Court File and Parties

COURT FILE NO.: FC-19-380 DATE: 20210216 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Michael Pereira, Applicant AND: Stella Ramos, Respondent

BEFORE: The Honourable Justice R.S. Jain

COUNSEL: J. Ordon, D. Anthony, Counsel for the Applicant C. Allen, Counsel, for the Respondent

HEARD: In writing

Endorsement

Re. 14B Motion filed by the Applicant seeking an order for leave to file and rely upon his affidavit sworn February 9, 2021 pursuant to my endorsement dated October 29, 2020. The Respondent opposes the Applicant’s request and asks that if the court grants the Applicant’s request, that she be permitted to file her affidavit in response.

[1] On October 29, 2020 I heard part of the Applicant’s motion requesting an order for a 2-2-3 alternating week parenting time schedule. In my endorsement of October 29, 2020, I adjourned the balance of the motion “for oral evidence to be provided by the OCL Clinical Investigator Sarah Martyn regarding her Report filed with the court dated February 10, 2020.” I clearly stated that “Neither party shall file any additional affidavits for this motion without leave of the court.” I further requested that Ms. Martyn conduct at least one more interview with the children prior to the hearing so that she was up to date as to the children’s views and preferences. The OCL generously agreed to do so. Ms. Martyn has completed the updating interviews and filed a VOC report dated January 19, 2021. On February 18, 2021, the clinician will also attend the ZOOM court to give oral evidence and be questioned by counsel.

[2] The Applicant’s affidavit dated February 9, 2021 in support of his 14B motion contains a voice recording of a conversation between him and the children Emily (11) and Kaylee (7) that purportedly took place on January 30, 2021. The Applicant alleges that this recording is proof that the Respondent has attempted to “coach” the children as to what to say in their interviews with Ms. Martyn. The Respondent’s affidavit dated February 10, 2021 denies the Applicant’s allegations and opposes the affidavit being filed or relied upon and further alleges that it is the Applicant who is influencing the children. In the Applicant’s recording, it is clear that the children know they are being recorded, but they did not know the Applicant was going to use the recording in court. They were clearly concerned about what the recording was for, and the Applicant told them “it was only for him”.

[3] Upon review of both the party’s affidavits and hearing the recording, I find that the evidence in both affidavits and in the Applicant’s voice recording contain hearsay evidence that is unnecessary, unreliable, highly prejudicial and has little probative value, (R. vs. Khan). They should not be allowed.

[4] Submitting recordings of conversations with children is akin to asking children to write letters to the court. Neither of these actions is condoned or encouraged by the family court. It is very rarely appropriate or necessary for parents to gather evidence from their children. In Ontario we have the benefit of the services of the OCL to provide evidence of a child’s views and preferences, if they can be reasonably ascertained. In this case, the children’s views and preferences have been shared through both the sec. 112 report and the VOC report. The children know their conversations with the OCL will be shared with the court so the court can take their views and preferences into consideration.

[5] The children’s views and preferences are just one of the many important factors the court considers when determining the merits of an application for custody or access (see sec. 24 of the CLRA). In this case, the parents will have the chance to question the OCL regarding the strength, consistency and independence of the children’s views.

[6] For these reasons, I do not grant leave to permit the Applicant and/or the Respondent to file or rely upon these additional affidavits. The Applicant’s 14B motion is dismissed. Costs of this 14B motion are reserved and will be included in the determination of costs for the entire motion.

[7] The court understands how important and emotional the issues of this motion are to both parties. Although by now it should be clear to both parents that it is harmful to their children to be involved in their ongoing conflict, I find it necessary to make it crystal clear by making the following order:

a. Both parents shall refrain from discussing the ongoing court case with the children. Both parents shall refrain from speaking negatively about the other parent to or in front of the children and they and shall make their best efforts to ensure that third parties refrain from doing so as well.

Jain J. Date: February 16, 2021