Court File and Parties

COURT FILE NO.: FS-14-19829 DATE: 20170720 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ana Filipa da Cunha, Applicant AND: Paulo Manuel da Silva Gomes, Respondent

BEFORE: F. L. Myers, J.

COUNSEL: M. Rabinovitch, for the Applicant K. Hendrix, for the Respondent

HEARD: July 20, 2017

Transcription of the handwritten endorsement of Mr. Justice Myers dated July 20, 2017

Endorsement

[1] The applicant seeks to urgently dispense with respondent’s consent so as to allow her to travel with four-year-old Gabriel, her mother, and her two older children to Portugal for the month of August. The purpose of the trip is to visit her ill grandfather likely for the last time. The respondent’s parents are also in Portugal so Gabriel will be able to see them too.

[2] The only issue is what is in Gabriel’s best interest.

[3] The applicant argues:

1. Travel is a great life experience even for a young child;
2. Travel to the family’s ancestral homeland to spend time with extended family is a very valuable opportunity for a child. Yacoub v. Yacoub, 2010 ONSC 4259 at para 21.
3. This is likely the last time that Gabriel will see his great-grandfather;
4. Travel during the summer avoids disrupting the school year. Gabriel is about to start kindergarten in the fall;
5. The applicant has offered to make up the time that the respondent will lose while Gabriel is away in August. In effect, the respondent will have Gabriel for all weekends in a row starting in July and for September as well.

[4] It all sounds so positive and child-centric. But it is not.

[5] This is a difficult matrimonial proceeding. On June 22, 2017, just one month ago, Ferguson J. heard a long motion on interim access in which the applicant was seeking to allow only supervised access. The applicant’s motions regarding the respondent’s serious financial arrears were not even reached that day. The CCAS has been involved. A section 30 report has been obtained. The dealings among the parties are strained at best.

[6] In her nine page handwritten endorsement of June 22, 2017, Ferguson J found:

1. It is clear that the present arrangements are not in Gabriel’s best interests; and
2. It is in the best interests of Gabriel to have expanded time with his father.

[7] Justice Ferguson was impressed by Dr. Morris’s section 30 report. Among other recommendations, on page 37, Dr. Morris suggested that starting this summer, each parent should have one exclusive week vacation with Gabriel. When Gabriel is seven, in 2019, Dr. Morris recommended that each parent have “two non-consecutive weeks” of vacation with Gabriel.

[8] Dr. Morris did not see it as beneficial to Gabriel to have him denied either parent for more than one consecutive week even when he is older. Ms. Hendrix advises that the respondent sought a two week period with Gabriel in August. Ferguson J granted only one week.

[9] The applicant now is satisfied with the respondent having four or five weekends in a row, now and in September. Just one short month ago she argued strenuously before Ferguson J that Gabriel’s best interest required infrequent and supervised access only with the respondent. Ms. Rabinovich argues that the applicant has taken the lessons of Ferguson J on board. Or, her resisting is self-serving and not at all about Gabriel’s best interest.

[10] Of greatest concern to me is that the applicant never told Ferguson J about this planned trip to see her dying grandfather. She blames her lawyer (not Ms. Rabinovitch). Ferguson J worked through a schedule with the parties right up to TMC in September and it did not dawn on the applicant to mention that she planned to take Gabriel away for all of August.

[11] The applicant’s lawyer first asked for the respondent’s consent on June 30, 2017. There was no mention of any urgency. Instead of waiting for a reply or following up with a note of urgency, the applicant went out and bought five non-refundable tickets for her desired trip. She did not offer any negotiation or seek any input from the respondent about the trip. No itinerary or Skype/video conference contact was offered. She bet all or nothing on getting her way.

[12] In her July 18, 2017 affidavit, the applicant purports to respond to the respondent’s concerns. She dismisses his upset as to tit-for-tat tactics. She swears at para. 4 that the respondent has “provided no coherent reason” to refuse consent. This evidence lays bare my concern. Despite speaking eloquently about the opportunity for the four-year-old to “explore his cultural heritage and expand his world view” she cannot even fathom that Ferguson J found that the increase in Gabriel’s time and quality of his relationship with his father is in his best interest.

[13] Removing Gabriel’s father from his life for a month at this stage and preventing Gabriel from commencing down the path of developing and enhancing a more meaningful relationship with his father is being balanced against the undoubted fun that he will have in Portugal. The applicant minimizes the father’s role in Gabriel’s life. Her springing this trip on the respondent just one week after losing the motion before Ferguson J looks like a tactic to frustrate the order.

[14] There is no independent evidence that the great-grandfather is gravely ill. It is obviously not urgent as the applicant has waited from before June 22 until August 4 to travel. She proposes to frustrate the first opportunity that Gabriel has to enhance his relationship with his father. Losing the flexibility of summer hours also hurts the quality of access proposed. Summer is a good time to get Gabriel acclimatized to moving between the parents on a more regular basis and for longer periods.

[15] The applicant proposes that unless the respondent consents or the court orders dispensation, she will have to cancel the trip and lose significant funds that she borrowed to pay for the tickets. She shows no ability to put Gabriel first by compromise. Is two weeks really too short a vacation to justify putting a four-year-old through a seven hour flight? Perhaps then, Gabriel is too young to go on such a long flight. Or can the applicant just not see anything but her own wants? She has not shown openness to communication. She hid her plans. She made a single request. She booked non-refundable tickets. And her materials offer an unyielding “my way or the highway” approach.

[16] In my view, the applicant has left the court in a very difficult predicament. I must keep a singular focus on assessing Gabriel’s best interests. The parties’ tactics only matter to the extent that they impact, if at all, on the assessment of Gabriel’s best interests.

[17] I agree that trips can be positive and fun experiences even for young children. Meeting extended family is also positive. But it has to rank behind the positive of building the vital relationship with immediate family.

[18] I am most impacted however by Dr. Morris’s finding and recommendations to limit vacations to one week. Four weeks is a very significant period for a child to be out of access. Moreover, Ferguson J not only found a need to enhance Gabriel’s time and relationship with his father, she scheduled out the time to get to the TMC at which, hopefully, the case can settle. The parties have much work to do between now and then. This is an important time to be here, and to be present, and to work on offers to settle, helping Gabriel settle into a new routine, and learning to communicate, cooperate, and negotiate and put Gabriel first (see Dr. Morris’s recommendations at page 31).

[19] I do not think it is in Gabriel’s best interest to lose the important time with his father. It is in his best interest to keep the parties focused on the TMC and settlement.

[20] Ferguson J told the parties to “pull up their socks” on their dealings concerning Gabriel. Letting the applicant impose her unilateral will by plan or by impulsive act is not what Dr. Morris recommended on page 31 in terms of working together to put Gabriel first. Perhaps the applicant needs to suffer this loss to really see what is required of her by her son.

[21] In denying this motion, I am not preventing the applicant from approaching the respondent responsibly to try to negotiate a more modest trip that might impact the schedule less severely and might provide the information and proposals for contact and make up that all need to be discussed.

[22] Nothing would advance Gabriel’s best interest more than his parents truly internalizing and externalizing in their behaviour the need to cooperate to protect Gabriel from their distress.

[23] Finally, I note that I would not have heard the respondent in light of his serious breaches of support and costs orders but for my view that it was in Gabriel’s best interests on this urgent motion to hear both sides. If Mr. Gomes needs to go bankrupt, his support obligation will still survive. He must prioritize his payments to meet his court ordered first priority obligations. Impoverishing the applicant is also not in Gabriel’s best interest.

[24] Motion to dispense with Mr. Gomes’ consents to allow the applicant to travel to Portugal with Gabriel is dismissed.

[25] The applicant shall pay costs of $5000 all-in to the respondent. No funds need to be paid. Rather, the applicant may set off this debt against costs owing to her by the respondent. If the applicant wishes to do so, she shall give the respondent’s counsel written notice of which specific costs award she chooses to set off against before August 1, 2017.

F. L. Myers, J. Date: July 20, 2017