Court File and Parties
Ontario Court of Justice at Orangeville
Between
Karen Eileen Burton Applicant
and
Bobby John Woods Respondent
Heard: April 1st, 2020
Released: April 1st, 2020
Justice B.E. Pugsley
Appearances
Applicant assisted by Appeal counsel Mr. Kilgour
Respondent represents himself
As directed on March 23rd, 2020, the parties appeared on this Motion Review by written submissions due to current COVID-19 emergency
Endorsement
Background and Parties
1The parties are the parents of the child Aiden John Alvin Woods (M)(DOB: […], 2010).
2In April of 2018 they commenced a court action. They have litigated ever since.
3In the fall of 2019, a trial was held before Justice P. Clay of this court. Justice Clay released his decision on December 13th, 2019. Inter alia, Justice Clay reversed the temporary custody arrangements ordered by Justice Schwarzl of this court as an interim order. Justice Clay ordered that Aiden reside in the custody of his mother, the Applicant. The Respondent (father) had detailed access with Aiden but Justice Clay also provided numerous preconditions to access in Paragraphs 6 and 7 of his judgment herein, including a reduction of access if the police are involved in the enforcement of the order.
Appeal and Stay Motion
4The Respondent has appealed the judgment of Justice Clay to the Superior Court of Justice ("SCJ") at Orangeville. The matter of a stay of the judgment pending the hearing of the appeal has been started in that court and materials were exchanged preparing for the hearing of the Respondent's motion to stay. In the event however, that motion has not yet been heard due to delays required by the court's response to the current COVID-19 pandemic. Essentially all civil matters save for emergencies are paused during the crisis.
5Until Justice Clay's judgment is stayed in whole or in part, or the appeal has been otherwise concluded, Justice Clay's judgment remains the law between the parties.
Prior Contempt Motion
6After starting the appeal but before the scheduled return of the stay motion in the SCJ the Respondent asked this court to hear a motion that the Applicant was in contempt of Justice Clay's judgment. The issues engaged were the same issues raised by the Respondent at the appeal. The alleged deficient conduct of the Applicant was groundless and displayed the same misapprehension by the Respondent as to the validity of the judgment. The Respondent was directed to focus his complaints about the Applicant's conduct in his appeal and the SCJ stay motion and this court declined to take up the issue of the alleged contempt.
7The positions advanced by the Respondent referenced in Paragraph 6, above, included legalese and random submissions which had no basis in legal reality. Most specifically, the Respondent believes that the interim order made by Justice Schwarzl (i.e.: the one in his favour), not the final judgment of Justice Clay (i.e. the one in the Applicant's favour), governs where Aiden should stay. This fundamental error is one that the Respondent continues to assert despite his knowledge that in fact Justice Clay's order governs here until varied on appeal.
8This behaviour by the Respondent has been consistent throughout the time he has represented himself in the 2018 application. He refuses to accept the orders of the court unless those orders match his view of what they ought to say. This failure to respond to the order of the court has led to the matter before me today.
Non-Compliance with Trial Judgment
9Notwithstanding what can only be called the games played by Mr. Woods before Christmas, 2019, in refusing to comply with the delivery of Aiden to the care of the Applicant as ordered by Justice Clay, which ultimately required the involvement of the police and the local CAS agency, and Aiden (just nine) "checking himself into the hospital" in an apparent bid to avoid compliance, Aiden was seeing his father under the terms of the judgment up until the end of his access visit on March 21st, 2020.
10The police having to have been involved in the first return of Aiden to give effect to Justice Clay's judgment (see the affidavit filed by the Applicant in the SCJ file dated January 27th, 2020 attached to her emergency motion), paragraph 7 of that judgment then governed the access between Aiden and his father.
11In any event, the Respondent (father) by either of the two paragraphs of the judgment was to end his access on March 21st, 2020 and return Aiden to the care of the Applicant.
12The Respondent did not return Aiden to the custody of the Applicant on March 21st, 2020, as required by the judgment of Justice Clay.
13The Respondent by letter dated March 22nd, 2020, sent to various entities by email attachment – see Exhibit "D" to the Applicant's affidavit dated March 23rd, 2020 – informed everyone, inter alia, that he was "invoking" Justice Schwarzl's interim order made on May 1st, 2019, as the only order governing custody of Aiden; he was not going to return Aiden to the Applicant's custody; Justice Clay's order was not police enforceable; he never approved Justice Clay's judgment as to form and content and therefore that order does not have any force; and he put the police and the CAS and others on notice that he would be suing them in "federal" court should they continue to interfere with his custody of Aiden. The letter is headed "Cease and Desist".
Emergency Motion and Court Response
14On March 23rd, 2020, the Applicant brought on an emergency motion before the SCJ at Orangeville seeking to have Aiden apprehended and returned to her care.
15The SCJ directed by an endorsement in the appeal file that the matter be dealt with by the Ontario Court of Justice.
16By order made without notice on March 23rd, 2020, the Respondent was ordered to deliver Aiden to the Applicant's custody with police enforcement. That order came on before the court today by written motion review. The parties were provided a time frame to file their materials.
17The Respondent has not complied with the time frame ordered here however given the current COVID-19 emergency I have considered the position and facts he has advanced in the emails and attachments he has sent to the court.
Access Submissions
18I asked both parties to make submissions on whether access ought to be changed here given the actions of the Respondent. Both referenced on-going access in their material.
19The Respondent seeks week or two-week access (given that school is currently recessed for the pandemic emergency) and states that as of April 9th, 2020, his property was not a safety concern – an apparent reference to paragraph 9 (a) of Justice Clay's judgment. He does not address the concerns cited below at paragraph 24 which suggests that he in fact will not be able to continue to reside in Whitefish.
20The Applicant suggests that given his history the Respondent is unlikely to obey a court order that he dislikes and that next time he will simply disappear with the child to parts unknown.
Child and Family Services Involvement
21Dufferin Child and Family Services is currently providing counselling to Aiden as arranged by the Applicant as the custodial parent and as ordered by Justice Clay at paragraph 5 of his judgment.
22Counsel for the agency emailed the court office yesterday to advise that the agency had received attachments purporting to be summons to witnesses from someone they believe to be the Respondent requiring that they appear with Aiden's records at "the hearing" today. The Respondent's emails here do reference the fact that he has summonsed the agency to provide evidence and file affidavits with regard to Aiden. The agency however has advised that it does not give effect to the documents purported to be served and noted that any disclosure of Aiden's private counselling records would have to be on consent and/or with a court order.
Pattern of Intimidation and Vexatious Conduct
23As shown by the threats contained in his letter dated March 22nd, 2020, and his repeated loud and intimidating affect when dealing with court staff requiring security attendance repeatedly, the Respondent has consistently demonstrated in the past that he is prepared to try and intimidate justice system participants with threats of baseless legal maneuvers and law suits if he believes that his desired ends may be achieved by this behavior.
24The material filed by the Applicant includes material from a court proceeding which directly effects Aiden's care: the Respondent has been ordered to vacate the property where he and Aiden had been residing in Whitefish, Ontario. There is no indication of where the Respondent will be making his residence after the Writ of Possession and Notice to Vacate are executed. His attempts to prevent the eviction have been dealt with at the Divisional Court in Oshawa as recently as this winter. The latest endorsement (see Exhibit F of the said affidavit sworn on March 23rd, 2020) makes it clear that the Respondent has been declared by the Divisional Court at Oshawa to be a vexatious litigant in that matter. For example, the endorsement references that the Respondent served a personal Statement of Claim upon counsel for the Plaintiff in that action earlier this year on the date of his motion and argued that counsel could therefore no longer appear on the cause.
25As case management judge here since 2018 I have observed that the Respondent has shown many of the same traits, filing repeated groundless emergency motions for example. On December 23rd, 2019, ten days after Justice Clay's judgment, the Respondent brought on a motion in the Ontario Court of Justice in Sudbury seeking to vary the trial judgment made days earlier.
Respondent's Continued Misapprehension
26The material sent by the Respondent to the court in regards this motion review demonstrate that he continues to believe against all evidence that what he says and what he wants are the only important facts here. He states that my order is without jurisdiction. He wants a Voice of the Child report notwithstanding that Justice Clay extensively canvassed and acknowledged Aiden's wishes in the judgment dated December 13th, 2019. He attaches messages received from Aiden and messages Aiden has sent to his mother stating that he refused to return home with her after his access. The matter of this proceeding will be added to the appeal and addressed by a higher court.
27The issue of Aiden's wishes was extensively canvassed by Justice Clay in his reasons. He notes Aiden's wishes but also his age and the influence of the Respondent.
Child's Wellbeing and Parental Conflict
28The most recent material relied upon by the Respondent suggests that despite the findings made by His Honour he continues to encourage Aiden to be his ally and the enemy of his mother, placing Aiden squarely in the centre of their conflict to the point where Aiden is telling his mother that if she comes to get him after access he will refuse to go. As his ally, the Respondent is setting up Aiden to be a partner in past and potential disobedience to the orders of the court.
29If that is so then there are serious child protection concerns with Aiden having any contact with his father at this time.
Judicial Analysis and Best Interests of the Child
30I am not sitting in appeal of Justice Clay's judgment. That is the job of another court – a court already engaged by the Respondent. The Respondent has stated that he intends to appeal any order made by me here to the higher court as well: this is his right. The Applicant asked for an emergency order that Aiden be returned to her custody and that has been accomplished.
31The remaining issue is what access ought to take place pending the hearing of the Respondent's motion to stay the judgment.
32Justice Clay's judgment divined that there might be issues with the Respondent obeying the custody and access judgment. Paragraphs 6 and 7 of his order state two paths to access – one where the Respondent follows the judgment and one where he is less than compliant. Now the Respondent has simply and plainly stated in his March 22nd, 2020 letter that he will not at any time follow Justice Clay's judgment.
33As I stated in my short endorsement of March 23rd, 2020, the Respondent's refusal to follow the order of the court cannot now be countenanced. The Respondent and others who believe that they are above the law must have it demonstrated to them that in a civil society individual decisions and individual rights must sometimes come within the review of the courts. If a court decision is distasteful, then there are appeal routes available to ask to have the distasteful decision reviewed by a higher court. The Respondent has engaged in such a review by his appeal. If it were not for the current COVID-19 crisis he would have presumably had his first day in court in his appeal already.
34Censoring the Respondent should not be visited upon Aiden. If it is the best interests of Aiden to see the Respondent notwithstanding the Respondent's past behaviour, then continued access, perhaps supervised, would still be an option.
35Here the Respondent's refusal to follow the judgment (on express grounds that simply have no legal basis – a temporary order such as Judge Schwarzl's is always subject to review and replacement by a final order at trial) has placed his son's emotional wellbeing at risk. Any progress in the counselling ordered by Judge Clay will likely now need to be repeated.
36The issue of access, like all issues of custody, must be decided on what is best for the child. Here all of the current evidence suggests that the Respondent is ungovernable by the law. This is a serious source of harm to the child. The Respondent has engaged his nine-year-old son in his legal combat with his mother. This is a serious source of harm to the child. There is a real possibility that in his current state of mind the Respondent will again seek to exercise self help to gain his desired result. He may decide to leave with Aiden and go away.
37The above may overstate the risk to Aiden but at this point I do not find that to be the case. The Respondent can yet demonstrate that he is able to accept the recommendations of Justice Clay's judgment and step away from the battle he has engaged with the Applicant since 2018. He can accept counselling from the experts instead of attacking those who say what he does not like to hear. Aiden would thrive with two engaged and loving parents working together.
38Unfortunately from the outside as the judge who case managed this matter since 2018, it appears that Aiden has been used by the parties to get at each other in spite of the fact that each sincerely loves him. He is by definition the child who is caught in the middle here.
Access Suspension and Limited Contact
39It is in the best interests of Aiden that for the time being he not have contact of any kind with the Respondent. The biggest risk to Aiden is that he will be removed from sight by the Respondent and until that risk can be faced access is dangerous to Aiden.
40Access need not be stopped forever. The Respondent states that he will add this order to his appeal and seek to have it stayed as well as Judge Clay's judgment. In case this does not take place this court will review Aiden's continued access after the end of the current COVID-19 emergency. I will set a date for that review for a timeframe within the current expected return to "normal" court appearances. The current direction by the Chief Justice is that regular court appearances return in 8 to 12 weeks' time. I will therefore adjourn this matter for 10 weeks to be spoken to, anticipating that perhaps the Respondent may be able to attend on his stay matter in the SCJ on an urgent basis before that timeframe.
Phone and Video Contact
41Justice Clay provided that Aiden have his own cell phone when attending in Whitefish for access. Given Aiden's recent allegiance with his father against his mother, I would expect that the child might be tempted to contact his father secretly. Past examples of such conversations are not confined to topics of general discussion but rather engage the ongoing combat between the parties. In the discretion of the Applicant therefore, Aiden's phone may be put away if this becomes an issue. On the other hand, the Applicant may feel that phone or Skype contact, without discussing the case, would be in Aiden's interests, or would be helpful for his counselling. Access by phone or Skype will therefore be in the discretion of the Applicant as to date places and times and the Applicant should be prepared to explain her use of this discretion on the review of this order.
Superior Court and Child and Family Services Notification
42I would presume in the SCJ that as part of that court's review of the stay issue jurisdiction may exist to allow for the judgment to be tinkered with pending appeal either at the suit of the Applicant or the Respondent or at the suit of the court based upon the legislation or indeed that court's parens patriae jurisdiction. I will ask the court office to copy this endorsement to the SCJ so they know what happened after the emergency motion was transferred to this court to be considered.
43The local CAS is helping counsel Aiden. A copy of this endorsement may assist them as well.
Costs
44The Applicant is presumptively entitled to her costs on this matter. The Respondent kept the child in the face of a court order and the Applicant had to act quickly to correct the Respondent's contemptuous act. Most of the Applicant's concerns however were addressed by materials and submissions made in writing. No personal attendances were required – and in the current medical emergency would not have been permitted. I am aware of the Respondent's income as found by Justice Clay's judgment.
Order
45I therefore make the following order here:
The access between the child of the parties Aiden John Alvin Woods (M)(DOB: […], 2010) and the Respondent (father) provided for by the judgment dated December 13th, 2019, is suspended pending further court order;
Access between the said child and the Respondent via telephone or Skype/Facetime, may take place in the discretion of the Applicant (mother) as to dates, times, duration and supervision. The Applicant shall keep track of any such access and report to the court upon a review or appeal of this order on the access that has taken place.
The Applicant may in her discretion remove the child's cell phone from his possession.
Unless addressed by way of appellate proceeding beforehand, this matter is adjourned to June 10th, 2020 at 10:00 am to be spoken to.
The Respondent shall pay the Applicant's costs herein fixed at $1,500.00 inclusive of GST and disbursements and payable within 60 days.
A copy of this endorsement shall be provided by the court office to the following entities for their information only: (a) the local SCJ justice at Orangeville, and (b) the counsel for Dufferin Child and Family Services.
The approval of this order by the Respondent is dispensed with.
B.E. Pugsley
Justice B.E. Pugsley
OCJ at Orangeville