Laflamme v. Judge, 2016 ONSC 2174

CITATION: Laflamme v. Judge, 2016 ONSC 2174

COURT FILE NO.: FC-15-671

DATE: 2016/03/30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mario Laflamme, Applicant

AND

Sandra Judge, Respondent

BEFORE: Shelston J.

COUNSEL: Diana Carr, counsel for the Applicant

Christian Pilon, counsel for the Respondent

HEARD: By Written Submissions

supplementary ENDORSEMENT

1On February 16, 2016, I heard a motion brought by the applicant concerning access to his 12-year-old daughter Amelie.

2On February 25, 2016, I released my endorsement which granted the applicant access subject to two conditions. One of the conditions was that the applicant would be required to submit to hair follicle testing every two weeks.

3On March 16, 2016, I received a letter from Ms. Carr, counsel for the applicant, requesting that I vary the terms of my order because subsequent to my decision, the applicant discovered that the cost of the hair follicle testing would be approximately $225-$275 for every test and that the cost until trial in September would be over $4,000.

4I requested submissions from the respondent. Respondent’s counsel objects to me considering the request. He submits that the letter submitted by applicant’s counsel is improper and is not permitted pursuant to the Family Law Rules and consequently I should dismiss this request. The primary ground is that it is improper for a party to write to a judge after a decision has been made. Secondly, it is unfair to the respondent because the respondent’s motion for child support was adjourned to a date to be set. Thirdly, the respondent alleges that the applicant was negligent in making the offer to submit the hair follicle testing without knowing the cost. Finally, the best interests of the child require no variation of the existing order.

5The applicant submits, in hindsight, that he would have made a request for hair follicle testing as part of his motion if he had known that hair follicle testing would be proposed, considered or ordered. He further submits that under rule 25(19) of the Family Law Rules, I have jurisdiction to change the order if the order contained a mistake.

6The applicant submits that the mistake was made by every party about the actual cost of the hair follicle testing.

7I do not consider myself functus in this matter as I still have to decide the issue of costs.

8At the hearing of the motion on February 16, 2016, I raised the issue of hair follicle testing with counsel for the applicant during her reply submissions. In response counsel indicated that her client was prepared to submit to hair follicle testing. At the same time, the applicant himself indicated that he was willing to undergo the hair follicle testing every week. The applicant was quite adamant and specifically stated “I will do whatever it takes”.

9When I asked counsel for the applicant where the testing would take place, the applicant himself indicated that there was a location on Riverside Drive. At no time did the applicant seek a delay to confirm the cost of the testing.

10Further, the applicant, in his affidavit dated October 22, 2015, at Tab 10 of Volume 1 of the Continuing Record, attached a report from Workplace Medical Corporation dated September 11, 2015 regarding hair follicle testing for drugs.

11The applicant offered to undergo the hair follicle testing without any conditions. Consequently, I do not find there was any mistake and deny his request to vary the order.

Shelston J.