Court File and Parties
Court File No.: FS–08–340963 Date: 2018-11-13 Superior Court of Justice - Ontario
Re: Alisa Marcy (Feintuch) Shapiro, Applicant And: Mitchell Feintuch, Respondent
Before: P. J. Monahan J.
Counsel: Mercedes Igbhi, for the Applicant Ryan Kniznik, for the Respondent
Heard: November 6, 2018
Endorsement
[1] Although these parties were divorced nine years ago, they continue to experience considerable conflict over the parenting of their two children. A particular difficulty in the recent past has been with respect to travel arrangements for their son YF, who is now 14 years old. Earlier this year, the Respondent brought an urgent motion for an order compelling the Applicant to provide him with YF’s passport, to facilitate a planned trip to Florida. That resulted in an Endorsement by Kiteley J. of this court on March 21, 2018 in which, inter alia, the Respondent was granted the right to keep YF’s passport at his residence.
[2] One might have thought that Kiteley J.’s Endorsement, written in her typical clear, concise and direct fashion, would have provided sufficient direction to the parties such that they could have avoided additional litigation over the handling of YF’s passport. Regrettably, that turned out not to be the case. In April 2018, less than a month after Kiteley J.’s Endorsement, the parties had a further dispute over the Applicant’s request to be provided with the passport, in connection with a planned trip with YF to New York. When the Applicant was unable to obtain the passport in a timely manner, she arranged for YF to be transported by car to New York without the Respondent’s knowledge or consent, and without the passport. That resulted in the current motion brought by the Respondent on May 14, 2018 (the “Motion”), in which he seeks a variety of relief, including a declaration that the Applicant breached various provisions of a 2015 court order dealing with parenting arrangements. In response, on July 6, 2018 the Applicant brought a cross-motion (the “Cross-Motion”), requesting that YF’s passport be returned to her for safekeeping and that the Respondent not be permitted to bring any further motions without leave of the court.
[3] For the reasons described below, I grant the Respondent’s request for a declaration that the Applicant breached the provisions of an applicable court order dealing with travel arrangements for YF. However I decline to grant the remaining relief sought by the Respondent in the Motion. The Applicant’s Cross-Motion is dismissed.
Background Facts
[4] Following their separation and divorce, the parties required extensive litigation in order to settle on a parenting plan for their two children, their daughter FF (who is now 16 years old) and their son YF. A July 23, 2013 arbitral award by Philip Epstein set out detailed arrangements regarding parenting, which were incorporated into a final order of Mesbur J. dated June 24, 2015 (the “Order”).
[5] Of particular relevance for the Motion are the provisions of the Order dealing with mobility and travel, particularly paragraphs 63, 64 and 65, which provide as follows:
FF and YF may travel throughout Canada and internationally with either parent. The location(s) and phone number(s) of FF and YF when travelling with the resident parent out of town shall be provided in writing prior to departure to the non-resident parent. Should either party desire to take the Children from the Province of Ontario for vacation purposes, that party shall give the other a detailed itinerary at least 30 days prior to departure, including location, the name of any flight carrier and flight times (if applicable), times of travel, accommodation, including the address and telephone numbers, and details as to how to contact the Children during the trip.
If one of the parties is required to travel outside of the Greater Toronto Area at a time when the Children are to be in school, the Children shall not be taken out of school in order to travel with that parent without 30 days’ notice to the other parent and unless they have the written consent of the other parent. This requirement shall not apply with regard to days in which the Children only have a half-day school or with regard to Sunday School.
Should a passport be required for the Children, the parties shall cooperate with each other in providing the necessary information to make the application. The Applicant shall keep the passports at her residence and they will be made available to the Respondent as required. Both parties shall provide necessary authorizations to allow the other party to travel outside the country with the Children. Such necessary authorizations shall be provided by January 1 of each year, covering the entire year, up to and including December 31 permitting the parent to travel with the Children throughout the entire year.
[6] As noted above, on March 21, 2018 Kiteley J. varied paragraph 65 of the Order to provide that the Respondent, rather than the Applicant, was to hold YF’s passport. (Kiteley J. did not vary the arrangements with respect to FF’s passport.) In her Endorsement, Kiteley J. observed that conflict and uncertainty regarding travel arrangements for the children was not in their interests and ought not to be repeated in the future.
[7] In April 2018, the Applicant wanted to take YF with her to New York to attend two family events. The first was a Pidyon Haben (a Jewish Ceremony which occurs when a firstborn male is born) scheduled for Sunday, April 22, 2018, and the second was a Bar Mitzvah scheduled for Tuesday, April 24, 2018.
[8] YF attends school Mondays to Fridays and also on Sunday mornings. Accordingly, pursuant to paragraph 64 of the Order, it was necessary for the Applicant to secure the consent of the Respondent to take YF with her on this trip. On April 12, 2018, the Applicant emailed the Respondent, informing him about the upcoming family celebrations and explaining that she was “thinking of flying with YF, leaving on Sunday morning, April 22 (or perhaps Monday afternoon, April 23) and returning Wednesday morning April 25.” She asked for his confirmation that he was willing to provide YF’s passport for the trip.
[9] In his reply later that day, the Respondent did not respond directly to the Applicant’s request for permission to travel with YF. Instead, the Respondent raised a previous request relating to obtaining the Applicant’s consent for an application for a Nexus card for YF.
[10] This led to a long series of emails between the parties over the next five days that grew increasingly combative, vitriolic and lengthy. Finally, at 2:47 AM on April 17, 2018, the Respondent consented to the Applicant taking YF to New York, but only commencing on the evening of Monday, April 23, 2018 and returning on Wednesday morning April 25, 2018. Acceptance of this limitation would have meant that YF could not have attended the Pidyon Haben scheduled for Sunday, April 22.
[11] It should be noted that in her original request on April 12, 2018, the Applicant had contemplated travelling on the afternoon of Monday, April 23 and returning on the morning of Wednesday, April 25, 2018. If the Respondent had consented to this arrangement immediately in his initial response, rather than waiting five days and many emails to do so, this might well have resolved the matter. But after the extensive and often bitter emails that the parties had exchanged between April 12 and April 17, 2018, the Applicant was no longer willing to entertain a proposal she herself had contemplated in her original email. Instead, by this point the Applicant was determined that YF would travel to New York for both family events.
[12] The Applicant had made arrangements with her parents whereby they would take YF to New York by car, on the expectation that this would enable YF to enter the U.S. without his passport. However, her parents could not travel on Fridays or Saturdays for religious reasons and thus had to depart on Thursday in order to be there in time for the Pidyon Haben. Accordingly, at noon on Thursday, April 19, 2018, the Applicant’s parents departed with YF by car for New York.
[13] The Applicant informed the Respondent of this action through an email sent at 6:13 PM on April 19, 2018, in which explained that her parents had taken YF by car to New York earlier that day. She noted that “it was difficult to get through the border with only a birth certificate and without a passport, but they [U.S. immigration] ultimately allowed it to pass.” She advised that she would be flying on Sunday morning to join YF in New York.
[14] As might be expected, this provoked a subsequent series of angry emails between the parties in which various grievances, both past and present, were reviewed in some detail. There was some discussion of the possibility of the Respondent providing the Applicant with YF’s passport prior to her departure on Sunday morning, so as to permit YF to return by air rather than by car. However ultimately the parties were not able to agree and no passport exchange occurred.
[15] YF attended the two family events on April 22 and April 24 and returned by car with his grandparents on Wednesday, April 25, 2018, arriving late that evening. He had missed a total of five days of school, as well as his scheduled Wednesday evening parenting time with the Respondent. (I note that the missed parenting time was made up the following day, Thursday, April 26, 2018.)
[16] On May 14, 2018, the Respondent commenced the Motion under Rule 1(8) of the Family Law Rules seeking a variety of relief, including a declaration that the Applicant had breached various provisions of the Order, particularly paragraphs 63 and 64; that she be ordered to pay “costs” of $2500 forthwith; and that she pay his costs of the Motion on a full recovery basis.
[17] The Applicant’s Cross-Motion asked that the Motion be dismissed, that the Respondent not be allowed to bring any further motions without leave of the court, and that YF’s passport be returned to her for safekeeping.
Analysis
[18] In his July 23, 2013 arbitral award, Arbitrator Epstein noted that as a result of the high conflict between these parties, “important decisions have been delayed and minor issues [have] become major ones which could not be quickly resolved.” Arbitrator Epstein had attempted to reduce the conflict between the parties by setting out in detail how parenting decisions were to be made. It was Arbitrator Epstein’s expectation that, in light of the level of detail he had provided, “there should be very little room for continued conflict.”
[19] The events described above suggest that Arbitrator Epstein’s hopes and expectations have not been realized, and that apparently minor issues continue to develop into major ones. It is also apparent that the parties have not yet proven capable of acting in accordance with Kiteley J.’s admonition, to the effect that continued uncertainty and conflict over travel arrangements are not in YF’s best interests.
[20] Arbitrator Epstein’s award, incorporated into the Order, is very clear with respect to the process to be followed in circumstances where one party wishes to travel with the children when they would otherwise be in school. In that regard, paragraph 64 of the Order states that neither child should be taken out of school by one parent “without 30 days’ notice to the other parent and unless they have the written consent of the other parent.” [^1]
[21] The Applicant argues that the issue of travel with YF should be determined on the basis of his best interests. She notes that travelling with a custodial parent from time to time for vacation periods has been found to be in a child’s best interest. The Applicant relies on the Ontario Court of Appeal’s decision in Kazdan v. Kazdan [^2], in which the consent of the noncustodial parent was dispensed with in order to permit children to travel with their mother to Israel.
[22] This argument might well be persuasive if the parties had not previously settled on a process to deal with requests to travel during periods when the children would otherwise be in school. But here, such a process had been put in place through the Order; it clearly provides that, where one parent wishes to remove the child from school for purposes of travel, the consent of the other parent is required. Although the Applicant attempted in good faith to secure the Respondent’s consent, ultimately the Respondent was only willing to agree to part of the proposed trip. Thus, because of the consent requirements in the Order, the Applicant was simply not in a position to take YF to New York for the entire trip.
[23] The Applicant maintains that paragraph 64 of the Order should be interpreted so as to permit one parent to remove YF from school without consent of the other parent, where the other parent is unreasonably withholding consent. The Applicant’s theory is that it would then be up to the court to determine, after the fact, whether consent had been unreasonably withheld.
[24] It is evident that this proposed ex-post process is in fact directly contrary to what paragraph 64 contemplates. Instead of allowing one parent to determine for themselves whether the other parent is acting unreasonably and then having the court subsequently determine who was right, paragraph 64 mandates obtaining the prior consent of both parties for the removal of the children from school in order to travel.
[25] The Order so provides precisely in order to reduce conflict and uncertainty with respect to travel. The alternative process proposed by the Applicant is essentially one that invites the parties to resort to self-help. This inevitably increases conflict and uncertainty, undermines respect for court orders, and requires more rather than less litigation. Moreover, as R. J. Harper J. of this court noted recently in Skitch v. Hiscock [^3], when parties take it upon themselves to act unilaterally in order to obtain a result which they believe to be in a child’s best interest, they are in effect attempting to assume the court’s responsibility to make this determination.
[26] I would further note that the Applicant’s reliance on Kazdan is misplaced. Kazdan was a case where the parent, prior to taking the proposed trip, successfully sought and obtained a court order dispensing with the other party’s consent. That is not what occurred in this case. Rather than seek a court order in advance dispensing with the Respondent’s consent, the Applicant simply arranged for her parents to transport YF to New York.
[27] The Applicant argues that she did not have the resources to bring a motion seeking to dispense with the Respondent’s consent in advance of the trip. Even assuming this to be true, a party cannot ignore a clear court order and then later seek to justify such a breach on this basis. Ironically, such unilateral conduct, far from reducing litigation costs, is almost certain to have precisely the opposite effect, and drive up costs even higher.
[28] What of the circumstance where one parent unreasonably withholds his/her consent for the other parent’s proposed travel with their children? Clearly, the Order contemplates that both parties are to act reasonably with respect to travel arrangements, and the failure to do so would in all likelihood be taken into account by the court in appropriate circumstances. Having reviewed the email exchanges between the parties, I do not believe that either party acted reasonably in dealing with the proposed trip to New York. The point is simply that the Order does not permit one parent to dispense with the other parent’s consent to travel, simply because the travelling parent regards the withholding of consent to be unreasonable.
[29] I therefore conclude that the Applicant breached the Order when she removed YF from school on April 19, 2018 and sent him to New York, without the consent of the Respondent.
Remedy
[30] The more difficult issue is what remedy follows from this determination. This requires an assessment of the scope of Rule 1(8) of the Family Law Rules, which provides, in relevant part, as follows:
(8) FAILURE TO OBEY ORDER – If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(a) an order for costs;
[31] The Respondent first seeks a declaration that the Applicant breached the Order by taking YF to New York without obtaining his prior consent, as mandated by paragraph 64. He also maintains that the Applicant breached paragraph 3(b) of the Order, which provides that he shall have parenting time with YF on Wednesday evenings.
[32] Although Rule 1(8) of the Family Law Rules does not expressly refer to jurisdiction to issue a declaration, the Rule only applies in circumstances where there is a finding that a person has failed to obey a court order. Thus it is inherent in the wording of Rule 1(8) of the Family Law Rules that it include jurisdiction to issue a declaration confirming the court’s finding that a person has failed to obey a court order. In any event, this matter engages the court’s parens patriae jurisdiction, and this would necessarily encompass jurisdiction to issue a declaration required to protect YF’s best interests.
[33] I have already concluded that the Applicant breached paragraph 64 of the Order, in that she arranged for her parents to take YF to New York without the Respondent’s prior consent. I therefore find that the Respondent is entitled to a declaration to that effect. [^4] However, I decline to make a similar finding and declaration with respect to the alleged breach of paragraph 3(b) of the Order, since the Respondent’s parenting time that was missed on Wednesday, April 25 was made up the following day. In the circumstances I do not believe that it is “necessary for a just determination of the matter” to make any finding or issue a declaration regarding this missed parenting time. Nor would such a declaration be an appropriate and proportionate use of court resources, as mandated by Rule 2(3)(c) & (d) of the Family Law Rules.
[34] The Respondent also seeks an order, pursuant to Rule 1(8)(a) of the Family Law Rules, that the Applicant be required to pay $2500 to the Respondent forthwith, on account of “costs”. However, the Respondent candidly acknowledges that this $2500 payment does not represent reimbursement for his legal fees or disbursements incurred in connection with the Motion. This is made plain by the fact that, in addition to seeking payment of $2500 from the Applicant, he also seeks an order for reimbursement of his costs of these proceedings on a full recovery basis.
[35] The question is whether such a payment falls within the scope of an order for “costs” as contemplated by Rule 1(8)(a) of the Family Law Rules. In my view, it does not.
[36] As B. P. O’Marra J. observed in Salzman v. Salzman [^5], it is trite law that “costs” typically refers to the entitlement of a successful party to have its legal fees and disbursements paid by the unsuccessful party. This is implicit in s. 131 of the Courts of Justice Act [^6], which grants the Court discretion to award “the costs of and incidental to a proceeding or a step in a proceeding”, as well as Rule 57.01 of the Rules of Civil Procedure, which provides that the court may have regard to the principle of indemnity in exercising its discretion regarding costs. As the Supreme Court of Canada observed in British Columbia (Minister of Forests) v. Okanagan Indian Band [^7], one of the traditional purposes of costs awards remains indemnification for “allowable expenses and services incurred relevant to the case or proceeding.”
[37] The $2500 payment sought by the Respondent is not on account of legal fees or disbursements incurred in connection with this proceeding. Rather, it is a payment over and above any of his fees and disbursements. The Respondent argues that ordering such a payment is appropriate since otherwise, the breach of the Order will not have any consequences. He relies on numerous judicial statements to the effect that “an order is an order, not a suggestion” and that noncompliance with court orders must have real consequences. [^8] He also makes reference to Price v. Putnam [^9], a recent decision of the Ontario Court of Justice, which appears to have ordered a payment of $10,000 on account of “costs” under Rule 1(8)(a) of the Family Law Rules, in order to deter a party from ignoring court orders in the future.
[38] There is legal authority in the Family Law Rules for ordering one party to make a payment to another party, but only in circumstances where the court finds a person in contempt of court. Rule 31(5)(c) of the Family Law Rules provides that where a finding of contempt is made, the person in contempt may be ordered to pay “an amount to a party as a penalty”. But there has been no such finding sought or made in this proceeding and thus Rule 31 cannot provide legal authority for the payment sought by the Respondent.
[39] In my view, an order for “costs” under Rule 1(8)(a) of the Family Law Rules only permits an order in respect of the reimbursement of legal fees and disbursements. To the extent that Price v. Putnam proceeds in a different basis, I decline to follow it. Since the $2500 payment sought by the Respondent is not on account of legal fees and disbursements, it falls outside of the scope of Rule 1(8)(a) of the Family Law Rules. The Respondent does not advance any other basis upon which such an order can be made. Accordingly, I dismiss this aspect of the Motion.
[40] In coming to this determination, I have given careful consideration to the Respondent’s submission that breach of court orders must have real consequences. These reasons should not in any way be interpreted as condoning parties in family law litigation from ignoring court orders. At the same time, I would observe that, in my judgment, these parties do take court orders very seriously. Having clarified the fact that the Applicant breached paragraph 64 of the Order, I fully expect both parties to comply with it in the future. That said, the parties should understand that any future breaches of paragraph 64 will likely have much more significant consequences.
[41] Turning to the Cross-Motion, the Applicant is seeking an order that the Respondent not be allowed to bring any further motions without leave. Rule 14(21) of the Family Law Rules provides that such an order may be made in cases where a party has attempted to abuse the court’s process by making numerous motions without merit. Clearly that is not the case here since the Respondent has been partially successful, at least to the extent that I have found the Applicant to be in breach of the Order by taking YF to New York. In any event, as the Court of Appeal noted in Kalaba v. Bylykabashi [^10], preventing litigants from accessing the court process is an exceptional remedy that should be used in only the rarest of cases, since the right of access to justice system is fundamental. Accordingly, I decline to make an order restricting the Respondent’s right to bring motions in the future.
[42] As for the Applicant’s request that she be made the Guardian of YF’s passport, this was a matter litigated and decided earlier this year by Kiteley J. in the Respondent’s favour. Since that time, there has been no material change in circumstance and thus no basis for varying Kiteley J’s order.
[43] I therefore dismiss the Cross-Motion.
Disposition
[44] An order will issue declaring that the Applicant breached the Order by taking YF to New York, which caused him to miss 5 days of school without the Respondent’s consent.
[45] The remaining relief sought by the Respondent on the Motion, and the relief sought by the Applicant on the Cross-Motion, is dismissed.
[46] By way of a concluding observation, I reiterate the admonition of Kiteley J. to the effect that continuing conflict over travel arrangements for YF is manifestly not in his interest. It is to be hoped that the parties will approach future email communication in accordance with paragraph 28 of the Order, which instructs the parties to be brief and respectful in their emails, making no reference to either party or parties or their activities. Had this rule been followed in the present case, it is entirely possible that the conflict and disruption over this matter might well have been avoided.
[47] I invite the parties to make costs submissions. The Respondent shall file his cost submissions of no more than 3 pages (excluding Offers to Settle and Bills of Costs) within 14 days, and the Applicant shall file her cost submissions on a similar basis within a further 14 days.
P.J. Monahan J. Date: November 13, 2018
[^1]: I note that the requirement for obtaining the other party's consent does not apply in cases where a child would only miss a half day of school, but this exception was not engaged in the circumstances. [^2]: Kazdan v. Kazdan; 161 OAC 47; 29 RFL (5th) 355 [^3]: Skitch v. Hiscock, 2018 ONSC 5581, at paragraph 15. [^4]: In Myers v. Myers, 2014 ONSC 1804, the court set out a three-step process in determining an appropriate remedy under Rule 1(8) of the Family Law Rules. The first step in that process is the determination of whether there has been a failure to obey a court order. Implicit in that determination is the jurisdiction to declare that such a breach has occurred. Accordingly, I do not believe it is necessary to proceed to the second or third stage of the Myers three-step process in order to declare that a court order has been breached. [^5]: Salzman v. Salzman, 2012 ONSC 1733, at paragraph 39. [^6]: Courts of Justice Act, R.S.O. 1990, c. C. 43. [^7]: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, at paragraph 21. Of course, as the Court of Appeal noted in Serra v. Serra, 2009 ONCA 395 (C.A.), an order of costs in the family law context serves other purposes, in addition to that of indemnification. But regardless of any other purposes or objectives that may be served, the “costs” in question must be related to the actual fees or disbursements incurred in pursuing the litigation. Otherwise the award would not represent costs "incidental to a proceeding or step in a proceeding", as required by the Courts of Justice Act. [^8]: See, for example, Gordon v. Starr, 2007 CarswellOnt 5438, at paragraph 23. [^9]: Price v. Putnam, 2018 ONCJ 86. [^10]: Kalaba v. Bylykabashi, [2006] O.J. No. 545, at paragraph 114.