OSHAWA COURT FILE NO.: 15-837-001

DATE: 20180207

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Rhoda Marie Villanueva, Applicant and Clayton Thomas Cook, Respondent

BEFORE: Madam Justice S. J. Woodley

COUNSEL: J. Mohammed, for Applicant C. Neubauer, for Respondent

HEARD: February 5, 2018

COSTS ENDORSEMENT

Overview

[1] The Applicant Rhoda Villanueva (“Ms. Villanueva”) commenced a motion alleging that the Respondent Clayton Cook (“Mr. Cook”) had breached various provisions of the final Order of Justice Magda dated May 18, 2016, and frequently communicated with the Applicant in a derogatory and abusive manner. Ms. Villanueva sought a finding of contempt as against Mr. Cook, and alternatively, amendments to the parenting access schedule.

[2] By response, Mr. Cook alleged that it was Ms. Villanueva who had breached the final Order and should be found in contempt. However, due to time limitations Mr. Cook did not serve a cross-motion nor seek a contempt finding at this time. Instead, Mr. Cook sought amendments to the parenting access schedule from the current schedule to a week about schedule.

[3] Both parties sought costs against the other.

Determination of Motion

[4] Following argument, I determined that all breaches alleged by Ms. Villanueva, but one, arose due to the parties’ disagreement over the initial implementation of the Order, i.e. which parenting schedule (Week 1 or Week 2) commenced on June 1, 2016, and, did the regular parenting schedule “reset at Week 1” or “continue where it left off” when it was interrupted by the holiday parenting schedule.

[5] With respect to the one breach found, relating to Our Family Wizard, the breach had been purged prior to the commencement of the motion and did not impede the parties’ ability to communicate in any event.

[6] As for Mr. Cook’s allegations of breach, the allegations were very similar to those raised by Ms. Villanueva, and were also founded in the parenting schedule dispute noted above.

[7] With respect to Mr. Cook’s communications with Ms. Villanueva, I found that they were at times derogatory and abusive, but did not amount to contempt. At my suggestion the parties consented to an Order that implemented a “swear jar” with financial penalties if either used profane language towards the other. The parties also consented to an order requesting the involvement of the Children’s Lawyer.

[8] With respect to the ongoing parenting schedule, both parties advised that the schedule continued to be an ongoing matter of dispute. There was no agreement which week (Week 1 or Week 2) was in play as at February 5, 2018, and no agreement as to how the holiday schedule interacted with the regular parenting schedule. Both parties sought amendments to the schedule which differed from the original final Order.

[9] I declined to amend the final Order and declared that the parenting schedule contained in the May 18, 2016 final Order remained in place with February 5, 2018, being Week One of the regular parenting schedule. I further determined that the holiday schedule rotated independently with the regular parenting schedule.

[10] Following my oral reasons, both parties sought costs and filed Offers to Settle.

Costs Disposition

[11] Having reviewed the Offers, I find that neither offer attracts cost consequences. Further, despite the able argument of counsel, it is my view that the parties were in desperate need of judicial interaction to deal with their communication issues and parenting schedule dispute and the results obtained were mixed.

[12] In the circumstances, each party shall bear their own costs of the motion.

Justice Susan J. Woodley

Released: February 7, 2018