Court File and Parties

COURT FILE NO.: 2890/14

DATE: 2019-11-05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sara Lindsay Mackie, Applicant

AND:

Stephen Erik Roy Crowther, Respondent

BEFORE: The Honourable Mr. Justice Pazaratz

COUNSEL: Ms. A. Katz, Counsel, for the Applicant

Mr. O. Ayoola, Counsel, for the Respondent

HEARD: November 5, 2019

ENDORSEMENT

[1] The facts of this case are simple and yet outrageous.

[2] There is a consent order dated October 21, 2015. It includes the parties sharing joint custody of nine year old Kelly, primary residence to the mother, with the father to have specified access including alternate weekends, every Tuesday, and alternate Thursdays.

[3] Kelly is actively involved in Hamilton Hawks Hockey. Both parties have encouraged it. She appears to really enjoy it.

[4] The parents were notified that two hockey tournaments have been arranged. One November 15 to 17, 2019. The second March 26 to 29, 2020. By coincidence the first falls on the Applicant mother’s weekend. The second falls on the Respondent father’s weekend. The mother confirmed to the father that this meant that each of them would be allowed to take the child to one of the tournaments on their respective weekends.

[5] However, the father took the position that he intended to take the child to the November 15 tournament in Windsor. He sent e-mails to this effect.

[6] I do not blame the father for sending ill-advised e-mails. He was wrong, but parents are allowed to be wrong.

[7] But incredibly, the father’s lawyer sent a letter to the Applicant’s counsel on October 21, 2019 which included the statement “Kindly advise your client that our client is taking the weekend of November 15-17 to take Kelly to her hockey tournament.”

[8] This morning, counsel advised that they have reached agreement that the mother will take the child to the November tournament in Windsor. That makes sense, because as I understand it, it was always her weekend and I have been presented with no evidence which would justify this ever having been in doubt.

[9] I was left with the issue of enforcement of this consent order. The mother worries that with the father’s unilateral action thus far, that he will exercise his Thursday access the day before the tournament and that he will not return the child. She wants a police enforcement clause.

[10] The father says there is no need for any enforcement clause because he had never threatened to take unilateral action, and that he can be trusted to respect the court order.

[11] The father’s affidavit sets out that he merely “requested” that he take the child. In my view this is quite disingenuous. The father didn’t “request.” His lawyer sent a letter announcing that this was the way it was going to be, take it or leave it. I noted to Mr. Ayoola that it is quite troubling that experienced counsel would send a letter which so openly and flagrantly shows contempt for an existing court order. Counsel can request that orders be changed. But when counsel unilaterally announce that their client is changing an order whether the other party likes it or not, counsel are exposing themselves (and their client) to enormous unwanted repercussions.

[12] I do not accept the Respondent’s suggestion that he was merely “requesting.” He was acting in a heavy-handed manner and this created needless anxiety for the child who should be allowed to enjoy hockey tournaments without worrying about related conflict between parents.

[13] I wish to make it clear to both of these parents that I am trying to send a very strong signal. Don’t engage in hard-ball tactics when it comes to parenting issues.

[14] I agree with the mother that she and the child both require an absolute assurance that there won’t be any more uncertainty or jeopardy with respect to the hockey tournament weekend. But I don’t agree that a police enforcement clause is the way to go.

a. If our goal is to protect children, why would we select an enforcement mechanism which will inevitably harm the child?

b. Police involvement in dynamic parenting disputes never helps. Nothing could be more upsetting for a child caught between waring parents than to have police officers descend on an already inflamed situation.

c. Children derive no benefit from witnessing their parents getting into trouble with the law. They perceive police as being there to deal with “bad guys.” No child wants to think of their parent as being a “bad guy.” And no parent should place a child in such an emotionally conflicted position.

d. If the objective is to prevent or discourage inappropriate parental behaviour, we must create sanctions which scare offending parents without scaring the child.

[15] In this case the mother has a simple concern, for which there is a simple solution. She’s afraid the father won’t return the child after his Thursday visit, thereby precluding her from taking the child for the weekend hockey tournament. Fortunately, the father was in court. He promised that he would return the child after his Thursday visit. I explained to him that I won’t issue a police enforcement order, but if he fails to return the child his access will automatically be suspended pending further order. Parents need to clearly understand that unilateral withholding of a child will have severe and immediate consequences.

[16] The order:

a. The Applicant mother shall be permitted to take the child Kelly to the hockey tournament in Windsor on the weekend of November 15 to 17, 2019.

b. If the Respondent does anything to interfere with any aspect of the mother taking the child to the tournament, the father’s access shall be completely suspended indefinitely pending further order, and the matter is to be returned to my attention.

c. The order is to be issued by court staff forthwith, approval as to form and content not being required.

[17] The Applicant seeks $3,000.00 costs which approaches full recovery. The Respondent’s counsel submits there should be no costs, or nothing more than $500.00.

[18] The Applicant submitted two offers to settle, which included various enforcement provisions which did not prevail. So, Rule 18(14) is not triggered. But Rule 18(16) and multiple Rule 24 provisions are highly relevant. The Respondent did not file any offers.

[19] This was basically a one-issue motion and the Applicant was completely successful. The Respondent’s behaviour was outrageous, and falls into the “high conflict” category that we strive to discourage in this building. We can’t have parents unilaterally changing important time sharing orders, and we can’t have lawyers sending intimidating letters.

[20] The Applicant was successful. She shouldn’t have had to go through any of this. The Respondent’s approach was ill-advised and his counsel’s letter was ill-advised.

[21] I have considered all of the objectives of the costs rules, with emphasis on the fundamental concepts of reasonableness and proportionality. This is one of those rare cases where full-indemnity costs is appropriate. The Applicant did everything possible to avoid litigation. The Respondent created and perpetuated the problem by insisting on something he was not entitled to, notwithstanding the needless anxiety and uncertainty this was creating for the child. And notwithstanding the needless litigation burden he was imposing on the custodial parent.

[22] Unreasonable parents need to understand that hard-ball tactics can backfire in a very expensive way.

[23] The Respondent shall pay to the Applicant $3,000.00 costs (plus HST) payable forthwith.

Pazaratz J.

Date: November 5, 2019