- DATE: 20020624 DOCKET: C38354
COURT OF APPEAL FOR ONTARIO
RE:
BAT-SHEVA KAZDAN (Respondent (Appellant)) – and – JOSEPH FRANK KAZDAN (Appellant (Respondent))
BEFORE:
ROSENBERG, SHARPE and CRONK JJ.A.
COUNSEL:
John Callaghan, Karon Bales and Lorne M. Yates for the appellant
Brenda J. Christen for the respondent
HEARD:
June 20, 2002
On appeal from the order of Mr. Justice Victor Paisley dated June 6, 2002.
E N D O R S E M E N T
- [1] This is an appeal from the order of Paisley J. dispensing with the appellant’s consent to permit the respondent to travel to Israel with the parties’ two young children. The issue arises under the terms of the April 9, 1998 custody order granted by Wilson J. in the parties’ divorce proceeding. That order, based upon a consent Parenting Plan, set out detailed terms for shared custody rights and obligations. The order included these provisions:
(b) In the future the Respondent mother will be able to take the children on holiday to Israel but this shall not occur in 1998, subject to paragraph 5 herein.
This court further orders that the above provisions shall be subject to review in the event of a material change in the circumstances of the parties or either of the children.
This court further orders that pursuant to the Family Law Act neither party shall remove the children from the Province of Ontario without the written consent of the other party which consent shall not be unreasonably withheld.
[2] The application judge considered the competing rights and interests at stake. He made no finding that the appellant had unreasonably withheld his consent and clearly recognized that given the difficult situation in Israel, the respondent’s concerns were serious and legitimate. However, the application judge did find that it was in the best interests of the children to permit them to travel to Israel with the respondent. This finding was based on the following facts: a) the respondent has been diagnosed with a terminal illness; b) she has a consequent need to visit her family in Israel; and c) it is important for the children to be with their mother and her family during this extraordinarily significant time in the life of their extended family.
[3] The appellant submits that the application judge erred by failing to ask the right question, namely, did the appellant unreasonably withhold his consent? The appellant submits that this constituted an error of law justifying the intervention of this court, and that deference to the application judge’s assessment of the best interests of the children has no application.
[4] On the basis of this record, which includes evidence concerning the current turmoil in Israel, we agree that the appellant was not unreasonable in refusing his consent. However, we do not agree that the inquiry before the application judge was focussed on that issue. In her Notice of Application, the respondent sought, inter alia, an order “varying the existing judgment to dispense with need for the Petitioner’s consent to travel” to Israel with the children. In our view, that request invoked the court’s power, pursuant to s. 17(5) of the Divorce Act, R.S.C. 1985, c.3 (2nd. Supp.) to vary the custody order if the respondent could show “a change in the condition, means, needs or other circumstances of the child”.
[5] In our view, the respondent’s terminal illness and her consequent emotional need to travel with her children to Israel does constitute a change in the circumstances of the children within the meaning of s. 17(5). The order contemplated travel to Israel “on holiday”. What is now proposed is materially different given the respondent’s medical condition and the importance to the parties’ children of being with her for this visit to Israel. In these special circumstances, we can see no basis for this court to interfere with the application judge’s finding that it would be in the children’s best interests to vary the order and permit them to travel with their mother to Israel on this occasion. We do not agree with the appellant that the application judge misapplied the best interests of the child test, focusing only on the rights of the respondent. There was a compelling body of evidence, some of which is reviewed in the application judge’s reasons, that supports the conclusion that given the extraordinary circumstances of the mother’s terminal illness, the trip to Israel with her is in the best interests of the children.
[6] We do think, however, that the best interests of the children require that there be certain terms given the unstable conditions in Israel and the respondent’s medical condition.
[7] First, it should be clearly specified that the April 9, 1998 custody order is to be varied to dispense with the appellant’s consent only for this proposed trip. Second, the following terms, agreed to by the parties in the event that we dismissed the appeal, shall be included:
A. In advance of travel to Israel with the children, the respondent shall be required to provide to the appellant:
The dates, times, and flight numbers for her and the children’s flights to and from Israel and copies of the children’s plane tickets;
A travel itinerary with the addresses and telephone numbers where she and the children will be staying for the duration of their visit;
The addresses and telephone numbers of the respondent’s closest English speaking relatives in Israel;
Evidence that the children have received the recommended inoculations or vaccines for travel to Israel prior to departure;
A letter from her cancer care specialist dated no earlier than ten (10) days prior to the planned departure date confirming that the respondent’s health continues to permit her to travel to and from Israel and to care for her children during the trip; and
The respondent shall obtain out of country medical insurance which covers medical emergency care for her, including her cancer, and the children during the duration of the trip and will provide the appellant with copies of the insurance documents;
B. While in Israel, the respondent shall not travel with the children to Jerusalem (including the Old City), the West Bank and Gaza, Netanya, any border areas or anywhere else for which the Department of Foreign Affairs and International Trade issues a travel advisory. The respondent shall exercise appropriate caution and while she and the children are in Israel they shall avoid large gatherings, crowded places, pedestrian promenades, shopping malls, open markets, restaurants, discotheques, bus stations and public buses;
C. The respondent shall cooperate in obtaining Canadian passports for the children and will take the necessary steps to ensure that the children travel with their Canadian passports with them at all times. She will provide a copy of the current Israeli passports to the appellant prior to departure;
D. Upon arrival in Israel, the respondent will register the children with the Canadian Embassy in Tel Aviv and will maintain regular contact with the nearest Canadian government office so as to be able to access assistance from the Canadian Embassy in the event of violence or other personal circumstances; and
E. The respondent or, if this is not possible, her family or friends, will immediately contact the appellant if the respondent is not able to care for the children while in Israel.
[8] Finally, in view of the unstable situation in Israel, the state of the respondent’s health and the understandable and legitimate concerns of the appellant for his children, the duration of the children’s absence from Ontario shall be limited to 21 days.
[9] Order to go varying the order of Paisley J. accordingly but otherwise dismissing the appeal. In view of the respondent’s significant but less than total success, we award costs in her favour for the stay application and this appeal fixed in the sum of $5,000 inclusive of Goods and Services Tax and disbursements.
“M. Rosenberg J.A.”
“Robert J. Sharpe J.A.”
“E.A. Cronk J.A.”