COURT FILE NO.: FS 16-4079
DATE: 2019/10/31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
K. M.
Applicant
– and –
M. M.
Respondent
J. Sinicrope, for the Applicant
No one appearing for the Respondent
HEARD: October 10, 2019
ELLIES J.
REASONS FOR DECISION
OVERVIEW
[1] K. M. moves for summary judgment with respect to his application for custody, pursuant to r. 16 of the Family Law Rules, O. Reg. 114/99.
[2] Following the hearing, I granted K. M. custody of the children and granted supervised access to M. M., for reasons to be delivered. These are my reasons.
FACTUAL BACKGROUND
[3] K. M. relies on two affidavits he swore in support of his motion. In addition, he relies upon an affidavit sworn on March 28, 2017 by Tammi McKenzie, a clinician engaged by the Office of the Children’s Lawyer, and the report she prepared at the court’s request attached to that affidavit (the “OCL Report”).
[4] M. M. has filed nothing in response to the motion for summary judgment, notwithstanding the fact that the motion was first returnable in June and was adjourned to October in order to await the disposition of criminal charges faced by K. M., to which I will make reference below.
[5] The OCL report contains information provided by both K. M. and M. M. In many respects, their information conflicts. Where it does, I prefer the information and the evidence of K. M. As I will explain, I have concluded that M. M. is not beyond counselling her own daughter to make false allegations against her father, which I view not only as an act relevant to M. M.’s ability as a parent, but also as an indication of her credibility as a source of information. Thus, the following facts are based mainly on the information and evidence of K. M.
[6] The parties met in 2003 or 2004 in Midland. M. M. had been involved in a relationship of approximately four years with another man. At the time that she met K. M., she was pursuing custody of her daughter, A. B. (now age 21), who had been in foster care for a period of approximately five years. K. M. had no children.
[7] The parties were married on August 25, 2007. They have two children from their relationship: C. D. (age 14), and E. F. (age 11). These children are the subject of this motion for summary judgment.
[8] K. M. and M. M. separated on June 30, 2016. As far as I know, M. M. now lives in Dresden. K. M. resides in North Bay. The children have been living with him since September 2016.
ANALYSIS
[9] Rule 16 of the Family Law Rules requires the court to grant summary judgment where there is no genuine issue requiring a trial. In order to make that determination, the rule permits the court to weigh evidence, evaluate credibility, and to make reasonable inferences.
[10] With respect to custody, s. 16(8) of the Divorce Act , R.S.C. 1985, c. 3, requires the court to consider “only the best interests of the child of the marriage as determined by reference to the conditions, means, needs and other circumstances of the child.” K. M. has also applied for custody under the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”). Section 24(2) of the CLRA is the companion to s. 16 (8) of the Divorce Act. However, s. 24(2) provides a more detailed list of the needs and circumstances which must be taken into account by the court in making a custody order. It has been held that s. 24(2) serves as a helpful guideline for determining the child’s best interest under s. 16 of the Divorce Act: T. (K.A.) v. T. (J.), [1989] O.J. No. 1963; 1989 CanLII 8818 (ON SC), 23 R.F.L. (3d) 214 (Ont. S.C.). While s. 24(2) sets out eight factors, I believe that they can be dealt with in three groups for the purposes of this case.
Love and Affection; Child’s Views and Preferences; Familial Relationships (s. 24(2)(a), (b) and (h))
[11] The parties are the natural parents of C. D. and E. F. However, according to the observations of Ms. McKenzie contained in the OCL report, the only child with any apparent affection for M. M. is E. F. According to Ms. McKenzie, the only feeling C. D. has for her mother is contempt.
[12] C. D. is adamant that she does not wish to live with M. M. The same seems true with respect to E. F. Although he was less forceful in expressing his opinion than C. D. was in expressing hers, E. F. told Ms. McKenzie that, while he missed his mom “a little” he “likes things the way they are”.
[13] On the other hand, both C. D. and E. F. have consistently demonstrated and expressed their love and affection for K. M. in the presence of Ms. McKenzie. This is not surprising, given some of the other evidence that I will refer to below.
Current and Proposed Home Environments (s. 24(2)(c) and (f))
[14] The parties separated in June 2016 when M. M. left the matrimonial home and moved to Wallaceburg, leaving A. B. and the other children in K. M.’s care. K. M. brought the children to visit with M. M. on the weekend of August 9, 2016. Shortly after he returned, on August 17, K. M. was arrested based on allegations by M. M. that he had physically and sexually assaulted her over the course of that weekend. As a result, M. M. regained custody of the children. On September 2, 2016, I made a temporary order that the children be returned to K. M. and granted him temporary custody of the children. However, the Chatham-Kent Police Service refused to enforce that order as a result of the criminal charges faced by K. M. at the time.
[15] On September 16, 2016, I made another temporary order. By that date, however, C. D. had made allegations of assault against A. B., who was residing with K. M. These allegations, as well as M. M.’s earlier allegations against K. M., were under investigation by the Children’s Aid Society (the “CAS”) and the police at the time. Therefore, I ordered that M. M.’s father, D. M., have custody of the children. I ordered that the children reside with D. M. and that K. M. and A. B. have only supervised access to them. As I did in the first order, I directed the police to assist in apprehending the children from M. M. This time, however, my order set out in a detailed preamble exactly why that order had been made. The Chatham-Kent police saw fit to assist in the execution of that order and Mr. M., Sr. took custody of the children on September 17, 2016. They have been in North Bay since then.
[16] By October 28, 2016, the CAS investigation into the allegations had concluded without any charges being laid and they had closed their file. Therefore, I varied my earlier order to grant custody to K. M. and supervised access to M. M. The children have been in K. M.’s custody ever since.
[17] When she left the matrimonial home for Wallaceburg, M. M. had not yet secured permanent accommodation. As of the date of the OCL report, she had left Wallaceburg to reside with a friend in Dresden. I have no evidence on the motion as to where she now resides.
[18] But for two events that have occurred since the parties separated, K. M.’s home situation has been stable.
[19] The first event was M. M.’s sudden departure from the matrimonial home. Notwithstanding the fact that their mother apparently wanted nothing to do with them, K. M. took the children down to Wallaceburg to visit with M. M. Of course, he might not have done that if he had known that M. M. was going to allege that he assaulted her while he was there. When he finally got the children back, K. M. was prepared to and did live with his father while his criminal charges were outstanding as a condition under which he was permitted to have temporary custody.
[20] The second event occurred recently. In July 2019, A. B. revealed that she had been sexually assaulted by D. M., who has admitted his guilt. Notwithstanding the shock of the allegations and the difficulty he had accepting that his father would do such a thing, K. M. acted immediately to protect A. B. Because of his actions, the Children's Aid Society wrote to tell K. M. that they were closing their file with respect to the allegations.
[21] Neither of these events were within K. M.’s control. The way he handled both of them shows his willingness to place the children's interests ahead of his own and reflects well on his ability as a parent to act in the children's best interests.
[22] As of the date of the OCL report, K. M. was residing with a partner whom he met in November 2016. His partner has three children, two of whom were adults and one of whom was a toddler at the time the report was prepared. There is no indication in the OCL report of any issues regarding K. M.’s home environment at the time it was prepared, nor is there any such evidence now.
Ability and Willingness of Each Parent to Provide the Child with Guidance, Education, Necessaries of Life and Special Needs of the Child; Plan Proposed for the Care of the Child; Ability as a Parent (s. 24(2)(d), (e), and (g))
[23] Both C. D. and E. F. have been identified as having special needs. E. F. has been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") and as being on the Autism Spectrum. C. D. struggles with Adjustment Disorder. K. M. has done a great deal to meet the children’s special needs. He works closely with school staff. The children are in the care of a pediatrician, Dr. Mutch. They are both taking medication for their difficulties. Both children have been accessing services at Hands. In addition, E. F. has been receiving assistance from Autism Canada. It is clear that K. M. is willing and able to provide for and care for these children.
[24] This is to be contrasted with M. M., who appears to be ready to put the children at risk in order to serve her own ends. M. M. made her allegations against K. M. at the time that the police were investigating an allegation by C. D. that she had been sexually assaulted by A. B. This turned out to be false. Not long after the allegation was made, C. D. reported that she had been counselled to make the allegation by M. M., who promised her that, if she did, she would get to see her father.
[25] After the children were returned to North Bay on September 17, 2016, M. M. made another complaint to the police. This time, she complained to the North Bay Police Service that K. M. had assaulted her physically and sexually throughout the course of their cohabitation, beginning in 2007. Unlike the first allegations made by M. M., however, these allegations did not result in a reversal of custody.
[26] All of the charges faced by K. M. have now been withdrawn by the Crown. However, they have left their mark. C. D. began cutting herself shortly after K. M. was charged for the second time.
[27] Of course, the fact that the charges were withdrawn does not necessarily mean that they were false. However, I view the timing of those allegations, made for the first time during a custody battle, as a good indication of their veracity. Moreover, based on C. D.’s admission, I have concluded that the allegations she made were false and I find that they were a result of M. M.’s counselling her to lie. This behaviour is relevant to M. M.’s ability to act as a parent. So, too, is the fact that M. M. has failed or refused to exercise access to the children since 2018 and to respond to K. M.’s motion for summary judgment.
CONCLUSION
[28] There is no genuine issue requiring a trial of K. M.’s application for custody. It is clear from the evidence adduced on the motion for summary judgment that the best interests of the children require that a final order be made that K. M. have custody of the children.
[29] Notwithstanding M. M.’s failure to respond to the motion for summary judgment, K. M. has asked that the court make an order granting her access at the Supervised Access Centre, which I also consider to be evidence of K. M.’s ability to put the interests of the children above his own. I have granted his request.
[30] K. M. has not asked for child support from M. M. However, he has asked for two ancillary orders relating to ongoing disclosure of M. M.’s income, which I have also granted.
COSTS
[31] K. M. seeks costs on a substantial indemnity basis in the amount of $64,034.48.
[32] As I understand it, K. M. seeks costs not just with respect to the motion, but for the entire application. However, this would not be appropriate. K. M. cannot claim costs for earlier steps in the proceeding with respect to which the issue of costs was not expressly reserved for determination at a later stage of the case: Islam v. Rahman, 2007 ONCA 622; N.S. v. R.M., 2019 ONSC 5386, at para. 44.
[33] Rule 24(10) of the Family Law Rules requires that costs be fixed after each step in a proceeding, or that they be expressly reserved for determination at a later stage in the case. This is what I did, for example, when I fixed costs at $500 for the motion that resulted in the October 28, 2016 order and made them payable to the successful party (“in the cause”) on M. M.’s motion for temporary custody. This is also what I did on December 23, 2016 after hearing M. M.’s motion for Christmas access when I ordered that no costs be paid, and on June 20, 2018 when I reserved the issue of costs on the first return date for this summary judgment motion. There were numerous other steps in this case that proceeded before other judges, with respect to which there is no endorsement as to costs. K. M. cannot now claim costs for those steps. The only costs that he can now claim are those related to the motion for summary judgment.
[34] During argument, Mr. Sinicrope conceded that costs on a substantial indemnity basis may not be appropriate. I agree. There is no reason to award costs on a substantial indemnity basis in this motion. Nor do I see M. M.’s failure to respond to the motion as a reason to increase the costs award on a partial indemnity basis. If anything, her failure to respond resulted in less work for Mr. Sinicrope, not more.
[35] Rule 24 of the Family Law Rules specifies many of the factors to be considered in making a costs award. In every case, the overarching goal of an award of costs is to ensure that a party is fairly and reasonably compensated for the costs of going to court.
[36] In my view, an award of costs in the amount of $7,500, all-inclusive, is a fair and reasonable amount, taking into account the factors set out in r. 24. In addition, K. M. is entitled to be paid the $500 for costs relating to the October 28, 2016 motion, as M. M.’s motion for temporary custody was dismissed on December 21, 2016. Therefore, M. M. shall pay costs to K. M. in the total amount of $8,000.
Ellies R.S.J.
Released: October 31, 2019
COURT FILE NO.: FS 16-4079
DATE: 20191010
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
K. M.
Applicant
– and –
M. M.
Respondent
REASONS FOR DECISION
Ellies, J.
Released: October 31, 2019