Court File and Parties
Court File No.: D42148/07 Date: 2013-05-29
Ontario Court of Justice Toronto North Family Court
Between:
Peter Bandas Applicant
- and -
Ikbal (Ibai) Demirdache Respondent
Counsel: Steven Benmor, for the Applicant David Miller, for the Respondent
Heard: May 28, 2013
Justice: S.B. Sherr
Endorsement
Part One – Introduction
[1] The applicant (the father) has brought a motion pursuant to subrule 14(22) of the Family Law Rules (the rules) to strike out ten paragraphs of the respondent's Amended Response to Motion to Change (the response).
[2] The respondent (the mother) agreed that paragraphs 12, 21 and 30 of the response should be struck. She asked that the balance of the father's motion be dismissed.
Part Two – Background Facts
[3] The parties are the parents of a six-year-old girl. They were not married and have lived separate and apart since November of 2006.
[4] In August of 2007, the father issued an application seeking joint custody of the child. The mother filed an answer/claim seeking sole custody of the child and child support.
[5] On November 13, 2008, the parties entered into a consent that was incorporated into the final order of Justice Marvin Zuker. The order included the following provisions:
a) The mother was granted sole custody of the child.
b) The mother was required to seek input from the father regarding educational decisions and major medical treatment for the child.
c) In the event of any disagreement regarding educational decisions or medical treatment for the child, the parties would seek the input of a parenting coordinator before the mother was entitled to make the final decision, so long as the decision was in the best interests of the child.
d) A structure was set out for parenting coordination that would take place over the next three years. The parties also agreed on who would be the parenting coordinator.
e) At the end of the three-year period, the parties would review the access schedule that was in place.
f) Specified access was set out for the father that graduated to full alternate weekends, one mid-week overnight and shared holidays.
g) The father was ordered to pay child support to the mother based on an income attributed to him of $100,000 per annum, with a right for him to seek a review of this amount for the period starting on January 1, 2011.
[6] The father has brought an Amended Motion to Change the order of Justice Zuker. He is seeking joint custody of the child, a shared parenting schedule, an order that the child attend French Immersion School starting this fall, several other incidents of custody and a reduction in child support.
[7] The trial of these issues is scheduled for the week of July 22, 2013.
Part Three – Legal Considerations
[8] The father's motion is brought pursuant to subrule 14(22) of the rules, that reads as follows:
The court may, on motion, strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of process.
[9] Subrule 15(27) of the rules provides that subrule 14(22) applies with necessary modifications to a motion to change.
[10] Paragraph 1 of subrule 14(17) of the rules provides that evidence on a motion may be given by way of affidavit or other admissible evidence in writing.
[11] Subrule 14(19) of the rules provides that an affidavit may contain information that the person has learned from someone else, but only if the source of the information is identified by name and the affidavit states that the person signing it believes the information to be true.
[12] Subsection 24(3) of the Children's Law Reform Act provides that a person's past conduct shall be considered only if the court is satisfied that it is relevant to the person's ability to parent.
[13] The probative value of evidence must outweigh any prejudice to its introduction. R. v. K.A., [1999] 45 O.R. (3d) 641 (Ont. C.A.).
Part Four – The Contentious Paragraphs
[14] The father is seeking to strike paragraphs of the response that purport to set out his difficulty in working with professionals who have been involved with the family.
[15] In paragraphs 10, 13 and 14 of the response, the mother blames the father for the breakdown of parenting coordination with the original parenting coordinator. She alleges that the parenting coordinator resigned following a dispute with the father and that the parenting coordinator did not provide the court with a report after the father threatened litigation and to report the parenting coordinator to the College of Social Workers if a report was provided.[1]
[16] The mother plans to call the parenting coordinator as a witness at trial.
[17] In paragraphs 15 and 16 of the response, the mother sets out the difficulties the parties had in obtaining a new parenting coordinator. She blames the father for this.
[18] In paragraph 56 of the response, the mother states that the father has difficulties working effectively with professionals involved in the child's life, including the parenting coordinator, the child's current pediatrician and previous doctor and the child's former daycare director. In paragraph 36 of the response, the mother sets out some particulars of these difficulties.
[19] The mother plans to call the persons listed in paragraph 36 of the response as witnesses at trial.
Part Five – The Father's Position
[20] The father submits that the paragraphs he seeks to strike are not relevant, are inflammatory, will improperly colour the proceedings and will result in an unfair trial if permitted to stand.
[21] The father argued that the information in the paragraphs is dated and has no bearing on the best interests of the child. He submits that the case is not about whether the father is difficult to deal with,[2] but rather about the best interests of the child and the ability of the parents to co-parent her.
[22] The father argued that if the offending paragraphs were not struck, the trial would be unduly delayed, as the parties would be wasting time and expense arguing about whether or not the father is difficult to deal with and not about the best interests of the child.
[23] Lastly, the father argued that the court should discourage the admission of such evidence – that it is an invitation for parties to elongate parenting cases by calling multiple witnesses who will only testify about the nature of their relationship with the parent and that such evidence has little, if anything, to do with the best interests of a child.
Part Six – Analysis
[24] The paragraphs in dispute are relevant to the issues in this case.
[25] The father is seeking orders for joint custody and shared parenting time. The ability of the parents to communicate effectively and cooperate in issues pertaining to the best interests of the child is at the very core of the decision that the trial judge will have to make. The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 (Ont. C.A.), sets out the following principles in determining whether a joint custody order is appropriate:
There must be evidence of historical communication between the parents and appropriate communication between them.
It can't be ordered in the hope that it will improve their communication.
Just because both parents are fit does not mean that joint custody should be ordered.
The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
The younger the child, the more important communication is.
[26] The ability of parents to communicate and cooperate effectively is also more critical when parents are seeking a shared parenting arrangement as they will need to coordinate medical and dental appointments for the child, coordinate school matters (including homework assignments, school activities and parent-teacher meetings) and coordinate extra-curricular activities.
[27] The mother's position is that she can't effectively communicate with the father because he is argumentative, demanding and difficult to deal with. The father denies the mother's allegations and takes the position that the mother has been the person frustrating effective communication between the parties.[3] The trial judge will need to make credibility findings about the nature of the parties' relationship.
[28] The court does not agree with the father's submission that whether he is difficult to deal with is not relevant. It is highly relevant to the issues of joint custody and shared parenting. The ability of the father to reasonably communicate with professionals involved with the family is relevant in assessing his ability to communicate with the mother about the child. If the court finds that the father has difficulty dealing with professionals involved with the family, this will likely corroborate the mother's evidence that the father is too difficult for her to deal with - how realistic is it to believe that he will communicate well with her?[4] If the parties have spent years arguing over parenting coordinators, the court will likely question how they will be able to make major decisions together about the child in a timely manner.[5]
[29] This evidence is also relevant as to whether it is in the child's best interests to have the father make major decisions about her. Will he alienate professionals who deal with the child? If the mother's allegations are accepted by the court, they cast considerable doubt on the father's judgment and ability to make child-focused decisions. This evidence is directly relevant to his ability to act as a parent – a consideration in both clause 24(2)(g) and subsection 24(3) of the Children's Law Reform Act.
[30] The court does not accept the father's argument that the evidence is dated. If accepted by the court, the evidence would show a pattern of problematic behaviour by the father which is detrimental to the child.
[31] The father is not unfairly prejudiced by the introduction of this evidence. The third parties will be testifying. The father will have the opportunity to fully test their evidence through cross-examination. The probative value of the evidence outweighs any prejudice to its admission. The trial judge is best suited to determine the appropriate weight to give to this evidence.
[32] The trial may take longer on account of this contested evidence. However, this is important evidence for the trial judge to have to make a decision in the child's best interests.
[33] The paragraphs in dispute are not inflammatory, argumentative, a nuisance or an abuse of the court process. They do not improperly colour the proceeding.
[34] There is some difficulty with paragraph 36 of the response. It contains hearsay. The mother sets out what she was told by the child's doctor, daycare provider and pediatrician. She did not set out that she believes the evidence to be true as required in subrule 14(19) of the rules.
[35] The mother has undertaken to call each of these persons at trial and has agreed that any statement attributed to these witnesses be struck if they are not called. This is a reasonable suggestion. The mother clearly believes what the witnesses say and is calling them at trial to back up her belief. The father has notice of what these witnesses will say.
[36] The father claims that the trial judge will be unduly prejudiced reading this evidence before the trial. I disagree. Many trials now have direct evidence provided by affidavit (and almost all motions to change involve affidavit evidence). Trial judges regularly review such affidavits before a trial and are very aware that there will usually be another version of events to hear.
Part Seven – Conclusion
[37] An order will go on the following terms:
a) Paragraphs 12, 21 and 30 of the Amended Response to Motion to Change are struck.
b) The balance of the father's motion is dismissed.
[38] If either party seeks costs of this motion they should serve and file written submissions by June 5, 2013. The other party will then have until June 12, 2013 to serve and file any response. The submissions shall not exceed two pages, not including any Bill of Costs or Offer to Settle.
Justice S.B. Sherr
Released: May 29, 2013
Footnotes
[1] Paragraph 2(d) of the order of Justice Zuker provides that the parenting coordinator may report to the Court, with respect to her recommendations in the event that the matter is not resolved, the cost of which report shall be initially to the party requesting it subject to reapportionment by the Court.
[2] The father does not agree that he is difficult to deal with as alleged by the mother.
[3] In recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship: see Garrow v. Woycheshen, 2008 ONCJ 686 (Ont. C.J.); Hsiung v. Tsioutsioulas, 2011 ONCJ 517; Andrade v. Kennelly, 2007 ONCA 898.
[4] I wish to emphasize that these are unproven allegations at this point.
[5] The parties blame each other for not agreeing on a parenting coordinator.