Court File and Parties

COURT FILE NO.: FC-17-784-02 DATE: 20190322 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHOMCHABA COOK, Applicant AND: DARIN COOK, Respondent

BEFORE: THE HON. MADAM JUSTICE R.S. JAIN

COUNSEL: V. Nagessar, for the Applicant C. Severn as Duty Counsel, for the Respondent

HEARD: March 21, 2019

Endorsement

[1] The Applicant brought a motion requesting an order permitting her to travel to Thailand with the party’s child, Sophie Rosemarie Cook, born December 24, 2009 (Sophie) from April 5, 2019 to April 23, 2019. The Respondent opposes Sophie travelling with the Applicant to Thailand on this occasion.

[2] For the reasons set out below, I am dismissing the Applicant’s motion and making the following order:

1. The Applicant Mother shall not travel to Thailand with the child Sophie Rosemarie Cook born December 24, 2009 from April 5, 2019 to April 23, 2019.
2. The Applicant Mother and Respondent Father shall sign any required consents and cooperate with respect to obtaining and renewing Sophie’s Canadian and Thai passports. Once the new passports are received, they shall be filed with the court. They shall be released to the parties on the same terms as set out in the Final Order of Vallee, J. dated February 9, 2018.
3. If the Applicant Mother travels to Thailand on the planned trip from April 5, 2019 to April 23, 2019, the child Sophie shall reside primarily with the Respondent Father from April 5, 2019 until April 23, 2019. During this period, the Respondent Father shall facilitate and encourage reasonable Skype calls, telephone calls, emails and texts for Sophie and the Applicant Mother. The parties shall schedule make-up parenting time for the Applicant Mother and Sophie to take place both before and after the trip. The parties shall then return to their regular parenting schedule pursuant to the Final Order of Vallee, J., dated February 9, 2018 and the Temporary Order of McDermot J., dated March 13, 2019 until further court order or written agreement.
4. Neither party shall discuss this court case or the change in travel plans for Sophie in a negative or derogatory fashion, (i.e. placing blame on either parent). They will both advise Sophie together that this decision is what is best for her, and they will both positively support Sophie in any disappointment she feels as a result of the decision.

Background

[3] The parties met in Thailand and subsequently had Sophie, (who is their only biological child together). The Applicant has two other children from a previous relationship, Nathan Kanbanchong born November 23, 1997 (Nathan) and Anocha Kanbanchong born May 7, 2002 (Anocha). Sophie was born in Thailand and resided there with the Applicant until 2015. The parties married. The Respondent sponsored the Applicant, her two sons and Sophie so they could come to Canada. The parties separated and subsequently settled the matters of custody, access, child support and mobility in a Final Consent Order of Vallee J. dated February 9, 2018 (the Final Order). The Respondent has brought a motion to change and the parties negotiated the Temporary Consent Order of McDermot J. on March 13, 2019. The parties have joint custody. Recently, the parties agreed to equally share parenting time, (pursuant to the Temporary Consent Order of McDermot J.). The paragraphs that triggered the Applicant’s motion are Paragraphs 21 and 22 of the Final Order which states the following:

21. Neither party will remove Sophie from the Province of Ontario without the consent of the other party, such consent not to be unreasonably withheld. A party who wants to vacation outside of Ontario or Canada, shall make such a request at least 30 days in advance.
22. Commencing in 2019, the Applicant Mother is permitted to travel to Thailand with Sophie for up to four weeks per year, upon providing the Respondent Father an itinerary, contact information for Sophie at the destination, travel dates and times, carrier information, and destination.

Analysis

[4] As stated by Magda, J. “The standard for the determination of this matter is what is in the best interests of the child.” The best interest’s criteria in s. 24 of the Children’s Law Reform Act must be considered and these criteria require, “a careful, judicious and delicate balancing of many individual factors – some of them often competing – depending on the circumstances of the case.” The issue for the court to determine is whether, in the circumstances and based on the materials filed, the Respondent is unreasonably withholding his consent to the Applicant’s proposed trip to Thailand with Sophie. If the Respondent is not unreasonably withholding his consent that ends the inquiry, and the Applicant’s motion fails.

[5] The Applicant submits that the Respondent is withholding his consent unreasonably. She states that it is in the best interests of Sophie that she accompany her on this trip as Sophie has a “strong connection to Thailand as it is her birth country” and it is a part of her heritage. She says this trip was planned for multiple purposes including:

i. The Applicant’s eldest son Nathan is required to serve in the military in Thailand. She needs to obtain proof of this for Nathan’s application for Canadian citizenship. She also needs to show the Thai government proof that Nathan is currently enrolled in school in Canada so that he may be exempt from military service; ii. Visit an ailing relative, (her brother-in-law who has since passed away); iii. Visit with extended family whom they have not seen since leaving Thailand, (the Applicant says they have a strong and loving bond with Sophie);

[6] The court does not give a great deal of weight to the first two purposes submitted by the Applicant as lending strong support for Sophie to accompany her on the trip at this time. Sophie is not required to be present for any part of dealing with the issues surrounding Nathan’s exemption from the military. Regarding the second reason, sadly, the ailing relative has already passed away so this purpose no longer exists.

[7] The court is concerned with the last purpose submitted by the Applicant as it relates directly to the question of what is in the best interests of Sophie. The Applicant asks the court to consider Sophie’s needs and circumstances pursuant to the Children’s Law Reform Act s. 24 (2) (a) (iii) and (b):

24 (2) BEST INTERESTS OF CHILD – The court shall consider all the child’s needs and circumstances, including, (a) The love, affection and emotional ties between 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;

[8] Sophie was born and raised in Thailand for the first five years of her life. The court accepts the Applicant’s submissions that there are love, affection and emotional ties with her extended family in Thailand, (whom the Applicant says Sophie “spent her entire life with prior to the move to Canada”). A trip of this nature would definitely assist in preserving and protecting the love, affection and emotional ties between Sophie and her extended family, whom were involved in her care and upbringing. However, at the same time, Sophie has not seen these family members since leaving Thailand four years ago. Sophie also has close emotional ties with the Applicant and the Respondent. Sophie has lived in Canada for the last four years and the Applicant and Respondent have joint custody. They now share parenting time with Sophie equally. The court has no doubt that Sophie shares deep love, affection and emotional ties with both the Applicant and Respondent. It is the courts view that the emotional ties that Sophie shares with her extended family in Thailand are insufficient reason to justify allowing the Applicant to take the child over the Respondent’s objections as set out below.

[9] Before considering the Respondent’s objections, the court must also consider Sophie’s views and preferences if they can be reasonably ascertained. The Applicant says that “Sophie has been told about the trip and is very excited to be going back and visiting with her grandparents, and family.” Although is understandable that Sophie is excited about the prospect of the trip with the Applicant, the court does not give a great deal of weight to the views and preferences of a 9 year old child on the subject of international travel. At Sophie’s age and stage of development there is little chance that she understands the potential complications, risks and/or benefits. It is very unfortunate that the Applicant discussed the trip with Sophie and purchased the tickets before ensuring the Respondent consented. The parties have joint custody pursuant to the Final Order. They each require the consent of the other to take Sophie out of Ontario or Canada on a vacation.

[10] The Respondent submits that he is not being unreasonable by withholding his consent. He states that this trip is not in Sophie’s best interests and that the risks outweigh the benefits that Sophie may receive from the trip. He says the risks include:

i. The Applicant may not return with Sophie to Canada from Thailand due to her lack of connection to Canada. He says that Sophie has made comments that “Mommy is building a house in Thailand” and “how much she will enjoy living in the village” in Thailand. ii. Thailand is dangerous country that is under military rule and is not a signatory to the Hague Convention. He submits that if Sophie leaves there is a chance that she may never come back because they may not recognize a Canadian custody order or assist in the return of a Thai citizen to Canada. iii. Sophie has been struggling academically and it will not be in her best interests to travel for three weeks in the middle of the school year, missing almost three weeks of school (12-13 actual school days).

[11] The court does not give a great deal of weight to the first risk submitted by the Respondent as a strong objection for Sophie not to travel to Thailand with her Mother. The Respondent provided no context for Sophie’s alleged comments. There is no possibility for the court to consider whether the alleged comments were made independently or Sophie’s understanding of the situation or subject. I repeat the same comments as stated above regarding how little weight a court can give to a 9 year old child’s views and preferences or comments on such complex subjects.

[12] The Respondent submits that the Applicant owns or has an interest in properties in Thailand and therefore she has more connection to Thailand than Canada. However, according to the Respondent’s and the Respondent’s mother, this was known by the Respondent when he entered the Final Order, (because he allegedly assisted in purchasing the properties). Thus, if she does own or have an interest in property in Thailand, the Respondent knew this prior to him agreeing she could travel to Thailand with Sophie. He cannot rely on this as a valid objection now.

[13] The court found the Respondent’s concerns regarding the dangers of Thailand as a country highly speculative and overly suspicious. These risks existed at the time of the parties entering the Final Order. There has been no change in circumstances that has increased the Respondent’s concerns. The Respondent has stated that he is concerned about Sophie being at risk of harm because of the dangers of being forced or coursed into the sex-trade industry. The Respondent’s insinuations are especially troubling in light of how his affidavit alleges the parties met and fell in love. He described how he gave the Applicant “the opportunity to free herself” from the sex trade industry by marrying her and sponsoring her and her two sons in Canada. The court finds it sadly ironic, (and denigrating to the Applicant and her family) that the Respondent tries to use those same allegations against the Applicant to speculate that she would return to that industry or put their daughter at risk. The Respondent provided no evidence that the Applicant has ever put Sophie in danger or acted against her best interests. The Respondent should make his best efforts to be careful around Sophie and not speak in a derogatory or negative manner about her country of origin, her Mother, or her extended family in Thailand. Both Thailand and Canada equally form parts of Sophie’s identity, ethnicity and culture.

[14] The fact that Thailand is not a signatory to the Hague Convention is a concern for the court. However, in the Final Order, the Respondent agreed to allow the Applicant to travel to Thailand with Sophie. The parties met in Thailand and the Respondent has been there more than once. He is not unfamiliar with the country. The court finds that the parties did clearly contemplate that Sophie would return to visit Thailand with her Mother sometimes. Although the Respondent may not have completely understood the issue regarding the Hague Convention at the time, it is reasonable to assume that the parties contemplated the risks and benefits and that is why they included certain mobility and travel terms found at paragraphs 19 through 24 of the Final Order. Pursuant to the Final Order, the Applicant provided the Respondent with her itinerary, contact information for Sophie at the destination, travel dates and times, carrier information and destination pursuant to the requirements of the Final Order. The court finds that the Respondent has not provided sufficient evidence to support his objection that the Applicant is planning to stay in Thailand and never return to Canada with Sophie after this trip.

[15] Despite the insufficiency of the above objections, the risk that the court found most concerning was regarding Sophie’s academic struggles. The Respondent states that Sophie has been struggling academically and it will not be in her best interests to travel for three weeks in the middle of the school year, missing almost three weeks of school (12-13 actual school days).

[16] Sophie is currently in grade 4. Both parties submitted a copy of a letter from Sophie’s school dated March 18, 2019. The Respondent relies on the part of the letter which states that if she goes on this trip, Sophie “will miss some school work” and that “her report card in June may contain “I” (not enough evidence to assess).” He further points out that it states that Sophie “is not currently working up to Provincial Standard in all stands.” He further states that Sophie barely passed grade 3 at her previous school.

[17] The Applicant points out that the letter neither supports nor rejects the idea of Sophie going to Thailand. It says, “As a school we can or cannot support the trip. This is a decision that is up to the parents.” The Applicant submits that Sophie’s first language was not English, thus it is understandable that she is not working up to provincial standards. In addition to the above, the letter states that Sophie has “made huge progress from her June report in the previous grade. Our hope is that parents will support her learning should she be taken on the trip. I am sure she will experience learning through her travel as well.”

[18] Attendance at school is very important, and it should be supported and encouraged by all parents and schools. This is especially important in situations where the child is struggling academically. There was no evidence provided that Sophie’s attendance has ever been an issue of concern. There has been no evidence provided that either parent has not been supporting Sophie academically to the best of their abilities. In fact, both parents strike the court as equally caring and concerned about Sophie’s academic welfare. The Applicant has been attending LINC Language classes since September 8, 2015 to present at the YMCA of Simcoe/Muskoka Immigrant Services. She has communicated with Sophie’s teacher and would have been given some work during the trip, (if Sophie were to go). The Respondent also says that he has been working hard with Sophie to help her progress to her grade level. Despite all of this, both parties and the school confirm that Sophie is having significant struggles academically. Although she has made progress, a trip like this during the school year could have a very detrimental effect on Sophie’s academics and any progress she has made may be lost. At this time, having regard for Sophie’s academic circumstances, as well as the Applicant’s purposes for the trip, the court views it as not in Sophie’s best interests to travel to Thailand for three weeks in the middle of her school year.

[19] The court does not find that the Applicant was deliberately trying to undermine the Respondent as a parent because she assumed he would provide consent to the trip based on the Final Order. This court’s decision should not be interpreted as a negative comment on the parties parenting or decisions. It is obvious to the court that both parties had Sophie’s best interests at heart. They just differ on what they think her best interests are. The court wishes to make it crystal clear to the parties that this decision and Order does not change the Final Order. The Final Order did not clarify whether travel would be permitted during the school year. It was left open for the parties to decide. Since the parties could not agree on that issue, the court had to make the decision for them.

[20] As the court found that the Respondent was not withholding his consent unreasonably, it was therefore unable to grant the Applicant’s request to allow her to travel to Thailand with Sophie on this particular trip. If the trip was postponed until the school summer or Christmas break, the result may have been different. However, this did not appear to be an option and it was not fully discussed during the motion. It is unknown to the court whether it is even possible. If the Applicant decides to travel with her sons to Thailand for the planned trip in April, Sophie shall need to be left in the care of her father, the Respondent. It will be important that the parties cooperate in negotiating make up parenting time for Sophie and the Applicant, (both before and after the trip). It shall also be important that both parties not discuss this court case or the change in travel plans for Sophie in a negative fashion, (i.e. placing blame on either parent). They will both need to advise Sophie together that this decision is what is best for her, and they will need to support her in her disappointment.

JAIN, J. Date: March 22, 2019