Court File and Parties
COURT FILE NO.: FS-17-21818 DATE: 20190426
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
M.S. Applicant – and – I.S. Respondent
COUNSEL: Martine Ordon, for the Applicant C. McCann, for the Respondent
HEARD: April 25, 2019
BEFORE: C. Gilmore, J.
Ruling on Motion
Overview
[1] This is the applicant’s motion for a leave to amend his Application, an order compelling the respondent to answer certain refusals and undertakings, an order to strike certain paragraphs of the respondent’s affidavit sworn April 5, 2019 and an order requiring the respondent to provide the names and addresses of all medical professionals who have seen the parties’ child.
[2] The issue of the Amended Application was dealt with shortly before the date of the motion and the respondent consents to the amendment and confirms service of the Amended Application.
Litigation Background
[3] The parties were in a relationship for a period of time. The length of time and the nature of that relationship is in dispute but that dispute is not material for the purposes of this motion. The parties have one child, J.S., born August 23, 2014.
[4] After their separation the applicant issued an Application in August 2017. That application was resolved by way of final Minutes of Settlement (“the settlement”) dated October 2, 2015. According to the settlement, the respondent has sole custody of I.S. The settlement also provides for child support, access, section 7 expenses and certain property arrangements between the parties.
[5] The applicant commenced a new Application in October 2017 seeking to set aside the settlement on the grounds that the respondent had breached its terms and obtained the settlement by way of material misrepresentations. The applicant seeks damages of $750,000 for breach of contract.
[6] The matter is high conflict and has been litigated continuously since the fall of 2017. There have been previous motions, five case conferences and an open mediation with Dr. Butkowsky. The parties are unable to resolve the outstanding issues. The matter is scheduled for a Trial Management Conference in mid May 2019 and will move on to trial thereafter. This motion is intended to deal with certain production and access related issues pending trial.
Issue One: Production of the Respondent’s Mortgage Application files and Employment File
[7] The respondent attended for questioning on October 9, 2018. The applicant seeks production of the respondent’s entire mortgage application file from both Scotiabank and Dominion Lending.
[8] The applicant purchased a home for the respondent as part of their settlement. The settlement stipulates that the respondent may retain the property if she redeems the mortgage at a discount from the existing face value. If the respondent does not retain the property, M.S. and/or the mortgagee may sell the property and the respondent would be entitled to 1/3 of the net sale proceeds.
[9] The respondent does not necessarily dispute the relevance of the mortgage application files but submits that she has requested them and provided everything she received to the respondent. The applicant is not satisfied with the disclosure received. During the course of the motion the respondent agreed to provide a signed consent to allow the applicant to obtain the files directly from Scotiabank and Dominion Lending.
[10] The applicant also sought production of the respondent’s employment file. The respondent is no longer employed but agreed to provide her T4 (recently received) and her original Offer of Employment. The applicant is satisfied with this given the respondent is no longer employed at that firm.
Issue Two: Access to J.S.
[11] The applicant has a litany of complaints about the respondent’s failure to provide reasonable access. He currently sees the child on alternate Saturdays from 9:30 a.m. to 4:30 p.m. and every Wednesday from after school to 7:00 p.m. He seeks to expand his access to include one overnight per month. The overnight could either be from after school on Friday to Saturday at 4:30 p.m. or 9:30 a.m. on Saturday to Sunday at noon.
[12] The respondent objects to this increase in access on two grounds. First, she requires information as to where the child will be during the overnight visit. She is concerned because she alleges that in the past the applicant has told her would be with the child in one place but has taken the child elsewhere. She knows this because she has had the applicant followed by a private investigator. The report of the investigator was included her materials.
[13] The respondent’s second concern relates to who the child will see during his overnight visit. Given that their relationship was a clandestine one and kept from the applicant’s family, the applicant is fearful that the respondent will “hide” the child or that a member of his family will show up and there will be awkwardness in front of the child.
[14] The parties have been unable to effectively co-parent. They do not have a parenting agreement which would set out how introductions and/or assimilation into the applicant’s family would (if ever) take place.
[15] The applicant’s position is that he takes the child to his farm in Caledon. They engage in fishing and skiing. The child has asked if he could stay longer or overnight. The applicant would like to accommodate. The parties’ settlement does not provide for overnight access because it was prepared at a time when the child was an infant. The child will be five years old in a few months. He is at a completely different stage of development than he was when the agreement was signed (he was just over a year old at that time).
[16] The parties’ settlement is clear that the applicant would have reasonable and generous access to J.S. and that maximum contact between the applicant and J.S. is in J.S.’s best interests. The applicant is the one seeking to set aside this agreement, not the respondent. Her position is that the validity of the agreement should be confirmed. It is therefore somewhat inexplicable as to why she is objecting to what may be considered to the most modest of requests to expand access, given the terms of the settlement to which she agreed.
[17] During the course of the motion, the applicant agreed that he would provide an address where he would be with the child during the monthly overnight if the court sought to grant the request. This is a reasonable position.
[18] As for the respondent’s other concern, it is a broad and frankly unmanageable request. If the applicant is only allowed to have certain people “present” during access, what if unannounced visitors arrive? As well, as the caregiving parent during the overnight visit, the applicant must be entrusted to make the best decisions for his child in terms of social contacts. Finally, the applicant denies that he has attempted to “hide” the child. He has taken him to public sports events and other activities.
[19] I agree with the applicant’s counsel that this is really the respondent’s personal issue which should not be permitted to interfere with the maximum contact principle or the terms of the settlement to which the respondent has long ago agreed.
[20] The applicant’s request for one overnight is reasonable and in the child’s best interests given the child’s age and the terms of the parties’ settlement.
Miscellaneous Issues
[21] The applicant seeks to strike out paragraphs 5, 6, 7 and 9 of the respondent’s affidavit sworn April 5, 2019. He submits that those paragraphs are both irrelevant and inflammatory. Alternative, the names of the third parties in those paragraphs should be initialized.
[22] The respondent does not agree. She submits that the applicant has called their relationship “tawdry and inappropriate.” It is reasonable for the respondent to be able to respond to this and provide her own background to the relationship.
[23] The background to the relationship is not material to this motion as previously mentioned. The names provided in the impugned paragraphs could be seen to circumvent the order of Moore, J. dated February 9, 2015. Further, the manner in which the information is presented is inflammatory and unnecessary. The relevant paragraphs should be struck.
[24] The applicant seeks medical information concerning the child. He claims that the respondent has failed to keep him updated on the names and addresses of the child’s doctors. He also seeks the child’s medical records due to a report to the CAS which appears to have come from a doctor. The respondent claims to have been cooperative with these requests but the applicant deposes that this is not the case.
[25] The applicant clearly has a right to all of the child’s medical information. If the alleged cooperation by the respondent is insufficient, a court order is required.
Orders
On Consent:
[26] Service of the applicant’s Amended Application on the respondent is validated.
[27] The respondent shall sign a consent in the form provided by the applicant’s counsel to obtain a copy of the complete mortgage application file for the respondent from Scotiabank and Dominion Lending for any mortgage application made in relation to financing for the home on Neville Park Avenue.
[28] The respondent shall provide her 2018 T4 and her original Offer of Employment for her former employment forthwith.
Not on Consent:
[29] The respondent shall provide a complete list with the names and addresses of every doctor, dentist, specialist and service provider who has treated J.S. from birth. The applicant shall be entitled to contact each and every person on this list with respect to both past, current and future treatment including obtaining any and records pertaining to J.S. In the event that any doctor, dentist, specialist or service provider refuses to provide information to the applicant, the respondent shall provide her written direction and consent to the doctor, dentist, specialist or service provider to comply with the applicant’s request.
[30] In the event that the respondent takes J.S. to any new treating professional, the respondent shall provide an updated list as per the abovementioned order.
[31] Paragraphs 5, 6, 7 and 9 of the respondent’s affidavit sworn April 5, 2019 are hereby struck. The respondent’s designate shall be entitled to attend the Family Court Office to redact the affidavit as ordered.
[32] The access set out in the order of McWatt, J. dated May 17, 2017 shall be varied as follows:
a. Every Wednesday from pick-up at the child’s daycare to 7:00 p.m. drop off at the respondent’s home; b. Alternating Saturdays from 9:00 a.m. to 4:30 p.m. with pick up and drop off respondent’s home; c. Overnight access on the first Saturday of the applicant’s access each month with pick-up at the respondent’s home at 9:30 a.m. on Saturday and drop off at noon on Sunday at the respondent’s home; and d. The parties shall abide by the following with respect to access: i. The applicant to provide to the respondent the address where the child will spend his overnight each month. ii. The respondent shall not book activities or appointments at any time during the applicant’s access. iii. The respondent shall not cancel or change access without a court order or unless the parties agree to the change at least 24 hours in advance of the visit.
Costs
[33] The applicant submits that this motion should not have been necessary. He seeks full indemnity costs of $13,000 or partial indemnity costs of $10,000. The applicant suggests that full indemnity costs are in order as the respondent’s position on access was contrary to her own agreement to the terms of the settlement relating to access.
[34] The respondent submits that the applicant was unreasonable with respect to the production issue. The respondent had already provided the documentation requested. The fact that the lenders did not keep complete files or disposed of them within six months is not something which should be blamed on the respondent.
[35] With respect to access, the respondent’s position was entirely reasonable. The child has never had an overnight visit with the respondent. The respondent has consistently “hidden” the child from his family. The respondent is concerned about the detrimental emotional effect this may have on the child. The respondent seeks costs of $11,000.
Ruling on Costs
[36] The parties did not exchange Offers to Settle. Many of the issues that were raised by the applicant were resolved either shortly before or during the course of the motion. The most contested issue was the overnight requested by the applicant.
[37] Given the terms of the parties’ settlement, the age of the child and undisputed request on the part of the child to spend more time with his father, the position of the respondent was unreasonable. The request to add one night of overnight access in these circumstances is modest by any standard. The respondent’s insistence that she somehow be able to control who the child came into contact with during the overnight visits is completely untenable and unreasonable. It infers that the applicant is unable to determine such things on his own during his caregiving time and lends itself to his argument that the respondent continues to “micromanage” his access visits.
[38] The applicant should have his costs but on a reduced scale given that some of the issues were resolved on consent. Costs are therefore payable by the respondent to the applicant in the amount of $4,000. Costs are payable forthwith.