SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-10-1487-00
DATE: 20130829
RE: Susan Boyko, Applicant
and
Nand Gusain, Respondent
BEFORE: Lemon J.
COUNSEL:
Barbara A. Barnett, for the Applicant
Nand Gusain, the Respondent on his own behalf
Jennifer Holder, for the Children’s Lawyer
HEARD: August 22, 2013
ENDORSEMENT
The Issue
[1] Ms. Boyko moves for an Order:
that Mr. Gusain shall return the children of the relationship, Alexander Gusain, age 14 and Brandon, age 13, to Brampton, Ontario, by no later than August 28, 2013, so they may commence school in September, 2013,
that the children’s primary residence shall remain in Brampton, Ontario, until further order;
varying the interim Order of the Honourable Mr. Justice Price dated June 5, 2012, as follows:
(a) In the event Mr. Gusain does not move his residence to Brampton, Ontario,
(i) Commencing on September 1, 2013, and on a without prejudice basis, the parties shall have parenting time with the children as follows:
a. Mr. Gusain shall have the children the first three weekends of each month from Friday after school to Sunday evening at 8:30 p.m.;
b. One mid-week visit every Wednesday from after school to 8:30 p.m.
c. Ms. Boyko shall have the children in her care every day during the school week from Monday morning to Friday after school and the last weekend of each month from after school on Friday to their return to school on Monday morning.
(b) In the event Mr. Gusain does move his residence to Brampton, Ontario,
(i) Commencing on September 1, 2013, and on a without prejudice basis, the parties shall have parenting time with the children as follows:
a. Mr. Gusain shall have the children in his care every day during the school week from Monday morning to Friday after school and the last weekend of each month from after school to Monday morning.
b. Ms. Boyko shall have the children the first three weekends of each month from Friday after school to Monday morning returning the children to school;
c. Ms. Boyko shall have the children for an evening visit every Wednesday, overnight to Thursday morning, returning them to school on Thursday.
that Ms. Boyko shall have the children in her care for a period of two (2) weeks in August, 2013, for summer access from Friday, August 16 to their commencement of school following the Labour Day weekend on September 2, 2013;
that the parties shall share the children’s Christmas schedule equally such that Alexander and Brandon shall spend half of their Christmas vacation, with each parent, the times to be agreed upon via e-mail communication between the parties;
pursuant to Rule 24(13) of the Family Law Rules for security for costs as against Mr. Gusain in the amount of $24,000.00, or such other amount as to this Court may deem appropriate.
Postions of the Parties
[2] In short, Ms. Boyko wishes to confirm the custody and access regime for the boys in the upcoming school year. She wishes them to attend school in Brampton and to have ample access to her.
[3] Mr. Gussain submits that the two boys should remain with him in Scarborough and that Ms. Boyko should have access every other weekend from Friday to Sunday. He submits that he is residing with his parents and the children are content to be there.
[4] Ms. Holder, counsel for the children, submits that although the boys said that they wished to reside with their father in the spring of this year, she has had little contact with them since that time. She submits that Mr. Gusain appears to have thwarted her efforts to arrange a new appointment. She suggests that the parties should share a joint parenting regime but, in any event, it should not be left to the children to determine custody and access.
Background
[5] While the parties dispute almost everything and make serious allegations against the other, some matters can be confirmed.
[6] Although the parties have a daughter, Stephanie, I am only requested to deal with custody and access of the two boys. Stephanie presently resides with Ms. Boyko.
[7] The only present Order is that of Price J. dated June 5, 2012. At that time, he ordered:
(a) The Respondent [Mr. Gusain] shall exercise temporary access to Stephanie Gusain, born February 7, 1998, (“Stephanie”) at her discretion.
(b) The Respondent shall exercise temporary access to Alexander Gusain, born July 22, 1999 (“Alexander”) and Brandon Gusain, born February 12, 2001 (“Brandon”) at the following times:
(i) Wednesdays from 4:00 p.m. to 8:00 p.m.;
(ii) Alternate weekends from Friday at 5:00 p.m. to Sunday at 6:00 p.m. beginning June 15, 2012;
(iii) From July 9, 2012 at 10:00 a.m. to July 22, 2012 at 6:00 p.m.;
(iv) From August 13, 2012 at 10:00 a.m. to August 26, 2012 at 6:00 p.m.
(c) The Respondent shall pick up the children at the Applicant’s [Ms. Boyko] residence at the beginning of his access and shall return them to her home at the conclusion of his Wednesday access. The Applicant shall pick up the children from the Respondent’s house at the conclusion of his access on Sundays and at the conclusion of his two week access periods during the summer of 2012. The Respondent shall remain in the driveway of the home when picking up or dropping them off, and shall not enter her home or elsewhere on her property at any time.
[8] Price J. declined to make any order as to custody but the children resided with Ms. Boyko.
[9] The boys have been in a state of turmoil as a result of the conduct of either one or both parents. The local Children’s Aid Society and police have been involved. Ms. Boyko suggests that Mr. Gusain has been involved in alienating the children from her. There is evidence that supports that contention and there is evidence that refutes it.
[10] In December of 2012, after an altercation with Ms. Boyko, the boys moved to the residence of Mr. Gusain. That residence was in Brampton and the boys continued in the same school.
[11] However, in June of this year, Mr. Gusain moved the children from the Brampton residence to his parents’ home in Scarborough, Ontario. He did not discuss that move with any of the various individuals involved prior to the move.
[12] A trial of the custody and access issues has been set to be heard in January 2014.
Analysis
[13] The issue then is where the boys should reside between now and trial. I am asked to make this decision on the basis of affidavits in the circumstances of hotly disputed and serious allegations against both parents.
[14] Pursuant to s. 24 of the Children’s Law Reform Act. I should consider the following relevant circumstances:
(a) The love, affection and the emotional ties between the child and each person.
[15] The affidavits are in conflict and I cannot make this determination on this record.
(b) The child’s views and preferences, if they can be reasonably ascertained.
[16] Although it appears that the boys wish to remain with their father, I cannot discount the possibility of alienation. Sadly, I do not have up-to-date information on that point from the children’s own lawyer.
(c) The length of time the child has lived in a stable home environment.
[17] It is unacceptable that the father has moved the residence of the children without notice to any of the various individuals involved. That conduct cannot be condoned. I have little information about the circumstances of the present residence. However, they have resided with their father since December of 2012.
(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.
[18] From the material provided, neither parent has been acceptable in their conduct and behaviour towards these children or towards each other.
(e) The plan proposed by each person applying for custody of the child.
[19] Whatever plan may be put forward, it is only for the period prior to trial. Any plan will simply be stop gap for the moment.
(f) The permanence and stability of the family unit with which it is proposed that the child will live.
[20] The parties separated in 2009 and the circumstances for all concerned have been extremely unstable. I cannot determine who is at fault for that. That will be for the trial judge.
(g) The ability of each person applying for custody to act as a parent.
[21] Neither has been parenting without reproach. That is for the trial judge.
[22] While I have serious concerns about the father’s behaviour, the boys have been with him since December 2012. The boys appear to be able to make their views taken into account by both parents. They know that they have counsel and both parties are aware of the involvement of the Children’s Aid. I do not have serious concerns that they will be harmed any more than they already have been by remaining with the father.
[23] I agree with Price J. that a custody order ought not to have been made back in 2012. However, now that the father has moved to Scarborough, there will need to be decisions made by the father with respect to registering the children in school. For that purpose only, he shall have interim custody pending the trial.
[24] In the meantime, it is in the children’s best interests to maintain substantial contact with their mother and sister. Accordingly, on an interim basis, the mother shall have access to the children as follows:
(a) The first three weekends of each month from Friday after school to Sunday evening 8:30 p.m.;
(b) One mid-week visit every Wednesday from after school to 8:30 p.m.;
(c) August 30 at 6:30 to September 2, 2013 at 4:30; and
(d) The parties shall share the children’s Christmas schedule equally such that Alexander and Brandon shall spend half of their Christmas vacation with each parent and the times to be agreed upon by email communication between the parties.
Other Issues
[25] The father denies that he is alienating the boys from their mother. He says that it is important that she be part of their lives. One of the best ways to show the trial judge that is in fact the case, will be to ensure that the boys attend the access visits without fail.
[26] Although the children’s views and preferences are important, their court ordered obligations are also important and it is incumbent on both parties to ensure that this order is carried out.
[27] In his submissions, Mr. Gusain advised that he was placing the children in some form of counselling. It is imperative that both parents keep the other fully advised of any counselling or treatment plan or medical appointments that relate to the boys. That information should be provided immediately upon being obtained. There is no excuse for either party to fail to provide that information.
[28] Both parties shall ensure that the children’s third party service providers be given complete authority to speak with and provide information to the opposite parent.
[29] Mr. Gusain shall forthwith confirm the school in which he has registered the children and confirm that Ms. Boyko is to be contacted by the school with respect to any notice that a parent should receive.
SECURITY FOR COSTS
[30] Ms. Bokyo seeks security for costs pursuant to Rule 24 (13). She objects to the father’s conduct in carrying on the proceedings and seeks security.
[31] An earlier trial relating to the financial issues was dealt with by Skarica J. At that time, he ordered Mr. Gusain to pay costs in the amount of $30, 000.00. That decision has been appealed by Mr. Gusain and accordingly those costs are not payable at the present time.
[32] Pursuant to Rule 24 (13), I may make an order for security for costs that is based on one or more of the following factors:
(i) A party ordinarily resides outside of Ontario. That is not relevant here.
(ii) A party has an order against the other party for costs that remains unpaid in the same case or another case. In my view, the costs ordered by Skarica J., having been stayed by the appeal, are not relevant to this point.
(iii) A party is a corporation. That is not relevant here.
(iv) There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs. This is the essence of the mother’s submission. At this stage, in face of the conflicting affidavits, I cannot say that the proceedings are a waste of time. There are serious allegations against Mr. Gusain; he has provided a response to those allegations in his materials and submissions. There are serious allegations against Ms. Boyko; she either denies them or apologizes for them. All of those allegations require examination by a trial judge. I cannot say that the case is a waste of time.
[33] Accordingly, that request is dismissed.
[34] Given the conduct of both parties, I decline to order costs at this time. The costs of this motion are left to the trial judge.
Lemon J.
Date: August 29, 2013
COURT FILE NO.: FS-10-1487-00
DATE: 20130829
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Susan Boyko, Applicant
and
Nand Gusain, Respondent
BEFORE: Lemon, J.
COUNSEL:
Barbara A. Barnett, for the Applicant
Nand Gusain, the Respondent on his own behalf
Jennifer Holder, for the Children’s Lawyer
ENDORSEMENT
Lemon, J.
DATE: August 29, 2013