Court File and Parties
COURT FILE NO.: FS-16-20826 DATE: 20160822 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Olivia Glegg, Applicant [1]
BEFORE: Kiteley J.
COUNSEL: Jesse Mark, Justice for Children and Youth, for the Applicant Gary S. Joseph and Ryan M. Kniznik, for Robert Keith Glegg, the moving party on this motion Christina Doris, for Tika Van Den Hurk, a responding party on this motion
HEARD: August 18, 2016
Endorsement
Background
1On April 28, 2016, I made an endorsement as follows:
Mr. Mark has attended on this application for a declaration pursuant to s. 65 of the Children’s Law Reform Act. I raised several concerns with Mr. Mark and invited him to provide a supplementary affidavit. He has done so and the evidence indicates that the applicant is a remarkable young woman. I have no hesitation in making the order.
There are no respondents in this application because counsel takes the position that the parents are not entitled to notice either of the Application or of the order. I accept his submissions. Mr. Mark must have the Application issued before the order is entered.
Order to go as drafted declaring that Olivia Glegg born July 17, 1999 has withdrawn from parental control and is an independent minor.
Court staff are asked to enter the order immediately.
2On that occasion, I signed the final order in these terms:
This Court Declares that pursuant to s. 65 of the Children’s Law Reform Act:
- Olivia Glegg, born July 17, 1999 has withdrawn from the parental control of her father, Robert Keith Glegg, and has withdrawn from the parental control of her mother, Katalin Gigi Judit Glegg, also known as Tika Van Den Hurk.
- Olivia Glegg is an independent minor with all of the statutory and common law rights and privileges of a minor who has withdrawn from parental control.
Motion brought by Robert Keith Glegg
3Mr. Glegg is Olivia’s father. Tika Van Den Hurk is her mother. The father has brought this motion in which he seeks the following orders:
An order, if necessary, adding Robert Glegg as a Respondent party to the proceeding in accordance with Rules 2(2)-(5), 7(3)(b), 7(4)(1) and 7(5) of the Family Law Rules; rules 1.04, 5.03(1), (4) of the Rules of Civil Procedure; s. 62(3) of the Children’s Law Reform Act.
An order, if necessary, adding Robert Glegg as a Respondent party nunc pro tunc, prior to the order dated April 28, 2016 in accordance with Rule 25(18) of the Family Law Rules; rule 59.01 of the Rules of Civil Procedure; the inherent jurisdiction of the Court; and to do justice in the within matter.
An order setting aside the order dated April 28, 2016 in accordance with rules 1(7), 25(19) of the Family Law Rules; rules 19.08, 39.01(6) and 59.06(2) of the Rules of Civil Procedure; the inherent jurisdiction of the Court, and in the interests of justice.
In the event that the order dated April 28, 2016 is set aside, an interim and/or permanent order providing Robert Glegg with sole custody and primary residence of Olivia in accordance with s. 16 of the Divorce Act and rule 16 of the Family Law Rules.
In the alternative, and if necessary, an order for a viva voce hearing to determine the requested relief to set aside the order dated April 28, 2016 with directions on expediting the hearing in accordance with rules 1(7.1) (7.2) and 2(2)-(5) of the Family Law Rules.
In the event a viva voce hearing is ordered, an order staying the order dated April 28, 2016 pending the hearing and an interim order providing Robert Glegg with sole custody and primary residence of Olivia pending the return of the hearing.
Such further and other relief as counsel may request and this Honourable Court deems just.
4For the reasons that follow, the motion is dismissed.
5Father and mother were married in 1998. Olivia was born July 17, 1999. The parents separated in March 2001 at which point Olivia was not yet 2 years old. Between March 2001 and August 2014, the parental relationships were not remarkable and were reflected in a separation agreement and several amendments. That changed in August and September 2014.
6The following is a brief outline of what has occurred:
April 20, 2001: separation agreement provided joint custody, primary residence with mother; secondary residence with father; liberal and generous access with father
June 8, 2002: divorce judgment in Toronto action #02FP-273245 took effect
October 31, 2002: pursuant to amended separation agreement, access by father increased
August 31, 2006: pursuant to amended separation agreement, parenting time on an equal basis. Parents agreed to live within a 15 kilometre radius centred at Trafalgar Road and Lakeshore Road in Oakville. Parents acknowledged that the child’s best interests would be served by the continued residence in that area until Olivia’s 18th birthday and neither parent would move the child’s residence before that time without the written consent of the other party.
2013: mother and her husband moved to Florida.
August-September 2014: Olivia, then aged 15, went to visit her mother in Florida and did not return as expected.
September 3, 2014: in Toronto in action #02-FP-273245, motion by father on short notice to the mother for an order that the mother return the child to Ontario. Order made: father have interim custody; as an incident of custody within the meaning of s. 16 of the Divorce Act, father authorized to apprehend the child; police force in jurisdiction where child located shall apprehend and deliver child to father; motion adjourned to Milton on September 24, 2014
September 24, 2014: in Milton in action #4805/14, motion by father for an order that mother return child to Ontario heard by Trimble J.
October 1, 2014: endorsement by Trimble J. [2] that motion was granted: Ontario has jurisdiction over Olivia; father have interim custody and legal care and control of Olivia; as an incident of custody within the meaning of s. 16 of the Divorce Act, father authorized to apprehend the child for purpose of giving effect to his legal right to interim custody and legal possession of the child; police in any area where it appears that the child may be located shall apprehend and deliver the child to the father; mother to return Olivia to her habitual residence in Ontario forthwith; mother shall cooperate fully with the father in facilitating Olivia’s return; until father chooses to use the broader powers open to him under this order, mother shall direct Olivia to return to Ontario forthwith; case conference to be arranged.
Subsequently, father “domesticated” the Ontario order in Florida court; at request of father, police in Florida apprehended Olivia and she was returned to Ontario. Between then and April 13, 2016, Olivia spent over 90% of her time in Ontario with her father.
December 17, 2014: Exhibit N to the affidavit of the father sworn July 28, 2016 is a copy of an endorsement made by Sproat J. in 4805/14 in which he grants the father’s motion that the mother’s motion dated December 5, 2014 be stayed. I infer from the endorsement that there was a dispute as to the implementation of mediation/arbitration and although mother had not seen Olivia since her return to Toronto, no order as to access was made. Sproat J. anticipated counsel would advise him after January 12, 2015 as to the status of the retainer of a mediator/arbitrator and the state of access. Endorsement by Sproat J. dated January 20, 2015 leaving matters to the mediator/arbitrator who had been selected.
January-February 2015: mediation involving mother and father
March 4, 2015: in action #4805/14, consent order by Justice G. Miller, Superior Court at Milton, in the following terms: father have custody “up to and including July 17, 2017”; access by mother in Ontario and in Florida; as an incident of custody, within the meaning of s. 16 of the Divorce Act of Canada, the father is authorized to apprehend the child and police force having jurisdiction shall apprehend and deliver the child to the father.
March 9, 2015: amending separation agreement reflecting the terms of the consent order of Miller J.
afternoon of April 13, 2016: father’s then counsel prepared a notice of motion and affidavit of father in action #4805/14 which was returnable April 21, 2016 in which he asked for the following:
An order pursuant to rule 1(8) of the Family Law Rules, declaring that the Respondent breached the terms of the Final Order of Justice Miller dated March 4, 2015 and specifically paragraph 1 of that Order that provides the Applicant with sole custody of the child, Olivia Katalin Glegg, born July 17, 1999.
evening of April 13, 2016: at the age of 16 years 9 months, Olivia left her father’s residence and was picked up by a friend of her mother’s. Subsequently, Olivia and her father both contacted the police who did not intervene. Olivia stayed with that friend and continued going to school including graduating in June.
April 21, 2016: there is no indication whether there was an attendance on April 21, 2016 as contemplated in the father’s motion. I assume it was adjourned and was heard May 12, 2016 as indicated below.
April 22, 2016: Olivia delivered her letter to the Principal of her school in which she indicated that she had withdrawn from parental control and she asserted rights pursuant to various sections of the Education Act including that details of her education be kept private and confidential.
late April, 2016: father’s proceeding in court in Florida to obtain an order requiring the university to which Olivia had applied to produce the contents of the application file. Affidavit served April 22, 2016 indicates that the records from the university were required to support the father’s allegations in the court proceeding in Ontario that the mother had breached the order for custody. Subpoena dated April 22, 2016 was served on the university.
April 28, 2016: order in paragraph 2 above made
April 29, 2016: father prepared his own affidavit sworn April 29, 2016 and personally brought an ex parte motion in action #4805/14 that was heard by Fitzpatrick J. on April 29, 2016. In his affidavit, the father deposed that beginning on April 13, the mother had unlawfully detained Olivia; that the consent order dated March 9, 2015 gave him custody until July 17, 2017; that he had contacted the Halton Regional Police on April 28 and asked that they apprehend Olivia but he had been told that his apprehension rights expired six months after the date of the issuance of the March 4, 2015 order; he asked for an amendment of the March 4 order to specify apprehension rights. Fitzpatrick J. amended the March 4 order to specify that the father’s apprehension rights continued until July 17, 2017.
May 2, 2016: father received a copy of the April 28 order
May 2, 2016: letter from the university to counsel for the father responding to the subpoena and enclosing Olivia’s student records maintained by the university.
May 12, 2016: before Gibson J., hearing of motions in action #4805/14 (a) by father for an order pursuant to rule 1(8) declaring that the mother had breached paragraph 1 of the consent order of Miller J. dated March 4, 2015; (b) by mother to set aside order of Fitzpatrick J.; (c) by Olivia for an order for legal representation and for an order to set aside the order of Miller J. dated March 4, 2015. Decision taken under reserve.
June 2, 2016: endorsement of Gibson J. [3] in action #4805/14 released. Order as follows:
Olivia Glegg born July 17, 1999 shall be represented by Jesse Mark of Justice for Children and Youth as her counsel in this matter.
Olivia shall have the rights of a party in the matter of the custodial order of Justice Miller dated March 4, 2014 in court file number 4805/14 and all subsequent matters involving custody and access of Olivia.
Given the declaration of Justice Kiteley dated April 28, 2016 declaring that Olivia has withdrawn from parental control, the order of Justice Miller dated March 4, 2015 has been overtaken by events and is set aside in its entirety.
The order of Justice Fitzpatrick dated April 29, 2016 concerning the extension of the police apprehension order until Olivia turns 18 has also been overtaken by events and is set aside.
No person shall have custodial rights or access rights to Olivia.
The motion of the Applicant, Robert Glegg, for an order declaring that the Respondent Katalin (Tika) Gigi Judit Glegg, has breached the terms of the final order of Justice Miller dated March 4, 2015 is dismissed.
Counsel may make written submissions as to costs. . .
June 30, 2016: current counsel for father delivered notice of appeal to Court of Appeal from order of Gibson J.
July 12, 2016: father’s counsel advised mother’s counsel and Olivia’s counsel that he would bring this motion to set aside the April 28 order. Mr. Joseph proposed dates in late July but the earliest date all counsel were available was August 18.
July 14, 2016: transcript of the hearing on April 28, 2016 was ordered and prepared.
July 17, 2016: Olivia turned 17 years old
July 18, 2016: Gibson J. endorsement requiring father to pay costs
July 22, 2016 father’s amended notice of appeal seeking leave to appeal the order as to costs
August 9, 2016: order in the Court of Appeal on consent that the time to perfect the appeal is extended to 30 days after the decision is rendered on the motion to set aside the April 28, 2016 order
August 15, 2016: Olivia moved into residence at the university in Florida. Classes start August 22.
Evidence and submissions on this motion
7The evidence consists of two significant volumes of the continuing record together with two short reply affidavits of the father both sworn August 15. The affidavits of the father and the mother refer to and attach affidavits filed by the parents in the 2014 proceeding and in the proceeding heard on May 12, 2016. Olivia has provided an affidavit sworn August 10, 2016. Each counsel delivered a factum. Mr. Joseph’s brief of authorities include 46 decisions, Mr. Mark’s brief includes 13 authorities and Ms. Doria’s brief includes 2.
8All counsel referred to L. (N.) v. M. (R.R.) [4] the appeal of which is scheduled to be heard in September.
9Counsel had submitted confirmation forms in which they committed to making submissions within 60 minutes and hence the motion was on the regular list. The matter was initially before Justice Chiappetta but, having noted that it was a motion to set aside my order, she and I agreed that it would be preferable if I dealt with it. The hearing started at 12:10, court recessed from 1:15 to 2:35 and submissions were concluded at about 4:50.
10As indicated above, Olivia is already in residence and will start classes on Monday August 22, 2 business days after the hearing of the motion. If father obtains an order for temporary or permanent custody, he expects to arrange for Olivia to return to Ontario and to her former high school in grade 12 in early September. Given the urgent circumstances, I am obliged to release a decision as soon as possible and with those time constraints I will not review in detail the position that each counsel takes on each issue and the authorities to which each referred. Instead, I will focus on the decision on each issue and explain the basis for that decision.
Analysis
A. Was father entitled to be a party to the proceeding heard on April 28, 2016? Or was he entitled to notice if not a party?
11In her Application in this proceeding issued April 28, 2016 Olivia asked for the following:
The Applicant is requesting the declarative relief of this Honourable Court. The Applicant asks this court for a Declaration that, pursuant to s. 65 of the Children’s Law Reform Act, the Applicant has withdrawn from the parental control of her father, Robert Keith Glegg, and from the parental control of her mother, Katalin Gigi Judit Glegg, also known as Tika Van Den Hurk.
12The Children’s Law Reform Act is as follows:
- Nothing in this Part abrogates the right of a child of sixteen or more years of age to withdraw from parental control.
13Olivia had a common law right to withdraw from parental control and a statutory right to do so at age 16. Olivia exercised that right on April 13, 2016. She did not require a court order or a declaration permitting or enabling her to withdraw from parental control. She did not require a court order to protect her privacy at her school in Oakville because, after informing the principal in writing by letter dated April 22, 2016, the principal respected her instructions and did not provide information to her father. She did not require a court order to prevent the police from apprehending her and taking her back to her father’s home because she informed the police that she had withdrawn from her father’s control and the police respected her right to do so.
14The circumstances that precipitated the application for a declaration was the proceeding that the father had commenced in Florida in which he sought to obtain an order requiring the university to disclose the contents of the file with respect to Olivia’s application. As indicated on the form explaining the reason for an urgent hearing on April 28, Mr. Mark noted that there was a hearing on May 3. Olivia asked for the declaratory order to prevent her father from gaining access to her application file. As it happens, in a letter dated April 27, 2016, the university responded by providing a copy of the contents of the file which letter was received by the father’s lawyer on May 2, coincidentally the same day he received notice of the April 28 order.
15Through counsel, father insists he should have been a party and he was entitled to notice of the application and the failure on both counts means he has been denied natural justice, and, in the absence of a fair hearing, the order dated April 28 should be set aside. Mr. Joseph relies on s. 62(3) of the Children’s Law Reform Act that provides that in an application under Part III for custody, access and guardianship, the parties shall include the mother and father. Among other things, he relies as well on rule 7(3), 7(4) and rule 14(12) of the Family Law Rules and rule 5.03(1) and (4) of the Rules of Civil Procedure. To support his submission that the father was entitled to be a party ab initio or should be added nunc pro tunc or was otherwise entitled to notice, Mr. Joseph relies on other rules and various authorities.
16Through counsel, mother takes the position that she was not entitled to be a party or to notice. And counsel for Olivia takes the position that father (and mother) are not entitled to be parties and not entitled to notice.
17I disagree with the fundamental premise of father’s counsel’s submission. At various places throughout his factum, he takes the position that the hearing before me was Olivia’s request to withdraw from parental control under s. 65 (see for example, paragraphs 63 and 69). That was not the issue before me. She had withdrawn from parental control on April 13. She did not ask for a declaration that she be permitted to withdraw from parental care. She sought a declaration pursuant to s. 97 of the Courts of Justice Act without seeking any “consequential relief”.
18The hearing on April 28, 2016 was not on the issues of custody, access or guardianship. The father was not entitled to be named as a party nor entitled to notice either ab initio or nunc pro tunc. It was not necessary to the determination of the issue of the declaration that he be a party or that he receive notice of the hearing.
19It was in the proceeding launched by the father on April 13, 2016 that Olivia raised the issue of the impact on the order of Miller J. dated March 4, 2015 and in that proceeding that Gibson J. made the order he did. The father was a party to that proceeding 4805/14 in Milton. He had notice of the position that Olivia asserted that the order of Miller J. should be set aside as a result of the order dated April 28, 2016. His counsel made submissions on that legal issue. Gibson J. did not accept that submission. The father has launched an appeal from that order and only after that did he order the transcript of the hearing on April 28 and undertake this motion.
20As the transcript of the April 28 hearing indicates, I raised with Mr. Mark the question of Olivia’s capacity to make the decision to withdraw from parental control. He returned after the lunch recess with a supplementary affidavit. In this motion, father insists that mother influenced Olivia to take steps to leave Ontario and go to university in Florida. I will deal with that below. Leaving aside that evidence that does not bear on capacity, there is no evidence that Olivia has been under a disability or is incapable of exercising her right to withdraw from parental control.
B. Did Olivia and her counsel fail to fully inform the court in the hearing on April 28, 2016?
21As much of the evidence indicates, there has been considerable conflict between the father and the mother since August 2014. Because of the perception of the father that the mother is responsible for influencing Olivia to take steps she has taken, the conflict is now also between the father and Olivia.
22Mr. Joseph relies on rule 39.01(6) of the Rules of Civil Procedure and various authorities for the proposition that a party moving for relief without notice has a very high duty to make full and frank disclosure of all material facts and the failure on the part of Olivia to do so is grounds for setting aside such an order.
23I agree with Mr. Joseph’s submission as to the duty on a party moving for relief without notice. But for two reasons, I do not agree that that submission applies in this case. The first is that the premise of that submission is that the father was entitled to be a party and/or entitled to notice but I have found he was not entitled to either. The hearing before me was not ex parte or without notice. It was simply an application by an applicant. What the applicant chooses to put before the court is up to her. As the transcript indicates, I was not satisfied with the original brief affidavit and received a more detailed and documented affidavit later in the day. Upon receipt of that supplementary affidavit, I was satisfied that I had sufficient evidence on which to exercise my discretion and make the declaration sought.
24Second, the “full and frank disclosure of all material facts” on which counsel relies is the extensive amendments to the separation agreement and the affidavit evidence exchanged between the father and the mother in proceedings in Ontario and in Florida. I see no basis for requiring the applicant in a hearing such as was before me on April 28 for declaratory relief to provide disclosure arising from proceedings in which she was implicated but not involved. In any event, I have no evidence that she knew what had happened in the various proceedings, although she certainly knew that she had been returned to Ontario from Florida.
C. Should this court make a temporary or permanent order that father have custody of Olivia?
25I have not accepted counsel’s threshold submissions as to party status, notice or disclosure and as a result, I need not consider the father’s submission that I should make a temporary or permanent order that he have custody of Olivia. However, much of the evidence and submissions focused on what was or was not in the best interests of Olivia and specifically, whether the court should adopt the plan father advances namely that she return to Ontario and finish her fourth year of high school before embarking on her university career and that in the interim, the father will have the opportunity to do as he described in paragraph 19 of his affidavit sworn August 15, 2016 namely that he has “not finished raising” his daughter followed by the details in paragraph 20 as to his expectations as to how he would “finish raising” his daughter.
26The evidence of the parents is in conflict beginning with whether the mother “kidnapped” Olivia in August and September 2014. I do not intend to make findings as to what happened. Instead, I focus on some of Olivia’s evidence.
27The first is her letter dated May 21, 2015 to her father that she attached to her affidavit sworn August 10, 2016. The subject was his insistence that she leave the school she had been attending and move to another school in September 2015 which she said had been a subject of disagreement between her and her father and which contributed to the breakdown of her relationship with her father. In her affidavit she explained that she left the letter for him so that he could read and appreciate the depth of her commitment to her school and her reasons for opposing the change. Olivia was then almost 16 years old. I will not go into detail as to the content of this two page letter. From it I conclude that she had sound reasons for opposing the change that she articulately expressed. In paragraph 33 of her August 10 affidavit, Olivia described his reaction to the letter.
28The second is an essay that Olivia wrote for an English class some time after she changed schools in September 2015. Exhibit F is titled “What is visiting my mom?” and, as Olivia says, captures her feelings for her mother and family in Florida and makes subtle references to what was happening in her relationship with her father. From it I conclude that she had sound reasons for cherishing the relationship with her mother that she articulately expressed.
29The third is her evidence in paragraphs 35 and 37 to 41 as to her attitude when she did change schools in September 2015, namely that she was going to make the best of it. She said that she realized when registering for the new high school that she had accumulated enough credits to graduate a year ahead of schedule which meant she only needed a third year of high school, not a fourth. She said that she picked her high school courses with the objective of starting university in the fall of 2016. She attached as Exhibit G a copy of the personal essay that she was required to submit as part of her university application. There is no date on the personal essay but it is with the documents called “common application” which was submitted October 16, 2015. It too is a thoughtful and articulate essay from which I conclude that she had sound reasons for accelerating her university entrance and her choice of university. Olivia received her offer of admission in late December 2015.
30As Olivia pointed out, her father had received the entire university file on May 2. She had not received a copy of what he had received but she pointed out that in her father’s affidavit sworn July 28, 2016 he had not included the personal essay, from which I infer that the omission by him was deliberate.
31The father delivered two affidavits dated August 15, 2016 one responding to Olivia’s affidavit sworn August 10 and one responding to the mother’s affidavit sworn August 9. At paragraph 16 of the affidavit responding to Olivia’s affidavit, which I will not replicate, the father gave his evidence as to why Olivia’s affidavits were “pure fiction”. At paragraph 17, he pointed out “for the record” his version of what Olivia described at paragraph 80(g) of her August 10, 2016 affidavit but he did not deny that he had received the letter dated May 21, 2015 from which I infer that he did receive it and that the omission by him was deliberate.
32In the evidence are various prior affidavits including affidavits of the father dated September 22, 2014, April 13, 2016, April 16, 2016, April 29, 2016, May 9, 2016, July 28, 2016 and two affidavits dated August 15, 2016. In the evidence contained in the father’s affidavits he insists that it is in Olivia’s best interests that she continue to be in his custody, he repeats and emphasizes what he considers to be the mother’s vindictive and unreasonable conduct with respect to parenting issues, and he increasingly voices concerns that the mother and others have conspired to bring Olivia to the circumstances in which she now finds herself. His two affidavits dated August 15, 2016 contain his assertions that Olivia is the victim of what he calls the “trauma bond” imposed by her mother. He attaches to both August 15 affidavits a letter purporting to be from a physician in Michigan dated August 4, 2016 in which the author describes himself as a Board Certified psychiatrist and then he goes on to describe the “trauma bond” and to describe “situations of Stockholm syndrome”. That letter is of no evidentiary value in this court. The evidence of the father in reliance on that letter is likewise of no evidentiary value except to demonstrate how deeply committed the father is to his perspective and how he rejects any other view.
33The affidavits between the parents reflect enormous conflict at least since the summer of 2014 and escalating in the last few months. Unfortunately, because the father so closely associates Olivia with her mother’s action, he now insists she is unable to act independently.
34It is my responsibility to arrive at conclusions when dealing with more than a dozen affidavits. I have relied on those three documents and Olivia’s explanatory evidence because (a) they were all created by Olivia prior to the litigation that began to unfold in April 2016; (b) the existence of two of them has not been denied by the father and I find were deliberately omitted by him; and (c) given the circumstances under which each was prepared, I am satisfied that they are reliable.
35On the basis of that evidence, I draw the following conclusions. First, my impression of Olivia at the time of the hearing on April 28, 2016 is reinforced. She is articulate, thoughtful, and intelligent. She is a remarkable young woman of whom both parents should be proud. Second, she has sound reasons for wanting to accelerate her university entrance and to attend a university in Florida. Third, at age 17, her wishes and preferences must be respected. Going to university in Florida is in her best interests and her father would not permit that plan to unfold. I need not consider the father’s request for a temporary or permanent custody order but on this record, I must dismiss it.
36Alternatively, if I had found that the father should have been named as a respondent or was entitled to notice, I would dismiss the claim for custody for two additional reasons. First, because the issue of custody as reflected in paragraph 1 of the order of Miller J. dated March 4, 2015 and as reflected in this motion has now been canvassed extensively in court twice: before Gibson J. and before me. The father has had the opportunity to be heard twice and no further opportunities are required in order to achieve procedural fairness. And second, because the issue of custody is now before the Court of Appeal as a result of the appeal by the father from the decision of Gibson J. in which he set aside the order of Miller J. dated March 4, 2015 and ordered that no person shall have custodial rights or access right to Olivia.
37Before concluding I refer briefly to the decision in L. (N.) v. M. (R.R.) [4] mentioned in footnote 4 above. Perkins J. did not deal with the issues of party status or notice. He dealt with withdrawal from parental control in the context of enforcement of an access order but not in the context of declaratory relief. He made a finding on the evidence that he was not satisfied that the teenagers had withdrawn from parental control. On the evidence before me in April, I was satisfied that Olivia had withdrawn from parental control. The evidence before Perkins J. clearly demonstrated a situation of maternal alienation of the teenagers against their father that had resulted in the unique order dated February 17, 2015. The case before me cannot be said to be a case of maternal alienation because Olivia was living with her father for 90% of the time from the fall of 2014 and because it is clear on Olivia’s evidence that she wants to see her father and wants to have a relationship with him. I agree with much of the analysis by Perkins J. but need not address it in detail because of these distinguishing features.
D. Police enforcement under “further and other” relief
38During submissions in response to my question as to how a custody order would be implemented in time for Olivia to start school in Ontario in early September, Mr. Joseph indicated that he asked that I make an order for police enforcement. The request to add additional relief was opposed. I did not hear submissions and having dismissed the motion for custody, I need not consider the request.
E. Initialization
39As a preliminary issue at the outset of the hearing on August 18, counsel for Olivia asked that I make an order that the names of the parties be initialized. The Application issued April 28, 2016 includes only the name of the Applicant as indicated in the case name above. In preparing their affidavits and facta counsel for the father has sometimes changed the case name by adding the father as respondent. That ought not to have happened and is incorrect. Pursuant to rule 7(2) of the Family Law Rules, the father and the mother are parties to this motion but that does not require a change in the case name.
40Counsel for the father was opposed to the oral motion brought for initialization. The priority was the motion by the father to set aside the April 28 order and there was insufficient time to hear submissions as to whether I should hear the oral motion and if I granted leave, what order I should make. I did however refer counsel to the decision I had released [5] on the subject of the Superior Court of Justice Practice Direction that took effect July 1, 2016.
41Having not heard submissions on the point, I make no decision. I do make these observations.
42At paragraph 26 of that decision I pointed out that s. 70 of the Children’s Law Reform Act applies only to applications pursuant to Part III of the Act, namely custody, access and guardianship. As indicated in paragraph 18 above, the hearing on April 28 was not on the issues of custody, access or guardianship and for that reason, s. 70 would not apply. If that were the case, then the issue would be left to the process engaged by the Practice Direction. In this case, there are already two reported decisions in the Milton proceeding as set out in the footnotes above. The circumstances of this family are already in the public domain.
F. Application by Olivia for an order that her father is required to pay child support
43The affidavits contain several references to an application that Olivia has brought for an order that her father pay support. In keeping with rule 2(2) of the Family Law Rules, given the background within which that motion will be heard, it would be optimal use of judicial resources if I heard that motion and counsel should contact the Trial Co-ordinator to arrange a date for a long motion before me as well as a case conference before Justice Stevenson if she is available.
Costs
44Counsel have had experience in the fixing of costs before Gibson J. If they are unable to reach agreement with respect to costs of the motion before me, they will make submissions on the timetable below.
Order
45Motion brought on behalf of father heard August 18, 2016 is dismissed.
46Motion on behalf of Olivia for child support shall be heard by me, if available, provided that the Team Leader Justice Stevenson shall assign another judge if I am not available.
47Counsel for Olivia shall arrange a case conference before Justice Stevenson or such other judge as assigned by Justice Stevenson.
48If by August 31, 2016 counsel are unable to agree as to costs of this motion, then each shall make written submissions not exceeding 3 pages plus costs outline and offer to settle, if any, on this timetable:
(a) counsel for Olivia September 12, 2016 (b) counsel for mother September 19, 2016 (c) counsel for father September 26, 2016.
Kiteley J. Date: August 22, 2016
[1] See paragraph 39 below as to the case name. [2] Glegg v Glegg, 2014 ONSC 5679 [3] Glegg v Glegg 2016 ONSC 3582 [4] L. (N.) v. M. (R.R.) 2016 ONSC 809 [5] 2016 ONSC 4518
