ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-12-1698
DATE: 20140120

BETWEEN:

JESSIKA ASCANI
Applicant

– and –

PATRICE ROBERT
Respondent

Pascale G. Turcotte, for the Applicant

Self‑represented

HEARD: January 3, 2014 at Ottawa

REASONS FOR DECISION

kershman J.

Introduction

[1] Three motions have been brought: two by the Respondent (“Father”) and one by the Applicant (“Mother”).

[2] The Father’s first motion seeks the following relief:

1. Interim sole custody of Vanessa Teya Robert‑Ascani, born August 12, 2009;
2. Access to the Mother with the place of exchange to be determined;
3. Police enforcement of the custody order;
4. Full disclosure from the Children’s Aid Society of all documents relating to the child; and
5. Costs.

[3] The Father’s second motion seeks the following relief:

1. An order striking out various paragraphs of the Mother’s affidavit dated November 8, 2013, as set out in the Notice of Motion;
2. An order dismissing the Mother’s motion originally set for November 20, 2013 on the grounds that the motion is an abuse of process; and
3. An order prohibiting the Mother from bringing further motions without leave until the Divisional Court renders a judgment in relation to two orders of Smith J. currently under appeal.

[4] The Mother’s motion seeks the following relief:

1. Interim sole custody of the child;
2. An order that the exchange of the child is to take place at school and not at the end of daycare;
3. Child support from the date of separation, being August 1, 2011 or from the date of issuance of the Notice of Application, being July 9, 2012;
4. Section 7 expenses in proportion to the parties’ incomes retroactive to the date of separation, being August 1, 2011 or from the date of issuance of the Notice of Application, being July 9, 2012;
5. Security for costs from the Father in the amount of $50,000; and
6. Costs

Consent

[5] On consent, at the motion, the parties agreed to the following:

1. to share section 7 expenses going forward in proportion to their incomes with a requirement that any section 7 expenses for activities shall be agreed to in writing or by e‑mail by the parties;
2. the appointment of the Office of the Children’s Lawyer, with a social worker assist. An order to that affect has been signed;
3. In the Mother’s factum and at the motion, the Mother no longer sought the vexatious litigant relief. Instead, she sought a mutual order under Rule 14(21) of the Family Law Rules that would prevent the parties from bringing any further motions. On consent, both parties agreed that they would not bring any further motions without leave of the Court. Appeals were excluded from this provision.

[6] The appropriate endorsement was made in the Endorsement Book.

Factual Background

[7] The parties began a relationship on or about August 12, 2008. They were never married.

[8] Vanessa was born on August 12, 2009. After a number of months, the Mother moved out of the Father’s home. In September 2009, the parties signed an agreement with respect to joint custody and child support, which was ratified by the Quebec Superior Court on November 18, 2009 (“Quebec Order”).

[9] The parties resumed cohabitation for a period of time although the amount of time is disputed. The parties finally separated on August 1, 2011.

[10] Each party argues that they were the primary caregiver of the child after August 1, 2011. By June 2012, the parties had come to a 50/50 custody regime.

[11] A motion was heard by the Honourable Justice R. Smith who rendered a decision on January 11, 2013 wherein he granted the Mother’s motion and found that the Ontario Superior Court of Justice, Family Branch, at Ottawa had jurisdiction to determine the issues of custody, access and child support for Vanessa as well as spousal support.

[12] The Father’s motion to stay the application citing a lack of jurisdiction of the Ontario Superior Court was dismissed.

[13] On May 6, 2013, Smith J. made an order that the Father pay the Mother’s costs of the motion $18,000 plus $274 plus HST for disbursements, as well as an additional disbursement for a Quebec lawyer of $3,185.53.

[14] Both of these decisions have been appealed by the Father to the Divisional Court. The appeals will be heard on January 27, 2014.

[15] A motion was heard by Justice Beaudoin on August 12, 2013. At that time, he ordered that the Mother could enrol Vanessa at Georges Vanier Catholic School in Kanata, Ontario, without the Father’s consent. Beaudoin J. refused to disturb the 50/50 custody regime currently in place.

Interim Sole Custody of the Child together with Access to the other Party and Police Enforcement of the Order

Father’s Motion

[16] The Father argues that there is high conflict between the Mother and himself and that the current 50/50 custody regime does not work due to the high conflict. He argues that the child is showing signs of stress and discomfort because of the Mother’s behaviour. He says that giving him interim sole custody of the child is in Vanessa’s best interests.

[17] The Father submits that on the principle of comity between a superior and an inferior tribunal, it makes common sense to wait for the outcome of the Ontario Divisional Court decision on the jurisdictional matter before proceeding to deal with the custody of the child, except on any matter related to her protection.

[18] The Father has brought this interim custody motion because he feels that there are compelling reasons to change the custody arrangements for the best interests of the child.

[19] The Father relies on the case of Kimpton v. Kimpton, 2002 2793, Justice J. Wright stated at para. 8:

8 I am satisfied that it is important for a higher authority in Ontario to issue a modern judgment reaffirming the golden rule and impressing upon litigants that existing arrangements for the care of children which have been agreed upon by the parties will not be disturbed by a court on an interim motion unless it is clearly shown that they constitute a danger to the child or there is some other compelling reason for change.

[20] The Father provides a list of what he claims to be the Mother’s unreasonable behaviour which are detrimental to the child and which are sufficient to grant him interim sole custody. These reasons are set out at para. 62 of the Father’s factum. Some of these reasons are as follows:

1. The Mother’s refusal to acknowledge the Quebec Order;
2. That the Mother has recklessly spent the monies received from the sale of their home;
3. That the Mother suffers from mental health issues;
4. A series of complaints by the Father about the Mother’s behaviour including her lying to the Court, making false complaints to the Children’s Aid Society, planning to have Vanessa meet with a social worker without the Father’s consent; ongoing anger issues and refusing to communicate.

[21] Other reasons were cited, however, they are considered by the Court to be minor.

Mother’s Motion

[22] In the Mother’s motion, she argues that she should be granted interim custody of the child because it is in the best interests of the child in accordance with section 24 of the Family Law Act, R.S.O. 1990, c. F.3.

[23] She argues that:

1. she has been the primary caregiver of Vanessa since birth;
2. she has provided Vanessa with stability and a positive home environment;
3. she is the parent most likely to promote and encourage the love, affection and emotional ties between the child and her Father, as well as her grandparents including the Father’s mother.

[24] There is an affidavit from Suzanne Antichan, the Father’s own mother, sworn November 15, 2013 stating that the Mother has been the primary caregiver of Vanessa and represents stability in her life.

[25] She believes that the Mother is the most likely parent to foster her relationship between her and Vanessa. She states that she only sees Vanessa when she is with the Mother and that she has had no relationship with her son since 2010. Lastly, she states that she has previously refused to support her son’s (the Father’s) move to be awarded sole custody.

[26] The Mother argues that granting her interim custody of Vanessa is in the best interests of the child for the following reasons:

i. It prevents physical contact between the parties;
ii. It minimizes Vanessa’s time spent in the car and maximizes her time with each parent;
iii. It is the least obstructive schedule for Vanessa and is not aimed at reducing time with one parent; and
iv. It prevents the Respondent from scheduling activities during the Applicant’s custodial time.

Analysis

[27] The Court is aware of the two orders of Smith J. are under appeal. The Father’s argues that the Quebec Order provided that he would have custody of the child.

[28] In the case of Ascani v. Robert, 2013 ONSC 273, Smith J. found on January 11, 2013 that his decision would supersede the Quebec Order ratifying the terms of the void custody and parenting agreement. He found that it would be in the best interests of the child to have her custody and access determined promptly as she is habitually resident in Ontario and has a substantial connection to Ontario. He states the following at paras. 48‑50:

Disposition of Issue #5

[48] After weighing the above factors, I would supersede the Québec order ratifying the terms of the void custody and parenting agreement which gave the province of Québec jurisdiction to determine matters of custody and access of the child. I find it would be in the best interests of the child to have her custody and access determined promptly, she is habitually resident in Ontario and she has a substantial connection with Ontario, substantial evidence of her best interests is available in Ontario, and that the balance of convenience favours Ontario.

Disposition of the Motions

[49] I grant the applicant’s motion and find that the Superior Court of Justice, Family Branch at Ottawa has jurisdiction to determine the issues of custody, access, and child support for Vanessa, as well as spousal support.

[50] The respondent’s motion to stay the application for lack of jurisdiction of the Ontario family court is dismissed.

[29] In the case of Wilson v. The Queen, 1983 35 (SCC), [1983] 2 S.C.R. 594 at pp. 600‑601, the Supreme Court of Canada endorsed the following passages from Canadian Transport (U.K.) Ltd. v. Alsbury, 1952 218 (BC CA), [1953] 1 D.L.R. 385 (BCCA):

[T]he order of a Superior Court is never a nullity; but, however wrong or irregular, still binds, cannot be questioned collaterally, and has full force until reversed on appeal.

The order under review is that of a Superior Court of Record, and is binding and conclusive on all the world until it is set aside, or varied on appeal. No such order may be treated as a nullity.

[30] Therefore, based on the Wilson case, the Court finds that the decisions of Smith J. are binding and conclusive in that to date they have not been varied.

[31] Furthermore, Beaudoin J. in his Reasons given on August 12, 2013 chose not to disturb the current parents’ 50/50 custody regime.

[32] The Court has reviewed the claims at para. 62 of the Father’s factum of unreasonable behaviour by the Mother:

1. The Court does not find that there is any evidence of the Mother suffering from mental health issues.
2. The Court finds that the Mother has the right to spend her money in whatever way she chooses, including for legal fees to deal with this legal process.
3. The Court finds that the Father continues to bring up arguments about the Quebec Order notwithstanding that Smith J. has decided that Ontario courts have jurisdiction and that the Ontario Court does not accept the Quebec Order.
4. The Court does not find any of the other claims by the Father of the Mother’s unreasonable behaviour to have merit.

[33] The Father’s argument that there has been a material change in circumstance is not accepted by the Court. In situations of conflict, it is inevitable one or both of the parties or third parties will feel the effects of conflict, whether they be adults or children. In this case, the Father acknowledges that since August 2013, there have only been two incidents where there have been angry words and outbursts between the parties and that the child is feeling the effects of the conflict.

[34] The Court finds that these incidents of conflict are not a material change of circumstance.

[35] As to the Mother’s motion for interim sole custody, the Court does not believe it to be appropriate at this time. The Office of the Children’s Lawyer has been appointed which will provide further insight into the situation. Therefore, the Father’s claim for sole interim custody fails.

[36] The current custody regime will continue with some minor modifications in order to reduce the conflict and to reduce the parties having to deal with each other in person.

[37] This Court orders that the custody regime be modified as follows:

Week 1

Drop‑off at daycare
Pick‑up at daycare

Monday
Mother
Father

Tuesday
Father
Mother

Wednesday
Mother
Mother

Thursday
Mother
Father

Friday
Father
Father

Saturday – Child resides with the Father

Sunday – Child resides with the Father

Week 2

Drop‑off at daycare
Pick‑up at daycare

Monday
Father
Father

Tuesday
Father
Mother

Wednesday
Mother
Father

Thursday
Father
Mother

Friday
Mother
Mother

Saturday – Child resides with the Mother

Sunday – Child resides with the Mother

[38] The Court orders that this pick‑up and drop‑off regime shall commence on January 22, 2014 with the Mother dropping off the child at daycare and picking up the child at daycare as stipulated in the schedule above for Week 1.

[39] All pick‑ups and drop‑offs shall occur at daycare, which is in the same location as the school.

[40] The child will only attend extracurricular activities she is registered in when she is with the parent who registered her.

[41] The Court orders that the parties communicate through the use of a communications book, by e‑mails and text. All communication must be civil and avoid any hostility.

[42] Furthermore, the Court orders that the parties shall communicate respectfully with the other and shall communicate respectfully about the other in the company of the child and third parties.

[43] There will be no police enforcement clause. The parties will have to respect the order of this Court. Failure to do so can result in dire consequences.

[44] The Court notes that while the Father seeks custody, he has not filed an Answer, a Financial Statement or an affidavit in accordance with Rule 35.1 of the Family Law Rules, O. Reg. 441/99, nor has he provided written financial disclosure.

Child Support and Section 7 Expenses

Mother’s Position

[45] The Mother seeks retroactive and current child support from the Father based on his income of $110,000 and her income of $33,982.

[46] As stated previously, the Father has not filed a Financial Statement however he did not dispute his income of $110,000 per year.

Father’s Position

[47] The Father states that he is not prepared to pay set‑off child support to the Mother because he argues that any support paid will be used to fund the Mother’s ongoing litigation against him.

Analysis

[48] The Court is not prepared to deal with the issue of retroactive child support or retroactive section 7 expenses. That will be left to the trial judge to decide.

[49] As to the issue of current child support, section 31 of the Family Law Act requires child support to be paid.

[50] The Court finds that set‑off child support is payable by the Father to the Mother based on the aforesaid incomes in accordance with the Child Support Guidelines with the Father living in Quebec.

[51] Based on the Father’s income of $110,000 and the Mother’s income of $33,982, the set‑off Guidelines requires the Father to pay the Mother $293.25 commencing January 1, 2014 and monthly thereafter.

Security for Costs

Mother’s Position

[52] The Mother argues that the Court should order the Father to pay security for costs in the amount of $50,000 in accordance with Subrule 24(13) of the Family Law Rules. She also relies on several cases including Carroll v. Carroll, 2001 26487 (ON CJ), Chatur v. De Los Reyes, 2012 ONCJ 527 and Hodgins v. Buddhu, 2013 ONCJ 137.

Father’s Position

[53] The Father argues that security for costs should not be awarded and relies on Subrule 24(13) of the Family Law Rules that this case is not a waste of time or a nuisance.

Analysis

[54] Subrule 24(13) of the Family Law Rules states:

ORDER FOR SECURITY FOR COSTS

(13) A judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:

1. A party ordinarily resides outside Ontario.
2. A party has an order against the other party for costs that remains unpaid, in the same case or another case.
3. A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.
4. There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.
5. A statute entitles the party to security for costs. O. Reg. 114/99, r. 24 (13).

[55] While it is true that the Father resides in Quebec and there has been an Order against him for costs which remains unpaid, that Order is under appeal.

[56] The only other provision that would be applicable is that “there is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.”

[57] Having reviewed the three cases, they can be distinguished based on their facts.

[58] In the Chatur case, S. O’Connell J. states that Mr. Chatur’s conduct had been reckless throughout the proceedings which had significantly increased Ms. De Los Reyes legal costs.

[59] In the case of Hodgins v. Buddha, S. O’Connell J. states at paras. 18 and 19:

18 The mere satisfaction of one or more of the criteria under subrule 24(13) is not sufficient to entitle Ms Hodgins to security for costs. It also must be just for such an order to be made. Generally, courts do not wish to see the merits of a case determined by a party's inability to post security for costs. …

19 In cases involving custody and access, where the best interests of the child are the paramount consideration, it has been held by a number of courts that security for costs should only be granted in exceptional circumstances …

(footnote omitted)

[60] In the case of Carol v. Carol, Justice P.T. Bishop ordered security for costs in the amount of $5,000 and set out various reasons for that decision.

[61] In the present case, the Court is not satisfied that this case is a waste of time or a nuisance, particularly as it relates to the best interests of the child.

[62] The Court is not satisfied that the criteria for security costs have been met.

[63] Accordingly, the Court finds that this is not an appropriate case to order security for costs and accordingly, that claim for relief is dismissed.

Children’s Aid Society Disclosure

[64] The issue of disclosure by the Children’s Aid Society was not argued in Court by either party. Accordingly, this part of the motion is dismissed. The Court does not view that disclosure as necessary based on the decisions made herein.

Motion by the Father to Strike out Various Portions of the Affidavit of the Mother dated November 8, 2013 based on Relevance, Hearsay and Argumentative and Speculation

Father’s Position

[65] The Father relies on the case of Evans v. Evans and Finkenzeller, 1998 18228 ON SC in relation to what can be included in an affidavit.

[66] In that case, Aston J. states at paras. 3 and 4 as follows:

[3] Evidence by affidavit must, generally speaking, meet the same test as oral testimony. It must be factual. It must be relevant to an issue before the court. If it is hearsay, it must fall within one of the exceptions to the “hearsay rule”. It must be within the personal knowledge of the deponent unless it complies with subrule 19(2) of the Family Court Rules, which provides:

(2) An affidavit for use on a motion may contain statements of information received by the deponent and which the deponent believes to be true, if the source of the information and the fact of the belief are specified in the affidavit.

[4] It is not appropriate for a witness to state as a fact some conclusion that must be drawn by the court itself. It is only appropriate for the witness to swear to the facts from which the court may draw its conclusions.

[67] The Father relies on section 19(2) and 22 of the Family Law Rules in order to strike out various portions of the Mother’s Affidavit.

[68] Subrule 19(2) of the Family Law Rules provides:

ACCESS TO LISTED DOCUMENTS

(2) The other party is entitled, on request,

(a) to examine any document listed in the affidavit, unless it is protected by a legal privilege; and
(b) to receive, at the party’s own expense at the legal aid rate, a copy of any document that the party is entitled to examine under clause (a). O. Reg. 114/99, r. 19 (2).

[69] Rule 22 of the Family Law Rules reads as follows:

RULE 22: ADMISSION OF FACTS

MEANING OF ADMISSION THAT DOCUMENT GENUINE

22. (1) An admission that a document is genuine is an admission,

(a) if the document is said to be an original, that it was written, signed or sealed as it appears to have been;
(b) if it is said to be a copy, that it is a complete and accurate copy; and
(c) if it is said to be a copy of a document that is ordinarily sent from one person to another (for example, a letter, fax or electronic message), that it was sent as it appears to have been sent and was received by the person to whom it is addressed. O. Reg. 114/99, r. 22 (1).

REQUEST TO ADMIT

(2) At any time, by serving a request to admit (Form 22) on another party, a party may ask the other party to admit, for purposes of the case only, that a fact is true or that a document is genuine. O. Reg. 114/99, r. 22 (2).

COPY OF DOCUMENT TO BE ATTACHED

(3) A copy of any document mentioned in the request to admit shall be attached to it, unless the other party already has a copy or it is impractical to attach a copy. O. Reg. 114/99, r. 22 (3).

RESPONSE REQUIRED WITHIN 20 DAYS

(4) The party on whom the request to admit is served is considered to have admitted, for purposes of the case only, that the fact is true or that the document is genuine, unless the party serves a response (Form 22A) within 20 days,

(a) denying that a particular fact mentioned in the request is true or that a particular document mentioned in the request is genuine; or
(b) refusing to admit that a particular fact mentioned in the request is true or that a particular document mentioned in the request is genuine, and giving the reasons for each refusal. O. Reg. 114/99, r. 22 (4).

WITHDRAWING ADMISSION

(5) An admission that a fact is true or that a document is genuine (whether contained in a document served in the case or resulting from subrule (4)), may be withdrawn only with the other party’s consent or with the court’s permission. O. Reg. 114/99, r. 22 (5).

Mother’s Position

[70] The Mother does not take a position as to the appropriateness of those paragraphs.

Analysis

[71] The Court finds that the opinions and conjecture of a deponent are not proper evidence before the court, particularly those that make assertions about the motivation or thoughts or feelings of someone else. Accordingly, the portions of the Wife’s November 8, 2013 affidavit will be struck out on the basis that they are either irrelevant, hearsay or argumentative and speculative. The paragraphs to be struck out are 11, 13, 15 (last sentence only), 24, 25, 26, 27, 36, 39, 43, 46, 47, 73, 74, 79, 84, 85, 86, 93 and 95.

Costs

[72] The success in this matter has been divided. Accordingly, there will be no order as to costs.

[73] Order accordingly.

Mr. Justice Stanley J. Kershman

Released: January 20, 2014

COURT FILE NO.: FC-12-1698
DATE: 20140120

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

JESSIKA ASCANI
Applicant

– and –

PATRICE ROBERT
Respondent

REASONS FOR DECISION

Kershman J.

Released: January 20, 2014