Court File and Parties

COURT FILE NO.: F237/20 DATE: July 24, 2020 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Martin Berendson Leigh, applicant AND: Monica Cecilia Izquierdo Rubio, respondent

BEFORE: TOBIN J.

COUNSEL: Bayly Guslits for the applicant Debora Brubacher for the respondent

HEARD: July 20, 2020 by Zoom teleconference

Endorsement

[1] There are two motions before the court, one by each party. They are made within an application brought by the applicant (“father”) under the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (“Hague Convention”).

[2] The father asked for a temporary order expanding his access to the parties’ seven-year-old son. Under the order of Korpan J. dated May 15, 2020, the father was granted telephone/WhatsApp access.

[3] The expansion he seeks at this time is for in-person access: seven consecutive days followed by ongoing in-person access until the Hague Convention application is resolved on a final basis.

[4] The respondent (“mother”) asked for an order requesting the appointment of the Children’s Lawyer.

Facts

[5] The parties are the parents of Martin Berendson Izquierdo, born February 23, 2013.

[6] The child lived in Peru from his birth until October or November 2019 when he and the mother moved to Canada. They arrived in this country on November 4, 2019. After their arrival, they sought refugee status. The record before the court does not indicate that these claims have been adjudicated.

[7] The father brought his application for the return of the child to Peru pursuant to the provisions of the Hague Convention by application issued March 4, 2020.

[8] This case was before Korpan J. on April 30, 2020, in part to address the father’s motion for telephone/video access. In Korpan J.’s endorsement of May 15, 2020, the father was granted access at paragraph 4 as follows:

Until further court order and on a without prejudice basis, the applicant shall have telephone/WhatsApp video access with the child as follows:

a) on Wednesdays from 7 p.m. to 7:30 p.m., Saturdays from 1:30 p.m. to 2 p.m. and Sundays from 1:30 p.m. to 2 p.m.;

b) the access shall be age appropriate and child-focussed;

c) the access may include the child’s paternal relatives;

d) there shall be no mention of adult issues or litigation and no maligning of the mother or of the maternal relatives;

e) the telephone/video access shall not be recorded; and

f) the access call shall be facilitated by Javier Alfredo Jimenez Rojas to phone number [redacted].

[9] Korpan J.'s endorsement sets out the circumstances that gave rise to this case in a most helpful and succinct manner. The same evidence that was before Korpan J. was relied upon by the parties on these motions.

[10] Korpan J.’s endorsement sets out the relevant circumstances of the parties and child as of that date as follows:

[8] This is a high conflict custody/access case. There are outstanding and ongoing custody/access proceedings and criminal proceedings in Peru.

[9] The parties’ affidavits are conflicting and cannot be reconciled on this motion. The father complains of regular denial and obstruction of access and of his relationship with the child. The father’s evidence is that he last saw the child briefly on October 7, 2019 when the mother denied access. The father deposes that he and the child spoke by telephone almost every second day. Except for the child’s mother and her partner, the child’s extended family resides in Peru.

[10] The mother complains of the father missing access and of ongoing mistreatment and harassment of her and the child which has resulted in the child’s refusal to go for access. The mother deposes that the father has threatened her life and the child’s and that she is concerned for the safety of herself and of the child. The last access dates mentioned in the mother’s affidavit are July 20, 21 and August 4, 2019.

[11] The child was born in February 2013. The parties separated in late October 2013. They signed an agreement on October 23, 2014 that granted custody to the mother and access to the father. The agreement was approved by the court in Piura, Peru and incorporated into a court order on March 13, 2015.

[12] On March 14, 2016, on the father’s application for denial of access, the court in Piura ordered that the mother follow the access schedule set out in the March 13, 2015 order.

[13] Exhibits to the affidavits of translations of court proceedings in Peru from Spanish to English disclose the following:

• on May 5, 2017, the 10th Family Court of Lima issued a restraining order restraining the father from approaching the mother and the child;

• on April 17, 2019, the Court of Appeals of Piura Second Civil Court upheld the father’s access every other Saturday and Sunday from 9:30 a.m. to 6 p.m. and at other times including Father’s Day, the father’s birthday, the child’s birthday, Christmas and for one-half of school vacations (7 days in a 15 day vacation period and 15 days in a 30 day vacation period), with the mother to be imposed a fine in case of noncompliance. In doing so, the Court of Appeals states:

  2.4 Therefore, considering that the provisional custody must conform to the Multidisciplinary Reports, which stated that the father does not present any psychological problem and that the child wants his father to visit him, but he feels scared when he arrives with the police, it is noted that the presence of the police is required by the father to verify that the mother fails to comply with the visitation rights, who, if respects the rights, would not cause an unpleasant situation that makes the child to feel scared; therefore it is convenient for the child that, as long as the main processing lasts, the child’s contact with his father and the father-son relationship will be guaranteed without any inconveniences, and that this right will not be affected by the mother’s continuous noncompliance, as evidenced by the police records submitted by the petitioner; therefore, since the petitioner has no negative aspects, and he has an adequate family support and housing, the petition is sustained. Additionally, there are protective measures, which must be adopted by the parents, and issued to avoid conflicts between them. While there is a restraining order against the father stating he must not come within 300 meters of her, it is a preventative measure under investigation. To date they have not proven any repetitive non-compliance or child’s exposure to the danger, even more, in the Social Inquiry Report of January of this year, the child stated that he wants his father to visit him, and it was evidenced the father’s interest in maintaining a permanent relationship with his son, for these reasons it is not convenient to abruptly break the father-son relationship son considering the child’s own wish to see him without feeling scared. Consequently, it is evident that the parents care about their child and petition for his custody, and there are very strong ties with both parents, therefore, for the child’s stability, and for the strengthening of the father-son relationship, it is required that the petition be temporarily awarded in portion, taking into account the child’s current vacation dates; likewise, the child is no longer living in the same city as his father;

  2.7 Regarding the main argument presented by the respondent indicates that the petitioner has an established visitation arrangements and that the underlying problem is his sick obsession to cause her problems, it is convenient to state that the grounds supporting the granting of a provisional remedy of joint custody were based upon the proceedings and reports made by the experts of the Multidisciplinary Team, which have not disapproved through any reliable evidence that the provisional remedy causes damage to the minor Martin Berendson Izquierdo;

• on June 5, 2019, the father was arraigned in the 36th Criminal Court of Lima for the crime of minor injuries due to domestic violence against the mother and the child;

• on August 5, 2019, the 36th Criminal Court of Lima referred the issue of suspension of the father’s access to the 10th Family Court of Lima.

[14] Exhibit A to the mother’s affidavit is a translation from Spanish to English of a Peru, Ministry of Women and Vulnerable Populations psychological report conducted on August 27, 2019 with respect to the child, which quotes the child as saying:

I live with my mom, my brothers and my grandmother who has come from Piura to visit me, with my mom I get along well, my dad is in Piura sometimes comes to Lima but when he visits me he brings us police and bothers us, so I get along a little badly, I go to school, I have many friends, I go Well, I like all my courses and playing with my friends, I like living with my mom because I don’t like it with my dad, he takes cops and takes me with him, I cried, I want my mom to be okay because when my dad does bad things, she cries and I want my dad to change.

[15] Exhibit L to the mother’s affidavit is a translation from Spanish to English of a Peru, Ministry of Women and Vulnerable Populations report dated March 11, 2020, that recommends that the child and the mother “do not return to Peru for their physical and psychological safety, in accordance with the documents attached to this letter”, none of which documents are attached to the report at Ex. L.

[17] There is an existing in-person access order in Peru that was confirmed by the Court of Appeals of Piura in April 2019. Since then, the father has been arraigned for the crime of minor injuries due to domestic violence against the mother and the child, the issue of suspension of the father’s access has been referred to the 10th Family Court of Lima, a psychological report has been conducted on the child and the Peru Ministry of Women and Vulnerable Populations has recommended that the child and the mother not return to Peru for their safety.

[11] The father has had limited contact with the child since the release of Korpan J.’s endorsement. It is his evidence that he has been able to speak to the child by audio only on approximately four occasions, for a total of 15 minutes. His evidence is also that the mother is interfering with his access. Most attempts to speak with the child went unanswered. When the child was on the phone, the calls were usually ended abruptly, within minutes.

[12] The father is concerned that the mother is alienating the child against him. He has not had in-person contact with the child since October 2019.

[13] The father argues that in-person access is needed to start repairing the damage to the father/child relationship. In the past he has had access that was positive. He also submits that there is no Peruvian court order that suspended his parenting time.

[14] The mother’s evidence is that since May 2020 the father has seen the child over WhatsApp video calls. The calls are short, as the child refuses to engage for the full 30 minutes ordered. The calls have been facilitated by the mother’s partner, as ordered. The mother describes the father as sometimes being irritated with the child while on the call. She asserts that it is the father’s actions that dissuade the child from participating meaningfully in the WhatsApp contact. She describes them as not child-focused. By late June 2020, the child often refused to take the phone and, when he did, it was to push the off button.

[15] The mother’s evidence is that she has and continues to encourage the child to speak with his father. When she receives texts that say “I love you” or “I miss you” from the father, she shows them to the child and encourages him to speak with his father. She was able to have the child greet his father for Father’s Day.

[16] Both mother and father recognize that the child has a troubled relationship with his father. Each attributes this to the actions of the other. I am not able to determine why this has happened because the parties present untested and conflicting narratives. As Korpan J. noted in her endorsement, “[t]he parties’ affidavits are conflicting and cannot be reconciled on this motion.” This remains the case.

[17] The mother argues that there should be no in-person access because of the threats made by the father on her life and the life of the child. The father denies this threat or being a danger to his son or the mother.

[18] The father made tentative arrangements for accommodations in Canada at the home of friends who reside in Guelph, Ontario.

[19] During argument, father’s counsel advised that the father is not currently in Canada. However, counsel suggested that an order that allows in-person access would assist the father in being able to gain entry to Canada while the COVID-19 restrictions are in place.

[20] There is no evidence before the court that the father’s requested entry into Canada would be considered as an essential (i.e. nondiscretionary) purpose.

[21] If the father is entitled to enter Canada, he would need to quarantine for 14 days upon his arrival.

[22] There is a trial management conference scheduled in this case for August 4, 2020. Further, it is anticipated that this case will be tried within the next four to six weeks.

Jurisdiction

[23] I asked counsel for submissions on this court’s authority to make the requested access order within this Hague Convention application. I did so as it does not appear that the Hague Convention is meant to determine issues of custody and access. The purpose of the Hague Convention is to enforce custody rights and secure the prompt return of wrongfully removed or retained children to their country of habitual residence. It is in that jurisdiction where it is most appropriate to determine issues of custody and access: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, at para. 24 and Geliedan v. Rawdah, 2020 ONCA 254, at para. 36.

[24] The request for access in the circumstances of this case does not come within ss. 22, 23, or 41 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). The issue of habitual residence will be decided within the Hague Convention application (s. 22). The evidence does not give rise to a finding of serious harm with respect to the mother (s. 23). The court is not being asked to enforce an extra provincial order (s. 41). In Ireland v. Ireland, 2011 ONCA 623, at para. 44 the Court held that domestic legislation and the Hague Convention are meant to operate independently of each other. In Geliedan, the Court held that as it relates to return applications there are two fundamental differences between a Hague Convention application and a s. 40 CLRA application. In a s. 40 application, the court has the ability to exercise of a broader range of powers in addition to the return of the child (paras. 33 and 34).

[25] Even though it does not appear that these sections of the CLRA may be relied upon as the basis for granting an interim order, relief may be granted by analogy to undertakings given in Hague Convention cases. In cases where a child is directed to be returned to their country of habitual residence, the court can accept undertakings to ensure the child’s safe and least disruptive return. Any short-term harm to the child can thereby be ameliorated: Thomson v. Thomson, [1994] 3 S.C.R. 551 at p. 599. The acceptance of undertakings is informed by the Hague Convention’s preamble statement that “the interests of children are of paramount importance.”

[26] I am of the view that an order relating to access pending the final resolution of this case is consistent with ensuring that the interests of the child are of paramount importance and that in the short term, the child’s safety and well-being, consistent with his best interests are addressed.

Discussion and Decision

Access

[27] In determining whether access should be expanded, as requested by the father, the test to be applied is whether doing so would be in the child’s best interests.

[28] I find that if the father (a) is allowed entry into Canada and (b) complies with all COVID-19 restrictions, it is in the best interests of the child that he has in-person access to the child twice a week for 75 minutes per visit while supervised by a neutral third party. The visits may be terminated earlier than 75 minutes if the third party supervisor observes the visit to be unduly stressful for the child. This in-person access would be instead of the access provided for at paragraph 4 of the order of Korpan J. dated May 15, 2020.

[29] If the parties are not able to agree upon a neutral third party supervisor, they may return before me as arranged by the trial coordinator, or as directed by the local administrative judge.

[30] While the father is not in Canada, paragraph 4 of the order of Korpan J. dated May 15, 2020 shall remain in force until further order of the court.

[31] This decision is based upon the following considerations.

[32] In determining best interests, s. 24 of the CLRA requires the court to consider all of 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.

[33] The court is also required to take into account evidence of violence and abuse. Section 24(4) of the CLRA provides:

In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child.

[34] It is in the child’s best interests to re-establish and then maintain a positive relationship with the father. There is evidence that this was once the case. In-person access provides an opportunity for the father to demonstrate that he is a loving, caring and empathetic parent.

[35] The mother recognized the importance of the relationship between the father and child. She supported a safe relationship in the past. The parties were able to reach an agreement following their separation.

[36] The only objective evidence available regarding this seven year old child’s current views and preferences is his behaviour when video calls are made. Both parents describe similar behaviour from the child. He resists electronic access. Any access plan must allow the child the ability to safely express how he feels. The presence of a third party supervisor will assist in this and can ensure the child does not suffer trauma because of access. An access visit could be ended if unduly stressful for the child. Also, the presence of a neutral third party supervisor should avoid the need to have the police attend to enforce access. In the psychological report conducted on August 27, 2019 by the Ministry of Women and Vulnerable Populations in Peru, the child is reported to have said about the father “… he takes cops and takes me with him, I cried …”

[37] The length of the visit should take into account the child’s current attitude towards his father.

[38] The father did not provide details of the steps that he can or would take to make the child feel at ease during access. Particulars of activities to be engaged in and how he would deal with the child’s upset, if any, were not provided.

[39] While it is not possible to make a finding regarding the mother’s evidence of family violence because of the conflicting evidence, these allegations made by the mother must be considered. There is some evidence from Peru that is consistent with there being family violence caused by the father: a restraining order was issued by a family court in Lima on May 5, 2017 restraining the father from approaching the mother and the child; on June 5, 2019, the father was arraigned in a criminal court in Lima for the crime of minor injuries due to domestic violence against the mother and the child; on August 5, 2019, a criminal court referred the issue of suspension of the father’s access to a family court; and a report from the Peruvian Ministry of Women and Vulnerable Populations, dated March 11, 2020, recommended that the child and mother “do not return to Peru for their physical and psychological safety …” I have taken into account the father’s submission that the information from this Ministry is one-sided and should be approached with caution.

[40] The third party supervisor is to be a person with supervision experience, so as to be able to redirect the father during his access should his conversations or actions require it and, if necessary, to terminate the visit to protect the child from undue stress.

[41] I also take into account that the duration of this order will be relatively short as this case is expected to be heard in four to six weeks.

Children’s Lawyer

[42] The mother asks that the Children’s Lawyer be requested to participate in this case. She wants the child to be independently represented and assessed in light of the allegation that she interferes with access. She also submits that, as the child is a refugee claimant, procedural fairness and natural justice requires that he be represented.

[43] The father opposes the involvement of the Children’s Lawyer. He does so on the basis that the application before the court is under the Hague Convention. It is concerned with the jurisdiction that will decide parenting issues. It is not a custody and access case.

[44] In Balev, the Supreme Court of Canada held that, in determining whether to permit an exception under Article 13 of the Hague Convention, the court should consider and weigh a child’s objection to being removed having regard to the child’s age and degree of maturity (paras. 77-81). The involvement of the Children’s Lawyer may provide the court with this evidence.

[45] In this case, no determination of refugee status has been made but an application in that regard is outstanding.

[46] Having regard to these considerations, I find that a Voice of the Child Report is the appropriate form of involvement by the Children’s Lawyer in this case. However, the completion of this report shall not delay the hearing of this case. Subject to the direction of the trial judge, the trial shall not be adjourned by reason only that the Voice of the Child Report is not available.

[47] For these reasons a temporary order changing the Order of Korpan J. dated May 15, 2020 shall issue as follows:

a) If the respondent (a) is allowed entry into Canada and (b) complies with all COVID-19 restrictions, he shall have in-person access in London to the child that is supervised by a neutral third party, twice a week for 75 minutes per visit. The visits may be terminated earlier than 75 minutes if the third party supervisor observes the visit to be unduly stressful for the child. This in-person access would be instead of the access provided for at paragraph 4 of the order of Korpan J. dated May 15, 2020.

b) If the parties are not able to agree upon a neutral third party supervisor, they may return before me as arranged by the trial coordinator, or as directed by the local administrative judge.

c) While the father is not in Canada, paragraph 4 of the order of Korpan J. dated May 15, 2020 shall remain in force until further order of the court.

d) The Children’s Lawyer shall be requested to expedite the completion of a Voice of the Child Report. However, the completion of this report shall not delay the hearing of this case. Subject to the direction of the trial judge, the trial shall not be adjourned by reason only that the Voice of the Child Report is not available.

e) In the circumstances of the Covid-19 emergency, this endorsement is deemed to be an Order of the court that is operative and enforceable without any need for a signed or entered, formal, typed order.

f) The parties may submit formal orders for signing and entry once the court re-opens; however, this endorsement is an effective and binding Order from the time of release.

“Justice B. Tobin” Justice B. Tobin Date: July 24, 2020