COURT FILE NO.: 89-2016 (Goderich)
DATE: 06152018
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Michael James Theodorus McCavish,
Self-represented applicant
Applicant
- and -
Jessica Anne Appleby
Respondent
Self-represented respondent
HEARD: May 14, 2018 (motions)
ASTON J.
[1] This litigation started nine years ago. The children are now 13, 11 and 9 years of age. In February 2009, the family was living in Japan. The mother left Japan and returned to Canada with the children while the father was at work. She describes it as an escape from torment. The father describes it as a criminal abduction. He is bitter about it to this day.
[2] Within a few months of the mother’s move, the father started this application in Guelph. In 2016, the application was transferred to Goderich, the mother having relocated to Huron County. By that time, the father had started a second court application in Goderich under the Hague Convention. That application in the Ontario Court of Justice was transferred to this court after several interlocutory orders. The father contends that his Hague Convention “enforcement application” is still pending. I have my doubts about that, but need not resolve that issue at this juncture because the father concedes that whatever relief he could obtain under the Hague Convention is available in the application in this court. At the very least, the two proceedings were consolidated and have continued in the Goderich site of the Superior Court since the summer of 2016. I also note that on December 19, 2011, Van Rensberg J. held that the children “are subject to the jurisdiction of the Province of Ontario, country of Canada”.
[3] The applicant explained that he has not pressed the case forward more diligently in the last nine years because he is only able to come to Canada once a year for a maximum of about six weeks. His business ventures which necessitate travel to various places around the world and his commitment to his school in Japan limit his ability to spend time in Canada.
[4] In the last two years, the Continuing Record in this case has grown from four volumes to seven. During this latest period there have been at least fourteen separate court attendances before eight different judges. However, the case is no more ready for trial today than it was at the first trial management conference six years ago. Most recently, a trial management conference was scheduled October 16, 2016, as well as a further settlement conference. Several such conferences followed. The case was ultimately struck from the trial list and is now back for a fresh round of motions (five in all) dating back to the summer of 2016. I will address the father’s motions, then the mother’s.
Father’s contempt motion – Volume 1 Tab 12
[5] This motion was originally returnable July 20, 2016. There are four specific grounds cited by the father for a finding of contempt against the mother which can be paraphrased as follows:
(a) she moved the children’s residence outside the counties of Wellington or Waterloo, contrary to para. 7 of the order of Van Rensberg J. dated December 19, 2011;
(b) she failed to produce the children for Skype access, contrary to that same order and subsequent orders of Miller J. May 14, 2012, Schnall J. July 21, 2015 and Brophy J. dated August 25, 2015;
(c) she failed to provide information or documentation about the children’s health, education and general well-being, contrary to an order of Brophy J. dated August 25, 2015; and
(d) she changed the names of the children without notice to him.
[6] Justice Brophy already addressed the last of these grounds when he observed in his January 16, 2016 reasons that there was no order prohibiting the mother from changing the names of the children, who were all born in Ontario. He found that she had complied with the provincial legislation in force at the time. His finding was not appealed. The name changes do not constitute contempt for any order.
[7] Justice Brophy’s order of August 25, 2015 required the respondent to send the father’s lawyer electronic copies of “school reports and similar material”. It went on to provide that his lawyer was to send to her a form of consent so that in the future he could obtain “those types of reports” and other such information directly from third parties. Mr. McCavish admits in para. 15 of his affidavit of July 13, 2016 that Ms. Appleby did in fact provide the school reports, but with the address of the school blacked out. I accept Ms. Appleby’s explanation for doing so and find that she substantially complied with what Brophy J. ordered her to do. Specifically, I reject Mr. McCavish’s submission that her redaction of the records constitutes contempt for the order. There was no ongoing obligation by the mother to continue providing school records after the date of the order and there is no clear evidence that she refused to sign documentation presented to her to enable Mr. McCavish to access the information directly.
[8] Ms. Appleby moved to her present home in Huron County about five years ago. It is located six kilometres outside of Wellington County. She explained that the reason for her move was to secure more affordable accommodation during a time when legal fees had exhausted her savings and Mr. McCavish was not paying any child support. I find that though she technically breached the order, her move does not constitute contempt of court. There is a practical and reasonable explanation for her non-compliance. Moreover, there is no prejudice or adverse consequence to Mr. McCavish. In fact, the applicant concedes he would have consented to the move if she had only asked him in advance. His attempt to now characterize her change of residence as “contempt” so that she might be castigated or sanctioned by the court says more about him than about her.
[9] The factual controversy over Skype access is hard to resolve on the conflicting material filed. The particulars of timing, frequency, duration and supervision of that Skype access have changed several times since the original order. This issue was litigated at Mr. McCavish’s behest in the Ontario Court of Justice before the present contempt motion in this court.
[10] I think it fair to say that from 2011 to 2013 the problems with Skype access also reflected the young ages of the children and not just the inability of the parents to communicate over exact arrangements. Then, in September 2013, Mr. McCavish’s recognizance of bail included a condition that he not have any contact directly or indirectly with any of the children, triggering a halt to his Skype access that did not resume until 2015 when he sought to enforce the prior orders in the Ontario Court of Justice. Though Ontario Court Justices Schnall and Brophy confirmed his entitlement to some Skype access pending the full determination of the issues, Justice Brophy ultimately determined in January 2016 that the matter ought to be resolved in this court. In refusing to make any enforcement order, he expressed the opinion in reasons dated January 2016 that;
“Requiring the children to attend at a supervised access centre for Skype access with the distant parent is artificial in the extreme. I am not of the view that it is in the children’s best interest to participate in a process that offers the children very little in terms of personal contact, communication and warmth. This form of access might satisfy the applicant in that he can then say he has had contact with the children, but it would not do anything, in my view, to promote a positive relationship with him or be in the best interest of the children. I am of the view that the children would be resentful and unhappy. This is not what is intended in terms of the dipositive aspects of parental contact through access arrangements. This is of particular concern in that there is no plan going forward. If the Skype access was to occur three times and then the applicant was to attend in person on a regular basis, albeit not every second weekend because of distance and expense, then there might be some value in it in terms of introduction of the applicant after a long absence. But without a plan in place indicating where this access is headed, then I am not of the view that this would be in the best interest of the children.”
[11] Given those findings by Brophy J., in a proceeding initiated by the father for the enforcement of his Skype access, it seems to me an abuse of process for the father to then bring a motion seven months later in this court for a finding of contempt regarding that Skype access.
[12] The father’s motion for a finding of contempt is dismissed.
Father’s motion at Volume 1 Tab 16 to strike the mother’s affidavit dated September 12, 2016
[13] There are no grounds cited in the notice of motion other than a reference to certain rules. Mr. McCavish made no oral submissions on this motion when it was heard May 14, 2018. I have nevertheless reviewed the impugned affidavit. It does not perfectly comply with rules of evidence or the Family Law Rules but it is no worse in that regard than the affidavit material of the applicant. The respondent was self-represented by the time of this affidavit and for the most part it is perfectly acceptable and it is certainly not prejudicial to the applicant to have it included in the record. The disposition of these motions does not depend on any evidence that is inadmissible.
[14] The husband’s motion to strike the affidavit is dismissed.
Father’s motion at Volume 1 Tab 20 for an order compelling the respondent to comply with the order of January 25, 2017 within three days and for an order that she “enroll the children with a licensed therapist or psychologist to assist them in their relationship with their father” with an opportunity for the father to participate in such counselling/therapy or psychological intervention
[15] The order of Justice Morissette January 25, 2017 was made on consent at a settlement conference. It simply amended para. 2 of the July 20, 2016 order of Leach J. to “reflect that the [Skype] access shall be scheduled at a time convenient to both the Brayden Therapeutic Access Centre and the respondent, at a cost to be borne by the applicant.” The matter was otherwise adjourned to a settlement conference March 22, some eight weeks later.
[16] At Tab D of the affidavit of one of the applicant’s witnesses found at Tab 21 of the Continuing Record, there is a lengthy detailed letter from the respondent mother to the solicitor for the applicant setting out her position, with specifics, regarding difficulties with ongoing Skype access. It is clear from her letter that she believed the Skype access to be supervised by Brayden Therapeutic Access Centre was to be in place for 8 weeks pending the next court date in March as a trial or reintroduction of access for the father who had not taken advantage of all the access he secured under the order of Leach J. a few months earlier. Though the respondent states in that letter that the supervised access with the Brayden facility was only to be for an eight week trial period, it is clear from the endorsement at the settlement conference March 22, 2017 that there was no mutual understanding about such a time limit. The endorsement on March 22, 2017 reads in part “the temporary access order in January is barely underway and if ‘successful’ it may pave the way to a settlement or deferral of trial”. At that time a trial management conference was fixed for May 25, but the inference is that some form of Skype access would continue pending the next court date.
[17] When the Skype access did not resume, Mr. McCavish brought this motion. There may have been merit to the father’s position at the time the motion was initiated. However life has continued to move on for the children, even if not for Mr. McCavish. It has been more than a year since he has had Skype access and the “experiment” contemplated by the order of January 25, 2017 and the endorsement of March 22, 2017 has obviously failed.
[18] On August 16, 2017 Hebner J. declined to make a new order for Skype access but she made a temporary order granting the applicant in person access with the children. However that access did not occur because the father did not come to Canada. On September 27 Hebner J. repeated that the applicant could have the in person access previously ordered; for two hours each day on Saturday and Sunday on two consecutive weekends when he came to Canada, his expected arrival being in October or November. The access was to be supervised at Brayden Therapeutic Access Centre. When the matter was back before her again, November 22, 2017, Hebner J. found that the mother had complied with her order by taking the children to Brayden for two face to face in person access visits, but that the father himself had cancelled the last two of the four visits. She also observed that his two two-hour visits were the first time he had seen the children since 2012.
[19] Justice Hebner’s order of September 27, 2017 also required the applicant to pay $5,000 towards his child support arrears, together with ongoing child support. The applicant’s explanation for not exercising his last two face to face visits with the children in November 2017 is that he had been served with documents by the Family Responsibility Office for a default hearing and needed to return to Japan to prepare financial material for that hearing. Whether or not that is a reasonable excuse, it is important to look at this litigation through the eyes of the children when trying to decide whether ongoing access is beneficial. From their perspective he simply walked away from access after seeing them twice for a couple of hours, and after not spending any time with them in the prior five years. He did not contact them at all from 2013 to 2015.They must surely doubt his sincerity in professing his desire to have a meaningful role in their life.
[20] The children have been seeing a counsellor since the summer of 2017 on the mother’s initiative. However, there is no cogent evidence to support the father’s request for a “therapeutic intervention” or court ordered counselling for the children. Voluntary counselling is one thing; mandatory counselling quite another. It is preferable to leave the decision about whether to engage the father in the process to the counsellor. I will address that later in these reasons.
[21] The endorsement at the settlement conference March 22, 2017, and the mother’s letter already referred to, persuade me that the Skype access ordered by Morissette J. was intended to reintroduce the father to his children and would only be continued or expanded if successful. For whatever reason Skype access has not been successful. Whether the mother is partly, or even mainly, to blame for that is somewhat beside the point. From the perspective of the children, and their best interests, I share the view of Brophy J. expressed back in 2016 and quoted earlier in para. 10 of these reasons.
[22] I therefore dismiss the father’s motion at Tab 20 and decline to order the reinstatement of any Skype access or any form of therapeutic intervention.
Mother’s motion at Volume 1 Tab 14 granting her custody “on a final basis” and terminating the applicant’s access to the children
[23] Though many factual issues remain unresolved in this case, there are unassailable facts to be considered on the mother’s motion before simply assuming that there is a serious issue to be tried on her custody claim.
[24] The children returned to Canada with the mother in February 2009 and have been exclusively in her day-to-day care for more than nine years without any significant participation in the lives of the children by their father during that time. In oral submissions on these motions, Mr. McCavish pointed out that Ms. Appleby only has an “interim without prejudice” custody order. It is time for a dose of reality. There is nothing in this voluminous record that would justify any expectation that a trial judge would seriously consider removing these children from their mother and sending them off to Japan to live with a virtual stranger. The mother’s motion for a final order granting her custody of the three children is granted.
[25] However, in my view it is premature to order termination of the father’s access on a final basis. Circumstances may change. The children may want to initiate contact with their father. I will address that issue more fully in considering the final motion now before the court.
Mother’s motion at Volume 2 Tab 23 to strike the father’s pleadings and/or stay his requests for relief, for enforcement of his outstanding payment obligations, for security for costs, and that he have no contact with the children or alternatively only supervised in-person access
[26] Article 22 of the Hague Convention states “no security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this convention”. The only issue in this case that could “fall within the scope” of the Hague Convention is the enforcement of access. However, that narrow issue is only one of many issues in this case. Expressed another way, there is no jurisdictional impediment to an order for security for costs tied to the other issues that are pending.
[27] The mother asserts that the applicant is more than $100,000 in arrears in his child support obligations under prior orders. The father disputes this, claiming a credit for proceeds of sale of a former jointly owned rental property. He claims approximately $42,000 in that respect and in addition says that the mother received net rental income from their joint property in Kitchener which ought to also be credited towards his support obligation. The mother’s evidence is that there is no such credit because the expenses for the rental property exceeded the rent received and almost all the father’s share of the joint proceeds of sale went to satisfy the father’s creditors, including a Canada Revenue Agency withholding tax on his half of the proceeds of sale.
[28] In May 2012 Miller J. ordered the father to pay $591 per month in child support starting June 1, 2012 and the order fixed arrears of child support at $15,045 at that time. The order went on to provide that those arrears and any other child support arrears were to be paid out of the father’s sale of the net proceeds of sale of the Kitchener property. Because of the father’s status as a non-resident, withholding tax took $35,563 from his share and only $3,620.24 could be paid on those arrears. That order was never appealed. On September 22, 2012 Bielby J. ordered the applicant to pay $750 monthly spousal support commencing September 1, 2012 without prejudice to the respondent’s ability to seek an increased amount at trial. Apparently nothing whatsoever has been paid on account of that support order. Most recently on September 27, 2017, on consent, Hebner J. ordered the applicant to pay $591 for child support based on an imputed income of $30,000 together with $5,000 on account of the arrears. When the matter was back before Hebner J. on November 22, she found that he had not paid any of the support he agreed to pay. Though a precise calculation is not possible on the evidence, it is abundantly clear that the applicant owes the respondent tens of thousands of dollars in arrears of child and spousal support and the amount probably exceeds $100,000 as claimed by the respondent.
[29] According to a statement from a director of the Family Responsibility Office, which is presumptively correct under the legislation, arrears of support as of April 2018 amount of $99,811.76 without inclusion of any Section 7 child support obligation. Most recently, the father has begun to make at least some payments, as evidenced by Exhibits 1 and 2 filed on the hearing of these motions. The exhibits seem to establish that in the last few months he has paid 3 payments of $591 plus approximately $3,800 towards arrears to the Family Responsibility Office.
[30] Mr. McCavish has not complied with orders to pay costs on motions and other attendances early on in these proceedings. He admits that he has paid nothing on account of the $11,000 ordered for costs. On June 5, 2012 Snowie J. ordered the applicant to pay the respondent $5,000 “forthwith” and ordered that it be “paid in full before the father is able to take any fresh steps in this action”. That amount was never paid.
[31] Mr. McCavish has not complied with orders to disclose financial particulars and has not filed financial statements as required by the Family Law Rules. For example, in 2012 he was ordered to provide updated income disclosure each year within 30 days of the anniversary date of the order made May 14, 2012. He has not filed any of those documents to date. None whatsoever.
[32] Mr. McCavish is seeking a temporary access order for “physical access” every second day that he is here in Canada supervised by Brayden Therapeutic Access Services. He is willing to pay the cost of $195 for each two hour visit and he suggests that each two hour visits be with an individual child. Six or seven visits in a two week period would cost about $1000. Visits are no longer possible at the government subsidized supervised access centre local to the mother because of the problematic history of the visits and resistance from the children. Access at Brayden would require the mother to transport the children from her home in Huron County to the Brayden facility, a significant distance away. Mr. McCavish’s proposal not only ignores the expense and inconvenience of the respondent but it is not at all a child focused proposal. The children have had no meaningful relationship with their father since 2009. Mr. McCavish does not really dispute that allegation but he blames Ms. Appelby for turning the children against him. Even if he is correct (and I am very sceptical about accepting his assertion) the point is that there is no evidence to show that it is somehow in the best interests of these children to force them to engage with a man from whom they are estranged on a sporadic, infrequent basis in an artificial setting.
[33] Family Law Rule 1(8) provides that if a person fails to obey an order in the case, “the court may deal with the failure by making an order that it considers necessary for a just determination of the matter” including, dismissing a claim, striking out a pleading or other document filed by the party, postponing a trial or any other step in the case and by means of various other procedural consequences and restrictions. The repeated, ongoing and long outstanding failures of Mr. McCavish to pay money ordered by the court for child support, spousal support and costs, together with his intransigence in providing his own financial disclosure, is appropriately addressed by dismissing and striking his claims for relief other than some form of access to his children. It is only because some access or contact with the children might ultimately be in their best interests that this claim is allowed to continue. When and if Ms. Appleby chooses to convert her interim orders for support into final orders, Mr. McCavish will have an opportunity to defend those claims by providing the evidence he has refused to provide up to now, but he is no longer entitled to assert any financial claims of his own.
[34] An order for security for costs is redundant in this case. It is more appropriate to require Mr. McCavish to bring his support orders up to date and pay costs already ordered before allowing him to bring further motions or take further steps in the proceeding.
[35] The applicant asserts in his application that he owns and operates English language schools in Japan and has an interest in a resort hotel in the Philippines. There is evidence that he is engaged in other businesses as well, which regularly necessitate international travel. Though he claims an income of only $23,000 annually, he has failed to provide any financial statements for his businesses or tax returns or any other corroborating documentation. I strongly suspect his income is significantly greater than he admits to. Last year he agreed, for child support purposes, to have his income imputed at $30,000 annually. I am confident in drawing the inference that his true income for support purposes is higher than that. The value of his businesses and other property is completely unknown but it is reasonable to infer that he has accumulated some net wealth over the last decade in Japan and elsewhere.
Order
The respondent mother shall have full custody of the three named children.
The applicant’s claims for custody and any financial or property claims are dismissed.
The father’s motions at Volume 1, Tabs 12, 16 and 20 of the continuing record are dismissed.
All prior interim or temporary orders granting the applicant access to the children, including by Skype, are vacated.
Any counsellor or psychologist engaged for any of the children for a therapeutic purpose shall be given contact information for the father by the mother and such counsellor or psychologist shall be at liberty to communicate with and engage the father as he or she sees fit.
The mother shall provide to the father a copy of every school report card for each child starting with the final report cards for the current academic year.
The father is entitled to send gifts, letters and postcards to the children.
Each child is entitled to initiate contact and communication with the father by email, Skype or social media means and the mother will not discourage or interfere with such initiative.
The applicant shall not bring any further motions in this case or take any steps to restore it to a trial list until he has
(a) complied with all prior orders for disclosure,
(b) delivered an up to date financial statement in the required form with all required attachments under the Family Law Rules,
(c) paid all child support under the consent order of Hebner J. dated September 27, 2017, including $5,000 towards prior arrears,
(d) paid $11,000 for costs previously ordered, and
(e) paid an additional $10,000 on account of arrears of spousal and child support previously ordered.
- The mother’s motions at Volume 1 Tab 14 and Volume 2 Tab 23 of the continuing record are otherwise dismissed.
“Justice D. R. Aston”
Justice D.R. Aston
Date: June 15, 2018
COURT FILE NO.: 89-2016 (Goderich)
DATE: 06152018
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Michael James Theodorus McCavish,
Applicant
- and -
Jessica Anne Appleby
Respondent
REASONS FOR JUDGMENT
Aston J.
Released: June 15, 2018