Bartlett v. Bartlett, 2004 ONCJ 276

Toronto Registry No. D11560/02-A2

CITATION: Bartlett v. Bartlett, 2004 ONCJ 276

ONTARIO COURT OF JUSTICE

BETWEEN:

AKEMI BARTLETT,

Applicant,

— AND —

STEVEN BARTLETT,

Respondent.

Before Justice Lynn King

Oral Reasons for Judgment delivered on 10 September 2004

CUSTODY OF CHILD — Mobility rights — Grounds for allowing move — Best interests of child — Disruption to child — Two children (8 and almost 10 years old) had lived in Canada for most or all of their school years, attended same school, lived in same neighbourhood and had circle of friends, neighbours and relatives — They enjoyed quality time with father even after separation — Custodial mother wanted to return to Japan to acquire better job, to be closer to her family and to enjoy a better lifestyle — Children would loose not only their familiar environment but would have to learn new and very different language and adjust to much more austere and regimented social climate — Effect on relationship with their father would be immense and detrimental — Court had evidence that cost of travel to and from Japan and accommodation there was simply prohibitive in light of parents’ incomes, even with adjustments to father’s support payments — Disruptive effect on children could not be offset by alleged benefits that mother would acquire by moving — Court refused to allow removal of children from Ontario for this and other reasons.

CUSTODY OF CHILD — Mobility rights — Grounds for allowing move — Enforceability of custody and access rights in new jurisdiction — Custodial mother wanted to return to Japan to acquire better job, to be closer to her family and to enjoy a better lifestyle — Mother had already displayed considerable rigidity in her attitudes to father’s access — Because Japan was not signatory to Hague Convention on Civil Aspects of International Child Abduction, enforcement of any access order would be almost impossible — Court refused to allow removal of children from Ontario for this and other reasons.

CUSTODY OF CHILD — Mobility rights — Grounds for allowing move — Reason for moving — Good faith — Custodial mother wanted to return to Japan to acquire better job, to be closer to her family and to enjoy a better lifestyle — Her evidence on all these alleged reasons was extremely weak — Mother who currently had no job in Canada simply claimed to be unqualified for jobs here, offering no evidence of searching for employment in Canada, of interviews, of applications or of attempts to upgrade her skills — As for her closeness to family in Japan, court had no evidence that this family was ever particularly concerned with children, that any relative ever visited Canada or that family had ever helped mother financially during her unemployment — Court heard no evidence of calls, correspondence or other communication by those relatives to children (although children’s unfamiliarity with Japanese language would have posed barrier) — Mother’s claim of improved lifestyle was intertwined with claims of better job and closeness to her family and suffered from similar weakness — Court refused to allow children’s removal from Ontario for this and other reasons.

STATUTES AND REGULATIONS CITED

Convention on Civil Aspects of International Child Abduction, [1983] Can. T.S. No. 35.

CASES CITED

Bjornson v. Creighton 2002 CanLII 45125 (ON C.A.), (2002), 62 O.R. (3d) 236, 166 O.A.C. 44, 221 D.L.R. (4th) 489, 31 R.F.L. (5th) 242, [2002] O.J. No. 4364, 2002 CarswellOnt 3866 (Ont. C.A.).

Gordon v. Goertz, 1996 CanLII 191 (S.C.C.), [1996] 2 S.C.R. 27, 196 N.R. 321, 141 Sask. R. 241, 1996 CanLII 191 (S.C.C.), [1996] 5 W.W.R. 457, 114 W.A.C. 241, 134 D.L.R. (4th) 321, 19 R.F.L. (4th) 177, [1996] R.D.F. 209, [1996] S.C.J. No. 52, 1996 CarswellSask 199.

Young v. Young 2003 CanLII 3320 (ON C.A.), (2003), 63 O.R. (3d) 112, 168 O.A.C. 186, 223 D.L.R. (4th) 113, 34 R.F.L. (5th) 214, [2003] O.J. No. 67, 2003 CarswellOnt 63 (Ont. C.A.).

Andreas Solomos ................................................................................................... for the applicant

Kenneth H. Nathens ........................................................................................... for the respondent

[1] JUSTICE KING (orally): This is an application by Akemi Bartlett to vary a custody and access order such that her children, Meg and Joshua, can move with her to Japan. The father of the children, Steve Bartlett, opposes this move. The mother is 42 years old and was born in Japan. She met Mr. Bartlett 12 years ago in Japan when he was there teaching English as a second language.

[2] The parties dated for three years, came to Canada in May 1993 and were married in Canada in March 1994. Their daughter, Meg, was born on 29 November 1994. The parties remained in Canada until July 1996 when they moved to Japan. Their son, Josh, was born in Japan on 19 September 1996. The move back to Japan had been a joint decision, primarily so there would be help for Ms. Bartlett when josh was born. In Japan, the parties rented an apartment fairly close to Ms. Bartlett’s parents. Once again, Mr. Bartlett taught English as a second language and Ms. Bartlett eventually began working part-time teaching English as a second language to housewives. In April 2001, the parties moved back to Canada and have remained here to this day. There has been some dispute about why they returned. Ms. Bartlett says it was to save the marriage. Mr. Bartlett says it was so they could have a better life all around.

[3] It is agreed that the marriage was troubled and that Mr. Bartlett had had some extramarital affairs in Japan. In Canada, the marriage continued to falter and the parties separated in April of 2002. Mr. Bartlett moved out of the family home and the mother and children continued to reside at the Glenhill Avenue apartment where they have remained to this date. At one point, early on in the separation, Mr. Bartlett moved back into the matrimonial home for one month since the children, especially Josh, were so upset about the separation. According to the documents filed in this matter, the mother has sole custody of the children and father has specified access. He has the children every Wednesday until Thursday morning and alternate weekends, from Friday after school until Sunday afternoon. He has telephone access every other day and additional access in the summer and various holidays.

[4] Ms. Bartlett would like to return with the children to Japan for a number of reasons. In no particular order, they are: family, work and lifestyle. Although Ms. Bartlett has worked in Canada, she has, understandably, not been happy with her job. She was a “service rep”, serving Japanese customers and, because of the difference in time zones, had to work from 7:00 p.m. until 3:00 a.m. During the time that she worked at the job, Mr. Bartlett took over the weekly care of the children. Ms. Bartlett is certain that she will be able to get and to maintain better employment in Japan. Along with better employment opportunities, Ms. Bartlett thinks her cost of living will be less and her residence spacious as she will be residing with her parents in their four-bedroom house free of charge. In Toronto, Ms. Bartlett and the children live in a two-bedroom duplex.

[5] Ms. Bartlett also feels that she will be able to use the assistance of her parents to baby-sit, take the children to school, et cetera. Ms. Bartlett has recently received treatment for breast cancer and, although in remission, would like her family’s help. As well, Ms. Bartlett feels the city to which she would be moving is safer in that it is one-third of the size of Toronto. She has stated that the children have few friends here and would have many more friends in Japan.

[6] Mr. Mecetta Mourai was called as a witness by Ms. Bartlett. He is the minister at the church that Ms. Bartlett attends and appears a very gentle and kind man. It is a very small and close-knit church and Mr. Mourai indicated that Ms. Bartlett is not as isolated as she appears and, in fact, she attends the church regularly, has friends there and does attend a women’s group there. He did testify that her children are somewhat isolated at the church in that they are more “Canadian like” than “Japanese like”. As well, Ms. Bartlett called a witness, David Van Sant, who worked for the same company as did Ms. Bartlett in 2003. He indicated that she was well liked at work and that he has and would assist her with her résumé and in searching for a job. At present, as Ms. Bartlett testified, she is weak from her treatment and so cannot seriously search for employment. But Ms. Bartlett and her doctor expect this phase to pass.

[7] Mr. Bartlett is 42 years old and was born and raised in Canada. In 1989, he went to Japan with his mother and, while there, was fortunate to get a “working holiday” visa, which meant that, contrary to normal rules, he did not require a B.A. to work in Japan. He taught English as a second language. He taught English as a second language again in Japan between 1996 and 2001, this time on a spousal visa. Neither of these options is open to him now, so he could not work in Japan again without a B.A., which Mr. Bartlett does not have. Mr. Bartlett has always worked teaching English as a second language. This is what he is trained to do and seems to get employment in this area fairly easily. He is presently doing that, earning $16.50 an hour. He works from 8:45 a.m. to 1:45 p.m., Monday to Friday. Mr. Bartlett has lived for the past number of years in a rental accommodation where he is the main tenant. He earns some extra income by subletting various units in the house. His combined income is roughly $40,000 dollars yearly.

[8] Mr. Bartlett testified that the parties married in Canada and went to Japan for a previously agreed specified time, namely five years. They were hoping to make a fair bit of money there, a bit of a nest egg, along with recruiting help from Ms. Bartlett’s family with the children. The plan was always to return when Meg was entering grade I.

[9] Actually, the plan in Japan did not work out well at all. Mr. Bartlett had what amounted to a nervous breakdown — eye twitches, nervousness and emotional difficulties. The marriage deteriorated and counselling did not help. Although Ms. Bartlett was aware that the marriage was virtually over, she insisted on coming to Canada. Mr. Bartlett indicated that Ms. Bartlett was very clear that she did not want the children raised in Japan, where she had been raised. She had found it to be a very stoic, conservative and harsh culture. Mr. Bartlett testified that, in Japan, he had difficulty being involved with the children. He commuted three hours daily, taught at two schools and conducted private lessons as well. However, when the parties returned to Canada, things drastically changed. His work hours here allowed him to spend much more time with the children and, even when the parties separated, he would attend the matrimonial home before and after work so that the children would see him.

[10] It seems to me that Mr. Bartlett has always had the children’s interests at heart. One example was when the initial Wednesday access was originally from 3:00 to 6:00 p.m. at his house. Mr. Bartlett felt that this was too much dislocation and tramping around for the children and suggested it be at the mother’s house. This is, in fact, what happened until April 2004 when the Wednesday access was extended by court order to overnight. When the children are with Mr. Bartlett, he is very involved with them. They go on excursions to places such as the Science Centre, the museum and Centre Island. They do crafts, recently building and installing a bird house. They have school friends. They visit with Mr. Bartlett’s relatives, his sister and their children, who have moved to Belleville and who Mr. Bartlett intends to continue visiting. Mr. Bartlett and his children recently visited with his father who resides in North Bay. His mother, who resides in the West Indies, comes to visit fairly often. They also visit with Mr. Bartlett’s grandmother. Josh, in particular, is very close with Mr. Bartlett, “sticking to him like glue”. On his phone calls, Mr. Bartlett tries to help Josh with his homework. Mr. Bartlett has a number of serious concerns should the children be moved to Japan.

[11] He thinks the children’s relationship with him will be virtually severed. First of all, unlike the cases of Gordon v. Goertz, 1996 CanLII 191 (S.C.C.), [1996] 2 S.C.R. 27, 196 N.R. 321, 141 Sask. R. 241, 1996 CanLII 191 (S.C.C.), [1996] 5 W.W.R. 457, 114 W.A.C. 241, 134 D.L.R. (4th) 321, 19 R.F.L. (4th) 177, [1996] R.D.F. 209, [1996] S.C.J. No. 52, 1996 CarswellSask 199, or Bjornson v. Creighton 2002 CanLII 45125 (ON C.A.), (2002), 62 O.R. (3d) 236, 166 O.A.C. 44, 221 D.L.R. (4th) 489, 31 R.F.L. (5th) 242, [2002] O.J. No. 4364, 2002 CarswellOnt 3866 (Ont. C.A.), Mr. Bartlett would be unable to afford frequent visits. The cost of flights, even if (as Ms. Bartlett suggested the child support could be used for some) would allow only one or two visits a year. The price of accommodation for Mr. Bartlett in Japan would only add to this difficulty. Given the apparent hostility of Ms. Bartlett, it would be totally unrealistic, as she suggested, for Mr. Bartlett to stay with her relatives in Japan. As for flying the children to Canada, it would be expensive and, given their young ages, almost impossible to organize. Quite rightly, Mr. Bartlett cannot conceive of the children’s flying such a distance on their own. As well, Mr. Bartlett has no confidence that Ms. Bartlett will go out of her way to accommodate visits or calls. Right now, she is very rigid with, for example, the telephone calls. He is not allowed to speak with the children one minute over the five-minute allowable time.

[12] He is also concerned that, given the mother’s illness, the children ought to be close to their father for nurture and for emotional and physical support. Mr. Bartlett also testified about the great upheaval that a move to Japan would cause the children. He is sceptical that Ms. Bartlett’s family is as supportive to the children as she suggests. There is some corroboration for this. All the while that the Bartletts have been in Canada, no member of Ms. Bartlett’s family has come to visit the children, even during their mother’s treatment for cancer. Joshua does not read or speak Japanese. Meg may remember a few words from her time in Japan. The society and culture in Japan is very different from that in Canada. As the minister at Ms. Bartlett’s church testified, the Japanese culture is more reserved and these children are very Canadian. It would be a big learning curve for these children, particular Josh who is already having trouble in school not only in learning but also even in sitting still. The children are happy and well-adjusted here and Mr. Bartlett is concerned about the effect that such an upheaval would have, particularly if their father is not by their side to support them. As Appeals Justice John Laskin noted in Young v. Young 2003 CanLII 3320 (ON C.A.), (2003), 63 O.R. (3d) 112, 168 O.A.C. 186, 223 D.L.R. (4th) 113, 34 R.F.L. (5th) 214, [2003] O.J. No. 67, 2003 CarswellOnt 63 (Ont. C.A.), the court must ultimately look to the best interests of the children in allowing the variation requested. One must balance the benefits that the mother might achieve against the detriments of the move. In this case, securing employment, improving her lifestyle and being close to her family must be balanced against the detriment of the opposed move. The items considered by Justice Laskin in that case mirror the concerns in this case — namely, the disruption to the children from the move, the effects of the move on the existing parenting relationship between the children and their father and the desirability of maximizing contact between the children and both their parents.

[13] As noted above, the disruption to the children will be enormous. Josh has lived in Canada for all his school years and Meg since grade I. They have gone to the same school, lived in the same neighbourhood and have developed a relationship with friends, neighbours and relatives. If moved, not only will all of this be lost, but they will also have to learn a new and very different language. It is clear to me that Josh, in particular, will find this difficult. The effect on the children’s relationship with their father will be immense and detrimental. I have no sense that Ms. Bartlett was particularly concerned about this. The only suggestion that she had to accommodate the contact was to forgo child support in an effort to assist with the financial cost of contact. Mr. Bartlett has done the research into the cost of travel to and from Japan and accommodation there and has satisfied me that, given these parties’ incomes, it is simply prohibitive.

[14] I was impressed by Mr. Bartlett’s testimony that not only the quantity but also the quality of his access is extremely important to these children. In this case, there is no way that alternative access would ensure that this quality would be maintained. I am also concerned that the principle of maximizing contact would be utterly destroyed in this case. Given the distance, the cost, the apparent rigidity, even now, of Ms. Bartlett vis-à-vis telephone access, contact with the father would be anything but maximized. Enforcement of any access order would be almost impossible, given that Japan is not a signatory to the Hague Convention on Civil Aspects of International Child Abduction, [1983] Can. T.S. No. 35.

[15] When one weighs the above three factors against the reasons that Ms. Bartlett wants to move, the answer becomes even clearer. As noted, Ms.-Bartlett wants to move for three reasons. First, she has lined up a job in Japan to be an English instructor, whereas she does not have a job in Canada. Her evidence on searching for employment in Canada after her first job was scanty. She simply said she was not qualified for a job here. There was however no evidence of job interviews, of applications, of attempts to upgrade her skills. Her second reason was to be closer to her family. Yet there was no evidence that her family in Japan is particularly concerned with Josh and Meg. There have been no visits either by Ms. Bartlett and the children to Japan or by any relatives in Japan to Canada. I heard no evidence of calls, correspondence or other communication by Ms. Bartlett’s family to the children — albeit, that might be difficult given the language barrier. There was no evidence that her family has made any attempt to assist Ms. Bartlett financially during her times of unemployment even though I gather that they are to some extent quite comfortable in Japan. As to improved lifestyle, this was intertwined with the first two factors and the same comments apply.

[16] In all the circumstances, I do not think that it is in the children’s best interests that they be moved to Japan and that Mr. Bartlett’s access be varied to allow such a move. Accordingly, Ms. Bartlett’s application is hereby dismissed.