Court File and Parties
Ottawa Court File No.: FC-17-366 Date: 2017/06/30 Superior Court of Justice - Ontario
Re: Mirjam Aeppli Bielser And Michael Thomas Bielser
Before: Justice Tracy Engelking
Counsel: Yvette Virok, Counsel for the Applicant Paul Fitzgerald, Counsel for the Respondent
Heard at Ottawa: June 20, 2017
Endorsement
[1] Michael Bielser, father of Madlaina Tatjana Bielser aged 15 and Leilah Seraina Bielser aged 13, seeks an order from the court: 1) enforcing paragraph 7 of the Order of Justice Roger dated March 9, 2017; 2) that his children be returned to Switzerland to reside in his primary care; and, 3) that the children be returned to Switzerland in accordance with certain terms outlined in his factum.
[2] The children’s mother Mirjam Bielser seeks an order of temporary custody and primary residence of the children.
[3] Mr. Bielser has characterized his motion as one seeking enforcement of a previous order. Ms. Bielser has characterized Mr. Bielser motion as one pertaining to mobility and submits that a move by the children to Switzerland would not be in their best interests, and in any event, it should not be granted on a temporary basis.
[4] The only real issue to be decided on this motion is whether paragraph 7 of the order of Justice Roger dated March 7, 2017 should be enforced such that the children should be placed in the primary care of Mr. Bielser in Switzerland on a temporary basis.
[5] For the reasons set out below, I find that an order that the children be returned to Switzerland to reside in the primary care of Mr. Bielser is not one that should be granted on motion. Rather, both the issues of custody and of the children’s country of residence should be dealt with at trial with the benefit of a complete record and a full hearing.
Order of Justice Roger dated March 9, 2017
[6] On March 9, 2017, Justice Roger issued an order on consent of the parties that provided at paragraphs 5 and 7 as follows:
A private lawyer, who is an Office of the Children’s Lawyer (“OCL”) listed counsel, shall be retained for the children in order to obtain their views and preferences with regard to where they wish to reside. This counsel shall be retained immediately so that the parents and children can be interviewed on at least one occasion prior to the Respondent’s departure. The OCL listed lawyer shall be jointly retained, however the fees shall be paid initially by the Respondent. The Respondent shall be reimbursed for ½ the fees paid to the OCL listed lawyer as part of the equalization of their net family property.
The parties agree that the children’s views and preferences, as expressed by them and conveyed to the OCL counsel, shall be respected. Specifically, if the children express their desire to return to Switzerland, they shall return to Switzerland, and if they express their desire to remain in Ottawa, they shall remain in Ottawa. Neither party shall lobby the children to prefer their choice for where to reside over the other party.
[7] The background to this order is that the parties married in Switzerland, where they are from in 1997. The children were born in 2001 and 2004 respectively. The family immigrated to Canada in September of 2012 looking for better economic and educational opportunities. However, Mr. Biesler was unable to find steady employment in Canada, and he returned to Switzerland to seek work in March of 2014, while Ms. Biesler and the children remained in Canada. Mr. Bielser remained in Switzerland working at various contracts. However, he was able to secure a fulltime indeterminate position to commence in January 2017.
[8] Mr. Bielser came to Ottawa for Christmas of 2016 with the intention of moving his family back to Switzerland fulltime. Mr. Bielser says it was an agreed upon family decision. Ms. Bielser says it was a unilateral decision by Mr. Bielser that he announced to the family and then began making preparations to execute. Ms. Bielser did not want to move back to Switzerland and felt controlled and intimidated by him. In January, she went to a women’s shelter and then into hospital as she was overwhelmed by the stress Mr. Bielser was causing to her in his determination to execute his plan.
[9] Ms. Bielser was released from the hospital in February requiring no medication or follow-up. She became distressed when she found out from the children that they were packing and that there was an anticipated moving date about which she was neither consulted nor in agreement. Additionally, she was distressed because when she attempted to visit the children at their school, they told her she was “not allowed” to see them, which was not actually the case. Ms. Bielser filed an application seeking an order of custody of the children, which she sought on an urgent basis. It was this act which ultimately resulted in the consent order of Justice Roger of March 9, 2017. In the meantime, Mr. Bielser postponed the commencement of his new job until April 1, 2017 and remained in Ottawa until March 25, 2017.
[10] The parties did retain an OCL listed lawyer, Ms. Lendor, to obtain the views and preferences of the children as per paragraph 5 of that order. Ms. Lendor met with the children three times, twice before Mr. Bielser left for Switzerland, and once after his departure. The end result of Ms. Lendor’s meetings with the children was that the younger child, Leilah, did not state a preference, except that she did not want to be separated from her sister. Madlaina stated that she would “prefer Switzerland but would not be heartbroken” if she stayed in Canada. Ms. Lendor also spoke to the children’s counsellor from Youth Service Bureau, Christa, who reported that the children were feeling in the middle, stressed and did not want to be the ones to make the decision. Ms. Lendor indicated to the court that the first two times she met with the children they understood that Ms. Bielser would also be returning to Switzerland. By their third meeting on May 5, 2017, the children knew that Ms. Bielser would not be moving to Switzerland. At that point, the children did not want to choose between either of their parents.
[11] Ms. Lendor’s expressed that in determining views and preferences of children, she looks for clarity, consistency and independence. She did not see either clarity or consistency in the children’s views and preferences based on the changing landscape around Ms. Bielser’s inclusion in the proposed move to Switzerland. On the issue of independence, Ms. Lendor indicated that the children may have been influenced by one or the other of their parents, as both had talked to them about court, “dad more than mom”.
[12] Ms. Bielser’s position is that the children were influenced by the mere fact that the move appeared to be a “fait accompli”, in that the house was being packed in her absence and tickets for flights were already bought.
[13] I am of the view that paragraph 7 of Justice Roger’s order could only be executed and enforced by a court if the children, both children, were unequivocal in expressing their views and preferences. I do not find that to be the case here.
[14] Additionally, paragraph 7 contains the caveat that: “Neither party shall lobby the children to prefer their choice for where to reside over the other party.” Ms. Bielser, in fact, alleges that the children have been lobbied, in either word or deed, and that issue cannot be determined without a full hearing.
[15] I see no “pressing and compelling reason for the move” as per Crewson v. Crewson, 2014 ONSC 4372, nor do I see a “strong possibility that [Mr. Bielser’s] position with prevail at trial” as per Plumley v. Plumley, 1999 ONSC 13990, [1999] O.J. No.3234 (SCJ), such that an order should be granted on an interim basis.
[16] The status quo is that the children have been in the primary residence of Ms. Bielser. Mr. Bielser has lived away from the family in Switzerland since March of 2014, visiting frequently with the children in both countries. I see no reason why that cannot continue until such time that the matter has been properly heard.
[17] I decline to make any order as to custody, however, there shall be an order that the primary residence of the children of the marriage, Madlaina Tatjana Bielser, born December 7, 2001 and Leilah Seraina Bielser, born February 17, 2004, shall be with their mother Mirjam Bielser pending further agreement or order of the court.
[18] The Applicant is entitled to costs for this motion. If the parties cannot agree on same then they may make written submissions not exceeding three pages together with bills of costs and offers to settle within 15 days of the release of this decision.