Court File and Parties

Court File No.: FC-18-2106 Date: 2018/11/14 Ontario Superior Court of Justice

Between: Firas Shoumali, Applicant – and – Michela Telatin, Respondent

Counsel: Mary Cybulski, for the Applicant Lisa Sharp, for the Respondent

Heard: November 9, 2018 (at Ottawa)

Reasons for Decision

SHELSTON J.

Overview

[1] This is an urgent motion dealing with temporary custody/access of the parties’ four-year-old daughter. Both parties seek temporary custody. The applicant’s plan is that the child remain in Ottawa with him while the respondent’s plan is that the child return to Belgrade, Serbia with her where she has been residing since June 15, 2018.

[2] The parties each filed detailed affidavits and each were cross examined on their affidavits. At the conclusion of the motion, I requested counsel to provide me with their proposed access to the noncustodial parent. I have received such information.

Background

[3] The parties met in South Sudan in December 2010 while they were working at the International Committee of the Red Cross. They began residing together in December 2013 in London, England, where the respondent owned a home and the applicant was completing his university studies.

[4] Their daughter, Angelica, was born on June 29, 2014, in London, England.

[5] The applicant is a citizen of Canada and Jordan. The respondent is a citizen of Italy and a permanent Canadian resident. The child has both Canadian and Italian citizenship.

[6] The applicant has a bachelor’s degree in aviation management and is currently working on a Master’s degree in logistics. The respondent has three university degrees including in development and administrative planning, modern languages and literature and a PhD in international relations. She speaks five languages.

[7] The respondent worked with the International Committee of the Red Cross from 2002 to 2015. The applicant worked with the Red Cross between October 2010 and July 2011. He then worked with the United Nations World Food Program on a three month contract in Libya, followed by another three month contract in Iraq and then an eleven month contract in south Sudan.

[8] The parties moved from London, England to Richmond Hill, Ontario in August 2015. While residing in Richmond Hill, the respondent could not work while awaiting a work permit and the processing of her permanent residency application. From August 2014 to August 2016, the respondent did not work and was the primary caregiver for the child with support from the applicant. In May 2016, the respondent took the child to a daycare a couple of hours per week and the child continued at the daycare until the parties moved to Ottawa at the end of August 2016.

[9] Between September 2015 and July 2016, the applicant worked for a few months full-time and then part-time. In September 2016, the parties moved to Ottawa because the respondent had obtained employment with World Vision Canada. The respondent worked for World Vision Canada from September 2016 to May 2018. She worked on a full-time basis and was able to work from home two days per week. On the days that she worked in the office, she did not stay at the office past 3:30 p.m.

[10] From September 2016 to June 2017, the child attended one daycare from September 2016 to June 2016 two mornings a week which would correspond with the days that she was at work. On the days that the respondent was at her office and the child was not in daycare, the applicant would care for her, amounting to approximately one full day each week and two half days. From September 2017 to May 2018, the child attended another daycare.

[11] In September 2017, the applicant made an application for employment with the United Nations. By the fall 2017, the respondent had concerns about the stability of the relationship. From November 2017 to early February 2018, the applicant worked in Tunisia while the respondent and the child remained in Ottawa.

[12] While the applicant was in Tunisia, the respondent alleges that the applicant told her that he wanted to split up. Consequently, the respondent sought legal advice on February 1, 2018 from her lawyer, Ms. Sharp. She was not convinced that she wanted to separate. The applicant returned to Ottawa on February 6, 2018. The respondent alleges that the applicant had accessed her work email account or had access to her phone to determine that the respondent was seeking legal advice about separation. The applicant denies this allegation. He states that he returned because he missed his family.

[13] The applicant states that he did not want to separate while the respondent states that the applicant threatened to leave three times in February. The applicant does not specifically deny this allegation.

[14] Once the applicant became aware that the respondent had retained a lawyer to draft a separation agreement, he told the respondent that he had changed and that the parties could move together to Serbia as a family so that he could be involved in the child’s life on a daily basis. The respondent told the applicant that she wanted to create a separation agreement to avoid a lengthy court action which could jeopardize her job in Belgrade.

[15] On March 28, 2018, the respondent was offered a position to move to Serbia with the United Nations. Both parties were happy with the news. The applicant provided the respondent with a congratulatory card.

[16] On April 10, 2018, the respondent emailed her lawyer advising that the parties had decided that the applicant would move with the respondent and the child to Belgrade, but if things did not work out, and the parties would separate, the child would stay with the respondent and the applicant would be able to see the child, take the child on holiday, call her, etc. The applicant was not copied on the email and denies that any such agreement was reached.

[17] On April 26, 2018, Ms. Sharp, acting as counsel for the respondent, emailed the applicant inviting him to discuss a cohabitation agreement. The email stated:

Hello,

I would like to invite you to meet with me in the next few days to discuss a cohabitation agreement for you and Michela Telatin. Michaela has asked me to create an agreement that will allow her and your daughter to move out of Canada to start her new job.

The goal of this agreement is to create a plan that captures your joint intentions with respect to living arrangements and protect your child’s rights to have both of her parents involved in her life, no matter what happens in the future.

I have written a first draft based on what Michela has told me; I would like to hear what you would like to have added to the agreement; after we have a good draft agreement, it would be very important for you to speak to another lawyer to get independent legal advice before you sign it.

I am available tomorrow (Friday) at 3 PM; or I could meet on Saturday morning at 10 AM; or on Monday at 2:30 PM.

Please let me know if you can come for any of these times.

[18] On April 26, 2018, the applicant responded and agreed to meet on Monday, April 30, 2018 at 2:30 p.m. at Ms. Sharp’s office and requested that she send him a draft of the agreement. Specifically, in the email the applicant stated:

…. Moreover, it doesn’t make sense to me as we are not separated and still together as a family and planning to go abroad as one!!!!!

[19] The applicant attended at Ms. Sharp’s office on the Monday at 2:30 p.m. but Ms. Sharp was not in attendance as she was delayed at court on another matter. On Friday, May 4, 2018, Ms. Sharp forwarded a revised draft agreement to the applicant which included a paragraph that stated as follows:

.… This agreement will demonstrate that you have given your consent to Michela to move to Serbia with Angelica, so that she can take the job being offered there. It also confirms that you are moving there with them, and that you are both trying to remain together for Angelica’s sake. It also clarifies that you both have a role and responsibility for Angelica’s future.

[20] On Monday, May 7, 2018, Ms. Sharp emailed the applicant requesting his comments regarding the draft agreement. The applicant responded the same day and stated:

Dear Mrs. Sharp,

Thanks a lot for the update. Please note that Michela and I are living together as one family and we are planning to travel all abroad to support M in her new job and stay altogether. Therefore, this document does not make any sense to me nor I agree with it or I give me consent to it.

Please let me know if you need anything else from my side or if Michela is planning to separate from me and I need to hire a lawyer for that reason and work on the best interest of our daughter Angelica.

[21] There was no response from Ms. Sharp. The cohabitation agreement was never signed.

[22] On May 19, 2018, the respondent accepted her fixed term appointment to start June 1, 2018, expiring on May 31, 2019, with the salary being US$108,633. The salary is tax-free.

[23] In mid May 2018, the applicant and respondent travelled with their child to Belgrade for two weeks to look for an apartment. A one-year lease was signed on June 8, 2018, which included a clause that the lease could be terminated on 30 days’ notice if the respondent’s employment was terminated. While in Belgrade, the parties looked at schools for the child.

[24] At the end of May 2018, the respondent purchased a condominium in Ottawa and the applicant, respondent and child moved from their apartment into the new residence.

[25] In June 2018, the parties attended couples counselling.

[26] On June 14, 2018, the parties and the child flew to Belgrade and the respondent started working on June 20, 2018. The applicant continued working on his Master’s degree online.

[27] In July and August, 2018, the child attended a daycare program five days per week. The respondent was working from 8:30 a.m. to 4:30 p.m. The applicant states that the child was registered in a half-day daycare for the months of July and August that ran from 9 a.m. until 1 p.m. Further, the applicant submits that he would pick the child up and be responsible for her until anytime between 3:30 p.m. and 5 p.m. when the respondent would come home. The respondent states that the child’s daycare program finished at 2 p.m. and the applicant would pick her up at daycare and that at 4:30 p.m. the applicant and the child would pick the respondent up from work.

[28] On August 28, 2018, the parties enrolled the child at the Chartwell International School for one year with the respondent being responsible for paying the fees. Included in the agreement was a clause that allowed for a 30 day notice termination in the event that the respondent’s employment was terminated.

[29] While in Serbia, the respondent was required to be out of town from June 23 to June 28, 2018, and then for 15 hours on September 13, 2018. She also had a three-day meeting just outside of Belgrade from September 5-7, 2018, during which time the applicant took the child to see his parents in Jordan from September 5-11, 2018.

[30] The respondent alleges that during the relationship, the applicant used foul language towards her, was controlling, abusive, jealous, prevented her from inviting friends or neighbours to her home, accused her being in a lesbian relationship, accused her of cheating on him, and accused her of having sex parties when he was away. The applicant denies the allegations. He does admit that the parties’ relationship in the last month was not good because both parties were upset.

Separation

[31] On September 23, 2018, the parties disagree on what transpired but they agree that they separated on that date. The applicant left and went to a hotel. He called the child on Skype every day and saw her Monday, Wednesday and Friday from 4:30 p.m. to 7:30 p.m. and Saturday and Sunday for the whole day.

[32] Neither party retained lawyers. There is no evidence of any discussion between the parties about their future plans. The respondent was working, the applicant was living in a hotel and the child was attending school.

[33] The child had surgery in Serbia for her adenoids and tonsillitis on October 11, 2018. The applicant alleges that the respondent proceeded to have the surgery in Serbia rather than Canada without his consent. The respondent denies this allegation. In any event, as result of the surgery and the travel to Canada, the child’s last day of school was October 8, 2018.

[34] The respondent and the child were scheduled to travel to Canada from October 23 to November 3, 2018 to have the child seen by her health care providers, including her pediatrician and dentist. Prior to leaving, the respondent requested that the applicant consent that the child travel to Ottawa for the two-week period during her half term week off break. The applicant agreed and booked the return ticket for November 3, 2018 from his Expedia account but used the respondent’s credit card to pay for the tickets.

[35] Prior to leaving Serbia, the applicant told the respondent that he did not know if he was coming to Canada when the respondent and the child would be in Ottawa. He indicated that if he did not, his uncle would pick up his belongings from the condominium in Ottawa.

[36] The respondent and the child travelled to Ottawa on October 23, 2018 as planned. In cross-examination, the applicant admitted that on October 21, 2018, he flew from Belgrade to Montréal, Québec. He immediately travelled to Gatineau, Québec where he stayed overnight in a hotel. On October 22, 2018, he went to visit his aunt in Richmond Hill, Ontario. On October 24, 2018, he travelled from Richmond Hill, Ontario to Ottawa, Ontario, at which point he communicated with the respondent his desire to see his daughter.

[37] Prior to leaving Serbia, the respondent became aware that the child’s Italian passport was missing. The applicant denied any involvement. Subsequently, the applicant admitted that he had taken the child’s Italian passport and had given the passport to his lawyer. He also admitted that when he met the respondent in Ottawa, he took the child’s Canadian passport without her knowledge or consent.

[38] On October 28, 2018, the applicant told the respondent, for the first time, that he was not sure whether he would let the respondent and the child return to Serbia. He indicated he would advise the respondent of his position on Monday, October 29, 2018. On that day, the parties spent the day together with the child.

Commencement of proceedings

[39] At approximately 9:40 p.m. on October 29, 2018, the respondent was served with the application, issued on October 29, 2018, the affidavit in support of a claim for custody, a notice of motion returnable November 1 2018 and an affidavit signed by the applicant on October 29, 2018.

[40] The parties appeared before Master Fortier on November 1, 2018, to seek leave to bring an urgent motion before a case conference, at which time the parties consented, on a without prejudice basis, to the following order:

1. this matter is urgent and a hearing shall be scheduled on an urgent basis by Friday, November 9, 2018, or as soon as possible thereafter;
2. the respondent shall file her materials by 10 a.m. on Monday, November 5, 2018; the applicant shall file any reply by Wednesday, November 7, 2018; both parties shall file their factums by Wednesday, November 7, 2018;
3. the applicant shall give his counsel the Canadian and Italian passports for the child in his possession. Counsel for the applicant shall keep the passports of the child, Angelica S., born June 29, 2014. If the child’s passport cannot be located, the parties shall counsel it immediately. Counsel for the applicant shall not return the child’s passports to either party without a written agreement or court order;
4. both parties shall surrender their passports to their respective counsel. Counsel undertake to retain the passports until further written agreement or order of this court;
5. the child shall reside with the parents as follows: a. with the applicant on Friday, November 2, starting at 9 a.m. until 5 p.m.; b. with the respondent from Friday, November 2 at 5 p.m. until Sunday, November 4 at 9 a.m.; c. with the applicant from Sunday, November 4 at 9 a.m. until Monday, November 5 at 9 a.m.; d. with the respondent for Monday, November 5 at 9 a.m. until Tuesday, November 6 at 9 a.m.; e. with the applicant from Tuesday, November 6 at 9 a.m. until 5 p.m.; f. with the respondent from Tuesday, November 6 at 5 p.m. until Thursday, November 8 at 9 a.m.; g. with the applicant from Thursday, November 8 at 9 a.m. until Friday, November 9 at 9 a.m.; and h. other times to be agreed;
6. if, for whatever reason, the hearing has not been held by Friday, November 9, 2018, this access pattern shall repeat pending further order of this court;
7. the judge hearing the matter shall not consider the above schedule parenting time in arriving at any decisions for future access, in that this schedule does not establish a status quo;
8. neither party shall attend in each other’s home until further written agreement or order of this court;
9. the child shall remain in the city of Ottawa, Ontario, Canada, and neither party shall remove the child from Canada pending further order of this court;
10. neither party may apply for any further passports for the child, pending further order of this court; and
11. costs reserved in the amount of $2,000 to the final determination of this matter.

Applicant’s plan

[41] The applicant seeks to have sole custody of the child in Ottawa. In support of that plan, the applicant indicates that he has recently rented an apartment in the same building that the parties were residing in before the respondent purchased her home in Ottawa. He has reached out to the Centennial Public School and made inquiries for daycare services for the child from 7:30 a.m. until 5:30 p.m.

[42] The applicant intends to maintain the same healthcare providers for the child. He is actively seeking employment. He has a support network of relatives who live in different parts of Ontario. His mother is currently residing with him to care for the child. He also has the support of a first cousin and aunt who would be prepared to assist him with the child.

[43] If the respondent remains in Canada, the applicant proposes that the parties have an equal timesharing arrangement.

Respondent’s plan

[44] The respondent proposes that she be permitted to return to Serbia to complete the terms of her employment contract. In Serbia, the child is registered in a well-recognized school, the child and the respondent have an apartment and the respondent has a very remunerative employment which will expire at the end of May 2019.

[45] The respondent indicates that if daycare services are required, she has the funds to make the services available. The respondent’s father is deceased while her mother resides in Italy.

[46] The respondent proposes that the applicant have regular and generous access to the child, including through Skype, telephone, as well in person in Canada, in Serbia and other agreed-upon locations.

[47] The respondent submits that if the applicant lives in the same city as the respondent, the parties will spend equal time with the child. The respondent indicates that she will not go back to Serbia without her child and if required, she will quit her job.

Legislation and Jurisprudence

[48] Subsection 24 (2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”), provides 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, including a parent or grandparent, 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 child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(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) any familial relationship between the child and each person who is a party to the application.

[49] Absent evidence of material change and that an immediate change is required, the status quo is ordinarily to be maintained until trial (see Niel v. Niel, 1976 1925 (ON CA), 28 R.F.L. 257 (Ont. C.A.); Grant v. Turgeon, 2000 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.J.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.J.)).

[50] In making an interim custody order, a court should generally maintain the status quo in the absence of important reasons suggesting that change is necessary in the child’s best interests (McEachern v. McEachern (1994) 1994 7379 (ON SC), 5 RFL (4th) 115). To disturb the status quo, there must be compelling evidence to show the welfare of the child would be in danger in maintaining the status quo, namely the evidence must clearly and unequivocally establish that the status quo is not in the child’s best interests (Miranda v. Miranda, 2013 ONSC 4704, para 26).

[51] The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Further, the only consideration is the best interest of the children in any custody decision (Gordon v. Goertz 1996 191 (SCC)).

[52] No one factor in the statutory definition of a child’s best interests is given statutory preeminence (Wilson v. Wilson 2015 ONSC 479).

[53] In Gordon v. Geortz, 1996 191 (SCC), [1996] 2 S.C.R. 27, the Supreme Court of Canada established the relevant legal principles to take into consideration on a mobility case. The law is summarized in paragraphs 49 and 50 of that decision as follows:

[49] The law can be summarized as follows:

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
6. The focus is on the best interests of the child, not the interests and rights of the parents.
7. More particularly the judge should consider, inter alia: (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 view 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.

[50] In the end, the importance of the child’s remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

[54] In Plumley v. Plumley, 1999 13990 (ON SC), at para. 7, Justice Mary E. Marshman set out the factors to be considered in deciding a mobility issue on an interim basis as follows:

(a) a court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial;

(b) there can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location; and

(c) although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial.

Analysis

[55] Both parties agree that they love their child, that each has the necessary parenting abilities to care for the child and that the child is bonded to both of them.

[56] I find that the respondent was a full-time caregiver the child, with the support of the applicant, from her birth in 2014 until September 2016 when the family moved to Ottawa. I find that since the child’s birth, she has never been away from her mother except for short business trips and when the applicant took the child to Jordan.

[57] Once the parties moved to Ottawa in September 2016, the respondent was employed on a full-time basis, the child was registered in a daycare and the applicant was working on his Master’s degree and caring for the child part of the week. From November 2017 to early February 2018, the applicant was working in Tunisia and the respondent cared for the child.

[58] Both parties allege that they were primarily responsible for all domestic functions, including cleaning, preparing meals, etc. At this stage of the litigation, based on the conflicting evidence, I cannot make a finding as to which party was responsible for the domestic functions of the household.

[59] I find that the applicant was aware in the fall 2017 that the respondent was seeking employment. While the applicant submits that he had hoped the employment was in North America, I find that the applicant was aware that the respondent was applying for a position with the United Nations, which involved travel outside of North America.

[60] I find that when the respondent was offered the position in Serbia on March 28, 2018, the applicant was happy for the respondent despite the serious strains in their relationship, which were to such an extent that the respondent had retained counsel in February 2018.

[61] I cannot make a finding as to whether or not there was the abuse alleged by the respondent or the breach of the confidentiality of her email account and telephone by the applicant. That issue will be best reserved for the trial judge.

[62] I find that the parties’ relationship was so poor that she retained counsel to draft the cohabitation agreement and that there was a series of exchange of emails between April 26 and May 7, 2018. It is fair to say that all was not well in this relationship prior to moving to Serbia.

[63] On June 14, 2018, the parties moved to Serbia, rented an apartment, enrolled the child in a school and the respondent started a new employment while the applicant maintained his studies online for his Master’s degree.

[64] I do not find that the decision to move to Serbia was based on the agreement that the applicant would be the main caregiver of the child. Firstly, the child was placed in daycare in the months of July and August 2018 and then was registered to start school on a full-time basis effective September 2018. If the applicant was the main caregiver, why was a four-year-old child registered in daycare and school? I accept the evidence of the respondent that both parties cared for the child after daycare and school. Secondly, I find that the relationship was under significant stress prior to the parties moving to Serbia with the respondent retaining counsel to attempt to negotiate a separation agreement before the parties left. Thirdly, I accept that the move of the parties to Serbia was on a trial basis. Fourthly, the terms of the cohabitation agreement, although not signed, clearly show that the respondent considered herself to be the main caregiver of this child. Looking at all the factors overall, I do not find that the move to Serbia was based on an agreement that the applicant would be the main caregiver of the child.

[65] I do not find that the travel requirements of the respondent’s employment will impair her ability to care for her child. Since June 2018, the respondent has traveled without the child approximately three times, with one trip being 15 hours.

[66] Despite having separated on September 23, 2018, the applicant did not advise the respondent that he wanted the child to remain in Canada. The first time that the applicant made his position known to the respondent was when the respondent was served with the pleadings on the evening of October 29, 2018. I find that the applicant took the opportunity of the respondent returning to Canada with the child to commence proceedings to prevent the applicant returning to Serbia with the child.

[67] In cross-examination, the applicant indicated that he could reapply for a job in Tunisia, that he is currently trying to find a job at Shoppers Drug Mart on a part-time basis until he can find a full-time job and that because of his emotional state, the completion of his Master’s degree had been delayed until June 2019. The applicant provided no medical evidence to support statement. Once he completes his Master’s degree, the applicant testified that he was prepared to seek international jobs but that he could not think about it at this time.

[68] The only evidence that the applicant has the financial ability to care for the child is a statement made by the applicant. Neither party filed a financial statement. Currently, he has no employment income but is applying to work either part-time or full-time. He has not worked since February 2018 and that employment was in Tunisia. He never worked in Ottawa from September 2016 to June 2018.

[69] I acknowledge that neither the applicant, the respondent nor the child speaks Serbian or have significant ties to Serbia. The respondent owns a home in Ottawa and the child’s health care providers are here. The applicant’s only connection to Ottawa is that he lived here from September 2016 to June 2018. All of his family support is outside of the city of Ottawa. There is no evidence that the respondent does not intend to return to Ottawa. She acknowledges she is not sure of the future.

[70] My decision is a temporary order under the Children’s Law Reform Act. Counsel have framed their submissions as this being a mobility case. It is the applicant who seeks an order that the child remain to Ottawa albeit she is currently not permitted to leave based on the consent order of Master Fortier. I have considered the three factors set out in Plumley, supra, when considering an interim mobility order.

[71] My focus is the best interests of this child. I find that since June 15, 2018, the status quo for this child is that she is a resident of Belgrade, Serbia where she goes to school. I do not find compelling circumstances change the status quo on a temporary basis.

[72] On a temporary basis, I order that the respondent be granted temporary custody of Angelica and that she be permitted to return to Serbia until further order of this court.

[73] However, the issue of final custody will be decided either by an agreement reached by the parties or a judgment of this court. To that end, I indicated to the parties at the hearing of the motion, this matter will be placed on the May 2019 trial sittings to proceed on a peremptory basis. Further, I will case manage this matter and the parties are to schedule a joint case conference/settlement conference before me to take place in February 2019. Further, if there are any issues arising from this decision or other issues such as disclosure, the parties may contact the trial coordinator’s office to schedule a hearing before me.

Disposition

[74] I order as follows:

(a) the respondent is granted temporary custody of the child, Angelica, born June 29, 2014;

(b) the child’s primary residence will be with the respondent in Belgrade, Serbia;

(c) the respondent and the child will be permitted to travel to Belgrade, Serbia immediately;

(d) the applicant will have access to the child as follows:

(i) Skype/FaceTime access on a daily basis commencing Monday, November 19, 2018, for a maximum time of 30 minutes (this schedule and the maximum time may be varied on the written consent of the parties). In the event of a disagreement, the access will be at 5:00 p.m. (Serbian time);

(ii) from Thursday, December 22, 2018 until Friday, January 6, 2019, in Canada, or at a location mutually agreed to by the parties (Christmas);

(iii) from April 19 to April 30, 2019, in Canada or a location mutually agreed to by the parties (Easter); and,

(iv) in the event that the applicant travels to Belgrade, Serbia, upon 14 days’ written notice, reasonable access as agreed to by the parties. In the event of a disagreement, the access will be every second weekday for supper from 4 p.m. to 8 p.m. and one day each weekend.

(e) in the event that the applicant relocates to Belgrade, Serbia, or the respondent moves back to Ottawa, the parties shall share the custody of the child on an equal basis. In the event the parties cannot agree on the schedule, this court shall retain jurisdiction to adjudicate this issue;

(f) counsel for the applicant shall release the child’s passports and the child’s health card to counsel for the respondent by November 16, 2018 at 1 p.m.;

(g) there is to be no change in the child’s health care providers, school or current residence without the consent of the parties or order of this court;

(h) the respondent shall provide the passport of the child to the applicant for his use when travelling with the child. The applicant shall return the passport to the respondent upon the return of his travel;

(i) if either party plans a vacation with the child for more than four days, they will provide the other with a detailed itinerary at least 15 days before said vacation to include the name of any flight carrier and flight times, the accommodation, including address and telephone numbers and the details how to contact the child during the vacation;

(j) both parties are permitted to travel with the child so long as they give the other party the information about the itinerary, travel dates and contact information;

(k) the respondent’s claim against the applicant for table child support and contribution to section 7 expenses is adjourned. The applicant is to provide to the respondent documentary proof of any employment income earned within 14 days of the commencement of set employment;

(l) the respondent shall assume sole financial responsibility for the two airline tickets for the child to travel to and from Belgrade, Serbia to the applicant for access at Christmas 2018 and Easter 2019. The respondent shall have the responsibility to purchase the ticket and provide said ticket to the applicant;

(m) this matters is placed on the May 2019 trial sittings on a peremptory basis;

(n) the parties are to schedule a joint case conference/settlement conference before me to take place in February 2019; and

(o) if there are any ancillary issues that are not addressed in this endorsement, the parties may contact the office of the trial coordinator to arrange a date before me.

COSTS

[75] It appears that the respondent was the successful party on the motion and is presumptively entitled to costs. I request that the parties attempt to resolve the issue of costs by November 23, 2018. If they are unable to do so, the respondent shall provide her written costs submissions not to exceed three pages, plus any offers to settle and a detailed bill of costs by November 30, 2018. The applicant shall file his written costs submissions not to exceed three pages plus any offers to settle and a detailed bill of costs by December 10, 2018. The applicant may file reply submissions by December 17, 2018.

Mr. Justice Mark Shelston Released: November 14, 2018