Court File and Parties
Citation: D.S.C. v. Westlake, 2016 ONSC 453 Court File No.: FS – 13-87 (SIM) Date: 2016-01-26 Superior Court of Justice - Ontario
Re: D.S.C., Applicant And: Heather Westlake, Respondent
Before: Mr. Justice R.J. Nightingale
Counsel: D.S.C., self-represented Catherine Haber, for the Respondent
Heard: January 13, 2016
Endorsement
[1] The Respondent mother brings a summary judgment motion under Rule 16 of the Family Law Rules for a final order of sole custody of the parties’ two children B,.V.S.C. born […], 2008, (7), and M.D.J.C. born […], 2010, (5).
[2] The Applicant father opposes the motion and in response asks by way of summary judgment that he be granted sole custody of the two children.
The Facts
[3] The parties commenced cohabitation in 2007, married on April 23, 2011 and separated on January 4, 2012.
[4] In addition to these two children, the Respondent mother has three other children of a previous relationship ages 18, 9 and 8. All five children have resided together with her since separation.
[5] The parties separated when the mother alleges the father assaulted her. The father resolved the resulting criminal charge by entering into a peace bond on November 8, 2012.
[6] The mother’s evidence confirms that the two children B,.V.S.C. and M.D.J.C. have always remained in her custody since the separation of the parties initially in the matrimonial home in Simcoe. After it was sold, she now resides in Branchton with them and her three other children.
[7] In 2011, prior to separation the mother’s total annual income was approximately $14,400. Even though the father worked full time before separation, she has not received any child support since that date from him. He states he cannot work because of his medical condition. She has obtained full-time employment so she can financially support herself and the five children with her.
[8] Her evidence, which was not contradicted, establishes that the children have been doing well while residing with their mother and their stepsiblings since separation.
[9] The father commenced this application in July 2013 claiming a joint custody order but conceding that the children’s principal residence should be with their mother.
[10] The father has three other children from other relationships. One child (age 4) is presently a Crown Ward, another (age unknown) was placed by the CAS with the foster family and another child (18), has also resided for various periods of time in foster care.
[11] The Respondent mother’s evidence also confirms that the father has a criminal record from 2001 to 2005 including convictions for assault with intent to resist arrest, driving while disqualified, theft, possession of stolen goods and failing to comply with probation orders.
[12] He also has a history of various and significant emotional and mental health issues including panic attacks, depression and anxiety which disable him for days at a time.
[13] The father’s significant medical condition was confirmed by him in an ODSP self-report form he completed on November 26, 2013 wherein he acknowledged that he has panic attacks and when he has them back-to-back, it takes a few days for him to regain normal levels of energy, spending these days secluded in his home avoiding people.
[14] In the same ODSP form, the father confirmed he was reliant on social services including subsidized housing assistance for his apartment in Ingersoll and on the Salvation Army for paying his bills and for his food.
[15] The father was granted temporary access to the children but supervised only on January 9, 2014 by Justice Glithero.
[16] On a motion by the mother for temporary custody in these proceedings, the father consented to an order on April 17, 2014 that the mother have interim custody of the two children with his having unsupervised access to the children including on alternating weekends Friday until Sunday. He was to abstain from the use of alcohol and non-prescription drugs for at least 12 hours prior to his access and during his access which was conditional on his consistently exercising that access with his children.
[17] At all times since the parties separated in January 2012, the two children have resided full-time with the mother. On a daily basis, the mother is the parent who has assumed responsibility for the care of the children including providing all their needs for food, clothing and shelter, attending elementary school in Cambridge, obtaining proper medical attention when necessary and financially supporting them without any financial assistance from the father.
[18] The mother’s affidavit and the other documents relied upon by her confirm that the father cannot meet the children’s basic necessities including an adequate home, proper meals, reliable transportation and medical attention. He lives a one hour drive away in Ingersoll.
[19] Even though he has a three bedroom apartment, he does not have a bed for M.D.J.C. who was required to sleep in the same bed as his father.
[20] Unfortunately, there is no dispute on the evidence that this is a high conflict case involving domestic violence and serious arguments between the parties, CAS and police involvement and multiple court attendances. The Continuing Record comprises five volumes of material.
[21] The mother appropriately concedes that the father has been exercising his access almost regularly every other weekend with the children picking them up and dropping them off.
[22] The father’s affidavit in response comprises 59 paragraphs. Unfortunately, there was no reference to any evidence in that affidavit suggesting why there is a genuine issue for trial of whether the children should be in the mother’s custody or his.
[23] The affidavit consists of many bald statements accusing the mother of misleading the Court, hiding assets, constantly submitting distorted information, falsehoods and fabrications, abusive behaviour, and “grossly undermining the Court, the Applicant, CAS and the judicial system process and its authority”. It accuses her of abusive, malicious and criminal actions. However, no significant details or supporting evidence were provided and in particular with respect to the issue of custody.
[24] Unfortunately, although the father admits he suffers from various medical, emotional mental problems leaving him with a disabling lack of focus, his affidavit contains no evidence or facts confirming why the mother should not be awarded sole custody of the children now based on the children’s best interests. In particular, he did not refer to or deny her evidence that the children have been happy and doing well for the last 4 years since separation while residing primarily with her and their half-siblings. He, among other things, simply states that he believes the mother brought this motion to apply more abuse on him as he was having access to the children the following weekend.
[25] During the course of submissions, I requested on several occasions that the father point out in his affidavit or earlier court material the evidence he had in support of his position that there is a genuine issue requiring a trial regarding sole custody of the children with the mother or with him and why the children’s best interests would be served by his having sole custody. Unfortunately, the father repeated his assertions that the mother was the cause of his problems and who made a number of false allegations with respect to his access to his children.
[26] He referred to some case notes of the Haldimand-Norfolk CAS which were then filed as exhibits on consent. The first note, dated August 10, 2011 before separation, refers to a consultation with the CAS by the parties, their serious conflicts, yelling at each other, the need for counseling and their potential separation. In that report, the father alleged that the mother abused him physically and that she screamed at the older child B,.V.S.C..
[27] The other CAS note is dated January 25, 2012 shortly after the parties’ separation. That note refers to the highly conflicting and volatile relationship between the parties that included the physical violence earlier that month which was denied by the father but who eventually entered into a peace bond with respect to that incident.
[28] As the father in his responding affidavit referred to all the documents in the Continuing Record to be used in support of his position, I reviewed those documents to determine if there was indeed sufficient evidence on his part to rebut the Applicant’s position that there was no genuine issue requiring a trial on the issue of sole custody of the two children.
[29] The documents included his original application for joint custody and affidavit of July 25, 2013 wherein he admitted that the principal residence of the children should remain with the mother with his having the children on alternate weekends and the right to information from the children’s health and school records.
[30] There was very little information regarding his relationship with the two children in his affidavit of September 25, 2013 other than his statement that he took four months off work when B,.V.S.C. was born.
[31] He asked for access to the children by way of a motion in January 2014 denying the assault allegation on separation, alleging his volatile relationship with the mother, her having mental health issues and being verbally and physically abusive of him.
[32] He was originally granted supervised access by Glithero J. on January 9, 2014. His affidavit of April 10, 2014 indicated that his access had gone well, that the children enjoy their time with him and that they wish a regular pattern to be in place which obviously deals with his having regular access , not custody. He then consented to an Order that the mother have sole custody with his having unsupervised access to the children on alternate weekends and additional access on April 17, 2014 which was granted by Sloan J.
[33] His affidavit of October 30, 2014 confirmed that he had non-curable emphysema which he stated he would eventually die from. He stated he could not pay child support because of this and other health reasons. Nothing was said regarding any claim for custody by him and only briefly referred to some access matters.
[34] A further issue arose in January 2015 regarding the mother’s allegation of his not regularly exercising his access which he denied other than for one weekend in November 2014. He admitted in his January 3, 2015 affidavit that the mother offered him more access in November 2014 but he did not want to exercise it then due to his lack of income.
[35] He first suggested he should have custody at the trial management conference on April 1, 2015. In his brief he simply stated the children should be placed with him as the person who could nurture them, understand their needs and understand what it can be like to make mistakes. He alleged the mother was abusive and manipulative and stated “This is a case of a father who was abused by his spouse”. He did not amend his application to claim sole custody until May 2015.
Analysis
[36] The essential issue on this motion for summary judgment is whether the evidence before me is sufficient to give the court confidence that it can find the necessary facts and apply the relevant principles so as to be able to resolve this custody dispute between the parties without a trial.
[37] Summary judgment is no longer considered an extraordinary remedy that is limited to the “clearest of cases”.
[38] The court in Hryniak v. Mauldin 2014 SCC 7 makes it clear that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to affordable, timely and just adjudication of claims.
[39] Summary judgment is an available remedy even in hotly contested custody and access cases where a party’s chances of success were negligible. Where the outcome is a foregone conclusion, an order for summary judgment must be made. Mendez v. Mendez 1996 Carswell Ont 3846 (Ont. C.A); M.J.B .v. S.J.B. 2013 ONSC 1926.
[40] On the evidence before me, I am of the view that I have a full appreciation of the facts and evidence in this case which includes a review of all of the material in the Continuing Record since the parties’ separation. The evidence unfortunately is clear that this couple have undergone a highly volatile relationship both before and after the separation. The father, as indicated in his submissions, simply refuses to communicate with the mother on routine matters of access by way of texting and stated he would not wish this relationship on his worst enemy. It is obvious that joint custody is simply not an appropriate option between them.
[41] The mother, based on the evidence before me, has established on a balance of probabilities, that there is no genuine issue requiring a trial on the issue of sole custody.
[42] The children have resided with her on a full-time basis since separation, a period of approximately 4 years. The children are doing well residing principally at home with her and attending their school in Cambridge.
[43] The children reside in that household with their three half siblings in an apparent close relationship. The mother’s motion for custody does not alter the existing status quo regarding custody and access. Rather, she simply wishes to maintain and continue it.
[44] There is really no evidence of any significant change in circumstances regarding the children since the parties’ separation in January 2012. The mother has indicated her willingness to maintain and expand the father’s access to the children.
[45] Upon the mother’s establishing on a balance of probabilities that there is no genuine issue of custody that requires a trial for its resolution, the father must advance evidence of specific facts that there is a genuine issue of custody for trial i.e. that his claim for custody is one with a real chance of success. He cannot defeat the motion by simply relying on mere allegations, blanket denials or self-serving affidavits not supported by specific facts that there is a genuine issue requiring a trial. Children’s Aid Society of Hamilton v. A.(M.) 2012 Carswell Ont 548.
[46] Rather, he must put his best foot forward to defend the motion with fulsome affidavit evidence. The Court will assume that the evidence put forward by the father is the best he has to offer and is all the evidence that will be available at trial.
[47] The father in his submissions stated that he would be calling evidence at trial to confirm the mother’s deception and fabrication of evidence. When asked for specifics, he stated that he planned to call evidence from the CAS regarding her behaviour. However, in submissions he made no reference to what specific evidence he planned to call at trial as to why it would be in the children’s best interests that they be placed in his sole custody rather than remain in the custody of the mother. In his affidavit, he simply stated that “the CAS worker agrees with the Applicant that there is safety concerns for the children being exposed to conflict”. This obviously refers to the conflict between him and the mother only. No affidavit evidence from any CAS worker was provided.
[48] In particular, the father did not make any reference to the factors under section 24 of the Children’s Law Reform Act the Court is required to consider in determining the best interests of the children.
[49] For example, he gave no details of any parenting plan that he had for them in his affidavit including where they would go to school, how he would provide for their daily needs including food, clothing and medical needs especially when he experiences his allegedly serious disabling medical problems for several days. No support people to assist him were identified. The Court should not speculate on what his parenting plan might be. He made no reference in his affidavit as to why it would be in the children’s best interests for them to now be uprooted from their stable lives that they have experienced with their mother and their half-siblings and their present school in Cambridge and to be required to move and live with the father in Ingersoll.
[50] The father conceded that he has significant medical issues and difficulty in maintaining his own livelihood and is reliant at times on using the food bank for himself and the children when they are with him. He provided no explanation or evidence as to how he would maintain the children and adequately and properly provide for their care including their food and other basic necessities if he had sole custody of them. He does not have a separate bed for M.D.J.C. and there is evidence that he has no reliable transportation if needed for their care.
[51] The law is clear that speculation as to possible evidence or elaboration on points that could potentially be available for trial is not a sufficient response to summary judgment motion. The court must rely on and assess the sufficiency of the evidence adduced in the affidavit materials submitted on the motion. Catholic Children’s Aid Society of Hamilton v. A.M. 2012 Carswell Ont 548.
[52] I am also mindful in this case that an undue and protracted trial with the unnecessary expense and delay, in particular to the mother, could prevent the fair and just resolution of this custody dispute. The mother, who receives no child support from the father, is now working on a full-time basis to support herself and the five children in her custody. The expense of the trial for her on the facts and evidence before me would only unnecessarily take away monies that are needed by her to support the children who have been in her care since the separation of the parties.
[53] Summary judgment rules favour proportionality and fair access to affordable, timely and just adjudication of claims. All reasonable efforts should be made to conserve resources, including those of the parties and the administration of justice, especially given the volatility of the parties’ relationship when the children’s best interests are clear. The facts as established by the mother’s evidence are clear regarding her having sole custody of the children. The evidence tendered by the father is simply not sufficient to establish specific facts showing that there is a genuine issue requiring a trial on the issue of custody.
Conclusion
[54] On the evidence before me, it is in the best interests of these children that the Respondent mother have sole custody of the children B,.V.S.C. and M.D.J.C. and summary judgment to that effect is granted.
[55] The parties agree that the divorce can be severed from these proceedings and an order, on consent, to that effect is granted.
[56] The mother does not oppose the applicant father continuing to have reasonable access to the children under the existing temporary arrangements pursuant to the Order of Sloan J of April 17, 2014.
[57] The issue of final access rights of the father was not specifically addressed or argued by the parties during the hearing. Accordingly, the existing order of access shall continue on a temporary basis as the father’s ability to pursue further motions in this proceeding remains stayed by Order of Gordon J of May 14, 2015.
[58] If the parties are unable to resolve the issue of costs of this motion, the Respondent can make written submissions of no more than 2 pages in length together with a bill of costs and any relevant offer to settle within 10 days of the date of this decision with the Applicant having a similar right to respond within 7 days thereafter.
The Honourable Mr. Justice R.J. Nightingale
Date: January 26, 2016