Court File and Parties
COURT FILE NO.: 1986/11 DATE: 2019-05-22 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Erin Lippert, Applicant AND: Norman Rodney, Melissa Eldridge, Alan Norton, Respondents
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: Self-Represented Applicant Ms. M. Rincon, Duty Counsel for Norman Rodney, Respondent Ms. M. Scholz, Counsel for Melissa Eldridge and Alan Norton, Respondents
HEARD: May 22, 2019
Endorsement
[1] This is a fairly straightforward motion about whether grandparents should be allowed to take an eight year old girl on a vacation to Disneyworld. But the mother has raised a preliminary issue about whether I should decide the issue.
[2] This is a high conflict file with a long, complex history, and with a contempt motion against the mother still outstanding.
[3] The mother has three children in her custody ages eight, two and one. This motion only relates to the oldest child Enasjah.
[4] While the mother vigorously disputes the historical quantity and quality of contact between the maternal grandparents and the child, the bottom line is that since at least 2016 the grandparents have had regular court-ordered access.
[5] There have been at least two lengthy hearings in which other judges have heard the evidence; accepted the grandparents’ position that they have a positive and important relationship with the child; and rejected the mother’s position that the grandparents have acted inappropriately toward either the mother or the child.
[6] There have been many orders along the way, but the narrow vacation issue flows from the final order of Justice Brown dated October 11, 2017 – which the mother consented to at a time when she was represented by counsel. That order sets out that the maternal grandparents are to have access:
a. Alternate weekends from Saturday 10:00 a.m. until 8:00 p.m. b. Additional time at Christmas on December 27 from 10:00 a.m. until 8:00 p.m. c. Summer time access for one week during the last week of July in each year from Monday at 10:00 a.m. until Sunday at 8:00 p.m.
[7] It is that last provision the grandparents seek to enforce.
a. The grandparents wish to take the child to Disneyworld in Orlando, Florida, during part of the July week of vacation they are entitled to pursuant to the existing consent order. b. There is no restriction in the existing order limiting where the grandparents may exercise access, or preventing them from vacationing with the child outside of Canada. c. However, from a practical point of view, they cannot travel with the child to the United States without a passport for the child, and without a “travel consent” letter from the mother (or some documentation dispensing with the mother’s consent). d. The mother refuses to provide either a passport or a travel consent because she doesn’t want the grandparents to take the child to Orlando – or anywhere outside of Canada – during the week that the mother acknowledges the grandparents are entitled to.
[8] I will first deal with the mother’s oral motion that I recuse myself from deciding the July Disneyworld issue.
a. As stated, there has been a great deal of acrimony on this file, with many orders along the way, and repeated allegations of the grandparents that the mother has been denying and undermining their access. b. The grandparents brought contempt motions. c. The mother responded with a motion seeking to reduce access. d. At one point a three day oral hearing was set for the sittings of April 10, 2017. e. As the scope of the dispute escalated – and particularly as the grandparents sought to introduce new claims in conjunction with their contempt proceedings – I directed that before the file went any further, a Case Conference should be convened to try to narrow the issues and get this file back on track. f. Contempt motions do not require Case Conferences. But with the file spiraling out of control, I convened a Case Conference on January 8, 2019 to try to re-focus on the best interests of the child, rather than recriminations between the parties.
[9] At the Case Conference we actually accomplished a great deal.
a. There was general agreement that if we could get the grandparents’ access back on track – with no further denials – that the contempt motion against the mother could be adjourned. The purpose of contempt in most access cases is to fix the problem rather than punish the parent. b. The parties agreed to adjourn the matter to allow a period of “event-free” access. (Most recently, the matter has been adjourned until September 24, 2019, in the hope that there will be an extended period of uninterrupted access.)
[10] There was, however, one issue which we weren’t able to resolve at the January 8, 2019 Case Conference.
a. As stated, pursuant to the existing order, the grandparents are entitled to a week of vacation time with the child each July. b. But the grandparents had brought a motion to change the existing order, to allow them to take the child to Costa Rica for a family wedding in May 2019. They were not entitled to a week in May, so this request constituted a variation of the existing order. c. I gave an opinion on the May 2019 vacation issue. The parties were not able to settle. d. Accordingly, in my January 8, 2019 endorsement I dealt with the scheduling of the grandparents’ motion in relation to May 2019 access. I noted in my endorsement that this motion should not be before me (since I had given an opinion on the specific issue of whether the order should be varied to allow a May 2019 vacation to Costa Rica). e. (As it happens, the grandparents later abandoned that motion.)
[11] At the outset of today’s motion, the mother took the position that since I had recused myself from determining the May 2019 Costa Rica issue, I should also recuse myself from the July 2019 Orlando issue.
[12] The father did not file any materials, but through duty counsel he simply advised that he agreed with the mother on all issues. (Duty counsel requested on his behalf that this matter be adjourned to allow the father to retain counsel and file materials, but I rejected this request. The father has long since known of all of these issues and the status of this file.)
[13] However, I agree with counsel for the grandparents that there is no basis for my recusing myself from the Orlando motion. There is no reasonable apprehension of bias, and I am certainly not precluded from dealing with the Orlando motion by virtue of anything in the Rules.
a. It is undisputed that a Judge who gives an opinion at a conference should not subsequently make a ruling on the same issue. b. But the issue at the January 2019 Case Conference was a request by the grandparents for a variation of the existing order, to allow them a week of access in May 2019. The issues at the time included whether the grandparents should be entitled to extra time; whether they should be entitled to time in a different month than was provided for in the final order; whether the grandparent access should entail a child being removed from school; etc. c. In every respect the May 2019 Costa Rica discussion was in the context of a variation – the grandparents were asking for something they were not otherwise entitled to in the existing order.
[14] In contrast, the grandparents motion today is not for a variation of the existing order:
a. The consent order already allows them the specific week of access they are seeking. b. The mother is not disputing their entitlement. c. There is no restriction in the order precluding a vacation to Orlando. d. The grandparents have simply come to court to obtain assistance in enforcing the existing order. e. If the mother is allowed to stonewall on the passport and travel consent issue, then the mother would unilaterally be imposing her own restrictions on access – even though no such restrictions are either stated or implied in the consent order. f. Refusing to process some paperwork to frustrate access amounts to self-help. g. The grandparents’ motion to deal with this issue is not a variation. They are not alleging a material change. They simply seek to overcome obstructionist behavior by the mother. h. These specific issues of passports, travel consent letters, and a trip to Orlando were not the subject of any discussion at the January 8, 2019 Case Conference. I gave no opinion on the topic which is before the court today.
[15] Beyond that, apart from there being no rational or objective basis for my recusing myself, there are a number of factors which would suggest that I should be the judge dealing with this motion.
a. A minor point: The mother was in court and represented by counsel on April 30, 2019 which I specifically endorsed that if an Orlando motion had to be brought, it would be before me. Neither the mother nor her counsel at the time raised the issue of recusal. (Since then the mother has filed a notice indicating that she would be representing herself). b. More importantly, this file has consumed enormous judicial resources, and I am the latest Judge to spend a great deal of time trying to safeguard the best interests of this young child. In the absence of my having specifically given an opinion at a conference which would disqualify my future involvement, it is actually appropriate that I be seized of issues I have not conferenced, to ensure that the case is dealt with by a Judge who is familiar with all of the background. Consistency and efficiency require that Judges seize themselves of ongoing high conflict parenting disputes.
[16] Accordingly, I dismissed the request that I recuse myself, and I heard argument in relation to the very lengthy materials filed by the grandparents and by the mother.
[17] The mother expressed general concern about her own history of abuse at the hands of the maternal grandmother, and she said she wanted to restrict access as much as possible because she fears that Enasjah is already being subjected to the same abuse by the grandparents. She admitted she couldn’t stop them from travelling anywhere in Canada during their week of vacation in July, but she feared that the laws would be less protective of the child in another jurisdiction like Florida.
a. The grandparents absolutely deny any history of abuse toward the mother, and they strenuously deny any inappropriate or alienating behavior in relation to the child. b. While it is difficult to assess credibility based on affidavit materials, I am reassured by the fact that the position set out by the grandparents is entirely consistent with the findings set out in two separate lengthy judgments of Justices Chappel and Gordon, dealing with these same allegations by the mother. c. In both previous court determinations which were extensively reviewed by Ms. Scholz, the court unequivocally determined that the mother has been acting in bad faith in deliberately undermining and interfering with the grandparents’ relationship with the child. The mother’s allegations of abuse by the grandmother were rejected. In contrast, the court confirmed that the grandparents have a very beneficial and important role in the child’s life. d. Indeed, even the mother’s own affidavit materials – filed at an earlier proceeding where she was battling the child’s father – confirm that for a period of time the mother was saying nothing but good things about the maternal grandmother and the beneficial role she was playing in the child’s life.
[18] The mother expresses concern that if the grandparents are allowed to travel with the child to Orlando, they may abduct the child and never return. I reject this submission. There is no basis whatsoever to suggest that these grandparents – who have spent thousands of dollars on legal fees trying to do things by the book – would resort to such self-help.
[19] The mother says even if the grandparents are allowed to travel outside of Canada, they should not be allowed to take Enasjah to Disneyworld, because the mother wants to be the one to take the child to Disneyworld. She doesn’t want the grandparents to take that special experience away from her.
a. However, the mother admits she is currently prohibited from travelling to the United States as a result of a criminal conviction for trafficking drugs. b. She says she is seeking a pardon. She hopes to find out about the pardon in about eight months. There are no guarantees. If she doesn’t get a pardon, she will seek a waiver to allow her to travel to the United States. c. I agree with counsel for the grandparents that – particularly in light of the uncertainty about if or when the mother would be able to take the child to Disneyworld – it is not appropriate for Enasjah to lose this opportunity while she is eight years old. d. As well, the grandparents only plan to visit Orlando for four days. They’ll see some of the attractions, but there will still be plenty more for the mother to share with Enasjah in the future. There’s a lot for a little girl to enjoy in Orlando.
[20] In all the circumstances, I find that the grandparents are already entitled to the vacation dates and plans that they are proposing. There is nothing sinister or inappropriate about their proposal. They want to take the child to a theme park that the mother acknowledges the child would enjoy. It is regrettable that the mother has forced them to bring this motion, to overcome the mother’s resistance which appears to be more focused on animosity than the child’s best interests.
[21] The Order:
a. The grandparents shall be entitled to travel with the child Enasjah on the dates and times as set out in their Notice of Motion dated May 6, 2019. b. The grandparents shall be permitted to travel outside of Canada with the child, without the consent or participation of either of the parents. c. The mother shall provide the grandparents with a passport for the child no later than June 17, 2019. She is to take all possible steps to have a passport issued as quickly as possible. If the mother has not provided the grandparents with a passport for the child by June 17, 2019, thereafter the grandparents shall have the authority to obtain a passport for the child without the consent or participation of either parent. In the event that the passport office requires any further order or direction from the court to implement this, the grandparents’ lawyer may see me on an ex parte basis to obtain the necessary order. d. The issue of costs is reserved to the previously scheduled date of September 24, 2019 at 10:00 a.m. I note that the grandparents have graciously offered that if the passport is provided by the mother no later than June 17, 2019 and if there is no other impediment or frustration of the Orlando vacation, then they will not be seeking costs.
[22] Court staff are to expedite issuing this order. Approval as to form and content is dispensed with.