Court File and Parties

Ontario Court of Justice

Date: 2016-01-04

Court File No.: Goderich D58-2015

Between:

Michael James Theodorus McCavish Applicant

— And —

Jessica Anne Appleby Respondent

Before: Justice Brophy

Heard on: 1 December 2015

Reasons for Ruling on a Motion under the Hague Convention

Released on: 4 January 2016

Counsel:

• Sara C. Wisking, counsel for the applicant
• Jessica Anne Appleby, on her own behalf

BROPHY J.:

INTRODUCTION

[1] This is a Motion brought by the applicant in the context of a Hague Convention application for an order compelling the respondent to produce the children of their relationship, Aya, born 10 January 2005, Arielle, born 10 August 2006 and Metatron, born 1 July 2008, ranging in age from almost 11 to 7 1/2, for Skype access at a supervised access centre in compliance with a Superior Court of Justice order for Skype access. It is brought pursuant to the Hague Convention (section 46 of the Children's Law Reform Act, R.S.O. 1990, c. 12, as am.) as an enforcement matter only and relies on article 7(f) and 21 thereof.

BACKGROUND

[2] The background of this matter is that the parties lived in Osaka, Japan, for a period of time with their three children, all of whom were born in Waterloo, Ontario. The respondent, who is a Canadian, left the applicant in 2009 and took the three children back to Canada. The respondent and the children have all lived in southern Ontario since, first in Rockwood in the county of Wellington, and more recently in Fordwich in the county of Huron. The applicant, who is a British citizen, continues to reside in Japan.

[3] The applicant commenced an action in the Superior Court of Justice in 2009 in Guelph. The file number is 787/09. In that action at least nine separate interlocutory orders have been made, including an interim without prejudice custody order in favour of the respondent dated 31 May 2011.

[4] Later in an order dated 19 December 2011 the applicant was granted supervised access at a supervised access centre and additional Skype access not at a supervised access centre. This is the order on which enforcement is being sought.

[5] Further an interim spousal support order was made 25 September 2012.

[6] Illustrative of the selective nature of the court orders that have been provided, there does not appear to be a copy of an order wherein child support was ordered even though it is almost inconceivable that spousal support would be ordered and child support would not. In the material there are references to child support and this court has to think the child support was indeed ordered to be paid by the applicant to the respondent.

[7] The applicant at one point was charged with breaching one of the court orders and arrested with respect to same and placed on a recognizance. The applicant states in one of his affidavits that this charge was withdrawn by the Crown.

[8] There was also a restraining order made on 14 May 2012 whereby the applicant was not to communicate directly or indirectly with a number of persons including the respondent. On the face of it that order was to remain in effect until further order of the Superior Court. It is unclear as to whether that order remains outstanding.

[9] Unfortunately the Superior Court action did not reach a final decision point because the applicant did not appear at an assignment court on 29 October 2012 and the matter was struck from the trial list and has apparently been in limbo ever since.

[10] It would appear that the applicant has not been back to Canada in approximately three years.

DISPUTE

[11] The particular dispute before this court is the request by the applicant to have his computer access through Skype exercised at a supervised access centre. He says that it is apparent that the respondent does not encourage the access and that it is unproductive and generally a failure. The respondent says that she has attempted to facilitate Skype access at her home but the children are unenthusiastic and do not cooperate.

TRANSFER OF SUPERIOR COURT OF JUSTICE ACTION FROM GUELPH TO GODERICH

[12] I am told by counsel for the applicant that the Superior Court action is being transferred to Goderich and will be dealt with in this jurisdiction and that the necessary steps have been taken to give effect to the transfer. My expectation then is that the matter should be in Goderich shortly.

ANALYSIS

[13] This begs the question as to why the Ontario Court of Justice should deal with the matter. It has been presented as a purely enforcement matter and this court has accepted jurisdiction for those purposes only. However it is noted that the consent order of 21 July 2015 came perilously close to being a variation of a Superior Court of Justice order.

[14] The record that has been presented to the court is fractured and incomplete. As a result it is difficult for the court to come to proper understanding of the parenting characteristics of the parties. Is the applicant a domineering personality or is the respondent maliciously withholding the children from the applicant? Without seeing the entire record in the Superior Court action, and only seeing copies of nine selected orders made in that proceeding, it is impossible to get a good handle on the tenor of the proceedings or on the true nature of the dispute.

[15] What I do know from the material is that there are outstanding orders for costs in the total amount of $11,000.00 that the applicant has failed to pay to the respondent. There is also a dispute as to whether the applicant has paid the support that has been ordered. The respondent says that no support has been paid. The applicant says that he has paid support, through what I take to be a redirection of rent from an income property he owns in Ontario. And yet he pleads that he has very limited income and assets and confidently predicts that the cost orders will be reversed when this matter gets to trial, notwithstanding that it was his failure to attend that prevented the matter from going to trial in the first place.

[16] The applicant skirts close to the line in terms of complying with a court order when he admits posting pictures of the children on the Internet, but in a secure location to which only he has access. This is in contravention of the order of 28 August 2012 that prohibited him from posting anything without the consent of the respondent or an order of the Superior Court. The applicant excuses his behaviour by indicating that it was not available to the public at large, although it is noted that that the respondent was able to access same.

[17] The applicant's complaints, in addition to his access being thwarted, is that the respondent moved the children in contravention of a court order and that he required the assistance of the Central Authority pursuant to the Hague Convention to find his children. He also asserts that the respondent changed the names of the children illegally, although the respondent has produced documents which suggest that she followed the necessary protocols in the provincial legislation. Whether it was wise to change the children's name is another question.

[18] The respondent also points out that a Superior Court order dated 5 June 2012 prohibits any fresh steps being taken by the applicant in that action until costs in the amount of $5,000.00 has been paid and it would appear that those costs have not been paid. The respondent then argues that this Hague Convention application is simply a way to get around the Superior Court order.

[19] Upon reflection it seems to me that the enforcement question before this court is inextricably caught up in the issues that exist in the Superior Court action. There are many unknowns that can only be resolved in that action.

[20] It is clear that the Ontario Court of Justice can make an independent order under the Hague Convention with reference to enforcement and in that sense this court is at liberty, if it chooses to do so, to require that the parties comply with the existing Superior Court orders.

[21] However the question of access is not something that can be hived off from the overall nature of the litigation. That is to say that access is part and parcel of the relationship between the parents and the children and the parents and each other.

[22] The history in this file, to the extent that it has been provided to the court, suggests fundamental problems in the relationship between the parents and serious parenting issues that remain unresolved, all of which has been and will be more fully developed in the Superior Court action. In this court's view it would be unwise to take an isolated view of access in the absence of other critical information.

[23] It is also noted that in the Superior Court proceeding there were numerous cost orders made against the applicant requiring him to pay monies to the respondent and that he has not satisfied any of those cost orders. As I understand the facts approximately $11,000 is owed. This would explain, in part, why the respondent is not represented in this proceeding and is attempting to respond on her own. This puts her at a serious disadvantage. There is case law that suggests that parties who do not pay costs should not be allowed to use the court system for other purposes. See as an example Schwilgin v. Szivy, 2015 ONCA 816.

[24] In addition there is the court order prohibiting further fresh steps in the Superior Court action which, in my view acts as a near bar to any enforcement proceedings, however structured.

[25] Finally, in my view requiring children to attend at a supervised access centre for Skype access with a distant parent is artificial in the extreme. I am not of the view that it is in the children's best interests to participate in a process that offers the children very little in terms of personal contact, communication and warmth. This form of access might satisfy the applicant in that he can then say he has had contact with the children, but it would not do anything, in my view, to promote a positive relationship with him or be in the best interests of the children. I am of the view that the children would be resentful and unhappy. This is not what is intended in terms of the positive aspects of parental contact through access arrangements.

[26] This is of particular concern in that there is no plan going forward. If the Skype access was to occur three times and then the applicant was to attend in person on a regular basis, albeit not every second weekend because of distance and expense, then there might be some value in it in terms of introduction to the applicant after a long absence. But without a plan in place indicating where this access is headed, then I am not of the view that this would be in the best interests of the children.

DECISION

[27] Therefore in light of the absence of money allowing the respondent to retain counsel because of the non-payment of costs by the applicant, the fact that the Superior Court file will soon be in the Goderich courthouse, and that the Superior Court will be much better positioned to make a proper assessment of the access issues, and that Skype access in the absence of a forward looking plan would not be in the best interests of the children, I decline to make an order requiring the children to participate in Skype access at a supervised access centre.

[28] I observe that this may well be a case where the preparation of a social work assessment by the Office of the Children's Lawyer would be very helpful.

ORDERS

[29] The application before me will be adjourned to 26 January 2016 at 10 AM in anticipation of transferring this file to the Superior Court of Justice.

COSTS

[30] In the event the parties wish to address costs and cannot settle that matter directly they may provide brief written submissions not exceeding three pages in addition to a Bill of Costs. The applicant shall have until 30 January 2016 to serve and file same and the respondent shall have until 29 February 2016 to serve and file a reply. The applicant may then reply on or before 15 March 2016.

Released: 4 January 2016

Signed: "Justice Brophy"