Ontario’s attorney general is being asked to investigate an “extreme” child custody case that has resulted in a single mother languishing in jail for nine months for disobeying a court order to return her daughter home from China.
“The entire situation is shocking,” Toronto lawyer Barry Swadron, who represents the woman’s family, wrote in a letter to Madeleine Meilleur.
The woman has alleged she was mentally and sexually abused for a decade by a Toronto man, whom police charged with a slew of offences, charges that have since been stayed. He denies the allegations, and is seeking the girl’s return.
Swadron says the woman reached a point where she was physically and financially unable to return her daughter to Canada from China, where the 11-year-old has been living with relatives since late 2010.
“She is charged with disobeying a court order. She tried to comply, but it became impossible for her to obey it. She is languishing in prison in a manner which is akin to debtors’ imprisonment,” wrote Swadron, referring to a long abolished practice of jailing people who could not pay debts.
Swadron and the woman’s family are asking that the Crown use its discretion to withdraw the charge that has kept her jailed at the Vanier Centre for Women since October and that she be released “immediately.”
The letter was delivered to Meilleur on July 14. She has yet to respond to Swadron, and the ministry would not address specific and general questions posed by the Star, citing the fact that the case is before the courts.
Amanda Dale, executive director of the Barbra Schlifer Clinic, is familiar with the case and calls it an “extreme example” of what the legal clinic sees with women dealing simultaneously with family and criminal court matters.
“There are these contradictory intersections in the legal system where women are trying to deal with their family matters at the same time as there are outstanding, or pending, or never fully prosecuted, criminal charges, and the twain shall never meet,” said Dale. “There’s no sensible accounting for what’s going on in both sets of legal proceedings.
“The facts of the case appear to clearly call for further investigation. It appears to be an incredible Catch-22 that she’s caught in.”
The Toronto Star first reported on the case two months ago. Because it involves allegations of sexual assault — and the fact the woman did not give consent to be named and did not wish to be part of any stories — her identity and that of the man she alleges abused her are being withheld.
The Star is referring to the woman by the pseudonym Lin, and the man by the pseudonym Yousef.
In two interviews with the Star, Yousef said Lin’s story of abuse at his hands is a complete fabrication.
Whatever the case, Lin’s story highlights how family court cases and criminal cases can intertwine and become complex, particularly so when one of the parties does not have proper legal help.
Lin — a Canadian citizen who came from China in 2001 — had no legal assistance in family court, where a judge gave her time to obey an order to return her daughter from China but eventually issued a warrant for her arrest. That landed her in criminal court, where she has had some legal help.
Lin was handed a series of successive jail terms by the family court judge and was denied bail in criminal court.
In tandem with the custody dispute are 34 now inactive domestic and sexual assault criminal charges that were laid against Yousef in 2011 by Toronto police after Lin told detectives of a decade-long period of alleged threats, abuse and forced sex, and time spent in a shelter.
All of those criminal charges were stayed by the Crown in 2012 after failed police attempts to locate Lin to testify.
Court material gathered by Swadron shows the Crown believed Lin was in China based on information that came from Yousef and his lawyer. In fact, Lin was living and working in Toronto.
Swadron is asking how the Crown could rely on information from an alleged abuser in staying charges and why the charges have not been reactivated.
“She is available to testify as a witness in a trial against him,” Swadron wrote in his letter to Meilleur.
Lin’s family says she fears Yousef, who according to the most current court orders would have sole custody of the girl if she were returned.
For his part, Yousef told the Star he loves the girl and is prepared to be her sole parent.
Lin sent the girl to live with relatives in China in late 2010 during a probationary period at her job that involved shift work that made it impossible to care for the girl.
In February 2011, Lin sought to extend her daughter’s visa and contacted Yousef, who is registered as the girl’s father. That’s when Yousef, who had not seen the girl in five to six months, went to police alleging child abduction. Police called in Lin for questioning, during which she made the abuse allegations.
Yousef was charged. Lin, without a family lawyer, initiated custody proceedings as well.
She would later tell police of sexual assault allegations and, after an investigation that verified time she spent in shelters and looked at medical history, more charges were laid.
Yousef, with a lawyer, fought Lin’s custody application, and when Lin failed to bring her daughter back to Canada, he was granted sole custody. Yousef told the Star he would welcome a reactivation of the criminal charges against him and have a trial, which he is certain would prove he is innocent.
A spokesperson for the Ministry of the Attorney General told the Star in May that the Crown has not sought to recommence the proceedings against Yousef but that could change.
“As in all cases,” said the spokesperson, “any additional evidence or circumstances warranting new proceedings will be considered by the Crown.”
At the behest of Lin’s sister in Belgium, the Star visited Lin at the Vanier jail several times over several months earlier this year. She told a story consistent with what she told police and grew teary at times when talking about her daughter. She cancelled a final visit with the Star and through Swadron said she did not want to be part of a newspaper story about her situation.
The Star was also present at one family court hearing where Lin arrived in handcuffs and shackles and had no legal counsel present. There are no future appearances scheduled for family court.
Lin, according to the Ministry of the Attorney General, is charged with one count of abduction in contravention of a custody order and three counts of disobeying a court order. Her next criminal court appearance on those charges is scheduled for July 30, which will mark her 275th day in custody.