Kingdon v. Kramer, 2015 ONSC 1193
COURT FILE NO.: 961/14
DATE: 20150223
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JENNIFER KINGDON, Applicant
AND:
BORIS KRAMER, Respondent
BEFORE: Trimble J.
COUNSEL: Gargi Chopra, Counsel for the Applicant
Boris Kramer, Respondent, Self-Represented
Stuart Law, Counsel for Jacob Kingdon
ENDORSEMENT
[1] On February 10, 2015, all counsel and parties participated in a teleconference to argue Mr. Kramer’s motion for an order that he be permitted to take Jacob with him to the US, to live, and for interim support from Ms Kingdon. Jacob Kramer has lived with Mr. Kramer since May, 2014. Mr. Kramer left Canada on February 5th, to be married and live in the US. As he has applied for his green card, he is not permitted to leave the US until authorized to do so by the US immigration authorities. This permission might take over six months to come, and during that time Mr. Kramer cannot return to Canada. He has applied for a visa for Jacob. Jacob, who left on February 5th to go to his father’s wedding in the US, is to return to Montreal on February 22nd, to obtain his visa from the US Consulate in Montreal. This location was selected so that Jacob could live with a cousin in Montreal until the visa was granted and activated, or this Court intervened. It is a recognition that Jacob cannot attend to getting his visa, himself.
Preliminary Objections
[2] At the teleconference, Ms Kingdon insisted that the only issue to be dealt with was where Jacob might live, and no other issues such as support or ODSP payments. I disagreed. Mr. Kramer’s entire motion was before the Court.
[3] At the teleconference, Ms Kingdon’s counsel advised that she had filed a motion for leave to appeal from my endorsement of February 3, 2015, and asked that I adjourn the motion. Ms Kingdon was also asking in her leave motion that the operation of my January 20, 2015 endorsement be stayed pending the determination of the leave application, and if the leave application is granted, until the determination of the appeal. I declined her request. The date for the application had not been set. I denied her request for reasons to be given as part of this overall endorsement.
[4] As with Ms Kingdon’s other requests for an adjournment, she could not refer me to any statute, regulation, rule, order or jurisprudence that said that my actions as case management Judge were stayed pending a leave to appeal application, which included a request to stay the operation of my January 20, 2015 endorsement. The issues were too important to be delayed any longer. Ms Kingdon advanced the position that Mr. Kramer’s late announcement of his move to the US created a false sense of urgency in this matter. She is correct. His move is something that he has contemplated since June, 2013 given that Justice Scott amended her January 2012 order to include frequent visits with Jacob to Harrisburg, Pennsylvania.
[5] My concern is independent of Mr. Kramer’s plans. My concern regarding delay arises from the fact that Ms Kingdon has tried to derail this Application several times. She has sought adjournments several times, this time because she has brought a motion for leave to appeal and to stay my endorsement, although has not set a date for the leave application, and the time before that because she represented to the Court that she had appealed from that same endorsement although she had not, in fact, commenced the appeal. She had merely instructed her lawyers to appeal. She has tried several times to limit issues to be discussed only to those she wants argued, or to limit issues such that they conform to the most narrow and restrictive reading of an earlier endorsement. This is what she tried to do on February 10th. She derailed a process that required teleconferences so that the matter could move forward in an orderly way. She seeks adjournments which would delay the interim disposition of issues she herself says are important. She took no steps to appoint the Public Guardian and Trustee (“PGT”) after December 10th, when her position was that the PGT should become involved in the action.
[6] In this case, Ms Kingdon must have known for some time that Mr. Kramer was likely to go to the US. It was, and remains in her interest to delay matters as Mr. Kramer’s departure creates a status quo that favours her position in the litigation. This is not in Jacob’s best interest. I can only conclude that Ms Kingdon’s request to adjourn the motion on February 10th was a delay tactic. Until such time as a stay order is issued by the Divisional Court or Court of Appeal, this matter must move along.
The Motion and Further Evidence
[7] After hearing argument by all parties and hearing from Jacob Kramer and Ms Kindgon, directly, I decided that I needed more evidence on certain subjects, and issued my February 10, 2015 Endorsement asking that I receive, by noon on February 17th, further evidence from Ms Kingdon and Mr. Kramer on the subjects listed.
[8] At the outset of the hearing I advised all participants that any order I could make in this motion, would be an interim order, only.
[9] Ms Kingdon and Mr. Kramer provided the further information I requested, Ms Kingdon by Affidavit, and Mr. Kramer by letter, as he was on his honeymoon and not available to a notary or lawyer. To the extent that Mr. Kramer’s communication states facts, for the circumstances of this decision only, I am prepared to treat it as an Affidavit, given the shortness of time and his practicalities.
The Issue on this Motion
[10] The issue to address in this motion is whether, on an interim basis, I should permit Jacob to move to Pennsylvania to live with Mr. Kramer. This is Jacob’s and Mr. Kramer’s wish. This request requires that I vary Justice Scott’s orders of January 12, 2012 and June 3, 2013 and grant interim custody of Jacob to Mr. Kramer.
[11] Since Jacob is over 18 years of age, I can only make the order regarding custody, if Jacob remains a child of the marriage or he has been found to be incompetent to manage his personal and property affairs, and a guardian has been appointed. In the latter case, if Ms Kingdon were the guardian appointed under the Substitute Decisions Act (“SDA”), I would have to replace her with Mr. Kramer.
[12] In coming to my decision, I have considered six inches of written material filed on this subject, alone. Because Ms Kingdon, in any one Affidavit adopts and relies on all her previous Affidavits filed, I have reviewed the whole of the file, which consumes one file box. More important, I have listened to and considered very carefully the desires and preferences that Jacob has expressed to me directly.
Disposition
[13] I order as follows, until further order of the Court. In making the following disposition, I stress that I am not altering custody of Jacob, which Justice Scott awarded to Ms Kingdon. However, I order as follows:
a. As an incidence, term or condition of custody under s. 16(6) of the Divorce Act, Jacob shall reside with Melanie Walter at her home in Dundas, Ontario.
b. Immediately on his return from the US, Jacob shall live with his cousin in Montreal and obtain his US visa as soon as possible. He shall not activate his US visa until permitted by this Court. He shall take these reasons and any order resulting from them to the US consulate when he meets with them.
c. Ms Kingdon will apply, immediately, to reinstate Jacob’s ODSP benefits. I find as a fact that at no time has Jacob relocated from Ontario. At all times, he was regularly resident in Ontario. His absence from Ontario between February 5th and 22nd was a temporary absence to attend his father’s wedding. He will remain a resident of Ontario until further order of this Court.
d. Immediately, Ms Kingdon will pay all ODSP money paid on Jacob’s behalf to date, and any ODSP money paid during such time as Jacob lives with Ms Walter, to Ms Walter. I exclude from this aspect of the order the BMO RDSP account number 100118914845 opened on November 19, 2014, or any other RDSP accounts.
e. Ms Walter shall use Jacob’s ODSP money for Jacob’s sole benefit, including defraying additional household expenses incurred because Jacob is living with her, and providing Jacob with a cash allowance in her discretion. She shall account to Mr. Law (on behalf of Jacob), Ms Kingdon and Mr. Kramer on a monthly basis for the expenditure of Jacob’s ODSP money.
f. Ms Walter will have all day-to-day decision making power with respect to Jacob. Ms Kingdon shall advise Ms Walter of all medical or other appointments. Ms Walter will see that Jacob attends his required appointments, take all his medication. Ms Kingdon, as custodial parent, shall make all major decisions affecting Jacob’s health, after consulting with Jacob. Ms Walter shall make all emergency decisions that are necessary and in which it is not practicable to contact Ms Kingdon, first. Ms Kingdon shall make all major decisions with respect to Jacob that do not conflict with this order, after consulting with Jacob, and notifying Mr. Kramer as contemplated with Justice Scott’s orders of 2012 and 2013.
g. Jacob shall not leave Ontario. My interim order at para 50(f) of my January 20, 2015 Endorsement remains in effect.
h. Ms Kingdon and Mr. Kramer shall have telephone access to Jacob at Jacob’s preference.
i. Ms Kingdon shall have contact with Jacob at Jacob’s preference, and required by the reintegration therapist. Jacob shall follow all recommendations of the reunification therapist.
j. Ms Kingdon and Mr. Kramer, each, shall apply to the Public Guardian and Trustee to be appointed as Jacob’s guardian for personal care and property, and do all such things as the Substitute Decisions Act and the PGT may require in respect of their individual applications. They shall begin this process within two weeks.
Does Jacob Have Capacity To Make His Own Decisions With Respect To His Personal Care And Property?
[14] This is a vexing question, going to the heart of the Application, and one for which there is no answer at an interim stage. This issue requires a trial.
[15] Jacob is a challenged young man. He is a surviving twin. His sibling was stillborn. Medical documents filed record that Jacob was born with physical and profound mental disabilities. He required two heart transplants, conducted in the early weeks of his life. Various assessors have assessed him as having a mild intellectual disability, and some with a more serious disability. His functioning is consistent with defects in that part of his brain that processes and synthesizes incoming visual and sensory based details and which execute executive function. He functions well below his expected age levels across most intellectual domains including general intelligence, math, literacy, processing speed, auditory working memory, visual-perception skills, manual dexterity and aspects of daily living. He is described as having the overall mentality of an eight year old child by some, and by others, as having an overall mentality of an older child. No one qualified to express an opinion, has said that Jacob has normal intellectual function.
[16] Jacob Kramer turned 18 on January 11, 2014.
[17] Under section 16 of the Divorce Act, the Court has jurisdiction over Jacob in this family dispute if he continues to be a “child of the marriage”. “Child of the marriage” is defined in section 2 as:
… a child of two spouses, who, at the material time,
a. Is under the age of majority and who has not withdrawn from their charge, or
b. Is the age of majority or over and under their charge, but unable, by reasons of illness, disability or other cause, to withdraw from their charge or obtain the necessaries of life.”
[18] In other words, the Divorce Act presumes that a couple’s children are presumed to no longer be children of the marriage once the children attain their majority. The onus is on the parent trying to establish that the adult child is unable to “withdraw from their charge or obtain the necessaries of life” because of illness, disability or other cause.
[19] The Court may also have jurisdiction over Jacob if he lacks legal capacity. Under the Substitute Decisions Act, a person over the age of 18 is presumed to have capacity. Section 2 provides:
Presumption of capacity
- (1) A person who is eighteen years of age or more is presumed to be capable of entering into a contract. 1992, c. 30, s. 2 (1).
(2) A person who is sixteen years of age or more is presumed to be capable of giving or refusing consent in connection with his or her own personal care. 1992, c. 30, s. 2 (2).
(3) A person is entitled to rely upon the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable of entering into the contract or of giving or refusing consent, as the case may be. 1992, c. 30, s. 2 (3).
[20] In other words, Jacob is deemed to have capacity until someone who claims he does not have capacity, discharges the onus of proving lack of capacity.
[21] Jacob and Mr. Kramer argue that since Jacob has attained his majority, he is deemed to be competent, and/or no longer a child of the marriage, and entitled to make his own decisions, including decisions as to where he might live. While both admit that Jacob has some limitations, his opinion should be heard and acted on.
[22] They are correct that Jacob is deemed to be an adult, but that is not the end of the analysis.
[23] Ms Kingdon says that Jacob is not competent. He should return to live with her, after reintegration therapy, as she has custody. She ignores the presumptions in the Divorce Act and the Substitute Decisions Act. She merely asks the Court to accept her evidence of the extent of Jacob’s disabilities. While she points to medical records filed in her medical brief, these are not evidence. They are not appended to any affidavit from a qualified medical practitioner nor are the medical records the subject of a Notice under s. 52 of the Evidence Act.
[24] There is no doubt that Jacob has been found to be incompetent under the Substitute Decision Act for very specific purposes: to drive a car, to retain and instruct counsel, and to decide where to live and then to live without a great deal of support. Notwithstanding this, Jacob has not been declared or found to be incompetent such that he continues to be a child of the marriage, or incompetent such that he requires a guardian under the SDA.
[25] I am not in a position to determine, short of a trial, the level of Jacob’s deficits and challenges in order to determine whether Jacob is still a child of the marriage or incompetent. The medical evidence in the file is not properly proved. I cannot accept it for its truth. No doubt, medical opinion and Mr. Kramer’s and Ms Kingdon’s evidence will be the subject of cross-examination.
[26] Notwithstanding the legal presumptions in the Divorce Act and SDA, and notwithstanding that the medical evidence is not property before the Court, there is enough in the file to lead me to conclude that there is at least a possibility that the Court, at the trial of the Application, might find that a) Jacob’s challenges and deficits are such that he remains a child of the marriage, and subject to the jurisdiction of the Court under the Divorce Act and/or b) he does not have the capacity to make his own decisions and requires a guardian. Because of that possibility, until a final determination is made by the Court regarding Jacob’s abilities and whether he remains a child of the marriage, I treat him as such. It is in his best interests.
Where Should Jacob Live, For Now?
[27] Jacob returned to Canada on February 22nd, and is living with his cousin in Montreal. After Jacob returns to Canada, and obtains his visa, he shall not activate it.
[28] I order that Jacob shall return to Ontario to live, until further order of the Court. It is in his best interests. I say this for the following reasons:
a. Jacob will lose his ODSP pension, and free medical, dental, drug and assistive device coverage if he relocates to the US. Mr. Kramer has produced no evidence as to what comparable coverage or services are available in the US.
b. Jacob will lose his OHIP coverage if he relocates to the US. Mr. Kramer has produced no evidence as to what comparable medical coverage or services are available in the US.
c. Jacob will lose contact with the doctors and institutions that have provided care and follow up since birth for his disabilities and challenges, if he relocates to the US. Mr. Kramer has not provided evidence with respect to what medical care is available in the US. He has not provided evidence that any doctor is prepared to undertake Jacob as a patient or that the specific doctor has the expertise to treat Jacob. He has not provided evidence to indicate whether Jacob’s records in Ontario can be transferred to the US, how long it will take, or to where they should be transferred.
d. Mr. Kramer says that his and his (now) wife’s condominium in Harrisburg, Pennsylvania is a one bedroom unit. Jacob cannot live there, long-term. Mr. Kramer stated what he hoped to do regarding Jacob’s living arrangements. He provided no evidence concerning whether the living arrangements and the services he hopes to find are available, where, and on what basis. Mr. Kramer has not provided evidence that there is any other person who has confirmed that s/he will take in Jacob until a final disposition of this Application. He mentions people whom he thinks might be willing to.
e. Jacob works in Ontario. There is no evidence of what work, if any, is available to Jacob in the US.
f. Mr. Kramer says that while he wants Jacob to live with him, he cannot afford to provide the supports necessary, without Jacob’s ODSP and child support from Ms Kingdon. In other words, his taking Jacob is not possible except that it is contingent on support.
g. Jacob said, himself on February 10th that if he goes to the US, he will not come back. I cannot acquiesce to his request to live with his father, on an interim basis, without the assurance that he will return to Ontario for the trial of this Application or as required by the Court.
If Not With His FatherIn Pennsylvania, Where Will Jacob Live?
[29] Jacob has said that he will not live with his mother, Ms Kingdon. If this is ordered, he said, he will run away.
[30] Ms Kingdon agrees that her relationship with Jacob is so poor that he cannot live with her. Because of the deterioration in their relationship, I ordered that she and Jacob undergo reunification therapy, with Mr. Butt. By agreement between Ms Kingdon and Mr. Kramer, the therapist has changed. Whether Jacob will live with his mother in the future is uncertain and depends on the results of the therapy.
[31] Luckily for Jacob, Ms Kingdon has provided the evidence Mr. Kramer did not. Ms Melanie Walter, who knows Jacob and whom Jacob knows, and who has the skills to care for Jacob in the interim, has agreed to take Jacob in. I am satisfied that on an interim basis, Ms Walter will care for Jacob well.
[32] Since, on an interim basis, I am not prepared to change the custody order of Justice Scott, but have concerns about Jacob’s residence, as an incidence, condition and term of custody, I order that Jacob shall live with Ms Walter until further order. I order that Ms Walter will make all day to day decisions with respect to Jacob, and all major decisions when it is not practicable to consult Ms Kingdon. Ms Kingdon remains with custody, except as proscribed by this order. She shall make all major decisions except where it is not practicable for Ms Walter to consult Ms Kingdon, and except where proscribed by this order.
[33] Ms Walter is not expected to care for Jacob for free. Ms Kingdon avers that as of January 6, 2015, there is $1,832.23 on deposit, comprising the liquid portion of Jacob’s ODSP paid to date. I order that this amount shall be paid to Ms Walter who shall hold it in trust for Jacob’s benefit, spending it, as required, on Jacobs’s care, on defraying any additional costs Jacob’s care imposes on her, and if she thinks prudent, on a cash allowance for Jacob.
[34] ODSP is suspended because the ODSP office is of the view that Jacob has moved to the US effective February 5th. I find as a fact that he has not. His absence from Ontario from February 5th to 22nd was temporary, for the purpose of attending his father’s wedding. I order that Ms Kingdon take all steps, forthwith, to restore ODSP benefits. Once ODSP payments recommence, and so long as Jacob lives with Ms Walter, recommenced ODSP payments shall be transferred to Ms Walter subject to the conditions, above.
Further Treatment
[35] Ms Kingdon asks that I order immediate intervention by the Canadian Mental Health Association. I deny her request. It is not supported by any evidence. Reintegration therapy should commence as soon as it can be arranged.
Public Guardian and Trustee
[36] Given the divergent views and interests of the parties, and Jacob’s strongly held views, I attempted (I thought with the agreement of the parties), to craft a procedure which might trigger the PGT’s involvement as Jacob’s guardian until the trial of the action. On December 10, 2014, the PGT said that it would not become involved until someone had applied for guardianship under the SDA and submitted management plans for review. On December 10th, I left it to the parties to make the application, since both had represented to the Court that they wanted the PGT to be involved. Mr. Kramer submitted management plans as part of one of his affidavits and asked to amend his Motion to add being appointed as guardian under the SDA, but did not make any application to the PGT. Ms Kingdon has done nothing.
[37] In my view, while Jacob is an adult with presumed capacity, there is good reason to believe that this might not be the ultimate finding at trial. Given the animosity between the parties, someone other than the parents should act on Jacob’s behalf and act as guardian until trial. The parties cannot. Therefore, I order that each parent apply within the next two weeks to be declared as Jacob’s guardian for personal care and property under the SDA, and do all things required by the statue and the PGT to have that declaration made.
[38] Costs of today may be spoken to by teleconference any day at 9:00 a.m.
Trimble J.
Date: February 23, 2015