Ontario Superior Court of Justice. b. Should the wife fail to return the children to Ontario for the commencement of the trial of the custody, access, and mobility issues, or when called upon to do so by the Ontario Superior Court of Justice, the husband shall immediately be granted interim sole custody of the children and shall be entitled to attend in England to take custody of the children and return them to Ontario forthwith. c. Should the wife fail to comply with the orders of the Ontario Superior Court of Justice or the mirror order in the English court, she may be subject to contempt proceedings or other penal sanctions as is available in each jurisdiction. d. Save for the purposes of enforcement, the exclusive jurisdiction to deal with all welfare and parent responsibility matters relating to the children is retained in the courts of Ontario.
63Moreover, I direct that the wife not remove the children to England, and her counsel not release the children’s passports (which are currently held in her safe) to the wife until the $10,000 has been deposited with the accountant of the Superior Court of Justice and the wife has commenced taking steps in England to take out the mirror order.
64In addition, as I have already noted, and as I explain below, in these reasons I order that a Voices of the Child report be prepared. I direct that the wife not remove the children from Ontario, and her counsel not release the children’s passports to the wife, until Andrea Himel confirms in writing that she does not require or no longer requires the presence of the children in Ontario to complete the report.
Access
65Since the husband’s motion for temporary custody has been unsuccessful, the husband seeks an order granting him unsupervised access to the children. I am not prepared to make this order.
66Despite my earlier order, the husband has failed to deposit his American passport with his counsel during access visits. He remains fixated on his belief that S is being abused by the wife and/or the wife’s mother. In my view, this fixation has left him unable to grasp how his own behaviour is negatively impacting the children. The most obvious example of this was his decision to overhold the children in June 2018. His repeated questioning and videotaping of the children and his decision to have the wife followed are other examples of the husband engaging in dysfunctional behaviour to the detriment of the wife and children.
67The wife alleges that the husband is a flight risk. I am also concerned that the husband’s singular belief that only he understands the risk that the wife poses to the children may lead him to overhold the children again.
68Since the husband’s parents participated in overholding the children in June 2018, I remain of the view that access between the husband and the children should be supervised by an independent supervisor, the cost of which shall be borne by the husband. I also order that before any access takes place, the husband shall deposit both his Canadian and American passports, and any other passports he may have, in whatever name they have been issued [4], with his counsel or the wife’s counsel during access visits.
69The husband shall be entitled to Skype access three times a week at times agreed upon by the parties, having regard to the time difference, and the children’s and the parties’ schedules, or otherwise as the parties may agree. If the husband travels to England, he shall be entitled to access on the terms described above of up to six hours per day on any day the children are not in school, and once per week after school for up to three hours, or otherwise as the parties may agree.
Section 30 Assessment
70The husband, in his motion, also sought an order for a s. 30 assessment. However, he did not provide the consent of the assessor as required by s. 30(4) in order for me to appoint an assessor. His counsel argues that I can determine that an assessment is required, and the appointment of the particular person can be dealt with afterwards.
71In my view, an appointment under s. 30 requires me to appoint “a person”, and requires that I have evidence as to that person’s consent to make the assessment and report to the court within a period of time specified by the court. The evidence on the husband’s motion is not sufficient for such an order.
72Moreover, considering the length of time that a s. 30 assessment is likely to take, and the urgency with which the custody, access and mobility issues must be determined, I am of the view that a s. 30 assessment is not desirable. Nor do I think it is necessary for the court to determine the issues at trial. Rather, in my view, the viva voce evidence the parties choose to call, coupled with a Voices of the Child report, should provide a sufficient evidentiary basis for the court to make the necessary findings.
73Even if I were to consider an assessment as part of the court’s inherent jurisdiction in a proceeding brought under the Divorce Act, the requirements set out in s. 30 of the Children’s Law Reform Act are relevant, and in my view, equally preclude an order under the Divorce Act.
74The wife has proposed Andrea Himel as an appropriate person to complete a private Voices of the Child report. Ms. Himel’s curriculum vitae is in evidence and she is amply qualified to perform the task. The evidence on the motion also confirms that Ms. Himel is in a position to complete the report very quickly, a benefit in this case, as the children need to return to England as soon as possible this month to begin school.
75The husband was skeptical of Ms. Himel, because she was proposed by the wife. I do not share that skepticism. Rather, Ms. Himel’s qualifications and her availability suggest to me that she is an appropriate person to complete the report. The husband has not proposed any alternatives to Ms. Himel, though I invited the parties to discuss alternatives and advise me if there was another person on whom they could agree.
76The husband has indicated that if a Voices of the Child report is ordered, he is prepared to pay half the cost; the wife will pay the other half. This joint retainer should allay any concerns that Ms. Himel will favour one party or the other. I see no reason to question Ms. Himel’s independence.
77Accordingly, I direct that the parties jointly engage Andrea Himel to produce a Voices of the Child report and share the cost equally. The court appreciates Ms. Himel’s readiness to prepare the report with urgency. As I noted above, the wife shall not remove the children from Ontario, and her counsel shall not release the children’s passports to the wife, until Ms. Himel confirms in writing that she does not require or no longer requires the presence of the children in Ontario to complete her report.
Stay
78The husband sought a stay of my order for seven days in the event I determined that the wife be allowed to return to England with the children, either on an interim or permanent basis. In my view, a stay is unnecessary. My decision sets out several conditions that must be fulfilled before the wife can leave Ontario with the children. Moreover, during telephone submissions on September 7, 2018, I advised the parties that I intended to release reasons early in the week of September 10, 2018, and told them that they should be prepared to act on these reasons with all dispatch, given the pressing nature of the issues raised in these motions. The children are not currently in school, and they must be in school. The children’s situation does not allow the parties to consider their options at leisure. It is especially pressing that S access the school supports available to her in England. There is no reason to delay the children’s return beyond the time necessary to satisfy the conditions I have laid out. The time it takes to do so should be sufficient for the husband to take any steps he considers necessary before the children leave the jurisdiction.
Release of CAS File
79The parties agree that the entirety of the CAS file must be released. I agree that the CAS file will be important for determination of the custody, access, and mobility issues at the trial of this matter. The wife’s counsel advises that the CAS does not oppose the release of its file. The information I have suggests that CAS seeks only as much notice as possible of any disclosure required.
80Accordingly, I direct that the CAS release its complete file to the court within 30 days. If this time period poses any difficulties for the CAS, it may seek an attendance before me to address a more realistic time frame. However, in my view it is important that this matter proceed to trial on the custody, access and mobility issues as quickly as possible.
Expedited Trial
81To ensure an expedited trial of the custody, access and mobility issues, I direct the parties to attend a Trial Management Conference to address the trial of the custody, access and mobility issues only on October 10, 2018 at 10 a.m. The parties shall prepare and file a Trial Scheduling Endorsement Form in advance of the Trial Management Conference. In my view, the trial of these issues should take place in early January 2019 such that the children can be present in the jurisdiction in a way that roughly coincides with December school holidays. I therefore set the trial of the custody, access and mobility issues for the week of January 7, 2019 for eight days. Any changes necessary to the length of the trial or its timing can be addressed at the Trial Management Conference.
Costs
82The costs of the husband’s motion and this portion of the wife’s motion are reserved to be addressed once the balance of the wife’s motion has been dealt with. There are comprehensive offers to settle which make it impossible for costs to be resolved until that time.
J.T. Akbarali J. Date: September 11, 2018
[1] In these reasons I refer to the “s. 30 assessment” because that is the terminology used by the husband, although the application in this matter was commenced under the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.). [2] The mirror order also required the husband to make two monthly payments of $5,795, but no such payments have been made. [3] I also note that the wife did not wish the husband to know where she was staying in Ontario; indeed, by order of the English court, mirrored by Stewart J. on June 8, 2018, the husband was not entitled to make enquiries or cause enquiries to be made as to where the wife and the children were living. The wife’s expressed fear relates to her evidence that the husband has been abusive to her. It appears the husband may have learned where she was staying; at the very least he learned her mother was in town. The wife suspects he learned this by having her followed, as he did in England. I note that the mirror order of Stewart J. also prohibits the husband from performing or causing any other person to perform an act of surveillance on the wife. The dysfunction in the parties’ relationship, and possible controlling behaviour by the husband, is illustrated by the fact that he hired surveillance to tail his wife, and possibly tag her car to keep tabs on her whereabouts in England, and possibly again in Ontario. [4] The husband deposes that he has passports in more than one name.