Court File and Parties

Date: December 4, 2020 Court File No.: F183/19B Ontario Court of Justice

Between: Joey William Froman, Applicant

— And —

Alanah Lillian Pletch, Respondent

Before: Justice K.A. Baker

14B reviewed in chambers: November 30, 2020 Endorsement released: December 4, 2020

Self Represented Applicant

M. Massey — Counsel for the Respondent

Endorsement

BAKER, J.:

[1] This is a Form 14b motion brought by the Respondent, seeking to have the matter proceed as a motion for summary judgment based on written evidence only.

[2] This motion lays bare some of the challenges in court function that have arisen as a result of the public health emergency and the consequent court restrictions.

[3] In the usual course, a party seeking summary judgment would simply serve and file a notice of motion with a specified return date. At present however, parties must seek leave to schedule an actual court hearing of a motion, due to the continuing court restrictions.

[4] The Respondent's motion however proposes something of a hybrid approach to the adjudication of the motion. In effect, the Respondent proposes that the motion for summary judgment proceed as a Form 14b motion. This would represent a substantial divergence from the "usual" practice.

[5] Rule 14(10) of the Family Law Rules restricts Form 14b motions to, "procedural, uncomplicated or unopposed matters". In this case the Respondent seeks an order dismissing the claims set out in the Application, as well as final orders of custody, access, child support and various incidents of all three. Obviously, this is neither a procedural nor an uncomplicated matter.

[6] Given the Applicant's lack of participation in the process over an extended time however, I am satisfied that it is an unopposed matter.

[7] I have also considered whether the Form 14b motion provides adequate notice to the opposing party of the serious nature of the relief sought and the consequences of not filing responding material. The Form 14b motion does not, on its face, clearly set out the time limitations set out in Rule 14(11.4). This is a particular concern for self-represented individuals such as the Applicant, who will not necessarily be immediately cognizant of the need to act quickly to respond.

[8] Further, the requisite time for response—being four days—is not much time for a party to prepare comprehensive materials such that they are able to, "put their best foot forward", as required.

[9] Here however, I am satisfied that it is fair and appropriate to adjudicate the substantive issues based on the Form 14b motion materials.

[10] Dealing first with the issue that the motion form does not clearly set out the Rule requirements for response: I start from the premise that self-represented individuals are bound by the Family Law Rules. This is because the Rules are readily available online and are written in such a fashion as to be comprehensible even to laypersons not trained in the law.

[11] While the motion form does not specifically state deadlines for responding materials, the service of the document should, reasonably, motivate the responding party to make their own enquiries on this point. In this case, the Applicant was served by email on November 20, 2020. He has therefore had some ten days to undertake some sort of response to the motion. He has not done so.

[12] This is against the background of many months of intermittent and half-hearted participation in the litigation process, culminating in the Applicant's complete withdrawal from participation in the process. The Applicant's solicitor sought to be removed from the record in February 2020. (The adjudication of that motion was delayed some months due to the public health emergency). Since that time, as deposed by the Respondent, the Applicant has had no communication whatsoever with the Respondent or her solicitor. He apparently has also not seen the child since November 2019.

[13] I therefore accept the Respondent's submission that the Applicant has effectively abandoned his claims and the defence of the Respondent's claims.

[14] I also observe that the materials filed with the motion make it very clear that the Respondent is seeking the dismissal of all the Applicant's claims as well as very specific substantive orders—all without oral hearing. These materials would have clearly put the Applicant on notice of potential jeopardy in this regard.

[15] In the circumstances, I am satisfied that the Form 14b motion has provided the Applicant with clear and effective notice of the Respondent's position and the nature of the jeopardy that he faces. I am therefore prepared to adjudicate this Form 14b motion as a motion for summary judgment. In my view this is entirely consistent with the court's duty pursuant to Rule 2(3). The requirement to allocate resources to any single case whilst taking into account the need to give resources to other cases is perhaps even more vital now, with the continuing court restrictions.

Custody and Access

[16] It is clear from the Respondent's evidence that the Applicant has abdicated his parental responsibilities. The Respondent clearly undertakes all practical care of the child. The Applicant has declined the Respondent's invitations to participate in important parental responsibilities, such as attending medical appointments for the child. The Applicant's lack of communication with the Respondent for over a year demonstrates that he is unwilling to communicate and cooperate with the mother with a view to mutually making decisions for the child. This is only underscored by the Applicant's withdrawal from participation in this proceeding.

[17] The evidence is overwhelming that it is in the best interests of the child, Laela, that the mother be granted sole custody so that she can make any necessary decisions for this very young child.

[18] Unfortunately, not only has the Applicant abandoned his claims in this proceeding, he also appears to have abandoned the child, having declined to attend access for over a year, which of course represents two-thirds of this child's lifetime. The mother, to her credit, is prepared to consider access in the future, if the Applicant demonstrates a willingness to commit to this child. In the circumstances then, I accept that the door to access should be left open.

[19] Generally speaking, the court is reluctant to provide that access be within the discretion of a non-institutional litigant. Here however, it is apparent that if access is to occur, the access will have to be structured according to the situation as it presents in the future. This, logically, will require the Respondent to have some discretion as to the arrangements and indeed, even whether access is to occur.

[20] Given that the Applicant will not engage with the Respondent and has not even troubled himself to see the child for over a year, it is appropriate that the Respondent be able to travel without the Applicant's consent and to move her residence should she chose to do so.

[21] In my view there is no genuine issue requiring trial on the issues of custody, access and incidents thereof.

Child Support

[22] Turning to child support: The Applicant has served and filed a Financial Statement sworn August 26, 2019, indicating an annual income of $35,332.80. The Respondent asks that support continue to be based upon that figure, although there is some suggestion in the evidence that the Applicant may have experienced periods of unemployment since the Financial Statement was filed.

[23] I am satisfied it is appropriate to impute income to the Applicant in the amount requested. The Applicant has an active obligation under the Family Law Rules to update his financial materials. He has not chosen to do so. The fact that he was earning slightly over $35,000 per annum in 2019 suggests that he is capable of earning this amount on an ongoing basis.

[24] The Respondent proposes that child support should commence as of June 1, 2019. This would be the first day of the next month following separation. The Applicant had commenced this litigation as of July 9, 2019, seeking an order for joint custody and stipulated access. He would logically have been quite aware as of that moment, of his obligation to support his child.

[25] It should be noted that a temporary/without prejudice order was made on July 22, 2019 requiring the Applicant to pay support for the child commencing August 1, 2019 based on an imputed annual income of $27,872. Imputation was required because the Applicant had not, as of that date, filed a Financial Statement. One month later, the Applicant swore his Financial Statement indicating an actual annual income of $35,332.80. Support is the right of the child. The child should not be disadvantaged by the Applicant's failure to promptly and accurately disclose his income.

[26] I am therefore satisfied that a retroactive award of support is appropriate, and that support should commence as of June 1, 2019.

[27] The daycare costs that were incurred by the Respondent are clearly within the ambit of section 7 of the Child Support Guidelines and the Applicant should contribute to those previously incurred costs.

[28] The Respondent has proposed in the motion form that child support arrears be fixed at the amount of $5,094.58. This includes the unpaid section 7 contribution for daycare, as well as the difference between what has been payable on account of table support and what will now be payable on table support. Also included in this calculation is the amount of $1,295.42, for "tax return deductions". It is not at all clear to me on the materials what is meant by this aspect of the claim. Certainly, it would seem to be an unusual claim.

[29] In the circumstances, I decline to fix the child support arrears. A support deduction order will ensue with this order and the Family Responsibility Office will no doubt calculate the correct figure and enforce same. I do however accept that a monthly payment of $150.00 on account of support arrears is fair and reasonable.

[30] I am however satisfied that there is no genuine issue requiring trial with respect to the determination of child support.

First Nations Status

[31] There is a further issue. The Applicant has indicated that he is an indigenous person with status with the Six Nations of the Grand River. This would permit the child to gain status also. The Respondent has tried, without success, to have the Applicant sign the requisite documents with Indian Affairs for the child to be granted status. The Respondent also seeks an order requiring the Applicant to sign the required statutory declaration for the child to secure status. In the alternative, she seeks a declaration that the child is a biological child of the Applicant for the purposes of gaining status.

[32] I fully understand and accept the Respondent's submission that there is a benefit to the child in securing First Nation status. There is however a real question as to this court's jurisdiction to make either of the proposed orders. The proposed order requiring the Applicant to sign the Statutory Declaration is not obviously an incident of access. Section 97 of the Courts of Justice Act reserves the power to make declarations to the Court of Appeal and the Superior Court of Justice.

[33] The Respondent has not identified any specific authority for the making of the proposed order in this regard.

[34] It is however an important issue for this child. I am therefore prepared to reserve it to the next return date and the Respondent is welcome to address it in submissions or to file some authority for the making of the order.

Costs

[35] Finally, the Respondent has indicated she is seeking a contribution to her costs, but there is no indication of a specific amount and no Bill of Costs has been filed. This issue may also be addressed at the return date.

Final Order

[36] Accordingly, final order to go:

1. The Respondent's motion for summary judgment may proceed as a Form 14b motion, and on the basis of written materials only;

2. Electronic/virtual commissioning of the Respondent's affidavit sworn September 8, 2020 is permitted nunc pro tunc;

3. An Order that the Respondent, Alanah Pletch have sole custody of the child, Laela Grace Pletch, born […], 2019 pursuant to Part III of the Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended;

4. An Order that the Applicant's access to the child, Laela Grace Pletch, born […], 2019 shall be at the sole discretion of the Respondent as to appropriate time, location, frequency, and level of supervision, pursuant to Part III of the Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended;

5. An Order that the Respondent be permitted to cancel any access visit between the Applicant and the child should the Applicant appear to be under the influence of alcohol or recreational drugs at the time of the access exchange pursuant to Part III of the Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended;

6. An Order that should the Applicant cancel and/or fail to attend three (3) consecutive scheduled visits with the child, Laela Grace Pletch, born […], 2019, that access shall be suspended until further order of the court pursuant to Part III of the Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended;

7. An Order that, commencing June 1, 2019 and on the first of each month thereafter the Applicant pay to the Respondent, child support in the amount of $310 per month in accordance with his disclosed income of $35,500 and the Child Support Guidelines;

   (1) The Applicant shall pay his proportionate contribution to section 7 daycare expenses for 2019-2020 totaling $3,480.00 in the fixed amount of $1,740.00.

   (2) Any arrears arising from this order to November 30, 2020 shall be paid at a rate of $150.00 per month, commencing January 1, 2021.

   (3) S.D.O. to issue.

   (4) The claim for an order requiring the Applicant to make a Statutory Declaration regarding the child and the issue of costs shall be reserved and may be spoken to at the previously scheduled return date of December 8, 2020 at 10.00 a.m.

8. An order that the parties shall contribute their proportionate share towards the child's section 7 expenses which include daycare expenses at the rate of 50% by the Applicant, and 50% by the Respondent based on their respective incomes. The Respondent shall forward receipts for these expenses to FRO for enforcement.

9. An Order that the Respondent be permitted to travel outside of the Province of Ontario with the child, Laela Grace Pletch, born […], 2019 without the consent of the Applicant or a court order, pursuant to Part III of the Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended;

10. An Order permitting the Respondent to move outside of the County of Brant with the child, Laela Grace Pletch, without consent or a court order, but with reasonable notice to the Applicant pursuant to Part III of the Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended;

11. An Order that the Applicant provide up to date contact and employment information to the Respondent as soon as reasonably possible after any changes to his address, phone number, e-mail, employer, etc., pursuant to Part III of the Family Law Act, R.S.O. 1990, c. F.3, as amended.

Dated at Brantford, Ontario

This 4th day of December 2020

The Honourable Justice K.A. Baker