Court File and Parties

Court File No.: F 188/09 Date: April 30, 2012

Ontario Court of Justice

Re: Walter Ellington Garrick (applicant) and Nancy Susan Saporowski (respondent)

Before: Justice R. Zisman

Counsel:

• Walter Ellington Garrick – self-represented applicant
• Jeffrey Hart - for the respondent

Heard: March 5, 2012

Endorsement

Introduction

[1] This is a motion for summary judgment brought by the respondent, Nancy Saporowski. She is seeking an order for final sole custody of the child of the relationship, Zachariah Wolf Garrick ("Wolf") born November 30, 2004. The Applicant is the father of the child. He is opposed to the motion and submits that there is a genuine issue for trial. He submits that "custody is at the heart of this matter and requires a trial, witnesses, and up-to-date evidence."

[2] The parties have agreed that a trial is required for the issues of the father's access and child support. A trial management conference is scheduled for May 11, 2012.

[3] The father also brought a motion for expanded access pending the trial.

Background

[4] The parties were in a common law relationship from June 2003 to August 2006. Since the separation the parties' son Wolf has resided with the mother. The mother has an older son from another relationship, Denzil Robert John who also resides with her.

[5] The father had little or no contact with Wolf from the time the mother left the matrimonial home until January 2009 when the father began to see Wolf at his school.

[6] The father has had a long history of involvement in the criminal justice system involving fraud related charges. However, most of those charges have been either withdrawn or dismissed. His most recent involvement is with respect to incidents of alleged fraud in 2007 that also resulted in civil lawsuits. He was recently convicted of three counts of fraud over $5,000.00 emanating from incidents in Halton region in 2007 and was awaiting sentencing at the time of the submissions on this motion. He advised that he is appealing the convictions. He is also facing fraud related charges in Toronto.

Chronology of Court Proceedings

[7] The father commenced this application on April 30, 2009 for sole custody or in the alternative specified access and ancillary relief. He also filed an emergency ex parte motion as he alleged that the mother had disappeared with the child. Although this motion was not granted an early first appearance date was provided to the father. As the mother did not attend court the matter was then scheduled for an uncontested hearing.

[8] In reviewing the materials, Justice Wolder was not satisfied that the mother had been properly served and declined to make an uncontested order. The court staff was requested to send correspondence to the mother to advise her of the next court date. On the return date, the mother advised that she had not been served. The father did not attend this attendance but his father attended and advised that the father could not attend court as he was in jail on an unrelated matter. A temporary custody order was made in favour of the mother and an order of no access to the father pending the return of the proceeding and a date was set for a case conference.

[9] At the case conference the parties agreed to the appointment of the Office of the Children's Lawyer. The father sought unsupervised access and the mother wished no access until the father's outstanding criminal charges were resolved. As a compromise both parties agreed that the father would have supervised access at a supervised access centre.

[10] There have many other court attendances and several motions. There were allegations by the father that the mother was consistently late for access visits or caused the father to miss access visits and that generally she was intentionally interfering with his desire to have a relationship with his son. The mother was concerned that the notoriety about the father's criminal charges was harmful to the child and also concerned about the child's safety while he was in the care of the father. However, after a period of supervised access the mother did agree that the father's access be changed to unsupervised access to be exercised on alternate Sundays from 10:00 a.m. to 4:00 p.m.

[11] There was confusion about the Office of the Children's Lawyer receiving the father's intake forms and a further order had to be made for the appointment of the Office of the Children's Lawyer in January 2010. The initial report could not be completed because the father was incarcerated from sometime in April to July 2010. The Office of the Children's Lawyer subsequently agreed to continue their investigation. The final report that was filed on March 14, 2011 recommended sole custody to the mother, recommended that the access schedule in place at that time continue but made no recommendations about long term access for the father as he was still facing criminal charges. Ms Griffith, the clinical investigator stated that there should be no change in the status quo as potentially the father could be incarcerated or if acquitted he had told Ms Griffiths that he would be relocating from Oakville which would then have an impact on access arrangements.

[12] A temporary order was also made on December 22, 2009 that based on an imputed income of $66,900.00 the father pay child support of $1,000.00 per month on a without prejudice basis. The father did not file a financial statement and submitted that he was unable to work due to the restrictions in his bail release terms. He submitted that he was being supported by his parents. On the next court attendance, he produced a cheque payable to the child in the amount of $1,000.00. He was ordered to provide a cheque payable to the mother and did so but has not paid any support since.

Evidence on Summary Judgment Motion

[13] The mother deposes that she has been Wolf's primary caregiver since birth. She has been the parent that has made all major decisions about the child's education, religion and general well being. She has been the parent who has supported the child for the last six years except for the one payment of $1,000.00 made by the father. She agrees that the father or his family buy expensive clothes for the child.

[14] The mother deposes that Wolf is doing well in her care and is a happy well adjusted child. He attended at Oxford Learning Centre, Junior and Senior kindergarten and is now in Grade 2 in a French immersion program. She provided copies of his report cards that confirm that he is meeting or exceeding the benchmarks in all subjects. The recent report cards also do not raise any concerns with the child being late or absent from school. Previously there were significant lates noted on his report card which the mother explained were due to the child attending Oxford learning centre and being five minutes late for school which still resulted in the lates being noted on his report card. Ms Grithiffs in her report confirmed these facts and there were no concerns reported by the school.

[15] Since the commencement of this proceeding the mother has expressed concerns about the father exercising access due to his outstanding criminal charges and now convictions for fraud. Despite her reluctance to agree to access, once a court order was made she has complied and has agreed to expand access as required to accommodate holidays. There have been disagreements or misunderstandings about the exact times or dates of such access that have resulted in some police involvement.

[16] The parties have not been able to agree on what activities the child should be involved in. In some instances it appears from the father's materials that he arranged lessons without advising the mother and in other instances he arranged lessons and then did not pay for them. The mother expressed concern that the father attended unannounced at the child's school and instructed her counsel to advise the principal about the court orders.

[17] The father does not dispute that the Wolf has lived with the mother since they separated.

[18] The father relies on the following factors to support his position that there is a genuine issue for trial and that there are material facts in dispute:

1. Although he is not Denzil Robert John's biological father he supported him and assisted in paying for his private school education; that the mother changed his surname to "Garrick" and has now changed it back to "John".

2. He was involved with the mother in an exclusive relationship from 1991 to September 2007 when he was arrested and the mother then moved out of their home and moved with Wolf to her parents' home.

3. During the relationship the mother did not exclusively care for Wolf and he was an involved and proud father.

4. Despite his arrest and the challenges he faced, he still continued to provide for the mother, Denzil and Wolf.

5. He arranged for the parties to attend with Pastor Paul Mittlestaedt in February 2008 and they were able to agree on visitation and he was seeing Wolf regularly until the mother "disappeared" for three months which prompted him to commence this litigation.

6. His family gave the mother substantial funds to assist her in her defense of a civil suit. It appears that the plaintiff had sued not only the father but also the mother.

7. He and his family have purchased clothing and shoes for Wolf. They have paid for swimming classes, guitar classes, skating lessons, private swimming classes and a French tutor. The father has video recorded the French lessons as he was also in attendance. The mother found out he was in attendance and terminated the lessons. The father signed Wolf up for soccer lessons but then deposes that the mother after several classes did not take Wolf. The father deposes that he signed Wolf up for Tae Kwon Do but then the mother did not take him.

8. The father has been video and audio recording every access exchange as proof that there is no conflict between the father and mother.

9. The Office of the Children's Lawyer report in recommending sole custody to the mother did not take into consideration that the Wolf missed and was late 78 times, that the mother never advised him she was changing schools and that she gave the school the wrong contact information for him. Even if he is incarcerated that would not prevent the mother and him making joint decisions.

10. He denies that he disrupted Wolf at school but only attended for a parent teacher interview and Wolf was included in that interview. He also attended the school on Wolf's birthday but his main purpose was to ensure the school was tightly monitoring Wolf's attendance at school. He was shocked that the school still had the old court order that required he have supervised access which he saw as a further attempt by the mother to intentionally deceive the school.

11. He believes that the mother is not just a good but a great parent. As Wolf has two loving and capable parents he sees no reason that he should be limited or separated from his child.

[19] The father does not appear to dispute that he had little or no contact with the child after the separation, although the parties differ as to the date of that separation.

[20] The mother responded to the father's outline of the many activities he arranged and paid for by stating that some of these were unknown to her that is, that the father never discussed them with her before arranging or enrolling Wolf in the activities, that some of them he paid for one or two lessons only and so she could not afford to continue or that she found out he had arranged the lessons and then not paid for them at all. With respect to the French tutor, she found out that the father was attending the lessons and was not comfortable with him doing so. Apparently because he paid for four lessons in advance he felt he had the right to attend.

[21] With respect to the access exchanges, the mother states that she makes it a point to not engage the father in conversation as this inevitably leads to arguments and she wishes to avoid conflict when Wolf is present.

[22] Although the mother responded in detail to the father's various incidents and allegations generally she states that the facts are immaterial and of no relevance to the issue of this motion.

The Law - Summary Judgment

[23] Rule 16 of the Family Law Rules allows a party to seek summary judgment without a trial on all or part of a claim after the respondent has served an Answer or after the time for serving an Answer has expired.

[24] Rule 16 (2) provides that a motion for summary judgment is available in any case.

[25] Rule 16 (4) requires that the party making the motion serve an affidavit or other evidence that sets out the specific facts showing that there is no genuine issue requiring a trial.

[26] Rule 16 (4.1) provides that the responding party must also set out in an affidavit or other evidence specific facts showing that there is a genuine issue for trial. The responding party cannot make mere allegations or denials of the evidence.

[27] Rule 16 (6) is mandatory that is, if the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.

[28] Rule 2(5) is also relevant as it require that a court manage a case to promote the primary objectives of the rules which is to enable a court to justly deal with cases.

[29] It is well established that summary judgment is available in custody and access matters. (See for example, Barry v. Morgan (2005) Carswell Ont 1793 ; L. (Y.Q.) v. H. (T.T.) (2006) CarswellOnt 2389 ; Minawi v. Minawi (2002) CarswellOnt 4426 ; Gardner v. Gardner 2005 CarswellOnt 3938 ).

[30] In determining whether or not a genuine issue for trial exists, the court is not to assess credibility, weigh evidence or find the facts. The court's role on such a motion is narrowly limited to assessing the threshold issue of whether or not a genuine issue exists requiring a trial.

[31] The court must take a hard look at the merits of the case to determine there is a genuine issue for trial. The onus is on the moving party to show there is no genuine issue for trial on a balance of probabilities. The court must review all of the evidence to determine whether there is a basis for the final order sought. A proper consideration of the record is necessary. Then the court must determine whether there are specific facts that support a triable issue. A "genuine issue" must relate to a material fact. A mere factual conflict does not, in and of itself, lead to the necessity of a trial. It is not sufficient for the responding party to make mere allegations or blanket denials or self serving affidavits that are not supported by specific facts to defeat a claim for summary judgment.

Application of Law to Facts

[32] It is difficult to ascertain the basis for the father's position that there is a genuine issue for trial, regarding whether or not there should be an order for joint custody as opposed to sole custody. It appears that the father feels that without such an order he cannot be involved in the life of this child and that a trial is necessary to ensure that the mother does not alienate him from the life of his son.

[33] The law regarding joint custody is well settled. Absent evidence of the parties' ability to co-operate and communicate effectively with one another, joint custody is not appropriate. See Kaplanis v. Kaplanis , [2005] O. J. No. 275 (Ont. C.A.)

[34] In this case, the father submitted that the parties were able to get along prior to the separation and were able to communicate and work out an arrangement for access and attaches as evidence correspondence from Pastor Mittelstaedt. However, the letter he produced from Pastor Mittelstaedt indicates that he was not able to assist the parents in working out a parenting plan. He only states that he was able to facilitate one supervised access visit in February 2008 and that the mother was not prepared to agree to further visits and wished a legal document regarding custodial arrangements.

[35] The fact that the father feels compelled to tape the access exchanges to prove that the parties are able to get along is also not evidence of parties that are able to successfully co-parent. As stated by the mother, one would expect that the parties would be mature enough not to argue in front of their son.

[36] The father also submits that this is case is distinguishable from the facts in Kaplanis , supra, as he has stated that the mother is a good parent. But throughout his affidavit he is disparaging about the mother's parenting for example, he is critical of her for the number of times the child was late and absent several years ago and does not accept the mother's explanation. He is critical about her being chronically late for access drop offs. He accuses her of trying to mislead the school about his existence and contact information and of trying to limit his involvement.

[37] The father proposes that a trial is necessary and he would call witnesses. He does not state what evidence would be tendered or how that evidence would be helpful to determine if the parties historically were able to co-operate or communicate effectively. On a motion for summary judgment each party must put his or her "best foot forward" in order to permit the judge hearing the summary judgment motion to assess whether the facts, if proved at trial, would be sufficient to make out the party's claim.

[38] Even assuming every fact in the father's affidavit was proven at trial, they would not bolster his case for joint custody. Based on the father's own affidavit it is clear that the mother has been the primary parent since the separation, that the father had limited contact from 2006 to 2009 and that they are unable to communicate about anything that involves this child.

[39] Although there are factual disputes between the parents, none of them are material to the issue of joint custody and none raise a genuine issue for trial.

[40] Therefore, I find that the evidence establishes, on a balance of probabilities that the child has been on the mother's sole care and custody since 2006. The mother has been able to meet all of his needs and she has shown herself to be a competent and caring parent. Wolf is doing well in school, involved in extra-curricular activities and is a healthy and happy child. The father in his materials has not provided any evidence to dispute these facts that would support the conclusion that there is a genuine issue for trial on the issue of joint custody is necessary.

[41] The Respondent, Nancy Saporowski is granted sole custody of Zachariah Wolf Garrick born November 30, 2004.

Applicant's Motion for Expanded Access

[42] The father has also requested expanded access pending trial. Specifically he is requesting access for the full day on every Christmas Day, on Mondays and Wednesdays from 3:30 to 8:00 p.m. and on alternate weekends; he is also requesting access for his parents every Sunday from 9:00 a.m. to 4:00 p.m. and for his sister whenever she is in Canada, independent of his access or the access of his parents. Currently his access is on alternate Sundays from 10:00 a.m. to 4:00 p.m.

[43] The father relies on the same facts set out in his affidavit filed in opposition of the mother's motion for summary judgement.

[44] At the hearing of the motion, the father confirmed that he had been convicted of fraud and that sentencing was to take place in the following week. He also informed the court that he was appealing the conviction and that the Crown had already indicated that it was not seeking a custodial term. Father was requested to send the court proof of the sentence imposed as it could impact on his request for expanded access. The father has not provided the court with any information regarding the sentence that was imposed for his fraud convictions. Accordingly, I have no information as to the father's current circumstances.

[45] It is well settled law that except in exceptional circumstances, there should not be a change in a temporary order pending trial. Based on the evidence outlined above, no such exceptional circumstances exist in this case.

[46] The father's motion to vary the outstanding access order is dismissed.

[47] As the mother has been the successful party, she is presumed to be entitled to costs. If costs are being sought, counsel should provide brief written submissions with a Bill of Costs, within two weeks and the father can file his response within the following two weeks.

Addendum

Prior to the release of these reasons, I noticed an article in the newspaper about the father that stated he received a conditional sentence of 10 months to be followed by a three year probation order. There were no details regarding any terms of the conditional sentence or probation.

Justice R. Zisman

Date: April 30, 2012