Court File and Parties

Court File No.: Chatham-Kent 103/11 Date: 2012-04-12 Ontario Court of Justice

Between: S.M., Applicant

— And —

P.P.R., Respondent

— And —

The Minister of Public Safety and Emergency Preparedness, Interested Party

Before: Justice Lucy Glenn

Heard on: January 24, 30, March 2, 21 and 26, 2012

Reasons for Judgment released on: April 12, 2012

Counsel:

• Jeffery Rehner, for the Applicant
• Stephen J. Andari, for the Respondent
• Veronica Cham, Department of Justice

Reasons for Judgment

Glenn J.:

[1] This is a custody application brought by the mother, S.M. against the father, P.P.R. involving their child G.X.R., born […], 2011 which was commenced soon after the parents separated in April of 2011. The father has cross-claimed for custody and child support, or in the alternative for specified access.

[2] Quite apart from the usual analysis that must be undertaken in custody and access disputes, this case has the added complication that the mother will be deported from Canada on April 30, 2012 to Hong Kong. As such the Minister of Public Safety and Emergency Preparedness has been added as a party to these proceedings for the purpose of making submissions. The child and the father are both Canadian citizens. If the mother is successful in her claim for custody, the child is expected to accompany her to Hong Kong. Given the father's modest means, it is not likely that he will see his son again. He cannot afford a trip to Hong Kong and it is unlikely that the mother would be allowed re-entry to Canada to facilitate a visit between father and child. Similarly, if the father is successful in his claim for custody, for the same reasons, the mother is unlikely to see her son again. Essentially, this decision will determine who will raise the child and who will be estranged from him.

The Mother's Legal Status in Canada

[3] The mother entered Canada at Toronto Pearson International Airport as a temporary resident on August 3, 2007.

[4] On November 17, 2007, the mother was found to be inadmissible. Although she intended to establish permanent residence in Canada, she did not hold the visa required under the regulations in order to do so. On November 17, 2007 she was found eligible to make a refugee claim and did so on the same day. A departure order was also issued against the mother on November 17, 2007. On February 11, 2010, the Refugee Protection Division refused the mother's refugee claim.

[5] Her application for leave and for judicial review challenging this decision was dismissed on May 11, 2010 due to her failure to file an application record.

[6] On June 14, 2010 she was notified in person that she could submit a pre-Removal Risk Assessment application which she did on August 9, 2010. This application was refused on December 14, 2010. She was served with this negative decision personally on January 25, 2011.

[7] On July 23, 2010 she submitted an application for permanent residence under Humanitarian and Compassionate ground which was refused on September 27, 2011.

[8] On March 21, 2012 (mid-trial) the mother was served with a direction to report for deportation on April 30, 2012. This notice contained details of the Air Canada flight on which she is booked for her return to Hong Kong on that date.

The Parent's Relationship

[9] The parents met in January or February of 2010 while working at a local onion factory. They commenced their relationship not long after her refugee application was refused in March of 2010 and started living together in April of 2010. By May of 2010 the mother was pregnant with G.X.R. and was also named as a beneficiary on the father's Ontario Disability Support Pension.

[10] In her evidence the mother acknowledged that she entered into the relationship with the father in part to help her immigration claim. She indicated that her family (who are also in Canada and are subject to deportation) were worried about their immigration status and that they had put her under pressure to meet and marry him. The mother acknowledged that if he had married her she possibly could have been allowed to stay in Canada and that once legally in Canada she could also subsequently sponsor her parents into Canada.

[11] In spite of these opportunistic dynamics, she claimed that as she got to know the father, she came to love him and that the pregnancy was planned. Nevertheless, in spite of the father's initial reticence to marry, during the summer of 2010, he proposed to the mother and she apparently accepted.

[12] However no actual marriage took place at that time and by early April of 2011, about six weeks after the birth of the child, the parents were forced to separate after the mother made allegations to the police of domestic violence by the father. As a result, the father was charged criminally and the terms of his release required that they not associate or communicate. The evidence suggested that when the mother reported this abuse, it was her expectation that the police would merely open a file regarding the father (which is something she believe would have happened in Hong Kong) and not that he would be charged criminally. Even though she was subsequently unsuccessfully in having the charges withdrawn, she continued to maintain at trial that her allegations were true.

[13] The child has remained in her care since April 1, 2011, that being the date of separation.

[14] During the course of trial, the mother made it clear that what she really wanted was to remain in Canada and live together with her child and the father as a family. In the alternative, if she could not live in Canada, she wanted custody of the child and to take the child back to Hong Kong with her.

[15] At the time that the mother gave her evidence, the father's criminal trial was still in the future and they remained unable to communicate or associate pursuant to the terms of his bail. However, several days before the close of trial, an agreement was apparently reached with the Crown on the resolution of the charges and at the request of the mother they were again allowed to communicate with each other. The court was not advised of the basis on which the charges were resolved since the father professed not to know these details when he was asked about this on the witness stand.

[16] Once the father could speak with the mother, mid-trial, he again asked her to marry him, but rather than saying yes, she would only go so far as to say that she would think about it. At that point even though the mother still wanted to be with the father, she indicated that she was hesitant to marry him, given that her deportation was now imminent and also because the Children's Aid Society had warned her that they would "intervene" should the parent form a family unit.

[17] During the father's testimony, he also claimed that what he wanted was to live together with the mother and child. It was only when he was pressed about how the court should decide the custody issue (given the mother's imminent deportation) that he stated that he should be given custody, otherwise he would never see his child again.

[18] It is against this complicated background that the court must adjudicate this custody dispute. This couple wants to live together with the child, but the mother's deportation, the Children's Aid Society and possibly the outcome of the father's criminal charges have conspired against this and have forced a dispute over custody of their child.

Allegations by Mother of Spousal Abuse

[19] In spite of the outstanding charges, the mother testified that she loved the father and wanted to reconcile with him. Indeed she left the impression that she was minimizing the significance of her allegations of domestic abuse, perhaps in the hope that she could salvage their relationship. This observation may also have been influenced in part because she was not demonstrative in her demeanour and her testimony was given through a Cantonese interpreter.

[20] The mother made allegations of spousal abuse as follows:

a. In May or June of 2010 the father prevented her from driving to a nearby town to visit her family by pushing her back into their home and confining her to prevent escape. She claimed that he threatened her with a knife at that time. She acknowledged that he may have been motivated to do this because of a worry about the safety of their unborn child and a concern that if she went to visit her family, she might not return to him.

b. On another occasion the father pointed a ten-inch-blade knife at her such that it touched her pregnant belly and her throat in an attempt to persuade her not to leave the home. However she minimized this allegation by claiming that she didn't feel there was any danger because (in her words) "he would not actually hurt her" and "was just threatening her".

c. After the birth of the baby he prevented her from taking the child to visit her family on four or five occasions by blocking her exit from their home. She claimed his rational for doing this was that he didn't like the Chinese way of caring for babies. For instance, he didn't like the fact that the maternal grandmother used small spoons to feed the child water.

d. She claimed that there were "some physical assaults" when she was not willing to have sexual relations soon after the child's birth, in March of 2011. At that time he slapped her once on the face.

[21] These allegations were made in an understated manner with explanations provided by her that seemed to minimize the seriousness of these events. However, the evidence of the parents' former employer and professed former friend of the father was considerably more damning. This employer was the person who introduced the parents to each other. He clearly was more disturbed than the mother by his observations. He testified that:

a. The father had last worked for him about two years ago and had caused arguments among the other employees by trying to be controlling.

b. The mother also worked for this employer during the time she was pregnant with the child, but there were times when the father prevented her from coming to work. He had witnessed the father arguing with the mother about this and heard him claim that she spent too much time away from him and that she came home too late from work. The father also didn't like that she spent time at her parent's home rather than with him. On the occasions when the employer was able to witness this reoccurring dispute, he would see the father bickering over this issue while the mother would be crying because she could not go to work.

c. The mother told him that the father had threatened her with a knife and told her that if she left, he would kill her and the baby and then he would kill himself. The father had also admitted to the employer that he had put a knife to the mother's throat because he didn't want her to leave him.

d. This employer claimed that the father also told him that he had "helped" the mother get used to having sex again after she had given birth by forcing her to have sex and sticking a rag in her mouth so no one could hear her scream. The father also told the employer that he had had sex with another person in front of the mother in the house at a time when he thought the mother was asleep.

[22] In spite of this, the mother acknowledged that she did not report the father's abuse to family and friends, although in March of 2011 she did tell her parents that he wouldn't allow her to leave the house. It was at their prompting that she made a report to the police on April 1, 2011.

[23] It was this report that resulted in the police laying charges against the father and the parents being prevented from further contact with each other. The resulting criminal charges included Forcible Confinement, two counts of Assault, Uttering Threats to Cause Death or Bodily Harm and Assault with a Weapon.

[24] At trial the father provided very little insight into his position regarding these various allegations of abuse. Perhaps this was because the criminal charges were still outstanding, although he could have relied on the protection of section 13 of the Canadian Charter of Rights and Freedom. He did claim that he didn't stop the mother from leaving the home, but rather tried to talk her into not over-working when she was pregnant. However, he merely refuted the allegations of his former employer with a fleeting blanket denial which was unconvincing, especially given the serious nature of the claims.

[25] No matter what the outcome of the criminal proceedings, based on the evidence that I heard, I conclude that the father was controlling of the mother, that he confined her against her wishes, he assaulted and threatened her by holding a knife to her throat and belly, and that he sexually assaulted her.

[26] It is noteworthy that the criminal record of the father included prior convictions in 1991 for Aggravated Assault and Aggravated Sexual Assault, in 1996 for two convictions of Assault with a Weapon, in 1999 for Careless use of a Firearm and in 2002 for a further Assault. While much of this record is very dated, it is unsettling that these prior offences speak to a pattern of behaviour that is consistent with recent behaviours described by the mother. His record also included several property offences.

Allegations of Poor Parenting

[27] On cross-examination, the mother was remarkably complimentary of the father's ability to parent the child. She agreed that the father had been supportive at the time the child was born and that she was not concerned about his devotion to the child. She believed that he loved his son and that he wanted what was best for him and she was compliant with suggestions by the father's counsel that the father demonstrated positive parenting skills. However she also testified that:

a. on at least two occasions he had covered the infant child's head with a blanket which had caused difficulties between him and the maternal grandparents when they observed this.

b. He would try to make the baby stop crying by yelling loudly at him. She claimed that sometimes the child would stop crying and other times he would react by crying even louder. However, the father rejected the mother's complaints that this yelling might injure the child's ears.

[28] The former employer also made several concerning observations about the father's ability to parent. He expressed regret that he had not called the Children's Aid Society at the time he made these observations. He testified that:

a. The father had other children, none of whom were in his care.

b. The father insisted on "training" this very young child to eat and sleep on the father's schedule and was seen to refuse to feed the obviously hungry child because of this approach to parenting.

c. The father had impressed on this employer that he had a large inoperable brain tumour which caused him to have seizures. The father claimed that if he were to trip and fall, he might die.

e. The father kept the house cold and dark because he didn't have adequate funds to pay for the utilities.

f. Shortly after the birth of the child he observed that a soother was taped across the child's mouth. The father admitted to him that he had done this to stop the child from crying. When the employer suggested that the child might choke if he were to spit up, the father stated that he knew his son and that this wouldn't happen.

[29] Once again the father provided very little rebuttal to the more serious of these allegations. With regards to the allegations of his former employer, he simply stated that they were not true and did not make any specific comment about the claims that he tried to stop the child from crying by yelling at him or taping a soother to his mouth. He did claim, however that when he covered that child's head with a blanket he would be under the blanket with him.

[30] He testified that he was on ODSP because he had seizures resulting from a neurological condition for which he was taking medication and that he had not had a seizure in about three and one-half years.

[31] He also stated that while he had three other children, they were all estranged from him for reasons that were not of his making and that there weren't any court orders that prohibited his contact with them.

[32] However, given the lack of specific denials of the more serious allegations on the part of the father, one can only conclude that aspects of his parenting ability were highly concerning.

[33] I say this in spite of the evidence introduced by the father to demonstrate his love for his child and that he interacted positively in a care giving role with other children. This included the evidence of A.A. who spoke favourably of the father's interactions with G.X.R. along with another preschool child. This evidence lacked detail and comprised mainly of him stating that at no time did he see any conduct on the father's part that gave him cause to worry for the safety of the children. Further he admitted on cross-examination that his observation in regards to G.X.R. were based on no more than six, one-half-hour visits at the parent's home prior to their separation. The other positive observations of the father's interactions with the other preschool child were made only when that child's mother was also present.

[34] Evidence was also given by Mr. A.A. and C.C. of their observations of father while he babysat two other boys who are now age 11 and 13 years. Once again they claimed that they had not seen any conduct on the father's part that caused them to worry for their safety of the children. They confirmed that the father used time-outs as discipline and would engage in activities including play-time and chores with these children.

[35] Ms. C.C. testified that she had assisted both parents with parenting advice and that she had observed the father to be engaged and responsive with G.X.R. and referred to his feeding, bathing, dressing, changing and playing with his son. As a neighbour, she had had a daily chance to make these observations until the parents separated. In addition she facilitated access arrangements and was present during the father's handful of visits from the date of separation and September of 2011.

[36] It is clear from the father's own evidence that he believed he had cared for other children in a positive way and that he possessed good parenting skills. However given the total vacuum in his evidence when it came to addressing the specific poor parenting allegations, it is not possible to simply accept this more flattering description of his abilities.

Mental Health Concerns

[37] Questions were raised about the mental health of both parents. The father spoke about his abusive childhood and was tearful and clearly still fragile because of the damage caused by these experiences. To his credit, he claimed that he has been going to a mental health counsellor, although there were few details and no documentation as to what had been accomplished. Likewise, the father claimed that the mother had once threatened to kill herself because of the possibility of deportation and referred to an incident where he had stopped her from doing so. This was denied by the mother. There were no other indications that she was suffering from mental health problems. Certainly she has been able to function well on her own and has been supporting herself as a single parent since the separation.

Interim Order

[38] On October 28, 2011, Justice Fuerth made an interim order which among other things granted the mother custody of the child and the father supervised access twice per week for two hours per visit. That order also dispensed with the consent of the father for the issuance of the child's passport and required that the child's passport be deposited with the Clerk of the Court forthwith upon issuance. The order also prohibited the removal of the child from the province of Ontario.

The Father's Access Since Separation

[39] Since the separation, the child has remained with the mother. This is to be compared to the modest contact the child has had with the father, which amounted to five or six visits between the date of separation and the end of October, 2011 when the interim order was made. Since then he has had access twice per week for two-hours per visit, supervised by a professional agency. Although the mother stated that she had no complaints with the care the father was providing to the child during access visits, it is noteworthy that since separation he has only had access visits with his son either in the presence of others, or in a supervised setting. She claimed that she did not want his access to be supervised and that the interim order of October 28, 2011 came about because of the requirements the local Children's Aid Society for reasons which she did not fully understand.

Involvement of the Children's Aid Society

[40] Not long after the parties separated, the CAS became involved with the parents and made it clear that they would not be supportive of the father having unsupervised access with the child. The CAS Supervisor in charge of this case was subpoenaed to give evidence and testified that if the father were to be successful in obtaining custody, they would apprehend the child. She specifically stated, however, that they did not have any child protection concerns regarding the mother's care of the child. Without wanting this trial to be transformed into a quasi child protection proceeding, this supervisor was allowed to state in general terms the rationale for their position which was as follows:

a. The Society produced the father's criminal record which, as outlined above, contained numerous convictions for crimes of violence. These convictions, especially given the recent outstanding charges for similar offences involving the mother were a concern. Further, they were not able to confirm that the father had received any treatment in the past for his assaultive behaviour.

b. They believed that the father had extremely weak parenting skills and were aware that he had other children to whom he did not have access. They believed that he would require a parental support worker to provide extensive parenting training before he could take on the full-time care of a child.

c. They believed that the father had mental health and anger issues which required treatment.

d. They believed that he had a health condition that caused seizures, as supported by the fact that he was receiving ongoing ODSP benefits.

[41] While the father did provide some evidence that he had over the years taken part in counselling, the exact details were vague and the completion of any program of counselling was completely undocumented. He also claimed that he had not had a seizure in three and one-half years but he provided no medical evidence as to his condition or the current state of his health. Obviously, a single parent who was actively suffering from seizures would be of concern. It is noteworthy that at the time of trial, he still qualified for the ODSP because of this condition. While there is room to argue that the father might succeed at some point in having the child placed back with him after an apprehension by the Society, I must say that the concerns raised by the supervisor did have a familiar ring to them given the conclusions I have already reached. I would also say that if the parents were to somehow recommence living together, there is a basis for concern about the mother's ability to protect the child from exposure to the father's domestic violence and poor parenting practices.

Considerations Arising from the Mother's Imminent Deportation

[42] It was the position of the father that if I granted custody to the mother, I should order her to produce the child for specified access visits. Presumably this would be accomplished along with the continuance of the non-removal order for the child. Given the existence of the interim non-removal order at the least, I must consider if circumstances still necessitate that that provision should be continued.

[43] As already stated, the Minister, through counsel made submissions urging the court not to make a specified access or non-removal order since these types of provisions could potentially interfere with the deportation process.

[44] I was referred to paragraph 50 (a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, which relates to the possibility that the mother's deportation might be stayed as a result of a decision in this case. It reads as follows:

50. Stay – A removal order is stayed

a. If a decision that was made in a judicial proceeding – at which the Minister shall be given the opportunity to make submissions – would be directly contravened by the enforcement of the removal order;

[45] The case law is helpful in understanding the impact on there being stay of deportation for a parent who has been granted custody of a child when there is also a non-removal and/or specified access order pertaining to that child in favour of the other parent. At paragraphs 122 and 123 of the case of Ffrench v. Williams and The Minister of Public Safety and Emergency Preparedness [2011] O.J. No. 3910, 2011 ONCJ 406, Justice Sherr of the Ontario Court of Justice referred back to an earlier decision made by him as follows:

(122) In Canabate v. Ayala, 2010 ONCJ 54, 193 A.C.W.S. (3rd) 515, [2010] O.J. No. 4156, 2010 CarswellOnt 7374 (Ont. C.J.), I heard a case with many similarities to the case before me. The mother was subject to deportation to Argentina and both parents sought custody and, in the alternative, specified access and non-removal orders. The minister participated in Canabate v. Ayala and opposed the making of specified access and non-removal orders. In my decision, I reviewed the law that has developed in this area in paragraphs [51]-[53]. I rely again on this law. The law can be summarized as follows:

a. There must be a genuine lis for the court to exercise its jurisdiction to make a custody or access order.

b. There must be a genuine lis for the court to exercise its jurisdiction to make a non-removal order.

c. The family law process should not be used for the sole purpose of frustrating the deportation of persons who have been ordered removed from Canada pursuant to the relevant immigration legislation.

d. Non-removal orders are not to be made lightly.

e. Each case must be carefully examined on its facts.

(123) In Canabate v. Ayalas, I found that there was a genuine lis with respect to both the custody-and-access and non-removal issues. I found it to be in the children's best interests to order custody to the mother, specified access to the father and a non-removal order, which the mother could apply to remove on 48 hours notice, if her deportation was about to be executed. I also made the following statements in paragraphs [58] –[60] that apply equally to this case:

[58] The Court of Appeal decision in J.H. v. F.A. 2009 ONCA 17, [2009] O.J. No. 88 supra makes it clear that it is not this court's function to deal with the applicant's immigration issues. This court's sole focus is on Joshua's best interests. The issues raised by the Minister are factors to be considered by immigration officials and, if necessary, the Federal Court of Canada.

[59] The orders that will follow are not made with the intent of frustrating the deportation process, but rather to comply with this court's mandate under the Children's Law Reform Act to determine what orders are in Joshua's best interests in the context of a legitimately contested custody and access dispute. It would be an abrogation of this court's responsibility to do otherwise.

[60] Whether or not the applicant will be deported will be determined according to immigration legislation. The appropriate decision makers will have the benefit of this decision, which reflects findings regarding Joshua's best interests in the family law context after a contested hearing, in which the Minister fully participated. The Minister may decide to defer the removal of the applicant pending the determination of her humanitarian and compassionate application. It may or may not be determined that a family court decision, where there is a genuine lis with respect to issues of access and non-removal of a child, will invoke the operation of paragraph 50 (a) of the Immigration and Refugee Protection Act. The deportation may still proceed. These issues are for others to decide. This court is not interfering with this process.

[46] Further, I note the helpful decision of Justice Czutrin at paragraphs 51, 55 and 56 in J.H and D.A. and The Minister Of Citizenship And Immigration And the Minister Of Public Safety And Emergency Preparedness wherein it is suggested that the best interests of the child should be considered with the deportation of the mother in mind. At paragraph 56 he stated that:

Not every interest of the child can be satisfied in an order, so judges must evaluate the best interests of the child in the factual and legal circumstances before them and limit their orders to matters over which they have jurisdiction.

[47] Finally I rely on the decision of the Ontario Court of Appeal in J.H. and F.A and The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness 2009 ONCA 17 which stated at paragraph 23 that:

[23] The purpose of non-removal orders under the CLRA is not to frustrate the deportation of persons who have been ordered removed from Canada pursuant to the relevant immigration legislation but to prevent parents from removing children from the jurisdiction in contested family law proceeding: see Wosniak v. Brunton (2004), 1 R.F.L. (6 TH) 429 (Ont. S.C.) at para. 23 ; Varvara v. Constantino, [2005] O.J. No. 861 (Q.L.) at para.33. It is not open to applicants scheduled to be removed by federal immigration authorities to use the family courts to stay in Ontario "under the guise of determining [the] best interests of a child": Augustin v. Canada (M.P.S.E.P.) and Leonty (27 February 2008), Toronto 07/FA/014805 (Ont. S.C.) at para. 9.

[48] Accordingly, the court's mandate is to determine what is in G.X.R.'s best interests under the Children's Law Reform Act. It is up to others to determine issues related to the mother's deportation.

[49] There is clearly a dispute between the parents as to the custody of the child given that they cannot agree who will have his care when the mother is deported. Having said that, I can find no evidence that either party has any intention of voluntarily removing the child from this jurisdiction save and except through the operation of the deportation order, itself. While there may well have been evidence to support the interim non-removal order of October 28, 2011, there was no such evidence at trial. Given the lack of any foundation for continuing this restriction, the non-removal order will be terminated.

[50] What remains to be done is to consider the parents' plans and examine the best interests of the child given the complicated circumstances of this case.

The Mother's Plan

[51] At the close of trial, it was the mother's hope that she would be granted custody of the child, that she could be remain in Canada and that the father could see the child every day. She further made it quite clear that she wished some sort of reconciliation with the father.

[52] However it appears virtually certain that she will be forced to return to China, in which case her plan would be to live with her maternal grandparents with whom she communicates regularly but has not seen in seven years. They live in a city of over a million people on mainland China.

[53] Her grandmother is age 89 and lives in a five-bedroom house where there are already nine other resident family members. She also testified that her entire family (totalling nine people) would be deported back to China at the same time. Thus, together with the child, another eleven people would be going to live in that household. When questioned about the feasibility of this arrangement she stated that they might go to her father's side of the family instead for help. It was clear that there had been very little thought given to living accommodations for this returning family.

[54] It would be her intention to find work once she got back to China, however, she could obtain very basic social benefits for the provision of food until she was able to do so. She indicated that at the time that she left China, she had debts of about $2,000 Canadian dollars.

[55] Although this transition sounded difficult, she was confident that her family would assist her. Both of her parents have had daily contact with the child since the separation and often care for him especially at times when the mother is working. Even before the separation, they would visit with the child about twice a week and they would probably continue to play a direct role in his care during what would promise to be a period of great adjustment.

[56] So far as the comparative benefits to the child of remaining in Canada versus living in China, the mother agreed that he would have a better standard of living here in Canada. Except for a heart murmur which is being monitored by the doctor, the child is healthy. He is also currently on a waiting list to have minor surgery to straighten his thumb. The mother did indicate that she had a doctor in Hong Kong before coming to Canada. She believed that there would be public health care available to her and the child about a one-hour trip away by train.

The Father's Plan

[57] If the mother's plan appeared sketchy, the father's plan was even more so. He appeared fixated on wanting to live as a family with the mother and seemed oblivious to the fact that the mother had been assigned a flight on Air Canada to return to Hong Kong on April 30, 2012.

[58] When reminded of this fact, he made no mention that the CAS were planning to apprehend G.X.R. if he were to gain custody of him. He spoke of some support people who would help him care for his son, however, there was no apparent appreciation of the jeopardy G.X.R. faced by being placed into foster care. It was only at the prompting of the court that he made suggestions of possible family members who might propose alternative placements for the child should a protection proceeding otherwise result in a wardship order. Even at that, there was no evidence that any of these people had any prior involvement with the child or that the father had even thought about this issue.

[59] There was a total absence of recognition on his part that if he obtained custody of G.X.R., the child would not only suffer the trauma of losing contact with the mother with whom he was primarily attached, but that he would also be taken from the father and placed with strangers into foster care.

[60] Further, he did not have a plan to address the concerns of the CAS, which no doubt also underpinned the rationale for the interim supervised access order.

Best Interests of the Child

[61] In spite of all the complications presented in this case, one cannot lose sight of the fact that this is a custody/access dispute, and that the usual criteria still must apply in deciding it. In this regard, I refer to section 24 of the Children's Law Reform Act R.S.O. 1990. c. C.12 as amended which requires a consideration of the best interests of the child. In reviewing paragraphs "a" to "h" of subsection 2, I would make the following observations:

a. I have no doubt that the child has a bond with the father however, since October of 2011 his contact with the father has been limited to a two-hour supervised visit, twice per week. This actually represented an increase in the contact he had been having with the child previously. I accept that the father has been regular in his visitation and I do not doubt that he loves his son immensely. There is no indication that the child has any relationship with any member of his family. On the other hand, the child has always lived with and has been cared for by the mother and one must assume that the child's primary attachment would be with her. Further, her parents and siblings have regularly assisted in the care of the child and the evidence established that they were all about to be deported back to Hong Kong as well. I conclude that the child's strongest attachment is to the mother and the members of her family.

b. At 13 months of age, the child is too young to ascertain his views and wishes.

c. The child has been in the sole care of the mother for over a year, which is almost all of his life. Any change in this regime would be destabilizing.

d. The child does not have any special needs at this time. He does have a heart murmur which is being monitored here in Canada. Further he has a crooked finger for which he is waiting on a surgical procedure. However, these conditions do not appear to be serious and there was no evidence that he could not receive adequate medical care in China. It is clear that the mother will be plunged into some degree of uncertainty when she is deported to Hong Kong with the child. However, what is certain above all else is that her family will be a support to her. A further asset which she brings to the table is her desire and ability to work. She worked while she was pregnant, and even after the separation. She obtained her own accommodations, enrolled the child in day care and also relied, in part, on her parents to care for the child while she worked. This could not have been easy. I have every confidence that she is industrious, hardworking and will continue to employ her family resources to provide for the needs of her child in China even though the details of her plan are not very clear. On the other hand, the father receives a disability pension because of a medical condition which causes seizures. While it is comforting to hear him say that he has not had a seizure for three and one-half years, it begs the question as why he still qualifies for ODSP or, on the other hand why he has not sought employment. Counsel for the father suggested that the educational and medical services available to the child in Canada are a known entity as opposed to what might be available in China and that should be persuasive in comparing the parents' plans and considering the best interest of the child. While this must be considered, it is not a pivotal consideration.

e. In addition to the comments that I have already made about the competing parental plans, I would simply add that the mother's plan is preferable to that of the father. The are great uncertainties in each plan, but it is better for the child to remain in the care of the mother with whom he has always lived and have all of the supports that her family can provide, than to be placed with the father with whom he has only had limited and mainly supervised contact since the date of separation. This is especially true knowing that the CAS plans to apprehend the child if he were placed in the father's care.

f. As for the comparative permanence and stability of each of the family units, I recognize that there is great uncertainty in each. The father would likely have to address the valid protection concerns before persuading a court that the child should remain in his care. The deportation of the mother and her family back to Hong Kong will be wrenching. However in a choice between the two propositions, the mother's family unit is more stable.

g. As for the comparative parenting ability of each parent, it is clear that the father demonstrated some significant challenges which need to be addressed if he were to be considered as a permanent caregiver. These concerns do not exist for the mother.

h. The question of blood relationships does not apply to our fact situation.

[62] Under section 24(4) of the CLRA I must also reaffirm my conclusion that the father was controlling and abusive of the mother when they lived together and that there were features of his childcare methods that went well beyond simply being labelled as "poor parenting". A parent who yells in the ears of an infant or who tapes a soother over his mouth to make him stop crying is being abusive.

[63] For all of these reasons, it is in the best interests of the child that he be placed in his mother's care and custody. With regards to the father's access, I am aware that there are very few days left between now and the planned departure date for the mother. If her deportation were not a factor, I might have been inclined to leave the interim order in place while the father obtained some parenting and domestic violence counselling in the hopes that we could come back in about four or five months and attempt to open up the access regime. I would also want to be more certain about the father being free of the risk of having seizures. However, given that the child will be leaving for Hong Kong shortly, I will simply affirm the existing access order as a final order but make it subject to termination on the mother being deported. If for some reason the mother is not deported, I would be prepared to revisit the access issue after the father completed the type of services and provided medical evidence as set out above.

[64] As stated above, there is no dispute under the CLRA regarding either parent attempting to remove the child from this jurisdiction that needs to be determined. On the contrary, both parents want to remain here with the child. Accordingly the existing non-removal order will be terminated.

[65] Lastly, with the consent of all parties, the father's claim for child support is noted as withdrawn.

Order

[66] Accordingly, order to go that:

a. The mother, S.M. is granted the care and custody of the child G.X.R., born […] 2011.

b. The father P.P.R. will have access the said child twice per week for two hours each visit, to be supervised by Glengarda. This order for access will terminate on the deportation of the mother from Canada assuming that the child accompanies the mother.

c. After the deportation of the mother from Canada (with the child in her company), the father will have such reasonable contact with the child as may be available to the parents by way mail, telephone and/or other electronic means. The mother will provide the father on a continuous basis with her contact information, including any address, phone number or e-mail address which she may have in order to facilitate this contact. The mother will provide photographs of the child to the father and will actively encourage the child to communicate with the father in future.

d. Paragraph 5 of the Order of Justice Fuerth dated October 28, 2011 which prohibits the removal of the said child from Ontario is terminated.

e. The Clerk of the Court will release the said child's passport to the mother forthwith.

f. Should any party wish costs, they may return the matter to my court by way of motion within 30 days of the release of this order.

Released: April 12, 2012

Signed: "Lucy Glenn"