CITATION

CITATIO N : Hong v. Rooney , 2012 ONSC 120

COURT FILE NO.: FC-10-034352-00
DATE: 2012-01-05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jeong Im Hong, Applicant

AND:

David Scott Rooney, Respondent

BEFORE: McGee J.

COUNSEL: Bola Adetunji, Counsel for the Applicant

Respondent, Self-represented

HEARD: November 23-25 and December 15, 2011

judgment

Overview

[ 1 ] The trial of this Application dealt primarily with the custody of young Cecilia Han Mae Rooney born April 21, 2007. She is the only child of the parties. There are no temporary orders for custody.

[ 2 ] Cecilia Han Mae was 20 months old at the time of separation, and four and a half years old at the time of trial. She has been in the care of her mother since the parties separated on December 23, 2008. The mother left the family home with the daughter, refused to disclose her address and effectively removed the father from their daughter’s life.

[ 3 ] From January 10, 2009 to April 10, 2010 the father had no contact with their daughter. He has secured visitation, and then parenting periods through court orders issued in this proceeding. He only received the particulars of his daughter’s school enrolment at the conclusion of this trial - contrary to the mother’s obligation to produce that information in a court order dated December 22, 2010.

[ 4 ] The witnesses called at trial were each of the parents and the father’s brother. The father’s mother was not available due to a recent medical procedure. Cecilia did not have counsel, nor was the court assisted by an assessment, or any other form of expert evidence regarding her views and preferences.

[ 5 ] To a lesser extent, the court also dealt with the mother’s claim for equalization arising from their 21 month marriage.

[ 6 ] The mother maintained the same counsel from the time of issuing this Application to the conclusion of trial. She spoke through an interpreter during the trial. The father’s counsel assisted him until the end of September 2011. The father represented himself during the trial.

[ 7 ] At the conclusion of a three day trial the court received submissions on the claim for equalization and made an oral ruling dismissing the claim. Written reasons follow herein. The court was not prepared to determine the issue of custody without further child centred evidence.

[ 8 ] The parents were directed to file updated Form 35.1 Parenting Affidavits. The Parenting Affidavits were to focus on their respective parenting plans and particulars of those plans. The parties were to reattend on December 15, 2011 for the opportunity to cross examine each other on the respective affidavits; and then to present closing submissions on the issues affecting Cecilia Han Mae.

[ 9 ] The reattendance was originally scheduled for a half day, but required a full day to complete. A temporary order issued that day has governed the parenting schedule pending release of this decision.

[ 10 ] Effective immediately, I am granting the father sole custody of Cecilia Han Mae Rooney, and making specified orders for the mother’s access.

Credibility of the Parties

[ 11 ] Where the evidence of the parties conflict, the court prefers the evidence of the respondent father, Mr. David Rooney. His evidence was clear, consistent, logical and at all times, child centred. The mother’s testimony was problematic from a number of perspectives.

Dichotomy of Mother’s Oral Testimony and Written Materials

[ 12 ] In form and substance, the mother’s oral testimony differed significantly from that of her written materials. Her oral testimony consisted of simple sentences punctuated by questions of clarification or understanding. She was lead through much of her direct testimony. She seemed confused by many questions of her own counsel. For example, she had trouble responding to her counsel’s questions on whether she has, or will in the future consult with the father on parenting decisions.

[ 13 ] In cross examination she struggled to answer the questions posed and would instead amble off on lengthy, unrelated avenues. Her cross examination was a source of much frustration.

[ 14 ] The mother would profess to not understand concepts as simple as the difference between a sole and a joint bank account; or the use of a line of credit. When asked why she did not comply with a term of a court order, or make a certain disclosure, or keep the father informed of their daughter’s care she would answer with surprise that “she did not know that,” or “now that I know that it will be better.”

[ 15 ] The mother’s written statements [1] were stunningly dissimilar. Without exception, all her written materials share the same cadence of sophisticated language and sentence structure. For example, at paragraph 12, page 6 of the Application she writes that,

The respondent and I have a joint bank account and I needed to have the account closed in order for me to get Social Services. Despite repeated requests and with knowledge of the implication of such on my ability to get Social Services, the respondent has refused to have the account closed.

[ 16 ] The court grew so concerned with the dichotomy between the mother’s oral and written evidence that over the course of the trial I inquired directly on a number of occasions whether she had written a certain document and whether she understood the contents. She assured the court that her documents were prepared by her, that the interpreter had reviewed them with her prior to signing and that she understood them.

[ 17 ] The court explored the possibility that the divergence was the result of translation variables. The mother testified at trial through an interpreter, although she would from time to time answer in English, or answer before a question was translated. I am satisfied that the translation did not distort the form or the substance of the mother’s testimony.

Mother’s Evidence Generally Unreliable

[ 18 ] The second issue with the mother’s evidence – as it unfolded - was that it proved generally unreliable. For example, the mother testified that she never spoke to anyone at the Mount Forest Bank because she did not speak English and did not understand banking. Later she confirmed that she has held her own bank account since entering Canada in 2001 and that she conducts all her own banking. She testified that she attended at the Royal Bank Head Office and spoke to the manager and a lawyer in her quest to close the joint bank account which the father was maintaining as the business account for their jointly owned restaurant. The mother admitted to attempting to cancel the vendor permit on the business, and then later denied it.

[ 19 ] At one point she stated that the father denied her monies, and hid money from her in his bank account. Later she confirmed that there were only two accounts, one joint [2] and one held by her alone. She admitted to paying the business and home expenses in 2008 from the joint account. She finally admitted on another lengthy foray [3] that she withdrew monies for her own use from the joint account prior to separation.

[ 20 ] The court learned during the mother’s cross examination that she is teaching French, Math, Piano and Art to local Korean Canadian students. She was a qualified teacher in Korea. She states that she is not currently paid for her teaching. Her statement does not fit with her admission that she advertises her services (in Korean) on the internet.

[ 21 ] Her contact number on the advertisement is a cell phone number. She initially denied having a cell phone and stated that it was a roommate’s number. She had never disclosed having a roommate. Later, a cell phone was observed on her person – a Smartphone. During cross examination on the Parenting Affidavit on December 4, 2011 she confirmed that there was at least one adult person and one child sharing her apartment.

[ 22 ] Matters that even relevant to the case attracted false statements. For example, the mother stated that the father spent $500 a month in personal sporting expenses during the marriage. After being unable to present any supporting evidence she accepted that he had never spent such amounts. She accused the father of flooding the basement of their home with water to exaggerate an insurance claim. The allegation was absolute nonsense, and not possible given the state of the home on purchase, eye witness statements and the chronology of attendances at the home.

[ 23 ] The court was particularly confused by the mother’s application for social assistance. In a lengthy and convoluted attempt to sort out her complaint that the father would not close the joint account so she could get assistance, she testified that she only started on assistance in March of 2011. Her 2009 Income Tax Return confirms receipt of assistance in 2009. She has not filed her 2010 Return with the court. Her counsel did not serve a copy of the Application on social services.

[ 24 ] Over the course of her cross examinations (both within the first period of trial, and on the December 4, 2011 Parenting Affidavit,) it also became clear that the mother was prone to confuse time lines, with the effect of jumbling and mismatching events. The effect was to bundle often dissimilar events into singular occurrences. These distorted “events” were then used to justify an allegation against the father.

[ 25 ] For example, the mother attempted to demonstrate the father’s unsuitability to care for Cecilia as a single parent by attaching pictures of laundry strewn over a carpeted floor. Upon examination, she admitted that the carpeted floor was that of the master bedroom prior to Cecilia’s birth.

(Decision continues exactly as in the source.)