COURT FILE NO.: FS-17-88715-00 DATE: 2023 06 15

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Song Wang, Applicant R. Narang, for the Applicant

- and -

Bofeng Tang, Respondent R. Tao, for the Respondent

HEARD: June 9, 2023

ENDORSEMENT

MCGEE J.

[1] This is Dr. Tang’s motion for 11 Orders, primarily, that the parties’ 15-year-old daughter have no parenting time with her mother, that he be granted sole decision-making responsibility, that the mother’s consent to medical treatment, travel or any other incident of their daughter’s care be dispensed, and finally, that the mother be restrained from attending at the jointly owned, former matrimonial home where Dr. Tang and his parents continue to reside.

[2] This is also Ms. Wang’s motion for weekend parenting time with their daughter until the end of the school year, and for their daughter to spend alternating weeks with each parent over the summer.

[3] There is no prior Order for decision making. The most recent Order for parenting time is the December 14, 2017 consent Order for week about shared parenting.

[4] For the reasons set out below, I dismiss the father’s motion and grant the mother’s motion with adjustments over the summer of 2023 to incorporate a camp and cruise planned and paid for by Dr. Tang without Ms. Wang’s consent.

[5] As an incident of parenting time, I also make an Order that Ms. Wang is to remain in her vehicle during any pickup and drop off of their daughter at Dr. Tang’s home. This term is not a restraining Order.

[6] As the successful party, Ms. Wang is presumptively entitled to her costs of this motion per Rule 24(1) of the Family Law Rules (“the Rules”). The amount of costs shall be determined by way of written submissions to follow the release of this decision.

[7] This matter will now move to a Trial. I make Orders necessary to the next step in the proceeding which shall be a 9:00 am attendance before me for a Trial Management Conference, in person, on Wednesday, September 13, 2023.

Background

[8] The parties are the separated parents of a 15-year-old. To protect her privacy, I will refer to the parties’ daughter in these reasons as “D” for daughter.

[9] Ms. Wang pleads that the marriage ended on December 6, 2016. Dr. Tang asserts that the parties actually separated on August 31, 2010. None of the legal issues arising from the end of the parties’ marriage have been resolved on a final basis.

[10] The most significant family asset is the former matrimonial home located in Mississauga, Ontario. It is jointly owned by the parties. Dr. Tang has resisted any calls for the sale of the home. I have not been advised of any offer to purchase Ms. Wang’s interest in the home.

[11] Consistent with Ms. Wang’s date of separation, this Application was issued in 2017 after an incident on December 6, 2016 that saw her, and D relocate to a woman’s shelter. A flurry of litigation followed. Relevant to this motion, it was ordered on April 24, 2017 that Dr. Tang would have access on alternate weekends.

[12] On November 29, 2017 the parties signed Minutes of Settlement that permitted Dr. Tang to late file his Answer and required him to give extensive financial disclosure. He has never complied with that Order for Disclosure.

[13] On December 14, 2017, the parties agreed to a week-about shared parenting schedule that was incorporated into Justice Trimble’s Order of that same date. [1]

[14] Shared parenting continued for the next three years. During these years, while D was 9 to 12 years old, the parties parented cooperatively. They effectively discontinued the litigation. No further court events were scheduled after a 2019 Settlement Conference.

[15] The week-about schedule only came to an end when the pandemic hit. In March 2020, it was agreed that D would primarily reside with her father to avoid changes in exposure.

[16] Ms. Wang describes in her affidavit that the parents handled the pandemic well. She and D’s father went hiking with D, attended picnics, fruit picking, camps and maintained ties with friends and family.

[17] Ms. Wang’s circumstances changed during the pandemic. She sets out in her affidavit that she moved to Markham for work. But she did not want to disrupt D’s school, so Ms. Wang agreed in March 2022 that their daughter’s primary residence would remain in the former matrimonial home with Dr. Tang.

[18] As pandemic restrictions lifted, D again began spending regular time in her mother’s care, but she did not return to the week-about schedule.

[19] The cooperative parenting continued. In June 2022, the parties attended D’s graduation ceremony together. They cooperated on travel plans for D and throughout the fall of 2022 the parents relied upon each other to get D to events and lessons.

[20] In October 2022 Ms. Wang lost her rental housing in Markham. She approached D’s father to buy her out of the jointly owned home so that she could purchase her own residence near D’s school, and they could return to shared parenting.

[21] Ms. Wang deposes that Dr. Tang alternated between ignoring her requests and inviting her to give him a Separation Agreement. She provided a draft Separation Agreement to which he did not respond.

[22] On October 16, 2022, Ms. Wang dropped D off at the matrimonial home. The parties violently disagree as to what happened that evening. The police attended. No charges were laid. D has not seen her mother since.

[23] On November 17, 2022, Dr. Tang served (but it appears, did not file) an earlier version of this Motion. The Motion asked for various Orders preventing any contact between mother and daughter. It sought a consent for travelling. Ms. Wang attests that she agreed to the travel, hoping that it would calm the waters.

[24] A series of emails followed as Ms. Wang attempted to resolve the matter outside of court. She asked to see D, to discuss the issues and to mediate.

[25] In an email sent February 3, 2023, Ms. Wang’s counsel wrote:

1. Urgent: there has not been any parenting time between child D and Ms. Wang since October, 2022. Ms. Wang is seeking parenting time with the child, forthwith and at the bare minimum to be on Saturday and Sundays for day visits.
2. Urgent: the matrimonial home be listed for sale forthwith.
3. Please advise if your client is agreeable to attending mediation with Mr. Todd Jenney to resolve all outstanding issues of this matter.

Later that same day, Dr. Tang’s counsel answered, “Mr. Tang disagrees with all three requests of yours.”

[26] After a number of attempts to bring an emergency motion before the Court, Ms. Wang secured the June 9, 2023 hearing date for this motion. She asks for parenting time every Friday at 7:00 pm to Sunday at 7:00 pm until the end of the school year and thereafter, a return to the alternating week schedule.

[27] Also before me is Dr. Tang’s motion originally served in November 2022, updated on May 31, 2023. The first Order requested in his motion is for a suspension of any parenting time “until such time as the Applicant can prove that her continued access will be consistent with [D’s] best interest.”

[28] In the alternative, he proposes four hours a week at a supervised access centre, subject to D’s views and preferences, after Ms. Wang has “completed a parenting course that provides education on harms of parental alienation and the importance of shielding the children from adult conflicts.” He does not specify what courses would satisfy his preconditions for mother-daughter contact. He does not indicate that he has taken any courses, or that he would be willing to mutually engage in services with Ms. Wang.

[29] Dr. Tang then offers a second alternative of requiring Ms. Wang to participate in reconciliation therapies before being allowed any parenting time. He also asks for

a. waiving [dispensing] of the mother’s consent to international travel from June 30, 2023 to July 30, 2023 and from August 6 to 20, 2023 b. sole decision-making responsibility c. waiving of the mother’s consent for D to receive counselling and/or mental health support (no specific services or a plan of care are proposed d. appointment of the OCL e. a restraining Order f. police records g. medical records from December 2016 h. bifurcation [severance] of the divorce claim

[30] He offers no specifics on any of his proposals.

The Law

[31] In determining how to restore the parenting time, I am guided by the best interests test under section 16(1) of the Divorce Act. Because it is fundamental to my decision, and its analysis was wholly absent from Dr. Tang’s submissions, I set out section 16(1) to 16(6) of the Divorce Act in full:

Best interests of child

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

Dr. Tang’s Submissions

[32] I highlight section 16(5) of the Divorce Act because Dr. Tang’s submissions during this motion were unhelpful. He makes allegations of terrible past conduct by the mother that he believes disentitles her to any further relationship with their daughter. At the same time, he acknowledges that the parties were parenting cooperatively from 2017, through the pandemic, and more or less without incident up to October 2022.

[33] Dr. Tang’s submissions were sufficiently offside that I twice injected, and then called a recess for reflection, and possibly, a refreshing of instructions. Nonetheless, he persisted in his arguments that:

a. he has been D’s primary caregiver since 2010, and he has been forced to litigate in family court to protect himself and D. b. Ms. Wang is a violent person. She struck his elderly father on December 6, 2016 and cannot be trusted to be with D. c. Ongoing parenting time should be based on the current status quo of no parenting time. d. The mother works fulltime, so she is not available to parent. e. D has a cell phone. If D has not called her mother, the court can infer that she does not want to see her. f. The father can’t be faulted for the lack of communication between D and her mother. g. If the mother hasn’t asked for parenting time, then there is no evidence that the father has withheld parenting time. h. It is not important for the mother-daughter relationship to resume this summer because D has better plans. The father has arranged for D to attend French Camp from June 30 to July 19, to travel to New York from July 21 to 30 and to go on a cruise with him August 6-19, 2023 from London to Lisbon.

Ms. Wang’s Submissions

[34] Ms. Wang describes her 20 years of marriage to Dr. Tang as filled with domestic violence, primarily at the hands of his parents. She describes an assault on her by her mother-in-law on December 6, 2016, and Dr. Tang’s failure to intervene as the reason why she ended the marriage. She states that D witnessed this abuse and saw her being taken to the hospital on December 6, 2016.

[35] Ms. Wang is certain that D is now being withheld from her as punishment for asking for her share of the equity in the home, or alternatively, that the home be sold. She worries about her daughter and what she is being told. She desperately wants to see her daughter and to spend time with her.

Analysis

[36] The crux of these motions is the restoration of D’s parenting time with her mother.

[37] Dr. Tang has taken no responsibility for ensuring that their daughter has the love and support of both parents. To the contrary, he appears to be taking advantage of the October 16, 2022 incident to secure an Order for sole decision making, the permanent suspension of parenting time and the dispensing of the mother’s consent to any incident of parenting.

[38] It is possible that Dr. Tang’s concerns over their daughter’s exposure to adult conflict are genuine. He states in his affidavit materials that tensions were rising in the period leading up to October 16, 2022 because Ms. Wang has a habit of denigrating him in front of their daughter – something no caring parent should ever do; and because Ms. Wang tried to use D to force her way into the home. But even if genuine, such concerns are wildly disproportionate to what has followed: the end of any mother-daughter contact.

[39] Section 16(3)(c) of the Divorce Act sets out a key factor in a Judge’s consideration as to whether to grant a parent the responsibility for decision making: the moving parent’s willingness to support the development and maintenance of their child’s relationship with the other parent. On this record, I can make no such Order in favour of Dr. Tang.

[40] Neither am I prepared to consider Dr. Tang’s motion to dispense with Ms. Wang’s consent to health care, counselling, travel, or the issuing of government documents. He writes at paragraphs 61 to 68 of his affidavit of the extensive travel planned for D this summer which he only communicated to the mother on May 19, 2023 through counsel, after he had told D. That is not responsible decision making.

[41] Two aspects of this litigation must be immediately addressed.

[42] First, parenting time must be restored. I see no basis not to continue the prior term for week about parenting but for the fact that Ms. Wang does not seek such an Order. She does not ask for it because she does not want to disrupt D’s school placement, or cause her undue travel during the school week until she can relocate to Peel Region. Instead, she asks for weekends only, and week about parenting during the summer. This is child focussed parenting. I am prepared to make those Orders.

[43] At the same time, I acknowledge that D will be excited over the planned travel for this coming summer. To cancel all the summer travel plans at this late stage is to risk a further estrangement between she and her mother, despite the circumstances giving rise to the disappointment having been caused by her father.

[44] I am prepared to permit some of the travel, and chose to maintain the French camp and the cruise. The trip to New York to visit friends of the family can be rescheduled for a later date, perhaps next summer during Dr. Tang’s defined vacation time.

[45] For the balance of the summer, D shall be in her mother’s care. This will not present as week about parenting, but it will roughly divide the summer parenting time into equal portions with each parent. I treat the French camp as the father’s parenting time. Any time in the mother’s care beyond one half of the school vacation period shall be a credit to make up parenting time which can be determined at Trial.

[46] Second, the financial issues arising from the end of the marriage must be prioritized.

[47] Much of Dr. Tang’s affidavit on this parenting motion describes his distress over Ms. Wang’s attendance at his dental practise during the fall of 2022. He deposes in his affidavit that his former spouse was “attempting to weaponize the court and public opinions to exercise undue pressure upon me and to coerce me into a settlement.”

[48] If Dr. Tang’s recital of Ms. Wang’s efforts to shame him into a settlement is accurate; it demonstrates poor judgement on her part. There is no profit in such efforts. At the same time, it equally demonstrates poor judgement on Dr. Tang’s part. By resisting the ordinary winding up of the financial assets of the marriage (12 years after he states that the parties separated,) a toxic dynamic has been created between the parents, which has now spilled over into the parenting. D is caught in the middle.

[49] The sale of the jointly owned home, and the payment of an equalization are rights afforded to all married spouses in the ordinary course of a separation. Here, whether the date of separation is August 31, 2010 or December 6, 2016; it is long overdue. This matter must be immediately organized for Trial.

Orders to Issue

[50] I make the following Orders.

1. I ask for the assistance of the Office of the Children’s Lawyer (“OCL”) to provide counsel for D, and if approved, for a clinician who can complete a report by November, 2023, in anticipation of a January 2024 trial.
2. Each parent is required to complete his or her Intake Forms and to be available to meet with the OCL as requested.
3. D shall be in her mother’s care as follows. This shall be the mother’s summer parenting. Ms. Wang may also travel with D provided that a travel itinerary is provided to the father, 48 hours in advance: a. This Saturday June 17th from 11:00 am until Sunday, June 18th at 7:00 p.m. Dr. Wang shall deliver D to the mother’s residence on Saturday, and the mother shall return D to her father’s residence on the Sunday. b. From 7:00 pm Friday June 23rd until Sunday at 7:00 pm. Sunday June 25, 2023. If classes are not in session during the week of June 26th, D shall stay in her mother’s care from June 25th, or 7:00 pm of the last day of school) until the day before her departure to French camp on June 30, 2023. Specifically, she will be returned to her father’s residence the evening of June 28th or the morning of June 29th so that she can pack for camp. c. The mother shall pick D up from the French Camp on July 19, 2023. D shall continue in her mother’s care until 7:00 pm on Friday August 4th when she will be returned to her father’s care to prepare for the cruise. d. D shall again be in her mother’s care from August 21, 2023 until the evening before D’s return to school, 7:00 pm Monday September 4th, 2023. e. Thereafter, D shall be in her mother’s care every weekend from Friday at 7:00 pm to Sunday at 7:00 pm. This schedule shall continue until the parents have agreed otherwise in writing, or upon further court Order.
4. When picking up or dropping off D at her father’s residence, Ms. Wang is not to approach the home. She is to remain in her vehicle at all times.
5. Neither parent shall denigrate the other parent while D is in his or her care, or in any manner that might come to D’s attention.
6. On or before September 1, 2023, Dr. Tang shall serve and file an electronic brief containing the following documents: a. A current Form 13.1 Financial Statement with proof of year-to-date earnings. b. If he maintains a 2010 date of separation: i. Full Income Tax Returns for each taxation year from 2010 to 2022 ii. Notices of Assessment for each taxation year from 2010 to 2022 c. If he consents to a December 6, 2016 date of separation: i. Full Income Tax Returns for each taxation year from 2016 to 2022 ii. Notices of Assessment for each taxation year from 2016 to 2022 iii. Corporate Tax Return and Financial Statements for each year of the dental practise, up to 2022. d. Chart of support paid that Dr. Tang proposes be a credit to the support claims. e. A Net Family Property Statement for each date of separation (unless the 2016 date is agreed) with a Certificate of Financial Disclosure hyperlinked to all supporting documents. This will include a valuation of his dental practise.
7. On or before September 1, 2023, Ms. Wang shall serve and file an electronic brief continuing the following documents: a. A current Form 13.1 Financial Statement with proof of year-to-date earnings. b. If Dr. Tang maintains a 2010 date of separation: i. Full Income Tax Returns for each taxation year from 2010 to 2022 ii. Notices of Assessment for each taxation year from 2010 to 2022 c. If Dr. Tang consents to a December 6, 2016 date of separation: i. Full Income Tax Returns for each taxation year from 2016 to 2022 ii. Notices of Assessment for each taxation year from 2016 to 2022 d. Chart of support receives that Ms. Wang agrees to be a credit to her support claims. e. A Net Family Property Statement for each date of separation (unless the 2016 date is agreed) with a Certificate of Financial Disclosure hyperlinked to all supporting documents.

[51] The parties shall attend before me on Wednesday, September 13, 2023, in person, at 9:00 am for a Settlement Conference on the financial and parenting issues. The matter will then move forward to an expedited trial.

[52] Questioning is permitted.

Costs of this Motion

[53] Costs submissions shall be in writing, limited to three pages exclusive of a Bill of Costs and Offer to Settle. Caselaw is to be uploaded and hyperlinked in the body of the submissions.

[54] Ms. Wang’s costs submission shall be served and filed by June 29, 2023, Dr. Tang’s responding submissions are due July 13th, 2023, and reply is to be provided by July 21, 2023. Reply is limited to two pages.

MCGEE J Released: June 15, 2023

Footnote

[1] I record this information from the applicant’s submissions. It was not challenged by Dr. Tang’s counsel, so I took it to be correct. I direct counsel to upload all endorsements to Caselines so the Court has an accurate continuing record.