REASONS FOR DECISION

Overview

[1] This bifurcated trial decides the custody, and proposed relocation of a two year old boy[^1] from Richmond Hill, Ontario to El Cajon City, California. The mother is a U.S. citizen. The trial also decides whether the father’s consent to travel and to the issuing of government documents should be dispensed. Counsels have agreed that the outstanding issue of child support shall be dealt with in a separate proceeding.

[2] B.’s parents love him. Each has served pleadings that seek sole custody.

[3] B. and his parents lived in the basement of his paternal grandparents’ 4500[^2] square foot home at 71 Pieta Place in Richmond Hill. Upstairs were his paternal grandparents, a paternal uncle, and until May 2016, a paternal aunt.

[4] Neither parent has ever lived independently. Neither parent had any savings or financial means as of the date of marriage. None was acquired during marriage. The mother was not permitted to drive, or to work, or to engage in the local community. The evidence was unclear whether she has standing to work in Ontario.

[5] On December 3, 2016 the York Regional Police removed the mother and child to a place of safety. With the help of her brother, the mother was later able to secure short term rental accommodations. The lease on those premises expire at the end of June 2017.

[6] The mother’s plan is to return with B. to California, where she resided before marriage and has extensive family supports. She has arranged for employment, daycare and medical care.

[7] The father’s plan is less clear. He emphasizes that his parent’s Richmond Hill home is the “only home that B. has ever known.” He looks back on December 3, 2016 as the day his wife absconded with his son. He can acknowledge the end of his marriage, but takes no initiative in sorting through its aftermath. He criticizes the mother’s plan and does not accept that she is making her own decisions. He rejects any proposal that has B. leaving Ontario.

[8] The dilemma over where B. will grow up has had, and will continue to have heartrending consequences. It is as much a conflict between two extended families as it is between two parents. It is particularly tragic because the extended families are actually one family system: the parents are first cousins.

[9] Woven into the conflict are claims of inducement, confinement, and false allegations. There are outstanding criminal charges. A December 5, 2016 recognizance prevents any communication between the parents, subject only to a Family Court Order. The Children’s Aid Society is involved.

[10] There is a temporary consent order that the mother have custody. There are two other orders, also on consent, the second one providing for the father’s supervised access from Saturday at 9:00 a.m. to Sunday 7:00 p.m. one week and Sunday from 11:00 a.m. to 6:00 p.m. the following week.

[11] Access exchanges have been facilitated by the paternal grandparents and the mother’s brother, Firas Matti. For the past six months he has left behind his obligations in California to be by the mother’s side. He drives her to appointments, to court and for day to day tasks, and has been financially supplementing her and B. expenses.[^3]

[12] Neither of the parents has any demonstrated ability to financially provide for B. in Ontario.

[13] The mother is 31 years of age. She has no close family in Ontario. She owns some jewelry, a laptop, and as of December 27, 2016 when she deposed her Financial Statement, she had no savings and owed $460 on her credit card. She receives social assistance and a child tax credit.

[14] The 34 year old father and his brother work at their father’s used car dealership, operated as Best Brother’s Auto Sales Ltd. The father reported his income to Canada Revenue Agency in each of 2013 and 2014 as exactly $19,999.

[15] In 2015 it was $9,999. The father’s January 5, 2017 Financial Statement – the only one filed in this proceeding – repeats his last year’s income (2016) and current income (2017) as $9,999.98. The Statement informs the Court that Mr. Hassani’s net worth consists of $500 in savings and $2,000 in furniture, less $4,000 in credit card debt.

[16] On the materials disclosed, one could assume that B. is being financially provided for by his paternal grandparents. But it would be no more than a guess.

[17] The father has provided no credible evidence as to how his expenses are paid. When challenged at trial, he stated that he also received an unknown amount of personal injury benefits from a 2016 car accident. The mother has no knowledge of the father ever being in a car accident. The accident does not appear to have affected his working hours. No additional income, benefits or a lump sum is disclosed on his Financial Statement.

[18] As the trial progressed, it became apparent that the father’s income was a factor in the proposed relocation. The mother spoke of her lack of options in Ontario and her necessity for her to become financially independent. Within the first twenty minutes of his testimony he threw out a figure of $2,500 a month as his actual income. In cross examination he used a figure of $3,000 a month. He did not appear aware that he had contradicted himself.

[19] I find that neither of the monthly income figures has any more substance than the annual amounts the father declares to the Canada Revenue Agency. Neither are the figures of $2,500 or $3,000 amounts against which the Family Support Office can realistically enforce.

[20] The mother is realistic about her rather precarious financial situation. She has a plan to return to California, live in her brother’s home with her mother and sister and to work in her brother’s business. She has researched a daycare, medical care and will be once again able to drive.

[21] For the reasons set out below, I grant the mother final custody of B. Having done so, I then assess the tests under Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27, and permit the mother to move B. to California, U.S.A. with terms for access and the exchange of information. I also dispense with the father’s consent to the issuance of any government documentation and to travel permissions.

Credibility

[22] Where the evidence of the mother and father differ, I prefer the evidence of the mother. She was thoughtful, sincere, dignified and cautious in her testimony. She did not overstate her evidence until vigorously cross examined – the pressure of which revealed little contradiction, and genuine distress.

[23] In contrast, the father’s evidence was superficial, repetitive and unreliable. One example of the latter will suffice. When asked about where he would exercise access in September and December of this year the father answered with certainty that it would be at his parent’s home at 71 Pieta Place, Richmond Hill.

[24] Much of his case has rested on this location being superior in every manner to the California residence of the maternal extended family, and it being “the only home that B. has ever known.”

[25] Undisclosed, and unknown to the court until his cross examination, 71 Pieta Place was sold last month. The sale closes in July. When this fact was put to the father in cross examination, he hesitated only a second, then rushed through a stream of unrelated comments: they had not moved yet, he was not in control of the sale, a larger home had been purchased that was even better, it was 5,000[^4] square feet, and by home he had only meant the people within it. He could not explain why he had chosen not to update his Form 35.1 Parenting Affidavit – as the form clearly requires.

[26] Not even in closing submissions was an address given for the new home. The court has no idea where the father will be living in eight weeks’ time.

The Inducement

[27] In 2011 the father, his parents and brother travelled to California to visit their extended family, from whom they had been geographically separated for many years. Firas Matti generously hosted them for a month and offered his vehicle for sightseeing and visiting.

[28] By the end of the trip, 29 year old Rani expressed interest in proposing marriage to his 26 year old cousin Flora, Firas’s sister. Traditional inquiries were made, but the interest was not reciprocated. Flora did not want to leave her family in California.

[29] Another trip was undertaken in 2012. This time the proposal was more vigorous. Assurances were made between family elders that within a couple months to a year of the young couple’s marriage in Ontario, they would move to California to build a life amongst their extended family.

[30] The proposal was accepted, the mother finished her college diploma in business administration, and the parties were married in Ontario on December 14, 2013.

[31] In his evidence at trial, the father did not seriously contest the making of this agreement.

The Confinement

[32] The mother’s family came for the wedding and stayed just over a week, and then returned, expecting the young couple to soon relocate to California.

[33] Two weeks after the marriage, Flora became concerned that Rani did not intend to move to California. They argued. She agreed to give him the year. They took a trip to California. By March she was expecting their first child. Their son B. was born on December 16, 2014.

[34] What she experienced for the next two years was a series of excuses and justifications as to why they could not move to California, why she could not get her driver’s license,[^5] and why she could not leave the home without permission. The father testified that she asked “a thousand times” to move to California and he refused her “a thousand times, each time with “a nice explanation.”

[35] Life in the basement of 71 Pieta Place was lonely and confining not only for the mother, but also for B. The father worked six days a week. The mother’s role in the family was strictly limited. She had no friends, and no community involvement.

[36] She described the isolation, the sense of being watched by her in-laws, the lack of other children to stimulate B., her growing despair and her sense of captivity. She spent many hours on the phone to her mother. She slept, cared for B. and looked forward to when her husband would take her out. But for those outings, she was functionally unaware of her surroundings, but for the street in front of their house where she needed permission to walk. Everywhere else required a vehicle.

[37] She described one occasion during which she was only minutes outside the home when her cell phone rang. Rani wanted to know where she was. Her in-laws had heard the garage door open, and she had not asked permission to go out.

[38] There were periods of respite. The parents travelled to California when B. was three months old, staying about 40 days, and mother and son had their own trip to California for two months in February 2016. The whole family travelled to the paternal aunt’s wedding in Michigan in May of 2016.

[39] The father saw none of his wife’s dismay. He described their situation in glowing terms. His wife did not have to work, and he testified that she slept until noon every day, talked to her mother for an hour each day, and did little to care for their son. That was left to his mother.

[40] Fantastically, the father assured the court that he took his wife out every single night, as soon as he arrived home from work. “Every single night” they went to movies, restaurants, and amusement parks. The mother dismisses this statement as nonsense. He was often not home from work until 8:00 p.m. and was always exhausted.

[41] The father acknowledged that the mother had asked him to work, but that “he was a legal guy” and did not want her working for cash. He related that he had a paralegal work on her papers, which were delayed, or missed due to the May 2016 Michigan trip and then other events in September prevented the mother from working. The mother’s testimony was that she knew little about this paperwork and was told even less – only that she could not work. It paralleled her futile requests for a driver’s license.

[42] The father agrees that he did all the driving and has an explanation, or two, why his wife could never get a license and why she had no need to leave the home. He assures the court that she could have left the home at any time and often did – calling first for permission “out of respect.”

[43] The father drove B. to all his medical and other appointments. After 22 months of relative isolation in the basement, B.’s physician identified a speech delay in the young boy and recommended exposure to other children through a daycare. The father agreed and B. was registered in a local centre.

[44] The father dropped him off and picked him up at the end of the day. At trial he could not name the daycare supervisor, or any staff. I heard no evidence from him that the mother ever attended the daycare. Her evidence was that she was not permitted to attend, and was uncertain if she was even listed as a contact.

[45] By November 2016 the mother’s situation was becoming desperate. The mother testified that she had no rights, was completely controlled, and was punished if she was not compliant. Tensions escalated to an altercation in which she alleges that there was a threat of death, and the brandishing of a weapon.

[46] On December 3, 2016 the police attended the home, removed the mother and child and laid charges. Those charges are still before the criminal court and are related for narrative purposes only. Their disposition is not necessary to this family court decision. Relevant to this decision is my finding that the parent’s marriage was volatile, unhappy for the mother, and once the father broke his promise to build a life with her in California - doomed to failure.

[47] The police contacted the mother’s family. On December 5, 2016 two of her brothers dropped everything, got on a plane in California, arrived at Pearson Airport, rented a car, got lost trying to find the hotel where the mother had sought refuge, found her and stayed with her.

[48] By December 17th one brother had exhausted his leave days and had to return to work. Her oldest brother, Firas, has remained in Richmond Hill with his sister, to this day. He has helped her find housing, driven her to all appointments, done the supervised access transfers and worked with the CAS whom he testified were very helpful in arranging support services. Not a single access visit has been missed thanks to his labours and sensible disposition.

[49] The brother testified during the trial, and was the only person to do so, other than the parents. He is an accomplished and remarkable individual. He gave clear, calm, deferential evidence. Perhaps even more than the parents, he feels the tragedy of the circumstances. He is resigned to the time that he has lost from his own life, and is resolved to meet his obligations to his sister and nephew. He stated that he “would do anything for B.” They will have a residence in his home, and his protection.

[50] After he completed his evidence he sat quietly at the back of the courtroom.

Father’s Claim of False Allegations

[51] The father was shocked by the events of December 2016. He returned home to find three police cruisers in his driveway and his wife and child missing. He remains under terms of a recognizance that prevent contact with them, except through a Family Court order.

[52] I accept that the father is genuinely distressed by these events. He thought that he had a unique marriage. He avows that his child was abducted and that his brothers-in-law (also his cousins) orchestrated his wife’s removal. He accepts none of the wife’s actions as her own. He is upset that he and his parents now see B. only on weekends. He loves his son “alots, alots, alots.”

[53] Although I make no comment on the charges before the criminal court, I reject any view that this was a planned departure. The father testified that he had purchased tickets for a trip to California departing January 3, 2017 and that the mother knew about them. She would have been “home” within a month, in much better circumstances from which she could have evaluated her options.

York Region Child and Family Services

[54] The father refused to meet with the Society from December 2016 to May 17, 2017 – coincidentally the same day this matter was called for trial. I do not accept his excuse that he and the Family Service Worker never got past exchanging messages. The worker attended the home and was diligent in attempting to speak to the father.

[55] The FSW’s letter to the court dated March 31, 2017 sets out the mother’s cooperation “with all interventions and recommendations,” and that “Ms. Matti has been actively creating a stable and positive environment for the child. Ms. Matti has secured housing and has accessed services to help support herself and the child in a short period of time.”

Custody

[56] Section 24 of the Children’s Law Reform Act, R.S.O. 1990 c C.12 (the Act) provides that courts shall make custody and access orders in the best interests of the child. This applies to both temporary and final orders. Subsection (2) reads 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 care and upbringing of the child;

(b) the views and preferences of the child, where such views and preferences can reasonably be ascertained;

(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.

[57] It is agreed that the mother is a primary care parent and that she is a good decision maker.

[58] Paragraphs 2(a)(ii) and (iii) are particularly relevant to this decision. At the time of separation, B. was living in his grandparents’ home with his parents and a paternal aunt and uncle. The father’s 35.1 Parenting Affidavit gives his plan of care as:

(a) Residing at 71 Pieta Place, Woodbridge, Ontario

(b) Living with his mother, father and brother

And yet none of the family members who reside with the child gave evidence.

[59] Evidence from the brother and paternal grandparents would have greatly assisted the court in assessing the father’s plan of care, the stability of the home environment, the ability of the father to provide the child with the necessaries of life, and the permanence and stability of the paternal family. And yet, only the father testified, despite the brother attending every day of the proceeding.

[60] The brother sat near the front of court, joined on the first day with his counsel’s law clerk and a family friend. All three gentlemen were observed to be carefully inspecting the mother’s testimony. Notes were taken and passed. Active engagement, and texting was observed. The court shared the observation with counsel. The next day, the “family friend” was not present.

[61] It is not clear whether the father appreciates the legal basis for an order for custody. He processes the issue at a far more visceral level: his wife has no reason to leave their home, and he does not want to lose his son. Whether out of fear, or a habit of intimidation, he seeks to impose his will. He does not propose a plan for his wife to live separately in Ontario, and he will not consider terms of her departure.

[62] The father’s pleadings and written closing submissions seek an order for sole custody. In oral submissions his lawyer asked for an order of joint custody. In my view, the lack of pleading is not fatal to the request for joint custody,[^6] but given the totality of the evidence, I find that it is not an appropriate order.

[63] I award the mother final sole custody for the following reasons:

(a) Even during marriage, there was no evidence of any joint parenting or significant parenting communication between the parties. Parenting was the mother’s responsibility. If assistance was required, it fell to the paternal grandmother.

(b) The parents had no productive communication during the marriage. There was no flexibility in decision making. I accept the mother’s evidence that she voiced her concerns and aspirations, and they went unheard. The father’s decisions ruled the home. His evidence that “he never said no to her” did not ring true, and was frequently contradicted by his own statements.

(c) I see no prospect of improved communication. During her testimony and gruelling cross examination, the court did not observe the father able to even look at the mother. For the most part, he just glared at the court.

(d) The mother feels intensely vulnerable to the father.

(e) B. is very young. Many decisions must be made over the next stage of his life.

(f) The parents have very different decision making styles. The mother would often state “I thought about this” as a precursor to a calm, organized and detailed answer on how she would gather information, assess the information and make a decision. The father concedes that she makes good decisions.

(g) In stark contrast, the father raced through his answers, dismissing anything not consistent with platitudes and assurances. He gave only certain information. He displayed no flexible thinking, or a willingness to consider new information. He wants his old life back – which in his view was a very good one.

[64] Joint custody ought not to be ordered when there is poor communication and the parties fundamentally disagree on too many issues affecting the child’s best interests.[^7] I see no prospect of any reasonable measure of communication and co-operation in the future; and fear that granting the father custodial status will serve only to provide him a veto, which he will misuse.

B.’s Future Residence

The Mother’s Plan

[65] The mother sees no long term possibility of living in Ontario. It was never her intention to do so. Family support is essential to her way of life. She has never lived independently. Even were she to do so, the waiting list for subsidized housing in York Region is 12 to 18 months, unless she takes refuge in a shelter: reducing the wait time to 4 to 6 weeks.

[66] She does not wish to reside in a shelter.

[67] The mother is realistic about her financial circumstances. She is certain that the father will continue to use money as a means of control. His evidence that he “knows how much he can afford [in order] to give Flora and B. a decent life” while providing no particulars whatsoever, impress the court with the correctness of the mother’s view.

[68] So, the mother has thought about this. She has decided that she must become financially self-sufficient. It is the only way in which she can create a good and stable life for her son. And she has a plan.

[69] The mother proposes that she will reside with her mother, brother and sister, in her brother’s home in California. She has already called her old family doctor to make certain that he can take B. as a new patient. She has made inquiries about obtaining health insurance.

[70] She has spoken to her brother, and he has offered her employment in his Hair Salon, which he hopes to expand with her assistance. She has researched daycares in the area, priced out three days of service, which she can afford on the income that he will pay her. Her mother will cover the fourth day. She will renew her California driver’s license.

[71] Much was made by the father of the fabrication, or alternatively, the precariousness of such employment. Perhaps. But it is a start. The mother has a business diploma, she used to volunteer at the Hair Salon before marriage, and it is an excellent opportunity for her to gain experience while having flexibility in her working hours. Her brother acknowledges that the position could be temporary should she obtain better employment.

[72] The mother has also thought about how to maintain the father-son relationship. Her brother testified that he is prepared to pay for the first year of access in which he will fly with B. back to Ontario for two weeks every three months. The proposed 2017 visits in September and December would be paid by the maternal uncle.

[73] Access in 2018 is proposed for fewer, but longer periods. B. will be a bit older and by then will be accustomed to being away from his mother. Access every four months for periods ranging from 2 to 4 weeks is proposed, as is an equal sharing of travel expenses. The father would be welcome to visit at any time in California, on 15 days’ notice. He has family to stay with. Skype, Facetime and other appropriate social media would be available on a regular basis.

[74] The only condition set by the mother is that the father not remove B. from the Province of Ontario while exercising access, unless written consent is provided. This term was proposed at the start of trial, and now seems all the more appropriate with the lack of information on the father’s future residence. Will he even be living in Ontario?

The Father’s Plan

[75] What is the father’s plan? It is not clear. His evidence was replete with disparagements of his brother-in-law’s residence in California – where he, his brother and parents have been frequently hosted for lengthy visits. He complains that the house is crowded and insufficient.[^8] He declares that there are no toys there – not a single one. He compares that situation to all the toys B. has in his paternal grandparents’ home, including two motorized riding cars.[^9]

[76] The father appears to propose that B. return to live with his paternal grandparents and uncle and resume his prior life – absent the mother. She is free to return to California. He refuses to comment on any options should the court permit the mother to move B. to California. He set out no details on a plan that would have the mother remain in Ontario.

[77] There are a number of difficulties with his proposal to return B. to live with his parents and brother.

(a) B. would be irreparably harmed were he to be severed from his mother’s primary care. He is thriving, happy and well-adjusted in her care. He has never been without her. [^10] She is his primary attachment.

(b) B. would also be harmed were his time with his father significantly reduced or restricted, but such emotional injury would in no measure approach the damage of losing his mother.

(c) The court has no idea where the Hassani family will be residing. How can the mother even know where to live in Ontario, (assuming the father is staying in Ontario) in order to make access work?

(d) The father has the potential to develop the necessary skills to be a primary care parent. It is clear that he loves his son deeply. At the same time, the father gave no evidence that would suggest he has the time or the desire to do so, given his work responsibilities and traditional view of gender roles.

(e) There is no evidence that the paternal grandmother will partner with the father to provide primary care. Despite being a supervisor of access visits since February, and an essential actor in the father’s proposal, she did not testify, or even attend court. This is telling.

(f) The court was given no assurances that the father would keep the mother informed, or even consult with the mother were the child placed in his care.

(g) The father is elusive and arrogant in his manner of meeting financial obligations. The court has no guarantee that he will be financially stable over the long run. He testified that he can provide a “best life,” and has “no problem meeting expenses one hundred percent” while disclosing minimal income.

Analysis and Decision

[78] The factors governing a court’s relocation decision are set out in the well-established and often cited Supreme Court of Canada decision of Gordon v. Goertz:^11

(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

(d) the views of the child;

(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

(f) disruption to the child of a change in custody;

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[79] The importance of a child remaining with a custodial parent, and the negative consequences of not permitting a move are to be balanced against the continuance of full contact with the child’s access parent, his extended family and his community.

[80] Courts are to approach the question of relocation from a perspective of respect for a custodial parent’s decision to live and work where he or she chooses, barring an improper motive. Custodial parents are not to be indentured to a place in which they have no prospects, absent compelling circumstances. Ultimately, it is a child’s best interests that must determine the question.

[81] On these facts, B. is too young to express any views, and there will be no significant disruption to his daily routine as contemplated by subsections (f) and (g) of Gordon, supra. In large measure his present care routine would continue; primary care by his mother and three days a week in daycare with additional care by a grandparent.

[82] The mother’s reasons for moving are sound. She has a sensible and well considered plan to become financially self-sufficient and create a good life for her son, free of adult conflict, surrounded by family and enterprise.

[83] I find that the mother is genuine in her acknowledgement of the importance of the father-son relationship, and is sincere in her intentions to accommodate that relationship. Her plan for access maximizes B.’s contact with his father in the context of the proposed relocation. The maternal uncle’s offer to pay for two lengthy visits in 2017 is generous.

[84] In making this decision, I give great weight to the importance of the custodial relationship, the custodial parent’s reasons for the move, the thoroughness of her plan and her lack of financial alternatives. This is one of those exceptional cases in which a parent’s ability to meet the financial needs of a child is relevant.

[85] The mother’s financial prospects in Ontario are very limited. During the marriage, she had no place in the family business. She lived in the basement of her in-laws’ grand home and was singularly tasked with the care of the only grandchild.

[86] Since separation, she has had to face a very real lack of certainty. The grandparents owe her no obligation of support. The father’s source of income is intentionally obscured. Even if she does have legal standing to work in Ontario, she likely faces an initial period of continued dependency on social assistance.

[87] It does not lie in the father’s mouth to criticise her lack of efforts to join the Ontario workforce since separation. During the marriage she was thwarted from developing any roots in the community or work place skills that might have served as starting points. She was not permitted to obtain a driver’s license – critical to much employment in the Greater Toronto Area.

[88] The mother’s housing options in Ontario are severely restricted. Housing costs in York Region are beyond a single minimum wage worker, but for locations that are subsidized, inappropriate for the raising of a child or at a considerable commute.

[89] As well as financial benefits, I find that there are social, psychological and emotional factors to the mother’s proposed move to California. By returning to her family home, the mother will regain her confidence and her emotional well-being. She will feel safe. She will have the opportunity to become self-sufficient while helping to build her brother’s business. She will have the ability to shape her own future.[^12]

[90] These changes will have a positive effect on B. and are in accordance with his best interests. He will not grow up in an unhappy, volatile home. Order to issue that the Applicant mother is permitted to relocate the parties’ son from Ontario, Canada to California, U.S.A.

Access

[91] I do not diminish B.’s loss of a continuous relationship with his father, paternal grandparents and paternal uncle. I accept the father’s counsel’s submission that this move is fraught with difficulty, and will be devastating for the father, his parents and his brother.

[92] Access will be expensive and logistically challenging. Such is the reality for long distance parents. There will be lengthy periods of time when the father will not see his son growing up. There will be further limitations to access when B. becomes school age. It will be a long time before B. can travel independently. B. may choose to commit his talents and industry as an American citizen, rather than a Canadian.

[93] It is a growing trend for people from distant locations to form relationships that bring forth dependent children.[^13] In the percentage of such relationships that fail, one parent may have very good reasons to return home, or the parents may not have ever lived together. If a meaningful bond is to be maintained between a child and his or her distant parent, both parents must be absolutely committed to making it work.

[94] Further orders to issue that:

(a) The father shall forthwith provide the mother with the municipal address of his residence upon the closing of the sale of 71 Pieta Place, Richmond Hill, and an email address dedicated to parental communications.

(b) At least once every two weeks, the mother shall email the father a summary of B.’s important activities, events and interests and will send a minimum of four photos. She will provide medical reports, daycare reports and school documentation within 4 days of receipt.

(c) To give immediate effect to the above, the parties are permitted to communicate by email, Skype, Facetime or other social media as a condition to the father’s recognizance. Any electronic communications are to be polite and child focussed. Emails and attachments may be submitted in evidence in any future court proceedings, after translation into English.

(d) The father shall have electronic access to B. by Skype, Facetime or other appropriate electronic platforms to be agreed by the parents; including but not limited to all religious and statutory holidays, Father’s Day, and Birthdays.

(e) The father shall have access in California, or other agreed locations, for periods to be agreed, on 15 days’ notice.

(f) The father is not permitted to travel with B. outside the Province of Ontario, absent written consent from the mother.

(g) The applicant shall cause her brother, Firas Matti to accompany B. to Ontario for a two week access visit in each of September and December 2017. The exact dates are to be agreed based on available and affordable air fares, availability of all parties, and with a view to Christmas access. The father shall cover all of B.’s costs while he is in Ontario, but shall not pay for B.’s flights.

(h) For January 1, 2018 forward, the parties shall agree on the timing and sharing of costs for access visits every four months, each visit being a minimum period of 20 days until B. begins full time school. Thereafter the parties shall work towards a new schedule that focusses on access during school holidays.

Incidents of Custody

[95] In the rush of departing the home on December 3, 2016, the mother left behind important documents, such as B.’s health card. It was requested numerous times. The father asserted that he did not have it. As a result, a medical appointment was missed. The mother applied for and received a new health card. After receipt, the father produced B.’s health card, in circumstances that suggest he had it all along.

[96] During her testimony the mother carefully set out her calls to immigration and what she had learned about how to obtain the necessary documents for a travel visa and B.’s permanent entry into the US. When the father was asked during this trial whether he would consent to any passport or travel visa for his son, he stated, “no.”

[97] I make an order dispensing with the father’s consent to the issuing of government documentation and travel consent per paragraphs 14, 15 and 16 of the mother’s January 5, 2017 Application.

Costs

[98] The mother has been the successful party, per Rule 24(1) of the Family Law Rules. If the mother seeks her costs, and the parties are unable to agree, her submissions shall be served and filed in the Continuing Record by June 16th. The father’s response must be served and filed by June 30st, and the mother’s reply, if necessary by July 7th. Costs submissions are limited to three pages exclusive of Bills of Costs and Offers to Settle.

Justice H. A. McGee

Date: June 5, 2017

[^1]: I will reference the child in this proceeding as “B.” to give him some small measure of privacy. This is not his initial. His full name and birthdate is to be placed on any issued and entered orders so that such orders are enforceable. I was not asked to initialize this case.

[^2]: The father’s evidence toggled between 4,000 and 4,500 square feet – it matters not.

[^3]: Two payments of $4,000 have been made to the mother since separation. The source of the funds is unknown, given the father’s Form 13.1 statement of annual income of $9,999.

[^4]: Later stated at 5,500 square feet – it matters not.

[^5]: The mother had a California driver’s license. Her evidence was that she was told by the father that it was not valid in Ontario, and he had to work on getting the right paperwork. The father says that she had let the California license expire and hence, could not get an Ontario license. I accept the mother’s evidence, but irrespective - the result was the same: a driveway full of high-end vehicles from the dealership, and not a single one available to the mother.

[^6]: The father only seeks his own order for sole custody in his Answer and Claim. While this is not determinative, see Frick v Frick, 2016 CarswellOnt 16670 (Ont. C.A.) it is worth referencing in the context of these issues.

[^7]: Kaplanis v. Kaplanis, 2005 CanLII 1625, Graham v. Bruto, 2008 ONCA 260.

[^8]: Sometimes it was cited as 1,200 square feet, other times 1,265 – it matters not.

[^9]: The irony of the mother (wife of a car dealer) having no vehicle and the two year old having two motorized play cars was not lost on the court.

[^10]: B. is still breastfeeding, but at over two years of age, I do not consider this a relevant factor.

[^12]: In relocation cases each matter turns on its own facts. Courts that have permitted a long distance move within similar circumstances include Bjornson supra, Prokopchuck v. Borowski, 2010 ONSC 3833, [2010] O.J. No. 2947, Sheikh v. Sheikh, [2005] Carswell 1690 Code v. Rotstein, 2004 CanLII 24269 (ON CA), [2004] O.J. No. 286, Gravelle v. Gravelle [2004] O.J. No. 3166 and Oldfield v. Oldfield, 1991 CanLII 12839 (ON SC), [1991] O.J. No. 1103. Each of these cases include within its reasons a recognition that the emotional benefits to the custodial parent would also benefit the child.

[^13]: Most such relationships are created through the internet, but distance parenting can also occur in any number of situations, such as when one parent’s employment takes him or her out of the jurisdiction.

Matti v. Hassani, 2017 ONSC 3463

Case Summary

REASONS FOR DECISION

Overview

Credibility

The Inducement

The Confinement

Father’s Claim of False Allegations

York Region Child and Family Services

Custody

B.’s Future Residence

The Mother’s Plan

The Father’s Plan

Analysis and Decision

Access

Incidents of Custody

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 1

Legislation 1