COURT FILE NO.: FD1787/13

DATE: October 13, 2015

SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT

RE: ADAM EDWARD CAMPBELL, applicant

AND:

KATIE CAMPBELL, respondent

BEFORE: VOGELSANG J.

COUNSEL:
Peter D. Eberlie for the applicant

Katie Campbell in person

HEARD: October 7, 2015

ENDORSEMENT

[1] On August 26, 2015, Mitchell J. expressed disappointment that these parties were before her for yet more temporary relief “on a mammoth-sized written record”: see Campbell v. Campbell, 2015 ONSC 5343 (Ont. Sup. Ct.) at para. 33. She emphasized that:

[34] The parties need a final resolution of the issues, not amended interim relief which has already been addressed by previous court orders.

[2] Although Mitchell J. described the “reams of materials” which convinced her that the proceeding was trial-ready and cried out for resolution, the parties then involved the Office of the Children’s Lawyer and Morrison Reid has been retained to complete a clinical investigation pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[3] Because this proceeding obviously involves very high conflict, at first blush one might applaud this latest opportunity for a quick and reasonable settlement after an experienced professional assessed each parent’s ability to respond to the child’s needs. It comes as small surprise, however, that Ms. Campbell now raises an allegation that she was “pushed” by Mr. Campbell during an access exchange on September 1, 2015. While her complaint is emphatically denied, and led to no criminal charge, the Children's Aid Society had to be informed and Mr. Reid’s assessment, by protocol, has been put on hold with more unfortunate delay.

[4] Now the parties are back with two motions. Mr. Campbell seeks an order allowing him to take Chloe, the parties’ daughter, to Orlando, Florida for a vacation trip purchased by his parents as a gift for their granddaughter. Ms. Campbell seeks a restraining order.

THE FLORIDA EXCURSION

[5] When Chloe turned two years of age on June 25 of this year, Mr. Campbell’s parents gave her a present of a trip to Orlando, Florida with the family. Ms. Campbell’s then counsel was notified the next day in order that consents and bookings could be arranged. Ms. Campbell refuses to consent to the planned vacation trip.

[6] Mr. Campbell made a similar request with respect to his family attending, with Chloe, an annual business-related convention in San Diego in April of this year. Ms. Campbell had refused to consent and a motion was argued before Templeton J. on March 11. Some of the reasons released on the motion remain relevant and quite appropriate:

[6] In my view, the evidence in this case leads to an indisputable fact that both parents have a “strong and passionate commitment” to parenting Chloe. Indeed, Chloe is fortunate to have such love and support from both of her parents. Her parents must realize, however, that, notwithstanding the breakdown of their conjugal relationship as partners, they will forever remain partners as parents of Chloe for as long as they live.

[7] In my view, Chloe ought not to be victimized or deprived in any way from any benefit that would otherwise be available to her but for the termination of the conjugal relationship and the acrimony that has arisen as a consequence. Both of these parents purport to place Chloe’s interests above their own but their hostility and lack of cooperation communicates otherwise.

[9] Chloe’s emotional and psychological needs will also be tended to. She will have the opportunity to see, speak to and hear the voice of her mother from time to time due to the internet technology which is now available. She will have the constant reassuring presence of her grandparents and, perhaps most importantly, she will have both the time and the space necessary to continue to develop the same type of attachment or bonding with her father as she enjoys with her mother.

[11] I am entirely satisfied that it is in this child’s best interests to travel with her father and extended paternal family. She will be allowed to experience sights, sounds, smells and touch not usually available to her. She is entitled to an enrichment of her environment this way – to experience new routines even briefly and to be challenged by the world around her with loving family members there to support her.

[7] In Ms. Campbell’s argument, she could only say that she felt that the proposed time away was “too long” but, in my view, Chloe’s best interests will clearly be advanced if she is allowed to benefit from her birthday present.

[8] Under all of the circumstances, the order made should contain a provision waiving or dispensing with the necessity of any consent or permission from Ms. Campbell to allow the child to accompany Mr. Campbell to Florida.

[9] Mr. Campbell is to pick up Chloe at 4:00 p.m. on November 12, 2015 to transport her to Detroit, Michigan for the flight to Florida the next morning. The return flight arrives in Detroit at 2:00 p.m. November 21, 2015 and Chloe should remain with her father after the drive back to London until noon November 22, 2015.

[10] While Chloe is in Orlando in the care of her father and his parents, Mr. Campbell will arrange Facetime visits between the child and Ms. Campbell for 15 minutes on the following days: November 15, November 18 and November 22, with each visit at 9:00 a.m.

[11] Additionally, as a precaution, Ms. Campbell is required to produce Chloe’s passport to Mr. Campbell at least 48 hours before the pickup at 4:00 p.m. on November 12, 2015. The passport is to be returned with the child to Ms. Campbell on November 22, 2015.

RESTRAINING ORDER

[12] Against a backdrop in this proceeding of thirteen previously argued motions – including three special appointment hearings – it is not surprising that Ms. Campbell, knowing that Mr. Eberlie would have to move again for an order permitting Chloe’s holiday trip, instituted an ex parte motion on September 11, 2015 in which she sought a restraining order, presumably under s. 35 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 – because relief is sought against Mr. Campbell’s parents as well, which would be beyond the scope of s. 46(2) of the Family Law Act, R.S.O. 1990, c. F.3.

[13] In Lazier v. Mackey, 2012 ONSC 3812 (Ont. Sup. Ct.), Robertson J. reviewed the cases and affirmed that “objective facts” are required to found the basis for an order. She said:

107 … A restraining order is not a remedy for bad manners, poor communication and suspicion. A restraining order is needed where parties are unable to restrain themselves and require the state to tell them how to behave. …

[14] Similarly, in McCall v. Res, 2013 ONCJ 254 (Ont. C.J.), Spence J. cited Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. Sup. Ct.) per McDermot J. and Azimi v. Mirzae, 2010 CarswellOnt (Ont. Sup. Ct.) per Mesbur J. and stated:

What I take from these cases is:

• The fear must be reasonable

• The fear may be entirely subjective as long as it is legitimate

• The fear may be equally for psychological safety, as well as for physical safety

[15] Nothing close to a sufficient case has been made out for the imposition of a restraining order. Unfortunate circumstances leading up to the breakdown of this marriage have been followed by even more concerning events. Mr. Campbell’s affidavit evidence convincingly raises real doubt about Ms. Campbell’s sincerity and underlying motivation. For example, Mr. Campbell’s evidence is not contradicted when he deposes that Ms. Campbell drove into his parked vehicle about nine months before the separation, causing about $27,000 in damage, an incident investigated by P.C. Chad Power of the London Police Service.

[16] What followed was what Mr. Campbell describes as attempts, during this high-conflict case, by Ms. Campbell to have him unfairly targeted by the police for mistreatment, it having not escaped his notice that Mr. Power is now Ms. Campbell’s “boyfriend,” as she said. In fact, the surveillance activity conducted by the private investigators retained by Mr. Campbell was apparently related to allegations of misfeasance and omission now before the Office of the Independent Police Review Director concerning Mr. Power and several other members of the Police Service.

[17] There is no credible or cogent material before me to support Ms. Campbell’s claim of reasonable grounds to fear for her safety or that of Chloe. Her motion is dismissed.

COSTS

[18] Mr. Eberlie and Ms. Campbell may make submissions with respect to costs in letter form addressed to me in the care of the trial coordinator. Mr. Eberlie’s submissions should be sent to me and Ms. Campbell within 35 days, after which Ms. Campbell will have a further 20 days to send her submissions to Mr. Eberlie and to me. Mr. Eberlie shall then have a further 10 days for a brief reply, if any. I want to know particulars of offers to settle, if any, and when they were made. Submissions must be brief and may be in point form.

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Date: October 13, 2015