Court File and Parties

COURT FILE NO.: FC-19-2283 DATE: 2020/02/21 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Giovanni Patullo, Applicant -and- Destiny Jane Hickey, Respondent

BEFORE: Justice Pam MacEachern

COUNSEL: Kristie Smith for the Applicant Respondent Self-Represented and Not Present

HEARD: February 20, 2020

ENDORSEMENT

1. The parties have a five-year-old child, B. J. H., born in 2015. B. has resided in his mother’s (the Respondent’s) primary care since the parties’ separation in September of 2017.
2. Before November or December of 2019, the child ordinarily resided in the City of Ottawa with the Respondent. At some point in November or December of 2019, the Respondent moved to a new residence with the child. The Respondent has not disclosed to the Applicant where she has moved with the child. The new residence appears to be outside of the City of Ottawa. The Respondent moved without notice to the Applicant and amid negotiations with the Applicant’s counsel regarding the reinstatement of the Applicant’s access, which had not taken place since December of 2018.
3. The Applicant seeks, on this motion, the return of the child, access, and other related relief.

Background

4. Before mid-December of 2018, the Applicant exercised regular access to B., which he states was normally comprised of weekend access, plus holiday access and some mid-week access.
5. The Respondent confirms that the Applicant exercised regular access in her affidavit sworn on December 5, 2018, filed in proceedings involving the father of the Applicant’s oldest child. In this affidavit, the Respondent’s description of the Applicant’s access is positive.
6. In January of 2019, the Applicant was criminally charged with uttering threats against the Respondent. The Applicant’s evidence is that the alleged threat was made up of him stating, upon the Respondent refusing an agreed-upon access visit, “I will fight anyone that gets in the way of me seeing my children.”
7. Since the criminal charges, the Respondent has refused access to the Applicant. Initially, the Applicant’s conditions of release prohibited contact with the children. The Applicant began a New Directions program on August 11, 2019, which he completed on October 24, 2019. Since the start of this program, the Respondent’s conditions of release allowed access to the child, subject to a third party being involved in the access exchanges.
8. On January 10, 2020, the criminal charges against the Respondent were withdrawn in favour of a peace bond. The peace bond prohibits contact with the Respondent for one year, except in accordance with a family court order.
9. Since August 11, 2019, the Applicant has attempted to arrange access to B., without success. These efforts were first made through the Applicant’s mother. By October and November of 2019, the Applicant has retained a family law lawyer, Ms. Smith, who wrote several letters to the Respondent seeking access.
10. On November 20, 2020, the Applicant issued his Application seeking a divorce, joint custody, and a timesharing schedule.
11. When the Applicant attempted to serve the Respondent with the Application, he was notified on December 9, 2019, through the Respondent’s email to the process server, that the Respondent was no longer in the Ottawa area.
12. The Applicant did not have any prior notice of this move nor any knowledge of the Respondent’s whereabouts. The Respondent has refused to disclose her whereabouts or the whereabouts of the child. In her emails, the Respondent states this is due to safety concerns and asserts her right to withhold this information.
13. On December 12, 2019, the Applicant’s counsel sent his Application documents to the Respondent by email. Master Fortier validated this service by Order dated January 14, 2020.
14. On January 14, 2020, the Applicant obtained leave from the court to bring this urgent motion. The Respondent was served with notice of the January 14, 2020, motion by email sent on January 3, 2020. The Respondent did not attend court on January 14, 2020. The Respondent was served with a copy of the January 14, 2020 endorsement, and notice that the motion was scheduled for January 28, 2020, by email on January 15, 2020.
15. On January 28, 2020, Justice Phillips adjourned the motion to February 20, 2020. The January 28, 2020 endorsement of Justice Phillips states as follows:

“Respondent is not present. While she has not filed any materials, she today sent an email to Ms. Smith [Applicant’s counsel] indicating a healthcare-related excuse for her non-attendance.

In the circumstances, it is ordered that today’s hearing is adjourned. The Respondent shall serve/file materials in response to this application before February 7, 2020. Another date shall be set forthwith thereafter, allowing for Applicant to file response if necessary.

Costs of today are awarded against the Respondent of $300. She must do more than write emails to fulfill her obligations to the court in dealing with this application.”

16. The Applicant was served with a copy of the January 28, 2020 endorsement on January 28, 2020.
17. The Respondent did not attend court on February 20, 2020. At the outset of the motion on February 20, 2020, duty counsel attended to advise that the Respondent had left a voicemail message with their office requesting that they advise the court, on her behalf, that:

“She was released from the hospital yesterday and is now on bed rest. She is medically unable to attend the courthouse. She has been cleared to begin normal activity on Monday. Client is aware [she] has to follow up with the court.”

18. The Applicant objects to a further adjournment. His counsel provided copies of emails with the Respondent. In her email sent on January 15, 2020, the Respondent states that her lawyer will be contacting the Applicant’s lawyer by the end of that week. No such contact was made. The Respondent also sent emails on February 6, 12, 17, 18, and 19, 2020. In her email sent on February 17, 2020, the Respondent states that she in the process of relocating to Ottawa and that she will attend the next court appearance. None of her emails sent after the February 17, 2020 email advised that the Respondent would not attend court on February 20, 2020.
19. The Respondent has not filed any material with the court, either in response to the repeated notices of the Applicant’s motion, the January 28, 2020 endorsement, or as an Answer to the Application.
20. The Children’s Aid Society of Ottawa was involved with the family arising from the police referral in December 2018/January 2019. The Society has provided a letter dated May 16, 2019, confirming that its concerns were around the risk to the children being exposed to adult conflict, specifically conflict between the parents, and that they had no child protection concerns with the care of the children with either parent at that time.

Analysis

21. The Applicant seeks an order requiring the Respondent to return the child to the City of Ottawa and for the child to continue to reside in the City of Ottawa pending further order of the court. In the event that the Respondent does not relocate to the City of Ottawa with the child, the Applicant seeks an order that the child primarily reside in his care pending further court order.
22. The Respondent has stated, in her February 17, 2020 email to the Applicant, that she is returning to reside in Ottawa with the child. Given this, and all of the circumstances described above, I am not prepared to make an order, at this time, concerning the child’s residence and what would happen if the Respondent does not return to Ottawa. This part of the motion is adjourned.
23. I am prepared to deal with access on an interim interim basis. The evidence before me is that, before the events in January of 2020, the Applicant exercised regular access to B. The criminal charge against the Applicant is concerning, but the only evidence before me regarding the incident that gave rise to this charge is the evidence of the Applicant. The Applicant has completed a New Directions and the CAS does not have any child protection concerns with his care of the child. I find that it is in the child’s best interests to have access to the Applicant reinstated, as set out below.
24. The Respondent has chosen not to file any evidence in this matter, despite having notice of the Applicant’s motion for access since January 3, 2020. The Respondent’s delay in filing material and her failure to attend in court is very concerning to the court. The Respondent has already received one adjournment due to her representations of her health issues. That adjournment was accompanied with a stern direction from the court that the Respondent was required to file material by February 7, 2020, and that simply sending an email was not sufficient to fulfill her obligations to the court.
25. On February 20, 2020, the Respondent did not send an email – she instead left a telephone message for duty counsel. Her conduct in leaving a telephone message with duty counsel is, effectively, less than sending an email to the Applicant’s counsel, particularly in the face the Respondent’s email to the Applicant’s counsel of February 17, 2020 stating she would attend the next court appearance.
26. Although the Respondent has raised medical issues as reasons that prevent her from attending court, she has not provided any medical records in support of her representations. Even if the Respondent has medical issues that prevent her from attending court, she has not provided any explanation for why she has not been able to provide an affidavit in response. At the same time, the Respondent has been able to send several lengthy emails to the Applicant’s counsel, which indicates that she has had the ability to address these issues in some manner.
27. Given the evidence before me, I do not find that it is in the child’s best interests to impose further delays on the reinstatement of the Applicant’s access. I find that it is in the best interests of the child to have access to the Applicant, as set out below. The schedule for access below provides for a graduated reintroduction of the Applicant’s access on an interim interim basis.
28. I am ordering the Respondent to provide confirmation to the Applicant of the child’s school enrollment and attendance, to include confirmation of when this was changed, the child’s current school, and any changes thereto on an ongoing basis pending further order.
29. I am ordering the Respondent to provide confirmation of the municipality that she resides in, and any changes thereto, pending further court order. I am not ordering, at this time, that the Respondent provide the Applicant with her specific residential address because the Applicant is not requesting this information at this time. But the Respondent is required to confirm to the Applicant what municipality she is currently residing in and whether she has returned to the City of Ottawa, as she represented in her email of February 17, 2020.
30. The Respondent made representations to the court on January 28, 2020, and February 20, 2020, regarding her medical status. The Respondent shall serve and file copies of her medical records supporting these representations within 30 days of this order.
31. The order of Master Fortier dated January 14, 2020, permitting the Applicant to serve all further court materials on the Respondent by email, shall continue.
32. I am not ordering the police to enforce access, at this time. The Applicant has not sought such an order at this time and notice of such a motion would normally be required to be served on the police. I highlight to the Respondent, however, that court orders are not discretionary. They are not suggestions. They are orders with which one must comply. The Family Law Rules provide this court with several powers to enforce compliance with its orders, including by requiring a party to pay costs; dismissing their claim; striking out their Answer, notices of motion, affidavits, or other court documents; making an order that the party is not entitled to a further order from the court unless the court orders otherwise; postponing a step in the case; and ultimately making an order for contempt, which may include further consequences such as financial penalties, and ultimately jail. Failure to comply with an access order may also be a factor that impacts on the child’s best interests, and ultimately what access and custodial arrangements are needed to address such non-compliance. If there are any issues with the enforcement of the access ordered below, this matter may be returned to me or another judge if I am not available on 72 hours’ notice.
33. The Respondent has not filed an Answer, despite being served with the Application on December 12, 2020. The Applicant does not object to the Respondent being given further time to file an Answer, which I find is appropriate. For this reason, I order that the time for the Respondent to file her responding material, including an Answer and Form 35.1, is extended to 30 days from the date of this order. The Respondent must comply with this deadline as further extensions will not be granted.
34. A case conference shall take place on April 7, 2020, at 2 p.m. Both parties shall ensure that they comply with the Family Law Rules in advance of that case conference, including by filing a case conference brief and confirmation form as required under the rules.
35. The Applicant anticipates that the Respondent will raise claims for child support in her Answer. Both parties are directed to ensure that they comply, in advance of the case conference, with their requirements to produce financial disclosure as set out under Rule 13 of the Family Law Rules and s.21 of the Child Support Guidelines.
36. If an order for disclosure is needed to ensure that the case conference is as productive as possible (for example, CAS records), a party should, where appropriate, seek such disclosure well in advance of the case conference date by a form 14B motion filed with the court.

Disposition

37. For the reasons set out above, I grant the following orders: a. The Applicant’s motion regarding the relocation of the child, B.J.H., born in 2015, is adjourned. b. The Applicant shall have interim interim access to the child, B.J.H., born in 2015, as follows: i. Commencing February 22, 2020, the Applicant shall have access with B. each Saturday from 10:00 AM to 6:00 PM, which shall take place at the home of the paternal grandparents, Pina and Sergio Patullo, and/or in the community; ii. Commencing March 21, 2020, the Applicant shall have access with B. each weekend from Saturday at 10:00 AM to Sunday at 6:00 PM; iii. Exchanges for the visits shall be conducted between the Respondent and one or both of the paternal grandparents, Pina and Sergio Patullo, at the Starbucks at College Square. c. The Respondent shall provide to the Applicant’s counsel, within 14 days, confirmation of the child’s school enrollment and attendance, including confirmation of when this was changed, the child’s current school, and, on an ongoing basis, any changes thereto pending further order. d. The Respondent shall provide to the Applicant’s counsel within 14 days, confirmation of the municipality in which she resides, and, on an ongoing basis, any changes thereto, pending further court order. e. The Respondent shall serve on the Applicant’s counsel and file with the court within 30 days of this order, copies of her medical records supporting the representations she made to the court on January 28, 2020, and February 20, 2020, regarding her medical status. Once this 30-day time period has passed, if the Applicant seeks costs of this motion, he may file submissions concerning costs on or before March 31, 2020. The Respondent may file submissions concerning costs on or before April 10, 2020. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced one-point-five spaces apart, with no less than 12-point font. f. The order of Master Fortier dated January 14, 2020, permitting the Applicant to serve all further court materials on the Respondent by email, shall continue. g. If there are any issues with the enforcement of the above access, this matter may be returned to me or, if I am not available, to another judge, on 72 hours’ notice. h. The time for the Respondent to file her responding material, including an Answer and Form 35.1, is extended to 30 days from the date of this order. The Respondent must comply with this deadline as further extensions will not be granted. i. A case conference shall take place on April 7, 2020, at 2 p.m. Both parties shall ensure that they comply with the Family Law Rules in advance of that case conference, including by filing a case conference brief and confirmation form as required under the rules. j. If child support is raised in the pleadings filed in this matter, both parties shall ensure that they comply, in advance of the case conference, with their requirements to produce financial disclosure as set out under Rule 13 of the Family Law Rules and s.21 of the Child Support Guidelines. k. If an order for disclosure is needed to ensure that the case conference is as productive as possible (for example, CAS records), a party shall, where appropriate, seek such disclosure well in advance of the case conference date by a form 14B motion filed with the court.

Dated: February 24, 2020

Justice P. MacEachern

Released: February 21, 2020