COURT FILE NO.: 825/16
DATE: 2019-05-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Danita Ramona Simpson
Ms. Elizabeth Porter, for the Applicant
Applicant
- and -
Wendell Damian Cuff
Mr. Martin Vamos, for the Respondent
Respondent
HEARD: May 6, 2019
JUDGMENT
THE HONOURABLE MR. JUSTICE A. PAZARATZ
This was a summary judgment motion brought by the Applicant mother of two daughters aged 11 and 4.
The background briefly:
a. The Applicant and the Respondent father had an intermittent relationship, but the Respondent has spent a lot of time in jail.
b. During each period of separation both children have remained in the Applicant’s custody, whether the Respondent was in jail or not.
c. The parties last lived together in January 2016.
d. The father has been in a federal penitentiary since March 7, 2018 serving a two and a half year sentence in relation to illegal drugs. He says he has a parole hearing sometime in May 2019, and he is eligible for mandatory statutory release in November 2019. So he anticipates that one way or the other, he will be released from jail sometime between now and November 2019. It’s unclear what conditions he will be subject to when he is released.
e. In June 2016 the Applicant obtained an order dispensing with service on the Respondent, and shortly thereafter the Applicant obtained a final order granting her sole custody of the children with the Respondent to have access in the discretion of the Applicant.
f. The Respondent was subsequently able to set aside that final order, on the basis that the initial order dispensing with service was based upon misleading information.
g. For a period of time all issues were reopened; and the Respondent was exercising some access.
h. However, as stated the Respondent is now back in prison.
- The Applicant mother brought this summary judgment motion seeking the following final order:
a. Sole custody.
b. Access by the Respondent to be in the discretion of the Applicant.
c. Child Support.
d. Authority to obtain a passport and travel with the children.
Both parties filed extensive materials, facta, and books of authority on the motion.
As it happens, after some preliminary discussion the parties entered into final minutes of settlement on all issues except the custody designation.
a. The mother withdrew her claims for child support.
b. The parties agreed that the final order would give the mother discretion to determine access. But once he is released from prison, the father will be allowed to seek specified access without having to establish a material change in circumstances.
c. They agreed that the paternal grandmother will be allowed a monthly non-overnight Saturday visit.
- The remaining issue is the custody designation.
a. The Applicant mother seeks sole custody.
b. The Respondent father agrees that primary residence should remain with the mother on a final basis.
c. But the Respondent is opposed to the mother having sole custody, because once he gets out of prison he wants to pursue joint custody.
- There is little factual dispute about parenting dynamics.
a. As stated, the mother has always assumed complete responsibility for the children, during periods of separation, and especially during the various significant periods when the father has been in jail.
b. There is no suggestion that the Applicant is making inappropriate parenting decisions (save and except for periodic disagreements with respect to access by either the father or the paternal grandmother).
c. The Respondent acknowledges the Applicant’s position that the parties do not communicate frequently or effectively.
d. The Applicant says the Respondent has been physically abusive; assaulting her in the presence of the children; and threatening violence against her. The Respondent acknowledges the relationship has been turbulent but he notes that he has never been charged with assaulting her. Nonetheless, the Applicant mother says she is afraid of the Respondent, particularly since his lengthy criminal record includes firearms offences.
e. The Applicant says the 11 year old daughter is also fearful of the Respondent, as a result of his history of violence and abusive behaviour toward the Applicant.
f. There has also been significant conflict between the Applicant and the Respondent’s current girlfriend. This has created tensions during previous access exchanges.
g. The Applicant states that the Respondent has been minimally and inconsistently involved in the children’s lives. He has never paid support. There is no history of the parties working together or problem solving
h. The Respondent does not dispute the extent of the conflict and tension between the parties. But he does not feel it is entirely his fault, and he doesn’t think he should be precluded from having joint custody after he is released from prison.
Accordingly, the parties left me to determine summary judgment in relation to this very narrow issue.
The Respondent father feels it is unfair that the Applicant mother has brought this summary judgment motion while he is disadvantaged by being in jail. The mother says the father has needlessly dragged out this proceeding, and she just wants to achieve some final resolution. She says she doesn’t want to wait for the Respondent to be released from prison, because it’s unclear when that will happen. She also questions how long he’ll be out of jail before he gets into more trouble with the criminal law.
Pursuant rule 16(1) of the Family Law Rules (“the Rules”) a motion for summary judgment may be brought in an action at any time after the respondent has served an answer or the time for serving an answer has expired. De Melo v De Melo, 2015 ONCA 598 (Ont. CA). Given the Respondent’s history of being unavailable to participate in the children’s lives as a result of his own criminal behaviour, I do not agree that the timing of the mother’s motion is unfair or inappropriate.
Rule 16(4) requires a party bringing a summary judgment motion to adduce evidence demonstrating that there is no genuine issue requiring a trial in relation to the relief being sought. In this case the mother has adduced the necessary evidence to establish a prima facie case.
In Hryniak v. Mauldin 2014 SCC 7 (SCC) the Supreme Court of Canada described the “test” and procedure for determining whether there is a genuine issue requiring a trial.
a. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment.
b. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
c. The process considers the nature of the issues, the evidence, and the strength of the case, not to determine who would win at trial, but to determine if it is fair and just to resolve the matter summarily without a trial.
- In Hyrniak the Supreme Court set out principles to be followed and questions to be asked by a judge in applying Rule 16 and deciding whether the case is one that should be dealt with summarily:
a. The first step is for the Court to determine whether there is a genuine issue requiring trial (and whether summary judgment should be granted) based only on the evidence before the Court, without using the enhanced fact-finding powers in Rule 16(6.1).
b. There will be no genuine issue requiring a trial if the summary judgment process provides the Court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.
c. If there appears to be a genuine issue requiring a trial, the Court should then determine if the need for a trial can be avoided by using the expanded powers described in Hyrniak.
d. The Court has the discretion to use those powers, provided that their use is not "against the interest of justice". Their use will not be "against the interest of justice" if this would lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
e. The inquiry into the interest of justice (a) considers the consequences of the motion in the context of the litigation as a whole, and (b) is a comparative process. Children's Aid Society of Ottawa v. K.(S.), 2015 ONSC 4623 (S.C.J.); CAS of Ottawa v. K.F., J.M., & L.S., 2018 ONSC 3905 (S.C.J.).
- The burden of proof is on the party who moves for summary judgment.
a. The moving party must "set out specific facts showing that there is no genuine issue requiring a trial."
b. The party must satisfy the Court that it is in the interest of justice that the case be decided summarily asking the appropriate questions set out in Hryniak.
- Rule 16(4.1) sets out the requirements applicable to a person who wishes to resist summary judgment.
a. In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue requiring a trial.
b. Even under the amended Rules, the responding party is required to "put its best foot forward".
c. The motions judge is entitled to assume that the parties have put before the Court all of the evidence that they would be able to adduce at trial.
More broadly, on a motion for summary judgment, each party has to "put their best foot forward" in relation to any material issues to be tried: Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135 (Ont. CA); Shinder v Shinder 2018 ONCA 717 (Ont. CA).
Rule 16(6.1) provides that in determining whether there is a genuine issue requiring a trial, the Court shall consider the evidence submitted by the parties and may weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at trial.
Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely, and just adjudication of claims.
The test for summary judgment is made out where the moving party satisfies the Court that there is no genuine issue of material fact that requires a trial for its resolution. If the determination of the issue will have no bearing on the outcome of trial, it is not a genuine issue requiring a trial. Catholic Children's Aid Society v. S. (B.L.) 2014 CarswellOnt 12921 (SCJ).
On a motion for summary judgment, the Court may dismiss the motion; rule that only certain issues require a full hearing; or determine the entire application. B.(F.) v. G.(S.), 2001 CanLII 28231 (ON SC), [2001] O.J. No. 1586 (S.C.J.).
In all cases, the Court must consider the primary objective of the Family Law Rules, which is to deal with cases justly. This includes: ensuring that the procedure is fair to all parties; saving expense and time; and, dealing with the case in ways that are appropriate to its importance and complexity.
Particularly in dealing with children’s issues, the court should proceed cautiously in granting summary judgment. The absence or deficiency of responding material is not sufficient to grant summary judgment by default. The court must still ensure that the evidence submitted by the party seeking summary judgment is sufficiently comprehensive and persuasive to ensure that the court can do justice to the resolution of the issue; and to ensure that the best interests of the child are advanced. Kawartha-Haliburton CAS v M.W. 2019 ONCA 316 (Ont. CA).
But summary judgment is available in custody and access cases, where the motions judge is presented with sufficient information to conduct a thorough analysis of the best interests of the child, and to do justice to the case without the need for additional evidence to be adduced or examined at trial. De Melo; Mattina v Mattina 2018 ONCA 641 (Ont CA); R.J. v S.D. 2019 ONSC 1658 (SCJ).
The test on all issues relating to children – including the narrow issue of whether the custody designation should be “sole” or “joint” – is the best interests of the child. The custody designation is not intended to be either a reward or punishment for adult or litigant behaviours. The only issue is which custody designation (if any) will best meet the needs of the children.
In this case I am satisfied that I am able to make an appropriate determination and do justice to the case without having to utilize the expanded powers set out in Hyrniak.
The following principles in relation to joint custody are set out in such cases as Kaplanis v. Kaplanis(2005), 2005 CanLII 1625 (ON CA), 10 R.F.L. (6th) 373 (Ont.C.A.); Ladisa v. Ladisa(2005), 2005 CanLII 1627 (ON CA), 11 R.F.L. (6th) 50 (Ont.C.A.); D.G. v. A-G.-D. 2019 ONCJ 43 (OCJ); A.C.V.P. v. A.M.T. 2019 ONSC 1559 (SCJ); S. (S.) v. K. (S.,), 2013 ONCJ 432, (OCJ); Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (SCJ).
a. There can be no doubt that joint or cooperative parenting has obvious advantages from a child’s perspective – provided that it is a realistic and workable arrangement.
b. But for such a regime to have the prospect of success, both parents must have the desire and ability to make it work.
c. There must be evidence of historical communication between the parents and appropriate communication between them.
d. Joint custody should not be ordered in the hope that it will improve their communication.
e. There must be a reasonable level of cooperation and communication – not necessarily perfect, but at least sufficient to ensure that the parental focus is on the children.
f. The younger the child, the more important communication is.
g. There must be confidence in the ability of the parents to work together to make appropriate decisions for the children and avoid hostility and turmoil.
h. Just because both parents are fit does not mean that joint custody should be ordered.
i. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
j. Courts will sometimes order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties.
k. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
l. The court should assess the dynamics of a family when determining if a joint custody order is appropriate. The court should examine if the granting of such an order is: a) more or less likely to de-escalate or inflame the parents' conflict; b) more or less likely to expose the child to parental conflict; and,
m. In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children — particularly children already exposed to the upset of family breakdown — look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.
I have considered these principles, and the best interest considerations as set out in section 24(2) of the Children’s Law Reform Act.
While I would not disqualify the Respondent father as a potential joint custodial parent solely by virtue of his frequent and current incarceration, by the same token it would be naïve to ignore such an obvious impediment to regular, spontaneous and effective communication and co-parenting.
a. The evidence is clear that the Applicant and Respondent do not have a good relationship with one another.
b. The status quo is that throughout the children’s lives the Applicant has not only been physically caring for the children, but she has also been making the decisions – and she has been doing a very good job.
c. There is no history of effective or cooperative co-parenting.
d. Both currently and historically there have been significant periods when the Respondent’s incarceration precluded effective and spontaneous communication in relation to the children, even if the parties otherwise had a good relationship with one another – which they don’t.
e. There is an undeniable history of high conflict, tension and disagreement between the parties.
f. There is a history of conflict and disagreement directly relating to parenting issues.
g. The Respondent’s materials do not set out any factual basis to suggest that it would be in the best interests of the children that he be granted a joint custody order, particularly given the extremely poor (and constrained) relationship between the parents.
h. In contrast, the Applicant’s materials are child focussed and set out the clear logic and advantages of a sole custody designation in her favour.
i. The Respondent seems intent on wanting his “day in court” so that he can establish that the conflict and communication problems are not entirely his fault. That “attribution of blame” may be important to the Respondent, but it is not child focussed, and it does not constitute a genuine issue requiring a trial.
In all the circumstances I am entirely satisfied that there is no genuine issue requiring a trial in relation to the custody designation and that the Applicant’s request for summary judgment should be granted.
Final order:
a. Order to issue per the consent filed (re: access).
b. The Applicant mother shall have sole custody of the children.
- When I advised counsel that I would be reserving my decision, I invited them to make costs submissions.
a. Presuming success on the custody issue, the Applicant’s counsel requested costs in the sum of $5,000.00.
b. In that same scenario, the Respondent’s counsel submitted that a figure between $2,000.00 and $3,500.00 would be appropriate.
c. I have considered all of the factors set out in Rule 24.
d. Neither counsel referred me to any offers.
- There was a significant element of divided success in relation to the collection of issues described in the lengthy materials, but ultimately settled by way of a last minute in-court consent.
a. On the issue of access, the mother obtained her requested order granting her discretion. But the father obtained the clarification that upon his release from prison he could seek specified access without having to establish a material change in circumstances.
b. Similarly the father was successful in obtaining separate access provisions for the paternal grandmother.
c. The Applicant was successful in relation to the travel and passport issues (which were never really contentious).
d. The Respondent was successful in relation to child support in that ultimately the Applicant withdrew this request (this also wasn’t really an issue that was likely to take a lot of time to determine).
On the primary issue which was not settled and had to be argued – the custody designation – the Applicant was entirely successful. This was an important issue, and speaking plainly, it was not reasonable or realistic for the Respondent to be opposing the Applicant’s custody claim, in all the circumstances.
I have considered the objectives of costs orders; the reasonableness of behaviours; proportionality; and, ability to pay.
The Respondent shall pay to the Applicant costs fixed in the sum of $3,800.00 inclusive of HST and disbursements
Pazaratz, J.
Released: May 13, 2019
COURT FILE NO.: 825/16
DATE: 2019-05-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Danita Ramona Simpson
Applicant
- and -
Wendell Damian Cuff
Respondent
REASONS FOR JUDGMENT
The Honourable Mr. Justice A. Pazaratz
Released: May 13, 2019