Ontario Court of Justice

In the Matter of the Children's Law Reform Act, R.S.O. 1990, c. C.12 In the Matter of the Family Law Act, R.S.O. 1990, c. F.3

Between:

TREVOR RAY WILFRED BILADEAU

Lance Carey Talbot for Applicant

— AND —

TONIA JEAN BILADEAU

George Fournier for Respondent

Gerald Brouillette, OCL counsel for the children

Heard: December 18, 2020

Before: Kukurin J.

Decision

[1] Introduction

This is a decision on the claim in the motion (at Tab 7) brought by the applicant father.

[2] The Father's Claims

The proceeding in which this motion is brought was started by an Application of the father in which his claims are for an order:

(a) of joint custody with a 50:50 sharing of the time of the children;

(b) that no support be paid by either party;

(c) in the alternative, if no joint custody is awarded, that the father pay $800 per month child support to be paid weekly; and

(d) access (presumably in the alternative if he is not awarded joint custody).

[3] The Mother's Claims

The mother has filed an Answer in which she opposes the father's claims and has her own claims:

(a) For sole custody to herself;

(b) For access by the father to be supervised in her discretion;

(c) For child support, table amount under the Child Support Guidelines, prospectively and retroactively back to date of separation (which she states was Oct 2018);

(d) For child support, special expenses under s.7 of the Child Support Guidelines;

(e) For a restraining order against the father; and

(f) For costs on a substantial indemnity basis.

Background

[4] The Parties and Children

The parties were married in 2006 and separated on October 19, 2018 after a 16 year cohabitation relationship. They have two children, Keisha (age 15) and Noah (age 9). They reside with the mother and have done so following the separation. The parents are both employed with the same employer.

[5] The Consent Agreement

On July 5, 2019, the parties signed a "Consent" to a "temporary and without prejudice" order the terms of which do not at all reflect what the parties are seeking in this proceeding. This Consent was never converted to a formal court order for reasons that are unknown for certain, and perhaps disputed.

[6] Commencement of Proceedings

The actual court proceeding was commenced and was first returnable on July 23, 2019.

[7] The Father's Motion Claims

The father's motion (at Tab 7) has claims for three orders to be made on a temporary without prejudice basis. Unfortunately, these are not claims that mirror any of the provisions in the Consent of the parties. What he seeks in his motion is for court orders that:

(a) Vary the paternal access provision in the Consent to provide that it be unsupervised – rather than loosely supervised by Tina Kingsbury (a relative of the father) insofar as it relates to the child Noah;

(b) Terminate (ie vary) the provision in the Consent that prohibits the maternal grandmother of the children being present at the father's access;

(c) Vary the child support (CSG Table amount) from $800 per month to $445 per month commencing Jan 1, 2020, which he states is commensurate with his current imputed annual income of $29,000.

[8] Additional Factual Background

There are some other elements of the factual background which have some relevance:

[9] Criminal Charges

Firstly, the father is facing two sets of criminal charges. The first set involves sexual offences against the mother, the daughter Keisha and the son Noah which relate to dated incidents. The father was charged and released on an undertaking (dated Feb 15, 2020) with conditions not to communicate with any of the above, with the exception of the mother, and then, for work purposes only and in presence of a witness. The second set relate to charge of breaching one or more of these undertaking conditions. He was released again on giving a second undertaking in which there is a condition that he not communicate with the mother and the daughter, and refrain from being in places they are likely to be. It is presumed that both of these release documents are still in force. The trial of the charges is not set, likely delayed because of the pandemic.

[10] Access and Family Dynamics

The daughter Keisha does not wish to see her father for access visits. His claim relates to the son Noah. He wishes his mother to be able to be present when he exercises access to Noah. He lives with his mother. The mother of the children has some animus against their paternal grandmother and wishes to hold the father to his agreement in the Consent that the grandmother will not be present at any access, a provision the father wants to terminate.

[11] Children's Aid Society Involvement

The Children's Aid Society is also semi involved. It is unclear what its position is on whether paternal access needs or does not need to be supervised. There seems to be an innuendo that the society may become involved if the father has unsupervised access.

[12] OCL Counsel

OCL counsel has been appointed to represent the children. His position is not apparent from the evidence filed but he has communicated his position to counsel for the parents.

The Problem

[13] Jurisdictional Issue

The problem of the court is this. It can only do what the law allows it to do. In this case, the father's motion (at Tab 7) asks the court to vary a Consent of the parties. There is no provision that permits the court to do so as far as is known.

[14] No Prior Order to Vary

Counsel for the father suggest that the court can vary a prior order, especially a without prejudice order. That is true, but there is no prior order here to vary. The consent terms were never incorporate into a formal court order. In fact, they were never judicially endorsed to suggest that the court had done so. At the most recent court date, the presiding judge was apparently presented with the "Consent" and indicated that it should be presented by way of a motion form. It has not been. The reality is that no order exists to vary. I do not accept that the court should treat the Consent as an order.

[15] Status of the Consent Agreement

There is disagreement between counsel for the parties as to what this Consent document actually is. They seem to almost agree that it is not a domestic contract, specifically a separation agreement as defined under the Family Law Act. If it were, this court may have some role in setting it aside or setting some provisions aside [s.56(4)], or disregarding some provisions [s.56(1)] or enforcing or varying the child support provisions in it if the Consent is filed [under s.35] with the court. If a variation is sought after a s.35 filing, this would be done procedurally by a Motion to Change rather than by Application. However, none of this has happened.

Decision

[16] Dismissal for Lack of Jurisdiction

Ultimately, I must dismiss the father's motion, as it is framed, for lack of jurisdiction. For me to vary any provision, the Consent must be filed and the court must make an order based on that Consent. Then the court can vary that order. The problem is that neither party now wants an order that incorporates all of the terms of their Consent.

[17] Recommendation for Proper Procedure

My recommendation is that, if the parties want some provisions in force that differ from what is in the Consent, that one or the other, or both, simply bring a motion for the interim order he or she is seeking in the application that is already started. The Consent, and any evidence of what has transpired since that Consent was signed will simply be evidence before the court on such motions. Ultimately, the court hearing such motion claims will be apprised of all the salient information, including OCL counsel's input with respect to the children.

[18] Considerations for the Parties

I would recommend that the parties take a close look at what claims they have made as some time has elapsed and perhaps events have overtaken what is being asked for. It is clear that the father has been paying support based on his Consent, until he stopped working. Whatever he paid will have to be agreed to or proven. The fact that there are criminal court conditions outstanding preventing his contact with Noah is a reality that should inform whether his claim for joint custody of Noah, and even more of Keisha, is still viable. The mother's position with respect to the maternal grandmother at access should also be examined as should her claim for her discretion as to whether access need be supervised. The claim for a restraining order may be impacted by the outcome of the criminal proceedings. There is no evidence of any s.7 expenses. The father's position currently is adversely impacted by the charges hanging over his head.

[19] Costs

There will be an order to go that the Father's motion at Tab 7 is dismissed. In view of the positions taken on the Consent by each side, questionable in my estimation, and the shared belief that the court did have some jurisdiction on this motion, I would be reluctant to order costs to any party. The motion was not heard on the merits and was dealt with by a jurisdictional decision. However, if any party seeks costs of this motion, it is to be done by a Notice of Motion with two pages of argument and response argument and citations only to any case law relied upon. In light of my not being a Sudbury base court judge, I ask that these documents, if any, be copied to me at my e-mail address.

Released: December 20, 2020

Signed: Justice John Kukurin