Court File and Parties

COURT FILE NO.: FC-16-858 DATE: 2016-05-18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Katrina Claire Yelle, Applicant AND Roman Scorobruh, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Erika Young, Counsel, for the Applicant Pierre Ranger, Counsel, for the Respondent

HEARD: May 12, 2016 at Ottawa

Endorsement

[1] The Respondent father brings this motion for the following relief:

(i) An order granting leave to bring this motion prior to a case conference given its urgency; (ii) An order that the parties maintain an equal time sharing on an alternating weekly basis for the child; (iii) An order preventing the Applicant mother from removing the child from the jurisdiction without the father’s consent; (iv) The appointment of the Office of the Children’s Lawyer (OCL) to investigate and report to the Court on the issues of custody and access; and (v) Costs.

[2] The Applicant mother opposes the relief sought (except (iv)) and indicates that this case does not fall within the definition of “urgency” that would allow the father to circumvent the process of attending a case conference before a motion.

[3] The parties agree to the involvement of the OCL.

[4] For reasons set out below, the Court orders the following:

i) The parties may set a date for the motion to deal with the parenting issues to be heard after the case conference; ii) The parties will be ready to proceed to a case conference at the hearing before the First Court Date Clerk on July 13, 2016; iii) The mother may not leave the jurisdiction of Ottawa with the child without the written consent of the father or further Court order; iv) The issue of the involvement of the OCL will be canvassed at the case conference; and, v) Costs of this motion are reserved for the Trial Judge.

Background

[5] The mother’s application was issued on April 21, 2016 and the First Court Date Clerk hearing date has been set for July 13, 2016.

[6] The parties lived together from 2010 until July 1, 2015. They have one child from the relationship, namely Ofelia Scorobruh, born July 17, 2012.

[7] The father, a mechanical engineer from Russia, is 43 years of age and immigrated to Canada in 2001 to join his immediate family members. He alleges that when he met the mother she had some serious mental health issues, including depression and mood disorders.

[8] The mother is 26 years of age and had been attending adult high school on a part-time basis since September 2015 but dropped out in April due to the stress caused by her relationship with the father. She is in receipt of Ontario Works’ support. The mother admits to suffering from depression and anxiety for which she takes medication.

[9] The Children’s Aid Society has been involved in the past and the Ottawa police have been called on several occasions.

[10] The parties signed an agreement whereby the father agreed to move out of their apartment by June 1, 2015 and the parties agreed on financial arrangements with respect to the rent. The father’s evidence is that, due to the mother’s urging, he stayed a further month and moved out on July 1, 2015.

[11] The father’s evidence is that from July 2015 to December 2015 he spent almost every weekend caring for Ofelia.

[12] In January 2016, the parties signed an agreement whereby the parties would have a shared parenting alternate-week arrangement. The father states the agreement worked well for three months (until early April 2016). The mother says it was in place until March 20, 2016. The agreement is not in evidence.

[13] The mother indicates that she plans to move with her boyfriend, Eric Nadeau, to Halifax in the summer of 2016. The father opposes the move.

[14] The mother became re-involved with a boyfriend who she had dated after the separation. The father says that it was at this point that his access became restricted. He states that the mother removed the child from daycare. He further indicates that the mother intends to travel to Halifax with her boyfriend and Ofelia during the week of May 15, 2016.

[15] The father states that the mother has denied him access since Tuesday, May 3, 2016. He tried contacting her at her former address on Sunday, May 8, but learned that she was no longer residing there and it was occupied by other tenants. He discovered that she now resides with Eric Nadeau.

[16] The mother indicates that the parties’ relationship was not stable and that she was subjected to verbal, physical and psychological abuse. Her Affidavit in Support of Claim for Custody or Access (Form 35.1) sets out the details of the father’s alleged misconduct including: calling the mother names, grabbing her neck and wrist and hair, causing her to receive 15 bruises, grabbing her wrist such that she had to attend the emergency room. The Form also sets out the involvement of the police following separation and alleges that the father was stalking her. No medical or police records have been filed.

[17] The mother indicates that she has been the child’s primary caregiver since her birth.

[18] She agrees that the father visited with the child on weekends after the separation and at Christmas the child did not see her father for two weeks. In January 2016, the mother agreed to try a shared parenting schedule on a trial basis.

[19] The mother indicates that she has concerns with respect to the father’s living arrangements: he lives in a communal living setting with three or four other men, where he has a single bed with no other bedding arrangements for the child and shares a kitchen, a bathroom and a common area with other men; he has not provided her with police checks for the other men with whom he lives, despite her request. She also has concerns about his parenting of Ofelia and her safety while in his care. Specifically, she is concerned that he speaks negatively about her in front of the child. In addition, she is concerned that he places the child in the front seat when driving his vehicle which could be a safety concern if the airbags are deployed. On one occasion, she indicates that the child was returned home with pimple like rash and diaper rash.

[20] Since the shared parenting agreement fell through in March or April, the father has seen the child at the following times: April 1 to April 3; April 8 to April 10; April 15 to April 18; and April 22 to 23.

[21] The mother states that the father violated the request in one of her lawyer’s letter and their agreement when he picked up the child from daycare on April 29. He had the child from April 29th to May 3rd.

[22] The correspondence of the mother’s counsel dated April 28, 2016 provided a draft order regarding access and set out some concerns with the father’s “communal living arrangement” and the safety of his vehicle. The letter states:

I’ve prepared a draft order providing your client with generous interim access prior to the first case conference. It will be necessary to have the interim order signed by both parties before access begins. If you could provide your approval as to form and content, I will have the order issued without delay and get copy to you, so that your client’s access can start without delay.

[23] The letter also specifies that pick-up and drop-off would occur at the child’s daycare. It further mentions that the mother would be taking the child to Halifax from May 15th to 21st as part of a work-related trip for her partner. Since the father will miss time with the child while they are away, she is prepared to provide make up time.

[24] In his responding letter, the father’s lawyer stated that the order was not acceptable and that the father wished to return to equal time. Further, the letter stated that the father did not consent to the child going to Halifax as there was a concern that she would not return given the mother’s declared intention to move there shortly.

[25] The father indicates that the mother has denied him any time with his child since May 3rd and that when he asked her to discuss the access schedule, she told him to go through the lawyers.

The Parties’ Positions

[26] The father brings this motion on an urgent basis for three reasons:

(1) The mother arbitrarily changed the equal-time parenting agreement; (2) The mother removed the child out of daycare; and (3) The mother intends to permanently move the child to Halifax.

[27] The father seeks to ensure that that the mother does not move to Halifax. He also has concerns with respect to the mother’s care of the child and her refusal to return to the shared custody arrangement. He notes that the first court appearance is set for July 13, 2016 and he states that the case conference would not be likely to occur until September or October 2016.

[28] The mother’s position is that the father has failed to meet the test of urgency under rule 14(4.2) of the Family Law Rules, O. Reg. 114/99 [FLRs], and submits that these issues can be explored at the case conference.

[29] The mother also has a number of concerns regarding the father’s parenting abilities and states that these issues can be explored at the case conference.

Law

[30] Rules 14(4) and (4.2) of the FLRs set out the general requirement that a case conference be held before a motion and the exceptions to that requirement:

4(4) No notice of motion or supporting evidence may be served and no motion may be heard before a conference dealing with the substantive issues in the case has been completed.

14(4.2) Subrule (4) does not apply if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.

[31] The jurisprudence provides guidance in the application of Rule 14(4.2).

[32] In Rosen v. Rosen, 2005 ONSC 480, Justice Wildman explored the issue of “urgent matters”. She referred to Justice Belch’s decision in Hood v. Hood, 2001 ONSC 28129, in which he refused to hear a motion before a case conference. Justice Belch stated, at para. 12: “It is my decision that an urgent motion within a court proceeding contemplates issues such as abduction, threats of harm, dire financial circumstances and these can be addressed prior to a case conference.”

[33] Justice Wildman agreed with these comments and further explored the circumstances in which a motion could be heard before a case conference.

[34] She stated that the first step should be to inquire when case conference dates are available to deal with the matter. The timing and availability of a case conference date are factors in determining whether a matter is urgent.

[35] Next, prior to bringing a motion, the parties should engage in settlement discussions to determine if they can obtain a resolution of the pressing matter. Justice Wildman states, at para. 9: “The focus is on achieving a short-term agreement to get the parties through to the case conference date without a motion, rather than necessarily achieving a final resolution on all issues in the case.”

[36] At para. 12, Justice Wildman holds that “[a]bsent canvassing case conference dates and showing attempts to resolve matters until the available case conference date, it is difficult to understand how urgency can be established. However, it is possible that the situation could still be so extreme that the court must intervene immediately…”

[37] In Porter v. MacLennan, 2011 ONSC 5298, the mother would not permit the father back into the home where she was residing with the children. The mother had made attempts to negotiate with the father and had offered the father access to the children. During the motion she was prepared to agree to a 50-50 parenting regime. Master Roger (as he then was) found that “[a]lthough the status quo has been disrupted by the unilateral actions of the mother, the result does not constitute what is contemplated by Rule 14 (abduction, threats of harm or dire financial circumstances).” In view of the mother willingness to agree to a reasonable interim access regime, Master Roger found that the parties should explore this prior to resorting to an urgent motion.

[38] Master Roger found that the father had not met the test of “urgency” in Rule 14(4.2).

[39] The Court was referred to Ng v. Charles, 2016 ONSC 2946, in which Justice Shelston heard a motion for which leave to be heard in advance of a case conference on an urgent basis had been given by Master MacLeod. Master MacLeod’s decision to grant leave, which rendered the motion urgent, is not before the court. In that case, the father had unilaterally taken the child from the daycare and then withheld he child from the mother, who had been the main caregiver since birth.

[40] Justice Shelston ultimately determined what was in the child’s best interests on an interim basis, rather than deciding the issue before this Court: i.e., is this an “urgent” matter?

[41] In Rooney v. Rooney, 2004 ONCJ 26, at para. 15, the court stated that findings of “urgency” within the meaning of Rule 14(4.2) should be infrequent and based on compelling evidence.

[42] In Hurd v. Hurd (2006), 2006 ONSC 15312, 32 R.F.L. (6th) 114 (Ont. S.C.), the Court found that the matter was urgent; the case involved a custodial parent who was denying any contact whatsoever to the other parent in what the Court predicted would “quickly escalate to a high conflict case.” Justice Marshman held that “[n]o parent should be allowed to hide behind a rule of procedure of this court to deny any contact whatsoever between the children and the other parent.”

[43] In Clement v. Clement, 2010 ONSC 1113, an order was made under Rule 14(4.2) where one parent actively disrupted the parties’ shared custody agreement in advance of the trial by unilaterally changing both the child’s residence and his school. The Court found that the situation was “urgent” within the meaning of the Rule and awarded temporary custody of the children to the other parent.

[44] Local practices are also relevant when determining this issue. The Procedural Guide to the Family Branch of the Superior Court of Justice in Ottawa stipulates that procedural motions are heard most Tuesdays and Thursdays at 10 a.m. These motions may be opposed, unopposed or on consent. The opposed motions should fall in the description of “express motions” and contested motions are to take no more than 10 or 15 minutes. When the Court, at Procedural Court, determines that a matter is urgent, such that a motion can be heard before the case conference, the Court can set a date for the hearing of the urgent motion.

[45] In addition, commencing April 2016, matters which are before the First Court Date Clerk can immediately proceed before a Master or Judge for an immediate issue to be addressed and/or for a case conference to be held.

Analysis

Case Conferences before Motions

[46] Rule 2(5) of the FLRs obliges the Court to promote the primary objective of enabling the Court to deal with cases justly (Rule 2(2)) by active management of cases, which includes:

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial.

[47] The primary objective, dealing with cases justly, includes: ensuring that the procedure is fair to all parties, saving expense and time, giving appropriate court resources and dealing with each case in ways that are appropriate to its importance and complexity (Rule 2(3)).

[48] Certainly, the focus of early resolution of matters starts with a meaningful case conference in accordance with Rule 17(4). At the case conference, a Court explores the chances of settling the case, explores ways to resolve issues, deals with outstanding disclosure issues, identify issues in dispute and discusses next steps. The case conference is integral to a family law case as it is the first event attended by the parties and is completed in a less adversarial fashion than a motion. A motion requires affidavit evidence that can be very antagonistic and aggressive, which can drive a deeper wedge between the parties and hurt settlement prospects. The FLRs were designed to ensure that parties attend the case conference. Only if there are instances of “urgency” or “hardship” should a Court consider permitting the parties to first attend a motion.

[49] However, as in this case, time is of the essence. When children are involved, parties may jockey for position in attempting to establish a status quo which they hope may somehow give them an advantage. Not all of the cases in which this jockeying occurs can be described as “urgent”, which would allow the parties to avoid the case conference step. Certainly in such cases, earlier dates for a case conference can be canvassed with the trial coordinator’s office. In Ottawa, the new practice of allowing the parties to attend a case conference on the date of the first appearance before the First Court Date Clerk, should allow parties to move to a motion earlier if they are unable to resolve matters. If a parent is not being reasonable regarding the other parent’s relationship with the child, it is an issue that can be discussed at the case conference.

[50] In summary, the factors which may be considered in determining whether a matter is urgent such that the parties do not need to proceed first to a case conference include:

1. Whether the parties have canvassed earlier dates for a case conference with the family court counter and with the trial coordinator’s office. If so, the dates available should be included in the materials before the court;
2. Whether the parties have explored the local practices for dealing with family law matters and for obtaining earlier dates to address matters of immediate importance. For example, in Ottawa, a case conference can be heard on the same day as the First Court Date Clerk hearing date and so this date must be taken into account in determining urgency;
3. Whether the parties have had negotiations in an attempt to reach an interim without prejudice agreement;
4. Whether the best interests of the child are at stake including whether there is an abduction issue or other safety concern;
5. Urgency must be established in accordance with the jurisprudence, which includes abduction, threats of harm, dire financial circumstances;
6. Is there hardship? In considering whether there is hardship, the Court will consider whether a party will be severely prejudiced or suffer irreparable or non-compensable harm; and/or
7. If there are other pressing issues such as domestic violence, mental health issues and/or substance issues, criminal activity or serious anger management issues, this may bring the matter out of the normal procedure as it may require immediate attention by the court.

[51] Finally, Rule 14(4.2) allows exceptions to the general rule that a case conference is to be held before a substantive motion where there is urgency, hardship or where “a case conference is not required for some other reason in the interest of justice.” This latter ground must also be read in conjunction with the primary objective of the FLRs and the Court’s need to deal with cases justly.

1) Parenting Schedule – Is this Urgent?

[52] In this case, the Court does not perceive the issue of the change to the temporary parenting agreement that was in place to be urgent.

[53] Although there were many allegations, there was no third party evidence, police reports or medical records before the Court which would suggest that the child’s safety was at risk.

[54] The parenting issues and the best interests of the child will be explored and determined in due course at a conference and/or trial. Holding a motion before a case conference to determine these issues is not urgent unless, as Justice Belch indicated, there are issues of abduction, threats of harm and/or dire financial circumstances that have to be dealt with. As stated by Justice Wildman in Rosen v. Rosen, parties are encouraged to attend these case conferences with a view to resolve some or all of the issues and deal with preliminary matters. The FLRs have been designed to avoid the affidavit war that can occur with motions.

[55] The determination of the parenting schedule is not urgent. The mother wishes to provide the father time with the child. They do not agree on the schedule. The parenting schedule can be canvassed more fully at a case conference.

[56] The parents did have a shared parenting arrangement and then the mother changed it arbitrarily. This is not an urgent matter. The arrangement has been in place briefly. There are concerns raised by both parents regarding the parenting abilities of the other parent and those issues should be canvassed at the case conference.

[57] To expedite the matter, this Court orders that the parties may obtain a motion date, which must be after the First Court Date Clerk hearing set for July 13, 2016, to deal with the issue of the parenting schedule only. In this way, the motion can be held at an earlier date than would be the case were the parties required to wait until the July 13, 2016 date to obtain a motion date.

[58] This Court’s finding that the mother’s unilateral change of the parenting schedule does not create an “urgent” matter should not be taken as an indication that the Court condones her actions. The case conference Master or Justice will be in a position to explore the mother’s decision and, if appropriate, take it into consideration when determining the child’s best interests. In the meantime, the parties will be encouraged to work on a temporary without prejudice parenting schedule.

2) Daycare – Is this Urgent?

[59] The mother indicates that the child is currently attending daycare and will continue in daycare. The child’s temporary removal from her daycare did not jeopardize her safety nor placed the child in harm’s way. Therefore the Court does not perceive this to be an urgent issue requiring a motion before the hearing of the case conference.

[60] Again, the Court’s decision in this regard is not to be taken to condone the mother’s decision to temporarily remove the child from her daycare.

3) Move to Halifax – Is this Urgent?

[61] For the reasons set out below, the only issues in this matter that can be considered urgent are the possible flight risk and possible abduction. These are issues that should be dealt with before a case conference. Hence, the Court deems this issue urgent within Rule 14(4.2) and will make an order dealing with this sole issue.

[62] In her application at para. 31, the mother addresses this issue. She is seeking the father’s permission to move to Halifax, Nova Scotia where her partner has been assigned.

[63] The father had good reasons to be concerned about the mother being a flight risk. The mother stated that she was moving to Halifax in the summer and told him that she was taking the child to Halifax for one week in May. Given the history, the father had good reasons to be concerned about the mother being a flight risk and not returning, i.e.:

• She had moved in with her boyfriend without telling him;
• She took the child out of daycare to ensure that he could not pick her up;
• She unilaterally changed the parenting schedule without discussing it with him;
• The change to the parenting plan coincided with her decision to resume her relationship with her boyfriend and follow him to Halifax; and
• In her lawyer’s letter she stated that he would not see the child unless he agreed to a court order.

[64] Hence, the Court exercises its discretion under Rule 14(4.2).

[65] The child is not to be moved from the jurisdiction of Ottawa without the father’s consent or further Court order.

4) OCL – Is this Urgent?

[66] Even though the parties have agreed to the involvement of the OCL, the Court is not prepared to order its involvement in a perfunctory manner without exploring the reasons and basis for their involvement.

[67] The OCL is funded through public funds and does not have resources to service all matters. The parties should, with the guidance of the Court, determine what role the OCL would play, whether the best interests of the child dictate a request that the OCL be involved and whether there are other options available to obtain third party evidence or expert evidence of the child’s best interests. For example, the Court could also determine whether a child needs legal representation under s. 89(3.1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, or whether there should be a social work report under s. 112 of CJA. The Court does not rubber stamp the parties’ consent to request the involvement of the OCL without the matters having been discussed in a case conference, unless there is a pressing issue that requires the OCL’s immediate attention.

[68] Therefore, the issue of the OCL will be explored at the case conference on July 13, 2016.

[69] Costs of this motion are reserved for the Trial Judge.

Justice A. Doyle Date: May 18, 2016