SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS3160-12
DATE: 2014/12/16

RE: Sylvia Hawkins v. Anthony Schlosser

BEFORE: Ellies J.

COUNSEL: Motion in writing, no one appearing

ENDORSEMENT

[1] Ms. Hawkins moves without notice on an emergency basis for an order for temporary custody of the parties’ child, Selena, and for other relief relating to access (see tab 3 of the continuing record). She alleges that Mr. Schlosser denied access to Selena on the weekend of December 12, 2014 to which Ms. Hawkins was entitled under the order of Gordon J. dated May 7, 2012. She also maintains that Mr. Schlosser will only allow her have Christmas access beginning on December 27, whereas she believes that it should start on December 26, according to the May 7 order.

[2] On April 11, 2013 I made an order under s. 140(1) of the Courts of Justice Act, R.S.O. 1990, Chap. C.43 (the “CJA”) in court file number FS-10-71-0001 in which I declared Ms. Hawkins to be a vexatious litigant and prohibited her from commencing any proceeding in any court relating to custody of or access to Selena without leave. Ms. Hawkins has brought such an application, which is returnable on January 30, 2015. However, she asserts that she cannot wait that long, given the breach she anticipates will occur on December 26.

[3] Under section 140(4) of the Courts of Justice Act, in order to obtain leave to bring the present motion Ms. Hawkins must satisfy the court of two things:

(1) that the proceeding she seeks to bring is not an abuse of process; and

(2) that there are reasonable grounds for the proceeding.

[4] In my opinion, Ms. Hawkins has failed to meet this test.

[5] Ms. Hawkins has filed an affidavit in which she deposes that Mr. Schlosser denied her access on December 12 because she sent a cab to pick up Selena. Her evidence is supported by what appear to be printouts of electronic communications between the parties. From these documents it is clear that Mr. Schlosser was never consulted before being confronted shortly before the access exchange time with the fact that seven year old Selena was to be transported alone in a cab from Corbeil to North Bay. What is not clear is why Ms. Hawkins sent a cab instead of picking Selena up herself or sending a family member, as she had previously been doing under the order. There is nothing in the evidence to explain this.

[6] In these circumstances, I do not believe it was inappropriate for Mr. Schlosser to refuse to put Selena in the cab. Ms. Hawkins alleges in her affidavit that the cab company is safe because it has been screened by the police. However, the source of this information is not provided. Even if it was, it would not be unreasonable for a parent in Mr. Schlosser’s position to refuse to entrust the care of his seven year old child to a stranger, whether that the stranger passed a police background check or not.

[7] Ms. Hawkins also deposes that Mr. Schlosser refused to permit her to pick Selena up the next day, a Saturday. The messages attached to Ms. Hawkins’ affidavit indicate that Mr. Schlosser told her they would not be home when Ms. Hawkins proposed to attend. The evidence stops there, because Ms. Hawkins did not serve her motion materials on Mr. Schlosser. I see no reason why she could not have done so, even if she had to add a request in her notice of motion to abridge the time otherwise required for service.

[8] Mr. Schlosser was not obliged by the terms of the May 7 order to accommodate a Saturday morning access exchange. While it is possible that he was simply being difficult, it is just as possible that he had made plans to leave the house that morning. We cannot know, because Mr. Schlosser was not provided with an opportunity to give his version of events.

[9] Given these deficiencies in the evidence about the events of the weekend of December 12, I am unable to conclude that there are reasonable grounds for the motion based on those events.

[10] The evidence in support of Ms. Hawkins’ allegation with respect to access on December 26 suffers from similar deficiencies. Ms. Hawkins has not provided any information as to the date Selena finishes school for the holidays and the date she recommences in 2015. It is not possible, therefore, to calculate the half-way point of the holiday for the purpose of splitting it, as required by the May 7 order.

[11] For these reasons, leave to bring the motion is denied.

Ellies J.

Date: December 16, 2014