Court File and Parties
COURT FILE NO.: FS-13-00018618 DATE: 20160412 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Elizabeth Becker, Applicant -and- Ryan McGrath, Respondent
BEFORE: F.L. Myers, J.
HEARD: April 11, 2016
Endorsement (Transcribed)
Endorsement
1Despite Mr. Marco’s affidavit stating that Friday, April 22, 2016 is the Jewish holiday of Passover, I take judicial notice that Passover begins at sundown that night. The contempt motion is scheduled to be heard the day before Erev Pesach, i.e. April 21, 2016. That day might be busy, but it is not a holy day. There is no reason why the applicant and counsel cannot attend. There is however, every reason to think that the applicant is stalling.
2I have already ruled that the respondent may appear by telephone and be cross-examined by phone subject to the discretion of the motion judge. Yet Mr. Marco advises that the applicant will be objecting to the telephone appearance sight unseen or evidence unheard. It is also relevant that the applicant has tried previously and again to adjourn the motion to a date that is after the respondent’s next scheduled access on April 24, 2016.
3The contempt motion material filed makes clear the respondent’s allegation that the applicant is impeding access. That issue has been outstanding for too long without the respondent having his assertion heard – see respondent’s affidavit sworn November 26, 2014 – Tab 13 of Continuing Record and his affidavit sworn February 8, 2016, Continuing Record, Tab 20.
4I am also cognizant of the endorsement of Kiteley, J. dated December 9, 2014. I reject, as incredible on its face, Mr. Marco’s evidence that the respondent’s relief sought is “unknown to this office.” He seeks an order holding the applicant in contempt due to her failure to fulfill her obligations under the Consent Order of November 17, 2011. He expressly waives seeking a jail term. His affidavits are clear and detailed. The respondent should deliver his Notice of Motion setting out details of the acts of the applicant that he says amount to contempt with greater particularity, soon. However, a claim to not already know is belied by the details in the respondent’s November 26, 2014 affidavit and the exhibits thereto. He seeks to enforce the applicant’s legal and moral duty, as recognized already by Kiteley, J. (see para. 10 of her endorsement) to “promote and continue the father child relationship.”
5Were I to consider granting an adjournment, I would have imposed strict terms to ensure that [the child’s] right to see her father April 24 – May 2, 2016 was not prevented or interfered with by the applicant. However, I have determined that the preferable course is to bring the motion on for hearing on April 21, 2016 so that the presiding judge can consider the contempt issues. In addition, both parties are hereby notified that the judge hearing the motion may well consider questions of interim custody, access, primary residence, and all attributes thereof pending the final determination of this application.
6The best interests of the child need to be considered by a court and it has taken far too long for that to happen. Counsel are reminded that Rule 5.1-1 of the Rules of Professional Conduct of The Law Society of Upper Canada do not just provide for counsel to fearlessly and zealously raise every issue. Rather, the Commentary makes clear that the goal of zealous representation is to “promote the parties’ right to a fair hearing at which justice can be done.” This issue has been outstanding since late 2014, if not before.
7If a parent is wrongfully preventing access, justice must be done sooner rather than later for the child and the parties. Putting up technical roadblocks and failing to co-operate to bring a hearing forward on the merits for fair determination is not zealous or fearless advocacy under Rule 5.1-1. It is not promoting the parties’ right to a fair hearing. It is improper bullying especially with a self-represented party on the other side.
Disposition
814B motion is dismissed. I will provide a typed version of this endorsement shortly.
F. L. Myers, J.
Date: April 12, 2016