Court File and Parties

COURT FILE NO.: FS-15-401680 DATE: 20190405 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Graciana Das Dores Blackwell Applicant – and – Xennon Blackwell Respondent

Counsel: J. Amourgis, for the Applicant K. Wilowski, for the Respondent

HEARD: April 3, 2019

Shore, J.

[1] The Respondent Father (hereinafter “Father”) brought a motion for access to the child of the marriage, namely Nayyara Das Dores Blackwell, born April 2, 2010 (hereinafter “Nayyara”), in accordance with Justice Paisley’s Final Order, dated April 27, 2015 (“Divorce Order”) and Justice Wilson’s Order, dated January 24, 2017 (“Wilson’s Order”), and for a defined holiday access schedule. He is also requesting an order for police enforcement for access and an order for costs.

[2] The Applicant Mother (hereinafter “Mother”) brought a cross motion to vary the Father’s access so that he does not have overnight access to Nayyara (limiting his access to Sunday day time) and a variation of child support, based on the Father’s most recent income information.

Procedural issues

[3] The parties obtained a Final Order from Justice Paisley, on April 27, 2015, settling all of the issues between them. In December 2016, the Respondent brought a motion to enforce access, and an order was made by Justice Wilson, on January 24, 2017, on consent. The motion before me was initiated by the Father, and is another motion to enforce the final order of Justice Paisley. However, the Mother has brought a cross motion, to change the outstanding orders. She brought her motion by way of a regular motion, despite the being an initiating proceeding. The Mother should have served a proper Motion to Change (Form 15) and the accompanying change information form (Form 15A), which she failed to do. Her materials should have been served by way of special service. Pursuant to Rule 17(3) of the Family Law Rules, the parties should have attended for a case conference before the Mother could proceed with her motion to vary before the Court today.

[4] Having regard to the fact that the Father has not seen his daughter in five months, I am prepared to proceed with his enforcement motion, as well as the Mother’s motion to change the access schedule on an urgent but interim basis. However, the mother will have to properly file Motion to Change material if she wants to pursue her relief any further. Otherwise, she cannot seek any further relief from this court, other than enforcement proceedings. If the Mother proceeds with her Motion to Change, the next step must be serving and file proper material and then a case conference before a judge or Dispute Resolution Officer.

[5] Although the proper materials have not been filed, I am also prepared to make an order on child support, given that this part of the order is proceeding on consent. I am relying on the primary objective of the Family Law Rules, and specifically, assisting the parties in saving both expense and time in not having to come back before the court, when they both consent to the change is support, as well as saving court resources in having to deal with this issue on another date. The parties consented to vary the child support payments for 2018 and 2019, having regard to the Father’s income tax returns for 2017 and 2018. As such, the appropriate order will be made below but the issue of child support will otherwise not be addressed in this Endorsement.

[6] At the conclusion of the Applicant’s submissions, before the start of the Respondent’s submissions, Respondent’s counsel asked to file a 1.5 page affidavit on behalf of her client, addressing an issue set out in the Applicant’s affidavit. The Respondent’s affidavit went to the very issue of the motion, and specifically the claims by the Applicant that there were safety concerns in allowing the Respondent to have overnight access to the child. The Respondent had not addressed these specific allegations in his previous affidavit. Given that the issues before the court relate to the safety and welfare of a child, the Respondent was allowed to file the affidavit, so that the court would have all of the relevant information when determining what was in the best interest of the child. However, to be fair to the Applicant, the Applicant was given significant leeway in her Reply submissions to address the issues contained in the Respondent’s affidavit. Further, counsel was also advised that after reading the new affidavit, specific mention would be made in this Endorsement if any facts from same were relied on for the purpose of making this Order. At paragraph 8 of his affidavit, the Respondent advises that he has purchased a bed from Ikea for Nayyara. Other than this fact, I have not relied on the Respondent’s new affidavit.

Background

[7] The parties were married on January 28, 2006, separated in November 2001, and divorced on April 27, 2015. They have one child of the marriage, Nayyara.

[8] The Divorce Order provides that the Mother will have custody of Nayyara and the Father will have access on alternate weekends from Friday at 4:00pm until Sunday at 6:00pm and additional access (such as weekdays, holidays..) to be “discussed between both parties and agreed”. Wilson’s Order simply reiterates the access in the Divorce Order but provides that the exchanges shall take place in a public place (the McDonald’s at Jane/Finch) and that if either party was going to be late for drop off or pick up they are to advise the other at least three hours in advance of same.

[9] From the date of Wilson’s Order, until November 2018, the Applicant withheld the child on several occasions, and access did not take place. In July 2018, she advised the Respondent that there would be no more holiday or additional access time. Since November 2018, to date, the Applicant has not permitted any access to take place. The Respondent has not seen his daughter in five months. It is for this reason that the matter has now returned before the Court.

Mother’s Position

[10] It is the Mother’s position that the Father should only have access to Nayyara on Sundays, during the day, and that there should be no overnight access. She says she stopped allowing access to take place in November as it was a matter of safety for the child. She alleges that Nayyara told her in 2017, and again in November 2018, that she sleeps in a bed with her father and she showers with him. The Mother clarified through counsel that she is not suggesting that the Father has been sexually inappropriate with the child, but that normalizing this behaviour leads to an increased risk of sexual assault.

[11] The Mother also insists that the Father cannot put the best interest of the child ahead of his own. She refers to the fact that the Father has stopped attending the birthday parties she makes for the child each year as proof of same.

[12] She is also concerned that the Father is trying to alienate Nayyara from her and that he speaks inappropriately to Nayyara, by involving her in the dispute between the parties.

Father’s Position

[13] It is the Father’s position that his access should continue as per the two prior court orders. He alleges that there is a history of the Applicant denying access and is therefore asking for an order that the police enforce the access order.

[14] He acknowledges that the Mother spoke to him in 2017 about Nayyara sleeping in her own bed but he heard nothing else from her on this issue since that time. He says he sleeps on the couch and the child sleeps in his bed, but sometimes Nayyara comes to cuddle with him as she misses him. The Father lives with his parents. He says he has a good relationship with Nayyara and until he was served with the Mother’s affidavit material in March 2019, he did not know why she cut off access. He bought Nayyara a bed from Ikea so this should no longer be an issue.

[15] The Father is asking for specific holiday time to be set out in an order because the parties have not been able to agree on same, and he has been given very minimal, if any, additional time with the child, contrary to the Divorce Order.

Analysis:

[16] There are situations where a custodial parent is justified in withholding access, even where access is provided for in a court order. By way of example, these isolated situations may include an intoxicated parent or a sick child. Even though some deference should be given to a custodial parent’s judgement call, such parent must be reasonable and prepared to justify any denial of court ordered access on the basis of the best interest of the child at the time. In the case before me, the Mother has not met that onus. There is no explanation before me as to why an otherwise healthy nine year old child seems to be sick at least once a month and always on the father’s access weekend. From March 2018, and for the next 6 months thereafter, the Father was denied at least one weekend access visit per month. For the reasons set out below, I also do not accept the Mother’s explanation as to why the child’s access to her father has been completely denied for the last five months.

[17] There are currently two orders in place setting out the Father’s access. If the Mother felt that the access orders should be varied, she had an obligation to come to court to change the order. Instead, she took matters into her own hands, ignoring the court orders and not allowing the child to see her father for the last five months. Notably, the Mother’s court materials were only filed in response to the Father’s motion to enforce. Further, as set out above, she did not properly bring a Motion to Change before the court.

[18] The last Court order was made in January 2017. Since that time, the Mother has denied the Father access on numerous occasions with no real explanation for same. I am satisfied, based on the material before me that the mother has entered into a pattern of withholding the child at her whim. Having read through the various emails and texts exchanged between the parties and filed with the Father’s affidavit, I summarize the following:

1. In October 2017, the Mother withheld the child, insisting that the Father, and not his mother, pick up the child for access.
2. On November 5, 2017, the Mother withheld the child and no reason or notice was given of same.
3. In March 2018, the Father asked if he could drop the child off on Monday night during March break instead of Sunday. The mother refused the request, saying he has to follow the court order or he will be in breach. Then, on March 24, 2018, the Mother emailed Friday afternoon that the child was sick and will not attend for weekend access. When the father responds that he could care for her, the mother’s response was “I doubt she would have the same care with you, mothers do care best for their kids on sickness”.
4. On April 6, 2018, it was only when the Father emailed the Mother to say he would be arriving in 5 minutes that she advised the child was sick and there would be no access that weekend.
5. On May 18, 2018, the Mother again advised the father at the last minute that the child was sick and would not be attending for weekend access.
6. On June 16, 2018, at 4:11pm the Mother advises the father that the child was sick, again, and there would be no access that weekend.
7. On July 2, 2018, the Mother allowed the Father one extra day on the weekend but when he thanked her, she advised that she did so only because her new husband felt it was the right thing to do, and then lets him know that it will not happen again.
8. On July 2, 2018, there are a series of emails between the parties. In response to the Father’s request for some additional access over the summer the Mother responds “YOU ARE A LOSER…AND DON’T KNOW THE TRUE DEFINITION OF A FATHER….YOUR SON???? HAHAHAHA DON’T MAKE ME LAUGH.”. In an email sent later that evening she writes “Stop the lies NAYYARA knows everything and one day you will face the wrath. Loser. PS you are NOT a father and WILL never be one”.
9. On July 27, 2018, in response to the Father advising that he waiting for the child to be dropped off, the Mother advises that ‘we are on vacation travelling…out of town”.
10. The Husband went a month without seeing the child and therefore asked if he could taking her camping for a few days. He received no response.
11. On August 24, 2018, in response to the Father emailing that he is there waiting for the child, the Mother advises, again, that the child is sick and will not be coming.
12. Starting November 2, 2018, the mother denied all access to the father. She sent no correspondence or communication to the father with an explanation. She simply did not show up or produce the child at the required time.

[19] It is clear that the issues with respect to access started well before November 2018. Further, absolutely no mention of the Mother’s concern was made to the Father until her motion materials were served in March 2019 (other than the one conversation in 2017). If the mother had concerns, surely she would have had her lawyer write a letter to that effect, had a further conversation with the father, or at least advised him that this is the reason she is denying him access to the child. Nothing was said. Nothing was said until she served her March 6, 2019 affidavit, in response to the Father’s motion for enforcement.

[20] It is clear that the Mother has little respect for the Father as Nayyara’s Father or the role he plays in her life. In her affidavit, the Mother states at paragraph 13 that “Nayyara seldom speak about her father. He is not really a part of her life.” and at paragraph 15, that he “has minimal affect on the child’s life”. She refers to her daughter as Nayyara Pedro, not Blackwell. As set out above, she calls the Father a “loser” and says that he is “not a father”. It is clear from the Mother’s actions over the last year and from the exchange of emails and texts between the parties that the Mother has no respect for or insight into the role the Father plays in their daughter’s life. Her emails to the Father are rude and condescending, minimalizing his role in their daughter’s life. She has taken every opportunity to deny Nayyara’s access to her father over the last year.

[21] In October 2018, the Mother moved with her new partner to Newmarket, Ontario. She previously lived in Richmond Hill. She failed to advise the Father of this move and he found out only during argument of this motion.

[22] Further, the Order specifically provides that the mother is to provide 3 hours’ notice if the child will not be attending for access. The Mother did not meet this obligation. Most of the time, the Mother simply advised the Father at the last minute that the child would not be coming (he was usually already on his way to pick up the child). Other times, she simply failed to communicate with him at all.

[23] As a result of all of the above, I cannot give much weight, if any, to the Mother’s recent allegations concerning the father sleeping or showering with the child. Further, the Father has now purchased a separate bed for the child so this issue is moot, if it was really an issue to begin with. On the evidence before me, I find that there are no urgent concerns regarding the safety of the child with her father. I do have concerns about the Mother withholding the child. There is not enough reliable evidence before the Court to change either of the previous orders on an urgent basis and I therefore must address the issue of enforcement. The current access orders shall remain in place, unchanged, except as set out below.

Police Enforcement

[24] As set out above, there is a pattern of the Mother withholding the child from her access to the Father. The Mother objects to an order for police enforcement because she says it will be too traumatic on the child to have police remove her from her mother’s home. If the Mother adheres to the Court order, then this issue is moot as police attendance will not be necessary. The Mother is the one in control of the decision as to whether or not the police will need to attend.

[25] The Respondent’s lawyer provided me with three cases where police were asked to enforce access orders. These cases are Allen v. Grenier, [1997] OJ No. 1198 (SCJ), Conners v. Szanti, [2003] O.J. No. 4185 (SCJ), and M.M. v. D.Y., [2004] O.J. No. 4983 (SCJ). It is well settled in Ontario case law that police have authority to enforce an access order if a child is being withheld, where they have been ordered to do so by Court Order. The case of M.M. v. D.Y. is helpful:

The reality is that section 36 of the Children’s Law Reform Act does exist in Ontario law and exists for good reason. Without a mechanism to enforce court orders, they would become meaningless and the administration of justice would fall into disrepute. The expectation of any court that makes an access order is that the access will take place as specified. That is an expectation of both parents. They are not entitled to pick and choose whether they are going to exercise the access or to allow it to take place. What they are entitled to do is to change the order either by appealing it or varying it. They are not entitled to disobey it.

I am satisfied on the evidence that the mother has and is continuing unlawfully to withhold the child M.M.(2) from his father on those occasions when he has specified access visits. This is a pre-condition to making of an order under section 36 and, in fact, requires only reasonable and probable grounds for this belief. That places the court in the position of exercising its discretion on whether or not to grant the order.

In this case, I am left with little choice. The order of access was made after submissions of counsel. It has not been appealed. Every occasion of access that elapses without the occurrence of access deprives not only the father but also the child. It also flies in the face of the court order.

[26] However, it is also clear that police enforcement is an order of last resort, to be made “sparingly and only in the most exceptional cases” [1]. The order can be made where there is “a pattern of withholding even where that pattern has been interrupted by some resumed access” [2]. I am aware of the limited resources available to the police but I am satisfied that, without the threat or ability of police assistance, the Mother will continue to unlawfully withhold the child.

[27] Using the wording of Justice Kukurin in M.M. v. D.Y, at par 25, I find that the Mother is so “emotionally blinded by her conflict with the father” that she is losing sight of Nayyara’s best interests in the issue of access.

Holiday Time

[28] The prior court orders provide that the Father will have additional time over holidays and midweek. Without specific times included in the order, I doubt that this will take place and it has not taken place to date in any meaningful way. For the purpose of enforcing this provision of the Divorce Order, it is necessary to set out a specific schedule, which I will do below. For the most part, the father’s holiday schedule, provided to me as a draft order at the end of the motion, is reasonable.

[29] However, the father has asked for a week on/week off schedule over the summer. While he should be given some additional time over the summer, there was nothing in the materials or submissions as to why there should be such a substantial change in the child’s residential schedule over the summer. Given that this is a motion for enforcement of an order, I am not prepared to make any significant changes to the regular schedule of the child over the summer. I am prepared to specify the access schedule, as was provided for in the court order because without a court order, it is clear that the Mother will not provide same.

Costs

[30] The parties were advised of the essence of this order at the end of the motion (with the full Endorsement to follow), so that they could make submissions as to cost, without burdening the parties with further legal costs in having to make cost submissions after the full Endorsement was released.

[31] The Respondent was successful on this motion on all issues, but for child support which was conceded at the start of this motion. The Father is therefore entitled to his costs. The Applicant argued that she was entitled to her costs on the motion for child support. Very little of either party’s material addressed the issue of child support and this parties consented to an order at the start of the motion. Neither party incurred any meaningful costs with respect to same. Further, as set out above, the Mother failed to serve and file the proper Motion to Change material and her motion was therefore not properly before the court. Had it not been for the consent, she would not have been permitted to proceed on the issue of varying child support today as the matter was not urgent.

[32] The Respondent’s lawyer, Ms. Wilocujki, submitted a Bill of Costs in the amount of $2,301.20 inclusive of disbursements and HST. In addition, she spent 3 hours at court arguing the motion, at a rate of $200/hour plus HST, for total costs of $2,991.20. The Applicant’s lawyer, Ms. Amourgis, advised that she spent 5 hours preparing for the motion, plus 3 hours at court, at her rate of $400 per hour, for a total of $3,680.00, inclusive of HST. She did not provide me with her disbursements. The Respondent’s legal fees are reasonable and proportional having regard to the fees incurred by the Applicant.

[33] There is no doubt that the issues are quite important to both parties, albeit not overly complicated. Neither party exchanged offers to settle.

[34] Having considered the factors set out in Rule 24 of the Family Law Rules, the Respondent is entitled to his costs on a substantial indemnity basis, being $2,243.40.

Order to go as follows:

1. On consent, commencing January 1, 2018, until and including December 1, 2018, the Respondent shall pay child support to the Applicant for the child of the marriage, namely Nayyara Das Dores Blackwell, born April 2, 2010, in the sum of $221 per month, on the first day of each month, based on his 2017 income of $26,880.

2. On consent, commencing January 1, 2019, and on the first day of each month thereafter, the Respondent shall pay child support to the Applicant for the child, in accordance with the Child Support Guidelines, the amount to be determined once he has provided his 2018 income tax return to the Applicant and having regard to his line 150 income therein. The Respondent has advised that his income in 2018 is greater than his income in 2017. This is without prejudice to either party to argue that his income may be different than as set out in his income tax return.

3. The Respondent shall provide his income tax return to the Applicant within 10 days of his receipt of same from Canada Revenue but no later than May 31, 2019.

4. Until such time as his child support is amended in accordance with paragraph 2 above, the Respondent shall continue to make the monthly child support payment in the amount as set out in paragraph 1 above, with retroactive adjustments to be made within ten days of him providing his income tax return.

5. The Applicant shall file her Motion to Change material on or before April 30, 2019, if she intends to proceed with same.

6. If the Applicant files a Motion to Change, the parties shall proceed to a Case Conference. No further motion may be brought (except for enforcement proceedings), until the parties have attended a case conference.

7. As set out in the Order of Justice Paisley, dated April 27, 2015, the Respondent, Xennon Blackwell, shall have access to the child every other weekend from Friday at 4:00 p.m. until Sunday at 6:00 p.m. as well as holiday time as set out below.

8. As set out in the Order of Justice Wilson, dated January 24, 2017, all exchanges shall take place at the McDonald’s restaurant, located at Jane and Finch, in Toronto, Ontario.

9. Pursuant to section 36 of the Children’s Law Reform Act, the Toronto Police, the York Region Police and/or the Ontario Provincial Police shall do all things reasonably able to be done to locate, apprehend and deliver the child, Nayyara Das Dores Blackwell (also known as “Nayyara Das Dores Pedro Blackwell”), born April 2, 2010, to her father, Xennon Blackwell, in accordance with the terms of this Order and for the purpose of enforcing the residential schedule set out herein.

   For the purpose of locating and apprehending the child in accordance with this Order, a member of a police force may enter and search any place where he or she has reasonable and probable grounds for believing that the child may be, including but not limited to the place where Graciana Das Dores Blackwell (also known as “Garciana Das Dores Pedro”) resides, with such assistance and such force as are reasonable in the circumstances.

   The enforcement shall continue until varied by further court order.

10. The holiday schedule is in addition to the regular residence schedule above and overrides the regular residence schedule in the event of conflict. (The regular residence schedule and the holiday residence schedule are collectively referred to as the "schedule").

    Family Day Weekend a. The child shall reside with the Respondent on Family Day weekend in odd-numbered years and with Applicant in even-numbered years, from Friday at 4:00 p.m. until Monday at 6:00 p.m.

    School Spring Break b. The child shall reside with the Applicant during the school Spring Break in odd numbered years and with Respondent in even-numbered years, from Friday at 4:00 p.m. until the next Sunday at 6:00 p.m.

    Easter Weekend c. The child shall reside with the Respondent on Easter weekend in odd-numbered years and with the Applicant in even-numbered years, from Thursday at 4:00 p.m. until Monday at 6:00 p.m.

    Mother's Day d. The child shall reside with Applicant during the Mother’s Day weekend. If the Mother’s Day weekend is during the Respondent’s access time, the Respondent shall have access time to the child the following weekend.

    Victoria Day Weekend e. The child shall reside with the Applicant on Victoria Day weekend in odd-numbered years and with the Respondent in even-numbered years, from Friday at 4:00 p.m. until Monday at 6:00 p.m.

    Father's Day f. The child shall reside with the Respondent during the Father’s Day weekend. If the Father’s Day weekend is during the Applicant’s time, the Applicant shall have the child the following weekend.

    Summer Vacation g. Each party shall be entitled to one uninterrupted week in July and one uninterrupted week in August with the child, otherwise the regular schedule applies. Both parties shall advise each other by March 1st of their chosen weeks, with the Applicant to have first choice in odd-numbered years and Respondent to have first choice in even-numbered years. The week shall include that party’s weekend with the child (so it either starts or ends with a weekend) and shall not include the other party’s regular weekend time with the child. Or to clarify, the week shall not encompass both weekends on either end.

    Labour Day Weekend h. Regardless of the holiday or regular schedule, the child shall reside with the Applicant on Monday of Labour Day Weekend.

    Thanksgiving Weekend i. The child shall reside with Applicant on Thanksgiving weekend in odd-numbered years and with Respondent in even-numbered years, from Friday at 4:00 p.m. until Monday at 6:00 p.m.

    Christmas Break j. The parties shall share equally the child’s school Christmas Break. The child shall reside with the Respondent for the first half of the Christmas Break in odd-numbered years and the last half of the Christmas Break in even-numbered years, and with Applicant for the first half of the Christmas Break in even-numbered years and the last half of the Christmas Break in odd-numbered years. The first half shall start after school on the child’s last day of school in December and end at noon on the date that is the halfway point of the Christmas Break. The second half shall start at noon on the date that is the halfway point of the Christmas Break and end on the morning the child return to school in January.

[35] The Applicant Mother shall pay costs of this motion in the amount of $2,243.40, inclusive of disbursements and HST, to the Respondent Father within 30 days.

[36] Support Deduction Order to issue.

Shore, J.

Released: April 5, 2019

COURT FILE NO.: FS-15-401680 DATE: 20190405 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Graciana Das Dores Blackwell Applicant – and – Xennon Blackwell Respondent

REASONS FOR JUDGMENT Shore, J. Released: April 5, 2019

[1]: Allen par 38 [2]: Ibid.