COURT FILE AND PARTIES

COURT FILE NO.: F386/14

DATE: October 20, 2015

SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT

RE: Dale Edward Kerton, applicant

AND:

Meaghan Kerton-Moir and Adam Moir, respondents

BEFORE: MITROW J.

COUNSEL:
Brian Doody for the applicant

Julie Lee for the respondents

HEARD: July 3, 2015

ENDORSEMENT

INTRODUCTION

[1] The respondents bring a motion for summary judgment pursuant to R. 16 of the Family Law Rules, O. Reg. 114/99 as amended, dismissing the application commenced by the applicant for access to his two grandchildren.

[2] For reasons that follow, the relief sought by the respondents is granted.

BACKGROUND

A. The Parties

[3] The applicant, Dale Edward Kerton (“Mr. Kerton”), is the maternal grandfather of the children, Austin (born January 1, 2008) and Morgan (born July 26, 2009), who were ages 7 and 5, respectively, at the time of the hearing of the summary judgment motion.

[4] The respondent, Meaghan Kerton-Moir (“Ms. Kerton-Moir”) is Mr. Kerton’s daughter and she is the children’s mother; the respondent, Adam Moir (“Mr. Moir”), is the children’s father. The respondents are married to each other.

[5] Austin and Morgan (sometimes collectively referred to as the children) live with their mother and father (the respondents).

B. Procedural Matters

[6] The application was issued by Mr. Kerton on March 7, 2014. The relief requested by Mr. Kerton was access to both children. The specific access order sought by Mr. Kerton includes one continuous 24 hour period once per month, “for each child or together.”

[7] The respondents filed a notice of motion initially returnable October 22, 2014 seeking an order “to dismiss the application” and an order to prohibit Mr. Kerton from making any further claims for access without first obtaining leave from the court to do so. In support of that application, a document purporting to be an affidavit from both respondents dated October 7, 2014 was filed in the continuing record (tab 10). The form of this document is most unsatisfactory. There is no signature page, so the document is unsigned. The document purports to attach a number of documents as exhibits, with none of the documents being marked as exhibits and none of the documents being sworn.

[8] In response to this affidavit, Mr. Kerton filed an answer dated October 31, 2014 and an affidavit sworn October 31, 2014. It is unclear why he filed an answer. The affidavit had appended to it two documents that were not marked as exhibits, nor sworn as exhibits.

[9] It is noted that all parties at this time were self-represented. Later, Mr. Kerton filed a further affidavit sworn January 6, 2015. After a number of adjournments of the respondents’ motion, the motion came before me on May 1, 2015.

[10] It was ordered that the case could not proceed on that day because of irregularities, including the fact that the motion filed by the respondents was not clear, given the prayer for relief, whether it was a motion for summary judgment, as opposed to a trial that was proceeding as a summary hearing based on affidavit evidence to be supplemented by some oral evidence. Certainly there was some confusion on Mr. Kerton’s behalf as to the nature of the proceeding before the court on that day.

[11] As a result, the matter was adjourned before me to July 3, 2015 and it was ordered that the respondents’ motion is dismissed but without prejudice to the respondents to bring a fresh motion for summary judgment and with the costs of the dismissed motion to be dealt with on the fresh motion for summary judgment. The order also included some additional provisions relating to the timing of documents to be filed for the summary judgment motion.

[12] The respondents then retained Ms. Lee and a motion initially returnable July 3, 2015 was served, requesting that this matter proceed by way of summary judgment pursuant to R. 16 of the Family Law Rules and for a final order dismissing the applicant’s claim for access to the children. The applicant then retained Mr. Doody and filed an affidavit in response to the motion for summary judgment.

C. The Respondents’ Evidence

[13] In her affidavit, Ms. Kerton-Moir gives a background of the litigation between her parents – Mr. Kerton and Ms. Kerton-Moir’s mother, Brenda Leigh Kerton (“Ms. Kerton”).

[14] The very acrimonious litigation between Mr. Kerton and Ms. Kerton, as described by Ms. Kerton-Moir, provides some relevant context to the present application commenced by Mr. Kerton.

[15] Ms. Kerton-Moir’s affidavit evidence includes her recollection as a child and the effect that the acrimonious litigation had on her. Much of Ms. Kerton-Moir’s recollection is focussed on Mr. Kerton’s abusive behaviour.

[16] Ms. Kerton-Moir deposes being sent back to her mother’s home after Mr. Kerton had taped a piece of paper to her chest with his telephone number on it. She was only a young girl at the time. She deposes that Mr. Kerton did this, insisting that Ms. Kerton-Moir (as at that time) did not call him enough. Ms. Kerton-Moir remembers feeling confused, feeling like a “bad girl” and that she was embarrassed.

[17] She also recalls being pulled out of a van by her father, thrown into his car and driving very fast, including on the sidewalk and in a way that frightened her. She recalls Mr. Kerton taking her to a church and locking her in a room and she remembers some police officers attending and her mother coming to get her. Ms. Kerton-Moir has provided some police occurrence reports from February 1993 setting out some of the background facts including the fact that Mr. Kerton was arrested on a charge of uttering death threats against Ms. Kerton.

[18] Ms. Kerton-Moir deposes that her father was convicted of uttering a death threat (s. 264.1(1)(a) of the Criminal Code) and she attaches as an exhibit to her affidavit a probation order dated May 19, 1994 confirming that Mr. Kerton was sentenced to a term of one year probation on that charge. Ms. Kerton-Moir also deposes that Mr. Kerton’s form 35.1 “affidavit in support of claim for custody or access” filed in this application does not refer to this criminal conviction. Mr. Kerton answered “none” in paragraph 6 of that affidavit which asked him to list the offences of which he was found guilty and for which he had not received a pardon.

[19] It is clear that Ms. Kerton-Moir, as a child, suffered from her father’s abusive conduct. She deposes that when she was a child she can recall Mr. Kerton repeatedly telling her on visits at his home that he was going to come and get her from her mother’s house and telling her that she could not live with her mother anymore. Ms. Kerton-Moir deposes she remembers feeling frightened and ended up not knowing what to say to her father or her mother. She deposed she just wanted the fighting and “scary things to stop.”

[20] Ms. Kerton-Moir remembers mostly being afraid of saying anything when she was with her father for fear of upsetting him.

[21] As she was growing up, it is Ms. Kerton-Moir’s evidence that she became increasingly aware as of her parents’ ongoing and bitter dispute. She deposes that despite decisions having been made regarding her custody, that Mr. Kerton was relentless in bringing appeals of any decisions that were made by the court and then seeking variation of those orders as soon as the court had set out an access regime. It was her evidence that nothing was settled for her. Mr. Kerton’s conduct in the litigation between himself and Ms. Kerton led Aston J. to make an order prohibiting Mr. Kerton from bringing any further motions. In Kerton v. Kerton, 1997 CarswellOnt 4597, Aston J. made the following observations at para. 14:

I do not intend to review in detail the numerous motions or the dispositions of relief on those motions but certain conclusions are inescapable:

1. Mr. Kerton has never accepted the decision reached after an 18 day custody trial and an unsuccessful appeal of that decision. He genuinely believes himself to be a victim of the legal system and he will remain unrelenting in his quest for justice as he himself perceives it.

2. Mr. Kerton is obsessed with this litigation, to the point that it consumes him and affects his health, his employability and, occasionally, his better judgment.

3. Both parties have spent a fortune on legal fees, and though Mr. Kerton has been self-represented for some time now, Mrs. Kerton continues to be put to significant expense. She never recovered costs awarded to her which, with interest, exceed $70,000 and, as recently as this summer, has not been paid for the modest costs that were awarded to her. Mr. Kerton obviously believes he is immune from the cost consequences of the motions he brings.

4. Mr. Kerton will bring further motions of dubious merit if he is not restrained from doing so.

[22] It was further noted by Aston J. (at para. 4) that, according to Mr. Kerton himself, he has spent in excess of half a million dollars trying to get access to his daughter.

[23] Ms. Kerton-Moir deposes that she continued to see her father in supervised access visits on Sundays until she was 12 years old. She adds that at that point she decided she could not continue to visit with him; her reasons for stopping the visits included the fact that her father focussed his access time on “obsessive discussions on his bad relations with my mother” and the custody and access litigation rather than on their own relationship. Ms. Kerton-Moir explains that this was causing her too much stress and that it was far too unpleasant for her to maintain any further contact with her father, so she simply stopped attending further access visits.

[24] Ms. Kerton-Moir deposes that after she stopped visits with her father, she did not see him except when as a teenager she accidentally ran into him in public places in London. She recalled one occasion when she was approximately 15 years old and by herself, where she ran into her father downtown and he asked her if she would come with him to a court office and sign a consent paper to terminate a restraining order. She indicates that she was not sure what to say, so she walked with her father to the courthouse and her father explained to a lady why they were there. She deposes the lady took her into a room and that they talked for a little while. Ms. Kerton-Moir did not sign anything and then said goodbye to her father. Thereafter, she did not resume any visits with him.

[25] Ms. Kerton-Moir recalls as a young adult occasionally running into her father in public places. She does say that they would be civil with each other and talk for a brief period of time. She explains she would be cautious and reserved with her father given the difficulties she had with him as a child.

[26] Ms. Kerton-Moir is currently 27 years of age (born March 20, 1988). She was married to Mr. Moir in December of 2009. They have lived together previously for approximately three years.

[27] When her first child, Austin, was born, she sent Mr. Kerton a card giving him notice of Austin’s birth. She describes the note as being warm, as she felt she was “strong enough at that time” to provide what she describes as a respectful attempt to engage Mr. Kerton in her life after Austin’s birth. She deposes that Mr. Kerton sent her a note in response, along with some news about family members; however, the written correspondence was not maintained and there was no resumption of a relationship.

[28] Ms. Kerton-Moir and her husband had started a small business selling infant clothing; they first had a sales location at a kiosk at the Western Fair Market and they were there on Saturdays. In early 2010, it is Ms. Kerton-Moir’s evidence that Mr. Kerton noticed their business location at the Western Fair and began coming by their business site on a fairly regular basis on Saturdays. She describes that Mr. Kerton chose to do so, although he had not been specifically invited back. It was Ms. Kerton-Moir’s evidence that typically the children were not present at the business location, although there were rare occasions when Ms. Kerton-Moir would bring the children to work. Ms. Kerton-Moir recalled that on two or three occasions her father did come by to meet the children, Austin and Morgan, at the Western Fair site.

[29] It is Ms. Kerton-Moir’s evidence that on these occasions the children were introduced to their “Grandpa Dale” and that both Ms. Kerton-Moir and her husband ensured that the interaction was pleasant and civil for the children. Starting around March of 2012, after their business moved to a different retail location, Mr. Kerton stopped attending at the business site and preferred attending at their summer folk festival locations. The children were more likely to be there on those occasions for a period of time (for example several hours) and Mr. Kerton visited on those occasions at various summer festivals and would stay up to two hours. The children did not remain in his care unaccompanied, according to Ms. Kerton-Moir.

[30] Ms. Kerton-Moir deposed that to the best of her recollection her father would have seen the children “less than eight times between 2009 and January 2014.” None of those visits (except one) were scheduled visits and they were all by chance when he stopped at the Western Fair kiosk or at a festival location during the summer.

[31] In November of 2012, it is Ms. Kerton-Moir’s evidence that she ran into her father at the London Santa Claus parade. She deposed that their interaction was pleasant and her father stood beside them at the parade. As a result of that, Ms. Kerton-Moir asked her father if he wanted to go with them to the parade the following year and that visit did occur in 2013. After the parade, they went to Mr. Kerton’s apartment where he gave the children some gifts. This was the only planned visit between the children and Mr. Kerton.

[32] Ms. Kerton-Moir did express some concern about the “crowded, unhygienic and unsafe state” of his home and stated that the apartment was strewn with boxes and power tools. She described furniture being crammed together and there was difficulty making a clear pathway from one room to another.

[33] After that visit, Mr. Kerton requested the respondents if he could have an overnight visit with the children. Mr. Kerton was advised by the respondents that they would need to think about it. They did not want to discuss that in front of the children.

[34] In fact, both Ms. Kerton-Moir and her husband were concerned about permitting the children to visit at Mr. Kerton’s home. In January 2014, a pair of London Knights hockey tickets were dropped through their front door mail slot for a hockey game for Austin’s birthday. Mr. Kerton had not discussed this proposed hockey date and there was a conflict as the hockey game was on Austin’s actual birthday and there were already longstanding plans for his birthday. The tickets had a note attached from Mr. Kerton indicating “call me now” and listing a phone number.

[35] After these tickets were received, Ms. Kerton-Moir deposes that her father continued to telephone their home on multiple occasions and left voicemail messages that she describes as sounding “frantic” and “rude.” The content of the messages, according to Ms. Kerton-Moir, was focussed on demanding that either Ms. Kerton-Moir or her husband call Mr. Kerton back immediately. The message from Mr. Kerton included a statement that the respondents had told Mr. Kerton that the children were going to see him.

[36] At that point in time, it was Ms. Kerton-Moir’s evidence that she and her husband made a decision that this had to stop, and that they did not wish their children to go through what she had gone through as a child. It was, according to Ms. Kerton-Moir, clear that her father was engaging in the same obsessive behaviour he had engaged in regarding access issues when she was a child. Ms. Kerton-Moir wanted to insulate her children from this behaviour and they made a decision not to return the telephone calls.

[37] It is Ms. Kerton-Moir’s evidence that she has not had any further contact from her father outside of the litigation except for a birthday card.

[38] Ms. Kerton-Moir, in her affidavit, describes the current circumstances of the children. Her eldest child, Austin, had just completed grade one at the time of the hearing of the motion and is doing fairly well, although he has some behavioural and other issues. These issues include a hearing impairment; Ms. Kerton-Moir and her husband are working with a specialist to determine proper treatment. In addition, her family is working with CPRI and the Thames Valley Children’s Centre, where Austin will be assessed for the possible presence of autism spectrum disorder. Also, the respondents are working with another organization in relation to Austin’s ongoing attention issues. Austin also has some longstanding speech delay issues and he has a hard time communicating.

[39] At the time of the hearing of the motion, Morgan had completed senior kindergarten and was described by Ms. Kerton-Moir as doing well at school with good progress reports. She is interested in activities, including dance, music and animals; Morgan is described as having no emotional, psychological or health issues.

[40] Ms. Kerton-Moir, Mr. Moir and their children moved to a new home in Lion’s Head, Ontario in April 2014. They live on a small farm. Ms. Kerton-Moir describes both children as having a warm, loving and close relationship with their grandmother, Ms. Kerton, and her partner. She describes these grandparents as being attentive to the children’s needs and that they are respectful of both Ms. Kerton-Moir and her husband as the children’s primary caregivers.

[41] Ms. Kerton-Moir describes neither child as having a close bond with Mr. Kerton. She deposes that Mr. Kerton has not been present for any substantial or meaningful part of their lives. Specifically, Ms. Kerton-Moir agrees with Mr. Kerton’s statement set out in his application that he has not seen the children for any more than 14 hours in their lives. Ms. Kerton-Moir adds that both she and her husband are not willing to consent to an order that the children attend access with Mr. Kerton, even subject to supervision. She deposes the children do not have an existing relationship with Mr. Kerton and that the arrangement would be disruptive, strange and disturbing to the children.

[42] Ms. Kerton-Moir summarizes her position as follows in paragraph 46 of her affidavit:

When my father did have contact with Austin and Morgan, both Adam and I ensured that this contact was pleasant and child-centred. However, with my father’s escalation into increasingly frantic and unilateral demands, beginning in early 2014, he did so without being responsive to concerns about the children’s safety, their schedules and our family’s needs. As a result, there immediately arose a risk that the children be exposed to a well-established and entrenched pattern of conflict, tension and his obsessive behaviour that would most certainly not be conducive to either a positive grandparent/grandchild relationship or the children’s best interests in general.

THE APPLICANT’S EVIDENCE

[43] Mr. Kerton’s responding affidavit material consists of his brief and somewhat sparse two page affidavit.

[44] Mr. Kerton makes no effort to deal specifically with any of the allegations concerning his past conduct that are set out in Ms. Kerton-Moir’s affidavit. He makes no comment about his criminal conviction and his apparent inconsistent evidence in his form 35.1 affidavit where he discloses no criminal record. I find that Mr. Kerton’s failure to address this point, specifically, impacts adversely on his credibility.

[45] In fact, Mr. Kerton does not challenge Ms. Kerton-Moir’s evidence in any material way except the rather bald statement that he disagrees “with the premises and conclusions of the respondent Meaghan Kerton-Moir as set out in paragraphs 1 through 49 of the affiant’s affidavit.”

[46] Mr. Kerton deposes, in particular, that he does have a “real, genuine and ongoing relationship” with his grandchildren and that the relationship is a more substantial relationship than that described by Ms. Kerton-Moir.

[47] In support of his allegation that he has a more substantial relationship with his grandchildren than stated by his daughter, Mr. Kerton attaches three exhibits consisting of a handwritten card received from his daughter announcing the birth of Austin, a handwritten two page letter from his daughter dated January 1, 2009 and an undated letter that Mr. Kerton deposes he received during the 2009-2010 Christmas holidays that included an announcement of the birth of Morgan.

[48] In relation to the undated letter, Mr. Kerton in his affidavit deposes that he “verily believe[s]” this letter to be further evidence of his “real, ongoing and genuine relationship” with his grandchildren.

THE LAW

A. Rule 16

[49] The following are the relevant provisions of R. 16 dealing with summary judgments, that include the expanded powers recently enacted pursuant to O. Reg. 69/15 that came into effect May 2, 2015:

16.(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion 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.

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

(6.2) The court may, for