West v. West, 2020 ONSC 2630

Court File and Parties

COURT FILE NO.: FS-16-408934-01 DATE: 20200428

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTOPHER WEST Applicant – and – ANNA CLARA WEST Respondent

Counsel: Lisa Kadoory, lawyer for the applicant Nadia Conte, lawyer for the respondent

HEARD: April 24, 2020

Endorsement

DIAMOND J.:

Overview

1By Endorsement dated April 20, 2020 of Justice Shore, I was designated to conduct a telephone hearing with the parties to hear argument of the respondent’s motion seeking an order requiring the applicant to comply with the terms of both the Order dated December 19, 2017 of Justice Gilmore (the “Gilmore Order”), and the Order dated December 5, 2018 of Justice Monahan (the “Monahan Order”), and return the parties’ youngest son Calvin Aries West (“Calvin”, born September 16, 2008) to the respondent’s residence together with police enforcement if necessary.

2In accordance with the Chief Justice’s Notice to the Profession dated March 15, 2020 and updated on April 2, 2020 (“the Notice”), Justice Shore reviewed both the respondent’s motion materials and the applicant’s cross-motion materials (seeking an interim Order varying the terms of the Monahan Order) and found that (i) the relief sought by the respondent presumptively fit the “urgency requirement” as set out in the Notice, and (ii) the relief sought by the applicant was not urgent. Justice Shore then set a deadline for the respondent to deliver reply motion materials.

3The parties complied with Justice Shore’s timetable, and I reviewed all their motion materials in advance of the telephone hearing which proceeded before me on April 24, 2020.

4At the conclusion of the telephone hearing I took my decision under reserve.

5The parties were married on July 17, 1999, and separated on July 5, 2015. They were formally divorced on January 22, 2018. They have two minor children, Calvin and his older brother Austin Wayne West (“Austin”, born October 8, 2006). Both children have special needs and emotional issues, and have been prescribed medication to address and treat same.

6The parties were able to resolve the issues in this proceeding by way of final Minutes of Settlement dated November 24, 2017. The terms of those Minutes of Settlement were incorporated into the Gilmore Order. The parties shared joint custody of the children, with the respondent having final decision ability after consultation with the applicant. The Gilmore Order also provided a shared parenting schedule.

7As a result of the applicant not exercising his access to the children consistently in 2018, and the applicant permanently moving to London, Ontario in August 2018, the respondent brought a motion to change the terms of the Gilmore Order. That motion to change was settled by the parties, and the terms of the Monahan Order varied the existing parenting schedule so that the applicant had access to both children the first three weekends of every month from 10:00 am on Saturday to 4:00 pm on Sunday. The children were exchanged at the O.P.P. station in Cambridge, Ontario. The children otherwise resided in the respondent’s care.

Events prior to 2020

8In responding to the respondent’s motion (and in bringing his own cross-motion which Justice Shore found was not urgent), the applicant has raised numerous facts relating to the 2018-2019 period. In my view, any facts which were known to the parties (or could have been known to the parties through the exercise of reasonable due diligence) as at the date of the Monahan Order are likely subject to the doctrines of res judicata and/or issue estoppel. Both parties have attempted to rely on those facts to support their current positions, although the applicant was the one who brought up most of those facts with a view to relying upon historical allegations to substantiate his current claims about the alleged abuse of Calvin by Austin as set out hereinafter.

9Most if not all of the alleged 2018-2019 facts do not play a substantive role in my disposition of the applicant’s motion. Over and above the doctrines of res judicata and/or issue estoppel, I note for example that when the applicant reported alleged abuse between the children to the Children’s Aid Society (“CAS”) in June 2019, the CAS investigation (which included interviews with the two children separately) concluded that the alleged abuse was fabricated.

The Applicant returns

10The relationship between the parties was, and remains, one of high conflict, and the parties only communicate through the Our Family Wizard application.

11The applicant’s history of exercising access to the two children has been somewhat patchwork. From December 2019 to March 2020, the applicant did not see the children at all. The parties offered different explanations for the applicant’s failure/inability to see the children during this time period, but both agree, and the fact is, that there was no access exercised by the applicant for those three months.

12In or around early March 2020, the applicant contacted the respondent and asked to see the children for the weekend of March 7-8, 2020. When the respondent told him that she was agreeable to his request on a condition that the applicant comply with various terms in the Gilmore Order and Monahan Order (including the exchange of the children and the administration of their medicine), the applicant balked at the respondent’s request and ended his response with “stop telling me what to do you bossy bitch”.

13In any event, on March 12, 2020 counsel for the applicant wrote to the respondent to (a) confirm that the applicant had not seen the children since December 2019, (b) ask that the respondent see the children from March 14-22, 2020 over the school break, and (c) assure the respondent that the applicant would restart his support payments (which had stopped) through the Family Responsibility Office.

14Through her counsel, the respondent pursued the matter further and the parties ultimately agreed upon the applicant resuming access with the children and have them in his care from April 4-12, 2020 inclusive. The applicant confirmed that the parties would follow the access terms as set out in the Gilmore Order and Monahan Order, with exchanges to take place outside a police station.

15Of note, the applicant had advised the respondent that after his resumed parenting time concluded, he was due to return to work forthwith.

April 12, 2020

16The children were exchanged outside the police station, and the applicant took them to his London home. The respondent heard nothing from the applicant during his parenting week, but was in communication with the children.

17On April 12, 2020, the applicant brought both children back to be dropped off at the exchange site. Austin left the applicant’s vehicle and entered the respondent’s vehicle. Calvin came to the driver’s side of the respondent’s vehicle and informed her that he was not going home with her and wanted to stay with the applicant for several more days. According to the respondent, the applicant did absolutely nothing that day to encourage Calvin to return home with the respondent. Calvin then left with the respondent back to London, Ontario.

Events since the failed exchange

18The following day, the applicant communicated with the respondent through Our Family Wizard advising that Calvin had informed the applicant that he had been complaining to “anyone that would listen” about Austin’s alleged abuse towards Calvin “for years now”, and the fact that Calvin and Austin being quarantined and isolated at the respondent’s residence had “brought this issue to a boiling point”.

19According to the applicant, Calvin had asked him at the first opportunity during their week together if Calvin could live with him “during this quarantine time while school was not in session.”

20Through correspondence exchanged between counsel on April 15, 2020 evidenced, the applicant made a formal request for Calvin to stay in his care for a six week period, and that he was prepared to proceed to mediation. The respondent adamantly refused and demanded the immediate return of Calvin to her care.

21According to the applicant, upon Calvin’s arrival at his London home, Calvin was very anxious and almost immediately advised him he did not want to return to the respondent’s care because he could no longer bear living with Austin due to alleged physical and sexual abuse. I note that the nature of such allegations from the applicant are not new, and even though they were reported to and ultimately dismissed by CAS, at no time since being imparted with this information from Calvin in early April 2020 has the applicant contacted CAS again.

22According to the respondent, Austin has subsequently told her that during the April 4-12, 2020 resumed parenting week with the applicant, Calvin and the applicant were in a room together for “a while”, and when Calvin came out of the room he told Austin that it was “his choice” to live with the applicant.

Further communications

23Within a few days of Calvin remaining in London, the applicant advised the respondent that he had set up an email account for Calvin in order to facilitate communication between Calvin and the respondent. The respondent doubts whether the communication has truly come from Calvin. In any event, the communications from Calvin include the following:

Date Communication from Calvin April 13, 2020 Hi mummy, are you mad at me? I never see dad a lot so I wanted to stay just for a few more days to spend time with him ok? I love you! He also set me up with a Family Wizard acc so I can talk to you. Tell Austin I said hi and I miss him. April 15, 2020 I want to see you but I can’t handle being with Austin, that’s why I chose to stay with daddy for a couple more days. I’m going to see you this weekend but not with Austin. April 16, 2020 I want to see you on the weekends. I love you mummy!

24On April 20, 2020, Calvin spoke to the respondent over “Google Hangouts” and advised her that “he needed to learn how to be a man and live with daddy”.

25Finally, the respondent communicated back to Calvin on April 14, 2020 and wrote “good bye my love, you have made your choice clear, take care”. In her affidavit, the respondent gave evidence that she had a lapse in judgment and was very emotional when she sent that communication, and the following date she sent Calvin an apology which read as follows:

“Please ignore the message I sent that wasn’t very nice. I’m sorry. I miss you so much, my angel. Please call me from daddy’s phone. I love you to the moon and back! Sweet dreams love Mamma”

Decision

26To begin, as per Justice Shore’s Endorsement dated April 20, 2020, the applicant’s cross-motion has been found to be not urgent, and is therefore not before me. That said, I understand the applicant’s decision to seek an interim order varying the parenting time terms of the Monahan Order, as it is consistent with his position in response to the respondent’s motion.

27Without binding the hands of any future judge hearing motions and/or a motion to change in this proceeding, on the record before me I do not find the presence of sufficient grounds to substantiate the applicant’s responding position, and I am thus granting the primary relief sought by the respondent. I come to this conclusion for several reasons:

a) the applicant has had long, absent stretches from the children’s lives, and while I make no finding as the reason(s) for those absences, he is less in a position to assess the reliability and validity of claims allegedly made by Calvin than the respondent; b) further, why would Calvin confide in the applicant when he had not communicated with him for approximately three months? c) there is little to no evidence that, armed with the immediate, alleged disclosure from Calvin, the applicant took any steps to address the serious nature of those allegations, including contacting CAS (as he had done in the past), or at a minimum addressing them with either Austin or the respondent prior to April 12, 2020; d) the applicant has a history of (a) making claims which were found to be either false or unsubstantiated, and (b) seeking a split custody arrangement even in the face of the terms of the Gilmore Order and Monahan Order. The respondent gave evidence that the applicant had previously attempted to obtain custody and/or increase parenting time with Austin; e) the quality of the applicant’s evidence surrounding Calvin’s serious allegations is surprisingly vague and lacking particulars. The applicant alleges that the situation in the respondent’s home has “reached a crisis point for Calvin” as he is currently trapped with his “abuser” Austin in a 1,000 square foot apartment for 24 hours a day. Presumably, when confronted by Calvin at the start of their week together, the applicant would have sought and obtained particulars of such serious allegations. In his responding affidavit, the applicant spends an inordinate amount of time setting out his prior 2018-2019 allegations, but gives very little time to providing any particulars of Calvin’s current allegations; and, f) the scope of Calvin’s request to stay with the applicant grew almost exponentially in Calvin’s communication with the respondent from April 12-16, 2020 while in the applicant’s care, and while I make no specific finding on the record before me that Calvin was “coached” as alleged by the respondent, the genuineness of C’s communications has been called into question.

28The respondent argues that the applicant has clearly implemented self-help remedies and is trying to take advantage of the current COVID-19 pandemic by unilaterally create a new status quo through a de facto variance of the terms of the Monahan Order. While I cannot make such a determination on the record before me at this stage, I do find that the applicant’s position fails to establish a foundation for denying the relief sought by the respondent.

29I therefore grant the respondent’s motion by making an order for the return of Calvin to the respondent’s residence within 24 hours of the release of this Endorsement. If necessary, I am also authorizing the Toronto, Peel, London and/or Halton Police Services (and/or any appropriate jurisdiction) to assist in the enforcement of this order in accordance with section 36 of Children’s Law Reform Act, RSO 1990 c. C12.

Costs

30I would ask the parties to exert the necessary efforts to try and resolve the costs of this motion. In the event they cannot reach a resolution, they may serve and file written costs submissions (totalling no more than five pages including a Costs Outline) in accordance with the following schedule:

a) the respondent’s costs submissions to be served and filed within seven (7) business days of the release of this Endorsement; and, b) the applicant shall thereafter have an additional seven (7) business days from the receipt of the respondent’s costs submissions to serve and file his responding costs submissions.

Summary

31In summary, I make the following interim Order:

a) this Endorsement is an Order of the Court enforceable by law from the moment it is released. b) the applicant shall return the parties’ youngest son Calvin Aries West born September 16, 2008) to the respondent’s residence within 24 hours of the release of this Endorsement. c) if necessary, the Toronto, Peel, London and/or Halton Police Services (and/or any appropriate jurisdiction) are authorized to assist in the enforcement of this order in accordance with section 36 of Children’s Law Reform Act, RSO 1990 c. C12. d) in the event the parties cannot resolve the costs of this motion, they may serve and file costs submissions (totalling no more than five pages including a Costs Outline) in accordance with the following schedule: i) the respondent’s costs submissions shall be served and filed within seven (7) business days of the release of this Endorsement; and, ii) the applicant shall thereafter have an additional seven (7) business days from the receipt of the applicant’s costs submissions to serve and file his responding costs submissions.

Diamond J.