Court File and Parties
COURT FILE NO.: FS-12377455 DATE: 20190628 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Bryan J. Seaton Applicant – and – Xiao Qui Zheng (a.k.a. Jenny Zheng) Respondent
Counsel: Chelsea Hooper, for the Applicant Jeff Rechtshaffen, for the Respondent
HEARD: June 18, 2019
C. Gilmore, J.
Ruling on Motions
Overview
[1] The parties both have motions before the court. The applicant (“the father”) seeks to have certain paragraphs and Exhibits struck from the respondent’s (“the mother’s”) affidavit sworn May 7, 2019 as per his Amended Notice of Motion dated May 29, 2019. He submits those documents are in breach of ss. 87 and 130 of the Child and Family Services Act, Rule 30 of the Rules of Civil Procedure and the Order of Sherr, J. dated December 7, 2012. The mother brings a cross-motion seeking an order to permit the use of all documents and findings from the protection proceeding for this motion.
[2] In addition, the father seeks to enforce the terms of an Offer to Settle made by the mother and dated April 19, 2016. The Offer was severable and the child-related parts of the Offer were accepted by the father. The father now seeks to have those portions of the Offer incorporated into a Final Order by way of a motion for Summary Judgment.
[3] The father seeks to have the mother’s cross-motion dismissed as a result of her failure to pay costs of $15,000 as per the Order of Shore, J. dated March 22, 2019. The mother paid those costs shortly before the hearing of this motion.
[4] The mother brings a motion for a s.30 assessment or in the alternative the appointment of private counsel for the children. She asks that the cost of the assessment or counsel be shared by the parties.
[5] Although the mother did not bring a formal motion for leave to permit oral testimony at the motion she sought to have the evidence of a social worker, Showaita Manchanda, from JF & CS testify at the motion. The father opposed this request, given that no formal motion had been served. His position was that the social worker’s testimony would be hearsay and therefore not reliable.
Background Facts and Litigation History
[6] This case has been in litigation for seven years; half the lives of the parties’ children. The effects of the resulting conflict on this family are significant and overwhelming. There have been over 15 motions brought since the case began in May 2012. The results of this motion will hopefully allow the parties to move on to trial and obtain some finality and clarity for themselves and their children.
[7] The parties separated in 2012. They have two children, M.S. who will turn 16 on July 19, 2019 and J.S. who will turn 14 on August 14, 2019. The mother works as a flight attendant for Air Canada. She also sells real estate part time. The father is unemployed.
[8] When the parties separated in April 2012, the mother left the home with children and went to a women’s shelter. After she left, the father brought an ex-parte motion for temporary custody of the children. The children were ordered to be returned to his care. Following this, the parties entered into a nesting arrangement in May 2012 whereby they shared care of the children on a week about basis until the children were apprehended from their parents by Jewish Family & Child Services (“JF&CS”) in July 2012 due to the high conflict between the parties, and a concern that the children were in need of protection. The children were placed in care for three months. The custody and access proceedings were stayed in this court for approximately three years while the protection proceeding was ongoing.
[9] Initially, access to the children by both parents was supervised. In April 2014, JF & CS agreed to withdraw their protection application so long as the father agreed to a supervision order granting the mother temporary care of the children. The children were then placed in the mother’s care under a supervision order.
[10] Shortly after separation the father was charged with multiple counts of assault and sexual assault against the mother. The charges were stayed in 2015. Once the criminal charges were dealt with, the supervision order was terminated.
[11] In October 2013, the mother brought a motion for temporary child support and s.7 expenses. The father was ordered to pay child support of $423 per month based on an imputed income of $29,000 and to pay 50% of the children’s s.7 expenses.
[12] In April 2015 the parties agreed to lift the stay imposed by s.57.2 of the Child and Family Services Act to permit the custody and access proceedings in this court to continue.
[13] In June 2015, the father brought a motion seeking appointment of the OCL and a change to the access arrangements such that M.S. resided with the parties on a week about basis and J.S. resided with him on alternate weekends and certain weekdays. The father’s position was the supervision had created a false status quo as, prior to the supervision order, the parties had shared the care of the children.
[14] The OCL had been involved in the case while the protection proceedings were ongoing. The OCL declined to become involved in the proceedings in this court. In her endorsement of June 18, 2015, Stevenson, J. expressed concern about the effect of the conflict in this case on the children and the necessity of proceeding to trial expeditiously. Stevenson, J. did not change the access arrangements as requested by the father.
[15] In February 2017, the father brought a motion in relation to the cost of therapy and s.7 expenses for the parties’ child, M.S.
[16] In April 2018, the mother brought a motion for an increase in support and the father brought a motion for disclosure. The mother’s request for increased child support was dismissed.
[17] In January 2019 the father brought a motion for an order requiring the children to attend counselling, an order restraining the mother from interfering with his time with the children, an order enforcing the access schedule and an order requiring that he receive information about the children, and joint decision making authority. The mother brought a motion for an order for a Voice of the Child Report and a stay of the access schedule including an order restraining the father from communicating with the children.
[18] The mother’s motions were dismissed. The mother was ordered to keep the father informed of the children’s education, health and welfare and ensure the regular access schedule was reinstated. The balance of the relief was adjourned to trial. In her reasons, Shore, J. dismissed the request for a Voice of the Child Report because:
…a VOC report will do nothing but encourage further manipulation of these children and delay resolution of the issues. These children will be best served by the matter moving quickly to trial.
[19] Shore, J. ordered the mother to pay costs of $15,000 for the motion. In doing so, she made several negative findings about the mother, including that she had acted unreasonably and in bad faith. Specifically she found that the mother, “inappropriately involved the children in the dispute,” “failed to understand her role in escalating the conflict between the parties,” and that she took unilateral actions related to the children which were intended to circumvent court orders.
[20] Justice James Diamond has been appointed Case Management Judge for this matter. Given that Justice Shore ordered that no further motions were to be brought without leave. Diamond, J. gave leave to bring the motions before the court and determined, quite rightly, that the issue of the s. 30 assessment and the enforcement of the settlement must be determined before the matter could move on to trial.
[21] These parties do not communicate well or at all. They have different views on parenting and most other issues. The children have clearly been affected by their parent’s conflict. M.S. is struggling with math and science. He suffers from anxiety and low self-esteem. The mother blames many of M.S.’s struggles on the father whom she claims was also a weak student who lacked confidence. She complains that because the father has not worked since 2007 he is a poor role model for the boys and that he makes M.S. feel inadequate and lazy. According to the mother, M.S. complains that his father is verbally, physically and emotionally abusive to him. He stopped seeing his father for regular access visits in August 2018.
[22] The mother submits that there has also been significant conflict between J.S. and his father. This led to J.S. refusing to see his father by December 2018.
[23] As a result of the order of Shore, J. in March 2019, the mother was obliged to ensure the children resumed access with their father. This has led numerous other difficulties, which will be outlined in more detail below. The mother’s view is that the enforcement by this court of the acceptance of the Offer to Settle would lead to complete chaos. The children do not want to see their father and certainly do not want their time with him increased. This would not be in their best interests. Further, the children are of an age where their own views should be heard at trial, whether by way of a section 30 assessment or appointment of private counsel for them.
The Father’s Complaints
[24] The father complains that the mother is unreliable. She has reported at least three alleged incidents of physical abuse by the father against the children to JF & CS since the protection proceeding was resolved. Each of the incidents has been investigated and the file closed.
[25] The mother works long haul flights to Asia as an Air Canada flight attendant. She is away approximately 50% of each month. The father alleges that the children’s continual absences, lateness and decline in school performance is due to a lack of supervision by the mother and not because of any action or inaction on his part.
[26] Before the mother refused to allow the father any involvement in the children’s lives, he was the parent who assisted with homework and dealt with the school and tutors. The mother was simply not around enough to do this and when she was, she was overly permissive and did not enforce either rules or routines. The father includes in his materials many emails from the children’s teachers indicating that the assignments are not being handed in, and that the children did not show up for various rehearsals and tests. This prompted the father to bring his motion in January for enforcement of access. The court granted his motion and the children returned to him on alternate weekends and some weeknights. This has created new problems which shall be outlined below.
[27] The father complains that the mother discusses this litigation with the children and speaks negatively about him and his family. She leaves the children unsupervised for days resulting in them playing endless amounts of videogames and neglecting their schoolwork, diet and sleep routine. The mother actively influences the children against the father, including telling them about his criminal convictions and jail time which he served over 30 years ago.
[28] Since the children spend most of their time with their mother, she is the one who most often receives notice of school events and completed tests and assignments. The mother fails to regularly share this information with the father.
[29] The children tell the father that he should pay their mother more support and refer to his lawyer as his “bitch Chelsea.” They say things to their father which make it clear that their mother has permitted them to read parent communication about them.
[30] The mother allows the children unfettered access to her residence even during the father’s parenting time. They invite friends there and remain unsupervised. The mother takes no steps to ensure they return to their father’s home.
[31] The father has a criminal record, which dates back 25 years. The record includes convictions in both the United States and Canada. Information concerning the details of the father’s prior criminal history is contained in the child protection file. The father was charged in relation to allegations made by the mother but those charges were stayed in 2015. The mother makes constant reference to the father’s past notwithstanding prior court orders that preclude such references. Further, doctors and other therapists have not determined that the father’s behaviour 25 years ago has any impact on his ability to parent and have parenting time with the children.
[32] The father suggests that the mother focuses on the father’s past negative behaviour in order to distract from her own negative conduct which includes having affairs with men she met in business class on Pan Pacific flights and sexualized behaviour with the children which caused the CAS to investigate.
[33] The mother places little or no value on the children’s academic performance and rarely responds to the father’s request for information about the children’s basic health or welfare.
[34] It is true that the father is unemployed and has been for seven years. The children often remind him of this in ways that parrot that of the mother. The father stayed at home with the children starting in 2007, given the mother’s work schedule. Between 2012 and 2015 the father was involved in three different court proceedings, this application, the protection application and the criminal matter. This consumed all his time and energy and made him unemployable. After the criminal charges were stayed, the father had been out of the work force for eight years and could not find work. He uses his time as a volunteer on both of the children’s school Parent Councils and coached the children’s hockey, soccer and basketball teams. He is the one who liaises with the school most often concerning the children’s progress, although the mother disputes this.
[35] The mother does not support the father with respect to setting boundaries for the children. If the father does not allow, for example, the playing of video games after a certain time limit, the children will call their mother. The mother tells the children not to listen to the father or ignore his discipline, thereby continually undermining the father’s parenting.
[36] Access often goes well until the children are told “no” by their father in relation to some unreasonable request that they have made. They become upset and will react by doing things such as swearing at their father, telling him he doesn’t pay enough support, urinating on his car and demanding to be taken back to their mother’s house.
[37] An unfortunate incident occurred on Thanksgiving weekend in October 2018. J.S. asked his mother to come and pick him up early because he and his father had an argument. The mother showed up five minutes later. The father went out to her car and asked why she was picking up J.S. two hours early. The father’s version of this event is that the mother taunted him and lurched forward with her car hitting the father and almost knocking him over. He called the police and also retained a personal injury lawyer to write a letter to the mother. The father has decided not to pursue any tort claim against the mother, given the possibility that J.S. would have to give evidence. The mother claims that J.S. saw the whole thing and that nothing happened. The father says J.S. was in the house.
[38] The father agrees that he attended before a Justice of the Peace on October 12, 2018 in order to lay a private information in relation to the incident. He then regretted doing so and sought to withdraw the affidavit in support of the information. However, he was advised that doing so could result in him being charged with filing a false information. He took no further steps and understands that the information was withdrawn by the Crown on February 28, 2019.
[39] The father has received reports from J.S.’s religious teacher, French teacher and Geography teacher that J.S. is disruptive in class and negatively impacting other students. He was suspended from his Select hockey team for swearing at a referee, insulting teammates and throwing tantrums during which he threw hockey equipment.
[40] M.S. has been diagnosed with ADHD. The mother refuses to give him his prescribed medication. M.S. filled out a form for his ADHD evaluation in which he described himself as depressed, hopeless, nervous, worried, tense and low on energy.
[41] The father was upset to find out from the material filed for the January 2019 motion that that the children were each seeing a different therapist. The father had supported the children receiving therapy for years. He was disappointed and concerned to find out that they were doing so but that he had not been involved in the choice of therapist or advised of the children’s progress.
[42] The father points out that during the marriage the children were happy and loving and had a close relationship with both parents and their extended family.
[43] The father did not support the mother’s request for a Voice of the Child Report. His view was that the children’s views and preferences are not free from negative influence from their mother. The father was pleased that after the decision of Shore, J. was published, the children resumed seeing him in accordance with the previous access schedule. His evidence is that access has gone well since then. M.S. has attended every access visit and the visits have been positive. The father helps M.S. with his school assignments and has arranged for him to see a dermatologist about his acne. He is pleased that the mother agreed to allow M.S. to attend Oxford Learning which has assisted with the improvement of M.S.’s grades. As well, the mother has finally agreed to permit M.S. to take his ADHD medication which has improved his focus and concentration.
[44] The father agrees that the resumption of access with J.S. has been challenging. J.S. has simply not shown up for access on two occasions. The father received a call from the mother of one of J.S.’s friends in April 2019. That mother was concerned because she had heard the mother encouraging the children not to go to the father’s house, saying disparaging things about the father, inadequately supervising the children and their friends when they are there and a concern that there was unsupervised alcohol and drug use at the mother’s home. There have also been issues with J.S. wanting to stay overnight at friend’s home and lying about where he actually is overnight. The father deposed that the mother admitted to him that she has had similar issues with J.S. and that she cannot control him at times.
[45] The father discovered that J.S. was caught shoplifting at Winners in March 2019 and was issued a formal written trespass notice. No formal charges were laid. The father did not find out about his incident until April 2019. He was concerned that the mother had not shared this important information with him.
[46] Despite Shore, J.’s clear order that the mother was to share child-related information with the father, she failed to advise him that she had moved until February 2019 when he found out from M.S. The father is again concerned that he is receiving important information through the children and not from the mother. The mother has never formally advised the father of her new address.
[47] In addition, the mother has breached the order of Justice Shore (which required that he be provided all information about the children) as follows:
a. The mother arranged for a high school tour and course selection for J.S. without any consultation with the father;
b. The mother failed to provide the father with the children’s passwords so he could access their class and course selection directly;
c. The mother enrolled M.S. in a football and rugby program without informing the father until after the fact;
d. The mother arranged for J.S. to attend an out of town basketball tournament without informing the father and thereby allowing him a chance to attend;
e. The mother never responded to the father’s email about what new rules or consequences would be put in place after J.S.’s shoplifting incident; and
f. J.S. failed to show for access on the weekend of May 3, 2019 and the mother failed to respond to emails from the father requesting information about J.S.
[48] The father complains that the mother continues to be in breach of Justice Shore’s order because she continues to interfere with his access. He maintains that his access to M.S. has been “fantastic” since Justice Shore’s order, and that while there have been some issues with J.S. he believes they are solely attributable to the mother’s negative influence. The father describes M.S. as now coming to him for help with school assignments. He also comes to his father when he needs his medication for his ADHD and acne.
[49] The father’s position is that a section 30 assessment will simply further entrench the children in the conflict. They children need counselling, not more conflict.
[50] Given the events since Shore, J.’s order, the father believes it is in the best interests of the children that they share time with their parents. As such he accepted the mother’s Offer to Settle dating back to 2016 which provides for joint custody, week about parenting and the appointment of a parenting coordinator to deal with issues and disputes as they arise.
The Mother’s Complaints
[51] The mother is saddened by the father’s portrayal of her as a negligent parent who fails to prioritize academic achievement for the children, fails to instil a sense of discipline and perseverance and is away from home too often to provide adequate supervision. The mother describes a marriage filled with physical and sexual abuse. She was forced to leave the marriage with the children and live for a short time in a shelter. She does not trust the father and describes him as both controlling and abusive. It should be noted that the father denies all of the mother’s allegations of abuse and submits that in fact he was the one who was physically abused by the mother.
[52] The mother denies all of the father’s allegations and submits that it is hard to raise two teenage boys in the face of the damage being caused to them by their father. The mother’s view is that the father is obsessed by the children’s academic performance. Since he does not work, he sends her multiple emails each day outlining his concerns with her parenting. The mother provided numerous emails in her materials outlining her efforts to keep the father aware of the children’s activities and progress as ordered by Justice Shore. The mother complains that since the father does not work he spends his days on the internet and has sent her thousands of texts and emails over the last seven years. She simply cannot keep up with his never ending and unreasonable demands. In addition, sometimes when the mother provides routine information to the father he creates a crisis. An example is J.S.’s recent baseball tournament in Ottawa. The father insisted that he should drive J.S. to the tournament when J.S. was clear that he wanted to drive with his coach.
[53] Other examples are the parties’ recent agreement to send M.S. to Oxford Learning. The father agreed to pay for this and now insists that he must drive M.S. to each and every session. M.S. does not want this and is capable of attending on his own. Further, the father insisted that the mother sign a waiver indicating that the fact that the father was paying for Oxford was not evidence that he was earning a higher income.
[54] In December 2018, the mother and children moved from their one bedroom apartment to a rental home. The home is located near the father’s residence. The mother has long standing fears of the father’s interference with her privacy. She agrees that she did not immediately inform the father about her new address. She insists that the father has now been stalking her and parking on her street. She remains fearful of him.
[55] The father has vilified the mother since separation. At the protection hearing in 2012 the father would only agree that the children be placed equally with both parties. He preferred that the children be returned to foster care rather than reside full time with the mother. This position was taken by the father, notwithstanding the children’s clear wishes that they did not wish to remain in foster care. The mother referred to the endorsement of Sherr, J. in this regard from October 22, 2012. The mother submits that the father’s position has not changed. He blames everything on her and is unable to separate his own interests from the children’s best interests.
[56] Despite the father’s insistence that he is the primary contact for the children’s schools due to his involvement, he has in fact alienated the children’s schools by making unfounded complaints to principals, teachers and a school trustee. He has had conflict with the children’s karate and football team personnel as well.
[57] M.S. has described to the mother several incidents in which his father has used foul language towards him, denigrated the mother, threatened to call the police if he left his house, sent messages to M.S.’s friends telling them to keep away from him, forced him out of the car during the course of an argument, leaving M.S. to walk home alone without food or water, and has been pushed and grabbed by the father during an argument when M.S. tried to leave the house. The father denies all of these allegations claiming they are hearsay or completely exaggerated by M.S. M.S. ceased seeing his father in August 2018 due to a physical conflict which resulted in M.S. returning to his mother’s and refusing further access.
[58] The mother agrees that M.S. is struggling at school. Contrary to the father’s assertions, the mother has had numerous meetings and calls with M.S.’s teachers.
[59] The mother also describes significant conflict between J.S. and his father. She deposed that J.S. is very resentful about having to resume access with his father and has expressed anger towards his mother, partly blaming her for the situation.
[60] The mother completely denies the father’s version of events from the Thanksgiving weekend. J.S. called her asked her to pick him up as he was embroiled in a conflict with his father who refused to allow him to leave. She drove to the father’s home to pick up J.S. She did not hit the father with her car. The police spoke to J.S., who, according to the mother, witnessed the entire incident. No charges were laid by the police at that time. However, the mother received a summons on February 20, 2019 in relation to a private information related to the October 8, 2018 incident.
[61] The mother also received a letter from a personal injury lawyer in relation to a potential claim for damages for the October 8, 2018 incident. This upset the mother enormously and she had to engage her own counsel to respond. J.S. was also upset about the incident.
[62] Another incident occurred on the weekend of November 16, 2018 in which J.S. said that is father pushed him hard against a wall during a conflict. J.S. left his father’s home and said he did not want to see him ever again. J.S. has repeated to his mother on several occasions that he wants her to “make sure” that he no longer has to see his father.
[63] The mother is exasperated with the father’s continuing and complete denials of his involvement in the children’s behaviours. She is upset that Justice Shore held her completely responsible for the conflict, while failing to acknowledge the children’s significant and ongoing complaints about their father. While being ordered not to discuss the case with the children, she found that after the January motion the father told the children how he had “beat” their mother in court and told the boys about the arguments his lawyer had made to the court.
[64] The aftermath of the forced resumption of access has been horrendous for the mother. The father has called the police on several occasions when the children did not arrive. JF & CS has been involved and told the mother that J.S. should not be forced to visit his father given his age.
[65] The mother feels torn, having been rebuked by Justice Shore for not facilitating access and now being blamed by her sons who do not want to see their father. On the weekend of May 3rd the mother was about to leave on a Trans Pacific flight. J.S. told her that he would rather kill himself than visit his father that weekend. While M.S. is more compliant than J.S. about access visits, he complains as well about having to visit his father.
[66] The mother deposed that on May 29, 2019 she received a call from Showaita Manchanda, a social worker with JF & CS. She advised the mother that JF & CS had received several calls from J.S. and M.S. over the last few weeks. Ms. Manchanda advised the mother that the boys had advised JF & CS personnel that they preferred not to see their father who had been physically and verbally abusive towards them, that they want to know their rights and they specifically want the court to know their views on access. Further, their father makes hateful remarks about their mother, speaks to them about the ongoing litigation and they are fearful that their father will have their mother arrested.
[67] The mother seeks release of the JF & CS notes in this regard to confirm the children’s concerns. She expects that the father will accuse her of fabricating these comments. The mother’s position is that the children are desperate to have their own representation, so that their views can fairly be presented to the court. The father has indeed deposed that he believes it was the mother who told the children to contact JF & CS and told them what to say.
[68] The mother agrees that she did not provide the father with her new address. She fears that the father is stalking and harassing her. The father denies this but agrees he did park on the mother’s street on one or two occasions to allow M.S. to pick up some things for school.
[69] The mother strongly believed that a Voice of the Child Report should be prepared. She wants the boys to have a voice and to have their views properly communicated to the court. She was upset by the decision of Shore, J. and is now seeking alternatives such as a section 30 assessment or private counsel. She feels that with a trial upcoming, the boys are of an age where their views and preferences must be properly considered.
The Offer to Settle
[70] In 2016, both parties had different counsel. At the time the Offer was made by the mother, the parties were contemplating both a trial and questioning. The mother was suffering serious financial issues and wanted to avoid a trial. She advanced the Offer with the advice of counsel. The Offer contemplated shared custody and a payment to the mother of $400,000. The mother was swimming in debt at the time and the children were getting along with their father reasonably well at that point. The mother did not understand that the Offer was severable and that the father was able to accept only the parenting portions of the Offer. When the Offer was not accepted, the mother forgot about it. She was shocked when three years later and in the middle of all of the conflict with J.S., the Offer was accepted.
[71] The mother was devastated by this acceptance of the Offer because J.S. does not want to see his father at all and M.S. does not like the current alternate weekend schedule. The mother’s view is that it is absurd to force a shared parenting arrangement on the children, given their resistance to the resumption of the old schedule and their respective ages. She submits that a radical change to the parenting plan for a 14 and 16 year old, without obtaining their views, would be incongruous and unwise. Further, the mother is concerned that forcing such a parenting plan on the children will simply result in more turmoil and conflict for which she will be ultimately blamed.
[72] The mother submits that an order for joint custody is completely unworkable in these circumstances. The parties cannot communicate or effectively jointly parent. Each blames the other for this but the fact remains that a true shared parenting arrangement is simply not possible.
[73] The father accepted the mother’s Offer to Settle dated April 19, 2016 on March 21, 2019. The Offer remained open for acceptance and the mother does not dispute that a proper offer and acceptance has been made. The father feels that the Offer is a reasonable outcome of the parenting issues in this case and that in accepting the Offer he is also being reasonable with respect to a resolution of this matter and costs.
[74] The father submits that the mother is upset about the Offer and the fact that it is severable because she is no longer able to “leverage” custody and access for the sum of $400,000.
The Applicant’s Motion to Strike
[75] The father has brought a motion to strike certain paragraphs and exhibits in the mother’s material as set out in his Notice of Motion dated May 14, 2019. The mother has brought a motion to permit the use of all documents and findings in the protection proceeding for this motion.
[76] As set out above, the parties were respondents in a protection proceeding commenced by JS & CF, which began in 2012 and ended in 2015. The father submits that the mother’s material contains numerous references to information with respect to that proceeding or information obtained in the course of documentary discovery in that proceeding. The father is concerned that some of the mother’s material breaches confidentiality provisions under both the former Child & Family Services Act (“CFSA”) and the now Child, Youth & Family Services Act (“CYFSA”).
[77] The father submits that the mother has acted in bad faith and breached the specific order of Sherr, J. that the information remain confidential as per the legislation. The father’s position is that since the mother was unsuccessful in obtaining an order for a Voice of the Child report, she has “upped the ante” by including confidential and negative information about the father in support of her request for an assessment or private counsel.
[78] The father makes reference in his material to the order from December 2012 in which Sherr, J. refers to the requirement that the mother obtain an order in this court if she wishes to use any of the confidential documents in the protection proceeding. The father has never consented to the use of those documents for any purpose other than the protection proceeding. In any event, the father submits that despite the mother’s attempts to demonize the father and portray him as a criminal, she is well aware that the many psychiatric reports in the protection file do not take any issue with the children having access to the father.
[79] The father’s position is that the mother has included these references in her material for the sole purpose of denigrating the father to the court. The father concedes that he was charged and convicted of several serious criminal offences 30 years ago. He served his sentence and completed the required counselling. He is a different person now. These matters should not be permitted to continually surface and cloud the real issues in this case.
[80] The father further submits that the mother’s counsel was put on notice that he would be bringing a motion to strike but the mother did not voluntarily remove the impugned material.
Analysis and Rulings
The Offer to Settle
[81] The father’s motion to enforce the terms of the outstanding Offer to Settle is brought pursuant to Rule 18(13) of the Family Law Rules which permits the court to turn the accepted parts of an offer into a court order. The father asks for summary judgment of the accepted parts of the 2016 Offer.
[82] The father’s position is that acceptance of the Offer achieves the maximum contact principle under the Divorce Act and enforces the children’s right to have meaningful relationship with both parents. Further, if the Offer is not enforced, the matter will proceed to a trial on the parenting issues which will result in more conflict for the parties and the children. The children are already experiencing stress and anxiety due to parental conflict. This must be lessened immediately.
[83] The mother’s position is aligned with her request for an assessment or appointment of private counsel for the children. The Offer should not be enforced because the children are old enough to have their views heard. Such a significant change in parenting should not occur without their views and preferences being available to the court.
[84] The courts in family law cases have been wary of enforcing terms of a settlement where the children’s circumstances have changed or there may be a resulting unfairness. In Bailey v. Plaxton, [2001] O.J. No. 1111 the court enforced a settlement notwithstanding the wife’s mistaken belief about the consequences of serving her offer. The court reviewed the reasoning for settlement offers and the necessity of encouraging and enforcing them. That case, however, dealt only with financial and not parenting issues. Mesbur, J. in her reasons refers to cases in which the courts have refused to enforce Offers, including ones where the acceptance was made years after the Offer (para 15) and there were many intervening steps between the making of the Offer and its acceptance.
[85] In Hand v. Hand, 2018 ONSC 5422, [2018] O.J. No. 5422, Jarvis, J. referenced Bailey v. Plaxton but did not follow it given that the children’s circumstances had materially changed and that it would not have been in the children’s interests to grant judgment without a trial.
[86] In these circumstances, enforcing the terms of the 2016 Offer to Settle would be bordering on absurd and I refuse to exercise my discretion to do so. In support of this position I note the following:
a. The idea that these parties can jointly parent is patently unreasonable. The lengthy and numerous affidavits filed by the parties are filled with examples of situations where the parties have disagreed on parenting issues. In fact, it goes beyond disagreement to the point where each party has a completely different version of the same set of facts (the Thanksgiving weekend car incident is but one example);
b. The parties blame one another for the children’s recent decline in both behaviour and academic performance. Meanwhile, the children continue to suffer as their parents battle on. The parties lack trust and respect for one another. Their focus has drifted away from what is best for the children and has turned to how they can manipulate situations into fodder for their next affidavit;
c. The children’s views must and will be ascertained for trial. At ages 14 and 16, it is untenable that a new parenting regime would be foisted upon these boys without their input; and
d. The circumstances of the children have changed since the making of the original Offer. The children ceased seeing their father completely in the fall of 2018. The resumption of access after the January motion has created more chaos and conflict. A trial is necessary to determine a long term parenting arrangement.
The Request for an Assessment or Private Counsel
[87] As indicated above, it would be inequitable for this matter to proceed to trial without the views and preferences of the children being available for the court. I agree with Shore, J. that a Voice of the Child report is insufficient in these circumstances. It is simply too cursory a report for this type of toxic conflict.
[88] The law is clear that the voices of these children must be heard. The Child, Youth and Family Services Act states in section 29 that children must be engaged in why decisions are being made about them and their views are to be “given due weight, in accordance with their age and maturity.”
[89] In the addition, the Children’s Law Reform Act mandates that the court “shall” consider the children’s views and preferences if they can reasonably be ascertained. They can certainly be ascertained in this case and must be available for the trial judge.
[90] As well, the parties’ positions on parenting are at odds and the court needs clarification. The father seeks to enforce an Offer to Settle which would result in a shared parenting arrangement. The mother went to great lengths through a course of lengthy affidavits to explain why increased time with the father would not work. Then, most surprisingly, she sent an email to the father on June 15, 2019 agreeing to a shared parenting arrangement during the summer. She claims that the children are refusing to see their father on alternate weekends. How then is she able to support a shared arrangement in July and August? Are the children for or against this arrangement? Did she consult them? There are many questions which must be answered.
[91] A section 30 assessment is not the right approach in this court’s view. First, it may well be outside the financial reach of the parties. Second, it will create a delay of up to at least six months. Finally, these children have been through enough. They had an OCL lawyer during the protection proceeding, they each have their own therapist and they have lived through seven years of litigation.
[92] The best solution in this court’s view is to appoint private counsel for these children. Private counsel can be up to speed likely within a month and ready for an early fall trial. If the boys have been calling the JF & CS to ask about their rights and to insist on having a voice, private counsel will afford them this opportunity. Further, private counsel will provide a form of “filter” to ensure that boys’ views are presented in a professional manner. As well, the boys will be able to participate in the trial without actually being present. It is a workable solution in the circumstances.
[93] In support of appointing private counsel for the children, I make the following comments:
a. The upcoming trial will only be about parenting issues. Given the ages of the children and the stake they will have in the outcome, it is important that their views are before the court;
b. Private counsel will ensure that the children’s evidence is presented in a professional and comprehensive way. This will reduce the possibility of it being “tainted” by the influence of either parent;
c. The boys are mature enough to have their views considered;
d. The boys have made it clear that they want to have their views considered; and
e. Counsel can arrange for the children’s views to be presented without them having to appear as witnesses at trial.
[94] Given the order to appoint private counsel, it is not necessary to schedule another date to hear from Ms. Manchanda. She will likely be a witness at trial in any event.
The Motion to Strike
[95] It is not necessary at this stage to include the material from the protection proceeding for this motion. There was sufficient evidence of conflict for the court to make its decision without that material. As such, the father’s motion to strike the offending material is granted and it shall be expunged as requested.
[96] However, counsel for the children and the parties shall have full access to this material as needed for trial. The availability of the protection file and associated documents for trial purposes is to be discussed at an upcoming Trial Management Conference.
Orders
[97] The applicant’s motion for summary judgment for enforcement of the Offer to Settle is dismissed.
[98] The applicant’s motion to strike is allowed. The respondent is to redact the relevant parts of her affidavit material and remove the relevant exhibits forthwith. This is in no way meant to prohibit access to the protection files and related documents by trial counsel, the children’s counsel and the trial judge, should the trial judge find that information relevant and necessary.
[99] The respondent’s motion for appointment of private counsel for the children is allowed. The parties to share the cost of the children’s counsel who shall be one of the counsel set out in the affidavit of Faith Lau dated June 27, 2019 and who shall be appointed within 30 days.
[100] The respondent’s motion for a s.30 assessment is dismissed.
[101] A Trial Management Conference to be arranged in July 2019, subject to the available of Justice Diamond.
[102] If the parties cannot agree on costs, they may provide written submission of no more than two page exclusive of any Offers to Settle or Bills of Costs. The submissions are due on a 7 day turnaround starting with the applicant. Costs submissions are to be provided electronically to my assistant at Patrizia.Generali@ontario.ca.
C. Gilmore, J.
Released: June 28, 2019