Court File and Parties

NEWMARKET COURT FILE NO.: FC-18-55421-00 DATE: 20200506 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Stephanie Gagnon, Applicant AND: Hans Kristian Skaade, Respondent

BEFORE: The Honourable Mr. Justice D.A. Jarvis

COUNSEL: Jennifer Long, Counsel for the Applicant Symon Zucker, Counsel for the Respondent

HEARD: In Writing

Ruling on Urgent Motion for Case Conference and Order

[1] As a result of COVID-19 regular Superior Court of Justice operations are suspended at this time as set out in the Notice to Profession, the Public and Media Regarding Civil and Family Proceedings of the Chief Justice of Ontario. See the Notice to the Profession dated March 15, 2020, as revised on April 2 and May 5, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ [“the Chief’s Notice”].

[2] The Chief’s Notice frames what may be considered urgent:

(a) requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);

(b) urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;

(c) dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order;

(d) in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.

[3] The urgent motion brought by the applicant (“the mother”) asks for the following relief:

(a) An Order appointing the Office of the Children’s Lawyer (“OCL”);

(b) An urgent case conference;

(c) An Order restraining the respondent (“the father”) from communicating with the mother except through her lawyer and then only for child exchange purposes and for bona fide urgent issues involving the children; and

(d) An Order that the father not film or video-record the mother or the children at exchanges.

[4] The mother’s material was served on the father on April 27, 2020.

[5] A final Order dealing with parenting and child support was made by Douglas J. on September 17, 2018. Its terms included joint custody of the parties’ two children, HPS born January 17, 2009 and MVS born May 31, 2012 (“the children”). The Order also included shared decision-making. Another final Order was made (by me) on October 2, 2010: this dealt, among other things, with a communication protocol (Our Family Wizard), child support arrears and distribution of the net sale proceeds of the parties’ former residence.

[6] The court file discloses that the mother started a Motion to Change in September 2019 requesting a change in the Order of Douglas J. to award her sole custody of the children and child support. This material was served on the father on November 12, 2019. The first Appearance clerk noted on January 28, 2020 that the father’s lawyer appeared “to file responding documents”. There is no record that was ever done. A second appearance was scheduled for March 31, 2020. On February 6, 2020 the mother requested a Form 25D final Order as her Motion to Change was apparently uncontested. This came before MacPherson J. on February 19, 2020 on a Chambers’ motion: he noted that the father had filed nothing. MacPherson J. was not prepared to grant the mother a restraining Order that she had requested (in addition to the other relief in the Motion) because it was not pleaded in her Motion to Change. He directed the mother to file an affidavit advising whether she was seeking such an Order and, upon its receipt, her request for a final Order would be considered.

[7] The mother’s affidavit in support of her urgent motion indicates that, notwithstanding the detailed, prophylactic terms of the two Orders made dealing with parenting, the level of conflict and tension between the parties has since escalated to the point where the children have been harmed: the father films or video-records exchanges of the children, openly denigrates the mother in the presence of the children, has acted provocatively towards her and bombarded their Our Family Wizard (“OFW”) service with harassing messages the last of which apparently resulted in the father’s arrest on April 20, 2020. In fact, according to the mother, the father has been arrested four times and charged with uttering death threats and breaches of his undertaking not to contact her. HPS is seeing a counsellor for anxiety and stress: MVS is also reported as suffering. Decision-making appears impossible except for the fact that the parties agreed to the appointment of the OCL, something that the mother pleads be expedited. The contents of the affidavit are disturbing.

[8] The father delivered a responding affidavit dated May 5, 2020 in which he agreed with the mother’s request to appoint the OCL but disputed her allegations that he was the protagonist in their conflict. He alleges that the mother has needlessly involved the police and that he reached an agreement with the Crown to withdraw the criminal charges against him. His filming of exchanges of the children was, and remains, purposed to protect him from the mother’s “unsubstantiated allegations, especially to the police”. The mother added her boyfriend (di Napoli) to the parties’ OFW service. He has separately attended exchanges of the children and on occasion has texted the father and his family. The father did not address the mother’s allegation that he was abusing OFW by bombarding her with harassing messages, the thrust of which she says demonstrated his contempt of her. The father also did not address the mother’s allegation that he attended an exchange wearing a T-shirt provocatively displaying “I survived Divorce with a Sociopath” on it and that the father had brought friends who also filmed the exchanges and openly mocked and laughed at the mother. She did not mention that the local child protection agency may have had contact with the family.

[9] It is clear from the parties’ evidence that the children have been negatively impacted by the escalating nature of their parent’s dispute. It is equally clear that this conflict seems to be spiralling out-of-control. The present parenting arrangements cannot be allowed to continue. In my view, the mother’s motion has met the test of urgency.

[10] While both parties agreed to appoint the OCL I am not persuaded that such an Order should be made at this time. The conflict between the parents needs to de-escalate and, if the parties cannot accomplish that, then the court may have to adopt a draconian approach to the current parenting schedule.

[11] The following is ordered:

(a) Copies of the mother’s Motion to Change, her Form 23C affidavit for an uncontested trial sworn on February 6, 2020, her urgent motion, her affidavit sworn April 27, 2020 and the father’s affidavit sworn on May 5, 2020 shall be forthwith sent to the York Region Children’s Aid Society (“the Society”);

(b) The Society is directed to file with the court by May 11, 2020 a brief affidavit summarizing its involvement with the family. If more time is required by the Society that may be requested;

(c) The mother shall obtain and file with the court by May 11, 2020 a note or summary from the counsellor whom HPS has been seeing (if possible) summarizing that person’s involvement and any concerns about the child’s well-being. The mother shall also file with the court, electronically, copies of the OFW communications between the parties from and after September 1, 2019 to date. These shall be attached to an affidavit from her;

(d) The father shall file with the court by May 11, 2020 satisfactory evidence that the criminal charges that he said were being withdrawn by the Crown have, in fact, been withdrawn and whether there were any conditions to the withdrawal (such as a Peace Bond). The father shall also depose whether there are any outstanding charges of which he is aware or, if there are, their details and release conditions;

(e) All material directed to be filed may be done electronically;

(f) As per paragraphs 3 and 4 of the mother’s urgent motion. The operative provision of the first sentence of paragraph 3 of my Order dated October 2, 2018 dealing with the parties’ use of OFW shall be temporarily suspended: the second sentence shall remain in full force and effect;

(g) The parties’ request for the appointment of the OCL shall be deferred until after May 11, 2020;

(h) The mother’s request for an urgent case conference shall be deferred until after May 11, 2020;

(i) No other motion or material may be filed by either party except as set out above;

(j) Court Administration shall bring this file to my attention on May 12, 2020 to determine the next event in this matter;

(k) Costs are reserved.

[12] In the circumstances of the COVID-19 emergency, this Order is operative and enforceable without any need for a signed or entered, formal, typed Order. The parties may submit a formal Order for signing and entry once the court re-opens.

Justice David A. Jarvis Date: May 6, 2020