Court File and Parties

Court File No.: FS-11-00017567 Date: 2016-08-26 Superior Court of Justice – Ontario

Re: Steven Paul Douglas, Applicant And: Julia Grace Moyer, Respondent

Before: Kiteley J.

Counsel: Both parties self-represented Ken Snider appointed by Office of Children’s Lawyer to represent William

Heard: August 26, 2016

Endorsement

[1] The parties were married in 1988 and have four children: Richard born 1992, Sarah born 1995, Cordelia born 1999 and William born August 15, 2001. This motion is about William.

[2] The parties separated in 2003.

[3] In 2006, Justice Paul Perell heard a trial and in December released a detailed draft order for shared parenting in which he allocated 8 days of residence with the mother and 6 days of residence with the father over a 2 week cycle and he allocated decision making authority between the parents including that the father have final decision making authority with respect to education subject to certain conditions. Perell J. also issued a consent order on support issues. Since then, the parties have been in court on many occasions, most significantly as follows:

(a) On December 11, 2007, Justice Backhouse heard a motion in which the mother asked to vary that order to give her decision-making authority with respect to Richard. In that order, Backhouse J. directed the parents to let 15 year old Richard make the decision about the school he would attend for 2008-2009. Backhouse J. observed “these children cannot be brought up by court order.”

(b) On March 18, 2008, Backhouse J. heard the father’s emergency motion in which he asked for an order requiring the mother to deliver Cordelia to the father for the balance of March Break in accordance with the order of Perell J. She ordered the mother to immediately deliver Cordelia to her father for the balance of the week. She held that the mother had been motivated by bad faith and ordered her to pay costs of $3500.

(c) On September 11, 2008, Justice Backhouse dismissed the mother’s motion to change William’s school and she directed the mother to make a written request of Justice Backhouse before filing any further motions respecting the children’s education and schooling.

(d) In 2008, the mother moved from Toronto to New Brunswick.

(e) In a written agreement dated May 26, 2009 the parents agreed that the children would reside full time with the father. The agreement stipulated that the father would continue to have final decision-making with respect to education and mother delegated her health-care decision-making to the father.

(f) As agreed between the parents, on July 2, 2011, mother picked up Richard, Cordelia and William from their residence in Toronto and took them to her home in Saint John for the month long visit. Email communications between the parents included the father’s insistence that she was not permitted to keep the children longer than August 2. On August 21, 2011 when the father was not in the home, the mother returned with Richard, Cordelia and William. Sarah was in the home. Within a few minutes, William collected some belongings and the mother and William left and returned to Saint John. The mother refused to return William. On August 26, 2011 the mother issued legal proceedings in Saint John in which she sought full custody. On August 25, 2011, the father brought an application and on September 1, 2011, I heard the father’s emergency motion for an order that the mother be ordered to return William to his father in Toronto. The mother attended the hearing during which she said that if I ordered her to return William, she would not do so. I made the order that she return William and I ordered that she pay costs of $5000. William did return. I also made an order that the habitual residence of all of the children was Ontario. I incorporated into that order the custody and access provisions of the agreement dated May 26, 2009. When the order was signed and entered, it was indicated as a temporary order.

(g) The mother brought a motion originally returnable on November 21, 2011 in which she asked for “interim full custody of Cordelia and William” and interim custody of Sarah. On December 22, 2011 I made an order dismissing that motion and other relief sought. I ordered the mother to pay costs of $2500 to be paid before a case conference or June 30, 2012.

(h) On July 4, 2012, Czutrin J. requested the involvement of the OCL with respect to another motion by the Respondent to change custody of William and Cordelia and Ken Snider was appointed. On December 11, 2012, Czutrin J. made an order for mother to have telephone access.

(i) On January 18, 2013 I held a case conference primarily for a status report from the OCL. The mother brought an affidavit sworn January 14, 2013 that dealt with issues during her visit with William and Cordelia and Sarah over the Christmas holidays and she asked for permission to bring an urgent motion in which she would ask for a change of custody so that William lived with her and she would ask for directions with respect to Cordelia. I did not give her leave and made an order that, before April 3, 2013 (the expected settlement conference date) prohibited mother from bringing a motion for custody and father from bringing a motion for child support.

(j) On March 28, 2013, OCL held a disclosure meeting.

(k) On April 3, 2013 I held a settlement conference and the parties and Mr. Snider asked to continue it.

(l) On April 26, 2013, the settlement conference continued on the issues of custody of William and Cordelia and arrears of child support table amount and s. 7 expense. I ordered the continuation on May 27, 2013 and set July 18, 2013 as the date for the long motions on mother’s motion for custody and father’s motion on support.

(m) On May 27, 2013, the settlement conference did not result in a resolution. I confirmed July 25, 2013 as the long motion date to change the custody of William and September 9, 2013 as the long motion date with respect to child support.

(n) On July 29, 2013 Justice Horkins dismissed the mother’s motion to vary the custody and access of William. Ken Snider had attended at the request of the OCL and represented William and Cordelia.

(o) On September 9, 2013, Justice Goodman dealt with the father’s long motion seeking enforcement of the support provisions of the 2006 order and adjourned it to October 29, 2013.

(p) On October 29, 2013, Horkins J. heard the motions with respect to child support and in an endorsement dated November 5, 2013, she ordered the mother to pay the arrears of child support in the amount of $30,328.

(q) At the end of August 2015, the mother did not return William. The father brought an urgent motion returnable September 8, 2015. Justice Chiappetta made an order directing the mother to forthwith return the child to the father. She ordered that access by mother to William would be supervised and in Toronto only. She made an endorsement asking the OCL to become re-involved. She ordered the mother to pay costs fixed at $200 by September 30, 2015.

(r) Mr. Snider was again involved and renewed his communication with William.

(s) On June 9, 2016, Justice J. Wilson dealt with the mother’s “notice of contempt motion” which was not accompanied by the required notice of motion. Mr. Snider attended and with the encouragement of Wilson J. he assisted the parties in signing a consent that provided access to the mother to William’s school records and provided that William would be picked up by his mother on June 27th and “have summer” with his mother. Justice Wilson also directed a “further conference/motion” before me on August 24 to discuss William’s academic year 2016-2017 at which time the mother would provide a plan for his education “as to how is education needs can be met in New Brunswick”.

Motion by Respondent for a temporary order changing custody of William

[4] Wilson J.’s endorsement referred to a “conference/motion”. As it unfolded on August 24 it appeared that the parents were unlikely to agree to any change in the status quo and for that reason, while I encouraged the parents and Mr. Snider to co-operate to find a solution, I did not express an opinion about likely outcome. At the conclusion on August 24, I scheduled the motion to be heard before me on Friday August 26 at noon on the basis that the Respondent would serve her notice of motion by noon on August 25 and that the affidavits which each had filed in relation to the case conference would be the evidence on which each would rely. Because the order in question is my order which was taken out as a temporary order, I directed the Respondent to serve a notice of motion to vary.

[5] The mother did serve and file a notice of motion in which she asks for a temporary order that she have custody and that William be allowed to reside in New Brunswick with his mother effective immediately.

[6] I do not accept the submissions made by the Respondent that the Applicant has failed to respond to William’s special educational needs and that only she can do so. I do not accept that William will be significantly better off emotionally or educationally or otherwise in New Brunswick with her.

[7] I agree with the Applicant’s submission that William has been influenced by his mother during the 7 weeks that he has visited in New Brunswick. As the summary of the many court hearings above indicates, the Respondent has been relentless in her pursuit of Cordelia and William and, bluntly, she has now succeeded. I do not condone the Respondent’s relentless challenges to the order made after the trial by Perell J. When early on Justice Backhouse made an order that she was not permitted to bring proceedings, she complied but then reverted to self-help and over-holding, putting the Applicant in the position of bringing on urgent motions to sustain the status quo and as a result, she created chaos in the family. At the hearing on June 9, 2016, the Respondent appears to have concluded that it was a done deal that William would come to live with her and spent her time with William ensuring that that was the outcome of the summer. She says she did not understand she had to serve a notice of motion until I told her to do so two days ago, but she knows well that orders are only changed on consent or by another order. She knew the Applicant would not consent and she had to have an order. Instead, she waited until the conference on August 24 and yet again created a crisis as to where William will go to school in about a week’s time.

[8] After all of that, I will nonetheless make an order that on a temporary basis, William will be permitted to go to New Brunswick. As Mr. Snider indicates, William has been consistent on his views and preferences. He is 15. He may be a little immature and no doubt is very much under the influence of his mother, but he is expressing that view. It is in his best interests to create the opportunity for that to happen so that the years of conflict may end.

[9] I turn now to the ancillary orders I will make to ensure that Ontario retains jurisdiction, that Mr. Snider continues to be available, and that William will return to his father’s home if there is any hesitation on William’s part that it is not working. In her notice of motion, the Respondent listed a number of issues that must be addressed. I did not hear formal submissions from the parties partly because it is approximately 2:30 on Friday afternoon and much needs to be accomplished in a short time because the Respondent has arranged an appointment for the continuation of the psych-ed assessment on Monday in New Brunswick at 11:00.

[10] Mr. Snider had to leave the hearing for other matters. Before he left I directed the parties and Ms. Moyer’s husband not to communicate with William as to the outcome of this hearing until Mr. Snider did so and Mr. Snider informed the parents that he had told William the outcome.

Temporary Order

[11] On a temporary basis, the Respondent shall have custody of William Robert Douglas born August 15, 2001.

[12] The Respondent is permitted to enroll William in St Malachy Memorial High School in Saint John, New Brunswick for the school year September 2016 to June 2017 only.

[13] Ontario retains jurisdiction over custody, access and support of William Robert Douglas born August 15, 2001.

[14] The Respondent shall ensure that William has telephone or electronic access to Ken Snider whenever William asks and whenever Ken Snider contacts him.

[15] If Ken Snider or the Applicant have a concern that the move is not working out, either may arrange an urgent case conference before any of the following if available: Justice Kiteley, Justice Horkins, Justice Stevenson.

[16] The Respondent shall bring William to his father’s home at about 7:00 p.m. today for dinner and overnight during which time William will be able to collect the belongings that he needs now.

[17] The parties will make arrangements for other belongings to be made available to William.

[18] The Respondent shall pick William up at 8:00 a.m. tomorrow (Saturday August 27, 2016).

[19] The Applicant shall ensure that he gives William his Ontario health card.

[20] The Respondent does not have authority to apply for a passport or renewal of passport for William.

[21] The Applicant and William shall have unrestricted phone or email or other electronic access to each other provided that the Applicant may arrange to give William a cell phone at the expense of the Applicant.

[22] The Principal of St. Malachy Memorial High School is ordered to provide to Steven Paul Douglas such documents and reports with respect to William that are generated in the ordinary course and to provide access to William’s teachers and other education personnel as would be provided if the father were present in New Brunswick.

[23] If the Principal refuses to comply with the preceding paragraph the Applicant and Respondent shall forthwith sign a joint letter of direction to the same effect.

[24] The Respondent shall bring or arrange for William to travel to his father’s home for the duration of the Christmas school break in December 2016.

[25] The Respondent shall bring or arrange for William to travel to his father’s home for the duration of the March school break in 2017.

[26] Effective September 1, 2016 and until further order, the Applicant shall not pay child support (table amount or s. 7) to the Respondent with respect to William.

[27] Effective September 1, 2016 and until further order, the Respondent shall not pay child support (table amount or s. 7) to the Applicant with respect to Cordelia.

[28] This temporary order does not affect the order made by Horkins J. dated November 5, 2013 and if any amounts are outstanding on that order, she must pay them.

[29] By April 1, 2017, the Respondent shall obtain a date for a case conference before Justice Horkins or Justice Stevenson if either is available and serve that notice of case conference on the Applicant. The date for the case conference will be no later than June 30, 2017. The agenda for the case conference will be a review of the progress of William.

[30] Neither party shall pay or recover costs of the hearing in June, 2016 or August 24 and 26, 2016.

Kiteley J. Date: August 26, 2016