Court File and Parties

Newmarket Court File No.: FC-14-46184-00 Date: 2016-08-25 Ontario Superior Court of Justice

Between: Elahe Ranjbar, Applicant And: Ali Aminfar, Respondent

Counsel: E. Mazinani, for the Applicant J. Gottlieb, for the Respondent

Heard: August 24, 2016

Jarvis J.:

Ruling on Motions

Introduction

[1] There are two motions before the court. The applicant mother (“the mother”) seeks an Order dispensing with the consent of the respondent father (“the father”) to the sale of their jointly owned residence, and striking the father’s pleadings. The father seeks to dispense with the mother’s consent to the sale of the their residence, and to have the mother found in contempt of an Order made by Bird J. on January 15, 2016 dealing with access to the parties’ nine year old daughter. He also seeks to vary or set aside an Order made by Douglas J. on August 4, 2016 denying him the right to be heard today, absent proof of his compliance with Bird J.’s Order dealing with his maintaining certain payments for the matrimonial home.

Prior Orders

[2] On January 15, 2016, Bird J. made an Order that, among other things, gave directions with respect to the disposition of the matrimonial home and, in lieu of payment of child and spousal support, requiring the father to pay the property’s mortgage, realty tax, home insurance and Rogers expenses. Reading Bird J.’s endorsement, it is not an unreasonable inference that Her Honour expected timely compliance with her Order to facilitate either an inter-spousal transfer or, failing that, the spring and/or summer sale of the residence. This was important because, until the property was sold, the father’s accommodations were not well suited for the child to reside with him. He did not have the resources to both maintain the matrimonial home and to acquire better living quarters.

[3] The wife brought an emergency motion on August 3, 2016. The matter could not be heard that day and so it was adjourned to the following day when Douglas J. dealt with it. There was evidence that the father had not paid the realty taxes and one of the mortgage payments. There was no evidence that there were impending legal proceedings involving either the mortgage or realty taxes. The wife complained that the husband was not cooperating with the sale process. Douglas J. adjourned the motion to August 24, 2016 and ordered that the husband “provide proof of his compliance of his obligation re: payments re: matrimonial home per January 15, 2016 order, failing which he will be denied audience on August 24, 2016”. Neither the husband nor his lawyer was able to attend court on August 3 or 4, 2016. The motion was dated on the August 1, 2016 statutory holiday.

[4] There are arrears of realty tax payments and, possibly, one mortgage payment by the husband, although the mortgage was fully paid to July 31, 2016 (the wife made a mortgage payment in May 2016 and the lender agreed to a payment holiday for June 2016). The wife says the husband should not be heard. The husband argues that Douglas J.’s endorsement denying him an audience should be varied or set aside, that Douglas J. did not have before him a more complete evidentiary record that would have likely not resulted in the Order made. It was known to the wife when the matter was heard by Douglas J. that the husband’s counsel was unable to attend as he was involved in a court proceeding elsewhere.

[5] Family Law Rule 25(19) is relevant.

Changing Order - Fraud, Mistake, Lack of Notice

(19) The court may, on motion, change an order that, (a) was obtained by fraud; (b) contains a mistake; (c) needs to be changed to deal with a matter that was before the court but that it did not decide; (d) was made without notice; or (e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present. O. Reg. 151/08, s. 6.

[6] In Marello v. Marello (unreported), a 2015 decision of Kiteley J. a costs Order was set aside in circumstances where there had been inadequate notice of a motion. The husband in that case had not been given an opportunity to be heard and, like this case, neither he nor his counsel had been able to attend. Like this case too, the motions judge (not Kiteley J.) did not have a more fulsome evidentiary record to explain the breach of the Order that led to the costs award and which the subsequent affidavit evidence revealed. This is what has happened in the case before me. There was inadequate notice given to the husband, and the explanation given as to being unable to attend is satisfactory. Accordingly, he shall be heard.

Sale of Matrimonial Home

[7] Both parties want the sale of the matrimonial home but don’t want the other party involved. The original agent withdrew his services on May 31, 2016. He later advised that he would be prepared to represent the husband. Both that agent and the husband indicated that they were prepared to work with an agent engaged by the wife but she declined, unreasonably in my view. There is no reason why, if the parties cannot agree on an agent, that their choice of agents cannot collaborate. There is insufficient evidence that would disentitle either party to be a full participant in the sale process but, clearly, directions are needed. In Miller v. Miller, 2016 ONSC 3027, Doyle J. thoughtfully mapped out directions for the sale of a residence that commend themselves to this case. Paragraphs (3)(i) to (xiv) are particularly noteworthy. Nothing prevents the wife in this case from engaging services of an agent to collaborate with the husband’s choice of agent, but if no choice is made by her before September 1, 2016, then her consent to the listing and sale shall be dispensed with and the husband is authorized to sign all documents as may be required to list and sell the matrimonial home.

Parenting

[8] The child has been exposed to her parents’ conflict. On January 15, 2016 Bird J.’s Order also included provisions that dealt with access and directed that neither party discuss this case with, or disparage the other in the presence of, the child. The evidence is that the access was limited because of the father’s then accommodations. Bird J. observed,

I further express my strong view that the status quo cannot continue much longer. The respondent father needs to be in a position to obtain proper accommodation to facilitate access to the child. The applicant mother has expressed concerns that the child is suffering from anxiety from the visits. No doubt this situation has been stressful for her but both parties agree she needs to maintain strong relationships with both parents and that involves regular access by respondent father, which is expected to increase once housing issues are sorted out.

[9] The father has just recently rented a suitable two-bedroom apartment.

[10] The evidence is clear that there has been no access by the father in accordance with the Order made by Bird J. despite the father’s efforts. Without the father’s knowledge, the mother took the child to the family doctor who then made a referral to a specialist in Child & Adolescence Psychiatry. Neither the child’s attendance with the family doctor nor the referral to a psychiatrist and that later appointment were communicated to the father. The clinician summarized his findings as follows,

Summary S. is an 8 year old female with a reported lack of interest and reluctance in seeing her father who left the home approximately one year ago for the second time. Her mother is concerned about the nature of the relationship between S. and her father and is worried that it may cause long lasting psychological issues. Individual counselling and possibly counselling involving both parents is suggested to help S. understand and cope better with her parents’ separation.

[11] The diagnostic impression was “Conflictual parental separation”. A number of recommendations were made, one of which involved counselling for the child and, additionally, family therapy for the child and her parents. A cryptic email from the mother’s counsel to the father’s counsel on May 23, 2016 indicated that the mother was “taking steps to identify the underlying issues in relation to access between [the father and child]”. A copy of the psychiatrist’s report was appended. This was the first time that either the husband or his counsel were made aware of the mother’s actions with respect to counselling and/or therapy for the child.

[12] No reasonable explanation was given by the mother why she acted in such a clandestine way. She sought to excuse her conduct by reference to the Order of Bird J. Paragraph (6) of that Order provided as follows:

(6) Both parents shall be entitled to communicate with the child’s school and any healthcare providers and receive all available information from them about the child.

[13] Nothing in that paragraph, and nothing arising from any exchange of communications between counsel, entitled the mother to act in the unilateral fashion that she did. Except in situations of emergency, and absent a court order, the failure by a parent to reasonably attempt to involve the other parent in important healthcare decisions affecting their child raises serious questions about their fitness as a custodial parent.

[14] The father argued that given the miserable record of access compliance by the mother (including directing the school to prevent the father seeing his daughter after access had been denied) it should be clear that the mother neither supports nor encourages a meaningful, conflict-free, relationship between the child and her father-despite the mother’s statements to the contrary.

[15] In Reeves v. Reeves, [2001] O.J. No. 308, Mossip J. observed,

Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrates the irresponsibility of the parent who has the children and demonstrates that parent's inability to act in the best interests of their children. Children do not always want to go to school or want to go to the dentists or doctors. It is the responsibility of good parents to ensure that children go to school, go to doctors, and go to dentists. Good parents manage their children's health and safety issues without necessarily the consent or joy of their children. A healthy relationship with both parents is a health and safety issue that good parents ensure takes place. [Emphasis added]

[16] The father seeks a transitional Order for access that varies the Order made by Bird J. and would involve alternating weekend residency of the child with him and an overnight with the child one night of the week preceding the non-access weekend. Given the psychiatrist’s observations and the fact that the child has not spent very much time with her father since the January case conference, I am not persuaded that broader overnight access as requested by the father would be appropriate at this time. However, there should be a gradual introduction of overnight time.

[17] The conduct of both parties in supporting and encouraging a healthy relationship of the child with each of them will be carefully scrutinized by the court.

Disposition

[18] For the foregoing reasons, the following Orders are made:

1. The mother shall communicate to the father by August 31, 2016 her choice of realtor to collaborate with his choice of realtor on the sale of their matrimonial home, failing which the mother’s consent to the listing and sale of the property shall be dispensed with and the father is authorized to enter into such agreements, and to sign such documents on behalf of the parties as may reasonably be required to sell the property.
2. The matrimonial home will be listed for sale by September 2, 2016 unless repairs and/or staging are required (on realtor recommendations) in which case the repairs/staging are to be completed and the home listed no later than September 21, 2016.
3. Subject to paragraph 1 above, the parties will fully cooperate in the listing and sale of the matrimonial home including but not limited to: (a) signing the listing agreement; (b) facilitating open houses based upon realtor recommendations; (c) keeping the house clean, tidy and odor-free for viewing purposes; (d) facilitating all showings; (e) fixing the list price and reducing it if necessary as recommended by the realtor(s); (f) staging the home if recommended by the realtor(s) and sharing any cost of same equally; (g) any other recommendation for sale by the realtor(s).
4. In the event that a party does not comply with any of paragraphs 1 to 3 above or there are any issues arising from the directions contained in those paragraphs, either party may move by way of 14B motion before me on ten days’ notice to the other side.
5. The sale proceeds from the matrimonial home will remain in the vendor real estate lawyer’s trust account pending further Order of this court or Minutes of Settlement.
6. The Order of Bird J. dated January 15, 2016 is varied such that the child shall have access with her father in accordance with paragraph 80(a) to (e) of his affidavit sworn August 15, 2016.
7. Commencing September 21, 2016, and each succeeding Wednesday day the child shall be picked up by her father from school or after school care and returned to her mother’s care no later than 7:30 p.m. that night.
8. From and after September 23, 2016 and on alternating weekends thereafter the child shall reside with her father from after school or after school care on Friday until Saturday at 5:00 p.m. when she shall be returned to her mother’s care.
9. The access schedule set out in paragraphs 7 and 8 above shall continue in force to and including October 21, 2016 after which either party may move to vary the access arrangements on a de novo basis.
10. The wife shall forthwith provide to husband’s counsel the dates and times of all healthcare professionals seen by the child from and after January 15, 2016 and to provide to the husband copies of all communications between the wife (or on her behalf by counsel) to and from such healthcare providers. This information shall be provided by September 2, 2016 (4:00 p.m.).
11. Except for emergency situations, neither party shall make arrangements for, or schedule, appointments with a healthcare provider for the child without at least seventy-two hours’ notice to the other parent. The parent receiving such notice shall be entitled to communicate with the healthcare provider and to participate and to attend at any such appointment. Any consent required involving counselling or therapy shall first be obtained from the other parent, such consent not to be unreasonably withheld.

[19] The mother’s motion to strike the father’s pleadings is dismissed.

[20] Leave is granted to the husband to file in the Continuing Record his Notice of Contempt motion and Notice of Cross-motion.

[21] No consideration has been given to each party’s motion to have the other found in contempt. Those motions are adjourned sine die.

Costs

[22] If the parties are unable to resolve the issue of costs arising from their motions, each party shall no later than September 16, 2016 file in the Continuing Record their written submissions limited to three double-spaced pages, excluding offers to settle (if any), Bills of Costs and any authorities upon which they may be relying, which shall be filed separately.

Justice D.A. Jarvis Released: August 25, 2016