SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-13-135

DATE: 2014/03/14

RE: YU WANG, Applicant

AND

QI ZHANG, Respondent

BEFORE: M. Linhares de Sousa J.

COUNSEL: Jeffrey Behrendt, counsel for the Applicant
Robie S. Loomer, counsel for the Respondent

HEARD: March 3, 2014 (at Ottawa)

ENDORSEMENT

[1] This motion is brought by the Applicant, Mr. Yu Wang, for an order for unsupervised access to his son, Larry Shuojie Wang, born on October 26, 2012. The Respondent, Ms. Qi Zhang, contests the motion and requests that the order for supervised access to her son continue. Whether continued supervised access is in the best interests of this child is the principal issue on this motion.

[2] The child in question is the child of a very short relationship between the parties and an even shorter marriage. Effectively, the parties separated prior to the birth of the child. Since the birth of the child they have not been able to agree on the extent and conditions of the father’s access.

[3] From the very beginning of the child’s life and prior to the commencement of these proceedings, Ms. Zhang has insisted on supervising the father’s access to the infant. This arrangement was quickly accepted by both parties as unworkable.

[4] After Mr. Wang commenced this action in May of 2013, the parties agreed to have access take place under the Supervised Access Program of Ottawa. That access commenced in July of 2013. On October 2, 2013 the parties were no longer able to continue supervised access at the Supervised Access Program.

[5] On the evidence I find as a fact that it was Ms. Zhang’s conduct which led to the termination of the parties’ ability to continue at the Supervised Access Program. Having read the notes of the access supervisor, it is clear that Mr. Wang in the beginning had to have substantial support from the access supervisors in caring for his infant son during those visits. But what is also clear from those notes is that, while Larry had some difficulty adjusting to the changes to his routine, Mr. Wang was cooperative and very receptive to the assistance and suggestions he received from the access supervisors. He showed himself capable of appropriately caring for his son even if it meant voluntarily shortening the visits if it was in his son’s best interests.

[6] What is also clear from the notes is that Ms. Zhang was absolutely convinced that in the care of his father, her son was suffering acute distress even in the face of the reports from the Supervised Access staff that her son settled quite quickly after she left. Ms. Zhang has not persuasively explained her cancellation of 5 out of 10 supervised visits. In addition, the evidence dealing for her reasons for the cancellation of all of the visits, as presented by her and as presented in the supervised access notes, is contradictory. Her evidence concerning her filming her crying son at the Supervised Access Centre is equally unconvincing. I can only see it as her being more concerned about collecting evidence that may bolster her case in court than really being concerned about the well-being of her son. What I fail to grasp is that if Ms. Zhang is so concerned about Mr. Wang having unsupervised access for all of the reasons she states why would she jeopardize, as an option, a service that could guarantee the safe supervision that she submits is in the best interests of her son?

[7] For the reasons already referred to above, the Supervised Access Program terminated the parties’ ability to participate in the program on October 2, 2013 in a letter to Ms. Zhang. By then the parties had returned back to Court and were under the case management of Madam Justice Warkentin. As a result of that process the parties entered into a without prejudice interim supervised access agreement. The order of Justice Warkentin dated November 5, 2013 states that the parties would retain the services of Dr. Alex Weinberger, “as an access facilitator as well as supervise the Applicant/Fathers access visits [for a minimum of 10 supervised access visits] and to assist the parties in developing an access process and schedule with the objective of achieving unsupervised access as is appropriate for the child’s needs and stages of development;”.

[8] The order went on to state that Dr. Weinberger’s role would be like closed mediation and not like an assessor to make recommendations. Furthermore, the order stated that Dr. Weinberger was not a compellable witness in these proceedings. Nonetheless, his notes and observations of the supervised access would be shared with the case management judge but not form part of the record of these proceedings.

[9] Mr. Wang commenced his supervised access visits with Dr. Weinberger and has had over ten of these supervised visits with Dr. Weinberger. Mr. Wang, however, can no longer afford the cost of continuing his supervised access with Dr. Weinberger which is costing him on a weekly basis for a two hour visit $565.

[10] Mr. Wang provided evidence that apart from the initial visit supervised by Dr. Weinberger, his visits supervised by Dr. Weinberger have gone well. His son’s reaction to him has been positive and affectionate. Ms. Zhang has not provided any evidence to contradict this.

[11] Since supervised access with Dr. Weinberger terminated the parties have not been able to agree on an access regime for Larry which is why this motion was brought. Ms. Zhang will only agree to Dr. Weinberger supervising Mr. Wang’s access. Ms. Zhang has not proposed any other access supervision alternative. There is no question that to continue this kind of supervised access is financially difficult for Mr. Wang.

[12] Ms. Zhang takes the position that supervised access is required to keep her son safe on the following grounds. Firstly, she alleges that Mr. Wang was physically abusive with her and she fears for her son’s physical safety. Secondly, she submits that in the care of his father, the child demonstrates “obvious distress” which continues well after the visits are finished. Thirdly, Ms. Zhang submits that Mr. Wang has threatened to take her son and flee to China. In fact, he already tried to avoid supervised access during the “Ikea” incident. Ms. Zhang points out that if Mr. Wang were to flee to China with their son, she would then not be able to retrieve him from that country because it is not a signatory of the Hague Convention. Fourthly, Ms. Zhang maintains that Mr. Wang is an agent of the Chinese government and is in Canada on a false passport which would also be difficult to trace if he were to flee from Canada with her son.

[13] Mr. Wang denies that he was ever abusive with Ms. Zhang. He denies that he would flee with his son out of Canada nor does he have any intention to do so. He has been in Canada for over 14 years. He completed his education in Canada. He has stable full-time employment in Ottawa. He owns his house in Ottawa, and he has a social network of friends, colleagues and community in the Ottawa region. Mr. Wang submits that he has no intention of moving from the Ottawa area nor of removing his son from this region. According to Mr. Wang he will continue to respect, as he has to date, the existing order not to remove his son from Canada. With respect to the so called “Ikea” incident, Mr. Wang submits that the mother totally misunderstood his conduct with his son; the police were called and he was permitted to continue his visit with his son.

[14] After examining all of this evidence I am not persuaded that continued supervised access is in this child’s best interests. There is absolutely no evidence that Mr. Wang would in any way harm his son. In fact the weight of the evidence is to the contrary. Mr. Wang has admitted his inexperience in caring for his young infant. He completely cooperated with the supervisors at the Supervised Access Centre, showing himself willing to learn and be taught how to care for his young son. Based on the objective observations of those supervisors, Mr. Wang has shown himself quite capable of appropriately caring for Larry. No matter how often she was informed by the supervisors at the Supervised Access Centre that her son was fine and settled quite quickly after she left, Ms. Zhang would not be persuaded that her son could be in anything but “obvious distress” in his father’s care. Her position is not supported by the evidence. Through her conduct she effectively ended the possibility of supervised access continuing at the Supervised Access Centre.

[15] This Court, on this motion does not have sufficient evidence to make any conclusions about the parties’ mutual allegations of physical abuse against each other. The evidence on this is contradictory. Nor is there any objective evidence, such as police reports, which might otherwise assist the Court with that issue. There is absolutely no evidence that Mr. Wang has ever harmed his son.

[16] With respect to the allegations of Ms. Zhang concerning Mr. Wang’s false identity under the auspices of the Chinese government, this allegation is not supported by any admissible evidence and hence cannot be relied on to determine the issue on this motion. Apart from Ms. Zhang’s alleged fears that Mr. Wang would kidnap Larry, there is absolutely no evidence to conclude that if Mr. Wang were to exercise unsupervised access to his son, he would flee with him out of Canada. Mr. Wang has substantial roots and long standing connections to Canada. Nonetheless, Mr. Wang is willing to deposit his passport with the Court in order to reassure Ms. Zhang.

[17] To date Larry’s contact with his father has been extremely short and restricted. Continuing this kind of access is not in his best interests if he is to develop a close, loving and natural father-son relationship. I therefore order that access to Larry by his father is to be unsupervised.

[18] Mr. Wang recognizes that unsupervised access to his son will be a change for his son and has therefore suggested, in Larry’s best interests, that it commence incrementally. His suggestion for that incremental increase is reasonable. It is therefore ordered that the unsupervised access exercised by Mr. Wang to his son shall be as follows:

(1) For a two month period following the release of this endorsement, Mr. Wang shall have five hours access to his son per week exercised in two separate visits, one visit mid-week for two hours (Wednesday or Thursday) and another on every weekend for three hours, either Saturday or Sunday as the parties may agree. If the parties cannot agree on the day, then the mid-week day shall be Wednesday and the weekend day shall be on Saturday. Mr. Wang shall determine the location of the visits with his son and he is free to take his son into the community.

(2) Following this two month period, Mr. Wang will continue to exercise his two hour mid-week access to his son. His weekend access shall increase to include five hours of visiting. Mr. Wang shall again determine the location of the visits with his son and he is free to take his son to his home or into the community. These visits will continue for another two months.

(3) Upon the expiration of those two months, Mr. Wang will continue to exercise his two hour mid-week access to his son. His weekend access shall increase to include a full day on the weekend from 9 a.m. until 7 p.m. This will remain the access regime until this matter is heard on its merits. It is anticipated that overnight access will be possible, hopefully when the parties jointly agree that it will be in Larry’s best interest.

(4) On Larry’s birthday, whatever parent has care of the child will ensure that the other parent shall spent at least two hours with Larry to celebrate with their son. The same will apply for the parents’ birthdays. This will be in addition to the regular access if regular access does not fall on any of these times.

(5) There are other holidays which may have meaning for these parents. One of these identified by Mr. Wang is Chinese New Year. For this holiday and others which will arise, Larry should be given the opportunity of sharing some of this holiday time with the parent who does not have care of him on that day of the holiday. Two to three hours seems reasonable. Hopefully, the parents may cooperate to allow this to happen. If not the Court may have to set this access too.

(6) Mr. Wang is requested to deposit his passport with the Court until further order of the Court.

(7) In the best interests of the child, Ms. Zhang shall keep the father informed and current as to Larry’s routines and nutritional and health needs. Ms. Zhang shall also provide the father with the name and contact details of all of the professionals, medical or otherwise that treat Larry. Mr. Wang is also to be informed of all upcoming medical appointments for his son. This shall be done in writing or electronically. Mr. Wang is free to contact those professionals directly to get information about his son. Ms. Zhang shall sign all authorizations required to permit this to happen.

(8) All other provisions of the existing order, not varied by this order, relating to access remain in force.

[19] This case has been case managed to date by Justice Warkentin. The parties have agreed that the case management judge may be privy to Dr. Weinberg’s notes and observations. It may be beneficial to the parties and their attempts to finally resolve this matter to share this information with the case management judge at this time. I order, therefore, that the parties return forthwith for the purpose of a settlement conference or case conference, on a date to be set by the trial co-ordinator, before Justice Warkentin, as the case management judge, or if she is not available to any judge so designated. Any fees payable to Dr. Weinberger in order to have his attendance at court shall be shared equally by the parties. This part of the order, however, does not in any way delay the immediate commencement of Mr. Wang’s unsupervised access to his son as provided for in this endorsement.

[20] The last issue to be decided is costs. Counsel for Mr. Wang shall have two weeks from the date of this endorsement to serve and file his written submissions on costs of this motion. Counsel for Ms. Zhang shall have two weeks from that date to serve and file his written submissions on costs. Counsel for Mr. Wang shall then have one week from that date to serve and file a reply, if any.

M. Linhares de Sousa J.

Released: March 14, 2014

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: YU WANG, Applicant

AND

QI ZHANG, Respondent,

BEFORE: M. Linhares de Sousa J.

COUNSEL: Jeffrey Behrendt, counsel for the Applicant
Robie S. Loomer, counsel for the Respondent

ENDORSEMENT

M. Linhares de Sousa J.

Released: March 14, 2014