Shawyer v. Shawyer, 2016 ONSC 830

COURT FILE NO.: FD1258/14

DATE: February 10, 2016

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Gillian Kathleen Shawyer, applicant

AND:

Scott Geoffrey Shawyer, respondent

BEFORE: MITROW J.

COUNSEL: William Clayton for the applicant

Malcolm Bennett for the respondent

HEARD: January 28, 2016

ENDORSEMENT

[1] The applicant, Gillian Kathleen Shawyer, and respondent, Scott Geoffrey Shawyer, have each brought motions for various interim relief. All motions were heard together.

[2] The applicant seeks a restraining order; an order that pickup and drop off of the children between the parties occur at the residence of the applicant’s parents; and an order, pursuant to a motion dated January 25, 2016 that was returnable January 28, 2016 being the special appointment set for hearing of all motions, that the children continue to reside in the primary care of the applicant, that the applicant be permitted to relocate with the children and reside at the chalet that she owns in Blue Mountain, Ontario and an order granting the applicant exclusive possession of the chalet.

[3] The respondent sought an order severing the divorce from all other claims in this proceeding, an order appointing a parenting coordinator to deal with issues relating to the children, an order requesting the assessor to update her assessment report and a restraining order against the applicant.

[4] For reasons that follow, all the motions brought by both parties are dismissed with the following exceptions:

a) the order below does deal with the parenting coordinator;

b) the order below prohibits the applicant from having discussions with the children in relation to moving, but this order is made as an incident of custody and access pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1]; and

c) the order below permits further brief written submissions, if necessary, regarding the applicant’s motion to have access exchanges at her parents’ residence.

BRIEF BACKGROUND

[5] The applicant and respondent were married to each other in 1998 and they separated January 5, 2014.

[6] The parties have two daughters, Emma and Keira, ages 11 and 8, respectively.

[7] This case has been high conflict, in particular in relation to custody and access issues.

[8] An assessment as to custody and access issues was ordered in October 2014 and, pursuant to this order, Dr. Marlies Sudermann prepared her assessment report dated January 22, 2015.

[9] Motions for various interim relief were heard by Templeton J. and, on June 17, 2015, Templeton J. made a comprehensive thirty-six paragraph order that included a parenting schedule whereby the children were primarily resident with the applicant and the respondent was required to pay to the applicant child support in the amount of $4,454 per month and spousal support in the amount of $7,575 per month.

[10] Templeton J. had the following to say about the conduct of these parties at para. 9 of her reasons, Shawyer v. Shawyer, 2015 ONSC 3899:

[9] I have always found it to be ironic that well-informed and educated parents (such as these two parties) spend such time, energy and financial resources (to the detriment of their children) seeking to convince a court that he or she is a better parent for the children. What parents like these parties tend to forget is that they deliberately chose each other for each other and to be parents to their children, if they had any. If I am to rely on their negative assessments of each other now, I must also surely question their own ability to make sound and reasoned important decisions that have significant and life-altering impact. [emphasis in original]

[11] The evidence filed in relation to the numerous motions that are before the court demonstrates that the applicant and the respondent continue to be embroiled in a high-conflict case; they appear oblivious as to how the rancour and conflict is affecting their children.

PRELIMINARY MATTERS

[12] Prior to the motions being argued, the court raised with the parties the issue of setting a trial date for this case, together with a date for a combined trial management/settlement conference. In fact, the order of Templeton J. dated June 17, 2015 (hereinafter referred to as “the current interim order”) required all disclosure to be completed within 90 days, all questioning in satisfaction of undertakings to be completed within 120 days, a combined settlement conference/trial management conference was to take place before November 30, 2015 and it was ordered that the parties shall not change or vary these timelines without leave of the court.

[13] As at the date of the hearing of the motions, oral questioning had not taken place, no settlement conference/trial management conference date had been set and completion of disclosure had not been finalized, including completion of expert reports. In fairness to the parties, however, they had been engaging in mediation and that may have contributed to those deadlines not being met.

[14] On January 28, 2016, an order was made placing this matter on the trial list for the sittings commencing May 9, 2016 and setting a combined settlement conference/trial management conference for April 1, 2016.

THE APPLICANT’S MOTION TO RELOCATE WITH THE CHILDREN TO 141 SNOWBRIDGE WAY, BLUE MOUNTAIN, ONTARIO AND TO HAVE INTERIM EXCLUSIVE POSSESSION OF THAT PROPERTY

[15] The position of the applicant since the commencement of this court proceeding is that the applicant wanted to have primary care of the children and she wanted to relocate from the London/Komoka area to Blue Mountain where the parties own a property at 141 Snowbridge Way, registered in the applicant’s name (hereinafter referred to as “the chalet”).

[16] The respondent strongly opposes any relocation of the children from the London/Komoka area and his position in that regard has been well known and set out in his pleadings and discussed in the assessment report.

[17] I find that there is no merit to the applicant’s request to move with the children on an interim basis to Blue Mountain.

[18] The interim status quo was discussed by Templeton J. at para. 20 of her reasons:

[20] The only home environment the children have known is located in London (Komoka). Until all issues between the parties have settled on a final basis and in recognition of the fact that both consistency and stability are essential for children for whom the nuclear family no longer exists, I find that both girls must live and attend school in London (Komoka) for the foreseeable future. I am also of the view that the children ought to maintain their routine and environment as far as possible with respect to their school, their friends and their summer and extra-curricular activities.

[19] The applicant raises two primary grounds to be permitted to move with the children on an interim basis. First, the matrimonial home in Komoka has been sold recently for $1.1 million, with the sale closing on February 17, 2016. Both counsel advised the court that the parties have agreed that the net proceeds from the sale of the matrimonial home, in the amount of approximately $600,000, shall be paid to the applicant.

[20] The applicant in essence submits that she will have no home and that she wishes to live with the children in the chalet in Blue Mountain.

[21] The second reason that the applicant wishes to move is related to her employment. The applicant works for a company providing interior design services. The applicant has appended a letter to her affidavit from her employer indicating that her employer would be “happy” to continue to provide employment to the applicant on the understanding that she would be available fulltime and that it would be “extremely beneficial” if the applicant also lived closer to the employer’s office in Barrie.

[22] As indicated above, this motion was short-served and was initially returnable on the special appointment date set for the hearing of all the other motions.

[23] The parties do have a connection to the Blue Mountain area because the parties and the children are avid skiers. They belong to the Toronto Ski Club in the Blue Mountain area.

[24] Skiing is an important part of the lives of the parties and the children. Generally, the parties spend weekends in Blue Mountain skiing with the children. One or both of the children is enrolled in competitive racing.

[25] It is instructive that the current interim order, in relation to the chalet, is in essence a “nesting order” whereby the children alone have exclusive possession of the chalet during all seasons throughout the year to the exclusion of the parent in whose care they are not residing at the time.

[26] Accordingly, pursuant to the current interim order, when the children are with the respondent, he will go to the chalet with the children and the applicant will not be in the chalet. On the applicant’s weekend, she will be at the chalet with the children and the respondent will not be at the chalet.

[27] However, the evidence is clear that the parents still have contact with each other at the Toronto Ski Club, because it is not unusual for the parent who does not have the children on the weekend to attend at the Toronto Ski Club for skiing and other activities.

[28] The applicant seeks an interim order varying an interim custody/access order. In Miranda v. Miranda, 2013 ONSC 4704 (Ont. S.C.J.), I had occasion to consider the test on an interim variation of an interim custody or access order at paras. 26 and 27 as follows:

26 A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. C.Q.B.) at para. 10. In Green v. Green, 2004 CarswellOnt 2322 (S.C.J.) at para. 14, Wood J. referred to the well founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes "clearly and unequivocally" that the present arrangement is not in a child's best interests. In Greve v. Brighton, 2011 ONSC 4996, 2011 CarswellOnt 8814 (S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child's best interests.

27 While the principles applicable to interim variation of interim orders have been stated in various ways - the theme is the same and I find that the statement in Greve aptly summarizes the guiding principles.

[29] I find that the applicant has failed to demonstrate a material change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the children’s best interests.

[30] The applicant will be receiving a substantial sum of money on the closing of the matrimonial home and she can either purchase a residence in the London area or rent some accommodation pending trial.

[31] The sale of the matrimonial home had been contemplated by the parties; it was not unexpected, nor would it have been a surprise to either party.

[32] The respondent points out that he has been residing at his parents’ home since the date of separation while the children and applicant have lived in the matrimonial home.

[33] As set out above, the trial date is set for May 2016.

[34] In relation to the applicant’s employment, I find that the evidence is very meagre; I find quite suspicious the timing of the very brief letter from the applicant’s employer.

[35] Ignoring the issue as to whether this letter is admissible evidence, the facts set out in the letter do not suggest that the applicant’s employment or livelihood is in jeopardy.

[36] The issue as to whether the applicant should be permitted to move with the children to Blue Mountain is a significant triable issue and needs to be decided at a trial where the court has the benefit of all relevant evidence. This is not an issue to be decided on a motion on the eve of trial, especially on the somewhat sparse evidence offered in support of the relief sought.

[37] During argument, the respondent was given the opportunity to have an adjournment so he could file material on this motion prior to making any submissions. The respondent elected not to file any material.

[38] The leading case on interim mobility is the decision of Marshman J. in Plumley v. Plumley[^1], 1999 13990 (ON SC), 1999 CarswellOnt 3503 (Ont. S.C.J.). At paras. 1, 2 and 7, Marshman J. sets out the factors to be considered:

1 Mr. Plumley's application to require Ms. Plumley to return the children to the village of Glencoe or, in the alternative, to vary the custody decision made by Aston J. in February of this year raises, yet again, the mobility issue. Following a three-day trial and careful consideration of the matter, Aston J. decided to entrust the custody of the children to Ms. Plumley. Prior to that, Mr. Plumley had had interim custody for approximately 11 months.

2 It is incumbent upon Mr. Plumley to establish that there has been a material change in circumstances since the February order. In Gordon v. Goertz, 1996 191 (SCC), 19 R.F.L. (4th) 177 (S.C.C.), McLachlin J., speaking for the majority, defined a material change in circumstances as follows:

What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 1991 839 (BC SC), 35 R.F.L. (3d) 169 (B.C. S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I. S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J.G. McLeod, Child Custody Law and Practice (1992), at p. 22-5.

It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

7 It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.

2. There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.

3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent's position will prevail at a trial.

[39] Applying the three factors in Plumley at para. 7, there is clearly a genuine issue for trial as to mobility. Regarding the second factor, there is an absence of compelling reasons to allow the move. This is especially so given the current interim order in the present case. Regarding the third factor, given the conflicting evidence, there is no basis to conclude that there is a strong probability that the applicant will succeed in obtaining an order at trial that will permit her to move with the children to Blue Mountain.

[40] The applicant relies on Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.) and, in particular, the summary of the law on mobility in para. 49.

[41] In applying Gordon, and as discussed earlier, the applicant has failed to demonstrate a material change in circumstances. Secondly, the discussion in Gordon stated that “the custodial parent’s views are entitled to great respect”: para. 49, factor number 4.

[42] In the present case, the term “custodial parent” requires some context. There is no final order, only an interim order that is sought to be varied. That interim order created a parenting plan; although the applicant had more time with the children, the decision-making incidents of custody were shared between the parents, with the applicant having responsibility for day-to-day decisions in relation to medical and dental care, counselling and/or religious instruction, and with the respondent having responsibility for the day-to-day educational welfare of the children. Also, the current interim order prohibited certain types of decisions from being made without the written consent of the other parent.

[43] Accordingly, the current interim order delegates incidents of custody to both parties, thus requiring “great respect” for the views of both parties, and this in turn makes mobility a triable issue.

[44] It follows from the discussion above that the applicant’s motion for interim exclusive possession of the chalet also fails. There is no compelling reason, or in fact any reason, to vary the interim order in relation to the chalet.

APPLICANT’S MOTION REGARDING ACCESS EXCHANGES AT THE APPLICANT’S PARENTS’ RESIDENCE

[45] Very little time was spent on this portion of the applicant’s motion during the hearing of the motions. The respondent made the submission that the parties had always used the residence of the applicant’s parents as an access exchange location.

[46] Accordingly, it does not appear necessary to make any order regarding access exchanges.

[47] However, if counsel require an order to be made, then they can each make brief written submissions within ten days and forward same to the trial coordinator or, alternatively, prepare and forward to the trial coordinator a draft consent in relation to this matter.

RESPONDENT’S REQUEST FOR SEVERANCE OF THE DIVORCE

[48] The request for severance of a claim for divorce is addressed in r. 12(6):

12(6) The court may, on motion, make an order splitting a divorce from the other issues in a case if,

(a) neither spouse will be disadvantaged by the order; and

(b) reasonable arrangements have been made for the support of any children of the marriage.

[49] The respondent deposes that he is involved in another relationship. He deposes that he wants to move on with his life and wishes a divorce.

[50] The applicant opposes the respondent’s request. The applicant argues that the granting of a divorce should await trial of all corollary relief issues; that the granting of a divorce, now, could affect how corollary relief issues are dealt with; and the applicant submits that she would be prejudiced because a change in marital status could affect her entitlement to coverage under the respondent’s group medical plans.

[51] I find that the only argument that merits consideration is the alleged prejudice relating to the loss of medical benefits. The applicant argues that sufficient evidence as to whether the applicant is entitled to be covered under the respondent’s current medical plan has not been provided.

[52] The respondent submits that the applicant is entitled to coverage under his plan in the event of a divorce. He also agrees, if a divorce is granted, to keep the applicant covered under his plan until trial.

[53] I accept that the onus of establishing that the applicant will not be disadvantaged rests with the respondent: see Bakmazian v. Iskedjian, 2015 ONSC 7493 (Ont. S.C.J.) at para. 10.

[54] The respondent did provide a letter dated December 15, 2015 from the plan’s senior employee benefit specialist stating that the applicant “… shall remain an eligible spouse …” under the respondent’s plan “… regardless of marital status until replaced by a new eligible spouse at a future date.”

[55] Assuming no issue with the admissibility of this letter, I find that the letter is insufficient to confirm with certainty that a former divorced spouse is still eligible for coverage; particularly, if the respondent should remarry, it is not clear if he could keep the applicant covered.

[56] The applicant relies on the decision of the Ontario Court of Appeal in Colletta v. Colletta, 1992 CarswellOnt 291 (Ont. C.A.). In Colletta, the wife appealed the granting of a divorce on a motion for summary judgment by the husband; it was the wife’s position that the granting of a divorce should await the trial and disposition of corollary relief issues; the wife also argued that she was prejudiced because the divorce would affect her legal status, thereby disentitling her to special benefits including pension and life insurance, as well as medical and dental (para. 8).

[57] In Colletta, the proceeding before the court was the husband’s motion to quash the wife’s appeal. The Court of Appeal held that it did not need to decide whether the appeal was meritorious, only that it was not frivolous. The court found that the appeal was frivolous in the sense that a divorce ultimately would be granted; however, the appeal was found not to be frivolous in the sense that, pending trial, the wife would have no protection with respect to spousal benefits, and the court pointed out specifically that the judge who granted the divorce refused to make any specific provision for life and medical insurance and declined the wife’s request for an order that the husband pay all her medical costs (para. 9).

[58] The principle is clear that a severance of a divorce claim from corollary relief issues may be denied on the basis of prejudice or disadvantage to the other spouse where that spouse would lose the benefit of medical insurance: Colletta, supra, and see also Reiner v. Reiner, 2000 CarswellOnt 795 (Ont. S.C.J.) at para. 11, said case citing Colletta.

[59] It would have been simple for the respondent, to avoid any argument as to whether after divorce the applicant still could be covered under his plan, to provide a copy of the relevant group insurance plan, in particular that portion of the plan that contains the definition of “spouse” and the spouse’s eligibility for coverage. The respondent failed to do so.

[60] In her material, the applicant deposes to a number of health-related conditions where access to the respondent’s medical plan could be necessary. I place little weight on the respondent’s complaint that no medical report was produced.

[61] The applicant deposes that she has chronic health problems, including her right shoulder that requires surgery and that she is on the “cancellation list” for that surgery.

[62] In any event, even if the applicant was completely healthy, the loss of medical coverage would still be prejudicial and disadvantageous as one cannot predict when he or she will require medical treatment.

[63] The respondent relies on Splett v. Pearo, 2011 ONSC 5329 (Ont. S.C.J.) at paras. 90-97, where the court allowed the husband’s motion to sever the divorce, despite the wife’s objection on the basis that this would cause hardship because she required prescription medication which she could not pay for unless covered by the husband’s plan. The court noted that there was no explanation from the wife as to why she had not obtained private health coverage.

[64] Each case must be decided on its own particular facts. I am not persuaded that the decision in the present case should be the same as in Splett. It is noted that in Splett, no authorities were cited.

[65] Accordingly, I decline to sever the divorce.

RESTRAINING ORDERS

[66] I adopt, and apply, the helpful analysis by Starr J., relied on by both the applicant and respondent, in D.C. v. M.T.C., 2015 ONCJ 242 (Ont. C.J.) at para. 64, summarizing the general principles to be considered in determining whether there are reasonable grounds for a person seeking a restraining order to fear for his or her own safety or the safety of his or her children:

64 Based on my review of the case law, the general principles to be considered and applied when determining whether there are reasonable grounds for the person seeking the order to fear for her own safety or for the safety of his or her child or children, include the following:

(a) The onus is on the person asking for the restraining order on a balance of probabilities to convince the court that an order is required;

(b) As a general rule the court must approach the issue of whether to impose a restraining order with caution. The nature of an order is to restrict the freedom of movement and communication of a party. The sanctions for breaching such an order include possible imprisonment. Although the burden of proof is the civil test, the effect is quasi criminal in nature;

(c) A restraining order is not restricted to situations where the fear relates to physical safety. It can also include ongoing fear for one's psychological safety;

(d) It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed;

(e) An applicant does not have to have an overwhelming fear that could be understood by almost everyone; on the other hand, the applicant's fear of harassment must not be entirely subjective, comprehended only by the applicant;

(f) There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words and a Court must be able to connect or associate a respondent's actions or words with an applicant's fears.

(a) Applicant’s Motion for a Restraining Order

[67] The applicant seeks an order restraining the respondent from directly or indirectly contacting the applicant or the children in the applicant’s lawful custody, except communications regarding access or reasonable inquiries regarding the children, as specifically set out in the applicant’s motion. Further, the applicant seeks an order restraining the respondent from coming within 100 metres of the applicant, the matrimonial home or the chalet when the applicant is at the chalet, including with the children.

[68] The applicant is convinced that the respondent is stalking her; she is also convinced that the respondent has engaged in what can be described as some type of concerted, sinister and nefarious campaign of cyber-bullying.

[69] The applicant alleges that the respondent has somehow infiltrated her computer and cellphone, including changing her passwords; she alleges that the respondent has caused deletion of her phone logs; she alleges that the respondent is spying on her electronically; the applicant believes that the respondent must be “monitoring” her computer and “may have access to it remotely” because her computer screen would go blank and her mouse would move when she was not moving it.

[70] The applicant further deposes that the respondent, an engineer, would have access to expertise within companies owned or controlled by the respondent to enable him to wage this cyber war against her.

[71] I deal first with the allegations of electronic spying. The evidentiary record filed in support of that allegation, to put it charitably, is bereft of merit. The respondent categorically denies all these allegations; he states he would have no idea or ability as to how to implement this electronic spying. Importantly, there is only the evidence of the applicant. There is no corroborating evidence from any person who is skilled in such technical matters.

[72] The applicant has deposed to spending many hours talking to technicians from her cellphone carrier and manufacturer of her cellphone trying to explain or solve these alleged cyber-attacks; yet no one steps forward on behalf of the applicant with an affidavit.

[73] It is not necessary to go through each and every allegation of electronic spying; some examples will suffice.

[74] The applicant deposes that she and the children recently went on a cruise; she had her cellphone with her; the applicant deposes that the respondent, without her or the children telling him, would know where they were during the cruise; the applicant deposed that she “verily believes” that the respondent installed a tracking device on her cellphone. The respondent explains, quite believably, that he would speak with the children on the cellphone and that he would know where they were because he was using the tracking website, promoted by Disney, showing the location of the cruise ship. The applicant’s “belief” that this substantiates electronic spying is baseless.

[75] The applicant recites an occurrence in mid-October 2015 when she was driving home with the children from the chalet. While on route, the children spoke with the respondent by cellphone, following which the children asked the applicant if they were passing the town of Eugenia, which they were. The children told the applicant that the respondent had indicated to the children that he knew they were near the town of Eugenia.

[76] The respondent deposes that during the telephone conversation the girls told him that they had left the chalet about 30 minutes ago; they told the respondent that they were near a small town. The respondent deposes that he indicated to the children that this would likely be Eugenia; according to the respondent, this was the only small town within 30 minutes of the chalet. The applicant’s fear that the respondent was somehow surreptitiously tracking her through her cellphone, or by some other means, was not supported by any evidence.

[77] What is noteworthy, however, is that the applicant has been engaged in surreptitiously recording the children’s telephone calls with the respondent. The applicant does admit to doing this on one occasion. The applicant’s stealthy method of recording required the applicant first to call a specific telephone number. The applicant’s phone records contain a number of calls to this number, suggesting that the applicant engaged in recording telephone conversations between the children and their father far more often than she admits.

[78] In relation to the stalking allegations, I find that the evidence tendered by the applicant is flimsy at best and is based on little more than supposition, conjecture and innuendo.

[79] The respondent denies stalking the applicant. The applicant refers to two occurrences at Remark, a grocery store, where the applicant deposes she was stalked.

[80] On one occasion, the applicant’s sole evidence of stalking is that she attended at the store but left immediately after “spotting” the respondent with his partner. On the second occasion, the applicant deposes that “… it was fortunate that I saw him prior to entering the store, and I proceeded to drive out of the parking lot.” If this latter occasion constitutes stalking, then the conclusion would be that the respondent somehow knew that the applicant was going to the store and that the respondent elected to get there ahead of the applicant – which is a proposition as absurd as it sounds. There is nothing in the applicant’s evidence even suggesting that the respondent was aware of the applicant being in the parking lot before she drove away.

[81] The respondent’s evidence is that he lives in close proximity to the store and also the Starbucks in respect of which the applicant makes more baseless allegations of stalking. Equally unconvincing is the applicant’s evidence of alleged stalking in relation to the Hunt Club lunch; further, the applicant’s allegation that the respondent’s participation in the Santa Claus Parade constitutes stalking is another baseless allegation.

[82] The applicant refers to an occasion on September 17, 2015 when she alleges that she attended at the courthouse to see a justice of the peace in relation to obtaining a restraining order. She deposed that when she approached her vehicle parked on Fullarton Street near the courthouse, that she saw the respondent sitting in his vehicle with the engine running a couple of spaces ahead of hers. She deposed that she was frightened.

[83] It is the respondent’s evidence that he was working from home on September 17, 2015 and that he did not go downtown that day. He does depose that he was downtown on September 16, 2015 and parked his vehicle on Fullarton Street as he had a morning appointment with his lawyer, Mr. Bennett. The respondent attached as an exhibit a copy of his parking receipt identifying the time and location where he had parked. The respondent states that he did not see the applicant that day. Although there is some conflict in the evidence, I take into account the applicant’s previous unreliable evidence referred to earlier, and I conclude that the explanation offered by the respondent is more reliable.

[84] The applicant seeks a restraining order on the further grounds that the respondent has been physically violent and verbally abusive towards her.

[85] There is no dispute that in February 2014 that there was an incident at the matrimonial home that resulted in the applicant calling the police. Each party gave different versions of this event; however, it is not disputed that the respondent was charged, but not as a result of the February 2014 occurrence but, rather, based on historical events recounted by the applicant to the police, alleging that she had been assaulted by the respondent at earlier times. Ultimately, the criminal matter was dealt with by way of the respondent entering into a one-year peace bond that expired in or about April 2015.

[86] There is a complete conflict on the evidence as to the allegations of physical and verbal abuse. The respondent adamantly denies that he assaulted the applicant and he adamantly denies that he has been verbally abusive to the applicant. The respondent explains that he entered into a peace bond rather than run the risk of a trial, because a conviction would adversely affect his business as the respondent is required to travel, including to the United States. The applicant submits that the respondent entering into a peace bond is some corroboration of her allegations. I give little weight to that submission, given the conflict in the evidence. Assuming, without finding, that the respondent was innocent of any assault, he would still have to assess the risk that he may be convicted, and the impact that a conviction would have on his livelihood versus the benefit to be gained by entering into a peace bond and avoiding, potentially, a criminal record.

[87] The applicant deposes that in September 2015, after a meeting with the children’s art therapist, that upon leaving the respondent “shouted” at the applicant, allegedly saying he wanted the applicant “to get run over by a bus”; following this, according to the applicant the respondent got into his vehicle and began to circle the applicant.

[88] The respondent deposes that this is a false allegation. In his email to the applicant about this alleged occurrence, the respondent’s version is that he waited on the porch until the applicant left, after which he got into his car, then went about his business and made some calls, including a call to the art therapist. The respondent attaches copies of his phone records showing the calls that he made. In his email, the respondent states that the art therapist can attest to the respondent asking to remain on the porch, and can also attest to the respondent’s call to the art therapist.

[89] The respondent submits that the phone records provide some corroboration as to his version of events. While the phone records do corroborate that the respondent made the phone calls, the records corroborate nothing else.

[90] The applicant submits that an adverse inference should be drawn against the respondent for failure to file any evidence from the art therapist. However, I find that that argument applies more to the applicant than the respondent. The applicant alleged that the respondent “shouted,” that he did so “upon leaving” and that he made the threat “in a loud, angry voice”: see paragraph 13 of the applicant’s affidavit sworn September 18, 2015.

[91] The onus falls on the applicant to convince the court that a restraining order is required. It is a reasonable inference on the facts as alleged by the applicant that the art therapist may have heard “loud, angry, shouting.” There is no explanation from the applicant as to whether she spoke to the art therapist about this matter or whether she tried to get an affidavit from the art therapist. Accordingly, the applicant bears the brunt of any adverse inference to be inferred from failing to adduce evidence from the art therapist.

[92] The applicant submits that the respondent engages in email or text communications that are insulting, accusatory and that amount to harassment. However, I find that the emails and/or texts that are part of the evidentiary record cannot be so described as alleged by the applicant. The respondent is entitled to disagree with the applicant and put forth his viewpoint. This is particularly the case in relation to the emails dealing with the dispute regarding the children's schedule for the October 2015 Thanksgiving weekend.

[93] While I do agree that the respondent clearly was not entitled to have the children with him for any portion of the Thanksgiving weekend in accordance with the current interim order, and that the respondent should not have been making an issue about that weekend, I find there is nothing objectionable to the tone of his emails.

[94] The applicant’s allegation that the respondent attended at the matrimonial home and damaged a front door handle is not supported by any credible evidence. This allegation is based on nothing more than suspicion. The respondent denies damaging the door handle.

[95] In her affidavit sworn January 25, 2016, the applicant refers to an alleged incident at the Blue Mountain resort during the Christmas holidays in December 2015. This new allegation was added to buttress the applicant’s claim for a restraining order. The respondent had no opportunity to respond to this allegation. However, on the merits, the evidence of the applicant adds very little to her request for a restraining order; the security report that was generated was based solely on the applicant’s self-reporting with no objective third party verification of any alleged misconduct by the respondent. I consider also that the respondent had no opportunity to respond to this late allegation which should have been disclosed earlier.

[96] I find that the applicant has failed to discharge the onus on her that a restraining order should be made. In relation to the stalking and electronic spying, there was no evidence to support that the stalking or electronic spying has occurred or will occur. The applicant’s fears in relation to stalking and electronic spying, I find, are irrational.

[97] Further, the applicant has failed to discharge her onus that a restraining order should be made based on other grounds alleged that include physical violence, verbal abuse and harassment through written communications. In coming to this conclusion, I take into account the significant conflicting affidavit evidence, and the dated allegations pertaining to the alleged physical abuse. I also consider, notwithstanding the applicant’s alleged stated fear of the respondent, that the applicant engaged in private meetings with the respondent in attempts to resolve various issues following the release of Templeton J.’s endorsement in June 2015.

[98] Both parties pointed to select passages form Dr. Sudermann’s assessment in support of their respective positions relating to the applicant’s claim for a restraining order. However, given the conflicts in the evidence, and recognizing that Dr. Sudermann will be cross-examined at trial regarding her assessment, I find it is unnecessary, at this interim stage, to rely on Dr. Sudermann’s assessment in coming to a decision on the applicant’s request for an interim restraining order. Also, it is noted that Dr. Sudermann at page 29 stated: “It is difficult to assess this matter of alleged family violence and verbal abuse.”

[99] Notwithstanding the dismissal of the applicant’s motion for an interim restraining order, it is important for the respondent to understand that the allegations of physical and verbal abuse, if true, are concerning. The dismissal of the motion should not be construed by the respondent as some form of vindication, or finding, that allegations of physical and verbal abuse did not occur. While there was insufficient evidence at this interim stage to warrant the granting of a restraining order, the trial judge will have the benefit of hearing viva voce evidence and will have an ability to assess each party’s credibility in deciding whether domestic violence or verbal abuse has occurred.

(b) The Respondent’s Request for a Restraining Order

[100] In his motion, the respondent sought a restraining order as follows: restraining the applicant from discussing with the children her desire and intention to move to Blue Mountain; restraining the applicant, on the weekends and other times when the children are in the care of the respondent and at the Toronto Ski Club, from attending in the vicinity of the locker area during two specified half-hour periods, one in the morning and one in the afternoon, and from interfering with the respondent’s time with the children by communicating with them when they are in the presence of the respondent, and to refrain from any contact or communication with the respondent at the Toronto Ski Club either directly or indirectly; a restraining order that the applicant maintain the chalet “in a neat and tidy condition” when leaving the property for use by the respondent; and an order restraining the applicant from entering or using the downstairs bedroom.

[101] Regarding the request for a restraining order in relation to cleanliness of the chalet and not using the downstairs bedroom, the respondent’s affidavit material descends into nothing more than pettiness. He complains about the state of the bedroom; he complains about the untidy chalet. These claims are not the type of relief that this court should be asked to micro-manage. While it is noted that in his factum the respondent appears to have abandoned these claims, the fact is that the respondent should not have wasted affidavit evidence dealing with these picayune issues and forcing the applicant to respond.

[102] In relation to the restraining order preventing contact with the respondent and the children while at the Toronto Ski Club, I find no merit to the respondent’s request. As indicated earlier, the reality is that the respondent, when he is with the children at the Toronto Ski Club on his weekend, has contact with the applicant because they are both there. On these occasions, the applicant may also “bump” into the children; the applicant and children (and respondent) may be near each other going up on the ski lift or at the top of the ski hill. The respondent does not make any allegations of being fearful or frightened of the applicant. The fact that the applicant was in the locker room on some occasions when the children were in the locker room while in the care of the respondent is not a basis to impose a restraining order. In any event, the applicant has deposed that she has changed a locker location to reduce chances of contact in the locker room.

[103] Even though the respondent’s request for a restraining order was worded more narrowly than the applicant’s request, the fact is that each party, when the children were with him or her, wanted restrictions on the other party’s ability to communicate with or have contact with the children, or the party who has the children, while at the Toronto Ski Club (although, during argument, the applicant seemed to retract, somewhat, from that position). Both parties are responsible for having created an atmosphere where they continue to attend at the Toronto Ski Club when the children are scheduled to be in the care of the other party. It speaks to the immaturity of both the applicant and the respondent that they cannot, apparently, maintain a modicum of civility if they should be in each other’s presence at the Toronto Ski Club – not even for the sake of their children who are exposed to their parents’ strained interactions.

[104] Furthermore there is little convincing evidence filed by the respondent that anything happened in the locker room that would remotely merit a restraining order.

[105] The remaining relief sought by the respondent in relation to his request for a restraining order deals with preventing the applicant from discussing with the children her intention or desire to move with the children to the Blue Mountain or Collingwood area. On this narrow issue, I find there is some substance to the respondent’s concerns.

[106] In her affidavit sworn January 25, 2016, the applicant’s own evidence suggests she is speaking to the children about this issue. Though the applicant deposes that she does not talk to the children about her desire or the possibility of moving to Collingwood (which, quite frankly, I find hard to believe), the applicant does state: “However, I have been forced to address some questions that they have had with respect to a potential move.” It is hard to understand what the word “forced” means but I find that this constitutes an admission by the applicant that she does discuss with the children some aspects of a potential move.

[107] It is noted that para. 21 of the current interim order provides as follows:

Both parties are restrained from discussing any aspect of this court proceeding, its participants or the litigation with the children or either of them in their presence or within their hearing distance.

[108] This order is not a formal restraining order under the Children's Law Reform Act, R.S.O. 1990, c. C.12 or the Family Law Act, R.S.O. 1990, c.F.3, but rather is an order under the Divorce Act as an incident to custody or access.

[109] Although I dismiss the respondent’s request for restraining order, I have included in the order below an interim order pursuant to the Divorce Act that the applicant specifically not have any discussions with the children about the possibility of moving.

THE RESPONDENT’S REQUEST DIRECTING DR. SUDERMANN TO UPDATE HER ASSESSMENT

[110] The applicant opposes an update and states that it is not necessary.

[111] I decline to make this order. Dr. Sudermann’s assessment is very detailed and consists of 51 pages. There is always an intrusive element to any assessment, including the children being interviewed.

[112] There is no evidence of any significant occurrences that have taken place since Dr. Sudermann’s assessment that require Dr. Sudermann to conduct an update.

[113] The parties should focus on getting ready for trial. Much of the evidence that relates to the period of time subsequent to Dr. Sudermann’s report relates to the conduct of the parties towards each other. This evidence is often conflictual and will require the trial judge to make findings of fact after assessing the credibility of each party. Based on the evidentiary record, the update is not necessary. The trial judge will have sufficient expert evidence based on Dr. Sudermann’s existing and thorough report.

AN ORDER APPOINTING A PARENTING COORDINATOR

[114] On December 16, 2015 and on consent I had made an interim order that there should be a parenting co-ordinator with the name of the parenting co-ordinator and costs and terms of the parenting co-ordinator’s involvement to be discussed by the parties and failing agreement to be dealt with by the court.

[115] The respondent in his material proposed that Dr. Dan Ashbourne be appointed as the parenting co-ordinator. The respondent attached to his material a detailed parent co-ordination services agreement.

[116] Although Mr. Clayton indicated that he did not have any issue with Dr. Ashbourne being the parenting co-ordinator, Mr. Clayton had not specifically discussed that with the applicant.

[117] Accordingly there was consensus reached as to how the issue of the parenting co-ordinator should be dealt with and that arrangement is set out in the order below.

PROCEDURE

[118] Given the timelines in the current interim order for oral questioning and exchange of disclosure, the order below includes extension of the timelines, and also deals with the production of expert reports. Deadlines for timeline extensions and expert reports were the subject of submissions made by counsel during the hearing of the motions.

COSTS

[119] The parties are encouraged to agree on costs and, in particular, to take into account that there has been divided success. The order below does provide for costs submissions if no agreement can be reached.

ORDER

[120] For reasons set out above, the following order shall issue:

1. The applicant’s motion for an interim restraining order is dismissed.

2. The applicant’s motion for an order permitting the applicant to relocate with the children to 141 Snowbridge Way, Blue Mountain, Ontario and for an order that the applicant have exclusive possession of 141 Snowbridge Way, Blue Mountain, Ontario is dismissed.

3. The applicant’s motion in relation to the location of access exchanges is dismissed, but without prejudice to the right of the parties, within 10 days, to serve and file a Form 14B motion, and forward brief written submissions to the trial coordinator on this issue or, alternatively, within 10 days, the parties may serve and file a request for a consent order on this issue, to be placed before me.

4. The respondent’s motion for an order that Dr. Sudermann’s assessment be updated and the respondent’s motion for a restraining order are dismissed.

5. Pursuant to the Divorce Act, on an interim basis, the applicant is prohibited from discussing with the children, any wish, desire or intention of the applicant to move with the children to the Blue Mountain/Collingwood area or the possibility of such a move.

6. If within ten days of the date of this order the parties are unable to agree, in writing, as to the name of the parenting co-ordinator and the terms and conditions relating to the involvement of the parenting co-ordinator, then a Form 14B motion may be brought by either party, arranged through the office of the trial co-ordinator and made returnable at 9:30 a.m. before me, not to exceed 30 minutes; each party shall file a draft order setting out the terms and provisions relating to the involvement of the parenting co-ordinator.

7. All expert reports relied on by the parties shall be served no later than the end of February 2016, and any reply expert report shall be served no later than March 29, 2016.

8. The existing deadline for oral questioning is extended to March 31, 2016, and all undertakings arising from oral questioning shall be completed by no later than April 22, 2016.

9. The existing deadline for production of all disclosure is extended to the end of February 2016, except as provided in paragraphs 7 and 8.

10. If the parties are unable to agree on costs of the motions, then the applicant shall forward to the trial coordinator her written costs submissions within 14 days; the respondent’s costs submissions shall be forwarded to the trial coordinator within 14 days thereafter; and reply, if any, within 7 days thereafter. All costs submissions shall not exceed 3 typed pages (2 pages for reply) plus any offers, authorities and bill of costs or time dockets.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: February 10, 2016

[^1]: See also the thorough and helpful discussion by Sherr J. as to the principles applicable in interim mobility motions in Boudreault v. Charles, 2014 ONCJ 273 (Ont. C.J.) at paras 25-26.