ONTARIO COURT OF JUSTICE
BETWEEN:
NICOLE REES
Applicant
— AND —
STEVEN MOORE
Respondent
Before Justice John Kukurin
Heard on Nov 23, 2021
Reasons for Judgment released on Dec 6, 2021
Barbara Burton counsel for the applicant(s)
Sara Rainsberry counsel for the respondent(s)
KUKURIN J.:
1These Reasons relate to two motions in this proceeding both brought by the Respondent father, Steven, against the Applicant Mother, Nicole. The proceeding was commenced by Nicole in January 2020 so it is almost two years aged now. The Application was not atypical. It had claims for maternal custody, child support and access to Steven every other Saturday and rotating Sundays from 10 to 6 pm subject to certain conditions, one of which was the wishes of the child. There was only one child, Maddison, now age 14.
2Steven and Nicole were at first self represented. Steven filed an Answer in which he disputed Nicole’s claims and made claims of equal sharing of Maddison between the parents, and for child support to be paid on this basis.
3Something evidently changed from the start of the case. Steven was charged with a number of offences in May 2020 which included assault, sexual assault, sexual assault causing bodily harm, forcible confinement and voyeurism. The complainant in these charges was Nicole. Steven was released on his Undertaking which included a condition not to contact or communicate with Nicole. This made it difficult to arrange any access to Maddison. In fact, the access dried up completely. He has not seen Maddison since Feb 2020. Nicole and Maddison relocated. Maddison enrolled in a different school and Steven was effectively shut out. He then retained counsel. So also did Nicole. Steven brought his first motion (at Tab 7) seeking parenting time with Maddison and seeking OCL involvement.
4In the meantime, his criminal court charges were progressing. They were ultimately resolved by a withdrawal of all charges by the crown. Apparently, the prosecution determined that the factual basis for the charges was a fabrication by Nicole. She was thereupon charged with public mischief (false charges), obstruct justice, and fabricating e-mails with intent to mislead by their being used in judicial proceedings. Nicole apparently attended and then was a ‘no show’ in her criminal court proceedings which resulted in a warrant being issued for her arrest. Nicole’s address is being withheld in this family court proceeding. What is happening with her charges is unknown.
5While this was all going on, there were other things happening. An order was made for the Office of the Children’s Lawyer (OCL) and it agreed to provide a clinical investigator to complete a report to assist the court. It is in progress but its status is unknown. Also, Steven brought his Tab 7 motion and it was before the court on July 16, 2021. The mother’s counsel lost contact with the mother and indicated to the court an intention to get off the record in this proceeding. She has not. In fact, she and Nicole have since reconnected and the mother has provided a response to Steven’s motion at Tab 7.
6That response was an affidavit sworn by Nicole which says absolutely nothing about her ‘no shows’ at the conferences, says nothing about the criminal charges against the father, and says nothing about the charges against herself and the bench warrant issued for her arrest. What her affidavit does say is quite disturbing and, if it turns out to be true, would impact greatly on Steven’s claims for parenting time with Maddison.
7What Nicole’s affidavit says is that Steven did not have a close relationship with the daughter, that he was abusive, and that the daughter had been sexually abused by the father before they separated. She does not give specifics of this abuse because they were not made known to her. However, she also says that the daughter reported such sexual abuse to one Ms. Jodie Marcotte, worker with the Children’s Aid Society of Sudbury and Manitoulin, to the police and possibly to some school authorities at the child’s school. The mother says nothing about her present address and does not disclose it on her affidavit . She says nothing about her discussions with the school and any instructions she gave there. On top of all, the mother’s affidavit is not officially in the continuing record and the father’s lawyer denies having been served with it. The mother’s lawyer provided this court (and the father’s counsel) with a file copy by e-mail on the July 16, 2021 court attendance.
8The information in this affidavit was sufficient to give the court pause before it dealt with the Steven’s Tab 7 motion. The problem at that time was that there was nothing from any independent source to verify what Steven was saying, what Nicole was saying, and what the child Maddison was reported to have disclosed to others. The motion was adjourned for four days to get better evidence.
9On July 20, Nicole’s counsel produced an affidavit sworn by Maddison herself. Maddison recounts a number of persons she spoke to and what such persons did or said. With respect to her father Steven, she says he was ”very abusive, emotionally, physically and sexually”. She indicates in her affidavit that she shared this with a school friend, and this sharing resulted in a Children’s Aid Society investigator visiting her. Maddison says she disclosed what her father had done to her, whereupon the society worker contacted the police to whom Maddison also made a statement. So far as this family court knows, no charges were ever laid by the police against Steven based on such disclosures made by Maddison. Moreover, and despite Maddison’s affidavit, this court is still in the dark as to what Steven’s alleged “emotional, physical and sexual abuse” to Maddison actually consisted of.
10At this point Steven brought a second motion at Tab 13 (when it gets into the Continuing Record). This motion seeks something different than his Tab 7 motion. His claims are for an order for re-unification therapy with Maddison, and weekly parenting time with Maddison every Wednesday after school until 8 pm. with a third party of Maddison’s choice present if she wishes. Steven also seeks an order that Nicole file a Financial Statement and an updated Form 35.1 within 14 days of any order made on this motion.
11It is in the context of the circumstances described above that I heard submissions from counsel for the father Steven. The mother’s counsel did not attend, nor did the mother Nicole. Efforts were made by the court to contact the mother’s lawyer by telephone and by e-mail, but were unsuccessful.
12The OCL has appointed a clinical investigator but she had not met with either Nicole or Steven as of the date of this motion. I doubt that she had met with Maddison.
13I can well understand that Steven believes that Maddison has undergone parental alienation by Nicole. However, his belief does not make it so. Parental alienation is a difficult thing to prove and generally requires expert evidence. In addition, the authority to order re-unification therapy argued before this court was Rule 17(8)(b)(iv) which I reproduce below. This Rule applies at a conference, not at a motion. Moreover, it is devoid of any details, the most practical of which is whether such program is available in Sudbury and who will pay for it.
Rule 17 (8) At a case conference, settlement conference or trial management conference the judge may, if it is appropriate to do so,
(a) make an order for document disclosure (rule 19), questioning (rule 20) or filing of summaries of argument on a motion, set the times for events in the case or give directions for the next step or steps in the case;
(a.0.1) make an order respecting the use of expert witness evidence at trial or the service and filing of experts’ reports;
(a.1) make an order requiring the parties to file a trial management endorsement or trial scheduling endorsement in a form determined by the court;
(b) make an order requiring one or more parties to attend,
(i) a mandatory information program,
(ii) a case conference or settlement conference conducted by a person named under subrule (9),
(iii) an intake meeting with a court-affiliated mediation service, or
(iv) a program offered through any other available community service or resource;
14Frankly, I had hoped that an OCL report might be available before a decision has to be made on the motions brought by Steven. There are too many unanswered questions yet in this case. I make the following order recognizing the deficiencies in the evidence and intending that it is only an interim order that does not address all of the claims before the court. With respect to re-unification therapy, I would say that the court would need, at minimum,
- the name the proposed therapist
- the qualifications of the proposed therapist for re-unification therapy
- the consent of the proposed therapist to engage in such therapy
- a concrete plan for payment of such services
Moreover, it is unlikely that an order for re-unification therapy would be made on a motion for temporary relief; it is more appropriate as a final order in most cases.
15In the present circumstances, there will be an order which I will endorse in the endorsement record, as follows:
The Respondent father, Steven Moore, shall have interim parenting time with the child Maddison Faith Moore born […], 2007 two times each week at the Supervised Access Centre in Sudbury as soon as the facility can accommodate such access, and subject to the facility’s rules and requirements.
The Applicant, Nicole Rees and the Respondent Steven Moore shall each contact the Supervised Access Centre forthwith and file any intake forms or other forms requested by such facility.
That the cost of transportation of the child to and from the Supervised Access facility shall be borne by the Respondent father who shall retain all receipts for future determination of allocation. The father shall not personally transport the child until further order of this court.
That the Applicant mother shall file with the court (a) her affidavit of May 25, 2021 duly sworn, to be filed forthwith (b) a sworn Financial Statement, with attachments to be filed by Dec 31, 2021 (c) a revised and updated and sworn Form 35.1
That counsel for the Respondent father shall serve a copy of this order, once issued, on counsel for the Applicant mother by e-mail, who shall thereupon serve a copy of the issued order on the Applicant mother and file proof of service thereof to the court.
That costs of the hearing this day is reserved to be dealt with but only after the motions are fully dealt with.
The Application and the motions at Tabs 7 and 13 are adjourned to Jan 18, 2022 at 9:30 am to set a date for the next step.
That this order may be issued and entered without the approval thereof of the applicant mother or her counsel.
Released: Dec 6, 2021
Signed: “Justice John Kukurin”