Any decision made in relation to parenting time must be in keeping with the child’s best interests. This may allow the court to make an order for parenting time involving travel abroad, even where there is some potential for the abduction of the child. However, as we see in a recent Ontario Superior Court of Justice decision, stringent safeguards must be put in place to alleviate this risk.
In Taras Volgemut v Ashlee Janna Carmen Decristoforo, the applicant’s father sought in-person parenting time with his two-year-old daughter. He approached the Court for an order requiring his daughter and the respondent mother to attend a luxury Turkish resort for this purpose.
The father, a wealthy Russian citizen with international business interests, lived for six years with the mother, a Canadian citizen from Ottawa. In 2018, the parties had a daughter, but they later separated while living in Dubai, United Arab Emirates (UAE). In December 2020 following an altercation, the mother covertly left Dubai with the child and relocated to Ottawa. Each party alleged that the other party had been abusive.
The father is seeking an order that the child was wrongfully removed to, and is being wrongfully retained in, Ontario and that she be returned to her habitual residence in Dubai. Following adjournments to the trial, the father made the present application.
While the parties agreed that it was important for the child to have an ongoing relationship with the father and that means time in person was necessary to enable this to occur, they disagreed on the form that this should take.
The father sought parenting time in Turkey, his current place of residence. He claimed this would facilitate his work due to a favourable time zone and indicated a willingness to pay all travel costs for the mother, child, and maternal grandmother. He presented evidence that he has made significant, although unsuccessful, efforts to secure a visa to enter Canada.
The mother proposed supervised in-person parenting time in Ottawa and argued that the father represents a serious abduction risk because of his “limitless financial means” and international connections. She stated that she would fear for her safety if she were to meet her father outside Canada.
Given difficulties with the father obtaining a visa to enter Canada, Justice Julie Audet found that the mother’s plan would not result in parenting time in the foreseeable future:
If I were to require that the father’s in-person parenting time with Sasha [the child] take place in Canada, as the mother asks, there is a real possibility that Sasha will not see her father for a very long time. I find that this would not be in Sasha’s best interests, and as such, the mother’s only proposal is not acceptable to me.
In making this finding, Justice Audet applied section 24 of the Children’s Law Reform Act which requires the court’s decision in relation to the father’s parenting time to be in keeping with the child’s best interests.
Her Honour, in siding with the father’s proposal, noted:
I find that the father’s proposal for in-person parenting time to occur in Turkey, aside from the risks of abduction that it presents, makes ample sense. I am also of the view that there are many very good incentives for the father not to attempt to wrongfully remove Sasha from Turkey during her stay there, and that with very stringent safeguards to ensure the father’s compliance with this court order, the alleged risks of abduction are sufficiently mitigated to give me confidence that Sasha will be safely returned to Canada at the end of her stay in Turkey.
Justice Audet found comfort in the fact that Turkey is a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Her Honour, therefore, presumed that it would be capable of guaranteeing the return of wrongfully retained children, although expressed less confidence in the mother’s ability to seek the protection of the UAE’s courts in the event that the father was to wrongfully remove the child back to Dubai.
However, Her Honour opined that the father would have much to lose by abducting the child against the Court’s order, such as the detrimental impact on his ability to continue to travel which is required for his business endeavours.
Importantly, Justice Audet felt that “very stringent safeguards” must be put in place to alleviate the risk of abduction. This was due to the extreme consequences for the child of wrongful removal from Turkey.
Firstly, Her Honour decided to grant leave for either party to lodge a copy of the court order with Canadian, UAE and Turkish authorities in Turkey, including the police force, for the purpose of notifying the authorities of the parties’ rights so that the authorities may take steps to prevent wrongful removal if necessary.
Justice Audet required the father to file with the Ontario Superior Court of Justice an approved draft final order in the form prescribed by the laws of the UAE consenting to the issuance by the UAE’s courts of an order granting the mother sole custody.
Her Honour also granted the mother the ability to receive a $350,000 security lodged by the father as well as an order granting her sole decision-making authority, in the event that the father failed to return the child. The father must also deposit all of his and the child’s passports with the Canadian Embassy in Turkey.
If you are experiencing child access and parenting time disputes, contact the experienced family law lawyers at NULaw in Toronto. We have extensive knowledge of Ontario and Canadian family law issues and regularly provide honest and practical legal advice on these matters including custody and access. Contact us online or at 416-481-5604 to book a consultation.