ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-13-4461-00
DATE: 2015-07-07
B E T W E E N:
JOSEPH CHARLES YVON
BOUDREAU
Howard Wright, Counsel for the Applicant
Applicant
- and -
MARTA SZABO-BOUDREAU
Andrea Acri, Counsel for the Respondent
Respondent
HEARD: July 3, 2015
REASONS FOR RULING
Lemon J.
The Issue
[1] Ms. Szabo-Boudreau moves for an order allowing her to take the parties’ two children to Hungary for two weeks in August 2015. Mr. Boudreau disputes this request. I heard submissions on July 3, 2015 and at the end of submissions, I granted Ms. Szabo-Boudreau's request. As a result of a lengthy motions list, I was not able to provide reasons that day but advised that written reasons would follow. These are those reasons.
Background
[2] Both parties make serious allegations against the other. They both denied the other's allegations. Mr. Boudreau has included affidavits from his adult daughter and his brother. None of the affidavits have, of course, been cross-examined upon. I can make no finding of credibility against either party and must make my decision on admissible reliable evidence. On these materials, I can no more find that Ms. Szabo-Boudreau threatened to leave Canada with the children than I can find that Mr. Boudreau assaulted Ms. Szabo-Boudreau.
[3] Mr. Boudreau has included various materials from the Internet with respect to child abduction. I cannot rely on this unsworn hearsay material for the truth of its content. I can, however, accept it for the sole purpose that it may support Mr. Boudreau’s honest belief that Ms. Szabo-Boudreau may not return from Hungary.
[4] The parties moved in together in June 1995. They were married in April 1999 and separated in June 2013. They have two children, ages nine and eight. Until separation, Ms. Szabo-Boudreau took the children to Hungary each summer to visit with her immediate and extended family. She has not done so since separation.
[5] Ms. Szabo-Boudreau first requested Mr. Boudreau's consent to go to Hungary in May of this year and he has steadily refused. His reasons are set out in his affidavit and were argued by his counsel. In my view, none form a successful basis to refuse Ms. Szabo-Boudreau's request.
Analysis
[6] Mr. Boudreau alleges that Ms. Szabo-Boudreau will not return. He says that she has threatened to do so in the past. She denies those threats or that intent. She does have a track record of always returning in the past. However, that factor is reduced somewhat given that the parties were, apparently, happily married and she has not gone to Hungary since this litigation was commenced.
[7] It does not appear to be disputed that Ms. Szabo-Boudreau first came to Canada in 1995, staying from time to time on visitors’ visas. She then came to Canada permanently in 1998. She is presently employed as a real estate agent and has several active listings. The children have only known Canada and it appears that their first language is English.
[8] While I agree with Mr. Boudreau that it is possible that Ms. Szabo-Boudreau may go to Hungary and not return, that seems unlikely given that both she and the children have roots in Canada. I must make my determination on the balance of probabilities based on the admissible evidence before me and not upon the fears of only one party.
[9] The parties agree that Hungary is a party to the Hague convention and Ms. Szabo-Boudreau acknowledges that the appropriate jurisdiction to determine custody and access is Ontario. Given those factors, it is unlikely that she would be successful in bringing any application for custody in Hungary.
[10] Mr. Boudreau requested and obtained financial security from Ms. Szabo-Boudreau for such a trip just prior to separation. Ms. Szabo-Boudreau acknowledges that but sets out an explanation of why she agreed with Mr. Boudreau; she makes allegations against Mr. Boudreau about that request. I cannot make a determination as to what occurred at that time or the reasons for it. From a review of Ms. Szabo-Boudreau's financial statement, she has no present ability to put up any financial security to guarantee her return. Financial disclosure is still ongoing between the parties despite the fact that this application was commenced in 2013.
[11] The children are of an age to contact Mr. Boudreau if they were to be removed from Ontario.
[12] On a balance of probabilities, I find that Ms. Szabo-Boudreau will return.
[13] Mr. Boudreau also argues that he is within his parental rights to refuse the trip. While he is correct to that point, it then falls to the court to make a determination on the best interests of the children. The request is for only two weeks in the middle of the summer vacation. The children's grandparents are elderly and the balance of their family is in Hungary. The children have not seen their extended family in over two years. It would be in their best interest to keep contact with their family, even if for such a short trip.
[14] Finally, Mr. Boudreau says that this is not the right time given the ongoing litigation. He points to the fact that the Office of the Children's Lawyer has now agreed to be involved based on a consent order dated April 17, 2015. He submits that the investigation should continue through the summer particularly since the parties had planned a settlement conference in August.
[15] In the normal course, this would be a powerful argument to refuse the trip. However, the OCL has only agreed to be involved as of June 18, 2015. Although both counsel were to arrange a date with the trial office for a settlement conference on a date before August 31, 2015 "as soon as such dates become available", it appears that neither counsel did so. I am advised that there are no court dates available now in the Brampton courthouse before the fall. It is unlikely that the OCL will be able to report before the fall. A two-week trip is unlikely to get in the way of that schedule. Ms. Szabo-Boudreau sets out in her affidavit that she will cooperate with the OCL to be sure that the holiday does not interfere with the investigation; she will, no doubt, be held to that promise. Indeed, it may fall to her to make some sacrifices going forward to make sure that there is no delay.
[16] The Application was filed in October 2013. The Answer was filed February of 2014. Financial productions have apparently not been completed. If the parties are not going to move expeditiously, neither can object to delays by the other.
[17] Accordingly, Ms. Szabo-Boudreau's motion dispensing with the requirement of Mr. Boudreau's consent for Ms. Szabo-Boudreau to travel to Hungary with the children from August 6 to August 21, 2015 is granted. Ms. Szabo-Boudreau's request that Mr. Boudreau cover the cost increase in the airfare since her first request is dismissed.
[18] In her affidavit, Ms. Szabo-Boudreau agrees that Mr. Boudreau can continue to have telephone and Skype access while she is in Hungary. That shall be arranged before she departs.
[19] Ms. Szabo-Boudreau will provide copies of the round-trip tickets for her and the children to Mr. Boudreau through their respective counsel.
[20] Within the next ten days, a conference call will be arranged between counsel with my office during the week of August 24, 2015 to confirm the return of Ms. Szabo-Boudreau and children or to arrange an expedited date to deal with any issues arising out of Ms. Szabo-Boudreau's failure to return.
[21] If the parties cannot agree upon costs, written submissions shall be made to me. Ms. Szabo-Boudreau shall provide her costs submissions within the next 15 days and Mr. Boudreau shall provide his responding submissions within 15 days thereafter. There shall be no reply material unless I request it. Each submission shall be no more than three pages not including any offers to settle or bills of costs.
Lemon J.
Released: July 7, 2015
COURT FILE NO.: FS-13-4461-00
DATE: 2015-07-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JOSEPH CHARLES YVON BOUDREAU
- and –
MARTA SZABO-BOUDREAU
REASONS FOR RULING
Lemon J.
Released: July 7, 2015