COURT FILE NO.: FC-17-1138 DATE: 2019/01/14 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sean Alexander Smith, Applicant -and- Brittany Ann Reynolds, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Applicant representing himself André Bluteau, for the Respondent
HEARD: January 11, 2019
Endorsement
Overview
[1] This matter returned before me pursuant to my Order dated December 24, 2018 (Smith v. Reynolds, 2018 ONSC 7706) in which I found the Respondent, Ms. Reynolds, in contempt of court for failing to comply, since October 21, 2018, with the access as set out under the March 29, 2018 order.
[2] As part of my order, I provided: “In the event that Ms. Reynolds fails to comply with the above ordered access, Mr. Smith may return this matter to me, on not less than 3 days’ notice to Ms. Reynolds, at which time further penalties will be considered.”
[3] Since my order of December 24, 2018, Ms. Reynolds has not complied with any of the court ordered access. The Applicant, Mr. Smith, has therefore returned this matter to me, seeking various relief including that the child be placed in his temporary care and for police enforcement.
Attendance on January 11, 2018 and Evidence
[4] Present in court today were the Applicant, Mr. Smith, and the Respondent’s counsel, Mr. Bluteau. The Respondent, Ms. Reynolds, did not attend court today. When asked why she was not present, Mr. Bluteau stated that Ms. Reynolds was not present because Mr. Smith was present and Mr. Smith was prohibited from having any communications with her when she was represented by counsel. I do not accept this as a reason for why Ms. Reynolds could not be present in court today.
[5] Mr. Bluteau then stated that the terms of Mr. Smith’s revised recognizance operated to prevent Ms. Reynolds from being in court today. Mr. Bluteau did not provide the court with any admissible evidence in support of this.
[6] I have expressed my concern that Ms. Reynolds was not present in court today, and in particular the court’s significant concern with her conduct in this matter. I have ordered a transcript of the proceedings of today to be prepared on an expedited basis. A copy of this transcript will be provided to both parties. Mr. Bluteau is ordered to provide Ms. Reynolds with a copy of this transcript forthwith upon receipt.
[7] With respect to the evidence before me, Mr. Smith filed an affidavit sworn January 4, 2019 setting out his further attempts to have Ms. Reynolds comply with the ordered access as well as copies of various exchanges between himself and Mr. Bluteau. Mr. Bluteau did not file any new evidence in support of Ms. Reynolds’ position. Mr. Bluteau did file a factum and advised that he sought to rely on that factum. I have attached a copy of that factum as Schedule “A” to these reasons.
December 24, 2018 Order
[8] Mr. Bluteau did not contest that Ms. Reynolds has not complied with the access as ordered under the March 29, 2018 order, nor under the order of December 24, 2018. Mr. Smith has not had any access to the child since October 21, 2018.
[9] The order of December 24, 2018 was released to the parties by email at approximately noon on December 24, 2018. Prior to that, on December 21, 2018, court staff alerted Mr. Smith and Mr. Bluteau by email that the decision would be released by noon on December 24, 2018, and directed them to ensure that they were able to access their email, and communicate with their client to advise of the decision, on December 24, 2018. Both Mr. Smith and Mr. Bluteau confirmed receipt of that email.
[10] Despite this, Ms. Reynolds did not provide the access ordered in the December 24, 2018 order, nor the order of March 29, 2018. I find based on the evidence before me, and in particular Mr. Smith’s affidavit, that he repeatedly requested access pursuant to those orders and attended for the access, but the child was not produced.
[11] Mr. Smith has produced communications between himself and Mr. Bluteau. This correspondence is very concerning, particularly given Mr. Bluteau’s representations to the court. These include that despite Mr. Bluteau advising the court on December 13, 2018 that it is was “impossible” for Ms. Reynolds to comply with the March 29, 2018 access order, which provided for access on Wednesdays and Sundays, and suggesting the same before me today, Mr. Bluteau sent an email on December 17, 2018 stipulating that “Starting on January 5, 2019, you should have a long access period with Mason either on Saturdays or Sundays, every second week, using the access centre for the pick-ups and drop-offs.”
[12] This email clearly demonstrates that it is possible for Ms. Reynolds to provide Sunday access, although she has chosen not to do so, even in the face of four court orders (March 29, 2018, October 30, 2018, November 1, 2018, and December 24, 2018).
[13] I have attempted to highlight, strenuously, the importance of Ms. Reynolds complying with the court ordered access. I am hopeful that her review of this decision and the transcript from the proceedings will make this clear to her. It is very troubling to the court that she has failed to comply to date, and I have been clear that Ms. Reynolds must comply with the court ordered access which means access on Sunday, January 13, 2018, Wednesday, January 16, 2018, Friday, January 18, 2018, and every Sunday and Wednesday thereafter as provided for under the ordered access until varied by court order or agreement of the parties. If Ms. Reynolds fails to comply with this access, she risks further consequences and penalties from the court including the possibility of this court awarding Mr. Smith the relief he has requested to change the primary residence of the child, police enforcement, further financial payments, costs, and ultimately a term of imprisonment.
[14] Mr. Bluteau advises that his client has filed a Notice of Appeal of the December 24, 2018 decision. He takes the position that filing the notice of appeal means that I am functus and that the terms of the December 24, 2018 order are automatically stayed. Neither of these are correct.
[15] Mr. Bluteau did not provide me with authority in support if either of these positions but simply asserted that it was “common sense”.
[16] I am not functus. I continue to have jurisdiction under the December 24, 2018 order to determine costs and to deal with my express reserve of jurisdiction to make further orders if Ms. Reynolds fails to comply with the ordered access.
[17] With respect to the issue of a stay, rule 63 of the Rules of Civil Procedure is clear that the filing of a notice of appeal automatically stays orders for the payment of money, except for support orders, but orders that are not for the payment of money are not automatically stayed. A motion may be brought to the Court of Appeal seeking a stay on terms that are just, but in the absence of such a motion and a further court order, the non-payment terms of the December 24, 2018 order, and in particular the access, are not stayed.
[18] Mr. Bluteau has not brought a motion to the Court of Appeal seeking a stay from the court. Again, Ms. Reynolds must comply with the existing court ordered access – filing a Notice of Appeal does not insulate her from this and the absence of a court ordered stay.
[19] In addition, the existing court ordered access included the access under the March 29, 2018 order – which has not been appealed. There is no basis to even suggest that the access pursuant to the March 29, 2018 order is stayed because a Notice of Appeal has been filed.
[20] To be clear, the existing court ordered access under the March 29, 2018 and December 24, 2018 orders is currently in force, has not been stayed, and must be complied with until varied by further court order or agreement between the parties.
[21] Mr. Bluteau also advised that on December 28, 2018 he obtained a motion date of February 26, 2019 for the Respondent’s motion to vary, on an interim basis, the interim order of March 29, 2018. Mr. Bluteau advises that he obtained the earliest possible date. The hearing of that motion needs to be expedited and I have obtained earlier dates for that motion to be heard – January 23 or 24, 2019 at 10 am. Mr. Bluteau initially stated he was not available to argue the motion until February 26, 2019, which I did not accept. Mr. Smith advised he was available for either day. Mr. Bluteau then agreed to January 24, 2019 at 10 am. The Respondent’s motion seeking to vary, on an interim basis, the interim order of March 29, 2018 shall be scheduled for January 24, 2019.
[22] Mr. Bluteau advised that he wishes to be able to question Mr. Smith in advance of the motion. Mr. Smith previously filed material at the December 13, 2018 motion that confirmed his offers to make himself available for questioning. He is agreeable to attend for questioning in advance of the January 24, 2019 motion. Given this, either party may question the other in advance of the January 24, 2019 motion, such questioning not to be more than two hours. A party seeking to question the other must serve all of his or her affidavit material they seek to rely on at the motion in advance of the questioning and will be responsible for providing the court and the other party with a copy of the transcript from the questioning prior to the motion on January 24, 2019.
[23] To be clear, if Mr. Bluteau seeks to question Mr. Smith prior to January 24, 2019, he must take steps to do so immediately so that all of the requirements for the questioning are completed in time for the transcripts to be available in advance of January 24, 2019.
[24] Ms. Reynolds has moved to a new residence. She has not filed an updated form 35.1 despite her obligation to do so. Ms. Reynolds shall provide an updated complete form 35.1 within 30 days.
[25] Ms. Reynolds does not wish to provide Mr. Smith with her new address. Without deciding whether she should be required to do so or not, I confirm that Mr. Bluteau has agreed to accept service of any court documents in these proceedings on her behalf, including any documents that are required under the rules to be personally serviced on her, such as a notice of contempt motion.
[26] I grant Mr. Smith leave to amend his Application to change his request for custody of the child, Mason, from joint custody to sole custody with primary residence with him, with generous access to Ms. Reynolds. This is to be done within 30 days. Ms. Reynolds will have 30 days from the date she is served with his amended Application to amend her Answer in response to this claim.
[27] This matter shall be returned before me on a date to be set after the motion on January 24, 2019, on at least 3 days’ notice, to determine what if any further orders of the court should be made given Ms. Reynolds’ failure to comply with the court ordered access to date and, if necessary, any further failures to comply. These include all of the possible remedies available to the court referenced at paragraph 13 above.
[28] Mr. Bluteau made a submission before me today that Mr. Smith’s motion amounted to an attempt to tamper with witnesses in a criminal trial. I find that there is no basis to support this allegation and expressly state that I do not find anything improper with the relief requested in Mr. Smith’s motion.
Costs
[29] Mr. Smith made submissions before me today which I accept as his submissions for costs of the motion argued on December 13, 2018. Ms. Reynolds continues to have until January 18, 2019 to file her submissions with respect to costs of that motion.
[30] With respect to costs of today, Mr. Smith seeks costs payable to him fixed at $1,000. Mr. Bluteau submits that no costs should be payable. Mr. Smith has incurred expenses travelling hundreds of kilometres to and from court and to serve and file material. He has also used vacation days to deal with this matter.
[31] One of the fundamental purposes of modern cost rules is to discourage and sanction inappropriate behaviour by litigants. Taking into consideration the factors under rule 24(12), and in particular what I find has been inappropriate behavior by Ms. Reynolds, I grant costs of today, including the preparation of Mr. Smith’s motion and supporting affidavit for today, and his appearance today, fixed at $1,000, payable forthwith.
[32] These costs are payable in addition to the costs of $500 ordered payable by Ms. Reynolds to Mr. Smith under the order of Justice Beaudoin dated November 1, 2018. Those costs were ordered to be paid prior to the return of the motion on December 13, 2018 but remain outstanding.
[33] Ms. Reynolds is ordered to provide the court, prior to the hearing of her motion on January 24, 2019, proof that she has paid both of these costs orders.
Date: January 14, 2019 File No: FC 17-1138
Respondent's Submissions (January 7, 2019)
Ontario Superior Court of Justice- Family Court Sean Smith
1- The Applicant's motion cannot be heard in view of the appeal filed in the Court of Appeal from Justice MacEachern' s December 24, 2018 judgment since the Applicant's motion has been expressly authorized by the judgment under appeal. It should be noted that most of the motion was not even contemplated as proper, possible or relevant by Justice MacEachern. Furthermore, Justice MacEachern, since the appeal, is clearly functus officio. The Notice of Appeal, the Affidavit as to Evidence, the Affidavit of Service of these documents as well as the $220 filing fee have been sent to the Court of Appeal on January 7, 2019.
2-Unlike fines, payments of money to a party as ordered by Justice MacEachern are stayed by law until the final determination of the appeal.
3-The first, third and fourth (numbered 3) and seventh orders sought by the Applicant have no basis in law. Furthermore, the requests made by the Applicant constitute instances of the Applicant attempting to tamper with a witness in his upcoming criminal trial.
4-The second and fourth orders are matters which have to be dealt with at trial.
5- Without prejudice, the Respondent will provide, in addition to the access already offered to the Applicant and never used by him, for additional access until the beginning of his criminal trial.
6-At no time, the Respondent prohibited the Applicant to see his son.
7-The following has been offered to the Applicant, but never used by him: You can see Mason on any day of the week, except Sunday, at the daycare between 8:30 a.m to 11.30 a.m. You can see Mason on one of these days for a longer period, namely from 8:30 a.m. to 4:30 p.m. There will be no problem with you having Mason for a longer period on a second day of the week. You have the duty to make reasonable efforts to have your recognizance conditions changed to allow you to see Mason in Ottawa. You can use a third party (with notice so that the daycare can be notified) to pick Mason up from and drop him off daycare until your recognizance conditions are changed.
8-The Applicant has refused this unconditional offer and provided no reasonable explanation for his refusal to see his son.
9-When it is possible, that is when the Respondent is not working, the Respondent will bring Mason one day a week, except on Sundays, to Arnprior (9 a.m; Tim Hortons, 201Madawaska Blvd, Arnprior, K7S 1S6) and the Applicant will bring back the child to Ottawa (5 p.m; 3330 Fallowfield Road, Nepean, K2J 4P5). The third parties used in Arnprior and Ottawa are the following: the Applicant's mother Susan Smith, the Applicant 's father David Smith and Michael Haszczyn.
10-The Resondent will notify the Applicant of the additional access through her lawyer's email as early as possible but no later than 12:00 on the day before the additional access.
RESPECTFULLY SUBMITTED January 7, 2019 Original signed by counsel Andre Bluteau
To : Sean Alexander Smith 12 Hydro Bay Road Cobden, On KOJ 1KO
COURT FILE NO.: FC-17-1138 DATE: 2019/01/14 ONTARIO SUPERIOR COURT OF JUSTICE RE: Sean Alexander Smith, Applicant -and- Brittany Ann Reynolds, Respondent BEFORE: Justice P. MacEachern COUNSEL: Applicant representing himself André Bluteau, for the Respondent ENDORSEMENT Justice P. MacEachern
Released: January 14, 2019