Court File and Parties

COURT FILE NO.: FS-20-16372 DATE: 20200422 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: NHAN THIEN LAM, THI MINH THE LE and NGOC DUNG HUYNH Applicants – and – KUO-CHIEN CHUANG Respondent

Counsel: Farzana Jiwani, for the Applicant Respondent, self-represented C. Tempesta, for the Office of the Children’s Lawyer

HEARD: April 21, 2020

Endorsement

Faieta J.:

[1] The Applicants bring this urgent motion for a temporary order that a custody of Melody Huynh aka Melody Chuang (“Melody”) be granted to the Applicant Nhan Thien Lam and that Melody primarily reside with Lam.

[2] The motion was held via teleconference call today. Present on the call were all parties, including the two Applicants who reside in Vietnam, the Respondent who resides in China and in-house counsel and a clinician from the Office of the Children’s Lawyer. An interpreter also translated the proceedings from English to Vietnamese.

[3] For reasons described below, I have granted the temporary order sought.

Background

[4] Melody is a ten-year old girl. Her parents are the Respondent Kuo-Chien Chuang (“Kevin”) and Thi Minh Tam Huynh (“Tam”).

[5] Tam and Kevin starting living together in Toronto in 2008. Melody was born on February 27, 2010. Tam and Kevin married in March 30, 2010.

[6] In September 2011, Tam left Kevin and moved to Vietnam with Melody where she lived with her parents, namely her mother, the Applicant, Thi Minh The Le and her father, the Applicant Ngoc Dung Huynh.

[7] In May 2013, Kevin moved to Vietnam and joined Tam, Melody and her family. It appears that Kevin and Tam returned to Canada about one year later and left Melody to be raised by her maternal grandparents.

[8] Tam returned to Vietnam in early 2015 and upon her return to Toronto in March 2015 found that Kevin had abandoned their apartment. At that time, Kevin told Tam by telephone that he was moving to Taiwan and he left no contact information.

[9] Melody lived with her maternal grandparents for about six years until her return to Toronto in September 2017 where she lived with her mother Tam. It appears that neither Tam nor Melody had contact with Kevin since January, 2015.

[10] This Court granted Tam sole custody of Melody on February 26, 2018 following an uncontested trial.

[11] Tam was subsequently diagnosed with cancer. She made a Will on June 5, 2018 which states:

If I die before my child, MELODY CHUANG, has attained the age of majority, I appoint my mother, THI MINH THE LE, of Nha Trang, Vietnam to have custody of my child; but if my mother THI MINH THE LE is or becomes unable or unwilling to act, I appoint my father, NGOC DUNG HUYNH of Nha Trang, Vietnam, to have custody of my child.

Thi is my mother and my child’s grandmother. In September, 2011, I left Canada and moved to Vietnam with my daughter Melody because I was experiencing physical, psychological and emotional abuse from Melody’s father Kevin Chien-Chuang. In Vietnam, Melody and I lived with my parents at their home, located at 42A Thai Nguyen. Melody learned Vietnamese and her father had infrequent contact with her. I decided to move back to Canada on my own because I wanted to make sure that Melody would no longer witness the conflict between me and her father. During this time, Melody became very emotionally attached to my mother. My mother cooked for her, bathed for her and attended to all her emotional needs. Melody lived with my parents between September 2011 and September 2017.

In and around November 2014, Mr. Chien-Chuang and I had a huge fight and he became extremely violent. He put a knife to my throat and threatened to kill me. We separated on March 1, 2015 and Mr. Chien-Chuang has not seen Melody since.

Since then, I brought an application for custody of Melody and brought her back from Vietnam to Canada on September 6, 2017. On February 26, 2018, I was awarded sole custody of Melody because of the history of his violence towards me.

I have serious concerns about Melody’s father, Kevin Chien-Chuang, looking after our daughter on a full-time basis for the following reasons:

(1) Mr. Chien-Chuang has not seen Melody since our separation dating back to March 1, 2015;

(2) Mr. Chien-Chuang has not made any contact with me or my parents to see Melody;

(3) Mr. Chien-Chuang has provided no financial assistance since we separated;

(4) Mr. Chien-Chuang has a violent temper and I fear that he may harm Melody if he gets angry;

(5) When I was six months pregnant, I threatened to leave. Mr. Chien-Chuang stripped me naked, tied me up in my basement and began pouring ice cold water on me, from head to toe;

(6) When Melody was six years old, I tried to leave the relationship again. Mr. Chien-Chuang tied me up for one day, took my phone, keys and bank card;

(7) I believe that it would be in my child’s best interests if she was to live with my parents on a full-time basis because my parents have and will continue to provide my child with a stable environment that is filled with love and support.

[12] Tam died on March 22, 2020.

[13] Tam’s parents were unable to travel to Canada to attend Tam’s funeral due to travel restrictions resulting from COVID-19.

[14] Melody has lived with Tam’s boyfriend, David Gurr, since Tam’s death until April 8, 2020.

[15] Since April 8, 2020, Melody has resided with the Applicant, Nhan Thien Lam (“Lam”), his spouse and their two young children (a six year old girl and a seven year old boy) in Guelph, Ontario. Tam and Lam’s spouse knew each other when they were children in Vietnam. They have visited Tam and Melody on a number of occasions in the last year.

[16] Lam’s affidavit states:

Tam’s family asked my wife and I to look after Melody because Melody and Tam knew us well. Tam also asked my wife and I to care for Melody in case she is incapable due to her illness until her parents are able to come to Canada.

The and Dung asked us to pick up Melody from David [Gurr]’s house. After more than two weeks of communication with David, myself, The and Dung, David finally let me pick up Melody on April 8, 2020.

Melody gets along fine with Lincoln but is particularly close to Andrea. They play girl games together and ask to sleep together whenever Melody stays overnight. It is in Melody’s best interest to have temporary custody and primary residence with me until her grandparents can travel to Canada. We speak the same language as Melody and her grandparents, give her Vietnamese food, she can play with my children who she is close to and we have a stable loving environment to assist her through this very sad situation.

[17] Kevin resides in China. He states that his mother resides in Toronto and he submits that he will seek an order granting his mother custody of Melody. His whereabouts were discovered yesterday by Ms. Jiwani after she received a responding call from his Aunt who provided Kevin’s telephone number and email address.

[18] The Office of the Children’s Lawyer submitted that while they will provide services in this case, they have not yet determined the type of service to provide; either an OCL report or legal representation of Melody with a clinical assist. Ms. Tempesta submitted that while the OCL does not yet have a position to take on behalf of Melody, it may be appropriate to grant custody of Melody to Lam on a temporary basis as they recognize the immediate need for someone to have decision-making authority pending the completion of their work.

Conclusions

[19] Melody is a girl that has suffered a tremendous personal loss. It is fortunate that her mother had parents and family friends that are willing to step in immediately to provide her with a stable, supportive and familiar home. I find that it is in her best interests for Melody to temporarily reside with Lam and his family and to grant Lam temporary custody of Melody on a without prejudice basis to the Respondent father’s position.

[20] Order to go as follows:

(1) Pending the return of this motion, on a temporary, without prejudice, basis: a. Lam is granted full decision-making authority in relation to Melody; b. Melody shall primarily reside with Lam;

(2) The Respondent shall deliver a completed Intake Form, including his current address in China, to the Office of the Children’s Lawyer within 24 hours;

(3) A case conference shall be held on May 19, 2020 at 10:00 am. Call-in details will be provided to the parties by the Court. A Vietnamese interpreter shall be made available.

(4) There shall be no costs in respect of this motion;

(5) This order takes effect without a formal order being signed and entered.

RELEASED: April 22, 2020

Faieta J.