Court File and Parties

COURT FILE NO.: FC-17-765 DATE: 2019/04/03 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Andrea Kelly-Rampulla, Applicant -and- Anthony Gregory Frankson, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: John Summers for the Applicant Respondent, Self-Represented Julie Guindon, Children’s Lawyer

HEARD: April 2, 2019

Endorsement

[1] This is a motion brought by the Respondent, Mr. Frankson. He seeks a change in interim access to provide for Easter holiday access. Mr. Frankson also seeks that costs owed by the Applicant, Ms. Kelly-Rampulla, be set off against his child support arrears.

[2] The Applicant opposes the Respondent’s request for Easter access. She consents to the costs being set off against the Respondent’s child support arrears – this is addressed more fully below.

Background

[3] The parties have one child, now age 10. The parties separated prior to the child’s birth. The child has resided in the primary care of the Applicant since birth.

[4] The Respondent lives in Toronto. The Applicant and the child live in Ottawa.

[5] The parties dispute the role that the Respondent has played in the child’s life, and the reasons for this. The Respondent had limited contact with the child between the ages of 2 and 8. On September 4, 2018, Justice Mackinnon made an interim order for access, partially on consent, that including a referral to the Children’s Lawyer. The September 4, 2018 order provides that the Respondent has interim access to the child one weekend a month as well as holiday access on Thanksgiving, Christmas, March break, Victoria Day weekend, and Father’s Day.

[6] This Application was commenced in 2017. There have been numerous motions brought by both parties.

Interim Easter Access

[7] The Respondent seeks Easter access from Thursday night before Good Friday to Monday night of Easter Monday, to rotate between the parties on an annual basis, with the child being with him in odd years, such that he would have Easter access this year, in April, 2019. The Respondent argues that this access should be granted for the following main reasons:

1. He states he wants to be an involved parent and has demonstrated his commitment to the child through the history of his efforts to gain more access;
2. He is frustrated with the Applicant’s decisions on access, which he perceives as blocking his relationship with the child; and
3. He wishes to share his religious practices with the child, of which Easter is significant for him and his family. He submits that Easter should be seen in the same manner as Christmas.

[8] The Respondent did not raise any specific grounds for why this issue needed to be addressed prior to trial, except for his frustration with the delay in this matter moving forward.

[9] The Respondent also did not raise specific grounds for why it is in the child’s best interests to be with him and his family for Easter this year, other than that he wants to have a more involved role in the child’s life, which he states is in the child’s best interests.

[10] The Applicant opposes the Respondent’s request for Easter access. Her position is that the Respondent should not be bringing this motion because the existing interim order of Justice Mackinnon dated September 4, 2018 provides for interim access and, at paragraph 27, states:

27. The balance of the access requests are adjourned until either the OCL declines the file, or, is ready with its recommendations for the parents and the Court. …

[11] The Children’s Lawyer, Ms. Guindon, has not yet completed her investigation such that she is in a position to make recommendations. She expects to do so in May, 2019, assuming various meetings that need to take place are able to be arranged. She expects to be able to hold a disclosure meeting by the end of May, 2019 and provide the parties with her recommendations at that time.

[12] The September 4, 2018 order of Justice Mackinnon also provides, at paragraph 35:

35. … If the OCL accepts the case, the parties shall schedule a Settlement Conference ASAP upon receipt of the OCL recommendations.

[13] A settlement conference date has not yet been scheduled but I have encouraged the parties to contact the court at the earliest possible date to attempt to schedule a settlement conference given Ms. Guindon’s expected time frames.

[14] The Applicant also states that the child’s views and preferences should be given significant weight at this time, on this issue, and the child has been consistent that she does not wish to spend this Easter with the Respondent. This is confirmed by Ms. Guindon, who has discussed the specific request for Easter access with the child in recent days.

[15] This motion is under the Children’s Law Reform Act. The test is the best interests of the child. Section 24 of the Children’s Law Reform Act sets out the factors for this court to consider in making a custody or access order. The purpose of an interim order is to provide “a reasonably acceptable solution to a difficult problem until trial” (Chaitas v. Christopoulos, [2004] O.J. No. 907 (S.C.J.)).

[16] I do not find a basis to grant the Respondent interim Easter access. This finding is based on all the evidence before me on this motion, the factors under section 24 of the Children’s Law Reform Act, and, in particular, the following:

1. There is already interim access in place under the September 4, 2018 order. That order specifically provides that the balance of the access issues are adjourned until the Children’s Lawyer has provided her recommendations and, at that time, the next step is a settlement conference, not a further motion.
2. I do not find, as the Respondent suggested, that the September 4, 2018 order was conditional on the Children’s Lawyer’s recommendations being provided by now. In fact, the September 4, 2018 order appears to have contemplated the issue of Easter access in 2019 in that it provides for holiday access that takes place after the Easter holiday (Victoria Day weekend). This supports the view that the interim access schedule contained in the September 4, 2018 order specifically contemplated access through to, at least, the Victoria Day weekend.
3. The September 4, 2018 order further provides that, once the Children’s Lawyer has provided her recommendations, the next step is a settlement conference, not another motion.
4. The Respondent is effectively seeking to vary an interim access order. The test to do so is a high one (Boissy v. Boissy, 2008 CarswellOnt 4253 (S.C.J.)). This test is not met on the evidence before me, which includes that Easter holiday access was contemplated at the time of the September 4, 2018 order and that the child’s views and preferences are that she does not want to spend Easter with the Respondent this year. The Respondent’s evidence is that he has sought Easter access for the past four years which supports that Easter access has long been an outstanding issue for him.
5. The arguments raised by the Respondent in support of his position that it is in the child’s best interests to spend alternating Easter holidays with him are better left to trial.

[17] Accordingly, I dismiss the Respondent’s motion for interim Easter access.

Costs

[18] The Applicant consents to previous cost orders being set off against the child support arrears. The Applicant has paid the $250 costs ordered in the January 24, 2019 order of Justice Roger. The Applicant has not paid the costs ordered in the September 4, 2018 order of Justice Mackinnon, which were fixed at $1,000. She currently owes $1,000 in outstanding costs.

[19] The Respondent has not yet paid the $50 in costs he owes the Applicant under the March 19, 2019 order of Justice Audet. The net amount of costs owed by the Applicant to the Respondent, therefore, is $950 ($1,000 the Applicant owes the Respondent less $50 the Respondent owes the Applicant = $950).

[20] At the end of the motion, I asked the parties to agree on costs that would be payable to the successful party on this motion. To their credit, the parties were able to do so. The Children’s Lawyer does not seek costs. The Respondent’s amount, if he is successful on this motion, is fixed at $456.84, largely for transportation costs he has incurred. The Applicant’s amount, if she is successful on this motion, is fixed at $750 based on her lawyer’s hourly rate and time spent.

[21] Given my findings above, the Applicant is the successful party on this motion. I order the Respondent to pay the Applicant her costs of this motion fixed at $750. These costs are also set off against the previous cost orders, such that the net amount owed by the Applicant to the Respondent for costs is now $200 (the $950 set out above that the Applicant owes the Respondent less $750 the Respondent owes the Applicant = $200).

[22] The Respondent’s acknowledges that he is in arrears of child support. The $200 that the Applicant owes the Respondent for the net costs, set out above, shall be credited to the Respondent’s child support obligation by the Family Responsibility Office. The Respondent’s child support arrears owed as of today’s date are therefore reduced by the sum of $200. This reduction is to be applied by the Family Responsibility Office.

[23] As a result of the above cost order and set offs, after the $200 reduction in the Respondent’s child support obligation provided under paragraph 22 above, there are no costs owed between the parties with respect to this order or prior interim orders.

Justice P. MacEachern Released: April 3, 2019