Court File and Parties

COURT FILE NO.: 1440/17

DATE: 2019-12-16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Zoltan Csizmazia, Applicant

AND:

Anita Csizmazia, Respondent

BEFORE: The Honourable Madam Justice L. Bale

COUNSEL: Mr. S. Heeley, Counsel, for the Applicant

Self-Represented Respondent

HEARD: December 13, 2019

ENDORSEMENT

Overview

[1] This matter came before me on a regular Friday motions list on December 13, 2019. The sole issue for determination was a Christmas access schedule for the child of the marriage. The Applicant father was the moving party. The Respondent mother filed no materials in response.

[2] I endorsed that there would be a Temporary Order to go in accordance with the proposed schedule contained within the Applicant’s Notice of Motion dated December 5, 2019, with reasons to follow. These are those reasons.

Preliminary Issues

Request for Adjournment

[3] At the outset of the motion, which commenced at approximately 2:45 p.m. in the afternoon, the Respondent mother made a verbal request for an adjournment of the motion. This was the first notice she gave to the Applicant father or the court that she was desirous of an adjournment. The basis for her requested adjournment was that she wished to retain counsel.

[4] I denied the mother’s request for an adjournment and proceeded to hear the Applicant’s motion. In making this decision, I relied upon the following facts:

a. The Applicant father first attempted to address the issue of division of Christmas holidays with the Respondent mother through formal correspondence and a written proposal sent by his counsel to the Respondent mother on November 8, 2019. The Respondent mother did not respond to this correspondence in any fashion.

b. On December 5, 2019, the Applicant father served and filed his Christmas access motion, returnable on December 13, 2019.

c. The Respondent mother did not serve or file responding materials.

d. The Respondent mother did not communicate with counsel for the Applicant father to request an adjournment.

e. The Applicant father filed a Form 14C: Confirmation of Motion form, in accordance with the requirements of the Family Law Rules. A copy was e-mailed to the Respondent mother. The confirmation indicated that the motion would proceed on the single issue of defining a Christmas time-share schedule.

f. The Respondent mother did not file a confirmation.

g. The Respondent mother has previously been represented by two separate senior family law counsel. She has been unrepresented since October 4, 2019. The Respondent mother has appeared before the court on two occasions since that time as a self-represented litigant (on November 29, 2019 and December 9, 2019).

h. The Respondent mother advises that she has made extensive efforts to retain counsel in this proceeding, either meeting with or contacting approximately 10 separate legal counsel; none have been willing to take on her file. She and her partner have been in contact with the National Self-Represented Litigants Project and she made reference to different services she has considered (e.g. Pro Bono and bundled services).

i. On December 9, 2019 the parties appeared before me on a long motion on a separate issue. I granted an adjournment of that motion at the Respondent mother’s request. The relief sought was serious in nature (i.e. a request to strike the Respondent mother’s pleadings for alleged non-compliance with court orders).

j. There are only five remaining business days before the child commences her Christmas holidays on December 20, 2019.

k. The Respondent mother does not have any consult appointments booked with any potential legal counsel during the week of December 16, 2019.

[5] This court has a positive obligation to promote the primary objective of the Family Law Rules; to deal with cases justly. Dealing with cases justly includes:

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

(b) saving expense and time;

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

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases: Family Law Rules, Rules 2.(2)-2.(4).

[6] The issue before the court is time-sensitive.

[7] The issue before the court is not complicated; it is the single issue of how to divide the child’s holidays for the two-week period she is not in school, commencing Friday December 20, 2019.

[8] The Affidavit material filed by the Applicant father was two pages in length, with two single attachments:

a. The one-page letter from the Applicant father’s counsel to the Respondent mother dated November 8, 2019; and,

b. The Temporary Order of Lafrenière J. dated December 21, 2018, which prescribed timesharing for the 2018 holiday season.

[9] Despite that the Respondent mother did not file any Affidavit materials in response to the Applicant father’s motion, the court gave her the opportunity to provide her evidence by way of viva voce testimony. The Applicant father was agreeable to this suggestion, despite that it would result in an element of procedural unfairness to him (i.e. he had notice of what evidence the Respondent mother might give). The Respondent mother did not request to file written Affidavit materials, and she declined the opportunity to provide viva voce evidence in court.

[10] This motion was reached at 2:45 p.m. The parties and counsel for the Applicant had been present at court, as required, since 10:00 a.m. The matter was the last on the docket and the court advised that the remainder of the day could be devoted to this matter (i.e. +2 hours).

[11] Regular motions in this jurisdiction are heard on Fridays. The motion docket on the last day of December before the holidays (i.e. this year, December 20, 2019) is notoriously busy.

[12] In my view, an adjournment of one week would have served no purpose. There was no indication before the court that the Respondent mother would be in a better position to argue the motion if a one-week adjournment were granted. The court’s obligation to promote the primary objective of the Family Law Rules was best met in the circumstances by proceeding to hear the motion.

Involvement of Mr. Fry

[13] Mr. Fry is the Respondent mother’s partner. He has attended in court with the Respondent mother on previous occasions, most recently before me on December 9, 2019. Mr. Fry made a verbal request, at the outset of this motion, to act as the Respondent mother’s agent. The Respondent did not provide notice of this request and did not file Affidavit materials as to why this might be required. Mr. Fry indicated that his involvement was necessary because: (1) the Respondent gets flustered when addressing the court, and (2) English is her second language.

[14] The Applicant father is opposed to Mr. Fry’s participation. His opposition can be summarized as follows: (1) he is directly involved in the high-conflict nature of the proceedings, (2) he is a potential witness in the proceedings, and (3) his involvement is disruptive in nature and is not helpful to the Respondent mother or the court.

[15] The Family Law Rules permit a party to: (1) act in person, (2) be represented by a lawyer, or (3) be represented by a person who is not a lawyer, but only if the court gives permission in advance: Rule 4(1). I declined to permit Mr. Fry the permission to represent the Respondent mother on this motion for a variety of reasons.

[16] First, the request for Mr. Fry to appear as the Respondent mother’s agent was brought without notice, and without any evidentiary foundation in support of the request. Mr. Fry asserted that the court’s experience with the parties previous in the week (re: the separate motion to strike) in and of itself was justification to permit him to speak on the Respondent mother’s behalf. I disagreed. The court’s experience with the Respondent mother did not demonstrate any special circumstance which caused the court concern over the Respondent mother’s ability to communicate her position effectively to the court. While it is obvious that English is not the first language of the Respondent mother, to this court’s observation she was able to understand and communicate effectively.

[17] Second, this court was not satisfied that Mr. Fry’s participation would be of assistance to the Respondent mother. On both occasions in court Mr. Fry had some difficulty in treating opposing counsel and the court with due courtesy and respect. His courtroom manner, tone and volume of his voice, facial expressions, and his body language and gesturing, at times, suggested emotional investment in the proceeding. This proceeding involves a high conflict dispute over the best interests of a child. I do not accept that Mr. Fry’s representation of the Respondent mother on this motion would have assisted the Respondent mother or the court in any meaningful way.

[18] Finally, I accept that Mr. Fry is a likely witness in the custody and access matters before the court. It is inappropriate that he be permitted to participate in these proceedings in this dual capacity.

[19] As a result of the above I did not permit Mr. Fry to speak as the Respondent mother’s agent on this motion. I did however permit Mr. Fry to remain at counsel table under the instruction that: (1) he was not a formal participant and could not address the court, (2) he could take notes for the Respondent, and (3) he could quietly address the Respondent mother at counsel table during the process. For the most part he was able to follow this instruction, with some lapses.

Background

[20] The parties were married on March 9, 2009 and separated on May 9, 2017.

[21] There is one child of the marriage, namely Zoey-Ann Csizmazia, born September 3, 2009. Zoey-Ann is now 10 years of age.

[22] The matter can properly be characterized as a high-conflict file. The parties have appeared before the court on multiple occasions.

[23] The division of holidays with Zoey-Ann since separation has been as follows:

a. In 2017 the child was with the Respondent mother on Christmas Eve and Christmas morning. Police intervention was required in relation to holiday access.

b. In 2018 a Christmas motion was commenced however a Consent was reached, which was incorporated into an Order of the court (Lafrenière J. Order dated December 21, 2018). The child was again with the Respondent mother on Christmas Eve and Christmas morning.

[24] As a result of a contested long motion heard before the Honourable Madam Justice C. Lafrenière in January 2019, the Applicant father and Respondent mother currently enjoy a shared parenting arrangement with Zoey-Ann, such that they spend equal time with her on a 2-day, 2-day, 3-day rotation. This arrangement has been in effect since approximately March 2019.

Positions on Motion

Position of the Father

[25] The Applicant father seeks an equal division of time over Zoey-Ann’s holidays from school. This year he seeks to have the child in his care on Christmas Eve and Christmas morning. He has proposed a division of holiday time as follows:

a. December 20, 2019 at 3:00 p.m. until December 25, 2019 at 3:00 p.m. with the Applicant;

b. December 25, 2019 at 3:00 p.m. until January 1, 2020 at 3:00 p.m. with the Respondent; and

c. January 1, 2020 at 3:00 p.m. until January 6, 2020 drop-off at school with the Applicant.

[26] He submits that he is somewhat flexible with the dates and times provided the end result is an approximate equal sharing and that this year Zoey-Ann enjoys Christmas Eve and Christmas morning in his home.

Position of Mother

[27] The Respondent mother does not object to the proposed division of time per se. Her objections instead focus on her belief that the child is not safe in the Applicant father’s care. She submits that the Applicant father’s time should be supervised and he should be required to produce a criminal background check in relation to his partner. Those motions are not before the court and the Respondent mother declined to provide any evidence in support of her assertions.

Analysis

[28] The issue of Christmas timesharing is an incident of custody and access governed by s. 16 of the Divorce Act. A determination of any incident of custody and access involves an analysis of the best interests of the child: s. 16.(8). In making an Order of this nature the court must give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child: s. 16.(10).

[29] Zoey-Ann currently enjoys equal time with both parents.

[30] Zoey-Ann’s holidays from school afford an additional opportunity to maximize her time with both parents.

[31] The Applicant father’s motion proposes an approximate equal division of parenting time over Zoey-Ann’s holidays from school.

[32] Zoey-Ann has had an opportunity to enjoy Christmas Eve and Christmas morning with the Respondent mother for two consecutive years post-separation of her parents. I accept that Zoey-Ann will benefit from the opportunity to enjoy similar special occasions with her father and the paternal side of her extended family.

[33] I have heard no objection from the Respondent mother as to the proposed division of holiday time. I note that Zoey-Ann will be with the Respondent mother on New Years Eve under the proposed schedule.

[34] I am satisfied that the relief requested by the Applicant father with respect to a division of holiday time with Zoey-Ann is in her best interests.

Order

[35] On the basis of the above, on December 13, 2019 I ordered that there would be an Order To Go in accordance with paragraph 1 of the Applicant’s Notice of Motion dated December 5, 2019 which provides that the parties share Christmas Holidays with the child, namely Zoey-Ann Csizmazia, born September 3, 2009, as follows:

a. December 20, 2019 at 3:00 p.m. until December 25, 2019 at 3:00 p.m. with the Applicant;

b. December 25, 2019 at 3:00 p.m. until January 1, 2020 at 3:00 p.m. with the Respondent; and

c. January 1, 2020 at 3:00 p.m. until January 6, 2020 drop-off at school with the Applicant.

[36] If costs are in issue, the parties may make submissions as follows:

a. The party seeking costs shall serve and file written submissions not exceeding two pages in length plus bill of costs on or before January 17, 2020;

b. The party responding to the request for costs shall serve and file responding submissions not exceeding two pages in length plus bill of costs on or before January 31, 2020;

c. Reply submissions, if any, shall be limited to one page in length and shall be served and filed on or before February 7, 2020;

d. If no cost submissions are filed on or before January 17, 2020, the issue of costs shall be deemed to have been settled.

Bale J.

Date: December 16, 2019