ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PAUL MANTLE
Applicant
– and –
MARTA PANEK
Respondent
G. Punnett, counsel for the Applicant
L. Weiler, counsel for the Respondent
HEARD: August 11, 2015
REASONS FOR JUDGMENT
LEMAY J.
1Paul Wayne Mantle (hereinafter “Mr. Mantle) and Marta Panek (hereinafter “Ms. Panek”) started living together on April 1st, 2004, and separated on May 19th, 2011. They have two children, Nikola Veronica Panek Mantle (“Nikola”), who was born on January 12th, 2005, and Kayne Paul Panek Mantle (“Kayne”) was was born on March 2nd, 2010.
2A trial was held in this matter in 2013. After the conclusion of that trial, on May 30th, 2013, Langdon J. issued a series of Orders dealing with custody, access and child support. Approximately a year later, on June 1st, 2014, Mr. Mantle brought a motion to change these final Orders.
3Mr. Mantle, in his motion to change, is seeking sole custody of the children, an order limiting access to Ms. Panek to supervised access, and a requirement for Ms. Panek to pay Mr. Mantle child support. Currently, the order of Langdon J. envisions joint custody and joint access.
4Ms. Panek opposes the relief being sought by Mr. Mantle in the motion to change. Instead, in response to the Motion to Change, she is seeking an award of sole custody of both children, and an award giving Mr. Mantle access on alternate weekends when he is not working. She is also seeking an adjustment in the amount of child support payable.
5As part of these proceedings, Ms. Panek has brought an interim motion for interim sole custody, for limited unsupervised access for Mr. Mantle, and for a change in the amount of child support. I will deal with the issues of interim sole custody and access first, as my determination on these issues will also assist in resolving the support issue. My decision does not resolve the Motion to Change.
6It is also worth setting out the procedural history of this matter since the Order of Langdon J., as this has some bearing both on my decision and on the other directions that I am making.
a) The Action and its Progress
7This action was commenced in June of 2014. A case conference was held before Seppi J. on September 15th, 2014. Since that time, the parties have not taken any steps to set this matter down for a settlement conference or a trial management conference. They have, however, brought additional motions.
8Indeed, Mr. Punnett requested an adjournment of this motion for the purposes of conducting a cross examination of Ms. Panek on the Affidavits that she provided to the Court on this interim motion. I denied that request without calling on Mr. Weiler. For the assistance of the parties, I will briefly outline some of the reasons for my decision:
a) Courts regularly make interim Orders on Affidavits, and regularly weigh the information that is provided by the parties for interim Orders.
b) The delays attendant in proceeding with a cross examination prior to hearing the interim motion on its merits would be quite significant, and would have significantly delayed the final adjudication of this matter.
c) A cross examination on Ms. Panek’s Affidavit would be more akin to the type of cross examination that would be conducted at a trial.
d) No leave has been sought under Rule 20(4) or (5) of the Family Law Rules for questioning and, as a result, there is no actual right for questioning at this stage.
e) The costs and expense associated with a cross examination on an Affidavit were also of concern to me.
9I would also note that Ms. Panek originally brought her motion on June 2nd, 2015. It has been adjourned on consent. I did not hear any submissions from anyone that Mr. Punnett had asked to cross-examine Ms. Panek in the more than two months between June 2nd, 2015 and when I actually heard this motion.
10Finally, allowing Mr. Punnett to cross-examine Ms. Panek would not have changed one of his key arguments in this case. He would still have argued that I should not grant Ms. Panek’s motion because it relies on the OCL report which has not been tested at trial.
11In short, the request for an adjournment to cross-examine Ms. Panek would simply serve to delay the Court’s adjudication of this matter, and, frankly to indefinitely postpone the trial that is needed to resolve the issues between the parties.
12The parties energies are better spent arguing the merits of this motion, and preparing for the trial, which appears to be almost inevitable. It will be the second trial in less than five years.
13Given all of the delays in this matter, when I heard the motion I insisted that the parties obtain a date from the Trial Coordinator for a combined Settlement Conference and Trial Management Conference. They have agreed on the date of January 25th, 2016 for this Conference.
14Based on the submissions that I heard (particularly on the adjournment request) and the rather leisurely manner in which this case is being moved to trial, I suggested that the parties consider having a case management judge appointed. I reiterate that suggestion, but have no authority to appoint a case management judge.
15However, as a motions judge, I do have the authority to ensure that this matter proceeds to a trial promptly. As a result, I am providing the following additional directions to the parties:
a) The combined pre-trial/settlement conference scheduled for January 25, 2016 cannot be adjourned by the parties without leave of a Judge of this Court, even if the adjournment is being sought on consent.
b) The parties are to arrive at the conference prepared to provide all of the information on the trial management form.
c) If a trial is necessary in this matter, the Court had the ability to schedule it in the May/June 2016 sittings. The parties are expected to either resolve the matter at the Settlement Conference/Trial Management Conference, or it will be placed on the list for the May/June 2016 sittings, barring extraordinary circumstances or a change in the Court’s calendar.
d) Counsel will attend at the Civil Assignment Court at 2:00 p.m. on April 25th, 2016 to speak to this matter if it is not resolved by that time. Again, this appearance cannot be waived by the parties, even on consent, unless they have leave of a Judge of this Court.
e) If the parties are seeking to conduct questioning, they must address this issue by December 1st, 2015, either through an agreement or a request for leave under Rule 20 of the Family Law Rules.
f) Finally, counsel are directed to ensure that they have made all production requests prior to the Settlement Conference/Trial Management conference. I am not making a production order in this case, but one could certainly be sought by the parties on a regular motions day if they cannot agree. I am directing that the parties will have exchanged any document requests by December 1st, 2015, and will have given each other their positions on those requests by January 10th, 2015. I strongly suggest that the parties address any documentary issues by way of a motion prior to the case conference.
b) The Overholding of Nicola and Alienation Issues
16This matter has not moved towards a conclusion in the past year because the parties energies have been largely consumed in dealing with Mr. Mantle’s failure to return Nicola to Ms. Panek for a period between April and October of 2014.
17This overholding is a significant issue to the Court for two reasons. First, the concerns that an overholding raises appear to tie in with the concerns raised in the OCL report about whether Mr. Mantle should continue to have decision making over the children. Second, it raises concerns about Mr. Mantle’s ability to follow Court Orders. Both of these concerns are significant when reviewing the question of who should have sole custody.
18Mr. Mantle overheld Nicola for approximately five months. My understanding is that Mr. Mantle took the position that he was unable to return Nicola to Ms. Panek because Nicola did not want to return to Ms. Panek. Nicola was nine years old at the time that she allegedly did not want to return to Ms. Panek.
19One of the other issues raised in Ms. Panek’s Affidavit is her claim that Kayne is saying things like “daddy has told me to punch” Ms. Panek’s boyfriend, and that Kayne has to keep an eye on Ms. Panek’s boyfriend. These allegations are contained in Ms. Panek’s Affidavit and, if true, are of significant concern to the Court.
20Different allegations are made in Mr. Mantle’s material. He alleges that Ms. Panek ignores the children when her boyfriend is present in the house. Mr. Mantle also alleges that the overholding incident in April arose because of Ms. Panek’s “actions towards Nicola and the fact that she was in a common law relationships [sic]” (Paragraph 22 of Mr. Mantle’s Affidavit of July 3, 2015).
21On my view of the materials, it appears to me that Mr. Mantle blames Ms. Panek for his failure to return Nicola to Ms. Panek for a period of five months in 2014. He also seems to suggest that he could not force Nicola (who was 9 at the time) to return to Ms. Panek. However, it is remarkable that Mr. Mantle was able to ensure that Nicola returned to Ms. Panek’s care the same day that he was ordered to ensure that she returned or face contempt proceedings. I am not going to resolve this conflict, for reasons that I will explain shortly. However, this obvious conflict in the evidence concerns me.
22It also brings me to a more significant issue. The parties have both filed detailed Affidavits in support of their position on this motion. Many of the “facts” that the parties have set out in their Affidavits are challenged by the other side. Each party has a very different view of the underlying facts in this case. The supporting documentation, such as e-mails between the parties, reports of the Children’s Aid Society and the like were not filed. As a result, I do not have that evidence to assist me in making a decision.
23However, one of the things that the parties were able to agree upon was the appointment of the Office of the Children’s Lawyer (“OCL”) to assist in this case. This appointment was done on consent, and a report was delivered on April 9th, 2015. I will now turn to that report.
c) The Involvement of the OCL
24At the request of both parties, Seppi J. asked the OCL to become involved in this case in September of 2014. They became involved, and a clinical investigator, Kelly Schweitzer, was appointed. One of the documents before me is a brief Affidavit from Ms. Schweitzer, attaching a very detailed and lengthy report. The source documents that Ms. Schweitzer reviewed were not filed. This is not a criticism, as I know they are not normally filed. However, it means that I do not have a complete record at this time to review in this case.
25As part of her investigation, Ms. Schweitzer met with both parents, observed both parents with the children, interviewed the children privately, and conducted at least a half a dozen interviews with third parties that have been involved in this family.
26Based on her investigation, Ms. Schweitzer observed that these two parties have extreme difficulty in communicating with each other. She also recommended the following:
a) Ms. Panek should have sole custody of both children.
b) Mr. Mantle should have access every other weekend. She also laid out some access recommendations for the longer term. These do not concern me as this is a temporary Order.
c) The parties should use a communication tool such as Family Wizard or My Two Houses to assist them in their communications.
27Mr. Mantle has filed a notice that he intends to challenge this report. Mr. Punnett argues that I should not give this report any significant weight. He intends to vigorously cross-examine Ms. Schweitzer on the contents of this report. I asked Mr. Punnett in argument which parts he challenged, and I did not receive a clear answer. Mr. Punnett was also asked by Mr. Weiler on May 13th, 2015 which portions of Ms. Schweitzer’s report he was disputing. I was not made aware of any response to this request.
28In reviewing Mr. Mantle’s materials, it is not entirely clear to me which parts of the OCL report he intends to challenge. This is understandable, as Mr. Punnett will want to cross-examine Ms. Schweitzer on this report at trial, and may not want to reveal his strategy.
29However, in deciding this motion, I am left with contradictory materials from the parties, and an incomplete picture of the facts in this case. This brings me to the legal issues associated with this motion.
Should Ms. Panek be Granted Interim Sole Custody?
30This case is unlike most of the interim orders that Courts are asked to make. Although the parties did not spend a great deal of time on this question, there is a final Order in place in this case. As a result, the starting point for my analysis must be the question of whether there has been a material change in circumstances.
31The final Order in this case was made by Langdon J. in 2013. Given that both parties are seeking to make changes to the final Order of Langdon J., and to do so in opposite directions, I understand their reluctance to debate the question of whether there has been a material change in circumstances at this stage in the process.
32However, it has left me with the task of deciding this motion without the benefit of a complete factual or legal record as I must decide whether there has been a material change in circumstances if I am going to grant an interim Order in this case.
33I also note that this motion was set down for thirty minutes, which meant that the parties did not file facta or books of authorities. It took well over an hour to argue, when the adjournment request is included, and should probably have either been scheduled as a long motion, or deferred to trial. In that respect, I note that the parties did not refer me to any case law in arguing this motion. I will reference a few relevant cases in making my decision, however.
34A starting point for considering this case is the question of whether joint custody is even possible, given the animosity and high conflict between these parties that appears to have gotten worse since the last trial. That is a matter to be left to the trial judge, but I would direct the parties to Kaplanis v. Kaplanis ((2005) 2005 1625 (ON CA), 249 D.L.R. (4th) 620 (O.C.A.)) for a discussion of this issue. They should be prepared to address this decision at trial. Although I have addressed this issue to a certain extent below, I do not presume to determine issues that the trial judge will decide.
35This brings me squarely to the question of what should be done in this case. If this were a case of first instance, I would have little hesitation in concluding, even on the limited materials before me, that joint custody was not appropriate. However, it is not a case of first instance. Joint custody has been found to be appropriate in this case after a trial. The question that I must determine is whether, on a motion without oral evidence or cross examination, I am prepared to change the custody arrangements for these children.
36I am not prepared to change the custody order in this case for the following reasons:
a. There is a final Order in place respecting joint custody. It should not be changed absent a material change in circumstances. On this point, see Finch v. Butler (2010 ONSC 4796).
b. The evidence that the parties have provided is contradictory, and it is difficult to determine which evidence should be accepted. Given this, it is difficult for me to accurately apply the criteria in Gordon v. Goertz (1996 Can Lii 191) to even determine whether there has been a material change in circumstances.
c. While the Report of the OCL supports Ms. Panek’s position, it has not been tested through cross-examination. As noted in Stuyt v. Stuyt (2006 CarswellOnt 7783), an assessor’s recommendations should not be acted upon without a full record and trial, except in exceptional circumstances.
37In making my decision, I have considered the overholding of Nicola. On the facts that I have, the overholding of Nicola supports Ms. Panek’s position. However, on an interim motion, it is not sufficient to outweigh the other considerations I have set out above at this stage. I note that one of my considerations is that this matter will be at trial in approximately eight months. Were the wait for a trial longer, it might change the considerations in this case, which is why Ms. Panek can bring this portion of the motion back to Court if a trial is, for some reason, not held in May of next year. For a discussion of this issue, see Bozin v. Bozin (2010 ONSC 1010).
The Level of Access
38Mr. Mantle argued that Langdon J. envisioned a level of access that was approximately 50/50, and that I should ensure that this level of access continued. As a result, he is seeking to have the children spend three nights a week with him. Ms. Panek argued that this was not the intent of Langdon J.’s Order and that I should not increase Mr. Mantle’s access.
39There are several problems with access in this case. First, there is the fact that the Order of Langdon J. is not being followed by the parties. This is understandable, as there appear to have been changes in circumstances. First, Kayne has started school full-time, which substantially reduces the time that Mr. Mantle is able to spend with him.
40Second, it is clear that Mr. Mantle has changed jobs in the past year, and that this has affected the level of access he is able to enjoy with the children. Although Mr. Mantle claims he has the children half of the time, he also acknowledges that the combination of his new job, and the fact that Kayne is now in full-time school, means that his access has been substantially reduced.
41Mr. Punnett, Mr. Mantle’s counsel argued that I should make adjustments to the access schedule to ensure that Mr. Mantle continues to be able to spend 50% of the time with the children. His basis for this argument is that this was the intent of the Order of Langdon J.
42As I noted above, Mr. Punnett provided significant arguments on why I should not accept the OCL report at this stage in the proceeding, and should maintain the status quo. I accepted those arguments on the basis that there should not, on an interim motion such as this, be a change to the status quo unless the best interests of the children are significantly affected.
43That conclusion necessarily means that I must reject Mr. Punnett’s arguments on the access levels for the same reasons. The current access schedule appears to be working for the children. The only reason that Mr. Punnett advances for changing the access schedule is his position that the Order of Langdon J. envisioned 50/50 access. Langdon J.’s Order was specifically targeted to the circumstances that the parties were in in 2013 when the Order was made. It is not clear to me that Langdon J. intended the Order to freeze the status quo and prevent the parties from making changes that acknowledged the changing dynamics of the children.
44One of the features of Langdon J.’s Order was that the children spent nights after 4:00 pm with Ms. Panek, except on weekends when they were with their father. It is clear that what Mr. Mantle is seeking is a change to this Order. The children have their primary residence with their mother, and it is not clear to me that making a significant shift in the schedule would be in their best interests, even if there has been a material change in circumstances, a question I leave for the trial judge.
45I simply do not see how, on an interim motion, a change to the access schedule to accommodate an arbitrary division of time is either appropriate or in the best interests of the children. There is also a question of whether it is even legally permissible, because of the fact that there has to be material change in circumstances. This portion of the motion is denied.
The Child Support Issue
46The last issue to be determined is the question of child support. Ms. Panek is seeking a significant upwards adjustment in the amount of child support payable by Mr. Mantle for two reasons. First, Ms. Panek alleges that Mr. Mantle’s income has increased. Second, she alleges that the amount of time that Mr. Mantle is spending with the children has decreased. As a result, she is seeking an increase from the current child support of $108.00 per month to $673.00 per month.
47Mr. Mantle resists this portion of the motion for several reasons. First, he alleges that there is significant monies owing to him from the last trial, both for an equalization payment and for costs. Second, he alleges that he has changed jobs and that his salary is less. Finally, he alleges that the amount of time he spends with the children should be equal to what Ms. Panek spends, and that this should also result in an adjustment of the support payable.
48I start by noting that there is a lack of complete documentation on the financial affairs of both sides. There is information about Mr. Mantle’s business and his change of employment that is missing. There is also information about Ms. Panek’s income that is missing, as she is now apparently on Long Term Disability.
49In the circumstances, I am not prepared to make the very drastic adjustment to support that Ms. Panek is seeking, because it appears that Mr. Mantle’s income is now lower than what Ms. Panek’s counsel has assumed. However, I am of the view that, as a result of the changes in Mr. Mantle’s work schedule, and the fact that Kayne is going to school full time, Ms. Panek is spending more time with the children.
50This will likely result, in trial, in an upwards adjustment in the amount of support paid by Mr. Mantle to Ms. Panek, at least for the period between now and the trial. Based on the information that I have, I find that an amount of $200.00 per month instead of the $108.00 per month should be paid at this time, and I so Order.
51Mr. Punnett has asked that any increase in child support be taken out of the amounts owing by Ms. Panek on account of costs and the equalization payment. I decline to make that Order, as the right to child support belongs to the children and not to Ms. Panek. However, I do emphasise the fact that Ms. Panek appears to owe Mr. Mantle some sums of money, and that should be resolved. I make no Order about that, however.
Disposition
52As noted above, I have made several directions in relation to the Settlement/Trial Management Conference to be held on January 29th, 2016. Those directions are to be incorporated into the Order, and are as follows:
a) In terms of the custody issue, I have not made any changes to the custody arrangements that are in place at this point, given that this is only an interim motion and the OCL report has not been tested through cross-examination. I note, however, that I am gravely concerned about the amount of time it is going to take for this matter to get to trial. As a result, my Order with respect to child custody is without prejudice to Ms. Panek’s right to bring this matter back before Court on an interim motion if the trial of this action is not scheduled in the May, 2016 sittings.
b) As noted above, I have made several directions in relation to the Settlement/Trial Conference, and to procedure. Those are to be incorporated into an Order in the terms set out above.
c) Ms. Panek’s entitlement to child support is increased to $200.00 per month, effective September 1st, 2015.
53In terms of costs, each party has had some success on this motion. However, I am reserving the costs in this matter to the trial judge. The portion of the motion that Ms. Panek lost, sole custody, is a very significant issue. However, it is possible that Ms. Panek will win this portion of the motion at trial. It is also possible that Mr. Mantle will be successful on this issue at trial. Given that the biggest issue between the parties is still a live issue, it is appropriate to defer the costs of this motion to the trial judge.
LeMay J.
Released: September 15, 2015
COURT FILE NO.: 574/11
DATE: 2015 09 15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PAUL MANTLE
Applicant
– and –
MARTA PANEK
Respondents
REASONS FOR JUDGMENT
LEMAY J.
Released: September 15, 2015