SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 36539/14

DATE: 20151122

CORRECTED: 20141209

RE: X., Applicant

AND:

Y., Respondent

BEFORE: Trimble J.

COUNSEL:
Martha McCarthy and Jenna Beaton, Counsel for the Applicant

Y., Self-Represented

Lorne Glass, Counsel for A. in the OCJ Action

Lucia Spampinato, Counsel for the Halton CAS

HEARD: November 18 & 21, 2015

ENDORSEMENT

[1] This endorsement contains minor grammatical and spelling corrections to the endorsement dated November 22, 2015.

[2] I am asked to address two motions: the Father’s motion, brought on November 18 as an emergency motion (which the Mother wanted adjourned until she could retain and instruct a lawyer, having parted from her original lawyer some months ago and not indicating whether she was interviewing counsel at present, or was to see any lawyers in the ensuing 24 hours); and the Mother’s cross motion. As any adjournment of more than 48 hours would imperil the trial date set for November 20, I ordered that the Father’s motion and the Mother’s cross motion would be returnable November 20, and I set a timetable for filing response and reply material.

Relief Sought:

[3] The Father seeks an order for the following:

a) A declaration that this Superior Court (“SCJ”) trial is not stayed by protection proceedings the parties’ 13 year old daughter, A, brought in the Ontario Court of Justice (“OCJ”) on behalf of herself and her two siblings (the OCJ protection proceeding), and that this trial shall proceed (ground 3);

b) An order dismissing or staying the OCJ proceedings (grounds 4 and 5);

c) An injunction aimed at Mr. Glass and the Mother designed to prevent Mr. Glass from acting for A in the OCJ proceedings and to disgorge his file to the Father along with information relating (grounds 6 to 15).

[4] The Mother opposes this motion, and brings a cross motion for an order that:

a) The Children be given the “opportunity to have their wishes and preferences considered as part of…” this trial; and

b) The parents have joint custody (notwithstanding Gray J.’s order granting interim custody to the Father).

[5] Counsel for the Father and the Mother herself filed affidavits, and both made submissions.

[6] The Halton Children’s Aid Society filed a brief affidavit correcting paragraph 42 of the Father’s first affidavit, and made limited submissions.

[7] Mr. Glass filed no materials, but made submissions on discrete parts of the Father’s motion in his personal capacity as the object of the claimed injunctive relief, and as purported counsel for A in the OCJ protection proceedings.

Decision:

[8] The Father’s motion is allowed in part. The trial of this action will commence at 10 a.m., November 23, and proceed for its ten scheduled sitting days. The balance of his motion is dismissed. The Mother’s motion is dismissed in its entirety.

Background:

[9] This case is an extremely high conflict case. The rancor between the parties is so high that Miller J. made an order on June 3, 2014, that the parties (except for limited occasions) could only communicate by email or other electronic means, or by phone.

[10] In this file’s short life, there has been a significant amount of activity. The Father brought his Application on February 26, 2014, and has amended it twice. The file is two full file boxes, and the Continuing Record is multi-volume. There have been twelve interlocutory events not including these motions.

[11] The matter was set for a one day hearing on March 9, 2015, on the Father’s allegation that the Mother had alienated the children (especially A). These allegations were in issue early on in the application, but clearly and without doubt following the release to the Mother at the end of September 2014 of Howard Hurwitz’s report of September 23, 2014, saying that she had alienated the children.

[12] For reasons that are unclear, the matter was removed from the March 2015 trial list.

[13] After a Case Conference, and on consent, Gibson J. placed this action into the November 2015 sittings, scheduling it for ten days. If it was to be longer, the parties were to advise the court. The September 17 conference call was adjourned twice without agreement on length of trial. On October 8, Gibson J. noted that the Mother intended to bring a motion to adjourn the trial. In addition, he noted that while the Father estimated the trial at ten days, the Mother thought it would be four weeks.

[14] On October 15, Gibson J. heard and denied the Mother’s motion to adjourn the trial to the March 2016 trial sittings. She wanted the adjournment so that she could a) retain and instruct new counsel, b) review and consider fully the Hurwitz report, and c) instruct and obtain a report from her parental alienation expert. The Father said that this was a delay tactic. Gibson J. agreed with the Father. More significantly, he held that it was in the best interests of the children in this high conflict case, with hotly contested allegations of parental alienation, that the matter be tried. For these reasons, he also ordered that the case be given high priority on the November 2015 sittings list.

[15] After a combined Settlement and Trial Management Conference on October 27, 2015, Coats J. confirmed the matter for a ten day trial on the November 2015 list.

Issues:

[16] The Mother’s motion raises the issue of custody. That is one of the central issues in the proceeding, and will be determined at trial. As to the children being heard, they will be, in the usual way, as I comment on below.

[17] The Father’s motion raises a number of issues. I will deal with the following:

a. Should the Superior Court of Justice (“SCJ”) proceeding, scheduled to begin on November 23, be allowed to continue?

b. Does the OCJ protection proceeding stay the Superior Court of Justice Proceeding?

c. Should the OCJ protection proceeding stay the Superior Court of Justice Proceeding?

d. Do I have the jurisdiction to stay the OCJ protection proceeding?

e. Should I stay the OCJ protection proceeding?

a) Should the SCJ proceeding, scheduled to begin on November 23, be allowed to continue?

[18] Yes.

THE POSITIONS:

[19] The Father says that it is in the best interests of the children that the dispute between the parents be resolved as quickly as possible so that the family can begin to repair relationships, especially that of the Father with A.

[20] The Mother says that the SCJ proceeding must be adjourned for three reasons: a) the CAS has not yet produced its file to the litigants notwithstanding the consent was given in March 2015; b) the OCL should be appointed to give the children a voice in these proceedings (i.e. the OCL should act as counsel for the children, and without the OCL or Mr. Glass the children’s voices will not be heard); and c) this trial’s proceeding would cause emotional harm to the children.

[21] Mr. Glass attempted to make submissions. I refused to hear them as this was not an issue on which he had sought standing.

[22] I agree with the Father’s position for several reasons

EARLY RESOLUTION IS REQUIRED

[23] First, given the conflict and rancor between the parents that plays itself out in front of the children, and given A’s deteriorating relationship with the Father, as Gibson J. pointed out, the best interests of the children require that his family dispute be tried as quickly as possible so that the rancor is reduced, and the familial healing can begin. Prolonging the dispute by staying the SCJ proceedings so that the OCJ protection proceedings can take their course makes no sense. I will comment on these proceedings more, shortly. However, if those proceedings had merit, allowing them to take their course would delay the resolution of this family’s disputes by not less than another year.

MOTHER’S POSITION IS A DELAY TACTIC

[24] Second, I find that the Mother’s arguments in response to the Father’s request that the SCJ proceedings continue are nothing more than stall tactics.

[25] The OCL is required: This matter has been going on for two years. The case has been a high conflict case from the outset. Custody and access have been issues for that whole time. The Father has claimed from early in the application that the Mother has alienated A and that there is a danger she will alienate the other children. Without doubt, it has been an issue since September 2014 with the production of Mr. Hurwitz’s report. The CAS, according to both parties, has been involved with the family from the outset of the proceedings.

[26] The Mother submits that involving the OCL was always something she considered doing. While she considered, she did not act. For the first one and a half years of this matter, and for the year following the release of Mr. Hurwitz’s report, the Mother was represented by the same counsel. During that time, the Mother, through counsel, took no step to involve the OCL in this matter. Since she became self-represented, she took no step to involve the OCL. It does not appear to have been an issue before Gibson J. The Mother only advances the argument since Gibson J. refused her request for an adjournment. Indeed, her first active step to involve the OCL was her cross motion against the Father’s brought on November 18.

[27] Had the Mother been serious about the OCL’s presence being necessary because the children need a voice, she would have, and ought to have sought the OCL’s involvement before now.

[28] The CAS files are necessary: One must assess this request against the same background as her claim that the CAS notes must be produced before the trial can begin. The first time that the Mother actively sought production of the CAS file appears to be in March 2015 when the parties signed a consent to obtain them. It would have been better that the CAS file had been produced shortly thereafter. It has not, to date, and the reasons for the delay are unclear.

[29] It would have been better if either of the parties took steps to obtain production of the CAS file early in the proceedings. The need to obtain the CAS file has, or ought to have been clear from the outset of the proceedings given the CAS’s involvement. That the CAS file has not been produced to date is the parties’ doing. They could have asked for it earlier, or been more persistent for its production. They could have obtained an order in one of their multiple appearances. In any event, that the CAS file has not been produced to date is not fatal to either side’s case. It can be obtained by summons, with the CAS record keeper compelled to attend with the file at the outset of the trial.

[30] The majority of the Mother’s submissions concerned the argument that if the SCJ proceedings are allowed to continue, the children will suffer emotional harm and their voices will not be heard. She says that the OCJ proceeding should be allowed to continue to determine whether the children need protection, and the OCL should be involved there too.

[31] The Mother’s position is illogical. Is this a high conflict case? Yes. Could the parents have approached their divorce better than by the high conflict approach taken? Yes. Have the children suffered emotionally after being exposed to the parents’ approach to their divorce? Likely.

[32] Logic dictates, as I have said, that an early resolution of the dispute is required. In these proceedings, which will begin on Monday, the children’s views will be heard. They will be expressed by their parents, the CAS workers, and four highly trained experts. They will be expressed and heard within the next ten business days. A judgment will issue within a few months of the conclusion of the case. Would this relatively early resolution of the case do more emotional harm than that which would be done by continued exposure to a high conflict case? No. In any event, there is no uncontroverted evidence before me that supports that an adjournment of the SCJ proceedings is in the children’s best interests.

[33] Conversely, if this matter is stayed and the OCJ matter continues, any emotional damage the children might face (of which there is no uncontroverted evidence before me) would likely be much worse. Section 39(4) of the Child and Family Services Act says that A would be entitled to be present in the Court and participate in the process because she is over twelve years of age. She participated in the Courtroom on November 12 when Mr. Glass, unknown to the father, brought A to court when he attended to set the date for the Case Conference in the OCJ protection proceeding. The mother did not object to this. Indeed, she approved of A bringing the OCJ proceeding and attending on November 12 with Mr. Glass. Her approval and encouragement regarding the OCJ proceeding stands in stark relief to the position she now takes in the SCJ action.

[34] The CAS has begun its investigation pursuant to the OCJ Application. The children’s involvement in and exposure to litigation increases by virtue of that proceeding having been brought, thereby exacerbating any emotional harm that may already exist for the children.

a) OCJ Protection Proceeding is a Stall Tactic and Abuse of the Process

[35] Third, I find that the OCJ proceeding is an abuse of process, a stall tactic, aimed at gaining tactical advantage in the SCJ proceeding. I say this for several reasons.

[36] Reason one: The CAS did not bring the OCJ protection proceeding.

[37] The CAS has been involved with the family since February 2014. If it had any concerns of harm to the children, it would have acted long ago and brought the OCJ protection proceeding itself. It is investigating the allegations of possible harm now, because the application triggers this obligation.

[38] Further, the incident that spurred the CAS’s involvement last before the OCJ protection proceeding was triggered because the Mother refused to supervise A when she refused to visit her father. The CAS said that when A refused to spend access time with the Father, the Mother was obliged to supervise A.

[39] The CAS worker, in his affidavit on the motion, says that the CAS did have “ongoing child protection concerns regarding the children, and A, in particular, being at risk of emotional harm as a result of the parent’s ongoing conflict”. This, however, follows the initiation of the OCJ protection proceeding, which the CAS is obliged to investigate.

[40] Further, at the motion before me, the CAS took no position on the relief requested, nor did they express any concerns that the SCJ proceedings’ going forward as currently constituted posed any risk to the children.

[41] Reason Two: The OCJ protection proceeding, on its face, has dubious merit. I say that in the context of determining the issue of the stay of the SCJ action.

[42] On its face, the OCJ Application suggests that it was started for the purpose of effecting a result in the SCJ action; namely representation for the children in that proceeding.

[43] In paragraph 1 of the OCJ Application, A claims that the children “has/have” suffered”, and that “there is a risk that the child(ren) is/are” likely to suffer emotional damage as set out in S. 37(2) (f to h) of the CFSA.

[44] The facts pleaded in the Application, however, do not support the allegation that there has been or may be future harm such that the children need protection. A complains of fears that arose in 2014, but with respect to which she did not take any action. Most of the facts she pleads in paragraph 6 of the OCJ Application indicate that she brought the OCJ proceedings because she was not given a voice in the SCJ proceedings and because her father threatened to block her lawyer from acting in the SCJ proceeding. None of this has to do with child protection. It all has to do with delaying the SCJ action.

[45] The correspondence supports the conclusion that the OCJ protection proceeding was brought for tactical purposes in the SCJ proceedings. Mr. Glass, in his email of October 27, 2015 (sent before he commenced the OCJ protection proceeding on behalf of A), speaking as A’s lawyer, said that it was important “…in all cases involving children that their views and preferences be made known to the parties and the Court.” Certainly, Mr. Glass, and through him A knew that children’s views are normally presented to the court through the parents, doctors, assessors and experts.

[46] If A wanted to have standing in the SCJ proceedings, there is a procedure open to her through which she might be added as a party and afforded representation. Mr. Glass, himself argued this position, albeit in support of A’s right to bring the OCJ protection proceedings, and in support of his claimed right to act for A without permission of the Father, the person with interim custody of the children.

[47] Mr. Glass argued that under Family Law Rule 4(1), the traditional view is that children are a “special party”. According to Justice Scott in Durham CAS v. S (A), 2011 ONSC 1001, the child as a special party must have a litigation guardian to speak for him/her, and who could retain counsel who could seek leave under FLR 4(2) to represent the children.

[48] Mr. Glass argued, however, that since the dispute here is, in part, over custody and access, the children are excepted from the definition of “special parties”: see FLR 2(1), “special party”. Therefore, they are parties and have the right to bring the OCJ proceeding: see M (CM) v. C (DG), 2015 ONSC 2447 (Div. Ct.). Although this was not argued, by extension of the MCM principle, he could have argued that the children are entitled to be represented in the SCJ proceeding as parties. Neither A nor the Mother opted to make the application that A could be separately represented in the SCJ proceedings.

[49] By the proceeding paragraphs, I do not decide whether the children should have separate representation in this action. The Mother did not request this and as the non-custodial parent has no standing to request this. Mr. Glass, purported counsel for A in the OCJ, did not request the relief in the SCJ proceeding.

[50] Reason three: The timing of events, based on the facts as I find them, leads me to find that the OCJ protection proceeding is brought as a tactical measure to effect a result in the SCJ proceeding, and is an abuse of process. The facts are:

a) Mr. Glass was retained before the motion was brought to adjourn the trial.

b) Mr. Glass did not contact the Father until after the Mother’s motion to adjourn was dismissed. The Father received Mr. Glass’ letter, dated October 14, 2015, two hours after Gibson J. dismissed the Mother’s request for an adjournment of the trial.

c) The Mother says that A sought out Mr. Glass and made an appointment on her own after ‘someone else’ told her that given her age she could have separate representation. The Mother says that her involvement was limited to taking A to the appointments with Mr. Glass, and paying the fee. I have some difficulty accepting that A sought out Mr. Glass without adult assistance. She was 13 at the time. In any event, I do not accept the Mother’s position with respect to her own actions. She attempts, by limiting her role, to limit her responsibility as well. She took A to her meetings with Mr. Glass. She paid his fee. She provided him with certain assessment reports and court orders. At minimum, she must have appreciated that whatever A was doing with Mr. Glass would advance the Mother’s position in the SCJ proceedings. This explains why she did not speak to the Father before assisting A in seeing Mr. Glass. She did not insist that A speak to her Father. She did not refuse to assist A. She said in her questioning that she wanted A to have a voice, and if she wanted one she should have one. Yet she said that she did not know where the meeting between A and Mr. Glass would lead. I reject this. By taking A to visit Mr. Glass and paying the fee, she facilitated and encouraged A in ultimately bringing the OCJ Application.

d) Mr. Glass and A knew that the Father was the custodial parent and consented neither to Mr. Glass’ retainer nor any action on his part, yet Mr. Glass persisted in acting. The OCJ protection proceeding was brought.

e) The correspondence from Mr. Glass indicates his purpose in acting was to effect a result in the SCJ proceeding. The first mention in correspondence concerning the possibility of OCJ protection proceedings comes with the application itself. In his email of October 27, and October 29, Mr. Glass says that his concern was A’s being heard in the SCJ proceedings, and that he was seeking instructions from her regarding “the necessary steps to make that possible”. In his email of November 3, Mr. Glass says that he is counsel for A “with respect to the litigation now going on between her parents and the results that might follow from this litigation.” That he frames his retainer in this way yet never seeks status for A in the SCJ proceedings indicates that the intention in bringing the OCJ proceeding was to facilitate the Mother’s position with respect to a stay or adjournment in the SCJ action.

f) Mr. Glass, in his email of November 13 to the Mother and to the Father’s counsel, states clearly and unequivocally that the purpose of the OCJ protection proceeding was to stay the SCJ. He says “the [SCJ] proceeding, insofar as it deals with the issue of custody of and of and (sic) access to any of the children in this matter, must be stayed pursuant to section 57.2 of the Child and Family Services Act”, and “I am hopeful that there will be an agreement not to proceed with the trial on the issues of custody and access until the child protection matter is concluded.”, and “Clearly A and her siblings have a great interest in the [SCJ} trial and will be very much affected by any orders that are made with respect to custody and access. As such I believe that if you choose to proceed, the children should be represented by counsel.” Having made this position clear, he brings no request to represent the children in the SCJ proceedings.

g) Mr. Glass, in his email of November 15 to the Mother, CAS and the Father’s lawyer, says again that the children should be represented at the SCJ proceeding, yet seeks no such relief. He merely reiterates his view that the OCJ proceedings stay the SCJ proceedings.

h) The CAS became active in the file again because of the OCJ protection proceeding. They did not initiate it, although they have been active with the family since February 2015.

i) The Mother’s motion to adjourn the SCJ proceeding and the OCJ protection proceeding both follow Mr. Hurwitz’s updated recommendations disclosed at a meeting on September 9, 2015. Both parties agreed to Mr. Hurwitz’s retainer as an expert to assist in reducing conflict and rebuilding relationships in this fractured family. In his second report, he recommended that A spend three months living with the Father, with little or no contact with the Mother. The Mother disagreed with and refused to follow the recommendations. Her actions after that time were focused on delaying the SCJ proceeding.

b) Does the OCJ protection proceeding stay the Superior Court of Justice Proceeding?

[51] No. I say this for a number of reasons.

[52] First, Mr. Glass, and inferentially the Mother, say that the SCJ proceeding, although brought under the Divorce Act, insofar as custody is concerned is an application under the Children’s Law Reform Act. They point to the fact that Mr. Hurwitz’s assessment was conducted under s. 30 of the CLRA as evidence that the Father intended to seek custody and access under the CLRA. Therefore, s. 57.2 of the Child and Family Services Act stays the CLRA action, unless I grant leave that it continue. They say I should not grant leave for the same reasons as they argued I should stay the SCJ proceeding.

[53] It is clear from page 4 of the Amended Amended Application that custody and access were claimed under the Divorce Act as ancillary relief from the inception of the Application. The same claims are advanced under the heading “Claims under the Family Law Act or the Children’s Law Reform Act”.

[54] An assessment under s. 30 of the CLRA, and the prayer for relief under the CLRA are relevant facts in determining whether the Father intended to seek custody and access under the CLRA rather than the Divorce Act. They are not determinative.

[55] It is common to plead for relief under both the CLRA and Divorce Act. Alternative pleas are allowed.

[56] In Divorce Act proceedings it is common to use s. 30 of the CLRA to obtain assessments. Such assessments are allowed where custody is also sought under the CLRA. In addition, such assessments are commonly ordered in Divorce Act proceedings because s. 30 provides a procedure and framework for assessments which the Divorce Act does not have: see Hovius on Family Law (8th ed), p. 617-618.

[57] Quigley J. expressed the view, albeit in obiter, with which I agree, that in order to ensure parity between rights existing in the Provincial and Federal statutes regarding custody and access, and hence between married and non-married parents in custody and access disputes (there being no language prohibiting it), s. 30 of the CLRA is usually read into the Divorce Act as a necessary tool to exercise the custody and access powers of the court: see Morrone v. Morrone, [2007] O.J. No. 5341.

c) Should the OCJ protection proceeding stay the Superior Court of Justice Proceeding?

[58] No.

[59] Even if s. 57.2 of the CFSA applied, for the reasons stated above regarding not staying the SCJ proceedings, I would have granted leave to allow the SCJ proceedings regarding custody and access to continue.

d) Do I have the jurisdiction to stay the OCJ protection proceeding?

[60] Yes.

[61] The Father says that s. 107 of the Courts of Justice Act allows a Superior Court Judge to stay an OCJ action. The Mother says that s. 107 only allows an SCJ judge to stay another SCJ action, not an action in the OCJ. Neither party had authority for their positions.

[62] A plain reading of s. 107 allows a SCJ Judge to stay a “different action” in a “different court” where the actions involve a common question of law; arise from the same individual or series of transaction or occurrences; or for any other reason the other action ought to be subject to an order under this section. S. 107, on its face, does not limit the SCJ Judge’s powers as suggested by the Mother.

e) Should I stay the OCJ protection proceeding?

[63] No.

[64] Since the protection of the children as defined in the CFSA is different than the best interests of the children in this proceeding, it is better for the stay question to be determined in the OCJ.

[65] The balance of the Father’s motion is dismissed without prejudice to bring it on before the judge hearing the OCJ protection proceeding. That judge is in the best position to control its own process.

[66] Costs of this motion will dealt with as part of the costs of the action, overall.

Trimble J.

Date: November 22, 2015

Corrected: December 9, 2015