Court File and Parties

Court File No.: F1174/18-01 Date: May 12, 2020 Superior Court of Justice – Ontario Family Court

Re: Luke Potter, applicant And: Jaime Gibson, Judy Gibson and David Gibson, respondents

Before: MITROW J.

Counsel: Luke Potter in person Jaime Gibson, Judy Gibson and David Gibson in person

Heard: May 11, 2020

Endorsement

[1] The applicant father (“the father”) brings an urgent motion via teleconference first returnable on May 11, 2020. This motion is brought in accordance with the notice dated March 15, 2020 governing the hearing of urgent motions while normal court operations are suspended as a result of COVID-19.

[2] The respondents all reside together in Oshawa. The respondent, Jaime Gibson, is the child’s mother (“the mother”). The two remaining respondents are the mother’s parents (“the maternal grandparents”).

[3] The father and mother are the parents of a child, age 14 (“the child”), who resides with the father in London pursuant to a final order dated May 16, 2018 made in the Superior Court of Justice, Family Court, in Oshawa. The father has custody of the child pursuant to that final order.

[4] The basis of the father’s motion is that the respondents refused to return the child after an access visit.

[5] The father served two unsigned affidavits and the mother served one unsigned affidavit. These parties both were affirmed at the hearing of the motion and testified that their affidavits were true and correct.

[6] I find that the failure to return the child in accordance with the final order constitutes urgent circumstances.

[7] This case was recently before me: see Potter v. Gibson, 2020 ONSC 2268, a decision released April 14, 2020. In that earlier decision, the father brought a similar motion, but I found the father’s conduct in doing so to be unreasonable. The mother had a legitimate explanation that required self isolation with the child due to COVID-19, and the mother at the outset committed to returning the child immediately following the completion of the period of self isolation. At para. 15, I stated:

[15] Although I have found no urgency, given the high-conflict nature of this case I have elected not to dismiss the motion, and instead, the order below requires the return of the child by April 17, with this matter coming back before me to ensure that the child has been returned. The father’s motion did seek a police assistance order, but I find, at this time, that that is not necessary.

[8] Further, I stated, in part, at para. 18: “The parties are reminded that a court order is an order, not a suggestion, and must be obeyed. …”

[9] On the first access weekend following the child’s return to the father, the child was not returned in accordance with the final order. The scheduled access weekend was from Friday, May 1 to Sunday, May 3. Instead, the child was returned a week later on Sunday, May 10, being the day before the hearing of the motion.

[10] The evidence indicated that the child wished to stay an extra day and that she texted the father, who was not in agreement. The situation immediately escalated, with the child stating that she wanted to stay the entire week and return home the following Sunday on May 10. The father was not in agreement with this proposal. The respondents defended the child’s decision and refused to make any effort to comply with the final order.

[11] In her affidavit, the mother was supportive of the child’s wishes to stay another week. The mother deposes that this is the “first time” that the child has “stood up to her father with regard to expanding her visitation.”

[12] It appears, regrettably, that none of the respondents recalled the earlier endorsement that an order must be obeyed.

[13] The mother, and undoubtedly the maternal grandparents, empowered the child to stay another week. The conduct of all the respondents, I find, was patently unreasonable. They failed to act responsibly by returning the child as required by the order. There were no exigent or urgent circumstances for the child not to have been returned.

[14] Further, the respondents allowed the child to engage in direct communication with the father about the duration of her access visit. The respondents failed to act in the child’s best interests when they allowed the child to negotiate directly with her father. The final order, quite clearly, requires all the parties to communicate with each other through Our Family Wizard as to any issue involving the child. The conduct of the respondents placed the child in the middle of the adult conflict.

[15] There are some unusual provisions in the final order that result in the maternal grandparents being equally responsible with the mother, and perhaps more responsible for the failure to comply with the final order. That order, in relation to the regular alternating weekend access schedule, awards access to all three respondents. Thereafter, the order provides, in para. 9, that the maternal grandparents have the right to impose supervision conditions on the mother’s access:

9. The Respondent, Jaime Gibson shall have access with the child during the weekends and all other scheduled access times that the child is with the maternal grandparents. The Respondent Jaime Gibson shall have unsupervised access to the child unless this is deemed by the Respondents, Judy and Dave Gibson, not to be in [the child]’s, best interests. The frequency, duration and level of supervision required during the Respondent Jaime Gibson’s time with the child shall be at the sole discretion of the Respondents Judy Gibson and David Gibson.

[16] The high-conflict nature of this case also is evident from paragraphs 1 of the order:

1. The parties agree that exposing [the child] to parental/family conflict is not in her best interest. The parties agree to keep conflict between themselves away from [the child]. They will not speak negatively about each other to, or in front of [the child]. [The child] will not be asked to convey messages between family members. [The child] will not be questioned about the activities in the other relatives’ homes.

[17] The child’s age, undoubtedly, makes her wishes and preferences an important consideration. Sections 24(2)(b) and 64(1) of the Children's Law Reform Act, R.S.O. 1990, c. C.12 provide:

Best interests of child

24(2) The court shall consider all the child’s needs and circumstances, including,

(b) the child’s views and preferences, if they can reasonably be ascertained;

Child entitled to be heard

64(1) In considering an application under this Part, a court where possible shall take into consideration the views and preferences of the child to the extent that the child is able to express them.

[18] Given the high-conflict nature of this case, the child’s views and preferences are best ascertained from an independent source. During the hearing of the motion, both parties, when asked, agreed to an order appointing the Office of the Children’s Lawyer (“OCL”) to represent the child and that order is made below.

[19] Both parties were agreeable to a conference and the order below provides for a case conference. There may already have been a case conference but, in my view, a further case conference still would assist the parties and would give time for the OCL to make all necessary inquiries, prior to a settlement conference, should the OCL accept the case.

[20] During the hearing of the motion, all parties understood that the next scheduled access weekend was the upcoming long weekend commencing Friday, May 15, 2020 and that the access will include the Monday as set out in the final order. This also is reflected in the order below.

[21] It is the court’s expectation that the access schedule, as set out in the final order, shall be obeyed by all parties while this proceeding is pending before the court, unless this court orders otherwise. It is emphasized that all parties have an obligation to ensure that the child is taken to the court-ordered access exchange location on time, and on the date as required by the final order.

[22] The scheduling of the father’s motion was determined by the court. The fact that the child had already been returned to the father’s care the day prior to the hearing of the motion, as noted earlier, does not in any way excuse or diminish the unreasonable behaviour of all three respondents.

Order

[23] I make the following temporary order:

1. A case conference shall be held before me on June 8, 2020 at 11 a.m. via teleconference. The trial coordinator, if necessary, may change the time and the trial coordinator shall advise the parties of the call-in details for the teleconference.
2. By June 1, 2020 at 4 p.m., the parties shall serve each other with their case conference briefs via email and, at the same time, each party shall email his/her case conference brief, together with an affidavit of service, to the trial coordinator.
3. The respondents may elect to file jointly one case conference brief.
4. An order shall issue appointing the Office of the Children’s Lawyer to represent the child.
5. All parties shall complete and forward an Intake Form to the Office of the Children’s Lawyer as required in the order appointing the Office of the Children’s Lawyer to represent the child.
6. The respondents’ next scheduled access weekend, in accordance with the final order dated May 16, 2018, is the long weekend from 6 p.m. Friday, May 15, 2020 to 6 p.m. Monday, May 18, 2020.

“Justice Victor Mitrow” Justice Victor Mitrow Date: May 12, 2020