Court File and Parties

COURT FILE NO.: FS-14-81793 DATE: 2020-05-29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

James Scot Thomson Applicant

Shawn Philbert, for the Applicant

- and -

Jill Fleming Respondent

Faryal Rashid, for the Respondent

HEARD: May 28, 2020 (by teleconference)

RETURN OF MOTION FOR ACCESS

Baltman J.

[1] This is the return of an urgent motion for access that I heard on April 2, 2020. The Applicant Father was seeking resumption of access to the couple’s seven-year-old daughter, Kaelin. He had been granted overnight access under previous court orders but that ceased in June 2019 after an altercation during an access transition.

[2] As with the motion heard on April 2, 2020, this hearing was conducted by teleconference due to COVID-19 restrictions.

[3] In my decision of April 6, 2020, I determined that the Respondent Mother had been wrongfully withholding access. I ordered (amongst other relief) that: (a) daily virtual access begin immediately; (b) the parties immediately retain a mediator; and (c) the matter return before me today to address the resumption of in-person access: see Thomson v. Fleming, 2020 ONSC 2036.

[4] Today there is both good news and bad news. On the positive side, after some brief skirmishing, the parties did resume virtual access (albeit strained) through WhatsApp. They also retained Mr. Steven Cross as their mediator, approximately three weeks ago. Counsel report that in a recent, preliminary conference call with them, Mr. Cross advised that progress is being made, but that in-person visits should not resume for another five weeks. He perceives that the Mother is the “obstacle”; however, it is not based on malice but rather on her longstanding mistrust of the Father. She is now following through on Mr. Cross’ recommendations.

[5] It is very promising to see that Mr. Cross is in place and both parties are working with him constructively. I urge them to continue in that vein.

[6] Both counsel requested another follow-up with the court in early July to further address access, aided by a brief progress report from Mr. Cross. I agree that would be helpful.

[7] On the negative side, there was troubling behaviour from each side since the last hearing. Mr. Philbert, counsel for the Father, has fired off numerous confrontational and threatening letters to Ms. Rashid, counsel for the Mother, that are uncalled for. Moreover, immediately after my decision of April 6, 2020 was released, Mr. Philbert wrote a letter to Ms. Erin Pawley, the social worker who has been working with Kaelin, advising that “it was instructed by the court that your involvement be removed.” That was incorrect. Although in my decision I identified serious concerns about Ms. Pawley’s involvement, I did not make any comment about her future role.

[8] In addition, both counsel agree that according to Mr. Cross, Ms. Pawley has been working cooperatively with him and Kaelin so that Kaelin can develop a positive relationship with her father.

[9] On the Mother’s side, she has not paid the $1,000 in outstanding costs which I ordered payable “forthwith” in my Order of April 6, 2020. The initial excuse was alleged difficulties in making the payment by credit card. Apparently, no one thought of payment by cheque or e-transfer. Soon after, however, it became apparent that the Mother had simply decided to defer the payment, claiming, according to her counsel, that she “had to make a choice as to whether she could retain [Mr. Cross] or pay [the cost award].”

[10] Let me be clear: a cost order is not a “choice”. And “forthwith” means now, not when it suits the party. It is foundational to our system of justice that court orders be obeyed. As O’Connell J. stated in Jassa v. Davidson, 2014 ONCJ 698, at para. 44, “[c]ourt orders are not made as a form of judicial exercise. An order is an order, not a suggestion and non-compliance must have some consequences”. See also Cummings v. Cummings, 2020 ONSC 3093, at para. 46.

[11] I recognize that the Mother is very concerned about the costs of this litigation. Paradoxically, however, it is she who is currently causing much of it. Her rigid refusal (at least until very recently) to reasonably address the access issue has triggered the need for these court appearances. The sooner she accepts the reality of ongoing and expanded access, the sooner the parties can stabilize and withdraw from the courts.

[12] In the meanwhile, I have little sympathy for her claimed impoverishment. She is a kindergarten teacher who earns over $96,000 annually in a highly secure position. Unlike millions of citizens whose employment has been eliminated or reduced in the COVID-19 world, her job, income and benefits are protected.

[13] Had it not been for Mr. Philbert’s misrepresentation in his correspondence to Ms. Pawley, and the overly aggressive stance he has taken toward Ms. Rashid, I would have imposed a further costs award on the Mother to address her defiance. Instead, in recognition that both sides acted improperly, there will be no costs ordered against either party for today. The Mother shall have until June 11, 2020 to deliver the outstanding $1,000 to Mr. Philbert’s office. Should she default, I will consider a severe remedy, including the options set out in r. 1(8) of the Family Law Rules, O. Reg. 114/99.

[14] As I stated to counsel during the teleconference, we all have a part to play in resolving this matter. I will continue to monitor the access issue in order to maintain continuity and give directions, where required. The parents must each put Kaelin’s best interests first, not just in their words but through their behaviour. The lawyers play an essential role in guiding their clients to adopt reasoned and balanced positions that accord with the law, and not simply be a mouthpiece for them. Finally, and fortunately, Mr. Cross is now on board to mediate this delicate but vital transition.

[15] In conclusion, I order the following:

1. The Respondent Mother shall pay the outstanding costs of $1,000 by no later than Thursday, June 11, 2020.
2. The parties shall continue having sessions with Mr. Cross, as he directs, and shall co-operate with his recommendations.
3. This motion will resume before me on Thursday, July 9, 2020, at 10:00 a.m.
4. The court requests that Mr. Cross provide a brief progress report to both counsel, in writing, by Thursday, July 2, 2020.
5. Counsel shall confer by telephone in an attempt to resolve any outstanding issues by Friday, July 3, 2020.
6. Counsel shall exchange and file, by e-mail, a summary of any outstanding issues (solely with respect to access) by noon on Tuesday, July 7, 2020. Each summary shall not exceed three pages.
7. Counsel shall provide a copy of this endorsement to their respective clients and to Mr. Cross.
8. There are no costs of today’s attendance.

Baltman J.

Released: May 29, 2020