SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 869/06

DATE: 2013-02-21

RE: Amanda Ruth Proulx, applicant

AND: Christian Andrew Proulx, respondent

BEFORE: Mr Justice Ramsay

COUNSEL: The applicant in person;

Ms E. Richard for the respondent

HEARD: 2013-02-20 at St Catharines

ENDORSEMENT

[1] The respondent husband has moved to change the final order of Taliano J. dated April 27, 2009. I am today asked to decide several procedural motions and a motion for a temporary change to access.

The applicant’s motion for disclosure

[2] The applicant is moving for production of several categories of income and business records. She has pointed to the productions that have already been made and noted alleged deficiencies. In my view the alleged deficiencies are matters for interpretation by the trial judge, not grounds for further production.

[3] Disclosure of the respondent’s business records was ordered by Scott J. on May 2, 2011 and Walters J. on October 6, 2011. Those orders have been complied with. The applicant’s then lawyer reviewed the records and was given photocopies of the records that he asked for. Names of patients and employees were blacked out on the photocopies. The applicant asks for disclosure of the names of the employees so that she can make sure that they are not fictitious or non-arm’s length persons. Her lawyer, however, saw the names and can be taken to have been satisfied in that regard. The respondent’s lawyer offered to make her own inquiries and verify the names. The applicant should have accepted her offer.

[4] The applicant has also been provided the respondent’s OHIP receipts and his tax documents. Ms Richard continues to provide disclosure in response to reasonable requests. I conclude that the respondent has fulfilled his obligations, and I dismiss the motion.

The applicant’s motion to invite participation by the Office of the Children’s Lawyer

[5] The respondent is seeking an increase to his hours of access. He is not challenging continued custody by the applicant. Participation by the OCL might have been appropriate early on, but to invite participation now would delay the matter beyond reason. The motion to change was filed in the autumn of 2010. The settlement conference has been scheduled for April 13, 2013. It is important for the trial to proceed within a reasonable time after that. The child protection authorities are on record that they have no concerns about the welfare of the children and the allegations made by each parent against the fitness of the other do not appear to be well-founded. In the circumstances I think it best that the matter proceed without intervention by the OCL.

The costs of the motion for substituted service on the applicant’s first husband.

[6] The respondent is moving to terminate his obligation to support the applicant’s two children by Russell Johnson. He has brought a motion to add Mr Johnson as a party or in the alternative to compel production of financial information from him. Following Scott J.’s order for substituted service on Mr Johnson dated January 10, 2013, Mr Johnson has been served. He has retained a lawyer, with whom Ms Richard expects to speak in the near future. She may be able to resolve the issue on the basis of production of income documentation. In the circumstances, I adjourn the motion to add Mr Johnson sine die, to be returned on notice or to be spoken to at the settlement conference.

[7] Scott J. reserved the costs of the motion for substituted service to me. The applicant says that the motion was unnecessary. The respondent should have attempted service on Mr Johnson before bringing the motion. Accordingly the respondent should pay her costs. I do not think that it is so simple.

[8] Mr Johnson has been paying child support for the two older children since 2002. The applicant did not seek any further information from him with respect to his income from year to year until the respondent brought the present motion. The applicant claims to have no information about Mr Johnson’s whereabouts apart from the address on his cheques. One of the daughters visited Mr Johnson in Kelowna, but deposed that while staying at his residence she did not become aware of his address. The applicant made an issue of it when the respondent moved from one address in Port Colborne to another without telling her the new address where the children would be spending time. Yet she claims to have sent her teenage daughter to British Columbia not knowing where the child would be with any greater specificity than “Kelowna”.

[9] The applicant has consistently maintained that Mr Johnson is irrelevant to the proceedings and has consistently resisted any form of cooperation with the respondent in establishing his whereabouts. Mr Johnson is far from irrelevant to the proceedings. I conclude that the applicant has been deliberately uncooperative and that if she had not, the motion would not have been necessary. Mr Johnson would have been served inexpensively long ago.

[10] The respondent was successful on the motion before Scott J. in every sense. Not only did he find Mr Johnson, but there are already preliminary indications that he may have significant resources. I think that the respondent should have his costs of the motion before Scott J. on a substantial indemnity basis. The motion itself was simple – two brief affidavits and an appearance in court. The efforts to find Mr Johnson, however, added to the cost. I think that an amount that might reasonably have been contemplated in the circumstances is $1500, and I order the applicant to pay that to the respondent forthwith. The amount may be set off against arrears of spousal support.

The respondent’s motion for an order to protect the confidentiality of materials produced

[11] I do not think that I need to order the applicant to comply with Rule 20(24) of the Family Law Rules, which the respondent’s counsel has set out at tab 11 of her book of authorities. I simply remind her that she is bound by its terms not to disclose information produced to her except as it permits. I also remind her that case conference briefs, settlement briefs and offers to settle should not find their way into the continuing record. Conference briefs should not be brought up after the conference. Settlement offers may only be mentioned during the course of making submissions to costs, after the motion or trial to which they relate has been decided.

The respondent’s motion for increased access

[12] At the moment the respondent has access to the two younger children, a girl age 8 and a boy age 7, every week from Sunday morning to Tuesday morning. There are also provisions for more access on holidays and during school vacation. It is reasonably generous access, and I see no reason why it should not be. It will not be difficult for the trial judge to find a change in circumstances: the father lives much closer to the children than he did in 2009, and they are older.

[13] Each party has made allegations against the fitness of the other. The respondent’s allegations against the mother are based on a very flimsy foundation. The applicant’s allegations against the respondent are dredged up from conduct years past, none of which has any connection to the two young children in question. Since 2009 both parties have spent significant time with the children to no ill effect. The child protection authorities have investigated both parents and found no cause for concern.

[14] The trial judge will be in the best position to judge whether the final disposition should be varied. I hope that he or she will not be burdened by a futile exercise in mud-slinging. The parties should focus on how they can best cooperate to see that the children’s lives and activities are coordinated between two homes to the maximum benefit of the children.

[15] The respondent’s proposed changes are modest and may well be in the children’s long-term interest. On the other hand, there is no particular urgency to them. If this matter is not settled in April, the trial should proceed before summer’s end. I would prefer not to make a change now, and risk that the trial judge find it necessary to change back or to make a different change. For that sole reason the motion for a temporary change in access is dismissed.

[16] The parties may make written submissions to the costs of today’s motions within 30 days.

J.A. Ramsay J.

Date: 2013-02-21