CITATION: URIU v. RIVADENEYRA, 2017 ONSC 4782
COURT FILE NO.: FC-14-2854-1
DATE: 2017/08/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KIMOKO URIU
Applicant
– and –
FRANCISCO RIVADENEYRA
Respondent
Michael Rappaport, for the Applicant
Any Mayer, for the Respondent
HEARD: September 26-30, 2016, January 23-27 and 30, 2017
REASONS FOR JUDGMENT
L. Sheard J.
Overview
The Application
[1] The central issue to be determined on this application is where, and with whom, the parties’ young son, Luca Kenji Rivadeneyra-Uriu (“Luca”), born August 4, 2012, should live. The applicant mother, Kimiko Uriu (“Kimi”), grew up in Vienna, Austria and Kimi would like to permanently relocate there with Luca. The father, Francisco Rivadeneyra (“Francisco”), grew up in Mexico and completed his education in the United States. In 2009, a good job offer to Francisco took him and Kimi to Ottawa, Ontario. They have remained in Ottawa, where Luca was born. Francisco likes his job and living in Ottawa. He has applied for Canadian citizenship. Francisco wants Luca to remain in Ottawa with him.
[2] Francisco originally sought an order for joint custody of Luca and shared residence, provided that Luca remained in Canada. However, at the commencement of trial, Francisco amended his pleadings to seek sole custody of Luca and an order that Luca’s primary residence be with Francisco. Francisco’s change of heart is largely explained by the events of the summer of 2016, detailed below.
[3] Child and spousal support must also be determined and will be affected by the Court’s decision on relocation. Kimi seeks both child support and spousal support, but is prepared to waive her claim for spousal support, if she is permitted to relocate with Luca.
[4] For the reasons set out below, I have determined that it is not in Luca’s best interests that he relocate with Kimi. Also, as will become clear in these Reasons, I have determined that Francisco should have sole custody of Luca, with an equal shared parenting schedule.
[5] On the issue of spousal support, Francisco has paid support for two years and, given the short length of the relationship, he asserts that he should not have to pay for more than two additional years. If I have understood his submissions, Francisco is agreeing to pay spousal support to January 1, 2019 at the latest. In Kimi’s closing submissions, she states that “when” she and Luca are permitted to relocate, Kimi would be willing to waive spousal support because she has an open job offer there and because Francisco would then have to incur travel costs to see Luca in Vienna.
[6] The parties do not agree on the date they began to cohabitate, but the evidence suggests it was in July 2008. They separated in October 2014, having cohabited just over six years. Francisco has been supporting the household since separation and has been paying spousal and child support since December 2014. Spousal support needs to continue in the short term, in order to allow Kimi to become self-supporting. She effectively stopped working after the birth of Luca and will need time to re-enter the workforce. Although Francisco could have asked that spousal support end sooner, his suggested termination date of January 2019 is fair and reasonable. Accordingly, unless Kimi finds employment that pays more than minimum wage before that date, which would justify an earlier termination or, at least, a reduction of spousal support, spousal support shall terminate following his January 2019 payment.
[7] In the meantime, effective March 1, 2017, spousal support shall be calculated using the greater of an imputed income to Kimi of minimum wage, or, if she secures employment on or after March 1, 2017, based on her actual 2017 income.
[8] Guideline child support shall be calculated based on a 50/50 shared parenting schedule and, from and after March 1, 2017, shall take into account Kimi’s income both from spousal support (while it is payable) and from her imputed minimum wage income or actual income, whichever is higher.
Background
[9] Kimi and Francisco met in 2006 in Chicago, Illinois, where Francisco was completing his PhD in economics. Kimi was then living in London, UK. They began an intense, long-distance relationship until the summer of 2008 when Kimi joined Francisco in Chicago. In early 2009, a promising job took Francisco to Ottawa, Ontario and Kimi, then between jobs, decided to move to Ottawa with him. Kimi was able to obtain a Canadian work visa and, with support from Francisco, she started a tea business, a lifelong interest. Kimi hoped they would marry, but Francisco did not feel ready.
[10] While in a long-distance relationship, the couple developed a habit of communicating by email. That habit continued throughout their relationship. The numerous emails and texts between the parties were made exhibits at trial. Those communications reveal disharmony from early on. Even before the birth of Luca, the couple had conflicts over cultural differences: Kimi viewed the world through the lens of someone who is half-Japanese and half-Austrian, and Francisco approached the world from his own cultural perspective. Those and other conflicts led to the breakdown of their relationship.
[11] According to Francisco, for two years Kimi’s tea business generated enough income to cover the couple’s rent and their car costs. A trained tea sommelier, Kimi achieved professional recognition in the tea world but was disappointed with her business’s lack of financial success. Kimi was unhappy living in Ottawa and missed Europe. In the first few years after moving to Ottawa, Francisco applied to jobs outside of Ottawa, but he was limited in his options: he could not consider moving to the United States as Kimi could not work there. Kimi wanted to return to Europe but Francisco had no European job offers. By 2013, Francisco had been promoted and enjoyed working and living in Ottawa. He had no interest in relocating. Kimi was less happy.
The Birth of Luca
[12] In late 2011, the couple agreed that they would try to conceive. They conceived immediately and Luca was born on August 4, 2012.
[13] After the birth of Luca, the conflicts began to escalate. Francisco could never meet Kimi’s expectations as a spouse, parent, or housemate, and Kimi felt lonely and disappointed. According to Kimi, although he was a good spouse and father by “Mexican standards”, Francisco did not measure up to Kimi’s European standards.
[14] Kimi and Francisco faced the usual stresses of couples with a new baby: the breadwinner is working long hours to support the family and the parent at home is exhausted with the demands of a newborn. Francisco believed he was doing all he could: when he came home from work he would clean the kitchen, bathe Luca, grocery shop or do other chores. Kimi believed that Francesco was not pulling his weight: he came home late, socialized with friends, and rarely saw Luca. Kimi also felt that Francisco did not help her enough with her tea business. Unfortunately, the conflict between the parties increased and the relationship became increasingly unhappy and hostile. They separated in September 2014. Luca stayed with Kimi, who by that point had put her tea business on hold and was devoting her time to caring for Luca.
[15] When Kimi and Francisco were together, Kimi felt that Francisco had not spent enough time caring for Luca. Despite that, after separation, Kimi refused Francisco’s requests to have more time with Luca.
[16] As it is relevant to the decision that I have made, it must be noted that Kimi behaved as if Luca had only one parent or, at least, only one parent who mattered. At trial, Kimi freely acknowledged that she was the one who decided how much access Francisco would have and when he would have it. Kimi made all the decisions concerning Luca and believed that she alone knew what was (and is) best for Luca. As recently as 2016, Kimi described herself as the “psychological parent” of Luca.
[17] In deciding what was best for Luca, Kimi favoured her own family connections. After separation, Kimi took Luca to Vienna to visit her family on numerous occasions without Francisco but refused to allow Francisco to take Luca with him to Mexico to visit his family.
[18] At trial, Kimi freely admitted that she thought Luca would best be raised by her in Vienna, even though that move would likely limit Luca’s face-to-face access to his father to one week at Christmas and three weeks in the summer. Kimi proposed that in between visits with his father in Canada, Luca could have access to Francisco via Skype or similar internet access. As set out in greater detail below, Kimi’s behaviour while she and Luca were in Vienna in the summer of 2016 seriously undermines the Court’s confidence that she would follow through with Skype access.
[19] Aside from the logistical challenge of maintaining regular contact between Luca and Francisco if they were to live on separate continents, Kimi’s behaviour during and after the breakdown of the parties’ relationship causes the Court concern that Kimi would put Luca in the middle of any disagreement between her and Francisco.
[20] In the many emails exchanged between the parties, while ostensibly acting in Luca’s best interests, Kimi used Luca as leverage to further her desire to permanently relocate to Vienna. For example, in many emails Kimi asserted that the conflict between her and Francisco was causing Luca stress and even ill health. From those emails, it is reasonable to conclude that Kimi inserted Luca into the conflict, either directly by speaking to Luca about disagreements she had with Francisco, or indirectly, by displaying to Luca her own unhappiness or “stress”. By using Luca in this way, Kimi has risked causing emotional harm to Luca, risked alienating Luca from his father and from Luca’s paternal cultural heritage and risked alienating Luca from his own birthplace and home in Ottawa.
[21] The emails sent by Kimi also paint a concerning picture of her attitude toward Francisco and his family. For example, in January 2012, before Kimi even knew for certain that she was pregnant, in response to what she believed was Francisco’s negative reaction to her possible pregnancy, Kimi emailed his mother, disclosing the possible pregnancy and claiming that Francisco wanted to leave her and let her deal with the pregnancy on her own. She also emailed his cousin asserting that even though they planned together to get pregnant, Francisco “wants to run away from the responsibility suddenly”.
[22] In emails sent by Kimi to Francisco’s mother a year later, Kimi asserted that Francisco’s mother was biased in favour of him and that “sometimes I tell you shocking sides of him that you have to compensate by thinking I am the unreasonable one which is fine by me.” Kimi compared Francisco’s family to her own: “Regarding the family. I have a very close relationship with my family, however they also know to give space for the individual and the couple. In the Latin culture one feels very welcome right away which is wonderful, but there is little space for individual needs sometimes.… I felt sad that people right away feel offended or sad that we want some time together. Further it is not always respected that we are an international couple and may have different ways of raising Luca. That is where the clash begins”. The email concludes with a veiled threat that if Francisco’s family does not accede to Kimi’s requirement that she be given space, future visits would be avoided: “I hope that the awkwardness would go away with specific people in the family and that next time I visit I can feel genuine friendliness/kindness towards me and not only Luca, that personal space is respected and that we (as a family) may be different without people reacting. As I am sure you understand, if it gets weird every time I come or too stressful than a natural reaction would be to avoid it [visits to Mexico] as much as I can.”
[23] In determining Luca’s best interests, I have considered that if Luca relocated with Kimi, there is a strong likelihood that Kimi would limit Francisco’s access to Luca and undermine Luca’s relationship with Francisco to the point at which, as stated by Francisco, Francisco would just become “some guy that sees Luca once in a while.”
The Events of Summer 2016: Hague Order that Luca be Returned from Vienna
[24] The trial of this application was on the May 2016 trial list but did not get reached. A new date was set for September 26, 2016. In early July, Francisco agreed that Kimi could take Luca to Vienna for a three-week vacation. Kimi and Luca were supposed to come home on July 26, 2016. On July 26, Kimi told Francisco that she had an ear infection and could not fly. Francisco accepted that for a time, but when Kimi refused to provide any anticipated return date or to provide any medical evidence that she could not fly, Francisco became concerned.
[25] Communication with Kimi became more difficult. Kimi refused to respond to or communicate with Francisco via email. She said that she was taking a “break” from the “stress”. Francisco knew that Kimi wanted to relocate to Vienna with Luca; that was the main issue for trial. Francisco became increasingly concerned that Kimi was not going to come back to Ottawa with Luca or that they would lose the September trial date. Francisco was also worried that the longer Luca spent in Vienna, the greater the risk that Kimi could successfully argue that any decision about Luca’s custody or access should be determined by an Austrian Court. That latter concern was well-founded: while in Vienna, Kimi was taking steps to establish her legal status as Luca’s custodial parent under Austrian law.
[26] In early August 2016, Francisco brought an application under the Hague Convention for the return of Luca from Vienna. On August 16, 2016, Phillips J. found that Kimi was withholding Luca without Francisco’s consent and ordered that Luca be returned to Ottawa. Among other things, the Order directed that upon Luca’s return to Ottawa, Francisco was to have interim sole custody and primary care of Luca (the “Phillips Order”).
[27] After learning of the Phillips Order, Kimi did not return with Luca to Ottawa. Instead, she contacted her current lawyer, who moved without notice on September 6, 2016, for an Order staying or setting aside the Phillips Order on the basis that Kimi had not been properly served. He appeared as a friend of the Court. The motion was adjourned to September 14, 2016, to allow it to be brought on notice to Francisco. By coincidence, the motion came before me. The motion was dismissed as there was evidence of service on Kimi and the Court did not otherwise have jurisdiction to set aside the Phillips Order; such relief could only be granted by an appellate court. At the September 14, 2016 hearing, Kimi’s counsel, then on the record, showed the Court and Francisco the airline tickets Kimi had obtained for her and Luca and advised that they would be returning to Ottawa on September 16, 2016.
[28] In fact, Kimi did not return with Luca to Ottawa until September 20, 2016. As of the date of her return, Kimi had had Luca with her in Vienna for a total of 77 days, far in excess of the three weeks to which Francisco had agreed.
[29] Notwithstanding that the Phillips Order gave him sole custody and primary care of Luca, Francisco acceded to Kimi’s request that he not meet her and Luca at the airport but, instead, give Luca a day to recover from jet-lag.
[30] The trial began on September 26, 2016. On that date, Kimi again sought to vary the Phillips Order. At trial, Kimi asserted that Francisco had used the Hague Convention application as a tactic to gain a “leg up” in the litigation. Notwithstanding the ostensible “leg up” obtained by Francisco, on September 30, 2016 an interim parenting schedule Order was made on consent. On October 18, 2016, the parties agreed to a further consent Order addressing travel with Luca.
[31] The 11-day trial concluded on January 30, 2017 and I have no other evidence or information to suggest that the Phillips Order and the Orders of September 30 and October 18, 2016 have changed since the parties were last before me.
Issues to be Decided at Trial
[32] The following issues were before the Court at trial:
Should Kimi be permitted to relocate with Luca to Vienna?
If not, should the parties have joint custody or should sole custody remain with Francisco?
What should be the parenting schedule?
What amount should be paid in child support?
Is Kimi entitled to spousal support? If so, in what amount and until when?
Issue 1: Should Kimi be permitted to relocate with Luca to Vienna?
[33] As stated above, I have determined that it is not in Luca’s best interests that he permanently relocate with Kimi to Vienna and that her application on that issue should be dismissed. To grant that request would almost certainly deprive Luca of a real or meaningful relationship with his father and would risk parental alienation.
[34] The leading case on relocation remains the 1996 Supreme Court of Canada decision in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27. It makes clear that “the ultimate and only issue when it comes to custody and access is the welfare of the child whose future is at stake” (at para 20) and directs the Court to “embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them” (at para 49). The law as summarized at paragraph 49 directs the Court to focus on the best interests of the child and not on the interests and rights of the parents and to consider:
(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;
(c) the desirability of maximizing contact between the child and both parents;
(d) the views of the child;
(e) the custodial parent’s reason for moving, only in 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; and
(g) disruption to the child consequent on removal from family, schools and the community he or she has come to know.
Goertz Factors (a) and (b): Existing custody and access and parental relationships with child
[35] From September 30, 2016 to the conclusion of trial, Francisco has had sole custody of Luca, with a 50/50 shared parenting arrangement. The first two Goertz factors require the Court to consider the impact on Luca of upsetting the existing custody and shared parenting arrangements. Based on the evidence at trial, I am satisfied that Luca benefits from having equal access to both parents. He is loved and enriched by what each parent brings to his life. I do not accept Kimi’s argument that Luca would be better off with her in Vienna because reduced contact between Francisco and Kimi would improve their relationship. I note that that argument could equally support a finding that Kimi move to Vienna, leaving Luca here.
[36] I do agree with Kimi’s position that it is not in Luca’s best interests to be exposed to parental conflict. However, the solution to that concern lies with the parents: they must keep Luca out of the conflict.
[37] I have no doubt that Kimi takes issue with the Court using the custody and access arrangements in place since September 2016 as a starting point: throughout her evidence and in the oral and written submissions made to the Court at the conclusion of trial, Kimi and her counsel argued that Kimi was Luca's primary caregiver and that the Phillips Order upset the status quo. Moreover, in Kimi’s evidence and in legal submissions on her behalf, the Court was asked to conclude that Francisco misled the Court on the Hague Application and that Francisco falsely asserted that he was concerned that Kimi had kidnapped Luca or that he feared that she would not return.
[38] At trial, the Court was taken through the Hague Application documents in detail and heard evidence from the parties on the events leading up to the Phillips Order. From that evidence, I conclude that the Phillips Order was properly sought and granted. I do not accept Kimi’s assertions that Francisco misled the Court.
[39] I accept that until the Phillips Order, Kimi was the de facto primary parent. However, that was not because Francisco did not want or ask for equal parenting time. Rather, Kimi prevented Francisco from having generous access to Luca. She did so, in part, by making unwarranted criminal accusations against Francisco, one of which led to his being arrested in front of his co-workers and held in jail for the day before being released without charge or conditions; another of which resulted in the involvement of the Children’s Aid Society, whose involvement was as a result of Kimi’s alleged concerns over bruises on Luca’s thighs after a visit with Francisco. The implicit accusation of abuse was without merit.
[40] The trial evidence also included Kimi’s numerous emails to Francisco’s family, friends, and co-workers in which she expressed her negative view of Francisco. It is reasonable to view these emails as a way for Kimi to exert pressure or leverage over Francisco.
[41] For his part, Francisco attempted to use his consent to Luca travelling to Vienna as leverage to get more time with Luca. Kimi did promise that Francisco’s access would increase when she and Luca returned from the trips, but then she reneged on those promises. Although he could have brought a motion to increase access, Francisco had good reasons for not doing so. He believed that a trial would be required to resolve custody and access issues and that to push Kimi could lead Kimi making more unfounded accusations against him, criminal and otherwise. Francisco was also concerned that motions would put further strain on his financial resources, on which the whole family was relying.
[42] Notwithstanding Kimi’s refusal to allow Luca frequent and extended access with his father, Francisco was able to develop a warm and loving relationship with Luca.
[43] The evidence at trial concerning the relationship between Luca and Francisco included testimony from Francisco, who spoke lovingly and with insight about Luca, and from Sally Bleeker, who was retained, on consent, to observe Luca’s interactions with Francisco.
Sally Bleeker
[44] Sally Bleeker, MSW, RSW, was retained following Minutes of Settlement entered into by the parties at the settlement conference of December 14, 2015. On consent, Ms. Bleeker was to have three observational visits of Francisco with Luca and then prepare a report to the Court. For her report dated March 14, 2016, Ms. Bleeker interviewed Francisco and Kimi. Also, on three separate occasions, Ms. Bleeker observed Luca’s access visits at Francisco’s home.
[45] Ms. Bleeker’s four-page report was unequivocally positive about Francisco’s interactions with Luca. She observed no difficulty with respect to Francisco settling Luca down for his nap and observed healthy and happy play between Francisco and Luca, nutritious meals, quiet time, and napping routines. Perhaps the most noteworthy paragraph in Ms. Bleeker’s report is her conclusion:
While I cannot confirm how long Luca napped, the routines were clearly established. Safety, good nutrition, and positive stimulation were all observed; but the outstanding quality observed, was the sheer pleasure this father and son take in each other’s company and their close interaction. [Emphasis added.]
[46] When asked at trial about Ms. Bleeker’s report, Kimi acknowledged that she knows that Luca is well cared for when with he is with his father. Yet, despite that view, and despite the conclusions set out in Ms. Bleeker’s jointly-requested report, Kimi still refused to increase Francisco’s access. As of July 2016, Kimi continued to restrict Francisco’s time with Luca to a total of 27 hours per week.
Goertz Factors (c) and (d): Maximizing parental contact and views of the child
[47] In his evidence, Francisco spoke about the love he feels for Luca and the joy he has in spending time and caring for Luca. The evidence leaves no doubt that Luca enjoys a warm and loving relationship with Francisco. I accept that Kimi also has a loving and warm relationship with Luca. Luca’s views can be inferred from the happy and loving interactions that were observed while he was with each parent.
[48] With reference to Goertz factors (c) and (d), in situations such as this, with two eager and loving parents, I conclude that it is in the best interests of the child that he maintain maximum contact with both his parents. That would not happen if Luca relocated with Kimi to Vienna.
[49] There are other reasons for concern that a move to Vienna would seriously jeopardize Luca’s relationship with Francisco. The language spoken in Vienna is German. Francisco does not speak German. For Kimi and Francisco, English is a second language. As at the time of trial, Luca was fluent in German, Kimi’s first language, and in Spanish, Francisco’s first language. If Luca were to move to Vienna, he would almost certainly at risk of losing his Spanish, which would deprive him of his cultural heritage and of the ability to communicate with his own father and his paternal relatives in their first language. While in Canada, the parties have enriched Luca’s education by speaking to him in their mother tongues, and by placing him in a school that would add a third language, English, to the languages that Luca speaks and understands.
Goertz Factor (e): The custodial parent’s reason for moving, only in exceptional case where it is relevant to that parent’s ability to meet the needs of the child
[50] Goertz factor (e) is intended to apply to the custodial parent. Kimi is not and was not the custodial parent. No custody order was in place prior to the Phillips Order. Even if Kimi could be seen as the de facto custodial parent, Goertz directs that her reason for moving should be considered only in exceptional circumstances where relevant to Kimi’s ability to meet Luca’s needs. I am not satisfied that exceptional circumstances exist here. For those reasons, the Court need not consider Kimi’s reasons for moving. Even if I were to do so, for the reasons set out below, I would conclude that the move is not required for Kimi to meet Luca’s needs.
[51] Kimi’s stated reasons for wanting to relocate to Vienna include that her parents and other relatives live there; her parents offered her a home of her own to live in, rent-free; and she believes that she will have a better chance of earning a living in Vienna. Kimi claims that she has tried unsuccessfully to obtain employment in Ottawa and blames, in part, her “foreign” last name and inadequate French skills. Although she completed some post-graduate studies in France, Kimi denies that her French is good enough for her to find suitable employment in Ottawa.
[52] Kimi also points to the benefits of raising Luca in a culturally rich city such as Vienna. In his trial testimony, Kimi’s father described the amenities of Vienna to include parks in the inner-city, where Kimi and Luca would live; a local skating rink in winter; a museum complex; a natural history museum with children’s programs; a kindergarten close by; and lots of restaurants. Ironically, Kimi’s father could have been describing Ottawa.
[53] Kimi also identified as a benefit of relocation that her parents have offered to provide child care if and when Kimi is working. Kimi’s parents are approximately 72 years old and in good health. On that point, the Court notes that Luca will be five years old in August and, in Ottawa at least, could be attending full-day kindergarten in September 2017.
[54] The kind offer of Kimi’s parents to provide that care does not outweigh the enormous detriment to Luca of living a continent away from his father. Given Luca’s eager and loving parents, and the arrangements in place as at the end of the trial in late January 2017, I have little doubt that they will be able to provide for Luca’s after-school and weekend care.
Kimi’s Employment Prospects
[55] I am not satisfied on the evidence that Kimi cannot find employment in Ottawa that is both appropriate to her education and skills and well-paying. Therefore, even if I were to conclude that this is an exceptional case, which I do not, I do not accept that Kimi needs to move to Vienna to be able to provide for her own support or to contribute to Luca’s support.
[56] Kimi is very well-educated: she has a BA in economics from the University of Nottingham, UK, and a Masters in European Business, obtained in Paris, France. Notwithstanding Kimi’s assertions that her French is not good enough for her to work in a bilingual position, her CV states that she speaks French fluently. Kimi is also fluent in English and German. Her language proficiency speaks to her intelligence and to her ability to improve her French fluency, were she motivated to do so.
[57] Kimi argues that Vienna is the place she needs to be for employment. However, it has been over 10 years since Kimi worked in Austria. Further, Kimi’s job history paints a picture of someone who has had a varied and interesting career and who has also changed jobs many times. The longest Kimi has ever held a job was the 2½ years she worked for the Art Loss Register in London, England. The highest income she has ever earned was in 2007-2008, when she had an income of approximately 47,715 UK pounds. In other years, Kimi earned much less and worked less than full time. When she moved to Ottawa with Francisco in 2009, Kimi did not leave a job: by that time, her employment in London had ended. Kimi had already left England and was living with Francisco in Chicago. It cannot be said, nor, in fairness, does Kimi assert, that she gave up a career to move with Francisco to Ottawa.
[58] Kimi’s experience is in marketing and branding of products, which she says is limited to European products. Francisco called Dan Egarhos, a transferable skills analyst to give expert evidence on Kimi’s employability in Ottawa. Mr. Egarhos stated that Kimi has a high potential for finding employment in Ottawa but that her search must go beyond looking at online job postings in July, the slowest time of year for job opportunities. In his view, the most important factor in finding employment is motivation. I accept the opinion expressed by Mr. Egarhos, which is also consistent with common sense. I conclude that with her skills, education, intelligence, and work experience, Kimi could find appropriate employment in Ottawa were she motivated to do so. Moreover, I do not accept the evidence that Kimi needs to move to Vienna in order to provide for Luca’s needs.
[59] Kimi led evidence that she has two potential employment opportunities in Austria. She called one witness, who testified via Skype. That witness could not reasonably explain why he was prepared to hold open a job for Kimi or describe what special skills or training she had that made her especially valuable to him. Francisco further challenged the credibility of this witness who stated that he would be prepared to pay Kimi 60,000 Euros despite that his net profit was only 100,000 Euros. I conclude that the witness gave evidence at the request of Kimi in order to show the Court that Kimi had a job waiting for her, were she allowed to relocate to Austria.
[60] Whether this, or any job, may be available to Kimi in Austria does not satisfy me that Kimi could only find employment in Austria.
[61] On employment issues, Kimi’s credibility suffered on cross-examination:
a) Kimi was cross-examined on the CV she was using to apply for jobs in Canada, which accentuated Kimi’s European experience;
b) as evidence of her search, Kimi produced a brief of job postings from the Government of Canada and from Monster, all of which were printed on April 19, 2016, to which she said either she applied or she was not qualified to apply. Kimi acknowledged that most of her applications were done from home and submitted electronically. That evidence falls well short of showing a concerted effort to find a job;
c) Kimi acknowledged that she had not used a head-hunter to assist her in finding employment in Ottawa. However, she did produce evidence that while she had approached a recruiter in Austria, she did not hire one. This evidence highlights that Kimi made greater efforts to find a job in Vienna than she has made to find employment in Ottawa.
Goertz Factors (f) and (g): Disruption to the child of a change in custody and disruption to the child consequent on removal from family, schools and community.
[62] The overriding concern with Kimi’s request to permanently relocate with Luca to Vienna is the devastating impact that it would have upon Luca’s relationship with Francisco. Again, that conclusion is based not only on geography but also on Kimi’s actions since separation, which lead the Court to conclude that if Luca had his primary residence with his mother in Vienna he would lose his relationship with his father.
[63] Given his young age and his previous experiences in Vienna, it would be reasonable to conclude that Luca could adapt to a change of school and community. However, those changes would interfere with other important interests such as his connection to his paternal language and culture.
[64] With respect to these final two Goertz factors, I conclude that the proposed relocation would not be in Luca’s best interests.
Issue 2: Should the parties have joint custody or should sole custody remain with Francisco?
[65] As stated above, I have concluded that joint custody is not possible as the parties appear unable to communicate and to reach an agreement on decisions concerning Luca.
[66] Few people are at their best when their relationship is falling apart. Just prior to separation, the parties’ relationship had deteriorated to the point at which neither of them trusted the other. As mentioned above, Kimi levelled allegations of domestic abuse against Francisco, one of which led to his arrest at work. No charges were laid. Having heard from both Kimi and Francisco about this event, I accept Francisco’s version and conclude that Kimi acted unreasonably and deliberately in contacting the police. Kimi knew, or ought to have known, that Francisco would suffer fear and humiliation in his workplace as a result of her accusations. Indeed, Francisco did become fearful that Kimi would again call the police and level accusations against him. As a result, it was Francisco who sought the involvement of the police when he worried that being alone with Kimi could create an opportunity for potential accusations. For example, when he went to retrieve his belongings from their former home, Francisco was accompanied by peace officers so as to protect himself from unfounded allegations of criminal wrongdoing.
[67] Francisco also had to be concerned that Kimi would make more insinuations of child abuse, as she had done when she noted bruises on Luca’s thighs after a visit with Francisco. Rather than speak to Francisco about the bruises, Kimi took Luca to her family doctor and then to the Children’s Hospital of Eastern Ontario, where the child abuse unit and the Children’s Aid Society became involved. They determined there was no basis for concern. Had she spoken to Francisco, she would have learned that Luca had been given a new riding toy, which likely caused the bruises (this explanation was entirely accepted by the authorities). Instead, and ostensibly out of concern for Luca, Kimi exposed Luca to multiple medical examinations and questions from those in authority. On that occasion and on another occasion in which Kimi involved the police in Luca’s presence, she needlessly exposed Luca to upset and conflict. Kimi’s decision to contact police or report possible child abuse could reasonably be seen as a way to discredit Francisco as a father in order to restrict Luca’s contact with him.
[68] Even during the litigation itself, Kimi did not hesitate to use Luca. Kimi created a “Go Fund Me” posting on Facebook. It featured a close-up photograph of her and Luca. The caption below that photograph read, in part: “Victim – Family Court System Canada”…“I really hate asking for help and it is embarrassing and very uncomfortable, and those of you who know the terrible history/experience I have had, know for me to be making the request for help public means that I must have landed at rock bottom. In short, I have become a victim of the Canadian Family Law System: … Why are we litigating? Unfortunately mediation was unsuccessful. It saddens me that the father’s t2-year relationship is living in Europe currently and instead of us all moving to Europe, where we were originally meant to be or finding a solution, I have to fight this terrible custody battle that is emotionally draining, tearing friends and family apart and now financially ruining us…”
[69] In this Facebook post, Kimi listed five reasons for wanting to relocate to Vienna: job opportunities in a place where they do not discriminate against foreign names; that she had two job offers that would allow her to pay off huge debts and provide a good life for Luca instead of spiraling into debt in Canada “without a pension”; that Francisco may not be obliged to pay support to her in one year; a lack of family network in Canada; and that Francisco has the ability to move, had planned on living in Europe, and has visited Europe several times since separation. The “Go Fund Me” website ran for approximately two months between June and August 2016. Kimi was able to raise over $19,000.
[70] It is revealing that Kimi’s reasons for relocating focus not on what would in Luca’s best interests but on her alleged financial instability and lack of pension, and, in part, an assertion of unfair treatment of her by Francisco. While those may be Kimi’s primary concerns, this Court is solely concerned with what is in the best interests of Luca.
[71] Throughout the trial, evidence of Kimi’s actions, both before and after separation, gives rise to a real concern that Kimi is willing to use Luca as a means to achieve her own objectives, and that she has and will put Luca in the middle of a dispute, rather than protect him from spousal conflict. Those concerns are borne out in many of Kimi’s emails. For example, in her email to Francisco of September 14, 2016, Kimi tells him that Luca has been waking up all night with nightmares and that she is not sure if he has a stomach flu or if it is from all the “nervousness” and that Luca senses the uncertainty which has “been affecting Luca terribly!!” Notwithstanding her stated concern about Luca, Kimi expresses concern that Francisco “marginalizes” the role that Kimi plays in Luca’s life. It is significant that when she sends this email, Kimi knows about the Phillips Order. Despite that, she is still dictating Francisco’s access to Luca and proposing restricted access to Francisco, which “can increase to fall weekends every second weekend.” She bolsters this request by stating that the child therapist has suggested this approach and that Luca “is terrified currently”. Further in this email, Kimi states that it is really sad to see Luca so terrified and that Francisco can understand that it is a direct result of his accusations of “abduction”.
[72] If Kimi is to be believed that Luca was in fact “terrified”, then the Court must conclude that it is because of what Kimi has told Luca. Otherwise, there is no explanation for Luca being “terrified” to come home to Ottawa at the end of the summer to see his father, whom he loves, and the home that he had been living in until July 2016. This email is but one example of many.
[73] Access to and the care of Luca was a source of ongoing conflict and disagreement after separation, which mitigates against an order for joint custody. Further, in support of her claim for sole custody, Kimi’s evidence was that she did not feel that Francisco was willing to co-parent with her; that he withheld information concerning Luca; and that he did not recognize the importance of Kimi’s role in Luca’s life as a primary caregiver since birth. In her opening statement at trial, when asserting that Francisco’s Hague Application was based on false accusations against her, Kimi claimed that Francisco is the flight risk, not her.
[74] That last statement provides insight into Kimi’s view of herself as the primary parent and Francisco as the high-risk, selfish parent. The evidence at trial, referenced only in part in these Reasons, leads this Court to the opposite conclusion.
[75] It must be made clear in these Reasons that the events of the summer of 2016 have not determined the outcome of the issues at trial. Rather, they form part of the overall evidence that leads the Court to conclude that Kimi ought not to have primary decision-making power over Luca. That evidence viewed as a whole shows that at a time when Kimi believed that she had the power and the entitlement to make all decisions over Luca, she exercised that power by restricting Luca’s time with his father; taking extended time with her own family, away from Francisco; making accusations against Francisco; and sending emails to Francisco’s family, friends, co-workers, and others, all of which unfairly painted Francisco in an extremely negative light.
[76] Based on the evidence at trial, only some of which is touched on in these Reasons, an order for joint custody cannot be made.
[77] In granting sole custody to Francisco, the Court does not have the same concerns about Luca being put in the middle of a conflict or used as leverage in a parental dispute. Francisco has demonstrated that he is able to consider Luca’s best interests as well as Kimi’s views when making decisions about Luca. A particularly telling example of Francisco putting Luca’s needs ahead of his own needs and wishes was Francisco’s agreement not to go to the airport on September 20, 2016 to take Luca home with him, but to allow Kimi to take Luca home with her to rest for a day. It cannot be overstated that, in waiting one more day to see Luca, Francisco did what he thought would be best for Luca, even though he had not seen his four year old son for 77 days. There were other examples, not mentioned in these Reasons, of Francisco accommodating requests made by Kimi, despite those requests depriving Francisco of time with his son.
[78] Without accepting Kimi’s evidence in its entirety on this point, I do accept that there have been unpleasant and, possibly, some physical disagreements between the parties when their relationship was coming to an end. However, those disagreements fall short of establishing a history or a future risk of domestic violence. Again, having observed the parties and having considered the volumes of communication between them, I conclude that they approach life’s challenges quite differently: Kimi with a certainty that she has reached the right decision and Francisco more willing to give in to Kimi’s choices.
[79] Another example of Francisco’s ability to put Luca’s interests first and to consult with Kimi about what is best for Luca can be seen in an email Francisco sent to Kimi on December 11, 2016. This email was sent while the trial was on hiatus. Francisco wrote to Kimi concerning kindergarten choices. His thoughts, he stated, were based on consultation with the child psychologist, their interview with Luca’s teachers, and his own deliberation. Francisco set out the factors that he thought should be considered in choosing a kindergarten for Luca.
[80] Kimi’s response to Francisco’s full-page email of December 11, 2016, was to accuse him of bringing in the psychologist “who only hears your biased side of what is being said” and to repeat her view of her pre-eminent role in Luca’s life: “what you are doing is clearly dictating and also dictating what will be happening in the next weeks and there is no discourse and not at all a “joint decisions” and you have not even cared to ask me what I think of the plan, despite me having much more insight into Luca’s development there.” [Emphasis added].
[81] Kimi goes on in her reply to suggest that others also were critical of Francisco: “Luca’s own teachers were shocked at the way you talk to me. … You may not have been so aware of it, but he [Luca] has opinions now.… You chose a kindergarten without visiting the class… However, I have always chosen programs Luca would enjoy, thrive in and have compared and seen many programs and made informed decisions that I thought were great options for Luca.”
[82] Further, Kimi suggests that the prevailing wisdom about children is that increased access to Francisco is not good for Luca: “… We need to of course revisit the current schedule. He [Luca] still does not enjoy the many overnights and voices it to me, probably because according to many studies it is not at all age-appropriate.…” [Emphasis added.]
[83] This email is consistent with much of the evidence heard at trial in which Kimi justifies her behaviour, her attitude, and her insistence that Francisco’s access to Luca be doled out sparingly, by referring to opinions of others, studies, or literature that she has read. Kimi’s views run counter to applicable jurisprudence and were contradicted by the evidence of Ms. Bleeker. Although Ms. Bleeker was not called as an expert witness, she is someone with expertise and whose involvement was requested by the parties. Ms. Bleeker’s conclusions were based on interviews and observations and contradict entirely Kimi’s assertions that Luca’s contact with his father is not “age-appropriate”.
[84] While there is no doubt that Kimi loves and is devoted to Luca, in her trial evidence she spent little time talking about Luca and her relationship with Luca. Rather, the focus of Kimi’s evidence was on how the move to Vienna would be of benefit to her; how the contact between Francisco and Luca is stressful to her; and on Francisco’s many faults and flaws.
[85] By contrast, in his evidence, Francisco’s evidence was more focused on his relationship with Luca and on what he believed to be in Luca’s best interests.
[86] I conclude that if sole custody is given to Francisco, obligating him to consult with and involve Kimi in decisions, decisions will be fairly made for the benefit of Luca.
Issue 3: What access arrangements should be in place?
[87] After the first week of trial and in anticipation that the trial would not be resume for many months, the parties were able to agree upon a parenting schedule that also included holidays that occur throughout the year. I see no reason to vary this arrangement and conclude that, unless the parties agree otherwise, the parenting schedule set out in the September 30, 2016 Order shall be embodied in a final order.
[88] With respect to international travel to visit family:
i) the evidence shows that Luca enjoyed his time in Vienna in 2016, where he visited his maternal grandparents and other members of his mother’s extended family. I find that those relationships are to his benefit and that it would be in Luca’s best interests to be able to continue to visit his mother’s family in Austria; and
ii) the evidence from Francisco was that he has supportive family members in Mexico and that his mother has travelled to Ottawa to visit and help care for her grandson. Aside from Kimi’s expressed concerns, which have no evidentiary foundation, I find that it would be in Luca’s best interests to be able to visit his father’s family in Mexico.
Accordingly, Luca shall be permitted to travel with Kimi to Austria and with Francisco to Mexico on condition that, no less than 60 days in advance of departure, the other parent is provided with written notice of the trip; travel details, including proof of return airline tickets; and contact information while abroad. Unless the parties agree otherwise, any international travel shall take place during that parent’s usual vacation and/or access time with Luca.
Issue 4: Child Support
[89] The issue of child support should be resolved in accordance with the Guidelines. However, as at the date of trial, Kimi was neither employed nor, it would appear, seriously looking for employment in Ottawa. In closing submissions, Francisco asked the Court to impute income to Kimi.
[90] The Court recognizes that both parties have been uncertain about the outcome of this trial. However, at the end of the first week of trial the parties knew that the trial could not be completed until January 2017. The last day of trial was January 30, 2017, four months after the trial began. At the conclusion of the trial, the parties were also made aware that they should anticipate that the decision would take several months. Accordingly, it was reasonable for Kimi to have taken steps to find employment. For that reason, I impute income to Kimi equal to minimum wage effective March 1, 2017. Therefore, from and after March 1, 2017 child support payable will be calculated based on Francisco’s actual 2017 income and on an imputed income to Kimi of at least $23,700 or such greater amount as she actually earns in 2017, and also taking into account the spousal support she receives as set out below.
[91] If the parties cannot agree on the proper calculation of child support based on the foregoing, within 30 days of the release of these Reasons, they may contact the trial co-ordinator to arrange for a short hearing before me on that issue. Materials are to be served and filed no less than seven days before the hearing date.
Issue 5: Spousal Support
[92] At trial, Kimi sought spousal support in 2016 of between $3,463.00 and $4,4013.00. As at the conclusion of trial, Francisco was paying monthly spousal support of $2,525.00. In closing argument for Francisco, his counsel submitted that spousal support should be calculated based on Francisco’s 2015 income of $146,086.00 and an imputed income to Kimi of $25,000.00. Based on those figures, mid-range spousal support would be payable in the monthly amount of $2,641.00.
[93] I find that spousal support payable by Francisco should change effective March 1, 2017, and shall be based on the mid-range spousal support using the parties’ incomes referenced at paragraph 90 above. Again, spousal support shall terminate as per paragraph 6 above.
Costs
[94] Francisco has been successful in this application and is presumptively entitled to his costs. If the parties cannot agree on costs, they may make written submissions to me not to exceed three pages in length, plus a bill of costs, and any offers to settle. Francisco’s costs submissions are to be served and filed to my attention within 14 days of the release of these Reasons. Kimi’s responding submissions are to be served and filed to my attention within 7 days of service on Kimi of Francisco’s costs submissions.
L. Sheard J.
Released: August 8, 2017
CITATION: URIU v. RIVADENEYRA, 2017 ONSC 4782
COURT FILE NO.: FC-14-2854-1
DATE: 2017/08/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KIMOKO URIU
Applicant
– and –
FRANCISCO RIVADENEYRA
Respondent
REASONS FOR JUDGMENT
Sheard J.
Released: August 8, 2017