COURT FILE NO.: FC-22-629
DATE: 2022/05/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Karan Bhadauria
Applicant Father
– and –
Caroline Helene Cote
Respondent Mother
Jeremy Dolgin for the Applicant
Julie Guindon for the Respondent
HEARD: April 28, 2022
Endorsement
Shelston, J.
Overview
[1] The parties are the parents of one child namely Meena, who is 16 months of age. The parties separated in August 2021. The parties each had counsel and had negotiated various parenting time schedules with the child, residing primarily in the care of the mother. Without notice to or the consent of the father, the mother flew to France on March 8, 2022, with the child and moved in with her parents in southern France. On March 26, 2022, the father was advised by the Ottawa Police Service that the mother and child were in France.
[2] Both parties agree that the child’s last habitual residence is Ottawa and that the Superior Court has jurisdiction in this matter. Both parties agree that the litigation will continue in Ottawa. The father requests that the child be returned to Ottawa and the mother requests that she be permitted to relocate with the child to France.
Father’s notice of motion
[3] The father requests the following temporary order:
i) The respondent shall immediately return Meena to the City of Ottawa.
ii) The respondent shall not remove Meena from the City of Ottawa without a written agreement of the applicant or an order of the court.
iii) The respondent shall deposit Meena’s Canadian and French passport with the applicant, or the applicant’s lawyer, until and unless, there is a written agreement between the parties or further court order
iv) Upon request and receipt of an original court order, or certified copy of the order, pursuant to section 36 of the Children’s Law Reform Act, the police force shall have jurisdiction in any area where it appears that Meena may be, shall be located, apprehend, and deliver to the applicant.
v) For the purpose of locating and apprehending the child, a member of a police force may enter and search any place where he, or she, has reasonable and probable grounds to believe that the child may be, with such assistance and such force as are reasonable in the circumstances and such entry, or search, may be made at any time.
vi) Paragraph(ii) and (iii) shall expire on April 1, 2023, unless renewed by further court order.
vii) On an interim-interim basis and without prejudice to a motion on this issue following a case conference, the applicant shall have parenting time with the child every Saturdays, everysecond Sundays, and every Wednesdays.
viii) Costs on an indemnity basis.
Mother’s notice of motion
[4] The mother requests the following temporary order:
i) An order granting the respondent’s permission, on a temporary basis, to move with the child to France.
ii) An order granting the applicant parenting time two times per week, subject to the supervision of the maternal grandparents considering the age and development of a 16-month-old child.
iii) A temporary order granting the respondent the decision-making responsibility for the child and requiring her to inform the applicant of any major decisions.
iv) Cost on an indemnity basis.
[5] On April 28, 2022, I took this matter under reserve. Pending the release of my endorsement, based on the consent of the parties, and on an interim-interim basis, I ordered as follows:
- The applicant will have parenting time with Meena as follows:
a) Commencing on May 4, 2022, and until May 11, 2022, every day from 10:00 AM until 4:00 PM.
b) On Thursday, May 12, 2022, from 8:00 AM to 11:00 AM at the Nantes airport.
c) Upon his return to Ottawa, the applicant will have parenting time by videoconference with Meena on Wednesdays and Saturdays at 12:00 PM (Ottawa local time: 6:00 PM local time in Arradon, France), for a duration appropriate to Meena’s focus (attention span).
d) The exchanges will take place at Mairie Centrale de Nantes (Town Hall) and occur in the downtown area.
e) All communications will take place on OFW.
For the balance of the parenting time, Meena will be with the respondent.
The applicant will give Meena’s Canadian passport to his counsel, who will keep this official document in his possession from May 3, 2022, to May 13, 2022.
The applicant will pay child support to the respondent in the amount of $792, based on an income of $85,000 per year, commencing on May 1, 2022.
The respondent will forgive the applicant’s child support payment for the month of May, due to traveling expenses he will incur for the May 2022 visit in France.
Background
[6] The parties met in late 2018, and the relationship quickly grew more serious resulting in the father moving into the mother’s Ottawa home in May 2019. At that time, the father worked for Global Affairs Canada, and the mother was a child psychiatrist in Gatineau, Quebec.
[7] In March 2020, the mother became pregnant with the parties’ first child. The father changed employers in April 2020 to reduce his workload and have a better work-life balance. The mother stopped working on November 2020, returning to work in September 2021.
[8] The mother and father attended prenatal classes in anticipation of the birth. When the child was born in December 2020, the father took six months paternity leave and two months holidays, while the mother was on leave without pay for 10 months. The plan was that the father would be returning to work in August 2021, and the mother in September 2021. The child would be placed in daycare as of September 2021.
[9] After the birth of the child, both parties were at home. The parties disagree on who was the primary caregiver of the child, though the father admits that the mother initially was breast-feeding the child. The father alleges that the mother suffered from complications with the pregnancy and postpartum elements, resulting in her being directed to a specific psychiatrist who specialized in postpartum depression. The mother attended weekly sessions from early 2021 until, at least, separation.
[10] On July 31, 2021, the parties decided to give each other space and he agreed to temporarily vacate the house until August 4, with the family dog and then, returned to take the child for four days while leaving the dog in her care. When the father returned to the home, the mother did not answer the door. After some time, the Ottawa Police Service arrived at the house and told him that the mother was inside the home with the child and that she wanted to separate. The father was permitted to enter the home with the police to collect some personal items. When the father was able to retrieve and open his computer, he discovered that the mother had deleted all his files on his work computer.
[11] The father had his first parenting time with his child on August 8, 2021, at the Museum of Nature, with the mother, the child, and a friend as a supervisor. After the visit, the mother alleges that the child had a scratch on her right arm, but did not show any signs of discomfort. The scratch was observed by the mother and her friend. The father denied that he caused the scratch.
[12] Throughout the month of August, the mother threatened the father with police intervention if he attempted anything without her permission. On August 15, 2021, the mother emailed the father and proposed the following parenting schedule for the father:
Until the mediation, we should have a regular schedule for Meena visits. It will ease planning and organizing the presence of 1/3 party for every visit.
I offer this plan:
Wednesday from 3:30 to 5:30 PM
Saturday from 3:30 to 5:30 PM.
I texted my friends and I should have someone for Saturday the 21st.
We can meet at the confederation park. If it rains, we can meet at the NAC.
If one of the parties is late, I won’t stay.
I am happy to give you space so you can enjoy the time with Meena. If you walk away with or without notice I will call the police.
I will record our discussions. Feel free to do the same.
Have a good night,
Caroline
[13] As the mother was scheduled to return to work in September 2021, the father hoped that her position would soften over time and would allow him to be involved in selecting the child’s daycare. The mother did not change her position and did not involve the father in the selection of the daycare. On September 2, 2021, the mother enrolled the child in a daycare without any consultation or notice to the father.
[14] On September 2, 2021, the mother emailed the father suspending the father’s parenting time unless he signed a mediation agreement. The father signed the mediation agreement.
[15] The mother then insisted that all exchanges for parenting time between the father and the child be supervised by third party. The father did not see the need for any such supervision, but the mother insisted. The parties were able to negotiate a parenting time schedule starting in September with the exchanges to be supervised by Renew Supervision Services as a temporary measure. The father indicates that he was frustrated by the mother’s unilateral action but took a conciliatory approach to try to resolve the issues. The father was able to negotiate his parenting time by seeing the child every Wednesdays from 8:30 AM to 4:00 PM and every Saturdays from 9:30 AM to 3:00 PM with the exchanges to be supervised by Renew Supervision Services.
[16] By September 30, 2021, the mother’s position changed when she advised the supervisor of the exchanges that she did not need their supervision services anymore. However, by mid-October, the mother insisted that the supervision of exchanges be reinstated.
[17] The parties attended mediation on September 24, October 14, and November 8, 2021. The father states that the parties reached an agreement in mediation and with the assistance of their respective counsels, they agreed on an interim parenting agreement. On November 11, 2021, counsel for the father wrote to counsel for the mother the following email confirming the terms of the agreement:
This is to confirm that we have agreed on the following dates:
Every Wednesday until another order, agreement or recommendations from assessor-8h30 to 4h00
Every Saturday (with the exception of December 4th) until Caroline leaves for France on December 12 to the 27th-9h00 to 4h00
We have agreed on these additional days:
November 28th-9h00 to 4h00
December 3rd-8h30 to 4h00
December 5th-9h00 to 4h00
Upon Caroline’s return, Karan will have Meena on:
December 29 and 30th-8h30 to 4h00
starting January Karan will have Meena in his care every other weekend from Saturday from 9h00 to 4h00 and Sunday from 9h00 to 4h00.
(And every Wednesday as specified above).
These alternating weekends shall continue until an order, agreement or recommendations from assessor are made.
[18] In a responding email dated November 12, 2021, counsel for the mother indicated that the mother insisted on the exchanges being supervised. The father objected because the interim agreement did not require that the child be exchanged with supervision but, eventually the father agreed.
[19] On November 30, 2021, the father received a call from the daycare, indicating the child had a fever and she should be tested for Covid. The father picked up the child and emailed the mother that he was the hospital. The mother met the father at the hospital and started to loudly vocalize that “she was afraid of me” to the intake nurse regarding the child. When the father exited the hospital, the mother repeated her statement more loudly to a growing crowd of parents and children waiting admission to the hospital.
[20] In early December, on the child’s birthday, the mother canceled the visit as the child was sick. On December 2, 2021, the mother emailed the father to confirm that the child had been diagnosed with pneumonia by her family doctor. The father’s next visit scheduled for December 5, 2021, was canceled because the child was recovering from pneumonia, but the child returned to daycare on December 6, 2021.
[21] The father last saw the child on December 8, 2021. On December 10, 2021, the mother advised the father that the child had a booster shot, was not feeling well and she canceled the December 11, 2021, visit. The next day, the mother flew to France and returned on December 27, 2021, after visiting her parents with the child.
[22] On December 29, 2021, the father emailed the mother about the resumption of his parenting time, to which the mother replied she was prepared to resume same but insisted that the exchanges be supervised. On December 31, 2021, the mother emailed the father that there was no signed parental schedule agreement and that she insisted that the exchanges be supervised failing which, she would not proceed without them.
[23] In January 2022, the father kept proposing in exchanging the child at the lobby of the Riverside hospital, suggesting the mother to bring a friend, meeting in the public venue of the mother’s choice, meeting at the police station, rehiring the original Renew Supervisor Services, and when the maternal grandmother was visiting from France in February 2022, he suggested that she accompany the mother for the exchanges. All these suggestions were refused resulting in the father not seeing the child. Despite not seen his child, the father would not agree to having Renew Supervision Services supervised the exchanges again.
[24] By way of email dated February 3, 2022, the mother advised the father that her lawyer confirmed that there is no agreement with respect of the parenting time, as the parties have not signed anything and that the parties should go back to mediation. The father refused.
[25] In February 2022, the father proposed that the exchanges be at the child’s daycare, where he had picked up and return the child numerous times in October 2021. On February 22, 2022, the father emailed the mother that he intended to pick the child up at the daycare on February 22, and 25 between 9:00 AM and 3:30 PM. The mother refused his proposal due to safety issues, unless the father signed an agreement proposed by the mother. The father refused to sign the proposed agreement because he did not agree with its terms, the agreement was an ultimatum dictated by the mother, the agreement was written in French, and he did not have an opportunity to meet and review the agreement with his lawyer. In response, the mother withdrew the child from daycare and never returned. On February 28, 2022, the father wrote to the mother questioning why the child was not in the daycare and why he was not having his parenting time. The mother did not reply.
[26] On March 8, 2022, the father emailed the mother inquiring why the child was not in daycare for the past two weeks, and that he has not been provided with any updates of her whereabouts or welfare. The same day, the father emailed the mother indicating his desire to register the child in a toddler swim class. On March 12, 2022, the mother responded positively to the father’s proposal to register the child for a swimming program in the spring, in the city of Ottawa. In the first email, she replied, “that’s a good idea, can you provide me the information about the swim class?”. In her second email, she stated, “Meena is doing well. She is all about dogs: saying wooh wooh and laughing at dogs, reading books about dogs. She walks confidently in the snow. Have a good day, Caroline.” When the mother sent these emails, she failed to advise the father that she was in France and not Ottawa.
[27] On March 13, 2022, the father became aware that the mother had listed her house for sale. The father then contacted the mother’s counsel, who advised him that her retainer with the mother had been terminated. The father emailed the mother. She did not reply.
[28] On March 16, 2022, the father emailed the mother that he was worried about the child’s safety and possible relocation and asked the mother to contact him immediately. The same day the father sent the second email asking the mother to contact him because he would like to know about the child’s whereabouts and if he had not heard from the mother by 5:00 PM on March 16, 2022, he would be contacting the police to report a possible abduction. On March 17, 2022, the father contacted the Ottawa Police Services, and on March 21, 2022, a detective was assigned. On March 22, 2022, the mother was contacted by the Ottawa Police Services at which time, she provided the police with her address, telephone number and agreed that the police could provide the father with this information. On March 26, 2022, the detective advised the father that the mother had moved to France with the daughter and that he provided him with general information about where she was living.
[29] On March 26, 2022, the father attended at the mother’s former residence to discover some of the mother’s friends’ packing up the contents, as the home had apparently been sold. Subsequently, the father discovered that the mother sold the home for $1,250,000.
[30] On March 27, 2022, the father emailed the mother that it had been two weeks since she ended all communications and disappeared with his daughter. He told her that he went to the mother’s home and discovered her friends’ removing items that belonged to the father, including external hard drives, USB sticks that contained over 20 years of past photos and family moments, as well as items related to the father’s employment and secure USB drives.
[31] The father commenced these proceedings, and on April 12, 2022, the father was granted leave to bring an urgent motion.
[32] On April 14, 2022, the mother emailed the father, where she denied his allegations about removing any of his belongings and sent pictures of the child walking in the rain in France.
Legislative and Jurisprudential Framework
[33] The Children’s Law Reform Act, R.S.O. 1990, c. C. 12 provides:
Family Violence
18(2) "Family violence" For the purposes of the definition of "family violence" in subsection (1), the conduct need not constitute a criminal offence, and includes,
(a) physical abuse, including forced confinement but excluding the use of reasonable
force to protect oneself or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property.
Best Interests
24(1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being.
Factors (3) Factors related to the circumstances of a child include,
(a) the child's needs, given the child's age and stage of development, such as the child's need for stability;
(b) the nature and strength of the child's relationship with each parent, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;
(c) each parent's willingness to support the development and maintenance of the child's relationship with the other parent;
(d) the history of care of the child;
(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;
(f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child's care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
Factors relating to family violence
(4) In considering the impact of any family violence under clause (3)(j), the court shall take into account,
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person's ability to care for and meet the needs of the child; and
(h) any other relevant factor.
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person's decision-making responsibility, parenting time or contact with respect to the child.
Allocation of parenting time
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.
Application to related orders
(7) This section applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders.
Change in residence, person with decision-making responsibility or parenting time
39.1(1) A person who has decision-making responsibility or parenting time with respect to a child and who intends to make a change in residence, or in the child's residence, shall notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention.
Notice requirements
(2) The notice shall be in writing and shall set out,
(a) the date on which the change is expected to occur; and
(b) the address of the new residence and contact information of the person or child, as the case may be.
Exception (3) On application, the court may in any circumstance provide that subsections (1) and (2) do not apply, or apply with any changes the court specifies, if the court is of the opinion that it is appropriate to do so, including if there is a risk of family violence.
[34] In Ojeikere v. Ojeikere, 2018 ONCA 372, the court addressed the issue of child abduction the following at paras. 14-16:
[14] The specific purposes of s. 22 include deterring parties from “shopping” for a forum to decide their custody dispute, and importantly, discouraging child abduction. See Brooks v. Brooks (1998), 1998 CanLII 7142 (ON CA), 163 D.L.R. (4th) 715 (Ont. C.A.), at para. 22.
[15] Neither s. 22(1)(a) nor s. 22(1)(b) is itself a best interests test – neither provision asks the court to consider the child’s needs and circumstances as set out in s. 24(1)[2] and the catalogue of best interest considerations listed in s. 24 (2)
[16] But the policy behind discouraging child abduction and requiring a summary return to habitual residence does reflect the Legislature’s overriding concern with a child’s best interests. Child abductions ordinarily harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent’s interests over that of the child.
[35] In McBennett v Danis 2021 ONSC 3610, the court described “family violence” under the recent amendments to the Children’s Law Reform Act as follows:
The definition of family violence specifically recognizes that conduct that may not constitute a criminal offence can constitute family violence for Family Law purposes. The examples of conduct that constitute family violence is expansive, but it is non-exhaustive. The broad definition recognizes the many insidious forms that domestic violence can take other than physical violence and accords each equal weight in the best interests assessment….
The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognize the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.
Position of the Parties
Father’s position
[36] The father submits that the mother abducted the child and moved to France. He submits that the child must be returned to Ottawa, her last known habitual residence, where she lived with both parents and the litigation regarding the determination of her best interests must proceed in the Superior Court of Justice in Ottawa, Ontario.
[37] The father denies the allegations of family violence and submits that the mother has attempted to create a false narrative to legitimize her abduction of the child. He submits that the mother’s actions in the period leading up to March 8, 2022, do not support a finding that she left in distress at the last minute. He submits that the mother’s actions of removing the child from daycare, quitting her job, and selling her house are not the actions of a last-minute decision. The father submits that this was a planned abduction.
[38] The father submits that since the separation, the mother has attempted to limit his involvement with his child by limiting his parenting time, interfering with his relationship with his daughter, and has acted unilaterally regarding selecting the child’s daycare and failing to keep the father advised as to the child’s health and general well being. The father indicates that he was actively involved in all aspects of the child’s life from before her birth and after her birth. He read extensively about creating a framework for the child’s routine, and during his eight months at home, his daughter was his main priority. He states that the mother suffered from complications associated with the pregnancy and postpartum elements, requiring her to see a psychiatrist in postpartum depression starting in early 2021, that lasted after the parties separated.
[39] He realizes that he should have agreed to the supervision by Renew Supervision Services so that he could see his child. He requests that the child be returned to Ottawa, and he seeks the disclosure of the mother’s mental health records and possibly a mental health assessment.
Mother’s position
[40] The mother submits that it is in the child’s best interests to live with the mother in France because she has been the primary caregiver of the child since birth, that she has a stable parenting regime with the child, and that the father does not have a strong relationship with the child.
[41] The mother states that in France, she has an income comparable her income in Canada, a full-time position, medical insurance, a vehicle provided by her employer, 12 weeks of holidays, a work schedule that permits her to retrieve the child from school every night and to be with her on Wednesdays when she does not have school. In contrast, she says that if she is required to return to Ottawa, she will be isolated from her family, subject to psychological abuse amounting to family violence, unable to work as her professional license is no longer valid in Québec, has no place to live, has no vehicle, has no financial support and the father is requesting the same parenting time that he refused to exercise prior to separation.
[42] Finally, the mother submits that the father has been absent from the child’s life since December 2021, that the child is attached to her grandparents and that returning to Canada would break the relationship with her maternal grandparents. The mother proposes that the father shall have videoconferencing parenting time with the child, supervised by her parents, two times per week based on the best interests of the 16-month-old child.
[43] The mother admits that it would have been preferable if she had given the father a notice of her intention to move to France with the child, but based on the father’s threats, harassment, control, intimidation, and lack of good faith to negotiate, she found herself without an employment, without revenue and by herself to take care for child isolated from her family and friends. She felt that she was suffocating with no way out. The mother states that she acted out of desperation after having spent $50,000 in legal fees, supervision of access fees, and loss of income and that she acted to protect her child and provide her with emotional and financial security.
Evidence
[44] I have reviewed two affidavits from the father, two affidavits from the mother and four affidavits from friends of the mother, as well as numerous exhibits to the respective affidavits totalling a record of approximately 400 pages of allegations. None of the deponents of the affidavits had been cross-examined.
[45] The father alleges that the mother was abusive towards him throughout the relationship, including an incident where she threw a glass to a wall, screaming at him because he fell asleep on the couch, physically attacking him during her pregnancy by slapping, clawing or assaulting him, threatening to evict him from her home, assaulting him on February 9, 2021, shattering a jar, being extremely critical and berating him while on a trip to France, telling him that he suffered from a mental illness or a disorder such as ADD. By July 2021, the father alleges that the mother stopped talking to him, would ignore him and on one evening, tore his shirt and drew blood with her nails.
[46] The mother alleges the father psychologically abused her using coercion as follows:
a) Refusal to sign a cohabitation agreement.
b) Refusing to contribute to the expenses of her home.
c) Threatening to break up.
d) Being unaffectionate when she discovered she was pregnant and swearing at her.
e) Refusing to sleep in the same room with her without reason.
f) That the father was unsympathetic when the mother witnessed a pedestrian being struck by a motor vehicle, causing the mother significant stress resulting in her seeking psychological assistance.
g) After the birth of the child, that the father would criticize and insult the mother. Furthermore, the father refused to participate in couple’s therapy.
h) In March 2021, the mother was the primary caregiver of the child and that the father was absent and spent his time shopping and working in the garden.
i) In May 2021, the parties were discussing separation and that the mother proposed going to France for five weeks with the child. At the last minute, the father wanted to reconcile and traveled with the mother and child to France in June 2021. During the trip, the mother paid for all the expenses. During the trip, the father insulted the mother in public and in the presence of the child and threatened to return to Canada and that he would obtain his own apartment.
j) After returning from France in July 2021, the father refused to participate in couples counseling. He continued to harass and criticize the mother.
k) After separation in August 2021, the father threatened to attend at the home and remove the child. The father came on her property threatening her to call an Amber alert. The mother called the police, which allowed the father to enter the home to remove his personal contents at which time the father removed the child’s Canadian passport.
l) Once ad hoc parenting time started, the father taped all the conversations and attempted to intimidate and harass the mother.
[47] The mother further argues that the father attempted to control and dominate her as follows:
a) When she was pregnant, he criticized her driving.
b) He incurred expenses on her credit cards.
c) He purchased items for the child without consulting her.
d) He failed to have the baby crib built before the child was born and failed to have her bedroom ready before she was born.
e) The child’s birth was difficult for both the mother and the child, and she felt that he was not supportive of her.
f) He yelled at her when she was in the hospital for failing to bring the proper clothing for the child.
g) Starting in January 2021, based on the conduct of the father, she started to see a psychologist two times per month.
h) During an interview with the public health nurse regarding proper nutrition for the child, the father controlled the meeting and exaggerated the child’s problems and provided incorrect information.
i) In March 2021, all contact between the father and mother and the father’s family stopped without explanation.
j) Despite causing damage to the mother’s motor vehicle, he convinced the mother to sell her motor vehicle leaving the parties without a vehicle.
k) On July 26 and 27, 2021, the father stood in front of the mother with a knife in his hand and was threatening her. She was terrified. The mother did not call the police because she was concerned that if the police arrived, they would not believe her. The next day, the mother said that the father was loving and gentle and a few days later, she asked him to leave which he did.
l) On July 29, 2021, while the mother was on the sofa with the child, the father sat down beside her completely naked and asked her if he could help her and if they were still a family. That night, she decided to separate.
m) On July 31, 2021, the father intentionally made noise during the night, was very upset and could not control his anger and the mother was fearful. The mother asked one of her friends to drop by unannounced during the evening to avoid the mother being alone with the father, and that she was communicating with her friends regularly throughout the night and if she stopped communicating, they were to call the police.
n) On a visit with the child on August 8, 2021, the father intentionally scratched the arm of the child.
o) By October 2021, despite having an agreement regarding parenting time, the father would not follow the schedule.
p) In November 2021, the father controlled the negotiation of the agreement to allow her to travel to France during the Christmas holidays. The father refused to provide his consent for the child to travel and to deliver the child’s Canadian passport. The father only agreed to those conditions if he was granted parenting time before Christmas. Despite the agreement, the father did not provide the mother with the child’s Canadian passport. Furthermore, the father only provided the consent at the last minute which created anxiety on the mother.
q) In November 2021, the mother agreed to retain the services of Valerie Morinville, to conduct a parenting assessment which the father refused to sign.
r) In January 2022, the father refused the resumption of supervised access exchanges with Renew Supervision Services, and in February 2022, he refused to return to mediation.
[48] The father acknowledges that he and the mother had several fights, but never in front of the child. He alleges that the mother regularly berated him, physically assaulted him, and insulted him and that he did not reciprocate but often retreated and withdrew. He acknowledges that he did swear and say mean things, but that both parents engaged in this conduct.
[49] He denies the allegations by the mother that he used coercion to control her, had no compassion or empathy for her. The father indicates that had his own credit cards and purchased goods and paid for the expenses using his finances. He admits that both parties used each other’s credit cards at different times, that there was an agreement that he would pay for $6,000 in January of every year representing $500 a month, that the mother took $6,000 that the parties had set aside for expenses and used it to paydown her line of credit and that the father paid over $25,000 of expenses to improve the mother’s home.
[50] With respect to the alleged incident with the knife that occurred on July 26, 2021, the father states that he was making a sandwich using a butter knife to spread mustard. The mother was approximately 15 feet away from him in the dining room. The father denies the mother’s allegations as to what happened.
[51] The mother has filed four separate affidavits from her friends in support of her allegations. Upon a review of the affidavits, I make the following findings:
a) None of the deponents of the affidavits likes the father. They criticized his personality, his interaction with the mother, that he intimidated them on March 26, 2022, that the father refused to settle the issue of parenting regarding the child and that the mother’s relationship with the father was conflictual.
b) Many of the allegations made against the father are not based on personal observations but on what the mother has told her friends.
c) That the mother became anxious and had an increased level of stress after starting a relationship with the father.
d) None of the deponents observed the alleged incident with the knife, where the mother alleges the father threatened her.
e) None of the deponents were aware that the mother was seeing a psychiatrist in January 2021. The father alleges that it was for postpartum depression, while the mother does not specifically address the original reason why she started seeking mental health assistance.
f) After the separation, the mother opened up about her relationship and described allegations of coercion and control allegedly exercised by the father.
g) The affidavits disclosed that on July 27, 2021, the mother contacted one of her friends and asked him if she could give him some important personal documents, as she was concerned that the father may take them. The mother gave the documents to her friend, indicated that things were not going well and that she was very worried. The next days, on July 28 and 29th 2021, the mother contacted one of her friends to indicate that there had been another argument, that the father had a knife in his hands and that she was afraid. At the mother’s request on July 29, 2021, one of the friends visited the mother at her home and observed that the mother was very nervous. The mother told her friend not to call the police as they would probably determine that it was simply a domestic dispute. That day, two of the mother’s friends agreed that the mother would send them messages at regular intervals and if they did not receive the message, they were to contact the police. The friends acknowledge that a few days later, the mother asked the father to leave the home and he did
h) The mother met with one of her friends, Caroline Priscille Lonhienne, on March 5, 2022, and told her that if she did not have her child, she did not know if she would have the strength to continue to live. The mother indicated that she had no intention of going to France, that she loved Canada. Six days later, on March 11, 2022, the mother called her friend to tell her that she was in France. Her friend was shocked.
i) On March 26, 2022, the friends were at the mother’s home for packing up her belongings. They indicated that the father was intimidating, as he alleged that some of the effects belonged to him. The affidavits criticize the father for not inquiring about his daughter and deny that any of his belongings remained in the home, despite having no information about what agreement existed regarding the contents. A complaint was made with the Ottawa Police Service by some of the friends on March 27, 2022. No charges were laid but the police advised the father that he was not authorized to enter into the property.
Analysis
[52] The mother did not have the right to remove the child from Ottawa and move to France because she did not have the consent of the father, or a court order permitting such a move. However, if the mother can prove, on the balance of probabilities, that it was appropriate for her to move based on certain factors including the existence of family violence against the mother and or child, the court may permit such a move.
[53] I find that both parents were home with the child from her birth in December 2020, to the end of July 2021. Both parties allege that each other was the primary caregiver as their evidence. I find that the child was with the father for eight months after she was born and with the mother until September 2021.
[54] I find that as of August 2021, the mother unilaterally retained the child, contacted the Ottawa Police Service to advise the father the relationship was over and dictated the terms to the father regarding the parenting time with his own daughter. The mother insisted and the father agreed to retain Renew Supervision Services to act as an exchange point for the child. I find that on September 30, 2021, both parties told the supervisor from Renew Supervision Services, that they no longer needed her services. However, by October 16, 2021, the mother insisted on the service being involved again which they did until December 8, 2021.
[55] I find that on November 11, 2021, the parties entered into an agreement whereby the father would have specific parenting time, the mother would be permitted to travel to France with the child in December 2021, and that upon her return, the parties would follow a new parenting time schedule. I reject the submission of the mother that there was no agreement because it was not signed. I find that counsel had the authority to enter into the agreement which was confirmed by the emailed dated November 11, 2021. The only reply was the insistence that the exchanges be supervised. Furthermore, the parties followed the November 11, 2021, parenting time schedule.
[56] I cannot make a finding that the father canceled or failed to take the opportunity to see his child, as alleged by the mother, as these allegations are denied by the father. This determination must be made after the parties are cross-examined.
[57] I find that the OFW emails disclose that the emails exchanged were informative and respectful. I acknowledge that at times, the father was frustrated, but his comments are not aggressive, harassing, or disrespectful. Many of the mother’s emails are reflected in her email of October 23, 2021, where she stated:
Hi Karan
Thanks a lot for your message. Really appreciated.
Have a good weekend
Caroline
[58] I find that the Renew Supervision Services do not disclose any statements or actions by the father that caused the supervisor to note such conduct in her notes.
[59] The affidavit evidence filed by the mother’s friends contain many based on what the mother told her friends. Despite the lengthy affidavit material filed, none of the deponents had personal observations of any of the allegations of family violence. I accept that on March 26, 2022, when the father attended at the mother’s home and discovered the group of friends packing up the contents, he was very upset as he believed they were packing some of his own property.
[60] The legislature has saw fit to amend the Children’s Law Reform Act to specifically identify “family violence” as a factor to be considered in determining the best interests of children. Further, specific provisions were enacted to address the issue of relocation of children including requiring notice being given except in specific circumstances including instances of family violence.
[61] The court must be cautious in making findings of family violence where the evidence is based on untested affidavits with no opportunity for viva voce evidence. The court should seek documentary evidence such as emails or text messages or some other type of corroborative evidence to allow the court to make at least an initial finding regarding these very serious allegations.
[62] I do not find that the mother has met her burden of proof to show on the balance of probabilities that she was a victim of family violence being primarily psychological abuse and financial abuse. Firstly, the mother’s allegations are denied by the father. The father makes his own allegations of abuse. Secondly, there are no emails or text messages exchanged between the parties that can be considered threatening, worrying, or abusive. The OFW emails are polite, informative, and respectful. Thirdly, many of the allegations made by the mother reflect a problem with the parties’ relationship that eventually resulted in their separation but did not rise to the level of family violence. For example, the failure to attend couples counseling, the failure to enter into a cohabitation agreement and the failure to sleep in the same room as the mother do not amount to coercion. The most serious allegation raised by the mother’s regarding the knife incident is denied by the father. Fourthly, there are no allegations with respect to the father threatening to harm the child except for a scratching allegation in September 2021 which is denied. The allegations of family violence are all, as submitted by the mother, directed towards the mother. Fifthly, I find that none of the mother’s friends were aware that she was seeking mental health assistance. I find that many of the allegations raised by the mother’s friends’ supporting affidavits are based on information provided to the deponents by the mother and not their personal observations. The mother’s friends are supportive of her position and do not like the father. I do not find that these affidavits provide sufficient evidence to find that the mother was subjected to psychological and financial abuse rising to the level of family violence.
[63] Upon a review of the mother’s affidavits and the parenting time proposed in her notice of motion, I find that the mother appears to prioritize the child’s relationship with the maternal grandparents over a relationship with her biological father.
[64] I am troubled by the fact that despite the serious allegations made by the father that this was a planned abduction of the child, the mother has failed to provide corroborative evidence that her decision to fly to France on March 8, 2022, was a desperate act done at the last minute. The mother has not disclosed when she was terminated or resigned from her position as a child psychologist in Gatineau, Québec, what her annual income was in face of the father’s allegation that she was making $450,000 a year, when she purchased the plane ticket to fly to France, when the mother listed her residence for sale, when the sale closed and what were the net proceeds of sale, that she failed to provide a sworn financial statement to indicate her assets and liabilities and has provided no information about her new employment or why she could no longer be employed as a psychologist in Québec.
[65] The mother now concedes that she should have given the father notice of her decision to relocate, but she did not. The mother does not address why she did not commence court proceedings seeking an urgent motion requesting urgent relief such as a restraining order, temporary without prejudice decision-making responsibility and parenting time order. The mother had options. However, the mother availed herself of a self-help remedy by moving to France with the child, and then asking for permission of this court to authorize her actions after the fact.
[66] The parties separated on August 4, 2021. The child was living in the primary care of the mother. The father had limited parenting time with the child. The parties could not agree on the need for supervisor for the exchanges with the child. The parties seem to have reached an impasse where they were not returning to mediation and the father has not seen the child because of the mother’s insistence on the need for the supervisor. There was no pending court proceeding. There was no interaction between the father and the mother except by emails. The mother was employed, owned a home and the child was living with her in Ontario. It was the mother who acted unilaterally to sell her house, quit her job, and remove the child from daycare. She cannot make these decisions and now say that she cannot return to Ottawa because she has no place to live, no job and no daycare for the child.
[67] I do not find it was appropriate for the mother to fail to give the father any notice of her decision to take their child to France then moving the child to France. The mother appears to have determined that she will be the custodial parent of the child and that the father will have parenting time. That is not the mother’s decision. Either the parties will reach a consent or the Superior Court of Justice will make that decision.
[68] Consequently, the child must return to Ottawa, Ontario. I am granting the mother a delay in returning the child, however, if she fails to return the child as ordered, I have directed the police to enforce this order.
DISPOSITION
[69] I make the following temporary order:
a) The respondent shall return the child, Meena, born December 3, 2020, to the City of Ottawa, Ontario, by no later than June 11, 2022.
b) The respondent shall not remove the child Meena from the City of Ottawa, without the written agreement of the applicant or further order of this court.
c) The respondent shall deposit Meena’s Canadian and French passport with the Clerk of the Superior Court, Ottawa, Ontario, and shall not be released without an order of this court.
d) Upon request and receipt of an original court order or certified copy of this court order, pursuant to section 36 of the Children’s Law Reform Act, the police force jurisdiction in any area where it appears that Meena may be, shall locate, apprehend, and deliver the child to the father.
e) For the purposes of locating and apprehending the child, a member of a police force may enter and search any place where he or she has reasonable and probable grounds to believe that the child may be, with such assistance and such force as are reasonable in the circumstances and such entry or search may be made at any time.
f) Once the child returned to Ottawa, Ontario, on an interim-interim basis and without prejudice to a motion on this issue following a case conference, the child shall reside in the primary care of the respondent and the applicant shall have parenting time with the child every Saturdays from 8:30 AM to 4:30 PM, every second Sundays 8:30 AM to 4:30 PM and every Wednesdays from 4:30 PM to 8:30 PM.
g) The parties shall schedule an urgent case conference through the Trial Coordinator’s Office.
h) Commencing on June 1, 2022, and on the first day of each month thereafter until varied by this court, I order that the applicant shall pay to the respondent, table child support in the amount of $792 per month, based on an annual income of $85,000.
COSTS
[70] The applicant father is the successful party on this motion and is presumptively entitled to costs. I request that the parties attempt to resolve the issue of costs by June 6, 2022. If they are unable to do so, I order that the father provide his cost submissions no longer than three pages plus a detailed bill of costs and any offers to settle by June 13, 2022. I order the mother to provide her cost submissions no longer than three pages plus a detailed bill of costs and any offers to settle by June 20, 2022. There shall be no right of reply.
Justice Shelston
COURT FILE NO.: FC-22-629
DATE: 2022/05/24
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Karan Bhadauria
Applicant
AND
Caroline Helene Cote
Respondent
BEFORE: Shelston J.
COUNSEL: Jeremy Dolgin for the Applicant
Julie Guindon for the Respondent
ENDORSEMENT
Shelston J.
Released: May 24, 2022