Court File and Parties

Court File No.: FS-15-400682 Date: 20181015 Ontario Superior Court of Justice

Between: E.T., Applicant And: L.D., Respondent

Counsel: Martha McCarthy and Faria Marlatt, for the Applicant L.D., on his own behalf Lorne Glass, for Jewish Family & Child Service of Greater Toronto

Heard: June 1, 2018 & August 15, 2018

Before: M. D. Faieta J.

Reasons for Decision

[1] These reasons address two matters.

"Urgent" Motion

[2] On Wednesday, August 15, 2018, the Respondent delivered a Factum, Notice of Motion and Affidavit, all dated August 13, 2018, asking that this Court, on an “urgent” basis: (1) vary the existing court order that requires the oldest son, age 17, to live with his mother so that “no custody order apply” to him; (2) order that the Office of the Children’s Lawyer “assist [the oldest son] in obtaining a lawyer”. The Respondent’s affidavit of service states that these materials were sent to the Applicant’s lawyer by email two days later, on August 15, 2018.

[3] The Respondent’s Factum states:

The Respondent’s access to his children is suspended by Order of Justice Faieta dated March 29, 2018.

Child welfare wrote to Justice Faieta on May 28, 2018 stating that the children now that the children are in the sole care of the Applicant mother, the children are in need of protection, access to the Respondent father should be restored and the children should obtain lawyers.

Justice Faieta has deferred to child welfare on the children but has not acted on their advise (sp), leaving the children in peril.

This motion is urgent as [the oldest son] is back in Toronto on August 16, 2018 and will not live with his mother. The children are deemed in protection and child welfare states restoring access alleviates the peril.

The March 29 Order of Justice Faieta must be clarified and changed and relief sought granted for the best interest and well-being of [the oldest son].

This motion must be on an urgent basis and short notice for the safety and well-being of [the oldest son].

The best interest of the children must are only achieved with the relief sought. …

Children over 16 get to decide where they want to live and that custody orders do not apply to them.

[4] This motion was scheduled to be heard on one day later on Thursday, August 16, 2018.

[5] Counsel for the Applicant responded on August 14, 2018:

We have been contacted by the Trial Coordinator regarding a motion to be heard on Thursday, August 16th. We respectfully request that you reconsider your decision to hear the motion on that day.

Logistically, Ms. McCarthy and I are on vacation this Thursday. We are not aware if counsel and the Society worker from JF&CS are available on such short notice. [The Applicant], however, will incur significant costs to have another lawyer from our office briefed on the file and attend.

There are a number of reasons why this motion is not properly before you. [The Respondent] is in breach of a number of orders and should not be given audience of this court. Your Order of April 6, 2018 specifically precludes [the Respondent] from taking any further steps in this proceeding until he has paid [the Applicant] $1,500 in costs. [The Respondent] has refused to pay these costs and yet requested an urgent hearing last week, in addition to this urgent hearing. Neither of these issues have been urgent. Despite [the Respondent’s] representations to the court last week that it was in [the youngest son’s] best interests to see him on his birthday, [the Respondent] did not confirm his visit with JF&CS even though they gave him two separate opportunities for him to do so. As a result, no visit occurred.

This motion is the third motion in 5 months that [the Respondent] has brought with little to no notice. For the first motion, Ms. McCarthy had to leave a personal doctor’s appointment to attend. Last week, Ms. McCarthy had to make arrangements to be available for a teleconference with the court while in a remote area. Now [the Respondent] is requesting again, that we clear our personal vacations to attend.

Moreover, the motion that [the Respondent] is putting before you has not been properly served on us. We have informed [the Respondent] that we do not consent to email service. He responded “sorry, too late.” Despite our request for proper service, [the Respondent] has not effected same. The documents he has provided are unsworn and unsigned.

[The Respondent] continuously brings “urgent” motions, requiring significant accommodations from both the Court, our office, and we suspect, from JF&CS. The Family Law Rules require specific timelines for motions to enable the proper administration of justice. With [the Respondent’s] short service (though proper service has still not been effected), [the Applicant] is not afforded the proper opportunity to respond, or have her counsel of record attend on the matter. The “urgency” for [the Respondent’s] motion is as a result of [the oldest son] returning from camp this Thursday. This is not new information. [the oldest son] has been scheduled to return home on August 16th for weeks.

We submit that the motion should not be heard the day [the oldest son] returns home as it specifically invites [the oldest son] into this very high conflict situation. Over the past few weeks, [the Respondent] has escalated the tension in this matter to new heights. [The Respondent] has sent threatening emails to Dr. Fidler, Ms. Popielarczyk, Ms. McCarthy, and me. He has laid a private information against Ms. Popielarczyk, with a criminal trial scheduled to occur later this month. [The Respondent] is now seeking to have a motion scheduled the day [the oldest son] returns home from camp. We are concerned that [the oldest son] will be faced with immense pressure to attend court as he steps off his bus home. [The Respondent] has brought [the oldest son] to court previously and continues to encourage him to attend. From a child focused perspective, it is our submission that this motion should not be heard on August 16th. The current access arrangement set out in your order of March 29, 2018, was established to extricate the children from the current conflict. By seeking a hearing on the day [the oldest son] returns, [the Respondent] is seeking to undo that progress.

Additionally, the issue that [the Respondent] seeks to have litigated as already been decided by your Honour. [The Respondent] made the submissions that any custody and access orders should not apply to [the oldest son] because he was nearly, or was 17 years old on the March 15, 2018 hearing, the March 29, 2018 hearing, and the April 6, 2018 hearing. You heard [the Respondent’s] submissions and made a ruling accordingly. There has been no material change since those hearings, nor is there any new evidence. The issue is res judicata.

There must be respect for the proper administration of justice, including the proper timelines and methods for service, non-urgent motions, and court orders. Your reasons for the April 6, 2018 Order comment on [the Respondent’s] lack of judgment for urgency. There is a serious access to justice problem in this province where litigants have significant difficulty securing hearing dates. [The Respondent] cannot and should not be permitted to utilize the court’s limited resources in this way. His frivolous and vexatious court actions amount to ongoing abuse of [the Applicant] both emotionally and financially. His proposed motion is not properly before you and he is not deserving or entitled to the court’s continued indulgences.

[6] There is no indication from the materials, including the affidavit of service, that the Jewish Family & Child Services was served with this motion.

[7] On August 15, 2018 the parties were advised by Court staff that the Respondent would not be granted leave to bring the above motion on an urgent basis on the next day with reasons to follow. The parties were asked for their availability during the first two weeks of September, 2018.

The Applicable Legal Principles

[8] Rule 14(11) of the Family Law Rules requires that a motion be served on other parties no later than six days before the motion date. Until July 1, 2018, when this provision was revoked and replaced by O. Reg. 298/18, the moving party was only required to provide four days’ notice of a motion. A further new requirement, found in Rule 14(11)(c), requires that a moving party “confer or attempt to confer orally or in writing with every other party about the issues that are in dispute in the motion, subject to a party being prohibited from such communication by court order”.

[9] Under Rule 14(12) a motion may be made without notice if: (a) the nature or circumstances of the motion make notice unnecessary or not reasonably possible; (b) there is an immediate danger of a child’s removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences; (c) there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; or (d) service of a notice of motion would probably have serious consequences.

[10] The Respondent gave no explanation as to why he served the motion materials by email on August 15, 2018 even though the materials appear to have been prepared two days earlier given that the materials are dated August 13, 2018. Further, there is no evidence that the Respondent conferred with the Applicant regarding the relief sought in his motion prior to delivering his motion material by email on August 15, 2018 as required by Rule 14(11)(c).

[11] I make the following findings:

(a) The Respondent has not complied with Rule 14(11) in bringing this motion;

(b) Rule 14(12) does not apply in these exceptional circumstance. There are no circumstances that suggest that the oldest son’s desire not to live with the Applicant mother, or request for the OCL to appoint counsel on his behalf, comes within any of the exceptional circumstances described in Rule 14(12).

[12] Although not referenced by the Respondent, I note that Rule 3(5) generally permits the court “… to lengthen or shorten any time set out in these rules …”. The discretion afforded by Rule 3(5) is informed by the principles found in Rule 2(2) and Rule 2(3). Rule 2(2) provides that the “…primary objective of these rules is to enable the court to deal with cases justly” and, in turn, Rule 2(3) provides that “dealing with a case justly includes (a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.”

[13] It is unfair for the Applicant to be required to respond to the Respondent’s non-urgent motion with no sworn materials on one day’s notice particularly given the nature of the relief sought. The Respondent has made a habit of seeking relief on almost no notice for allegedly “urgent” reasons. Aside from the present circumstances also see: (1) my Endorsement dated August 10, 2018; (2) my Reasons for Decision dated August 31, 2018 in respect of a motion heard on April 6, 2018. In this case, there is nothing in the Respondent’s supporting affidavit which explains why this motion is being brought on an urgent basis when it was known for some time that the oldest son would be returning from camp on August 16, 2018. Further, there is nothing in the supporting affidavit that states that the oldest son does not wish to live with his mother upon his return from summer camp. In addition, given the high conflict situation in which the oldest son has lived for more than one year, it can hardly be said that it would be in his “best interests” to have this court hear and decide whether the relief sought by the Respondent should be granted when the Applicant is not able to respond, meaningfully or at all, given the lack of notice provided by the Respondent.

[14] Finally, the Applicant fairly notes that it is just to refuse to hear this motion pursuant to Rule 1(8) given that the Respondent, in bringing this motion, has failed to comply with this Court’s Order dated April 6, 2018 in respect of the payment of costs.

Form 14B Motion

[15] The Applicant delivered a Form 14B Motion dated May 10, 2018 seeking:

(1) An order that the Applicant be granted leave to file an Amended Application, dated October 27, 2016; and

(2) An order that the Respondent deliver all of the children’s items described in Schedule “A” to that motion by May 18, 2018 failing which the police would be permitted to enforce the order by entering and searching the Respondent’s home to locate and deliver any of the aforesaid items to the Applicant.

[16] This motion was brought pursuant to Rule 14(10) which provides that:

If a motion is limited to procedural, uncomplicated or unopposed matters, the party making the motion may use a motion form (Form 14B) instead of a notice of motion and affidavit.

[17] Rule 11(1) provides that an Applicant can amend an Application without the court’s permission with the Respondent’s consent. Rule 11(3) provides that:

On motion, the court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.

[18] The evidence before the court is as follows:

• The Respondent’s former counsel had granted consent to amend the application on January 5, 2017;
• The Applicant did not proceed with the Amended Application for various reasons, including the fact that a settlement had been reached with Justice Speigel’s assistance in August 2017; and
• Given that the settlement is no longer operative, the Applicant wishes to proceed to deliver an Amended Application.

[19] The Respondent did not appear at the motion held on June 1, 2018. Instead, he delivered a letter dated May 11, 2018 outlining his position on the evidence filed before the court regarding the custody and counselling motion. He did not address the motion to permit the Applicant to file an Amended Application. The other motion heard that day was the Applicant’s long outstanding motion for sole custody of the children as well as counselling for the children. See my Reasons for Decision dated August 31, 2018. The custody and counselling motion was adjourned to June 8, 2018 in order for the JFCS, who had appeared on this motion, to contact the Respondent and request that he attend.

[20] The Respondent was served with the notice of the motion to amend the Application and chose not to attend or respond to that motion. Under the Rules, such motions are presumptively granted. There is no evidence to suggest that the amendment would disadvantage the Respondent in a way for which costs or an adjournment would not compensate. Accordingly, the first item of relief – namely, leave to file an Amended Application, is granted.

[21] In respect of the second item of relief sought, given that many of the items referred to in Schedule “A” in relation to clothing and sports equipment been obtained from the Respondent by the Applicant with the assistance of Jewish Family & Child Services, much of the relief sought is moot. I defer the determination of the second item of relief in respect of certain cellphones in the possession of the children to another date to be brought back by the Applicant once again on notice to the Respondent.

Mr. Justice M. D. Faieta Released: October 16, 2018