Court File and Parties

COURT FILE NO.: FS-452-17 DATE: 2019/07/29 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Bernard Thomas Verbanac, Applicant AND: Lorianne Marie Dawson, Respondent

BEFORE: The Honourable Madam Justice D. Piccoli

COUNSEL: Phaedra Klodner, for the Applicant Jordan McKie, for the Respondent

HEARD: July 24, 2019

THE HONOURABLE MADAM JUSTICE D. PICCOLI

Endorsement

[1] This Endorsement is in addition to the handwritten consent endorsement read into the record on July 24, 2019 and attached hereto.

Background

[2] The applicant (“father”) brought a motion returnable and heard on July 24, 2019 for an order permitting him to travel with the parties’ child, Magnus, born July 16, 2015 (“the child”) from August 1, 2019 until August 21, 2019 to Croatia and other ancillary relief.

[3] Given the consent of the parties on most issues as reflected in my handwritten endorsement of July 24, 2019 and given that the respondent (“mother”) has consented to the child travelling to Croatia for 2 weeks, this endorsement pertains to the issue of whether the child should be allowed to attend in Croatia for a period of 2 or 3 weeks and the issue of costs.

[4] Much of the background information is found in the order of Justice Nightingale dated June 15, 2018, and will not be repeated herein.

[5] The parties commenced a relationship in June of 2010 and moved in together on November 1, 2012. They lived separate and apart in the family home as of April 10, 2017. The father moved out of the family home at the end of August, 2017. There is one child of the relationship as noted above in paragraph two.

[6] The father commenced his application on June 14, 2017. The mother answered the claims and made claims of her own on July 24, 2017. At the date of hearing of this motion, the matter has been outstanding for 769 days.

[7] The parties resided in the same household when an order was made by Justice Oldham in the Ontario Court of Justice on June 15, 2017. The order provided the father parenting time with the child every Tuesday and Thursday, from 3:30 p.m. until 7:00 p.m., together with time every other weekend from Friday afternoon until Sunday evening. Both parties work full time and the child is in daily daycare.

[8] The paternal grandparents and the mother have remained in regular contact and in fact as recently as May, 2019 the paternal grandparents were asked by the mother to take the child for an overnight period of care.

[9] The father’s request to travel with the child to Croatia in 2017 to attend a family wedding was denied by Justice Oldham.

[10] In April of 2018, the father requested the consent of the mother to allow him to travel with the child, along with his parents, to Croatia in June of 2018. The mother refused her consent and the matter was heard on June 14, 2018 by Justice Nightingale who granted the father’s request to travel with the child. The reasons for granting the father’s request were set out in Justice Nightingale’s Endorsement of June 15, 2018. The issue of costs was resolved on consent and the mother paid costs.

[11] Since the order of Justice Nightingale, and specifically commencing October 2, 2018 the father’s periods of care with the child have been expanded to include Tuesday overnight.

[12] With respect to the issue before the court, the evidence indicates that the father requested by way of email dated November 9, 2018 that he be allowed to travel with the child to Croatia for 3 weeks in the summer of 2019. He did not provide the exact dates for which he proposed to travel but stated that one of the weeks “will have to be during the time of the major jousting festival which occurs each year”. He inquired of the mother’s summer vacation plans and indicated that “in the event that they cross over, I’m sure that we can figure something out which works for both of us”. He referred to the summer of 2018 Croatia holiday and referenced how much the child enjoyed that holiday. The mother did not respond to this email in a timely fashion.

[13] It is admitted by both parties that the issue of the summer 2019 trip to Croatia was discussed in mediation on January 28, 2019.

[14] The father, despite having not received the written consent of the mother, proceeded to book the trip to Croatia for the summer 2019 in “late January of 2019”. He advised the mother of this booking by way of email of February 6, 2019. In that email he provided, for what appears to be the first time, the actual dates of the trip.

[15] The father asserts that he proceeded to book the trip because he thought based on the mother’s non response to his email of November 9, 2018 and conversations the mother had with the paternal grandmother that the mother “did not have any significant concerns with such a trip so long as the paternal grandmother and grandfather (Anton Verbanac) were going at the same time.” Given that the mother did not consent to the two prior requests to allow the father to travel to Croatia he should not have made this assumption.

[16] Numerous items of correspondence were exchanged in regard to the proposed trip. The issue could not be resolved, and the father brought his motion one week and one day before the proposed trip.

[17] It was not reasonable for the father to wait until one week and one day before the proposed trip to bring his request to the court when he has known since at least February of 2019 that the mother did not consent to the length of the proposed trip. His assertion that he was hopeful for a resolution does not make sense given the fact that each summer since the separation he had to seek court intervention for his proposed trips to Croatia. Furthermore, and despite the motion confirmation forms indicating otherwise, the length of argument of this motion exceeded one hour and should have been properly heard by way of long motion.

[18] The mother did not provide evidence as to why she did not promptly respond to the request in the father’s email of November 9, 2018 about the proposed trip and his intention to attend during the major jousting festival and instead waited until the mediation on January 28, 2019 to discuss the proposed trip.

[19] The mother has refused her consent to the 3 week trip to Croatia mainly on the grounds that: (a) the trip is too long (see letter of February 26, 2019) - three weeks is too much time away from home, away from her and out of the child’s regular routine (b) it unduly interferes with her ability to plan for downtime and ad hoc activities with the child during the summer; and (c) parenting concerns as set out in her affidavit of June 8, 2018 paragraphs 45 – 48 and the additional concern of the child being on a boat with no life jacket and the father teaching the child about death and (d) the child’s reaction to the summer 2018 trip.

[20] The mother asserts “Given his age and his closeness to me, and the Applicant’s history of questionable care and the way he reacted poorly to the last trip, he should not be separated from me for a period of three consecutive weeks.”

The 2018 Trip to Croatia and Length of 2019 Trip to Croatia

[21] The parties and the paternal grandmother provided their respective version of the child’s experience in respect to the 2018 trip to Croatia.

[22] The child’s paternal grandmother in her affidavit sworn July 15, 2019 expressed that the 2018 trip “felt like a dream come true”. She further deposed that the child was excited to see churches, forts and people on horseback practicing for the Trka na prstenac (titling at the ring) which in the materials before me is often referred to as the jousting festival or jousting tournament. She deposed that this jousting tournament is to take place on the 3rd weekend of August, 2019. She indicated that both she and the child’s paternal grandfather promised to take the child to the tournament “another time”. The mother herself was at the jousting tournament in 2013.

[23] The paternal grandmother deposed that, in reference to the summer 2018 trip to Croatia, she was advised by both the father and the mother that the child had no issues adjusting to his routine once he was back in Waterloo.

[24] The mother on the other hand indicates that after the child returned from his trip in the summer of 2018, it took him time to adjust to being back in Canada and that for several weeks he was clingy and constantly required her presence and attention to make him feel comfortable and that during his face time with his mother during the summer 2018 trip he stated “Mommy, don’t leave me again.”

[25] On the evidence before me it does not appear that the mother communicated any concerns regarding the summer 2018 trip to the father until February 26, 2019. Her text messages to the father immediately following the 2018 trip do not indicate any concerns regarding the summer 2018 trip.

[26] The father in his affidavit sworn July 16, 2019 at paragraph 25 indicates that on July 12, 2018 (two days after the child’s return from his 2018 trip to Croatia) the workers at this daycare advised that Magnus was not having issues at daycare despite his two-week absence and further states at paragraph 27 that the child did not have any issues adjusting.

[27] The father also attached as an exhibit to his affidavit sworn July 22, 2019 the communication sheets from the daycare for the period June 18, 2018 to September 7, 2018 and asks this court to take note of the fact that the communication sheets do not set out any issues with the child after the June 2018 trip.

[28] I do not believe that anyone is disputing that the child missed his mother during the summer 2018 trip and would be surprised if anyone made that assertion. Having said that, the evidence does not support the conclusion that the child suffered harm or was adversely affected by the summer 2018 trip to Croatia. In any event the mother is conceding that the child be allowed to attend for 2 weeks in the summer of 2019.

Lost Parenting Time/Lost Opportunities

[29] The mother states that she will lose parenting time with the child and the child will lose opportunities to participate in other activities and the ability to adjust to attending Junior Kindergarten (“JK”).

[30] The mother states that the child will need more than one week to get adjusted to attending JK, that he has a birthday party “in August” (the date is unspecified in the affidavit) and that “we have been invited to my uncle’s cottage at Erie beach in August.” (the date is unspecified).

[31] The issue of lost parenting time is not a reason to deny a child permission to travel as, in D.E. v. C.S. [2017] O.J. No. 5190 at para. 74 [2014], the court addressed the issue of lost parenting time due to the vacation of one parent with the child by either ordering or suggesting that the party with whom the child will be travelling forego some of their parenting time to the other party upon returning from vacation. The issue of lost parenting time was also addressed in Purushothaman in the same manner.

[32] The father inquired as early as November 9, 2018 with respect to the mother’s plans and she chose not to respond. In fact, the motion materials of the mother do not indicate any concrete plans with the child.

[33] In this case the father has offered the mother either (a) eight additional days as set out in paragraph 46 of his affidavit sworn July 16, 2019, three (3) weeks of uninterrupted time with the child upon the return from the trip (paragraph 47 of his affidavit sworn July 16, 2019) and in oral argument also stated the child could remain in his mother’s care from August 22, 2019 to September 3, 2019 to ready the child for school.

[34] Given that there are no scheduled activities, that the child would be in daycare for three of the six or seven days at issue, and given the father’s offers of additional time, this basis of the mother’s refusal is rejected.

Parenting Concerns

[35] The life jacket - has been addressed in the consent Endorsement.

[36] Talking to the child about death - The father’s explanation that he was answering a question regarding the death of his “nonno” is reasonable.

[37] The mother’s 2018 concerns have been addressed by Justice Nightingale’s order in 2018. The father has also indicated that he is prepared to abide by the same terms as referenced in the Order of Justice Nightingale of June 14, 2018.

[38] The paternal grandparents will also be providing assistance in caring for the child during this trip as they have since he was born.

[39] Given the mother’s consent to allow the child to travel two weeks but not three, it is difficult to understand why these concerns would affect the length of the trip. Furthermore, her concerns are sufficiently addressed by the terms of this order.

The 2019 Proposed Trip to Croatia

[40] The test on this motion is what is in the best interests of this child.

[41] It is clear from the father’s affidavits that he believes family time and family events are important and that it is important that the child be exposed to his Croatian/Italian heritage.

[42] This trip has been categorized by the paternal grandmother as “another fantastic opportunity for Magnus to further bond with the Applicant and our extended family.”

[43] As set out in Paurushothaman v. Radhakrishnan 2014 ONCJ 300 at para. 18, when determining whether to grant a parent permission to travel outside the country with a child, the court must weigh the benefits of travelling against the plausible risks; the weighing process is very fact specific.

[44] The court may make orders regarding travel in the child’s best interest where it is determined that the trip provides the child with an opportunity to form a connection with his heritage, as was the case in Karol v. Karol [2003] O.J. No. 5078 at para. 9. In Yacoub v. Yacoub 2010 ONSC 4259 at para. 21 it was also held that travel to the family’s ancestral homeland to spend time with extended family is a very valuable opportunity for a child.

[45] There is no independent evidence before me nor was there any case law provided that would indicate the length of the trip for a four - year old child would pose a plausible risk and / or would not be in the best interests of the child.

[46] In this case, the trip will offer the child an opportunity to build on his experiences from the 2018 experience, he will be able to attend the jousting festival which he seemed interested in, he will continue to form a connection with his ancestral heritage and continue to spend time with family and friends in Croatia.

[47] Accordingly, the father is permitted to travel with the child to Croatia from August 1, 2019 to August 21, 2019 on the following terms and conditions:

1. Those consent terms and conditions as agreed to in my handwritten endorsement;
2. The terms and conditions set out in the Order of the Justice Nightingale dated June 14, 2018; and
3. That the mother at her option is given additional time with the child as set out in paragraph 33 above.

[48] Although the father was successful on the motion, given the manner in which the trip was booked (namely that he did not obtain the consent of the mother or a court Order in advance of booking the trip), that unilateral conduct by a parent is to be discouraged, that he brought the motion one week and one day before his anticipated travel and the delay in these proceedings, which he initiated, he is not entitled to his costs.

[49] This endorsement is not to be taken as permission for the father to travel with the child each year for a period of three weeks as this is a matter for the trial judge to decide if the parties are unable to reach an agreement in advance of a trial.

D. Piccoli J Released: July 29, 2019