Court File and Parties
Court File No.: Toronto D 50802/10
Date: 2014-07-31
Ontario Court of Justice
Between:
L.N.A. (also known as L.N.) Applicant
— AND —
G.K.A. Respondent
Before: Justice Carole Curtis
Heard on: 4-8 November 2013; 9 January 2014; 20-21 March 2014; 9 April 2014
Decision released: 31 July 2014
Counsel:
- Osei Owusu for the Applicant
- The Respondent in person and unrepresented
INDEX
- Over-view
- Background
- Litigation History
- The Mother And The Mother's Evidence
- The Father And The Father's Evidence
- The Child
- Access History
- The Child's Disclosures
- Custody
- Access
- Child Support
- Conduct Of The Trial
- Orders
OVERVIEW
[1] This nine day trial dealt with custody, access, and child support.
[2] In the application, the mother claimed:
- Sole custody;
- Reasonable access on reasonable notice to the father; and,
- Child support, in accordance with the Child Support Guidelines, including an order for sharing of special expenses.
At trial the mother claimed sole custody, supervised access for the father, child support and arrears of support in accordance with the Child Support Guidelines and an order for sharing of special expenses, travel and passport orders, and costs.
[3] In the answer the father claimed:
- Joint custody;
- An order for equal time sharing of the child, on a week-on, week-off basis, or, in the alternative, liberal and generous access;
- Child support from the mother;
- A non-removal order against the mother; and,
- An order preventing the child's name from being changed.
At trial the father claimed sole custody, in the alternative shared access (50% time), an order for no child support, a refund of over-paid child support, re-imbursement for 2011 and 2012 child–related items (diapers, pull-up, wipes, clothing), an order preventing changing of the child's name, a non-removal order, a non-relocation order, and costs of the trial.
BACKGROUND
[4] L.N.A. (L.N. at the trial) is the mother, born 1979 and 34 years old. She is employed as a senior public health inspector, and earned $89,856 in 2013.
[5] G.K.A. is the father, born 1980, and 33 years old. He is employed as a national manager in occupational health and safety with an oil and gas company, and earned $72,000 in 2013.
[6] The parents were married on 26 April 2008. They separated on either 15 July 2009 or 21 September 2009 (nothing turns on this discrepancy in this case). They were divorced in February 2012.
[7] There is one child of the marriage, E.B.A., born 2009 (now 5 years old).
LITIGATION HISTORY
[8] The application was started in April 2010, about nine months after the separation. The child was 10 months old when the court case started.
[9] These are the relevant temporary orders in this case (all made by Waldman, J.). Except for one order, none of these orders were issued and entered, and they should have been, particularly in a case such as this which was high conflict throughout:
| Date of Order | Ordered |
|---|---|
| 28 July 2010 | temporary sole custody to the mother, without prejudice, and specific temporary access to the father |
| 28 September 2010 | request to increase access dismissed |
| 24 November 2010 | increased access on consent |
| 11 July 2011 | increased access on consent and certain financial disclosure ordered |
| 20 March 2012 | overnight access alternate week-ends from Saturday 10.00 a.m. to Sunday 7 p.m., and Thursdays from 4.00 to 7.30 p.m.; child support $525 per month on income $58,000 from 15 March 2012; $175 per month child care expense from 15 March 2012; A non-removal order |
| 4 July 2012 | overnight Friday access to begin with the second week-end access in October 2012 |
| 30 October 2012 | without prejudice access suspended |
| 11 December 2012 | request to re-instate access dismissed |
| 11 April 2013 | supervised access for 2 hours each weekend to be supervised by a mutually agreed party |
| 28 June 2013 | access every Sunday for 2 hours from 2.00 to 4.00 p.m. at the mall at Jane and Wilson, supervised by one of father's choices and one of mother's choices |
| 19 August 2013 | non-removal order; father's motion for unsupervised access and to reduce child support dismissed; child's name shall not be changed; |
THE MOTHER AND THE MOTHER'S EVIDENCE
[10] The mother currently lives with her family: her parents (ages 64 and 56), her brother (21) and sister (23). There is, she said, no shortage of people to help her with the child.
[11] As the father was unrepresented at trial the mother was cross-examined directly by the father. This cross-examination lasted two full days.
[12] The mother was calm, detailed, specific, not angry, not confrontational, and focused in her evidence. It was clear that she was making an effort to not be drawn into a confrontation with the father during the two days he cross-examined her.
[13] The father's access to the child has been conflicted almost from the time of the separation. In the early days of the separation, the mother did the transportation for access. Originally, access took place at the Yorkdale Mall, a 45 minutes' drive from the mother's home in Brampton.
[14] The mother's evidence (not denied by the father) was that in the early days of access (in 2010) the father was complaining that the mother did not send enough diapers, wipes, pull-ups, and other essential items for the father's access. The mother said she was expected to provide the child's toothpaste, cream, sponge, soap, powder, as though it was her responsibility to provide those items for his time with the child.
[15] The mother said that the father kept the child's clothes after visits (this was not disputed by the father). At first the mother asked for them back, but this caused conflict, and the mother decided it was not worth it. Then the mother just began to minimize the amount of clothes she provided for the visits.
[16] The mother denies that she has tried to interfere with the father's relationship with the child. The mother's evidence is that that no-one has ever barred any of the father's family from having a relationship with the child.
[17] The mother repeatedly said in evidence that she realised she could not deal with the father and that she minimized the opportunities for contact and for conflict.
THE FATHER AND THE FATHER'S EVIDENCE
[18] The father is convinced that the mother and her family have plotted and continue to plot to keep him away from the child. This is the theory of his case, the dominant theme of his evidence and his overall presentation at the trial.
[19] As the father was unrepresented for nine days of trial, the court had a unique opportunity to observe the father and to observe his behaviour.
[20] The father was a high-functioning unrepresented litigant. He was organized and prepared. He was on the witness stand for several days. He was given great latitude by the court in the presentation of his evidence in chief, to give his evidence in the way he wanted.
[21] The father called evidence from six supporting witnesses, who were his friends and his family members. Some of his male friends clearly love the father and stand by him. All gave evidence of their observations of him as a parent. All were positive about his relationship with the child, and his parenting abilities, and the unlikelihood that he would have sexually abused the child (all said that he would not have done this).
[22] The father sees himself as a victim. He sees everything in terms of a plot against him. He believes that there is a conspiracy by the mother's family to keep him from the child. He said that the mother opposed every single request to increase access. He said that the mother wanted to prevent the child from having a relationship with him and his family. He said that the mother was trying to control his relationship with the child.
[23] The father's evidence was almost entirely criticisms of the mother and her family. His evidence was a series of speeches, repeatedly describing incidents that took place with the mother and her family. He used extreme language to describe the mother and her family, their motives, their intentions, and their goals. He sees the mother and her family as evil. The father's resentment of the mother and her family is strong and deep. It was palpable in the courtroom.
[24] The father's cross-examination of the mother dealt extensively with incidents that involved the mother and her family, and their relations to and treatment of him. He repeatedly described the mother's family as hating him, and trying to set him up. He used the word hate over and over again.
[25] The father accepts no responsibility for anything that has happened to him or to his family: for the end of the marriage, for the conflict with the mother, for the conflict with her family, for the litigation. Everyone else is at fault, but not him.
[26] The father's analysis about the child and his relationship with her is all about his rights, not about what is in her best interests. He gave very little evidence about the child, about her needs, or about his ability to meet those needs.
[27] The father repeatedly said that the mother is an unfit mother and that the child should be removed from her care.
[28] The father spent much of his evidence calling the mother names. The father repeatedly described the mother as controlling. These are some of the adjectives the father used to describe the mother:
- manipulative
- dishonest
- calculating
- plotting
- hot-tempered
- set in her ways
- argumentative
- vicious
- wicked
- arrogant
- angry
- bitter
- vindictive
- aggressive
- violent
- clever
- calculating
- dangerous
- controlling
[29] The father was a difficult and confrontational witness and party. He was aggressive, hostile and combative. He showed little respect for the court or the court's process. At times, he was belligerent and demanding, obstinate and insistent. He was unable to accept adverse rulings, even on minor matters, and was insistent that things go his way. He saw each adverse ruling as an invitation for debate or discussion, and he repeatedly not only continued to make submissions and argument after a ruling was made, but insisted on doing so.
[30] The father's level of anger is enormous, and is, in fact, quite unusual, even for a high conflict case, and even for a specialist family law judge who sees high conflict cases every day. How the father sees himself is at odds with how he presented at the trial. He described himself as calm, kind, loving, co-operative, and reasonable. He described himself as "very, very understanding". He described himself as an amazing father. He described himself as the one always promoting peace, and negotiations. He said that he never lost his temper with the mother. He said that he is not the difficult person.
[31] But that is not how the father presented at the trial during nine days of hearing. He was extremely short tempered, and appeared, at times, to have temper tantrums. He had a great deal of difficulty controlling himself, and was frequently unable to control himself. He was condescending and dismissive at times. He was self-righteous and self-important.
THE CHILD
[32] The mother described the child as thriving, and well-adjusted. She said that the child loves the father, enjoys spending time with him, and that she talks about the father all the time.
[33] The mother described the father as a loving and caring dad. The mother said that she has no issues with the father having access. When access was not happening (from March 2013 to April 2014) the mother said it was not in the child's interests to be separated from the father for so long.
ACCESS HISTORY
[34] There was a contested motion before Waldman, J. (the case management judge) regarding access, which was heard on 19 August 2013 (about three months before the trial started), and Waldman, J. released a detailed endorsement which set out the access history of the case as follows:
a) Access began with four hours of access in July 2010 and gradually increased. The original access schedule was determined having regard to the child's age and the concerns of each parent. Access arrangements were made in November 2010 and again in July 2011. The consent order in July 2011 provided for access on Saturdays from 10 a.m. to 6 p.m., and every second Thursday from 4 to 7.30 p.m.
b) There were court appearances and discussions about increasing access through 2011 and again in January 2012. The father consistently requested increased access and the mother often resisted this request. The court increased the father's time with the child gradually, allowing the child to continue to feel more and more comfortable with the father, noting whether any of the mother's concerns had merit, and hoping to develop a sense of trust and respect between the parents and reduce the conflict. The father began overnight access from Saturday until Sunday in March 2012. In July 2012, Waldman, J. ordered the overnight access to be extended to include Friday nights beginning in October 2012.
c) According to the mother, in October 2012, the child made a disclosure to her stating that the father had sexually assaulted her while she was in bed. According to the mother and the evidence from the Children's Aid Society of Toronto ("C.A.S.T.") and the police investigation, the child repeated this disclosure to the police and social worker in an interview. The father was charged criminally with sexual assault. As a result the access was suspended.
d) The father has consistently denied these charges, and has insisted that if the child in fact made these disclosures, then she was coached by the mother. It is and has consistently been his position that this is part of the mother's effort to prevent him from having a relationship with his daughter. There have been various motions relating to access since the criminal charges. Supervised access was discussed but both the Supervised Access Centre and the C.A.S.T. refused to supervise. There were efforts to arrange access supervised by a third party, but the parents could not agree on a person. As of the date of the motion before Waldman, J., 19 August 2013, the father had chosen not to proceed with the supervised access, because of his position that he had done nothing wrong, and that this process, both criminal and civil, was unjust and unfair.
e) As a result of the allegations, the inability to agree on a supervisor and the father's position relating to access, as of the date of the motion, 19 August 2013, he had not seen the child since October 2012. He was in a position to exercise supervised access since March 2013, but for the dispute as to supervisor and his refusal to participate.
f) At the motion, on 19 August 2013, the charges had been withdrawn and the father repeated his request for unsupervised access, for overnight week-end access, as well as other times. It was the father's position (at that motion on 19 August 2013 and at the trial), that a review of the mother's conduct throughout the litigation supports his position that she has tried to obstruct his relationship with his daughter. He argued that a consideration of all the evidence relating to the sexual assault, along with the fact that the charges were withdrawn by the crown attorney, support his position that the assault did not occur, that the charges were a malicious act by the mother to keep him from his daughter, that there is no reason why he should not have unsupervised contact with his daughter, and therefore the unsupervised and overnight access ought to resume immediately (in August 2013). It has been the father's position that the mother has tried to obstruct his access and interfere with his relationship with his child. He repeated this position consistently, and whenever the mother opposed the increases in access which he was seeking.
g) The mother was resistant to increases in access and that she did cancel many access visits, and that the court had to caution her about when it was appropriate to cancel visits. It continues to be the mother's position that the sexual assault did occur, and that allowing unsupervised access would put the child at risk. She repeats her position that the disclosure was spontaneous and not coached, that the child repeated the disclosure to third parties, and that the statement given by the child to the police was detailed. She denies the father's position that she has tried to obstruct his access.
h) The father's motion for unsupervised access is dismissed:
i. The withdrawal of the criminal charges, while important, did not allow the court to conclude that the sexual assault did not occur;
ii. The court took into account many factors (which were listed), some of which were:
A. The fact that the father had not seen the child since October 2012;
B. The fact that the father has continued to choose not to see the child and to argue about the access supervisors. He could have been having supervised access since March 2013;
C. The court made no finding whether the sexual assault did or did not occur;
iii. Supervised interim access is in the child's best interests, until the issue of the possible risk to the child is determined at trial, and in order to allow the child to renew her relationship with her father after the hiatus, particularly given the circumstances surrounding the disruption in access;
iv. The father's access to the child shall be supervised;
v. The father may continue to have access supervised by the third parties as per the previous order (11 April and 28 June 2013). Alternatively, access can be supervised by the Supervised Access Centre. The father has the right to choose whether he wishes supervision by the Supervised Access Centre, or as in the previous order, he shall advise the mother's lawyer of his choice. Each parent shall contact the Supervised Access Centre within seven days of the father advising that he wishes to use this resource.
vi. Access is two hours on Saturday or Sunday, as is available. Both parents shall abide by the rules and regulations of the Supervised Access Centre. Access to commence as soon as a spot is available. Each parent shall pay their own costs of the supervised program.
vii. The court urged the father to exercise the supervised access, in order to begin rebuilding his relationship with his daughter, regardless of the reasons for the disruption and his feelings of unfairness.
[35] Waldman, J.'s detailed description of the history of the litigation, the parent's positions, and their behaviours is accurate. None of it has changed since the motion was heard on 19 August 2013. The behaviour and the attitudes of the parents, and their positions all continued up to and during the trial.
THE CHILD'S DISCLOSURES
[36] Overnight access had started in March 2012. On 27 October 2012, while the mother was bathing the child, the child made a spontaneous disclosure of sexual abuse by the father. The child was then three years old, and was described by the mother as very verbal. The mother asked the child to spread her legs to dry her, and the child said "it still hurts down there", and "daddy put his fingers in my vagina". The mother called her sister Vivian to come into the room and the child told the auntie the same thing. The mother called the police. The police interviewed the child without the mother present. The mother was interviewed 3 times. They took the child to the Hospital for Sick Children ("H.S.C."). The child disclosed to the mother two more times after that occasion that "daddy put his fingers in my vagina". Children's Aid Society of Toronto verified sexual abuse and the C.A.S.T. supervisor gave evidence at the trial.
[37] After the disclosure, the child became more clingy, reverted to baby speech, wetting the bed, soiling at day-care, nightmares, and screaming in her sleep. The mother had a hard time with it and took a stress leave from work from the end of November 2012 to December to deal with it.
[38] The child's disclosure was spontaneous, succinct, graphic, and specific. The mother said that she believes the child.
[39] The mother said that she did not coach the child. She said that you cannot coach the child, as the child will say "mommy said to say". The mother said that she has hard feelings about the father, but she said she does not hate him, and that she did not and would not cause the child to make these disclosures. She said that if the father was found guilty of sexual abuse charges that it would ruin his life.
[40] The mother wants the child to have a relationship with the father. The mother said the child is great now, and that it would not be good for the child to even remember this event took place. The mother's evidence was "I hope she does not remember".
[41] None of the police officers gave evidence at the trial. The father spoke repeatedly of calling the police officers as witnesses or seeking to have the taped interviews admitted as evidence. The court gave the father suggestions on how to accomplish this, as he was unrepresented. However, despite the fact that the trial took place over a period of five months and for nine days of hearing, this did not happen.
[42] The father denies that the sexual abuse happened, and points to this as further evidence of the mother's plan to keep him away from the child.
[43] The criminal charges against the father were withdrawn. As Waldman, J. noted in her endorsement of 19 August 2013, this does not mean the sexual abuse did not happen, or that the issue is decided for the purposes of the family court case. The decision not to pursue the charges in the criminal court does not bind the family court on this issue.
[44] On a balance of probabilities, the court accepts that the child made these disclosures and that the father sexually assaulted the child. The child's disclosures were detailed and specific. Her behaviour after the disclosures is consistent with the likelihood that these incidents happened. The C.A.S.T., who has special expertise in determining whether these incidents took place, verified that a sexual assault took place.
[45] However, there is a great deal of other evidence in this case regarding custody and access. There is other evidence to support the custody and access orders that will be made. These orders would have been made, in this case, whether or not the court had found that the sexual assault took place.
CUSTODY
[46] The father seeks sole custody, or in the alternative, joint or shared custody. The mother seeks sole custody. The child has resided with the mother since birth and all throughout this litigation, which has lasted over four years, almost all of her short life.
[47] This is not a case for joint custody. There is a long-term status quo with the child living with the mother. The parents have a great deal of conflict and as a result, have very little contact with each other.
[48] Joint custody is wholly unsuitable for these parents. Joint custody requires a history of communication about the child (not just a promise), a history of co-operation about the child (again, not a promise), and mutual respect for each other as parents. There is no history of communication about the child, and no history of co-operation about the child. The father, in particular, has no respect for the mother as a parent. He repeatedly said she was unfit and that the child should be removed from her care.
[49] The history since the parents separated in 2009 is the opposite of co-operation: four years of litigation. For example, at the trial management conference, the parties were directed to prepare a Statement of Agreed Facts, which was to include all the evidence that could be easily agreed on (names, dates, litigation history, relationship history, etc.). The parties did not do this, and could not even agree on the dates of birth and ages of the parties and the child.
[50] This case should not have gone to trial on the issue of joint or sole custody. This is a clear case of sole custody to the mother.
[51] There was almost no evidence about the child, despite the fact that the trial lasted nine days, and that each of the parents gave evidence over several days. There was almost no evidence about the needs of the child, or which parent was better suited to meet those needs. In his evidence about access, the father repeatedly referred to his need to see the child. He did not give evidence at all about the child or her needs.
ACCESS
[52] These parents continue to have high levels of conflict, as was evidenced by their behaviour at the trial, and they will benefit from a clear schedule. This level of conflict must stop. They need clear and detailed custody and access orders to create structure and ensure reasonable expectations by both parents. These orders need to be structured to minimize any possible areas for future conflict (for example, passports and travel).
[53] The principles of family law suggest that access to both parents is generally in the interests of children. This is not a hard and fast rule. A non-custodial parent does not have an absolute right to access: Worthington, 2000 CarswellOnt 4889, 13 R.F.L. (5th) 220 (S.C.J.); Jafari v. Dadar, 1996 CarswellNB 386, [1996] W.D.F.L. 2455 (N.B.Q.B.).
[54] An order for no access to a child is a last resort: Jafari v. Dadar, 1996 CarswellNB 386, [1996] W.D.F.L. 2455 (N.B.Q.B.). It should only be considered in limited circumstances and when other alternatives have failed: Jennings v. Garrett, 2004 CarswellOnt 2159 (S.C.J.).
[55] Access is only to be ordered in circumstances where there will be a positive benefit to the child. It is not sufficient to show that access will not harm the child: Worthington, 2000 CarswellOnt 4889, 13 R.F.L. (5th) 220 (S.C.J.).
[56] The relationship between the parents has created a toxic environment. Since separation there has been a great deal of conflict between the parents. There is no evidence that this will change in the near future. Access should be limited and structured, if at all. There is a need to protect the child from this level of conflict, which is extreme and unhealthy. And there is a need to protect the child from the father's extreme anger towards the mother and her family, which is intense, barely contained, often revealed, and which would be damaging to the child.
[57] The court considered ordering no access in the circumstances of this case. No-one asked for no access. There was a long break with no access to the child (more than one year) and at the trial only two supervised visits had taken place. The access notes from those two visits were positive. The mother said the father is a loving and caring dad, and that the child loves him and wants to see him. Access should continue.
[58] The father's access needs to continue to be supervised. The father voluntarily stopped seeing the child for one year (March 2013 to April 2014) because he did not like the access court order (which provided for supervised access). That is not the behaviour of a parent who wants to be part of his child's life. This was an unfortunate and even foolish decision on his part. It denied the child on-going contact with her father, whom she loves. It showed that the father could not put the child's needs ahead of his own needs. It shows that the father has poor judgment and emotional immaturity. In addition, the father, by his wilful behaviour, missed an opportunity to present the court with the neutral, independent, third party observation notes regarding one year of access from the supervised access centre. Almost no conclusions can be drawn from the observation notes of two visits.
[59] The court made a finding that the father likely sexually abused the child. However, this access plan, for the continuation of supervised access, is the order that the court would make if no such finding had been made. Supervised access is the access order that is in the child's best interests at this time.
[60] Supervised access is not usually a permanent arrangement, or even, indeed, a long term arrangement. However the order for supervised access is a final order in this case. It is hard to predict when this father would be able to return to court to seek unsupervised access. He needs to find a different way, a better way of interacting with the mother and her family. The current way of interacting, based on his evidence at trial, is unhealthy for all, especially for the child.
[61] The father needs counselling to learn new strategies for this contact, and to learn how to deal with the anger he has towards the mother and her family. Until that happens, and until the father makes some real progress in moving forward, supervised access, and in the current format, should continue.
CHILD SUPPORT
[62] It was not easy to determine the child support at the trial. As the trial was completed over a five month period, at the end of the trial, there were no current financial statements filed. The most recent financial statement was then six months old.
[63] There was no evidence at trial regarding what support was paid in 2009 and 2010, if any, although the court specifically asked for this. In 2011 the father was paying $250 per month directly to the mother.
[64] The temporary child support order was made on 20 March 2012 for:
- Table amount $525 per month on income $58,000 from 15 March 2012; and,
- $175 per month child care expense from 15 March 2012.
[65] The mother was seeking the table amount of child support based on the following income information produced by the father:
- From 1 January 2011, $427 per month on income of $46,292;
- From 1 January 2012, $628 per month on income of $68,872;
- From 1 January 2013, $657 per month on income of $72,000
[66] The mother acknowledges that the father paid the following amounts in these years:
| Year | Amount |
|---|---|
| 2011 | $3,000 |
| 2012 | $6,300 |
| 2013 | $6,300 |
[67] The mother claimed a contribution to s. 7 expenses for daycare, which expense began in March 2011. These are the calculations presented by the mother regarding the proportionate sharing of this expense:
| Year | Day-care expense | Mother's income | Father's income | Father's % share of expense | Father's share of cost | Amount paid |
|---|---|---|---|---|---|---|
| 2011 | $8,447.86 | $81,040 | $46,292 | 36.4% | $3,075.02 | 0 |
| 2012 | $8,241.02 | $89,857 | $68,872 | 43.4% | $3,576.60 | $1,750 |
| 2013 | $8,442.80 | $84,365 | $72,000 | 46.1% | $3,892.13 | $2,100 |
[68] The father should be paying his proportionate share of s. 7 expenses. On a go-forward basis that is 46% of those costs. Daycare finished on 7 March 2014, when the mother began to have child care in her home at a lower cost of $130 per week, or $6,760 per year.
CONDUCT OF THE TRIAL
[69] The parents are educated, intelligent, and articulate. Both parents had prepared for the trial. It was obvious that both parents had given thought to the narrative they wanted to present to the court.
[70] The issues at trial were the usual issues in family law cases, and were simple and straightforward: custody, access, and child support.
[71] This case should never have required nine days for trial. This was a three day trial, stretched out to nine days. The trial lasted nine days despite the fact that the parties were ordered to produce the evidence in chief for their witnesses by affidavit (the mother filed one affidavit and the father filed six). It is unnecessary that this trial lasted for as many days as it did.
[72] These parents have now had the benefit of nine days of trial time. It was a full and detailed hearing of the issues between them. Some of it was wasted time. Some of the issues in the trial (joint custody) should never have gone to trial.
[73] The trial started on 4 November 2013 and could not be completed until 9 April 2014, five months later. Each time the trial was adjourned, the parties were offered a range of possible continuation dates, some of which were very soon. Repeatedly, the parties and the lawyer were unavailable to appear on those dates, and unwilling to make themselves available for those dates, even when requested by the court to do so.
[74] The trial was difficult and fractious. There was much hostility and repeated confrontation during the trial. The parents were on the witness stand for several days each. They were each cross-examined at length. The father was unrepresented at the trial, and therefore he cross-examined the mother himself, for several days. The father, in particular, seemed to think the trial was a public forum in which to criticize, belittle and humiliate the mother. Much of the evidence given was irrelevant to the issues before the court. The court was left sifting through days of irrelevant evidence to try to reduce the large amount of irrelevant information presented to the facts relevant and necessary to decide the issues before the court.
[75] Rule 2 of the Family Law Rules, O. Reg. 114/99, as amended, sets out detailed requirements for the court dealing with family law cases.
PRIMARY OBJECTIVE
2. (2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).
DEALING WITH CASES JUSTLY
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).
DUTY TO PROMOTE PRIMARY OBJECTIVE
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4).
DUTY TO MANAGE CASES
(5) The court shall promote the primary objective by active management of cases, which includes,
(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;
(b) encouraging and facilitating use of alternatives to the court process;
(c) helping the parties to settle all or part of the case;
(d) setting timetables or otherwise controlling the progress of the case;
(e) considering whether the likely benefits of taking a step justify the cost;
(f) dealing with as many aspects of the case as possible on the same occasion; and
(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference. O. Reg. 114/99, r. 2 (5).
[76] The court must deal with cases justly (Rule 2(2)). That includes ensuring fairness in procedure to all, saving expense and time, and dealing with cases in a proportional way, that is, in proportion to the importance and complexity of the case (Rule 2(3)(a), (b), and (c)).
[77] As well, courts must measure the use of resources of any given case, and weigh and balance that against the demands of other cases for those resources (Rule 2(3)(d)).
[78] The court is required to apply the Family Law Rules to promote the prime directive of the rules, to deal with cases justly (Rule 2(4)).
[79] Rule 2 is very clear. The lawyers and the parties in family law litigation all have a positive obligation to conduct themselves and the court case in ways which promote the prime directive. That did not happen in this case.
[80] The father over-litigated this case and these issues. He has already had access to a great deal of court time. He cannot and should not have unrestricted access to court time in the future.
ORDERS
CUSTODY AND ACCESS
[81] The mother shall have sole custody of the child.
[82] The father shall have supervised access to the child for two hours, every other week-end at the Supervised Access Centre.
[83] The father shall not attend at the child's school, home, or church, or any other place he thinks the child is at, for the purposes of access or to see the child, pursuant to C.L.R.A. s. 28(1)(c)(i). Access shall be only in accordance with the supervised access ordered.
[84] The father shall have access to information about the children's health, education and general welfare, pursuant to s. 20(5) C.L.R.A.
[85] The father shall not remove the child from Toronto without the mother's prior written consent or court order.
[86] The mother may apply for the child's passports and other government documents without the father's consent.
[87] The mother may travel with the child outside Canada without the father's consent.
CHILD SUPPORT
[88] The father shall pay the table amount of child support as follows:
a) From 1 January 2011, $427 per month on income of $46,292;
b) From 1 January 2012, $628 per month on income of $68,872;
c) From 1 January 2013, $657 per month on income of $72,000
[89] The father shall be given credit for payments of the following amounts in these years:
| Year | Amount |
|---|---|
| 2011 | $3,000 |
| 2012 | $6,300 |
| 2013 | $6,300 |
[90] The father shall pay his proportionate share of s. 7 expenses for daycare and childcare as follows:
a) From 1 March 2011, $307.50 per month on income of $46,292 (36.4% of the cost);
b) From 1 January 2012, $298.05 per month on income of $68,872 (43.4% of the cost);
c) From 1 January 2013, $324.34 per month on income of $72,000 (46.1% of the cost);
d) From 1 March 2014, $259.13 per month on income of $72,000 (46% of the cost).
[91] The father shall be given credit for payments of s. 7 expenses of the following amounts in these years:
| Year | Amount |
|---|---|
| 2012 | $1,750 |
| 2013 | $2,100 |
There was no evidence about any amounts paid in 2014. If there is proof of payments in 2014 with the Family Responsibility Office, the father may be given credit for those payments.
[92] The father shall pay his proportionate share of on-going s. 7 expenses, which at present is 46% of those costs.
[93] The father shall produce to the mother every year, by 1 June, starting in 2015, copies of his Income Tax Returns and Notices of Assessment, pursuant to s. 24.1 and the disclosure requirements of the Child Support Guidelines.
[94] The father shall pay arrears of child support, including any created by this order, at $200 per month, starting 1 October 2014. If any payments for table amount, s. 7 expenses, or arrears are not paid in full, the arrears are then due and owing immediately, and the Family Responsibility Office may take whatever steps to enforce the order they determine to be appropriate. Nothing in this order prevents the Family Responsibility Office from enforcing arrears now using garnishments.
[95] All other claims by either parent not specifically addressed are dismissed.
FUTURE LITIGATION
[96] The father may not bring a motion to change without leave of the court, obtained in advance, on request, using a Form 14B, with two pages maximum in support, not to be served on the other side unless the court orders.
COSTS
[97] If either of the parents wishes to claim costs, this is the timetable for written submissions:
a) written submissions of two pages maximum, accompanied by any offers to settle, and summary of the time spent;
b) submissions to be delivered to the attention of the trial judge, to the Office of the Trial Co-ordinator on the second floor;
c) mother to serve and file by Friday 29 August 2014; and,
d) father to serve and file by Friday 12 September 2014.
Released: 31 July 2014
Justice Carole Curtis