Court File and Parties

Court File No.: FS-15-400682 Date: 2019-01-24 Superior Court of Justice - Ontario

Re: E.T. And: L.D.

Before: J.T. Akbarali J.

Counsel: Martha McCarthy and Faria Marlatt for the applicant No one appearing for the respondent

Heard: January 18, 2019

Endorsement

Introduction

1I have recently been designated case management judge in this high conflict family litigation. The parties were to attend for their first case conference with me on January 18, 2019. Unfortunately, the respondent father did not attend. He first telephoned the court to advise he would be ten minutes late. He subsequently telephoned to advise he was not coming due to a family emergency. Attempts to contact him were unsuccessful; the phone number he has provided both the court and the mother appears to be out of service.

2Without the father’s attendance, nothing substantive could be accomplished at the case conference. As described below, I received some information from the mother about the current status of the children. In addition, the mother asked me to make a procedural order, which I also address below.

3However, the main purpose of this endorsement is to set out the background to this proceeding, and the framework that will govern its progression.

Background

4In setting out the background to this proceeding, I have had regard to the court file and the many endorsements and published reasons delivered in this proceeding, and the facts found therein.

5The parties married on May 14, 1992. They separated in February 2015. They have three sons: B, who will soon be 18, JL who is 13, and JT who is 11.

6Prior to their separation, the parties lived privileged lives. The children attended an exclusive independent school and participated in expensive, high-level sports. The mother, who trained as a lawyer, was a stay-at-home parent. The father worked, initially as a lawyer but then in various business ventures. The family enjoyed time at their vacation home.

7The mother commenced this application on February 11, 2015 seeking a divorce, spousal support, child support, and equalization of net family property. Immediately, the father involved the children in the dispute. On the day the father was served with the application, he read it aloud to the three children, who were then aged 13, 9 and 7.

8The matrimonial home was sold in May 2015, after which each party rented a home near each other.

9The parties entered into a closed mediation agreement on June 3, 2015 pursuant to which Dr. Irving acted as an agreed upon family mediator. Dr. Irving facilitated the conclusion of an agreed-upon parenting plan.

10On August 17, 2015, the parties entered into a Partial Separation Agreement that settled parenting, property and most equalization issues, save for one issue involving a Collingwood property. The Partial Separation Agreement provided for joint custody of the children, and equal time for the children with each parent.

11The Partial Separation Agreement set out terms for the payment of spousal support from August 17, 2015 until November 2015, with which the father complied. Subsequently, he paid support on a voluntary basis of $7,000 per month.

The Interim Support Motion

12The mother sought to regularize support payments. On November 22, 2016, Harvison-Young J. (as she then was) heard the mother’s motion for interim child and spousal support. In reasons dated January 13, 2017, Harvison-Young J. noted the parties’ “million dollar lifestyle”. The father’s income was a big issue on the motion. He claimed his income was $275,000 per annum while the mother claimed his income was about $1.8 million per annum.

13In the end, Harvison-Young J. imputed income to the father of $1.2 million. She awarded monthly interim child support of $17,631 for the three children and monthly interim spousal support of $9,376.

14In her reasons, Harvison-Young J. expressed concern about the father involving the children in the litigation. She referred to evidence that the father was telling the children that they may no longer be able to participate in their activities because of the mother’s litigation. She stated:

Denigrating the other parent and/or involving the children in the litigation exposes them to conflict and is well recognized as potentially damaging to children. At the very least, it is conduct that is not in their best interests. It can result in reassessment of custody determinations on the basis that our law recognizes that children generally benefit from strong relationships with both parents and that the conduct by one parent undermining the relationship of the children and the other parent may reflect an inability to put the children’s interests before their own.

15Harvison-Young J. went on to note that the father was furious with the mother for bringing the support motion. She stated that his conduct in involving the children in the litigation was “shocking and likely to be damaging to the children.” As a result of her concerns, she ordered that neither party discuss the litigation with the children, denigrate the other parent in front of the children or third parties, or permit others to do so.

16The father has failed to respect the orders of Harvison-Young J. He has paid no support to the mother and was over $500,000 in arrears in January 2017 according to an affidavit sworn by the mother at that time. This number has obviously grown significantly since then.

17The father also continued to involve the children in the dispute, including immediately after release of Harvison-Young J.’s decision. He shared the decision with B, and told the mother that JL and JT would read it soon. He also directed B to a newspaper article about the decision.

Court Resources Dedicated to More Motions and Timetabling

18The day before the release of Harvison-Young J.’s reasons, the mother brought another motion on an urgent basis seeking, among other things, payment of the children’s school tuition, as two children were not permitted to return to school until arrears of more than $100,000 were paid. That motion was resolved by interim minutes of settlement, subject to a further attendance to deal with costs. By the terms of those minutes, the parties made arrangements to contribute equally to discharge the debt then owing to the children’s school, and to list their property in Collingwood for sale. The parties also agreed to attend a one-day mediation. There were subsequent discussions about the proper timing for the mediation and the reattendance to deal with costs. Harvison-Young J. made herself available for several attendances and many conference calls to address these scheduling issues.

The Withdrawal of the Mediators

19Around the same time, the parties’ agreed-upon family mediator, Dr. Irving, withdrew from his role, noting Harvison-Young J.’s concerns about the children’s well-being. In his withdrawal letter, he expressed his view that the high conflict situation was no longer amenable to mediation. He recommended a parenting coordinator with arbitrational authority be appointed and recommended that both the parents and the children be referred to a family therapist for counselling.

20The mediation the parties had agreed to hold in the minutes of settlement before Harvison-Young J. took place before Philip Epstein on March 8, 2017 and April 12, 2017. On April 25, 2017, Mr. Epstein sent a message to the parties and their counsel expressing his regret that he was unable to help. He stated “I find the situation appalling and allowing the children to be used as pawns is not something I want to work with.”

21The next day, Mr. Epstein sent a further letter to the parents where he stated he tried to make it clear to the father that using the children’s school as an attempted lever was misdirected and not in the children’s best interests. I understand this to be a reference to the father explicitly tying ongoing payments for the children’s tuition to the question of the support payments to the mother. The record before me discloses that the father repeatedly told the children that they could not continue to attend their school because of their mother’s litigation, or at other times, due to her failure to make tuition payments.

22Mr. Epstein stated “It is entirely clear to me that even if I were to assume the mantle of parenting coordinator, my advice and directions would be ignored…I deeply regret what this must be doing to your children and I hope that my resignation is a wake up call for considerably better behaviour and a quickly negotiated settlement”.

The FRO Involvement

23In May 2017, due to the father’s non-compliance with Harvison-Young J.’s support order, the Family Responsibility Office got involved. The father received a letter from the FRO raising the possibility of enforcement, including the suspension of his driver’s licence. The father told B about the letter. B then told the mother that he could not go with her for parenting time until she withdrew “the licence thing”. B also told the mother that the father could not pay his rent because of her. He said he would not go to her home anymore unless she “dropped everything”.

The Ex Parte Motion to Prohibit the Father from Discussing the Mother’s Motions with the Children

24In June 2017, Ferguson J. heard an ex parte motion brought by the mother. The ex parte motion dealt with a motion she intended to bring on notice. However, she sought an ex parte order first, prohibiting the father from discussing the ex parte motion or the intended with notice motion with the children. Ferguson J. granted the mother’s ex parte motion.

The father’s lawyers get off the record.

25On July 11, 2017, the father’s lawyers moved to get off the record. The father opposed the motion. Hood J. found that there had been a complete breakdown in the relationship between the father and his counsel, and found that the lawyers were entitled to remove themselves as solicitors of record.

The Mother’s Motion Regarding Parenting Time and Therapy

26The mother’s motion, contemplated in Ferguson J.’s order, was heard on July 18, 2017 by Faieta J. He ordered that the father deliver the children to the mother by 5 p.m. that day so the mother could travel with the children on vacation. By that time, despite the parenting plan, the mother had not seen B for seven weeks. Faieta J. adjourned the balance of the motion, peremptory to the father, so that he could retain new counsel “out of an abundance of fairness”, noting that the father did not arrange for counsel to attend the hearing that day.

27Faieta J. continued the hearing of the mother’s motion on August 3, 2017. At that time, to deal with the alienation of the mother from the children by the father, he ordered that the parties and their children attend the Families Moving Forward Program offered by Dr. Barbara Jo Fidler on or before August 15, 2017.

28Faieta J.’s reasons were released about a week and a half later: 2017 ONSC 4870. I will not repeat his findings of fact in detail. They can be found in his endorsement. However, his findings of fact set out a terrible tale of children inappropriately involved in the conflict of their parents to such a degree that one can only conclude that the children are being damaged. Faieta J.’s reasons describe a broken relationship between the mother and the children, undermined by the father’s conduct. For example, Faieta J. described communications from JL to the mother like “Honestly mom. Go fuck urself”, “suck my dick” and “try me bitch”. He described text messages from B to the mother wherein B states he is “done with [her]” and purports to withdraw from parental control “effective right now”. He also described communications from B stating “Dad cannot battle u when it’s u against us. Me, [JL] and [JT].”

29In his analysis, Faieta J. found that it was in the best interests of the children to order the parents and the children to attend the Families Moving Forward program. In his reasons, Faieta J. seized himself of all conferences, motions and the trial of the action, except the settlement conference.

The Short Notice Ipad Motion

30On August 10, 2017, the father brought a motion on short notice for an order that the mother deliver an Ipad to B. The parties agreed to adjourn the motion to a date to be scheduled. They also agreed that the Ipad, which the mother brought to court, would be held in the custody of Philip Epstein until further order of the court. Faieta J. also ordered the parties to attend a settlement conference before Spiegel J. on August 23, 2017.

The Settlement Conferences before Spiegel J.

31The parties attended before Spiegel J. for a settlement conference on August 23 and August 28, 2017. In the result, the parties entered into minutes of settlement which provided for the re-enrollment of the children at their independent school for the 2017-2018 school year, with payment of the tuition fees and expenses to be made by the father. The agreement provides, among other things, that:

a. the mother will receive child support of $3,000, a significant step down from the Harvison-Young J. order, but without prejudice to either party’s position about the appropriate level of support;

b. the father will take all necessary steps within his control to ensure that a private information he had laid against the mother and her lawyer would not proceed. At the same time, the mother and her counsel will not to take any action against the father for laying the information;

c. the father will fund the children’s extraordinary expenses to the extent that he is able, and will not suggest to the children or the mother that the mother should pay or contribute to those items;

d. the parenting plan drafted by Dr. Irving will become a court order and the parents will comply with the plan, including by encouraging the children to follow the access schedule;

e. the family law litigation will, as a result of the minutes, go into abeyance. The mother will withdraw from the FRO until May 2018 (or earlier if certain conditions existed) and the orders of Harvison-Young J. and Faieta J. would not be enforced during this period. Moreover, arrears from the Harvison-Young J. order would cease accumulating from September 1, 2017 until 30 days after a planned reattendance before Spiegel J. in May 2018 or earlier;

f. the parties will address spousal support, adjusted child support and the next steps in the proceedings in May 2018 beginning with a reattendance before Spiegel J.

g. If the father fails to comply with the terms of the Minutes or if either parent fails to comply with the parenting plan, the litigation will be revived and the minutes will be inoperative. However, neither party will take any steps in the litigation until they attend a settlement conference with Spiegel J., unless Spiegel J. is unwilling or unable to act.

h. The parties will continue to participate in the intake process for the Families Moving Forward program. The father will cooperate, fully participate, and encourage the children to attend.

32Following issues with compliance with the minutes of settlement, the parties appear to have reattended before Spiegel J. in October 2017. She incorporated further partial minutes of settlement into an order dated October 5, 2017. These partial minutes of settlement provided that the father will pay 100% of the children’s s. 7 expenses and will not suggest to the children or the mother that the mother should pay or contribute to those items. This provision is largely duplicative of the provision in the minutes of settlement entered into in August 2017. These partial minutes of settlement also provide that the father will provide the mother with a cheque for $3000 for the support that was due in October 2017 – another obligation already set out in the August 2017 minutes. The settlement conference before Spiegel J. was adjourned to May 22, 2018.

The Mother’s Motion to Suspend Access

33On March 15, 2018, the mother moved, initially on an ex parte basis, for a suspension of the father’s access, among other relief. Faieta J. granted leave to the father to adduce viva voce evidence at the hearing. He issued an order temporarily suspending the father’s access. He also ordered that the children meet with him in his chambers to receive an explanation of his order from the court. He directed a long motion be held on March 26, 2018 in relation to whether his order of March 15, 2018 should be varied. He also sought a report from Jewish Family and Child Services.

34As described in Faieta J.’s reasons, 2018 ONSC 1897, subsequent to the minutes of settlement being executed in August 2017, the father (i) failed to pay support of $3000 per month, (ii) continued to use the children as pawns including by suggesting that they could not re-enroll at their school because of the mother’s failure to pay their tuition when, to his knowledge, she had neither the ability nor the responsibility to pay it, and she had in fact agreed to a drastic reduction in support to ensure the father paid the children’s tuition, (iii) did not comply with access arrangements stipulated by the parenting plan, (iv) continued to denigrate the mother in the presence of the children with a resulting negative effect on their view of their mother. As a result, B and JL were acting out against the mother. Faieta J.’s complete factual findings on these matters are set out in his endorsement. However, some of these include that the father sat the children down and told them that the mother had to pay for their school and was refusing to do so – the complete opposite of what the parties agreed to in the minutes of settlement. This behaviour is the same “appalling” behaviour noted by Mr. Epstein.

35Faieta J.’s reasons also describe the children’s refusal to participate in the Families Moving Forward program, noting that they told the mother they did not need “alienation therapy”. Linda Popielarczyk of the Families Moving Forward program stated in a letter that without the input from the children, it was not possible to formulate a therapeutic plan. She expressed that she was “extremely concerned about the emotional well-being” of the children from her review of the legal record. As a result, she determined her statutory obligations required her to consult with the appropriate child welfare authority.

36Faieta J.’s reasons also describe how, after he learned the mother’s motion was initially brought ex parte, he directed that notice by given, and that the motion be delivered to JFCS.

37Faieta J.’s reasons, beginning at para. 20, also describe the horrifying events that took place after the father learned of the motion. At the time the father was served with the materials, the mother had just left for a road trip to Montreal with the children. The father tracked her down at a busy intersection in Toronto. He partially blocked the intersection with his car, and began yelling and screaming, and sharing information about the mother’s motion with the children. The older two children also began yelling at their mother; the youngest one curled up into a ball in the car. B went with the father, and the trip had to be cancelled. The father showed up at the mother’s house later that day and took the younger two boys with him.

38Faieta J. thus concluded that it was in the children’s best interests to suspend the father’s access to them until the return of the motion. He asked for Ms. Popielarczyk to speak to the children’s views at the return date, and he also asked for the views of JFCS.

The Return of the Long Motion and the Father’s “Urgent” Motion for Access

39On March 26, 2017, the return date of the long motion, the father brought an urgent motion, essentially without notice, for an order allowing him access to B and for delivery to him of the files of the professionals involved with the family. The father relied on his own unsworn affidavit attaching an email from B stating that he was in a “tough spot” in relation to a school assignment. For that reason, the father sought urgent access to B, who the father acknowledged to be a student performing in the 95% range. However, according to the father, B’s education was at risk because of this single assignment. Faieta J. found this assessment of B’s situation to be a “self-serving exaggeration”. He wrote “the lack of judgment exhibited by [the father] in bringing this “urgent” motion on a few hours notice is remarkable.” He ordered costs to the mother of $1,500 and directed that the father may take no further step in this proceeding until the costs order is paid.

40The costs order remains unpaid.

41The long motion to determine whether the father’s access should remain suspended also proceeded on March 26, 2018. Faieta J. granted an order suspending the father’s access until further order of the court with reasons to follow. Those reasons were released on August 31, 2018 and also include reasons in respect of attendances on April 6, 2018, June 1, 2018 and June 8, 2018. However, in addition to his published reasons in respect of those attendances, he also released some handwritten endorsements.

Summer 2018: The Handwritten Endorsements

42In a handwritten endorsement dated June 1, 2018 Faieta J. granted the mother leave to file an amended application and adjourned the balance of the relief she sought to June 8, 2018. His endorsement notes that the father did not attend court that day. JFCS was in attendance and advised it would be in contact with the father and the children to discuss terms of the father’s parenting time to be reinstated. In his endorsement, Faieta J. encouraged the father to arrange his affairs to attend on June 8, 2018.

43Faieta J. also ordered that the father execute an irrevocable direction to current and any future counsel acting for him in an ongoing civil proceeding to the effect that any proceeds resulting from a settlement or judgment in that proceeding payable to the father or any corporation in which he has an interest shall be paid into court as security for any financial obligations owed by the father to the mother. He explained this order was necessary due to the father’s default in support obligations ordered by this court.

44Faieta J. released another endorsement on August 10, 2018 following a teleconference with the parties. The teleconference was the result of an email from the father to Faieta J.’s assistant, seeking urgent relief in the form of access to JL, as it was his birthday. JL’s birthday was hardly a surprise to the parties, but notwithstanding the late request for relief, and the fact that the father had been barred from seeking further relief until the $1,500 in costs was paid, Faieta J. made himself available for the teleconference. JFCS also attended the teleconference and advised they were supportive of a supervised visit that day. Faieta J. ordered that the father could meet with JL, if supervised by JFCS at their offices, for up to 1.5 hours that day. Despite the flurry of activity occasioned by the father’s last minute request, and the efforts of JFCS, the mother’s counsel and Faieta J. to accommodate the father’s request, the father did not arrange to see JL that day.

The August 31, 2018 Endorsement

(i) Mother’s Motion for Suspension of Father’s Access

45On August 31, 2018, Faieta J. published reasons relating to the attendances on March 26, April 6, June 1 and June 8, 2018: 2018 ONSC 5132. In those reasons, he noted evidence before the court from the therapist that the Families Moving Forward therapy was not appropriate for the family since both parents were not prepared to exercise parental authority to ensure the children’s participation. He reviewed an alternate therapeutic program, Family Bridges, where a practitioner works with the rejected parent and the children in an intensive way during a blackout period where the favoured parent does not have access to the children, with the objective of restoring contact between the children and the rejected parent.

46Faieta J. noted that the father provided no affidavit evidence, however Faieta J. allowed him to give viva voce testimony. The father deposed that the mother was lying and the children preferred to stay with him because they have had it with their desperate situation. It appears he accused the mother of having a Cluster B personality disorder.

47Faieta J. concluded that the evidence on the motion further supported his earlier conclusion that it was in the children’s best interests to suspend the father’s access. He suspended all access and communications between the father and the children except for contact on Sundays between 8 pm and 9 pm, which contact could take place by telephone, text message, email or social media sites. He directed the children to attend at the court to meet with him on March 29, 2018 to receive an explanation from the court.

(ii) Father’s Motion for Access for School Assignment

48Faieta J.’s reasons also addressed the motion he heard on April 6, 2018 being the father’s urgent motion for an order allowing him access to B due to his school assignment, which I have already referred to above.

(iii) Mother’s Motion for Temporary Sole Custody, Family Bridges Therapy and a No-Contact Period

49Faieta J.’s reasons also addressed a motion, returnable on May 11, 2018, as to certain matters and on June 1, 2018 as to matters involving a motion for temporary sole custody. The June 1, 2018 date was selected to facilitate the involvement of the father. Eventually the May 11, 2018 date was vacated.

50Faieta J.’s reasons describe the report from the JFCS dated April 20, 2018, wherein the JFCS explained that it strongly suspected that the children are at risk of future emotional harm, citing the father’s belief that he has been acting in the children’s best interest by being transparent with them when overtly undermining their mother’s parental authority, explaining the litigation process to them and involving them in the conflict. JFCS was concerned that the father did not fully comprehend the devastating impact this would have on the children and the family unit. JFCS determined that until the family engaged in therapy JFCS would need to remain involved. The JFCS concluded the children were in need of protection, but were safe with intervention due to Faieta J.’s order temporarily suspending access. JFCS indicated it did not wish to commence a protection application but it would do so if the parents’ behaviour did not change.

51While waiting for the return of this motion, JFCS delivered a further report, recording statements of JL suggesting he blames the mother for the difficult situation, and statements of B indicating that he needs his father. The JFCS report records the mother’s observations that during a seven week period when the children did not have contact with the father, they were affectionate with the mother and responsive to her requests. JFCS continued to recommend counselling for the entire family. It recommended that the children be assigned their own representation through the Office of the Children’s Lawyer, and that the children have regular access to their father, although not to the extent of a 50/50 time sharing arrangement.

52Faieta J.’s August 31, 2018 reasons address the motion heard on June 1, 2018. In this motion, the mother sought a temporary sole custody order and an order prohibiting all contact between the father and the children for a 90 day period from the commencement of the Family Bridges program. In evidence led on this motion, the mother deposed that the Sunday night phone calls between the father and the children had been completely destabilizing for B and JL. She related how the children spoke to their father in hushed voices and relayed her impression that the children were receiving direction from the father during the calls. She described JL becoming furious with her shortly after the call, swearing at her, coming to her room in the night and shining a flashlight in her eyes to keep her from sleeping. She also described an incident where JL had an outburst so upsetting to JT, that the mother had to tend to JT. While she was occupied with JT, JL trashed the kitchen, smashing bananas and avocados on the floor, pouring orange juice all over the kitchen and smashing the kettle. He then told her to “clean it up, slave”.

53The mother deposed as to her continued fear of the father’s behaviour and her belief that the father actively discouraged the children to participate in the Families Moving Forward program despite the court having ordered their participation. She also described her belief that restoring some access to the father would cause further harm to the children, given the father’s ungovernable conduct and his failure to abide by the parenting plan or any court order.

54Despite the date of this motion being chosen to facilitate the father’s attendance, he did not appear in person. Instead he delivered an irregular affidavit in which he alleged that the mother and Ms. Popielarczyk have been working covertly together, and that the police were investigating Ms. Popielarczyk. He also alleged that Ms. Popielarczyk’s report to JFCS was not made in good faith. Faieta J. adjourned the motion to June 8, 2018, and in his endorsement encouraged the father to attend.

55The father did not appear on the June 8, 2018 date either. Faieta J.’s reasons record that the father refused to meet with JFCS at his home, which led the JFCS to no longer support the re-establishment of his access with the children until they could view his home and he would affirm he would abide by the conditions of any parenting plan the court would impose.

56On June 8, 2018, Faieta J. received evidence from Ms. Vanbetleham of the Family Bridges program. She gave evidence about the program and the standard provisions that are typically required to ensure its efficacy, including temporary sole custody to the non-favoured parent, placing the children in the residential care of the non-favoured parent, ordering the family’s participation in the program, permitting the non-favoured parent to conceal the location of the intervention from the favoured parent to protect against intrusion, and a ninety day no contact period for the favoured parent and that parent’s friends, family and associates whose influence is likely to interfere with the children’s progress in effectively repairing the damaged relationship with the non-favoured parent.

57In his reasons, Faieta J. concluded that the father continues to disregard the court’s order that he not disparage the mother or discuss the litigation with the children. He found that all three children are impacted by the conflict. He concluded that the Family Bridges program was in the best interests of the children, and made the orders that Ms. Vanbetleham identified as standard to ensure the program’s efficacy.

58In his reasons, Faieta J. also unseized himself of all matters related to the proceeding.

The Father’s Urgent Parenting Motion and the Mother’s Motion for Leave to File an Amended Pleading

59Faieta J. delivered further reasons on October 16, 2018 relating to hearings on June 1, 2018 and August 15, 2018: 2018 ONSC 6094. Those reasons addressed two matters: an “urgent” motion brought by the father to vary the existing custody order with respect to B, and for an order appointed the OCL for B, and a 14B motion brought by the mother for leave to file an amended application dated October 27, 2016 and for an order that the father deliver to her some of the children’s things.

60The father’s urgent motion was designed to return B to his care following B’s return from summer camp. Faieta J. found that the father had not complied with r. 14(11) of the Family Law Rules, O. Reg. 114/99, in bringing his motion. He found that r. 14(12) did not apply to the motion. B’s return from summer camp was long known, and there was no reason for important matters respecting custody to be determined on an urgent basis without the opportunity for the mother to fully respond.

61With respect to the 14B motion, Faieta J. granted leave to file the amended application. He noted that many of the items the mother sought to have returned had been obtained from the father with the assistance of JFCS. He deferred the determination of the return of certain cellphones to another date to be brought back by the mother on notice to the father.

The Costs Endorsement

62On October 29, 2018, Faieta J. did a costs endorsement in respect of motions held March 15, 2018, March 26, 2018, June 1, 2018 and June 8, 2018 as well as the 14B motion dated May 10, 2018. The father provided no submissions on costs. Faieta J. found that the father’s behaviour had been unreasonable throughout and rises to the level of bad faith given his intention to inflict harm on the mother. He ordered costs of $69,419.86 to the applicant, and ordered the father to pay $4,485 to Ms. Popielarczyk.

Clarifications to the August 31, 2018 Order

63On November 20, 2018, Faieta J. issued a brief endorsement clarifying an apparent contradiction in his decision of August 31, 2018 that required the father to record telephone calls he has with the children during the no contact period. Faieta J. clarified that he ordered the recording to address potential breaches of the no contact order. He also addressed the return date of the long motion, which he adjusted to February 1, 2019 to allow the family to complete the Family Bridges program.

64Shortly thereafter, on December 6, 2018, Faieta J. issued a further variation of his August 31, 2018 reasons to continue the no contact order “until further order of the court”.

I am appointed case management judge.

65In early December 2018, Stevenson J. appointed me case management judge of this proceeding.

Father’s Motion to Set aside all of Faieta J.’s orders

66On December 14, 2018 I was made aware that the father had filed a short-served motion record for a motion returnable on December 20, 2018 seeking significant relief. He indicated that he wished to proceed only with his request that all of Faieta J.’s orders be set aside, and sought a long motion date for the return of the rest of the relief.

67I issued an endorsement noting, among other things, that the relief sought was not straightforward, the motion had not been conferenced as required by the rules, and the costs award of $1,500 remained unpaid and Faieta J. had ordered that the father not be entitled to further orders of the court until the costs award was paid. I also noted the “remarkable” lack of judgment Faieta J. found the father had displayed in bringing a previous motion.

68I reviewed the primary objective of the Family Law Rules and the duty of the court to manage cases in r. 2(5). I concluded that, in view of the history of the litigation and having regard to my inherent jurisdiction, the primary objective and my case management powers, it was appropriate that the motion not proceed on December 20, 2018. I directed that no party may bring a motion or an urgent motion without an endorsement from me granting leave, and I allowed the parties to write to me to seek leave if a motion was urgent. I also directed the parties to attend a case conference before me in January 2019.

69The following week the father sent me a 13 page letter with 57 pages of attachments. In his letter, he raised allegations of collusion, partiality and improper conduct involving Faieta J., Ms. Popielarczyk, the mother and her counsel. He sought an order that no custody or access orders apply to B, that the children be free to speak to him pending return of the matter to court, that the children be appointed lawyers, and that all orders be stayed pending further order of the court. He wanted the motion to set aside all orders to be scheduled and heard quickly. The father did not copy the mother’s counsel on the letter.

70Court staff responded on my behalf via email. In my response I advised that, going forward, I would not read or respond to correspondence from either party on which the other had not been copied. I indicated again that the matter required a case conference, and provided directions for the filing of the material, including that briefs had to be filed by January 14, 2019. I indicated that at the conference, then scheduled for January 16, 2019, I would require a status update on the Family Bridges program, the involvement, if any of JFCS, and I would address whether the OCL should be asked to provide legal representation for the children. I noted that the legal foundation for the orders the father seeks must be clarified. Finally, I directed the parties to provide me with materials respecting an appeal the father mentioned in his letter.

The Divisional Court: Motion to Extend Time to Appeal Faieta J.’s Orders

71Pursuant to my request, the mother filed a copy of materials that had been before the Divisional Court in November, 2018. The father had sought relief from the Divisional Court in a motion for an extension of time to appeal three interlocutory orders made by Faieta J. He also sought a stay of those orders, directions, and an order appointing a lawyer for the children. I have reviewed the father’s affidavit in support of his motion. It repeats the allegations of collusion, partiality and improper conduct that are made in correspondence to me.

72Sachs J. denied the father’s request to extend the time to appeal and found that as a result, there was no basis to stay the orders. She found that the other relief sought was not appropriate as part of a motion to extend the time for filing an appeal.

73Notably she concluded that the father had failed to satisfy the court of the merits of his proposed appeal from any of the orders in question. She found that there was no good reason to doubt the correctness of any of the orders in question.

74It appears that the father has, on ten separate occasions, attempted to stay or appeal some or all of the orders of Faieta J., including through Notices of Appeal, Notices of Motion for Leave to Appeal, Motions to Stay, and his motion originally returnable December 20, 2018. Some costs orders have resulted from these steps, including costs of $2,250 ordered following motions for leave to appeal that were dismissed for delay in the Divisional Court.

Conclusions

75From the foregoing history of this proceeding, I draw the following conclusions:

a. The father remains in breach of this court’s orders. Apart from two payments of $3,000, the father has paid no support in over two years. The costs orders remain unpaid. The father has involved the children in the litigation at every chance he has had, in breach of many orders of this court, and to their significant detriment.

b. The father appears to have little, if any, insight into his role in creating the conflict, or its traumatizing effect on the children.

c. The litigation to date has been acrimonious, consisting largely of motions, often urgent or short-served. Much of the “urgency” has been manufactured, in particular by the father. The usual process of conferencing motions before bringing them has been almost entirely abandoned.

d. A significant amount of court resources have been dedicated to this proceeding, with many judges stepping outside the usual processes to accommodate the needs of this family, and particularly the father, in no small measure due to the obvious concerns involving the children. However, despite tremendous judicial flexibility and attentiveness, little progress has been made.

76Going forward, it is imperative that this proceeding return to the framework of the Family Law Rules. Those rules have been developed with a view to implementing the primary objective and have a track record of successfully enabling even high-conflict family cases to proceed to an orderly, just, and efficient determination.

The Court’s Powers

77In addition to the standard application of the Family Law Rules, I believe it is necessary to impose additional requirements on the parties to bring some order to the chaos that is reigning in the parents’ and the children’s lives.

78To that end, it is worth recalling some of the guiding principles of the Family Law Rules, and the powers of a case management judge, as well as the court’s inherent jurisdiction.

79First, r. 2(2) of the Family Law Rules sets out the primary objective:

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

80Rule 2(3) describes what it means to deal with cases justly. It includes: (i) ensuring that the procedure is fair to all parties; (ii) saving expense and time; (iii) dealing with the case in ways that are appropriate to its importance and complexity; and (iv) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

81It should be apparent from my review of the history of this proceeding that while the court has repeatedly made accommodation to ensure the fairness of the procedure to all parties, in doing so, expense and time has not been saved. I am also of the view that this case has taken more than its appropriate share of court resources. The use of the court’s resources in this case must be managed in such a way as to take account to the needs of other cases and other litigants, whose concerns are also worthy of the court’s attention.

82Rule 2(4) requires the court to use the rules to promote the primary objective, and requires the parties and counsel to help the court promote the primary objective.

83Rule 2(5) describes the court’s duty to promote the primary objective by active management of cases. This 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.

84Rule 17 of the Family Law Rules addresses, among other things, the purposes of conferences and the orders a court can make on a conference. These include (b.1), if notice has been served, make a final order or any temporary order, including a number of enumerated temporary orders to facilitate the preservation of the rights of the parties, and (c), make an unopposed order or an order on consent.

85Rule 14(21) gives the court discretion to order that a party requires leave before a motion may be brought. It provides:

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.

86In Premi v. Khodeir, 2008 ONCA 313 at para. 2, the Court of Appeal stressed that depriving a litigant of the ordinary right to go to court is a serious restriction of a basic right. An order made under r. 14(21) thus requires careful consideration. Rule 14(21) has been used in cases where a party has “failed to participate in the court process properly, honestly, and in good faith”: Rubatto v. Sandoval, 2018 ONCJ 85 at para. 40.

87In Sandoval, 42, the court identified two factors necessary to satisfy the court that it should exercise its discretion to grant leave to a party to bring a motion: (i) the moving party must demonstrate that she has a prima facie case for the relief she intends to seek if leave is granted; (ii) the moving party must demonstrate that allowing the motion will not result in an abuse of process. Abuse of process concerns can be mitigated by limiting the scope of the motion for which leave is granted, by expediting the process and ordering that the moving party post security for costs. Abuse of process concerns must also be balanced against the interests of fairness and justice: paras. 42, 103-105.

88Also relevant is r. 1(8), which provides discretion to a judge where a party fails to obey an order to make “any order that it considers necessary for a just determination” of the proceeding, including:

a. an order for costs;

b. an order dismissing a claim;

c. an order striking out any application, answer, notice of motion, motion to change, response to a motion to change, financial statement, affidavit, or any other document filed by a party;

d. an order that all or part of a document that was required to be provided but was not, may not be used in the case;

e. if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

f. an order postponing the trial or any other step in the case; and on motion, a contempt order.

89The sanctions enumerated in r. 1(8) are not exhaustive. The plain wording of the rule supports the court’s ability to make any order it considers necessary where a party is in breach of a court order. For example, r. 1(8) is sufficiently broad to allow a court to grant a stay where necessary for a just determination of the case and where there has been wilful failure to follow the Rules: Lahey v. Gauthier, 2015 ONCJ 393 at para. 38. It is broad enough to allow an order to be made for the posting of security and the surrender of passports: Sadlier v. Carey, 2015 ONSC 3537 at para. 65.

90By r. 1(7.1), a court may make an order under r. 1(8) at any time during a case unless the Family Law Rules expressly provide otherwise.

91The power to strike out documents, including pleadings, may be exercised by a judge on a case conference, but an order striking documents must represent a reasonable exercise of the conference judge’s discretion in promoting the purpose of the Family Law Rules, to ensure fairness, save time and expense and give appropriate resources to the case: Burke v. Poitras, 2018 ONCA 1025 at para. 7. The utmost caution must be used before striking a party’s pleading as it relates to custody and access, since a full evidentiary record, including the participation of both parents, is generally required for the court to make a custody decision in the best interests of the children: para. 18. When a party is wilfully disobedient in failing to comply with obligations and court orders, such behaviour may ground a reasonable exercise of the court’s discretion under r. 1(8).

92The Family Law Rules set out the consequences if a pleading is struck, in r. 1(8.4):

a. The party is not entitled to any further notice of steps in the case (except service of the order);

b. The party is not entitled to participate in the case in any way;

c. The court may deal with the case in the party’s absence;

d. A date may be set for an uncontested trial of the case.

93The court also has the power to bring its own contempt motion, which must unfold in two stages: Scott v. Jolicoeur, 2015 ONSC 2058 at para. 17. As the court held in Bubis v. Jones, [2000 ONSC 22571] at para. 40, the inherent jurisdiction of the court to raise, on its own motion, the matter of contempt is not restricted to contempt in the face of the court but extends also to contempt ex facie where the latter arises in the context of the existing proceeding. However, as with a contempt motion brought by a party, the elements of the test for contempt must be met and the alleged contemnor must be afforded the same protection and procedural safeguards as an accused in a criminal proceeding, including the right to a hearing, the right to make full answer and defence, and the right not to be a compellable witness: Jackson v. Jackson, 2016 ONSC 3466 at paras. 49-55.

94The contempt power must be used cautiously and with great restraint. “It is typically reserved for cases involving defiant conduct that is at the most significant end of the spectrum, and where it appears to be the only reasonable means of sending a message to a litigant that court orders cannot be flaunted”. Caution is warranted, particularly in custody and access proceedings, where the tension between the need to uphold and protect the integrity of court orders can be difficult to reconcile with the importance of safeguarding the best interests of the children. “The complex emotional dynamics involved in family law disputes and the desirability of avoiding a further escalation of the conflict between the parties are additional factors that prompt a cautious approach to the use of contempt as an enforcement tool in family law proceedings”. Requesting a conference, moving to enforce the order and for costs, motions for directions or for make-up access and mediation are among the remedies that should be considered before bringing a contempt motion: Jackson, at paras. 56-57.

95However, the obligation to pursue alternatives to a contempt motion as a means of enforcing compliance with court orders only extends to other approaches that may be adequate to address the wrong. A pattern of non-compliance with court orders may support a finding that other alternative remedies would be inadequate to address the contemnor’s breach of the order. One act of disobedience may also be sufficient if the contemnor acts in a high-handed, wilful and arrogant manner, and shows no remorse or recognition that they acted improperly: Jackson at paras. 58.

96If a court finds a person in contempt of court, it may order imprisonment, a fine, or payment of an amount to another party as a penalty. It can order a person to do anything else the court decides is appropriate, or to not do what the court forbids. It can order a person to obey an order, and to pay costs in an amount decided by the court: r. 31(5).

The Process Going Forward

97The question is how these powers should be used at this stage in the proceeding to promote the just determination of this application on its merits.

98On December 14, 2018, I issued an endorsement that denied the parties the right to bring motions without leave and I prescribed some conditions to obtaining leave. In this endorsement I prescribe different conditions which replace the conditions in my endorsement of December 14, 2018.

99Having regard to the history of this application, the lack of conferencing, the near-constant state of chaos, the plethora of ex parte, short-served, and “urgent” motions, and the devastating effects that this high-conflict litigation is having on the children, I make the following orders which shall govern the process of this litigation going forward:

a. Except as modified herein, the parties must follow the Family Law Rules. They are not optional.

b. The parties shall not email the court nor write to me. If they wish to speak to me, they will seek a case conference.

c. I will hear all the case conferences in this proceeding. No case conference shall be brought on less than ten business days’ notice, and any date must be first cleared with the court office to ensure I am available to hear it.

d. Case conference briefs must be filed in accordance with the Rules. Briefs shall be no more than ten pages in length. Attachments are permitted but the parties shall not create attachments for the purpose of making further submissions or putting before me additional facts; rather attachments must be documents in support of facts alleged in the briefs, aids summarizing facts in the briefs, or proposed draft documents. Briefs must have left, right, top and bottom margins of at least 1 inch, font must be at least 12 point, and paragraphs must be at least 1.5 spacing. Court staff are directed not to accept any briefs that a party attempts to file late, or any brief that does not comply with the Family Law Rules or the directives set out in this paragraph. If a brief is accepted in error that does not meet these requirements, I will not read it.

e. No party shall bring or return a motion without leave granted by me or my designate at a case conference. I make this order under r. 14(21) due to the history of this litigation which has included the misuse of judicial resources. The father has failed to participate in the court process properly and in good faith. He has misused judicial resources, his conduct has increased the costs of this proceeding needlessly, many of his motions lacked merit, including his “urgent” motions seeking access on JT’s birthday, for B’s school assignment, and on B’s return from camp, and he has failed to respect court orders. These facts warrant the restriction of the normal right of a party to bring motions. At this juncture I make no such finding with respect to the mother’s conduct. However, in the context of the mother’s motions, the father has found ways to misuse judicial resources. It is necessary for the court to control its processes and ensure that appropriate court resources are devoted to this conflict while taking account of the need to give resources to other cases. Without requiring the parties to obtain leave of the court before bringing a motion, there is no reason to suppose the near-constant state of chaos will change, and it must. Nor is there reason to suppose court resources will not be misused in the future if the parties are left to their own devices.

f. A party seeking leave to bring a motion must include in their case conference brief a draft notice of motion setting out all the relief they intend to seek. If I or my designate grant leave to bring a motion, it shall be by way of endorsement attaching a copy of the notice of motion, amended if appropriate, for which leave is granted. The endorsement shall also prescribe directions for the motion, including a timetable and the materials that can be filed, including the length and formatting of documents. Parties can expect that, except in cases of urgency, all motions shall be brought on at least ten business days’ notice. Court staff shall not accept for filing any motion materials that do not comply in every respect with the Rules or with the endorsement granting leave.

g. Notwithstanding my direction in paragraph (c) above, a party may seek an urgent case conference for purposes of obtaining leave to bring an urgent motion or for another legitimate reason. To do so, the party seeking the urgent case conference shall deliver to the court the case conference brief on which they intend to rely at the urgent case conference, and in support of their request for leave to bring an urgent motion (if applicable). The brief must comply with the directions in paragraph (d) above. I or my designate shall review the case conference brief and determine if an urgent case conference shall be held. If I or my designate determines that an urgent case conference is not required, the case conference may proceed as a non-urgent conference in accordance with paragraph (c) above.

h. If the parties or either of them abuse the court’s processes with respect to case conferences, I will issue further directions to ensure the proper use of court resources.

i. Pursuant to the endorsement of Stevenson J. dated January 18, 2019, all motions in this matter will be heard by Diamond J. Any motion for which leave is granted shall be scheduled in accordance with paragraph (f) above, and on a date which the court confirms is available for Diamond J.

j. B will soon be 18 years old. The parties should expect that the court will not entertain motions with respect to B after his 18th birthday, given the court’s questionable authority over B at that time.

k. The father remains in serious breach of multiple court orders. Although I have the power to, among other things, strike his pleading or commence a contempt hearing on my own motion, I decline at this stage to take such drastic steps. However, until the father has paid the outstanding costs orders, commences making monthly support payments including some effort to retire support arrears and demonstrates respect for court orders dealing with his conduct towards the children – including respecting the current no contact order, and, when contact is re-established, ceasing to involve the children in the litigation – he shall not be entitled to seek any relief from this court. I caution the father that if he continues to flout court orders, I will consider whether it is appropriate to use the court’s other powers to compel his compliance.

The Case Conference Attendance

100Apart from my informing the mother about my intention to make the general directions noted above, in the father’s absence, there was little we were able to accomplish. The father’s case conference brief, filed for the conference, did not comply with the directions I set out in my correspondence in December 2018, so I did not accept it nor review it. I had only his letter from December 2018 which I had indicated in my correspondence I would treat as part of his case conference materials. In the circumstances, we could not discuss whether leave ought to be granted to the father to bring his intended motion. We could not discuss the father’s request that the OCL be asked to act as counsel to the children.

101I was able to receive an update from the mother about the immediate results of the Family Bridges program, which she reports to be positive. However, she also advised me about the ongoing nature of the program, which requires after care for her and the children, and separately for the father. She asks for an order that the father contact the after care specialist to arrange for his after care. In my view, this is not a substantive order, but, in view of Faieta J.’s order directing the family to participate in Family Bridges, it is an order implementing Faieta J.’s earlier, substantive, order. As a result, I order the father to contact Lourdes Geraldo at Lourdes.geraldo.email@gmail.com to arrange his after care.

102I urge the father to open his mind to the benefits of the Family Bridges program. Successful completion of the program, including respecting the no contact provision with the children during the after care, is a lifeline offered to this family to normalize the relationships between the children and the parents. Right now, there are three children who do not have a normal relationship with either parent. This is an entirely unacceptable situation. Ameliorating it requires the engagement of the father as well as the mother.

103The mother indicated she may wish to bring a motion for sanctions for the father’s continued breach of court orders, including his disrespect of the no contact provision currently in force. The mother also advised me that, although Faieta J.’s order obliged the father to pay half of the upfront costs of the program, he failed to do so, and the mother has had to pay all the costs. The mother may also wish to bring a motion that the father pay for the costs of the after-care of the Family Bridges program. These motions, and whether leave should be granted to bring them, can be addressed at the next case conference.

104I wish to make clear to the father that continued disrespect of the court’s orders may lead to significant sanctions. I have already laid out in this endorsement the kinds of powers the court has, including the punishments available for contempt. The mother could seek relief extending the no contact period until a full 90 days without contact has elapsed. She could seek to strike the father’s pleadings. In addition, there are more serious sanctions available.

105The history of this matter, as laid out above, demonstrates an ongoing disrespect of the father for the court’s orders. He should not assume this will continue to be tolerated – especially when compliance with the orders is necessary to address the serious harm that is coming to the children as a result of this conflict.

106The mother asked for costs of the case conference given the father’s non-attendance, and states he is often unable to attend court proceedings due to family emergencies. In the circumstances, I reserve costs of today to the next case conference. The father is advised to attend the conference with an affidavit, not to exceed two pages in length, with top, bottom, left and right margins of at least one inch, at least 12 point font, with double spaces between the paragraphs, and with exhibits if necessary, explaining the family emergency with appropriate back up documentation. I will address the appropriateness of costs after I have his evidence as to the reason for his non-attendance.

107On January 18, 2019, I adjourned the case conference to return before me on February 6, 2019 at 2:30 pm for two hours. Unfortunately, a scheduling issue has arisen that requires the conference to be rescheduled. The court office will be in contact with the parties to find a convenient, early date for the next conference. The parties may file conference briefs for that attendance in accordance with the guidelines set out herein.

108I note that, although Faieta J.’s endorsement of November 20, 2018 adjourns the long motion to February 1, 2019, there is no such motion currently booked, and, in any event, given the stage of the family’s progression through Family Bridges, it is not appropriate to return the long motion at that time. The scheduling of the long motion’s return can be addressed, if necessary, at the next case conference.

109Court staff were unable to reach the father on the telephone number he has provided. As I indicated in my handwritten endorsement on January 18, 2019, the father must forthwith provide his current phone number to the court and to the mother’s counsel.

J.T. Akbarali J.