CITATION: Morgan v. Baxter, 2016 ONSC 7529

COURT FILE NO.: 9945/14

DATE: 2016/12/01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Jennifer Lyn Morgan

Self-represented

Applicant

• and -

Adrian Baxter

Bernadette M. McCartney, for the Respondent

Respondent

Long Motion Heard at Welland, Ontario: November 25, 2016

The Honourable Justice T. Maddalena

DECISION ON MOTIONS

1The motion of Ms. Morgan (the “applicant”) is found at tab 25 of the continuing record. She requests that child support be moved from New Orleans to Ontario and added to the custody and access file already in the Ontario Superior Court of Justice at Welland. She further requests that the current restraining order issued by the court on November 26, 2014 and varied August 15, 2016 be continued.

2The cross-motion of Mr. Baxter (the “respondent”) is found at tab 27 of the continuing record. Mr. Baxter seeks access to the child including Christmas access. He further seeks an order vacating the restraining order.

3The respondent further seeks, on a preliminary basis, an order redacting certain references to settlement conference materials from the materials of the applicant, which requests were granted as preliminary matters to these motions.

Jurisdiction for Child Support

4On March 24, 2015 the applicant brought a motion before this court for a declaration that the Ontario Superior Court of Justice has jurisdiction to deal with all matrimonial issues between the parties including divorce, custody, child and spousal support, and division of property.

5Henderson J. ruled, in a decision dated April 7, 2015, that the applicant’s application in the Ontario Superior Court of Justice should continue with respect to custody and access, but that all other issues, including child support, were to remain with the Louisiana court.

6Henderson J. then stayed all other aspects of the applicant’s application.

7The applicant now brings a second motion before this court again seeking that child support be moved to the Ontario Superior Court from the New Orleans court.

8It is noted that the applicant did not appeal either the Louisiana original court order, dated June 11, 2014, nor did she appeal the order of Henderson J. dated April 7, 2015.

9While I am sympathetic to the applicant that it is too costly and difficult for her to attend court in New Orleans for various hearings, all of these same issues were raised at the hearing before Henderson J.

10Henderson J. concluded in his decision in para. 28 as follows:

In this case I find that the New Orleans Court held a full and fair hearing, and that Justice Jupiter rendered a thoughtful decision that determined the jurisdiction issue. It is not appropriate for this court to make a contradictory order.

11This issue has now been adjudicated by two courts, one in Louisiana and once at the Ontario Superior Court of Justice at Welland.

12The applicant now argues that the respondent no longer lives in Louisiana so that the Louisiana court can no longer have jurisdiction in the divorce and ancillary matters. She argues that there is evidence before the court that suggests that the respondent either resides in Montreal or more likely in the state of New Jersey.

13The applicant states that in accordance with the Louisiana statute UIFSA (Uniform Interstate Family Support Act), as Mr. Baxter does not reside in Louisiana, then Louisiana may not continue to exercise jurisdiction to modify its child support.

14I note that in the affidavit material before the court there is some evidence of the respondent having materials addressed to him at a Montreal address. There is also evidence of a New Jersey address, but the evidence also indicates that Mr. Baxter has an apartment in New Orleans.

15Further, if the UIFSA statute is indeed applicable, that same argument ought to be made to the Louisiana court and not to the Superior Court of Justice at Welland.

Res Judicata

16Res judicata is an important principle in our system of justice. In Danyluk v. Ainsworth Technologies, 2001 SCC 44, [2001] 2 S.C.R. 460, the Supreme Court held, in part, in para. 18 as follows:

The law rightly seeks a finality to litigation … An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided.

17Further, in the case of Turner v. York University, 2011 ONSC 6151, the court held in paras. 62-63 as follows:

[62] Issue estoppel, a branch of res judicata, prevents parties or their privies from re-litigating those points that have been settled by the court. In Angle v. Canada Minister of National Revenue – M.N.R.), 1974 168 (SCC), [1975] 2 S.C.R. 248 at 254 Dickson J., identified three criteria that must be met in order for issue estoppel to apply:

… (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies. ….

[63] In Newmarch Mechanical Constructors Ltd. v. Hyundai Auto Canada Inc., (1994), 1994 7278 (ON SC), 18 O.R. (3d) 766 at 768 – 769 (Gen. Div.) the court canvassed a number of authorities, and reached the conclusion that issue estoppel is applicable to interlocutory or procedural motions within an action.

18Having considered the above cases, I conclude the test has been met. The same question has now been decided by the court in Louisiana and further by the Superior Court at Welland. The decision was, in the Louisiana court, part of a final order and in the Ontario court part of an interlocutory proceeding. The parties in both instances are the same.

19Therefore, I conclude, the applicant’s motion for the Ontario Superior Court of Justice to assume jurisdiction over child support is dismissed.

Respondent’s Access to the Child

20On May 11, 2016 this court ordered that Mr. Baxter was to have supervised access to the child at Pathstone on alternating Sundays for a period of two hours (in accordance with correspondence presented to the court from Pathstone).

21The court further ordered that the supervised access was only to occur provided the respondent was to contact Pathstone to arrange for immediate counselling with himself and the child.

22Further the respondent was also ordered, in the first instance, to cover costs of the counselling and supervised visitation.

23The respondent now, in his motion before the court, seeks access on either Christmas Eve or Christmas Day to the child. However, it is uncontroverted evidence that no counselling has yet taken place at Pathstone as ordered by the court.

24Correspondence from Pathstone dated November 21, 2016, which is attached to the applicant’s affidavit, states in part as follows:

“At this time service has not commenced as the court order speaks to supervised access taking place in conjunction with counselling and the father, Adrian Baxter, has not completed the referral for the counselling. The father states that he will be enrolling in Counselling in December 2016.”

25As no counselling has commenced, there will therefore be no access as requested. Therefore, the access issue is adjourned to Motions Court on Wednesday, March 1, 2017 at 10:00 a.m.

Restraining Order

26This court issued a restraining order dated November 26, 2014. That restraining order was further amended August 15, 2016.

27I find there were sufficient reasons documented in the evidence of the applicant to justify the restraining order and the amendment to the restraining order.

28The applicant continues to be fearful and her concerns are outlined in her affidavit sworn November 24, 2016.

29The respondent deposes that the fear of the applicant is mislaid and has brought forth numerous email communications between the parties to prove his point.

30Before the court grants a restraining order, the court must be satisfied of reasonable grounds for the mother to fear for her own safety or that of the child.

31Although there have been no recent altercations, the applicant continues to have concerns as she deposes that the child witnessed the respondent’s attempt to strangle her. She deposes that fears still exist with her and the child. The court notes there is no counselling yet between the child and the respondent despite that it was ordered in May 2016. Perhaps the issues dealing with the child’s fear could have been dealt with had counselling taken place as ordered.

32For the time being, therefore, the restraining order is continued with necessary amendments to allow for supervised access and counselling through Pathstone, as ordered on May 11, 2016.

Summary of Orders

33The following orders are made:

1. The motion of the applicant seeking that the Superior Court of Justice assume jurisdiction over the child support issues is dismissed.
2. The respondent’s motion for access is adjourned to March 1, 2017 at 10:00 a.m.
3. The respondent’s motion to vacate the restraining order is dismissed.
4. The restraining order of November 26, 2014 as amended by the restraining order granted August 15, 2016 shall continue with the necessary amendments to allow for supervised access and counselling at Pathstone.
5. The respondent’s motion to redact reference to settlement conference materials from the applicant’s motion materials is granted.

Costs

34Given the mixed success of the parties, there shall be no order as to costs.

Maddalena J.