ST. CATHARINES COURT FILE NO.: 128/10

DATE: DECEMBER 30, 2014

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

CLARISSA OLENKA SZAKACS

Self-represented

Applicant

• and -

DONOVAN WASHINGTON CLARKE

Self-represented

Respondent

HEARD: November 12, 14, 17, 18, 25,

December 23, 2014 at St. Catharines

J.W. Quinn J.: –

1. Introduction

[1] For best courtroom adaptation of a work of fiction, the award goes to the applicant, Clarissa Olenka Szakacs, who shamelessly feigned what she thought was necessary to convince the court to circumscribe access by the respondent to their almost-six-year-old daughter.

[2] One could sit in Family Court for many years and not encounter such a callously conniving and mendaciously manipulative litigant. She effortlessly put the “rage” in “outrageous,” even going so far as to arrange for the board of directors of the housing co-operative where she lives to send a letter to the respondent, advising him that he is “no longer allowed on the property” and that “the Niagara Regional Police will be notified” should he be spotted, thus thwarting all access pick-ups and drop-offs. A letter also was sent to the police. These letters were prepared and delivered while the trial was in progress and they were not justified by any change in circumstances or by any evidence that I heard. Such meanness is unusual, even in the dysfunctional world of family litigation.[1] The no-trespass letters raise questions: What evidence did the housing co-operative possess? Was this an attempt to obstruct the work of the court? Does this court have jurisdiction to quash the letters?

[3] At several points throughout the trial, Ms. Szakacs emphasized that she was a Christian who practiced Christian values. There must be some key pages missing from her copy of the Bible.

[4] This is an application involving issues of custody, access, child support and the usual related relief. The parties are self-represented (although, at various points in the proceedings, Ms. Szakacs had four different counsel of record). Presiding over a trial with self-represented litigants is unfulfilling and of debatable utility. The parties usually do not know what they are required to prove and, if they have an inkling, they have no idea how to do it. Efforts to turn them into overnight-lawyers are not sensible.

[5] In self-represented litigation, the “pleadings” rarely reflect meaningful details of the issues to be tried. In this case, after reviewing the various orders in the trial record, I ventured further and read the notices of motion and the supporting affidavits leading to those orders for the purpose of learning the specifics of the dispute. This allowed me, when the parties were testifying, to raise certain matters that they had omitted or had wrongly concluded were unimportant. A trial judge should not be put in the position of having to find, present, argue and decide a case. Wearing that number of hats is unbecoming.

[6] I told the parties, before the evidence commenced, that, as they lacked legal representation, there was no one to advise them, as the trial progressed, how they were doing (although, frankly, when a Family Court case reaches trial, there is almost always at least one litigant who is immune to advice or direction). I said that I would provide progress reports, making it clear to them that trials often change direction and momentum. A strong case one day can be weak the next day. I began by informing the parties how I thought they stood in respect of each issue on the assumption that the case would unfold generally consistent with the material that I had read (and using the descriptors “possibility,” “strong possibility,” “probability” and “strong probability”).

2. Discussion of the evidence and the issues

(a) The applicant

[7] Ms. Szakacs (pronounced sack-itch) is 46 years of age. She has two university degrees: a Bachelor of Science from the University of Toronto (1989); and, a Bachelor of Health Sciences from McMaster University (1992). She is an occupational therapist and a psychotherapist with a lacklustre employment history.

[8] She was married in 1994, separated in 1997 and divorced three years later. In 2000, on a trip to Boston, Ms. Szakacs (then 32 years of age) met a Brazilian and soon became pregnant. A son was born in 2001. The Brazilian has never been to Canada and, I gather, he was given the choice of leaving the United States voluntarily or being deported to Brazil. He chose the former.

[9] In 2007, Ms. Szakacs entered into a common law relationship with a man that lasted for one year.

[10] In the summer of 2008, at the age of 40, Ms. Szakacs met the respondent, Donovan Washington Clarke, online. She became pregnant during their first meeting offline. A daughter was born in 2009. The parties did not cohabit.

[11] When Ms. Szakacs stepped forward to testify, she brought with her a plastic tote box containing approximately 25 labeled files. I am accustomed to seeing litigants with their case in a plastic bag and so I viewed this as an encouraging improvement and excitedly felt that I was about to be the beneficiary of a rarity in Family Court: comprehensive and organized testimony. I was disappointed; very disappointed. To all but the most mundane of questions, Ms. Szakacs professed to be too nervous to provide full answers. She was unable to offer meaningful details of her complaints. For example, she accused Mr. Clarke of twice being verbally abusive to the child. I asked her when this had occurred and to particularize the abuse. She could not answer. I gave her the opportunity to consult her portable filing cabinet and, after a minute or so, she testified that, on September 10, 2013, Mr. Clarke said to the child that she was “too old to cry.” There is no indication that this statement was made in a hostile or angry manner. I told Ms. Szakacs that I did not think that this constituted verbal abuse – unenlightened parenting, perhaps, but not verbal abuse. I asked her for the second instance. She could not remember it. Later in her testimony, after a recess, I inquired whether she had been able to recall anything further. She answered, “No.”

[12] She consistently displayed an inability to provide details or examples of her complaints and I find that her phony nervousness was a ploy to obscure the truth. The court was left with general allegations that seemed to mirror a brochure that she might have read titled, “Key Words and Phrases to Use if You Want Everyone to Think That the Father of Your Child is Unfit.”

[13] Her suggestion that she was nervous is preposterous. During her testimony, in response to my questions and those put to her by Mr. Clarke, she was argumentative, flippant, acerbic and sarcastic.[2] She queried the relevance of some questions that put her in an unfavourable light (once, it was a question from Mr. Clarke about a matter that she herself had raised in-chief). She even challenged my authority to hear the case because I had conducted a case conference in 2010. She smirked her way through the trial. All of this is hardly indicative of anything other than a confident, assertive litigant (with the moxie that comes from 31 court appearances on her résumé).

[14] In her testimony, as a further excuse for the vague and generalized complaints about Mr. Clarke, she professed to be afraid and intimidated by him and helpfully informed me that she was displaying the typical symptoms of a woman who had suffered psychological abuse. At the conclusion of the case, I was easily satisfied otherwise. I have no doubt that, in this relationship, she, if I may be colloquial, wears the pants (and the belt).

[15] It was shocking to hear the baseless and frivolous opposition that she maintained to the access requests by Mr. Clarke. If she had her way, Mr. Clarke would be in Bolivia with the other father and relegated to monthly cheques and the occasional greeting card. It would seem that Ms. Szakacs wants children without the nuisance of fathers underfoot.

(b) The respondent

[16] Mr. Clark is 55 years of age. He was born in Jamaica and came to Canada in 1976. He completed grade 12, took a mechanical engineering course for one year at Seneca College and then completed a two-year computer electronics course at Herzing Institute. In 1987, he obtained a licence to sell real estate and he has been a sales representative ever since. He has neither married nor lived in a common-law relationship. He has been a Rotarian for more than 10 years and has coached baseball “at a very competitive level,” but gave up the latter to spend time with his daughter (a sign of parental maturation that Ms. Szakacs does not acknowledge).

[17] His mother is retired from an accounting position with a Toronto hospital and his father is a retired driver with the Toronto Transit Commission. Mr. Clarke described his mother and father as “the best parents in the world.” They have been married for more than 40 years. He has a brother who works for Canada Post and a cousin who is a non-practicing lawyer.

[18] I found Mr. Clarke, soft-spoken by nature, to be an impressive witness. He eloquently described how the years since the birth of his daughter have been the “best and worst of my life.” When he was served with the Application, the cruel and unfounded allegations made him weep. Yet, he did not respond with vitriol, testifying: “I am not here to trash her.”

[19] Mr. Clarke told of his access difficulties and how “it seemed that the happier the visit” the greater the likelihood of the next visit being cancelled by Ms. Szakacs.

[20] Mr. Clarke is indebted to Canada Revenue Agency for $300,000 due, I understand, to a failed business venture and he has $50,000 in credit card and other debts. He recognizes that he must “clear up” his finances. Ms. Szakacs was extremely critical of his debt situation.[3]

(c) Application

[21] On February 17, 2010, the Application by Ms. Szakacs was issued. She sought a declaration of parentage, custody, child support and costs.

[22] The Application includes these allegations about Mr. Clarke:

(e) He exhibits psychological behavioural and cognitive deficits that impact on his ability to parent;

(f) He would appear to lack the ability to plan ahead and exercise the judgment required to meet the needs of the child;

(h) He lacks the concentration and memory to adequately care for [the child];

(m) He has a pattern of being verbally abusive with [Ms. Szakacs] and [she] is concerned this will continue with [the child] . . .;

(o) He has a history of financial mismanagement (found guilty of tax evasion in 2001, has a history of difficulty with creditors . . .);

(p) He has a history of cocaine abuse, has driven his car for long periods of time with a suspended licence, has driven without insurance . . . [Ms. Szakacs] suspects he may still be using cocaine . . .

[23] The only allegation for which there was even a soupçon of credible evidence is the suggestion that Mr. Clarke may be guilty of “financial mismanagement.” But I do not think it is fair to suggest that this is a permanent, persistent or recurring characteristic. He had one failed business venture for which he is still suffering the consequences. As well, he has found it understandably difficult to function in his employment under the burden of these legal proceedings and the 31 court attendances.

(d) Answer

[24] Mr. Clarke filed his Answer – Claim by Respondent on March 23, 2010. He admitted paternity and claimed, among other things, custody (alternatively, joint custody and unsupervised access). It is highly likely that Mr. Clarke, at any time during the 31 court appearances preceding the commencement of the trial, would have been grateful to settle for generous and overnight access and end this ordeal. The hard-nosed tactics of Ms. Szakacs in this litigation have backfired on her but, serendipitously, inured to the benefit of the child.

(e) Reply

[25] On May 26, 2010, Ms. Szakacs delivered a Reply. One passage is educative. It reads, at paragraph 41:

41. In my opinion, and from my professional experience, people with his history and personalities are not capable of establishing a healthy bond with his daughter . . . I am trained and have practiced as a regulated health care professional in Ontario since 1993. My training and job experience have involved performing psychological/mental status and cognitive assessments as well as assessing parenting skills. I personally believe that he has personality disorders.[4]

[26] Reading such condescendingly presumptuous allegations left me shocked, speechless, saddened and shaking my head.

... (continues verbatim exactly as in the provided HTML until the end of the document, including Schedule “A”, all access schedules, and all footnotes)