Court File and Parties
Court File No.: FO-09 10291-A3 Date: May 7, 2013 Ontario Court of Justice
Between: Yelah Wreggbo, Applicant
— AND —
David Vinton, Respondent
Counsel: Ms. Jennifer Ryan for the applicant Mr. Avy Ben-zvi for the respondent
Before: Justice H. Katarynych
Motion heard: March 22, 2013 Motion Decision: May 7, 2013
Decision
KATARYNYCH, J:
Overview of Outstanding Motions
[1] On my review of the continuing record in this case, there are two outstanding motions:
The applicant mother's motion filed March 7, 2011 and first before the court on March 15, 2011 seeking an order striking the respondent's case for failure to comply with the court's disclosure order made on October 12, 2010 (see C.R. Tab 10); and
The applicant's further motion seeking an order requiring the respondent to post security for the costs of a custody trial, estimated to be in the $50,000 range on private retainer and in the $20-30,000 range if she is able to obtain Legal Aid (see C.R. Tab 16).
[2] The argument of both counsel focused on the most recently filed motion, and the focus of this adjudication is that particular motion. To the extent needed to properly dispose of that motion, there is intersection with the earlier motion.
The father seeks an order dismissing the mother's motions, pointing out in his responding affidavit that in his belief, the mother's "security for costs" motion is in itself a waste of time.
[3] Judgment has been on reserve until now.
Relevant Law
[4] Security for costs orders are an exercise of judicial discretion in circumstances specified by s. 24(13) of the Family Law Rules.
[5] Whether the order is "just" in any particular case is an objective determination, based on the record before the court, set in the context of the procedural law established by the Family Law Rules and the substantive law governing the claim for which trial is desired.
[6] Significant in that latter regard is that a party's desire for a trial is not in itself the determinant. The court's trial resources are husbanded for those claims that in the assessment of the case management court require a trial.
[7] That is so because a security for costs motion is set within a procedural justice that has a particular climate and landscape.
[8] "Just dealing" to each party in the case is the primary objective of the Family Law Rules, and active case management the vehicle through which the parties and the court make that "just dealing" visible. It is a collective effort. The parties and their counsel are required to assist the court in ensuring that the procedure is fair to all parties; that the litigation process unfolds in a manner that saves time and expense; that the case is being dealt with in ways that are appropriate to its importance and complexity; that appropriate court resources are given to the case while taking into account of the need to give resources to other cases. See FLR 2 (2) and (4).
[9] It bears repeating that the duty to promote that primary objective of "just dealing" is not the court's alone. Parties and their lawyers are "required" to help the court deliver that "just dealing". So important is that duty that counsel may be held personally liable for costs if it emerges that conduct of counsel is playing out in unjust dealing to another party in the case. See FLR 24(9).
[10] This is important backdrop for this mother's motion seeking security for the costs of a trial of the competing custody claims.
The basis advanced for security for trial costs in this case is twofold:
The father ordinarily resides outside Ontario. See FLA 24(13)1; and
"There is good reason to believe" on the face of the record, that the father's case is "a waste of time or a nuisance" and he "does not have enough assets in Ontario to pay costs". See FLR 24(13)4.
[11] In relation to the latter basis, the subrule allows either a showing of good reason to believe that there is either nuisance afoot or a wasting of the court's time. As a matter of common sense, a nuisance claim is one so devoid of merit that it is a waste of the court's time. It wholly undercuts the primary objective of the Rules to allow a "nuisance claim" that is by its nature a waste of time, to go forward to trial with a security for costs order "hobbling" the trial court, as Superior Court Justice Quinn characterized the dilemma in the Stefureak case. See Stefureak v. Chambers.
[12] Active case management requires the court charged with the adjudication of a security for costs motion to be mindful of that potential. A security for costs order should not be made if the effect of it is to send forth into the trial court a claim that, when set in the context of the law governing the claim, has no reasonable chance of success.
Whether a claim has merit is not a litigant's "take my word for it" sort of consideration.
[13] Merit is unfolded – or not - in the quality of the disclosure of information provided about the claim to the other party. It is an information sharing that, as part of a party's "just dealing" responsibility, positions the other party to make a responsibly informed response to the claim. It is an information-sharing that flows into the judicial conferencing process, as a matter of "just dealing" to inform the court's opinion on the merits of competing claims, and the means by which the parties make visible their attempt to work with the case management judge to meet the primary objective of the Rules.
[14] Withholding of information reasonably needed by the other party or the court itself to take a responsible stance on the likely merits of any particular claim is unjust, within the meaning of the Rules.
[15] It skids the claim into the mischief zone. Once in the mischief zone, it is nuisance and wastes not just the court's time and resources, but also the time and resources of the other party.
[16] The disclosure duty is not limited to financial support issues. What must be provided, when, and how the information is to flow into judicial conferencing depends on the needs of the case set in the context of the law governing the claims.
[17] There is good reason for the expectation that there be full disclosure, delivered in a timely manner. It in large part guards against litigation drift. Litigation drift is more than an annoyance. It holds the parties – and any child awaiting decision-making from the litigation – dangling in the drift. A party who acts in a manner that has others in the case dangling in drift, is not "dealing justly."
[18] Insufficient information-sharing can lead to an abuse of the court process.
In part, that is so because it is the administration of justice that is at stake when a party disregards his/her duty as a litigant.
[19] A "just determination" is one that protects the integrity of the administration of justice. Justice cannot be administered fairly when a party expects the court to indulge that party's secrecy about matters that need to be transparent. Unexplained secrecy is "nuisance" behaviour. A case sent to trial on a less than fully informed base is positioned for mischief. Trial courts cannot afford mischief.
[20] So it is that the state of information disclosure between the parties and to the case management court over the course of the litigation is relevant to the adjudication of a security for costs motion. The underlying question is whether the claim needs a trial.
[21] Among the tasks identified in the promotion of the primary objective of the Rules, is the task of "considering whether the likely benefits of taking a step justify the cost". See FLR 2(5)(e). A trial is the "end" step in the case, and arguably the most costly of all the preceding steps in the litigation.
[22] If a trial is not needed to fairly dispose of the claim, there is no need for a posting of security for the anticipated costs of a trial. So it is that active case management requires the case management judge to look first at the state of the claim that is purported to need a trial.
[23] If a trial is not needed because the claim is, on the state of disclosure in the case, devoid of merit, the court's task is to deal with that reality.
[24] Dealing with that reality requires a reach to the discretion given to the court by Rule 1(8) of the Family Law Rules.
[25] When a parent fails to obey the Rules or a court order in the case, the court may deal with that failure by making "any order that it considers necessary for a just determination of the matter on any conditions that the court considers appropriate".
[26] Although a costs order is an option, the court's discretion is not limited to that option. If the party's failure is 'wilful', on the face of the record, the court has discretion to dismiss that party's claim(s).
[27] Within the operation of Rule 1(8), there is no requirement in FLR 1(8) for a motion seeking that relief, nor does it matter who in the case is in default of his/her litigation duties. See Hughes v. Hughes, [2007] O.J. No. 1282, 85 O.R. (3d) 505 Ont. S.C. J.
[28] The wording of FLR 1(8) is also sufficiently broad to allow the grant of a stay of a claim, where it is necessary for a just determination of the case, and where there has been a wilful failure to follow the Rules or obey an order in the case. See Martin v. Martin, [2005] O.J. 4567 (Ont. S.C.J.).
[29] These principles guided deliberation in this case.
Findings and Analysis
On Whether the Father Ordinarily Resides Outside Ontario
[30] If a trial is needed, the mother has made out a case for a security for costs order within this first consideration addressed by FLR 21(13).
[31] On the whole of the record, including the father's most recently filed materials, this father is not resident in Ontario, and never has been resident in Ontario through the course of this litigation.
[32] On the law governing "ordinary residence" established by the Supreme Court of Canada in Thomson, this father has been, at best, an intermittent presence in Toronto throughout this litigation. The "settled routine" of his life, within the meaning of the law, is mostly mystery. On the little that he has disclosed about himself and his circumstances over the course of this litigation, he appears to have lifestyle that has him on the move a lot, for reasons that on his most recent evidence, have to do with his effort to establish residence in the United States of America.
[33] His attachment to his affidavit of a leasing agreement for an apartment in downtown Toronto signed on March 17, 2013 is not, absence due diligence about its integrity, proof of residence within Canada. His late production of this document effectively foreclosed opportunity for that due diligence without adjournment of the motion and the hearing of the motion was a greater need at this time. The document, as it presently sits, floats the potential that he might make this property his residence, if he gains permission to remain in Canada.
On the Competency to Fund Trial Costs
[34] I took from the absence of reference to his ability to fund his own costs of a trial that this is not an insurmountable barrier for the father.
[35] In relation to mother's claim that she cannot herself fund a trial without security, I took into account his assertion that he "does not have the money to put up $50,000 for security". I also took into account his assertion that if he loses at trial, he "will pay the costs, but it will have to be on a payment plan".
[36] Whether he is able to shoulder a security for costs order is mystery, essentially because he has never produced a sufficient financial disclosure in the course of this litigation to enable a reliable pulse to be taken on his financial circumstances.
[37] The mother is not similarly situated.
[38] There is no frivolity in her reach for a security for trial costs order.
[39] Her financial disclosure in this litigation gives clear indication that she herself cannot afford the costs of a custody trial, nor can she afford a payment plan as the father's means of satisfying any costs order in her favour made by a trial court.
[40] That financial disclosure, frank and forthright on all aspects required of her by the Family Law Rules, indicates that she is a working parent of very modest means. She also cannot afford to lose income to accommodate the needs of a trial.
[41] She has already incurred greater costs than what ordinarily are needed in a domestic case of this nature as a result of repeated attempts to gain a sufficient disclosure from the father on matters bearing on their respective claims; most notably, income determination for child support purposes.
[42] It is also readily apparent on the record that, as between the two parents, she has borne the lion's share of financial responsibility for these children since the parental separation. Her child support claim was settled on the basis of an "agreed" income placed before the court.
[43] The father's statement that he has "always been responsible for any money I owed including to the Family Responsibility Office", offered as assurance that he could be trusted to pay a costs order, did not attract confidence. On the whole of the record, this father has not provided the child support to which these children have been entitled from the time of the parental separation, nor has he kept his court-ordered payments flowing in an uninterrupted fashion to the mother. I took into account in this regard that his failure to keep Family Responsibility Office advised of his contact information as required by the court order that established "find" child support on consent, has resulted in disruption of the support enforcement order. This sort of disruption has also escalated the mother's legal costs in this case.
[44] In sum, this mother is entitled to a security for costs order in an amount no less than $30,000 if a trial is needed to dispose of the competing claims.
On the Need for a Trial
On the "Complicated Situation" Advanced as Reason Requiring a Trial
[45] Although the father would have the court find this custody case complicated and thus in need of trial, on a careful read of the record, there is nothing "complicated" about this case, and never has been over the course of judicial case management.
[46] It is part and parcel of the work of the domestic court to help parents establish parenting arrangements that enable the children to keep alive their relationship with a parent who is not resident in the same jurisdiction as the children and their resident parent.
[47] All that is extraordinary in this case is this father's secrecy about himself, and his sense of entitlement about that secrecy. It is a sort of "trust me" attitude that has, not surprisingly, met with a "give me a realistic basis in which to rest that trust" response.
[48] It is within this context that I considered the mother's second ground for her reach for a security for costs order.
[49] On the second prong of that second ground, whether this father has sufficient assets in Ontario to pay any costs order emanating from a trial remains mystery in this case because he has failed, despite repeated opportunity and urgings in the course of judicial case management, to make the financial disclosure needed from him. His secrecy about himself does not shield him from a security for costs order. That secrecy does obstruct fair ability to assess the merits of his joint custody claim. That is serious business within the requirements of the substantive and procedural law governing the claim.
[50] On the whole of the record, this joint custody claim emerges as a nuisance claim.
[51] This father has filed a joint parenting plan that on a plain read cannot be implemented unless he is available in Toronto for the children. On his own evidence, this father has no legal status to remain in Canada. He is, on his evidence, someone who "plans on immigrating to Canada. He has an intention to establish residence in Toronto, and it is a late arriving intention.
[52] He points out in his affidavit sworn March 20, 2013 that 'up until a month ago [he] didn't think that [he] would be able to immigrate to Canada. He sheds no light on the reason for that belief.
[53] His "intention" to remain in Canada is not supported by any evidence from immigration Canada indicating its intention to allow him to do that. No trial is needed to find that he himself is not the "authority" for his ability to remain in Canada.
[54] It would be irresponsible under the law governing custody and access to deliberately position two young children in a joint custody arrangement in circumstances where one of the two parents holds to secrecy about himself that makes no common sense and not yet acquired Immigration Canada's permission to remain in Canada.
Joint custody requires a parent who has displayed ability to make himself available for the tasks of joint decision-making, and sufficiently transparent about himself to not leave the other parent "in the dark" and "on the edge" about the decision needed for the children.
[55] He cannot reasonably expect to take his secrecy into a trial court and "disclose" information about himself and his circumstances for the first time there. "Surprise' is not fair dealing.
[56] He cannot expect a trial court to permit him to use the trial forum as soapbox for his various grievances about the mother, none particularly when on the record in the case, has been substantiated by those brought into the mother's life to "investigate" his various complaints, - whether police, child protection authorities or health care professionals.
[57] He cannot expect a trial court to indulge his "feelings" about the mother.
He can expect a trial court to know from its experience in custody and access decision-making that joint custody parenting arrangements wither in a climate of secrecy, that denigration of a parent plays out in the ability of the child to trust any "joining" in decision-making for the child, that chaotic transition of the children between the parents whatever the allocation of responsibility for the dysfunction, makes life miserable for all involved in the transition.
[58] So it is that at this time in the life of these young children, this particular joint custody claim is the stuff of nuisance, and a waste of the court's time.
Is a Trial Needed to Determine the Mother's Custody Claim?
[59] On the record as a whole in this case relevant to her sole custody claim, no trial is needed to establish the following facts:
[60] The older child, born July 19, 2007, is almost six years old. The younger child, born February 17, 2010, is now three years of age.
[61] Both children have been in the care and physical custody of their mother over the whole of each child's life to date.
[62] These children were in the de facto care of their mother when she launched her application in June 15, 2010. As between the two parents, she had had primary responsibility for the day to day care and decision-making for the children throughout the now almost three year course of this litigation.
[63] The younger child was just three months old when the case first came before the court in August 2010. The older child had just turned three years of age.
It has already been decided on consent that each child is and always has had habitual residence in the Province of Ontario; specifically, Toronto.
[64] Much has been settled in this case over time in a manner that has already established a meaningful stability for these young children in their mother's parenting.
[65] By a consent order made on March 15, 2011 that was a mix of temporary and final orders, both children were continued in the "temporary" care of their mother, who had been the primary care parent since their birth.
[66] An agreed upon "temporary" children-father access was stipulated in the consent order.
[67] On a final basis, findings were made that the children are ordinarily resident in Toronto, Ontario, that the parties before the court are the biological parents of both children.
[68] The order provided that the father's right to release of information about the children was to be no different than the right of the mother, with production of this court order as sufficient authorization for release of information.
[69] The order further provided that the father be able to obtain a European passport for the younger child on the condition that the passport, once obtained, be deposited with the mother.
[70] It is not the intention of the substantive law governing any of the claims of either parent to have children dangling in litigation. When the issue is custody, the children are entitled to have the claim scheduled for hearing within six months after the commencement of the case. See Children's Law Reform Act, s. 26.
[71] On the whole of the evidence, including that of the Children's Lawyer's investigation, this mother has been a responsible parent to these children, despite his complaints about her, and in circumstances where she has been essentially single-parenting them.
[72] Under the authority provided by Rule 1(8), what is "just" for these children at this time in their life and for the foreseeable future is a preservation of the stability and security that they have laid down in their mother's parenting.
[73] There is no good reason, on the whole of the record, to withhold finalization of the temporary custody order for these children made on March 15, 2011.
[74] The father's most recent affidavit makes plain his intent to play out his grievances in the trial court; - and he now advances his "feeling" that the mother "is not mentally and financially stable to be able to look after my children on her own without my guidance, support, input and supervision". There is no evidence to support that assertion. It is, on the whole of the record, a late arriving attempt on the cusp of the motion hearing to smear the mother.
[75] None of the father's various complaints about the mother during his episodic presences in Canada have resulted in removal of the children from the primary care of their mother, whether by the child protection authorities, the police or on recommendation of the Children's Lawyer who conducted its own investigation of the children's circumstances, and observations of the children with each parent. I took into account in this regard the concern of the father's counsel that the social worker investigator has not been "questioned" in a trial. In the end, the custody determination does not rise or fall on the evidence provided by the Children's Lawyer.
[76] Quite apart from his denigration of this mother, far too little is known about him to have him part of a joint decision-making for these young children. For reasons that have never been adequately explained, he leaves unanswered an array of questions that ought to be a matter of transparency and respect within the primary objective of the Rules governing the litigation.
[77] It is his choice. It is also the basis on which his quest for a joint custody must be brought to an end without further expenditure of time and resources.
Decision and Orders
On the Mother's Motions
[78] The mother's motions are dismissed as unnecessary in light of the orders now made to dispose of the custody dispute.
On the Father's 'Joint Custody' Claim
[79] For the reasons given, the father's "joint custody" claim is stayed under the authority of Rule 1(8) of the Family Law Rules.
On the Mother's Sole Custody Claim
[80] For the reasons given, the custody order made on March 15, 2011, that entrusted the rights and responsibilities of custody to their mother on a temporary basis is made a FINAL SOLE CUSTODY ORDER TODAY FOR EACH CHILD, subject to the following incidents:
The information–sharing term incorporated into the temporary order is made a term of this final order, and the formal order is to recite it.
In relation to either child, the mother is the sole signing authority required for documentation pertinent to the children, including health care, education, financial and travel related documentation, including passports and visas.
The mother is to be the custodian of any passport issued for either child by Canada or any other country.
The children are permitted to travel outside Canada for vacation purposes in the company of their mother without any requirement of the consent of the father.
The mother is to produce the children for access with their father in the terms required by the access order now made for them.
Non Removal Order
[81] The children are not to be removed from the Province of Ontario by the father or any agent on his behalf without an order from the court permitting that removal.
On Children-Father Access
[82] The temporary order made on March 15, 2011, provides a "reasonable" children-father access on "reasonable notice" to the mother; "reasonable notice stipulated to "being one weeks (sic) notice by email."
[83] I took into account that the temporary order made on March 15, 2011 was constructed on the understanding that this father was only episodically in Canada.
[84] Whatever the reason (and each parent holds the other as the instigator) the transitions of the children for their time with their father has been chaotic.
[85] The father's secrecy lends credence to the mother's concern that the father will not return the children from their access. Late return feeds that fear. His florid denigration of her as a person and as a parent, set in the context of his lack of legal status in Canada, heightens concern. His insistence on keeping her in the dark about his whereabouts leaves her particularly compromised if she needs to reach to law enforcement to help bring the children home.
[86] It is also plain on the record that the father has used the opportunity for access to try to engage the police and child protection authorities to investigate the mother's parenting, and to access "emergency" medical attention that is not found to justify the use of emergency medical resources.
[87] The children cannot afford this sort of behaviour. It seeds mistrust of their mother. The father needs to be particularly careful that he does not act in a manner that undermines the mother's ability to responsibly parent these children.
[88] The access order is to remain in place pending further court order, but with the conditions now added, with the objective of giving the children a greater security and stability than is presently playing out in the child-father access:
There is to be no child-father access unless any passports naming the children, whether Canadian or foreign, are on deposit with the mother's counsel or alternatively, the court.
There is to be no out-of-Province access for the children without a court order first obtained to permit that travel.
If the mother does not receive the required email notice one week in advance of the father's desire for access, she may proceed with her own plans for the children. For clarity, the proper notice is a requirement of all child-father access. The mother is not obliged or expected to drop everything and accommodate the father on short or no notice.
In order to preserve the children's designated "spots" in daycare or after-school care, and to ensure that they are in school when school is in session, child-father access is not to take place during the Monday-Friday timeframe, inclusive, except when either day is a non-school or non-daycare day.
This does not preclude the father's participation in school or daycare events to which parents are ordinarily invited, and father is entitled to obtain information about upcoming opportunities as he wishes, and by direct contact with the school or daycare.
Except in the case of unavoidable delay, the children are to be collected for access and returned from their access at the time agreed upon by the parents.
If delay is anticipated, the parent responsible for the delay is to contact the other parent by telephone or email, providing the reason for the expected delay and an estimate time of arrival. To ensure that information sharing, both parents are to keep their telephone or email service activated and themselves responsive to contact attempts until the delay is resolved.
The mother may arrange for either delivery or return of the children to an adult other than herself. In that event, she is to provide the particulars to the father by email or telephone and he is to act on those directions.
In their interactions, each parent is to maintain a tone of courtesy, mindful that the children need to experience the best in a parent's actions and attitudes.
[89] Unless resolved by the parties, the access issue and any remaining claim in the case are to be returned for a final conferencing no later than September 2013 on a date arranged by counsel with the case management coordinator.
[90] In order to save costs, any Minutes of Settlement on the outstanding access issue may be filed for consideration by the Form 14B mechanism under the Family Law Rules for a chambers adjudication.
On Costs
[91] If the parents cannot otherwise resolve the issue of the costs of the security for costs motion, brief written submissions (no more than three pages) may be served and filed, together with a Bill of Costs according to the following timetable:
Applicant's submissions: no later than June 21, 2013
Respondent's submissions: no later than July 19, 2013
Any reply: no later than July 30, 2013
[92] The costs decision will be provided by written endorsement.
This decision is to be released to counsel of record today.
Released: May 7, 2013
H. L. Katarynych Case Management Judge
