ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Mark Callwood
Applicant
– and –
Matthew Callwood
Respondent
-and –
Cinthia Purdy
Penelope Gardner, for the Applicant
Representing himself
David Danielson, for the Respondent Purdy
HEARD: May 28, 2020
Justice H. Desormeau
RULING ON MOTION
Overview
1This is yet another episode in the long saga of caregivers fighting to for ultimate control, all in the name of love for a child.
2The child in question is Tyson Purdy-Callwood, born February 6, 2012. There are three parties in this file: Mark Callwood (hereinafter “Mark”), the child’s uncle and primary caregiver; Matthew Callwood (“Matthew”), the child’s biological Father, and Cinthia Purdy (“Cinthia”), the child’s biological Mother.
3Generally speaking, Tyson resided with Cinthia since approximately May 2012, with intermittent Child Protection involvement. On or about September 2017 until December 2018, Tyson resided with Cinthia’s sister, then in December 2018, Tyson went to reside with his uncle Mark in Cornwall.
4At this motion and cross motion, the following relief is being sought
a. By Matthew:
i. A finding that Mark is in contempt of court, and that the court refuse to hear any motion or other proceeding until his contempt has been purged;
ii. Mark is ordered to return the child to the city of Cornwall;
iii. An Order prohibiting Cinthia from allowing J.N. and his girlfriend Haley in her home or around Tyson;
OR
iv. In the alternative, Cinthia shall have access in the community with the child, twice weekly for 4.5 hours per visit or one 9 hour visit;
v. Matthew shall have access to the child, three times weekly, Mondays and Thursdays from 2:00 p.m. to 7:00 p.m. and Tuesdays from 5:00 p.m. to 6:00 p.m.;
vi. Mark and his spouse Jacquline Knox shall comply and not deny Matthew his access or telephone/skype calls with the child;
OR
vii. Matthew shall have access to the child 18 hours per week, in parity to Cinthia’s current access;
viii. Costs of $1,500.00.
b. By Cinthia:
i. The following paragraphs of Matthew’s Affidavit dated April 17, 2020, are hereby struck: 3–5, 7, 8, 10, 12–19, 23–25, 28–39, 42, 44, 44–47, and all paragraphs under the “Relief Being Sought on Motion” heading;
OR
ii. an order striking whatever paragraphs, or parts of paragraphs, of Matthew’s Affidavit dated April 17, 2020 that the Court deems appropriate;
iii. Tyson shall reside primarily with Cinthia in Smiths Falls;
OR
iv. Cinthia shall have generous access to Tyson of no less than twice per week, and Tyson shall reside in Perth with Mark. Mark shall ensure that Cinthia is not denied access to Tyson;
v. Matthew shall have video access visits with Tyson twice per week for the remainder of Ontario’s Covid-19 emergency. These video access visits shall last as long as Tyson and Matthew wish to speak with one another. Matthew shall not make disparaging remarks about Cinthia during these calls. Once Ontario’s Covid-19 emergency is over, as determined by the Province, Matthew shall have two access visits per week, for up to 4.5 hours per access visit (or one 9 hour visit);
vi. No party shall make disparaging remarks about the others within earshot of Tyson;
vii. The Ontario Provincial Police shall enforce the terms of this order;
viii. Costs.
c. By Mark: Despite Mark not serving or filing a Notice of Motion, he asks the court to revisit the issue of his residing in Perth with the child, and that paragraphs 4-37 Cinthia’s Affidavit of May 26, 2020 be struck.
5The court has received the following documents in support of this motion and cross motion:
a. Matthew Callwood: 14B Motion form, Affidavit of April 16, 2020 (commissioned April 17) which is 27 paragraphs, another dated April 16, 2020 (commissioned April 17, 2020), consisting of 47 paragraphs with case law, Updated 35.1 Affidavit, Notice of Motion and Notice of Contempt motion dated May 2, 2020, and an Affidavit dated April 17, 2020 which references events following April 27, 2020.
b. Cinthia Purdy: Notice of Motion April 26, 2020, Affidavit of April 25, 2020, Notice of Motion dated May 26, 2020 and Affidavit dated May 26, 2020.
c. Mark Callwood: Affidavits of April 22, 2020, May 25, 2020 and May 27, 2020.
6Both Mark and Matthew’s Affidavits were affirmed on the record prior to commencing the motion. Further, Mark indicated that he was not relying on his May 25, 2020 Affidavit as it was replaced by his May 27, 2020 Affidavit. The May 25, 2020 Affidavit is hereby withdrawn.
Housekeeping issues
7At the outset of the Motion, the parties advised the court that the OCL Clinical Investigator (“OCL CI”) had closed their file due to Ms. Purdy’s lack of cooperation with the investigation. No party strenuously objected to this court asking for the OCL to reconsider keeping the file open.
8For reasons that are set out throughout the court’s numerous endorsements in this file, it would be most beneficial to have an independent investigation to help the court determine what is in Tyson’s best interest. I find it would be in Tyson’s best interest to request the OCL to reconsider their discontinuance of their investigation, and as such, a fresh order shall issue. The parties are directed to send in their intake forms by June 18, 2020, failing which, a negative inference may be made against any defaulting party.
9Matthew advised the court that he was not proceeding with his motion to add any other parties to the file. As such, the motion for same is dismissed.
10Matthew also advised that he was no longer proceeding with his request that Mark be found in contempt for relocating outside of Cornwall, given Tyson had returned. That motion therefore is dismissed. Further, upon review of the Notice of Contempt Motion, Matthew was seeking an order for contempt against Mark for having removed Tyson from the City of Cornwall. As noted on the record by the court, the restrictions regarding removing Tyson from the City of Cornwall were imposed by me, against Matthew, not Mark. That head of relief was not proceeded with by any party, and is hereby dismissed.
11Consequently, still at issue in the context of the contempt motion are the alleged denials of physical and telephone access.
Deficiencies
12I make the following observations regarding the deficiencies in the motion materials:
a. Matthew’s Notice of Contempt Motion was served via email, which is not in compliance with the Rules. However, as noted in the endorsement of Champagne J. dated April 27, 2020, the parties are permitted to serve one another by email during the pandemic. As such, in these particular circumstances, having received motion materials Mark responding to same, email service of the Notice of Contempt Motion is hereby deemed effective.
b. On May 27, 2020 at 11:59 a.m., Mark served via email a fresh Affidavit. Mark asked all parties to disregard the Affidavit dated May 25, 2020 as he replaced it with the Affidavit dated May 27, 2020, which he stated he would rely upon for the several motions of May 28, 2020. This fresh Affidavit was not served in compliance with the Family Law Rules. However, no objections were raised regarding late service despite the opportunity to do so.
c. Cinthia’s Notice of Motion and supporting Affidavit were also short-served, and, as remarked Matthew, leave was not granted allowing her to file a Motion. However, as noted in Champagne J.’s endorsement of April 27, 2020, the issues addressed were ordered to proceed to Motion. I find this included the alternate relief as plead by Cinthia in her Notice of Motion. As for the late service of the Motion materials, the court specifically asked Mark and Matthew if they wished an opportunity to respond given the short service and their lack of opportunity to respond to allegations contained therein. They both declined the opportunity to respond, with full knowledge that the evidence would go in uncontested. As such, I find that Cinthia’s Motion materials are properly before the court.
13The first endorsement on this file was on February 8, 2019. In the sixteen months since then, this file was dealt with by the judiciary approximately fifteen times, including this motion. The record speaks volumes about the litigious nature of the parties, the lack of cooperation between them, and each parties’ attempts to control the narrative.
14The issue of access has been ongoing since Tyson was born. Though Matthew was without access to Tyson for a long while, on August 8, 2019 it was ordered that Matthew would have access to Tyson twice per week, for two hours per visit at the Centre York Center (“CYC”) (supervised access centre). Subsequently, a dispute ensued regarding user fees and scheduling, which were resolved at a case conference before me on September 16, 2019.
15On October 21, 2019, the parties were still having difficulty with setting up the access regime. At that motion, I ordered that Matthew would have access to Tyson “up to twice per week, up to two hours per visit, supervised at the CYC.” I felt it was necessary to include that “Both Mr. Mark Callwood and Mr. Matthew Callwood are to complete intake forms, attend intake appointments, and negotiate in good faith regarding access times.” I added that “should the CYC be able to offer two weekday access visits, as opposed to weekend access visits, both parties are to make arrangements for that to occur, even if the access is not for two hours per visit, or not the same day each week.” I also ordered that Matthew would continue to have telephone access to Tyson twice per week.
16On November 21, 2019, another motion was heard by me, where Matthew’s telephone access to Tyson was reiterated, and I set specific days and times for his physical contact with Tyson: “Mondays and Thursdays, from 3:00 p.m. to 7:00 p.m., in the Cornwall community.” Given the already growing number of motions and level of conflict, I determined it was appropriate to case manage this file, and ordered that neither party could bring a motion without my leave or that of my designate. I also ordered that Tyson was not to be removed from the city of Cornwall without leave of the court. The order regarding Tyson leaving the city of Cornwall was to ensure Matthew’s access would take place in Cornwall, not elsewhere.
17On January 7, 2020, I received a Basket Motion, without notice, filed by Mark, dated December 16, 2019 regarding allegations that Matthew was travelling with the child without a valid driver’s licence or insurance. I also received Mark’s Basket Motion dated January 6, 2020. Both motions were adjourned to the previously scheduled motion date of January 30, 2020, to be spoken to before me at that time.
18At the January 30, 2020 motion, Mark withdrew his two above Basket Motions. I varied the transportation restrictions on Matthew, permitting him to personally pick up and drop off Tyson for access. Due to continuous access issues and Matthew’s employment, I ordered that access would no longer be on fixed days, and would henceforth occur on Matthew’s day(s) off during the week, from 2:20 p.m. to 7:00 p.m. Mark also raised, for the first time, his intention to move to Perth as of March 1, 2020. As such, I scheduled the motion to determine mobility for February 26, 2020.
19On February 26, 2020, for reasons set out below, I dismissed the mobility motion and dismissed the request to transfer the file to Perth. On the issue of access, despite court orders stating that Matthew was to have access twice per week, he had not had access since the January 30, 2020 court date. Given that he was no longer employed, I again ordered access take place on set days, Mondays and Thursdays, from 2:20 p.m. to 7:00 p.m. With Cinthia having filed her pleadings, I was able to order that she have access to Tyson twice per week for 4.5 hours per visit, or 9 hours per week, as approved of by Family and Child Services of Lanark, Leeds and Grenville (“FCSLLG”), with the level of supervision as required by them. The matter was then listed for a settlement conference, trial management conference and set down for trial for the June 2020 running trial list.
Motion to Strike
20Cinthia’s Notice of Motion asked that the court strike the following paragraphs of Matthew’s Affidavit dated April 16, 2020, affirmed April 17, 2020 (to clarify, as there are three Affidavits with similar dates, this is in reference to the 47 paragraph Affidavit): 3-5, 7, 8, 10, 12-19, 23-25, 28-39, 42, 44-47, and all paragraphs under the “Relief Being Sought on Motion” heading, or alternatively, any paragraphs, or parts of paragraphs, of Matthew’s Affidavit that the court deems appropriate.
21Cinthia argued that much of what was contained in Matthew’s Affidavit should be struck, pursuant to Rule 1(8.2) Family Law Rules (“FLR”), as it contained inadmissible material, argument, hyperbole, wastes everyone’s time, and it was a careless and reckless Affidavit that should not be admissible. She contended that judges are human, and it can be difficult to disabuse oneself from what is read in the Affidavit. Out of the 34 paragraphs Cinthia sought to have struck from Matthew’s Affidavit, the main arguments advanced were: argumentative, speculative, opinion evidence, citing case law, legal argument, hearsay, improper Affidavit materials, irrelevant, orders sought, and nuisance.
22As stated above, Matthew did not respond to the Notice of Motion filed by Cinthia, and his position at the motion was that he placed himself “in the court’s hands”.
23In his Affidavit dated May 27, 2020, Mark asked that paragraphs 4 to 37 of Cinthia’s Affidavit be struck. In support of his request, Mark referenced an interpretation of the email from the Society dated May 26, 2020. This email is touched upon below. Suffice to say, the Society takes no position on this family court matter. Mark also asserts that portions of Cinthia’s Affidavit should be struck as there was information regarding J.N. and Haley, which are subject to a publication ban in criminal court.
The Law
24It is clear from the case law that striking pleadings is a drastic remedy that should only be applied in exceptional circumstance, where no other remedy would suffice: See Kovachis v. Kovachis, 2013 ONCA 663, and Chiaramonte v. Chiaramonte, 2013 ONCA 641. In this case, what is being requested is striking portions of Matthew and Cinthia’s Affidavits.
25Rule 1(8.2) FLR provides that the court may strike out all or part of any document that may delay or make it difficult to have a fair trial, or that is inflammatory, a waste of time, a nuisance or an abuse of the court process.
26Rule 14(19) FLR states that an Affidavit may contain information that the affiant has learned from someone else, but only if, (a) the source of the information is identified by name and the Affidavit states that the person signing it believes the information is true; and (b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.
27Affidavits should not contain argument and should not draw inferences from the stated facts, as that is the duty of the court once all of the evidence has been heard: See Xeni Gwet'in First Nations v. British Columbia, 2004 BCSC 1374 at paragraph 16.
28In a case with the similar level of acrimony as this one, Kurz J. in Alsawwah v. Afifi, rightly pointed out how statements set out in Affidavits can have a negative effect on the affiant’s evidence. In Alsawwah, he noted that the Mother’s credibility was minimized due to her consistent use of hyperbolic language; her inability to speak of the Father without the use of a pejorative adjective to define his motivations or conduct. Kurz commented “[h]er language so demonizes the Father and his motivations that it is hard to see the objective truth hiding behind the thick gauze of her denigration. [71] Rather than bolster her credibility, the Mother's insistence on disparaging adjectives to describe every act of the Father diminishes it. It tells the court that she is so caught up in her attacks on the Father's character that she loses track of the facts that she attempts to convey.”: Alsawwah v. Afifi, 2020 ONSC 2883, at paras. 70 and 71.
29Kurz J. concluded Alsawwah with the following warning to litigants, which would behoove the parties in this case to pay heed:
In the hopes of lowering the rhetorical temperature of the future materials of these parties and perhaps those of others who will come before the court, I repeat these essential facts, often stated by my colleagues at all levels of court, but which bear constant repetition:
Evidence regarding a former spouse's moral failings is rarely relevant to the issues before the court.
Nor are we swayed by rhetoric against the other party that verges on agitprop.
Our decisions are not guided by concerns of marital fidelity. A (non-abusive) partner can be a terrible spouse but a good parent. Everyone is supposed to know this, but all too often I see litigants raise these issues for "context".
Exaggeration is the enemy of credibility. As it is often said, one never gets a second chance to make a first impression. If that impression, arising from a parties' materials or argument, is one of embellishment, that impression will colour everything that emanates from that party or their counsel.
Affidavits that read as argument rather than a recitation of facts are not persuasive. They speak to careless drafting.
Similarly, hearsay allegations against the other side which fail to comply with r. 14(18) or (19) are generally ignored, whether judges feel it necessary to explicitly say so or not.
A lawyer's letter, whatever it says, unless it contains an admission, is not evidence of anything except the fact that it was sent. The fact that a lawyer makes allegations against the other side in a letter is usually of no evidentiary value.
Facts win cases. A pebble of proof is worth a mountain of innuendo or bald allegation.
Relevance matters. If the court is dealing with, say an issue regarding parenting, allegations of a party's failures regarding collateral issues, say their stinginess or the paucity of their financial disclosure, are irrelevant and counter-productive. They do not reveal the dark soul of the other side or turn the court against the allegedly offending spouse. Rather, they demonstrate that the party or their counsel is unable to focus on the issue at hand. Often those materials backfire leading the court to place greater trust in the other side.
One key to success in family law as in other areas of law is the race to the moral high ground. Courts appreciate those parties and counsel who demonstrate their commitment to that high ground in both the framing and presentation of their case.
While dealing with that moral high ground, many capable counsel advise their clients against "me-too" ism. One side's failure to obey a court order or produce necessary disclosure does not give licence to the other side to do the same. Just because the materials of one side are incendiary or prolix, that does not mean that the other side is required to respond in kind. Judges are usually aware when a party has crossed the line. Showing that you or your client does not do the same is both the ethical and the smart thing to do.
Alsawwah v. Afifi, supra, at para. 108
Analysis
30At this motion, Matthew is self-represented. However, he has the same obligations and responsibilities as every other litigant that presents themselves before the courts, they are all deemed to know the Rules, and ignorance of same is not an excuse.
31Having regard to all of the above, the following portions of Matthew’s 47 paragraph Affidavit dated April 16, 2020, affirmed April 17, 2020 are struck:
The entire paragraph: “I have attached two case laws [sic]…”: It is not appropriate to reference case law in an Affidavit. (See #5, Alsawwah)
The entire paragraph: “Mark Callwood has claimed that the police had advised him that I am not to have access to my child until the Emergency Act has been lifted. The case I reference below talks about….”: Double hearsay and the name of police officer was not mentioned. Further, reference to case law and attempting to apply it to this case is not appropriate in an affidavit, nor is an Affidavit the place for argument.
13-16: The entire paragraphs: All of the paragraphs reference the case law attached, the four part test to apply regarding Covid-19, and reference another case.
“Attempts were made to try and resolve this issue and were ignored by both the applicant and his counsel.”: Settlement discussions, settlement privilege, irrelevant. (See #2, 5, and 9 Alsawwah)
The entire paragraph: “I wish to take the time to define “Parity”….”: Interpretation of the meaning of a word, relevance, and argument.
“I can never understand this file when it comes to Cornwall Courthouse and constant “accidental” errors when it comes to this file. I had a $1500.00 cost [sic] put against me due to the judges not liking the “Callwood brothers” as they refer to us, and sent this file to Perth, Ontario. After 3 different judges in Cornwall challenged the jurisdiction of the file for it to come right back to Cornwall. These errors need to be amended.”: Speculative, nuisance, and irrelevant.
The entire paragraph: “The Application filed by Mark Callwood and the Answer of Cinthia Purdy attributed to my person (Matthew Callwood) is scandalous, malicious, and inflammatory and was designed to prejudice the Respondent in the eyes of this Honourable Court. The unconscionable act of publicizing inflammatory statements without verifying the authenticity of the allegations prior to the disseminating them against my person is scandalous to say the least.”: Highly argumentative.
The entire paragraph: “The Court Orders since the very beginning of the litigation since the birth of Tyson, are illegal, far-reaching and overbearing and a clear violation of Section(s) 2(a), 2(b), 2(c), 2(d), 6(1), 6(2), 7, 9, 10(a), 11(a), 11(d) and 11(g) of the Constitution Act, 1982, Part 1 of the Canadian Charter of Rights and Freedoms. All potential person affected by these Order(s) have essentially been presumed guilty by association and been denied due process.” : Highly argumentative, opinion, and rhetorical invective.
“…I get put on the most strictest [sic] form of access that I have ever seen in history of family law litigation. The other parent has 7 children in which only 3 are in her care due to her cognitive ability to parent and manage children even at one point hospitalizing her oldest child with severe dehydration and showed no emotion or didn’t even recognize the fact of how seriously ill she was but is always given the upper hand.”: Highly argumentative, opinion, and irrelevant as each case is decided on the facts presented. (See #5 and 9, Alsawwah)
“….the court turns a clear blind eye…”: Highly argumentative, opinion, rhetoric, and irrelevant. (See #5, Alsawwah)
The entire paragraph: “The Cornwall Police Services have advised…the Sergeant on duty….s.127 CCC…”: Hearsay and sets out law.
32After reviewing Cinthia’s Affidavit dated May 26, 2020 (the only Affidavit with 37 paragraphs), I am not persuaded that any portions of this Affidavit are improper or contravene any rules of evidence or the Family Law Rules. As such, Mark’s request to strike paragraphs 4-37 is dismissed.
33There are no motions before the court to strike any of Mark’s affidavits, or Matthew’s other Affidavits. However, as required by the rules of evidence and/or the FLR, I have disregarded inappropriate hearsay, argument, recitation of the law and/or interpretation of same, settlement discussions, and all of the irrelevant statements contained in both Matthew’s and Mark’s Affidavits.
34Though the legal argument was struck from Matthew’s Affidavit, I have nevertheless considered the case law attached to his Affidavit.
Contempt
35Matthew requested an order that Mark be found in contempt of the February 26, 2020 order for denying Matthew telephone calls twice per week and physical access to the child. As relief, Matthew asked that the court refuse to hear any motion or other proceeding brought by Mark until he has purged his contempt, and that Matthew have access to the child three times per week: Mondays and Thursdays from 2:00 p.m. to 7:00 p.m. and Tuesdays from 5:00 p.m. to 6:00 p.m.
36The February 26, 2020 court order states that Matthew is to have access to Tyson twice per week, on Mondays and Thursdays, from 2:20 p.m. to 7:00 p.m. Matthew shall pick Tyson up at school at the end of the school day, and return the child to Mark’s home at 7:00 p.m.
37There are numerous orders confirming Matthew is to have telephone access to Tyson twice per week. Due to Covid-19, I do not have access to the entire Continuing Record. However, having case managed this file for quite some time, I am aware that the file is in its fourth volume, approximately one foot thick, with references to orders pre-dating the 2018 change in Tyson’s place of residence. Based solely on the endorsement record to which I have access, the endorsement of Champagne J. on August 8, 2019 references Mark’s request to terminate telephone access between Tyson and Matthew as he alleged Matthew speaks negatively to Tyson about Cinthia and Mark. On October 21, 2020, I heard a motion regarding access, and I ordered that Matthew would continue have telephone access with Tyson twice per week. I further ordered that there would be cordial communications only, with no legal or parent issues to be discussed with Tyson. This order was reiterated on the November 21, 2019.
38The parties attended an urgent case conference before Champagne J. on April 27, 2020. As set out in the endorsement, Mark advised the court that he has two residences, one in Cornwall, and one in Perth. He stated that his residence in Cornwall was uncertain at the moment as it was subject to landlord and tenant proceedings. On the same date, Champagne J. ordered, on consent of the parties, on a temporary without prejudice basis the following:
a. Matthews access shall take place in Prescott in the community on Mondays and Thursdays from 2:00 p.m. to 7:00 p.m. commencing on April 30, 2020;
b. Matthew and Mark will meet at the McDonald’s at the Prescott exit on the 401 for pick-up and drop-off;
c. Neither party shall make disparaging comments about the other in the presence of Tyson;
d. There shall be a police enforcement clause.
39Matthew’s argument was that Mark was attempting to alienate Tyson from him. Until the middle of March 2020, when Mark claimed Tyson showed signs of Covid-19, Matthew had been exercising access with Tyson regularly. Matthew stated that after the 14 day quarantine required by Tyson in Mark’s care, when Matthew’s access was set to resume, Mark thereafter denied him the court ordered access. Additionally, Mark’s stipulations that access occur in the community given the current health crisis were unreasonable. Matthew also argued that during the 14 day quarantine period, Mark allowed Cinthia unfettered access to Tyson, and Mark worked throughout the period. Cinthia allegedly exposed Tyson to her friend Haley, who had symptoms of Covid-19, necessitating another 14 days quarantine period, affecting Matthew’s access. Furthermore, despite the April 27, 2020 interim without prejudice order reinstating access, as of the date of this motion, Matthew was still without physical and telephone access to Tyson.
40On the issue of telephone access, Matthew’s evidence was that all of his telephone calls to his son have not occurred “because Mark has placed stipulations on those calls and when they are to occur. When they are to occur, I don’t get to talk to my son because he is busy, or he won’t answer the phone at all.” Matthew has not spoken to Tyson by telephone since before the February 26, 2020 court date. His last call with Tyson was the beginning of February 2020, and has only had one phone call since the 2019 year.
41Mark disputed the denial of access physical access unless so authorized by a medical professional. The access scheduled between March 16 to March 22, 2020 was cancelled as Tyson was vomiting and had a bad cough. He was never tested nor diagnosed with Covid-19. Despite letting Matthew know about the precaution and suspension of access, Matthew called the police four times that week due to Mark breaching the court order. Since Tyson’s recovery from his illness, Mark alleged that Matthew made numerous excuses as to why he could not attend his access visits, such as determining that Tyson needed to be quarantined for another 14 days. Thereafter, Matthew was tardy for exchanges, once arriving 14 minutes late to pick up Tyson, and then returning him 2 hours and 35 minutes late, necessitating Mark to call the OPP.
42Though Mark was maintaining two places of residence to comply with the February 26, 2020 order, the Peter Street address in Cornwall was no longer available to him due to landlord and tenant issues discussed below. However, as of May 13, 2020, Mark secured accommodations, and Tyson was returned to the city of Cornwall with Mark’s partner, Ms. Knox. Mark’s plan was for Tyson to remain in temporary accommodations (a hotel) until the end of pandemic, at which time more permanent accommodations could be secured.
43Since Tyson’s return to Cornwall, Mark’s evidence was that he offered access to Matthew as per the order, but changed the access exchange location to the Walmart due to schools being closed. Matthew refused the change, and thus did not have access to Tyson.
44On the issue of telephone access, according to Mark, Matthew’s discussions in Tyson’s presence were inappropriate, constantly belittling Mark and Cinthia and Matthew tried to undermine their parenting roles. Mark drew a distinction between terminating telephone access and terminating a telephone call, which he admitted to having done due to severe adult conflict, Matthew’s offensive remarks about Mark and Cinthia, as well as Matthew’s disparaging and inappropriate comments. Mark requested that Matthew call the house only to speak to Tyson, between 7:00 p.m. and 7:30 p.m. every Tuesday and Friday, which would accommodate Tyson’s best interest and availability. Mark’s cell phone is otherwise frequently silenced.
45Given the level of adult conflict in this matter, Mark also suggested it was in Tyson’s best interest to terminate the telephone access.
46Cinthia supported Mark’s statements. She too had heard first hand how Matthew spoke to Mark on the telephone in Tyson’s presence as the telephone was on speakerphone. Cinthia’s evidence was that Matthew made the following remarks which Tyson could hear: that Cinthia shouldn’t be a Mother; that she should not have her kids; that Tyson deserves better; and that Cinthia can’t keep her legs together.
47Cinthia denied exposing Tyson to anyone exhibiting signs of Covid-19, and that Haley’s original test results were wrong, such that Haley did not have Covid-19.
48Matthew denied making comments regarding either Mark or Cinthia in Tyson’s presence.
The Law
49Rule 31 FLR governs contempt of court proceedings and possible orders upon a finding of contempt. Rules 1(8) and 1(8.1) FLR provide the court with options to deal with a party failing to obey an order in the case or failure to follow the Family Law Rules. The court has a varied selection of possible orders, which range from dismissing a claim or striking a pleading to, in the context of contempt, incarceration. Ultimately, the court must be mindful of the primary objective of the Rules: to deal with cases justly.
50In L.(A.G.) v. D.(K.B.), 2009 CanLII 14788 (ON SC), [2009] O.J. No. 1342 (Ont. S.C.J.), the court said that in relation to each of the alleged breaches, the court must make the following findings:
That the relevant order was clear and unambiguous;
The fact of the order's existence was within the knowledge of the respondent (on the Motion) at the time of the alleged breach;
That the respondent intentionally did, or failed to do, anything that was in contravention of the order;
That the respondent was given proper notice of the terms of the order. (See: Haywood v. Haywood, 2010 ONSC 5615, [2010] O.J. No. 4317 at paras. 41-43 (S.C.J.))
51I am mindful of the following principles regarding civil contempt:
a. Contempt is a serious remedy and is not to be granted lightly: See Fisher v. Fisher, 2003 CanLII 2119 (ON SC), [2003] O.J. No. 976 (Ont. S.C.J.); See Perna v. Foss, 2015 ONSC 5636 at para. 12.
b. Civil contempt is a remedy of last resort, one which should not be sought or granted in family law cases where other adequate remedies are available to the allegedly aggrieved party. Any doubt must be exercised in favour of the person alleged to be in breach of the order. (See G.(N.) c. Services aux enfants & adultes de Presott-Russell, (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (Ont. C.A.), Hefkey v. Hekfey, 2013 ONCA 44 (Ont. C.A.), and Children’s Aid Society of Ottawa-Carleton v. S.(D.), 2001 CanLII 28152 (ON SC), [2001] O.J. No. 4585 (Ont. S.C.J.): See Perna v. Foss, supra, at para. 12.
c. Great caution should be exercised when considering contempt motions in family law cases: Hefkey v. Hefkey, supra.
52The Supreme Court of Canada in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79 addressed the law of civil contempt and held that proof beyond a reasonable doubt of an intentional act or omission that was in breach of a clear order of which the alleged contemnor had notice was required to establish civil contempt.
53In Ruffolo v. David, 2019 ONCA 385, the Ontario Court of Appeal articulated the following:
We add two brief comments. First, as explained in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 36, contempt orders should not be so readily granted by motion judges:
The contempt power is discretionary, and courts have consistently discouraged its routine use to obtain compliance with court orders. If contempt is found too easily, “a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of the very judicial power it seeks to protect.” As this Court has affirmed, “contempt of court cannot be reduced to a mere means of enforcing judgments.” Rather, it should be used “cautiously and with great restraint”. It is an enforcement power of last rather than first resort”. [Citations omitted.]
Second, where the main issues to be decided concern access to children, the best interests of the children should be the paramount consideration. In this case, with the court’s assistance, the parties have, since the contempt hearing, taken steps to involve professionals to speak and work with the children to address their relationship with the respondent. Such steps are to be encouraged.
Ruffolo v. David, 2019 ONCA 385, at paras. 18 and 19
54In Chong v. Donnelly, 2019 ONCA 799, at para. 12, the court added:
In our view, the motion judge’s failure to consider these discretionary factors before making a finding of contempt was an error of law. It is especially important for courts to consider the discretion to impose a contempt finding in high-conflict matrimonial cases such as this one. We note, in fairness to the motion judge, that she refused to impose any penalty but that still left the appellant with the opprobrium of a contempt order. We are persuaded that while it was proper to find that the appellant had breached the order, it was not in the interests of justice in the context of this case to add a formal order of contempt.
55In Jackson v. Jackson 2016 ONSC 3466, [2016] O.J. No. 2870 (SCJ, Justice Chappel provided the following summary of the circumstances which warrant the use of contempt in family court proceedings:
a. It ultimately remains a matter for the Court’s discretion;
b. because of its seriousness and quasi-criminal nature, it must be used cautiously and with great restraint;
c. it cannot be reduced merely to a mechanism for enforcing judgments;
d. it should be used sparingly and as a measure of last resort where there are no other adequate remedies available;
e. it is reserved for cases involving defiant conduct that is at the most significant end of the spectrum and where it appears to be the only reasonable means of sending a message to a litigant that court orders cannot be flaunted; and
f. the complex emotional dynamics involved in family law disputes and the desirability of avoiding further escalation of the conflict between the parties are additional factors that prompt a cautious approach.
Analysis
56The allegations before the court are that Mark has denied Matthew physical and telephone access with Tyson. By court order, Matthew was permitted to see Tyson twice per week as well as talk to Tyson by telephone twice per week.
Telephone Access
57On the issue of telephone access, it was not disputed by Mark that he had ended telephone calls between Tyson and Matthew. Matthew’s telephone records showing how often he attempted to reach Tyson were also not in dispute. The defence raised by Mark, if I can call it that, was that Matthew had used the telephone calls to be inappropriate, belittling and undermining of Mark and Cinthia’s parenting roles in Tyson’s life.
58The evidence as a whole supports a finding that Matthew has made inappropriate comments about both Mark and Cinthia on the telephone, in Tyson’s presence.
59Despite the inappropriateness of some of the telephone calls, Mark proposed that Matthew’s telephone calls take place on Tuesdays and Fridays, between 7:00 p.m. and 7:30 p.m., which Mark suggested would accommodate Tyson’s best interest and availability.
60Matthew provided no evidence to indicate that the proposed schedule did not work for him. His evidence was that he has not spoken to Tyson as Mark had placed stipulations on those calls.
61Matthew’s telephone records show that he had called Mark’s telephone at all hours of the day and night. There was no discernable pattern to the calls. I am unable to determine if any of the telephone calls were between Matthew and Tyson. I therefore accept Matthew’s evidence that he has not spoken to Tyson since before February 26, 2020.
62Based on the evidence, I am persuaded beyond a reasonable doubt that Matthew has been denied telephone access with Tyson.
63However, contempt is a discretionary power that should be used cautiously and with great restraint.
64The facts at hand speak to the level of conflict to which Tyson is exposed. They also speak to reasonable suggestions made by Mark to permit telephone access to occur in a more structured and child-focused fashion. Matthew was not content with Mark’s suggestions, or as he referred to them, stipulations, for telephone contact to occur. As I have no evidence that the two days and times proposed did not work with Matthew’s schedule, I am persuaded that Matthew was unreasonably rejecting of the proposition, and thus failed to prioritize Tyson. The case law is clear that the best interests of the children should be the paramount consideration. Rather than agree to what I find was a sensible proposal, Matthew opted to schedule a contempt motion.
65Based on the above, I decline to find Mark in contempt regarding the telephone access between Matthew and Tyson. I will however remove any ambiguity about dates and times for the telephone access to occur, as set out in the orders section below.
Physical Access
66Regarding physical access between Matthew and Tyson, from March 16, 2020, for fourteen days thereafter, due to concerns of Covid-19, access was both suspended by Mark and refused by Matthew. Thereafter, Matthew was concerned about Tyson having been exposed to Covid-19 through Haley, necessitating a further 14 day quarantine. While it was disputed that Tyson was actually exposed to anyone with Covid-19, the timelines nevertheless bring us to mid-April 2020. Given the nature of the pandemic and uncertainty regarding health and safety protocols, I am not prepared to make any findings of contempt regarding this time period.
67The parties attended a case conference on April 27, 2020 and agreed that access take place in Prescott rather than Cornwall.
68I accept Mark’s evidence was that access did take place, and on one occasion, Matthew was late to the exchange, and returned Tyson to Mark’s care 2 hours and 35 minutes tardy.
69I also accept that since May 13, 2020, Tyson returned to reside in Cornwall. Mark suggested that Matthew pick up Tyson at Walmart rather than St. Anne’s school. His rational was that schools were closed due to the pandemic, and Walmart was close to where Tyson was residing. Mark’s evidence was that Matthew refused to alter the exchange location, thus Matthew did not have access to Tyson.
70Matthew submitted there needed to be compliance with the terms of the court order, which stipulated that Matthew was to pick up Tyson at school, and return him to Mark’s residence on Peter Street. He submitted despite schools being closed, the school grounds were not, and therefore the exchange location need not be altered. As for the return, despite Mark no longer residing on Peter Street, Matthew suggested dropping Tyson off at the park across the road (despite parks being closed due to the pandemic).
71I find that Mark failed to comply with the terms of the access order regarding pick up and drop off location.
72I also find that Matthew failed to be reasonable and did not put Tyson’s needs first. Rather than follow the spirit of the order, rather than consider Tyson’s need to see his Father, Matthew only followed the letter of the order.
73Reasonable people need to make reasonable decisions and/or concessions, they must demonstrate to the court their ability to put their child’s needs ahead of their own before running to the court for a contempt motion. As stated in Alsawwah, both Matthew and Mark should have raced to the moral high ground. Instead, they only succeed in demonstrating equal unwillingness to compromise and an inability to put Tyson’s needs ahead of their desire for control. For this, they are both admonished.
74Ultimately, I exercise my discretion and decline to find Mark in contempt of the access order. However, I am prepared to increase access between Tyson and Matthew to make up for the missed opportunities for them to bond and spend quality time together. Details are set out below.
Where should Tyson reside?
75Mark had brought a mobility motion which was heard on February 26, 2020. As set out in my reasons on the same date (unreported), after reviewing the relevant mobility case law, s.24(2) CLRA, the primary factor being what was in the child’s best interest, I dismissed the motion. I noted that (a) Tyson has special needs, including behavioural issues; (b) Tyson has the love of not only his biological parents, but his uncle Mark, and Mark’s family; and (c) Tyson has been thriving at St. Anne’s school in Cornwall. I pointed out that Tyson had been bounced around from different homes since 2017, including residing in Perth, Ms. Purdy’s sister’s home, and since December 2018 with Matthew in Cornwall. I further remarked that Tyson had formed roots in Cornwall, was thriving at school, and had stability. I concluded that there were too many unknowns, too many conflicts in the Affidavit evidence to permit the court to make such a determination based solely on the evidence presented, and there were genuine issues necessitating a trial. I then scheduled the matter to be heard at trial on the June 2020 running trial list.
76To paraphrase Robert Burns, the best laid plans of mice and men often go awry. Life as we all knew it changed on March 17, 2020 due to Covid-19. The previously scheduled settlement conference and trial management conference could not proceed. The June 2020 running trial list was cancelled, and there is indication when the trial could possibly proceed. Schools are closed, one-on-one services are no longer available, and most recently, the court has been advised that the OCL’s Clinical Investigator’s report has been discontinued given Cinthia’s refusal to participate in the investigation process.
77For Tyson, the instability has gone even further. Mark’s Affidavits speak of his attempts to maintain two residences, one in Cornwall, and one in Perth. He was thereafter required to attend the Landlord and Tenant Board for a hearing, at his request, due to an alleged illegal lockout by his landlord from his Cornwall residence. The Landlord and Tenant Board’s ruling dated April 30, 2020 confirmed that the landlord removed the property located in Mark’s rental unit without his consent, and changed the locks without providing him with a replacement key. At paragraph 22 of their decision, the Board stated, “I am very much persuaded that the rental unit was not abandoned by the Tenants at any time, and find therefore that the Landlord illegally locked out the Tenants.” The Board was unable to reinstate Mark into the rental unit as a new tenancy was already in place. The end result, in the context of this Family Court file, was that Tyson no longer had the same home in which to reside while in Cornwall. During this pandemic, Tyson resides in a hotel.
78While I am mindful that on February 26, 2020 I dismissed the mobility motion, today’s reality is far removed from that of February. But for the stability Tyson has by residing primarily with Mark, Tyson’s entire world has been flipped upside down. In these current circumstances, and based on the parens patriae role, I find it is appropriate to revisit my earlier ruling on mobility. I note that Cinthia’s Notice of Motion also invites a review of this issue.
The Law
79Relocation or mobility cases, where one parent wants to take a child and moves some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically, the court must balance the custodial parent’s legitimate interest in relocating with the non-custodial parent’s legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child. See: Reeves v. Brand, 2018 ONCA 263.
80The relevant factors on the issue of mobility are set out in Gordon v. Goertz:
a. no legal presumption in favour of de facto custodial parent.
b. focus is on the best interests of the child and not the wishes of the parent.
c. the court should consider the existing parenting arrangement.
d. the desirability of maximizing contact with both parents.
e. the views of the child.
f. custodial parent’s wishes to move are only considered if they are relevant to their ability to meet the needs of the children.
g. disruption to the child by change in school, community and family they have come to know.
Gordon v. Goertz [1996] 2 S.C.R. 2
81The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley 1999 CanLII 13990 (ON SC), [1999] O.J. No. 3234 (S.C.J.), where the court set out the following principles:
a. A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial.
b. There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial of the best interests of the children or the best interests of the children might dictate that they commence school at a new location.
c. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial.
82The following are additional principles regarding temporary relocation cases (See: Boudreault v. Charles, 2014 ONCJ 273).
a. The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move. See: Mackenzie v. Newby, [2013] O.J. No. 4613 (OCJ).
b. Courts are generally reluctant to permit relocation on a temporary basis. The decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may have to cause further disruption later if the order has to be reversed. See: Goodship v. McMaster 2003 CanLII 53670 (ON CJ), [2003] O.J. No. 4255 (OCJ).
c. Courts will be more cautious about permitting a temporary relocation where there are material facts in dispute that would likely impact on the final outcome. See: Fair v. Rutherford-Fair 2004 CarswellOnt 1705 (Ont. S.C.J.). In such cases, the court requires a full testing of the evidence. See: Kennedy v. Hull, [2005] ONCJ 275.
d. Courts will be even more cautious in permitting a temporary relocation when the proposed move involves a long distance. It is unlikely that the move will be permitted unless the court is certain that it will be the final result. See: Downey v. Sterling 2006 ONCJ 490, [2006] O.J. No. 5043 (OCJ) and Costa v. Funes [2012] O.J. No. 3317 (OCJ).
e. Courts will be more cautious in permitting a temporary relocation in the absence of a custody order. See: Mackenzie v. Newby, supra.
f. Courts will permit temporary relocation where there is no genuine issue for trial (see: Yousuf v. Shoaib, [2007] O.J. No. 747 (OCJ)), or where the result would be inevitable after a trial (see: Mackenzie v. Newby, supra, where the court observed that the importance of the Father’s contact with the child could not override the benefits that the move would have on the child).
g. In assessing whether the three considerations in Plumley, the court must consider the best interest factors set out in subsection 24 (2) of the Children’s Law Reform Act (the Act) and any violence and abuse in assessing a parent’s ability to act as a parent as set out in subsections 24 (3) and (4) of the Act as well as the leading authority on mobility cases, Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.).
Analysis
83I have considered all the above factors, including the primary factor of what is in the child’s best interest.
84I rely on my previous findings regarding Tyson’s special needs, the love of his biological and extended family, and his stability as found in February 2020. From December 2018 until March 2020, Tyson has been residing full time in Cornwall.
85Since March 2020, Tyson has been residing in both Perth and Cornwall.
86The onus is on the Applicant to demonstrate the compelling circumstances that justify the move. While in February I was not persuaded it was appropriate to change Tyson’s residence, since the pandemic has hit this nation, Tyson’s world has shifted. The stabilizing factors he once enjoyed have narrowed down to only his caregiver. He no longer has school or any counselling opportunities, he does not have his home, and the family he has come to live with now reside in two different locations in order to comply with the February 26, 2020 order. Tyson’s residence in Cornwall is a hotel room, which due to the pandemic, there are very few opportunities for a child of his age to go out into the community. The OCL has determined it appropriate to discontinue their investigation. A trial on the mobility issue cannot proceed in the foreseeable future, which will result in more uncertainty for Tyson.
87In order to comply with the current order, Tyson is travelling back and forth from Perth to Cornwall. When he is in Cornwall, Tyson resides in a hotel. In Perth, the evidence is that Tyson has a place of residence.
88Apart from my February 26, 2020 order wherein Mark is not permitted to move, at this time, the only other reason Tyson must return to Cornwall is to effectuate access with Matthew. The distance between Perth and Cornwall is approximately 149 kilometres.
89In February 2020, Matthew was residing in Brockville. Based on more recent court filings, it appears as Matthew now resides in Prescott. Matthew’s home in Prescott is approximately 78 kilometres from Mark’s former Cornwall address, and about 79 kilometres from his Perth address. Cinthia resides in Smiths Falls, and her evidence was that it would be a hardship for her to travel to Cornwall to see Tyson. Cinthia is approximately 135 kilometres from Mark’s Cornwall address, and 23 kilometres from his Perth address.
90I have reflected on what is the status quo from Tyson’s perspective. At this time, it is to reside with Mark, and have access with both Matthew and Cinthia. I find it is imperative to maintain the security, stability and continuity of care Tyson has with Mark.
91I have considering the relevant case law, the evidence before me, the factors as enunciated in s.24(2) CLRA. In this stage of world events, where Tyson’s life has changed dramatically due to circumstances beyond his control, I find it is in Tyson’s best interest to permit Mark to relocate to Perth with Tyson. The order permitting the relocation will be made on an interim, and without prejudice basis pending a final determination at trial.
92Though it is uncertain if schools will re-open in September, Mark is tasked with the parental responsibility to ensure Tyson is enrolled the school within Mark’s catchment area best suited for Tyson’s needs.
93Despite permitting relocation on an interim basis, I will continue to case manage the file, which shall remain in the Cornwall jurisdiction until further court order.
Matthew’s access
94Matthew wanted access to Tyson three times per week: Mondays and Thursdays from 2:00 p.m. to 7:00 p.m. and Tuesdays from 5:00 p.m. to 6:00 p.m. He also requested that Mark and his spouse, Jacquline Knox, comply with the terms of the order regarding telephone/skype and physical access with Tyson. Alternatively, Matthew wanted 18 hours per week of access to Tyson, “in parity to Cinthia’s current access.” Matthew asserted that Tyson had a right to know his Father and alleged that unnamed people have disparaged Matthew to Tyson.
95Cinthia’s position was that Matthew should have video access visits with Tyson, twice per week, for the remainder of the Covid-19 emergency. Those video access visits shall last as long as Tyson and Matthew wish to speak with one another. Matthew shall not make disparaging remarks about Cinthia during these calls. Once the Covid-19 emergency is over, Matthew shall have two access visits per week, for up to 4.5 hours per access, or one 9 hour visit. She further asked that no party make disparaging remarks about the others within earshot of Tyson.
96Cinthia’s evidence was that her access with Tyson was in compliance with the February 26, 2020 order. The order provided for 9 hours per week of access with Tyson.
97Mark did not take a position on frequency, length or duration of physical access between Tyson and Matthew, but suggested that telephone access be terminated. For reasons detailed in the contempt section above, I am not prepared to terminate telephone access.
98As with any access order, the court’s primary concern is the child’s best interest. I have previously determined that access between Matthew and Tyson is in the child’s best interest. There have been numerous attempts by the court to permit Tyson to have regular access to his Father, twice per week.
99The current court order provided for Matthew to have Tyson in his care, in the community, for approximately five hours per visit. To say there have been issues with this is an understatement. Covid-19 has created even more chaos due to closures of parks and generally child-appropriate community resources or locations. While the restrictions are relaxing by the week, a second waive may necessitate a return to severe constraints.
100Given the uncertainty of resources available in the community, I find it is appropriate at this time to permit Tyson to enjoy his access at Matthew’s home, or wherever Matthew chooses, within the borders of Eastern Ontario.
101As for frequency and duration, given that it is summer time, schools are out, the distance between Prescott and Perth, and Tyson having not seen his Father for quite some time, I find it would be in Tyson’s best interest to increase access.
102For the summertime, commencing June 15, 2020, Mondays and Thursdays, from 11:00 a.m. to 7:00 p.m. Matthew shall be responsible to pick up and drop off Tyson, to and from Mark’s home in Perth.
103Upon school resuming in September, and throughout the school year, Matthew’s access with Tyson shall be every Thursday from after school (or 3:00 p.m.) with pick up at school, until 7:00 p.m. with a return to Mark’s home, and every Sunday from 11:00 a.m. to 7:00 p.m., where Matthew shall pick up and drop off Tyson, to and from Mark’s home in Perth.
Cinthia’s access
104The February 26, 2020 court order indicated that Cinthia was to have 4.5 hours of access to Tyson, twice per week, or alternatively one 9-hour visit per week, as approved of by FCSLLG, with the level of supervision as required by FCSLLG. The option was put in place to take into account the distance between Smiths Falls and Cornwall.
105Cinthia sought a court order that Tyson reside primarily with her, or alternatively generous access to Tyson of no less than twice per week, with Tyson’s residence with Mark in Perth. Cinthia believed Tyson would like to spend more time with her, and suggested he enjoys seeing his siblings.
106In support of her motion, Cinthia relied on two emails dated May 26, 2020, sent to her counsel from Julie Willbond, Child Protection Worker from FCSLLG, which state that the Society does not take a position on the court matter, and does not have child protection concerns in regard to access with Tyson.
107Cinthia’s evidence was that she had access with Tyson as ordered, from February until approximately May 7, 2020, at which time Mark took Tyson back to Cornwall. Cinthia was also having regular telephone access with Tyson, usually at least twice per week. However, since May 7, 2020, her evidence was that she has not had access or contact with Tyson at all. She cannot drive, and her Mother does not feel comfortable driving on the highway. She had been relying on Mark for her visits to take place.
108Matthew stated that Cinthia had access following the March 15th quarantine directive, alleged she had unfettered access greater than what was provided for in the February 26, 2020 order. His position was that Cinthia was barely seeing Tyson from September 2017 onward, and had not seen him at all between December 2018 and February 2020. Matthew was concerned about Tyson having access at Cinthia’s home unless she was able to ensure that J.N. and Haley not be around Tyson. It is alleged that J.N. has criminal restrictions and is on the Sexual Offenders Registry. While there was no evidence to support this suggestion, Cinthia’s evidence was that she complies with the directives of FCSLLG’s and does not permit J.N. to be around Tyson, and had not since 2017.
109Mark’s position on Tyson returning to Cinthia was that it was premature as there are numerous child protection concerns that must first be mitigated. Mark’s evidence was that the Society “is clearly not in support of a plan for custody currently.”
110Mark also pointed out that Cinthia struggles with a mild intellectual disability and is eligible for supports through Developmental Services Ontario for which she is on a wait list. This was not disputed. Mark also refuted the assertion that he denied Cinthia access to Tyson, and asserted that he had encouraged a relationship between them.
111I have considered Cinthia’s request to have Tyson returned to her care. The primary consideration is what is in Tyson’s best interest. At this time, the concerns which led FCSLLG to intervene in 2017/2018 appear to be mitigated. The email from Ms. Willbond indicated they have no protection concerns regarding access, and take no position on the court matter. I find this to mean they will not take more intrusive measures should Tyson be returned to Cinthia’s care as they do not have any protection concerns with her.
112While Cinthia appears to have a mild intellectual disability, I have no evidence that this would have any impact on her ability to provide full time care for Tyson.
113What gives me pause is not Cinthia’s ability to care for Tyson, but Tyson’s stability with a caregiver. I am not prepared, at this interim motion, to remove Tyson from Mark’s care. Mark has been able to provide Tyson with consistency and a routine. Of course, with Covid-19 occurring, much of Tyson’s world has changed. However, even with this current state of flux, based on the evidence before me, I am not persuaded it would be in Tyson’s best interest to change his primary caregiver.
114Turning now to what access with Cinthia would be in Tyson’s best interest.
115I accept Cinthia’s evidence that she is complying with the directives of FCSLLG, which I find includes ensuring no contact between Tyson and J.N. This is supported by the email sent by Ms. Willbond.
116Matthew’s concerns were addressed above. The flavour of his evidence was that he wanted things to be equal between his and Cinthia’s access with Tyson.
117Apart from Mark’s request that most of Cinthia’s Affidavit be struck, he did not seem to take a position regarding access. Mark’s evidence was that he encouraged contact between Tyson and Cinthia.
118Ultimately, I accept the evidence that Tyson enjoys his time with his Mother. She currently has 4.5 hours per visit, or nine hours per week. From February to May 2020, she was seeing Tyson regularly. I have no evidence to indicate this was not going well. As such, I find it is appropriate, and in Tyson’s best interest, to increase access between Tyson and Cinthia to eight hours per day, twice per week.
119The evidence shows that historically, Mark and Cinthia have been able to arrange for access to take place between themselves. More recently however, the communication broke down. In the hopes of preventing any further motion on this issue, I will specify days and times, subject to written agreement to vary the dates and times by Cinthia and Mark. The details are set out in the orders section below.
120On the issue of transportation, in these circumstances, I find it is appropriate for Mark to effectuate the transportation for Cinthia’s access.
Police Enforcement
121Cinthia requested police enforcement on the terms of the access orders. Matthew also sought police enforcement to ensure that Tyson was returned to Cornwall, though that issue was moot. Mark wanted the police enforcement clause removed.
122Mark’s evidence on this issue was that Tyson, at 8 years of age, had seen more police in his life than a child should ever see. He alleged, and it is not denied, that Matthew had involved the police unnecessarily and brought Tyson to the police station during this access visits to have Tyson file reports against Mark or Cinthia. Mark admittedly had also called the police when required, but did not wish to further expose Tyson unnecessarily to the police. His position was police enforcement was not necessary and was not in Tyson’s best interest.
123Section 36 of the Children’s Law Reform Act (“CLRA”) provides for police enforcement where a court is satisfied that there are reasonable and probable grounds for believing that any person is unlawfully withholding the child. There are three circumstances in the CLRA upon which the court can rely to make an order to direct the police to locate, apprehend and deliver the child to the applicant. In this case, the parties envision the use of police enforcement to ensure that the other party either produces the child for access, or returns the child at the end of the access visit.
124In Al Jarrah v. Ashmawi, 2017 ONCJ 218, Sherr J. referenced Pazaratz J.’s decision of Patterson v. Powell, 2014 ONSC 1419 (Ont. S.C.J.), where the court set out the following considerations in determining whether to grant a police enforcement order:
a) Section 36 of the Children's Law Reform Act is available to address a present and existing problem, not a future or potential problem. (Paragraphs 14-15).
b) Section 36 does not make police enforcement available "as a long-term, multiple-use, on-demand enforcement tool." (Para 16)
c) Police enforcement of custody or access may give rise to a wide range of negative emotions and consequences in the child involved. (Paragraphs 21-22)
d) Police enforcement may be essential for immediate retrieval of a child from a dangerous or inappropriate situation, but for ongoing enforcement, parties must look to less destructive and more creative alternatives. (Paragraphs 23-24)
e) Police should be served with notice, if a party proposes a broad order under section 36(4) that they "do all things reasonably able to be done". (Paragraph 30)
f) Police enforcement should be used sparingly, in exceptional circumstances, and as a last resort, and then only when it is shown to be required in the best interests of the child, after considering the risk of trauma to the child. (Paragraphs 44-62)
g) Chronic non-compliance with a custody or access order is "likely ... a problem that police can't fix anyway." (Paragraph 74).
Al Jarrah v. Ashmawi, 2017 ONCJ 218, at para. 80.
125A police enforcement order is an order of last resort to be made sparingly and in exceptional circumstances. It can frighten children and polarize a difficult situation: Al Jarrah v. Ashmawi, supra, para. 79, citing with approval Klinkhammer v. Dolan, 2009 ONCJ 630 (Ont. C.J.), para. 61; Allen v. Grenier and Hamilton-Wentworth Regional Police, 1997 CanLII 14628 (Ont. Fam. Ct.). With older children, amongst other repercussions, a police enforcement clause may lead children to feel guilt or pressure to verbalize certain preferences, corroborate parental allegations, or resolve the dispute themselves; they may feel helpless and afraid for the most important people in their lives; and/ or they may resent one or both parents for having allowed simple things to get out of hand: Patterson v. Powell, 2014 ONSC 1419.
126Other concerns, as noted in Patterson, are that “[s]ome embattled parents might be quite content to call the police for every timesharing exchange. They may perceive dialling 911 as being faster, cheaper, and more emotionally satisfying than returning to court. Is that potential abuse of community resources — not to mention abuse of the children themselves — something we want to leave to the discretion of relentless litigators? Surely s. 36(2) of the CLRA is intended to be a protection for children, not a weapon for disgruntled parents.”: Patterson v. Powell, supra, at para. 26.
127The situation at hand is already polarized. Based on the history of this file, I am concerned that the parties will use the police enforcement clause as a control mechanism and will only increase the level of conflict between them. The evidence already establishes a pattern of both Mark and Matthew involving the police. I am not prepared to further exacerbate the situation. Moreover, I am not persuaded that further police involvement would be in Tyson’s best interest. I hereby dismiss this relief sought.
128However, as mentioned above, given the continued high-conflict nature of this file, I find it appropriate to remain seized and continue to case manage this file.
Orders
129The following interim orders are made:
This Court requests that the OCL re-consider their involvement in this file. Separate OCL Order shall issue. The parties are directed to send in their intake forms by June 18, 2020, failing which, a negative inference may be made against any defaulting party. The intake forms are located at: https://www.attorneygeneral.jus.gov.on.ca/english/family/ocl/intakeform.php.
The following paragraphs or portions to paragraphs from Matthew’s 47 paragraph Affidavit dated April 16, 2020, affirmed April 17, 2020 are struck: paragraphs 7, 8, 13-16, 19, 28, 33, 35, 36, 37, 39, and 45.
Mark’s request to strike paragraphs 4-37 of Cinthia’s Affidavit is dismissed.
Matthew’s motion to add any other parties to the file is dismissed.
The contempt motions brought by Matthew against Mark are hereby dismissed.
On an interim, without prejudice basis, pending a final determination at trial, Mark is permitted to relocate to Perth, Ontario with Tyson. Until further court order, Cornwall will nevertheless continue to be the appropriate jurisdiction for this file.
Mark shall ensure Tyson is enrolled in a school within Mark’s catchment area best suited for Tyson’s needs.
Matthew shall have access to Tyson as follows:
a. For the summertime, commencing June 15, 2020, Mondays and Thursdays, from 11:00 a.m. to 7:00 p.m. Matthew shall be responsible to pick up and drop off Tyson, to and from Mark’s home in Perth. Matthew’s access shall be exercised in Eastern Ontario.
b. Upon school resuming in September, and throughout the school year, Matthew’s access with Tyson shall be:
i. every Thursday from after school (or 3:00 p.m.) with pick up at school, until 7:00 p.m. with a return to Mark’s home, and
ii. every Sunday from 11:00 a.m. to 7:00 p.m., where Matthew shall pick up and drop off Tyson, to and from Mark’s home in Perth.
Matthew shall have telephone access with Tyson, twice per week, between 7:00 p.m. and 7:30 p.m. every Tuesday and Friday. The phone calls shall be 30 minutes maximum in duration. Matthew shall call Mark’s telephone, and Tyson shall pick up the telephone. Matthew shall not speak negatively of Mark or Cinthia during these telephone calls. The telephone calls may be put on speakerphone, at Mark and/or Tyson’s discretion.
Cinthia shall have access to Tyson as follows:
a. For the summertime, commencing June 13, 2020, Wednesdays and Saturdays, from 11:00 a.m. to 7:00 p.m., unless both Mark and Cinthia agree, in writing, to change the dates and/or times.
b. Upon school resuming in September, and throughout the school year, Cinthia’s access with Tyson shall be every Wednesday from after school (or 3:00 p.m.) until 7:00 p.m., and every Saturday from 11:00 a.m. to 7:00 p.m.
c. Cinthia shall not permit J.N. to be in the presence of Tyson.
d. Mark, or his designate, shall be responsible to transport Tyson to and from access with Cinthia. Mark, or his designate shall bring the child to Cinthia’s home in Smiths Falls, or at Cinthia’s request, pick her up to exercise access at Mark’s home.
Mark, Matthew, Cinthia as well as their families and friends are prohibited from making disparaging remarks about Mark, Matthew, Cinthia within earshot of Tyson. The onus is on Mark, Matthew, Cinthia to ensure compliance of these terms with their families and friends.
The motions for police enforcement are dismissed.
Desormeau J. shall continue to case manage the file, which shall remain in Cornwall, Ontario, until further court order.
The parties are prohibited from bringing any further motions with leave from Desormeau J., or her designate. Until the courts fully re-open, any requests for a motion shall be filed with the court at: Familycourt.cornwall@ontario.ca by way of 14B Motion, with notice to the other parties, and accompanied with a commissioned Affidavit.
Costs
130Costs from the urgent case conference of April 27, 2020 before Champagne J. were reserved to this motion date.
131If the parties cannot otherwise agree on the issue of costs for this motion and Champagne J.’s case conference, they shall each provide, in electronic format, brief written submissions of no more than 3 pages, plus bill of costs, offers to settle and case law. Mark has until July 10, 2020 to serve and file his submissions. Cinthia and Matthew shall each have until July 30, 2020 to respond, and Mark shall have until August 10, 2020 to reply, if so required. If the court receives no costs submissions by the expiry of the above timelines from any or all parties, then costs shall be determined in their absence.
Justice Hélène Desormeau
Date: June 11, 2020