Court File and Parties

Court File No.: FS-10-0006199 Date: 2023 03 27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Samir Thapar v Ashlee Dubreuil

Before: Fowler Byrne J.

Counsel: Laura E. Oliver, for the Applicant Respondent, self-represented

Heard: March 21, 2023

Endorsement

[1] The Applicant Samir Thapar (“the Father”) has brought a motion seeking an order granting temporary sole-decision making responsibility for the child, S.D.T., who is currently 12 years old. In the alternative, he seeks sole decision making authority with respect to the child’s education. Finally, he seeks an order that the child’s temporary residence be with him in Delhi, India. This will require that the current temporary order, giving the Respondent Ashlee Dubreuil (“the Mother”) sole decision making power and primary residence, be varied.

[2] At the hearing of this motion, the Mother sought an order that the child be immediately returned to her care in Canada. Unfortunately, as I advised the Mother, she has not brought a motion that requests that relief. She is able to bring such a motion, but she must do so with notice to the Father and must provide affidavit evidence in support of her request.

I. Litigation Background

[3] According to the Father, the parties met and started dating in 2009. The Mother became pregnant and the child was born on April 27, 2010. It does not appear that the parties lived together. The Mother states that she and the Father were engaged in 2008, but that she broke it off.

[4] Neither party can provide much detail, but it appears the Father commenced proceedings in 2010, which resulted in a temporary order with respect to parenting. According to the temporary order of Justice Coats, dated June 27, 2011 (“Coats Order”), the parties entered into Minutes of Settlement whereby the Mother was to have sole custody of the child (as it was known then), and could make all major decisions for the child’s health and education. The Father was given daily access to the child, by Skype or other similar videoconferencing. When the Father was in Toronto, he was to have daily access to the child. The child’s primary residence was to be in Canada.

[5] At the time of this temporary order, the Father had different counsel and the Mother had counsel. Father’s current counsel did not have a copy of the original Application, as it was in storage with the court. She did not have enough time to wait for its retrieval, she states, due to the urgent nature of this matter. For unknown reasons, the file has not yet been retrieved from storage, and I have ordered that it be retrieved immediately. Accordingly, I have no information regarding the parties’ claims when this litigation commenced.

[6] This motion was originally brought as an urgent motion and was referred to an early case conference. Nothing was resolved at that conference and this motion was scheduled. At the first attendance for this motion on March 6, 2023, the Mother sought an adjournment, which was granted on terms. One of those terms was that the Mother forthwith deliver to the Father a copy of the child’s birth certificate and immunization record, and that the child be enrolled in Pathways School, Gurgaon for this academic year. As of the date this motion was heard, the Mother had not yet done so, preventing the child from starting at his new school.

[7] The Father’s counsel also discovered that the Mother has never filed her Answer or Financial Statement. In the Coats Order, the Mother was given until July 15, 2011 to do so, but it appears it has not yet been done. Also, in accordance with the Coats Order, the Father was to provide an income analysis by August 31, 2011. I have no evidence that this was ever done. A case conference had already taken place prior to Coats Order. There was supposed to be a combined settlement conference and trial management conference on September 22, 2011, and the matter was to proceed to the trial sittings in November 2011. None of that occurred. It is not clear why.

II. Issues Now Before the Court

[8] It appears uncontested that from the date of the Coats Order, the child resided primarily with the Mother, mostly in Canada, but sometimes in India. In December 2022, the Mother and the child were living in Ontario and the Mother sent the child to India for 3 weeks to visit with the Father. The child is currently in grade 8, and arrangements were made for the child to continue he studies online with his school in Toronto, Rosedale Day School (“RDS”), with the intention that he graduate on time with his classmates.

[9] At first, it appeared that both parties were happy with the arrangement as the Mother was having a difficult time with the child’s behavioural issues and the Father welcomed his visit as a diversion from his “stressful” situation.

[10] It appears the child stayed in India longer than the original three weeks. On January 24, 2023, the Mother sent an email to the child’s school and the Father stating that she had full custody and demanding that the child be removed from RDS. She indicated that the child would not go to the maternal grandmother, who resided in the Toronto area, and stated “let his father take care in India.” Nonetheless, the school confirmed its willingness to work with the child until he was enrolled in school in India. The Mother confirmed that she did not want to continue with the RDS and indicated she was enrolling the child in American Embassy School of New Delhi (“AES”), which is in India. In a follow up email to RDS on that same day, she stated,

…you must remove him asap so he can stay in India let his father handel [sic] this now that he has let this happen in our relationship my son is out of control, His father is letting him do whatever he wants and talks to me like I’m not his mother anymore so its best due to other issues untill [sic] [the child] and I can heal your relationship he stays in India I will never be able to work with the teachers…

[11] As a result of this correspondence, RDS removed the child, stopped the online learning and indicated that the child could not graduate with his class at the end of grade 8 unless both parents met with the school to develop a plan and the tuition was brought up to date.

[12] The Mother’s reasons for taking the child out of RDS are confusing. In her affidavit she states:

Knowing the danger and risk, I took [the child] out of school due to being worried he would come back to Toronto to my mother, and I am concerned about certain safety issues that have happened post elections. I made a mistake enrolling [the child] into the Phoenix Basketball team, as bad association spoils useful habits, I was robbed for laptops money bank fraud and phones from kids on the team.

[13] The Mother claims that she has done everything necessary to have the child enrolled in AES. Unfortunately, they were at capacity for the year.

[14] The Father states that he tried to register the child in another school in India, namely the American International School. He claims the Mother found out and intervened, advising the school that she had custody and would not permit it.

[15] The Father has now indicated that the child has been accepted into Pathways School, Gurgaon, but it is conditional on receiving a copy of the child’s immunization records and his transcripts from the RDS.

[16] The Father argues that he requires temporary sole decision making authority with respect to education so that he can get the child back in school. The Mother has not cooperated with him in that regard. He also seeks sole decision making authority for medical issues because he believes the child is in need of counselling or therapy having lived with the Mother and her mental health challenges, as detailed below. The Father also wants a copy of the child’s birth certificate. The Father seeks to obtain a “Overseas Citizen of India” card which will reduce the child’s tuition fees. Based on the child’s pending commencement of studies at the Pathways School, Justice Chang, on March 6, 2023 ordered that the Mother provide the child’s immunization records and a copy of his birth certificate.

[17] While this motion is primarily about the child’s continued education, the centre of the dispute between the parties is their ongoing conflict. The Mother has alleged that the Father is abusive and has manipulated the child against her. The Father claims the Mother has become unstable, especially since the summer of 2022. He claims she has no permanent address and is bi-polar, has Oppositional Defiant Disorder and Histrionic Personality Disorder. He is worried that if the child is returned, there will not be a stable environment for him. He states the Mother is not able to make decisions for the child that are in his best interests. The Father’s position is supported by the maternal grandmother, Sharon Dubreuil.

[18] The Father’s allegations as to the Mother’s mental health status has resulted in hundreds of pages of response by the Mother. In particular she states:

a) She is the CEO of an international energy efficient lighting company; b) Her mother Sharon Dubreuil, is mentally ill and tried to kill the Mother when she was a child, that her mother beat her as a child and that she was in and out of mental institutions; c) That she was physically abused by the Father in 2010; d) The Father is in a court battle in India and “they” have taken his passport as of December 15, 2021 for tax issues; e) All of the child’s behavioural issues are a result of the Father’s broken promises to the child and the Mother; and the Father’s financial abuse of the Mother and child; f) She claims she has never beaten the child.

[19] In addition, the Mother has filed numerous letters of support, including from her fitness and nutrition coach, attesting to the Mother’s ability to parent and her work in preparing a food manual for the child’s trip to India. She provided a letter from a CEO of a production company confirming that the Mother was an actor in one of his productions. She provided another letter confirming the Mother’s involvement in a television production as a host, and attests to her talent in her work. She provided a letter from another work associate who claims she observed the Mother as having a healthy relationship with her son. She also provided a letter from a media production company in India explaining her work with them, attesting to her character and love of children. Some letters attest to violence on the part of the Father. These letters are at best, hearsay, and are not particularly helpful for this court nor do they address the best interests of the child.

[20] The Mother though, has also provided evidence of her mental health. She has confirmed that she has been treated by the Centre for Addiction and Mental Health (“CAMH”) after experiencing depression and post-partum depression after being misdiagnosed with a pregnancy complication in the last few years. She claims she is also dealing with pressures and the impact on her businesses due to COVID-19.

[21] The Mother also provided a number of letters from her health providers in support of her mental health.

[22] First, the Mother provided an undated letter from Dr. Rosenblat-Billings, a psychotherapist, who indicated that she had been working with the Mother since June 30, 2022. Mr. Rosenblat-Billings indicated that she recommended that the Mother reach out to Centre for Addiction and Mental Health (“CAMH”), which she claims the Mother did without hesitation. While there, Dr. Rosenblat-Billings stated that the Mother completed a formal assessment, followed a programme and “quit all substances.” Dr. Rosenblat-Billings states that as of December 8, 2022, the Mother has been sober of all substances for four months. She claims that the Mother’s anxiety has been heightened due to her fears that her son has been turned against her.

[23] The Mother has also provided a letter from her family doctor, Dr. Nadine Majid, dated February 9, 2023. The doctor indicated that the Mother was struggling with trauma from her childhood and that she suffered from post-partum depression following the birth of the child. She also stated that the Mother experienced mood decline following a pregnancy that had to be terminated. Dr. Majid also indicated that the Mother is in counselling for trauma, anxiety, and history of partner abuse. Dr. Majid also confirmed that ongoing stressors for the Mother led to substance abuse The Mother voluntarily sought help with CAMH and has ceased using substances. A random urine test was done on that day, and the Mother requested a hair follicle test. The results were pending for both. Dr. Majid’s letter concluded:

In August when [the Mother] voluntarily presented to CAMH at the suggestion of her psychotherapist and her psychiatric assessment at that centre was a diagnosis of Manic disorder fitting criteria for Bipolar II disorder. Ms. Dubreuil has demonstrated insight and eagerness to manage her mood and to the best of my knowledge remains free of drug abuse (other than cannabis)/alcohol. She has followed up regularly with me since that consultation and has been consistent with obtaining refills of her medications before they run out suggestive of good compliance. She has maintained a relationship with her psychotherapist and appears to have an excellent therapeutic relationship with her. I have read a recent summary provided by her therapist Dr. Rosenblat-Billings and her assessment is consistent with my clinical experience and impressions of Ms. Dubreuil.

On a follow-up visit with me December 28, I have documented in my notes Ms. Dubreuil expressing joy in her effort and decision to reunite her son with his father in India, she expressed hope that it would positively impact their relationship. She has had several follow-ups with me since in distress over this decision, as she tells me it has led to her son being given false information about her and her interactions with him since they are strained. Her distress and heightened anxiety since her son travelled to India is very apparent in my interactions with her. She continues to demonstrate a strong desire to be reunited with her son and continue to parent him.

[24] The Mother also provided a letter from Dr. Warren Albert, dated February 8, 2023, stating that he has seen the Mother over the last few years for urgent matters. He confirmed a misdiagnosed molar/partial molar pregnancy in March 2021. He was also informed by the Mother that her child had called the police on at least two occasions when they had a disagreement. This was confirmed in a Facetime interview between this doctor, the Mother, the Father and the child on November 25, 2022.

[25] The Mother also provided a handwritten letter from the Centre for Addiction and Mental Health (“CAMH”) dated February 13, 2023 and signed by Dr. V. Stergiopoulos, a professor at the University of Toronto which confirms that the mother was seen at the clinic since August 2022. The writer also confirmed that the Mother had a follow-up on the date of the letter and found to be medically stable.

III. Issues

[26] The following issues must be determined by me:

a) Do I have jurisdiction to make this order? b) Should I vary the Coats Order, dated June 26, 2023, to give the Father temporary sole decision making authority, and primary residence of the child?

IV. Analysis

A. Jurisdiction

[27] At the commencement of this hearing, I asked Father’s counsel whether I had jurisdiction to make this order. At the time this motion was argued, the child was residing with the Father in India.

[28] According to the Coats Order, the child’s primary residence will be Canada. It appears undisputed that for the most part, the child has resided with the Mother in the Toronto region up to December 2022. Section 22(1) of the Children’s Law Reform Act states that this court has jurisdiction if the child was habitually resident in Ontario at the commencement of proceedings. It appears uncontested that in 2010, when these proceedings were commenced, the child was habitually resident in Ontario.

[29] Further, s. 22(3) of the CLRA states that the habitual residence of a child will not change if a child is removed or withheld without the consent of the parent having decision-making responsibility, unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed.

[30] Given the facts before me, I am not prepared to make a finding that there has been acquiescence by the Mother to change the habitual residence of the child. The child has been gone only a few months. While the Mother has not taken any steps to have the child returned, she certainly has indicated her position that she wishes the child to return, both in her affidavit materials and her submissions.

[31] Accordingly, this court retains jurisdiction to hear this motion.

B. Varying the Order of June 26, 2011

[32] In the decision of Thomas v Wohleber, 2022 ONSC 1258, Justice Kurz lays out the test to be met in order to justify a variation of an interim order. At paragraph 45, his Honour sets out the test as follows:

a) Has there been a change in circumstances of the child since the last order? b) Was the change one that materially affects the child? c) Does the change raise exceptional circumstances where immediate action is required? and d) If such a material change is found, the variation must meet the best interests of the child.

(citations omitted)

[33] In the case before me, I have no difficulty in finding a change in circumstances for the child. The Mother agrees that she was content that the child relocate to India on a temporary basis. She then tried to enroll him in school in India, namely the AES, which failed because the school had no room. Also, another significant change is that the child is not attending school, although he is only 12 years old.

[34] Obviously, this change materially affects the child. He is in a completely different country and cannot be admitted to any school.

[35] This change also necessitates urgent action. It has been close to two months that the child has been unable to attend school. While the Father has retained a tutor, this is not sufficient. The child needs to be enrolled in a suitable school. The Coats Order, which gives the Mother the sole authority to enroll the child in school, has not resulted in the child attending school.

[36] Having found a material change, the issue becomes whether it is in the best interests of the child that the Father now have decision making authority for education and health and whether the child’s residency should be changed.

[37] Without hesitation, it is in the child’s best interest that he be in school. He is unable to do so, given the Mother’s refusal to cooperate with the Father to provide the child’s immunization records, birth certificate and educational transcripts. The Mother unilaterally ended the child’s education at RDS. Mother claims to have enrolled the child in another school in Toronto but has taken no steps to have the child returned.

[38] With respect to medical decisions, the court does not have much evidence with respect to the child’s mental health. That being said, parties appear to agree that the child has behavioural issues. It appears uncontested that the child has called the police on his own initiative on a number of occasions. The nature of the text messages between the child and the Mother were inappropriate and hurtful to the child. The significant move to India, away from all the knows, and the erratic removal from school, leaving him in limbo, would cause some turmoil for the child. In these circumstances, counselling or therapy can be of assistance to a child but would be impossible for the Father to facilitate given the Coats Order. He and the child are in India, where the therapy would be sourced, and he has no decision making authority to engage such therapy or counselling.

[39] With respect to parenting time for the parties, the current situation does not accord with the Coats Order. It is not possible for the child to live primarily with the Mother unless she moved to India, and she does not appear to be making those plans. The Father’s videoconference access is no longer appropriate given the child is living with him. As previously indicated, the Mother states that she wants the child to return to Ontario, but she has not taken any steps to do so as of the date of this motion. If she maintains her position that the child has been wrongfully retained in India, she needs to immediately seek legal counsel to understand her options going forward.

[40] It is clear that initially, the Mother agreed that the child would travel to India and continue his education there, first online with RDS and then by applying to have him admitted to the AES. Her refusal to cooperate with the Father to have the child admitted to any other school is not in the child’s best interest. The Father’s plan for the child’s education at this time appears appropriate. The Mother’s ongoing plan for the child’s education does not address the current location of the child. Should the child leave India, this temporary order should be revisited.

[41] With respect to ongoing counselling, I am satisfied that sufficient evidence has been provided that favours the Father arranging for therapy for the child. The Father should be given the authority to do so for as long as the child remains in India.

[42] With respect to the child’s residency, I am not prepared to make any finding as to where the child is now habitually resident. That is better left to a more fulsome hearing where the child’s residency can be properly adjudicated. I am prepared though, to vary the Coats Order as to parenting time only, so that the child can attend school in India.

[43] It should be noted that my consideration of these factors was done irrespective of the Mother’s mental health. My finding of a material change is due to the child’s relocation, temporary or otherwise, and the need for his ongoing education. It appears uncontested that the Mother has suffered from substance abuse and has a diagnosis of bi-polar disorder. There is also evidence that she is currently sober and managing her mental health. The Mother’s mental health, be it stable or not, was not a factor in my decision. I am specifically not making a finding on the status of the Mother’s mental health. My decision is based solely on the child’s best interests on the issue of his education and counselling. That is all that is before me. It is unfortunate that the parties felt it necessary to engage in an acrimonious character assassination against each other and have brought in other people in to assist. Their approach is not child focused.

V. Conclusion

[44] Accordingly, for the foregoing reasons, I make the following orders:

a) The temporary Coats Order shall be varied as follows:

1. Paragraph 1 shall be varied so that the Father has temporary sole decision making authority with respect to the child’s education and physical, psychological and mental health, for the remainder of this school year;
2. Paragraph 2 shall be varied to state that the Father will have primary parenting time with the child in India, with the Mother having parenting time as set out below;
3. Paragraph 3 shall be varied so that the Mother shall have telephone or videoconference parenting time with the child, at a time suitable to the child’s schedule, no less than twice per week, and personal parenting time on a daily basis should the Mother be in India;
4. Paragraph 5 shall be varied such that both the Mother and the Father shall have the right to make inquiries of and be given information by the child's teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with the child. b) Subparagraph 5(b) of the Order of Justice Chang, dated March 6, 2023, remains in force, and should be complied with; c) The Mother shall have 45 days to serve and file her Answer, sworn Financial Statement and Form 35.1 Affidavit; d) The parties shall arrange for a Case Conference to be scheduled no earlier than July 31, 2023; e) The parties are urged to resolve the issues of costs themselves; if they are unable, the Father is to serve and file his Costs Outline and written costs submissions, limited to 2 pages, single sided and double spaced, on or before April 14, 2023; the Mother shall serve and file her Costs Outline, and responding written costs submissions, with the same size restrictions, on or before April 28, 2023; any reply submissions shall be in writing, limited to one page, served and filed by May 5, 2023.

[45] The Mother is strongly urged to seek legal counsel on this matter as soon as possible. The issues are complex and she would greatly benefit from obtaining some professional guidance from an experienced family law lawyer as soon as possible.

Released: March 27, 2023 Fowler Byrne J.