Court File and Parties
Court File No.: FS-20-16273 Date: 2020-04-17 Ontario Superior Court of Justice
Between: George Pappas, Applicant And: Jennifer Volavka, Respondent
Counsel: Salvatore Mannella and Irene Hanna, for the Applicant James B.C. Edney and Joseph Slavec, for the Respondent
Heard: April 14, 2020
Endorsement
E. L. Nakonechny, J.:
[1] By Endorsement of Hood, J. dated March 23, 2020, I was designated to conduct a telephone hearing with the parties to address the Applicant’s recently issued application and motion seeking urgent relief. In accordance with the Chief Justice’s Notice to the Profession dated March 15, 2020 (“the Notice”), Hood, J. reviewed the Applicant’s motion materials and found that since the matter related to, inter alia, the suspension of the Applicant’s access to a fifteen month old child (especially in light of the current COVID-19 situation in the greater Toronto area and the rest of Canada), the motion fit the “urgency requirement” as set out in the Notice.
[2] I conducted the telephone hearing on March 25 and determined that the Applicant’s motion was presumptively urgent. I ordered that the Applicant have interim without prejudice access to Samuel, born December 22, 2018, every Wednesday from 3:30 p.m. to 7:30 p.m. and alternating weekends commencing Friday March 27 from Friday at 3:30 p.m. to Sunday at 7:30 p.m. (“the Order”) pending the return of the matter with a more fulsome record on April 14.
[3] The Respondent filed responding materials on the motion and brought a cross motion returnable April 14. The Applicant filed reply materials. Both parties filed a factum and provided authorities as per the terms of the Order.
The Motion and Cross Motion
[4] The Applicant’s motion seeks the following relief:
a. Unsupervised access to the child, Samuel, born December 22, 2018;
b. Access to Samuel in a modified 2-2-3 schedule with pick ups and drop offs either at the child’s day care, the Applicant’s parent’s residence or the Respondent’s brother’s residence.
[5] The Respondent’s cross-motion seeks the following relief:
a. Dismissing the Applicant’s motion as it does not come within any of the enumerated heads for urgent family law events contained in the Notice to the Profession dated March 15, 2020;
b. In the alternative, that the Applicant continue to reside at his parents’ home at 490 Drewry Avenue, Toronto, and have parenting time with Samuel every Wednesday from after daycare to 7:30 p.m. and alternating weekends from Friday after daycare to Sunday at 6:00 p.m.;
c. Pick up and drop off to be at day care or at 21 Galbraith Avenue or other location agreed between the parties in writing;
d. An Order that, except for the Applicant’s access time, the child reside with the Respondent;
e. In the further alternative that the Motion be adjourned to an agreed upon date on terms: primary residence to the Respondent; access to the Applicant to continue in accordance with the Order of Nakonechny, J., dated March 25, 2020; pick up and drop off to be at day care or at 21 Galbraith Avenue or other location agreed between the parties in writing; parties to attend a case conference on a agreed upon date; questioning on an agreed upon date; and, the Applicant shall produce the clinical notes and records of his psychologist, Dr. Shannon Robinson, within 14 days;
f. An order requiring the Applicant to comply with all COVID-19 safety measures during his scheduled access with the child.
Background
[6] The parties began their relationship in late 2016. They started cohabiting on December 8, 2018. They have one child, Samuel Pappas, born December 22, 2018.
[7] Each of the parties has a child from a previous marriage who resided with the family part of the time. The Applicant has a child, C., born September 24, 2013 (aged 6). The Respondent has a child, J., born October 14, 2010 (aged 9).
[8] The Applicant is a lawyer who operates his own practice. The Respondent is a national accounts manager for a dental sales company. The Respondent took a one-year maternity leave after Samuel’s birth. She returned to work on December 9, 2019. Samuel began attending daycare full time on January 6, 2020.
[9] The parties resided at 21 Galbraith Avenue, Toronto (“the home”). Title to the home is registered in the Respondent’s name alone. The Applicant states that the parties agreed the Respondent was holding one half of the title in trust for the Applicant. The Applicant’s parents advanced $580,000 to the parties for the purchase of the home. The debt is secured by a first mortgage registered on title.
[10] The parties take different positions on the problems that developed in their relationship. They both agree, with different perceptions, that they often argued about interactions between their two children, J. and C. and their respective views on discipline of the children.
[11] On February 7, 2020, the Applicant agreed to move from the home into his parents’ home. The Applicant states he moved so the parties could work on resolving the issues in the relationship. The Respondent states she asked the Applicant to move due to his verbal and emotional abuse toward her, J. and C. She wanted the Applicant to leave the home to work on his anger management and what she calls his “mental health issues”.
[12] The Applicant states that after he moved from the home he returned regularly to care for Samuel. He paid the home expenses including the mortgage and some utilities. He took Samuel to day care and for medical appointments.
[13] On February 22, 2020, the Respondent changed the locks on the home without notice to the Applicant. The Applicant attended at the home and tried to enter. When the new locks prevented him from doing so, an argument ensued. The Applicant banged on the front door. He broke a small window in the door near to where the Respondent was standing holding Samuel. The Respondent told the Applicant she was calling the police. The Applicant left the home before the police arrived (“the February 22 incident”).
[14] Samuel received a small cut near his eye. He was treated by EMS responders who attended the home. No further medical treatment was required.
[15] The Applicant was charged with Mischief to Property not exceeding $5,000, arising from damage to the window. He was released from custody on a promise to appear. It is a term of his bail that he continues to reside in his parents’ home.
[16] The police contacted the Children’s Aid Society of Toronto (“CAST”) who conducted an investigation. The file has now been closed. The CAST Report was in evidence on the motion and will be referred to below.
[17] Samuel is not attending day care at this time due to the COVID-19 pandemic. Both the Applicant and the Respondent are working from their respective homes.
The Applicant’s Position
[18] The Applicant originally brought this motion on an urgent basis because the Respondent unilaterally restricted his access and insisted that his access be supervised by the Applicant’s father. The Applicant did not agree with the limited access or that his access should be supervised.
[19] The Applicant argues that the issue of urgency has been determined, first by Hood. J. as the triage judge and by me on March 25. He states the urgency continues because the temporary without prejudice access set out in the Order is not in Samuel’s best interests and must be revisited and expanded.
[20] The Applicant states that during the cohabitation, the parties shared caregiving of Samuel and he was a “hands on dad”. He was integrally involved in all aspects of the child’s care including feeding at all hours, changing, naps, bedtime routine, and doctor’s appointments.
[21] The Applicant solely cared for the child both before and after separation when the Respondent was working and travelled for her employment. This was the status quo that existed after the Respondent returned to work in December 2019. It ended after the February 22 incident.
[22] The Applicant denies that he has an explosive temper or that he was continuously abusive to the Respondent or the children during the relationship. He acknowledges that there were limited situations where his anger got the better of him. He regrets his behavior during those times.
[23] The Applicant states that he has met weekly with Dr. Shannon Robinson, a psychologist, since February 8, 2020. Dr. Robinson provided a letter confirming the Applicant’s request for therapy to acquire better emotional regulation and distress tolerance skills and a corresponding treatment plan. The letter states that the Applicant has attended seven therapy appointments and appears motivated and committed to make changes. Dr. Robinson does not give an opinion regarding custody and access and has not performed a risk assessment.
[24] Dr. Robinson is working remotely and not attending her office. She is unable to access her clinical notes and records requested by the Respondent. The Applicant confirms he will produce those documents as soon as Dr. Robinson returns to her office.
[25] The Applicant refers to the three specific examples of abusive behaviour alleged by the Respondent in her materials. The first two, in November 2018 and June 2019 involved events where the two children, J. and C. got into a dispute. The Applicant stepped in to break up the dispute and behaved in a way that the Respondent states was an overreaction and abusive.
[26] In the November 2018 event, the Applicant “squeezed” J.’s hand to stop him from hitting C. while they were travelling in the car. J. is apparently twice the size of C. The Applicant repeatedly asked J. to stop hitting C. and J. refused. The Applicant states he applied a little pressure to J.’s hand to stop his assault on C.
[27] In the June 2019 event, J. took C.’s iPad from him and would not return it. The Applicant took the iPad from J. The Applicant asked the Respondent to speak to J. When she did not, he became angry and threw mangos across the room. The Respondent threatened to call the police if the Applicant did not calm down. This led to a confrontation between the parties. The Respondent began to swear and yell at the Applicant. She slapped or punched the Applicant, she says, in self defence.
[28] The third incident of abuse cited by the Respondent is the February 22 incident. The parties had fractious text message exchanges on February 21 and 22 dealing with pick up of Samuel and their relationship. The Applicant raised the issue of the transfer of the home. The Respondent wanted to focus on parenting issues. She did not mention her plan to change the locks on the home. The language in the texts between the parties is aggressive and hostile on both sides. The Respondent cannot have imagined that changing the locks on the home without notice to the Applicant would not create further difficulty.
[29] The Applicant states he had unfettered access to the home after he moved out. He came and went freely to care for Samuel, drop off groceries, retrieve personal items for himself and C., and take out the garbage. When he arrived on February 22 and the Respondent prevented his entry, he became upset.
[30] After breaking the window, the Applicant left the home. He says he was afraid because the Respondent was yelling and swearing at him and threatening to call the police. When he was released from police custody, he went to Samuel’s day care to confirm he was well. The Applicant also checked with local hospitals and clinics to see if Samuel had required medical treatment for the cut.
[31] The Applicant states that the three incidents of alleged abuse were isolated reactions “in the moment” and not a reflection of his general lack of anger management or his ability to parent Samuel. The CAST investigation confirms that there is no history of domestic violence. The Risk Assessment therein confirms there was only one conflict between the parents in the past year. J. was interviewed by CAST and said he had no worries about the Applicant. J. understands that his mother and the Applicant are separating and told the worker that they argued a lot, but he was not impacted by the arguing.
[32] The Applicant takes responsibility for his poor parenting behavior relating to these incidents. He is working actively in therapy with Dr. Robinson to address his emotional issues. The Applicant states that since the parties are now separated, they will have no reason to argue about the parenting of J. and C. which was a clear area of dispute between them.
[33] The Applicant also denies the allegations made by the Respondent that his alleged abusive behaviour is a pattern that existed in his prior relationship with C.’s mother. The Applicant admits that the breakdown of that relationship was “high conflict” but states that he and his ex-spouse now have a good parenting relationship.
[34] The Applicant argues that the modified 2/2/3 schedule he is proposing is in Samuel’s best interests because it reflects the shared parenting situation that existed after the Respondent returned to work in December 2019. It also continues the strong bond the child has with both parents.
[35] The Applicant states that he is well able to manage his law practice and an equal parenting schedule. During the relationship he took time away from work to care for the children and their activities and for the parties to travel together and with the children.
[36] He points out that many parents work full time and arrange their schedules to care for their children. The Respondent will have to do that as well. The parties enrolled Samuel in full time day care after the Respondent’s maternity leave ended specifically to accommodate both of their full-time work obligations. The Applicant had already scheduled future time off work to accommodate the Respondent’s upcoming work travel schedule. He states that he has the flexibility to delegate work and arrange his schedule to prioritize his time with Samuel.
The Respondent’s Position
[37] The Respondent’s primary argument is that the Applicant’s motion is not an urgent motion as defined in the Chief Justice’s Notice to the Profession dated March 15, 2020 and updated on April 2, 2020. She states that she facilitated supervised access for the Applicant after the February 22 incident and that the Applicant has had unsupervised access in accordance with the terms of the Order since March 25. The Applicant’s wish for more parenting time does not make the matter urgent in the context of the current COVID-19 situation.
[38] The Respondent states that she at a procedural disadvantage by having to deal with the Applicant’s motion on an urgent basis. She has not had the benefit of full pleadings, a questioning on the Affidavits, the clinical notes and records of Dr. Robinson or the court file from the Applicant’s prior matrimonial litigation. She argues that the urgent proceeding has been highly prejudicial to her presentation of her case.
[39] The Respondent states that she has been Samuel’s primary caregiver since birth and should continue to be. The Respondent says that the Applicant has a busy law practice with limited flexibility in his schedule due to client and court commitments. He relies heavily on his parents to assist with C.’s care including pick ups from school and taking C. to activities when the Applicant is unavailable. Samuel should not be left in third party care when the Respondent is available to continue to care for him primarily as she has been.
[40] The Respondent states that the Applicant has an explosive, volatile temper and a history of aggressive threatening behaviour toward her. His conduct must be taken into consideration in determining his ability to parent Samuel. She states that the three specific incidents listed in her Affidavit were not isolated but a pattern of abusive behaviour toward her and his children dating back to his prior marriage.
[41] There are conflicting communications from the Applicant’s former spouse, Ms. B. Ms. B.’s communication with the Respondent initially indicates that her relationship with the Applicant was high conflict (which the Applicant essentially concedes). Her subsequent communication states that the contents of the first email were not entirely accurate and acknowledges that the Applicant is a good father to C.
[42] The Applicant admitted to using “light” physical discipline to parent C. He also threatened to physically discipline J. (who was 8 years old at the time) if J. continued to physically attack C. This, the Respondent argues, demonstrates that the Applicant is unable to control his emotions, and poses a risk of harm to Samuel.
[43] The Respondent states that the Applicant regularly threatened and intimidated her during their relationship and since separation. He called her derogatory names and threatened to bring numerous lawsuits to damage her economically and emotionally.
[44] The Applicant admitted to using electronic devices in two instances to monitor the Respondent when he believed she was seeing her ex-spouse or other people. The Respondent states that this behaviour could be a criminal offence and reflects the Applicant’s poor judgment and disproportionate overreactions. The Respondent argues that this poor judgment must be considered in determining the Applicant’s parenting ability.
[45] The Respondent states that there is nothing in Dr. Robinson’s letter to assist the Court. Dr. Robinson does not speak to the Applicant’s mental health or a risk assessment as it relates to Samuel. It only confirms that he is attending therapy and has been committed to making changes to achieve his treatment goals.
Analysis
[46] The parties have been physically separated just over two months.
[47] The Applicant issued an Application dealing with the parenting issues only. His counsel, Mr. Mannella, will be amending the Application to add other claims for relief. The Respondent has not filed an Answer or a Form 35.1 Affidavit. Neither party has filed financial disclosure. The urgent motion material filed by each party is not a full or tested record. There are conflicting allegations made by each party against the other relating to parenting issues.
[48] I am asked to make an order at this very early stage in the proceeding which will have a significant impact on the litigation going forward, particularly as it affects Samuel.
Is the Applicant’s Motion urgent?
[49] Based on the material before me and submissions made at the initial telephone hearing on March 25, I determined that the issue of the Applicant’s access to Samuel was sufficiently urgent on that date to make a temporary without prejudice Order prior to a case conference specifying the terms of unsupervised access.
[50] The Applicant has had unsupervised parenting time with Samuel since March 25. He now asks that the schedule be increased to a modified 2/2/5 schedule. I must determine whether this issue is urgent in accordance with the Chief Justice’s Notice to the Profession dated March 15, 2020 and amended April 2, 2020 (“the Notice”).
[51] In Thomas v. Wohleber, 2020 ONSC 1965 (S.C.J.), Kurz, J. reviewed the recent cases that have considered the definition of “urgent” under the Notice. Kurz, J. set out a list of factors for the court to consider when deciding whether a motion is “urgent” and should be allowed to proceed:
[33] Rather than speculate whether the present test of urgency is even higher than the one [for bringing a motion prior to a Case Conference] already set out in Hood and Rosen, it is important to emphasize the scrupulousness with which the urgency standard must presently be enforced. That may even mean that some issues that may have been heard on an urgent basis because the test of urgency was not strictly applied in a non-pandemic world will not meet the high threshold set by the Notice. It may mean that some issues in a motion are urgent while others are not.
[38] In considering the dictionary definition of the term, urgent, the circumstances of urgency set out in the Notice, the examples of urgency offered in Hood and Rosen, and the cases cited above that apply the Notice’s test of urgency, I find that the following factors are necessary in order to meet the Notice’s requirement of urgency:
The concern must be immediate; that is one that cannot await resolution at a later date;
The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.
[39] The court’s adoption of the test of urgency in this time of pandemic requires all participants in the justice system, judges, lawyers and spouses/parents, to shoulder greater responsibility than they usually are required to assume in family litigation. They must assume this mantle of responsibility in order to ensure that the most urgent cases can continue be adjudicated by the court in these days of crisis.
[52] An equal time-sharing schedule for Samuel is very important to the Applicant. However, while the issue of unsupervised access and a fixed schedule were urgent when before me on March 25, the determination of a 2/2/5 or other equal time-sharing schedule does not meet the test of urgency in the context of the Notice. It does not need to be resolved immediately. There is additional information and evidence that needs to be exchanged and canvassed before a final determination can be made of what parenting schedule is in Samuel’s best interests.
[53] While I decline to make an order on the Applicant’s claim for a 2/2/5 schedule at this stage, I find it is appropriate to revisit the current interim schedule in the Order.
[54] I accept the principles set out by Pugsley J. in Robitaille v. Mangra, 2018 ONCJ 840 regarding the role of a motions judge on the review of an order made on an emergency basis “to “guide the parties back into the process mandated by the Rules” and “set the litigation back to a less contentious state.” at paragraph 36.
[55] At paragraph 37 of Robitaille, Pugsley J. states:” ...in matters such as these where the parties, figuratively speaking, come out swinging at the start of an Application, the best evidence of the way the parties intend to raise their children, separately but apart, is what they themselves did before the contemplated court action.”
[56] Prior to the parties’ separation, they worked together to co-parent Samuel. The time spent, and tasks performed may not have been equal, but each parent had an important and involved role. The Applicant cared for Samuel solely when the Respondent was working or travelling for work. Future plans were made for his sole caregiving.
[57] The primary consideration in this case is the best interests of Samuel. On the evidence before me I accept that both parents were and continue to be involved in Samuel’s care. Both parents participated in morning and evening routines, mealtimes, and medical appointments.
[58] The Respondent asks that I apply section 24(3) and (4) of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 as am. and find that the Applicant’s past conduct and alleged violence and abuse is relevant to his ability to parent and warrants limiting his time with Samuel.
[59] While I am concerned by the anger exhibited in some of the Applicant’s communication to the Respondent and the unfortunate events that took place on February 22, there is no evidence before me of real risk of harm to Samuel which would prevent ordering some additional parenting time for the Applicant. I believe that the Applicant has taken appropriate steps with the support of Dr. Robinson to begin to address his emotional issues.
[60] The CAST Report states that the parents’ conflict was “not characterized by ongoing violence” and the February 22 incident “appeared to be an isolated one.” There was no previous domestic violence, the parties are now physically separated, and the Applicant was seeking treatment for his anger issues. Based on these findings, the CAST closed their investigation.
[61] In determining what schedule of parenting time will be in Samuels’ best interests on a temporary basis, I have considered the criteria set out in the Children’s Law Reform Act, s.24 (2)(a) to (h). The list is not exhaustive. I have also considered Samuel’s young age the Respondent’s allegations of past conduct and abusive behaviour, much of which is denied by the Applicant.
[62] I make the following interim without prejudice Order:
a) The Applicant’s Motion for access to Samuel, born December 22, 2018 in a modified 2/2/5 schedule is adjourned without prejudice to be brought back for hearing on a date to be agreed upon after the complete exchange of pleadings, financial disclosure, the production by the Applicant of the clinical notes and records of Dr. Shannon Robinson, and questioning of the parties for one half day each on an agreed upon date;
b) The parties may continue to serve their court documents by email. The Applicant may be served at mannella@westonlaw.ca. The Respondent may be served at jedney@blaney.com and jslavec@blaney.com.
c) Pending the return of the Applicant’s motion, the Applicant shall have interim without prejudice access to Samuel, born December 22, 2018 as follows:
a. In week 1 from Wednesday at 3:30 p.m. to Thursday morning return to day care or to the Respondent at 9:00 a.m. and Friday at 3:30 p.m. to Sunday evening at 6:00 p.m.
b. In week 2 from Wednesday at 3:30 p.m. to Friday morning return to day care or to the Respondent at 9:00 a.m.
c. The exchange times above may be adjusted as agreed upon between the parties while they are both working from home during COVID-19 self isolation.
d) Except for the Applicant’s parenting time, above, Samuel shall reside with the Respondent.
e) Both parties shall comply with all COVID-19 safety measures while Samuel is residing with them.
f) The parties shall communicate through Our Family Wizard to schedule parenting time exchanges and information regarding Samuel.
g) As per the terms of the Justice Hood’s Endorsement dated March 23, 2020, this Endorsement is an Order of the Court enforceable by law from the moment it is released.
h) Counsel may contact the Family Scheduling Office to arrange a one-hour case conference before me on the issue of parenting time for Samuel in the weeks of May 18 or 25. The Family Scheduling Office will provide the parties with the time of the conference and the call-in particulars.
i) If counsel required my assistance to deal with the terms of the Applicant’s undertaking in the criminal proceeding as it relates to this Order, they may schedule a conference call with me through the Family Scheduling Office.
[63] I strongly encourage the parties to resolve the issue of costs of the hearings on March 25 and today between them. I refer the parties to Ribeiro v. Wright, 2020 ONSC 1829 where Pazaratz, J., wisely pointed out: “Right now, families need more cooperation. And less litigation.”
[64] If they cannot agree on costs, the parties may each make costs submissions of no more than 2 pages exclusive of Bills of Costs to be exchanged by email within seven business days and sent to me through the Family Scheduling Office.
E.L. Nakonechny, J.
Released: April 17, 2020
COURT FILE NO.: FS-20-16273 DATE: 2020417 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: George Pappas, Applicant – and – Jennifer Volavka, Respondent
ENDORSEMENT E.L. Nakonechny, J. Released: April 17, 2020