Court Information
Ontario Court of Justice
Date: October 27, 2020
Court File No.: Toronto DFO-19-00016057
Parties
Between:
J.B. Applicant
— AND —
J.N. Respondent
Judicial Officer and Counsel
Before: Justice Maria N. Sirivar
Heard on: February 25, 2020
Reasons for Judgment released on: October 27, 2020
Counsel:
- Richard Forget, for the Applicant
- Diana Vasilescu, for the Respondent
Judgment
SIRIVAR J.:
Overview
[1] This bilingual case was scheduled for an oral judgment but was adjourned multiple times due to the Covid-19 pandemic. On the last scheduled date, the Applicant father and his counsel did not attend despite having been given the conference call details by the court staff. The Respondent's counsel advised that the Applicant's counsel was unable to attend because he was on vacation. Rather than requiring a further attendance, the judgment is being released in writing, in both English and French.
[2] The matter was before the Court for the Applicant father's motion for leave to proceed with his Motion to Change the final order of Justice Paulseth dated May 18, 2018 (the "Order"), as required by paragraph 8 of the Order.
[3] In his Motion to Change, the father seeks specified unsupervised access, that he be provided notice of travel and that he be provided school information related to the parties' two youngest children (the "Children").
[4] In support of this motion, the father relied on the notice of motion dated December 23, 2019, and his affidavit sworn December 23, 2019. The father's materials were filed in French. The mother relies on her affidavits sworn December 15, 2019, and February 3, 2020. The mother's materials were filed in English.
[5] The relevant paragraphs of the Order read as follows:
(1) The Applicant shall not have access to U.R. born X X, X and M.R. born X X, X.
(2) The Applicant shall not come within one hundred (100) meters of the residence, school or daycare of U.R. born X X, X and M.R. born X X, X.
(3) The Respondent, J.N., shall be permitted to travel with I.R.M. born X X, X, U.R., born X X, X and M R., born X X, X without the consent of the Applicant, J.B.
(8) The Applicant, J.B., shall be prohibited from bringing a Motion to Change without leave from the case management Judge.
(9) The Applicant, J.B., shall pay costs to the Respondent, J.N., in the amount of $2000. This amount shall be enforced by the Family Responsibility Office.
[6] By order dated April 11, 2018, Justice Paulseth also ordered the father to pay child support to the mother in the monthly amount of $734.60.
Positions of the Parties
Father's Position
[7] The father argues that he should be permitted to proceed with his Motion to Change because his criminal proceedings have ended, and he has completed an anger management course. He adds that the previous order was not made in a French proceeding and he did not understand all the legalities.
[8] The father's affidavit is only one (1) full page with twelve (12) paragraphs. He explains that he faced criminal charges (without specifying) that were withdrawn in exchange for a peace bond. He deposes that he was then charged with breaching the peace bond but that it was "acquitted" after he completed six (6) months' probation and took an anger management course. He attaches to his affidavit a document entitled, "Certificate of Participation – What's Good About Anger" dated February 8, 2019.
[9] The father further deposes that he saw the Children in September of 2019 with the mother's knowledge. He does not explain how the meeting came about. He attaches over a dozen photos of the meeting and concludes that the Children are not afraid of him.
Mother's Position
[10] The mother's position is that the father should not be granted leave to proceed with his Motion to Change because:
(1) the father has not changed his behaviour and lacks insight into the harm his abuse has caused;
(2) he is not paying the child support ordered; and
(3) he has failed to pay the $2000 in costs ordered.
[11] She sets out in her affidavit specific examples of threats and demeaning comments made by the father on social media. She attaches to her affidavit a picture of herself with derogatory comments that the father had recently circulated on social media. The mother deposes that she continues to be afraid of the father.
[12] The mother denies having consented to the father's September 2019 meeting with the Children. She explains that the father ran into the Children at the mall while she was at work. The Children were with their twenty (20) year old brother. She states, "Instead of respecting the court order which asks him to stay away from us, the Applicant decided to accompany them without my consent and proceeded with taking numerous pictures of them".
[13] According to the mother, following the meeting, the father continued to contact her through the older son until his number was blocked.
Law and Principles
[14] For the father to be successful, he must establish that:
(1) he has an arguable case on the merits for the relief he intends to seek if leave is granted; and
(2) that allowing him to bring his Motion to Change, with or without terms, will not result in an abuse of process.[1]
[15] Section 29 of the Children's Law Reform Act provides:
Order varying an order
- A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. [Emphasis Added]
[16] Section 24(1) of the Children's Law Reform Act makes it mandatory that custody and access are determined based on the best interests of the child and in accordance with the criteria set out in ss. 23(2), (3) and (4).
[17] Subsection 23(3) provides that a person's past conduct shall be considered if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent and shall consider whether the person has committed violence or abuse against his or her spouse, the parent of the subject child, a member of the person's household or any child.
[18] The Court must, therefore, be satisfied that there is at least an arguable case that there has been a material change in circumstances since the Justice Paulseth made the Order that affects or is likely to affect the Children's best interest.
[19] On the issue of abuse of process, terms such as limiting the scope of the motion for which leave is granted, expediting the process and ordering that the moving party post security for costs can mitigate the concerns. Moreover, abuse of process concerns must be balanced against the interests of fairness and justice.[2]
[20] Subrule 2(3) of the Family Law Rules requires the Court to deal with cases justly. Specifically, subrule 2(3)(d) mandates the court to effect justice by giving appropriate court resources to the case while considering the need to give resources to other cases.
Analysis and Conclusion
[21] I find, on the evidence before me, that the father has not met his burden. He has not established that there is an arguable case that there has been a material change in circumstances that affects or is likely to affect the best interests of the Children. He has also not established that allowing him to proceed would not result in an abuse of process.
[22] I accept the mother's evidence that the father continues to engage in the type of conduct that was the basis of Justice Paulseth's order including circulating a picture of her with derogatory comments on social media.
[23] During the court attendance when the father's motion was argued, the father was openly hostile and aggressive towards the mother and the court. He rose from his seat and approached the mother while shouting and waving a shirt. Security was called and even with two (2) police officers in the courtroom, he was unable to contain his anger and stormed out of the courtroom.
[24] The father did not deny and at times admitted to breaching criminal and family court orders. Specifically:
(1) the probation order;
(2) the restraining order;
(3) the no access order;
(4) the costs order; and
(5) the child support order.
[25] The father did not propose any terms to mitigate potential abuse of process concerns. Given the multiple breaches of court orders, I find that there are no terms that could mitigate concerns about abuse of process. Moreover, balancing fairness and justice, he has not established that court resources ought to be diverted to his Motion to change, away from other cases, where he has not established a prima facie case and is in breach of the order he wishes to change.
Orders
[26] Court orders:
(1) The Applicant's motion is dismissed;
(2) The Respondent may serve and file cost submissions (three (3) pages maximum) within two (2) weeks;
(3) The Applicant may file a response (three (3) pages maximum) within four (4) weeks.
Released: October 27, 2020
Signed: Justice Maria N. Sirivar