Martin v. Czarniecki, 2013 ONSC 46

CITATION:  Martin v. Czarniecki, 2013 ONSC 46

 oshawa COURT FILE NO.:  FC-11-1497-00

DATE:  2013-01-07

ONTARIO SUPERIOR COURT OF JUSTICE

  BETWEEN

Shawn Daniel Martin

Applicant

— and —

 

Anna Karoline Czarniecki

Respondent

COUNSEL: C. Hooper for the applicant. R. Byrnes for the respondent.   HEARD:  November 19, 20, 21, 22, 26, 27, 28, 29, and 30, 2012; December 3 and 5, 2012.   Timms J.    

REASONS FOR JUDGMENT

  Introduction [1]                       Almost all family law cases involve some degree of sadness – sadness for what was but is no longer, sadness for what might have been, sadness for broken promises and betrayals, sadness for lost opportunities, sadness for wasted time, energy and money, and all too frequently sadness for the battles still to come. [2]                       So-called mobility cases are particularly unhappy ones.  Such is the case here where the parties are contesting not only who will have custody of their one child Max born May 13, 2009, but also whether the respondent will be allowed to move to Germany with him, should she be awarded custody.  The respondent volunteered that no matter the outcome, she will not under any circumstances remain in Canada.  Therefore one of the parties will be forced to have a long distance relationship with Max.  Canada and Germany are sufficiently geographically remote from one another such that regular physical access of the usual type by one of the parties will be problematic, if not impossible. [3]                       The parties find themselves in this situation due to a litany of significant errors of judgement, misunderstandings, miscommunications, lack of communication, mistrust, and, occasionally, deliberate deceptions. [4]                       The parties met first in March 2005 in Cuba.  The applicant was there for a vacation with his parents and siblings.  At that time, the applicant was residing in Durham Region and working as a manager at one of the several Tim Hortons’ franchises owned and operated by his parents.  The respondent, who was then working as an airline hostess out of Dortmund Germany, was in Cuba on a lay-over.  As they say, one thing led to another, although in this case given the distance between where the parties lived, the gaps between the times that the parties saw one another were significant.  Nonetheless, between March 2005 and September 2008 when the respondent learned she was pregnant, the parties got together a significant number of times both in Canada and in Germany.  Moreover, they kept in regular contact via the internet and telephone. [5]                       The applicant asked the respondent to marry him about a year into the relationship.  She declined as she was not as serious about the relationship as he was.  When the respondent learned that she was pregnant in September 2008, the applicant flew over to Germany and once again proposed marriage.  This time the respondent accepted.  The child Max was born on May 13, 2009, in Germany.  The applicant was in Germany to attend that event and stayed there for almost two months. [6]                       There were some medical problems with Max after his birth that required him to be hospitalised for about two weeks.  When he was released from the hospital he lived with both parties until the applicant returned to Canada.  The respondent disposed of her apartment in Germany and moved to Canada with Max in July 2009.  The respondent had taken a maternity leave from her employment earlier that year.  Neither party testified as to exactly when the respondent started that leave, although I infer from other evidence that it probably started in May 2009. [7]                       In the spring of 2009 the applicant purchased the home that would become the matrimonial home.  He had started looking at homes in late 2008, after he learned that the applicant was pregnant.  On the evidence, the respondent actively participated in that process. [8]                       The respondent had applied for a permit to work in Canada in late 2007 or early 2008.  She had also applied for a leave of absence from her job at the same time.  Both were denied in 2008.  She applied for Canadian permanent residency status in July 2009, and was granted that on September 9, 2010.  The applicant funded that process.  The parties were married in a civil ceremony in Cobourg on October 30, 2009. [9]                       The respondent made several trips to Germany between July 2009 and the separation of the parties in July 2011.  When she was there in the early summer of 2011, the applicant, who had remained in Canada, committed adultery.  He told the respondent about that on July 6, 2011.  He appears to have been entirely motivated to do so because the boyfriend of the other party threatened to tell the respondent and suggested that perhaps he should have sex with her to even things out.  The respondent wanted to go to Germany to be with her mother and to think about the marriage.  The applicant purchased return tickets for her and Max on Lufthansa, leaving on July 11 and returning on September 15. [10]                   The respondent left with Max on July 11, 2011.  There were many phone calls and text messages thereafter between the parties.  On August 4, the applicant made some 40 calls.  He was frustrated by what he perceived as the respondent denying him contact with Max.  He had also become concerned that the respondent might not be coming back or that she might flee to Poland where she had been born, and where her mother owns property.  He therefore contacted the police in Dortmund who then paid a visit to the respondent.  On August 5, 2011, the respondent commenced proceedings in Germany seeking the right to determine Max’s residency.  The respondent testified that she thought that she already had sole custody of Max according to German law.  The local court of Hamm (Family Court) issued a provisional order on August 23, 2011.  The exact nature of that order is somewhat puzzling, but from the evidence I take it that a lawyer named Konstanze Fabri was appointed as guardian ad litem for the child, and that at least on a provisional basis, she was entitled to decide the issues of residency and the nature of the applicant’s access to Max. [11]                   On the same day as the respondent began her proceeding in Germany, the applicant began a custody proceeding here in Durham.  He sought an order therein that the respondent had wrongfully removed the child Max from the jurisdiction within the meaning of the Hague Convention on Civil Aspects of International Child Abduction (Hague Convention).[1]  He also brought a motion here seeking a declaration that Max had been thusly wrongfully removed and ordering his return.  On September 29, 2011, Justice Mullins of this court determined that she was unable to decide that issue on the contradictory affidavit evidence in front of her. [12]                   On September 1, 2011, the applicant brought a Hague Convention application to the Family Court in Hamm, seeking an order that Max had been illegally retained in Germany and ordering his return to Canada.  On September 2, 2011, that court made an order appointing a different guardian ad litem in that proceeding – Monika Frieling.  On September 21, 2011, the court rescinded the earlier provisional order of August 23, 2011. [13]                   On October 13, 2011, Judge Erb-Klunemann of the Family Court issued her judgment on the Hague application.  I will not here set out the reasoning of Judge Erb-Klunemann.  However, I will set out her major findings: ▪      that the Hague Convention applied, ▪      that Max’s habitual residence prior to his being taken to Germany on July 11, 2011 had been Canada, ▪      that Ontario law applied, which meant that in the circumstances the parties had joint custody of Max, ▪      that the respondent had not had the applicant’s consent to her taking Max to Germany, with the intention of permanently staying there, ▪      that the actions of the respondent were thus illegal, ▪      that the exceptions found in paragraphs (a) and (b) of Article 13 of the Hague Convention did not apply,[2] and finally, ▪      that Max was to be returned to Canada. [14]                   On October 26, 2011, the respondent appealed the order of October 13, 2011 to the Higher Regional Court of Hamm.  The Higher Regional Court then issued a stay of the earlier order.  From reading the appeal judgment, it is apparent that the respondent disputed all of the findings made by the lower court and that she added a new allegation that would, if found to be true, trigger a finding pursuant to paragraph 13(b) of the Hague Convention.  She alleged that the applicant was mentally ill and thus presented a danger to Max should he be returned to Canada. [15]                   On December 15, 2011, the Higher Regional Court pronounced its judgment dismissing the appeal.  The Higher Regional Court thoroughly examined all of the evidence presented in the lower court and reviewed the parties’ arguments on the appeal.  The judgment confirmed that Max’s habitual residence prior to July 2011 had been Canada.  Using the data supplied by the respondent herself, the court found that Max had spent 75% of his time between July 2009 and July 2011 in Canada.  The court also found that Max had family and social connections in Canada beyond those described by the respondent.  On the basis that the respondent had failed to prove that the applicant had in fact consented to the permanent removal of Max from Canada to Germany, and on the basis that there were no facts that would otherwise bring Article 13 into play, the court ordered that Max be returned to Canada.  With respect to the latter, the court found that the respondent’s allegations regarding the applicant being mentally ill and thus a danger to the child were unsubstantiated, and in any event since the respondent could accompany Max back to Canada, any concerns could be neutralised.  The same was true with respect to any possible harm to Max associated with his removal from the parent with whom he likely had his primary attachment.  Subject to the parties arriving at their own solution by January 23, 2012, the court ordered that Max’s return was to occur no later than January 24, 2012. [16]                   While the parties were negotiating the details of the return of the respondent and Max to Canada, and without notice to the applicant, the respondent launched an appeal of the decision of the Higher Regional Court of Hamm to the Constitutional Court of Germany, alleging that her rights had been violated.  The respondent was unable to recall exactly when she brought that application; however she agreed that it was sometime between January 10, 2012 and January 20, 2012.  On January 20, 2012, the Constitutional Court issued a temporary stay of the decision of the Higher Regional Court.  On February 7, 2012, the Constitutional Court unanimously dismissed the complaint that the respondent’s rights had been violated on the basis that there was “no chance of success”. [17]                   On February 17, 2012, in response to an email by the applicant requesting details of Max’s return to Canada, the respondent sent him an email telling him that the Constitutional Court would be deciding if Max was going to Canada.  Obviously this was ten days after the dismissal of her appeal.  The respondent’s evidence was that she did not learn of the dismissal of her appeal until after the Higher Regional Court of Hamm sent her a letter dated February 16, 2012 “enclosing the decision of the Constitutional Court one more time”.   That letter also advised her that she had to provide the court with details of Max’s return to Canada within three days or the court would act to enforce its judgment. [18]                   In an undated letter sent by fax, the respondent then replied to the court indicating that she would return with the child to Canada on February 27, 2012.  She also advised the court that Max was ill, and that she would be providing a medical certificate on Monday February 20, 2012.  The respondent testified that she then booked flights for February 28, 2012.  The respondent could not remember if she informed the court that she had booked flights for the 28th and not the 27th.  The respondent admitted that she did not advise the applicant that she had booked flights for the 28th. [19]                   However, the respondent did send an email to the applicant on February 12, 2012 saying that Max was ill.  There were any number of emails between the parties from mid February until the end of the month in which the applicant demanded to know the details of Max’s return to Canada, and in which the respondent either referred to Max being too ill to travel or in which the respondent attempted to set terms for her return. One email in particular included a demand for a payment of 16,000 Euros plus other monies as a precondition. [20]                   Finally, on March 1, 2012, the Higher Regional Court of Hamm sent a bailiff to enforce its order.  The bailiff acted to apprehend Max, who was then taken to a hospital to determine whether he was healthy enough to travel.  When it was so determined, Max was handed over to his father who had travelled to Germany with his father.  All three returned immediately to Canada.  The respondent followed on March 6, 2012.  The respondent testified that she had already booked flights for herself and Max to come to Canada on March 6, 2012.  However, she was unable to provide any documentary proof of that. [21]                   Starting on March 16, 2012, the parties made appearances before the court here in Oshawa for various conferences and motions.  On that day, an order was made that the parties were to have joint custody of Max, with the applicant to have him in his care every week from Saturday at 5:00 pm until Tuesday at 10:00 am.  Otherwise he was to be in the care of the respondent.  Several temporary orders were made thereafter dealing with parenting time, and child and spousal support.  The current order has Max residing with the applicant every week from 5:00 pm on Friday until 1:00 pm on Monday, and with the respondent at all other times.  The applicant is paying child support of $788.00 per month based on an income of $88,728.00, and spousal support of $1,100.00 per month on a without prejudice basis. [22]                   At an appearance on May 17, 2012 it was determined that a May trial would be too early.  I understand that this related primarily to a delay in translating certain documents from the German court proceedings.  The matter was therefore set over to the fall sittings.  The presiding conference judge, Justice A.R. Rowsell, also made an order for a section 112 report by the Office of the Children’s Lawyer (OCL), which report was to be expedited.[3]  The trial started before me on November 19, 2012 and finished on December 5, 2012, when I reserved my judgment. The Evidence and Findings Based Thereon [23]                   Although it might not be evident, I avoided dealing with several controversial issues in my introduction; for example whether the parties agreed to a second religious marriage in Germany; whether the respondent had a choice as to a one year, a two year, or a three year maternity leave or why she chose three years; whether there had been an agreement that the family would have its permanent home in Germany after the respondent finished her maternity leave; and whether the applicant only bought a return ticket on Lufthansa in July 2011 because it was cheaper than buying a one-way ticket.  The parties, and particularly the respondent, chose to adduce a great deal of evidence on these matters and other matters which are, in my view almost entirely irrelevant to any determination of Max’s best interests.  To the extent that such evidence is relevant, I will explore it below. [24]                   I do not intend to review all of the evidence presented at the trial herein with respect to whether the applicant consented to the permanent removal of Max to Germany by the respondent on July 11, 2011.  That matter was extensively canvassed in both Hague Convention judgments in Germany.  Counsel for the applicant objected to questions being put to the respondent in examination-in-chief on this issue, based on the doctrine of issue estoppel.  I gave both counsel the opportunity to prepare an argument thereon.  Counsel for the respondent declined. [25]                   The extensive evidence led by both parties with respect to what happened between July 6 and July 11, including who drew the travel documents, and what they were intended to cover, is therefore relevant only with respect to credibility.  In that regard, the German courts found that the respondent was not credible.  She told different stories to different people at different times.  In my court, she accepted that perhaps she had not made it clear to the applicant that she did not intend to return with Max to Canada. [26]                   The respondent argued, in both the Hamm Family Court, and the Higher Regional Court, that the parties had agreed that they would move to Germany to reside there permanently, after her maternity leave was finished.  She cited that in favour of her argument that Max’s habitual residence was Germany and not Canada.  She also put forward evidence that Max had been registered on a waiting list at two daycare centres in Dortmund in August and September 2010, as proof of not only the parties’ above intention, but also in support of the argument that Max’s habitual residence was Germany. [27]                   The applicant’s position before the German courts was that although a possible permanent move by the family to Germany had been discussed, and although he was aware of the respondent’s desire in that regard, there was never any agreement to do so.  He also argued that he had had no knowledge of Max being registered on two daycare waiting lists.  He gave the same evidence at the hearing in front of me. [28]                   Neither the Hamm Family Court nor the Higher Regional Court found that the parties had agreed to move to Germany permanently.  Both courts determined that whatever the mutual intention of the parties might have been before the separation, in keeping with the jurisprudence, that would only have been a factor had the parties, as a family, actually acted to relocate permanently to Germany. [29]                   The Hamm Family Court did find that the respondent had signed Max up at the two daycare centres without the applicant’s knowledge.  That finding was not overturned by the Higher Regional Court. [30]                   Nonetheless the respondent testified in front of me that the applicant had indeed known of Max being signed up for two daycare centres in Dortmund in 2010.  She admitted that only she had signed the applications, that she listed herself as single, and that she did not name the applicant as Max’s father or provide any information regarding him.  The sole exception was on one form where she said that Max’s father was “foreign”.  The respondent never provided any reasonable explanation as to why she said nothing about the applicant on either form.  Even if I were not bound by the decision of the courts in Germany, I would have reached the same conclusion – that the respondent acted without the applicant’s knowledge or consent. [31]                   Notwithstanding the above, at the hearing in front of me the respondent led a significant amount of evidence to sustain her position that the parties had agreed to a permanent move to Germany at the end of her maternity leave.  She testified to that, and called another six witnesses on that issue.  The applicant was cross-examined extensively on the topic.  He also testified about it in chief, denying any such plan, and he called one witness in reply evidence, a long-time friend, who said that he had never heard of any such plan. [32]                   I could spend two to three pages setting out the evidence regarding this issue.  However, at the end of the day, it is now entirely moot.  Its only relevance is with respect to credibility. [33]                   In that regard, on all of the evidence, it is certainly possible that the applicant knowingly let the respondent and some of her friends believe that he would some day give up his job as a manager at Tim Hortons and move permanently to Germany.  However, I cannot find that there was an actual agreement to do so when the respondent’s maternity leave was up.  In my view it is telling that the respondent did not present so much as one word of evidence or one document to show that the parties actually had taken any concrete steps to put into action any plan for everyone to move to Germany after May 2012.    Although the respondent and several of her witnesses spoke of the applicant’s alleged intention to earn a livelihood as a day trader on the North American stock exchanges, working from home in Germany, there was no evidence presented as to any concrete steps taken to facilitate that.  There was no evidence of any application by the applicant to any German authority to be allowed to live and work there, or even that the parties had taken steps to inform themselves as to what had to be done in that regard.  There was no evidence as to any steps taken to sell the matrimonial home. [34]                   The applicant testified that he and the respondent were not religious in any way.  According to him, having a religion or going to church were never topics of discussion.  They did agree that Max would not be baptised, and that he would decide for himself when he was old enough what, if any, his religious affiliation would be.  However, based on what the respondent was now saying, the applicant was prepared to agree to Max being baptised.  This issue was tangentially related to the respondent’s relationship with her father.  The respondent’s parents have been separated for some time.  The applicant testified that the respondent had completely pushed her father out of her life well prior to her becoming pregnant.  This schism went to the extent of the respondent not telling her father that she was pregnant and forbidding her mother to tell him.  The respondent denied this but said that she and her father had had a falling out over whether Max was to be baptised at birth or whether it would be up to him when he got older.  The respondent admitted that she never went to church in Canada with Max before or after July 11, 2011.  She said that she had taken him to church in Germany both before and after July 11, 2011.  The applicant denied any knowledge of this.  When the respondent’s father testified, he was somewhat vague as to how often he had seen Max prior to July 11, 2011.  The respondent’s mother testified that she had been the one who had told her husband about the respondent’s engagement, the pregnancy, and Max’s birth.  When asked whether that was because the respondent and her father were estranged, the answer was that she did not know and that the respondent was an adult. [35]                   The inference from the respondent’s parents’ testimony was that indeed the respondent and her father had been estranged before she became pregnant with Max, and that that state of affairs continued until July 2011.  As well, the evidence overall supports a conclusion that it was only after the respondent returned to Germany on July 11, 2011, that religion became of greater importance to her life.  It is also a reasonable inference that the respondent raised the issue of Max’s attendance at church to bolster her case as to his greater connection with Germany and her. [36]                   The respondent did not file a formal parenting plan pursuant to clause 24(2)(e) of the Children’s Law Reform Act.[4]  She did apparently file something at the exit pre-trial but that was not filed before me due to a concern that it was possibly a without prejudice offer.   She did testify and provide some details of a parenting plan.  Her three-year maternity leave was over in 2012.  The respondent gave evidence that she had obtained what amounts to an extended vacation leave which will come to an end on February 28, 2013.  Starting March 1, 2013, she will work a 50% part-time module which involves ten days per month.  Her testimony was that she would earn between 1,300 and 1,500 Euros a month.[5]  Her proposal is that her mother would look after Max while she was working.  Beyond that, she said that she intends to rely upon various friends and possibly her father.  She hopes to place Max back in the same daycare that he attended starting last November.  The respondent would only speak German to Max; however she gave evidence as to the early and intensive teaching of English in the school system in Germany. [37]                   As I said in paragraph [2] above, the respondent volunteered that she would soon be going back to Germany, no matter what the result.  She gave evidence that she knew that she would end up having a nervous breakdown if she stayed.  She made it clear that she is here on sufferance and that she will never be comfortable in Canada.  She refuses to consider changing employers to an airline such as Air Canada or Lufthansa that has direct flights from Germany to Toronto.  The airline for which she works no longer does. [38]                   In answer to questions put to her by her counsel, the respondent proposed, premised on Max being with her in Germany, that the applicant have the majority of all German school holidays, including most of the summer break which is six weeks long.  She would like to keep Max in Germany for the Easter Holiday but would give that up if necessary.  She would like to alternate at least part of the Christmas break. When being cross-examined, the respondent admitted that she had said during her questioning in July of 2012 that Max might now be too young to be apart from her for any length of time.  Her answer then, which she confirmed at trial, was that Max would probably have to be one or two years older before that could safely happen.  I was left wondering what exactly the respondent was saying as to when Max could start coming to Canada for the holidays.  The evidence was that Max would start school at age six in Germany. No matter when Max travelled to Canada, the respondent would want to accompany him if at all possible.  As to that, she thought that more than once a year would be problematic for her. [39]                   In addition, the respondent proposed that the applicant could visit Max at any time in Germany, and have regular telephone and Skype access.  With respect to Skype, the respondent proposed two times a week, but she also said that Max will soon be old enough to do it by himself, and then he will use Skype whenever he wants to. [40]                   The applicant did file a detailed formal parenting plan pursuant to the CLRA.  He as well gave oral testimony about his plan.  Assuming that the respondent moved back to Germany, then Max would attend a local daycare located close to home until he is old enough to attend kindergarten.  After that, he would proceed throughout the school system in the normal course.  Given that German is not taught here in school, the applicant proposes that Max attend for German lessons at the German Language School Loreley starting in September 2014, when he would be first eligible.  He would also arrange private German lessons until Max was able to attend the Loreley School. [41]                    The applicant was more cautious as to what time Max should spend in Germany without him.  In his written plan, he said that he would facilitate generous time between Max and the respondent both in Ontario and in Germany.  With respect to Germany, he would want to travel with Max until he and the respondent were able to rebuild trust between them.  He admitted that he did not entirely trust the respondent to comply with the terms of any order of this court. [42]                   The applicant’s position was supported by the recommendations to be found in the OCL report filed as an exhibit at the trial.  Pursuant to the order of Justice A. R. Rowsell of May 17, 2012, the OCL assigned Karyn Dingle, a social worker, to do an investigation and prepare a report.  Ms. Dingle produced a report dated September 19, 2012 which became exhibit 4 at the trial.  She was also called as a witness at the trial and cross-examined by both sides.  Her recommendations are found on page 13 of her report; they read as follows: 1.                        Mr. Martin should have sole custody of Max and Max should attend school near Mr. Martin’s home. 2.                        In the event that Ms. Czarniecki resides near Mr. Martin (within a 20 minute drive), Max should spend every Monday and Tuesday with his father and every Wednesday and Thursday with his mother.  The parents should have alternate weekends from Friday at 1 p.m. until Monday at 1 p.m. 3.                        Once Max is in school, pick up [sic] and drop offs should occur at school. 4.                        In the event that Ms. Czarniecki resides in Canada but is unable to get Max to school, Max should have his primary residence with Mr. Martin and Ms. Czarniecki should have alternate weekends and one evening a week if possible. 5.                        If Ms. Czarniecki resides in Canada for the summer, the parents should share time with Max by having alternating weeks. 6.                        Ms. Czarniecki should have direct access to all medical and education records regarding Max. 7.                        Mr. Martin should have carriage [sic] Max’s passports. 8.                        Into the foreseeable future, it is recommended that Ms. Czarniecki not be allowed to travel with Max. [43]                   The reasoning behind those recommendations is found on pages 11 to 13 of the report. [44]                   To start with, Ms. Dingle found that Max is closely connected with both parents, and is well loved and cared for by both parents.  She had no concerns about the ability of either party to parent. [45]                   However, she had grave concerns about the respondent being able to support an ongoing and meaningful relationship between Max and the applicant.  This was based on a number of observations and conclusions.  Among those was that the respondent remains very angry about the applicant’s adultery and the ensuing destruction of the intact family.  In addition, the respondent continues to make unsubstantiated allegations against the applicant; namely that Max is being brainwashed by him, possibly with professional help.  While the applicant was always positive with Ms. Dingle regarding the respondent’s parenting abilities, the reverse was not true.  The applicant had demonstrated that he was “calmer and less reactive and better able to manage his emotions”.  Ms. Dingle gave the example of the different manners in which the parties reacted to two fairly recent medical incidents involving Max.  In April 2012, while in the respondent’s care, Max received quite a severe burn to his stomach area. When he found out, the applicant did not in any way call into question the quality of the respondent’s supervision of Max when that happened.  The exact opposite happened when in August 2012 Max was diagnosed with “swimmer’s ear”.  The applicant allowed Max to go swimming, after taking reasonable precautions to prevent water getting into his ears.  In her emails sent to the applicant about this incident, the respondent, in the strongest possible terms, accused the applicant of being irresponsible and immature. [46]                   Ms. Dingle was also of the opinion that the respondent’s actions in taking Max to Germany in July 2011 with the intention to remain there permanently, without the clear consent of the applicant, remaining in Germany once it became clear to everyone that the applicant did not consent, and fighting the return of Max to Canada at every step, were a portend of likely future difficulties in the relationship between Max and the applicant, should the respondent be allowed to take Max with her to Germany.  Ms. Dingle also factored into her opinion her view that the respondent had made contact between Max and his father difficult when she was in Germany. [47]                   For all of the above reasons, and because she felt that the parties had significant difficulty communicating with one another, Ms. Dingle recommended against joint custody. [48]                   Both parties agree that the respondent was the primary parent up until the separation in July 2011.  Except for a period of a few months in 2011, when she worked at the applicant’s business, she was always a stay-at-home mother after coming to Canada in July 2009.  Ms. Dingle likewise found that “[the respondent] was clearly the primary caregiver when Max was an infant and toddler.”  She also concluded that: Currently, Max enjoys a close and loving relationship with both parents and that the loss of either parent would represent a significant loss to him and potentially affect his emotional development. [49]                   In general in his testimony, the applicant was quite praiseworthy with respect to the respondent’s parenting.  He testified that she was a “wonderful mother”.  His only qualification was his view that she wanted to limit his relationship with Max, and her actions while in Germany from July 11, 2011 to March 1, 2012. [50]                   The respondent was less effusive in her description of the applicant’s parenting.  According to her, the applicant did almost no childcare when the parties lived together.  She would have to force him to do any at all.  Later on (unspecified but apparently sometime after March 1, 2012) “it was going well.”  The respondent admitted that Max needs his father as much as he needs her.  She agreed that Max has a good relationship with his father.  However, the respondent took credit for that good relationship; she said that it was the result of her encouraging contact after July 11, 2011. [51]                   At the same time, the respondent gave a great deal of evidence about how Max clung to her and was very anxious generally after being returned to her on March 16, 2012.  He was allegedly waking up frequently in the night.  Although that has subsided, according to the respondent Max cannot be left with a third party if she goes out shopping.  Presumably the inference that the respondent wanted this court to draw was that if she were not given custody of Max, then he would suffer “separation anxiety” and be emotionally damaged.  Indeed her counsel argued that in his final submissions. [52]                   The problem with that is that there was no independent evidence thereof.  Ms. Dingle was the only expert witness to testify.  She did not testify that Max was suffering from separation anxiety with respect to his mother.  She did testify that when she first attempted to interview the respondent, she was unable to successfully do so because the respondent, who did not have anyone to look after Max, tried having Max play by himself in a park across the street from where she and Ms. Dingle were sitting on a bench.  Max was alone in the park, about 100 yards from where Ms. Dingle and the respondent were talking.  Ms. Dingle felt that it was quite normal that Max kept coming over to see his mother, but that it did not demonstrate separation anxiety. [53]                   An unbiased look at all of the evidence does support Ms. Dingle’s conclusion that the respondent to this day remains more than a little angry with the applicant.  Examples include an email exchange regarding the swimmer’s ear issue.[6]  In her email of August 23, 2012, the respondent asks the applicant whether he was mentally ill.  Her question is followed by three exclamation marks and nine question marks.  In other emails around the same time dealing with the same topic, the respondent resorts to “shouting” and the heavy use of exclamation marks.  When the applicant would not provide her with the answers to various questions regarding Max’s schedule, his meals, whom he saw, and other things, she became more and more demanding, and the tone of her emails became more and more angry.  A careful reading of those emails readily demonstrates that the respondent was making excessive and unreasonable demands for information.  One example was the demand by the respondent for the full legal names and addresses of Sonja (the applicant’s girlfriend) and any other people with whom Max spent time, with whom he talked, or who took care of him.  Another was her demand not just to know what Max’s meal schedule was when with the applicant, but the exact contents of every meal. [54]                    In another more recent email in late October 2012, concerning Halloween, the respondent wrote “you [the applicant] disgust me”.  The respondent has several times said in emails that she does not want the applicant opening his mouth in her direction during access exchanges (meaning not talking to her).  At some point, the respondent stopped coming out of her residence for access exchanges so that she did not have to be face-to-face with the applicant.  Before that happened, the applicant testified that the respondent would mouth the word “asshole” at him during access exchanges.  While one can certainly be sympathetic to the respondent with respect to the applicant’s at times relentless attempts to be cheerful in front of Max and to show Max that his parents can communicate, again the language and tone of her emails show both a profound and continuing anger. [55]                   The respondent did not lead any evidence at trial in support of an allegation that the applicant was mentally ill, although her counsel asked a number of questions in cross-examination which amounted to fishing with respect to that possibility.  The thrust of these questions and others appeared to be to attempt to demonstrate that the applicant was an unstable individual who could not be trusted to parent Max.  No evidence bore this out. [56]                   The respondent did allege that the applicant was attempting to turn Max against her by saying negative things about her.  There was no independent evidence to support this, and nothing came out in the cross-examination of the applicant which rang any alarm bells in that regard.  Ms. Dingle did not feel that this was happening. [57]                   The applicant gave extensive evidence as to the respondent’s interference with his telephone and Skype contact with Max in Germany after July 11, 2011 and even after his return in March 2012.  He also testified that in his view the respondent attempted to impose unreasonable limitations on that contact. [58]                   In his cross-examination, counsel for the respondent reviewed literally hundreds of emails that went back and forth between the parties during the period in question.  As well he asked quite a number of questions regarding text messages sent from July 21, 2011 to March 1, 2012.  The cross-examination of the applicant took over three full days in large measure due to the volume of questions on these communications. [59]                   The respondent testified that she did her best to maintain a relationship between the applicant and Max after she returned to Germany in July 2011.  It was her testimony that the applicant was “bombarding” her with phone calls and called at times when Max was sleeping.  She said that he threatened her with calling the police.  It was her testimony that the applicant said that he wanted to talk to Max every day before he went to work.  She agreed, but then the applicant would call earlier than the agreed upon time.  If Max was done speaking with the applicant on the phone, he [the applicant] would not accept that but would call back immediately to try to continue the conversation.  She would try to put Max back on the phone but Max, who was then a little over two years old, would not want to talk at length on the phone but instead preferred to play.  Because the applicant appeared to refuse to understand that, the respondent stopped trying to force Max to talk for as long as the applicant wished. [60]                   Because she felt desperate about the situation, she approached the Youth Office in Dortmund for advice.  There she got the advice that Max was too young to have meaningful frequent and lengthy phone calls with the applicant.  It was suggested that she try Skype because it would provide visual contact.  The respondent did not specify a date when she went to the Youth Office.  I infer from the contents of various text and email messages that it was not until the beginning of September 2011.  I also infer from other testimony that when the respondent spoke of the Youth Office, that she was speaking of Ms. Fabri who was the first guardian ad litem.  The respondent then sent an email saying that a once a week Skype call and a once a week telephone call would be appropriate.  The applicant sent an email saying that he did not agree with that but instead he wanted to Skype twice a week and to call on the telephone once a week.  She agreed to that. [61]                   Notwithstanding that agreement, the parties continued to have disputes about contact.  The applicant complained about the location used by the respondent on her end for Skype (an internet café).  There were problems with Skype at both ends from time-to-time.  The applicant testified that there were problems beyond those with Skype and blamed the respondent for them.  The respondent testified that except when Max got sick in February 2012, and subject to the occasional problems with the internet and with Skype, the agreed upon schedule was adhered to. [62]                   What did I glean from all of those emails and testimony?  Firstly, that the applicant was genuinely remorseful for what he had done and that he hoped that the respondent would reconsider whether the marriage was over.  Secondly, that the respondent was still very angry with the applicant and that she felt that she was in control as to what would happen with Max.  Thirdly, that the applicant started to panic at the beginning of August 2011 both with respect to the possibility that the respondent might never bring Max back to Canada (it is implicit in some of the text messages filed by the respondent that she was saying that the applicant could only see Max in Germany), and with respect to what he considered to be restrictions on his contact with Max.  Fourthly and finally, that both parties acted unreasonably at times and were all too ready to blame the other for any problems that arose. [63]                   I also find that the applicant has exaggerated the difficulties that he had in his contacts with Max during the period July 2011 to March 2012.  At times, his demands regarding the frequency and nature of those contacts were objectively unreasonable.  Max was a little over two years old in the summer of 2011.  I believe that I am entitled to take judicial notice of the limited attention span of a child of that age.  While, as per the testimony of Ms. Dingle, frequent contact with a separated parent is important, there are reasonable limits to that. [64]                   The applicant testified as well with respect to the minimal information that he was getting regarding Max’s general welfare while he was in Germany during that period from July 2011 to March 2012.  Based on all of the testimony from both of the parties, there may be some truth to that, but again the applicant has exaggerated the extent of the problem. [65]                   Contrasted with that are the demands that the respondent has made for information with respect to Max for those times when he has been in the applicant’s care since March 16, 2012.  As I said in paragraph [53] above, those demands have been patently unreasonable and excessive. [66]                   Both parties testified about current communication difficulties.  The respondent admits that she refuses to talk to the applicant on the phone or when they are face-to-face with one another at access exchanges.  In fact, for the past while she has refused to come out of the house when that occurs.  Her rationale is that the applicant twists what she says and provokes her just to build his case.  Therefore she will only communicate via email.  In her view, any benefit to Max by seeing his parents communicate civilly is outweighed by the other considerations. [67]                   Based on the evidence of the applicant, there is no doubt but that he keeps pushing the respondent to talk to him, and that he does so even knowing that she does not want to talk to him.  His stated belief is that the benefit to Max in seeing that his parents can successfully and civilly communicate outweighs her distaste for doing that.  He intends to continue his attempts. [68]                   One could possibly conclude that by continuing his attempts, the applicant is deliberately provoking the respondent hoping to get a negative reaction to help his case.  There does indeed seem to be an element of that.  However, it also appears that the applicant’s belief that the parties need to communicate better, particularly in front of Max is genuine.  Ms. Dingle supported that.  On the opposite side of the coin, it is apparent that the respondent’s continued anger at the applicant clouds her judgement to the extent that she is unable or unwilling to even try to be even-handed for Max’s benefit. [69]                   Both parties, although mainly the applicant, testified about disagreements regarding changes to the parenting schedule over the past several months.  These disagreements arose with respect to the Easter weekend, Mother’s Day, and various birthdays.  Often a multitude of emails passed back and forth.  I have examined those emails and reviewed the testimony.  I can do no better than repeat what I said out loud in the court room – that all too frequently, neither party appeared ready to budge an inch.  While they almost always reached a solution, it took an incredible amount of time and energy to do so. Arguments of the Parties

The Applicant

[70]                   The applicant wants the court to make an order in keeping with the recommendations found in the OCL report. [71]                   Counsel for the applicant posits that there are two questions to be answered.  First, applying the test in Gordon v. Goertz,[7] is it in Max’s best interest to be in the applicant’s sole custody and remain here in Canada, or to be in the respondent’s sole custody and go back with her to Germany?  Second, in keeping with the principles set out by our Court of Appeal in Kaplanis v. Kaplanis,[8] is it in Max’s best interest to make an order for sole or joint custody? [72]                   Counsel started her argument addressing the question of whether the parties had agreed that they would settle as a family in Germany after the respondent’s maternity leave was up.  She did so not because she thought that it was in any way relevant to best interests, but because the respondent spent so much time on that issue during the trial.  I will not detail her argument on that issue here, because at the end of the day I agree with Ms. Dingle who said that whatever may have been agreed upon earlier was now moot.   Both the Hamm Family Court and the Higher Regional Court said the same thing.[9] [73]                   On the question of best interests, counsel for the applicant asks the court to look at the parties’ ability to communicate and the conduct of each of the parties with respect to parenting issues from July 12, 2011 up to now. [74]                   With respect to communication, counsel pointed to the contents of the over 600 pages of emails and text messages filed as evidence, and the over three days of cross-examination of the applicant thereon.  While the ability of the parties to communicate has improved, the emails more than amply demonstrate the continued misunderstandings, a lack of trust of one another (especially on the part of the respondent), and the respondent’s continued deep anger towards the applicant and all things Canadian.  As recently as October this year, the respondent was telling the applicant that he disgusted her.  She will not speak to him face-to-face or on the phone.  Using email, which is the only method acceptable to the respondent, the parties are only able to successfully communicate as to the simplest of things, and even that takes an inordinate amount of time. [75]                   It is argued that the respondent interfered with and limited the applicant’s communication with Max during the period from July 11, 2011 to March 1, 2012.  If she were in Germany with Max, there would be every opportunity for her to continue to do that. [76]                   Counsel relies upon the observations and conclusion of the OCL investigator.  Ms. Dingle felt that there was ample evidence to support that the parties are not able to communicate well with one another.  It was her opinion that the respondent remains very angry with the applicant.  The respondent was accusatory and hostile in her email communications with the applicant around health issues.  As well, she accused him of brainwashing Max.  The respondent appears rigid and inflexible with respect to the applicant.  The applicant is better able to support a relationship between Max and his mother than she is between Max and his father. [77]                   Instead of accepting the first, well reasoned Hague Convention decision of the Hamm Family Court, the respondent fought tooth and nail to keep Max in Germany.  She appealed and lost, and then brought a claim to the Constitutional Court.  She has never provided a copy of her claim filed with that court, even after undertaking to do so, which supports a conclusion that it was more than likely completely without merit.  We do know the appeal was dismissed as having no chance of success. [78]                   She enrolled Max in daycare in November 2011, after the first Hague Convention decision of the Hamm Family Court and then tried to argue that to remove him from Germany would mean the loss of his friendships there. [79]                   It is open to debate whether the respondent ever actually intended to return with Max to Canada even after her loss at the Constitutional Court.  It is questionable if Max was too sick to travel in February.  He was declared fit to travel on March 1, 2012.  The respondent was never able to provide proof of an airline booking for herself and Max on March 6, 2012, as alleged by her. [80]                   All of the actions of the respondent taken together raise a real concern about the respondent’s future compliance with any order of this court should she have custody of Max in Germany.  This concern was shared by Ms. Dingle in her report and formed one of the foundations for her recommendations. [81]                   Further, the respondent continues to take no responsibility for what went on prior to Max being returned to Canada on March 1, 2012.  The respondent felt that she was entitled to believe that the applicant had consented to her permanently removing Max to Germany.  She felt that her appeal of the first Hague Convention judgment, even though it was clear, forceful, and the findings all went against her, should not be held against her.  She felt the same with respect to her apparently baseless appeal to the German Constitutional Court — an appeal which was made without notice to the applicant.  Even though the respondent did not enrol Max in daycare until after she had lost the first Hague Convention hearing, according to her, it was the applicant’s fault that Max was now separated from his friends there.  It was not her fault that she missed the deadline imposed by the Higher Regional Court.  It was not her fault that she never actually informed anyone of her intention to travel with Max to Canada on March 6, 2012 — if she ever actually had that intention, which is very much subject to doubt.  It was the applicant’s fault entirely that Max was forcibly removed from her care by the bailiff on March 1, 2012, and that Max was probably traumatised by that happening. [82]                   With respect to conduct relating to parenting, several additional points were offered in argument.  The respondent registered Max on two waiting lists for daycare in the fall of 2010, without the consent or even the knowledge of the applicant.  That calls into question her commitment to the marriage and what her intentions for the future were.  She enrolled Max in daycare in November 2011, without the applicant’s knowledge or consent, and probably only did so as a stratagem for her argument in the German proceedings that Max had his habitual residence there.  She took Max to church after returning to Germany in July 2011, without the applicant’s knowledge or consent, again probably as a stratagem.  She provided a minimum of information with respect to Max’s life in Germany and interfered with the applicant’s contact with Max.  In her materials filed in the German court proceedings, she minimised the applicant’s relationship with Max.  Indeed she led the first guardian ad litem to believe that Max would barely know his father when he arrived in Germany.  She put forward to the courts in Germany that the applicant had mental health problems and that he presented a danger to Max.  She knew when she left Canada on July 11, 2011 that she did not have the applicant’s consent to remove Max permanently to Germany.  Yet in her first proceeding in Germany begun on August 5, 2011, she implied that she did and thereafter in all proceedings, either said that she did, or was entitled to believe that she did. [83]                   While the applicant has concerns about the respondent obeying any order of this court, he is open to accommodating an ongoing relationship between Max and the respondent.  He and Max have a loving and comfortable relationship.  While he may not have been the primary parent during the time that the parties lived together, on his evidence, and on the observations of Ms. Dingle, Max is closely connected with both parents and enjoys his time with both parents.  Max is well-loved and cared for by both parents.  If the respondent goes back to Germany without Max, that will be her choice; she will be the one depriving Max of a significant direct contact with both parents. [84]                   Counsel for the applicant did not address the issue of either child or spousal support in her argument. The Respondent [85]                   The respondent proposes that the court make an order for joint custody, but that the respondent have the final say if the parties cannot agree.  And of course she wants the primary residence to be with her, and that she be allowed to return to Germany with Max. [86]                   Counsel for the respondent wants the court to conclude that the parties are now able to communicate to the degree required to determine Max’s best interests in any given situation.  He points to their more recent email exchanges in that regard, and how they eventually arrive at a compromise, for example regarding Easter in 2012. [87]                   The respondent was justifiably angry and sad after the applicant disclosed his adultery, but she never let that interfere with the applicant’s relationship with Max.  In that vein, counsel argues that the facts show that the respondent did not unduly restrict the applicant’s communication with Max while she was in Germany after July 2011, or after she returned to Canada in March 2012.  In fact, she went out of her way to ensure that the applicant and Max had reasonable contact.  Any limitations that she imposed were reasonable and based on expert advice. [88]                   The respondent accepts that the applicant is a good father, that he loves Max and vice versa, and that Max should have an opportunity to have an ongoing relationship with his father.  In addition to Skype contact, she will promote that by allowing Max to come to Canada for the majority of German school holidays and by making Max available to the applicant whenever he wants to visit in Germany. [89]                   Max has benefited by being exposed to two cultures and languages.  That will more likely continue if he lives in Germany with his mother, due to the fact that many Germans speak several languages, and because English is taught extensively in the school system in Germany. [90]                   When the respondent went back to Germany in July 2011, she was justified in thinking that she had sole custody of Max because that is what the parties both understood German law specified.  That is why she only sought the right to determine Max’s residence in the court proceeding launched by her in Germany on August 5, 2011.  Only after the German courts determined within the context of the Hague Convention proceedings that Max’s habitual residence was Canada, did she learn that she no longer had sole custody. [91]                   When she left Canada on July 11, 2011, she was justified in believing that she had the applicant’s consent to move back to Germany with Max permanently.  As a family the parties had intended to live there permanently.  The applicant knew how important it was for her to live and work in Germany, and how important her job there was to her. [92]                   All of that explains and justifies her fighting so hard not to have the issue of custody decided in Canada. [93]                   The respondent did not refuse to return Max to Canada after being ordered to do so.  She did not stall the return of Max after losing the appeal to the Constitutional Court.  Starting in January 2012, she let the applicant know that she was coming back to Canada to let the courts here decide the issue of Max’s custody. [94]                   The respondent was and is the primary parent.  Max has shown separation anxiety already which would only be worsened if the applicant were awarded sole custody and the respondent moved back to Germany. [95]                   Max will have a greater opportunity to socialise with children of his own age in Germany as opposed to Canada.  He already has friends in daycare there. [96]                   Because there are more school holidays in Germany than in Canada, he could spend more time in Canada with the applicant than he could with the respondent in Germany, if he were living with the applicant here. [97]                   If Max were to visit with the applicant in Canada for most of the summer, he could spend time with the applicant and his grandparents at their cottage, which on the evidence he very much enjoys. [98]                   The respondent has family and friends in Germany.  She has a job that she enjoys.  She feels at home in Germany.  She would be a content parent to Max, which would in turn benefit him. [99]                   The respondent only has to work ten days a month when she goes back to work at the end of February, and thus would be more available to Max on a day-to-day basis than the applicant who works five days a week. [100]              Although counsel for the respondent provided a book of authorities, he did not as such reference any cases in his argument, nor did he respond to the arguments of applicant’s counsel based on the cases cited by her. [101]              Counsel for the respondent only briefly addressed the issue of child and spousal support.  He suggested that those issues will have to be revisited after the court decides the issue of custody.  Adjustments will have to be made based on the respondent’s earnings from her employment in Germany when she goes back to work in March 2013, and the costs associated with intercontinental access. Conclusions [102]              Far too much time was spent on the question of whether the applicant had agreed to move to Germany permanently after the respondent’s maternity leave was at an end.  As I said in paragraph [32] above, I fail to see how a finding on this question would be in any way relevant to determining Max’s best interest now.  Whatever the parties may have agreed to before July 6, 2011, was done in the context of an intact, happy family, planning for a future together.  After July 6, 2011, that was very much no longer the case.  Therefore, even if I found that the applicant had agreed to move the family to Germany permanently after the respondent’s maternity leave came to an end, or even if he had let the respondent believe that that was his intention, at most it would be relevant strictly to a question of credibility. [103]              In that regard, I am satisfied on all of the evidence, including that presented by the witnesses in Germany via Skype, that the applicant either agreed to move to Germany to live at some undetermined point in the future, perhaps after the respondent’s maternity leave was completed, or let the respondent and her friends who testified believe that he had so agreed.  However, I also find that any plan or understanding was far more amorphous than the respondent tried to assert in her testimony.  I have to question whether it would have ever come to pass had the events not unfolded as they did on July 6th and thereafter.  There was absolutely no evidence that any concrete steps had been taken by that date to put any possible plan into action.  Ultimately therefore the credibility of both parties suffers. [104]              With respect to considering the facts of this case within the prism of the case law, as counsel for the applicant argued, we must start with Gordon v. Goertz, supra.  Unlike Gordon v. Goertz, as there has never been a prior court custody order here, there is no need to consider whether there has been any material change of circumstances.  As was pointed out by Justice J. McKinnon in Terris v. Terris:[10] [T]he court must embark on an enquiry into what is in the best interests of the children, and in so doing, must consider all of the circumstances relating to their needs and the ability of the respective parents to satisfy them. As Her Honour also observed, and I concur:   In some cases of first instance, there will be considerable overlap between the factual context of the custody determination and that of the relocation determination.[11] In my view, that is especially true in the instant case. [105]              I have found that the respondent continues to harbour significant anger towards the applicant – that is beyond any shadow of a doubt.  That anger has not dissipated with time.  One can be wholly sympathetic with the respondent as to her devastation on learning of the applicant’s adultery on July 6, 2011.  It would be naive to think that she should not be justifiably angry in the extreme.  One can as well certainly understand how that anger would lead, initially in any event, to the respondent making decisions that were against common sense, if not against Max’s best interests. [106]              The question is whether, as a result of her anger, the respondent will continue to make decisions that are against common sense, and against Max’s best interests. The answer is a clear and compelling “yes she will”.  Ms. Dingle believes that as do I.  The evidence is overwhelming as I have set out in detail in paragraph [53] and others. [107]              There is nothing in section 24 of the CLRA directing the court to weigh which parent will support a relationship with the other parent as a factor when determining best interests.  Subsection 16(10) of the Divorce Act sets out the principle of maximum contact.[12]  The case law makes it clear that it is an important consideration under both acts.[13]  Ms. Dingle believes that it is a particularly important consideration in mobility disputes where one parent is going to be located physically far from the other.  It seems obvious that if one parent is unable to have regular and real physical contact, especially with a young child, the child/parent relationship will consequently suffer.  If the custodial parent puts road-blocks in the way, then the child/parent relationship will suffer even more. [108]              The underlying theme of many of the emails sent by the respondent to the applicant is that she questions his basic competency as a parent.  It is my conclusion that the respondent will more likely than not continue to doubt and disparage the applicant’s parenting abilities, and that that will manifest itself in several ways, including with respect to any medical treatment Max might require while in the applicant’s care, and even with respect to the day-to-day ordinary tasks such as meals, bedtimes, friends, etc.  It is not difficult to imagine the respondent setting preconditions to visits either in Germany or Canada, and revoking visits if she were not satisfied that those preconditions had been met.  It is not difficult to imagine the respondent making up new allegations with respect to the applicant’s mental health.  It is not difficult to imagine the respondent putting forth that Max was too sick to travel, whether that was true or not. [109]              When one adds to that the continuing communication difficulties that plague the parties, it does not bode well for the well-being of Max’s relationship with his father if Max were living in Germany.  Whatever may have been true before July 11, 2011, the evidence is that Max now has a solid and meaningful relationship with his father. [110]              On the other side of the coin, I am satisfied that the applicant will encourage and support an ongoing and meaningful relationship between Max and his mother should they be resident in two different countries.  If that relationship is weakened, that will be as a result of the respondent’s choices. [111]              On a straight best interests test, the factors weigh strongly in favour of the applicant as the custodial parent, no matter where the parties might live. [112]              That takes us to the overlapping issue of mobility. [113]              We know that Max has a solid and meaningful relationship with his mother and that she was clearly the primary parent before July 11, 2011.  If Max remains in Canada and the respondent goes back to Germany, then the child/parent relationship between Max and her will consequently suffer. [114]              The respondent’s argument is that Max will suffer from separation anxiety if he is not in her primary care. The problem with that is that there was no expert evidence put before this court to support this.  In fact, when counsel for the respondent suggested to Ms. Dingle that Max was demonstrating separation anxiety on the occasion of her aborted interview of the respondent, Ms. Dingle firmly disagreed.  In Ms. Dingle’s view, all that Max was showing was that he was uncomfortable being alone in the park, 100 yards away from his mother. [115]              It is hard to naysay the respondent’s opinion, subjective though it may be, that her mental health will suffer if she remains in Canada.  The problem with that argument is that the situation in which the respondent now finds herself is almost entirely of her own making. [116]              The respondent could have been honest about the basis upon which she went to Germany on July 11, 2011 and chosen to bring Max back to Canada in August or September 2011.[14]  If the parties had been unable to settle their differences, then there could have been a custody trial by the spring of 2012 at the latest.  The earlier the trial, the more the respondent could have relied upon her being the primary parent.  Coming back to Canada with Max then would have demonstrated to the world that the respondent was willing to have the issue of custody decided on its merits, as opposed to on some default rule of law.  Practically speaking, it would have greatly reduced the opportunity for mischief on either side, and created trust instead of mistrust.  It would have avoided the finding that the respondent was not telling the truth about having the applicant’s permission to remove Max with her permanently to Germany.  The respondent could have immediately acknowledged that the applicant and Max had a good relationship, instead of suggesting that the applicant was someone whom Max barely knew.  The respondent could have acknowledged that the applicant was a decent parent, even if not the primary parent, instead of attacking the applicant’s parenting abilities, and instead of making spurious allegations about his mental health and the danger that he presented to Max.  The respondent could even have taken that tack after she came back to Canada in March 2012, and for that matter at the trial too.  She failed to do either.  The respondent could have admitted to herself that her dream of a happy family living in Germany was now at an end, and that it was not relevant to Max’s best interests, instead of expending countless amounts of energy trying to prove that the applicant had agreed to such a plan. [117]              The respondent was entitled to resist the original Hague Convention application, to appeal that decision, and to appeal to the Constitutional Court.  When she did so without any sustainable grounds of fact or law, and when she did so on dubious if not false grounds – that she had the applicant’s consent to her taking Max to Germany to live there permanently, that the applicant was mentally ill, and that Max had no real family or social connections in Canada — she choose the path that led to here. [118]              No doubt, Max will suffer if he is deprived of a close relationship with both of his parents.   But then, if the respondent follows up on her stated intention to move back to Germany no matter what, that will be her choice.  The respondent has refused to consider employment with any other airline which would allow her to fly directly to Toronto or which would base her in Toronto. [119]              To this day, the respondent continues to take no responsibility for what happened but instead blames the applicant for everything, including that Max had to be removed from her care by the bailiff.  The respondent blames the applicant for any emotional trauma to Max resulting from that.  Had the respondent simply complied with the order of the Higher Regional Court of Hamm that Max had to be returned no later than January 24, 2012, any such trauma would of course have been avoided.  The responsibility lies entirely with the respondent. [120]              In my view, there is a distinct possibility that the respondent would have attempted to continue to come up with reasons as to why she could not travel to Canada with Max had he not been forcibly removed from her care by the bailiff on March 1, 2012.  Although the respondent tried to produce some hearsay evidence from a doctor’s calendar with respect to Max being too ill to travel in February 2012, even if that evidence had been admissible, the doctor in question was relying upon what the respondent told him as to Max’s condition.  Although the respondent said that she had booked flights for herself and Max on March 6, 2012, she was unable to produce proof of any actual bookings as alleged. [121]              There would be some advantages to Max if he were living with the respondent in Germany.  To start with, I agree with counsel for the respondent that it is more likely that Max would, if he lived in Germany, enjoy the benefits of having parents with different native languages and cultures. [122]              The respondent has said that she will work only ten days a month when she goes back at the end of February 2013.  That would make her generally more available to Max, even if there were layovers over and above the ten days.  That factor favours her. [123]              There are apparently more school holidays in Germany than there are in Ontario.  Max could therefore come to Canada more often than he could go to Germany if he lived here.  That assumes of course that the respondent would in fact comply with both the spirit and the letter of any order regarding access by the applicant.  As the applicant pointed out in his testimony, it would be easy for the respondent to claim that Max was too ill to travel or present some other excuse and by the time it was straightened out, it might well be too late for that occasion. [124]              There is some sense to the argument by counsel for the respondent regarding Max coming to Canada for the summer and going to his grandparent’s cottage.  Of course, it is also true that the respondent could come to Canada for part of the summer and be granted exclusive use of the cottage for herself and Max.  I cannot imagine that anyone would object to that. [125]              As far as I am concerned, Max has family and friends in both countries.  That is therefore a neutral factor. [126]              It is my conclusion that the risk that the respondent will impede, interfere with, or in some way make difficult, the relationship between Max and the applicant significantly outweighs the factors that support the respondent being allowed to return to Germany with Max.  Therefore, I have decided to grant the applicant sole custody of Max.  I do not consider that the facts of this case support a joint custody award.  To start with, assuming that the parties are living in different countries in different time zones, it would not work on a practical level.  Additionally, the parties continue to have major difficulties communicating with one another.  There is a great deal of lingering mistrust.  A joint custody award could afford the respondent the opportunity to create legal mischief, even if this court retains jurisdiction.  In keeping with the principles in Kaplanis, supra, regarding the ability, or lack thereof, of parents to cooperate and communicate for the best interests of the child, the facts of this case mitigate against an award of that nature. Orders [127]              Due to a lack of evidence and argument, I am effectively prevented from deciding any issue of ongoing child or spousal support.  Obviously, child support must terminate as of December 31, 2012.  I so order.  What child support the respondent should pay will have to be determined at a later date.  The amount will depend upon the respondent’s actual earnings.  The costs of access will have to be factored in as well.  The respondent must serve and file a full and proper financial statement, with proof of actual earnings, no later than May 1, 2013.  I do not consider than I am seized with this issue. The current spousal support will continue for two more months and then terminate on February 28, 2013.  I so order.  How much if any spousal support will be payable after that will have to be determined at a later date.  I do not consider that I am seized with this issue either. [128]              My order re custody and access is as follows: 1.                  That the applicant father, Shawn Daniel Martin, have sole custody of the child, Max Martin born May 13, 2009. 2.                  That if the respondent mother, Anna Karoline Czarniecki, changes her mind and remains in Canada, and depending upon where she might live, then she is to have Max in her care as per paragraphs 2, 3, 4, and 5 of the recommendations in Ms. Dingle’s report, as follows: (i)               In the event that mother resides near the father (within a 20 minute drive), Max shall spend every Monday and Tuesday with his father and every Wednesday and Thursday with his mother.  The parents shall have alternate weekends from Friday at 1 p.m. until Monday at 1 p.m. (ii)            Once Max is in school, pickups and drop offs should occur at school. (iii)           In the event that the mother resides in Canada, but is unable to get Max to school due to her work schedule or the like, Max shall have his primary residence with the father and the mother shall have alternate weekends and one evening a week if possible. (iv)           If the mother resides in Canada for the summer, the parents shall share time with Max by having alternating weeks. 3.                  That if the respondent mother, Anna Karoline Czarniecki, does in fact return to Germany, that she is to have access as follows: (a)              In 2013 and 2014, for one week starting with the Wednesday before Easter, in Germany.  The applicant father, one or both of his parents, or anyone else of his choosing, will accompany Max to and from Germany. (b)              In 2013 and 2014, for a total of three weeks during the summer months of July and August.  No less than two of those weeks must be spent in Canada and will be contiguous.  The respondent mother may, at her own choice, decide to spend all three weeks in Canada, in which case the third week must be separated from the other two weeks by a period of seven days.  If the respondent mother chooses to exercise the third week in Germany, then the applicant father, or one or both of his parents, or anyone else of his choosing, will accompany Max to and from Germany.  The respondent mother is to advise the applicant father in writing no later than May 1 each year which weeks she chooses and whether she will be exercising all of the access in Canada. (c)              In 2013 and 2014, for one week at Christmas starting on December 19.  The applicant father, or one or both of his parents, or anyone else of his choosing, will accompany Max to and from Germany. (d)              Starting in 2015, Easter access will continue as per subparagraph (a) above, except that the respondent mother is to accompany Max from to and from Germany. (e)              Starting in 2015, access in the summer months will be for a total of four weeks.  Two of those weeks must still be spent in Canada.  The respondent mother is to advise the applicant father in writing no later than May 1 each year which weeks she chooses and whether she will be exercising all of the access in Canada. (f)               Starting in 2015, the respondent’s Christmas vacation access period will start on December 26, 2015 and thereafter only occur in alternate years. (g)              Skype access twice a week and telephone access once a week with no more than three days, and no less than two days, between each contact.  The most logical time of the day would be early in the morning in Canada but I will leave it up to the parties to set the schedule.  If they are unable to do so, I retain jurisdiction and will determine the matter via a 14B motion. 4.                  That the respondent mother have direct access to all medical and educational records pertaining to Max and be entitled to directly contact all medical and educational authorities in that regard. 5.                  That the applicant father keep the respondent mother informed as regards any medical or educational issues pertaining to Max. 6.                  That until Easter 2015, the applicant father have control of Max’s passports. 7.                  That the respondent mother party may not travel with Max anywhere except in or between Canada and Germany, until 2016.   [129]              Until the parties have agreed upon the issues of child and spousal support or a judge of this court has decided those issues, the respondent will pay for the travel costs for Max to go travel back and forth.

 

Costs

[130]              If the parties cannot agree on costs, written cost submissions may be made.  All submissions are restricted to 5 pages, exclusive of dockets and offers to settle, by serving and filing submissions at the appropriate court office.  Counsel for the applicant may serve and file cost submissions within 30 days of the release of this judgment.  Counsel for the respondent may serve and file their response within 15 days thereafter and counsel for the applicant may serve and file their reply within 7 days thereafter.

                                                                                   

The Honourable Mr. Justice D. Roger Timms

  DATE RELEASED: Monday, 07 January 2013.              

[1] Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 1343 U.N.T.S. 89. [2] Hague Convention — Article 13:  Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.   The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.  In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence. [3] Courts of Justice Act, R.S.O. 1990, c. C-43. Section 112:  Investigation and Report of Children’s Lawyer. [4] Children’s Law Reform Act, R.S.O. 1990, c. C-12.  [CLRA].  Section 24:  Merits of Application for Custody or Access (2) Best Interests of Child (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing. [5] At current exchange rates that would be between $1,708 and $1,970 Canadian a month. [6]  The whole of the email exchange from August 4, 2011 to October 9, 2012 between the parties became exhibits 13 through 21.  Another exchange became exhibit 23.   [7] Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, 19 R.F.L. (4th) 177, S.C.J. No. 52, 134 D.L.R. (4th) 321 (S.C.C. May 02, 1996).  [Gordon v. Goertz]. [8] Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] 194 O.A.C. 106, 10 R.F.L. (6th) 373, 249 D.L.R. (4th) 620, 136 A.C.W.S. (3d) 860, 2005 CarswellOnt 266. [Kaplanis]. [9] See paragraph [28] above. [10] Terris v. Terris (Marcoux), 2003 CanLII 2040 (ON SC), [2003] 41 R.F.L. (5th) 433, 2003 CarswellOnt 2685, [2003] O.J. No. 2829 (Ont. S.C.J.) at ¶ [5]. [11] Ibid, at ¶ [13]. [12] Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am.  Subsection 16(10).  Order for Custody: Maximum Contact — In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [13] See Woodhouse v. Woodhouse, 1996 CanLII 902 (ON CA), [1996] 20 R.F.L. (4th) 337, 29 O.R. (3d) 417, 91 O.A.C. 91, 1996 CarswellOnt 1906, [1996] O.J. No. 1975 (Ont. C.A.) and Coccimiglio v. Simonini, 2010 ONSC 488 (CanLII), 2010 ONSC 488, [2010] W.D.F.L. 2460, 2010 CarswellOnt 214, [2010] O.J. No. 190 (Ont. S.C.J.). [14] As I said in paragraph [9] above the airplane tickets that had been purchased by the applicant for her and Max in July 2011 had a return date of September 15, 2011.