ONTARIO COURT OF JUSTICE

CITATION: Doan v. Tran, 2022 ONCJ 419

DATE: 2022 08 10

COURT FILE No.: BRAMPTON 19-204

BETWEEN:

TUAN HOA DOAN

Applicant Father

— AND —

THI THANH THUY TRAN

Respondent Mother

Before Justice S. Cleghorn

Heard on July 28, 2022

Reasons for Judgment released on August 10, 2022

Tuan Hoa Doan.......................................................................... Jerrod Grossman

Thi Thanh Thuy Tran................................................................. Self-Represented

CLEGHORN J.:

[1] A focussed hearing was held on July 8, 2022, where the sole issue which requires judicial determination is which parent is to have the primary residence for the child, Sophia Tran Doan, born […], 2016.

[2] The matter is before the court on a Motion to Change the final order of Justice Cheung, dated September 20, 2019. The order provides for the following:

1. The parents share joint decision-making responsibilities.
2. The father pays child support in the amount of $500.00 per month based on an income of $54,200.00.
3. The father’s parenting time as of June 23, 2019, consists of every Sunday at 11:00 a.m. until Wednesday mornings when Sophia was to be dropped off at daycare. The mother’s parenting time consists of Wednesdays after daycare until Sunday at 11:00 a.m.

[3] The order of September 20, 2019, was a consent order. When it was agreed on, both parents were living in Mississauga.

[4] The father, Mr. Doan, brought the Motion to Change as the mother, Ms. Tran, unilaterally changed the ordinary residence of Sophia from Mississauga to Toronto.

Evidence at the Hearing

Evidence of the Father, Tuan Hoa Doan

[5] On May 21, 2021, Mr. Doan received an email from Ms. Tran, in which she wrote:

I will move to Toronto this June. The location to drop off and pick up Sophia should be changed from June 2^nd. I think the intersection of Jane and thetheway (sic) will be better because I was familiar to that area.

[6] Mr. Doan emailed the mother a reply on May 22, 2021, stating the word “No”. Both parents hired lawyers and Mr. Doan has maintained his objection to the move.

[7] On September 2, 2021, Mr. Doan was informed, through counsel, that Ms. Tran had registered Sophia at Brookhaven School in Toronto. Sophia had previously been enrolled at Silver Creek Public School in June 2021.

[8] Prior to the move to Toronto, Sophia had lived in Mississauga since birth. Sophia’s family doctor, cousins, and her paternal grandparents, all live in Mississauga. She was enrolled in a daycare that is attached to Silver Creek Public School (the school she will attend if she lives with Mr. Doan during the school week).

[9] In terms of employment, Mr. Doan is self-employed in the construction field. He testified that he arranges his own work schedule and will ensure he is available to both drop off and pick up Sophia for the start and end of the school day. The school is a one-minute walk from his home.

Evidence of the Mother, Thi Thanh Thuy Tran

[10] Ms. Tran moved from Mississauga to Toronto for employment purposes. She previously held employment at a nail salon. To her credit, Ms. Tran successfully completed a course of study at Humber College to become a law clerk. She found full-time employment in that field in Toronto in January 2020. Ms. Tran did not update Mr. Doan at any time about her graduation from college or advise him that she found employment in Toronto.

[11] For the first year of employment, Ms. Tran commuted to work. The parenting schedule remained the same. She moved to Toronto, with Sophia, on May 30, 2021.

[12] Ms. Tran’s position is that she did provide notice of the move, through the email she sent. She claims Mr. Doan behaved unreasonably in refusing to discuss changes to the parenting schedule.

[13] Ms. Tran acknowledged that she did not provide her new address to Mr. Doan. Her evidence is that she did provide him her address when it was included in an affidavit for these proceedings in August of 2021. Ms. Tran did not disclose any details surrounding her new housing, or that there were other adults living in the home. She figured Mr. Doan would not be interested in such information.

[14] Ms. Tran testified to the many benefits of the move, for her. It substantially reduced her commute to work, which allows her to spend more time with Sophia. She will be able to have Sophia follow a daily structure for studying, playing, and sleeping. Her work hours are from 9:00 a.m. until 5:30 p.m. Her plan for Sophia’s afterschool care is to have her aunt assist her. The school that Sophia would attend is a short distance from Ms. Tran’s residence, less than 2 km away from her home.

[15] Ms. Tran has found accommodations with two other roommates. Both are women. One she knows from college, while the second person is someone she only met after moving into her new home. Ms. Tran has the use of one of the bedrooms and the remaining portion of the home is shared with the two roommates.

[16] In terms of explanation for why she believes Sophia is better off in her care from Monday to Friday, is that she is a woman and, therefore, better able to understand her daughter’s emotional and physical needs. In her words, “My daughter is at formative age of her life, and she will come to the developing period. She needs her mother beside her for the daily life to balance the schedule of school and other activities.”

Analysis

[17] The parenting schedule, as previously ordered by the court, remains in place. However, it must change prior to the start of school in September 2022, as Sophia will be entering Grade 1. For the last portion of the school year, 2021/2022, Sophia was only able to attend Kindergarten 3 days a week because Ms. Tran is living in Toronto.

[18] The parents agreed that they are both capable of meeting Sophia’s day-to-day needs. For this reason, this hearing focused only on one issue; with which parent should Sophia have her primary residence?

[19] Both parents agree that Sophia should be with one parent from Sunday at 7:00 p.m. until Friday after school, and with the other parent every weekend from Friday after school until Sunday at 7:00 p.m. If there is a PD Day or statutory holidays, the parent who has Sophia for the weekend, will have an extended day, either the Thursday after school or the Monday until 7:00 p.m. The Christmas holidays are to remain as set out in the order of September 20, 2019. There is an agreement that in the summer months, Sophia will enjoy a week about schedule.

[20] In terms of the factors as set out in section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, both parents have agreed they are equally positioned to parent Sophia. Meaning, both parents can meet the best interest of their child.

[21] What must be decided, is what is to occur when one parent makes a unilateral decision which significantly impacts the status quo.

[22] I will begin with the notice requirements.

[23] Ms. Tran’s position is that she gave notice of the move to Mr. Doan. She attempted to convince Mr. Doan that the parenting schedule should remain the same and that it was only the location for drop-offs and pick-ups that required a change. I do not accept this interpretation of what transpired.

[24] Ms. Tran knew that moving Sophia to Toronto would result in a change to Sophia’s school. The parenting schedule could not be followed given the distance between the homes of the parents and where Sophia would need to attend school every day. I suspect that Ms. Tran had hoped, that if she presented the move as requiring only a change in location for exchanges, that when it came time to enroll Sophia in school, Mr. Doan would simply agree to Sophia attending school in Toronto. She does not understand why Mr. Doan is making things difficult for her.

[25] The legislation is clear on what constitutes notice for a move. The Children’s Law Reform Act, R.S.O. 1990, c. C. 12 s. 39.1(1) sets out the following:

A person who has decision-making responsibility or parenting time with respect to a child and who intends to make a change in residence, or in the child’s residence, shall notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention.

Notice Requirements

(2) The notice shall be in writing and shall set out,

(a) the date on which the change is expected to occur; and

(b) the address of the new residence and contact information of the person or child, as the case may be.

[26] Ms. Tran did not comply with the legislation.

[27] The legislation exists to avoid what has transpired here.

[28] It is evident to me that Ms. Tran felt she was entitled to make a unilateral decision and that Mr. Doan should just accept what she decides is best for Sophia. Ms. Tran gave no evidence of how the impact of the move would affect Sophia and her relationship with Mr. Doan. In the end, Ms. Tran felt it was unnecessary to inform Mr. Doan about finding employment in Toronto, details surrounding her new housing, and basic information about enrolling Sophia in a new school.

[29] From the evidence it appears that Ms. Tran made minimal, if any effort, to find employment in Mississauga or Brampton once she had completed college. This is unfortunate because if Ms. Tran had secured employment in either of those locations, this matter would not be before the court.

[30] Ms. Tran focused on how unreasonable Mr. Doan was, refusing to negotiate and taking a hard stand. Ms. Tran fails to appreciate that her move will result in a significant change to the existing parenting schedule; a schedule which ensured that both parents were actively involved in all aspects of Sophia’s life, her education, and her socialization.

[31] Both parties gave evidence about how the Motion to Change was started, and why there was a delay as the final order of Justice Cheung dated September 20, 2019, had not been taken out. The fact of the matter is that all this is of little relevance to the issue before the court. Ms. Tran moved well before she contemplated starting litigation.

[32] I will now turn to the credibility issue raised on this hearing.

[33] During cross-examination, Ms. Tran attempted to attack Mr. Doan’s credibility on the issue of whether he had purchased his home or was renting. The parties gave their evidence in chief through affidavits. Mr. Doan’s affidavit, at paragraph 35, reads in part:

I have lived at my current home for over 10 years. My home was purchased following separation and in order to be closer to my daughter.

[34] During cross-examination the father testified that the wrong choice of words had been used in his affidavit. He clarified that he rents his home.

[35] I accept the father’s evidence that an error was made in his affidavit. In the end, nothing of weight turns on whether he owns or rents his home when deciding who is to have the primary residence. The critical point taken from this evidence is that the father has maintained a stable residence for Sophia for several years.

[36] It is no different than Ms. Tran testifying that she did not really understand how to properly fill out Form 35.1, where she failed to disclose that she was living with other adults at her new residence in Toronto.

[37] Turning to Ms. Tran’s principal reason for why Sophia should be in her care Mondays through Fridays; I accept that Ms. Tran believes she is the parent best situated to meet Sophia’s needs because Sophia is a girl. This belief is not grounded in the evidence. Since her birth, both parents have played an equal role in meeting Sophia’s day to day needs. Both have been active participants in Sophia’s daily life. They agree that Sophia is a happy, well-adjusted child, deeply bonded to both her parents. Sophia is thriving based on the evidence I heard. This is to the parents’ credit.

[38] It is for this reason, on an earlier court day of June 1, 2022, both parents agreed to abandon their claims for sole decision-making responsibilities. Before the court are two, loving, capable parents who can work together to meet the best interests of their child when they choose to do so.

Law

[39] This leaves the law.

[40] Mr. Grossman, counsel for Mr. Doan, provided the following cases:

Canning v. Davis-Hall, 2019 ONCJ 971, paragraph 34: “It is inappropriate for a parent to make secret plans which will have significant impact on children and parenting arrangements, and then announce those plans after decisions have been implemented.”

Guertin v. Dumas, 2017 ONSC 4979, paragraph 36: “The court order specifically states that the parties are to make joint decisions on the child’s education. Court orders are not suggestions. Court orders are to be followed. The mother did not follow the existing court order as she did not obtain the father’s consent to change schools and vary his access with his daughter.”

Fallis v. Decker, 2013 ONSC 5206, paragraph 26: “Parents take unilateral action at their own peril. The court simply cannot sanction self-help in circumstances where the best interests of children may potentially have been jeopardized.”

[41] The evidence in this matter is clear. Ms. Tran decided to move to Toronto with Sophia as she felt, for some reason, that she was able to make such a unilateral move. The consequences for this action will only serve to negatively impact Sophia. The parents had managed to work out the parenting schedule and decision-making to best meet Sophia’s needs up until May 30, 2021. Their hard work and dedication to their daughter is evident; post-separation they have a happy, well-adjusted child with two loving homes.

[42] Regrettably, Ms. Tran’s unilateral decision means Sophia must undertake a transformative change. She now must get used to her mother’s new home, in a different city, with a new parenting schedule. The actions of Ms. Tran cannot be condoned by the court.

[43] As a result, I am satisfied that it is in Sophia’s best interests to have her primary residence in a community that she already knows, to attend a school with which she is already familiar and continue to enjoy a close relationship with the extended family and friends who live close by.

Final Order

[44] The final order to issue is as follows:

1. Paragraph 5 of the court order of the Honourable Justice Cheung dated September 20, 2019, shall be rescinded.
2. The primary residence of Sophia Tran Doan, born […], 2016, shall be with Tuan Hoa Doan, commencing September 1, 2022.
3. Thi Tran shall have parenting time with the child, Sophia Tran Doan, born […], 2016, every Friday from 6:30 p.m. until Sunday at 8:00 p.m. In the event that Friday is a PD Day or statutory holiday, the parenting time will begin on Thursdays at 6:30 p.m. In the event that Monday is a PD Day or statutory holiday, parenting time shall be extended to Mondays at 8:00 p.m.
4. Exchanges shall occur at a location that is a mid-way point between the parents’ homes. In the event that the parents cannot agree on a mutual location, Thi Tran shall collect Sophia from Tuan Doan’s home for the start of her parenting time. Tuan Doan shall collect Sophia from Thi Tran’s home for the start of his parenting time.
5. Commencing in July 2023 and every summer thereafter, the child, Sophia Tran Doan, born […], 2016, shall have a week about parenting schedule for the full duration of the school summer vacation. If the parents cannot agree on when the summer holiday schedule begins and ends, the first week will begin the Friday after the last day of school and the summer holidays will end on the Sunday prior to the start of the school. In the event the parties cannot agree, a week shall consist of Friday at 8:00 p.m. until the following Sunday at 8:00 p.m.
6. The obligation of Tuan Doan to pay child support to Thi Tran, pursuant to paragraph 3 of the final court order dated September 20, 2019, shall terminate on August 31, 2022.
7. Thi Thanh Thuy Tran shall pay child support to Tuan Hoa Doan, for the child, Sophia Tran Doan, born […], 2016, in the monthly amount of $309.50 commencing September 1, 2022, and the first of each month thereafter until further order of the court. The amount of child support is based on Thi Tran’s annual income of $40,280.00 which provides for a Table amount of $362.00 and Tuan Doan’s annual income of $36,023.00 which provides for a Table amount of $315.00. Thi Tran shall pay the full Table amount for the months of January through June AND September through December. There shall be an off-set of child support for the months of July and August of $47.00 per month (Thi Tran paying the amount of $47.00 per month to Tuan Doan).
8. If costs are at issue, Tuan Doan may provide written submissions, limited to five pages, double-spaced, excluding any offers to settle, within fourteen days of the release of this decision. Thi Tran may provide written submissions, limited to five pages, double-spaced, excluding any offers to settle, within thirty days of the release of this decision. Should no submissions be received after thirty days of the release of this decision, there shall be no order as to costs.

Released: August 10, 2022

Signed: Justice S. Cleghorn