Court File and Parties
Court File No.: Toronto 15390/17 Date: 2017-09-28 Ontario Court of Justice
Between:
D.E. and W.S. Applicants
— AND —
C.S. Respondent
— AND —
H.V. Respondent
Before: Justice Alex Finlayson
Heard on: September 22, 2017
Reasons released on: September 28, 2017
Counsel
Sarah Boulby — counsel for the Applicants
David Tobin — counsel for the Respondent, C.S.
H.V. — on his own behalf
ALEX FINLAYSON J.:
I. NATURE OF THIS MOTION
[1] This motion concerns a 3 year old boy, L.S., born […], 2014. The Applicants are the maternal grandparents and the Respondents, C.S. and H.V., are the child's mother and father.
[2] This is my ruling concerning the mother's Amended Notice of Motion dated June 29, 2017, located at Volume 2-1 of the Continuing Record, Tab 4, and the maternal grandparents' Notice of Cross-Motion dated September 15, 2017, located at Volume 2-2 of the Continuing Record, Tab 15. The father did not file a motion.
[3] In her Notice of Motion, the mother asks for an order:
(a) setting aside the temporary without prejudice order of the Honourable Justice Cohen dated March 7, 2017;
(b) granting her temporary sole custody of L.S.;
(c) for interim disbursements in the amount of $75,000; and
(d) in the alternative to the request for interim disbursements, an order for a custody and access assessment, to be paid for by the Applicants.
[4] The grandparents oppose the mother's motion. In their cross-motion, they seek an order permitting them to travel with L.S. to Florida. Although they framed their motion as a broad request to dispense with the Respondents' consent for travel to Florida generally, in oral argument, the grandparents sought specific permission respecting two upcoming trips this fall only. During their submissions, they undertook to provide make-up access to the parents at their expense.
[5] Mother's position respecting the travel motion is that it is premature and depends upon the outcome of her request for temporary custody. For example, if I order that L.S. is to return to his mother's primary care, then there is no need to make any order respecting travel or make-up access because L.S. will be in his mother's care and the grandparents can travel without him.
[6] The father made brief oral submissions to tell the Court that he supports the mother's motion. He said that he felt L.S. should be raised by his mother, because when he was a child, he was raised by his parents, not his grandparents. He objected to various statements the grandparents had made about him in their affidavits.
[7] Regarding the travel motion, he said he would consent, provided that he gets to spend more than the "minute" amount of time he currently has with L.S. He said that he participated in the investigation of the Office of the Children's Lawyer and that his position would be set out in the clinical investigator's report. He said he would comply with the Rules and file a brief for the upcoming conference.
[8] Based on my review of the entire Continuing Record, the prior orders of this Court and upon hearing the parties' submissions:
(a) I am dismissing the mother's request to set aside the temporary without prejudice orders of the Honourable Justice Cohen dated March 7, 2017;
(b) I am making a minor adjustment to the restraining order, to give effect to the existing access order already in place and to the further access order I am making;
(c) I am dismissing the mother's request for temporary custody of L.S.;
(d) I am making a minor adjustment to the parents' access;
(e) I am granting the grandparents' request to travel with L.S. to Florida;
(f) I am granting the mother's request for interim disbursements in part, and I am directing that there be further submissions regarding this request; and
(g) I am directing that these orders may be reviewed after receipt of the s. 112 report from the Office of the Children's Lawyer.
II. PRELIMINARY ISSUE
[9] Counsel raised a preliminary issue at the outset of argument before me. There was some confusion because counsel told me that Justice Cohen, who has retired, had begun hearing the motion on July 11, 2017.
[10] Justice Cohen's Endorsement of July 11, 2017 grants an "Order per Consent attached" and otherwise indicates "Motion commenced but adjourned per consent". The attached Consent of July 11, 2017 made provision for the grandparents to travel with L.S. to Florida in late July, provided the mother with make-up time and telephone access during the summer Florida trip, and adds another day of supervised access for the mother. It further indicates that the mother's motion would return "unless the parties agree otherwise" and reserved costs to "the argument of the motion". The matter was adjourned to September 22, 2017, and came before me that day.
[11] I was also told that on July 11, 2017, the mother had objected to a letter from S.S. and M.L. dated May 5, 2017 from the child's day care and certain police reports being included as exhibits to the grandmother's affidavit sworn July 4, 2017. I was told that Cohen J. declined to strike these exhibits, but directed counsel to make submissions as to their weight. I agree with that approach. Counsel raised no further evidentiary issues.
[12] In response to the preliminary issue raised, I made some inquiries as to whether Cohen J. had been scheduled to hear this motion. As she had not been, I directed counsel to argue the motion ab initio and I heard the motion in full. It was in the parties' and the child's interests that the motion be heard.
[13] Neither counsel objected to this approach. Neither counsel made submissions as to the weight I ought to attach to either of the complained of exhibits. Regardless of the prior evidentiary rulings, in my view, the outcome of this motion does not turn on the disputed evidence. Whether the aforementioned exhibits are considered or not considered, my ruling would not change.
III. A SUMMARY OF THE EVIDENCE
A. Background
[14] The grandparents are 66 and 68 years old respectively. They have two children, a son P.S., who is 26, and the mother, C.S., who is currently 24.
[15] According to the mother, the grandmother is the president of a "large investment counselling firm". The grandfather is retired, but he too worked in the financial industry.
[16] The mother says she had a brief romantic relationship with the father, with whom she never married and never cohabited. This contradicts both the grandparents' and the father's affidavit evidence; all three affiants confirm that the mother lived with him at some point.
[17] On March 2, 2017, the grandparents commenced this proceeding and launched an ex parte motion for temporary custody of L.S., for a restraining order against both parents, and for an order that the parents have only supervised access to L.S. Justice E. Murray granted the grandparents' request for custody and a restraining order.
[18] In their affidavit materials in support of the ex parte motion, which were also relied upon for the motion heard September 22, 2017, the grandparents detail and rely upon the mother's mental health history, behavioural issues and drug abuse over a number of years during which she resided in and out of their home.
[19] Except when she was away pursuing treatment or at boarding school, the mother resided with the grandparents until 2011, and again from 2013 to March 2, 2017. Prior to 2011, the mother lived away from the grandparents at times during stays in drug treatment programs in Canada and the United States and at an American boarding school.
[20] The grandparents say that they discovered drug paraphernalia in their house in the past. Their son, P.S., at one point found the mother in such a distressed state that he telephoned 911.
[21] The mother admits some of this history. She says that she experienced mental health and addiction issues, but she says these are problems she had in the past. She denies being a "drug addict". Based on the record before me at this stage of the case, I cannot make findings about the extent to which these issues are in the past only.
[22] The mother says she was treated for generalized anxiety disorder, attention deficit disorder, major affective disorder and depression around 2009 and attended treatment centres for substance abuse issues between 2007 and 2011. Although she says she has continually addressed her mental health, I was given very little evidence regarding how she has done that in recent times, nor about her current mental health supports. There was some suggestion that she is in the process of arranging to see a psychologist, but this is not yet underway and there was no evidence before me as to the purpose of the referral. Orally, mother's counsel told me this is for general counselling. I do not have evidence regarding whether this is sufficient.
[23] In 2011, the grandparents asked the mother to move out of their house as a result of her behaviour. She lived out of the home between 2011 and 2013. Again, according to the grandparents, the mother lived with the father at least for part of this 2011-2013 time frame, whom they describe as the mother's "drug dealer". The father denies being the "drug dealer".
[24] The grandparents allowed the mother to move back in to their home after the spring of 2013, when the mother discovered she was pregnant. All parties agree that the mother abstained from drug and alcohol use during her pregnancy with L.S., although the grandparents say they observed the father visiting the mother at their home often "drunk or high on drugs and barely able to speak". The father denies this.
B. Status Quo
[25] A considerable amount of the argument at the motion centered around who was L.S.' primary parent prior to the ex parte motion in March 2017.
[26] The grandparents say they were heavily involved during the mother's pregnancy and they clearly supported her and L.S. both financially. They have provided care for L.S. since his birth. When L.S. turned 18 months, they arranged for L.S. to attend day care, and the grandparents paid for that. They also hired an educational consultant to assist the mother, who started attending … College at around this time.
[27] According to the mother, she was the parent responsible for breastfeeding L.S., feeding, bathing and changing L.S., comforting him, toilet training, maintaining his routines, taking him to day care and taking him to the doctor. She says that it was she who enrolled L.S. in day care in consultation with her parents. In oral argument, Mr. Tobin pointed me to various entries in L.S.' medical chart that corroborate the mother's primary involvement in taking L.S. to medical appointments and he showed me day care records that reveal the mother did 100 out of 134 of the child's pick-ups and drop offs.
[28] Regarding Mr. H.V., the grandmother says he spent little time with L.S. (a few hours on weekends only). In addition to her evidence about his intoxication during the mother's pregnancy, the grandmother says that she had seen the father "drunk and high" after L.S.' birth, "while trying to care for L.S.".
[29] The father denies this and says that the grandparents' evidence minimizes the role he assumed. He deposes the various ways he says he was involved during the mother's pregnancy. He says that after L.S.' birth, he spent "a significant amount of time at C.S.'s home caring for L.S." and also took L.S. on outings. He says that the mother was the primary parent but he helped out. It was he and the mother, not the grandparents, who were the parents according to the father.
[30] The father accuses the grandparents of engaging in "alienation". He says they are controlling. He is worried the grandparents are at an advanced age and their health may be in issue. Perhaps they are unable to parent L.S. He is concerned the grandparents will send L.S. to boarding school, like they did with the mother. He also alleges the grandparents are not sharing information with him.
[31] The father denies that he was the mother's "drug dealer". He claims to be a social drinker and says he rarely drank alcohol during this time frame.
C. Events Precipitating the Ex Parte Motion
1. The Mother's Deterioration Commencing October 2016
[32] As set out above, much of the evidence is conflicting. However, there is some common ground amongst the various affidavits upon which I am relying. The grandparents say that the mother's condition started to deteriorate commencing in October 2016. The father agrees, although unlike the grandparents, he supports a return of L.S. to the mother.
[33] The grandparents said they smelled the mother smoking marijuana in the basement of their home, where she was living with L.S. They say they had reason to believe that the mother's friends were using drugs when they visited their home. The father flagged the mother's marijuana use as an issue of concern during this time frame.
[34] The grandparents also say the mother started drinking again. They discovered liquor bottles in the basement. In support of this motion, the grandmother tendered a video of an argument between the mother and the father that she discovered on the family computer. Several liquor bottles were visible on the counter in this video. In the video, the father complains of the liquor bottles too.
[35] The mother admits that she was smoking marijuana and "occasionally drinking socially", but denies abusing drugs or alcohol. She denies using in L.S.' presence.
2. Events Over Family Day Weekend, 2017
[36] Over the Family day weekend in 2017, the grandparents went on a short trip to their home in Florida. P.S. stayed at home to monitor the situation while they were away. The grandparents filed a number of affidavits from collateral witnesses. According to some of this evidence, while the grandparents were away, the mother had friends over to the house and threw some form of a party.
[37] The grandmother returned home to find a hole punched in the wall of a bedroom, plastic melted on the stove (which she surmised happened as a result of the mother using drugs), empty gin and beer bottles on the floor, evidence of marijuana use, drug paraphernalia in the home and a bag filled with a white powder.
[38] The grandmother attached a photograph of the drug paraphernalia and the bag of white power as Exhibit "B" to her affidavit sworn March 1, 2017. The grandmother further discovered Facebook messages on the family computer in which the mother referred to purchasing "Kitty" (which I was told is the street name for Ketamine), to having it in her bed (grandmother was concerned about this because L.S. sleeps in that bed sometimes), and in which she referenced giving her prescription Adderall to a friend named J.
[39] The mother provides a different account of the events of the Family Day weekend. She denies having thrown a party or burning plastic on the stove, and she attempts to explain away the presence of alcohol bottles in the basement as having accumulated over time at her father's request.
[40] However, the mother also deposes that she went out to a concert and left L.S. in the care of her friend, J. J. invited her boyfriend over, and while in a caring role respecting L.S., they proceeded to get into an argument with each other. According to the mother, it was the boyfriend who punched the hole in the wall.
[41] G.M. is the former nanny of the mother, and remains the grandparents' housekeeper. She filed an affidavit in this proceeding. She has observed the mother's health struggles over the years. When Ms. G.M. arrived at the home on the morning of February 18, 2017 to clean, she found the home to be in "complete disarray", she found the burned plastic on the stove, empty liquor bottles and she found L.S. left unattended in the basement while the mother was on the second floor of the house. While there are divergent explanations regarding what happened over this weekend in the home, I was given no reason to discount Ms. G.M.'s evidence.
D. Prior Legal Proceedings
[42] The grandparents commenced this proceeding on March 2, 2017 and brought an ex parte motion for temporary custody of L.S., a restraining order and for an order that the parents have supervised access. This Court has since made the following orders:
(a) On March 2, 2017, Murray J. granted temporary custody of L.S. to the grandparents and made a restraining order against the parents, except that communication through the grandparents' counsel is allowed. The order was to expire on March 7, 2017 at 4:30 pm, unless renewed;
(b) On March 7, 2017, Cohen J. ordered that the grandparents have custody of L.S. on a temporary without prejudice basis, that the mother have supervised access on Mondays and Thursdays from 2:00 pm to 4:00 pm, and that the father have access to L.S. on Saturdays from 10:00 am until 12:00 pm. Access is supervised by B… at the grandparents' expense at L.S.' day care or at the T.P.L.;
(c) On March 7, 2017, Cohen J. granted a new restraining order against the parents, similar to the initial restraining order, except that it allows contact and communication for the purposes of access to the children at the aforementioned specified times, and it allows for communication through or in the presence of counsel. This restraining order is effective until the Court orders that it is terminated or changed;
(d) On May 1, 2017, Pawagi J. appointed the Office of the Children's Lawyer;
(e) On July 11, 2017, on consent, Cohen J. granted the grandparents permission to travel with L.S. to Florida from July 22, 2017 to July 29, 2017, she ordered the mother have make-up time, she ordered the mother have telephone access to L.S. while he is in Florida, and she ordered that the mother undergo "weekly Broad Spectrum Testing by Dynacare" at the grandparents' expense. The parties consented to the admission of the test results without expert evidence. Finally, Cohen J. ordered that the mother have an additional visit with L.S. on Wednesdays from 2:00 pm to 4:00 pm and she reserved costs;
(f) On September 22, 2017, I heard submissions respecting the motions and reserved judgment. As set out above, I scheduled a Settlement Conference for November 15, 2017 at 2:00 pm for 90 minutes and directed the parties to file briefs.
E. Events Since the Ex Parte Order
[43] After Murray J. granted the initial Order on March 2, 2017, the grandparents hired a security guard, N.D., to assist in serving the mother. The grandfather arranged for the police to be in attendance at their home too. Mr. N.D. filed an affidavit sworn March 7, 2017. According to him, while the mother was being served and then removed from the grandparents' home, the father showed up, forcefully entered the home, and aggressively pushed Mr. N.D. The grandfather deposed that he did not give the father permission to enter the home. The police had to defuse the situation. Mr. N.D. described both the mother and the father as "extremely aggressive".
[44] The father denies this account and claims that Mr. N.D. stepped aside and allowed him to enter the home. I do not find this explanation to be credible.
[45] Since March 2017, the parents have been exercising supervised access. The mother also submitted to drug testing as set out above commencing in August 2017. The mother filed the supervised access notes and drug tests in the record and these documents were before me on this motion.
IV. LAW AND ANALYSIS
A. The Mother's Request to Set Aside the Temporary "Without Prejudice" Custody Order of Cohen J.'s dated March 7, 2017
[46] The mother's argument to set aside Cohen J.'s May 7, 2017 Order is four-fold, namely:
(a) She argues the grandparents are not credible, that they misled the Court as to the extent of her mental health issues and drug addictions, and they overstated their role as L.S.' primary caregiver;
(b) She argues that she, as a parent, has a preferred status over a grandparent in a custody contest pursuant to ss. 20 and 21 of the Children's Law Reform Act, R.S.O. 1990, c. C. 12, as amended;
(c) Moreover, the status quo is that the mother was the child's primary parent prior to the Orders made by this Court in March of 2017, she says those Orders altered that status quo and the status quo ought to be restored; and
(d) This is because, applying a risk analysis, there are no compelling circumstances to change the status quo on an interim basis.
[47] I am unable to give effect to these submissions for the reasons that follow.
1. The Test to Set Aside an Order or to Make a Fresh Order
[48] The mother argues that the grandparents did not discharge their duty to the Court respecting the evidence that they must adduce when moving ex parte. It is well known that a party who moves ex parte has a duty to provide the Court with full and frank disclosure of all relevant information, not just the evidence that is helpful to his or her position.
[49] While the mother has since contested the grandparents' evidence relating to the parties' roles in caring for L.S., the difficulties they say the mother experienced respecting her mental health and drug use, about whether those troubles are prevalent now, and about the recent events that precipitated this proceeding, I cannot make the adverse credibility findings that the mother asks me to make. Nor am I prepared to find that the grandparents failed to meet their duty respecting the evidence when moving ex parte.
[50] In any event, I need not decide whether I should set aside an ex parte order. The ex parte order in this case was Murray J.'s Order of May 2, 2017, and that expired on May 7, 2017. On May 7, 2017, Cohen J. made fresh, temporary without prejudice orders on notice to the parents.
[51] I am therefore following the approach of Justice Ellen Murray in Copeland v. Perreault, 2007 ONCJ 217 at ¶ 42-44. What is in issue on this motion is that the mother seeks an order that is different from Cohen J.'s prior "without prejudice" one. I have jurisdiction to make a fresh order without the need to first find that a material change in circumstances has occurred pursuant to s. 29 of the Children's Law Reform Act.
[52] That said, just because a court can make an order with different terms doesn't mean that it should. A court ought not change a status quo pending trial unless there are compelling circumstances to do so.
2. Application of the Test
[53] In essence, the mother argues that Cohen J.'s March 7, 2017 order changed a status quo and now that there is a more complete record, the compelling circumstances that warranted this change are not present. Therefore, she argues that I ought to restore the status quo and return L.S. into her primary care.
[54] I am not prepared to make that order for three reasons.
[55] First, I cannot determine based on the evidence before me who was in fact the child's primary parent. It is not apparent to me the extent to which Cohen J.'s March 7, 2017 Order marks a significant change to the status quo. There is conflicting evidence on this point.
[56] What is clear at this stage is that the grandparents and the mother each played an important role in caring for L.S. When the mother became pregnant, the grandparents stepped in, invited the mother back into their home, and helped out. Cohen J.'s Order of March 7, 2017 preserves the status quo insofar as it keeps L.S. living in the only home he has known since his birth, with 2 of the 3 caregivers still present on a day to day basis. I agree that it does change the status quo in that the mother is no longer in the home in a caregiving role.
[57] Second, the mother argues that she has a preferred status under sections 20 and 21 of the Children's Law Reform Act and the case law. She relies on Kobow v. Kobow, 2007 CarswellOnt 7238 (S.C.J.) and McGladue v. Henry, 2015 CarswellOnt 6959 (S.C.J.). In Kobow, Zisman J. cited Foster v. Allison (2003), 44 R.F.L. (5th) 78 (S.C.J.), for the proposition that even if the status quo favours the grandparents, the status quo is only one factor to consider and "it does not necessarily trump the mother's prima facie right to custody".
[58] While there is some merit to this submission, I must ultimately be guided by what is in L.S.' best interests pursuant to s. 24(2) Children's Law Reform Act. I am required to consider each of the applicable statutory factors in light of the evidence before me. See Van de Perre v. Edwards, 2001 SCC 60 at ¶ 10.
[59] In applying these principles, I am mindful that there have been a number of positive developments concerning the mother since March 2017 when the initial orders were made.
[60] First, I was told that the mother obtained a job at L… with flexible hours and she secured stable housing near L.S.' day care.
[61] Second, it appears that the supervised visits between the mother and L.S. are going well. Mr. Tobin argued that the supervised access notes are "uniformly positive". The notes do in fact reveal positive interactions between the mother and the child. Mr. Tobin highlighted a number of entries in the notes to this effect.
[62] Third, the mother has the support of a responsible friend, A.R., who filed an affidavit in this proceeding. Ms. A.R. is providing some form of parenting support to the mother.
[63] However, weighed against these positive developments, I have concerns about the mother's mental health and drug use in light of the lengthy history. Although she says she has no current problems, I was not given the records concerning her mental health, there is incomplete information about what mental health supports are being put in place and for what purpose, and there is evidence of ongoing marijuana use from the mother herself. How I ought to weigh that in view of the mother's history of mental health and addiction issues is the subject of the contradictory evidence.
[64] The mother filed drug tests conducted pursuant to the July 11, 2017 Consent Order on which she sought to rely. Although the parties consented to the admission of these test results without expert evidence, I cannot determine their reliability in the absence of expert evidence.
[65] Moreover, I cannot ignore the fact that the release of the s. 112 report is imminent. I agree with Mr. Tobin that I need not wait for the Children's Lawyer's Report to intervene and in fairness to the mother, this motion was initially scheduled to be heard in July when the release of the report was then 3 months away. However, the now imminent s. 112 report is expected to provide helpful information to the Court, including additional information and context about the mother's mental health. Consequently, the order I intend to make should be short lived and may be reviewed after the release of the report.
[66] The current order now in place leaves the child in the only home that he has known. There is no evidence that he is not being well-cared for by the grandparents. He continues to attend the day care that the mother and the grandparents chose together, and he is seeing his parents, albeit under monitored circumstances. The visits are in the community; not in a supervised setting. Based on these factors, in the absence of any motion from the father, and given my questions about the missing evidence, I decline to make a fresh order for temporary custody.
3. Access
[67] Regarding access, although there was no evidence about the cost of supervision before me, the grandparents orally confirmed that they are paying $150 per visit to use B…. The grandparents orally confirmed that B… charges $50 per hour, and charges a 3 hour minimum per visit.
[68] The parents are only having two hours per visit with L.S. In my view, each of the parents' access visits should be expanded by an extra hour to take advantage of these payment terms. I did not find the grandmother's argument that a minor expansion of access pending the OCL report will be disruptive to the child to be persuasive.
[69] There is also no reason why the mother must exercise access at the child's day care or at the T.P.L. At the motion, the grandmother agreed that the mother may exercise access in her new apartment provided that someone from B… is in attendance, although she submitted that this should only occur once per week.
[70] Despite the lack of evidence about the cost of access, and even if the information about the cost of supervision turns out to be inaccurate, I would have made this minor adjustment to the access anyway. Based on the evidence that I have about their resources, which I detail below, this will not cause the grandparents hardship and it is in L.S.' best interests that his contact with the parents start to expand without further delay.
4. Restraining Order
[71] I am dismissing the motion to vacate the restraining order. There is sufficient evidence at this stage that it should remain in place.
[72] The March 7, 2017 restraining allows only for the access that was specified on March 7, 2017. There was no corresponding amendment to the restraining order when the mother's access expanded on consent on July 11, 2017, and I am making further changes to the access today. There will therefore be an order making the necessary changes to the restraining order to permit the additional access ordered on July 11, 2017 and today.
B. The Grandparents' Request to Travel to Florida
[73] It is in L.S.' best interests that he be permitted to travel with the grandparents to Florida. As I am not returning L.S. to his mother's care, it is not in his interests to require the grandparents to make alternate care arrangements. He should also get the opportunity to take this trip with two of his care givers.
[74] The grandparents supplied me with dates that they wish to travel. They may travel with L.S. to Florida from September 30, 2017 to October 7, 2017 and again from November 18 to 25, 2017. The parents' consent to this travel is dispensed with. The grandparents shall provide make up access at their expense respecting any visits that are missed as a result of this travel. Counsel advised me that I need not make any further direction regarding the make up access because the parties are able to sort out those logistics amongst themselves with the assistance of counsel.
C. The Mother's Motion for Interim Disbursements
1. The Scope of the Request
[75] The mother asks for an order for interim fees and disbursements from the grandparents in the amount of $75,000, initially for five reasons:
(a) she says she needs funding to advance her claim for custody of L.S.;
(b) she requires funds to pay for a custody and access assessment;
(c) she requires funds to retain an expert to assess her mental health;
(d) she requires funds to pay for drug screening tests; and
(e) she requires funds to pay for her lawyer.
[76] Regarding the request for legal fees, she filed a pro forma bill from Mr. Tobin estimating that she requires 100 hours (not including the cost for Mr. Tobin to prepare for and attend trial). She therefore asks that I order the grandparents to pay $25,000 + HST for fees based on Mr. Tobin's hourly rate of $250 per hour.
[77] Although the mother initially requested money to fund the five components of the case listed above, argument proceeded only regarding whether I ought to order interim fees to pay for the mother's lawyer. There were several reasons that the argument narrowed.
[78] The mother's initial affidavit in support of the request for interim fees and disbursements was sworn June 15, 2017. There have been some developments in the case since then.
[79] Again, the s. 112 report is about to be released. The mother's request for funds for a custody and access assessment was not strenuously pursued at the motion given this fact. Both counsel agreed to defer full argument about the need for a s. 30 assessment until after receipt of the s. 112 report. Both counsel further agreed that the Court can deal with payment terms respecting any assessment as part of an order pursuant to s. 30 of the Children's Law Reform Act, should an assessment be ordered.
[80] Regarding the mother's request for a mental health assessment, the grandparents argued that there are already existing assessments that will be in the mother's health records, and so she should first provide disclosure.
[81] While that may be, I am not going to rule that the mother's desire to obtain an assessment of her own health is not necessary at this stage. The custody claim advanced by the grandparents is serious. If the mother wishes to get expert evidence respecting her mental health to advance her position in the litigation that is her prerogative. However, like with the custody and access assessment, the parties agreed to defer argument respecting this aspect of the request for disbursements until after the s. 112 report. The mother may decide to pursue this or abandon this request depending on the contents of the s. 112 report. There may also be requests for health records disclosure that may impact my decision respecting disbursements for this.
[82] Since June 15, 2017, when the mother swore her first affidavit in support of the request for disbursements, the grandparents consented to the order that they will pay for drug testing. Disbursements for drug testing are therefore not required at this stage. If expert evidence is required to determine reliability at some future point in this case such that the mother requires disbursements to obtain expert evidence, then this issue can be revisited at a later stage of the case.
[83] That leaves the mother's request for interim fees to pay for the mother's lawyer.
2. Applicable Legal Principles
[84] The motion for interim disbursements is governed by rule 24(12) of the Family Law Rules, which reads:
24(12) Payment of Expenses – The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer's fees.
[85] I am guided by the test developed under rule 24(12), but I also take into account four overarching principles in exercising my discretion under the rule, which I will outline first.
[86] First, it is well known that a litigant's choice of counsel is an important principle in our legal system. See MacDonald Estate v. Martin, [1990] 3 SCR 1235. Although this principle is not absolute, I intend to make an order that gives meaning to this principle. I do not wish the mother to be deprived of her counsel of choice as a result of her impecuniosity if that can be fairly avoided.
[87] Second, I apply Rule 2 in interpreting rule 24(12). The primary objective of the Family Law Rules in rule 2(2) states that I must deal with this case justly. I must ensure that I employ a process is fair to all parties. There are competing considerations that apply to the litigants in this case but also which apply more broadly. I address these competing considerations below.
[88] Third, I am guided by my duty in rule 2(5) to actively case manage this matter. I am specifically taking into account the concept of proportionality. What next steps are appropriate in this case may change depending on changes to the positions of the parties, if any, and depending on how the evidence unfolds. To be clear, the order I am making under rule 24(12) is based on the state of the case and the evidence that I have now. After the s. 112 report, a different order for disbursements may be appropriate; conversely it may be that no further order for disbursements should be made.
[89] Fourth, it is ultimately in L.S.' best interests that the Court have all available evidence to make the best possible decision for him. This will be best achieved if the parties have assistance in putting forward their positions. What level of assistance should be funded though ultimately depends on the application of these principles and the specific factors set out below.
3. The Specific Test for Interim Disbursements
[90] At ¶ 14 of Rea v. Rea, 2016 ONSC 382 (S.C.J.), Douglas J. cites Stuart v. Stuart, [2001] O.J. No. 5172 (S.C.J.), and sets out the general principles concerning interim disbursements in a family law context. I quote from ¶ 14 of Rea v. Rea as follows:
(a) The ordering of interim disbursements is discretionary and the court should exercise its discretion to further the objective of fairness;
(b) The party seeking the disbursements bears the burden of proof;
(c) The party seeking the disbursements must demonstrate that absent the advance of funds for interim disbursements, the claimant cannot pursue their legal rights;
(d) The claimant must show that the expenses are necessary and reasonable given the needs of the case and the funds available;
(e) The claimant must demonstrate that he or she is incapable of funding the requested amount;
(f) The claim advanced must be meritorious as far as can be determined on a balance of probabilities at the time of the request for disbursements;
(g) The exercise of discretion should be limited to exceptional cases;
(h) Interim costs in matrimonial cases may be granted to level the playing field;
(i) Monies might be advanced against an equalization payment, but the order for interim disbursements should not be limited to cases where it would be taken out of an equalization payment;
(j) The court will consider the primary objectives of the Family Law Rules in making a determination on interim disbursements;
(k) An order under Rule 24(12) should not prevent a party from obtaining costs awards;
(l) Procedural fairness also means that both parties should be equally wary about the potential of a costs order against them; and
(m) An order under Rule 24(12) should not immunize a party from cost awards. The order is to allow the case to proceed fairly and should not be such that a party feels a licence to litigate.
4. Application of these Legal Considerations
(a) The Merits of the Claims in the Proceedings
[91] Both counsel advised me that neither was able to locate a case in which interim disbursements had been ordered in favour of a parent against a grandparent. The grandparents did not have a legal obligation to intervene. The grandparents chose to step into this litigation as they felt it was in L.S.' best interests to do so. I do not wish to make a financial order that would have a chilling effect on extended family members assisting other family members needing help with parenting, and so it is with caution that I make the order provided for herein. But by the same token, the grandparents chose to launch a proceeding. By doing so, they are parties who are subject to rule 24(12).
[92] There are no decisions in family law more important than those respecting the best interests of a child. In the absence of a case on point, a significant factor that I am taking into account in the exercise of my discretion under rule 24(12) is the positions of the parties.
[93] I specifically asked the grandparents' counsel to advise me what relief the grandparents intended to seek on a final basis. Of course their position may change, but at this stage in the case, their pleading asks for final sole custody, a final restraining order and permanent supervised access. These are serious remedies.
[94] I do not fault the grandparents for the position they have taken and make no further comment on the strength of their claims. I agree with Douglas J. at ¶ 24 of Rea v. Rea where he says "at this early state in the proceeding there is no reason to conclude that the claims advanced by either party are without merit. All claims advanced by the parties are, prima facie, meritorious at this early stage of the proceedings."
[95] However, the grandparents have not merely stepped in to support their daughter on a temporary basis with a plan that L.S. return to her care at some point and/or on certain conditions. Had they done so, my analysis respecting interim disbursements may have been different. I take the seriousness of the remedy they seek into account in deciding the interim disbursements motion. The remedy they sought militates in favour of an order for interim disbursements because the mother must vigorously respond to it.
[96] Respecting the merit of the mother's claim for custody, I apply the same reasoning from Rea v. Rea. Although I have not made an order granting the mother temporary custody at this stage of the case for the reasons articulated above, on a final basis, the Court will be considering L.S.' best interests based on a complete, tested evidentiary record. The analysis will be quite different than from the analysis at this stage.
(b) The Disparity in Resources
[97] There is no question that there is a disparity in resources between the mother and her parents. The playing field is not level.
[98] I do not have complete evidence about the disparity in finances but I have sufficient evidence to make the order I am making. The responsibility for this evidentiary gap rests on the shoulders of both parties. The mother asked the grandparents for financial disclosure. The grandparents chose not to respond to the request and referred to the request as "excessive", "sweeping" and a "fishing expedition". While they are obviously not under the same obligation to file financial disclosure in a family law case as a parent or a spouse would be, the mother put the question of the respective parties' finances squarely in issue by raising her claim for disbursements. The grandparents chose not to respond with documentary evidence.
[99] Notwithstanding their refusal to provide financial information, I have the following evidence about their resources. The mother's evidence is that the grandparents live in a large home in … Toronto. They routinely take "expensive and lavish holidays" according to the mother. There have already been two motions concerning their travel to a home they own in Florida. The mother deposes that the grandmother is the president of a large investment firm in Toronto. The grandparents' own evidence is that they have paid for treatment and boarding school for the mother at various times in Canada and the US. The grandparents have G.M., their nanny turned housekeeper, in their employ. The grandparents are paying for L.S.' day care.
[100] The grandparents do not contest the financial disparity nor do they argue that they have an inability to pay disbursements. In this context, my comments about their failure to provide disclosure ought not be read as a criticism of them. Had the grandparents complained of a financial inability to pay or alleged a more narrow gap between the financial position of the parties, then my comments respecting their failure to disclose may have been different.
[101] The grandparents argued that I have been given no evidence about how the mother has paid for her lawyer to date and this is fatal to the motion. They also intimated that the mother may have access to an illicit source of funds. For example, at paragraph 40 of the grandmother's affidavit sworn July 4, 2017, the grandmother deposes "I believe that one source of income for C.S. likely is the sex trade". The grandmother goes on to state that the mother worked as a prostitute when she lived away from home in the past and she believes that this is happening again. The grandmother gave no foundation for this statement in her affidavit and her counsel candidly admitted this was speculation. I cannot find, based on conjecture, that the mother is engaging in illicit activities to earn an income.
[102] It is not seriously contested that the mother's resources are limited. The mother's financial statement sworn June 15, 2017 reveals that she was in receipt of Ontario Works in the amount of $780 per month and spousal support of $650 per month. I was told that she recently obtained a job at L... Whatever minimal income she will earn from working at […that store] does not impact my ruling. The mother's budget exceeds her income. She has almost no money in the bank and credit card debt that exceeds her savings.
[103] Furthermore, the extent to which there is a level playing field is not merely a financial consideration. There appears to be a disparity in the parties' abilities to present information to the Court. The grandparents are high functioning, successful, established adults. By contrast, the mother has a high school education but did not complete post-secondary education, although she intends to resume her studies to obtain an early childhood education degree at …College. She previously failed to complete post-secondary education. When she went to school, she required an educational consultant to assist her. The evidence is that the mother has struggled with mental health and addiction issues over the years.
[104] The grandparents have retained competent counsel. There have been at least two lawyers representing the grandparents within the firm they retained. The calibre of the grandparents' materials in support of the relief sought is high. They filed in excess of 10 affidavits to which the mother had to respond.
[105] The mother needs assistance. She currently has the competent representation of her lawyer of choice, Mr. Tobin. I was not given evidence of the grandparents' lawyers' hourly rates. I was told Mr. Tobin's rate; it is $250 per hour and it is reasonable. I take this into account in crafting the order I am making.
(c) The Mother's Ability to Fund the Litigation
[106] The grandparents argue that the mother failed to demonstrate a complete inability to fund the litigation. Therefore I ought to dismiss the motion. They say this for two reasons. First they say she has failed to provide evidence regarding how she has paid for her legal fees to date. Second, they say she should first be required to apply for Legal Aid.
[107] These aspects of the grandparents' arguments essentially engage two aspects of the multi-part test for interim disbursements, namely whether the mother can afford to pursue her legal rights without the disbursement, and whether she can afford to fund the requested amount without the disbursement.
[108] I was not told the extent the requested disbursement is intended to be used to cover fees already incurred, or whether it is purely for next steps. I do have a pro forma bill that is forward looking. Regardless, on the facts of this case, the questions of whether the mother can afford to pursue her legal rights and whether she can afford to fund the requested amount without the disbursement are in large part forward looking. Granted, if the mother had an undisclosed source of funding in the past then this may be relevant to her ability to fund legal fees already incurred and possibly future steps. But based on the totality of the evidence before, I am satisfied that the mother meets the test in Stuart v. Stuart for the purposes of the order I am making.
[109] Regarding the legal aid argument, the mother argues that there is no onus on her to apply for Legal Aid and she relies upon ¶ 24 of Gazizova v. Hamouche, 2012 ONSC 4279 (S.C.J.).
[110] In Gazizova v. Hamouche, Van Melle J. held there was no such obligation. However, in Gazizova, the Applicant had borrowed money to partially fund the cost of a forensic accountant. The Respondent came from a wealthy family in Lebanon, had failed to discharge his obligation to make proper financial disclosure and had complex financial affairs. Gazizova is distinguishable in that it was the Respondent's onus to provide disclosure and appropriate evidence concerning the financial issues to the Applicant. There is no comparable onus in this case.
[111] Nevertheless, it is evident in the Legal Aid Services Act, 1998, S.O. 1998, c. 26, as amended, in O. Reg. 107/99, and on Legal Aid Ontario's website that Legal Aid Ontario pays lawyers at reduced rates in comparison to many lawyers' normal hourly rates (in this case the legal aid rate would be less than 50% of Mr. Tobin's normal hourly rate), there are restrictions on the hours that would be allotted to this case and in some instances, approval from the plan is required before certain disbursements can be incurred. Disbursements for experts may be paid at rates less than experts would normally charge and there are limits on the hours that may be spent.
[112] I decline to make a general statement that a litigant need not apply for Legal Aid, or conversely that a litigant must first apply for Legal Aid before requesting interim disbursements. In my view, whether this should be done is fact specific and depends on the case. In cases where it is considered it should only be one factor to consider within the myriad of criteria under rule 24(12).
[113] In this case, given the unique factual context giving rise to the request for disbursements, the funding that might be available from Legal Aid should be considered. In my view, this issue is novel and so I will not dismiss the motion based on the lack of evidence about this. Instead, in fairness to all parties, I am directing that the mother provide me with additional evidence so that the issue can be fully considered. I also appreciate that it may take some time to explore this and I do not wish the November 15, 2017 conference that I have booked to be delayed and this has informed my decision to make a more limited interim disbursement order at this time.
(d) The Grandparents' Inability to Recover if the Mother is Unsuccessful
[114] Lastly, the grandparents argue that if the mother is unsuccessful at the conclusion of this case, they will not be able to recover their legal fees. There is some inconsistency in their submissions on this point. On the one hand the grandparents argue the mother may be able to pay for legal fees, but they also argue that she is sufficiently impecunious such that I should not order interim disbursements because the grandparents won't be able to collect later on.
[115] It is true that in many cases interim disbursements are ordered where there is an ability to recover costs, or to recover the advance out of some other asset, or to receive a credit against another claim (such as an advance against an equalization payment). I find that even if the ability to recover is lacking in this case, this cannot be a disqualifying feature when fairness and the other circumstances of the case call for the Court to order a disbursement.
(e) The Order Respecting Interim Disbursements
[116] The November 15, 2017 Conference is an upcoming, pivotal next step in this case, and it is important that the mother have Mr. Tobin present for it. I therefore direct the grandparents to pay an interim disbursement of $7,500 to Mr. Tobin's firm to enable the mother to have her counsel participate in a disclosure meeting, receive and review the s. 112 report with the mother, take instructions, consider what additional expert evidence might be required, consider the disclosure issues, prepare for the conference and prepare the additional submissions I am requesting in this case. This is about 27 hours of time plus HST.
[117] If the mother is seeking additional disbursements after the November 15, 2017 Conference, I require her to file additional evidence. I will set out what is required below as part of my order.
III. ORDER
[118] I make the following orders:
(a) The mother's motion to set aside the temporary without prejudice order and restraining order of the Honourable Justice Cohen dated March 7, 2017 is dismissed;
(b) The mother's motion for temporary custody of L.S. is dismissed;
(c) The mother's access shall be expanded to take place on Mondays, Wednesdays and Thursdays from 2:00 pm to 5:00 pm, supervised by B… at the grandparents' expense. The mother may exercise her access at the child's day care, the T.P.L. or at her apartment provided the supervisor is in attendance;
(d) The father's access shall be expanded to take place on Saturdays from 10:00 am until 1:00 pm, also supervised by B… at the grandparents' expense;
(e) The grandparents may travel to Florida with L.S. from September 30, 2017 to October 7, 2017 and again from November 18 to 25, 2017. Both parents' consent to the travel is dispensed with. The grandparents shall provide make-up time to both parents for any missed visits at their expense;
(f) The grandparents shall pay an interim disbursement of $7,500 to Mr. Tobin's firm to enable the mother to have her counsel participate in a disclosure meeting, receive and review the s. 112 report with the mother, take instructions, consider what additional expert evidence might be required, consider the disclosure issues, prepare for the November 15, 2017 conference and prepare the additional submissions I am directing. The grandparents are jointly and severally liable for this amount;
(g) If the mother is seeking additional disbursements after the November 15, 2017 conference, I require her to file additional evidence concerning the following:
(i) the amount of legal fees she has incurred to date and the source of the funds she has used to pay for those fees;
(ii) whether she still has access to that funding and whether the funds will need to be repaid (if a loan);
(iii) what Legal Aid coverage is available to her if any;
(iv) whether the mother has applied for Legal Aid;
(v) if Legal Aid is available, whether it is inadequate and why, having regard to the specific rules of Legal Aid;
(vi) if Legal Aid is available, whether Mr. Tobin is prepared to act for the mother on a legally aided basis;
(vii) a litigation plan for the next steps in the case that she intends to take. This plan should be devised after she has considered the s. 112 report. It should include what additional steps she intends to take and the estimated cost; and
(viii) what additional interim disbursements are required for those steps;
(h) If the mother is of the view that any of the questions listed in (g) above encroach on privileged subject matter, then she may decline to make submissions on the particular question but she should advise opposing counsel and both counsel should be prepared to make submissions on the issue;
(i) This decision may be reviewed after receipt of the s. 112 report and after the November 15, 2017 conference. As there may be further motions after receipt of the s. 112 report, instead of a Settlement Conference, the matter November 15, 2017 date should proceed as a Case Conference;
(j) If either party seeks costs, then I will schedule a process for costs submissions to be made upon hearing from the parties as to that process on November 15, 2017.
Released: September 28, 2017
Signed: Justice Alex Finlayson
