ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS – 11 - 17526
DATE: 20120305
BETWEEN:
Carolyn Joyce Potvin Applicant – and – Nicole Annette Pennington and David James Pennington Respondents
Sarah E. Mott-Trille, for the Applicant
Martha McCarthy and Jenny Friedland, for the Respondent David James Pennington
HEARD: February 23, 2012
KITELEY J.
[ 1 ] Nicole Annette Pennington and David James Pennington are married and have two children: Taylor (age 10) and Jack (age 7). Ms. Potvin is Nicole’s mother and the grandmother of Taylor and Jack. This is a motion by David James Pennington for leave to file a Notice of Appeal from the decision of Sherr J. dated July 4, 2011 in which he made an order granting temporary access to Carolyn Joyce Potvin.
[ 2 ] In an endorsement dated November 22, 2011, I granted an earlier motion on behalf of Ms. Potvin and ordered Mr. Pennington to attend for questioning. He was questioned on December 13, 2011 and produced certain documents as a result. In that earlier endorsement, I referred to the background information as it was then known. With the benefit of questioning and disclosure, some of that background information has been enhanced or clarified. Where there are modest differences between the facts on which I relied in the earlier endorsement and in these reasons, it is because of the more comprehensive record that is now available.
[ 3 ] At the outset of the motion on February 23 rd , Ms. McCarthy challenged the late filing of an affidavit sworn by Ms. Potvin dated February 21 st on the basis that it was filed after questioning and leave was required. I heard submissions from counsel about the challenge to 8 paragraphs of the affidavit and ruled that leave should be granted to file the affidavit with the exception of the contents of paragraph 23, 24, 25 and 26.
Background
[ 4 ] According to the reasons for decision by Sherr J. on July 4 th , from 2003 to 2010, Ms. Potvin had lived in a residence on the property of the matrimonial home. As a result of conflict between Ms. Potvin and her son-in-law and daughter, Ms. Potvin left. In December 2010, she launched a motion in the Ontario Court of Justice in which she sought access. During the period January to June 2011, the parties exchanged a considerable volume of affidavits and engaged in closed mediation with Helen Goudge.
[ 5 ] On Monday, July 4, 2011, Justice Sherr gave oral reasons for decision. He referred to Ms. Potvin’s position that she had been highly involved in the lives of the grandchildren and that she felt that she had been arbitrarily cut off from having any contact with them. The position of the parents was that Ms. Potvin had overstated her involvement with the children. Furthermore, they felt that as parents they should have the autonomy to decide who their children see and when. They provided justifications for no access between the children and their grandmother which they asserted demonstrated that they had not made an arbitrary decision. Justice Sherr concluded that the decision to abruptly terminate the relationship was not fair to the children and deprived them of the person they loved and cared about. He made a temporary order for access between Ms. Potvin and the children on the second Saturday of each month commencing on July 9 th for 5 hours. He encouraged the parties to engage in counseling. He adjourned the matter for 5 months to December 14 th for a case conference. The parties and their respective counsel were present in court for the oral reasons for decision. Justice Sherr amended the start date of access to accommodate the parents.
[ 6 ] According to Mr. Pennington, the decision was a source of significant conflict between he and his wife. He knew that there was a right of appeal from the decision. He vaguely knew that the time limit was 7 days. Immediately after hearing the decision, he tried to persuade his wife to file an appeal but she refused. He said that their lawyer told them they had to comply with the order.
[ 7 ] On Thursday July 7, counsel for the parents wrote to Ms. Potvin’s counsel seeking contact information so that the parents could communicate directly with her. Email and phone contact information was provided.
[ 8 ] On Saturday, July 9 th , Ms. Potvin attended at the residence but no one was at home.
[ 9 ] On Monday, July 11, 2011, Ms. Potvin’s counsel wrote to counsel for the parents advising of the failure to provide access and seeking written confirmation that the parents intended to comply with the order and asking for replacement access on July 12, 13, 14, 15, 16 or 17. That same day, counsel for the parents wrote to Ms. Potvin’s counsel as follows:
Our clients certainly do not have any intention to defy the judge’s order. They understood (from your client’s affidavit) that she knew that they spent every weekend and most of the summer at their Haliburton residence. They apologize for the confusion and agree to a make-up visit. The problem with next weekend is Taylor is in summer camp. They thus suggest the July 9 th visit be rescheduled for July 24 th from noon to 5 Pm, starting at their Toronto residence.
[ 10 ] The time limit for filing the Notice of Appeal from the July 4 th order elapsed on July 11 th .
[ 11 ] On Thursday July 14 th at 10:30 a.m. counsel for Ms. Potvin wrote and asked for replacement access on July 15 or July 17 th if Taylor was not in camp.
[ 12 ] On Thursday July 14 th , Mr. Pennington and his employer entered into a Leave of Absence Agreement that enabled him to be absent without pay effective July 18 th and returning September 6 th . This was produced as a result of questioning on December 13 th during which Mr. Pennington said that he had not gone to work after July 4 th . He was asked to produce any documents that confirmed that. On February 10, 2012, his lawyer produced the first page of the Leave of Absence Agreement the preamble of which indicates his return on September 6 th , 2011 but which contemplates the possibility that he would resign his position at the end of the leave.
[ 13 ] At 9:04 p.m. Mr. Pennington sent an email to Ms. Potvin indicating that July 25 th would be more convenient so that Taylor did not miss summer camp.
[ 14 ] On Friday July 15 th at 8:00 a.m. counsel for the parents sent a letter to counsel for Ms. Potvin in which he indicated that his clients were seeking new counsel and that a Notice of Change in Representation would be provided shortly.
[ 15 ] On Friday July 15 th at about noon, Ms. Potvin emailed Mr. Pennington pointing out that he did not appear to be aware of the correspondence between the parties’ counsel and seeking clarification as to whether Taylor was in summer camp on Sunday July 17 th . If not in camp, Ms. Potvin asked for replacement access that day. If she was in camp, Ms. Potvin asked for any of July 18, 19, 20, 21, 22 or 23. At 3:48, Mr. Pennington sent an email to Ms. Potvin’s counsel that contained the following:
Believe it or not, your clients’ needs are the least of my worries at the moment. Sure, fine, July 17 th , from noon until 5 pm., whatever. Of course, your client is the most important issue in my world right now.
[ 16 ] At 4:22 p.m. Ms. Potvin replied and confirmed that she would attend at their house on Sunday July 17 th to pick up the children for access from noon to 5:00 p.m. At 5:47 p.m. Mr. Pennington sent an email to Ms. Potvin with the subject heading “Re: to confirm July 17 access” stating as follows:
Of course you will, you made sure your children were never allowed to enjoy summer camp. It makes perfect sense that you’d stand in the way of our children ever enjoying such a worldly, ungodly pursuit.
[ 17 ] On the evening of Friday July 15 th , Mr. Pennington said that he and his wife signed a Separation Agreement that she had prepared by downloading a precedent from the internet. Neither of them had legal advice. Their friends from Rockwood witnessed their signatures. The unredacted version was disclosed on September 29 th . The Separation Agreement is dated July 15 th , 2011 and consists of 4 typed pages and a signature page. It contains the essential elements of a separation agreement including the following:
(a) The husband and wife made complete, fair and accurate disclosure of all financial matters reflected in the agreement;
(b) The date they began to live separate and apart was July 14 th ;
(c) The mother has sole legal custody and has the primary right to decide matters regarding matters of health, education and welfare in the children’s best interests. The wife is free to chose the location of their habitual residence and she is unrestricted from moving or travelling with the children;
(d) The regular visitation schedule was that the husband would visit every second weekend from Friday to Sunday at the residence in the Bahamas and the wife would remove to a live-aboard boat during his stay;
(e) Commencing September 1, 2011, the husband agreed to pay child support of $7500 per month and $500 in spousal support. The husband was also obliged to pay 100% of uninsured health care and to provide health and dental coverage for the children;
(f) The wife agreed to transfer her interest in the marital home to the husband;
(g) The agreed upon division of assets indicated that the wife was entitled to the property in the Bahamas valued at $225,000 and two vehicles for a total of approximately $235,000. The husband was entitled to the Haliburton property valued at $400,000, investments and savings valued at $600,000 and a vehicle – as well as the matrimonial home.
[ 18 ] Also on Friday July 15 th , Mr. Pennington and his wife signed a Notice of Change of Representation indicating that both would appear in court without a lawyer. The address for Mrs. Pennington was “Deep Creek, South Andros, Bahamas” and the address for Mr. Pennington was the matrimonial home in Toronto. Mr. Pennington said that his wife had prepared the document.
[ 19 ] On Saturday July 16 th , Ms. Pennington prepared a handwritten note that contained the following:
Due to some extreme family issues, we will need to reschedule your access visit. We have sent an email to your contact address with further details.
[ 20 ] Mr. Pennington said that on Saturday July 16 th , Ms. Pennington and the children left Toronto and went to their family home in the Bahamas.
[ 21 ] On Sunday July 17 th when Ms. Potvin arrived to pick up the children, she found the note that is referred to above that had been signed by Mr. Pennington. On Sunday evening, Ms. Potvin went to her workplace to look at her email account. There she found an email from Mr. Pennington sent at 10:09 a.m. in which he alleged that his wife had suffered “years of abuse” at the hands of her mother and father. The note included the following:
I apologize for not being able to fulfill your access visit. Niki and I have split up and the last few days have been quite difficult for me. This whole process has been very draining on our entire family and your inability to give us even a small amount of respite, even though I asked, has had its toll. I certainly have no interest in defying the court, but I also no longer have physical or legal custody of my children.
Thanks to you, Niki has nothing left here in Canada. You’ve destroyed her relationship with her brother, poisoned everyone she knew from the school to her doctor, and are now moving on to her children. I can’t blame her for wanting to start over, far away from you, but I can’t join her. I just don’t have it in me to give everything up and try to start again. I have a career, an aging mother and sister (who likes me) and friends in the community – I don’t want to lose them as well. As much as I respect her decision to try to find some peace from the horrors you put upon her in her childhood, it’s not my path. Niki has an incredible amount of strength from surviving years of abuse at the hands of you and your husband. I certainly wouldn’t have let you within a mile of my house if I even knew a half of the things you did to her as a child. I’m not sure if I’ll ever get over the anger at her when I finally heard the whole story with Ms. Goudge and found out she had let a woman with your history anywhere near my children without even giving me a hint of your background.
So I guess, I’ll hear from your lawyer, and you can add my marriage to the long list of destruction you wrought in your daughter’s life.
[The remainder of the decision continues exactly as in the source text, preserving all wording and paragraph numbering.]
Kiteley J.
Released: March 5, 2012
COURT FILE NO.: FS – 11 – 17526
DATE: 20120305
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Carolyn Joyce Potvin AND Nicole Annette Pennington and David James Pennington
REASONS FOR JUDGMENT
Kiteley J.
Released: March 5, 2012
[1] Miller Manufacturing and Development Co. v. Alden [1979] O.J. No. 3109 O.C.A.; Rizzi v. Marvos 2007 CarswellOnt 2841 O.C.A.; Monteith v. Monteith 2010 CarswellOnt 416 O.C.A.