SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 431/10 (Milton)

DATE: 2014-07-11

RE: A.F. v. D.G.

BEFORE: JUSTICE VAN MELLE

COUNSEL:
Mr. A.F. representing himself.
Ms. D.G. representing herself.

HEARD: July 10, 2014

E N D O R S E M E N T

[1] Mr. A.F. brings this Motion to Change Justice Goodman’s Judgment and my subsequent Orders. He asks for the following:

1. As access to the children is not resolved yet he proposes Mr.
   Joachim Mingorance as a qualified supervisor;

2. A reduction in s. 7 expenses to be paid by Ms. D.G.;

3. An increase in Child Support based on Ms. D.G.’s 2013
   income which he estimates to be $87,000.00;

4. An order allowing him to move the children from Halton to
   Hamilton or alternatively an order allowing him to move the
   children 50 km from his place of employment;

5. Costs relating to trial.

[2] Ms. D.G. seeks an order:

1. That all information, especially that concerning the children, be accompanied with an English translation;

2. That the address of where Mr. A.F. and the children will be staying over the summer be provided to her for service
   purposes;

3. Setting aside Mr. A.F.’s Motion(s) to Change on the basis that the documents were not served or filed correctly;

4. That all receipts and tax documentation pertaining to section 7 expenses for all of 2012, 2013 and January 2014 to present be produced within 1 week;

5. Any and all extraordinary expenses beyond what can be proved or necessary be returned to Ms. D.G. in a lump sum;

6. All e-mails mentioned in Dr. Goldstein’s June 22, 2012 report regarding the Willow Centre’s invitation for Ms. D.G. to be reintroduced to the children be released to her and the court;

7. That the restraining order in Justice Goodman’s Judgment be cancelled.

[3] I will deal with Mr. A.F.’s requests first. While I laud Mr. A.F.’s attempts to put forward a supervisor so that Ms. D.G. can finally commence access to the children, any name put forward by him will be viewed with suspicion by Ms. D.G.. Indeed, despite the fact that Ms. D.G. is not seeing the children as a result of her own failure to propose an adequate supervisor she states, yet again, that Mr. A.F. is withholding the children from her. In fact, on page 8 of her July 3, 2014 affidavit there is a title: “Children are have been [sic] withheld from me.” She also outlines what she believes to be Mr. Mingorance’s relationship with Mr. A.F. and why he would be biased against her.

[4] I have told Ms. D.G. on numerous occasions that it is up to her to provide names and resumés for proposed access supervisor. I have described to her the qualifications for an access supervisor. I have suggested names to her. The only supervisor she has suggested is an access centre. I explained to her that in these circumstances an access centre is not appropriate – an individual is required. She attends today with the hourly rate of the supervisors that I have suggested in the past, saying that the supervisors are all too expensive. She does not bring any of her own suggestions. I told Ms. D.G. that it is critical that she start access as soon as possible. She earns more than $87,000.00 per year. Yes, she has to pay child support but she should take $10,000.00 from her earnings if necessary and get the process started.

[5] Each time this matter is before me I have indicated to Ms. D.G. that I would like nothing better than to get her access started. She, however, seems completely unable to comply with the conditions that I have set out.

[6] For a long time Ms. D.G. was waiting for her appeal to be heard. She initially appealed to the Divisional Court, but was then told that as she was appealing a final order she needed to go to the Court of Appeal. This took some 18 months. September 23, 2013 she was granted a first extension by Weiler J.A. requiring her to perfect the appeal by October 30, 2013. A second extension was granted by Doherty J.A. requiring her to perfect her appeal by December 2, 2013. A third extension was granted by Rosenberg J.A. requiring her to perfect by December 16, 2013. The Registrar dismissed the appeal for delay on December 31, 2013. A fourth extension was granted by Laskin J.A. on February 6, 2014 requiring the appeal to be perfected by February 28, 2104. The Registrar’s dismissal order was set aside. The Registrar dismissed the appeal for delay for the second time on March 6, 2014. The motion to set aside the Registrar’s dismissal order and for a fifth extension was refused by Doherty J.A. on March 14, 2014.

[7] On May 8, 2014 Ms. D.G. asked the Court of Appeal for an extension of time to have Doherty J.A.’s dismissal decision reviewed by a panel of the Court of Appeal.

[8] Lauwers, J.A. dismissed the application for an extension of time. In discussing the merits of her appeal Lauwers, J.A. noted that in child custody cases the standard of review is very high. He stated that Ms. D.G. raised two substantive legal arguments. The first related to the proper application of section 10 of the Health Care Consent Act, 1996, S.O. 1996, c. 2 Schedule A, which obliges a health care practitioner to obtain a person’s consent to treatment or the consent to treatment of a person’s substitute decision-maker, which in the case of a child, is the custodial parent. Ms. D.G. submitted that Mr. A.F. was only an access parent when he admitted giving consent to the children’s therapy or treatment by the Willow Centre.

[9] Lauwers, J.A. found that the element of Justice Hourigan’s Order giving Ms. D.G. interim custody of the children was set aside on a without prejudice basis by Justice Coats on May 20, 2010. He found that both parents had custody and therefore the right to consent to treatment at the time that the consent was given. Lauwers, J.A. thusly did not see any merit in the “consent to treatment” argument.

[10] Lauwers, J.A. dealt with Ms. D.G.’s second legal argument which was that the access conditions set by the trial judge (Goodman, J.) were improper. This related to paragraph 12 of Goodman, J’s Judgment:

Notwithstanding the aforementioned, Ms. [G.] may be permitted access to [X.] and [S.] if the medical professionals or therapists at the Willow Centre, or Dr. Goldstein deem it appropriate and beneficial for the children in the furtherance of the counselling or treatment of the children to engage in such supervised visits with their mother. This discretion for supervised access shall remain in the sole discretion of the aforementioned medical professionals or therapists and shall be undertaken under the supervision of a designated mental health care professional treating [X.] and [S.]

[11] Ms. D.G. argued that Goodman’s Judgment fell afoul of the Strobridge decision (1994), 18 O.R. 93d) 753, 1994 875 (ON CA), 72 O.A.C. 379, 115 D.L.R.(4th) 489,4 R.F.L.(4th) 169, [1994] O.J. No. 1247, 1994 CaswellOnt 400 (Ont. C.A.) where Appeals Justice Coulter Osborne specifically relied on a child protection decision when he stated that the application judge erred in assigning to the London Custody Access Project the decision whether and under what circumstances access would be exercised as there is no statutory or other authority which would permit this delegation.

[12] Laskin J.A. in his February 5, 2014 endorsement felt that this might be an arguable issue, but Lauwers J.A. felt that the merits of this particular argument had to be examined in light of the custody and access orders that were made after Justice Goodman’s Judgment. In particular he felt that my having taken over the supervision of this proceeding when Justice Goodman left the Central West Region and my subsequent orders dealing with custody and access superseded Justice Goodman’s Judgment. Because certain issues had arisen regarding Dr. Goldstein and the Willow Centre (Ms. D.G. had filed complaints about both), I took over the decision as to who would supervise access. Appeal Justice Lauwers held that the questionable part of Goodman J’s judgment no longer had any currency.

[13] Interestingly Lauwers, J.A. stated at paragraph 28:

It is clear to me, from the applicant’s submissions, that the thrust of her appeal is not about the legal issues she raises. Her real issue is about the respondent’s alleged sexual abuse of the children, and the failure of Dr. Goldstein and the assessment facility to substantiate her theory.

[14] At paragraphs 35 - 37 he stated:

Like my judicial colleagues before me, I have grave concerns about the applicant’s refusal to make arrangements for access to her children. She explains her reasons for doing so. First, she asserts that she would be seen as submitting to the trial judge’s access order, the legitimacy of which she utterly disputes. I do not find this reason compelling since the access conditions are now totally in the control of R.S.J. Van Melle.

Second, she is afraid that the access visits would become an engine by which the respondent could amass adverse evidence about her parenting abilities. That too is something that can be addressed by R.S.J. Van Melle.

Third, she believes that the best interests of her children required her to dedicate all of her attention to the success of this appeal, leaving none for access visits. This appeal, in my view, should not continue to be an obstacle in the way of normal access visits by the applicant. There is no reason to expect that she would change her behaviour until the appeal is resolved.

[15] I have cited these paragraphs from J.A. Lauwers because he says, in a slightly different way, what I have said each time this matter has been before me and that is, no matter how Ms. D.G. feels about the custody and access orders in this proceeding she must comply with my Orders so that she can see her children. Mr. A.F. wants her to see the children. He understands that it is important for the children to have a relationship with their mother. So much so that he has put forward his own suggestions for an access supervisor.

[16] Mr. A.F. submits that Ms. D.G.’s s. 7 contributions should be reduced because his daycare expense has reduced. He is also not seeking a contribution to any other s. 7 expenses. As of August 1, he would like Ms. D.G. to contribute $178.90 as her 45% contribution to the after-tax daycare cost. Prior to August 1 there is still an amount of $635.00 owing. Taking everything into account, these amounts are completely reasonable and an order will issue accordingly.

[17] Mr. A.F. is asking that child support be varied to reflect Ms. D.G.’s actual income which he estimated to be $87,000.00. Ms. D.G. has not provided her 2013 Income Tax Return, but when asked acknowledged that her 2013 income is $87,463.20. Mr. A.F. asks that child support be set at $1,257.00 commencing April 1, 2014. That order will issue.

[18] Justice Goodman ordered that income disclosure would take place annually within 30 days of the anniversary date of his Judgment. The parties are to comply with this provision.

[19] Mr. A.F. is currently living in a two bedroom apartment in Oakville with the children. He would like to move to a larger apartment. Justice Goodman’s Judgment stipulated that he was not to move with the children from Halton without the consent of the court. Unfortunately as I have outlined above, Ms. D.G. is not exercising access. An order will issue permitting Mr. A.F. to move to Hamilton. If he finds an apartment outside of Halton Region and not in Hamilton he may send me a letter with a copy to Ms. D.G. providing all the information on the proposed move and I will make a further order in this regard if necessary.

[20] Mr. A.F. is seeking his costs for trial. The appeal has now been dealt with. He is entitled to his costs for trial. He says that his legal costs were $85,000.00 to get to trial and that he lost income of $5,500.00 as a result of the actual trial. The trial resulted from Ms. D.G.’s intractable position. I award Mr. A.F. costs in the amount of $80,000.00.

[21] I turn now to the relief claimed by Ms. D.G..

[22] Ms. D.G. has not provided any information as to what documents she has received that need to be translated into English. Without that information I am not going to make a blanket order requiring the translation of documents into English.

[23] I am not going to order Mr. A.F. to provide his summer address. His address for service remains the address on file.

[24] I am satisfied that Mr. A.F.’s Motion materials were properly issued and served. Since I am seized of this matter and all the materials must come through my office the normal procedure does not apply. In any event, Ms. D.G. had plenty of notice of the Motion(s) and was able to respond.

[25] Mr. A.F.’s claim for s. 7 expenses are totally reasonable. I am not going to order him to produce any further receipts.

[26] I am not going to order Dr. Goldstein to produce any e-mails. There is no basis in the materials for an order such as this. Ms. D.G. has asked repeatedly for documentation that formed the basis of Dr. Goldstein’s report. Dr. Goldstein had input into her previous requests. Dr. Goldstein was not served with these materials. As well, Dr. Goldstein’s report was dealt with at trial by Justice Goodman. It is time to move on from the report, find an appropriate access supervisor and put supervised access into place for Ms. D.G..

[27] It will however be up to Ms. D.G. to put forward an appropriate access proposal having reference to my previous orders where I have outlined the conditions for access.

[28] There are no materials before me to explain what has changed and why I should cancel the restraining order.

[29] I allowed Ms. D.G.’s mother, D.G., to speak to me on the motion this morning. She had questions relating to the restraining order. I am not sure what those questions were as I cut her off after she spent a great deal of time going through provisions of the Courts of Justice Act and the Children’s Law Reform Act which really have no bearing on the case before me. I urge D.G. to get legal advice. If she feels that the restraining Order against her should be discontinued she will need to file a motion, with a supporting affidavit.

[30] In summary the following Order will issue:

1. Commencing April 1, 2014 Ms. D.G.’s child support obligation is increased to $1,257.00 per month based on her 2013 income of $87,463.20.

2. Ms. D.G.’s contribution to the children’s section 7 expenses (daycare) is varied to $178.90 per month commencing August 1, 2014. $635.00 remains due and payable for section 7 expenses prior to August 1, 2014.

3. The parties are reminded that they are to comply with Justice Goodman’s Judgment that income disclosure be made annually.

4. Mr. A.F. has the Court’s permission to move the children from Halton to Hamilton. If he wishes to move anywhere else he must write to me with a copy to Ms. D.G. setting out the reasons and the details for a proposed move.

5. Ms. D.G. is to pay Mr. A.F. $80,000.00 for costs for the trial.

6. The relief claimed by Ms. D.G. is dismissed.

7. There will be no costs for today.

Van Melle J.

DATE: July 11, 2014

COURT FILE NO.: 431/10 (Milton)

DATE: 2014-07-11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FABER v. GALLICANO

BEFORE: JUSTICE VAN MELLE

COUNSEL: Mr. A.F. representing himself.

Ms. D.G. representing herself.

ENDORSEMENT

Van Melle J.

DATE: July 11, 2014