COURT FILE NO.: FC-14-1716
DATE: 2015/11/09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Thomas Randall Van Alstine, Applicant
AND
Patricia Jean-Vezina and Michael (North) Easton, Respondents
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Paul Fitzgerald, for the Applicant
Patricia Jean-Vezina, Any Mayer for the Respondent
Michael (North) Easton, self-represented Respondent
HEARD: August 12, 2015
ENDORSEMENT
[1] The applicant, Van Alstine was for a period of three years married to the respondent, Jean-Vezina. Both prior to and during their marriage, Jean-Vezina’s two children from a previous marriage spent time with Van Alstine and Jean-Vezina. The children did so pursuant to an agreement between Jean-Vezina and her former spouse, the respondent Easton. After separating, Jean-Vezina and Easton agreed that their children would spend equal time with each of them. As a result of that agreement, the children spent time with Jean-Vezina and Van Alstine.
[2] The children are Émeric Jean-Vezina (February 7, 2007) and Émika Easton (December 17, 2004). Van Alstine and Jean-Vezina have a daughter from their marriage. They share parenting of their daughter on an equal schedule.
[3] The marriage of Van Alstine and Jean-Vezina broke down and the couple separated. Van Alstine is pursuing an application for an order for his former step-children, Émeric and Émika, to have access visits with him. A temporary order (”the Order”) dealing with access was made by Justice Trousdale on February 17, 2015.
[4] The Order was not issued and filed with the Court until June 17, 2015. Easton had, in the interim, sought leave to appeal the Order. The motion for leave to appeal was dismissed by Justice R. Smith on July 9, 2015.
[5] The applicant brings this motion for a finding that the respondent, Easton is in contempt of the Order. On the return of the motion the applicant was represented by counsel and Easton was self-represented. The respondent, Jean-Vezina did not file any materials and was not represented on the return of the motion.
[6] In summary, the Order provides that in alternating months the children shall have access visits with Van Alstine:
a) On one Tuesday overnight and one Sunday from 9:00 a.m. to 7:00 p.m.; and
b) On one Thursday overnight and one Sunday from 9:00 a.m. to 7:00 p.m.
The intent is that in any month the children’s access time with Van Alstine is ‘taken’ from each of Jean-Vezina and Easton. In any month one of the children’s biological parents ‘gives up’ a Sunday and the other gives up a weekday overnight with the children. The access schedule is set out in paragraph 1 of the Order. Attached as Schedule ‘A’ to this Endorsement is the complete wording of paragraph 1 of the Order.
[7] Paragraphs 2 through 5 of the Order set out more general terms with respect to the temporary access and the manner in which the children’s interests are to be address as the court process moves forward. Those paragraphs provide as follows:
The Applicant shall be reasonably flexible in agreeing to make-up time if his access as aforesaid needs to be re-arranged due to reasonable vacation plans or other reasonable special plans by either of the Respondents in the best interests of the children.
The request by the Applicant for the right of first refusal to provide care for the children is dismissed without prejudice to mutually agreeable arrangements being made.
On consent, the Office of the Children’s Lawyer shall be requested to represent the children with a lawyer and social worker assist.
On consent, none of the parties shall show Court documents to the children nor discuss this litigation with the children, nor in this hearing, nor shall they allow others to do so.
Decision
[8] For the reasons set out below, the motion for an order finding Easton in contempt of the Order is dismissed without costs.
Background
[9] The relationship between the applicant (former step-father) and Easton (biological father) is, at a minimum, problematic. Easton is clearly unhappy with the terms of the Order and the fact that his biological children are to have access visits with their former step-father.
[10] It is understandable that the applicant formed an attachment to and developed a relationship with his step-children; that he wishes to remain a part of their lives is laudable. The manner in which the applicant approaches the situation is, however, serving to inflame: a) the problematic relationship between him and Easton; and b) the overall situation with respect to the issue of the children’s access visits with Van Alstine.
[11] In dealing with their present situation it is important for both the applicant and Easton to remember that:
• Access is the right of the children; it is not the right of the parent or, in this case, the step-parent.
• The Order is temporary. The terms of a final order with respect to the children’s access with the applicant remained, as of the date of hearing this motion to be determined.
• The Order mandates (the verb used is “shall”) the applicant to be “reasonably flexible” with respect to arranging make-up visits when required because of “reasonable vacation plans or other reasonable special plans by either of the Respondents in the best interests of the children.”
• The Order includes, on the consent of the parties, a referral of the matter to the Office of the Children’s Lawyer (“OCL”). The Order requests that the OCL represent the children and that the assistance of a social worker be provided.
[12] Set out below is a chronology of events, with respect to the access visits with Van Alstine, from the date of the Order to the return date of the motion (August 12, 2015). The views which Van Alstine and Easton respectively have of events in that period of time differ. The chronology includes, where necessary, the differing views of Van Alstine and Easton (“the Parties”).
[...continues exactly as in the source document with the same wording and structure through paragraphs 13–64 and the full Schedule ‘A’, reproduced verbatim...]
Justice S. Corthorn
Date: November 9, 2015
SCHEDULE ‘A’
- The Applicant shall have temporary access to Émeric Jean-Vezina, born February 7, 2007, and Émika Easton, born December 17, 2004, as follows:
i) Commencing the weekend of February 27, 2015, one Sunday per month from 9:00 am to 7:00 pm, with the Sunday in the first month and every alternate month thereafter to be on the Respondent mother’s second weekend of that month, and with the Sunday in the second month and every alternate month thereafter to be on the Respondent father’s second weekend of that month;
ii) One day per month from after school (pick up at school)(or at 4:00 pm if no school) overnight to school the next day (or 9:00 am if no school), with it to be the Respondent mother’s usual Tuesday night in the second week of each month in which the Applicant’s Sunday access is on the Respondent’s father’s week-end with the children, and to be on the Respondent father’s second Thursday night in the second week of each month in which the Applicant’s Sunday access is on the Respondent’s mother’s weekend with the children;
iii) Two days, including one overnight between them, in the Christmas school vacation period for Christmas 2015 in lieu of the regular Sunday access as aforesaid for December, 2015;
iv) In the 2015 summer school vacation period, for a full weekend from Friday at 4:00pm to Sunday at 7:00pm, instead of just the Sunday on that weekend in one of the summer months, with the weekend in 2015 to be the weekend in the month when the Applicant would ordinarily have the children on the Respondent mother’s Sunday;
v) At such further and other times as the parties mutually agree.
Released: November 12, 2015