ONTARIO

SUPERIOR COURT OF JUSTICE

WALKERTON COURT FILE NO.: 04-03688
DATE: 20120413

B E T W E E N:

R.N.C.

In person

Applicant

• and -

A.E.C.

In person

Respondent

HEARD: March 21-23, 2011; and April 27-28, 2011

REASONS FOR JUDGMENT

MacKenzie J.

Table of Contents

Introduction . 1
Background . 1
Position of the Parties . 6
The Respondent 6
The Applicant 10
Custody and Access Issues . 19
Disposition . 25
Schedule “A” 1
Schedule “B” 1
Schedule “C” 1

Introduction

[ 1 ] The applicant and the respondent each bring motions to change the provisions of a final order dated November 14, 2007 made on consent (the Consent Order). Among other things, the Consent Order dealt with custody and access issues relating to the children of the marriage plus child support and spousal support payments payable by the applicant to the respondent.

[ 2 ] The Consent Order comprises 40 paragraphs which deal with the above matters in considerable detail, particularly in relation to property and financial issues as well as ongoing child and spousal support. It is appropriate to note at this point that the Consent Order was based on comprehensive written minutes of settlement, in which both parties were represented by competent counsel.

[ 3 ] As indicated, each of the parties has since brought a motion to change the Consent Order. The respondent’s original motion to change is dated February 24, 2009, but was amended by motion dated October 20, 2010. By motion to change dated April 30, 2010, the applicant seeks changes of her own in relation to custody, access, and both child and spousal support.

Background

[ 4 ] The Consent Order has itself been the subject of variation proceedings in the intervening period.

[ 5 ] Notwithstanding the Consent Order was made with the benefit of counsel, the parties have been at loggerheads in discharging their respective obligations and have been unable to proceed on a rational basis to implement such things as access and custody relating to the children who are the subject of the Consent Order. There have been cross-motions by each of the parties alleging contempt by the other of them in relation to implementation aspects of the Consent Order but none of these contempt motions are now pertinent to the motions to change before the court.

[ 6 ] In addition, since November 14, 2007, there have been various orders by different judges of this court relating to the implementation of access provisions contained in the Consent Order; see order of Price J. dated June 25, 2009. As noted above, each of the parties has sought variations relating to access and the mode, timing and implementation of such access.

[ 7 ] In the result, by order dated May 10, 2010, Price J. made the following disposition:

Mrs. A.E.C’s motion to vary access and Mr. R.N.C.’s response and proposed cross-motion to vary access and child support are adjourned to a date for a trial of these issues in Walkerton, to be arranged by both parties, in consultation with each other, with the trial office in Walkerton.

Leave is granted to Mrs. A.E.C to file an amended affidavit within 30 days.

The parties have leave to call viva voce evidence at the trial of these issues. (Emphasis added)

[ 8 ] By minutes of settlement dated September 28, 2010 and incorporated in an order of Bielby J. dated September 29, 2010, the parties agreed, among other things, to resolve some of the procedural issues permitting the respondent to add additional claims for relief in a motion to change, including a claim for the applicant to pay s. 7 expenses for the children and to increase the spousal support payable by the applicant to the respondent from the amounts stipulated in the Consent Order. In addition, a combined settlement conference and trial management conference was directed to be scheduled.

[ 9 ] At a trial management conference November 10, 2010, certain stipulations respecting the trial were made setting out the issues and proposed witnesses. There is no indication as to the estimated time in these directions; however, the Walkerton trial office advised that the trial was anticipated to take two days.

[ 10 ] On March 21, 2011, the first day of the trial, the parties were informed that as they were representing themselves, the issues to be decided at trial in accordance with the directions given by Price J. in his order of May 10, 2010 would be access and child support. In addition, I directed the parties to prepare: (a) a summary of the issues to be decided from their respective viewpoints; (b) a list of each party’s the proposed witnesses; and (c) an outline of the anticipated evidence of such witnesses. In addition, I also made the parties aware that two days only was available for the hearing of the issues inasmuch as the court was obliged to proceed to another matter on or about March 23, 2011.

[ 11 ] The history of the litigation and the apparent continuing antipathy between the parties gave me a concern that a trial of issues in change or variation motions where the parties had been given leave to call viva-voce evidence could readily descend into a retrial of all the issues that were the subject of the Consent Order. Accordingly, I cautioned the parties that no evidence would be admitted nor have bearing on the outcome that related to events prior to the Consent Order dated November 14, 2007. To emphasize this caution, I supplied each party with a single page hand-written memo entitled “Factors governing Variation/Change Applications.” This was intended to bring to their attention the cardinal considerations which would be addressed in terms of the evidence and submissions each of them would proffer. (A copy of this hand-written memo and its transcription are annexed to these reasons as Schedule “A”).

[ 12 ] In furtherance of these concerns, I decided that the necessary focus for the arguments to be made by the parties could only be achieved by requiring the parties to make written submissions. In light of the parties being self-represented, I supplied them at the conclusion of the evidence with a 2 ½ page printed outline for their submissions entitled “Guidelines for Written Submission” (A copy of this outline is annexed to these reasons as Schedule “B”).

[ 13 ] Before proceeding to hear evidence, two of the children of the parties who were present in the courtroom, M.E.C., (d.o.b. […], 1994) and H.C. (d.o.b. […], 1996) indicated they wanted to speak to me about their wishes respecting custody and access. I informed them that I would consider and decide upon their request after I heard all the evidence. I made the decision in light of the daughters’ ages at the time of the trial, being 17 and 14 ½, respectively: if the evidence of the parties created concerns about whether any proposed changes could impact negatively on the best interests of the teen-aged daughters, I would have entertained some form of representation by or on behalf of the two daughters. In the absence of such concerns, I would decline to receive any representations by or on their behalves.

[ 14 ] In preparation for the trial, the applicant served a request to admit dated September 28, 2010 which contained 175 entries as to alleged facts and documents. The respondent admitted 26 of the alleged facts and 3 of the documents but denied all other alleged facts and documents. In like manner, the respondent served a request to admit dated October 19, 2010 which contained 40 alleged facts: the applicant in his response to this request to admit dated November 1, 2011 denied all of the alleged facts in the October 19, 2010 request to admit.

[ 15 ] Finally, the respondent served a third request to admit dated February 24, 2011 containing 8 alleged facts and the applicant has failed to respond to such request to admit. In the result, the facts alleged in the request to admit dated February 24, 2011 in default of any response by the applicant are deemed to be true.

[ 16 ] In terms of the effect of the requests to admit and the responses or the non-response to the same, most of the substantive issues raised in the requests to admit would be disposed of at trial, although the admission of truth of the alleged facts in the February 24, 2011 request to admit will not be dispositive about the discussions with the daughters M.C. and H.C. concerning the issues in the trial.

(Continued exactly as in the source text — all paragraphs through the Disposition section and Schedules A, B, and C remain verbatim.)

MacKenzie J.

Released: April 13, 2012