COURT FILE NO.: FS-09-67717-00

DATE: August 9, 2013

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nicholas Valettas, Applicant

AND:

Georgina Chrissanthakopoulos, Respondent

BEFORE: Lemon, J.

COUNSEL: Michael J. Stangarone, for the Applicant

Rodica David Q.C., for the Respondent

HEARD: July 24, 2013

ENDORSEMENT

The Issues

[1] The applicant, Nicholas Valettas, seeks the following orders:

a) an order striking the respondent’s pleadings for her breaches of court orders and setting a date for a second undefended trial in this proceeding on the remaining outstanding issues;

b) in the alternative, an order prohibiting the respondent from taking any further steps in this proceeding until she remedies her breaches of the court orders and obtains written leave of the Court;

c) an order for the immediate resumption of the court-ordered reunification therapy with Dr. Szkiba-Day thwarted and now terminated by the respondent in breach of Justice Mossip’s order dated September 24, 2012, including a minimum two weekly sessions;

d) an order reversing primary residence of the children of the marriage from the respondent to the applicant in light of the respondent’s refusal to support the applicant’s relationship with the children, and her thwarting of the reunification therapy;

e) an order suspending the respondent’s contact with the children pending reunification therapy;

f) in the alternative, an order for the immediate resumption of the applicant’s access with the children two days per week from after school until 9:00 p.m. and daily telephone access, on temporary and without prejudice basis, subject to review within six months;

g) an order prohibiting the respondent from disparaging the applicant in the presence of the children and from involving the children in adult matters, including but not limited to this litigation;

h) an order prohibiting the respondent from discussing the reunification therapy sessions with the children;

i) an order compelling the respondent to reimburse the applicant one-half of the costs of the reunification therapy she has thwarted in the amount of $8,657.25, payable forthwith;

j) an order that the respondent pay one-half of the ongoing costs of the reunification therapy.

[2] In his Supplementary Factum, the applicant further detailed his request as follows:

a) the applicant shall participate in therapeutic access visits and reunification therapy with the children with Dr. Szkiba-Day, which shall take place at minimum on a weekly basis;

b) the respondent shall bring the children to the therapeutic access visits and reunification therapy with Dr. Szkiba-Day at a minimum on a weekly basis;

c) the respondent shall respond to Dr. Szkiba-Day’s requests to schedule appointments within 48 hours. She must bring each child to the sessions as directed by the doctor;

d) there shall be no cancellations of scheduled appointments whatsoever. Appointments shall be scheduled around the children’s activities;

e) in the event of a genuine emergency, supported by documentary proof, an appointment may be rescheduled. The appointment will be scheduled by the Respondent within 24 hours of the rescheduled appointment;

f) the costs of the reunification therapy shall be shared equally between the parties so that both parties are invested in the process;

g) the respondent shall fully cooperate with, and facilitate the reunification therapy and therapeutic access visits. She shall encourage the children to have a relationship with their father. She shall not for any reason whatsoever discuss the sessions with the children or involve them in any adult issues pertaining to the litigation or the separation;

h) the respondent shall not involve the children in adult issues that are between the applicant and the respondent;

i) if she fails to cooperate with any aspect of the therapeutic access/reunification therapy, the respondent will be fined $1,000 each day she is in breach of the order and until she complies with it; and

j) if a weekly visit is cancelled or rescheduled for any reason other than a genuine emergency, the respondent shall be fined $1,000 for that cancelled/rescheduled visit.

[3] In return, Ms. Chrissanthakopoulos seeks an order:

a) that the father’s motion be adjourned to a trial and for questioning of him;

b) that all references and exhibits relating to the reunification therapy with Dr. Szkiba-Day in his Affidavit sworn June 19, 2013 be struck and expunged;

c) that all references to audio and video recordings be struck and expunged from his Affidavit sworn June 19, 2013 and that such recordings be prohibited from any use in the Application;

d) temporary sole custody of the children of the marriage;

e) that the children’s reunification therapy with Dr. Szkiba-Day be terminated; and

f) for an updated s. 30 custody and access assessment.

Background

[4] The parties were married November 11, 1990. One of the issues in dispute is the date of separation. Mr. Valettas says that they separated March 3, 2009; Ms. Chrissanthakopoulos takes the position that they separated January 3, 2010.

[5] They have three children; Constantine is 14 and Maria and Alexandra are 11.

[6] Mr. Valetta’s application was commenced in December 2009. There is a dispute as to why Ms. Chrissanthakopoulos did not respond but in any event Mossip J. heard an uncontested trial in November 2010. Mr. Valettas has not had access to his children since July 2010.

[7] In Justice Mossip’s endorsement, she said:

I am satisfied, based on the exhibits filed in the affidavit for the uncontested divorce and the evidence I have heard, that the mother is on a path of possible parental alienation of the children from their father. The courts have spoken loudly that they will not let this happen if at all possible. It has become the norm for children to be removed from an alienating parent and placed with the other parent until the offending parent deals with the issue.

[8] In the same endorsement, Justice Mossip ordered an assessment pursuant to s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.

[9] As a result of the endorsement, Ms. Chrissanthakopoulos retained counsel and participated in the assessment.

[10] The assessment was filed May 10, 2012. The parties dispute who is the cause of the delay in the production of that report.

[11] One of the recommendations in the assessment was that:

The father, Mr. Nickolas Valettas should participate in therapeutic access visits with the children. This should occur with a professional experienced with reintegration counseling. The intent is to re-develop a positive relationship between the children and their father, with progression to unsupervised access as the situation improves. The therapeutic access schedule will be dependent on the therapist’s schedule, but should be occurring weekly at minimum.

[12] Mossip J. properly seized herself of the matter. On September 24, 2012, she ordered, on consent, that:

The parties shall both cooperate with all aspects of Dr. P. Jean Szkiba-Day’s reintegration program. They shall each attend to scheduling appointments as she deems appropriate in her discretion and shall attend such appointments.

[13] One of the issues between the parties is the admissibility of information and records from Dr. Szkiba-Day. That information and background is therefore left out of this history.

[14] On June 4, 2013, Ms. Chrissanthakopoulos’ counsel wrote:

As I indicated in court telephone conference call with Justice Mossip on May 28, 2013, Dr. Szkiba-Day’s letter of May 28, 2013, received in my office at 7:15 a.m. that day, leads us to conclude as follows:

1. Dr. Szkiba-Day appears to have lost her objectivity.

2. There are numerous factual errors in her letter.

3. There is a serious question as to whether there is any utility to trying to continue the reintegration sessions with Dr. Szkiba-Day.

We have therefore written to Dr. Szkiba-Day, a copy of which correspondence we enclose.

As advised in our conference call, we will include in our client’s Motion material a claim to terminate Dr. Szkiba-Day’s involvement. Accordingly, there will be no further appointments scheduled at this time. All of the reasons for this will be contained in our Motion material.

[15] With that, the court ordered therapy came to an end. Mr. Valletas has still not seen the children.

[16] To complete the background, all of the necessary conferences (other than a trial management conference) have been completed. At this point, the issues for trial appear to include:

a) the date of separation;

b) whether or not Mr. Valettas was involved with the children prior to separation;

c) whether Mr. Valettas abused Ms. Chrissanthakopoulos and the children;

d) Ms. Chrissanthakopoulos’ conduct after separation as it relates to the issues of custody and access;

e) Mr. Valettas’ attendance and behavior when access was agreed upon;

f) the reason for Ms. Chrissanthakopoulos failure to attend at the 2010 trial;

g) the reasons for the delay in the assessment and, perhaps, the counseling with Dr. Szkiba-Day;

h) whether the children’s’ behavior is as a result of alienation or estrangement; and

i) a variety of financial issues that were not before me.

Removal of Dr. Szkiba-Day’s Records from the File

[17] Mr. Stangarone seeks to rely on a great deal of material from Dr. Szkiba-Day’s file. Ms. David submits that it is privileged in that the parties have signed confidentiality agreements relating to the file; Ms. Chrissanthakopoulos has not waived privilege over those records and, in any event, pursuant to the four-part Wigmore test, I should not rely on the information from Dr. Szkiba-Day.

[18] In my view, these arguments should be left to a proper hearing before the trial judge. Accordingly, I should not make much comment here. I do note however, that the Wigmore criteria require that, in order for privileged communications to be excluded, the communications must be made in confidence; the confidentiality needs to be important to the relationship; the relationship needs to be an important one in society and, fourthly, that there would be more harm to the relationship if the evidence were admitted than benefit to the correct disposal of the litigation. This factor requires a balancing by the deciding judge on proper evidence. I do not have sufficient evidence or argument before me to make such a determination that could be binding on the trial judge. I will therefore determine these issues without taking any of the information from the therapist into consideration.

[19] Having made that determination at the request of the respondent, the onus upon each party for their requests must be kept in mind. Mr. Valettas must prove on a balance of probabilities that Ms. Chrissanthakopoulos is in breach of the court order. Ms. Chrissanthakopoulos must prove on a balance of probabilities that reunification therapy with Dr. Szkiba-Day should be terminated.

Audio and Video Tapes

[20] The admissibility of this evidence also requires a balancing of competing factors. For the same reason as set out above, I leave the admissibility of this evidence to the trial judge.

Breach of the Order

[21] Justice Mossip’s order is clear – “the parties shall both cooperate with all aspects of Dr. P Jean Szkiba-Day’s reintegration program.” That order was on consent. Ms. David’s letter is equally clear – “there will be no further appointments scheduled at this time”. Other than the conflicting affidavits of the parties, there is no evidence to support the reasons behind that letter. I have nothing one way or the other from the therapist. On that basis, Ms. David’s letter is simply a clear refusal to comply with Justice Mossip’s order. There is no need to delay that issue for a trial or questioning.

[22] The parties agree that the children have been harmed in their relationship with their father. They only disagree on the cause of that harm. They both consented to reintegration therapy. There can be a no higher priority for Ms. Chrissanthakopoulos and the children than re-establishing that relationship. On the material before me, she has breached the order.

Removal of Dr. Szkiba-Day

[23] Having been successful in persuading me that Dr. Szkiba-Day’s information ought not be relied upon, there is nothing left to support the respondent’s request to remove the therapist. The parties dispute whether Ms. Chrissanthakopoulos has been cooperating or not. I cannot make that determination on this material. With the onus upon Ms. Chrissanthakopoulos to show that the therapist should be removed, she has failed to meet that onus. Accordingly, that request is dismissed.

Remedy

[24] Mr. Valettas, wisely, does not seek a contempt order. Rather he relies upon rules 1(8) and 14(23) of the Family Law Rules, O. Reg. 114/99. Those rules are as follows:

r.1 (8) Failure to Follow Rules or Obey Order – The court may deal with a failure to follow these rules, or a failure to obey an order in the case or a related case, by making any order that it considers necessary for a just determination of the matter, on any conditions that the court considers appropriate, including:

a) an order for costs; and

b) an order dismissing a claim made by a party who has willfully failed to follow the rules or obey the order.

r.14(23) Failure to Obey Order Made on Motion – A party who does not obey an order that was made on motion is not entitled to any further order from the court unless the court orders that this subrule does not apply, and the court may on motion, in addition to any other remedy allowed under these rules:

a) dismiss the party’s case or strike out the party’s answer or any other document filed by the party;

b) postpone the trial or any other step in the case;

c) make any other order that is appropriate, including an order for costs.

[25] As can been seen from the court history and the list of issues in dispute, the parties disagree on almost everything. The file has grown to most of two banker boxes. I am not persuaded that I can make determinations of fact that would allow me to change custody as requested by the father. Given that the principal issues are custody and access, I am not persuaded that I should strike Ms. Chrissanthakopoulos’ materials on those issues. The financial issues are to be argued on another day. I do not know enough of those issues to strike Ms. Chrissanthakopoulos’ pleadings in that area. Accordingly, I cannot dismiss Ms. Chrissanthakopoulos claim, nor can I strike out any other document filed by her.

[26] It is my understanding that one of the issues still to be dealt with on an interim basis is with respect to productions by Mr. Valettas. I do not know the details of those issues nor their merits; those issues were not before me. I do not believe that it is appropriate to prohibit Ms. Chrissanthakopoulos from taking any further steps in this proceeding without knowing more about those steps.

[27] The applicant seeks an order for Ms. Chrissanthakopoulos to pay a fine. While, perhaps, that could be seen as “necessary” or “appropriate”, that seems more fit for a finding of contempt. I decline to order a fine.

[28] With respect to the residual term for a remedy under r. 14(23)(e), it is appropriate to order as requested by the applicant that:

a) there shall be an immediate resumption of the court ordered reunification therapy sessions with Dr. Szkiba-Day;

b) the respondent shall reimburse the applicant one half of the costs of reunification therapy to date.

c) the respondent shall pay for one half of the reunification therapy subject to any reapportionment by the trial judge.

[29] Further, I order that:

a) the respondent shall bring the children to the therapeutic access visits and reunification therapy with Dr. Szkiba-Day;

b) both parties shall respond to Dr. Szkiba-Day’s requests to schedule appointments within 24 hours. The respondent must bring each child to the sessions as directed by the doctor;

c) there shall be no cancellations of scheduled appointments whatsoever;

d) in the event of a genuine emergency, supported by documentary proof, an appointment may be rescheduled. The appointment will be rescheduled within 24 hours of the rescheduled appointment;

e) both parties shall fully cooperate with, and facilitate the reunification therapy and therapeutic access visits. The respondent shall encourage the children to have a relationship with their father; and

f) neither party shall involve the children in adult issues that are between the applicant and the respondent. Neither shall disparage the other in the presence of the children.

[30] Finally, as a remedy, the respondent shall pay costs of this motion to the applicant. I do not have the respondent’s financial statement or an estimate of the costs of the therapy. However, the consent order shows that the respondent is to receive monthly combined child and spousal support in excess of $23,000 per month. It appears that she can afford both the therapy sessions and the costs of her actions.

[31] Written cost submissions shall be made within the next 30 days. The applicant shall provide his written submissions within 15 days and respondent’s counsel shall respond 15 days thereafter. Those submissions shall be no more than five pages, not including any Offers to Settle or Bills of Costs.

New Assessment

[32] The present s.30 assessment is dated May 8, 2012. Ms. David submits that the report is stale, deficient and wrong. To the extent that it is deficient and wrong, those are issues for trial and that trial needs to be expedited.

[33] To the extent that it is stale, sadly, that is not an unusual occurrence in custody litigation. The parties dispute the cause of the delay in moving this matter forward. From the perspective of the children, it does not matter who caused the delay. The delay itself is harmful and must come to an end. From the lengthy detailed affidavits provided by the litigants, the principal issue for the trial judge will be the credibility of the two parties’ evidence. While assessments are often of assistance to the court, a trial can proceed without them. Often, with the benefit of an assessment, parties can resolve the issues between themselves without a trial. In this case, resolution is extremely unlikely this side of a courtroom door. The trial ought not to be delayed for further assessment. That request is denied.

Custody

[34] The mother seeks an order for temporary sole custody of the children of the marriage. The father seeks an order transferring custody to him. Justice Mossip declined to make an order for custody, and instead ordered a s.30 assessment. On the conflicting materials before me, I am not able to make the factual determinations to make such an order for either party. That will be left to the trial judge.

Other Interim Issues

[35] The applicant had requested specific times per week for the therapy sessions. The parties wisely left that to the discretion of the therapist in their consent order. I decline to change that term.

[36] The applicant requested an order that the respondent not discuss the reunification with the children. For all I know, that may be appropriate in the opinion of the therapist. I decline to make that order.

[37] The applicant sought an order for immediate access. Given that the parties have agreed to reunification therapy, I ought not to interfere with terms of access until that therapy has been completed or the trial held.

Future Steps

[38] The parties have worked out a time-table as follows:

a) the respondent shall serve her motion materials by August 19, 2013 re: financial issues and disclosure;

b) the applicant shall serve his cross-motion and responding materials by August 30, 2013;

c) the respondent shall serve her reply by September 9, 2013;

d) the parties shall serve their facta by September 9, 2013;

e) the motion re: financial matters and disclosure shall proceed on September 12, 2013, for less than one hour;

f) the applicant shall be questioned on December 13, 2013;

g) the respondent shall be questioned on December 12, 2013;

h) the trial in this matter shall proceed on the civil trial list commencing January 6, 2014; and

i) trial management conference set for December 18, 2013 at 10:00 a.m. before Lemon, J. The briefs are to be filed by 2:00 p.m. on December 17, 2012.

[39] The motion returnable September 12, 2013 need not be heard by either Mossip J or myself.

[40] The trial date set out above was not on consent; it was fixed by me over the objections of Ms. David. She advises that she will be on holidays in January of 2014 and unavailable for this trial date. She advised that she would be available February through May 2014. Both parties agree that the trial will take at least four weeks. The next sittings after January in this jurisdiction for such a lengthy trial is May 2014. The schedule as otherwise agreed upon by the parties will put them in line to be prepared for the January date.

[41] I certainly agree that counsel, particularly ones as busy as Ms. David, need holidays. I agree that it is very important that the parties, especially in such important matters as this, should have their counsel of choice. The combination of those two factors ought to make any judge pause before pressing the matter onto trial. I have weighed those factors in my determination.

[42] On the other hand, this battle has been carried on over the heads of the children since 2010. They have not had a successful relationship with their father since at least July 2010. Ms. David suggests that having the matter delayed until May would “not be additionally prejudicial to the children.” Ms. David says that the “primary factor” for objecting to the trial in January is that she is not available.

[43] I reject the submission that a trial judge should, in July, agree that a high conflict custody case should be adjourned a further four months from January, simply because of counsel’s planned holiday. Ms. David quite properly said that she would be able to arrange counsel to protect Ms. Chrissanthakopoulos’ interests. I have no doubt that she can and will be able to do that. Given that, these children ought not to wait any longer for the determination of these issues. On that basis, the trial date has been set.

Justice G.D. Lemon

Date: August 9, 2013