Court File and Parties
Date: April 16, 2020 Court File Number: 20-2020 Ontario Court of Justice at Orangeville
Between: Kai Chatelain, Applicant
and
Jennifer Eeuwes, Respondent
Before: Justice B. E. Pugsley
Heard: April 15th, 2020 Released: April 16th, 2020
Appearances
- Applicant appeared in writing via counsel Ms. C. McCann
- Respondent appeared in writing via counsel Mr. E. Osipov
Endorsement
[1]
Endorsement
The parties are the parents of a child Hunter Kai Chatelain (M)(DOB: […], 2017).
[2] On February 7th, 2020, an order without notice was made. That order was before the court for review on February 19th, 2020. At that time the matter was adjourned on terms for a motion and cross-motion returnable on April 1st, 2020. On April 1st, 2020, the Respondent's solicitor filed a confirmation adjourning the matter due to the COVID-19 crisis without terms.
[3] The Order agreed to between the parties on February 19th, 2020, provided that the Respondent (mother) have weekend access from Friday to Sunday.
[4] On April 3rd, 2020, the Applicant (father), now represented by counsel, sought an order that the child be returned to his care. His material stated that the Respondent had overheld the child and that the police refused to enforce the temporary order.
[5] An order was made on an urgent basis to have the child returned to the care of the Applicant (father). That order was before the court today for a review in writing of the order dated April 3rd, 2020.
[6] The Respondent (mother) files extensive material and a cross-motion to change the care of the child to her home. Both parties seek fulsome costs.
[7] The Respondent is currently facing criminal allegations related to the Applicant. The terms of her release prevent direct communication between the parties but none-the-less they have been able to communicate via her mother and their respective counsel.
[8] Most of the Respondent's affidavit references events around the time of the police engagement here and the Applicant's initial motion for ex parte relief. Her material is replete with opinion and unreferenced allegations that have no value to the court and are improper in an affidavit that is to be a statement of fact without argument.
[9] Her material contains extensive references to settlement discussions which have no place in an affidavit.
[10] The respondent does not address her decision to breach Justice Schwarzl's court order made on consent on February 19th, 2020. The only "explanation" is referenced in a letter (Exhibit "B" to her affidavit sworn on April 9th, 2020) from her counsel to the Applicant's lawyer which states (inter alia) that while he has stressed to his client the necessity of following a court order she has decided not to do so as to do so would expose the child to more risk and harm. His letter referenced that the OPP had gone to the house and done a "wellness check" and found the child (2 years of age) to be fine. This does not advance the Respondent's thesis that her self-help remedy is of no moment.
[11] In other words, the Respondent decided to take it upon herself to breach the existing court order here, while at large on seven criminal charges related to the Applicant.
[12] After she made that decision, she now tries to imply that she chose to do so for some reason related to the protection of the child. She notes that the Applicant is a member of Her Majesty's Canadian Armed Forces and that the news states that the Forces may be called upon to help the public in the current crisis. She suggests that he has placed the child at risk related to a diaper rash and a visit to the emergency department during the COVID-19 crisis. She will no longer let him place the child at risk.
[13] The Applicant's second motion made in chambers on April 3rd, 2020, was well justified. The Respondent had deliberately disobeyed the order of the court, refused to deliver the child back to the father, and offers no plausible basis for not doing so. The police inexplicably declined to enforce the order of the court. An order for the return of the child was required and the Respondent must have known that such an order was inevitable and yet did nothing.
[14] The material filed by both sides amounts to material aimed at the resolution of both motion reviews: of the original February 7th, 2020, ex parte order, and of that made on April 3rd, 2020. Given that I now have a fulsome record my temporary order will resolve the review of both temporary orders and set out a pattern to guide the parties while (1) the current COVID-19 court disruptions are resolved and (2) the matter returns to the pattern of court proceedings mandated by the Rules. Those rules are intended in the normal course to require the parties to talk before they are permitted to fight. MIPs are required to help the parties understand the effect their dispute may have on their child. Mediation is available on and off site.
[15] The recent act by the Respondent does not advance her submission that the child is best in her care. Rather it suggests that she is ready to put her needs over those of the child. There is a great deal of conflict at the moment in this family. Criminal charges, as yet unproven, are pending wherein the Respondent is accused of domestic related acts against the Applicant. Criminal charges are not merely the misty allegations of a complainant. In order to lay such charges a peace officer requires reasonable and probable grounds to believe that an offence has taken place before acting to lay an information before a judicial officer. Time will tell if such charges will be sustained on the Criminal standard of proof. The CAS has been engaged and knows that the child is in the care of the Applicant (father). They have taken no steps to challenge that situation as they must if he is at risk in that care.
[16] A temporary order will replace uncertainty with certainty for the time being as the parties start to plan how they will raise their son together but separately. The Respondent now presumably understands that obedience to a court order is not optional and I accept that the risk of a repetition of the breach of a court order is now unlikely.
[17] The parties in the recent past agreed that it was best for the child that he be in the day to day care of the Applicant and see the Respondent on weekends. I see no basis to change that arrangement reached between them.
[18]
Costs
Both parties filed submissions as to costs. Presumptively the Applicant is entitled to his costs of the April 3rd, 2020, motion and that part of this review referable thereto. As already noted, he had to move to enforce an order that the Respondent had to have known would be enforced. On the other hand, this endorsement also determines the overall issue engaged by the parties with regard to the temporary care of the child. On that issue success is more divided. I note that the Applicant (then without counsel) failed to attend court in a timely fashion on February 19th, and that the costs of that date were reserved to me and substantially favour the Respondent. I will deal with all costs to date in the following manner: The Respondent (mother) shall pay to the Applicant (father) for his costs to and including the date of this endorsement the total sum of $2,500.00 inclusive of HST and disbursements and payable within 6 months.
[19] This endorsement addresses the urgent issues between the parties. This means that the next return date here will be in accordance with the Direction of the Office of the Chief Justice of the Ontario Court of Justice which requires that non-urgent matters be adjourned to a date 8 to 12 weeks away. The default is 10 weeks, and the family court in Orangeville proximate to 10 weeks from today is June 24th, 2020. The earlier date agreed to between the parties (May 27th, 2020) is vacated.
[20] I therefore make the following temporary order, not on consent:
Temporary Order
Temporary Order
The temporary orders dated February 7th, 2020, February 19th, 2020, and April 3rd, 2020, are vacated and are replaced by this order;
The child of the parties, Hunter Kai Chatelain (M)(DOB: […], 2017), shall reside in the custody of the Applicant (father) pending further court order;
Commencing on Friday April 17th, 2020, pending further order of the court the Respondent (mother) shall have access to the said child every weekend from Friday at 5:30 pm until the following Sunday at 6:00 pm; access shall be exchanged at the York Regional Police Service station at 240 Prospect Street, Newmarket, Ontario;
The access arrangements set out in paragraph 3, above, may be varied in whole or in part by the written agreement of the parties in person and/or by counsel;
Ontario Provincial Police, York Regional Police and all other police services are directed and required to enforce this order;
The Respondent shall pay to the Applicant his costs of this matter to the date of this endorsement fixed at $2,500.00 inclusive of HST and disbursements and payable within six months;
Adjourned to June 24th, 2020, at 10:00 am to be spoken to (15 min) (update and next step). May 27th, 2020 date is vacated.
Justice B.E. Pugsley Ontario Court of Justice at Orangeville