Court File and Parties
Ontario Court of Justice
Date: 2014-03-04
Court File No.: Toronto DFO 10 10741
Between:
Duong Nhuan Van Applicant
— AND —
George Shilletto Respondent
— AND —
George Shilletto Applicant
— AND —
Duong Nhuan Van Respondent
Before: Justice E. B. Murray
Heard on: February 28, 2014
Reasons for Judgment released on: March 3, 2014
Counsel
Mr. Garry Lamourie — counsel for George Shilletto
Duong Nhuan Van — on his own behalf
Ms. Carolyn Leach — counsel for the Office of the Children's Lawyer, legal representative for the children
MURRAY, E. B. J.:
Introduction
[1] This case concerns a dispute over the custody of two children Andy, aged 12, and Selena, aged 11. The dispute is between Duong Nhuan Van, the children's father, and George Shilletto, the partner of the children's now-deceased mother, Thi Diep Phan.
[2] Ms. Phan had custody of the children at the time of her death on July 16, 2012. In her will she designated Mr. Shilletto as the children's guardian. Mr. Van started this case shortly after her death, claiming custody of the children. Before he was served with that application, Mr. Shilletto commenced a case also claiming custody. The claims were consolidated. An interim order was made providing that Mr. Shilletto have custody and that the children spend time with their father each Saturday from 10 a.m. to 8 p.m. After a lengthy investigation, the OCL supported a final order reflecting the terms of the interim order. The parties were unable to resolve the issue. I directed that a focussed Rule 2 trial be conducted, in which each party and the clinical investigator from the OCL, Judith Szende, would give evidence and be available for cross-examination. That hearing was held on February 28, 2014.
[3] My decision is that Mr. Shilletto shall have custody of the children and that the children shall have access to their father each week following the same schedule that has been in place on a temporary basis. These are my findings of fact and my reasons for the decision rendered.
Background Facts
[4] Mr. Van and Ms. Phan were both born in Vietnam. Mr. Van married Yen, Ms. Phan's older sister, and they had a daughter, Nancy. This was a second marriage for Mr. Van. In 1983 he and Yen and Nancy came to Canada. In 1993 he and Yen divorced.
[5] Mr. Van returned to Vietnam and married Ms. Phan, who was 19 years younger than him. Ms. Phan gave birth to Andy while still in Vietnam, and Mr. Van returned to Canada, to arrange for them to emigrate. After two years Ms. Phan and Andy joined Mr. Van. Selena was born after Ms. Phan arrived in Canada.
[6] When Ms. Phan arrived in Canada, she was dismayed to find that Yen and her daughter Nancy were living with Mr. Van in his home. This living situation continued throughout her cohabitation with Mr. Van.
[7] Ms. Phan stayed at home to care for the children and Mr. Van worked in a factory. He retired in 2006. In 2007 Ms. Phan began to work outside the home, in a restaurant, and Mr. Van assumed more responsibility for care of the children during the day. Mr. Shilletto was a patron at the restaurant where Ms. Phan worked. They became friends.
[8] Ms. Phan and Mr. Van separated in July 2010 when she left his home, taking Andy and Selena with her. He went to court, claiming custody; she asked for custody and child support.
[9] In that litigation Ms. Phan claimed that her relationship with Mr. Van had been abusive from the time she arrived in Canada, and that they had essentially lived separate and apart although in the same house. Mr. Van, while acknowledging that the home did have separate sections for Ms. Phan and Andy and Selena and for Yen and Nancy, claimed that the relationship had been happy, until Ms. Phan met Mr. Shilletto.
[10] Ms. Phan, bitter at what she perceived as maltreatment by Mr. Van, initially opposed him having contact with the children. Mr. Shilletto encouraged her to maintain the children's tie with their father. In October 2010 a temporary order was made, on consent, providing that Mr. Van have access to the children each Saturday, from 10 a.m. to 8 p.m. Mr. Van resisted paying child support, and did not do so until an order was made in February 2011.
[11] An Office of the Children's Lawyer clinical investigator reported that both children had a good relationship with each parent. She recommended that Ms. Phan have custody and that Mr. Van continue the Saturday access and have after-school access each Wednesday. On June 15, 2011, on consent, a final order was made that granted Ms. Phan custody and Mr. Van continued access on Saturdays.
[12] Mr. Shilletto's relationship with Ms. Phan developed from a friendship into a romantic relationship. They did not cohabit, but he spent increasing amounts of time with her and the children. He began to help care for Andy and Selena, picking them up from school, caring for them at times when Ms. Phan had to work, and taking them on outings.
[13] In January 2012 Ms. Phan was diagnosed with liver cancer. Mr. Shilletto became much more involved in caring for the children and in caring for her. Ms. Phan insisted that Mr. Van and his family not be informed of her illness.
[14] After Ms. Phan's diagnosis, she learned that she had previously been exposed to hepatitis B, and that this might have been a factor in the development of her cancer. Although Mr. Van and Yen had known of this exposure, Ms. Phan said that it was not disclosed to her. Both she and Mr. Shilletto were upset at this non-disclosure, as they believed early medical attention might have saved her life. Andy was aware of their distress about this issue. Mr. Van maintains that Ms. Phan had always known she was exposed to hepatitis B, and that he urged her not to work because her health was fragile.
Current Facts
[15] I set out below my findings of fact relevant to the current dispute.
Both children have been consistent in their wish to continue to live with Mr. Shilletto.
Both children have been consistent in not wanting to spend any more time with their father than the schedule under the current order.
Until recently, Andy was very angry with his father, and adamant in saying that he did not want to see him at all. Selena occasionally echoed this view, and most recently has said that she would like shorter visits. Andy's views at first extended to other members in Father's family, but those views have softened. The children are now more accepting of continuing contact with Father.
Andy has also recently articulated the benefit of his retaining a connection with the Van family, because it connects him to his Vietnamese heritage.
Mr. Van is 67 years of age, and in remission from a diagnosis of prostate cancer which he received in 2012.
Mr. Van lives in the former matrimonial home in which Andy and Selena lived prior to their parents' separation. He continues to live with his former spouse, Yen Van, her daughter Nancy, and with Tang, an older son from his first marriage.
Mr. Shilletto is 67 years of age, and in remission from a diagnosis of prostate cancer which he received in 2013.
Mr. Shilletto is an architect who is employed by an international planning, architecture, and urban design firm. His seniority at the firm allows him flexibility with respect to his work hours. He is able, for example, to take the children to appointments during the day, or take them to school.
Mr. Shilletto and Andy and Selena live in the 3-bedroom rented townhouse that the children occupied with their mother prior to her death. Mr. Shilletto chose to give up his residence and move there after Ms. Phan's death so that the children could stay in the same home, school, and neighbourhood. That home is close to Mr. Van's home.
Youki Tanaka ("Youki"), aged 25, shares Mr. Shilletto's home with the children. Mr. Shilletto became Youki's guardian after his mother's death in 2007.
Youki is a university student. He has helped Mr. Shilletto organize household activities, prepare meals, and care for the children after school when Mr. Shilletto is at work.
Youki is in his fourth year, and may be leaving Toronto for graduate studies. If he does, Mr. Shilletto has planned for other supports to help him with the children.
Andy was seen by his teacher as quite anxious after his parents' separation. Ms. Hicks, a school social worker, provided counselling to him then. When Ms. Phan became ill, Ms. Hicks worked with both children.
Both children were very close to their mother, and have been traumatized by her death.
Andy knows that Mr. Shilletto was angry with Mr. Van for allegedly not telling his mother about her exposure to hepatitis B prior to her cancer diagnosis.
Andy blames Mr. Van for his mother's death, and has been very angry at him.
Mr. Shilletto at first let Andy read the documents in this litigation. He stopped doing this after Ms. Szende warned him that this could be harmful for the child.
Mr. Van is angry at and resentful of Mr. Shilletto. He says that Mr. Shilletto broke up his marriage and "stole" his children.
Mr. Van has told the children repeatedly that Mr. Shilletto is "evil" and he refers to him as "a bad white guy".
Other members of Mr. Van's family (such as Tang and Nancy) have joined him in berating the children for not wanting to return to live with them, and for "dishonouring" the family.
Visits between the children and Mr. Van broke down temporarily after an incident in December 2012 in which the children were separated from each other and confronted by various family members about their disloyalty in not returning home to live. Each child was locked in a room and kept overnight. Police intervened, and the children were returned to Mr. Shilletto the next day.
The children were very upset after this incident, and refused to see Mr. Van. Ms. Szende worked with the children and the adults, and after two weeks visits resumed.
Mr. Van has told the children that their mother was "mental" and a "bad woman". He told the court that the children are stigmatized by his Asian neighbours because of Ms. Phan's bad reputation and because they live with Mr. Shilletto.
Andy says that he can talk to Mr. Shilletto about his mother, and he does so often. He does not talk to Mr. Van about her, because he knows that Mr. Van "hates her."
Mr. Shilletto has insured that the children receive counselling since their mother's death.
- Ms. Hicks worked with Andy in the fall of 2012
- Both children have participated in grief counselling at the Wolfe Centre for Children's Grief.
- At the recommendation of Ms. Szende, the children have also begun counselling at Families in Transition (FIT) with Mary Cowper-Smith. That counselling is ongoing.
Mr. Van has also begun counselling at Families in Transition with another worker.
The children have stated that when they go to see Mr. Van, most of the time he remains in another part of the house; they spend their time alone, watching TV or on the computer. They find these Saturdays "boring".
Ms. Szende recommended that the Van family attempt some activities with the children. They now sometimes take the children to the mall or to a park. The children still say that they find the visits "boring", and Andy has said that he would like on some Saturdays to be able to attend birthday parties or "hang out" with friends.
The children are in good physical health. Mr. Shilletto has arranged for Selena recently to receive necessary orthodontic treatment. The children's school and after-school program staff indicate that they are well-fed, well-dressed, and well-rested.
Mr. Shilletto has maintained contact with the children's schools and the staff at their after-school programs. Selena is doing well in school. Andy was doing well last year, but this year he is in a new school, a middle school, and is struggling academically.
After Ms. Phan's death, the principal of Dundas Public School (Selena's current school and Andy's former school) invited Mr. Van to attend for parent-teacher interviews and to receive the children's school records. He has not followed up with this invitation.
The children have consistently reported positive feelings about their relationship with Mr. Shilletto. They have a close and warm relationship with Youki, who is like a big brother to them.
Mr. Shilletto has made efforts to establish a cooperative relationship with Mr. Van, asking him to a memorial service for Ms. Phan and inviting him into his home. Mr. Van is suspicious of Mr. Shilletto's motives, and has not accepted these invitations.
Argument and Analysis
[16] Mr. Van submits forcefully that he should have custody of the children: They are his children, he has done nothing wrong, he is a good father, and they must be returned to him. He points out that Mr. Shilletto has suffered some health problems and continues to work, whereas he is retired and has the support of his family in caring for the children. Mr. Van asserts that Mr. Shilletto requests custody of the children only to gain an unspecified financial advantage.
[17] Mr. Shilletto argues that he has cared well for the children, and that their wishes in wanting to stay with him should be respected. He says that Mr. Van has shown no sensitivity to the children's emotional welfare, and that he has shown no interest in spending more time with the children than that provided for under the current schedule.
[18] He says that Mr. Van's claim for the children stems primarily from a perception that it will "dishonour" him if they are not in his custody.
[19] Counsel for the OCL submits that the children should remain in Mr. Shilletto's care because that has been their clear and consistent wish, and because he has cared for them well in all respects from the time their mother became too ill to do so. Counsel points out that Mr. Shilletto has been an important and positive figure in their lives for some years, and that in his care the children are able to stay in the home they shared with their mother and to speak of her with him.
[20] The OCL underlines the importance, however, of the children remaining in contact with Mr. Van and the Van family and of continuing with the counselling underway at FIT with the goal of improving that relationship. Counsel observes that Mr. Shilletto is not a young man, and that it is in the children's future interest to nurture their family relationship. For that reason, counsel asks that continued counselling for them at FIT be included in the order.
[21] The Children's Law Reform Act provides that the merits of a claim for custody of a child shall be determined on the basis of that child's best interests. Section 24(2) of the Act sets out a number of factors to be considered in determining what is in a child's best interests:
(a) the love, affection and emotional ties between the child and,
- (i) each person 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) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
Mr. Van's Plan
[22] Mr. Van's plan has many positives.
- He is the children's father, and if they are in his care they will have continued close contact with other relatives.
- Residence with Mr. Van will also keep the children in touch with their Vietnamese heritage.
- Mr. Van loves the children.
- Mr. Van demonstrated prior to his separation from Ms. Phan that he is able to provide good instrumental care for the children. He was also able to maintain a good relationship with the children.
- If the children live with Mr. Van they will live in the home they enjoyed prior to the separation, and will be able to continue in their current schools.
Analysis of Best Interests Factors
[23] A child's biological parentage is not determinative in a custody dispute; it is one factor to be weighed in conjunction with other factors[1]. In this case, factors other than the children's biological relationships lead me to find that it is not currently in the children's best interests to be in their father's custody.
[24] The wishes of children who are the subject of a custody dispute are also just one factor to be considered. In this case, I gave the children's wishes to remain with Mr. Shilletto great weight. Those wishes have been strong and consistent. Ms. Szende is of the view that the children's wishes stem in part from their loyalty to the memory of their mother. This does not mean that those wishes have no rational basis. Mr. Van has demonstrated that he is not currently sensitive to the children's emotional needs. Despite the children's love for their mother and grief at her passing, he has chosen to denigrate her in their presence; this has caused them further pain. A further indication of Mr. Van's current insensitivity to their needs is his consistently negative remarks to them about Mr. Shilletto, a person who has provided them with love and security since Ms. Phan's death.
[25] Mr. Shilletto also initially showed a lack of recognition of the children's emotional needs in sharing with Andy his anger at what he believed was Mr. Van's contribution to her illness, and in allowing the child to read the documents in this case. Mr. Shilletto, however, modified this behaviour when counselled by Ms. Szende. He has facilitated the children's visits with Mr. Van, and has attempted to reach out to him, recognizing that it is in the children's interests to have a relationship with their family.
[26] Mr. Shilletto loves the children, and they have a strong positive relationship with him, as well as with Youki. As the OCL acknowledges, Mr. Shilletto has been diligent in doing what is required to care for them well, despite the demands of his job. The children have lived with him in a stable home for the past 2 ½ years, the home which they shared with their mother. Living with Mr. Shilletto, the children are in an environment in which they feel free to share with him their memories of her.
[27] I agree with the OCL that it is important to nurture the relationship that the children have with Mr. Van and the Van family. Mr. Van's commitment to continue counselling with FIT is an important step to reviving that relationship. I hope that in the future Mr. Van will be able to establish a civil and cooperative relationship with Mr. Shilletto. With respect to Mr. Van's suspicion that Mr. Shilletto has asked for custody to gain some financial advantage, I point out that at the beginning of the case Mr. Shilletto made clear that he was making no claim to receive child support payments from Mr. Van, payments that he would have every right to obtain if he wished while the children reside with him.
Order
[28] My order is as follows:
Mr. Shilletto shall have custody of the children
Mr. Van shall have access to the children each Saturday, from 10 a.m. to 8 p.m. If either child has an invitation to a birthday party or some other event on a Saturday, Mr. Van shall facilitate the child's participation in that activity.
The children shall continue counselling at Families in Transition for as long as the counsellor finds that the counselling is useful.
Costs
[29] If costs are sought, written submissions no longer than 10 pages shall be served and filed within 30 days. Any response to the claim shall be served and filed within a further 30 days.
Released: March 3, 2014
Signed: Justice E. B. Murray
[1] See, for example, Abrego v. Moniz, 2006 ONCJ 500, O.J. 5167 (C.J.), and Khan v. Kong, O.J. 5340 (S.C.J.), affirmed at 2009 ONCA 21, O.J. 52 (C.A.)