Court File and Parties

Court: Ontario Court of Justice

Date: September 18, 2019

Court File No.: Toronto DFO-19-15916 A3

Between:

Miles Arthur Lowrie Raine Applicant

— AND —

Carmen Lisa Correia Respondent

Before: Justice Sheilagh O'Connell

Motion heard: August 27, 2019

Endorsement released: September 18, 2019

Counsel:

• Anthony Macri, on behalf of the Applicant Miles Raine
• Shelley Quinn, on behalf of the Respondent Carmen Correia

Endorsement

Introduction

[1] Both parties brought motions before me regarding several issues on August 27, 2019.

[2] The father is seeking:

1. An order that the child be enrolled in full-time pre-school program at K.B. Daycare commencing September 3, 2019 and attend five days a week;
2. An Order that the child shall be picked up on the weekday mornings that the child is with the mother.

[3] The mother is seeking, among other relief:

1. An order that the child not be required to attend day-care on her parenting days with the child and that the child not to be required to attend a daycare of the father's choosing;
2. An order that the matter be transferred to the Superior Court of Justice and be consolidated with the mother's property and support claims in that Court;
3. An order that the mother be allowed to amend her Answer in this Court;
4. An order that both parties be permitted to remove the child from the City of Toronto, but not outside Ontario, during their respective parenting times without the other party's consent.

[4] The mother sought further orders in her notice of motion, but the parties were able to resolve some of these on consent at the outset of the motions, which will be addressed later in this Endorsement.

[5] For oral reasons delivered on August 28, 2019, I made the following orders:

1. The child shall be enrolled in the full-time preschool program at K.B. Daycare. However, the child shall not be required to attend the K.B. pre-school or nursery program on his parenting days with the mother. This order is without prejudice to the father renewing his motion that the child attend daycare full-time at K.B. Daycare once he starts junior kindergarten in September 2020;

2. This matter shall be transferred to the Superior Court of Justice and shall be consolidated with the mother's property and support claims.

[6] I gave brief oral reasons on August 28, 2019, given the lengthy list on that day, and indicated to the parties that written reasons would follow the next day with the typed endorsement.

[7] I apologize for the delay in delivering this endorsement. I had several very contested matters the next day and into the following week, including a continuing trial, and was then away at a judges' conference. What follows is my endorsement.

Brief Background

[8] The parties have one child together, Theodore Raine ("Theodore"), born […], 2016. Theodore is now three years old. The parties have no other children. The parties are not married.

[9] The parties began cohabiting in August of 2014 and separated on October 9, 2018 when the mother left the family residence with the child and moved to an unknown location. It was subsequently discovered that the mother had moved to a shelter for woman and children.

[10] The father commenced this application on October 15, 2018 and brought an emergency motion seeking an immediate return of the child to the family home. The matter returned before me on October 17, 2018 and the parties consented to a temporary without prejudice parenting order at that time. They were also referred to the court mediation services, but the mediation was unsuccessful.

[11] The parties have been litigating the custody, access and the support issues in this Court since that time. There have been approximately seven court appearances.

[12] On November 27, 2018, Justice Pawagi made a temporary order setting the parenting arrangements with respect to Theodore as follows:

a. Week One: Theodore is with the father from Sunday at 10:00 AM to Thursday at 9:00 AM and with the mother from Thursday at 9:00 AM TO Sunday at 10:00 AM;

b. Week Two: Theodore is with the father from Sunday at 10:00 AM to Wednesday at 9:00 AM and with the mother from Wednesday at 9 AM to Sunday at 10 AM.

[13] These are the current parenting arrangements. Justice Pawagi's Temporary Order continues to be in full force and effect, a period of approximately nine months.

[14] At the November 27th hearing, Justice Pawagi also ordered that Theodore would attend K.B. Public School for nursery school and day-care. This is in the community where Theodore and the parents lived before the separation. At that time, Theodore was in the half-day program at K.B.

[15] Theodore has been attending the half-day program at K.B. Daycare since January 7, 2019, pursuant to Justice Pawagi's Order.

[16] Although there is no child support order in place, the father has been voluntarily paying child support to the mother pursuant to an agreement between the parties. The determination of the father's income for child support purposes is still in dispute.

[17] The parties also consented to an order referring the custody and access issues to the Office of the Children's Lawyer ("OCL") for a clinical investigation and report (a "Section 112 Report").

[18] On July 10, 2019, Mr. Glen Link, the OCL clinical investigator released his final report, which is detailed and lengthy, approximately 44 pages. Mr. Link recommended that the father have sole custody of Theodore and that the mother have access in accordance with the parenting schedule and "status quo" that has existed since Justice Pawagi's Temporary Order.

[19] The mother disputes the clinical findings and recommendations in the Section 112 Report. She was granted an extension to file a Notice of Dispute with the Office of the Children's Lawyer no later than August 30, 2019.

[20] The parties were unable to participate in a meaningful settlement conference since the OCL Report was released as the mother had discharged her previous two counsel and was seeking new counsel.

[21] The father has been seeking a settlement conference in this case for some time. He has also been seeking an order that Theodore be registered in the full-time (not half-time) daycare program at K.B. Public School as a full-time placement had become available for him. The father would like Theodore to start junior kindergarten at that school in September 2020.

[22] The father originally brought his motion for an order that Theodore be enrolled in the full-time daycare program at K.B. on July 23, 2019. However, the mother was still trying to retain a new lawyer and requested an adjournment, which was granted to August 27, 2019.

[23] The mother retained new counsel. Shortly before the return of the father's motion on August 27th, 2019, the mother issued an application in the Superior Court of Justice seeking, among other relief, the following:

1. An order pursuant to s. 107 of the Court of Justice Act, R.S.O. 1990, Chapter C. 43, consolidating the parties' custody and support matters before the Ontario Court of Justice, Court File No.: FO-18-15916, with this property and support matter;

2. An order granting the applicant an equal division of family property and assets in accordance with the common law principles of constructive trust;

3. A declaration that the parties entered into a joint family venture by the purchase of […] Road, Toronto ("the Family Home");

4. An order that the Applicant mother shall receive 50% of the contents of the family home or in the alternative, she shall receive $15,000 to furnish her current accommodations;

5. An order providing the Applicant mother an advance on the division of family assets, so she can advance the within claims;

6. An order for full and complete disclosure of all of the Applicant's books and records of all business interests and his personal income and expenses.

7. An order for the recovery of the full value of the Applicant's work and services, for which the Respondent received benefit, based on the common law remedy of quantum meruit;

8. An order pursuant to s. 34(1)(j) of the Family Law Act, R.S.O., c. F.3, as amended, requiring the Respondent father to obtain and maintain extended medical and dental benefits for the Applicant and child for so long as he's required to pay support for the child;

9. An order pursuant to s. 34(1)(i) of the Family Law Act, R.S.O., requiring the Respondent father to obtain and maintain life insurance in the face value of not less than $200,000 for so long as he's required to pay support for the child, and designate the Applicant mother as the irrevocable beneficiary in trust for the child;

10. An order that the Respondent father direct any relevant insurer to give notice to the Applicant mother in the event that such policy or policies may lapse or be terminated for any reason, and that any payments made by the Applicant mother to keep such policy or policies in force shall immediately be reimbursed by the Respondent father to the Applicant mother or otherwise be a charge on his estate;

11. An order for a lump sum of spousal support pursuant to s. 33 and s. 34(1)(b) of the Family Law Act, R.S.O., c. F.3, as amended;

12. An order pursuant to s. 34(1)(c) of the Family Law Act, R.S.O., c. F.3, as amended and s. 100 of the Court of Justice Act, R.S.O. 1990, Chapter C. 43, vesting title to the Family Home in the name of the Applicant;

[24] The first case conference in the Superior Court of Justice is scheduled for October 23, 2019.

The Mother's Position

[25] The mother submits that this case should have always been in the Superior Court of Justice. She states that from the beginning she raised the property issues with her previous counsel and that they ignored her. It is the mother's position that her property claims and her claim for lump sum spousal support are strong and have real merit.

[26] According to the mother, while the parties never married, they jointly contributed to the accumulation of their family property during their relationship. The father ought to have known at the time he brought this OCJ application that the mother would claim a joint family venture. She believes that the father brought the application in the wrong court "to thwart and foreclose" her ability to bring a property claim.

[27] The mother does not believe that the proceedings will be unduly delayed by the transfer to the Superior Court of Justice and it is in everyone's interest, including court administration, to avoid a multiplicity of proceedings. Neither party, particularly the mother, can afford to conduct two proceedings simultaneously.

[28] Regarding the enrolment of Theodore in a full-time preschool program, the mother submits that she does not object to the father's enrolment of Theodore into a preschool program of his choice during his parenting time. However, she does not believe it is in Theodore's best interests to be compelled to remain in the pre-school or nursery program during her parenting time. He is only three years old and he is not starting junior kindergarten until the following year in September 2020.

The Father's Position

[29] The father submits that there is absolutely no merit to the mother's property claims, particularly her claim for a joint family venture. He states that he purchased the family residence and paid 100 percent of the deposit and that the mother did not contribute "one penny" to the purchase price or carrying costs of the property. He further submits that the parenting issues are separate from the property issues and should proceed to finalization in this court. The mother can then proceed with her property issues in the Superior Court.

[30] The father also submits that the delay involved in transferring the custody and access issues to the Superior Court of Justice will prejudice the child and is not in the child's best interests. The father wishes to move this matter on to trial immediately.

[31] The first case conference in the Superior Court of Justice is not until October 23, 2019 whereas this matter could be set for trial in the Ontario Court of Justice in the December 2019 trial sittings. It could be several months from now before this case proceeds to trial in the Superior Court, thereby prolonging the conflict for Theodore.

[32] In addition, the father has already spent a great deal of time and resources trying to resolve and finalize these issues.

[33] Regarding the issue of Theodore's enrolment in the K.B. preschool program, the father submits that the mother should not be permitted to remove Theodore from the program during her parenting time. It is his position that Theodore will greatly benefit from the consistency, structure and socialization of a full-time program and that it will also help him transition to junior kindergarten in September of 2020.

[34] It is also the father's position that the mother should be looking for full-time employment while Theodore is attending the preschool program. According to the father, it has been almost a year since the parties separated and there is no reason that the mother can not be in full-time employment. He believes that if Theodore is not in full-time pre-school then the mother will use this as a justification for her refusal to gain work.

The Law and Analysis

Transfer of Proceedings to the Superior Court of Justice

[35] Section 2(2) of the Family Law Act provides as follows:

(2) ALL PROCEEDINGS IN ONE COURT -- Except as this Act provides otherwise, no person who is a party to an application under this Act shall make another application under this Act to another court, but the court may order that the proceeding be transferred to a court having other jurisdiction where, in the first court's opinion, the other court is more appropriate to determine the matters in issue that should be determined at the same time. R.S.O. 1990, c. F.3, s. 2 (2).

[36] Section 107 (1) of the Courts of Justice Act, R.S.O. 1990, c. C-43 permits a court to order on motion that where two or more proceedings are pending in two different courts and the proceedings have a question of law or fact in common or claim relief arising out of the same occurrence or series of occurrences, then the court may transfer any of the proceedings to another court and require the proceedings to be consolidated, or to be heard at the same time or one immediately after the other.

[37] Section 138 of the Courts of Justice Act provides a guiding principle to our courts in that "As far as possible, multiplicity of legal proceedings shall be avoided." R.S.O. 1990, c. C.43, s. 138.

[38] Although this is not a divorce action, as the parties were never married, the principles of law that have developed under section 27 of the Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended (the "CLRA"), provide some guidance here as well. This section provides that where an action for divorce is commenced under the Divorce Act (Canada), any application under the CLRA in respect of custody of or access to a child that has not been determined is stayed except by leave of the court.

[39] The staying provision under section 27 is designed "to prevent inconsistent results among courts, redundant litigation, constitutional entanglement and delay in finality": see Anderson v. Anderson (1998), 82 A.C.W.S. (3d) 720, per Provincial Judge Heather L. Katarynych. It supports the principle set out at section 138 of the Courts of Justice Act, supra that "as far as possible, multiplicity of legal proceedings should be avoided." As Justice D. Kent Kirkland stated in Lepper v. Lepper (1986), 38 A.C.W.S. (2d) 300: "The dominant principle in dealing with this issue appears to be the wisdom of dealing with similar matters simultaneously in one court."

[40] The principles developed in the case law regarding section 27 of the CLRA establish that the Ontario Court of Justice should only exercise its discretion to lift a stay of OCJ proceedings in the following circumstances:

a. When the Superior Court action has been commenced in bad faith. Bad faith can constitute sufficient grounds for the lifting of the automatic stay. See Husain v. Chatoor, 2005 ONCJ 240, 141 A.C.W.S. (3d) 453, per Justice Robert J. Spence; D'Appollonio v. D'Appollonio (1992) 35 A.C.W.S. (3d) 824, per Justice Thomas M. Dunn; Lakhani v. Lakhani, 23 O.R. (2d) 575, per Justice Wilfred Roland DuPont;

b. When the delay involved in transferring the proceedings to the Superior Court could cause prejudice to the children and the delay in the determination of the proceedings pertaining to the children is not in their best interests: Husain v. Chatoor, supra; Anderson v. Anderson (1998), 82 A.C.W.S. (3d) 720, per Provincial Judge Heather L. Katarynych;

c. When the consequences of the stay cause a pointless and inequitable waste of court resources and does not serve the interests of the administration of justice (this is often coupled with bad faith): Kucera v. Smith, 2010 ONCJ 172, 193 A.C.W.S. (3d) 563, per Justice Roselyn Zisman; Lakhani v. Lakhani, 23 O.R. (2d) 575, per Justice Wilfred Roland DuPont.

[41] In my view, the analysis that I must undertake under section 107 of the Courts of Justice Act to determine whether I should transfer and consolidate these proceedings is similar to the analysis undertaken under section 27 of the CLRA. The legal principles are analogous, although further considerations also apply here.

[42] In considering all the above, the proceedings in this Court should be transferred to and consolidated with the proceedings initiated in the Superior Court of Justice for the following reasons:

1. There is no evidence before me that the mother's Superior Court of Justice action has been commenced in bad faith. This court has no jurisdiction to grant any of the relief that she is seeking regarding the property claims, the lump sum spousal support claim, the trust claims and the claim for life insurance. The mother has advanced several grounds for each of these claims and they may very well have merit. Although the timing is concerning, the mother states that she has been attempting to raise these claims since the beginning of the OCJ case with her previous counsel whom she has now discharged. Once she retained Ms Quinn she moved very quickly to commence her property and support claims in the Superior Court;

2. It will be very unfair and expensive to these parties to prepare and attend two sets of court proceedings in the Ontario Court of Justice and the Superior Court of Justice. Neither party (especially the mother) has the resources to pay their lawyers to attend and litigate in two different courts. It is also a waste of court resources to have two judges dealing with this case. It is regrettable and very unfortunate that Toronto does not have a Unified Family Court, which would have made this motion completely unnecessary;

3. Although I am concerned that there will be some delay in the finalization of the custody and access issues, the status quo established under the Temporary Order of Justice Pawagi has been in place for more than nine months and has stabilized the child's living arrangements. Justice Pawagi made the order in the child's best interests after hearing a contested motion. All indicators suggest that the child is doing well in the shared parenting arrangement. I have also continued the temporary order that the child be registered in the K.B. Daycare program, an order that has been in place since January of 2019. The child's situation has been stable for several months so any prejudice to the child in delaying the resolution of this matter will hopefully be minimized;

4. It is in the interests of justice and the parties that a multiplicity of proceedings is avoided in this case and that one court resolve all the issues between them.

Whether Theodore Should Be Enrolled in a Full-Time Preschool Program Now

[43] The decision regarding Theodore's pre-school program and whether he should be enrolled in this program on a full-time basis, five days a week, is always decided on the basis of what is in the best interests of the child. The best interests test is broad and is determined by considering the factors set out under section 24(2) of the Children's Law Reform Act.

[44] Sub-section 28(1)(b) of the Children's Law Reform Act specifically empowers the court to determine any matter incidental to custody rights. The issue of a child's enrollment in a school program or pre-school program, and the nature of that enrolment, must be considered as being incidental to or ancillary to the rights of custody. See Deschenes v. Medwayosh, 2016 ONCJ 567.

[45] The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz).

[46] Factors that may be considered by the court in determining the best interests of the child include assessing any impact on the stability of the child. The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling. See Askalan v. Taleb, 2012 ONSC 4746.

[47] All of the cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court. See Deschenes v. Medwayosh, 2016 ONCJ 567.

[48] In this case, Theodore is only three years old. He will not be starting junior kindergarten for another year (September 2020). At that time, he will have to attend school five days a week. Although the benefits of a full-time daycare program are clear, it is also in his best interests to spend meaningful time with his mother when he still has an opportunity to do so. The evidence demonstrates that for the past year, the mother has engaged Theodore in different activities during her parenting with him and he has enjoyed and benefited from this time with her. Although the father disputes this, the mother deposed that she was the primary caregiver for Theodore before the separation.

[49] Once junior kindergarten starts next year, Theodore will be enrolled in school and daycare full-time. It will not be possible for him to have extended time with either parent during the school day. It is in his best interests to have this opportunity now. Further, the current arrangement reflects the status quo that has existed since Theodore was enrolled in the half-time daycare program.

Conclusion

[50] For all the above reasons, I make the following Order:

Not on Consent

1. This matter shall be transferred to the Superior Court of Justice and shall be consolidated with the mother's property and support claims. The court file shall be transferred to the Superior Court of Justice at 393 University Avenue, Toronto, forthwith by court staff. The matter is adjourned to the first case conference in that Court on October 23, 2019.

2. The child shall be enrolled in the full-time preschool program at K.B. Daycare. However, the child shall not be required to attend the K.B. pre-school or nursery program on his parenting days with the mother. This order is without prejudice to the father renewing his motion that the child attend daycare full-time at K.B. Daycare once he starts junior kindergarten in September 2020;

On Consent

3. The mother is granted an extension to August 30, 2019 to serve and file her Notice of Dispute with the Office of the Children's Lawyer and the Court, in accordance with Rule 21 (e) of the Family Law Rules.

4. Both parents are permitted to remove the child from the City of Toronto, but not outside Ontario, during their respective parenting times without the other party's consent. If either parent wishes to remove the child outside of Ontario during their parenting time, then he or she shall give the other parent a minimum of 30 days' notice of the proposed trip, including itinerary and contact information and the other parent's consent will not be unreasonably withheld;

5. Neither party shall speak ill of the other to any person.

Costs

[51] The mother seeks her costs of both motions in the amount of $2,500.00. I heard submissions from counsel at the end of the hearing.

[52] Although the mother was the more successful party, the father must now incur significant legal costs in defending a fresh application started by the mother in the Superior Court of Justice at this very late stage in the proceedings, when the parties were close to resolving the custody and access issues in the Ontario Court of Justice.

[53] There shall be no costs to either party.

Released: September 18, 2019

Signed: Justice Sheilagh O'Connell