GUELPH COURT FILE NO.: 274/13

DATE: 20140530

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Christina Darlene Kirwan, Applicant/ Mother

AND:

Martin Robert Kirwan, Respondent/ Father

BEFORE: Ricchetti, J.

COUNSEL:
R. Brant, Counsel, for the Applicant

M. Kirwan, self-represented

HEARD: May 27, 2014

ENDORSEMENT

THE MOTIONS

[1] The Father brings a motion to vary the existing interim order for access to Keelan Martin Kirwan (Feb 22, 2009) and Aislin Zillah Kirwan (Jan 22, 2012) (“Children”).

[2] The Mother brings a motion to stay the Father’s motion until such time as the Father has paid all outstanding costs orders. The Mother also seeks an order that the Father be prohibited from bringing further motions without leave of the court.

THE BACKGROUND

[3] The parties were married on October 9, 2004 but had been living in a common law relationship for approximately two years earlier. They separated in July 2011, reconciled and separated again in November 2012.

[4] They have two Children.

[5] In just over a year, the Continuing Record is voluminous comprising of many volumes containing many motions and affidavits. There have been over 60 court filings in just over a year. The allegations by both parties are very serious and, in some cases, troubling as there are allegations of conspiracy, unprofessional conduct, and deceit and so on. This is a high conflict dispute.

[6] There have been numerous motions, cross-motions and attendances in court.

[7] Unfortunately, the battleground for this confrontation between the parties is the Children. The allegations regarding each party’s ability and the other party’s inability to care for the Children are serious, extensive and conflicting and only resolvable after a trial. Fortunately, the Children are still young and, hopefully, will not suffer any long term impact as a result of the very bitter confrontation now going on between the parties.

[8] Since separation the Children have resided primarily with the Mother with the Father having generous access. The Father is a police officer and his schedule has an impact on access, although it was not a factor in this decision.

[9] After an extensive hearing on July 22, 2013 before Justice André, an interim order was made granting the Mother interim sole custody with the Father having access on a rotating schedule detailed in paragraph 2 of Justice André’s order and specified holiday access. Justice André also granted the Mother exclusive possession of the matrimonial home. Justice André ordered the Father to pay costs of $10,000 (“July 22, 2013 Interim Order”).

[10] On September 10, 2013 the Father brought a motion to vary the July 22, 2013 Interim Order as it related to his access to the Children. This motion was heard by Justice Donahue who dismissed the Father’s motion and ordered costs against the Father in the amount of $2,500.

[11] On October 7, 2013 the Father brought another motion to vary the July 22, 2013 Interim Order as it related to the restraining order. This motion was heard by Justice Sproat on October 15, 2013 who dismissed the motion and ordered the Father to pay $1,551.49 in costs.

[12] The above costs orders remain unpaid. The Father states he cannot afford to pay the cost orders.

[13] As a result of an order on May 6, 2013, the Office of the Children’s Lawyer (“OCL”) became involved and conducted an investigation in this matter. The Report by the OCL was produced in January 2014. Essentially, the Report did not make a recommendation regarding custody but said the following regarding access:

Keelan and Aislin will have access with Mr. Kirwan based on his availability as per his work schedule. Mr. Kirwan’s work schedule allows for access to occur with no more than a four day gap with either parent. The schedule needs to support the children’s relationship with both parents. There needs to be a sharing of structure, routine, health care, school progress, as well as activities, volunteer time and extracurricular activities. Neither parent will need the permission of the other to visit out of town with the children during their time with them.

[14] On May 13, 2014 the Father brought this motion to vary the July 22, 2013 Interim Order based on the OCL recommendations regarding access having no more than a four day gap with either parent.

[15] On May 22, 2014 the Mother brought this motion to stay the Father’s motion for non-payment of the outstanding cost orders and prohibiting further motions without leave.

THE POSITION OF THE PARTIES

Access

[16] The Father seeks to vary access in a manner which avoids “no more than a four day gap with either parent”. The Father’s proposed plan would result in an additional 3.5 days per month access with the Children.

[17] The Mother rejects the OCL Report and submits that the access should remain as per the July 22, 2103 Interim Order.

Cost Orders

[18] The Mother submits that the Father’s motion should be stayed pending his payment of outstanding cost orders. Further, the Mother submits that the Father has brought numerous motions with extensive materials essentially causing her to expend considerable monies on counsel to defend these motions (some of which were withdrawn such as the contempt motion) and therefore, he should be prohibited from bringing further motions without leave of the court.

[19] The Father submits he cannot afford to pay the cost orders.

THE ANALYSIS

Cost Orders

[20] Let me deal with this issue first.

[21] I am not persuaded that there is any evidence the Father cannot pay the outstanding cost orders. He is a police officer with a reasonable income. He states that he is already paying a significant amount of his income to payment of arrears of support. This excuse has no merit. It simply means that for a period of time the Father enjoyed the benefits of his full income while not paying any support.

[22] Had this been a motion to deal with any financial issues, I would have stayed the Father’s motion until he paid the outstanding cost orders. However, the issue raised by the Father relates to the Children and I am loath to refuse to deal with a motion on its merits where the Children’s best interests are at stake.

[23] As for the Mother’s request for an order prohibiting the Father from bringing further motions without leave of the court, I am not prepared to grant the motion at this time. I am extremely concerned with the Father’s numerous motions and with the volume of materials filed by the Father in support of his motions. It does appear that the Father is seeking to litigate the issues by causing the Mother to expend considerable costs to respond to his motions or voluminous motion materials. However, I reserve this is for determination on another day. This part of the motion is adjourned sine die and may be brought back on by the Mother when and if the Father brings a further motion(s).

Access

[24] It is clear from the numerous motions and the allegations that custody and access is a primary issue to be decided by this court. This application should be tried as quickly as possible. A Settlement/Trial Management Conference is presently scheduled for September 15, 2014 at 10:00 a.m. That conference is confirmed. Conference briefs must be filed in accordance with the Family Law Rules.

[25] I advised the parties that I have placed this application on the Assignment Court list on October 27, 2014 at 2:00 p.m. with the hope and expectation that the presiding judge will set this matter for trial in the November 2014 sittings if at all reasonably possible. I advised the parties of this so that their submissions could take into account the expected early trial date now scheduled. The trial date assigned at the Assignment Court will be pre-emptory on both parties. Any motions for disclosure, expert reports or any other trial related matters should be brought before the Settlement Conference date.

[26] Let me now turn to the merits of the Father’s motion.

[27] The Father primarily relies on the OSL Report as the basis for a change in the July 22, 2013 Interim Order. In Glover v. Glover 2013 ONSC 4068 Justice Ellies set out the manner which courts should consider custody/access assessments on interim motions:

[15] In a line of cases commencing with Genovesi v Genovesi, (1992), 1992 8562 (ON SC), 41 R.F.L. (3d) 27 (Ont. Crt. (Gen. Div.)), it is been held that recommendations contained in a custody assessment ought to be used only at trial, and not at the interim motion stage, absent exceptional circumstances (see Medvis v. Peters, 2002, 49546 (Ont. S.C.), at para. 9; Mayer v. Mayer, 2002, 2753 (Ont. S.C.), at para. 24; Forte v. Forte, 2004 7631 (Ont. S.C.), at para. 7; Kerr v. Hauer 2010-04-06 ONSC 1995, at para. 7). This line of cases was thoroughly reviewed recently by Mitrow J. in Bos v. Bos, 2011 ONSC 3425, who concluded (at para. 23) that:

...the jurisprudence has evolved to a point that although the general principle enunciated in Genovesi continues to be well-founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo. In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are “exceptional circumstances” as set out in Genovesi. In fact, “exceptional circumstances” findings were not made in either Forte or Kerr.

[16] At paragraph 26 of his decision, Mitrow J. set out some of the factors that should be considered where a court is asked to make an order regarding interim custody and access, where an assessment has been prepared, and where, as here, the court has not been asked to find that exceptional circumstances exist. These include:

a) How significant is the change being proposed as compared to the interim de jure or de facto status quo?

b) What other evidence is before the court to support the change requested?

c) Is the court being asked to consider the entire report and recommendations, or is it necessary for the purpose of the motion only to consider some aspects of the report, including statements made by the children, observations made by the assessor or any analysis contained in the report which may be of assistance to the motions judge?

d) Are the portions of the recommendations which are sought to be relied on contentious and, if so, has either party requested an opportunity to cross-examine the assessor?

[28] As a result, while the OCL recommendations may be a factor to be considered by this court on a motion to vary an interim order, the court must proceed with caution and consider all circumstances, particularly where there are no exceptional circumstances for the change requested.

[29] I decline to vary the current access arrangements for the following reasons:

i. The recommendations in the OCL report are vague. Aside from stating that there should not be more than 4 days between the Children not seeing a parent, there is no detailed access schedule suggested by the OCL. This may be due to the Father’s work schedule but the Father’s work schedule was already a factor before Justice André at the July 22, 2013 motion;

ii. The recommendations of the OCL are challenged by the Mother and are untested by cross-examination or opposing report at this time.

iii. Aside from the OCL stating there should be no more than 4 days between parenting times, there are no exceptional circumstances in this case. I do note that the Father had suggested before Justice André that he have 8 consecutive days with the Children – a proposal rejected by Justice André;

iv. The proposed change is not that significant – 3.5 days per months. However, this factor assists the Father but, on the other hand, given that trial is likely only 5 months away, this minor change is difficult to justify a change to the routine established in the July 22, 2013 Interim Order. The Children have gotten use to the present access schedule. A change would only be for a few months before the trial judge who, with a full record, will make a final determination on the issues of custody and access;

v. Aside from the OCL’s recommendation, there is no other evidence to support a change to the July 22, 2013 Interim Order. There is no evidence that the Children are suffering in any way as a result of the present access regime or would benefit with the additional hours with the Father;

vi. The access issue was fully argued before Justice André on extensive evidence. Both parties proposed access schedules. In fact, the Father proposed a straight 8 day/night period with the Children. For reasons set out by Justice André, this was not in the Children’s best interests. One of the comments made by Justice André was that the proposed schedule appeared to be an attempt by the Father to get more than 40% of access time with the Children in the hope of reducing his child support obligation. Within a short time, the Father attempted to change the July 22, 2013 Interim Order but was unsuccessful. The Father now seeks to increase his access time by 83.5 hours per month or 3.5 days per month. This would be the third time in a year that the issue of access is being considered by the court. I do note that the Father’s proposed access change would result in him having access approximately 43% of the time, raising the question whether this is another attempt by the Father to trigger s. 9 of the Child Support Guidelines to reduce his child support; and

vii. On March 17, 2014 Justice Daley requested the OCL to complete their investigation by August 2014 and make “full recommendations”. This has yet to have been completed by the OCL.

[30] I simply cannot conclude that it is in the Children’s best interests that the present interim access regime be altered.

CONCLUSION

[31] The Father’s motion is dismissed.

[32] The Mother’s motion for a stay of the Father’s motion is dismissed.

[33] The Mother’s motion for an order requiring the Father to obtain leave for all future motions is adjourned sine die.

COSTS

[34] Any party seeking costs shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 3 pages, with attached Costs Outline and any authorities.

[35] Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 3 pages with any authorities relied on attached.

[36] There shall be no reply submissions without leave.

Ricchetti, J.

Date: May 30, 2014