COURT FILE NO.: FS-10-68103-0001
DATE: 20140122
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ALLEN LEON CHARLES
Applicant
- and -
ANDREA JULLIETTE WILLIAMS
Respondent
Counsel: Fareen L. Jamal, for the Applicant Self-represented, for the Respondent
HEARD: August 23, 2013, at Brampton, Ontario
BEFORE: Price J.
REASONS FOR ORDER
NATURE OF MOTION
[1] When Allen Charles and Andrea Williams separated in September 2008, following their 10 year marriage, Mr. Charles began the present proceeding in which he applied for custody of, or access to, the parties’ children, who were then three and seven years of age, respectively. The proceeding culminated, four years later, in a consent Order made by Donohue J. on October 18, 2012, based on Minutes of Settlement that Ms. Williams drafted and that both parties, who were self-represented, signed after obtaining advice from separate duty counsel.
[2] The Minutes of Settlement contained the following words:
The parties – Respondent and Applicant - shall have final joint custody of the following children: Brandon M.A. Charles, born February 21, 2001, and Liam M.A. Charles, born April 5, 2002. Primary residence with Respondent/Mother who can relocate and travel with children outside Canada without consent of Applicant/Father.
[3] At some point, the word “with” was added below the word “without”, which precedes the word “consent”, and the words “with notice” were added at the end. Mr. Charles submits that these changes were made at his request to require prior notice to and consent from him for any proposed re-location or travel, with an opportunity to have the matter determined by the Court in the event of a dispute.
[4] The changes to the Minutes were not reflected in the final Order, which was signed, by the Registrar, based on Donohue J.’s endorsement: “Order to go in accordance with minutes of settlement filed.” Mr. Charles moved to vary the Order based on (a) the clerical error in failing to reflect the terms of the Minutes of Settlement, as amended, in the Order, and (b) a material changes of circumstances since the Order was made. The material changes relied on were:
(a) Ms. Williams’ failure to give notice to Mr. Charles of her intended removal of the children to Tobago, or to obtain his consent, contrary to the terms of the Order and the terms of settlement on which it was based;
(b) Ms. Williams’ failure to give Mr. Charles access to the children at Christmas in 2012, contrary to the parties’ agreement and the Order; and
(c) The bullying of the children in Tobago and their desire to reside in Ontario.
[5] Due to the urgency of the motion, since the children were scheduled to resume school in September and their place of residence needed to be resolved, I issued a temporary Order at the time of the hearing, with reasons to follow. These, then, are the reasons for the Order made on that date.
BACKGROUND FACTS
[6] Mr. Charles and Ms. Williams were married on December 31, 1998, in Long Island, New York, and separated 10 years later, in September 2008.
[7] There are two “Children of the Marriage”, within the meaning of the Divorce Act,[^1] namely:
(a) Brandon M.A. Charles, born February 21, 2001; and
(b) Liam M.A. Charles, born April 2, 2005.
The children continued to reside with Mr. Williams in the matrimonial home when the parties separated.
[8] On January 28, 2010, Mr. Charles commenced a proceeding by Application in which he claimed a divorce, custody of the children, child support, exclusive possession and sale of the matrimonial home, and equalization of net family property. On March 8, 2010, Ms. Williams delivered an Answer in which she claimed similar relief, except that she did not seek sale of the home.
[9] At an early case conference on February 2, 2010, Baltman J. noted that Mr. Charles was seeking a sale of the home and that Ms. Williams was seeking child and spousal support. Baltman J. ordered that the motions could proceed on those issues.
[10] By June 25, 2010, there were three motions before the court, one by Mr. Charles and two by Ms. Williams. The parties agreed to an order that the home be sold and that a request be made for involvement of the Office of the Children’s Lawyer (the “OCL”). Pending the OCL’s report, Bielby J. declined to change the status quo and, accordingly, ordered that the children would continue residing with Ms. Williams and spending alternate weekends and a few hours on each of two evenings per week with Mr. Charles. He also ordered that Mr. Charles would spend two weeks of vacation with the children that summer and that Mr. Charles would also be entitled to spend a vacation with the children.
[11] Bielby J. ordered that Mr. Charles pay child support to Ms. Williams in the amount of $862, based on his annual income of $57,333, and adjourned the balance of the motions without a fixed return date pending the OCL report.
[12] Mr. Charles moved to sever his claim for divorce from the claims for corollary relief. Ms. Williams opposed and sought further financial disclosure so that a permanent order for child support could be made. On September 27, 2012, Daley J. ordered the further disclosure and adjourned the motions to October 18, 2012. He further required the parties to attend a Settlement Conference on January 17, 2013.
[13] On October 18, 2012, Donohue J. encouraged Mr. Charles and Ms. Williams, who were self-represented, to speak with Duty Counsel with a view to settling the remaining issues. Each of the parties spoke with separate Duty Counsel and Ms. Williams returned with a document that Mr. Charles says differed from the terms that they had previously discussed. The documents read “Primary Residence with R/Mother who can relocate and travel with the children outside Canada without Consent of A/Father.” Mr. Charles refused to sign. According to him, Ms. Williams changed the document by adding the word “with” below “without consent of the Father,” but erroneously omitted to cross out the word “without”. Additionally, she added that travel with the Children outside Canada must be done “with notice” to Mr. Charles. Donohue J. endorsed on the record that an Order was to issue in the terms of the Minutes of Settlement. She dispensed with the parties’ obligation to attend the Settlement Conference on January 17, 2013, as the issues, she wrote, had been settled.
[14] In early November, two weeks after the Minutes of Settlement had been signed, Ms. Williams withdrew the Children from school and left Canada with them. Mr. Charles asserts that she failed to provide notice to him, as required by the parties’ Minutes of Settlement and the Order made on October 18th. When Ms. Williams later notified him of the Children’s whereabouts, he says that he advised her that he considered her unilateral removal of the Children without his consent to be tantamount to child abduction.
[15] The Order of Donohue J. included a term that “Allen Leon Charles shall have reasonable access as agreed upon by the parties from time to time and summer vacation and Christmas holidays if they relocate.” The Children were not, in fact, returned to Canada for the Christmas holidays in 2012. They were not returned until Ms. Williams attended at Mr. Charles’ residence without notice on July 4, 2013, and left Brandon and Liam with him. Ms. Williams then returned to Tobago without notice to Mr. Charles. He learned of her departure when she telephoned him on July 24, 2013, and advised him that she would return on August 28, 2013, to retrieve the children. According to Mr. Charles, she later told him that she would not be returning to collect the Children, who would instead be returning to Tobago alone on August 30, 2013.
[16] Mr. Charles states that when the Children returned to Ontario in July 2013, they asked to remain in Canada with him. On August 12, 2013, Mr. Charles applied to vary the Order of Donohue J. based on the clerical error referred to above and based on material changes of circumstances, namely, Ms. Williams unilateral removal of the children, her refusal to return them for Christmas holidays in 2012, and the bullying of the children in Tobago and their preference to return to Ontario. He requested that a request be made for involvement of the OCL.
ISSUES
[17] The court must determine whether there have been material changes in circumstances that affect the well-being of the Children and, if so, what residential and parenting arrangements would be in their best interests.
PARTIES’ POSITIONS
[18] Mr. Charles asserts that Ms. Williams’ unilateral removal of the Children to Tobago without prior notice to him, and her refusal to return the Children for the Christmas holiday in 2012, combined with the children’s unhappiness in Tobago and their desire to return to Ontario amount to material changes of circumstances that affect the Children’s interests. He states that if Donohue J. had been aware that Ms. Williams would not comply with her Order, she would not have made it.
[19] Mr. Charles further argues that Tobago is not a signatory to the Hague Convention for the Protection of Children and that if Ms. Williams refuses to return the Children in the future, he will be unable to compel her to do so. He argues that it would be contrary to the interests of the children that they lose their relationship with him.
[20] Ms. Williams denies that she failed to comply with Donohue J.’s Order and asserts that there has been no material change in circumstances since that order was made. She further states that it is in the children’s best interests to remain in her care in Tobago.
ANALYSIS AND EVIDENCE
[21] The parties take widely divergent positions on the facts, including those surrounding the making of the Order by Donohue J. in 2012, and the events that have taken place since then. The parties dispute the following facts:
a) Mr. Charles asserts that on October 18, 2012, he did not have time to review carefully the changes that Ms. Williams had made to their Minutes of Settlement as the parties were called back into court by Donohue J. He says that he signed the Minutes as amended, and it was not until he returned home and reviewed them more carefully that he noticed the ambiguity. He says that he assumed that the parties would return to court to obtain a clearer wording. However, Donohue J., in her endorsement, had dispensed with the parties’ obligation to attend a settlement conference on January 17, 2013, as she understood that all of the remaining issues had been settled. Ms. Williams states that the Minutes of Settlement and the Order of Donohue J. accurately reflect the agreement the parties reached on October 18, 2012. She states that Mr. Charles knowingly “traded” his consent to the relocation of the children for her consent to the parties’ divorce. She also states that after Mr. Charles tendered a draft Order for divorce immediately following, Ms. Williams filed the parties’ Minutes of Settlement and that Donohue J. signed the divorce Order that day.
b) Mr. Charles asserts that Ms. Williams left Canada with the children without his consent and without prior notice to him. Ms. Williams denies this, noting that Mr. Charles admits in his affidavit that he advised her that he would not prevent her from relocating with the children.
c) Mr. Charles asserts that after Ms. Williams left Canada with the Children in November 2012, she promised to return them in December 2012 so that they could spend the Christmas holidays with him. He states that when she learned that he planned to re-marry in the spring, she decided that the Children would not return to Canada at Christmas. Ms. Williams admits that the children were not returned to Canada in December 2012, but attributes this to her uncertainty as to whether Mr. Charles would pay for them to return to Tobago before school resumed in January.
d) Mr. Charles states that following the Children’s return to Ontario on July 4, 2013, they reported negative experiences in Tobago that contributed to their wanting to remain in Ontario. Ms. Williams disputes the information that Mr. Charles attributes to the Children in the following respects:
(i) Mr. Charles reports that the children’s school in Tobago is surrounded by an electric fence whose purpose is to deliver an electric shock to children who try to climb the fence or run away from the school. Ms. Williams denies the existence of an electric fence and tenders a photograph of the school surrounded by a wall, with a gate and a security booth at the front.
(ii) Mr. Charles asserts that there is no security on the playground, and that fistfights break out frequently and the Children’s classmates have been bloodied in these fights. The Children have suffered bruising, cut lips, and Brandon lost a tooth as a result of a kick from another student. Liam reports that an 11 year old girl in his school slaps him in the face, and has cut his lip; and his classmates tease him about his accent and his weight. Brandon reports that he suffered a sprained ankle when assaulted by one of his classmates. Ms. Williams says that Mr. Charles exaggerates, and that if Brandon had lost a tooth at school or was bludgeoned or kicked, she would have insisted on an investigation.
(iii) Mr. Charles asserts that the teachers at the Children’s school in Tobago employ corporal punishment, striking the children with straps and whips. Ms. Williams denies that corporal punishment is used and tenders a print-out from the Ministry of Education’s National School Code of Conduct, which states that there is a zero-tolerance policy toward corporal punishment.
(iv) Mr. Charles asserts that one of the primary reasons that Ms. Williams returned the Children to Canada in July was because Liam had broken his clavicle and Ms. Williams was dissatisfied with the medical response from physicians in Tobago. Ms. Williams states that the doctor who had examined Liam in Tobago stated that Liam would make a full recovery in six to eight weeks with his arm in a sling and that no medical intervention was necessary. She states that she simply asked Mr. Charles to get a second opinion as Liam was going to be in Ontario for the summer anyway.
(v) Mr. Charles asserts that Ms. Williams requires Brandon to sleep on her couch every night and has not enrolled him in music classes, which were, according to Mr. Charles, a central feature of his life in Canada. He adds that Brandon also has a nut and shellfish allergy for which he carries an EpiPen. However, there are no peanut-free zones in Tobago, and Mr. Charles asserts that the environment and the hospitals there are not conducive to protecting a child with such allergies or to providing treatment for a severe allergic reaction. Ms. Williams states that Brandon has had drum lessons and guitar lessons in Tobago and that the children have their own room and their own beds. She also tenders letters from the Chief Medical Officer at the hospital in Tobago, who states that the hospital is a modern state of the art facility commissioned in December 2012, which is equipped with a modern emergency room with pediatric facilities and emergency room space to provide 24-hour services, and has a pediatric allergist on staff who can appropriately manage peanut allergies.
(vi) The Children have not visited a dentist since leaving Ontario in 2012. Ms. Williams states that she asked Mr. Charles to set up appointments for when the children returned to Ontario so there was no need to take them while in Tobago.
[22] Mr. Charles states that the Children have developed a close relationship with his wife and their step-brother, who is Brandon’s age. He located appropriate schools for the Children in the area where he and his wife and their son reside, and he proposed to re-enroll the Children in music lessons. Ms. Williams asserts that Mr. Charles is motivated to gain custody of the children in order to avoid paying child support to her.
[23] Mr. Charles and Ms. Williams did not cross-examine each other on their conflicting affidavits. As Ms. Williams points out, there was little opportunity to conduct cross-examinations in the short time from when Mr. Charles brought his motion to the time it was heard; and the urgency in having it heard before the children returned to school was attributable in part to Mr. Charles’ delay in bringing the motion until just before the children’s proposed return to Tobago.
[24] Mr. Charles’ allegations raise serious concerns as to circumstances in which the children were taken to Tobago and kept there, and whether they will be in a safe and healthy environment if they return to Tobago. While Ms. Williams has effectively countered many of these concerns, there are some that remain. In particular:
(a) While I find that Ms. Williams informed Mr. Charles of her intention to relocate the children from their residence in the GTA before they left, I am not satisfied that she informed him in advance of her intention to remove the children to Tobago on a permanent basis or gave him the opportunity to raise the issue of that particular move in court.
(b) While I accept Ms. Williams’ statement that she initially planned to send the children back to Ontario for the Christmas holidays in 2012, and that she changed her mind because Mr. Charles did not commit to paying for them to return to Tobago before school resumed in January, I am not satisfied that this excuses her failure to comply with the term of Donohue J.’s Order, which directs that Ms. Charles was to have access to the children for the Christmas holiday and does not set terms as to who is to be responsible for transportation costs.
(c) While I suspect that Mr. Charles’ account of the violence that the children have faced at school is exaggerated, and accept that it is the policy of the school that there be no corporal punishment, I find that both Ms. Williams and the Principal may be downplaying the alleged bullying to the point of turning a blind eye to it. Alne Fraser, the Principal of Brandon’s school, states:
I…am familiar with the student Brandon and am not aware of any issues with Brandon and other students apart from the usual skirmishes had by boys of his age. I am not aware of any incident where he was hurt at school resulting in the loss of a tooth/teeth nor am I aware of instances where he was hit by a staff member as any such action can result in a teacher losing his/her job and being disciplined by the Ministry of Education as there is a zero-tolerance policy in place.
Ms. Williams, in turn, states:
The kids have not have (sic) skirmishes that kids their age have not had with their peers. The Applicant has always been extremely sensitive about the children’s play – even here in Ontario when they would have minor issues at school – but I keep reminding him that wherever they go, kids fall out, make up, are best buddies again and keep going. The bullying and mistreatment he is claiming is an overstatement and complete exaggeration – for his own purposes to keep the children so he is not obliged to pay child support.
(d) Tobago is not a signatory to the Hague Convention and there is no effective way in which Mr. Charles could secure the children’s return to Ontario from that country if Ms. Williams again refused to return them voluntarily.
(e) Ms. Williams’ employment contract was to end on November 1, 2013, and it was not clear what means she had to continue supporting the children’s care in Tobago beyond that date.
(f) The OCL would not be able to conduct an effective assessment of the children if they returned to Tobago.
[25] I found that there had been a material change of circumstances since Donohue J. made her Order on October 18, 2012; namely, by Ms. Williams’ removing the children to Tobago and failing to return them to Ontario for the Christmas holiday in 2012 as the Order directed. Additionally, I found that the concerns which Mr. Charles raised warranted investigation by the OCL, who would not have an opportunity to conduct an effective assessment if the children returned to Tobago.
CONCLUSION AND ORDER
[26] For the foregoing reasons, I made an Order, on August 30, 2013, in the following terms:
Brandon M.A. Charles, born February 21, 2001, and Liam M.A. Charles, born April 2, 2005, shall be in the temporary custody of and shall reside with their father, Allen Leon Charles, in Brampton, Ontario, subject to liberal access by the children’s mother, Andrea Juliette Williams.
Brandon M.A. Charles shall forthwith be enrolled at Sir John A. MacDonald Sr. Public School in Brampton. Liam shall forthwith be enrolled at Agnes Taylor Public School in Brampton.
A request shall be made for involvement of the OCL to conduct a clinical assessment and provide a report as to the needs of the children and how their needs can best me met, pursuant to s. 112 of the Courts of Justice Act. Both parents shall forthwith complete and submit intake forms to the OCL by September 6, 2013, and co-operate fully with the assessment.
Neither party shall remove either of the children from the Province of Ontario without further Order of this Court.
The Peel Police Service and any other police service in which the children may be found shall enforce the terms of this Order and lend all necessary assistance; including the use of force to ensure that the children are not removed from Ontario, and/or to bring about their prompt return to the City of Brampton in accordance with this Order.
The Order of Donohue J. dated October 18, 2013, is varied as necessary to give effect to this Order.
This matter shall return to court for a Case Conference on December 19, 2013, at 10 a.m. Costs are reserved to the judge presiding at the return of the motion, which shall be on a date following the Case Conference.
[27] Upon inquiring with the Trial Office, I understand that the case conference did not take place on December 19, 2013, as the OCL had not yet completed its assessment. I have directed Court staff to make inquiries to the OCL and understand that the assessment is likely to be completed by mid-April.
[28] Based on the foregoing, it is further ordered that:
- The parties shall return for a Case Conference on April 22, 2014, at 10 a.m.
Price J.
Released: January 22, 2014
COURT FILE NO.: FS-10-68103-0001
DATE: 20140122
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ALLEN LEON CHARLES
Applicant
- and –
ANDREA JULLIETTE WILLIAMS
Respondent
REASONS FOR ORDER
Price J.
Released: January 22, 2014
[^1]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am.