Court File and Parties

COURT FILE NO.: FS-20-15824 DATE: 20200610 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Heecheol Lim, Applicant AND: Eun Ho Chung, Respondent

BEFORE: Kiteley J.

COUNSEL: Tammy Law, for the Applicant No one appearing for the Respondent

HEARD: June 10, 2020

Endorsement

[1] This is a motion for an uncontested trial and for an uncontested divorce. For the reasons that follow, the orders requested are granted.

Background

[2] The applicant father and respondent mother were married on October 26, 2012 in South Korea. Their son Hayden was born January 25, 2013. The family emigrated to Canada in September 2013. The child has dual Canadian and South Korean citizenship.

[3] The parties separated on November 7, 2018.

[4] Both parties had engaged lawyers and had been involved in settlement negotiations. Through his lawyer, the father notified the mother that he did not consent to her travelling outside of Canada with Hayden. Early in 2020, the father was attempting to serve the mother with a family court application seeking joint custody and equal parenting time.

[5] On February 24, 2020, the mother removed the child without notice or consent of the father. As indicated in his affidavit sworn February 26, 2020, with the assistance of the police the father learned that she had vacated her rented room and had told her landlord and one of her roommates that she was going back to Korea.

[6] The father issued an application in this court and on February 27, 2020, brought an urgent motion without notice. In an order dated February 27, 2020, the father was given sole custody of the child on a temporary, without prejudice basis. As a result of the order, the mother was restrained from removing the child from the Greater Toronto Area without written consent of the father or pursuant to a court order.

[7] In his affidavit sworn March 13, 2020, the father explained what had happened since his earlier affidavit including the efforts made to find the mother and the child. He also said that his father had consulted with an experienced family lawyer in South Korea who advised that he should get a final order for sole custody and file it with the Korean court. He provided a copy of a letter that appears to be from a lawyer that contains that opinion.

[8] In an order dated April 20, 2020, Justice Hood held that since the address of the mother was not known, pursuant to Article 1, the Hague Convention on Service Abroad did not apply and the father did not have to proceed through the Central Authority in Korea. Justice Hood made an order approving service on the mother of the documents up to that point and he authorized future service by email at the specified address and by regular mail to the parents of the mother. In that order, the mother was ordered to serve and file an Answer by May 11, 2020.

[9] The affidavits of service indicate that on April 20, all of the documents were served by email and on April 22, all of the documents were served by mail.

[10] The mother did not file an Answer by May 11, 2020.

Motion for Uncontested Trial and Uncontested Divorce

[11] The affidavits of service indicate that on May 22, 2020, all of the documents filed with respect to these motions were served by email and on May 25, 2020 they were served by mail. I am satisfied that service on the mother has been made in accordance with the order made by Justice Hood dated April 20, 2020.

[12] In an order dated May 29, 2020, Justice Hood assigned this urgent matter to me.

A. Custody of Hayden

[13] The only inference to be drawn from the evidence is that the mother secretly removed the child from the environment in which he had lived for over 6 years of his life and deprived the child of a relationship with his father. That demonstrates that she is not acting in the best interests of the child. I am satisfied on the unchallenged evidence of the father in his affidavits that it is in the best interests of the child that his father have final custody.

[14] In his evidence, the father anticipates that the mother will have access with Hayden but he asks that there be strict terms of supervision. In view of her conduct since February 24, 2020, that is a reasonable request.

B. Child Support

[15] The father has asked for an order that, based on imputed income of $35,000.00 the mother pay child support in the amount of $304 per month starting on June 1, 2020. He has provided evidence as to her education and her employment at the time of her disappearance. She had not provided financial disclosure but I am satisfied with the calculation made by the father in paragraphs 1 and 2 on page 5 of his affidavit that an order for support on the assumptions he has made is reasonable.

[16] The draft order provided does not include a Support Deduction Order (SDO). Counsel may forward the SDO and attached information sheet to my attention for signing.

C. Restraining order

[17] The father has asked for an order restraining the mother from communicating directly or indirectly with the child and has asked for an order that the mother be restrained from coming within 100 metres of the father’s residence, the child’s school and any other place where the mother knows the child to frequent. Given the conduct of the mother, I am satisfied that that order is in the best interests of the child. I note that counsel for the father did not provide the standard restraining order that will engage police enforcement. If that was intended, counsel may forward the necessary material to my attention. In the meantime, I have signed the draft order as submitted.

D. Divorce

[18] The evidence is that the parties separated on November 7, 2018. They have been separated for more than one year. The divorce order is granted.

E. Costs

[19] The father’s counsel has provided a bill of costs listing fees of $15,834.50 plus HST of $2,058.49 for a total of $17,892.99. The disbursements total $10,867 and HST of $1,412.71 for a total of $12,279.71. Of that amount, translation and commission of affidavits and other expenditures total more than $10,000.

[20] In the orders dated February 27, 2020 and April 20, 2020, costs were reserved. As the bill of costs indicates, the father incurred significant legal expenses in each of his motions. He has modest earnings and no savings and incurred significant personal debt. The mother’s conduct is unreasonable and demonstrates her bad faith in addressing a parenting plan in the best interests of the child. That justifies an order that she pay full recovery costs.

Final Order to Go as Follows:

[21] The Applicant shall have final custody of the child.

[22] The Respondent shall have access with strict terms of supervision, as agreed upon in writing between the parties or pursuant to a further court order.

[23] Heecheol Lim and Eun Ho Chung who were married at Chuncheon-si Office, Gangwon-do, South Korea on October 26, 2012 are divorced and the divorce takes effect 31 days after the date of this order.

[24] Commencing June 1, 2020, the Respondent Eun Ho Chung shall pay to the Applicant child support for Hayden Hoesung Lim born January 25, 2013 in the amount of $304.00 per month based on imputed income of $35,000 per year.

[25] Support deduction order to issue.

[26] The Respondent, Eun Ho Chung (born September 22, 1993), shall be restrained from communicating directly or indirectly with the child, Hayden Hoesung Lim (born January 25, 2013), except through the Applicant, Heecheol Lim, and to permit access between the Respondent and the child as agreed upon in writing between the parties.

[27] Except as agreed in writing between the parties or as otherwise ordered by the court, the Respondent, Eun Ho Chung (born September 22, 1993), shall be restrained from coming within 100 metres of:

(a) the Applicant’s residence at 78 O’Connor Cres. Richmond Hill, Ontario, L4C 7N8;

(b) the child’s school, Yorkhill Elementary School, located at 350 Hilda Ave., Thornhill, L4J 5K2;

(c) any other place where the Respondent knows the child to frequent.

[28] The Respondent shall pay to the Applicant full recovery costs in the amount of $30,000.

Kiteley J. Date: June 10, 2020