Citation: A.S. v. K.L.H., 2016 ONSC 6621

Court File No.: FS-14-00019405 Date: 2016-10-24 Superior Court of Justice - Ontario

Re: A.S., Applicant And: K.L.H., Respondent

Before: Kiteley J. Counsel: Colin Lyle, for the Applicant Philip Viater and Lyna Perelman, for the Respondent Heard: October 24, 2016

ENDORSEMENT AT CASE CONFERENCE

[1] In my endorsement dated June 14, 2016 [2016 ONSC 3915], I summarized the circumstances as they existed at that time, including my observation at paragraph 41 that the children were living in chaotic circumstances. At paragraph 47, I made an order that the Respondent had sole authority to decide the school that L.J.S. (born […], 2003) would attend in September 2016. At paragraph 51 I scheduled a case conference for July 4, 2016. At paragraph 51 I indicated that one of the issues for consideration was the role of the OCL.

[2] Mr. A.S. changed lawyers to Mr. Lyle. Counsel agreed to adjourn the case conference but they did not inform Ms. Kavassalis (on behalf of OCL) who attended as I had directed.

[3] The case conference was held on August 24, 2016. There was discussion about school starting on September 5 and other parenting issues. After an extensive period of time with the parties and amongst the parties and counsel, the only agreement they reached was that they would undertake the therapy services at Yorktown for the children and the parents. I adjourned to today

[4] The case conference brief filed on behalf of the Applicant contains accusations about the Respondent and gives his version of why the children are acting as they are and his version as to why L.J.S. is not regularly attending the school that his mother selected for him. The case conference brief filed on behalf of the Respondent is somewhat more restrained but responds in detail including providing her version of what has been happening and what led up to the events on October 5 and 6. As for the first item on the agenda for today’s case conference, the “status report on parenting”, the situation is even more chaotic.

[5] At the outset of this conference I indicated to counsel and the parties that based on the foregoing (which I summarized), that I would not on this record at a case conference attempt to decide issues of credibility. However there are two incontrovertible facts. The first is that, on June 14, 2016 I made an order giving the Respondent sole authority to decide L.J.S.’s school and she did that. The second fact is that L.J.S. did not attend that school immediately after Labour Day. I indicated to counsel that it appeared on the case conference briefs that the Children’s Aid Society was holding back because of these proceedings in the Superior Court. Given the chaos that was continuing to unfold and indeed to worsen, I indicated to counsel that I was contemplating making an order staying the entirety of this case (parenting and financial issues) for at least 3 months to give the Children’s Aid Society an opportunity to decide whether it should apprehend the children and remove them from the care of both of their parents; and if the Society so decided, to act on the apprehension. I recessed for 30 minutes to give counsel and the parties an opportunity to discuss that possibility.

[6] On resumption, both counsel agreed to a stay but for different reasons. Mr. Viater asked that the stay not affect the trust claims that the Applicant has asserted against the Respondent and that his client be permitted to proceed with the summary judgment motion now scheduled for December 20, 2016.

[7] I have decided to order that stay of all matters in the Superior Court for these reasons. The first is that these children have been living in increasing chaos at least since April 2, 2016 when the Applicant was charged with sexual assault and assault. As I indicated at paragraph 32 of the June 14, 2016 endorsement, that did not constitute a material change in circumstances because he was entitled to the presumption of innocence. However, the terms of his recognizance that prohibited him from having contact with the Respondent was a material change in circumstances. The parties have been unable to agree on even straitforward issues ever since.

[8] The second reason relates to L.J.S.’s schooling. In June, the record before me indicated that L.J.S. had some challenges at school. For the reasons indicated at paragraph 42, a decision had to be made as to school in September 2016. Although the Respondent made the decision I authorized her to make, the fact is that L.J.S. did not attend that school immediately after Labour Day and arrived only on September 13. In his brief, Mr. Lyle has provided some attendance records which indicate some attendance. Mr. Viater advised that on October 21 his client had contacted the Principal of that school and had been informed as follows: “L.J.S. is attending school but is “completely detached”. He is not working and not participating. At this stage his lack of work and participation means that the teacher does not have enough information to grade him”. I recognize that that is many layers of hearsay but it coincides with the record of attendance that was provided at Tab D of Mr. Lyle’s brief. L.J.S. is in chaos. While I have less information about O.S. and her school, I infer that if L.J.S.’s situation is as described, he is in harmful circumstances which exposes O.S. to equally as harmful circumstances.

[9] In early October, 2016, the situation became so precarious that the Respondent took the steps she did. I will not summarize what happened either from the perspective of the Applicant or the Respondent. But for her to have done what she did was extraordinary. The circumstances need to be investigated and this Court has no ability to do so.

[10] The third is that the Society has had extensive involvement with the family. As indicated at paragraph 23 of the earlier endorsement, following the order for disclosure, the CAS disclosed more than 650 pages of typed records regarding the family. Mr. Lyle provided a letter dated October 14, 2016 under the signature of Senior Counsel indicating that the Society considers this is a “high conflict case” however the Society’s assessment of the situation is that further litigation will not improve the children’s quality of life. The letter indicates that the Society is working on a voluntary basis with the family and will continue to do so unless and until the Society believes a child protection proceeding is both necessary and of assistance to these children. The police have been called from time to time including by one of the children and that typically engages the Society but otherwise I infer from the material that the Society is deferring to this court.

[11] This court made an order respecting a very important part of the life of a child, namely the school he was to attend. His life is in chaos. The Superior Court cannot provide any mechanism to relieve that chaos.

[12] By this endorsement which will be sent to the Executive Director of the Children’s Aid Society of Toronto, I am asking that the Society immediately investigate whether the circumstances in which these children exist in the midst of high conflict between the parents means that the Society should apprehend and take the necessary steps. I recognize that this court cannot direct the Society to take any steps. On the basis of the extraordinary events in this family and the ongoing harm that these children appear to be experiencing, I ask that the Society exercise its statutory decision-making power and assume that the Superior Court proceedings will be stayed to accommodate their jurisdiction over these children.

[13] In this proceeding pursuant to the Children’s Law Reform Act, the court must be guided by the best interests of the children. I see no steps that the Superior Court can take that will assist these children at this time.

[14] I will not allow the property matters to proceed in the meantime. The Applicant went bankrupt in 2011 and was discharged March 6, 2014. The separation occurred on August 3, 2013. The parties were not married and hence the Applicant cannot make a claim for an equalization payment pursuant to Part 1 of the Family Law Act. His claims are limited to common law trust claims. There is nothing at this stage that would indicate the impact of the bankruptcy on those claims. At any rate, whether the trust claims are impacting the parenting claims or not, the circumstances with respect to the children take priority and ought not to be affected in any way by the trust claims.

ORDER TO GO AS FOLLOWS:

[15] Until further order by me or by the Family Law Team Leader Justice Stevenson, this proceeding is stayed and neither party shall bring any motion for any relief.

[16] Counsel and the parties shall attend before me on Friday January 6, 2017 at 2:30 p.m. for a case conference at which point I will consider whether to lift the stay from all or part of the case. The parties may not adjourn that date.

[17] The long motion scheduled for December 20, 2016 is vacated.

[18] Counsel shall collaborate to take out the order dated June 14, 2016.

[19] The Registrar shall forward to the Executive Director of the Children’s Aid Society of Toronto a copy of this endorsement and a copy of the endorsement dated June 14, 2016.

Kiteley J.

Date: October 24, 2016