Court File and Parties

Ontario Court of Justice

Date: July 30, 2018

Court File No.: 16/827

Between:

KIMBERLY EATON Applicant

— AND —

PAUL CHAPESKI Respondent

Before: Justice M.G. March

Heard on: July 30, 2018

Reasons for Judgment released on: July 30, 2018

Counsel

DIANA TOMAZIN ........................................................................................ for the Applicant

PASCALE TURCOTTE ................................................. duty counsel for the Respondent

Judgment

M.G. March J.:

Introduction

[1] By Notice of Motion filed May 22, 2018, the Applicant, Ms. Eaton ("Eaton") seeks Summary Judgment against the Respondent, Mr. Chapeski ("Chapeski") granting:

(i) sole custody of the subject child, B. (dob […, 2016]) to Eaton,

(ii) supervised access to B. for Chapeski once per month at the Supervised Access and Exchange Centre for two hours,

(iii) child support to Eaton from Chapeski for B.'s benefit in accordance with the Child Support Guidelines amount,

(iv) permission for Eaton to travel with B. within and outside Canada, so long as an itinerary and contact information are provided by Eaton to Chapeski ten days in advance, and

(v) permission for Eaton to move up to 200 kms from her current residence without Chapeski's consent.

[2] Unfortunately, Mr. Chapeski struggles with mental health issues – amongst them, post-traumatic stress disorder, bi-polar disorder and an anxiety and depression disorder. He was unable to find his own retained counsel to assist him with responding to this Motion.

Issues

[3] The Motion raises the following issues:

(i) Is there a genuine issue requiring a trial in respect of the kinds of relief sought by Eaton?

(ii) Has Chapeski put his best foot forward in resisting the relief sought and demonstrating that there are issues which require a trial?

The Law

[4] In Hnyniak v. Mauldin, [2014] SCC 7, the Supreme Court of Canada established guiding principles to be followed by a Judge presiding over a Motion for Summary Judgment. They are:

a) Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims (para 5).

b) Undue process for protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes (para 24).

c) The summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial (para 34).

d) The test for summary judgment is no longer whether a case presents a genuine issue for trial, rather the question is whether there is a genuine issue requiring a trial (para 43).

e) Where a summary judgment motion allows the judge to find the necessary facts to apply the law to the facts and to resolve the dispute in a just manner, proceedings at trial would generally not be proportionate, timely or cost effective (para 50).

f) A process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute (para 50).

g) A documentary record, particularly when supplemented by the new fact finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The extra powers provided can furnish an equally valid, if less extensive manner of fact finding (para 57).

h) The inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the Motion judge to assess the relative efficiencies of proceeding by way of summary judgment as opposed to trial. This would involve a comparison of, amongst other things, the cost and speed of both procedures. It may also involve comparison of the evidence that will be available at trial and on the motion, as well as the opportunity to fairly evaluate better evidence that would be available at trial (para 58).

[5] In its most crystallized format, the onus is, of course, on the moving party to show that there is no genuine issue requiring a trial. Conversely, the responding party must put its best foot forward and adduce evidence showing that there is a genuine issue requiring a trial, or risk losing. (See CAS Toronto v. K.T., [2000] C.J. No. 4736). Unspecified and generic defences will be rejected. (See CAS Oxford v. Joanne J., [2002] O.J. No. 5407).

Sole Custody

[6] Eaton has been B.'s primary caregiver since birth. She is responsible for his daily routines.

[7] Due to challenges Chapeski has faced with his health, he has not played the role in B.'s life he would like to. He is a troubled man. I say this not to disparage him in the slightest.

[8] For reasons beyond his control at the moment, he is unavailable for B. Accordingly, I shall grant sole custody to Eaton.

Access

[9] Chapeski loves B. and his older son from a former relationship. Of this, I have no doubt. However, the most pressing need for Chapeski at this point in time is a proper address, if one is to be had, for his mental wellbeing. I recognize Chapeski's efforts at sobriety. He has not been drinking since October 3, 2015 – almost three years. However, he is easily excitable. He has an aversion to following rules, and abiding by the dictates of agencies such as the Supervised Access and Exchange Centre.

[10] Again, I say none of this to disparage Chapeski. If anything, his outbursts are a function of his mental state. His anxiety, at times palpable when he has appeared before me during these proceedings, interferes with his ability to tolerate what he hears in court. He can, as he admits himself, be ". . .his own worst enemy".

[11] Under the circumstances, I am compelled to order that any access Chapeski has to B. must, for the time being, be at the discretion of Eaton. It must nevertheless be liberal and generous.

[12] It is my hope that Eaton recognizes the genuine love Chapeski has for B. She should encourage contact between the boy and his father. But she must have the ultimate say and control over how that access is exercised. Frankly, in a less litigious and structured setting, the access, I suspect, will go much better between Chapeski and B.

[13] If the access is not liberal and generous, Chapeski can seek to have the matter returned to this Court.

Child Support

[14] The child support shall continue to be paid in the very modest sum of $25.00 per month. The parties shall exchange financial information each year (eg. copies of tax returns and Notices of Assessments, etc.) in order to determine what is the proper sum in accordance with the Child Support Guidelines.

Permission to Travel

[15] As the custodial parent, Eaton shall be permitted to travel with B within and outside of Canada as she wishes, provided Chapeski is furnished with contact information and an itinerary of where mother and child will be, which is to be provided ten days prior to such travel.

Permission to Move

[16] B.'s best interest are tied to Eaton's ability to earn. Sadly, opportunities for employment are limited in Renfrew County. Eaton has historically worked in the Kanata area. I will therefore permit her to move within 100 kms of her current residence. Any further will effectively remove Chapeski's opportunity to have access to his son. In my view, that would not be in B.'s best interest at all.

Conclusion

[17] The Motion is granted without costs.

[18] There shall be an Order to go as follows:

(a) Eaton shall have sole custody of the child, B., born […];

(b) Chapeski shall have liberal and general access to the child, B. at Eaton's discretion.

(c) Child support shall be payable by Chapeski to Eaton in the sum of $25.00 per month. The parties shall exchange by June 30th of each year, financial information to adjust child support, if necessary, based on income and the child's living arrangement.

(d) Eaton shall be permitted to travel with the child, B. without Chapeski's consent, provided Eaton furnishes Chapeski an itinerary and contact information 10 days prior to travel.

(e) Eaton shall be permitted to move 100 kms from her present residence.

Released: July 30, 2018

Signed: Justice M.G. March