BARRIE COURT FILE NO.: FC-06-285-02

DATE: 20140910

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brian James Leggatt, Applicant

AND:

Frances Dianna Leggatt, Respondent

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL: B.M. Hayes, Counsel for the Applicant S. Powell, Duty Counsel for the Respondent J. Rose, Counsel for the Office of the Children’s Lawyer

HEARD: August 28, 2014

ENDORSEMENT

[1] The applicant, Brian James Leggatt, brings a motion for summary judgment for a final order granting him sole custody of one of the children of the relationship, Nichole Frances Leggatt (date of birth March 7, 2001). The motion also seeks related relief, including issues concerning child support and spousal support. The respondent, Frances Dianna Leggatt, opposes the relief sought on the basis that there are triable issues that ought to be determined on a full evidentiary record, including her right to cross-examine experts. As part of his motion, the applicant filed the affidavit of Dr. Sol J. Goldstein, a psychiatrist who has been involved with Nichole’s treatment.

Background

[2] The parties were married on June 15, 1991 and separated on February 4, 2006. They were divorced in 2009. There are two children of the marriage, Joshua Brian Leggatt, born January 29, 1997 and Nichole Frances Leggatt, born March 7, 2001. Joshua resides with his mother and in accordance with his own wishes, has no relationship with his father, the applicant. Nichole now resides with the applicant and the respondent is prohibited by court order from communicating with her directly or indirectly.

History of the Litigation

[3] The litigation started in 2006 and, according to the applicant’s counsel, there are twenty-five court orders with respect to the issues between the parties. Significantly, there was a six-day trial before Justice Rogers, resulting in a lengthy judgment dated July 18, 2011. That trial dealt with custody, access, and financial issues. The mental health of the respondent mother was an issue at trial. As Justice Rogers noted at para. 22, “The testing on Ms. Leggatt showed that she has a mild histrionic disorder with anxious, even paranoid features.” At para. 60, Justice Rogers noted, “There are many incidents that caused the court to be concerned as to Ms. Leggatt’s behaviour since separation.” Justice Rogers received a report from a psychologist, Dr. Telagdi, and she considered the counselling provided by Dr. S. Goldstein, a psychiatrist. With respect to the respondent mother’s influence on the two children, she noted at paras. 63 and 64:

[63] This case is one of the rare family law cases where denunciation is called for. The strong language used herein is carefully considered and purposeful. Ms. Leggatt’s behaviour should be denounced. She has turned Josh against his father. She is attempting to turn Nichole against her father. As well, in a truly practical sense, she has deprived Josh of a concerned, interesting and capable parent who has much to offer the boy, especially as he enters his teens.

[64] The court is also concerned that Ms. Leggatt faces many challenges as a parent. Her histrionic personality disorder with its paranoid tendencies will no doubt become florid from time to time as she faces life’s inevitable stresses. The rigidity and immaturity that are present when this disorder affects her life are not conducive to good parenting. The teenaged Josh may suffer from this and his mother has ensured that he has no other parental figure to help him. It is, therefore, critically important Nichole’s father be a strong and important presence in her life.

[4] After considering the evidence before her, Justice Rogers ultimately made a joint custody order with respect to Nichole, and detailed orders with respect to communication and related access issues. The essence of the joint custody order was a week about arrangement. Justice Rogers also required that the respondent mother seek out a therapeutic program for treatment of her personality disorder. To date, she has not done so, submitting that cost remains an issue for her.

[5] The status quo remained in place until the events of 2013 took place. On June 13, 2013, Nichole refused to go to her father’s home, and the matter returned to court for numerous appearances before Justice Wildman. The Office of the Children’s Lawyer was engaged on a private basis and Mr. Rose was retained as counsel to meet with Nichole. Justice Wildman in her endorsement, noted that the issue of alienation was very much alive, that Nichole had run away from home, and that police assistance was required to ensure compliance with her order directing that Nichole live with her father. Ultimately, Justice Wildman ordered:

Temporary without prejudice order to go that Nichole is to remain in her father’s sole care and custody until further order of the court. Neither her mother or her brother, Josh, is to have any contact with her, or to come within 200 metres of her or her school.

Since that order of August 8, 2013, Nichole has resided with her father, continued to see Dr. Goldstein, and has had no direct or indirect communication with her mother.

[6] In addition to updated affidavits from Dr. Goldstein, the court heard the views of the Children’s Lawyer and received a report from Daniel Musselman, a social worker and clinical agent for the Office of the Children’s Lawyer. As to Nichole’s views and preferences, Mr. Musselman indicated:

After meeting with Nichole, we have been able to determine her views and preferences. Nichole has not been very talkative and answers many questions with short answers or shrugs, however, she has been consistent throughout interviews and preferences. Nichole advised that things are “okay” at dad’s, but she misses her mother and Josh and wants to see them … She told us that she would be willing to go back to the week-about arrangement with her dad and mom, and that she would no longer attempt to run away. She feels this would be the best way to resolve this and be able to see her mother and brother.

[7] Dr. Goldstein provided an affidavit dated April 22, 2014. Dr. Goldstein indicated he had extensive experience providing clinical services to children in high-conflict separations, including separation situations involving parental alienation. After noting the respondent mother’s lack of intensive treatment, he opined:

I recommend that until the respondent mother and Josh have participated in intensive treatment, subject to the respondent mother being able to communicate with the writer, or a therapist designated by him, there should continue to be no contact between Nichole, her mother, her brother, or any friends or family members who have assisted in the alienation of Nichole from her father.

[8] Dr. Goldstein provided an updated affidavit dated August 13, 2014, noting that he continued to see Nichole on an ongoing basis. He noted that Nichole has excelled academically, and was doing well in care of her father, and her father’s partner. He noted in this affidavit that:

In her most recent interview, she did admit to missing her mother, the respondent, Frances Dianna Leggatt, her brother, Joshua Brian Leggatt, other friends, other adults, and the animals at her mother’s home. Nichole has also stated that she would enjoy returning to the initial regime of week-about residences.

[9] Once again, Dr. Goldstein could not recommend access or even supervised access visits with her mother. As he noted at para. 8:

Should Nichole be allowed any exposure at this time towards her mother and brother, I believe that Nichole would once again be at risk for future exposure to the atmosphere which produced previous behaviour and which resulted in activities which were highly destructive to her, resulting in her loss of capacity to think critically, to distinguish the difference between respecting the law and challenging or evading it through one’s actions. All of this has had a serious negative effect on her character, which is being dealt with in our therapeutic process.

Office of the Children’s Lawyer

[10] Mr. Rose, representing the Office of the Children’s Lawyer, has spent considerable time with Nichole and reviewed the report of Mr. Musselman. He acknowledged the no-contact recommendations from Dr. Goldstein and noted that there was no contrary evidence that Nichole would not be harmed by seeing her mother again absent her mother taking the recommended therapy. It was Mr. Rose’s view that sole custody should be to the father. There should be no direct contact by mother until she seeks and obtains treatment for her disorder. He recommended an exception for written communications through a process outlined in a previous order.

The Position of the Respondent

[11] It is the position of the respondent that this is not a proper case for the granting of a motion for summary judgment, which would have the effect of terminating a joint custody order, which was the result of a lengthy trial, and would grant sole custody to the father with no access to the mother. Counsel for the respondent noted that there has been no opportunity to cross-examine Dr. Goldstein or Dr. Telagdi, based on her earlier assessment.

Analysis

[12] A motion for summary judgment requires a consideration of Rule 16 of the Family Law Rules. In a case such as this, a judgment would make final a temporary order which granted the father sole custody without any access by mother replacing the previous joint custody order and week-about arrangement. Rule 16 provides that a party may make a motion for summary judgment for a final order without a trial. The party so moving is required to provide evidence, setting out specific facts showing that there is no genuine issue requiring a trial. The responding party may then respond to the motion, but, “may not rest on mere allegations or denials, but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” [Rule 16(1)(4.1)].

[13] If the court determines that there is no genuine issue requiring a trial, the court can make a final order accordingly.

[14] In F.B. v. S.G., [2001] O.J. No. 1586, Himel J. set out at paras. 13-14:

[13] … Clear cases may be disposed of summarily if no denial of fairness results. Because of these policy considerations, the summary judgment process must be used cautiously with great concern for the rights of the parties.

[14] Decisions granting summary judgment in family matters emphasize the need for caution, and for attention to the principles of justice and the best interests of the child. A summary judgment has been granted in family law matters that amounts to “the clearest of cases”. Typically, the cases have been child protection cases where the facts demonstrated unequivocally that the children were “in need of protection”.

[15] As Timms J. noted in Julott v. Julott, [2004] O.J. No. 1392, at para. 22:

The onus to prove, on the balance of probabilities, that there is no genuine issue for trial, obviously lies in the party who brings the motion.

[16] In Crawford v. Crawford, [2000] O.J. No. 4746, Wildman J. reviewed the law regarding summary judgment. As she stated at para. 8:

The court, on a summary judgment motion, must determine whether or not there is a genuine issue for trial. A judge on a summary judgment motion should not resolve issues of credibility, draw inferences from conflicting evidence or from evidence that is not in conflict when more than one inference is reasonably available, even when the issue is the existence of a trust. These are matters for the trier of fact. However, the responding party on a summary judgment motion has a duty to put its best foot forward and set out specific facts showing that there is a genuine issue for trial. [Citations omitted.]

[17] In the context of that family law motion, Justice Wildman made reference to the Court of Appeal’s comments in Aguonie et al v. Galion Solid Waste Material Inc. et al (1988), 38 O.R. (3d) 161 (C.A.). At para. 12, she noted that the following comments from Aguonie could assist motions judges:

It must be clear to the motions judge, where the motion is brought by the defendant, … that it is proper to deprive the plaintiffs of the right to a trial. Summary judgment, valuable as it is for striking through sham claims and defences which stand in the way to a direct approach to the truth of a case was not intended to, nor can it, deprive a litigant of his or her right to a trial, unless there is a clear demonstration that no genuine issue exists, material to the claim or defence, which is within the traditional province of a trial judge to resolve.

Conclusion

[18] Justice Rogers, after a lengthy trial, ordered joint custody with week-about access. She was well aware of the therapeutic issues involving the respondent and her negative behaviour, which may have alienated the children from their father. She was aware of the report of Dr. Goldstein and Dr. Telagdi. She ordered the mother to take treatment. Unfortunately, the respondent has not taken treatment and it is her position that she cannot afford to do so. Dr. Goldstein recommends that the respondent not see Nichole, at least until she successfully seeks treatment for her condition. Nichole has now been with her father exclusively for almost a year. If Nichole was initially alienated from her father due to conduct by her mother, it is unclear to me whether or not that alienation would resume if there is access by mother, given Nichole’s age, the counselling she has received, her academic improvements and her re-established relationship with her father on an exclusive basis over the last year.

[19] In my view, this is not a proper case for granting sole custody to the applicant without access by the respondent on a summary judgment motion. If the matter proceeds to trial, Dr. Goldstein can be cross-examined on whether or not the alienation has been overcome by exclusive custody by father over the past year. The respondent can also ask the court to give consideration and weight to the views and preferences of Nichole as expressed in the report from Mr. Musselman and acknowledged by Dr. Goldstein.

[20] The motion for summary judgment is denied. The temporary order of Justice Wildman, granting sole care and custody to Mr. Leggatt will continue. In order to give clarity to that temporary order, certain aspects of Justice Rogers’ order, which contemplated joint custody and some consultation between the parents, needs to be modified at to para. 68(3) and (4) to adapt to the reality of the temporary sole custody order for the applicant father. It is ordered that the applicant father shall be responsible for all decisions about Nichole, without the necessity of seeking input from the respondent mother.

[21] The applicant sought a number of other issues of relief. Those issues will require adjudication at another time, either at trial or a discreet motion with respect to those issues. However, one issue sought by the applicant was not seriously contested, and that is the issue of the quantification of the overpayment of spousal support. Counsel for the applicant did the calculations indicating that the amount should be fixed at $15,635. The respondent takes no issue with respect to those calculations. Order to go that there has been an overpayment of spousal support paid by the applicant to the respondent fixed in the amount of $15,635.

Costs

[22] If either party seeks costs, they should make written submissions within the next twenty days. Such submissions are not to exceed three pages in length.

MULLIGAN J.

Date: September 10, 2014