Court File and Parties
Ontario Court of Justice
Date: 2018-11-06
Court File No.: Toronto DFO-15-12828
Between:
Michael Mills Applicant
— And —
Lindsay Hachey Respondent
Before: Justice Maria N. Sirivar
Heard on: October 18, 2018
Reasons for Judgment released on: November 6, 2018
Counsel:
- Lisa Baumal, counsel for the applicant
- Lindsay Hachey, on her own behalf
SIRIVAR J.:
OVERVIEW
[1] This matter is before the court for the Applicant Father's motion wherein he seeks the following relief:
(1) the immediate resumption of all his access with the child, Elijah James Cleveland Michael Mills, born December 25, 2012 (the "child") in accordance with the Final Order of Justice Murray dated April 25, 2017;
(2) make up access;
(3) permission to amend his Response to Motion to Change to seek sole custody and primary residence of the child;
(4) an order providing that in the event that the Respondent Mother continues to deny the Applicant Father's access to the child, the temporary residence of the child will be transferred to him;
(5) an order for police enforcement of access;
(6) an order for the records of York Region Children's Aid and North Eastern Children's Aid Society; and
(7) costs on a full recovery basis.
[2] In support of his motion, the Applicant Father relies on:
(1) the notice of motion dated September 24, 2018;
(2) his affidavit sworn September 18, 2018; and
(3) his affidavit sworn October 12, 2018.
[3] The Respondent Mother opposes the father's motion. She relies on her affidavit sworn October 18, 2018.
BACKGROUND
[4] This is the Respondent Mother's Motion to Change the final order of Justice Murray dated April 25, 2017. She seeks leave to move with child to Timmins, Ontario, variation of access to give effect to the proposed change of residence of the child and costs.
[5] On July 16, 2018, the Respondent Mother brought a 14B motion without notice to the Applicant Father seeking a date "...for a hearing of the motion re mobility". She was given July 19, 2018 as the date for the motion to be heard.
[6] On the return of the motion, Justice Weagant noted that "the 14B did not disclose that there was no respondent's mobility motion in existence at the time and that the applicant father was unaware that there would be".
[7] The Respondent Mother sought, on an emergency basis, judicial permission to relocate with the child to Timmins, Ontario. She relied on having been offered employment in Timmins, Ontario on July 5, 2018 and being required to accept the position by July 11, 2018 in order to begin work on July 23, 2018.
[8] In his endorsement dated July 19, 2018, Justice Weagant wrote:
"This issues in front of this court are now nothing short of colossally different than they were two days ago. The respondent's desire to move from this jurisdiction appears to be longstanding. The applicant father previously motivated to bring a pre-emptive strike when he thought the respondent mother was moving the child to another jurisdiction. The respondent mother assured the court on June 14, 2018 that she had abandoned her plan to move."
[9] Justice Weagant concluded:
"There is no emergency here. The emergency is created by a prospective new employer giving a deadline. The respondent's relationship to his child should not be put at risk by an arbitrary deadline set by an employer in another city."
[10] In the short time since Justice Weagant's decision, there have been numerous 14B motions for various relief including the Applicant Father's 14B seeking permission to bring this motion due to the Respondent Mother's denial of access.
APPLICABLE LEGAL PRINCIPLES
[11] A party's failure to follow a court order should not be taken lightly. As articulated by the court in Gordon v. Starr:
"An order is an order, not a suggestion. Non-compliance must have consequences. One of the reasons that many family proceedings degenerate into an expensive merry-go-round ride is the all-too-common casual approach to compliance with court orders." [Emphasis added]
[12] Subrule 1(8) of the Family Law Rules (the "Rules") is available where there is "a failure to obey an order in the case." There is no requirement that the order be made on motion. Where the judge is satisfied that there has been a failure to obey an order, subrule 1(8) is triggered.
[13] It reads as follows:
Failure to Obey Order
1(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(a) an order for costs;
(b) an order dismissing a claim;
(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;
(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;
(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;
(f) an order postponing the trial or any other step in the case; and
(g) on motion, a contempt order.
[14] After a review of the relevant case law, Justice Victoria Starr in Price v. Putman, supra set out, at paragraphs 41 to 43, the three step process and guiding principles at paragraph 41 when applying Rule 1(8) in the following terms:
"Restated to accord with the most recent incarnation of those sub rules now reflected in subrule 1(8), the three step approach is as follows:
The court must ask whether there is a triggering event that would allow it to consider the wording of sub-rule 1(8). That triggering event would be non-compliance with a court order in the case or a related case.
If the triggering event exists, the court should then ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under sub-rule 1(8).
In the event the court determines that it will not exercise its discretion in favour of the non-complying party, it is then left with the very broad discretion as to the appropriate remedy pursuant to the provisions of sub-rule 1(8).
I would add a further guiding principle to the third step. That is that the court ought to ensure the sanction imposed upon a party found to have failed to obey a court order must be of significance. That is, of such consequence as to ensure the administration of justice is not brought into disrepute.
The sanction should be comprised of two components. It should be restorative to the victim of the breach and punitive to the noncompliant party. To accomplish the former requires the sanction to correlate to the conduct that produced the failure to follow the court order and to accomplish the latter requires the sanction not to reflect a marked departure from those imposed in like circumstances."
[15] I would add that implicit in this analysis is the principle of proportionality. Namely, the sanction imposed must be proportionate to the conduct that produced the failure to follow a court order.
THE PARTIES' POSITIONS
[16] In this case, the final order of Justice Murray dated April 25, 2017 is the operative order. Although the Respondent Mother has commenced a Motion to Change that order, it remains in full force and effect. The order provides that the Applicant Father is to have regular access as follows:
"Each week from Monday at 4:00 p.m. to Wednesday at 10:00 a.m., except where Monday is a statutory holiday in which case access will start Monday at 9:00 a.m. In addition, the Applicant shall have access with the child on the first, third, and if applicable, the fifth, Sunday of every month from 9:00 a.m. to return to school the following Monday no later than 9:00 a.m."
[17] The order further stipulates that the access exchanges are to take place at the daycare.
[18] The Applicant Father alleges that since September 16, 2018, to the hearing of this motion on October 18, 2018, Respondent Mother has denied all his access. He deposes that she has gone so far as to take the child out of school in order to prevent the Applicant Father from exercising his court ordered access with the child.
[19] The Respondent Mother does not deny the father's allegations. She takes exception to the assertion that her denial of access commenced on September 16, 2018. Rather, she deposes that access did not take place on that particular day because the Applicant Father failed to attend.
[20] She argues that, as the child's mother, it is her job to keep him safe. She deposes that the child has made statements to her about mistreatment while in the Applicant Father's care. Specifically, that the child, who is now six (6) years old, said that the Applicant Father forces him to eat "stranger candy", that the Applicant Father has fallen asleep while driving and almost crashed and that he does not want to see his father.
[21] In her affidavit, she describes the "scary candy" as:
"Elijah explained of "stranger candy" that, it tastes like "popcorn mixed with gum that he could swallow and alcohol". When asked how he knew how alcohol tasted like, he stated that, he had tasted it with his father and "it shot out like fire""
[22] The Respondent Mother made reports to the Children's Aid Society of Toronto ("CAST") about the alleged mistreatment by the Applicant Father. The parties received copies of the CAST file and some of the business records were attached the Applicant Father's affidavit.
[23] The CAST did not verify the Respondent Mother's allegations nor did the CAST identify any child protection concerns with respect to the Applicant's Father's capacity as a caregiver.
[24] The society did however verify risk of harm as result of the conflict.
[25] The Respondent Mother acknowledges that her allegations were not verified by the CAST but takes issue with the quality of the investigation. She seeks a "second opinion".
[26] She submits that it is her view that it is in the child's best that he remain only with her until an investigation that she deems sufficiently thorough is completed.
ANALYSIS
[27] Justice Murray's order of April 25, 2017 is not a suggestion. I find that the Respondent mother has breached the order by denying the Applicant Father's access. The Respondent Mother's refusal to follow the order triggers Rule 1(8).
[28] The Respondent Mother's justification for denying access is not persuasive. Her allegations were investigated by the relevant child protection authority and were not verified. As such, I will not exercise my discretion not to sanction the Respondent Mother pursuant to Rule 1(8).
[29] The court is very concerned about the Respondent Mother's efforts to disrupt the Applicant Father's time with the child throughout these proceedings. Similar to Justice Weagant's conclusion described above, the Respondent Mother's arbitrary decisions are putting the child's relationship with his father at risk.
[30] In terms of sanctions, the Applicant Father sets out the relief he is seeking in his notice of motion. In light of Price v. Putman, supra some are not appropriate.
[31] Access has been ordered. That order has not been varied or set aside. Accordingly, there is no need to order the resumption of access, as the Applicant Father has sought. Until the order is changed, the Respondent Mother must comply.
[32] The Applicant Father asks for an order for police to enforce access. I am not prepared to order police enforcement at this time as such an order will likely result in the child being exposed to more conflict between his parents.
[33] The court is not prepared to order that if Respondent Mother continues to deny the Applicant Father's access to the child, that the temporary residence of the child will be transferred to the Applicant Father. It is not proportionate and does not correlate to the conduct complained of.
ORDERS
[34] For all these reasons, pursuant to Rule 1(8) of the Family Law Rules, the court is prepared to make the following orders:
(1) the Applicant Father's shall have make up access (in addition to regular access) in as follows:
(a) October 31, 2018 pickup from daycare return November 1, 2018;
(b) November 15, 2018 pickup from daycare return to firehall on November 17, 2018;
(c) December 6, 2018 pickup from daycare return to firehall on December 8, 2018;
(d) January 17, 2019 pickup from school return to fire hall on January 19, 2019;
(e) February 14, 2019 pick from daycare and return to firehall on February 16, 2019.
(2) For any denial of access following October 18, 2018 when the motion was heard, the Applicant Father shall have make up access on the weekend of his choice as set out in paragraph 1.
(3) the Applicant Father is granted leave to amend his Response to Motion to Change, within thirty (30) days, to seek sole custody and primary residence of the child;
(4) The Applicant Father shall serve the York Region Children's Aid Society and the North Eastern Children's Aid Society and may renew the request for an order for disclosure by Form 14B motion; and
(5) If the Applicant Father seeks costs of this motion the issue will be decided on the return date.
Released: November 6, 2018
Signed: Justice Maria N. Sirivar