Court File and Parties

Court File No.: D50809/10 Date: 2014-10-28 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Between: Jocelyn-Lynda Jean Louis, Applicant (mother, responding party in the motion to change)

And: Henry Mensen, Respondent (father, moving party in the motion to change)

Before: Justice Robert J. Spence

Heard: 21 and 22 May and 22 October 2014

Reasons for Judgment released on: 28 October 2014

Parties:

• The applicant mother, Jocelyn-Lynda Jean Louis, in person
• The respondent father, Henry Mensen, in person

Nature of the Case

[1] This is my decision following an aborted trial held pursuant to a motion to change brought by the father.

[2] The order which the father seeks to change was made by Justice Harvey Brownstone on January 9, 2012. That order provides, inter alia, as follows:

1. The father's pleadings are struck and mother permitted to proceed on an uncontested basis;

2. Mother to have sole custody of Philo, the (now) nine year old child of the relationship;

3. Father not to remove the child from the Province of Ontario without a prior court order;

4. On an imputed income of $2,000,000 per year to father, father to pay mother the sum of $14,953 per month in child support, beginning January 1, 2012;

5. Father is not permitted to bring a change motion until he has served and filed:

   • a. A sworn financial statement;
   • b. His 2008, 2009, 2010 and 2011 income tax returns and Notices of Assessment from every jurisdiction where he or any corporation in which he has an interest files income tax; and
   • c. Complete financial statements from 2009, 2010 and 2011 for all corporations and businesses in which he has an interest.

6. Costs payable by father to mother in the amount of $7,000.

[3] Justice Brownstone's order was silent as to access.

[4] Separately, but also on January 9, 2012, Justice Brownstone made a restraining order against the father, preventing him from coming into contact with the mother, except for the purpose of arranging access to the child.

The Motion to Change

[5] The motion to change is brought pursuant to Rule 15 of the Family Law Rules ("Rules"). On August 27, 2012, the father issued his (amended) motion to change Justice Brownstone's order. In that pleading he requested, inter alia, the following:

1. Joint custody;

2. Specified access; and

3. A reduction in child support to $682 per month based on an annual income of $75,000 per year, retroactive to January 9, 2012.

[6] In his affidavit filed in support of the motion to change, the father alleged that he had "insufficient notice" of the court date which he failed to attend before Justice Brownstone and, in any event, he was undergoing medical testing for an "extremely serious diagnosis" in Florida, which conflicted with his ability to attend court.

[7] He also stated in his supporting affidavit that he had since complied with the necessary disclosure ordered by Justice Brownstone as a precondition for bringing his motion to change.

[8] The father had earlier brought a 14B motion to set aside Justice Brownstone's order, but he subsequently withdrew that motion as he had not yet complied with the original disclosure order made by Justice Brownstone. On January 22, 2013, the parties appeared before Justice Brownstone, who awarded the mother costs thrown away in the amount of $1,000 in respect of the father's withdrawn 14B motion.

[9] On March 20, 2013, Justice Brownstone recused himself from continuing to preside over the case. In his endorsement on that date he stated:

Given the allegations made by the [father] against me as set out . . . I am not prepared to continue presiding in this matter. The [father]'s comments regarding this judge's competence and impartiality and integrity have unfortunately made it impossible for me to maintain my neutrality and the perception thereof.

[10] The father subsequently sought to reinstate his motion to change before Justice Stanley B. Sherr, who had assumed case management of the file from Justice Brownstone.

[11] In a lengthy endorsement, dated March 28, 2013, Justice Sherr recognized that while the father had made some of the ordered disclosure, some of the disclosure remained outstanding. Additionally, Justice Sherr observed that he had paid very little of the court-ordered child support. Justice Sherr reflected on the possibility of striking the father's pleadings, but he noted that this would be an extreme remedy to grant to the mother. After considering all of the relevant factors, Justice Sherr permitted father to proceed with his motion to change on the following terms:

1. Father's minimum imputed income upon which child support should be paid was to be computed on $125,000 per annum, from January 1, 2011. Based on that amount, and taking into account the amount of support that father had actually paid, he was to pay a further $28,468 in child support to the mother, no later than August 23, 2013.

2. Having regard to the father's conduct, as well as prior court-ordered costs, he was to pay a further $8,000 in costs.

3. Justice Sherr concluded that there was no triable issue with respect to father's claim for joint custody and, accordingly, he dismissed that claim on a final basis. In doing so, he noted that the father had had no contact with the child for more than two years. Furthermore, because the father lived in the Dominican Republic, while mother and the child lived in Toronto, joint custody would not be a workable arrangement.

[12] On August 15, 2013, the matter came back before Justice Sherr who observed that the father had written a letter to the trial coordinator, requesting that his motion be reinstated as he had complied with all of the terms imposed by Justice Sherr. After seeking input from mother's counsel, Justice Sherr concluded that it was appropriate to allow the change motion to proceed, and to schedule a case conference.

[13] That case conference was held on November 12, 2013, with the father participating by audio-conference. Justice Sherr ordered a trial of the support and access issues, with father at liberty to proceed by video-conference, given the father's assertion that he was unable to travel to Canada.

[14] Justice Sherr ordered that certain documents and affidavits filed in the continuing record would form part of the evidence. Additionally the father was to file additional specified documents. Finally, each party was at liberty to give testimony at trial, and the opposite party was given the right to cross-examine the party so testifying.

[15] The matter was then assigned to me as the trial judge. Because the courthouse in this location does not yet have video-conferencing facilities, the scheduling of the trial was delayed while the trial coordinator attempted to arrange an available video-capable courtroom in a different location. The trial was subsequently set for two days on May 21 and May 22, 2014.

[16] I scheduled a trial management conference to take place on April 17, 2014. The father had leave to participate in that conference by audio-conference given that he was living in the Dominican Republic.

[17] On April 17, 2014 the mother attended court for the trial management conference. The father did not call into the audio-conference line; nor did he contact the court staff to advise that he would not be participating. The father never subsequently offered a reason for his non-attendance, or apologized to the mother or to the court for failing to attend the scheduled court date.

[18] At the trial management conference, I ordered father to comply with documentary filings by a specified date. The father failed to comply. As a result, the mother brought a 14B motion seeking to dismiss the father's change motion. I adjourned that 14B motion to be addressed at the outset of trial on May 21, 2014.

The Trial

[19] The trial began as scheduled. At the outset, notwithstanding father's continued non-compliance with the financial disclosure order, I dismissed mother's 14B motion, and permitted the father to proceed with his change motion.

[20] The father began his testimony on the financial issue. However it quickly became apparent when mother began to cross-examine him that he had not filed the documents brief that he had been ordered to file; further, the documents brief in the mother's possession at trial, did not correspond to the father's brief upon which he was basing his testimony. Accordingly, I permitted the father to defer his testimony on the financial issue to another date. Instead, and in order not to lose valuable court time, I directed him to give his evidence in respect of the access issue.

[21] For the balance of the first day of trial, and for the duration of the second day, I heard evidence from both parties on the access issue, with each party having the opportunity to cross-examine the other.

[22] Trial was adjourned for two more days. Once again, the scheduling difficulties in respect of the video courtroom necessitated a lengthy adjournment to October 22 and 23, 2014.

[23] On October 22, 2014, the trial recommenced, with the father giving evidence about his financial circumstances. A few days prior, he had filed two volumes of documents which were tabbed for reference.

[24] However, as father began to go through those documents during his testimony on October 22, it became apparent that many of them were not to be found in either the documents brief which was in the court's possession, or the documents brief in the mother's possession.

[25] As his testimony continued, and as this problem persisted, father became more frustrated and visibly upset. At around mid-morning he stated to the court that he was not prepared to continue any further in his testimony and that he would not remain video "linked" to permit mother to cross-examine him.

[26] I cautioned father not to break the video connection as that could lead to highly unfavourable consequences for his change motion. Nevertheless, the father summarily disconnected the video link, and the video screen went blank.

[27] Despite this, I instructed my court clerk to remain in the courtroom to permit father to reconnect in the event he changed his mind. I then recessed, either pending that event, or until 2:00 p.m. to consider what further steps to take in the event father failed to return to the trial.

[28] At 2:00 p.m. I returned to the courtroom, with mother in attendance, but father still not appearing. My clerk advised that she had waited in the courtroom until the 1:00 p.m. lunch break, but father had not called back in to re-establish the video link.

[29] In the result, mother had been denied the opportunity to cross-examine father on the financial issues.

[30] I first called on her for brief submissions on the access issue, indicating to her that I was inclined to make a decision on the merits, given that I had heard full testimony from both parents. Mother's position – which she stated at the outset of trial – was that the father's access should be fully supervised in Toronto and that father should not have any access apart from this.

[31] Following those submissions, I asked her how she would like to proceed and what she was requesting the court to do in respect of the financial issues, in the face of the aborted trial and her inability to cross-examine the father. She did give me evidence about her section 7 expenses for the child, as well as evidence on how much she herself was earning – about $15,000 per year in a part-time job at minimum wage.

[32] Mother was adamant that her inability to cross-examine the father on his income had prejudiced her case unless the court was willing to make an order simply dismissing the father's motion to change the child support.

The Access Issue Discussed

[33] The only contact that father has had with Philo since 2011 is through Skype. Mother says that this occurs about once each week and she is willing to allow it to continue, subject to certain restrictions. She stated that father uses these brief periods of interaction with Philo to tell him how wonderful the beaches are in the Dominican Republic and how wonderful it would be for the two of them to be together there, if mother would only permit that to happen. Mother, understandably, requests the court to prohibit father from engaging in such discussions with Philo, as it places him in the middle of a dispute between his parents.

[34] Father had sought extensive liberal access, including visits to the Dominican during the year, telephone calls, and other forms of access. He spent his time testifying about the kind of access he wanted, but not why that proposed access was in Philo's best interests.

[35] He spent time in his testimony disparaging the mother and suggesting to the court that the mother is somehow not a fit parent.

[36] He did not deny the steps he has taken in the Dominican Republic in an attempt to obtain a custody order in contravention of the mother's custody order granted in the Province of Ontario.

[37] He described his current wife as a "pillar" and himself as simply a "father who wants his little boy to see his father".

[38] In essence, the father's evidence was about himself, or about the mother; it was anything but child-focused.

[39] With all of the evidence on the access issue now before the court, much of it is very troubling; so much so that an order for anything other than supervised access would clearly be contrary to Philo's best interests.

[40] Any access that might take place outside of Ontario could result in the loss of mother's custody entirely. When the parties were before Justice Brownstone on January 22, 2013, Justice Brownstone made the following endorsement:

The [mother] has received a letter from the Consul General of the Dominican Republic indicating that the [father] is pursuing a custody claim in the court of that country, and instructing her to attend that proceeding. This is very disturbing given the history of litigation in Ontario. [Father] should be prepared on the next court date to show why his custody/access claim shouldn't be stayed under the Courts of Justice Act, section 106 until he can demonstrate that all custody/access [claims] in the Dominican Republic have been terminated.

[41] Father had sent mother an email in March 2013 stating that his custody case in the Dominican "will continue to take its course". He also sent an email to Philo, telling the child to tell the mother to put him on a plane to the Dominican Republic. Mother responded to father's email that he should not involve their child in this dispute.

[42] During the course of the trial I heard no evidence on the custody/access laws of the Dominican Republic. I do not know whether mother's custody order in the Province of Ontario would be recognized in that jurisdiction, or whether she might be forced to re-litigate that issue in the Dominican Republic, in the event that father continued with that litigation.

[43] On the basis of what I have heard, it is not inconceivable that the father may have a passport from the Dominican Republic or elsewhere, and it is certainly not clear to the court whether, if he had unsupervised access to Philo, he might be able to remove Philo from Canada based on father's own residency/citizenship status in another country.

[44] Supervised access is the appropriate order to make, in the best interests of the child, for the following reasons:

1. The father is a flight risk. It would be far too dangerous to permit the father to have access to Philo while he is still so young, and before he is capable of making his own, mature decisions about whether to spend unsupervised time with his father.

2. The father has demonstrated poor judgment and impulse control in his interactions with Philo, including drawing Philo into the conflict between himself and the mother. Unsupervised access would enable the father to continue to say whatever he wishes to the child, without any monitoring or oversight from a trusted third party.

3. There is little or no meaningful relationship between Philo and the father. There has been no in-person access for about three years. The Skype access has been the sole means by which father has had contact with Philo. At the very least, there would have to be a meaningful and extended period of supervised access with Philo before the court could consider expanding access into the community.

4. Father cannot be trusted to accept the decision of this court insofar as custody and access is concerned. His ongoing litigation in the Dominican Republic together with his resolute stance that the litigation will continue, notwithstanding that Philo is a resident of the Province of Ontario, raises a serious concern. In this respect I echo the comments made by Justice Brownstone on January 22, 2013, which I referred to earlier in these reasons.

The Financial Issue Discussed

[45] In a change motion the burden of proof rests with the moving party – in this case, the father. Clarke v. Lavin, 2011 ONSC 6764

[46] That burden of proof means that he must present evidence which persuades the court, on a balance of probabilities, that there has been a change in circumstances subsequent to the making of the original order, which justifies the court in changing that order which, in this case, means reducing his child support obligation.

[47] As I noted at the outset of these reasons, Justice Brownstone had imputed an income to the father of $2,000,000, and he based child support on that amount. Justice Brownstone arrived at that amount following father's default, and based on submissions from the mother's counsel and the best evidence she was able to present on that default hearing. It was not based on a full evidentiary hearing with the father presenting his own evidence. However, it was father himself who was the author of this default hearing process.

[48] Subsequently, when the father brought his change motion, Justice Sherr allowed the father to proceed with his motion, deciding on an interim basis that support should continue on the basis of an income of $125,000 imputed to father. This income imputation was arrived at over the strong objection of the mother who provided Justice Sherr with considerable evidence of substantial assets in the father's name. But Justice Sherr's decision to arrive at the $125,000 amount, was for the sole purpose of allowing father to participate in the litigation, without deciding in any way that this was in fact the correct annual income to be attributed to father.

[49] It is important to note some of the comments Justice Sherr made in the context of his decision to allow the father to proceed with his motion to change, as follows:

The father's financial statement indicates that he can afford the support and costs decision contained in this decision. According to his financial statement sworn in August 2012, the father owns properties in the Dominican Republic and Turks and Caicos Islands, owns two vehicles, has an investment account of over $114,000, bank accounts of over $74,149 and an account receivable of $75,000. This does not include the value of any interest in the multiple corporations he has been (or still is) involved in.

If the father does not earn 2 million dollars per year, the court agrees that the current support order is prohibitive. However, the court is not prepared to accept the father's statement at face value that he is only earning $75,000 per annum at this time. He has provided little documentary corroboration of his income, failed to disclose his interest in multiple businesses, has historically earned much more income and appears to lead a lifestyle well in excess of this income. The father claims to be medically prohibited from earning more income, but has not provided proof of this. Further, the mother has set out evidence that the father owns or controls a significant amount of assets and has transferred his interest in corporations to his son.

I find at the very least that the father should have been paying the mother child support, based on an income level of $125,000 per annum since January 1, 2011 [namely $1,076 per month].

I wish to emphasize that I am not varying the order of Justice Brownstone or making any finding that the order is in any way inappropriate. I am only setting a minimum amount of support the father will need to pay to continue with this case.

[50] The whole point of what Justice Sherr did was to give father the chance to do what father claimed he had been deprived of by Justice Brownstone, namely, to participate in a full hearing, with a full evidentiary record. Simply put, Justice Sherr bent over backwards to help the father "get back in the game", so that the father could have his day in court.

[51] And yet, when given this opportunity, father abused it. First, he failed to participate in the trial management conference, before me, without explanation, without any notice at all, either to the mother or to the court.

[52] Next, he failed to file the documents he was required to file, both by Justice Sherr as well as by me.

[53] Third, when the trial began he still had not filed the documents. And despite this, I did not acquiesce to mother's request to dismiss the change motion.

[54] Fourth, when the father attended on the third day of trial, supposedly with all of the documents having been served on the mother and filed in court, it turned out that many of the documents simply were not present – either in the mother's brief or in the court's.

[55] Finally, and perhaps most significantly, the father refused to continue to participate in the trial after he had finished saying his piece on the morning of the third day of trial. Despite my attempts to redirect him, he continued to speechify according to his own agenda. He then summarily disconnected himself from the video link; by doing so he deprived the mother of any ability whatsoever to challenge his evidence, and to elicit testimony from him that might have been favourable to her own case.

[56] In short, the father made a mockery of much of the litigation process. And he did this at considerable expense, not only to scarce court resources, but also to the mother who had clearly expended a tremendous amount of time preparing for, and participating in this trial process.

[57] Having given considerable thought to all of this, I have reached the conclusion that the only fair result would be to dismiss father's change motion in respect of the financial issues.

[58] Almost all of what this court was given during the trial on the financial issues came solely from father's own evidence – as fractured as it was. And then, having said his piece, father refused to continue to participate in the trial process to the clear detriment of the mother. While the court was certainly open to the possibility that father may have been able to prove a lower income figure, that proof cannot materialize from an aborted trial process, where the cause of that aborted process rests solely with the father. For the court to give any other, more favourable consideration to the father's request for financial relief, would be manifestly unjust to the mother.

Possible Future Motion to Change

[59] Rule 14(21) provides as follows:

NO MOTIONS WITHOUT COURT'S PERMISSION

(21) If a party tries to delay the case or add to its costs or in any other way to abuse the court's process by making numerous motions without merit, the court may order the party not to make any other motions in the case without the court's permission. O. Reg. 114/99, r. 14 (21).

[60] Rule 15(27) provides as follows:

APPLICATION OF SUBRULE 14 (21)

(27) Subrule 14 (21) applies with necessary changes to a motion to change a final order or agreement. O. Reg. 322/13, s. 9 (3); O. Reg. 142/14, s. 8.

[61] In the case of Preston v. Markle, 2011 ONCJ 641, Justice Sherr considered whether to prevent any future change motions from being brought pursuant to subrule 15(27). At paragraphs 62 and 63 of his reasons, Justice Sherr stated:

[62] This sub-rule has been applied in high conflict cases where significant litigation has taken place. See: Fish v. Leung, 2006 ONCJ 112; Geremia v. Herb (No. 5).

[63] An order of this nature is a serious restriction on a parent's access to the court and should be reserved for cases where there have been several motions brought without merit. It is designed to prevent an abuse of the court's process. A review of the court history indicates that this case does not yet reach that level. There is no evidence that either party acted in bad faith in the litigation that led to the April 19, 2010 consent order. The original action resulted in a resolution that provided both parents with generous involvement with the child. I cannot make a finding that the contempt motion brought by the father in December of 2009 was without merit. The father was entitled to a mechanism to determine if the existing court order should be enforced. This motion to change is the first motion that the father has brought that has been ill-advised. It is not a sufficient foundation to make the requested order. The mother's request for this relief is dismissed.

[62] I agree with Justice Sherr's observations. In the present case, because there have not been "several motions brought without merit" I cannot make an absolute order preventing father from bringing a subsequent change motion. However, in my view, the father proceeded with this motion in bad faith and he abused the court's process. And because of that, and based on the authorities which I will shortly refer to, I can impose appropriate preconditions to any future motion to change which the father might be inclined to bring.

[63] The evidence of bad faith arises not only from what I have previously discussed in these reasons, but also the following:

1. Despite the father's obligation imposed by Justice Sherr to pay reduced ongoing child support in the amount of $1,076, the father never made a single voluntary support payment greater than $500 per month, from August 2013 to the present. And this, despite the father's own claim, in his motion to change, that he should be paying $682 per month.

2. Apart from Justice Sherr's order, on father's own sworn financial statement disclosing income of $85,000 per year (as noted earlier in these reasons), that support ought to have been $762 monthly.

3. Justice Sherr made it very clear that the father's claim for reduced support based on medical reasons would need to be supported by documentary evidence. The father ignored this during the trial. In fact, while he continued to refer repeatedly to his "heart" issues, he led no medical evidence whatsoever to corroborate this position.

[64] Returning to the necessity of imposing preconditions prior to the father bringing any further motion to change, I note that other courts have imposed requirements for the payment of outstanding costs orders before the moving party is at liberty to bring future motions to change. See, for example, Kordic v. Bernachi. I intend to do the same.

[65] Further, I note the wording of subrule 1(8), as follows:

FAILURE TO OBEY ORDER

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order. O. Reg. 322/13, s. 1.

[66] This subrule is very broad in terms of the authority it confers on the court to control proceedings where a person has failed to obey an existing court order.

[67] Accordingly, I will impose preconditions on any further change motion which the father might decide to bring. I do so in order to lessen the likelihood of any future misconduct on father's part, including wasting the scarce resources of this court as well as unfairly drawing the mother into unmeritorious litigation.

[68] Before bringing any future motion to change, the father shall first satisfy the court, by way of supporting documentary evidence, appended to a 14B motion form, that he has satisfied the following conditions:

1. That he has paid the costs arising from the present motion to change;

2. That he has paid not less than 40% of his total child support obligation from January 1, 2012 until the date of any change motion, and that he has made those payments in the following manner:

   • a. From November 1, 2014 until the date of his change motion, the father shall pay not less than 20% of his child support obligation on a current monthly basis, namely, $2,991 per month; and
   • b. Within 30 days prior to filing his 14B motion form he shall have paid a lump sum of up to a further 20% (to make up the total of not less than 40%, as aforesaid) of his total child support obligation from the date of Justice Brownstone's order to 30 days prior to the date that father files his 14B motion seeking leave to bring a further motion to change, such lump sum payment to be reflected on the statement of arrears as issued by the Family Responsibility Office.

3. Contemporaneously with his 14B motion, he shall file an up-to-date statement of arrears from the Family Responsibility Office setting out that all the foregoing such payments have been made by him; and

4. The court reserves the right to impose any additional conditions on the father which may be appropriate, fair and just in the circumstances at such time as the father seeks permission to proceed.

[69] I wish to make it clear that while the aforesaid payments totalling not less than 40% of the child support is one of the preconditions for the father to bring any further motion to change, this court is in no way suggesting that it sanctions anything less than full compliance with the existing child support order.

[70] I intend to maintain control over this case, and any future motion to change, so that the father should understand that I will be insisting on full compliance with the foregoing preconditions.

The Order

[71] In the result, I make the following order on a final basis:

1. The father's claim for a reduction in his child support obligation, as set out in his motion to change, is dismissed in its entirety.

2. The father shall be entitled to the following access:

   • a. Supervised access with Philo at either an Ontario Ministry-run or privately-run and accredited supervised access centre. All access-related costs are to be borne entirely by the father, including any transportation or related costs incurred by the mother in connection with transporting Philo to and from the access location.
   • b. The initial steps to arrange the supervised access shall be taken by the father, who shall then provide documentary proof to the mother that he has taken those steps, following which the mother shall take reasonable steps to cooperate in the implementation of the access. Thereafter, the actual times and places for the exercise of access shall be in accordance with the availability of the access centre and the availability of each of the parents, acting reasonably.
   • c. The father shall be entitled to Skype access with Philo once each week, the times to be arranged directly between the parents in writing or by email, each parent to act reasonably. During the Skype access, the father shall refrain entirely from engaging with Philo in any manner which suggests that Philo should be visiting with father in the Dominican Republic, or in any location other than Toronto, and in any way other than at the approved supervised access location. In the event father breaches this provision, or otherwise engages in inappropriate conversation with Philo, the mother is at liberty to summarily terminate the Skype access. Any additional costs which the mother must reasonably incur to permit Skype access to occur, for example, the cost of Broadband internet access, shall be borne entirely by the father, in which case the mother shall first provide the father with reasonable documentary proof of such added costs.

3. Both parents shall refrain from speaking ill of the other parent to Philo, and each parent shall ensure that their family, friends and anyone who may come into contact with Philo shall similarly so refrain from engaging in such conduct.

4. The father, or anyone acting on his behalf, is prohibited from removing Philo from the Province of Ontario without the written consent of the mother, or court order.

5. In the event the father removes Philo from the Province of Ontario, contrary to this order, the police having jurisdiction, as well as the RCMP, shall be authorized and directed to locate and apprehend Philo and return him forthwith to his mother, pursuant to section 36 of the Children's Law Reform Act.

6. The mother is authorized to apply for, and be the custodian of all government documents for Philo and she is further authorized to apply for, and renew, Philo's passport without the consent of any other person, including the father.

7. The mother is at liberty to travel outside of Canada with Philo without the consent of any other person, including the father.

8. In the event the mother travels with Philo outside Canada, or otherwise causes Philo to be unavailable for previously-scheduled supervised access or Skype access, she shall give 14 days' notice in writing to the father, including notice of her intended return date so that the father will be informed of the resumption date for his access with Philo.

9. In the event the father seeks unsupervised access to Philo in a future change motion, he shall, at a minimum, provide a written undertaking, which shall be signed, witnessed, dated and notarized, stating:

   • a. His acknowledgment of mother's present custody order;
   • b. His acknowledgment that the court in the Province of Ontario retains sole jurisdiction over the issues of custody and access for so long as Philo's habitual residence remains in the Province of Ontario; and
   • c. That, regardless of any alleged material change in circumstances subsequent to the date of this order, he will refrain from pursuing orders for either custody or access in any jurisdiction outside of the Province of Ontario.

10. The father shall pay costs to the mother in the amount of $3,000 in respect of this motion to change.

11. The father shall seek permission from the court before proceeding with any further change motions, such permission being conditional on the father satisfying conditions numbered 1, 2, 3 and 4 as set out earlier in these reasons.

Concluding Comments

[72] I have a few concluding comments to make.

[73] First, mother sought certain section 7 expenses pursuant to the Child Support Guidelines. Given the size of the table amount of support – almost $15,000 per month – I decline to make any section 7 award. However, I do so without prejudice to the mother to raise this issue again in any subsequent motion to change brought by the father.

[74] Second, with respect to the costs order I have made, I consider this order to be nominal given the three days of trial and the preparation and work mother was put to. Although she represented herself, she was required to take time off from her part-time job and she incurred out-of pocket expenses. Had she been represented by counsel, the costs would likely have been many times this amount.

[75] Third, it is clear to me that although the father represented himself in this proceeding, he is a very intelligent person, as well as a sophisticated businessman. While it is apparent that he loves his son, he will be able to normalize his relationship with Philo only when he finally accepts that Philo will be remaining with his mother on a full-time basis, and that his mother will be the parent responsible for making the caregiving decisions which must be made while Philo is growing toward adulthood.

[76] And finally, it is important for father to understand that, at all costs, young children must not be drawn into litigation disputes between parents, as he has done with his son. Philo is entitled to enjoy his childhood, free from such conflict and turmoil. No matter how much the father believes that he is justified in doing what he has done, if he involves his child in the manner I have averted to in these reasons, he runs the risk of causing Philo irreparable emotional harm.

[77] The court staff shall prepare this order and, following approval by me, shall send it to each of the parents.

Justice Robert J. Spence

October 28, 2014