Court File and Parties

Court File No.: D51623/10 Date: 2014-10-30

Ontario Court of Justice

Between:

N.F. Applicant

- and -

M.A.B. Respondent

Counsel:

• Barry Nussbaum, for the Applicant
• Glen A. Cook, for the Respondent

Heard: October 27-28, 2014

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] In late July of 2013 the applicant (the mother) traveled to India with the parties' four children (the children). Pursuant to the June 6, 2013 order of Justice Harvey Brownstone (the travel order), the mother was supposed to return to Canada with the children in four weeks.

[2] Instead, the mother remained in India with the children.

[3] The respondent (the father) brought the matter back to court. On October 2, 2013, Justice Brownstone directed the mother to return the children to Canada, failing which the father would have temporary custody of them.

[4] The mother still did not return with the children to Canada.

[5] On December 19, 2013, Justice James Nevins made a final order granting the father custody of the children (the Nevins order). He also made orders that the father may bring the children back to Canada without the mother's consent and that the mother shall not remove the children from the City of Toronto. This order changed the existing final custody order of Justice Harvey Brownstone, dated April 19, 2011 (the Brownstone order). That order had granted custody of the children to the mother.

[6] The mother eventually returned to Toronto with the children on May 24, 2014.

[7] The children were placed in the father's care, with police assistance, on June 19, 2014. They continue to live with him.

[8] The mother has brought a motion to change [1] or to set aside the Nevins order and to restore the Brownstone order, as amended by the travel order. In the alternative, she seeks to change the Nevins order to place the children in her custody. [2] In the further alternative, she seeks an order that the children spend equal time with both parents.

[9] The father asked the court to dismiss the mother's motion to set aside or change the Nevins order. In the event that the Nevins order is set aside or changed (and the Brownstone order, as amended by the travel order, is restored), he asks that the Brownstone order, as amended by the travel order, be changed to grant him custody of the children.

[10] The issues to be decided on this trial were [3]:

a) Should the Nevins order be changed or set aside?

b) If the answer is no, has there been a material change in circumstances that affects or is likely to affect the best interests of the children, that warrants granting custody of the children to the mother?

c) If the answer to this question is no, what access order for the mother is in the best interests of the children?

d) If the Nevins order is set aside or changed, and the Brownstone order, as amended by the travel order, is restored, has there been a material change in circumstances that affects or is likely to affect the best interests of the children that warrants granting custody of the children to the father?

[11] During the trial, the parties were able to agree on a parenting schedule for holidays. The terms of that consent will be incorporated into this order, subject to a few amendments that were made by the court, for the purpose of clarification.

Part Two – Factual Background

[12] The mother is 30 years old. She is presently unemployed. She plans to attend college in the near future. This will be on a part-time basis if she regains custody of the children.

[13] The father is 41 years old. He deposed that he has a medical degree from India and worked as an Orthopedist in India. He is working as a truck driver in Canada. He deposed that he would have to go back to school for four years to be able to practise medicine in Canada. He does not plan to do this.

[14] The parties were married in India in 2003. The father sponsored the mother to come to Canada in 2004. She became a Canadian citizen in 2007.

[15] The children were all born in Canada. W. is 9 years old. S. is 8 years old. B. is 6 years old and R. is 5 years old.

[16] The parties separated on June 13, 2010. The children primarily lived with the mother after the separation and visited frequently with the father.

[17] On April 19, 2011, the Brownstone order was made on consent. It set out that the mother had final custody of the children and that the father would have access each weekend from Friday evening until Sunday evening. The order also set out several incidents of custody and access and the father's child support obligations.

[18] The parties were divorced in June of 2011. No corollary issues were addressed in the divorce.

[19] The father remarried in August of 2011. His wife lives in India. He has sponsored her to come to Canada to live with him. He does not know when this might happen.

[20] The mother remarried in 2012. Her husband lives in Australia. She says that she has no plans to move to Australia and her husband has no plans to move to Canada. They have one child together who was born in […] of 2014. The mother stated that her husband will visit Canada on occasion. She said that he sends her money whenever she needs it.

[21] The matter returned to court on a motion to change in 2013. The matter was resolved with the making of the travel order on June 6, 2013. [4]

[22] The children spent most of the month of July of 2013 with the father.

[23] The mother took the children to India at the end of July of 2013 and did not return to Canada at the end of the four weeks permitted in the travel order.

[24] The father brought a motion without notice on October 2, 2013. Justice Brownstone ordered that the children be returned to Canada, failing which the father would have temporary custody of them.

[25] The father deposed that he had no way to contact the mother in India. He enlisted the help of the police in Toronto, as well as the police in India, to locate the mother.

[26] The father traveled to India to locate the children on October 7, 2013. He filed an official complaint with the police in India. The police in India were able to locate the children about 10 days later. They arranged for the father to see the children at the school they were attending. The father says that the mother subsequently prevented him from seeing or talking with the children.

[27] The father returned to Canada on October 24, 2013. He obtained a temporary custody order on October 31, 2013, as the mother had not returned the children to Canada as ordered by Justice Brownstone.

[28] The father returned to India on November 4, 2014. He started a court action in India for custody of the children. The matter first came before the court in India on November 11, 2013. The mother attended that court appearance with counsel. The case was adjourned, at the mother's request, for her to file responding material.

[29] In November of 2013, the mother advised the police, both in Ontario and in India, that she intended to return with the children to Canada, but she was too sick to do so at that time.

[30] The father obtained the Nevins order on December 19, 2013. The mother did not attend at court.

[31] In February of 2014, the father issued a contempt motion in this court. The father withdrew the motion on February 28, 2014. Justice Nevins endorsed that the father should proceed instead with an application to have the children returned to Canada pursuant to the Hague Convention.

[32] The mother returned to Canada with the children on May 24, 2014. She issued her motion to set aside the Nevins order on June 2, 2014. She did not call the father at that time and let him know that she had returned to Canada.

[33] The police removed the children from the mother's care and delivered them to the father pursuant to the Nevins order on June 19, 2014. The children continue to reside with the father.

[34] On June 23, 2014, on consent, Justice Robert Spence made a temporary access order. During the summer, access for the mother was to be each weekend from Thursday at 6 p.m. until Saturday at 6 p.m. Once school started, access was to start on Friday evenings at 6 p.m. This was the access order in place at the time of the trial.

Part Three – Motion to Change or Set Aside the Nevins Order

3.1 Mother's Evidence

[35] The mother testified that the father orally agreed that she could keep the children in India until May of 2014, being the end of the school year. She deposed that he encouraged her to do this as he wanted the children exposed to Indian culture and to have an Indian education.

[36] The mother said that she obtained visas for the children that would enable them to stay in India until the end of the school year. She stated that she lived with her parents and that the father was in frequent telephone contact with her and the children while they were in India.

[37] The mother said that the father had several visits with the children when he made his two trips to India in the fall of 2013. She said that she offered that he could take the children back to Canada with him at the end of October of 2013, but the father said that he wanted the children to finish their school year.

[38] The mother claimed to have no knowledge of any of the court orders made in Canada until she returned to Canada on May 24, 2014. She said that her cousin handed her an unopened envelope with the court documents at that time. The mother said that she was never given any of the court documents for the Canadian court case once she left to India and had no knowledge of any court dates.

[39] The mother said that she explained to the police in both India and in Canada why she was in India with the children and told them that she intended to return to Canada.

[40] The mother testified that she was told by her lawyer in India that since both she and the children were Canadian citizens she should return to Canada to have the custody case dealt with. She wanted the children to finish their school year in India before returning to Canada. Once the school year was completed, they all returned.

3.2 The Father's Evidence

[41] The father told a very different story. He said that he never agreed that the mother could stay in India with the children for more than four weeks.

[42] The father said that he had no ability to contact the mother when she left to India. She did not provide him with an itinerary or with contact numbers. He said that emails he sent to her went unreturned. When the mother did not return with the children, he contacted the police in Toronto. The police investigated and advised him that the mother had vacated her apartment and new tenants lived there. They also told him that she was still in India with the children. They asked him to find some way to contact her and suggested that he return to Family Court in Canada.

[43] The father said that when he obtained the order from Justice Brownstone on October 2, 2013 for the mother to return the children to Canada, he took it to the police in Toronto. He also contacted the Canadian Foreign Affairs Department by telephone. They provided him with guidance on how to enforce the order.

[44] The father said that he then traveled to India on October 7, 2013 and sought police assistance. He filed an official complaint with them. The police in India located the children and facilitated the one visit. The police also provided him with the mother's telephone number. He said that the children told him that the mother was in Dubai at that time and had left them with the maternal grandparents for the past month. [5]

[45] The police in India advised the father that they could not place the children in his care without a court order from India.

[46] The father denied that he was offered the opportunity of taking the children back to Canada in October of 2013. He said that he returned to Canada on October 24, 2013 and obtained the temporary custody order in Canada on October 31, 2013.

[47] The father said that he faxed a copy of the October 31, 2013 order to the Ministry of Foreign Affairs in Ottawa and to the Delhi High Commission in India. He also left a copy with the Toronto Police.

[48] The father returned to India on November 4, 2013.

[49] The father said that he spoke to the mother by telephone on November 6, 2013 and told her he was in India to take the children back to Canada. He said that he told her about the October 31, 2013 order. She refused to give the children to him. He said that she would not let him see or speak to the children.

[50] The father said that he retained counsel in India and started a custody application. He said that all of the Canadian court papers were delivered to the mother at the first court appearance in India on November 11, 2013.

[51] The father said that he was able to obtain the mother's address and mailed her another copy of the October 31, 2013 order on November 30, 2013. He said that he also sent her a letter that day by courier, requesting that she give him the children pursuant to that court order.

[52] The father said that he returned to Canada on December 3, 2013.

[53] The father deposed that the mother was served by courier with the Nevins order on January 13, 2014.

[54] The father said that he spoke to the mother again in late January of 2014. He deposed that the mother said he could come and take the children back to Canada if he agreed to drop the India case first. [6] He said that he didn't trust her to give him the children, so he could not agree to this.

[55] The father said that the mother did not contact him when she returned to Canada in May of 2014.

[56] The father stated that he did not see the children (with the one exception at the school in India) from the end of July of 2013 until the police were able to place the children with him on June 19, 2014.

3.3 Legal Considerations

[57] The mother asked the court to set aside the Nevins order pursuant to either clauses (d) and (e) of subrule 25 (19) of the rules or pursuant to rule 19.08 of the Rules of Civil Procedure (RCP). These provisions read as follows:

CHANGING ORDER — FRAUD, MISTAKE, LACK OF NOTICE

25 (19) The court may, on motion, change an order that,

(a) was obtained by fraud;

(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

(d) was made without notice; or

(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

SETTING ASIDE DEFAULT JUDGMENT

19.08 (1) A judgment against a defendant who has been noted in default that is signed by the registrar or granted by the court on motion under rule 19.04 may be set aside or varied by the court on such terms as are just.

(2) A judgment against a defendant who has been noted in default that is obtained on a motion for judgment on the statement of claim under rule 19.05 or that is obtained after trial may be set aside or varied by a judge on such terms as are just.

(3) On setting aside a judgment under subrule (1) or (2) the court or judge may also set aside the noting of default under rule 19.03.

[58] The case law appears to establish that the court does not have jurisdiction to set aside an order pursuant to subrule 25 (19). It only has jurisdiction to change an order for the reasons circumscribed in the subrule. See: Boivin v. Smith, 2010 ONCJ 411 and Ontario (Family Responsibility Office, Director) v. Dick 2013 ONCJ 198 — both cases applying the reasoning in DiCiaula v. Mastrogiacomo (2006), 268 D.L.R. (4th) 180 (Ont. Div. Ct.).

[59] However, applying subrule 1 (7) of the rules, the court can import provisions contained in the RCP (if the matter is not adequately dealt with by the rules) to set aside an order. See: DaRosa v. Gillespie, 2013 ONSC 3072; Boivin v. Smith, supra and Ontario (Family Responsibility Office, Director) v. Dick, supra.

[60] Case law has set out the following factors for the court to consider when determining whether to change or set aside a default order or judgment:

a) The moving party must move promptly after learning of the order to have it changed or set aside.

b) The moving party must provide an adequate explanation for the default.

c) The moving party must establish an arguable case on the merits.

d) The moving party must act in good faith.

e) The court should consider the prejudice that may be suffered by the responding parties to the motion.

f) Rules concerning changing or setting aside default judgments are not to be applied rigidly.

g) The ultimate determination is whether the interests of justice favour changing or setting aside the judgment.

See: Scaini v. Prochnicki, 2007 ONCA 63; O'Donnell v. Davis, 2012 ONCJ 36; Ontario (Family Responsibility Office, Director) v. Dick, supra; Peterbilt of Ontario Inc. v. 156567 Ontario Ltd., (2007), 2007 ONCA 333, 41 C.P.C. (6th) 316 (Ont. C.A.); Chitel v. Rothbart, [1988] O.J. No. 1197 (Ont. C.A.).

3.4 Analysis

[61] If the court accepted the mother's evidence, it would have no difficulty changing the Nevins order pursuant to clauses (d) and (e) of subrule 25 (19) of the rules. The reason for the mother not coming to court in 2013 would be explained, as would her delay in coming to court to change the Nevins order. She would have established that she had moved to court promptly upon learning of the order, had an arguable case on the merits, acted in good faith and that the interests of justice favoured changing the order. The court would restore the Brownstone order, as amended by the travel order. There would be no need to apply the RCP.

[62] However, the court does not accept the mother's evidence and does not find her to be a credible witness.

[63] The mother's evidence that the father encouraged her to stay with the children in India for the school year, until May of 2014, was not credible. The father had just negotiated a term restricting the mother to traveling to India with the children for four weeks in the summer of 2013. There is no evidence that would indicate why he would change his mind about this.

[64] It was very clear that the father was distraught when the mother did not return with the children at the end of August of 2013. He made significant efforts to locate the mother. He took court action in Canada and India. He engaged the assistance of the police in Canada and in India. He engaged the help of the Canadian Foreign Affairs Department and the High Commission in India. He filed an official complaint with the police in India. These are not the actions of a person who has consented to his children remaining in India.

[65] The court found the mother's evidence to often be contradictory, evasive and defensive.

[66] The mother claimed to have no awareness of the Canadian court orders. However, the mother wrote a letter dated November 16, 2013 to the police in Toronto. In this letter she starts "in regards to the court order letter issued to M.A.B. regarding return of my children….". Later in the letter she writes: "recently I came to know through court that he reported that children's (sic) are missing, as he took advantage of the situation and laid a trap in making me guilty".

[67] These statements indicate that the mother had knowledge of the court orders to return the children to Canada.

[68] In this letter to the Toronto police, the mother said that: she fell sick, was currently undergoing treatment, required some time to return to Canada and that she was unable to afford returning to Canada due to financial hardship. She said that she was planning to come back to Canada as soon as possible "upon her recovery and treatment".

[69] The mother did not mention in this letter that the father had agreed to let the children stay in India.

[70] The court heard evidence from P.C. Patterson of the Toronto Police Force. He testified that the father contacted him in September of 2013 to report that the mother had not returned the children to Canada. He said that he contacted the children's school in Toronto and learned that the mother had traveled to India and intended to return in October or November. The father told him that he had no contact number for the mother, but did have an email address. P.C. Patterson said that he sent the mother two emails that went unanswered. [7]

[71] P.C. Patterson said that the father provided him with a telephone number for the mother in India in November of 2013 and he called and spoke to her. She told him that she couldn't return to Canada because she was ill. She also told him that she would send him a medical note together with proof of a return flight. She never did this. [8] He said that he warned the mother that criminal charges could be laid if she didn't return the children to Canada.

[72] P.C. Patterson said that he was able to reach the mother one more time in November of 2013. She told him that she would cooperate and the father could pick up the children in India. He advised the father about this. He said that he tried to reach the mother again in January and February of 2014 (after he learned that the mother had not given the father the children), but no one answered the phone.

[73] P.C. Patterson testified that he found the mother to be uncooperative and evasive.

[74] The mother also sent a letter dated November 5, 2013 to the police in India. In this letter, she said that due to her health problems she was extending her ticket and that she would return to Canada with the children soon. She said that she would inform the High Commission of Canada about the exact date of her travel. [9]

[75] This letter is further evidence that the mother was aware that the father was seeking the return of the children. It also contradicts her evidence that she offered him the opportunity to take the children back to Canada at the end of October of 2013 (as she certainly would have mentioned this in the letter). She also makes no mention in the letter that the father consented to the children remaining in India.

[76] It was very clear that the mother was also made aware of the Canadian court proceedings in the India court action. The India court application was given to her at court on November 11, 2013. This application sets out in detail the terms of the October 31, 2013 Canadian court order granting the father temporary custody of the children.

[77] The mother responded to the India custody application with her own affidavit sworn on December 26, 2013. This affidavit reveals that she had knowledge of the Canadian court action, contrary to her assertions in this court. She claimed in her affidavit that "having gone through severe trauma due to the actions of the father she came back to India by obtaining permission from the judicial authorities in Canada and by obtaining a Visa from the Indian Government". The mother also deposed that she had permission to take her children to India for the month of December of 2013 (not so) for four weeks and that out of an abundance of caution she is seeking an extension of the time period from the Canadian court to stay in Canada. [10]

[78] The mother does not say in this affidavit any of the following: that the father consented to the children remaining in India; that she had promised the police in both Canada and India to return the children to Canada; or that she wasn't returning the children because she was too sick. Rather, she represented that the reason she was staying with the children in India was due to the misconduct of the father. [11]

[79] When cross-examined at trial, the mother was asked if the main reason she didn't return to Canada was because she was sick (the reason she gave to both the police in Canada and in India). The mother answered, "No, he always suggested me to enroll in school in India. When we spoke on phone and I suggested it, he said ok".

[80] At trial, the mother never stated that she stayed in India with the children due to the misconduct of the father.

[81] The mother did not file any telephone records to support her allegations that the father frequently called and spoke to the children in India. [12]

[82] The evidence indicates that the mother has given different explanations to different authorities about why she kept the children in India and that she has difficulty keeping these explanations straight.

[83] The evidence also supports a finding that the mother deliberately took the children to India for an extended period in July of 2013. She vacated her apartment. The mother said that she had problems with her apartment. She had no place to live in Toronto upon her return. She did not enroll the children in school. She obtained extended visas for the children and herself. This was a planned event.

[84] The father provided corroborative evidence of the delivery of court documents to the mother. He filed proof of service on December 2, 2013 of a letter from him to the mother asking her to return the children to him pursuant to the October 31, 2013 temporary custody order. A receipt of delivery was filed. He also filed an affidavit of service that the Nevins order was sent to the mother by courier on January 13, 2014. It indicates that the mother's cousin, who lived at the mother's address in India, signed for the delivery. The father also filed an affidavit from his lawyer in India, who deposed that the Nevins order was filed in the court in India on January 21, 2014 and that the mother had knowledge of the Canadian court orders. The mother's letter to the Toronto police on November 16, 2013 reveals knowledge of a court order for her to return the children.

[85] Lastly, Justice Nevins endorsed on December 19, 2013 that he was satisfied that the mother had been served and was on notice of the proceedings and the order of October 31, 2013.

[86] The evidence supports this finding in Justice Nevins' endorsement.

[87] The court finds as follows:

a) The mother planned to move the children to India in contravention of the travel order.

b) The father did not consent to the mother remaining in India. To the contrary, he rigorously opposed this.

c) The mother unlawfully kept the children in India.

d) The father served the mother with copies of the Canadian court orders and proceedings in a timely manner.

e) The mother was aware of the Canadian court orders requiring her to return the children to Canada and deliberately disobeyed them.

f) The mother chose not to come to Canada to contest the father's claim for custody. She had knowledge of these court proceedings and was given adequate notice of them. The mother did not provide a satisfactory reason for her non-attendance at court.

g) The mother tried to hide the children from the father.

h) The mother obstructed the children from seeing or speaking with the father while they were in India.

i) The mother misrepresented to the police in both India and Canada, as well as to the courts in both India and Canada, the reasons why she stayed in India with the children.

j) The mother was aware of the Canadian court action by at least November 11, 2013 and the Nevins order by January 19, 2014. She did not move promptly to change or set aside the Nevins order.

k) The mother did not provide an adequate reason for her delay in moving to change or set aside the Nevins order.

[88] The mother submitted that if the court does not accept her evidence, it still should change or set aside the Nevins order. She argues that the court should not take a rigid approach to such motions [13] and shouldn't punish her for a single breach of an order. [14] She submitted that any change of custody should be based on the merits of the case and not be made pursuant to an undefended proceeding.

[89] The ultimate determination for this court is whether the interests of justice favour changing or setting aside the Nevins order. In the circumstances of this case, it would be a gross miscarriage of justice to do this. The mother essentially abducted the children to India and prevented the children from seeing or talking with their father – an essential person in their lives – for over 10 months. She lied to authorities about her actions and resisted attempts to have the children returned to Canada. She was aware of the Canadian court proceedings and chose not to address them in an appropriate manner. She does not have the right to a "do-over" when she decides to return with the children to Canada.

[90] A clear message also needs to be sent to litigants that such behaviour will not be tolerated by the courts and there will be consequences for it.

[91] Justice Nevins had the relevant facts before him when he made his decision. The mother had unlawfully removed the children from the jurisdiction and had ignored court orders for their return. It was in the best interests of the children at that time to change custody to the father, who had established that he was an appropriate caregiver for the children.

Part Four – Motion to Change Custody

4.1 Legal Considerations

[92] The court next needs to determine if the Nevins order should be changed based on a material change in circumstances that affects or is likely to affect the best interests of the children.

[93] Section 29 of the Children's Law Reform Act sets out the test to change a custody or access order. It reads as follows:

Order varying an order

29. A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[94] The Supreme Court of Canada decision in Gordon v. Goertz (1996), 19 R.F.L. (4th) 177 S.C.C. sets out a two-stage process for the court to conduct:

a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

[95] In Gordon (Paragraphs 10-16), the court discusses what evidence is required for the moving party to meet the threshold condition of establishing a material change in circumstances. The court says that the question is whether the previous order might have been different had the circumstances that now existed prevailed earlier. On an application to vary a custody order, the judge must be satisfied:

a) Of a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child;

b) Which materially affects the child; and

c) Which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[96] The onus of establishing the material change is on the person seeking the change. If the material change cannot be established, the motion is to be dismissed.

[97] Gordon states that the requirement of a material change in the situation of a child means that an application to vary custody cannot serve as an indirect route of an appeal from the original custody order (par. 11).

4.2 Analysis of Material Change

[98] The mother did not meet her onus of establishing a material change in circumstances that affects or might affect the best interests of the children since the making of the Nevins order.

[99] The mother cannot viably argue that her return to Canada with the children was a material change in circumstances. This was foreseen in the Nevins order. The order gave the father the right to have the children placed in his custody and returned to Canada.

[100] The mother also argued that the children are very unhappy with the father and that he is not attending to their physical needs. She claims that they are hungry and not being fed properly. She claims that the children, and in particular, S., fear the father.

[101] There was no credible evidence to support the mother's allegations. The mother's evidence is unreliable.

[102] The independent evidence presented to the court indicated that the children are happy, healthy and doing well in the father's care. The father produced school records for the children indicating that they are doing well in school and have an excellent attendance record.

[103] The court heard evidence from a social worker from the Children's Aid Society of Toronto. She was contacted by the police in June of 2014, when the children were taken from the mother and delivered to the father. The worker met with the father, the mother and the children and monitored the matter until she closed the file at the end of July of 2014.

[104] The worker testified that the children were comfortable and happy and had positive interactions with the father and their paternal grandmother (who lives in the home). The children all appeared to be healthy. She spoke independently to all of the children and they didn't disclose any concerns about living with the father.

[105] The worker said that the three boys told her that they were happy and comfortable living with the father and were content with how often they were seeing the mother (1-2 overnights each week). She said they were not seeking to spend more time with the mother.

[106] The worker said that S. told her that she would like to spend more time with her mother.

[107] The worker said that she met with the mother at the society's office. The worker had no protection concerns about the mother based on what the children told her. She said that her only concern would be about flight risk, if there was truth to the father's version of events.

[108] The father spoke with love and affection at trial about his children. He demonstrated to the court a sound understanding of their needs and was able to describe a structured routine for them. He has enrolled them in extracurricular activities and has arranged tutoring for them. He is a caring and responsible parent.

[109] The father was also able to express an understanding of the importance of the children having a good relationship with the mother and is open to her having generous access to the children. He has facilitated her access to date.

[110] The mother's motion to change the Nevins order based on a material change in circumstances is dismissed.

4.3 Best Interests of the Children

[111] In the event that another court finds that this court should have changed or set aside the Nevins order, or that it should have found that there has been a material change in circumstances that affects or is likely to affect the best interests of the children, this court will address what custody order would be in the best interests of the children. [15]

[112] Subsection 24 (2) of the Children's Law Reform Act sets out factors for the court to consider when determining the best interests of the children. This subsection reads as follows:

Best interests of child

24 (2) The court shall consider all the child's needs and circumstances, including,

(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.

[113] In reviewing these factors, the court finds that:

a) Both parents love the children and the children love them.

b) The children have a close relationship with the paternal grandmother.

c) The court received little independent evidence about the views and preferences of the children. The little evidence it received was from the social worker from the Children's Aid Society of Toronto, who indicated that in July of 2014, the three boys were content with living with the father and the amount of access time they had with the mother, while S. wanted to spend more time with the mother.

d) The mother was the primary caregiver of the children until June of 2014. This is an important consideration.

e) The children also spent considerable time (every weekend) with the father until the mother took them to India in July of 2013. He has provided a lot of the care for the children.

f) The father is better suited to provide the children with guidance and education. The children have had an excellent attendance record at school while living with the father. This was not the case when they were living with the mother. Their attendance records while living with the mother were poor. [16] In the 2012-2013 school year, the children had the following attendance record:

	Late	Absent
W.	52	15
B.	42	15.5
S.	71	9

The children's daycare also reported that in the 2012 school year the children were marked as absent in the morning approximately 100 times. This meant that they were too late to be walked to school, so the mother had to take them there herself. The children were marked as absent from the daycare for 28 days.

The mother did not have a good explanation for the children's poor attendance record. In her trial affidavit, she blames the poor attendance on the father's abusive behaviour to her and the children prior to the separation. This made little sense as the parties had been separated since 2010, had little direct contact and the attendance problems were taking place in 2012 and 2013.

The mother testified at trial that the children's poor school attendance was because she had difficulty getting the youngest child to cooperate in the morning. She did not explain how that would be different now, particularly with a newborn to deal with.

g) Both parents are able to provide the children with the necessities of life.

h) The father has a better plan to care for the children than the mother. He was able to clearly articulate the children's routine. He has the assistance of the paternal grandmother in caring for the children. The father has arranged his work schedule to drop off and pick up the children at school. If he is working, the paternal grandmother will do this. The father has appropriate accommodation for the children.

The mother has just moved her residence. She lives in a 2-bedroom apartment. She plans to have the baby and her daughter sleep in a room with her and the other three children share a room.

The mother's future plans were vague. It wasn't credible that she would be planning to live apart from her husband. The father deposed that the children have told him that if they live with the mother, she plans to move from Canada and live with him. This is a real possibility given the mother's past actions.

i) The father's plan will provide the children with more stability than the mother's. It will provide the children with a more secure and supportive environment. In M.L. v. B.H., [2012] N.B.J. 233 (NBQB) the court wrote at paragraph 37:

A secure and supportive environment includes not only the physical and emotional environment provided for the children, but also considerations of which parent is more willing to facilitate access and which parent is better prepared to communicate in a mature and responsible fashion (Rideout v. Rideout, (1998), 201 N.B.R. (2d) 249). B.H.'s action in abducting his children from M.L. and hiding them demonstrates not only poor judgment, but a complete disregard for M.L.'s parental rights….. Such behaviour is very detrimental to children and clearly demonstrates that B.H. puts his own selfish interests ahead of the best interests of his children. I agree with M.L. when she testified that S.H. can no longer be entrusted with the care of the children.

j) The father has established a better ability to act as a parent than the mother. In particular, he showed an understanding of the importance of both parents being involved in the children's lives. On the other hand, the mother acted egregiously by removing the children to India and preventing the children from seeing the father. She did not contact him when she returned to Canada to arrange access. The mother failed to show any insight at trial about how this could adversely affect the children. She demonstrated no remorse about the grief she caused the father over depriving him of contact with the children for over 10 months. The willingness of a parent to facilitate the children having a positive relationship with the other parent is an important factor in assessing the children's best interests. See: Moreira v. Garcia Dominguez, 2012 ONCJ 128.

k) The court remains concerned that the mother is a flight risk. She has shown little regard for court orders. She persisted at trial in presenting a version of events that was not credible. This gave the court little reason to trust her. She has incentive to leave the jurisdiction to live with her husband. Steps need to be taken to ensure she does not abduct the children again.

[114] The court also considered subsection 24 (3) of the Children's Law Reform Act which reads as follows:

Past Conduct

24 (3) The past conduct of a person is not relevant to a determination of an application under this Part in respect of custody of or access to a child unless the conduct is relevant to the ability of the person to act as a parent of a child.

[115] An abduction of a prolonged and serious nature is directly relevant to parenting, as is the failure of the abducting parent to admit the action or show remorse. See: Shamli v. Shamli, [2004] O.J. No. 1592 (Ont. SCJ).

[116] The court also considered subsection 24 (4) of the Children's Law Reform Act which reads as follows:

Violence and abuse

24 (4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person's household; or

(d) any child.

[117] The court considered that the father was convicted of assaulting S. in 2008. The father says that he did not commit the offence, but rather pled guilty, based on a promise from the mother that she would reconcile with him. This court will not look behind the guilty plea. The court at that time determined his guilt and although historical, it is a concern that the court considered seriously. This event is mitigated by the following:

a) There has been no repeat of this conduct since 2008.

b) The children appear to be happy and comfortable with the father.

c) The Children's Aid Society of Toronto worker has no protection concerns about the father.

d) The court was aware of this conviction, both when it granted the father significant access in 2011 and custody in 2013.

[118] The mother also made allegations that the father would assault and mistreat her when they lived together. She provided no corroborating evidence of these incidents and given her lack of credibility, these allegations have to be approached with caution. Further, these allegations predated the Brownstone order and did not preclude the court from granting him considerable time with the children.

[119] The court finds that it is in the children's best interests that the father have an order for sole custody.

Part Five – Access

[120] The Nevins order was silent about the mother's access. This court must still determine what access order is in the children's best interests, applying the best interest factors set out in subsection 24 (2) of the Children's Law Reform Act.

[121] The mother asked the court to make an equal time-sharing order. For the reasons set out above, such an order is not in the best interests of the children. The children need a stable and secure home and a parent who will get them to school each day on time.

[122] However, the evidence indicates that the mother should have generous access to the children in Ontario for the following reasons:

a) She has a close relationship with the children. They love her very much.

b) The mother has been the children's primary caregiver for most of their lives.

c) The mother spoke with great affection about the children at trial and cares very much about them.

d) The mother is able to appropriately feed, clean and attend to the day-to-day needs of the children.

e) S. expressed an interest in spending more time with the mother.

f) The children should have the opportunity of spending meaningful time with their new sibling.

g) The father agreed that it was best for the children to spend generous time with the mother.

[123] These positive factors are tempered by concerns about the mother's flight risk. The court is also concerned that the father reports that the mother is often very late in returning the children at the end of visits. This evidence was credible. [17] The court wants to make it very clear to the mother that it expects her to comply with the access times that will be set out in this order. If she doesn't, it might mean that her access will be reduced.

[124] The mother asked for the opportunity to care for the children while the father was at work. The court declines to make such an order. This case requires a highly structured schedule, where it is very clear when and where the children are supposed to be. An order, as requested by the mother, will potentially create ambiguity and make enforcement more difficult.

[125] The mother will have access to the children on two out of every three weekends in addition to the holiday access agreed to. She will now have two overnight visits on the weekends (instead of one) and the father will be able to spend a weekend with the children every three weeks.

[126] The court gave some consideration to granting the mother additional, exclusive time with S., as she was the one child seeking more time with the mother. The court decided not to make such an order at this time as it may cause resentment with the other siblings, it creates more access transitions with the parties (which should be avoided at this time, given the tension between them), and it could interfere with S.'s schedule during the school week.

Part Six – Clarification of Existing Orders

[127] It is important that the parties clearly understand what orders are operative.

[128] The Nevins order is still in effect. Additional parenting terms will be in effect as set out in this order.

[129] The Brownstone order and the travel order are no longer in effect.

Part Seven – Conclusion

[130] A final order shall go on the following terms:

a) The mother's motion to change or set aside the order of Justice Nevins dated December 19, 2013 is dismissed.

b) The mother's motion to change the order of Justice Nevins dated December 19, 2013, based on a material change in circumstances that affects or may affect the best interests of the children is dismissed, save and except for the non-removal clause in the order, which will be changed on consent, as set out below.

c) The mother shall have access to the children on two out of every three weekends, starting on October 31, 2014, from Fridays at 6 p.m. until Sundays at 6 p.m., extending until Mondays at 6 p.m., if the access weekend falls when there is a statutory holiday. The mother will have two consecutive weekends with the children, followed by the children spending one weekend with the father.

d) The children shall spend holidays with the parents as follows:

1. Each party shall have the children each Eid for half the day. The children shall spend the night before with the mother until 12 noon the next day, and then spend the remainder of the day with the father.

2. Commencing with the winter break school holiday in December 2014, in even-numbered years the father shall have the children with him for the first half of the holiday and the mother shall have the children with her for the remainder of the holiday.

3. Commencing in 2015, in odd-numbered years, the mother shall have the children with her for the first half of the winter school holiday and the father shall have the children with him for the remainder of the holiday.

4. The summer holiday shall be split each year with each parent having an entire month. Commencing in 2015, and in odd-numbered years, the father shall decide which month he shall have the children and he will give notice of this month by May 30, 2015. The next year, and in all even-numbered years, the mother shall give notice of the month she seeks by May 30th. The parties shall give notice by email at the email addresses set out in the Minutes of Settlement filed.

e) The holiday schedule shall take priority over the regular access schedule.

f) The mother may have such further and other access as the parties may agree to.

g) The father shall hold all passports and health cards for the children. The mother's counsel, who is presently holding these documents in trust, shall deliver them to the father's lawyer within 7 days of receipt of this decision.

h) Only the father shall be entitled to apply for or renew passports and other government documentation for the children. The mother's consent for him to do so is dispensed with.

i) The mother shall not remove the children from the Province of Ontario without prior court order.

j) All police officers, including the RCMP, the OPP and Canada Border Services are directed to enforce this order at the direction of the father.

k) All pickups and drop offs of the children shall continue at 43 Division Police Station in Toronto, unless the parties agree in writing to some other location.

l) The court orders dated April 19, 2011 and June 6, 2013 are no longer operative.

[131] If either party wishes to seek costs they shall serve and file written submissions by November 12, 2014. The other party shall have until November 24, 2014 to serve and file any responding submissions. The submissions shall not exceed 3 pages, not including any bill of costs or offer to settle the issue. The submissions should be delivered to the trial coordinators office on the second floor.

Justice S.B. Sherr

Released: October 30, 2014

Footnotes

[1] The mother seeks to change the Nevins order pursuant to clauses 25 (19) (d) and (e) of the Family Law Rules (the rules). These clauses give the court the discretion to change an order if an order was made without notice or if the affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court to be present. This is a distinct motion from a motion to change an existing order based on a material change in circumstances, pursuant to rule 15 of the rules.

[2] This would be a motion to change custody based on a material change in circumstances that affects or is likely to affect the best interests of the children pursuant to section 29 of the Children's Law Reform Act and rule 15 of the rules.

[3] It should be noted that the only claim in writing before the court was the mother's claim to set aside the Nevins order. However, the parties in filing their direct affidavit evidence addressed in detail whether the Nevins or Brownstone orders (depending on the outcome of the motion to set aside or change the Nevins order) should be changed. Both parties sought custody orders and were claiming there had been a material change in circumstances that affected or is likely to affect the best interests of the children. Counsel both agreed at the outset of the trial that the court should determine the issues listed in this paragraph, despite the lack of formal pleadings.

[4] This order also defined summer holiday access and determined that the father had no child support arrears as of September 1, 2012.

[5] The mother denied that she ever left the children or traveled to Dubai.

[6] Apparently, the case in India also included other claims against the maternal grandparents.

[7] The mother said that she had changed her email address and did not receive these emails.

[8] The mother did not provide the court with any evidence of a medical reason that would have prevented her from returning to Canada.

[9] The mother never notified the High Commission of Canada about her return date.

[10] The mother never sought this permission.

[11] When challenged on cross-examination about her affidavit revealing her knowledge of the Canadian court proceedings, the mother became evasive and then blamed her lawyer in India, claiming that she didn't really understand all of her sworn court documents.

[12] The mother did file affidavits from family members in India deposing the father and his family saw the children. These were contradicted by affidavits from the father's family members in India. There was no opportunity to cross-examine upon these affidavits. They had little value.

[13] Chitel v. Rothbart, [1988] O.J. No. 1197 (Ont. C.A.).

[14] Chin v. Chin [2010] O.J. No. 1558 (Ont. S.C.J.) This case stands for the proposition that a breach of a court order is not, by itself, a basis to change custody. Here, custody has already been changed. The issue is whether to change or set aside that order.

[15] If the court had changed or set aside the Nevins (restoring the Brownstone order, as amended by the travel order), the mother's failure to return the children to Canada would have been a material change in circumstances that would have justified the father asking the court to examine the best interests of the children.

[16] The father overstated the poor attendance in his evidence, claiming that the children missed school 50% of the time. The attendance, as reflected in the records, was not that poor.

[17] On the first day of trial, the mother inexplicably returned to court about 40 minutes late after the break for lunch.