ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-13-18665

DATE: 20140618

B E T W E E N:

Helene Marie Therese Daviau
Applicant

• and -

Uri landman husid
Respondent

Phyllis Brodkin, for the Applicant
No one appearing for the Respondent

HEARD: June 16, 2014

Stevenson J.

REASONS FOR DECISION

Introduction

1The Applicant mother commenced an Application on April 19, 2013 wherein she was seeking custody of the child, Shelli Landman Daviau (“Shelli”), born August 19, 2006, an order that she be allowed to sign any required documents that touch upon the welfare of the child without the signature of the Respondent, an order that she be allowed to obtain a passport for the child without the consent of the Respondent, interest and costs. At trial, counsel for the mother clarified that the mother was also seeking a final order allowing her to travel with Shelli without the father’s consent.

2The Respondent father filed an Answer, dated May 24, 2013, wherein he was seeking that the Applicant’s claim be dismissed with costs. He also sought an order that the Applicant comply with a Peruvian custody order, interest and costs. Pursuant to the order of Horkins J., dated May 26, 2014, the father was ordered to post security for costs for the trial in the amount of $25,000 no later than June 9, 2014; failing which, his Answer would be struck and he would not be allowed to participate further in the application and have no right to participate at trial. The father failed to post security for costs as ordered and as such, his Answer was struck. Czutrin J. ordered on June 11, 2014 that the father be notified by e-mail at two different e-mail addresses of the trial date (of which he was previously aware) despite his Answer being struck. The father did not attend at the trial.

Facts and History of Legal Proceedings

3The mother is presently 50 years of age and the father is 43 years of age. The mother resides in Toronto with her parents and with Shelli. The father resides in Peru. The parties were married on July 26, 2003 and separated on September 10, 2008. Shelli is 7 years of age and in grade two. Shelli was born in Peru where the parties resided at the time of their separation.

4The parties have been involved in much litigation since the separation. The mother and Shelli have resided in Canada since September 2010 when the mother failed to return Shelli to Peru after a vacation. Prior to the mother leaving Peru, there were ongoing proceedings in Peru concerning the custody of Shelli. The father commenced an application under the Hague Convention seeking an order for the return of Shelli to Peru. The application was heard over the course of seven days by Perkins J. in November 2011. A summary of Perkins J.’s findings are succinctly set out by Horkins J. in para. 8 of her decision of May 26, 2014, 2014 ONSC 3188, as follows:

…In summary, the court found that prior to separation the mother and child lived in a place of unhappiness, oppression and abuse against the mother, witnessed by the child. Before and after separation, the mother experienced death threats from the father and his cousin and the father also had the mother watched. The court found that returning the child to Peru would expose her to grave risk of psychological harm and an intolerable situation. Furthermore, the father's family members, who had been significant actors in creating the intolerable situation, would not be bound by undertakings and, in any event, the father and his family had demonstrated in the past that they would not hesitate to disobey court orders…

5In his order of January 23, 2012, Perkins J. allowed the mother’s claim for custody and an access order to proceed in this Court. Further, on April 18, 2012, Perkins J. ordered the father to pay the mother’s costs fixed in the amount of $64,000, payable within 60 days. The father appealed Perkins J.’s order to the Ontario Court of Appeal. The appeal was dismissed and the father was ordered to pay costs in the amount of $15,000. The father further appealed to the Supreme Court of Canada and leave was denied. No costs have been paid by the father as ordered and total costs owing presently with interest are approximately $88,000 plus an additional $3,000 in costs ordered by Horkins J.

6The litigation continued in Peru. The father had obtained an order for custody of Shelli in Peru while the mother and Shelli resided in Canada. The mother testified that the appeals court in Peru recently dismissed the father’s claim for custody and reversed an order made in the mother’s absence regarding custody. The mother now has custody in Peru pursuant to an order she had at the time she resided in Peru. The mother suspects that the father will attempt to appeal the recent decision of the appeals court in Peru.

Issues

7The issues for determination are as follows:

(1) What custodial and access arrangements are in the best interests of Shelli?

(2) Should an order be granted allowing the mother to travel without the consent of the father? Should an order be granted allowing the mother to obtain a passport for the child without the consent of the father?

(3) What, if any, costs should be ordered?

Issue #1

What custodial and access arrangements are in the best interests of Shelli?

Discussion

8This is an application under the Children’s Law Reform Act, R.S.O. 1990, c. C.12. Under section 21 of the Act, a parent of a child or any other person may apply for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. Pursuant to section 24, the merits of an application in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). Those subsections state as follows:

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(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;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3

9The mother seeks an order for final custody of the child Shelli. She also seeks that supervised access continue for the father. I find that it is the best interests of Shelli that the mother be granted an order of final custody. As is clear from the evidence, the mother has a close and loving relationship with Shelli and Shelli is thriving under her care. The mother actively assists Shelli with her homework and her schooling needs. Shelli attends Hebrew day school and as is apparent from her report card submitted as evidence, Shelli is doing well. She is stated to be a “warm, friendly girl who is well-liked by her classroom peers” and “a pleasant and cooperative student with a positive attitude towards learning.” Shelli is active in school, participating in school plays and in dance. Shelli and her mother attend synagogue together and celebrate religious holidays together.

10Shelli and her mother also partake in a number of activities together including skating, swimming, and hiking. They have enjoyed many vacations together which has at times included visiting with family and friends. The mother ensures that Shelli has regular playdates with her friends and that Shelli socializes with her peers.

11Through the mother’s efforts, Shelli is enrolled in many activities such as dance, skating and swimming programs. She has also participated in camps during the summer and winter as shown by the evidence. The mother attends to Shelli’s medical and dental needs.

12The mother testified that she currently resides with her parents and Shelli. She has resided with her parents since she came back to Canada in September 2010 with Shelli. Shelli has the benefit of having her grandparents reside with her. Shelli has also had the benefit of travelling to Quebec to visit with her great-grandmother. The mother testified that it is her intention to one day reside in her own home with Shelli but that the ongoing legal costs have prevented her from doing so. She presently earns $130,000 gross per year as a project manager for an information technology company and provides the primary support for Shelli. She receives only $500 per month Canadian from the father pursuant to a Peruvian order. The mother testified that she is able to provide for Shelli aside from her mounting legal costs.

13The mother has also ensured that there is a relationship between Shelli and her father and that Shelli’s father is kept apprised of ongoing information concerning Shelli. The mother provides information on Shelli’s schooling and extracurricular activities to the father monthly. She provides information regarding Shelli’s health care, including medical and dental visits. She ensures that Shelli has contact with her father through Skype three times a week and that supervised visits take place approximately once per year when the father comes to Canada.

14I accept that there is a strong emotional tie between Shelli and her mother. Shelli also has the benefit of a relationship with her grandparents. The mother has ensured that Shelli is well provided for emotionally and financially. It is in Shelli’s best interests that she remain in this stable environment in her mother’s custody where she is thriving.

15The father currently exercises supervised access to Shelli when he visits Canada for approximately three days. The mother testified that these visits take place once per year. She would like the visits to continue supervised as she testified that the father is a flight risk. Her evidence is that the father has been continuing with legal proceedings in the family and criminal courts in Peru. She testified that he is following the same path in Canada. She believes that he will still pursue sole custody of Shelli and return to Peru with Shelli. As indicated, she has an order for custody in Peru as the appeal court overturned an order granting custody to the father. However, the mother testified that the father has indicated that he will be appealing to the Supreme Court in Peru, although she acknowledges that she has not yet been served with any court proceedings. Additionally, the mother testified that there were two occasions in Peru where the father “over held” Shelli.

16It is in the best interests of Shelli that access to her father remains supervised. There is no evidence before me which would support a change to unsupervised access. There is evidence that the father has improperly withheld Shelli in the past. Additionally, the father’s Answer was struck and the Answer itself did not contain any claim for access.

17Counsel for the mother also requests that the Court not allow the father to commence any Application to seek access to Shelli until he has paid the security for costs as ordered for this trial, given his ongoing pursuit of litigation. I am not prepared to grant this request as there is no evidence that the father will be pursuing or has pursued more litigation in Ontario; however, given the father has not paid several costs orders and has not posted security for costs as ordered for this trial, the father should be aware that it is unlikely that the Court would allow his Application to proceed until he has paid past costs orders and he has posted security for costs.

Issue #2

Should an order be granted allowing the mother to travel without the consent of the father? Should an order be granted allowing the mother to obtain a passport for the child without the consent of the father?

18Counsel for the mother submits that an order was made on March 12, 2013 by Perkins J. allowing the mother to travel with Shelli for the purposes of vacations without the consent of the father. She seeks to make this a final order. The order of Perkins J. dated March 12, 2013 is a final order and I see no need to make a further order. The mother already has the permission of the Court to travel with Shelli for vacations without the consent of the father. No further order is required.

19I am prepared to grant an order allowing the mother to obtain a passport for Shelli without the consent of the father. I am satisfied based on the evidence and the history between the parties, including lengthy legal proceedings, that the mother will encounter difficulties with the father regarding the obtaining or renewal of Shelli’s passport. It is in Shelli’s best interests that she be allowed to travel with her mother and that a passport is obtained for her without delay when required for travel.

Costs

19The mother seeks costs in the amount of $5,000 with respect to preparation and attendance at the trial. Counsel did not prepare a Bill of Costs and no Offers were provided. Pursuant to Rule 24 of the Family Law Rules, O. Reg. 114/99, a successful party is presumed entitled to costs. The mother has been successful in obtaining the relief that she was seeking. I have also considered the factors under Rule 24(11) in determining this issue of costs. The issues were not overly complex. The father has behaved unreasonably given his failure to pay numerous costs orders and his determination to keep the litigation going, resulting in substantial legal costs for the mother. The amount claimed by the mother is not unreasonable considering her counsel had to prepare for a trial in which, until earlier this month, the father was scheduled to also participate. The mother’s counsel is experienced counsel and the amount claimed is not unreasonable for her services.

Order

20I order the following:

(a) the applicant mother shall have final sole custody of the child Shelli Landman Daviau, born August 19, 2006;

(b) the respondent father shall continue to have supervised access to the child when he travels to Canada, such arrangements to be made directly between the parties;

(c) the applicant mother shall be entitled to apply for and/or renew the child Shelli Landman Daviau's passport without the respondent father’s consent;

(d) the respondent father shall pay costs in the amount of $5,000 to the applicant mother which costs are payable forthwith.

Stevenson J.