CITATION: Palterman v. Palternman, 2015 ONSC 1823

COURT FILE NO.: D-20676-14

DATE: 2015-03-19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Katie Lynn Palterman, Applicant

AND:

Troy Douglas Palterman, Respondent

BEFORE: The Honourable Madam Justice Louise L. Gauthier

COUNSEL: Nicola S. Munro, Counsel for the Applicant

Respondent, Self-represented

HEARD: March 19, 2015

ENDORSEMENT

[1] The Respondent has brought a motion for a finding of contempt against the Applicant, for, among other things, her failure to sign travel documents to enable the Respondent to travel to Zimbabwe with the child Blake for the period from May 4 to May 27, 2015, her failure to agree to a reasonable access schedule, and her withholding the child from the Respondent.

[2] At the hearing of the Motion, I advised the Respondent that I would not be making any finding of contempt on the part of the Applicant, as the material filed does not meet the high threshold required for a finding of contempt.

[3] I heard submissions from both sides with regard to the request that the Respondent be permitted to travel to Zimbabwe with Blake for the period set out above.

[4] The parties were married on October 16, 2010, and separated in December, 2013. The child Blake, who was born on June 6, 2012, is 2 ½ years old (34 months).

[5] The Divorce Order dated December 15, 2014, provides that the parties have joint custody of Blake. The Order provides as follows:

a. Neither parent shall remove Blake William Palterman, born June 6, 2012, from Ontario without the written consent of the other, which consent shall not be unreasonably withheld. If either parent is taking the child on a vacation outside of Ontario, they shall provide contact information and details of where they will be staying with dates and times. The other parent shall sign documentation necessary to travel with Blake William Palterman. The child Blake William Palterman, born June 6, 2012, can only be brought to a country which is identified by Canadian Government by way of travel advisory with the written consent of both Katie Lynn Palterman and Troy Palterman or upon a court order deciding it is in the child’s best interests to do so.

[6] The child spends four days out of every nine with the Respondent.

[7] At issue is the reasonableness of the Applicant’s refusal to consent to Blake accompanying the Respondent to Zimbabwe as proposed.

[8] Having considered the evidence of both parties, I conclude that the Applicant is not unreasonably withholding her consent to the proposed trip.

[9] I decline to make an Order permitting the Respondent to travel to Zimbabwe as proposed, as I have concluded that to do so would not be in the child’s best interests.

[10] Blake is only 34 months old. He is not yet toilet trained. Travel over the course of two days (2-12 hour flights) with an overnight stop-over would be difficult on the child. As well, three and a half weeks is a long time for this young child to be away from either parent, at this age.

[11] Although the parties disagree about the safety of Zimbabwe, and although there is no nationwide advisory in effect for Zimbabwe, nonetheless, travellers are cautioned, on the Government of Canada website to “exercise a high degree of caution due to the unpredictable security situation and carefully evaluate the implications for your security and safety.”

[12] This evidence establishes that there is a basis for concern about travelling to that country.

[13] Although the Respondent presents the proposed trip as an opportunity for the child to “introduce Blake to his heritage on his paternal side of his family, including introducing him to traditional sports, dances, ceremonies, languages, traditional outdoor activities, traditional art, and folklore as well as the beauty of the land, including seeing the traditional stone sculptures, landmarks and native wild animals”, it is unlikely that Blake will have any appreciation of these encounters, nor is he likely to retain any meaningful memory of such a visit, given his very young age. Additionally, the undesirability of travelling so far, over such an extended period of time outweighs any possible benefit the child could obtain from the proposed trip.

[14] While I appreciate how much the Respondent would benefit from having his son with him as proposed, the focus must be on the best interests of the child. I cannot conclude that it would be in his best interest to accompany his father to Zimbabwe. Accordingly, I am dismissing the Respondent’s claim for that relief.

[15] Although the Respondent was also seeking other relief related to access, no submissions were made in that regard. Accordingly, the balance of the motion can be brought back by either party on a Notice of Return to the List.

The Honourable Madam Justice Louise L. Gauthier

Date: March 19, 2015