Court File and Parties

COURT FILE NO.: FC-17-1138 DATE: 2019/03/06 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sean Alexander Smith, Applicant -and- Brittany Ann Reynolds, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Applicant representing himself Laura Pilon, for the Respondent

HEARD: February 28, 2019

Endorsement

[1] The main issue on this a motion is the Applicant’s, Mr. Smith’s, request for additional access due to the denial of his access during the period from October 21, 2018 to January 13, 2019.

[2] After some discussion, the parties were able to agree on a revised interim access schedule to address the interruption in Mr. Smith’s access. They were unable to agree on two issues with respect to access, which I have decided below. I have also addressed cost issues.

Background

[3] There have been a number of recent court appearances in this matter arising from the denial of Mr. Smith’s access to the parties’ child, born May 9, 2017, during the period from October 21, 2018 to January 13, 2019 [see Smith v. Reynolds, 2018 ONSC 7706; Smith v. Reynolds, 2019 ONSC 359; Smith v. Reynolds, 2019 ONSC 634]. The child primarily resides with Ms. Reynolds.

[4] On March 29, 2018, Justice Linhares de Sousa ordered (“the March 29, 2018 order”) that Mr. Smith have interim access to the child every Wednesday and Sunday, from 10 a.m. to 6:15 p.m.

[5] On December 24, 2018, I found Ms. Reynolds in contempt of court for failing to comply, since October 21, 2018, with the access as set out under the March 29, 2018 order [Smith v. Reynolds, 2018 ONSC 7706]. I made a number of orders on that day, which included that the interim access under the March 29, 2018 order continue pending a further court order or written signed agreement between the parties varying the interim access, and that, due to the interruption in access, Mr. Smith have additional access on:

1. Friday, December 28, 2018 from 10 a.m. to 6:15 p.m.;
2. Saturday December 29, 2018 from 10 a.m. to 6:15 p.m.;
3. Friday, January 4, 2019 from 10 a.m. to 6:15 p.m;
4. Saturday, January 5, 2019 from 10 a.m. to 6:15 p.m;
5. Friday, January 11, 2019 from 10 a.m. to 6:15 p.m; and
6. Friday, January 18, 2019 from 10 a.m. to 6:15 p.m.

[6] None of the additional access was provided.

[7] In addition, Ms. Reynolds did not reinstate Mr. Smith’s regular access under the March 29, 2018 order until January 13, 2019.

[8] This resulted in further court appearances on January 11, 2019 [Smith v. Reynolds, 2019 ONSC 359], January 24, 2019 [Smith v. Reynolds, 2019 ONSC 634], and on February 28, 2019 –which is the appearance that is the subject of this endorsement.

[9] The appearance scheduled for February 28, 2019 was to determine the following issues:

1. Mr. Smith’s request for additional access time to make up for the interruption in his access from October 21, 2018 to January 13, 2019;
2. Whether a further order should be made due to the failure of Ms. Reynolds to comply with the court ordered access after the December 24, 2018 order;
3. The costs of Ms. Reynolds’ withdrawn interim motion to vary the interim access; and
4. Costs of January 24, 2019 motion which were reserved to this appearance.

Interim Access

[10] At the outset, there are a number of significant changes in Ms. Reynolds’ position. The first is Ms. Reynolds’ compliance with the interim access. Ms. Reynolds advises the court that she regrets her failure to comply with the previous orders. Ms. Reynolds attributes this failure in large part to the involvement of her previous counsel. Ms. Reynolds has been complying with the court ordered access since the last court appearance on January 24, 2019.

[11] The second change is that Ms. Reynolds’ is of the view that overnight access is now appropriate for the child.

[12] This is not a motion to change the interim access for any other reasons, except for the issue of the interruption in Mr. Smith’s access. Ms. Reynolds, when represented by her previous counsel, had filed a motion to change the interim access, but that motion has been withdrawn.

[13] The purpose of interim access orders are to decide issues only in the short term so that the parties can move expeditiously to a final determination of the issues at trial, based on a full evidentiary record where findings of credibility and fact are best determined. Interim changes to interim access should only be made based on compelling reasons indicating the necessity of change to meet the child’s best interests. The interruption in the child’s access to Mr. Smith for approximately 2.5 months is a compelling reason.

[14] There are a number of important factors to be considered in crafting a revised interim access schedule that addresses the issue of what additional access time should be put in place to address the interruption in Mr. Smith’s access. These include the following:

1. The terms of the March 29, 2018 interim access order which provided Mr. Smith with access every Wednesday and Sunday from 10 a.m. to 6:15 p.m. and required the parties to share the driving to and from access transfers;
2. The distance between the parties’ residences (Mr. Smith is in Cobden. Ms. Reynolds is Ottawa. These are approximately 115 kilometers apart.);
3. The criminal proceedings are still outstanding. Mr. Smith continues to be subject to a recognizance in those proceedings that restricts his contact with Ms. Reynolds;
4. Mr. Smith’s current work schedule, which requires him to sign in at Pembroke each morning between 8:45 a.m. and 9:15 a.m., but otherwise he is off of work, and that this may change sometime over the next four to eight weeks depending on the outcome of the criminal proceedings;
5. Ms. Reynolds’ current work schedule, which varies, but normally her days off are on Sundays;
6. Ms. Reynolds’ view that overnights are now appropriate for the child;
7. As of May 1, 2019, on Saturdays for approximately 12 weeks, the child will be participating in a soccer program in Stittsville. The program starts at 8:30 a.m. and runs for approximately 45 minutes; and
8. This matter is scheduled for trial in the September 2019 trial sittings.

[15] The overriding factor and sole test in determining interim access continues to be the best interests of the child.

[16] After I advised the parties that I did not find that either of their proposals for revised access were in the best interests of the child given the above factors, the parties were able to arrive at an agreement for interim access, with the exception of two issues that will apply after May 1, 2019, being:

1. Whether a third party was still required to participate in the weekend exchanges after May 1, 2019; and
2. The location for the drop-offs on alternate Sundays at 6:15 p.m.

[17] The parties asked me to decide these two issues, and I have done so in making the order below.

[18] Ms. Reynolds sought a requirement that third parties continue to be used for access exchanges, even after any disposition in the criminal proceedings. Mr. Smith opposes this. Mr. Smith does not object to Ms. Reynolds using a third party for exchanges if she wishes, but he does not want to be required to do so himself, due to the burden this places on his family members and other supports.

[19] Given the past conflict between the parties, as well as the ongoing tensions that are apparent in the interactions before me, I find that at this time, it is in the best interests of the child for the parties to avoid contact with each other during access exchanges. This is consistent with the previous access arrangements, as well as the parties’ new agreement to use the daycare as the transfer point for weekday access. This may change at some point in the future, or it may not. At this time, in these circumstances, contact between the parties at exchanges should be avoided. This is not an issue for Wednesday access, as the transfers will take place through the daycare. It is an issue on weekends.

[20] In determining the terms for access exchanges, as set out below, I have tried to craft a mechanism that limits contact between the parties at exchanges while apportioning the burden for doing so fairly between the parties. I have taken into consideration that Mr. Smith has agreed to use the daycare facility for mid-week exchanges and the Saturday afternoon exchanges on alternate weekends, which requires him to bear more of the driving. I have also taken into consideration that the exchanges at the soccer location are intended to take place in a public space, which provides some safeguards, and that Ms. Reynolds may make use of a third party if she wishes, which may provide other safeguards.

[21] In determining the issue of the location for alternate Sunday drop-offs, I have considered similar factors and, in particular, the need for both parties to contribute to an interim access schedule that is in the best interests of the child.

[22] Given the above, and based on the agreement reached by the parties, I order that the interim access as provided for under paragraphs 1 and 2 of the March 29, 2018 order is changed, on an interim basis, as follows:

1. During March and April of 2019: i. Mr. Smith’s access will continue to take place every Wednesday, but these visits will be extended to include overnights with the child being returned Thursday afternoon. Mr. Smith will be responsible for picking up the child from his daycare on Wednesday mornings, as soon as he is able to. Due to Mr. Smith’s sign in requirements in Pembroke, Mr. Smith anticipates that he will be able to pick up the child around 11 a.m. in the morning on Wednesdays. The child will then be with Mr. Smith overnight Wednesdays. Mr. Smith will return the child to his daycare on the Thursday afternoon by 4 p.m. The purpose of stipulating the return time is so that Ms. Reynolds is not at the daycare at the same time. ii. Mr. Smith will also have access every Saturday from 10 a.m. to 6:15 p.m. (instead of Sundays for the same time period under the March 29, 2018 order). The pick-ups for this access will continue to take place at the Arnprior Mall at the same location as under the March 29, 2018 order. Mr. Smith will continue to use a third party for these pick-up exchanges. The drop-offs at the end of these visits will take place at the daycare in Ottawa, which operates on a 24/7 basis. Mr. Smith will be responsible for returning the child to the daycare.
2. As of May 1, 2019, the Wednesday overnight to Thursday afternoon access will remain the same as set out above but the weekend access will change. Given the child’s involvement in the soccer, and to add an additional overnight with Mr. Smith, the weekend access will change to be: i. On alternate weekends from Saturday at 8:30 a.m. to Sunday at 6:15 p.m. Mr. Smith will pick-up the child from the Stittsville location of the soccer program. This access will begin at the same time as the child’s soccer so it will allow Mr. Smith to participate in and attend the soccer activity. Mr. Smith will return the child on Sunday evenings at 6:15 p.m. to the transfer location at the Arnprior Mall. ii. On the other weekends, Mr. Smith will have access on Saturday, for the day, from 9:30 a.m. (after soccer) to 6 p.m. Mr. Smith will pick up the child at the soccer location and Mr. Smith will return the child at 6 p.m. to the child’s daycare in Ottawa. iii. If the child is no longer in the soccer program, the Saturday pick-ups will continue to be at the same location as the soccer program until otherwise agreed between the parties in writing or court order. iv. Pending the final disposition of the criminal proceedings against Mr. Smith, Mr. Smith will continue to arrange for a third party to pick-up and drop-off the child for the Saturday and Sunday access exchanges that take place at the soccer location (or other location agreed upon by the parties or ordered by the court) and the Arnprior Mall. v. Upon the final determination of the criminal proceedings, subject to any ongoing restrictions prohibiting Mr. Smith from having contact with Ms. Reynolds, the parties shall avoid contact as much as possible at the Saturday pick-up and Sunday drop-off exchanges, through the use of a designated third party if they wish, but this is not required. If a designated third party is not used, the access exchange shall take place in a public place (being the soccer location and Arnprior Mall unless otherwise agreed or court order); the parties shall treat each other with respect and politeness, and any communications between the parties during such exchanges shall be limited only to that which is required to do so. More fulsome communications with respect to the needs of the child shall take place through www.OurFamilyWizard.com, as agreed between the parties.

Other Access Orders

[23] The parties agree that all communications between them, except as provided above, shall take place through www.OurFamilyWizard.com. An interim order is granted accordingly.

[24] Given Ms. Reynolds’ position on access, and her ongoing compliance with the court ordered access, I do not find that a further order should be made at this time due to Ms. Reynolds’ failure to comply with the court ordered access after the December 24, 2018 order.

[25] The above interim access arrangements are based on the current circumstances, including the factors set out above at paragraph 14. The parties recognize, and I agree, that if there are changes in the logistical factors, in particular the parties’ respective work schedules, the interim access schedule may need to be changed. In the event of such a change, if the parties are unable to agree, either may return the issue to me on a motion. Pending further order or written agreement between the parties, however, the parties are required to comply with all court orders.

Costs

[26] There are three issues with respect to costs that also need to be determined on this appearance. These are:

1. The outstanding costs owed by Ms. Reynolds under the November 1, 2018 order ($500) and the January 11, 2019 order ($1,000);
2. The costs of Ms. Reynolds’ withdrawn interim motion to vary the interim access; and
3. The costs of the January 24, 2019 appearance, which was adjourned.

Compliance with Existing Cost Orders

[27] The parties’ submissions on the issue of costs were limited. Ms. Reynolds submitted that she does not have the financial ability to pay the costs ordered, which she totals at $5,500 by including the amounts that were also ordered under the contempt finding made on December 24, 2018. She states this is because she is paying all of the childcare costs without contribution from Mr. Smith, even though the March 29, 2018 order requires Mr. Smith to “pay the daycare expense in accordance with the Child Support Guidelines”. Ms. Reynolds states that she paid approximately $6,392 in childcare since April of 2018, and continues to pay approximately $1,100 per month for ongoing childcare. Ms. Reynolds argues that Mr. Smith’s obligation to contribute to her past childcare expenses, and her obligation to pay him costs of $5,500 should simply be set off against one another.

[28] Mr. Smith argues that Ms. Reynolds, through her new counsel, only provided him with proof of the childcare expenses on February 19, 2019. He also disputes his obligation to contribute to the childcare expense when he is available to care for the child himself.

[29] I cannot determine what amount is owed for childcare except to clarify that Mr. Smith has an obligation to contribute to the childcare expenses as set out in the March 29, 2018 order. To do that, Ms. Reynolds, through her counsel, needs to provide Mr. Smith with the after tax costs of this childcare [1], and Mr. Smith’s share of the after tax costs, with the supporting documents and calculations. Mr. Smith then needs to pay this amount, subject to asserting that Ms. Reynolds’ calculations should be corrected, and providing his own calculations and supporting documentation. This has not yet been done.

[30] In particular, even though Ms. Reynolds’ lawyer has calculated Mr. Smith’s proportionate share of the gross childcare expenses based on 2017 incomes, she has not provided calculations based on their actual 2018 incomes since March 29, 2018, or for the after tax cost of this expenses. The parties have not exchanged copies of their 2018 T-slips, or their 2018 Income Tax Returns and Notices of Assessment. Ms. Reynolds’ employment and income has changed since March of 2018. She needs to provide confirmation of her current salary and when it has changed since the March 29, 2018 order. The parties also need to clarify who may claim the childcare costs on their income tax return, and therefore the related tax deduction, as this may only be claimable by Ms. Reynolds.

[31] Ms. Reynolds also raises the total amount of costs, which she calculates at $5,500, including the other sums payable under the contempt finding on December 24, 2018. The sum of $5,500 has not been confirmed by Mr. Smith and it is not before me to do so at this time. Those amounts will need to be confirmed at a later date, upon confirmation of the status of the appeal [2].

[32] For the time being, therefore, Ms. Reynolds is obligated to pay the costs awarded on November 1, 2018 and January 11, 2019, which total $1,500. Based on her financial statement, sworn February 20, 2019, I do not find that requiring her to pay this amount, at this time, would place an undue financial burden on her.

[33] Both parties are required to comply with the existing court orders, in all respects. This means that Ms. Reynolds needs to pay the $1,500 in costs under the November 1, 2018 and January 11, 2019 orders to Mr. Smith forthwith; it means that Mr. Smith needs to pay his share of the after tax childcare costs incurred since the March 29, 2018 order and on ongoing basis, forthwith; and, it means that, assuming the appeal is withdrawn, Ms. Reynolds must pay the further amounts owed under the contempt finding as set out in the December 24, 2018 order, also forthwith.

[34] It may be that the parties will be able to reach an agreement to set off the amounts owed by one of them against what is owed by the other. But in the absence of such an agreement, they are both required to comply with their court ordered obligations.

Costs of the Withdrawn Motion and the January 24, 2019 appearance

[35] Mr. Smith seeks the sum of $1,000 for costs of the January 24, 2019 adjournment, and Ms. Reynolds’ withdrawn motion to vary the interim access.

[36] Ms. Reynolds withdrew her motion and is therefore presumptively required to pay costs to Mr. Smith pursuant to Rule 14(16) and 12 of the Family Law Rules [3]. Ms. Reynolds is also presumptively obligated to pay costs to Mr. Smith of the January 24, 2019 appearance that was adjourned at her request.

[37] Costs are intended to reimburse a party for costs incurred in the legal proceeding. Mr. Smith has provided only limited information in support of his request for costs. I accept that he has incurred some costs, including driving expenses to and from court, to serve and file material, document production expenses, and other miscellaneous expenses. He has not provided evidence that he has incurred expenses for legal advice. A self-represented litigant may recover costs based on lost opportunity cost, for time and effort spent [4]. This should not include, however, time and effort that any litigant would have had to devote to the case in any event, but just for the time and effort that would have otherwise been provided by counsel. Mr. Smith has not provided me with a breakdown of these tasks, the time he spent on these tasks, or other material in support of a claim for reimbursement for his time spent.

[38] In all of the circumstances, I find that the sum of $500 for costs is fair and just, and I order that Ms. Reynolds pay Mr. Smith the further amount of $500 in costs, payable within 90 days.

Disposition

[39] For the above reasons, I make the following interim orders:

1. The interim access as provided for under paragraphs 1 and 2 the March 29, 2018 order is changed, as follows: a. During March and April of 2019: i. Mr. Smith’s access will continue to take place every Wednesday, but these visits will be extended to include overnights with the child being returned Thursday afternoon. Mr. Smith will be responsible for picking up the child from his daycare on Wednesday mornings, as soon as he is able to. Due to Mr. Smith’s sign in requirements in Pembroke, Mr. Smith anticipates that he will be able to pick up the child around 11 a.m. in the morning on Wednesdays. The child will then be with Mr. Smith overnight Wednesdays. Mr. Smith will return the child to his daycare on the Thursday afternoon by 4 p.m. ii. Mr. Smith will also have access every Saturday from 10 a.m. to 6:15 p.m. (instead of Sundays for the same time period under the March 29, 2018 order). The pick-ups for this access will continue to take place in Arnprior at the same location as under the March 29, 2018 order. Mr. Smith will continue to use a third party for these pick-up exchanges. The drop-offs at the end of these visits will take place at the daycare in Ottawa, which operates on a 24/7 basis. Mr. Smith will be responsible for returning the child to the daycare. b. As of May 1, 2019, the Wednesday overnight to Thursday access will remain the same as set out above but the weekend access will change. Mr. Smith’s weekend access will change to be: i. On alternate weekends from Saturday at 8:30 a.m. to Sunday at 6:15 p.m. Mr. Smith will pick-up the child from the Stittsville location of the soccer program. This access will begin at the same time as the child’s soccer so it will allow Mr. Smith to participate in and attend the soccer activity. Mr. Smith will return the child to the Sunday evening transfer location at the Arnprior Mall. ii. On the other weekends, Mr. Smith will have access on Saturday, for the day, from 9:30 a.m. (after soccer) to 6 p.m. Mr. Smith will pick up the child at the soccer location and Mr. Smith will return the child at 6 p.m. to the child’s daycare in Ottawa. iii. If the child is no longer involved in soccer, the Saturday pick-up will continue to be at the same location as the soccer program until otherwise agreed between the parties in writing or court order. iv. Pending the final disposition of the criminal proceedings against Mr. Smith, Mr. Smith will continue to arrange for a third party to pick-up and drop-off the child for the Saturday and Sunday access exchanges that take place at the soccer location (or other location agreed upon by the parties or ordered by the court) and the Arnprior Mall. v. Upon the final determination of the criminal proceedings, subject to any ongoing restrictions prohibiting Mr. Smith from having contact with Ms. Reynolds, the parties shall avoid contact as much as possible at the Saturday pick-up and Sunday drop-off exchanges, through the use of a designated third party if they wish, but this is not required. If a designated third party is not used, the access exchange shall take place in a public place (being the soccer location and Arnprior Mall unless otherwise agreed or court order); the parties shall treat each other with respect and politeness; and any communications between the parties during such exchanges shall be limited only that which is required to do so. More fulsome communications with respect to the needs of the child shall take place through www.OurFamilyWizard.com as agreed between the parties.
2. The parties shall communicate regarding the child via www.OurFamilyWizard.com. The parties shall visit the website and each enroll in the program for at least a one year subscription not later than 10 calendar days from today. The parties shall thereafter conduct all communications regarding parenting matters using the websites features, unless otherwise done through counsel.
3. Neither party shall fail to renew the annual subscription to www.OurFamilyWizard.com without a signed agreement by both parties or a court order.
4. Ms. Reynolds shall pay Mr. Smith costs of her withdrawn motion to vary interim access and the January 24, 2019 court appearance fixed at $500, payable within 90 days.
5. The parties shall provide each other with a copy of their 2018 T-slips and, as soon as available, copies of their 2018 Income Tax Returns and Notices of Assessment.
6. Ms. Reynolds shall provide Mr. Smith with confirmation of her current salary and when it has changed since the March 29, 2018 order.
7. Ms. Reynolds shall, forthwith, provide Mr. Smith with her calculations and supporting documents for the after tax costs of childcare she has paid since the March 29, 2018 order and Mr. Smith’s proportionate share. If Mr. Smith disagrees with the amount claimed, he will provide his own calculations and supporting documents within 30 days.
8. Ms. Reynolds will immediately confirm the status of her appeal of the December 24, 2018 order and provided Mr. Smith with confirmation of this status. If this appeal is not proceeding, the parties will, within 30 days, exchange calculations of the amounts owed under the December 24, 2018 order. This sum shall be payable in full at the same time as Mr. Smith’s contributions to the past childcare expenses.
9. Each party shall fully review Rule 13 of the Family Law Rules and ensure their ongoing compliance with this rule.
10. A combined trial management and settlement conference shall be scheduled by the Trial Coordinator to take place in May of 2019 for two hours.

Costs

[40] If the parties are unable to agree on costs of this motion, Mr. Smith may file submissions with respect to costs on or before March 22, 2019. Ms. Reynolds may file submissions with respect to costs on or before April 5, 2019. Cost submissions of both parties shall be no more than three pages in length, plus any attachments (i.e. previous offers, bills of costs,) and shall be spaced one point five spaces apart, with no less than 12 point font.

Justice P. MacEachern Date: March 6, 2019

Footnotes:

[1] Child Support Guidelines, O.Reg. 391/97 as am., s.7(3) [2] Ms. Reynolds confirmed that she does not intend to proceed with the appeal, but is attempting to confirm if the appeal was ever filed. [3] Family Law Rules, O.Reg. 114/99 as am [4] Fong v. Chan, [1999] O.J. No. 4600 (O.N.C.A.)