Court File and Parties

COURT FILE NO.: FC-17-1599 DATE: 2019/05/22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: YE ZHANG – Applicant v. ZHIWEI GUO - Respondent

BEFORE: Mr. Justice Robert L. Maranger

COUNSEL: Jean Claude Dubuisson, for the Applicant/ responding party on motion Ian Vallance, Evan Carey, for the Respondent/moving party on motion

HEARD: May 16, 2019

Endorsement

[1] This was a motion for interim access by Zhiwei Guo (the father) to his daughter Caroline Guo, born May 13, 2015. Ye Zhang (the mother) has denied access since July 31, 2017.

Overview to Motion

[2] The factual background to this matter can be summarized as follows:

• The parties were married on June 26, 2013.
• On May 13, 2015 their daughter Catherine was born. The parties separated on March 31, 2016.
• On March 31, 2016 the Ottawa Police Services were contacted by the mother and allegations of abuse and violence were made by her against the father. The police did not lay criminal charges, however the Children’s Aid Society was contacted to investigate the matter.
• On May 31, 2016 the Children’s Aid Society of Ottawa closed their file, indicating in part that after meeting with the father and the child they believed that their involvement was unnecessary. They further found that the allegation that the child could be exposed to partner violence was unverified.
• From March 31, 2016 to July 31, 2017 the father had regular access to his daughter and had some involvement in her upbringing. The level and quality of that access and involvement is disputed by the mother.
• On July 31, 2017 all access by the father to Catherine was terminated by the mother.
• The mother has made very serious allegations of violence against the father in support of denying access, claiming that the child would be exposed to serious harm and danger on account of the history of chronic severe violence perpetrated by the father on the mother.

[3] A sampling of the allegations extracted from the mother’s affidavit include: he kicked her in the belly early in the pregnancy knowing that it may cause a miss carriage; he choked her multiple times, including in the middle of the night; he said that if he wanted to kill her, he could do so without leaving a trace; he violently punched her temple using his fist many times. A medical report was filed stipulating that the mother has chronic headaches since 2015 “after her husband hit punched her on the left side of her head”. She also made the allegation that “he is also violent and abusive towards the child ever since she was born”. The allegations are extreme they are concerning. The father denies them categorically.

[4] At the case conference relating to this motion the mother’s conference memo repeated many of the allegations of violence, as a result Justice Engelking ordered that the file be delivered to the Children’s Aid Society to conduct an investigation if it was warranted. The Society opted not to open an investigation on the basis that the new allegations predated those made when they initially conducted an investigation that was closed on May 31, 2016.

[5] The father has since July 31, 2017 through counsel attempted at various times to initiate some access to his daughter Catherine, in truth he has not seen her since that date. It has been over 22 months.

[6] In the meantime the father has taken steps to placate the concerns a court could have concerning the safety of this child if in his care. Firstly, he completed three parenting and counselling courses 1) Men and healing anger management, 2) Just for dad’s the nuts and bolts of parenting, 3) Parenting through high conflict separation divorce.

[7] Secondly, as a further means of “disproving the mother’s allegations that he was violent” he obtained a psycho-diagnostic assessment with a focus on anger issues conducted by an experienced psychologist Dr. Iris Jackson. The report essentially concluded that the psychologist saw no evidence of serious risks that the father would be dangerous or violent. The psychologists report is 10 pages in length it is detailed and comprehensive.

[8] The father is before the court seeking an access order to his four-year-old daughter. The mother resists such an order, save and except some type of supervised access order through the supervised access centre, or by her parents.

Governing Legal Principles

[9] Section 20 (1) of the Children’s Law Reform Act (CLRA) provides that the father and mother of a child are equally entitled to custody of the child.

[10] The decision over custody and access is determined based upon what is in the best interests of the child. Section 24 (2) of the CLRA sets out the criteria for assessing the best interests of a child including but not limited to:

The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(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;

[11] When all is considered, an interim order to for all intents and purposes reintroduce the child to her father at this stage in the child’s life is warranted. The paramount consideration of the court is not the interests of the father or the mother but the best interests of the child. If the current state of affairs is allowed to continue there is a risk that the relationship between the father and child will be forever extinguished. On the evidence before me that is certainly not in the child’s best interests.

[12] That said, given the amount of time that the child has been estranged from the father, the age of the child, and the allegations made by the mother, access should be gradual and for short periods of time, supervised by a third party and in the community. These added steps are made out of an abundance of caution given the mother’s allegations.

[13] This is a case where the Office of the Children’s Lawyer should conduct an evaluation/assessment of the parents, it should be given priority, this because of the following: the age of the child, the history of the matter this is a high conflict matter where further evidence is required given the allegations made by the mother and the denial of access to the child.

[14] Therefore I make the following interim order concerning custody and access to the child Catherine Guo born May 13, 2015:

a) The parties Ye Zhang (the mother) and Zhiwei Guo (the father) shall have joint custody of their child Catherine. The child shall primarily reside with the mother who will make all of the day-to-day decision-making concerning the child’s welfare, on any major decision she shall consult with the father in writing concerning the education, health, and welfare of the child.

b) The father’s access to the child Catherine will commence Saturday the 25th day of May, 2019, for the first 4 weeks it will be supervised by Ms. Nan Wang and will take place in the community (public) such as a restaurant, library, playground movie theater. Thereafter it can be at the fathers home and unsupervised

c) The father will be responsible for picking up and delivering the child this will take place at a public place within walking distance of the mother’s residence.

d) Access for the next twenty eight weeks will be in accordance with schedule “A” attached to and forming part of this order.

e) Unless the pick-up time is stipulated in Schedule A it will be agreed upon by the parties, failing which the time will be either at 10am, 12 noon, 2pm or 4pm depending on the day and duration of the access and in the father’s sole discretion.

f) The parents are prohibited from discussing the litigation or speaking negatively about the other parent with the child.

g) The office of the Children’s Lawyer is appointed with a view to conducting an assessment of the respective parents.

h) Following 28 weeks the schedule shall continue in accordance with the access set out in the 28th week unless varied by order of this court.

[15] I will accept two pages on the issue of costs within 15 days of the release of this endorsement.

Mr. Justice Robert L. Maranger Date: May 22, 2019 Court file # FC-17-1599

Schedule “A” Access Schedule with Father

1. Week One and Week Two: In person visit of 2 hours on Saturday;
2. Week Three and Week Four: Facetime or Skype call on Tuesday (approximately 10-15 minutes) and in person visit of 3 hours on Saturday;
3. Week Five and Week Six: Facetime or Skype call on Tuesday (approximately 10-15 minutes) and in person visit of 2 hours on Tuesday and 4 hours on Saturday;
4. Week Seven and Week Eight: Facetime or Skype call on Tuesday (approximately 10-15 minutes) and in person visit of 3 hours on Tuesday and 4 hours on Saturday;
5. Week Nine to Week Twelve: Facetime or Skype call on Tuesday (approximately 10-15 minutes) and in person visit of 3 hours on Thursday and 8 hours on Saturday;
6. Week Thirteen: Facetime or Skype call on Tuesday (approximately 10-15 minutes) in person visit of 3 hours on Thursday and from 10:00 a.m. Saturday to 10 a.m. Sunday;
7. Week Fourteen: Facetime or Skype call on Tuesday (approximately 10-15 minutes) and in person visit of 3 hours on Thursday and 8 hours on Saturday;
8. Week Fifteen: Facetime or Skype call on Tuesday (approximately 10-15 minutes) and in person visit of 3 hours on Thursday and from 10:00 a.m. Saturday to 10:a.m. Sunday;
9. Week Sixteen: Facetime or Skype call on Tuesday (approximately 10-15 minutes) and in person visit of 3 hours on Thursday and 8 hours on Saturday;
10. Week Seventeen: Facetime or Skype call on Tuesday (approximately 10-15 minutes) and in person visit of 3 hours on Thursday and from 10:00 a.m. Saturday to 10:00 a.m. Sunday;
11. Week Eighteen: Facetime or Skype call on Tuesday (approximately 10-15 minutes) and in person visit of 3 hours on Thursday and 8 hours on Saturday;
12. Week Nineteen: Facetime or Skype call on Tuesday (approximately 10-15 minutes) and in person visit of 3 hours on Thursday and from 10:00 a.m. Saturday to 10:00 a.m. Sunday;
13. Week Twenty: Facetime or Skype call on Tuesday (approximately 10-15 minutes) an din person visit of 3 hours on Thursday and 8 hours on Saturday;
14. Week Twenty-one: Facetime or Skype call on Tuesday (approximately 10-15 minutes) and in person visit of 3 hours on Thursday and from 10:00 a.m. Saturday to drop off at school on Monday;
15. Week Twenty-two: Facetime or Skype call on Tuesday (approximately 10-15 minutes) and in person visit of 3 hours on Thursday and 8 hours on Saturday;
16. Week Twenty-three: Facetime or Skype call on Tuesday (approximately 10-15 minutes) and in person visit of 3 hours on Thursday and from 10:00 a.m. Saturday to drop off at school on Monday;
17. Week Twenty-four: Facetime or Skype call on Tuesday (approximately 10-15 minutes) and in person visit of 3 hours on Thursday and 8 hours on Saturday;
18. Week Twenty-five: Facetime or Skype call on Tuesday (approximately 10-15 minutes) and in person visit of 3 hours on Thursday and from 10:00 Saturday to drop off at school on Monday;
19. Week Twenty-six: Facetime or Skype call on Tuesday (approximately 10-15 minutes) and in person visit of 3 hours on Thursday and 8 hours on Saturday;
20. Week Twenty-seven: Facetime or Skype call on Tuesday (approximately 10-15 minutes) and in person visit of 3 hours on Thursday and from pick up at school Friday to drop off at school on Monday;
21. Week Twenty-eight: Facetime or Skype call on Tuesday (approximately 10-15 minutes) and in person visit of 3 hours on Thursday and 8 hours on Saturday;
22. Repeat Weeks Twenty-seven and Twenty-eight until a further review of how access is proceeding;