SUPERIOR COURT OF JUSTICE - ONTARIO

DATE: 20130312

DOCKET: 04-FD-299927-0001

RE: Felicia Purcaru, Applicant

AND:

Dan Purcaru, Respondent

BEFORE: Czutrin J.

COUNSEL:
Applicant – In Person

Respondent – In Person

HEARD: February 26, 2013

ENDORSEMENT

[1] Lost in all the litigation between these parties are their children Diana, born July 8, 1999, and Robert, born February 11, 2002.

[2] At a time when both parties were represented they, on consent, agreed to an order on a final basis dated February 15, 2008 granted by Frank J. that the mother would have custody of the children and the father would have reasonable access to children by agreement made between the parties in writing.

[3] The children have not seen their father for many years.

[4] On June 30, 2008, a temporary order was made by Goodman J., again on consent that provided that the father would not attend within 500 meters Mrs. Purcaru’s home or have contact with her or the children for any purposes except through the parties’ respective solicitors.

[5] On May 6, 2009, at trial, this temporary order was made final providing a continuation of the restraining order until further order.

[6] The parties have been separated since 2003 and have been involved in continuing and repeated litigation and court appearances from 2004 to current date.

[7] Even though the Court of Appeal denied the father’s appeal on various monetary issues on February 3, 2010, the parties have been involved in repeated motions, actions, and contempt proceedings since that time, with Mrs. Purcaru attempting to enforce the significant judgment she has against Mr. Purcaru, and Mr. Purcaru’s efforts to prevent her from collecting on the judgment.

[8] In an effort to see if there was any opportunity to end the continuing litigation, after so many years, on July 5, 2012, my colleague Penny J. provided in paragraphs 41 and 42 of his endorsement the following observations and orders:

41. This case has consumed inordinate resources of both the courts and the parties. There have been literally dozens of court appearances, motions and other proceedings. The matter has dragged on since 2004. Further, there is no end in sight. The trial in the Fordham preference claims had to be adjourned, and still outstanding of the additional content and other enforcement proceedings against Mr. Purcaru, as well as the matter of Mr. Sima’s tenancy in one of the properties bested in Mrs. Purcaru.

In paragraph 42 he observes:

In my view this case cries out for an attempt at global settlement. Accordingly, before any further motions of proceedings can be brought (apart from the dates already booked or provided by the court), the parties are directed to attend a half-day settlement conference before Justice Czutrin.

[9] Unfortunately, that conference was thwarted by the fact that new allegations were made by Mr. Purcaru that needed to be addressed before I could proceed with a settlement conference. I have now become seized of determining that preliminary issue and thus the settlement conference has not proceeded.

[10] Notwithstanding the prohibition of motions, Mr. Purcaru proceeded to bring motions.

[11] I note Mesbur J.’s endorsement of October 11, 2012:

Father moved for access to the children and to set aside a restraining order.

[12] Mesbur J. stayed his motion until after the settlement conference unless I determined that this motion was permitted.

[13] Although I would generally think of children’s issues separate and apart from any financial issues, and would reluctantly ever prevent any parent from bringing motions that might promote a relationship between parent and child, the father’s motion appears not at all directed at any effort to promote a relationship between him and his children, as his request and main focus was to vacate the no contact and restraining order first granted on June 30, 2008, and extended by the order of Paisley J. in May 2009.

[14] Mr. Purcaru was not able to tell me what would happen if I vacated those terms. That is, he submitted that once I vacated the restraining order (no contact), he could not tell me what would happen next: Would he then attempt to see his children, make efforts to contact them, attend at the mother’s home or the children’s school? Essentially what he told me was that the orders that were made, and as initially made without prejudice should no longer remain as he was recently acquitted (May 9, 2012) of criminal charges by Grossman J. of the Ontario Court of Justice on May 9, 2012. As a result, he submitted that it was appropriate to now terminate those terms (no contact) as the order was prejudicial to him.

[15] Grossman J. was dealing with charges of threats dating back to 2008 allegedly made by Mr. Purcaru against Mrs. Purcaru.

[16] Mr. Purcaru has not been able to establish any change in circumstance from the time of the making of the orders of Goodman J. and Paisley J. to today’s date except the acquittal.

[17] Absent Mr. Purcaru actually having a plan and some clarity as to what he proposes with respect to a relationship with his children and how he proposes this might go, I have no comfort in vacating the order. Within the civil context, I fear that he will use the vacating of any such order to potentially create further issues between him, his former wife, and reasonably extending to the children. I see this uncertainty as being contrary to the children’s best interests based on the material that is filed to consider any termination of the existing order in place. The parties’ litigation, unfortunately, will continue for some time and to now allow vacating of any orders until the litigation ends cannot be in the children’s best interests.

[18] Mr. Purcaru has failed to file any proposal with respect to contact between him and the children and has not filed a Form 35.1 Affidavit. If I were to consider any contact between him and the children I certainly would want to know what the children’s views would be prior to any order.

[19] Therefore, the Mr. Purcaru’s motion is dismissed and no further motions may be brought on this topic without leave of the court that would, at minimum, need to have a plan and an answer to what he proposes as a plan that would address the children’s safety and best interests and include a Form 35.1 Affidavit.

[20] Penny J.’s order prohibiting motions remains and the issue that is outstanding relating to the consumer proposal needs to be determined before there are any other motions or attendances.

[21] Costs may be addressed after the outstanding motion on the consumer proposal issue is resolved.

Czutrin J.

Released: March 12, 2013