SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-05-2263-4
DATE: 2013/04/03

RE: JAMES KUMAR HALL, Applicant

AND

XIANG HE, Respondent

BEFORE: Kane J.

COUNSEL:
Lorna F. Baldwin, counsel for the Applicant

Wade Smith, counsel for the Respondent

HEARD: February 22, 2013

ENDORSEMENT

[1] This is the fourth court proceeding between the parties since their separation. This litigation revolves around the parties’ inability to work through the mechanics of separated parents’ care of their daughter. Jade was born on October 9, 2003, and is now nine and one half years of age.

[2] The last round of litigation resulted in the decision of Linhares de Sousa J., dated August 21, 2012 (the “Decision”). The present contempt motion by the Applicant father was filed November 15, 2012.

[3] The Decision determined the parents are to have joint custody, with Jade’s primary residence to be with her mother. This primary residence was a change. It resulted from the father moving to Halifax in late 2011 and his application to have Jade reside in Halifax with him during the school year. The mother’s response to that application was a request that she have sole custody.

[4] The Decision contemplates the father coming to Ottawa to visit his daughter in addition to the specified periods of school holidays during which Jade is to be with her father. The frequency of those additional visits is not specified.

[5] Since August 21, 2012, the mother in her emails to the father has not genuinely supported her daughter’s relationship with the father. The mother has a legal obligation and a duty to Jade to do so. The mother for example refused pick-ups on the day school ends before start of a holiday and insisted the holiday begins only the following day. She in addition limited the father’s time on a weekend visit to exclude Saturdays because the child had scheduled activities, as if the father is less able than her to drive the child to and from those activities. She has objected to the child sleeping in an Ottawa hotel with her father and insisted the child sleep at home. She stated that she allows this nine year old to decide whether to accept the telephone calls from her father and programs her home telephone to message recording after two rings.

[6] The father, since moving to Halifax, has called very frequently to speak by telephone with his daughter. The mother states that at times, these calls have been every night and last a minimum of 30 to 40 minutes. The mother discovered by chance that the father obtained a Nova Scotia health card for Jade, thereby invalidating her Ontario health card even though the Decision requires consultation, then mediation and failing agreement, sole decision by the mother as to health decisions. The father avoids mediation and moves directly to litigation.

[7] Each party begrudgingly acknowledges the other as a parent of their daughter and would much prefer that was not the case. They act accordingly on their feelings of animosity and justify their actions or intransigence by blaming the other parent. It would be naïve to think Jade does not perceive this continuum of animosity towards her other parent and is not being damaged and hurt in the process. The above conduct is a failure to respect the child’s rights, her best interests and the obligation of separated parents towards their children.

[8] Through the work of counsel, the court on argument of this motion was presented with draft terms, some of which the parties accept while other terms remain in dispute. The original six terms presented are as set out below and attached as Schedule “A” hereto.

[9] The court was advised that the terms in Schedule “A” or other terms could be ordered by the court. In short, the court was asked to decide upon these matters as a clarification and amendment of the Decision.

1. Holiday and any weekend pick-ups to the Applicant will occur at the school at 3:00 p.m.

[10] The parties agree to this wording. With respect however, this provision should be slightly more detailed. There will for example be pick-ups during summer holidays when the school is not open. The mother did not in argument object to the drop-off at Jade’s home as per paragraph 2. The parties however specified a different location in paragraph 6 below. Jade’s home is preferable. It is the child’s home and is a natural location for Jade. There is no history of violence between the parents since separation. Ms. He lives at her home with her partner. Jade’s home is a neutral location without the opportunity of argument, provided, as hereby ordered, that the Applicant is to remain at his vehicle parked on the public street at the time of pick-up and drop-off. A third party location like Tim Hortons doubles the possibility and opportunity for one parent to be late with resulting accusations which the child will undoubtedly observe or hear about.

[11] Paragraph 1 as ordered therefore is as follows:

(1) Subject to paragraph 6 below;

(a) Holiday pick-ups during the child’s school year shall be by the father or one of his parents at Jade’s school at 3 p.m. on the last school day before the commencement of the holiday period. Drop-off on these occasions shall be at Jade’s home in Ottawa by 4 p.m.

(b) If Jade is on holidays from school on the date of pick-up by her father, the place of pick-up shall be at Jade’s home.

(c) Jade shall spend the third weekend with her father in Ottawa in the months of February, May, June, September, October, and November each year for which, the pick-up shall be at Jade’s school at 3 p.m. on Friday and drop-off at her home on Sunday at 4 p.m. Jade must be taken by her father to any courses/programs she is enrolled in on the Saturday, which shall however be limited to a maximum of two courses/programs on Saturday and which shall end no later than 5 p.m. The Applicant has no obligation to take Jade to or have her attend any course or program on Sunday.

(d) The semi-annual period of December 24, 25 and 26 with the mother beginning in 2013, shall have Jade dropped off at her home at 10:00 a.m. on December 24 and picked up by the father from Jade’s home on December 27th at 9 a.m.

(e) The Applicant, if dropping off or picking up his daughter at her home, shall park his vehicle on the street in front of Jade’s house and remain at his vehicle until his daughter has exited or entered her home and he shall thereupon depart from that residence.

2. Applicant shall have Jade one weekend per month for September, October, November, February, May and June. This shall occur the third weekend of each month. Access shall be from Friday at 3:00 p.m. until Sunday at 3:00 p.m. when he shall be delivered to the Respondent’s home.

[12] The mother is agreeable to this, as ordered above, provided she receives three instead of two weeks with Jade during the child’s summer vacation period as per 3 below. The Decision does not limit the father’s Ottawa weekends with his daughter in addition to the holiday periods specified in the Decision. It is inaccurate therefore to state that the father by paragraph 2 is now receiving an additional 12 days. At least some of that time was contemplated in the Decision. A limit is however now created under this provision. The father is now committing to five such weekends with his daughter.

3. The Respondent’s summer time shall be three weeks with Jade.

[13] The mother is from China where members of her family continue to live. Two weeks is very short to visit China given the distance. Two weeks in any event limits what a parent can do during summer holidays. It is unlikely the Applicant can as a term of employment take off the full school summer holiday period to be with his daughter. That therefore involves Jade being cared for during a considerable period during the summer months. As Jade becomes older, she will find it hard to be away from her friends, depending upon what dates the mother chooses as her holidays, for what could be as long as seven consecutive weeks each summer. There are travel costs associated with Jade going back and forth to Halifax which could double or triple if the Respondent decided to take separated weeks of holidays during the summer. Paragraph 3 will be replaced by the following which is ordered:

3- The Respondent’s time during Jade’s summer school vacation shall be three continuous weeks each summer (total of three weeks) pursuant to the other summer holiday provisions in the Decision.

4. The access in paragraph 2 is conditional on the Applicant taking Jade to her activities. In addition he shall not be allowed to claim this as extra time in any argument re child support.

[14] The first sentence, subject to paragraph 11 (1) (b), above is so ordered. The second sentence in this paragraph is unwarranted and therefore deleted. The Applicant, even with six fixed weekends during the school year, is well below having Jade with him 40% of the time. The Decision included some or all of these weekend visits.

5. When with the other parent, Jade shall contact the Applicant/Respondent every Tuesday, Thursday and Sunday evening at 7 p.m. (Ottawa time) by Skype or phone.

[15] Such contact three times per week seems or will become excessive in time. It demonstrates the “needs” of the parent rather than those of the child. The above provision is accepted but qualified by the following provisions, namely:

(a) Prior to Jade’s 13th birthday, such telephone/Skype communication shall not exceed 15 minutes per communication. After her 13th birthday, this obligatory pattern will be reduced to twice per week, namely Sunday and Wednesday at 7:30 p.m. not to exceed 20 minutes.

(b) This communication provision shall only apply when the child is spending in excess of seven continuous days with a parent and only after the seventh of such days. This is to permit Jade to settle in with the other parent. This limiting provision does not apply after the father’s weekends under paragraph 11 (1) (b) herein.

(c) These communication provisions shall not limit the child’s right to contact the other parent if Jade needs or wishes to speak to that parent.

6. For Christmas 2013, and odd years thereafter, access to the Applicant starts the evening of December 26. Pick-up at Tim Hortons, (Strandherd).

[16] The mother wants this wording in order to reduce the father’s time during the Christmas school holidays with Jade. Not to be outdone, the father responds that the mother’s period of December 24 to 26 every second year should be changed to three days at the beginning or end of the Christmas school break, thereby prohibiting Jade from ever having Christmas with her mother. These positions are collateral appeals of paragraph 4 (c) of the Decision. These attitudes demonstrate a failure to respect Jade’s relationship with each parent. These positions demonstrate the animosity and control of each parent towards one another who then blame the other for their repeated attendances in court.

[17] The Decision is clear that Jade will have the right to spend alternate periods of December 24 to 26 with each parent, every second year. The rights of the child as articulated in paragraph 4 (c) will remain unaltered.

[18] There are collateral matters in relation to this issue which require further court order.

[19] The animosity level between these parents guarantees an agreement will not occur under clause 4(k) of the Decision.

[20] A direct flight between Ottawa and Halifax lasts 90 minutes. The mother’s position that this causes fatigue to this nine year old has no merit. That said, having Jade fly four times between Ottawa and Halifax during a period of perhaps 14 days, is excessive and is but another opportunity to argue and return to court. Similarly, it is unreasonable that Jade spend one week sleeping in an Ottawa hotel room because her father has come to visit her. Accordingly, Jade shall not fly more than twice (e.g. Ottawa to Halifax and return to Ottawa) during consecutive 20-day periods of time. She shall not in addition sleep in a hotel in the Ottawa-Gatineau area in excess of three nights during consecutive 20-day periods of time.

[21] Finally, all Canadian national airline carriers currently offer for a fee, a service for unaccompanied minors pursuant to which designated airline representatives will accompany and provide supervision of minors between the ages of 8 to 17 from airport check-in to the destination arrival counter. At an appropriate age, requiring the father to fly with his daughter from and to Ottawa and have the two of them sleep in an Ottawa hotel if a departing flight cannot be arranged on the last day of school is unreasonable and more opportunities to control.

[22] The Applicant may utilize such unaccompanied minor service starting February 1, 2014, when Jade will be 10 years old. She will by then, be accustomed to flights to and from Halifax. This entitlement shall not apply to the father’s weekend school year visits referred to in paragraph 11 above, clause 1(b) which are to occur in Ottawa. The following conditions apply however for the Applicant to use this unaccompanied minor airline service, namely;

(a) It shall be limited to direct flights only between Ottawa and Halifax,

(b) The Applicant must notify the Respondent of his election to use this service, at his cost, no less than one month prior to the date of departure from Ottawa by providing the Respondent with the name of the airline, dates and times of departures and arrivals from and to Ottawa and provide the Respondent with Jade’s return airline ticket or electronic equivalent, a minimum of two weeks prior to departure from Ottawa.

(c) Jade’s airline departure from Ottawa may not be earlier than 8 a.m. on the first day of her school holiday period. It is too tight a time frame for a child of this age to wait until her mother returns from work and then get to the airport to depart from Ottawa at a reasonable hour on the last day of school on the eve of the holiday period. Taking Jade to and upon arrival from the Ottawa airport shall be the mother’s responsibility. An express bus service to and from the Ottawa airport exists.

(d) Jade’s return flight to Ottawa shall not arrive in Ottawa later than 6 p.m.

(e) All of the above hours are Ottawa time.

(f) This unaccompanied minor service is a requirement for any unaccompanied flights by Jade between February 1, 2014, and February 1, 2020.

COSTS

[23] Subject to offers of settlement on this motion, I would anticipate given the conduct of these parents and their drafting of Schedule “A”, that there should be no order as to costs. The parties also ignore prior court orders requiring them to use mediation before resort to the courts. The parties remain entitled however to submit brief written cost submissions within 30 days hereof.

Kane J.

Released: April 3, 2013

ONTARIO
SUPERIOR COURT OF JUSTICE

RE: JAMES KUMAR HALL, Applicant

AND

XIANG HE, Respondent

BEFORE: Kane J.

COUNSEL: Lorna F. Baldwin, counsel for the Applicant

Wade Smith, counsel for the Respondent

ENDORSEMENT

Kane J.

Released: April 3, 2013