Court File and Parties
Court File No.: FS-17-00021625 Date: 2018-08-08 Ontario Superior Court of Justice
Between: Samuel Arthur Vise, Applicant And: Kendra-Leigh Francis, Respondent
Counsel: Christina Doris, for the Applicant Andrew J. Kania, for the Respondent
Heard: August 2, 2018
Ruling on Motion
C. GILMORE, J.
Overview
[1] There are two motions before the court. The applicant moves to enforce the access review provision in the parties Separation Agreement. Specifically, he seeks to increase his access by adding another overnight on Tuesday every second week. This would result in the applicant and respondent having shared time with their child Miles Francis Vise (“the child”) aged 6. Currently, the applicant has the child in his care 6 out of 14 nights.
[2] The respondent opposes the relief sought and brings her own cross-motion. She seeks a dismissal of the applicant’s motion, transfer of this file to Brampton court and a request for an appointment of the OCL to perform a s.112 assessment or, alternatively, the appointment of Ms. Ann Sheehan to conduct a s.30 assessment.
[3] Two issues were resolved on consent prior to argument of the motions. First, the applicant had originally sought an order that the child was to attend Oriole Park Junior School for the 2018/19 academic year and the respondent had sought certain disclosure from the applicant. These issues were resolved by way of a consent order which was signed on August 2, 2018. The consent order stipulated that the child was to remain at Oriole Park Junior School until further written agreement or court order and that the applicant was to provide certain enumerated disclosure within 60 days of the order.
Factual Background
[4] The parties were never married. They lived together for two years between 2011 and 2013. The child was born on November 14, 2011.
[5] The applicant commenced a court action 2014 but all issues were resolved by way of a Separation Agreement (“the Agreement”) dated August 24, 2015. Incorporated into the Agreement by reference is a Parenting Plan negotiated through mediation with Dr. Irwin Butkowsky. After entering into Agreement and Parenting Plan, the applicant withdrew his application.
[6] The Agreement required the applicant to pay the respondent spousal support of $6,000 per month for four years terminating on December 1, 2017. The Agreement also required the applicant to pay child support of $2,000 per month commencing November 1, 2013. The applicant continues to pay child support and shares s.7 expenses with the respondent on a 65/35 basis.
[7] The Agreement also provided that if the parties were unable to resolve a dispute about a reviewable term of the Agreement, they would attend before Mr. Alf Mamo, first for mediation and then arbitration, if required. The parties attended nine separate arbitrations with Mr. Mamo before he resigned in March 2017. It is clear from his parting remarks that he was frustrated with both parties.
[8] At paragraph 9.3 of the Agreement, the parties agreed that if Mr. Mamo could not or would not act, that a senior qualified member of Family Law bar would be appointed to replace him. If the parties could not agree on that person, either party could submit a list of proposed arbitrators to the Chair of the Ontario Bar Association, Family Law Section, to choose the arbitrator.
[9] The applicant asked the respondent for input on a new mediator/arbitrator after Mr. Mamo resigned but she simply did not respond. The applicant sought enforcement of the terms of the Agreement for selection of an arbitrator and the Chair of the Family Law Section of the Ontario Bar Association, Ms. Sharon Shore, selected Mr. Michael Kleinman. The respondent, however, refused to sign an arbitration agreement with Mr. Kleinman despite negotiations and an agreement by Mr. Kleinman to lower his normal retainer rate.
[10] To date, the respondent has still not signed an arbitration agreement. The applicant has been left with no choice but to enforce the Agreement by means of this court application.
[11] In July 2017 the respondent announced that she would be moving from Forest Hill to her parent’s home in Malton. She also announced her intention to change the child’s school since she considered he would no longer be living in Toronto.
[12] The applicant was very concerned as the parties’ Parenting Agreement stipulated that they would have joint custody of the child, and that any major decisions related to the child would require input from both parents and a mutual decision (see para. 4(i)). If the parties were unable to agree on a major decision they were obliged to use the dispute resolution provisions of the Parenting Plan. Those provisions appointed Mr. Alf Mamo as the Parenting Plan Arbitrator who would make such decisions by way of summary disposition (see para. 3(ii)). By this time Mr. Mamo had resigned and the respondent was refusing to agree on a new arbitrator or sign an arbitration agreement.
[13] The respondent brought an emergency motion seeking appointment of Ms. Linda Popielarcyzk to mediate the issue of the child’s school placement in September 2017. Ms. Popielarcyzk released brief reasons on September 2, 2017 in which she found it to be in the child’s best interests to remain at Oriole Park Junior School for the 2017/18 academic year.
[14] While the respondent is now critical of the applicant bringing what she describes as a “pre-emptive motion” on the school issue, the applicant was fearful after his experience in the summer of 2017 that history would repeat itself based on what he deposed he had heard from the child and others about the respondent’s intention to change the child’s school. The respondent was clear that this part of the motion was entirely unnecessary as she does not intend to change the child’s school without a court order or agreement.
[15] It is important to note that in the respondent’s Answer she seeks full custody of the child and a significant reduction in the respondent’s access. If she is successful, the school issue will no doubt be revisited.
[16] This is a high conflict case. The parties do not communicate well or at all. However, notwithstanding their personal animosity towards one another, the child appears to be doing well and is thriving.
Procedural Issue
[17] The respondent argues that the applicant’s motion should be dismissed, in part, because he has not followed the proper procedure. According to the respondent, the applicant should have amended his pleadings to include a request for increased access. The respondent would then file an amended Answer and a Case Conference held on the issue.
[18] The applicant disagrees. His position is that he has asked for enforcement of the Agreement in his pleadings. He specifically refers to paragraph 5 (A)(ii)(e) of the Parenting Plan which provides as follows:
The parents agree to review Miles’ Weekly Schedule of Residence through mediation annually by June 15 th of each year in order to determine next steps in accordance with Miles’ age and stage of development.
[19] The respondent submitted that the review in June 2017 did not take place because of the problems with trying to appoint a new arbitrator. The applicant was waiting for the arbitrator to be appointed before he requested this review. When it became clear that no arbitrator would be appointed, the applicant issued his application for enforcement of the Agreement in June 2017.
[20] It should be noted that the applicant sought an increase in access during the period when Mr. Mamo was the designated arbitrator. At that time, he did not have the child overnight on Sundays. He sought to return the child on Monday mornings on his alternate weekends with the child. The respondent opposed this additional access.
[21] Mr. Mamo’s Arbitration Award of February 28, 2017 (Exhibit “P” to the applicant’s June 15, 2018 affidavit) allows the increase in access based on the maximum contact principle and that such an increase was in the child’s best interests. Mr. Mamo adverted to the high level of conflict between the parties and the fact that a school exchange would be less difficult for the child than a transition from one household to the other.
[22] It is of interest to note that the respondent challenged Mr. Mamo’s jurisdiction to deal with this issue and sought to have the matter submitted to the court. Mr. Mamo did not agree. After reviewing the relevant case law, Mr. Mamo found that “it was the intention of the parties to determine any dispute between them with respect to the parenting schedule by way of arbitration.” (see para. 34)
[23] The respondent subsequently refused to appoint a new mediator/arbitrator when Mr. Mamo resigned. Now, when the applicant takes the only step he can, which is to enforce the Agreement, she insists he amend his pleadings.
[24] The respondent also argues that after amending his pleadings, the applicant must case conference the issue of any increased access. Again, I do not agree. While the notes of Ferguson, J. are somewhat cryptic as to what was discussed at the February 2018 Case Conference, I accept the applicant’s counsel’s submission that the issue of increased access was discussed at the case conference. The only issues related to enforcement of the Separation Agreement at this time are the change of school and additional overnight access. It would seem illogical that both of these issues were not discussed at the Case Conference.
[25] Further, I accept that counsel for the respondent wrote to counsel for the applicant and agreed that a further Case Conference was not needed for the purpose of any upcoming motion.
[26] In short, I view these procedural arguments as delay tactics on the part of the respondent. She cannot complain about an alleged procedural issue which has only come about as a result of her failing to continue with the arbitration process. Further, it cannot go without saying that a review of the entire record demonstrates that deliberate delay is not something with which the respondent is unfamiliar.
The Applicant’s Motion for Increased Access
[27] The applicant seeks to increase his access to the child by one overnight. Specifically he seeks to have overnight access on the Tuesday of Week 1 of the parenting schedule. The result of this request, if granted, would be that the parties would have a 2-2-3 schedule and each would have seven out of fourteen nights with the child.
[28] The applicant’s reasons for this are twofold. First, the child is doing well in school and in each parent’s home. There is no reason not to increase the access at this time. Further, given the respondent’s move to her parent’s home in Malton, the commute for the child can be up to 1.5 hours each way depending on traffic. The increase in access would reduce two transitions for the child in Week One. The respondent has claimed that the commutes are stressful for the child and the applicant submits that his requested change would address that issue.
[29] The respondent points to the child’s report cards which are positive. His report card from June 2018 (Exhibit “C” to the applicant’s July 16, 2018 affidavit) notes as follows concerning the child’s overall progress:
He [Miles] is accepting of all of his peers, and he respects differing points of view. He willingly works with every one of his classmates and contributes to group projects….
He [Miles] beings his work promptly, and his demonstrating improved work habits, (stamina, staying on task, etc.). He is better able to work for longer stretches of time.
[30] There was a myriad of other positive remarks about the child’s interaction with others and his overall improvement. The child’s marks were all A’s or B’s with C’s in reading and writing. However, there was marked improvement in those areas by year end as noted by the email from his teacher dated June 14, 2018 which was sent to both parties. While pointing out the child’s excellent progress in reading, the teacher notes, “He [Miles] has experienced what all teachers dream of: total pride in his hard work, perseverance, dedication and now the fruits of reading confidently. Hats off to all the support you have provided at home. What a successful partnership story.” The email was glowing in its praise of the child.
[31] The respondent strongly objects to any increase in access. Her counsel submitted that it is the applicant’s onus to prove a material change which he cannot and has not done. The respondent points out that the affidavits in this matter are highly contradictory and as motion’s judge, it is not possible for me to make any factual or credibility findings on such a record. Further, if any change is to be made, it should only be made after the court has the objective evidence available in the s.30 assessment sought by the respondent.
[32] The respondent relies on case law related to the applicant’s onus in this case. She relies on Davies v. Davies, [2017] O.J. No. 3056 (ONSC). In that case, the mother had primary care of two of the parties’ children and the father had care of the third child. The father had access on alternate weekends from Friday to Sunday night and one mid-week overnight visit. The father brought a motion for 50/50 shared parenting. The mother resisted any change to the parenting arrangement.
[33] The court was presented with contradictory affidavits from the parties as well as affidavits from friends and relatives. The court found no compelling reason to change the status quo and that such a decision should not be made until the input from the OCL could be obtained. In coming to that conclusion the court relied on the proposition that such significant decisions about access and parenting should not be made on the basis of competing and contradictory affidavit material.
[34] In Tait v. Tait [2017] O.J. No. 6395 (Ont. S.C.J.), the parties had shared custody of their child since separation. The father brought a motion to have the child live with him primarily, with access to the mother. The father made various allegations about the mother’s poor judgment and his inability to co-parent with the mother. The mother denied all of the father’s allegations.
[35] The court recommended caution to avoid the reckless creation of a new status quo. The court referred to the principles set out in Davies with respect to stability for the child, best interests and the importance of ensuring that no change to the status quo was made on an interim motion without a compelling reason to do so.
[36] I have reviewed the case law and the respondent’s well-articulated submissions, but respectfully disagree with the respondent both on the law and facts of this case for the following reasons:
A. Review vs Material Change
[37] The test in this case is not a material change. This motion relates to interim enforcement of the terms of the Agreement. As previously set out, the enforcement relates specifically to paragraph 5(ii)(e) of the Agreement which is reproduced at paragraph 18 above. The review is informed by “Miles’ age and stage of development.”
[38] It is trite to say that a review engages different considerations from a variation of a status quo based on a material change. A review does not require a party to establish a material change, rather it is a hearing de novo. In this case, the hearing is guided by the child’s age and stage of development and, of course, his best interests.
[39] If I am wrong with respect to whether this is a review or whether a material change is required, I rely on Davies, in which the court referenced a disagreement amongst Superior Judges as to whether a material change is necessary to vary temporary custody or access orders. In Calabrese v. Calabrese, [2016] O.J. No. 2400 (ONSC) the court was unconvinced that a material change was necessary and relied on best interest principles.
[40] Further, if I am wrong on the material change issue, the cases cited by the respondent have very different factual underpinnings from this case and can be distinguished. In Davies, the father was seeking to move access from what might be characterized as a “regular” access to a full shared parenting arrangement. In Tait, the father sought to change a shared parenting arrangement to one in which he had sole custody. Such significant parenting schedule changes are not sought here. Only one further night is requested.
B. Miles’ Age and Stage of Development
[41] The child has been progressing well at school. His final report card and the comments from his teacher can be taken as nothing but positive.
[42] The child has a level of comfort and a bond with both parents which cannot be overlooked in this case. He is currently attending closed therapy however, information from therapy sessions can be shared with the parents if the child agrees. While not in evidence, the parents did not dispute that they recently received from the therapist a note which the child agreed to share with them. It contains a list of solutions created by the child related to what he should do if he misses one parent while at the other parent’s home. Some of the more heart-wrenching excerpts from this note are as follows:
“Can I have love notes from Mom and Dad when I’m not with them.”
“Can I have an old T-shirt of Mummy’s to wear when I’m at Dad’s home for sleeping – and can I have an old T-shirt of Daddy’s to wear when I’m at Mom’s house.”
“Can I have a matching string bracelet with Mummy? I already have one with Daddy.”
“Can I have an updated version of a picture of each of you so that I can put it in my bedroom.”
[43] The child’s attachment to his parents could not be made clearer than in his own pleas for how to feel close to them when they are not there.
[44] There is nothing in the child’s age and stage of development which would indicate he is not ready for a shared parenting arrangement. He has coped well with the additional Sunday night and the move to one additional night is not so significant as to be inconsistent with the child’s age and stage of development.
C. The Commute and the Respondent’s Allegations
[45] The respondent alleges that the commute is stressful for the child and that if the current schedule is working as well as the applicant alleges, there is no reason to change it. She alleges that the child experiences separation anxiety and that any change to the current arrangement would not be in his best interests.
[46] I respectfully disagree. The request for additional access actually results in less commuting time for the child. Further, the argument advanced by the respondent about the current arrangement works both ways. That is, if the child is doing well, the impact of any change on him would be minimized. As well, it cannot be ignored that the necessity of a long commute was created by the respondent who chose to move.
[47] I reject the argument that the child’s separation anxiety should be the overriding factor in this case. First, the note provided by the therapist demonstrates that the child is working on coping mechanisms when he misses one parent or the other. He is apparently receiving productive assistance about this from his therapist. The underlying message in the child’s note is that he seeks complete parity between his parents.
[48] The respondent alleges that additional time with the child is only a ploy by the applicant to reduce support and in any event, his work commitments are such that he cannot see the child during all of his designated time.
[49] With respect to the first argument, I do not see that the applicant has sought to reduce his child support either on this motion or in his application. Further, on the face of the documents in the record, he is overpaying child support and has agreed to do so for some time.
[50] The respondent concedes that, at times, his work commitments take him away from Toronto. However, he gives the respondent the right of first refusal and, as such, the respondent has had additional time with the child. It is important for the applicant to be fully employed so he can support the child in his home and pay child support to the respondent. The respondent cannot then complain that the child’s right to spend as much as possible with his father should be impeded because the applicant has a full time job with occasional out of town commitments. This argument falls particularly flat when the applicant does not appear to be working to her potential and reports nominal business income in her tax returns.
[51] I do not agree that any change to the schedule should be precluded pending a possible assessment. Rather, where the child is bonded to both parents and the child is doing well, there is no reason not to have a “level playing field” for the purpose of a clinical assessment.
[52] Finally, the maximum contact principle and the child’s best interests are the most important considerations. An additional overnight of access is consistent with both.
The Respondent’s Request for an Assessment
[53] The respondent seeks an order appointing Ms. Anne Sheehan to conduct a section 30 assessment pursuant to the Children’s Law Reform Act. The respondent provided a letter from Ms. Anne Sheehan dated June 18, 2018 indicating her consent to perform the assessment. The respondent indicated to the court that she was agreeable to fronting the cost for the assessment with re-apportionment by the trial judge.
[54] Ms. Sheehan’s impressive curriculum vitae was attached to her letter. The applicant did not contest her qualifications.
[55] The respondent submits that such an assessment is necessary to demonstrate that custody should be awarded to her and access reduced. She recognizes that a trial will likely be necessary in order for her to secure this change and that objective and reliable evidence will be needed by the trial judge. Given the contradictory affidavit evidence filed by the parties on these motions, the history of multiple arbitrations, Mr. Mamo’s resignation, and the continuing level of conflict in this case, such an assessment will be extremely helpful to the court.
[56] The respondent references Glick v. Gale, 2013 ONSC 893, [2013] O.J. No. 573, ONSC to establish that the presence of a clinical issue is not needed for the court to order an assessment. Specifically, the court found that no change in circumstances was required and that certain factors were important in the court’s determination to order an assessment. The respondent submits that some of those factors apply in this case namely; the resignation of a mediator/arbitrator, a high conflict case, a contentious school issue, contradictory affidavit material, and a child who is too young to have his own counsel.
[57] The applicant opposes the appointment of an assessor as unnecessary in this case. There are no clinical issues and by all accounts the child is doing well. He has a therapist who is assisting him and who is alive to the conflict between the parents. The issue of school for the 2018/19 academic year has been settled and there is no reason for any professional intervention.
[58] With respect, I disagree with the applicant and view the appointment of an assessor as a means to obtain some objective evidence about these parents and the child. Further, the respondent has requested it and will cooperate. She has not cooperated with the appointment of a new arbitrator, use of Our Family Wizard and at one point had to be ordered to sign the Agreement. Here is a process with which she agrees and will not resist.
[59] Further, the school issue will not go away. The respondent has made it clear that she may take steps to change the child’s school at some future point, likely depending on the results of the assessment.
[60] In the face of the parties now having equal parenting time, I do not see an assessment as prejudicial to either party or something that would be detrimental to the child. It is hoped that the findings in the assessment may finally lay to rest some of the allegations which continue to be made by each parent about the other. As well, some valuable insight as to where the child should go to school in the longer term may be gained and avoid further litigation.
Transfer of the File to Brampton
[61] The respondent seeks an order transferring this file to Brampton on the grounds that the child lives in Malton and has a substantial connection to that jurisdiction. The respondent also relies on the fact that the applicant issued his first application in Brampton.
[62] The applicant does not agree that the file should be transferred. The child has always lived in Toronto and gone to school in Toronto. He has a substantial connection to Toronto, his local community and his friends and relatives in that community. The applicant submits that the transfer request is made solely to convenience the respondent and her counsel (who practices in Brampton) without any thought of the child’s best interests or historical connections.
[63] It is this court’s view that any issue related to file jurisdiction should be adjourned pending the results of the assessment. The child now resides half the time with each parent. His connection to Toronto is one of long standing whereas his connection to Brampton has come about only because of his mother’s choice to move. However, all of this could change if the respondent is successful in her efforts to change custody and access.
Costs
[64] Each party has submitted a Bill of Costs. They also submitted Offers to Settle in a sealed envelope. Having made my decision on all of the outstanding issues, I have now reviewed the Offers.
[65] The applicant seeks substantial indemnity costs of $15,000. The respondent seeks full indemnity costs of $15,000.
[66] The respondent submits that the applicant’s Bill of Costs is excessive given the hours spent and the hourly rate of his counsel, who is much less senior than Mr. Kania.
[67] The applicant’s offer contains two relevant parts. Each part is severable. The first part relates to the child continuing to attend Oriole Park School. It does not limit that attendance to this academic year. The second part of the offer relates to an offer of increased, uncharacterized support contingent on the respondent residing within five kilometres of Oriole Park School by September 1, 2018 and the additional overnight of access commencing July 10, 2018. There is no mention in the applicant’s offer of the assessment or the file transfer request.
[68] The respondent’s offer to settle requests that the applicant’s motion be dismissed, that the file be transferred to Brampton, that Ms. Sheehan (or alternatively the OCL) conduct an assessment and that the applicant provide certain disclosure. There is no mention of the school issue or the increase in access.
[69] The respondent seeks further costs for what she describes as the applicant’s pre-emptive motion in relation to the school. The respondent’s position is that it is clear from her material and her counsel’s communications that she would not change schools without a court order.
[70] The applicant submits that he had no choice, given the respondent’s actions in the summer of 2017 when she tried to change the child’s school prior to the arbitration order and then again after the order.
[71] In my view, no additional costs should be awarded for this issue. If the respondent had been serious about her agreement not to change schools she could have accepted Part 1 of the applicant’s offer which has been outstanding since June 21, 2018. She did not.
[72] It is this court’s view that the parties had somewhat divided success but overall the applicant was more successful. The applicant was successful with respect to the additional night of access and all of the procedural arguments. The respondent was successful with the request for an assessment. Further, the file transfer was not granted but adjourned. As mentioned above, it would have been straightforward for the respondent to have accepted the severable Part 1 of the applicant’s order and much of the affidavit material would not have been necessary.
[73] Given the somewhat divided success, any costs awarded to the applicant would be proportionally lower. As such I award $5,000 costs payable to the applicant by the respondent. This amount is not due and payable immediately and subject to the terms of my order below.
Orders
[74] The applicant shall have additional temporary access to the child Miles Francis Vise, being the Tuesday overnight in Week One. This access shall commence immediately.
[75] Ms. Ann Sheehan shall be appointed to conduct a section 30 assessment. The assessment shall commence immediately.
[76] The respondent shall be responsible for all of the up-front costs of the assessment with re-apportionment to take place at trial or by agreement of the parties following completion of the assessment.
[77] The respondent’s request to have the file transferred to Brampton is adjourned until the completion of the assessment.
[78] The respondent shall pay the applicant’s costs of this motion in the amount of $5,000. This amount shall form a credit towards any re-apportionment of the assessment fees owing by the applicant. If no amounts are found to be owing for the assessment by the applicant, the costs are due and payable immediately.
[79] The consent order dated August 2, 2018 shall issue.