COURT FILE NO.: FC-17-1138
DATE: 2019/01/24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sean Alexander Smith, Applicant
-and-
Brittany Ann Reynolds, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Applicant representing himself
Respondent representing herself
HEARD: January 24, 2019
ENDORSEMENT
[1] This matter was before me on January 11, 2019. At that time, Ms. Reynolds’ counsel, Mr. Bluteau, advised that he had obtained a motion date of February 26, 2019 for Ms. Reynolds’ motion to vary Mr. Smith’s access under the interim order dated March 29, 2018. I expedited this motion and ordered it be heard on January 24, 2019, at 10 a.m. Two hours were set aside for hearing this motion.
[2] This is the motion that is supposed to be before me today. In addition, Mr. Smith’s request for additional access due to Ms. Reynolds’ denial of access from October 21, 2018 up to the resumption of access that took place January 13, 2019, was also to be considered. This is expressly referenced in the transcript from the January 11, 2019 proceedings, at page 38 lines 26 to 31, a copy of which has been provided to both parties pursuant my January 11, 2019 ruling.
[3] My endorsement dated January 14, 2019 also ordered Ms. Reynolds to pay costs to Mr. Smith fixed in the amount of $1,000, and to provide proof to the court, prior to the hearing of her motion on January 24, 2019, that she had paid both those costs as well as the costs of $500 ordered against her on November 1, 2018.
Material before me on January 11, 2019
[4] Both parties are in attendance today. Mr. Bluteau is not. Ms. Reynolds has provided the court with a Notice of Change in Representation dated January 24, 2019 in which she advises that she will be representing herself. Mr. Bluteau is no longer retained. Ms. Reynolds advises the court today that she intends to retain new counsel as soon as possible and seeks time to do so.
[5] Mr. Smith has filed a confirmation form for today’s motion, a factum and an affidavit. Mr. Bluteau, when he was retained on behalf of Ms. Reynolds, did not file a confirmation form for today’s motion nor a factum.
[6] Ms. Reynolds’ motion material to obtain the February 26, 2019 date has also not been filed in the Continuing Record. Her requisition for this motion (for two hours) is filed in the court file, along with a copy of her Notice of Motion dated December 28, 2018 and her affidavit sworn December 28, 2018. The affidavit in the court file is not complete as it refers to nine exhibits, only one of which is attached and which is not commissioned.
[7] When Mr. Bluteau was retained, he sent an email to the judicial assistant on January 14, 2019. Mr. Bluteau did not send this email with Mr. Smith’s consent nor copy Mr. Smith on his email. Mr. Bluteau was advised of Rule 1.09 of the Rules of Civil Procedure[^1], which states:
1.09 When a proceeding is pending before the court, no party to the proceeding and no party’s lawyer shall communicate about the proceeding with a judge, master or case management master out of court, directly or indirectly, unless,
(a) all the parties consent, in advance, to the out-of-court communication; or
(b) the court directs otherwise. O. Reg. 132/04, s. 2; O. Reg. 438/08, s. 66.
[8] Mr. Bluteau’s email of January 14, 2019 was an improper communication to the court and is therefore not before me.
Issues re Mr. Smith’s Recognizance
[9] In the material filed by Mr. Smith, Mr. Bluteau raised issues regarding the terms of Mr. Smith’s recognizance of bail. I have been provided with a copy of Mr. Smith’s recognizance of bail, which was updated on December 19, 2018. This recognizance provides, among other terms, that Mr. Smith is prohibited from contacting or communicating in any way either directly or indirectly, by any physical, electronic or other means, with Ms. Reynolds except
a. pursuant to a family court order made after December 19, 2018,
b. in the presence of or through legal counsel,
c. for service of family court materials through a third party process server.
[10] Mr. Smith has filed, as exhibits to his affidavits, copies of communications with Mr. Bluteau that took place after the January 11, 2019 motion. Despite Mr. Bluteau agreeing on January 11, 2019 that he would accept service of any court documents in these proceedings on behalf of Ms. Reynolds, on January 12, 2019 Mr. Bluteau took the position that any communications from Mr. Smith to Mr. Bluteau constitute a breach of Mr. Smith’s recognizance of bail, apparently because Mr. Bluteau sees them as indirect communications with Ms. Reynolds that are not done through counsel or pursuant to a family court order. Mr. Bluteau has gone so far as to allege that Mr. Smith’s conduct constitutes criminal harassment and intimidation. These complaints are on top of Mr. Bluteau’s previous allegations that Mr. Smith, in bringing his motion to seek to compel Ms. Reynolds to comply with the existing court orders, is tampering with witnesses. Mr. Bluteau appears to have taken the position that Mr. Smith’s attendance in court on January 11, 2019 and his continued participation in this proceeding without a lawyer constitutes a breach of his recognizance because it constitutes indirect communication with Ms. Reynolds.
[11] Mr. Bluteau also appears to have blocked Mr. Smith’s emails completely. Mr. Smith disagrees with Mr. Bluteau’s interpretation of the recognizance terms, but was forced to have his criminal lawyer communicate with Mr. Bluteau on his behalf.
[12] Mr. Smith has provided me with copies of correspondence from his lawyer to Mr. Bluteau, as well as correspondence from the Crown, Mr. Holmes, to Mr. Bluteau advising that they do not agree with Mr. Bluteau’s view that Mr. Smith was in breach of the recognizance.
[13] It seems to me that Mr. Smith’s communications through Mr. Bluteau constitute communications through legal counsel, which is permitted under the recognizance. This appears to be Mr. Holmes’ view as well. It also seems to me that I previously ordered, on January 11, 2019 and on Mr. Bluteau’s consent, that Mr. Smith may serve Ms. Reynolds with any court documents in this proceeding, including documents that require personal service such as contempt motions, by serving Mr. Bluteau. That order makes Mr. Smiths’ service of documents on Mr. Bluteau, which Mr. Bluteau has apparently rejected, permitted under the recognizance.
[14] Ms. Reynolds is now self-represented, although she intends this to be temporary. She also refuses to provide, in her notice of change, the address for where she is now living. I advised Ms. Reynolds that without deciding the issue of whether her address is required to be provided, the court needs contact information for her, and Mr. Smith needs to be able to communicate with her, and serve documents upon her, related to the family law proceeding, which include information for access transfers and other information related to Mason’s best interests such as information on his general welfare, including reasonable information for access visits. Ms. Reynolds agreed to Mr. Smith communicating with her father, Gregory Reynolds (who was also present in court today) by email at gregr66@hotmail.com. Ms. Reynolds also agreed to service of court documents on her care of her mother, Carol Reynolds and she will indicate this address in her notice of change. The orders below address these issues.
[15] Given Mr. Smith’s recognizance allows for Mr. Smith to communicate with Ms. Reynolds, Carol Reynolds and Gregory Reynolds if done pursuant to a family court order, I make the following interim orders:
a. If Ms. Reynolds is represented by counsel in this proceeding, Mr. Smith may serve Ms. Reynolds with any court documents in this proceeding, including documents that require personal service such as contempt motions, by serving her counsel of record in these proceedings.
b. If Ms. Reynolds is self-represented in this proceedings, Mr. Smith may serve Ms. Reynolds with any court documents in this proceeding, including documents that require personal service such as contempt motions, by serving Ms. Reynolds by courier, mail, third party or process server care of the address stipulated in her notice of change filed with the court, which is now c/o Carol Reynolds, 333 Aldgate Cr., Nepean, ON, K2J 2C8.
c. If Ms. Reynolds is represented by counsel in this proceeding, Mr. Smith may communicate with Ms. Reynolds to arrange access with Mason by communicating through Ms. Reynolds’ counsel of record in these proceedings.
d. If Ms. Reynolds is self-represented in this proceedings, Mr. Smith may communicate with Ms. Reynolds to arrange access with Mason, including to communicate information for access transfers and other reasonable information related to Mason’s general welfare relevant to access visits by communicating through and with Mr. Gregory Reynolds by email at gregr66@hotmail.com.
e. If Ms. Reynolds is represented by counsel in this proceeding, Mr. Smith may communicate with Ms. Reynolds with respect to any other matter in this family court proceedings, including custody and access issues, and information for access transfers and other information related to Mason’s best interests such as information on his general welfare, including reasonable information for access visits, by communicating through Ms. Reynolds’ counsel of record in these proceedings.
f. If Ms. Reynolds is self-represented in this proceedings, Mr. Smith may communicate with Ms. Reynolds with respect to any other matter in this family court proceedings, including custody and access issues, other information related to Mason’s best interests such as information on his general welfare, by communicating with Ms. Reynolds directly in writing.
g. Mr. Smith may participate in this family court proceeding without being required to retain counsel (if he chooses to do so) by, for example, preparing, serving and filing court documents, attending court appearances, and generally complying with the Family Law Rules[^2].
h. For access transfers, if Ms. Reynolds is not transporting the child to the transfer location, she will have her father, Gregory Reynolds, or her mother, Carol Reynolds, act as the third party to transfer the child. If she is using a different third party to transfer the child, she will advise Mr. Smith of the identity of this person through her father, Mr. Gregory Reynolds, by email. If Ms. Reynolds is represented by counsel in these proceedings, this communication to be done through her counsel of record in these proceedings.
Access Motion
[16] Mr. Bluteau did advise Mr. Smith by email dated January 12, 2019 that Ms. Reynolds will be complying with the court ordered access and that she no longer intends to seek an interim variation of that access. Ms. Reynolds has not, however, filed a notice of withdrawal of her motion to vary the interim access nor otherwise communicated with the court, in a proper manner, that the motion is withdrawn.
[17] Which leaves us with this – Mr. Smith expected this motion to proceed today as directed in my January 11, 2019 ruling, and that this would include his request for additional access to make up for the interruption in his access due to Ms. Reynolds’ non-compliance with previous orders. Ms. Reynolds’ former counsel has advised Mr. Smith that she is not proceeding with her motion to vary the interim access but has not filed a formal withdrawal nor communicated this to the court.
[18] The Family Law Rules expressly provide for how a motion will be withdrawn – see Rules 14(16) and 12. These require that a notice of withdrawal in the required form be served and filed, and that the party who withdraws the motion pay the costs of the other party in relation to the withdrawn motion. This raises two problems – one being that a formal withdrawal has not been served and filed; and two being Ms. Reynolds’ obligation to pay the costs of her withdrawn motion to vary, which was originally served on October 18, 2018 to be heard on November 1, 2018, then put over to December 13, 2018, and then scheduled for today.
[19] The second issue is Mr. Smith’s request for additional access that was to be considered at the same time as Ms. Reynolds’ motion to vary the interim access. Even though Mr. Bluteau advised, on behalf of Ms. Reynolds, that she does not wish to proceed with her motion, Mr. Smith wants to proceed with his request for additional access. Mr. Smith’s confirmation form for today’s motion confirms that he is seeking make up access for the lost access time.
[20] But Ms. Reynolds wishes time to retain new counsel and I will provide her with time to do so. I will adjourn this matter to February 26, 2019 at 10 a.m., which is a date already set aside for this matter. At that date, the following issues will be addressed:
a. Mr. Smith’s request for additional access time to make up for the interruption in his access from October 21, 2018 to January 13, 2019 (Both parties also agree that access did not take place on Friday, January 18, 2019 as ordered December 24, 2018). Both parties should file affidavit evidence in accordance with the Family Law Rules that includes their position and evidence with respect to the best interests of the child and the issue of whether make up access time should be ordered, and a proposed schedule, if any, for such make up time;
b. The costs of Ms. Reynolds interim motion to vary the interim access given that her counsel, Mr. Bluteau, when retained, advised that she was no longer proceeding with this motion; and
c. Whether a further order should be made due to the failure of Ms. Reynolds to comply with the court ordered access after the December 24, 2018 order.
[21] Costs of today are reserved to February 26, 2019.
[22] I also add my comments from today’s hearing that both parties in a court proceeding are required, whether represented by counsel or not, to inform themselves of the Family Law Rules and to abide by these. Both parties are also required, whether represented by counsel or not, to inform themselves of the previous rulings made in this matter and the material filed with the court. Ms. Reynolds may wish to do this by confirming with Mr. Bluteau that she has all of this material but she may also wish to review the court file.
[23] Ms. Reynolds should take immediate and urgent steps to retain new counsel as the hearing set for February 26, 2019 will not be delayed due to her not yet having retained counsel. I note Mr. Smith’s concern that Ms. Reynolds’ motivation in filing a notice of change at this last minute is to delay the adjudication of these issues. These concerns may be addressed before the court on February 26, 2019.
[24] Mr. Smith has raised that he received several communications from Mr. Bluteau purportedly on behalf of Ms. Reynolds last night and as early at approximately 3:30 a.m. this morning. Ms. Reynolds is aware of these communications but has not reviewed them. One of these communications appears to be Mr. Bluteau’s cost submissions on behalf of Ms. Reynolds for the December 24, 2018 order. Ms. Reynolds agreed that these submissions are made on her behalf and reflect her position on costs. It was agreed that Mr. Smith may disregard the other communications – if there are issues raised in those communications that need to be addressed by him, Ms. Reynolds should re submit those communications either through her lawyer or as otherwise directed in this order.
[25] If Ms. Reynolds does retain counsel, it may be appropriate for a party to schedule another case conference or settlement conference. This is available even if Ms. Reynolds does not retain counsel. A trial management conference will be scheduled by the court in advance of the September 2019 trial listing.
Justice P. MacEachern
Date: January 24, 2019
COURT FILE NO.: FC-17-1138
DATE: 2019/01/24
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Sean Alexander Smith, Applicant
-and-
Brittany Ann Reynolds, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Applicant representing himself
André Bluteau, for the Respondent
ENDORSEMENT
Justice P. MacEachern
Released: January 24, 2019
[^1]: R.R.O. 1990, Reg. 194
[^2]: O.Reg. 114/99 as am