Barrs v. Carway, 2019 ONSC 4952

COURT FILE NO.: FS-18-3611-00

DATE: 20190822

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

J. Randall Barrs

Applicant

– and –

Melissa Carway

Respondent

Sheila Collins, for the Applicant

Joan M. Cushon, for the Respondent

HEARD: August 20, 2019

RULING ON MOTIONS

c. gILMORE, j.

1There are two motions before the court. The applicant father (Mr. Barrs) moves for summary judgment. He seeks sole custody of the parties’ child SHB, retroactive and ongoing child support and s.7 expenses, an updated Financial Statement from the respondent mother (Ms. Carway), supervised access, an order striking Ms. Carway’s Answer and claim dated August 22, 2018 and costs.

2Ms. Carway has brought a cross-motion. She seeks an order dismissing Mr. Barrs’ motion, joint custody of SHB, an order that the parties use Our Family Wizard for all communication related to SHB, an order that neither party use consume alcohol or non-prescription drugs while caring for SHB, an order that exchanges for SHB take place at Oakdale golf course, an order that, other than golf lessons, no activities are to be arranged for SHB by Mr. Barrs during Ms. Carway’s designated time with SHB, an order permitting Ms. Carway a two week vacation with SHB in August 2019 as well as an equal sharing of all school vacations, an order requiring Mr. Barrs to file a financial statement, and an order staying the payment of support arrears and costs pending the sale of her Collingwood property.

3The child SHB is 13 years old. She will be starting Grade 8 in September 2019. This litigation, most unfortunately, revolves around her. Some understanding of the history of this litigation is needed to better understand how the parties came to this point and why they are unable to resolve matters between themselves without the necessity of a long motion.

FACTUAL BACKGROUND AND HISTORY OF THE LITIGATION

4The parties began cohabiting in 2006 after SHB was born. They separated in 2012. After separation there was no domestic contract relating to either custody or support for SHB. A loose arrangement was agreed upon whereby SHB lived with Ms. Carway in her Port Credit condominium during the week and with Mr. Barrs on weekends.

5The parties agreed on a financial arrangement whereby Mr. Barrs paid a set amount of child support plus $500 per month to compensate Ms. Carway for doing the driving for the return trips from Port Credit to Toronto each week.

6This arrangement began to deteriorate in spring and summer of 2018. Mr. Barrs made serious allegations regarding Ms. Carway’s drug and alcohol use as well as her lifestyle choices including her partners. There were concerns about SHB’s exposure to this lifestyle. Those concerns were supported by affidavits from Mr. Barrs’ children from his first marriage and SHB’s maternal grandparents.

7Mr. Barrs proposed that SHB move to Toronto, live with him and attend Bishop Strachan School (“BSS”) which is located very close to his home. Based on the evidence at the motion, I ordered that such a change take place. Specifically it was ordered on October 18, 2018 that SHB reside on a temporary basis with Mr. Barrs during the 2018/19 academic year and with Ms. Carway on alternate weekends from Saturday at noon to Sunday at 5:00 p.m. Ms. Carway was also permitted a dinner visit on Wednesdays from 6:00 to 8:00 p.m. in Toronto. Other conditions placed on Ms. Carway’s time with SHB included that she not consumes alcohol or drugs before or during any visit, that she provide 24 hours notice of any cancelled visit and that she take SHB to her golf lessons and any other planned activities on her weekends.

8In addition, Ms. Carway was ordered to pay Table child support of $910 per month commencing September 1, 2019 based on her income at the time of $100,000 per year. She was also ordered to pay costs of $18,700.

9SHB’s school year ended on June 14, 2019. The parties were not able to agree on a new schedule. Ms. Carway wanted joint custody and additional time with SHB. Mr. Barrs wanted sole custody and was frustrated by what he characterized as a complete abdication of access time by Ms. Carway. In the end, Mr. Barrs brought the motions before the court today returnable on June 20, 2019. Ms. Carway appeared on that day without counsel or material. Ms. Carway’s former counsel, Mr. LoGreco, appeared as amicus for Ms. Carway and assisted her in arguing the contested adjournment.

10Given the substantive and significant relief sought by Mr. Barrs, the matter was adjourned to a long motion on August 20, 2019 peremptory on both parties. I ordered that the residential arrangements from the October 18, 2018 order continue from June 20, 2019 to August 20, 2019 and that they would also continue until the release of these reasons.

SHOULD THE RESPONDENT’S CROSS-MOTION BE HEARD?

11Mr. Barrs submits that Ms. Carway’s cross-motion and responding materials were delivered out of time and the court should not consider them. My June 20, 2019 order required that those materials be served and filed by July 19, 2019. This schedule was canvassed with Ms. Carway on June 20, 2019.

12Ms. Collin complains that the material was delivered in dribs and drabs. Some of it arrived on July 19, 2019 when her office was closed, and the rest arrived on Monday July 22, 2019.

13Ms. Cushon advised the court that there were problems delivering the documents by email (as was permitted by the June 20th order). The first time she tried to deliver the material there was an error message that the attachment was too large. She divided the material into two and then four parts to ensure it reached the recipient. At one point, she was not aware that there was an error message but as soon as she learned this, she re-sent the material.

14Ms. Cushon argues that the cross-motion should be heard and that it would not be in SHB’s best interests to prevent Ms. Carway from having her material before the court. There is evidence that significant efforts were made to ensure the material was delivered as ordered. Disallowing the cross-motion based on a transmission error would be inequitable and unrealistic.

15I agree with Ms. Cushon that the evidence supports a finding that all efforts were made to ensure that the material was served in accordance with the June 20, 2019 order. As for the cross-motion, much of that material relates to asking for a dismissal of Mr. Barrs’ motions. The rest of the cross motion deals with incidents of access and a request for summer/vacation access. Based on Ms. Carway’s responding material to the June 20, 2018 motion, none of these issues come as a surprise.

16The cross-motion and supporting material of the Respondent is therefore accepted and will be relied upon by this court.

THE REQUEST FOR A FINDING OF CONTEMPT

17Mr. Barrs seeks an order finding Ms. Carway in contempt of the October 18, 2018 order on the following grounds:

a. She has failed to pay proper child support. Current arrears total $8,485.

b. She has failed to pay the costs order from October 18, 2018 which has now been outstanding for almost a year.

c. She has failed to exercise the access on Wednesday evening since the October 2018 order was made and failed to provide the proper notice of her intention to cancel.

d. She has picked up SHB after her golf lesson on only one occasion since October 2018.

18Mr. Barrs submits this is simply about money for Ms. Carrs. She seeks joint custody to reduce or vacate entirely her child support obligations. Her offers to provide some security for the payments of outstanding support and costs are vague and uncorroborated.

19Ms. Carway argues that she is not in contempt. Her arguments may be summarized as follows:

a. She owns a property in Collingwood with equity of over $100,000. This property is currently listed for sale and a copy of the listing agreement provided in her materials. She has offered to register a charge or sign an undertaking to secure the outstanding amounts. She has been unable to pay and recognizes the seriousness of her inability to comply with court orders, but her offers to become current are reasonable.

b. Ms. Carway points out that Mr. Barrs may be in contempt himself. For example, his counsel wrote to her counsel on three occasions since the June 20, 2019 order claiming that the order meant that the residential arrangement in the October 2018 order was at an end and that Ms. Carway was not entitled to access to SHB pending the return date.

c. Mr. Barrs has engaged in flagrant “gatekeeping,” arranging activities for SHB on Ms. Carway’s weekends which prevent her from seeing SHB or putting SHB in a loyalty bind as to whether she wants to engage in the activities arranged by her father or see her mother.

d. It is clear from the letters written by SHB to her mother from camp that she wants to see her mother. Ms. Carway deposed that when she tries to arrange time to see SHB, Mr. Barrs simply does not answer her texts and calls. He then blames her for not being interested or asking for time at the last minute.

Analysis

20The threshold for proving contempt is a high one based on quasi-criminal considerations. This is not a case for contempt. Ms. Carway is agreeable to securing her support and costs obligations against the impending sale of her Collingwood property. She is not taking the position that she will not or even that she cannot pay.

21As for the access issues, they are impossible to completely unravel in the context of this motion. Mr. Barrs says that Ms. Carway is irresponsible, does not care about SHB and does not schedule access because she is consumed by her own lifestyle and problems with addictions and inappropriate partners. He provides several examples of what he characterizes as her abusive behaviour towards SHB (which are not denied by Ms. Carway).

22SHB’s maternal grandmother, Jennifer Randles deposed that on March 3, 2019 she was in the car with SHB when a call came in on SHB’s phone from Ms. Carway. As SHB was listening to music through the car stereo on her phone, the call came in through the car and Ms. Randles was able to hear the conversation. During the call Ms. Carway was yelling at SHB, calling her a “fucking bitch” and screaming other obscenities at her. She then threatened to call the mother of one of SHB’s friends and tell her things about SHB such that the friend’s mother would never permit SHB to see her daughter again.

23Mr. Barr deposed that Ms. Carway has changed her phone number so that SHB could not reach her, threatened to give away all of SHB’s possessions if she did not come and live with her, was drunk when SHB visited her on Christmas Eve in 2018 and asked SHB and her grandmother to leave her home during a visit in June 2019. Mr. Barrs reminded the court that Ms. Carway’s parents have sworn in previous affidavits that she is bipolar, a drug addict and an alcoholic who refuses treatment.

24Ms. Carway does not deny that she has had problems with alcohol in the past and has sought treatment. She provided proof of the treatment in her materials. She was quite frank in admitting that after the October 2018 order she was depressed and trying to deal with the reality that her daughter would no longer be living with her. She felt manipulated by Mr. Barrs and sad.

25She submits, however, that she is a caring and loving parent whose efforts to see her daughter have been completely rebuked and stonewalled by the gatekeeping actions of Mr. Barrs. She has tried to see SHB on multiple occasions since last fall. Generally, the pattern is that Mr. Barrs will plan things for SHB on her weekends. Given the wording of the October 2018 order, Ms. Carway is bound to ensure that SHB attends those activities.

26Further, attempts to confirm visits with SHB are generally met with no response. Ms. Carway then resorts to dealing with SHB directly and is blamed for over involving SHB in parenting issues. Ms. Carway relies on certain text messages from SHB in which SHB is attempting to get “permission” from Mr. Barrs to see her mother. For example, texts from SHB to Ms. Carway attached as Exhibit “D” and to Ms. Carway’s affidavit sworn August 14, 2019 read as follows [reproduced without correction]:

I tried to talk to dad, after a bit of convincing he agreed to let me see you for a lunch or dinner in Burlington. Grandma will drop me off. Im sorry that’s all I could get from him, but hope hell allow more than just a dinner or lunch.

Hey mom….i tried to speak to dad about longer visitation because I really need to see you. Hes told me that due to youre late payments on child support, that the court stated that you have 0 visitation until the next scheduled court date on the 20th.

27Ms. Carway submits that these texts are distressing as they not only prove her allegation of gatekeeping but make it clear that Mr. Barrs is involving SHB in adult matters such as child support. This is directly in contravention of the terms of the October 18, 2018 order.

28Finally, Mr. Barrs and his counsel interpreted the June 20, 2018 endorsement to somehow mean that Ms. Carway was not to have any access to SHB because of her “persistent failure to exercise access.” As confirmed to Mr. Barrs on August 20, 2019, no such change was intended by this court. An order was made that the residential arrangements would remain the same until the return of the motion.

29Given all of the above, I do not find that any order for contempt can be made against Ms. Carway. Her failure to pay costs and child support can be reasonably dealt with given her offers of security on the sale of her Collingwood property. The issues related to time with SHB are contradictory. Each blames the other and each has corroboration of their position. It is this court’s view that both parties have failed to abide by the October 18, 2018 order. Candidly, that may be as a result of a lack of clarity in the order. That is an issue which can be easily remedied in the order resulting from these reasons.

THE MOTION TO STRIKE

30Mr. Barrs seeks to strike Ms. Carway’s Answer and Claim pursuant to rule 1(8)(c) of the Family Law Rules. He submits that Ms. Carway has knowingly submitted false affidavits and financial statements.

31Mr. Barrs refers to the following in support of his motion to strike:

a. Ms. Carway has sworn two Financial Statements in this proceeding thus far. In her Financial Statement sworn August 22, 2018 she did not disclose that she owned a property in Collingwood when the documentary evidence is clear that she did. Ms. Carway relied on that false Financial Statement for over a year until she swore her most recent one.

b. She claims to be an employee of Allure (the location where she works) yet Mr. Barrs has produced a partnership agreement between Ms. Carway and two other individuals.

c. Ms. Carway has never denied that she earns cash from Allure. This cash is not disclosed.

d. Ms. Carway purchased the Collingwood property as an income property but has not disclosed any rental income for that property.

e. Ms. Carway’s most recent Financial Statement sworn July 19, 2019 does disclose the Collingwood property but not any rental income.

f. Her most recent Financial Statement indicates that her income has gone up by 30% yet there is no explanation for this.

g. Ms. Carway says she has no ability to pay the ongoing support and outstanding costs order, yet she budgets $600 per month for vacation, pays $5,000 to rent a house in Oakville and leases a Range Rover for $1600 per month.

h. There is an issue concerning RRSPs as she received a rollover of $160,000 in June 2016 in full satisfaction of her spousal support claims. She claims to have fully depleted those RRSPs, yet they do not appear as part of her income in her Notices of Assessment.

i. Ms. Carway is in contempt as outlined above.

32Ms. Carway urges the court not to strike her pleadings. She has made a reasonable offer to deal with her outstanding child support and costs.

33Ms. Carway points out that striking her pleadings would affect SHB and her best interests. She points specifically to the communication between her and SHB while SHB was at camp this summer. Samples of SHB’s notes to her mother in July 2019 include the following:

Mommy… I miss you so much.

Are you coming to visitor’s day?

I miss you so much.

I can’t wait to see you.

I really miss you! Kisses & hugs xo xo xo

Hi mom! I miss you and the pups! Love you!!

Love you and miss you MUCH

How are you? Write to me… xo miss you lots!!

Miss you & write to me! Can you bring me a chocolate chip sandwich?

I miss you and I am doing fine. All my love.

34Mr. Barrs did not challenge the content of these notes or deny that they were SHB’s handwriting. It is clear from the notes that SHB craves contact with her mother.

35Mr. Barrs has conducted himself in a manner which creates concerns about his willingness to foster a meaningful relationship with SHB and her mother. The text referred to above in which SHB advises her mother that she is not permitted to see her due to her non-payment of child support is chilling. There is also Mr. Barrs’ interpretation of the June 20, 2019 order which resulted in an effective termination of access between Ms. Carway and SHB.

36Ms. Carway concedes that she has trouble managing money. She admits that she did not include her Collingwood property on her first financial statement. This was not a deliberate omission. She has worked very hard with her current counsel to ensure that her financial documents are accurate.

37As for the child support, her employer is now deducting payments from her regular salary. She is not attempting to avoid her obligations.

Analysis

38I agree with the Ontario Court of Appeal analysis in Purcaru v. Purcaru, 2010 ONCA 92 with respect to the striking of pleadings. That is, pleadings should only be struck in exceptional circumstances and where no other remedy would suffice. Trials should ideally proceed with both parties present and striking pleadings should therefore not be used to simply eliminate the adversary (see para 49).

39In Purcaru, the trial judge’s decision to strike the husband’s pleadings was upheld. However, this was because the trial judge found that that husband’s explanations of his breaches of court orders and failure to provide disclosure were not acceptable and that the husband had engaged in a “pattern of deception” based on his sophistication, manipulation and prevarication.

40I do not find that such circumstances exist in this matter. First, in Purcaru, the main issues were financial and did not relate to custody and access as they do here. Precluding Ms. Carway from participating in this litigation where there is some evidence that Mr. Barrs’ contentions about her disinterest in SHB are directly contradicted, cannot be ignored. The texts and notes from SHB are certainly telling and would indicate a significant disconnect between the parties’ positions.

41I find that Mr. Barrs’ motion to strike should be dismissed, primarily because it would deprive this court of valuable information about the child’s best interests.

42Further, I do not find that Ms. Carway has engaged in a “pattern of deception” as in Purcaru. She has conceded that she is not sophisticated when it comes to money. It appears she lives beyond her means, like many litigants in this court. She recognizes that she must pay child support and court ordered costs and has suggested a reasonable way in which to deal with her arrears. Her income is different now than it was when she swore her financial statement in 2018. I do not see that that should be a surprise. Most people’s incomes vary from year to year. In any event, the result is that she will be required to pay more child support. She did not quibble with this.

43The matter should proceed with both parties’ full participation as there are no circumstances which are sufficiently exceptional to merit the striking of Ms. Carway’s pleadings.

THE MOTION FOR SUMMARY JUDGMENT

44Mr. Barrs seeks summary judgement without trial pursuant to Rule 16 of the Family Law Rules. Specifically, he seeks sole custody of SHB, ongoing child support, s.7 expenses and retroactive support.

45Mr. Barrs alleges that summary judgment is appropriate in this case for the following reasons:

a. He has had actual temporary custody of SHB since August 2018 and court ordered custody since October 2018.

b. SHB’s relationship with her mother has deteriorated substantially since October 2018, she is no longer in regular contact with her mother and is unwilling to spend time with her.

c. SHB is a mature, intelligent child who can articulate what she wants and has clearly stated goals.

d. SHB is comfortable in her father’s home, where she lived the first six years of her life. She needs the love, attention and guidance of her father and benefits from regular access to her maternal grandparents, which her father facilitates.

e. Mr. Barrs encourages, supports and solely pays for SHB’s education at BSS as well as her many extra-curricular activities.

f. Mr. Barrs provides the regular medical care, dental care and therapy which she was not receiving when she was living with her mother.

g. Mr. Barrs encourages SHB’s social interaction with her friends from BSS, camp and in the neighbourhood.

h. Ms. Carway has addictions to alcohol and drugs. This has resulted in her making questionable choices concerning partners and engaging in unacceptable behaviour. After her breakup with her most recent partner “Josh”, she was charged with assault. The assault trial is pending in British Columbia.

i. Ms. Carway has engaged in abusive and negligent behaviour towards SHB including forcing her to leave her home, screaming obscenities at her and exposing her to intimate adult conversations and interactions.

46Ms. Carway seeks joint custody of SHB and a dismissal of the motion for summary judgment. She also seeks parenting time with SHB every weekend, additional time during school holidays, access to SHB’s school records and attending professionals, notice of and the ability to attend school and other significant events, and an order preventing Mr. Barrs from scheduling activities during her parenting time.

47Ms. Carway does not oppose SHB attending BSS for Grade 8. However, she submits that the parties agreed that SHB would attend the Cawthra School of the Arts commencing in Grade 9. Further, Ms. Carway cannot afford to contribute to the fees for BSS. They are well beyond her means.

48Mr. Barrs claims a contribution to s.7 expenses but has not made this claim in his application. In any event, the expenses are completely unreasonable and far beyond Ms. Carway’s means.

49Ms. Carway makes the following arguments as to why summary judgment is not appropriate in this case:

a. There is significant evidence that in fact SHB does want to see her more often and has a loving relationship with her. This directly contradicts the father’s evidence that SHB does not wish contact with her mother.

b. Mr. Barrs has engaged in gatekeeping and interference with Ms. Carway’s time with SHB in order to portray her as a disinterested mother. This is untrue and unsubstantiated.

c. Ms. Carway does not dispute that she has had problems with alcohol in the past and made some bad choices with respect to her partners. This does not mean she is not a loving and caring parent. She has engaged in treatment and has abided by the order not to consume alcohol before or during her parenting time.

d. SHB is 13 years old and a mature, intelligent young woman. Her voice has not been heard in this matter and it should be.

e. The parties parented cooperatively prior to August 2018 when SHB began spending more time with her father.

f. Ms. Carway agrees to pay Table support for SHB.

g. Ms. Carway is not in a position to make any contribution to s.7 expenses at this time.

h. As a result of the parties’ polarized positions on parenting and parenting time, there are triable issues which are not suitable for summary judgment.

Analysis

50I agree with Ms. Carway that this is not an appropriate matter for summary judgment. The main reason for this is the contradictory evidence related to SHB’s views and preferences. The OCL has turned down involvement in this matter on two occasions. Neither party sought an order for a s.30 assessment in their Notices of Motion. The court cannot determine custody on an interim motion where the views and preferences of this 13-year-old young woman have not been ascertained.

51I reject Mr. Barrs’ argument that he has had custody since August 2018. I was careful in my October 2018 order not to refer to either parent having “custody” but rather each having parenting time with SHB.

52There is also the issue of actual parenting time. The evidence presented by Ms. Carway in the form of texts and letters from SHB would substantiate that she wants more time with her mother. Mr. Barrs’ position is that she wants less or none at all. There is a triable issue as to the appropriate amount of parenting time for each parent based on SHB’s best interests, her own views and preferences and the maximum contact principle.

53As for child support, that is straightforward given Ms. Carway’s stated income of $130,000. The allegations of underreported or cash income must be dealt with on questioning and/or at trial.

54As for s.7 expenses, I am still unclear on Mr. Barrs’ position. He does not seek a contribution to either BSS tuition or camp fees. He asks that a set amount of $600 per month be added to the child support amount. He submits this is what Ms. Carway spends on vacation each month so surely she could use it for her daughter’s special expenses.

55The difficulty is that there is little evidence about the reasonableness or necessity of the expenses claimed. Ms. Carway is struggling to pay basic child support. Mr. Barrs appears to be financing SHB’s extraordinary expenses through his line of credit or RRSP withdrawals. It is clear that he simply could not afford them based on his income after expenses. Therefore, the question of the reasonableness of the expenses remains a triable issue assuming Mr. Barrs decides to actually amend his Application to claim them.

56The motion for summary judgment should therefore be dismissed.

ORDERS

57The applicant’s motion is dismissed.

58The respondent’s cross-motion is granted in part as follows:

a. Paragraphs 1, 2, 4, 5. 6 and 9 are allowed. The costs issue will be dealt with by written submissions and the level of costs will be dependent on Offers served and other factors.

b. Paragraphs 3 and 7 are dismissed.

59The parties shall have parenting time as follows:

a. SHB shall reside with the Applicant at all times other than as set out below.

b. SHB shall reside with the Respondent each Sunday from 10:00 a.m. to Monday morning school drop off commencing Sunday September 8, 2019. SHB shall be returned to school on Tuesday mornings on long weekends. The Respondent shall ensure that SHB is picked up and dropped off on time. If the Respondent returns SHB to school on Monday or Tuesday morning late on more than three occasions, the Applicant may move to change the access schedule.

c. The Respondent shall have a summer vacation period with SHB from August 26, 2019 at 10:00 a.m. to August 30, 2019 at 8:00 p.m. Pick up and drop off shall take place at the Oakdale Golf Club. During this vacation period, the Respondent and SHB may travel outside of Ontario but not outside of Canada.

d. The Applicant shall not plan activities for SHB during any of the Respondent’s parenting time.

e. The Respondent’s parenting time does not need to be confirmed with the Applicant. It is court ordered and will take place as set out herein.

60SHB shall attend BSS for the 2019/2020 academic year.

61The Respondent shall pay child support for SHB in the amount of $1,146 per month based on her income of $130,000 per year commencing August 1, 2019.

62The Respondent’s current arrears of child support and the costs order resulting from the October 20, 2018 order shall be secured by a charge against her property located at 2 Lett Avenue, Collingwood, Ontario. The Respondent shall pay for the cost of the preparation and registration of the charge. The Respondent shall continue to list the Collingwood property for sale until sold. Upon the sale of the property the accumulated child support arrears and costs shall be paid out from the sale proceeds, with interest, after the payment of all prior encumbrances.

63The Respondent shall not be required to contribute to s.7 expenses for SHB at this time.

64The Applicant is given leave to amend his pleadings to seek a contribution to s. 7 expenses.

65The parties shall schedule at date for Settlement/Trial Management Conference within the next two months. The issue of a Voice of the Child report or Section 30 assessment shall be discussed at that Conference as well as parenting time over the December school holiday.

66The parties shall provide written submissions on costs starting with the Respondent. Costs submissions shall not exceed two pages in length exclusive of any Bill of Costs or Offer to Settle. Costs are due on a seven-day turnaround starting from the date of the release of these reasons and shall be forwarded to the family law assistant at Patrizia.generali@ontario.ca.

C. Gilmore, J.