Court File and Parties
Court File No.: Toronto DFO-13-00010377 Date: 2018-10-15
Between: Tanya Grieder Applicant
— and —
Oleh Kovalchuk Respondent
Before: Justice Sheilagh O'Connell
Heard: September 14, 2018
Decision released: October 15, 2018
Counsel:
- Tanya Grieder ............................ acting in person, assisted by Duty Counsel, Ray Maruschak
- Dumoluhle Siziba .......................................................................... counsel for the Respondent
Ruling on Motions
1. Introduction
1Both parties have brought motions for temporary orders regarding the father's access to the child of their relationship.
2The respondent father seeks a temporary order for liberal and generous access, including alternating overnight weekend access, telephone access and holiday access. He also seeks an order that the applicant mother shall not relocate with the child outside of the Province of Ontario, an order that the applicant mother inform the child that the respondent is his father and refer to him as such, among other relief.
3The applicant mother seeks a temporary order that the father's overnight access be eliminated and replaced with two separate eight hour visits with the child during the period of September to December of 2018. She also seeks an order that both parties provide a valid driver's license and insurance documents for any vehicle in which the child will be transported.
4Both parties also sought an order requesting the assistance of the Office of the Children's Lawyer. At the outset of the hearing, the parties had already agreed to a referral to the Office of the Children's Lawyer ("OCL").[1]
5The child who is the subject of these proceedings is known as Luka Kovalchuk Gordon Grieder or Luka Gordon Grieder, born November 7, 2012 ("Luka"). The parties have referred to the child's name differently in their materials. However, the Final Order of Justice Heather Katarynych dated July 29, 2014, provides that the child's full name shall be "Luka Gordon Kovalchuk Grieder".[2]
6Luka is five years old and will shortly be turning six years old.
2. Brief Background
7The mother is a neuroscientist and currently employed as an instructor at Trent University, the University of Toronto, and Ryerson University. The father is a former professional volleyball player and he is currently enrolled in a post-secondary program training to become a firefighter.
8The parties commenced a dating relationship in 2011 in Toronto, Ontario where both parties were residing at the time. The mother became pregnant and Luka was born on November 7, 2012. The parties separated in April or May of 2013.[3]
9The mother deposed that she has been solely responsible for Luka since his birth and that the father spent the first three years of Luka's life in Europe pursuing a professional volleyball career.
10The father deposed that the parties stayed together as a couple for the first six months after Luka was born and that he assisted the mother in caring for Luka, including bathing and feeding him. However, after the parties separated in 2013, the father left for Europe to pursue professional volleyball and until June of 2016, he was spending the majority of his time in Europe.
11The mother commenced an application for custody in 2013, following the parties' separation. She sought sole custody, supervised access, child support and an order that the child's name be changed from Luka Stanislaw Grieder Kovalchuk to Luka Grieder Kovalchuk. The father filed an Answer seeking access.
12The parties reached Final Orders on December 18, 2013, July 3, 2014 and July 29, 2014 as follows:
The Applicant mother is granted sole custody of Luka (granted on an uncontested basis);
The Respondent father is granted access with Luka once a week for a period of two hours. The parties shall agree in advance on the day and time and any additional access time between themselves. The mother shall be present during access unless otherwise agreed to by the parties;
The Respondent father shall pay child support in the amount of $228.00 per month based on an imputed income of $28,000.00 per annum;
The name of the child shall be "Luka Gordon Kovalchuk Grieder". In the event that only one middle name is required or allowed for Luka on any legal documents or legal applications, then the name "Kovalchuk" shall be the middle name used by the parties.
13The father returned to Toronto, Ontario permanently in June of 2016. He deposed that he did so in order to re-build his relationship with Luka. According to the father, although he was away in Europe and travelling back and forth to Canada for a few months at a time, all of his efforts to maintain a relationship with Luka were resisted by the mother.
14The father deposed that while he was in Europe, the mother would not permit any access between Luka and his paternal grandmother and would not permit the father or any member of his family to disclose to Luka that he was Luka's biological father. She further refused to let the father have any physical contact with Luka during any access visits that occurred while the father was in Canada. According to the father, the mother made it clear that he had no role to play in Luka's life and that she did not want Luka to know that he was his father.
15The mother denies restricting the father's access to Luka. She deposed that the father voluntarily withdrew from Luka's life by moving to Europe. After the final orders were made, the father made no effort to vary custody or to expand his access. According to the mother, Luka did not know the father at all, as he was a complete stranger to him. Further, the mother had become involved in a new relationship with a person named Paul whom Luka viewed as his father and called "Dad". The mother deposed that she was concerned how Luka would react if he was told that the respondent was his biological father.
16The mother acknowledged that she did not want Luka to know that the respondent was his father or to introduce Luka to his paternal grandmother, but states that she sought out the opinions of professionals who agreed that it would be difficult information for Luka to process and that it was not an appropriate time to do so. She further deposed that the previous case management judge also made this recommendation.[4]
17On August 18, 2017, the mother brought an urgent motion/case conference seeking to relocate with Luka to Las Vegas, Nevada. Her reasons for the proposed move were as follows:
The mother had recently married a new partner, Stephen Zabinski, and they were having a child together, due in or about March of 2018. Mr. Zabinski resides and works in Las Vegas;
The mother had been offered a permanent position with the University of Nevada, Las Vegas with the opportunity to grow the Neuroscience program offered there. This opportunity was not available for the mother in Toronto as there were no permanent positions in her specialised area of study. The position will offer the mother significantly more income;
The mother and Mr. Zabinski planned to raise Luka and their new child in their three bedroom detached home with a large backyard in Las Vegas, and they had secured a position for Luka in a private well recognised school close to their home.
18At the motion/case conference on August 18, 2017, after extensive negotiations, the father consented to the mother relocating with Luka to Las Vegas.
19Specifically, on consent of the parties, the court made the following order:
The Applicant mother may relocate with Luka to the United States.
The Respondent father shall have the right to make inquiries and be given information directly by the child's service providers regarding the child's health, education and welfare (CLRA 20(5)). The Applicant mother shall sign all consents to facilitate such access as requested by the Respondent father.
The Respondent father may make such inquiries about the child's well-being from the Applicant mother. The Applicant mother shall inform the Respondent father about any major development and shall respond to requests for updates within seven days.
20At the same hearing, the court also made the following temporary order on consent of the parties:
The Applicant mother shall arrange for the child to travel to Canada once every three months to facilitate access with the Respondent father on a temporary basis.
The Respondent father shall have temporary unsupervised access to the child as follows:
a. American Thanksgiving weekend - two separate visits for four hours each;
b. Winter (December to March 2017) - two separate visits for six hours each;
c. Spring (March to June 2017) - two separate visits for 6 to 8 hours each;
d. Summer (June to September 2018) - two separate visits for 8 hours each;
e. Fall (September to December 2018) – one overnight access weekend.
The parties shall negotiate further conditions regarding the introduction of overnight access and future summer access. If the Respondent father cancels access visits or if access is not progressing accordingly, the Applicant mother may bring a motion to stop overnight access.
The Applicant mother shall be responsible for travel expenses for the child.
Ontario shall retain jurisdiction over the child and the parties, if necessary, shall execute all documents with the appropriate authorities to ensure the validity of this provision;
The Respondent father shall have electronic access to the child by Skype, Facetime or other during holidays, Father's Day and birthdays, the times and dates of the calls to be agreed to in advance.
The Respondent father shall have access in Las Vegas or other agreed locations for period to be agreed. The parties shall agree on the dates and times of the visits in advance, and at least on fourteen days' notice from the father. If the parties cannot agree upon a schedule, the access shall be a minimum of six hours. The Applicant mother shall ensure that the child is available for the access period and shall inform the Respondent father of any prior commitments.
21The matter was then adjourned to June 20, 2018 for a case conference and/or motion to review the progression of the temporary access order prior to the increase to overnight access, as contemplated in the Temporary Order of August 18, 2017.
22On June 20, 2018, the case conference was held before the court. Both parties filed case conference briefs.
23It was the father's position that access had gone very well and that it was in Luka's best interests to progress to the overnight weekend access pursuant to the August 18, 2017 Temporary Order.
24It was the mother's position that access had not gone well. She was seeking to cancel the father's planned overnight access with Luka as she was concerned about the child's well-being in the father's care. Although the father has exercised all of the access under the Temporary Order, it was the mother's position that the father's residence was completely unsuitable for a young child, that Luka was very apprehensive and he did not want to return to the father's residence. He was also fearful of the father's girlfriend.
25At the same case conference, the court was advised that the mother had given birth to a baby boy on December 31, 2017, that Luka's transition to Las Vegas was "very smooth" and that he had "quickly adjusted to his new life", according to the mother's case conference brief, dated June 13, 2018. The mother also stated in her brief that Luka loves living with the mother, Mr. Zabinski and his little brother in Las Vegas, he is progressing well in school there"he is extremely happy in Las Vegas" and "it is in his best interests to continue residing there."
26After discussion and negotiation, the parties were not able to resolve the issue of the father's overnight access and a further date was set for a motion and/or continuing case conference for September 14, 2018. The parties also agreed to request the assistance of the Office of the Children's Lawyer.
27On September 14, 2018, both parties' motions were before the court. At that hearing, the court learned for the first time that the mother and Mr. Steve Zabinski had in fact separated a number of months previously and that the mother and Luka had been living in Ontario for several months, including at the time of the June 20, 2018 case conference.
28This information was not disclosed to the court during the June 20th case conference.
29After the June 20th conference, Mr. Zabinski had contacted the father's counsel and advised him that the mother had returned to Canada in December of 2017. On March 26, 2018, she commenced a court action in Cobourg, Ontario seeking sole custody of her child with Mr. Zabinski. According to Mr. Zabinski, Luka and the mother had been in Ontario from mid-December 2017 to the present, with the exception of living in Las Vegas for a period of only seven weeks from April 2nd to May 17th, 2018.
30The father obtained a copy of the mother's court application for custody of her child with Mr. Zabinski, commenced in Cobourg, Ontario. The application was signed by the mother on March 26, 2018 and issued by the court in Cobourg, Ontario on the same date, three months before the June 20, 2018 case conference in this case.[5]
31In the mother's application against Mr. Zabinski, she states that "The child Zack Grieder Zabinski and I, his mother, have lived in Cobourg, Ontario since Zack's birth [December 31, 2017]…The father Steven Zabinski resides in Las Vegas." In the 'Family History' section of page 3 of the mother's application, under 'Relationship Dates', she states that she and Mr. Zabinski "never lived together".
32The father also learned, not disputed by the mother, that she had been working in Toronto during the summer of 2018 and that she and Luka and her second child had been living in Ontario for several months.
33The mother did not notify the father that she and Mr. Zabinski had separated and that she and Luka had returned to Ontario until August 20, 2018.[6]
34The court also learned that at the time the parties were negotiating the mother's relocation with Luka to Las Vegas in August of 2017, she was facing criminal charges for alleging assaulting Mr. Zabinski. These charges were later withdrawn. This information was not disclosed to the court during the August 2017 case conference.
35The mother has now purchased a home in Peterborough, Ontario as she has secured a teaching position at Trent University. She will also be working as an instructor at the University of Toronto and Ryerson University. It is her plan to remain living in Ontario with her children.
3. Position of the Parties
The Father
36The father submits that it is in the child's best interests to commence overnight access with him immediately. He asserts that he has worked hard to build a relationship with Luka despite being significantly absent in his early years. Luka is comfortable around him and enjoys their time together. He states that he has taken parenting courses, he has appropriate accommodation for overnight access, and that Luka is safe with him and attached to him.
37The father further submits that the mother has attempted to alienate Luka from him for many years. He submits that she has been unwilling to facilitate any access with him and his family members, has prevented Luka from knowing that he is his father, refuses to refer to him as such when speaking with Luka and refuses to abide by the court order regarding the child's name.
38The father states that the most compelling example of the mother's unwillingness to facilitate a relationship between he and Luka has been her failure to disclose that they have been residing in Ontario for approximately nine months and that they have not been living in Las Vegas. The mother continued to significantly limit the father's access to Luka when he was only one hour away in Peterborough, Ontario.
The Mother
39The mother submits that although she consented to the temporary order for overnight access to commence in the fall of this year, overnight access is not in Luka's best interests. She asserts that Luka does not want to speak to his father or interact with him and that he "never wants to go to [the father's] apartment again". It is her position that although she recognizes that "Luka having a relationship with his father is important and beneficial for them both", she would like the Office of the Children's Lawyer to assess the situation and make recommendations as to how access should proceed prior to Luka having overnight visits.[7]
40The mother denies being untruthful about where she and Luka have been residing this past year. She states that she returned to Ontario in December of 2017 for the birth of her second child, who was born prematurely. She stated that she remained in the hospital in Peterborough with her second child and Luka for several weeks. According to the mother, this was a very stressful time for her and she was not in a position to facilitate access between the father and Luka. She further states that she did return to Las Vegas for a number of weeks in April and early May of this year prior to returning to Ontario.
41The mother further states that she declared that Mr. Zabinski and she had "never lived together" in her application for custody commenced in Cobourg because she had not obtained "legal residence" status in the United States. She had a 'green card' or J1 Visa for work purposes only.
42She states that in August of this year, she eventually informed the father that she and Mr. Zabinski had separated and that she and Luka were living in Peterborough, Ontario.
43The mother states that the reason she did not disclose the criminal charges against her in the August 18, 2017 case conference was because they were "bogus", according to Duty Counsel, and withdrawn before the Case Conference date.
44The mother blames her former lawyer for the failure to provide more accurate information at the case conference on June 20th, 2018, although she states that they did inform the court that she had been in the hospital in Peterborough, Ontario for a number of weeks after the birth of her second child.
45The mother further submits that the father was minimally involved in Luka's life since Luka's birth and that he withdrew from being involved in Luka's life when he moved to Europe in 2013. She further submits that since the father returned to Canada in 2016, he has not at all attempted to expand his access to Luka. She asserts that Luka has been very resistant to having access with the father as he is a stranger to him.
4. The Law and Analysis
Variation of Temporary Orders
46Both parties are seeking a variation of the Temporary Order for access dated August 8, 2017. The variation of temporary orders is governed by section 29 of the Children's Law Reform Act. Section 29 provides that a court shall not vary an order unless there has been a material change in circumstances. A change in circumstances is not sufficient. The change must be "a material change". This means it must be "substantially important". McIsaac v. Pye, 2011 ONCJ 840.
47However, in this case the Temporary Order governing the father's access clearly contemplated a review and transition to overnight access in a schedule that gradually increased over a period of several months. In accordance with the Temporary Order, made on consent of the parties, a material change was not required to transition to overnight access if access was progressing well.[8]
48In any event, notwithstanding the above, the mother's separation from Mr. Zabinski and her return to Ontario with Luka is without doubt a material change in circumstances affecting Luka's best interests.
49Luka is now living in Ontario, not Las Vegas, and in fact, Luka has been living in Ontario for most of the past year. The access negotiated in the governing Temporary Order was clearly premised on the mother's relocation with Luka to Las Vegas. The original access provisions were crafted to address the significant distance between the father and the child once the mother moved to Las Vegas.
The Test for Determining Access
50The test for determining access and any changes to access is what order is in the best interests of the child. In making this determination, the court has considered the "best interest" factors set out in subsection 24(2) of the Children's Law Reform Act, as well as all other relevant considerations.
51Ultimately, the court must decide whether overnight access is in Luka's best interests and consider the factors set out in subsection 24(2) of the Children's Law Reform Act in reaching this decision. This subsection reads as follows:
Best interests of child
(2) The court shall consider all the child's needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child's family who reside with the child, and
(iii) persons involved in the child's care and upbringing;
(b) the child's views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) any plans proposed for the child's care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
52It is a well-established legal principle that a child should have maximum contact with both parents if it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27. This even applies when the child is reluctant to see a parent. The principle of "maximum contact" also applies under provincial cases, even though it is not set out in the Children's Law Reform Act. See Cavannah v. Johne, [2008] O.J. No. 5027 (S.C.J.).
53The Court has to view what is in the best interests of the child, not the parents. The maximum contact principle is mandatory, but not absolute. The principle only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests. If other factors show that it would not be in the child's best interests, the court can and should restrict contact. See Young v. Young, [1993] 4 S.C.R. 3, at pages 117-18; Casselman v. Noonan, 2017 ONSC 3415 (S.C.J.).
54The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child's physical or mental well-being. See Pastway v. Pastway (1999), 49 R.F.L. (4th) 375 (Ont. General Division).
55There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar, [1996] N.B.J. No. 38 (NBQB).
56The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. M.A. v. J.D., [2003] O.J. No. 2946 (OCJ).
Application to the Facts of this Case
57In this case, there is no credible evidence to warrant the continued restriction of the father's access with Luka. The court has serious concerns about the mother's credibility and her willingness to foster a relationship between Luka and his father.
58The Temporary Order dated August 18, 2017 was negotiated at length between the parties and counsel. It was premised on the mother's relocation to Las Vegas to join her new husband with whom she was having a child. In good faith, the father agreed to the relocation of Luka to be with his mother in Las Vegas because he believed that this was in Luka's best interests.
59The access order negotiated contemplated the long distance between Luka and his father. It was clearly not practical or possible to have a 'regular' mid-week or alternating weekend access schedule given the distance between the parties. It was also a graduated order to permit Luka to have increasing unsupervised access with his father until the overnight access was to commence in the fall of this year.
60The purpose of the June 20th 2018 case conference was to review how the access was going prior to commencing the overnight access. During that case conference, the mother failed to disclose to the father and to the court that she and Luka had been living in Cobourg and Peterborough, Ontario since December of 2017, but for a period of seven weeks in April and May of 2018 when they were in Las Vegas.
61The mother states that she did advise the court that she and Luka were in Ontario living at the Peterborough hospital for a number of weeks after the birth of her second child.
62However, she did not disclose to the court or the father that she had separated from her husband in March of 2018, that she had commenced court proceedings against him in Cobourg, and that she and Luka were living in Peterborough, Ontario. She further did not disclose that she was working in Ontario over the summer or that she had purchased or was in the process of purchasing a house in Peterborough.
63The June 20th case conference was premised on the fact that the mother and Luka were continuing to live in Las Vegas with Mr. Zabinski, and hence the negotiations regarding access were conducted on this basis. Indeed, the mother stated the following in her Case Conference brief dated June 13, 2018:
"Luka loves living with the Applicant mother, Steve [Zabinski] and his little brother in their three bedroom home with his own room, a two car garage and a large backyard [in Las Vegas]. … He has also grown even closer to Steve's extended family, as they have treated him as their own…Since September 2017, Luka has been attending a pre-school called Kids R Kids Learning Academy... Luka has been progressing well at Kids R Kids and he has made many friends with whom he has formed close bonds…Luka regularly expresses to the Applicant mother that he is extremely happy in Las Vegas and wants to continue residing there. As such, it is in Luka's best interests that he remain with the Applicant mother in Las Vegas."[9]
64The mother is a sophisticated, highly intelligent and highly educated person. She is also an experienced litigant. The mother misled the court and the father about where she and the child were living during the June 20th case conference. The court is of the view that the only possible explanation for this was to continue to restrict the father's access to Luka.
65The lengthy email correspondence between the parties (attached as exhibits to the father's affidavit) provides corroborating evidence of the court's view. In the correspondence, the mother is highly critical of the father and his relationship with Luka. Further, she acknowledged in her own materials that she did not wish to disclose to Luka that the respondent was his father, nor did she encourage him to call him such. Throughout these proceedings, she has also failed to abide by the Order of Justice Katarynych dated July 29, 2014 to include the father's last name in Luka's full name.
66In an email dated August 21, 2018, when the mother finally disclosed to the father that she and Luka are living in Peterborough, Ontario, the mother writes the following:
"…We have until the end of September to schedule 2 visits of 8 hours each. I asked Luka if he would like to stay overnight and he told me he does not want to go to your apartment. So I will have to decline your request for an overnight, although I will force Luka to do an 8 hour visit, as per the court order." [Emphasis added.][10]
67The mother's failure to disclose to the court and the father that she had been criminally charged with assaulting Mr. Zabinski prior to her August 18, 2017 motion to relocate to Las Vegas also raises concerns about her credibility. These charges should have been disclosed even if they were later withdrawn.
68At the time of the August 18, 2017 motion, the court was assessing the strength of the mother's plan to relocate to Las Vegas with her new husband. The fact that mother had been charged with assaulting him would have been a relevant consideration in determining the strength and stability of their relationship.[11]
5. Conclusion and Order
69The evidence demonstrates that the father has worked hard to re-establish a relationship with his son, notwithstanding his limited involvement until June of 2016. He has taken an eight to ten week parenting program for parents with children from birth to age six through Toronto Public Health. He has gained insight and understanding into caring for young children through this education.
70The father has exercised all of the unsupervised access under the Temporary Order dated August 18, 2017. The only visit missed was on Friday June 29, 2018 when the mother refused to permit the visit to take place unless the father produced copies of his valid driver's licence and insurance documents. The father states that he informed the mother that she did not have the authority to impose additional conditions on his access and the mother then cancelled the visit.
71The father deposes that he loves Luka very much and wants to be involved in his life. He deposes that he and Luka enjoy their time together. It is the father's evidence that Luka interacts with him very positively when they are together and has expressed love and affection towards him. The father has also observed that Luka tends to be more relaxed when they are alone and that he becomes shy and quiet when the mother is watching their interactions. The father has described his apartment in his affidavit material. It appears safe and appropriate. The father's girlfriend is not living with him, although there is no evidence of any concerns.
72The court prefers the evidence of the father over the mother for the reasons set out above. There is currently a temporary order for overnight access in place, subject to review. Luka has been living in Ontario for approximately nine months, since returning from Las Vegas. It is in his best interests to commence overnight access with his father, in accordance with the Temporary Order.
73However, rather than moving immediately to full weekend access, the court is ordering a graduated schedule to ensure that the transition to full weekend access is smooth and child-focused, keeping in mind Luka's age and development.
74In carefully considering all of the above factors, the court makes the following temporary order regarding the father's access:
Commencing Saturday, October 20, 2018, the father shall have access to the child each weekend from Saturday at 12 noon to Sunday at 4:00 p.m. until the weekend of November 10, 2018 (a total of 4 overnights).
Commencing Friday, November 16, 2018 and thereafter, the father shall have alternating weekend access with the child from Friday at 4:00 PM to Sunday at 6:00 PM.
The parties shall equally share the transportation of the child, such that they will choose an appropriate mid-point between Toronto and Peterborough for the pick-up and drop off of the child. If the parties cannot agree upon a mid-point for the pick-up and drop off the child, then the mid-point shall be Oshawa, Ontario, at the Oshawa GO Station located at 915 Bloor St West, Oshawa, ON L1J 8M6.
The father shall also have the right to telephone or Skype access, at a minimum of twice per week, at a date and time agreed upon by the parents. If the parties cannot agree upon a date and time, then the telephone or Skype access shall be on Tuesdays and Thursdays at 7:00 P.M. Given the attention span of children at Luka's age for telephone or Skype, the telephone or Skype access shall be limited to no more than ten minutes at a time.
The father shall have the right to information regarding Luka's education, health and welfare and may communicate with any teacher, doctor, medical professional, coach, principal or other professional who has contact with the child in order to obtain information directly about the child. The mother shall, upon the father's request, execute any direction or authorization to permit the father to do this. The mother shall notify the father in writing of all professionals, including doctors, medical professionals, counsellors, teachers, coaches who are involved in Luka's life.
The mother shall not remove the child from the Province of Ontario without a further court order.
A copy of this decision and order shall be provided to the Office of the Children's Lawyer if they chose to accept the referral of this case.
The parties shall return before the court on November 15, 2018 for a continuing case conference to review these access provisions and to determine Christmas and other holiday provisions.
75The court is not prepared to make a police enforcement order at this time, however, this request may be renewed in the future should that be necessary.
76If the father is seeking his legal costs, then he shall serve written submissions limited to three pages, not including any bill of costs or offers to settle, no later than October 30th, 2018. Any response by the mother to be served and filed by November 14th, 2018.
Released: October 15, 2018
Signed: "Justice Sheilagh O'Connell"
Footnotes
1On June 28, 2018, the court made an order referring the issue of access to the OCL. However, the father did not complete his intake form in time and on September 13, 2018, a second referral was made to the Office, again with the consent of the parties.
2Paragraph 2 of Justice Katarynych's Final Order also provides that "In the event that only one middle name is required or allowed for Luka on any legal documents or legal applications, then the name "Kovalchuk" shall be the middle name used by the parties." See Endorsement Record, Orders.
3The mother states that the date of separation was April 4, 2013 while the father states that the date of separation was May of 2013.
4Paragraphs 20 and 8 of the Mother's Affidavit sworn August 14, 2017, Vol. 2 Continuing Record.
5Exhibit "D" to the father's Affidavit sworn September 7, 2018.
6Email dated August 20, 2018, Exhibit "G" to the father's Affidavit, sworn September 7, 2018.
7Paragraphs 10 - 12 of the Mother's Affidavit sworn September 5, 2018, Vol. 3 Continuing Record.
8Paragraph 6 of the Temporary Order provided that the parties "shall negotiate further conditions regarding the introduction of overnight access and future summer access. If the Respondent father cancels access visits or if access is not progressing accordingly, the Applicant mother may bring a motion to stop overnight access."
9Paragraphs 24, 25, 26 and 28 of the Mother's Case Conference Brief dated June 20, 2018. Although in general, Rule 17(23) of the Family Law Rules provides that no brief or evidence prepared in a conference shall be disclosed to any other judge, this is not a blanket prohibition. The spirit of Rule 17(23) is to ensure that conferences are conducted in a frank and open atmosphere for the purpose of achieving settlement. A statement made by a party at a conference can be disclosed for a legitimate need, or when its probative value outweighs its possible harm, which is clearly the case here, given the mother's blatant misrepresentation during the conference. See Benet v. Benet, [2009] O.J. No. 4635; Children's Aid Society of Niagara Region v. N.R., [2004] O.J. No. 1526.
10Exhibit "G" to the father's Affidavit sworn September 7, 2018.
11Further, the father attached information from Mr. Zabinski's counsel to his Affidavit which strongly suggested that the charge against the mother was not "bogus" at all, and that a violent incident had occurred between them when the mother was two months pregnant. Exhibit "C" to the father's Affidavit sworn September 7, 2018.