Court File and Parties

COURT FILE NO.: FS-18-000707 DATE: 20200601 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LINDSAY PATRICIA MILNES, Applicant AND: LUCAS COLIN PELTONEN, Respondent

BEFORE: Faieta J.

COUNSEL: Kathryn Hendrikx, counsel for the Applicant Self-represented, Respondent

HEARD: May 29, 2020

Endorsement

[1] The Respondent father brings this motion to vary a no contact, no communication Order that was granted on an ex parte basis on March 20, 2020.

Background

[2] The Applicant mother and the Respondent father separated in August 2017 following six years of marriage. They have two children, Tyler, age 8, and Ainsley, age 9.

[3] The Respondent pled guilty to a charge of criminal harassment on May 29, 2018 in relation to the Applicant. He was placed on probation.

[4] On October 17, 2018, the Respondent also pled guilty to charges of assault, failure to comply with recognizance and threats – property. He was incarcerated for 26 days and then released and placed on probation for a period of 24 months. Amongst other things, the probation requires that the Respondent not contact or communicate in any way with the Applicant and that he not be within 100 metres of any place where he knows the Applicant to live, work, go to school or worship except in accordance with a court order.

[5] Since that time, the Applicant appears to have resided primarily in Mexico and has had access to the children over 17 days as a result of their two trips.

[6] On January 3, 2019, a consent Order was granted. Amongst other things, it provides that the Applicant shall parent the children and that the Respondent shall have parenting time with the children every other weekend.

[7] The Respondent has lived outside of Canada since at least early 2019.

[8] On March 15, 2019, the Respondent was convicted of failing to comply with his recognizance, failing to comply with probation and threatening death. He was sentenced to 45 days in prison as well as a three-year term of probation. Amongst other things, the terms of his probation requires that the Respondent not contact or communicate in any way with the Applicant except in the presence of or through legal counsel and that he not be within 100 metres of any place where he knows the Applicant to live, work, go to school, frequent or any place that he knows her to be; attend and actively participate in counselling for substance abuse, domestic violence and mental health issues.

[9] In early February 2020, the Respondent attended a program at the Rythmia Life Advancement Center in Costa Rica. A letter dated March 25, 2020 from Dr. Jeff McNairy, Chief Medical Officer, states:

Mr. Lucas Peltonen has participated in the wellness program offered at Rythmia Life Advancement Center located in Guanacastle, Costa Rica. Rythmia is a licensed medical facility from the Costa Rican Ministry of Health. The focus of Rythmia is to help people overcome mental health issues such as anxiety, depression, addiction and anger management. Mr. Peltonen attended the program during these dates: February 2-9, 2020.

Mr. Peltonen has been incredibly transparent, open and honest about his issues while at Rythmia. Out of the more than 8000 patients we have seen since opening, Lucas was one of the most committed to his program that we have seen. He is a leader, strong communicator, and healthy example to the other patients about what is possible when you fully commit to personal development and healing. After working with Mr. Peltonen it is my clinical opinion that he has made great strides in his personal development. I am fully confident that he will be a successful member of society, contributing appropriately to the areas of interest in his life. Mr. Peltonen participated fully in the Rythmia wellness program, as well as met regularly with our clinical staff to focus on the various issues he has been working on. …

[10] On March 5, 2020, the Respondent sent the following email to the Applicant:

Time to grow up little girl, unblock myself and parents from Ainsleys phone! I’m heading to Canada tonite and expect to see them on spring break as I’m not spending $2,000 in flights to be played by you or Geoff Goff! My parents took them 3 Sundays prior for the day and now can’t communicate?

Please see a psychologist and get on medication, learn to heal and move forward but in the meantime give AINSLEY and Tyler an opportunity for success in the post Lindsay regime.

Gracias

[11] On March 6, 2020, the Toronto Police Service issued a News Release which states that:

Toronto Police Service is appealing to the public to help locate a wanted man who fled Canada. In the spring of 2019, the Toronto Police Service began an assault and harassment investigation.

Lucas Peltonen, 40, of Toronto, is wanted for:

1. 24 counts of Fail to Comply with Probation Order
2. Two counts of threaten death
3. Threaten bodily harm
4. Harassment by Repeated Communication
5. Intimidate Justice System Participant
6. Three counts of Obstruct Justice

Peltonen fled Canada and officers believe he has been living in Mexico but is planning on returning to the country imminently.

He is considered violent, and the public should contact 9-1-1 immediately if they see him. He should not be approached. …

[12] On March 10, 2020 the Respondent sent a further email to the Applicant.

[13] On March 12, 2020, the Respondent contacted the Applicant at her office 31 times.

Motion – March 20, 2020

[14] On March 20, 2020, in the belief that the Respondent father had returned to Canada, the Applicant mother brought a motion, without notice to the Respondent, for an interim restraining order and a no-contact order pursuant to sections 13.1 and 46 of the Family Law Act as well as section 35(2) of the Children’s Law Reform Act as well as an interim order terminating his access to the children. The following interim Order (the “Interim Order”) was granted:

(1) The Applicant shall maintain sole custody of the children being Ainsley Shelley Peltonen (born August 6, 2010) and Tyler Lucas Peltonen (born April 5, 2012), collectively “the children”, pursuant to the Order of Justice Diamond dated January 2, 2019;

(2) The Respondent’s parenting rights under the Order of Justice Diamond dated January 2, 2019, including his right of access, are terminated;

(3) The Respondent shall not contact or communicate directly or indirectly with the Applicant except through or in the presence of counsel;

(4) The Respondent shall not contact or communicate directly or indirectly with the children;

(5) The Respondent shall not come within 500 metres of the Applicant, her residence located at 225 Ranleigh Avenue, Toronto, Ontario; her place of employment, her place of worship or any place where he may reasonably expect the Applicant to be;

(6) The Respondent shall not come within 500 metres of the children, their residence located at 225 Ranleigh Avenue, Toronto, Ontario; their school, their place of worship or any place where he may reasonably expect the children to be;

(7) The costs of this motion shall be reserved to the return of this motion on April 2, 2020 at 10 a.m. by teleconference call;

(8) Counsel for the Applicant shall send a copy of this Endorsement and Order to the Respondent by email and text message as well as to Detective Jeffrey Gough of the Toronto Police Service; and

(9) This Endorsement is an Order of the Court enforceable by law from the moment it is released.

Motion – April 2, 2020

[15] At the hearing of the motion on April 2, 2020, the Respondent father was represented by Lisa Herman. She indicated that the Respondent was in Mexico and that he was expected to remain there until May, 2020. She also indicated that the Respondent wished to vary the ex parte Order but filed no materials in support. The return of the Respondent’s intended motion was scheduled for May 1, 2020. A timetable for the exchange of motion materials was set and costs of this attendance were reserved to be determined at the hearing of the motion on May 1, 2020.

Continued Unauthorized Communication with the Applicant

[16] The Respondent father continued to communicate with the Applicant directly and indirectly.

[17] On April 9, 2020 the Respondent sent a text message to the Applicant’s father apparently in response to receipt of the Applicant’s Outline of Costs:

Get control of your fuxking daughter … if your funding her stupidity then wake the fuxk up. She has audacity to spend 30K more on Hendrix this month and sends me the bill today?! Wake the fuck up that women needs sever mental help and the kids are screwed because of her.

Enough of this shit … I don’t like her nor care about her or the Milnes. You guys mean nothing to me. Time to fix the mess she creates.

[18] On April 15, 2020, the Respondent contacted the Applicant by telephone. He was emotional and very upset.

[19] Later that day, he sent the following text message to the Applicant:

I’m asking again to let me say hi to my kids. Please !!! It’s 843 pm they are not asleep When 1’m dead the kids will have lost the opportunity to learn and love from me. Take care I spent $7,000 for Lisa Herman to ask for phone calls with the kids and you said NO!! That’s 4 months of living expenses for me. I am literally begging you can I please hear their voices.

[20] That evening, the Respondent made 13 consecutive attempts to contact his daughter Ainsley through FaceTime Video on the Applicant’s cell phone. He then called Ainsley’s cell phone twice at 9:25 pm and ended at 9:27 pm. Ainsley did not answer the calls.

[21] On April 18, 2020 the Respondent called Ainsley’s cell phone a total of 18 times in an attempt to speak with her. Later that evening, the Respondent sent the following text message to the Applicant:

Tell them I love them and wish them a happy life; I want to say goodbye to them; I don’t want to live like this anymore; I’m ruining everyone’s life around me; I will always love u guys; God bless you; Like why????? Why is it you have to kill me? I’m almost dead.

[22] On April 19, 2020, the Applicant received a text from a person that did not identify themselves:

I am a friend of your ex husbands and also have me your kids. You not need to listen to me or care what I have to say, but he’s very upset and broken over the fact that he was attempting to return to Canada this Spring for the long-term benefit of the kids.

[23] On April 25, 2020, the Applicant received six telephone calls from an unknown number bearing a Fort Myers, Florida area code. The Applicant answered the first telephone call and spoke with the Respondent for about one minute. The Applicant answered the second telephone call and spoke with the Respondent for about three minutes. The Applicant received four more calls from this telephone number did not answer.

Motion - May 1, 2020

[24] No materials were filed by the Respondent father. Further, Ms. Herman did not appear at the hearing as she had advised this Court a few weeks earlier that she was no longer representing the Respondent. The Respondent did not attend the teleconference call however he advised the Trial Coordinator that he wishes to bring an urgent motion to vary the ex parte Order. I directed that the motion be heard on May 29, 2020 and deferred the consideration of the Applicant’s claim for costs to that date.

Arrest – May 2, 2020

[25] The Respondent father was arrested upon his return to Canada on May 2, 2020.

[26] On May 6, 2020, he was granted bail in the Ontario Court of Justice in relation to 30 charges (comprised of 22 counts of breach of probation, three counts of attempt to obstruct, three counts of utter threat via electronic communication, criminal harassment and threaten justice system participant). His surety is his mother, Donna-Lynn Peltonen. She has posted $75,000 as surety. The conditions for his release are as follows:

You must comply with the following conditions:

1. Reside with surety at 2507 Cypress Drive, Thunder Bay, ON and be amendable to the rules of the household;
2. HOUSE ARREST: Remain in your residence at all times EXCEPT,
   • For medical emergencies involving you or a member of your immediate family (spouse, child, parent, sibling);
   • When you are in the presence of your surety.
3. At you own expense be subject to GPS monitoring by Recovery Science Corporation (RSC) which shall include … ;
4. Do not contact or communicate in any way either directly or indirectly, by any physical, electronic or other means, with the following: Lindsay MILNES;
5. Do not possess:
   • Any weapon(s) as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).
6. Do not apply for an authorization, licence or registration certificate for any weapon as defined by the Criminal Code;
7. Attend counselling as directed by your surety;
8. Do not consume any alcohol or non-prescribed drugs;
9. Do not possess any electronic devices like a cell phone, laptop, computer, tablet, etc. and do not access any social media or the Internet; and
10. Access to your children to be arranged pursuant to a Family Court Order made after today’s date.

Motion - May 29, 2020

[27] The Respondent brings this motion to vary the Interim Order to set aside the contact and communication prohibitions and granting him joint custody, supervised access, contact with his children three times per week and costs of the April 2, 2020 motion.

[28] Despite statements in his affidavit which blame the Applicant for the circumstances in which he presently finds himself, the Respondent apologized to his wife and children for his actions at the outset of the hearing of the motion. The Respondent states that he suffers from mental illness:

Lucas has struggled from a concurrent mental health disorder since 2007, he attends scheduled appointments with healthcare professionals in addition to being on various medications. As per bail conditions and intent to regain access to the children, Lucas is enrolled in the following programs:

• Men’s Survival program and Men’s Engagement program, Catholic Family Centre, Thunder Bay, ON;
• PARS (commencing in June, 2020), Toronto, ON; and
• Integrated Day Treatment – 12 week outpatient at CAMH, Toronto, ON.

[29] Aside from the brief letter from Dr. McNairy, I have not been provided with a description of the Respondent’s mental disorders. The Respondent also stated that he is currently being evaluated by a psychiatrist located in Toronto for purposes of his outstanding criminal proceeding.

[30] A letter dated May 15, 2020 from Andrew Cecon of the Catholic Family Development Centre states:

I am writing to inform you that Lucas Peltonen has registered into Catholic Family Development Centre’s Men Engagement Program. It is a 12-week group with a focus on anger, relationships, and other men’s issues. He actively participated in our first meeting and offered his wisdom and support to other men in the group.

Lucas has also completed his intake with Catholic Family Development Centre. He will be starting individual counselling in the upcoming weeks. So far Lucas has demonstrated a great willingness to learn, grow, change and heal.

[31] The Respondent states that the CFDC group program and the CFDC individual counselling session are both one hour each and on Wednesdays. He attends by video conference. He has attended one session of the CFDC group program. I note that the Respondent has not commenced the PARS (Partner Assault Response) program. Finally, although he provided a letter from CAMH dated June 12, 2019 which states that the program was to start July 2, 2019, there is no evidence that the Respondent ever attended this program.

[32] The Respondent states that he intends to move to a new house in Mississauga and commence employment in June, 2020. These changes are subject to the terms of his bail conditions being varied.

[33] In my view, it is in the children’s best interests to reinstate communication with the Respondent under very controlled circumstances while he is receiving counselling twice a week with the CFDC. The Respondent has a very long way to go in addressing his illness. As a healthier father and a healthier relationship with the father will mean healthier children, it is my hope that the reinstatement of limited access serves as a catalyst for the Respondent to seriously engage treatment for his mental illness.

[34] Accordingly, the following provision of the Interim Order:

The Respondent shall not contact or communicate directly or indirectly with the children.

shall be amended so that it reads:

The Respondent shall not contact or communicate directly or indirectly with the children except that the Respondent may communicate with the children by text message on their cell phone or tablet on Mondays, Wednesdays and Fridays between the hours of 7 pm and 8 pm on condition that:

(a) The Respondent’s communication with the children shall be a child-focused conversation and he shall not disparage or speak ill of the Applicant nor discuss any issues regarding the children’s custody, access, support or other financial issues between the Respondent and the Applicant;

(b) The Respondent’s surety shall be present during the entire conversation that the Respondent has with his children;

(c) Within three days the Respondent shall deliver a copy of these Reasons for Decision to Mr. Cecon of the Catholic Family Development Centre within three days; and

(d) The Respondent shall ask that Mr. Cecon provide a letter to the Respondent before June 29, 2020 outlining the dates of the Respondent’s attendance at the CFDC group and individual counselling sessions as well as his assessment of the Respondent’s specific areas for addressing his growth and his recommendations for achieving that growth, including further counselling.

Costs

[35] The Applicant seeks her costs of all four attendances. Her outline of costs in respect of the ex parte motion heard on March 20, 2020 and the attendance on April 2, 2020 claims costs of $29,529.16 on a substantial indemnity basis or $22, 146.87 on a partial indemnity basis, inclusive of HST plus disbursements of $493.25. The Applicant also claims a further $10,000 for the two subsequent appearances however an outline of costs in respect of those items was not provided and thus is not recoverable under Rule 24(12.1) of the Family Law Rules. In my view,

[36] Costs in a family law proceeding have four purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, and; (3) to discourage and sanction inappropriate behaviour by litigants; (4) to ensure that cases are dealt with justly: Mattina v Mattina, 2018 ONCA 867, para. 10. Such awards must be reasonable and proportional: Mattina, para. 14; Rule 24(12) of the Family Law Rules.

[37] In the circumstances, the Rule 24(12)(a)(i) is of particular relevance. The costs of these proceedings were necessitated by the Respondent’s behaviour. The second attendance was unnecessary given the fact that the Respondent was unprepared to proceed. The Respondent states that his costs for that second attendance were $7,000.00. Given that the Respondent filed no materials, such amount gives some sense of the reasonableness of the Applicant’s claim for costs. In my view, it just that the Respondent pay costs of $25,000 in respect of attendances to date, within 30 days.

[38] Finally, the Respondent submits that he wishes to recover funds that have been wrongfully withheld by the Applicant in this proceeding. No materials were filed that explain this claim. Nevertheless, I grant leave to the Respondent to bring such motion. He should ensure that the reason(s) for his claim, the legal basis for the recovery of such funds and the evidence in support of his claim are reflected in the Notice of Motion and supporting affidavit that he delivers.

Conclusions

[39] Order to go, on an interim basis, as follows:

1. The paragraph of the Interim Order which reads “The Respondent shall not contact or communicate directly or indirectly with the children” is deleted and replaced with the following paragraph: The Respondent shall not contact or communicate directly or indirectly with the children except that the Respondent may communicate with the children by text message on their cell phone or tablet on Mondays, Wednesdays and Fridays between the hours of 7 pm and 8 pm on condition that:

   (a) The Respondent’s communication with the children shall be a child-focused conversation and he shall not disparage or speak ill of the Applicant nor discuss any issues regarding the children’s custody, access, support or other financial issues between the Respondent and the Applicant;

   (b) The Respondent’s surety shall be present during the entire conversation that the Respondent has with his children;

   (c) Within three days the Respondent shall deliver a copy of these Reasons for Decision to Mr. Cecon of the Catholic Family Development Centre; and,

   (d) The Respondent shall ask that Mr. Cecon provide a letter to the Respondent by June 25, 2020 outlining the dates of the Respondent’s attendance at the CFDC group and individual counselling sessions during May and June, 2020.

2. The Respondent shall pay costs of $25,000 to the Applicant within 30 days.

3. The Respondent is granted leave to bring a motion for the repayment of funds allegedly wrongfully withheld by the Applicant on June 29, 2020. The Respondent shall deliver his Notice of Motion, Supporting Affidavit and Affidavit of Service of these materials on the Applicant by June 9, 2020. The Applicant shall deliver her responding materials by June 18, 2020. The Respondent may deliver a reply affidavit by June 24, 2020.

4. This Order takes immediate effect without it being issued and entered.

Faieta J. Date: June 1, 2020