Frankum v. Frankum, 2007 ONCA 429

CITATION: Frankum v. Frankum, 2007 ONCA 429

DATE: 20070613

DOCKET: C46132

COURT OF APPEAL FOR ONTARIO

SHARPE, JURIANSZ JJ.A. and CHAPNIK J. (Ad hoc)

BETWEEN:

KELLY ANNE PEPPER (FRANKUM)

Applicant (Respondent)

and

KERRY MAURICE FRANKUM

Respondent (Appellant)

Wallace A. W. Scott, Q.C. for the respondent/appellant

J. Scott McLeod for the applicant/respondent

Heard: June 5, 2007

On appeal from the judgment of Justice Peter Z. Magda of the Superior Court of Justice dated September 18, 2006.

BY THE COURT:

[1] The appellant/father appeals the decision of Magda J. dated September 18, 2006 dismissing his motion for leave to bring a motion for access to his son, Troy, 12 years of age. Magda J., in an earlier disposition dated March 9, 2006, had ordered that the father required leave of the court to take any further step in a proceeding.

[2] The motion judge refused to grant leave because, as he said in his ruling, “the costs previously ordered have not been paid and I certainly would not consider permitting leave to bring any further actions in this matter until those costs are paid.” He ordered that the father’s motion for leave “shall not be renewed until the outstanding costs have been paid.”

[3] The record does not indicate there were any unpaid costs. The costs the motion judge seems to have had in mind stem from his order of March 9, 2006, in which he indicated the father was to pay the mother’s costs on a substantial indemnity scale. He directed the mother’s lawyer to submit a bill of costs for his consideration, with a copy to the father. Before us, counsel for the mother conceded the bill of costs he provided to the father included services well beyond the scope of the motion of March 9, 2006 and were calculated on a full indemnity not a substantial indemnity basis. These bills were never considered by the motion judge and he had never made a specific costs order. This is a sufficient reason to set aside his decision.

[4] Moreover, in our view, it is an error in law to bar a parent from seeking access to a child on the sole ground of unpaid costs without considering the amount of costs, the reasons they were unpaid, and the parent’s ability to pay. The motion judge did not turn his mind to these considerations.

[5] The father was injured in 1989 and lives on a modest disability pension. Counsel for the mother recognized he would have great difficulty paying a costs order from his income. The father does own his own home, having paid off his mortgage from the settlement received as a result of his injury. Whether he should have been required to encumber his home, his only asset, in order to seek access to his son ought to have been considered by the motion judge in all the circumstances of the case.

[6] The motion judge’s decision refusing the father leave to bring his motion cannot stand and is set aside.

[7] There are several troubling aspects of this unusual case that, while not pertinent to the main issue raised by this appeal, are relevant to the relief we grant. They lead us to grant the father leave to bring his motion instead of remitting that motion to be reconsidered by the Superior Court, and to order access without supervision in the interim.

[8] The parties had a five-year relationship and parented two children, Tamara born October 6, 1992 and Troy born August 22, 1994. They separated in September, 1997 and have been engaged in ongoing court proceedings regarding custody and access. In 1998, they agreed that Troy would live with his father and that Tamara would live with her mother. Troy lived with his father for a period of six years, from when he was four years of age in 1998 to when he was ten years of age in 2004.

[9] On September 14, 2004, the parties entered into a detailed consent order granting among other things, custody of Troy to the father and custody of Tamara to the mother. The consent order provided that the father could have additional access to Tamara but only upon Tamara’s expressed wishes. The order provided for the mother’s access to Troy on alternate weekends and stipulated that the father “deliver” Troy to the mother’s home for such access. The consent order then states:

In the event that the [father] does not deliver Troy for access, Troy will remain in the [mother’s] care until further court order.

[10] This term evidently reflected the difficulties the mother had been experiencing in exercising access to Troy. Prior to the consent order, the mother had brought a motion to find the father in contempt for impeding her access to Troy. She abandoned that contempt motion in reaching agreement on the terms of the consent order.

[11] On the very first access weekend after the consent order, the father failed to deliver Troy to the mother’s residence as required. On September 28, 2004, the mother brought an “urgent, without notice” motion seeking an order that Troy be placed in her care and control pursuant to the consent order and MacDougall J. issued an ex parte order that:

1. The Order of Justice Rogers dated Sept. 14, 2004 is confirmed and it is directed that the same issue forthwith;

2. The child Troy Frankum, D.O.B. Aug. 22, 1994 is placed in the primary care and control of the Applicant;

3. The Respondent is prohibited from having any direct or indirect contact with the Applicant or Troy Frankum pursuant to s. 46 of the F.L.A. [emphasis added]

4. The Police Authority in this jurisdiction is instructed and directed to assist the Applicant in the enforcement of this order and Justice Rogers’ Order of September 14, 2006.

5. Matter adjourned to October 1/04 at 9:30 a.m. Material to be served forthwith on the [father and his solicitor].

[12] It is troubling that the court allowed the motion to proceed ex parte on the basis of the mother’s bald deposition that she was concerned that the father would take steps to remove Troy from the jurisdiction if she gave him notice of the motion. She disclosed no basis for this belief, and in view of the father’s financial situation, his ability to leave the jurisdiction seems implausible. She never did file a response to the father’s subsequent accusation she had misled the court.

[13] A second troublesome and perplexing aspect is the prohibition of the father having any contact with his ten year old son who had lived with him for the past six years. The record does not disclose any foundation for such an order.

[14] A third troublesome aspect is that the matter did not return before the court to be dealt with on notice until December 17, 2004, with the non-contact order in force during the delay.

[15] On December 17, 2004, MacDougall J. noted the close relationship between the father and son, but concluded the father did not have a proper understanding and appreciation of his parental obligations to his son to ensure he had a relationship with his mother. Before MacDougall J., the Children’s Lawyer representing Troy advised the court that “Troy’s wishes remain as they have always been i.e. to reside with his father and have regular contact with his mother and sister”, but took the position that it would not be in Troy’s best interests to be in the father’s care and custody full time as he would not have the benefit of important relationships with his mother and sister. MacDougall J. refused to return Troy to the father’s primary care for the singular good reason that the father was not a positive force encouraging Troy’s relationship with his mother. MacDougall J. requested the Children’s Lawyer to obtain a “social work assist” to assist the court in considering whether it was in Troy’s best interest to return to live with his father in the longer term. Subsequently, the Children’s Lawyer declined to provide such an assist.

[16] MacDougall J.’s endorsement of December 17, 2004 does not refer to the non-contact order and provides no reasons why it should have been left in place. However, he did continue the order of September 28, 2004, and the formal order taken out continued the non-contact term.

[17] The father’s continued efforts to regain custody and access to his son culminated in the two orders of the motion judge referred to above. While it seems the father has seen his son occasionally under supervision, the non-contact order remains in effect. It was most recently renewed by the motion judge’s order dated March 9, 2006, by which he gave custody of Troy to the mother, and amended the September 28, 2004 order of MacDougall J. to include Tamara in the non-contact provision. The motion judge further ordered that the husband required leave of the court to take any further steps in the matter. Then on September 18, 2006, the judge made the order from which this appeal is taken, dismissing the father’s motion for leave to bring the motion for access to his son.

[18] Counsel for the mother agrees that the only final order made in this proceeding is the consent order of September 14, 2004. There have been material changes of circumstances since that order was made. The father was given custody of Troy by that order and is now not permitted to contact Troy. The transfer of custody from the father to the mother if the father impeded the mother’s access was provided for by the consent order. However, that order did not contemplate that the father would not have access or would be prohibited from having contact with his son.

[19] The overarching troublesome aspect of this case is the various court orders have not achieved the court’s stated objective in removing Troy from the care and control of his father, namely to ensure that Troy have the opportunity to develop healthy relationships with both parents.

[20] The non-contact order is difficult to understand as the father has never been described by an independent assessor as anything but a good father to his child. His only failing, identified by Macdougall J., was his inability to understand the importance of Troy having a relationship with his mother. The mother recognized the father’s parenting ability by agreeing, in 2004, to the father having custody of Troy. The mother’s subsequent position, for example in her affidavit dated April 15, 2005 stating Troy did not wish to have access to his father, is reminiscent of the father’s earlier allegations of Troy’s attitude towards his mother. Bearing in mind the mother’s groundless affidavit filed to obtain the ex parte order, we are hesitant to attach weight to the mother’s vague allusion of a current problem between Troy and his father.

[21] There is scant evidence that the mother has encouraged Troy to visit his father on a regular basis, as Macdougall J. believed she would. On the other hand, in a more recent report dated March 7, 2006, Dr. Gregory L. Carter, psychologist, reviewed the limited available evidence related to matters of access and was satisfied that Troy’s expressed and genuine wishes were to reunite with his father, though he suggested a more extensive assessment be undertaken.

[22] None of the court’s orders in the record or reasons for those orders indicate any reason for imposing the non-contact provision. None state any reason why the father should be denied access to Troy. None indicate why the father’s access should be supervised.

[23] Accordingly, the appeal is allowed. The judgment of Magda J. dated September 18, 2006 is set aside. Leave is granted to the appellant to bring his motion for access to Troy to be determined by a different judge. We order that the father have interim and unsupervised access to Troy. Given the lack of independent information about Troy’s current attitude, situation and schedule, we approach interim access cautiously and urge the Superior Court to consider what is appropriate interim access on an expedited basis. Until further order of the Superior Court, the father will have access to Troy one day each weekend between the hours of noon and 5 p.m. commencing the weekend following the release of this decision. The parties, through counsel, may choose which day on the weekend best suits Troy’s schedule. Costs are awarded to the appellant in the amount of $5,000 inclusive of disbursements and GST payable forthwith.

“Robert J. Sharpe J.A.”

“R. Juriansz J.A.”

“Sandra Chapnik J. (ad hoc)”

RELEASED: June 13, 2007