COURT FILE NO.: FS-20-63 DATE: 20200608
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Christopher Berthelot, Applicant AND: Tianna Hayward, Respondent
BEFORE: The Honourable Justice Van Melle
COUNSEL: Margaret Teixeira, for the Applicant D. Ian Kilgour, for the Respondent
HEARD: June 3, 2020 (via Zoom Conference)
E N D O R S E M E N T
[1] This motion was commenced by the applicant/father. On the return of the motion, the respondent/mother asked for an adjournment to allow her to file responding materials. It was granted and the motion was heard today. The following materials were served on the motion:
- Notice of Motion (father) dated May 6, 2020
- Draft Order
- Supporting affidavit dated May 5, 2020
- Responding affidavit (mother) dated May 28, 2020
- Two Bills of costs (father)
- Temporary Minutes of Settlement
- Cost submissions (mother)
[2] This motion was heard pursuant to the Superior Court of Justice’s protocol resulting from the COVID-19 pandemic. The motion was deemed urgent by the Local Administrative Justice for Brampton and indeed, given that the father had no idea where the mother and child were, and had not seen his son since February, it was urgent.
[3] The parties are the parents of Lucas Christopher Hayward Berthelot born June 1, 2018. According to the mother, they started dating in August of 2015 and subsequently commenced cohabitation. The father says they met in August 2016 after which the mother moved in with him.
[4] Throughout the relationship it appears that both parties had issues with drugs and alcohol. The father acknowledges going to rehab. The mother acknowledges having a personality disorder. The father acknowledges several suicide attempts which he now says were cries for attention.
[5] Both parties acknowledge their issues with substance abuse. In February of this year the mother entered rehab. She said she was there for six days and now feels much better. She does not dispute the father’s statement that she left Lucas with him while she was in rehab. Upon her return from rehab, she took Lucas and left without telling the father that they were leaving and where they were going.
[6] The Children’s Aid Society is involved with this family. In a letter attached to the father’s reply affidavit, Ms. Shaw, legal counsel to the Peel Children’s Aid Society, says: “It is incorrect to assume that the Society does not have any protection concerns.” She writes that the Society can write a summary letter of its involvement to date and provide it to the father and the mother. She does not say the basis of the concerns and without further clarification, and given the affidavit evidence, I can only assume those concerns relate to both parents.
[7] Certainly based on the materials before me, I have concerns about both parties. However, at this time the father’s primary goal is to have access to Lucas. He is not challenging the mother’s ability to parent Lucas.
[8] Prior to instituting legal action, the father’s lawyer attempted to contact the mother by e-mail and received no response. The mother was served with the Notice of Motion, by e-mail on May 6, 2020. The motion was originally scheduled for May 20, 2020 to give the mother two weeks to respond. A lawyer on her behalf advised the court on May 19 that he had been retained. He attended the virtual motion on May 20 (as did the mother) and sought an adjournment to file a response. The motion was adjourned until today on the understanding that the father would have access in the meantime. The parties were able to work out temporary minutes of settlement whereby the father had frequent access, supervised by his mother.
[9] The mother says that she left without telling the father where she was going based on “advice” she had received from the Children’s Aid Society and the Peel Police. She says that Peel Police advised her to just stay safe with Lucas and her mother away from the father. Further on in her affidavit, she says that she received advice from Peel CAS and Peel Police not to take the applicant’s calls and disclose her whereabouts to him. This may be so, but people cannot avail themselves of self-help remedies. They should not take legal advice from the police. In any event, these statements in her affidavit are hearsay and do not explain her failure to deal with this issue when she was contacted by father’s counsel, or indeed her delay in responding to this motion when served with materials and when sent a notice by the court.
[10] The mother’s position on this motion is that the father should have no access to Lucas.
[11] There is nothing in the materials that would compel me to make an order of no access. On a temporary without prejudice basis the father will have Lucas:
- Every Tuesday and Thursday from 5:30 p.m. to 8 p.m.;
- Alternating weekends from Saturday at 9:30 a.m. to Sunday at 8:00 p.m. commencing June 20, 2020;
- The access is to be supervised by the father’s mother;
- Any other access as agreed to between the parties.
[12] Both parties are entitled to daily video telephone calls while Lucas is in the care of the other.
[13] As I have stated herein, I remain concerned about the ability of the parties to parent Lucas. An order will issue requesting the involvement of the Office of the Children’s Lawyer.
[14] No further motions are permitted without a case conference. A case conference should be arranged as soon as possible.
[15] With respect to the costs from the May 20, 2020 appearance father’s counsel has submitted a Bill of Costs. He seeks full indemnity costs of $3,141.53 and substantial indemnity costs of $2,356.15. The father is entitled to his costs for the May 20th appearance as the mother should not have disappeared with the child and without advising as to her whereabouts. I award costs to the father fixed at $1,500.00 to be paid at the rate of $100.00 per month commencing on July 1, 2020.
[16] The father came prepared with a Bill of Costs for the June 3, 2020 motion. The mother did not. I asked the mother to provide a Bill of Costs by June 8. Instead of a Bill of Costs, I received cost submissions. In the cost submissions, the mother’s counsel says his fees and disbursements for the motion were $2,000.00 plus $260.00 GST.
[17] I asked the parties to provide any relevant Offers to Settle. The father provided an offer which did not better my order in that I ordered supervised access. The access in the offer was to be unsupervised. Costs of the June 3, 2020 motion are reserved to the trial judge.