COURT FILE NO.: 39972/17
DATE: 2018 06 18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
P.K.
Applicant
– and –
I.K.
Respondent
Counsel:
Susan Berry, for the Applicant
I.K., Self-Represented
K. Knoepfli, for the Office of the Children’s Lawyer
HEARD: June 12, 13 & 14, 2018
REASONS FOR JUDGMENT
CONLAN J.
I. INTRODUCTION
[1] Should mother and child be permitted to move from Oakville, Ontario to Slovakia? That is the main issue for this Court to decide.
[2] For the reasons that follow, I have decided that the move ought to be permitted, in the best interests of the child.
The Facts
[3] The Applicant mother, P.K., is 39 years old. She lives in subsidized housing with the parties’ child, M.K., 10 years old (almost 11), in Oakville. P.K. was born in Slovakia and came to Canada in 2004. She has both Canadian and Slovakian citizenship, as does the child. P.K. is a child-care worker, earning a modest $11,000.00 per year.
[4] The Respondent father, I.K., is 44 years old. He lives in a separate residence in Oakville. He is currently unemployed but, until September 2017, earned about $90,000.00 per year as a computer programmer. He was also born in Slovakia. He came to Canada in 1997. He is also both a Canadian and a Slovakian citizen.
[5] The child is a very good student in grade 5 at a French immersion public school. She speaks three languages – English, French and Slovak.
[6] The parties married in Slovakia in March 2007. They separated in late August 2016, after P.K. and the child returned from an extended stay over that summer in Slovakia. P.K.’s parents and other family members live in Slovakia. P.K. has one relative in Canada, a lady who lives in Whitby, Ontario.
[7] During the marriage, I.K. was the breadwinner and paid for nearly all of the household expenses. The home that the family lived in at the time of separation was purchased by I.K. but placed in both parties’ names.
[8] During the relationship, P.K. was the primary caregiver for the child. Since separation, the child has lived with P.K. and has had minimal contact with I.K. The father-child relationship is strained, despite the efforts of the Office of the Children’s Lawyer (“OCL”), Tricia Ryan (“Ryan”), and Tracy Majewski (“Majewski”).
[9] Ryan is an experienced social worker with a Master’s Degree. At the request of the OCL, she has been involved with the family since November 2017. Majewski also has a Master’s Degree in social work and has been a clinical investigator for the OCL since May 2009. She, like Ryan, has been involved with the family since November 2017.
[10] The parties’ separation in late August 2016 was the result of much conflict during the marriage, the final straw having occurred on August 24th. Upon returning from the trip to Slovakia, P.K. was discouraged to find the home in a state of disarray and with a damaged roof. The parties argued about a television set. Something physical happened between the parties. P.K. alleged an assault, but I.K. denied and continues to deny that. The child was at home at the time. The police were called. I.K. was arrested and was removed from the home. The assault charge against I.K. ended with a peace bond in September 2016.
[11] It is clear from I.K.’s focus throughout the trial that he remains obsessed with what happened on August 24th, and what the child did or did not see, and whether P.K. has poisoned the child against him as a result of what allegedly happened that day. The evidence of both Ryan and Majewski fully supports the conclusion that I.K. is fixated on those issues, notwithstanding that the child has moved on and does not appear to have been significantly impacted by whatever occurred between the parties on that day.
[12] After August 24th, the local child welfare agency investigated. I.K. has no faith in and challenges that process and its findings.
[13] After August 24th, P.K. spoke with the child about the possibility of moving to Slovakia. That is the current plan. Specifically, P.K. and the child plan to live with P.K.’s parents in a small village in Slovakia called Plavecky Stvrtok. I.K. opposes that. According to Ryan, whose evidence I accept, the child has consistently supported the idea of moving to Slovakia.
[14] At trial, both Ryan and Majewski described a difficult relationship between the child and I.K. I accept that evidence. The child has complained that her father was absent as she grew up. Since separation, now nearly two years ago, the child has frequently been resistant to or outright refused any communication with her father.
[15] I.K. denies that his daughter is resistant to seeing and/or communicating with him. He wanted to play during the trial some surreptitious recordings that he made of Skype chats between him and her after the separation of the parties. For oral reasons given during the trial, that request was denied. There was little probative value, and significant prejudicial effect, in allowing that to happen. In my view, it seriously undermines the parent-child relationship to have a father secretly record his daughter for the purpose of gaining some tactical advantage in the litigation.
[16] I.K. had a few Skype chats with the child after the separation. The child refused to see her father in person. I.K. became frustrated and visited the child’s school, unannounced, one afternoon in April 2017. P.K. was notified of that by the school.
[17] Ultimately, P.K. commenced the within Application and, in April 2017, moved for an Order for supervised access between I.K. and the child, which request was granted. A few supervised access visits occurred between June 24 and August 19, 2017. When the child refused to continue attending, the facility cancelled the visits and recommended therapeutic access.
[18] The proceeding moved along the usual process, but I.K. filed nothing. No Answer. No Financial Statement. No Case Conference Brief.
[19] Along the way, further Court Orders were made, and costs were sometimes awarded against I.K. (which costs have not been paid to date). I.K. was ordered to pay child support of $817.00 per month and spousal support of $1,450.00 per month, commencing August 1, 2017.
[20] At the Settlement Conference in late November 2017, I.K. had still not filed anything in response to the Application. No Answer. No Financial Statement.
[21] On December 20, 2017, the Court ordered that the matrimonial home be sold for $679,000.00. That was not on consent of I.K. The sale closed on February 6, 2018, with the proceeds being held in trust. The money remains in trust today.
[22] Finally, on February 16th, I.K. filed his Answer. The case was set down for trial.
[23] The trial was held over three days in Milton in June 2018. P.K. had counsel, as did the OCL. I.K. represented himself. I heard testimony from P.K., Ryan, Majewski, and I.K.
The Trial, the Positions of the Parties, and some Commentary
[24] Although there are some financial issues, the focus of the trial and that of this Court is the best interests of the child, which means that custody and access and the proposed move to Slovakia by mother and child are at the forefront.
[25] Many of the facts outlined above were agreed to by all parties and contained in a Statement filed on consent as Exhibit 5 at trial.
[26] The mother wants sole custody and to move to Slovakia with M.K. She has proposed a detailed, written plan of care (filed at trial) that deals with housing, school, and so on. She testified that she will support continued access between I.K. and the child, over Skype and/or when P.K. visits Canada or I.K. visits Slovakia.
[27] The OCL supports the mother’s position. The only question for the OCL is when the move should occur. Here, this Court must round-out the facts a little more.
[28] Between January 8 and April 10, 2018, there were seven therapeutic access visits between I.K. and the child, with the assistance of Majewski. Consistently, I.K. wanted to focus on the alleged assault, and what the child did or did not see, and what P.K. has supposedly told the child about the incident. Eventually, Majewski permitted that to be discussed with the child. Clearly, that discussion showed that whatever happened was “not a big deal” for the child (Majewski’s words). The child has moved on. I.K. has not. He wants to interrogate the child some more.
[29] According to Majewski, whose evidence I accept, the “biggest change” that she has observed in the family has been with regard to the attitude of P.K. Initially resistant to contact between the child and I.K., P.K. has grown to be much more open to and, in fact, supportive of that relationship.
[30] According to Majewski, the biggest challenge is how to deal with I.K.’s fixation on what happened on August 24, 2016. He would benefit from his own counselling, which he has not pursued and testified that he does not need. And, in the words of Majewski, he really struggles to accept that the physical incident that occurred between the parties is not a big deal for the child, and those struggles on the part of I.K. negatively affect his relationship with the child and his access with her. “It’s time to move on” from that incident, Majewski stated in her testimony. I agree. “One of the biggest barriers to this family moving forward is the place where you [I.K.] are stuck”, she said to the father during his cross-examination of her at trial. I agree. Any continued contact between I.K. and the child is risky to some degree because he cannot be trusted to not go at the child again and again about what happened nearly two years ago, what she saw, and so on. That is what Majewski stated in her trial evidence, and I agree with that.
[31] Although Majewski remains willing to continue to help the family in the future, no visits have occurred since April 10th because I.K. has not refreshed the retainer (while P.K. has paid Majewski), and I.K. has not bothered to propose a plan to move forward, as requested of him by Majewski.
[32] Ironically, as I stated to I.K. during the trial, he presented in the Courtroom as the other side’s best exhibit. He spent the vast majority of his time talking about vindication (he did not assault P.K. nearly two years ago) and about alleged emotional abuse by P.K. towards the child (because, according to the father, the child did not see anything, even though she told others that she did, and because P.K. keeps telling her that she did). Recognizing that I.K. was self-represented at trial, this Court made numerous attempts to re-focus the father on other more important things, however, it was a futile exercise. He is simply intransigent.
[33] I.K. wants equal time between the child and each parent. He has plenty of room to house his daughter in the three-bedroom residence that he is currently renting, located quite close to the child’s school in Oakville. After some unspecified duration, if the child still wants to move to Slovakia, he will not oppose that. Until then, she should stay within Ontario, submits the father.
II. ANALYSIS and CONCLUSION
[34] The mother’s proposed move to Slovakia will only be permitted if this Court is satisfied on a balance of probabilities that it would not be contrary to the child’s best interests.
[35] Put in positive terms, would the proposed relocation be in the best interests of M.K.? That is the question.
[36] Unfortunately for I.K., as I hinted to him during the trial, it is unnecessary for this Court to resolve the most pressing questions in the mind of the father: (i) did he assault his wife on August 24, 2016, and (ii) did the child see the physical contact that did occur between her parents on that day?
[37] On the first question, I simply do not know. Perhaps I.K. intentionally struck his wife in her back/shoulder area because he was angry about her trying to move the television set from the bedroom. Or perhaps, as I.K. asserts, he simply reached out and touched her in order to try to prevent her from injuring herself and/or damaging the television while moving it on her own. It is not necessary to decide that point.
[38] On the second question, again, I simply do not know whether the child witnessed the physical incident or not. She has told others that she did. Again, the issue is not necessary to resolve. The important point is that the child has moved on from what happened that day, in spite of I.K. being unable or unwilling to do so.
[39] I have no doubt that I.K. loves his daughter. But the following findings are also not in any doubt, all relevant to the test on mobility rights as set out by the Supreme Court of Canada in Gordon v. Goertz, 1996 SCC, [1996] 2 S.C.R. 27:
(i) P.K. has always been the primary caregiver for the child;
(ii) the child is very attached to and bonded with her mother;
(iii) the child has not seen much of her father over the past nearly two years;
(iv) the child has a strained relationship with her father;
(v) P.K. has presented a very detailed plan of care for her and the child to live with P.K.’s parents in a small village in Slovakia, with employment available for the mother, and a school arranged for the child, and plenty of supports around;
(vi) I.K. has filed no written plan of care, despite asking for and being granted permission to do so early in the trial;
(vii) I.K., notwithstanding the evidence of Ryan and Majewski, would not commit to continuing with therapeutic access with the child when asked about that directly by both counsel for P.K. and counsel for the OCL;
(viii) I.K., when asked directly by counsel for P.K., would not commit to visiting the child in Slovakia even though he has friends there and used to go there two or three times every year;
(ix) I.K. has presented no cogent evidence that life in Slovakia would be unsafe or unsanitary or otherwise risky for the child;
(x) to persons other than her parents, the child has consistently expressed that she wants to live with her mother and wants to move to Slovakia;
(xi) P.K. has provided specific reasons, which seem reasonable, for her desire to move to Slovakia – she has more supports there, and the child has family and friends there, and P.K.’s education will go further there, and she has employment available to her there which will improve her finances, and so on; and
(xii) despite P.K.’s maturity since separation and current commitment to facilitating regular electronic access and in-person visitations between I.K. and the child after the proposed move to Slovakia, I.K. remains fixated, obsessed, with the past.
[40] Yes, a move to Slovakia will be a very significant change for M.K. There will be a period of disruption, undoubtedly. But this is not a situation where the child is being asked to move to a strange place. The child has spent extensive periods of time in Slovakia with her mother and her maternal grandparents.
[41] Yes, the principle of maximum contact with both parents is very important. But it is not absolute. Here, the mother is committed to maintaining a relationship between the child and her father. The bigger obstacle to success will be I.K. himself.
Order
[42] In all of the circumstances, it is clear that the best interests of the child require that P.K. have sole custody, that the child live primarily with P.K., and that the proposed move of mother and child to Slovakia be permitted. So ordered.
[43] I.K. shall sign any necessary documentation for the child’s passport renewal.
[44] On the timing of the move, I agree with the position advanced by both the mother’s counsel and counsel for the OCL in closing submissions. Something near the end of this summer would be ideal, to give the parties another chance at making therapeutic access work and yet having the move occur before school starts in Slovakia in early September.
[45] I.K. shall have until 4:00 p.m. on Friday, June 22, 2018 to signify his commitment to continuing therapeutic access with his daughter. By then, he must pay to Majewski her requested retainer and agree to proceed as recommended by Majewski. If those two things happen, then the move to Slovakia shall not occur before August 22, 2018 (the mother suggested August 15th, but I think that another week of therapeutic access is in the best interests of the child; after all, everyone agrees that there are real positives to that access). If those things do not happen, then the move to Slovakia may take place any time after the child’s current school year ends later this month.
[46] Any therapeutic access that does occur between the child and I.K. before the move to Slovakia takes place shall be in accordance with the recommendations of Majewski.
[47] After the relocation to Slovakia, access between the child and I.K. shall be in accordance with clauses 32, 33, 34, 35 and 36 of P.K.’s Plan of Care (Exhibit 3), tab 1, reproduced below:
- M.K will participate in video Skype calls with her father four times per week. I propose the following schedule:
a. Tuesdays and Thursdays at 7 P.M. in Slovakia time (1:00 PM Eastern time) for up to half an hour;
b. Saturdays and Sundays at 4:00 p.m. In Slovakia time (10:00 A.M. Eastern time) for up to an hour.
For any reason if we had to reschedule the Skype call, I.K. can have a make call with M.K. the next day on a mutually agreed upon time.
Also, I.K. is welcome to visit M.K. in Slovakia when he comes to Europe. I hope that he will come to visit her at her birthdays and Christmas and during the summer.
I.K.’s family lives in a village close to our village and he can visit his family and M.K. in Slovakia. I am agreeable to take M.K. to visit I.K.’s family even when I.K. is not there.
Also, I will take M.K. to Canada to meet her father on an agreed upon schedule in the summer for a month. M.K. and I will stay at my aunt’s house in Whitby and I.K. can take M.K. for day outings, supervised or unsupervised as recommended by the Office of the Children’s Lawyer.
[48] The parties are at liberty to agree to additional access beyond that stipulated above.
[49] On the financial issues, I.K. said hardly a word about those in his direct evidence at trial or during his closing submissions. In cross-examination by counsel for the mother, he simply confirmed that he is currently unemployed and not eager to return to work full-time. He used to earn good money - $90,000.00 to close to $130,000.00 in his last two years.
[50] In the absence of any real evidence or argument to the contrary, I accept the submissions made by Ms. Berry, counsel for P.K. The straight equalization of net family property calculation would have resulted in P.K. owing to I.K. the sum of $2,286.97. Allowing the adjustments sought and testified to by P.K., and denying the adjustments sought by I.K. which were not supported by any evidence at trial, that figure becomes $4,282.89. That amount owing to I.K. will be offset against what he is ordered to pay to P.K. on account of lump sum spousal support.
[51] The evidence establishes on balance that P.K. is eligible for spousal support, both on a compensatory and on a need basis. She worked part-time during the marriage, earning very modest money, to care for the child and to allow I.K. to work long hours, advance his career and make relatively high earnings. Post-separation, P.K.’s income has remained very modest. She depends on the financial support of I.K.
[52] P.K. asks for lump sum spousal support of $89,343.00. That is based on an imputed income to I.K. of $90,000.00. I am of the view that the said imputed income figure is a little rich. I accept I.K.’s evidence that he may not return to work in the same field as before. Thus, I will reduce the imputed income figure to $75,000.00. The lump sum amount shall be recalculated accordingly, and I.K. shall pay that recalculated amount to P.K., less the $4,282.89.
[53] P.K. asks for lump sum child support of $77,686.00. That is also based on the $90,000.00 imputed income figure. Whatever the new amount is using $75,000.00 as the income for I.K., he shall pay that amount to P.K.
[54] Both of those lump sum support amounts shall be paid out of I.K.’s share of the net proceeds of sale of the matrimonial home. Those proceeds shall be released forthwith.
[55] Counsel shall prepare the Final Order as per these Reasons. It is not necessary that I.K. approve of the Order before submission to the Court.
A Final Word
[56] Despite his wild accusations about Ms. Berry deliberately misleading the Court (which I reject totally), and despite his callous and completely unfounded remarks in closing argument that the child would be better off with any foster family than her mother, I think that I.K. has something valuable to offer his daughter.
[57] He came to Canada, worked hard and raised himself to a standard of living well beyond that of his parents. He loves M.K. He can teach her many things. He needs to repair their relationship. He needs to work with Majewski. I strongly encourage him to do so. He probably needs his own counselling. And, finally, he needs to get past August 24, 2016. For his sake. More important, for his daughter’s.
CONLAN J.
Released: June 18, 2018
COURT FILE NO.: 39972/17
DATE: 2018 06 18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
P.K.
Applicant
– and –
I.K.
Respondent
REASONS FOR JUDGMENT
Conlan J.
Released: June 18, 2018