Adam Edward Campbell v. Katie Campbell

COURT FILE NO.: FD1787/13-1

DATE: September 30, 2019

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Adam Edward Campbell, applicant

AND:

Katie Campbell, respondent

BEFORE: MITROW J.

COUNSEL: Peter D. Eberlie for the applicant

Katie Campbell in person

HEARD: September 18, 2019

ENDORSEMENT

INTRODUCTION

[1] This is a motion brought by the respondent mother for various relief, including limiting the applicant father’s contact with the child to supervised access. But first, however, some brief background.

[2] The parties are parents of a six-year old child, Chloe (sometimes referred to as “the child”). There has been constant litigation. The parenting issues are high conflict. After a lengthy trial, the judgment was released in July 2017 that provided for a parallel parenting regime, with each party to have equal time with the child. The trial judge required a parenting coordinator to be retained to assist in minimizing the conflict between the parents. The court file occupied approximately ten banker’s boxes.

[3] After some respite with the assistance of the parenting coordinator, the litigation has rekindled. On May 31, 2019, the applicant issued a motion to change. Shortly thereafter, the parenting coordinator quit. The applicant has brought two motions prior to a case conference. The applicant was not permitted to proceed with the first motion as there was no urgency and that motion was stayed until the case conference was held. The second motion was dismissed after the court found there was no urgency. Three days after the case conference, the respondent brought her motion, which is now before the court. The continuing record for the motion to change already has swelled to five volumes.

[4] The relief sought by the respondent, as set out in her handwritten notice of motion, is as follows:

That the parental access of the applicant be revoked & all parental rights (sic).

Sole custody to the respondent.

All access visits be with the applicant at Merrymount Children’s Centre be (sic) supervised. All out of country travel privileges be revoked for the applicant.

[5] In effect, the respondent seeks an order on an interlocutory basis that would, from the applicant’s perspective, represent a complete upheaval of the status quo contained in a final order, reducing the applicant from being a parent in a parallel parenting regime with equal time with the child to supervised access.

[6] For reasons that follow, the respondent’s motion is dismissed. The applicant had included a motion in his reply material, which also is dismissed but on a without prejudice basis for reasons explained below.

[7] However, that cannot end the matter. This court has an obligation to control runaway litigation and to impose necessary procedural constraints, while at the same time preserving each party’s right to pursue his or her claims for adjudication by the court. The order below contains a response to these concerns.

BACKGROUND

(A) Relevant Litigation History, including the Applicant’s two Motions Prior to a Case Conference

[8] It is necessary to provide some context to the respondent’s motion.

[9] The applicant’s first motion prior to a case conference came before me and, as indicated earlier, resulted in leave not being granted to proceed with the motion: see Campbell v. Campbell, 2019 ONSC 3695. The issue on that motion is summarized in paras. 2-3 and 18:

[2] On May 31, 2019, the applicant issued a motion to change, seeking variation of the final order in relation to some aspects of the existing parenting plan, including summer access, midweek exchanges and winter travel.

[3] The immediate issue before the court is the applicant’s separate motion for a temporary order that allows the applicant to take the child on a trip to Boston, Massachusetts over the upcoming Father’s Day weekend from Saturday, June 15, 2019 to Monday, June 17, 2019, and dispensing with a notarized travel consent from the respondent.

[18] In the present case, the applicant’s trip was during his parenting time and not during summer; there is nothing in the order specifically dealing with travel consents for trips during times other than summer.

[10] At paras. 7, the following is stated in Campbell v. Campbell, supra, regarding conflict:

[7] The extent and level of conflict is captured, in part, in para. 62 of McSorley J.’s extensive reasons for judgment totalling 84 pages:

[62] Everyone involved in this matter has acknowledged that this is a high conflict case. The conflict began during the marriage and continued throughout the separation, throughout the trial and afterwards. Before the trial there were approximately 18 motions brought by Mr. Campbell and 7 motions brought by the mother. Motions continued to be brought even after the parties were ordered to bring no further motions without leave. Motions were brought between the time the closing submissions were filed in December 2016 to May 2017 and continued to be brought after the final submissions were filed. The court mentions this, because ending the conflict is necessary for Chloe’s sake. The court’s order regarding parenting of Chloe has been crafted in an effort to end the need for the parents to communicate very often and to provide them with equal time with Chloe such that arguments become unnecessary. Without such an order, the court is very concerned that the conflict will continue indefinitely between the parties.

[11] McSorley J.’s reasons for judgment are reported at 2017 ONSC 3787 (“trial judgment”). The conflict between the parents started when the respondent was pregnant with Chloe, and the applicant moved out of the home just short of Chloe being four months of age (trial judgment, para. 63) reproduced below:

[63] The conflict began when Ms. Wentzell was pregnant with Chloe. The birth of the child and counselling did not alleviate the issue of mistrust and betrayal that the respondent had for the applicant, and Chloe was just short of four months old when Mr. Campbell moved out of the home. Initially, the parties seemed to be able to work out a visiting schedule for Mr. Campbell and he appeared content to leave the child in the care of her mother. Unfortunately, the initial working relationship came to a quick end within weeks of the separation.

[12] The trial judgment referred to a clinical investigation conducted by Morrison Reid. At para. 158 of the trial judgment, the court quoted from the clinical investigator’s report as to the perils of subjecting the child to parental conflict:

[158] Mr. Reid discussed the well-known effects of a child’s exposure to adult conflict stating:

It is now well known that exposure to adult conflict creates changes in a child’s developing brain that predisposes children to be anxious and have difficulties with emotional regulation. Adult conflict scares and worries children and activates what is commonly known as the fight or flight response. This occurs to help the child protect themselves from a threat or perceived stress. If this response is activated too many times by parent conflict, the child develops difficulty turning it off in the future. The result is chronically worried or anxious children. The impact is cumulative. Chloe is now a happy child but this may not continue if things do not change. At her age,2 Chloe will be developing emotional memory of the stress she is experiencing. Many parents and adults misunderstand children and assume because they are happy, smiling and playing, they are fine. Play is the language of young children. They will often look like they are coping well and they may not be.

[The footnote appearing at para. 158 of the trial judgment stated that the child was 29 ½ months old at the time of the report.]

[13] Unfortunately, the clinical investigator’s ominous warning as to the danger of Chloe being exposed to continued parental conflict was starting to manifest itself at the time that the applicant had commenced this motion to change. The parenting coordinator, Dr. Harris, was concerned about the “tremendous tension and conflict” being experienced by the child, as discussed in para. 23 in Campbell v. Campbell, supra:

[23] Dr. Harris also discussed bringing the child’s views into the decision-making process. However, Dr. Harris stated:

Unfortunately, Chloe was not comfortable sharing any information with her parents which speaks to the tremendous tension and conflict experienced by this young girl and is a significant concern for this PC.

[14] The applicant’s request to take the child to Boston during mid-June 2019 for the Father’s Day weekend was not prohibited by the final order. That order did not deal with a parent taking the child out of Canada during regular parenting time. The final order only dealt with travel and parental consents in the context of vacation travel during the summer months in July or August. The final order of McSorley J., as amended, dated July 19, 2017 (the “final order”) provided as follows at paras. 11 and 12:

11. THIS COURT ORDERS THAT during the summer school vacation in July and August of each year, each parent will be entitled to one 7 day vacation period with Chloe. The vacation period selected by each parent must be taken during one of the regular weeks that Chloe is in that parent’s care. The vacation period will take place from one Friday to the next Friday, with the exchanges as set out above. During the one week vacation period, the mid-week visit with the other parent will be suspended.

12. THIS COURT ORDERS THAT if the parent who has Chloe for a 7 day vacation period set out in 11 above and intends to travel with her out of the country, notice will be provided 30 days prior to the trip to the other parent. A consent to travel letter will be provided by the non-travelling parent and Chloe’s health card and passport will be provided to the travelling parent.

[15] There was similar discussion as to travel provisions in Campbell v. Campbell, supra, at paras. 17-18.

[16] The second motion brought by the applicant before a case conference came on before Henderson J. on July 24, 2019. In his endorsement, Henderson J. described the applicant as essentially asking to dispense with the respondent’s consent for the applicant to travel to the United States with the child during the applicant’s vacation week commencing Friday, July 26, 2019.

[17] This proposal for vacation time fell squarely within paras. 11 and 12 of the final order. I pause to note that the respondent had a positive obligation to provide the travel consent. The order was not worded so as to require the respondent to consent to the proposed out of country vacation.

[18] Although the respondent had not provided the travel letter, and although Henderson J. found that the applicant had complied with the notice terms and found that there was merit to the applicant’s argument, Henderson J. nevertheless considered the prior history of this case and dismissed the motion on the basis that it was prior to a case conference and there was no urgency.

[19] It should be noted that, following the applicant’s first motion, I made a supplementary order dated June 18, 2019 that included the following: “Subject to submissions by the parties, and any further order of this court, I remain seized of all conferences, motions and steps in this motion to change proceeding.”

(B) The Respondent’s Motion

[20] Due to my non-availability, Henderson J. heard the applicant’s second motion on July 24, 2019, and for the same reason, the respondent’s current motion initially was placed before Korpan J. on August 9, 2019, three days following the case conference.

[21] It is significant that the respondent’s motion before Korpan J. on August 9, 2019 was characterized by the respondent as an emergency and was brought ex parte. Korpan J. ordered that the motion material, her endorsement and the issued order be served immediately on the applicant and his counsel. Korpan J. then adjourned the motion to August 14, 2019 before herself, and also ordered that, until further order, the applicant was not to remove the child from London, Ontario.

[22] By August 14, 2019, the applicant had been served and had filed an affidavit. On that date, Korpan J. vacated the order prohibiting the applicant from removing the child from London, Ontario and made a number of orders, primarily procedural in relation to the filing of material, including material on the respondent’s motion, and adjourned the motion to be heard before me.

[23] In her affidavit sworn August 9, 2019, that came before the court on an ex parte basis, the respondent deposed that the applicant had engaged in three attempts of “parental abduction.” This consisted of an attempt on June 14, 2019 to cross the border with the child at Buffalo, New York and another attempt to travel to the United States with the child departing from Billy Bishop Airport in Toronto, and the respondent alleged that the third abduction attempt occurred on July 29, 2019, when the applicant entered the United States with the child illegally via the St. Clair River on the applicant’s boat. The respondent characterized this attempt as a “successful parental abduction.”

[24] Duty of disclosure triggered by the respondent’s decision to proceed ex parte is discussed later in these reasons.

(C) The Respondent’s Motion and the Applicant’s Response – Relating to Occurrences in June 2019

[25] In his response, the applicant confirmed his attempt to take Chloe to Boston for the Father’s Day weekend. He deposed that on June 15, 2019 that he and Chloe had tried to fly out of Billy Bishop Airport to Boston but were not allowed to board the plane because the applicant did not have Chloe’s passport. The applicant then drove with Chloe to the United States border crossing at Buffalo, New York. The applicant deposes that “we were flagged over” after crossing into the United States as Chloe’s Nexus card was noticed to be inactive. The applicant admits that he previously had received a message from the respondent through “Our Family Wizard” that the respondent had cancelled Chloe’s Nexus card.

[26] The applicant’s naïve explanation that he did not believe that the respondent actually had cancelled Chloe’s Nexus card (despite her message to that effect) is quite unbelievable. Much more likely, I find, is that the applicant “rolled the dice” and thought that he and Chloe could gain entry into the United States, notwithstanding the cancelled Nexus card and not having Chloe’s passport.

[27] The applicant deposes that at Buffalo, the United States border officers were sympathetic but that, when returning to Canada, Canadian border officers pulled them over and that Chloe “was questioned extensively” in the applicant’s presence by Canadian border officers. It was also the applicant’s evidence that Canadian border officers advised him that they had received information that the applicant was abducting Chloe. The applicant believes that this information came from the respondent.

[28] The respondent would have been quite aware that the applicant’s attempts to enter the United States had to do with his determination to travel with Chloe to Boston for the Father’s Day weekend. The applicant’s motion had been argued June 12, 2019, just several days prior to the expected departure date for Boston and the reasons were released the following day, June 13, 2019.

[29] Given that context, the respondent’s characterization of this planned trip as an abduction was inflammatory and misleading.

[30] As alluded to earlier, on a technical basis, the applicant was not contravening any order by attempting to travel with Chloe to the United States on the Father’s Day weekend during his regular parenting time with Chloe, nor was there any order requiring the respondent to consent to the trip.

[31] Having said that, however, it was clear that the applicant was determined not to be foiled by the court’s refusal to hear his motion. He remained determined that one way or another he was going to take Chloe to Boston for the Father’s Day weekend, despite not having Chloe’s passport and knowing that Chloe’s Nexus card was cancelled. His resolve appeared quite stalwart at the expense of acting prudently. The applicant encountered some bad luck at Billy Bishop Airport, so he decided to try to slip through the border crossing at Buffalo, New York.

[32] In doing so, the applicant gave no consideration as to the effect that this unpleasant experience may have on Chloe. The applicant deposed witnessing Chloe tell Canada border officers that she and her dad were going to Boston for whale watching and a concert but “we couldn’t go because my Mom cancelled my Nexus card.”

[33] There is not a hint of remorse in the applicant’s description of these events and he seems quite untroubled that his then almost six-year old daughter is blaming her “Mom” when forced to explain to border officers why she and her dad could not go to Boston.

[34] The applicant never should have subjected Chloe to the risk of crossing into the United States without Chloe’s passport and with a cancelled Nexus card. The applicant was aware, or should have been aware, of the likely possibility that entry into the United states would be denied. For Chloe, this experience immersed her squarely in the center of her parents’ conflict, resulting in Chloe now taking sides and blaming her mother, undoubtedly with her father’s tacit approval as he watched while she was “extensively questioned” by border officers.

[35] I find that the applicant displayed significant bad judgment in putting Chloe through this unfortunate experience and that his unreasonable conduct in so doing was inimical to Chloe’s best interests.

(D) The Respondent’s Motion and the Applicant’s Response – as it Relates to the Applicant’s Vacation Week starting July 26, 2019

[36] Regarding the applicant’s summer vacation planned for the week starting Friday, July 26, 2019, the applicant, after dismissal of his motion by Henderson J., nevertheless did spend time in the United States with Chloe. The applicant deposed that on July 29, 2019 that he travelled with Chloe “by water” and that he called in to United States border authorities.

[37] The applicant provided, in his first affidavit, the telephone number that he had used to call United States border authorities and, in a subsequent affidavit, he provided his cellphone record to verify the call. The respondent questioned the applicant’s veracity as to the telephone number. The cellphone record had a different area code, “312,” rather than “313” as set out in the applicant’s earlier affidavit. The actual seven-digit phone number was the same in the cellphone record and the affidavit; also, the cellphone record confirmed that the call was made on July 29, 2019 from Windsor to Detroit.

[38] The applicant denies that he was in the United States with Chloe illegally. The respondent, in a subsequent affidavit, deposes that the “call-in” number given by the applicant in his first affidavit is a “general information tourist number”; however, the respondent does not provide any reliable proof to corroborate that evidence.

[39] Each party appended exhibits to his or her affidavit from sources as to the requirements for a child to enter the United States. Setting aside the issue of admissibility, the applicant’s information from the internet, not a government source, indicated that a child age 15 and under is permitted to enter the United States with an original or a photocopy of the child’s birth certificate or citizenship card.

[40] The respondent deposed that she was not aware of where Chloe was from July 26, 2019 to August 2, 2019. However, the respondent ignores the applicant’s email dated July 17, 2019 through “Our Family Wizard” providing a description, although somewhat brief, as to his planned whereabouts with Chloe in the United States during his vacation week, including his expected dates of departure and return.

[41] Although the applicant deposes that he always had a copy of Chloe’s birth certificate, he fails to explain why that copy was insufficient at Billy Bishop Airport and at the border crossing at Buffalo, while apparently being sufficient to gain entry to the United States by boat.

[42] There is insufficient reliable evidence to make findings as to the legal documentary requirements for a minor child to enter the United States by boat where the child is accompanied only by one parent.

[43] On the evidentiary record as a whole, it is not possible to make a finding that the applicant was in the United States illegally with Chloe. However, I do remain suspicious as to whether the applicant did comply with all legal requirements to enter the United States with Chloe by boat. Also, there was no evidence to explain why the area code on the applicant’s phone record was different than the area code he had indicated in his initial affidavit.

[44] The respondent’s complaint that she did not consent to the applicant taking Chloe to the United States during his vacation week has little merit. The order does not require the applicant to obtain the respondent’s consent. Further, the respondent was obligated to provide the travel letter once notified of the trip, which she failed to do. On this latter point, it is the respondent who did not comply with the order.

[45] The respondent’s characterization of this trip as a successful abduction attempt is specious.

DISCUSSION

(A) The Applicant’s Request to Dismiss the Respondent’s Motion on Procedural Grounds

[46] The order of Korpan J. dated August 14, 2019 required the respondent to file an amended response to motion to change. This was necessary because the respondent had asserted only child support claims in her response. The respondent admitted during argument that she had failed to meet the court-ordered deadline to file her amended response, but that she had eventually filed it.

[47] The applicant submitted that he cannot be sure that court documents filed by the respondent in the continuing record are the same ones that he was served with; indeed, during argument, it appeared that the amended response that was eventually served on the applicant’s counsel was different than the amended response filed in the continuing record.

[48] Also relevant is that, in her amended response, the respondent sought sole custody of the child and an order that the applicant’s regular access schedule should consist of alternate weekends, and limited to London, Ontario.

[49] It is apparent that the interim relief sought by the respondent in her motion – supervised access – is significantly more restrictive than she has pleaded in her amended response to motion to change.

[50] It is trite that pleadings define the issues and that a litigant cannot not seek a temporary order that falls outside the ambit of that litigant’s pleadings.

[51] Relying on the foregoing non-compliance as to service of the amended response and the state of the respondent’s pleadings, the applicant submits that the respondent’s motion should be dismissed on those procedural grounds.

[52] While there is some merit to the applicant’s submission, I decline to dismiss the respondent’s motion on procedural grounds. In my view, it is in the interests of justice to deal with the respondent’s motion on its merits.

(B) Consideration of the Respondent’s Motion on its Merits

[53] As discussed previously, the respondent’s motion was brought ex parte. The Court of Appeal for Ontario, in a family law case, has made clear that an ex parte motion is to be used only in exigent circumstances, that the party bringing the motion must make full and fair disclosure of all material facts, including facts that may not be helpful to that party, that an ex parte order obtained without full and fair disclosure may be set aside even if the lack of full disclosure was unintended, and that the foregoing principles, well known to lawyers, apply equally to self-represented parties: see M.(A.) v. M.(J.), 2016 ONCA 644, at paras. 26-30, reproduced below:

ANALYSIS

Issue 1: Did the appeal judge err by upholding the trial judge's finding that the father obtained an unlawful status quo on the ex parte motion?

(1) Ex Parte Orders

26 Rule 14(12)(c) of the Family Law Rules, O. Reg. 114/99, allows a motion to be brought without notice if "there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences." If an ex parte order is made, under rule 14(14) that order must contain a requirement that the matter come back to court, if possible before the same judge, within 14 days or on a date chosen by the court. And under rule 14(15), an order made without notice must be served immediately on all parties affected, together with all documents used on the motion, unless the court orders otherwise.

27 These rules are consistent with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for other civil matters. An ex parte order is intended to be used only in exigent situations where the delay required to serve the motion would probably have serious consequences, or where the giving of notice by the service itself would probably have serious consequences. A judge hearing an ex parte motion who is not satisfied of the probability of those consequences will decide that the motion cannot proceed ex parte and order that notice be given.

28 Where a motion is brought without notice, the person bringing the motion must make full and fair disclosure of all material facts (rule 39(6) of the Rules of Civil Procedure), including facts that may not be helpful to that party's position. An ex parte order that is obtained without full and fair disclosure, even if the lack of full disclosure was unintended, is subject to being set aside. See for example, Rinaldi v. Rinaldi, 2013 ONSC 7368(Ont. S.C.J.).

29 Notice and the opportunity to be heard are basic tenets of our justice system. Ex parte orders are therefore made only in very limited circumstances. The requirement for full and frank disclosure is essential to allow a court to fairly make a temporary order that will affect the rights of another person in an emergency situation where the court has not heard both sides of the story.

30 That requirement is well-known to lawyers. It applies equally to self-represented parties.

[54] The foregoing discussion in M.(A.) v. M.(J.), supra, also focusses on r. 14(12) of the Family Law Rules, O. Reg. 114/99, which deals with circumstances in which an ex parte motion may be brought. That rule makes clear that an ex parte motion is generally restricted to situations where there is immediate danger of a child’s removal from Ontario, or immediate danger to the health or safety of a child or the party making the motion and where, in those circumstances, any delay in serving the motion would probably have serious consequences. The respondent’s decision to proceed ex parte did not come within any of the circumstances itemized in r. 14(12).

[55] There was no basis for the respondent to proceed ex parte, as no exigent circumstances existed, especially considering that the motion was brought while the child was still in the respondent’s care. I find that the respondent failed in her duty to make full and fair disclosure of all material facts, and egregiously so.

[56] This is not the first time the respondent has attempted to proceed ex parte; she had done so in the previous case, trying to obtain an ex parte restraining order and was denied permission to proceed ex parte.

[57] The most likely reason that the respondent elected to proceed ex parte in the present case was to avoid making Mr. Eberlie and the applicant aware as to what she was up to.

[58] The respondent’s ex parte allegation of three child abduction attempts was extirpated quickly once the applicant filed his material.

[59] Although Korpan J. had adjourned the ex parte motion for five days to allow service, her order did require, pending the adjournment, that the applicant was not to take the child out of London, Ontario.

[60] The applicant deposes that he had plans that weekend to go with Chloe to his cottage near Windsor (something that he does regularly during the summer) and that arrangements had been made for other friends and their daughters, who are friends of Chloe, to visit them at the cottage. In addition, the applicant had scheduled a business meeting to take place at his cottage.

[61] As the order was made on a Friday, which was the start of the applicant’s week with Chloe, the applicant had to cancel his weekend plans to go to the cottage. There is nothing in the respondent’s affidavit filed with the ex parte motion advising the court that the applicant regularly spent his weekend time with Chloe at his cottage near Windsor.

[62] I am satisfied that the order requiring the child to remain in London, Ontario pending the adjournment would not have been made but for the respondent’s breach of her duty to provide full and fair disclosure of material facts.

[63] The applicant argues that he still should be allowed a “make-up” weekend visit. He submits that, although Chloe was with him on that weekend, he was not able to go to Windsor with Chloe as planned. He submits that the respondent’s conduct must merit a meaningful consequence.

[64] I agree. The order below provides for a make-up weekend but the make-up weekend is defined, rather than leaving it entirely to the applicant’s discretion.

[65] There being no merit to the respondent’s motion, it is dismissed.

(C) The Applicant’s Motion included in his Reply Material

[66] During argument, I declined to hear a new motion brought by the applicant, which was filed as part of his reply material. The main relief sought in that motion was an overnight make-up visit as a result of new events that had occurred on Chloe’s first day of school.

[67] The respondent did not have an opportunity to properly respond to this motion. Further, the applicant served and filed this motion in contravention of Korpan J.’s order dated August 14, 2019 prohibiting further motions.

[68] However, I did conduct a case conference regarding this motion in an attempt to assist the parties to reach a resolution of that matter.

[69] Accordingly, the applicant’s motion is dismissed but without prejudice to his right to renew the motion, as set out in the order, if the parties are unable to come to a resolution.

[70] I would note that the applicant’s motion also specifically requested a make-up weekend as a result of the court order made on August 9, 2019. This make-up weekend already has been allowed. It was dealt with, not on the basis of the applicant’s motion, but rather on the basis that it was a live issue resulting from the ex parte order and that Korpan J. specifically had included in her order dated August 14, 2019 that the issue of a make-up weekend was not dealt with by her.

(D) Striking the Respondent’s Case Conference Brief filed in the Continuing Record

[71] The respondent improperly has filed a voluminous case conference brief in the continuing record. The order below provides for that material to be expunged.

(E) Ancillary Procedural Orders

[72] My order on the case conference included an order reserving the right to make a further order regarding the management of this court file.

[73] Rule 1(7.2) provides a non-exhaustive list of orders that a court may make respecting procedural matters. Relevant to the present case is r. 1(7.2)(b):

1(7.2) For the purposes of promoting the primary objective of these rules as required under subrules 2 (4) and, particularly, (5), the court may make orders giving such directions or imposing such conditions respecting procedural matters as are just, including an order,

(b) limiting the number of affidavits that a party may file, or limiting the length of affidavits that a party may file (excluding any exhibits); …

[74] Regarding orders restricting a party’s ability to bring a motion, r. 14(21) provides as follows:

14(21) If a party tries to delay the case or add to its costs or in any other way to abuse the court’s process by making numerous motions without merit, the court may order the party not to make any other motions in the case without the court’s permission.

[75] I also include r. 2(2) to 2(5) inclusive in relation to the primary objective of dealing with a case justly:

PRIMARY OBJECTIVE

2(2) The primary objective of these rules is to enable the court to deal with cases justly.

DEALING WITH CASES JUSTLY

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

DUTY TO PROMOTE PRIMARY OBJECTIVE

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

DUTY TO MANAGE CASES

(5) The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

(b) encouraging and facilitating use of alternatives to the court process;

(c) helping the parties to settle all or part of the case;

(d) setting timetables or otherwise controlling the progress of the case;

(e) considering whether the likely benefits of taking a step justify the cost;

(f) dealing with as many aspects of the case as possible on the same occasion; and

(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.

[76] I find that the extensive nature of this high-conflict litigation summarized earlier merits the order made below that puts limits on motion material and requires a party to obtain leave prior to bringing a motion.

[77] The parties thus far have failed to employ a new parenting coordinator, as required by the final order and, accordingly, the order below requires the parties to comply with that provision. Pursuant to the court’s duty to promote the primary objective, the order below obligates the parties to make best efforts to engage in mediation pending the appointment of a new parenting coordinator: see r. 2(5)(b).

[78] Further, given the order at the case conference reserving the right to make further orders, the order below requires the parties to attend an intake appointment with a court-affiliated mediation service if the parties are unable to agree on a mediator: see r. 17(8)(b)(iii).

ORDER

[79] I make the following order:

1. The respondent’s motion at volume 4, tab 16, of the continuing record is dismissed.

2. The applicant’s motion at volume 5, tab 21, of the continuing record is dismissed but without prejudice to the applicant’s right to seek leave, as provided in paragraph 4 of this order, to bring a motion for a make-up overnight visit, as a result of events occurring on September 3, 2019.

3. Subject to paragraph 7 of this order, neither party shall bring any further motions unless he or she first obtains leave of the court as set out in paragraph 4 of this order.

4. The leave procedure shall be as follows:

(a) the moving party shall serve and file a form 14B motion setting out briefly the relief to be sought on the intended motion;

(b) if the material for the intended motion is expected to exceed the maximums provided in paragraph 5 of this order, then the leave motion may request an order to that effect;

(c) the form 14B motion shall specify a return date and shall be heard in court;

(d) no other material, by either party, may be filed on the leave motion, except as may be permitted by the court on the return date of the leave motion; and

(e) the leave motion shall be returnable before me.

5. The material to be served and filed on a motion is subject to the following limits:

(a) the moving party is limited to one affidavit, not to exceed five pages, with exhibits, if any, not to exceed five pages;

(b) the responding party is limited to one affidavit, not to exceed five pages, with exhibits, if any, not to exceed five pages;

(c) the moving party in reply is restricted to one affidavit, not to exceed two pages, with exhibits, if any, not to exceed two pages;

(d) all affidavits shall be typed and double-spaced; and

(e) the above limits are subject to any order made on the leave motion.

6. The parties shall comply with paragraphs 20 and 21 of the amended final order of McSorley J. dated July 19, 2017 in relation to retaining a new parenting coordinator.

7. Paragraph 3 of this order requiring a party to obtain leave to bring a motion does not apply in the following circumstances:

(a) a motion to appoint a parenting coordinator or a motion to seek the court’s direction regarding the appointment of a parenting coordinator; or

(b) a motion to deal with a party’s right to take the child on a vacation at any time during the current school year.

8. The failure to comply with paragraph 6 of this order (parenting coordinator) is a factor that the court may consider on any motion, including a leave motion pursuant to paragraph 3 of this order.

9. Pending the appointment of a new parenting coordinator, the following provisions shall apply:

(a) the parties shall make best efforts to agree on a mediator to assist the parties in resolving any ongoing parenting issues;

(b) if the parties are unable to agree on a mediator within two weeks of the date of this order, then both parties forthwith shall attend an intake meeting with the Family Court-affiliated mediation service in London, Ontario and each party shall provide proof to the other as soon as he or she has made the appointment and, again, as soon as he or she has attended the appointment; and

(c) failure to comply with this paragraph is a factor that the court may consider on any motion, including a leave motion pursuant to paragraph 3 of this order.

10. The material filed in volume 4, tab 15 of the continuing record, being the respondent’s case conference brief, is struck. The clerk shall remove all the contents of tab 15 and return same by regular mail to the respondent. The clerk shall note in the index that the contents of tab 15 have been struck and removed pursuant to this order.

11. The applicant shall have a weekend make-up visit from Friday, at the usual exchange time, until school time on Monday morning when the applicant shall take the child to school. This make-up visit shall occur on a weekend where the child is scheduled to be with the respondent. Unless the parties agree otherwise in writing, the make-up visit weekend shall be chosen by the applicant but it shall be either the first weekend or the second weekend that the child is scheduled to be with the respondent immediately following the October 2019 Thanksgiving weekend. The applicant shall provide at least 15 days written notice of his choice.

12. Subject to any further order, I continue to remain seized of all steps, motions and conferences in this case.

13. The parties may make written costs submissions within 4 weeks, to be forwarded to the trial coordinator, regarding the motions referred to in paragraphs 1 and 2 of this order. The costs submissions shall include the costs reserved by Korpan J. in her order dated August 14, 2019. The costs submissions shall not exceed two typed pages, double-spaced, plus copies of any bills of costs, time dockets, offers to settle and authorities.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: September 30, 2019