COURT FILE NO.: FS-20-16178 DATE : 20240315 ONTARIO SUPERIOR COURT OF JUSTICE SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Vahid Ashkan, Applicant (Responding Party) AND: Nazinin Honarkar Yeganeh, Respondent (Moving Party)
BEFORE: Kristjanson J.
COUNSEL: Ash Mazinani , Counsel for the Applicant Mr. Ashkan, self-represented
HEARD: March 14, by videoconference
Endorsement
Kristjanson, J
1This is an urgent travel consent motion brought by the respondent mother. The mother seeks permission to travel with their 9-year-old son DA to Turkey from March 18 to April 1. The purpose is to celebrate Persian New Year with unidentified family and friends in Istanbul on March 19. The Toronto District School Board (“TDSB”) March Break is March 11-15 (with weekends, 9 days). The proposed travel is thus after March Break. The father opposes the travel because the child is struggling with school, and the trip means he would miss two weeks of school, returning jet-lagged on a Tuesday.
2I find it is not in the child's best interests to travel as proposed. The father's decision to not consent to the proposed travel was reasonable. The mother did not respond to the father's concerns about DA's school and academic performance, and there was no evidence that she considered the importance of attending a meeting important to DA’s future educational supports. The mother's reasons for the trip, to visit "family and friends" for Persian New Year on March 19, were not in the child’s best interests as it would require missing two weeks of school, of particular concern given the child’s poor academic performance. As a result, DA may not travel to Turkey as proposed.
3I also find that the mother acted in bad faith by concealing information and seeking to deceive the father and this Court. She purchased tickets to Turkey while requesting approval for a trip to Florida, and she involved the child in the issue before securing travel consent. I award full recovery costs to the father due to the mother's bad faith conduct.
Facts
Decision-Making Responsibility and Travel
4The parties, who separated in 2019, have two children. One is an adult. The child, DA, is 9 years old and in Grade 4. The parties have joint decision-making responsibility for education, health care, religion and extracurriculars, with the mother able to make a final decision in the event of disagreement.
5The consent court order of Justice O’Brien regarding travel provides:
Neither party shall travel with the child outside the Province of Ontario, Canada, without a notarized travel authorization from the non-traveling parent, consent not to be unreasonably withheld. If the non-traveling party opposes the child’s trip, the non-traveling party shall care for [DA] during the traveling party’s trip.
The Child’s Academic Performance
6DA is struggling at school. The school seeks to identify DA as exceptional and provide him with special supports, as discussed below. DA’s struggles are relevant to the decision as to whether it is in his best interests to take a vacation and miss two weeks of school.
7The school has made a recommendation to identify DA as exceptional, and place him in a special program with special educational supports. In Ontario, public school boards are required to provide special education programs and services to students who are formally identified as “exceptional pupils”, under the Education Act, R.S.O. 1990, c. E.2, and O.Reg. 181/98. An exceptional pupil is a student who has behavioural, communication, intellectual, physical, or multiple exceptionalities that require them to have a special education program or service. Each school board is mandated by regulation to establish an Identification, Placement and Review Committee (IPRC) under the Identification and Placement of Exceptional Pupils Regulation, O Reg 181/98. The IPRC identifies if the child is exceptional and the category of exceptionality, after determining the child’s strengths and needs. The IPRC determines a placement for the child, after considering strengths, needs, and parental preferences. The IPRC decision is made only after a meeting which the parents have a right to attend. The parents also have a right to appeal the recommendations of the IPRC. The IPRC meeting is an important step in identifying proper supports for a child.
8On January 15, 2024, the parents were invited to attend an IPRC meeting scheduled for March 26, to discuss the school’s recommendation. Rather than accepting the school’s recommendation, the parents returned a signed form stating they both wished to attend the IPRC meeting.
9Yet the mother now seeks approval for a trip where she would miss the IPRC meeting. The mother made no mention of the IPRC meeting in her affidavit evidence. There is no evidence as to whether the IPRC meeting could be rescheduled, whether the mother considered the importance of attending the meeting when making her travel plans, or why she planned a trip to Turkey that would require missing the long scheduled IPRC meeting. For parents exercising shared decision-making responsibility for education, this raises a concern regarding the mother’s ability to make decisions in DA’s best interests.
10On DA’s report card of February 20, of the six areas of learning skills and work habits, he received five “needs improvement”, and only one “satisfactory.” His marks were quite low, the majority being C+.
11On February 28, the parents were invited to meet with the school to discuss DA’s poor academic performance. The father’s evidence is that they were informed by DA’s teacher that his academic performance was highly contingent on his being in class. The mother’s evidence is that while David’s lack of focus, causing poor grades, “is a real issue, it is not a reason for David not to travel to Turkey.” The mother knew on February 28 she had purchased the tickets to Turkey on February 22. She knew that after the meeting she would be telling the father about her new proposal for a trip to Turkey which would require missing school for two weeks, and returning to school on a Tuesday morning with jetlag. Yet there is no evidence that she raised this with the teacher or sought the teacher’s views on February 28. Again, this would have been an ideal opportunity to ask the teacher whether the mother should take DA out of school for two weeks, considering the school’s concern about DA’s poor performance, but the mother chose not to raise the information or seek guidance from the educator.
12The relevant chronology with respect to the mother’s travel consent request is as follows:
(1) February 21: Mother requests approval for a trip to Florida with child March 18 to 28 through Our Family Wizard (OFW), a parenting app through which the parties communicate. Father responds saying he will check schedule and talk to child on the weekend (which is Feb 24-25)
(2) February 22: Mother purchases tickets to Turkey for herself, her adult son, and the child, departing March 18 and returning April 1.
(3) February 24: Father messages mother on OFW that he has considered DA’s situation, reviewed his report card, and expressed concerns that taking him away after March Break might not be DA’s best interests, and could impact his academic routine. Father states he would agree to trip (to Florida) from March 8-17, that is, during the TDSB March Break, as March Break is specifically designed for a family vacation “without interrupting his academic progress.” After sending the message, the father went to pick up DA. The mother and father spoke, and the father agreed to the trip (to Florida) so long DA can be in school for March 26, the day of the IPRC meeting (meaning return on March 25). Father agreed to the trip, and confirmed by OFW. Mother messaged father thanking him for his permission for the trip to Florida March 18 to 25.
(4) February 25: Father messages requesting details of the trip, and again expresses it is difficult for DA to catch up after missing a week of class. Mother responds that “I didn’t book the ticket yet”. This is misleading. Three days earlier the mother had purchased a ticket to Turkey, for a longer period. Mother says they were invited to stay at an AirBnB and will not have to reserve a stay, and that she will provide a contact number – all in respect of the Florida trip.
(5) February 29: Following the meeting at the school the mother informs the father that the friend in Florida cancelled the invitation, so instead she wanted to go to Turkey, and she needed a travel consent as she had “promised” DA they were going on a trip. Later that day the mother confirmed this information, and provided the ticket purchased on February 22, with a return date of April 1, not March 25 as discussed previously.
(6) March 4: The father informed the mother that he opposed the trip, both because DA faces difficulties with school, it is not in his best interests, and due to dangers of travel in Turkey due to terrorist actions and the Government of Canada warning to exercise a high degree of caution.
(7) March 5: Mother states she is fine to leave DA with the father for her trip, and as the non-traveling parent he will have to take him to various extracurriculars. Mother states she will drop DA off at school on March 18, and pick him up after school April 2.
(8) March 7: Mother’s counsel writes father’s counsel seeking travel consent for two-week trip to Turkey, stating: “the Court will not hesitate to allow Ms. Yeganeh to travel to Turkey with the children, as there are no legitimate abduction or safety concerns.”
(9) March 8: Father’s lawyer responds, denying consent given DA’s poor performance in school and last-minute change from Florida to Turkey.
(10) March 11: Mother serves urgent motion materials. Father indicates his counsel is out of town on vacation and not available until March 19. Mother’s counsel tells father to get an agent.
(11) March 14: Motion argued, father is self-represented since his lawyer is on vacation.
Legal Framework and Analysis
13In deciding on travel, the only issue is the best interests of the child. The mother here seeks an order allowing her to travel with the child, which is a parenting order. Subsection 16(1) of the Divorce Act provides that the court shall take into consideration only the best interests of the child of the marriage in making a parenting order. Subsection 16(3) provides that in making a parenting order, the court shall give primary consideration to the child’s physical, emotional, and psychological safety, security and well-being.
14The order here requires that a parent shall not unreasonably withhold consent to travel. So, the question is whether in failing to consent to the proposed travel to Turkey for two weeks during school, the father was unreasonable. I find the father was not unreasonable.
15DA is clearly struggling with school. In January, the parents were informed that the school was recommending a finding of exceptionality and special educational supports. In February, DA’s report card demonstrated issues. They met with the teacher on February 28, and were clearly informed that DA was struggling: the father’s evidence, which is uncontradicted, is that the teacher told them that DA’s attendance was critical to his academic performance. The proposed trip would require the mother to miss a very important IPRC meeting. And two weeks of school (following March Break) means that DA would be away from school for three weeks, and return on the fourth week jet-lagged on a Tuesday. I find that the father’s concerns are well-grounded in the evidence.
16At no time did the mother respond to the father’s concerns about DA’s school, his poor academic performance, or the impact on DA of missing two weeks of school. While generally children benefit from travel during summer holidays and March Break, the same is not true when it comes to missing school. Attending at school to learn together with one’s peers is important to a child’s emotional and psychological well-being. This is particularly true when a child is struggling: being behind one’s peers is tough.
17The only reason given by the mother for the trip was to visit “family and friends” to celebrate Persian New Year on March 19. March Break ends March 18. A March Break trip with two extra days at the end would have accommodated DA’s schooling. There is no other evidence regarding what DA would get from the trip, the nature of the relationships with the unnamed friends and family, or a why the trip could not be scheduled during summer holidays.
18I find it was not unreasonable for the father to refuse consent, and that it not in DA’s best interests to travel to Turkey as proposed.
Costs
19The father requests full indemnity costs, for bad faith and unreasonable conduct of the mother.
20Costs orders are in the discretion of the court pursuant to Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. The Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 at para. 10 held that modern family cost rules are designed for the fundamental purposes of: (1) partially indemnifying successful litigants; (2) encouraging settlement, (3) discouraging and sanctioning inappropriate behaviour by litigants, and (4) ensuring, in accordance with Rule 2(2) of the Family Law Rules, that cases are dealt with justly. Reasonableness and proportionality are the touchstone considerations to be applied in fixing costs.
21Pursuant to Rule 24(8) of the Family Law Rules, if the court determines that a party has acted in bad faith, then costs shall be ordered on a full recovery basis, payable immediately.
22As Pazaratz, J. summarized in Jackson v Mayerle, 2016 ONSC 1556 at paras. 57-61:
57In S. (C.) v. S. (M.), supra, Perkins J. defined bad faith as follows [at para. 17]:
In order to come within the meaning of bad faith in subrule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent. At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.
58Bad faith is not synonymous with bad judgment or negligence. Rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation: Children's Aid Society of Peel Region v. F. (K.J.), 2009 ONCJ 252; Biddle v. Biddle; Leonardo v. Meloche; Hendry v. Martins, [2001] O.J. No. 1098, 2001 CarswellOnt 952 (S.C.J.).
23I find that the mother’s actions were taken in bad faith, as she concealed information relevant to the issues and sought to deceive the other party and the court. On February 21, the mother requested approval for a trip to Florida, yet purchased a ticket to Turkey on February 22. She continued to correspond with the father about the Florida trip. She told him on February 25 that she had not yet purchased a ticket for the trip – and did not mention the Turkey trip, and the existing Turkey ticket. She did not raise the issue of missing two weeks of school when with the teacher on February 28 regarding the child’s poor academic performance– although she raised the Turkey trip immediately following the teacher meeting.
24I find that the mother misled the Court as well. She states in her affidavit that on February 29th she advised the father that her travel plans to Florida have been cancelled, and since she promised the children that they would go on vacation, “I purchased tickets to travel with the children to Turkey.” She did not tell the Court in her affidavit that she purchased the tickets on February 22, seeking instead to make it appear a reasonable option once her (unnamed) friend cancelled her Florida invitation.
25I find that the mother deliberately involved DA in the issue, thereby using the child to apply pressure on the father to agree. She promised DA that he would come on the trip before securing travel consent. It is improper to use a child in this way: it is up to separated parents to recognize that where a court order requires shared decision-making the adults must reach an agreement before involving children.
26It is a parent’s job to protect a child, not harm a child. It harms children, who are caught in the middle, unsure whether a parent’s word can be relied on, or driving them to reject the parent who says no. Separated parents must work out shared decision-making issues before making promises to children they cannot keep.
27Shared decision-making requires transparent disclosure of what exactly is to be decided, and on what basis. Not switch-and-bait tactics, concealing information relevant to the issues, or deceiving the other party or the court.
28I find that the mother acted in bad faith. I award full recovery costs of $2,500.00 sought by the father, payable forthwith.
“Justice Kristjanson”
Released: March 15, 2024