COURT FILE NO.: F726/15

DATE: 2015/09/17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ioan Ovidiu Birau (Applicant)

AND:

Valentina Birau a.k.a. Valentina Oancea, (Respondent)

BEFORE: D.R. Justice Aston

COUNSEL: Self-represented for the applicant
Kristine Jackson, for the respondent

HEARD: September 9, 2015

ENDORSEMENT

[1] This is a continuation of a motion by the father, first returnable June 17, 2015, in which he sought the immediate return of his daughter to Ontario and temporary custody. There is no cross motion by the mother. However, there is a separation agreement signed in June 2013 which provides that she has custody of Roberta-Maria, now four and one-half years old. Unless or until the separation agreement is set aside or varied by a court order the respondent remains the custodial parent and Roberta-Maria is to “primarily reside” with her. See paragraphs 4.1 and 4.2 of the separation agreement.

[2] On June 17, 2015 on an ex-parte and “interim interim” basis Leach J. ordered that the mother immediately return the child to Ontario and that the father’s access regime be reinstated.

[3] On July 15, 2015, on consent, Leitch J. granted the father “an extended access visit” in Ontario. He picked up his daughter from the mother’s new home in Kamloops, British Columbia and has had her in his care since about the end of July. The motion was further adjourned to September 9, 2015.

[4] In the meantime, the parties had a case conference with the Vogelsang J. on August 31, 2015. The conference judge ordered that the motion on September 9, 2015 would be “restricted to only one issue: whether or not the interim-interim order of Leach J. requiring the return of the child to Ontario should be set aside and, consequently, where the child’s residence should be”.

[5] Both sides filed further affidavit material including affidavits from witnesses. However, the starting point on this motion is the hand written endorsement of Leach J. which includes his reasons. It is clear on the face of his reasons that the motion judge misread paragraph 4.17 of the separation agreement. This paragraph restricts the father’s right to travel outside Ontario with the child but the motion judge read it as a restriction on the mother. In point of fact, there is no provision in the separation agreement specifically or expressly restricting the mother’s ability to travel outside Ontario or even to relocate her residence outside Ontario. This misunderstanding of the terms of the separation agreement was apparently critical to the relief granted in that the motion judge stated that “such blatant contravention of the parties’ separation agreement must not be condoned”.

[6] The reasons of the motion judge do allude to the danger of making an order “when the court has been presented with only one side of the story” and his reasons specifically state that his order is not only “interim-interim” but also “without prejudice”. Having regard to the new evidence before the court and also considering the mistaken interpretation of paragraph 14.17 of the separation agreement, the ex-parte interim-interim without prejudice order of June 17, 2015 is set aside.

[7] As a consequence the child remains on “an extended access visit” with her father (pursuant to the order of July 15, 2015) and the mother is still the custodial and primary residence parent (pursuant to the separation agreement) until any further order of the court.

[8] During the course of the submissions on September 9, I suggested treating this matter as a motion by the mother for permission to move the child to British Columbia with an appropriate variation of the father’s access should that move be expressly permitted. On reflection, I have concluded that it is best to leave it to the parties themselves to bring whatever further motions they wish to bring. No leave is necessary for such motions.

“Justice D.R. Aston”

Justice D.R. Aston

Date: September 17, 2015