Court File and Parties

COURT FILE NO.: 42198/19

DATE: 2020-06-26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ALEXANDRA KOLODZIEJ, Applicant

AND:

MARIUSZ RYSZARD KOLODZIEJ, Respondent

BEFORE: Kurz J.

COUNSEL: The Applicant Self Represented Jacqueline Mills and Elise Visco. for the Respondent

HEARD: By teleconference

ENDORSEMENT

Introduction

[1] Each party brings an urgent motion after I granted them preliminary leave to do so. The Applicant mother (“the mother”) moves to “vacate/suspend” the access of the Respondent father (“the father”) “…pending the lifting of the provincial and municipal pandemic measures ordered by CPIP and MOHLTD”. In the alternative, she requests an order that would severely restrict the father’s access to her home only or through video technology such as Skype. The father moves for an order that continues the access ordered by Chozik J. on consent on September 14, 2019 (including alternate weekend and mid-week overnight access) and that prohibits the mother from following him or using tracking devices to perform surveillance of him. He also wants all records of any cameras or tracking devices that the mother has used in her surveillance of him.

[2] The mother argues that the father’s access should be severely curtailed because he willfully disobeys provincial and local COVID-19 regulations. She points to him taking the children to visit a friend, hike and kite-fly in public areas, and attend supermarkets. As context for her COVID-19 claims, she offers evidence that the father is abusive, untruthful and that he refuses to communicate with her.

[3] The father responds that the mother has engaged in a campaign of meritless claims against him in order to involve the police and child welfare authorities to limit his parenting. Despite numerous attendances and investigations, none of those authorities have made any findings about his parenting or taken any action against him. Further, the father feels that the mother follows him on access visits. She admits that she has surreptitiously installed a tracking device in the children’s backpack and to recorded access exchanges from her home’s surveillance cameras.

[4] This is a difficult case, in which there is at least some merit to parts of each party’s arguments. But much of the concern arises from the acrimonious manner of the parties’ separation and their inability to communicate, let alone work together for the benefit of their children. Each has reason not to trust the other, but their conflict will continue to encircle their children until they are able to find a way to end their conflict. They need a Polish language mediator more than they need further litigation.

[5] For the reasons that follow, I neither suspend the father’s access nor do I vary the Chozik J. access order of September 14, 2019. However, I place additional restrictions on the father’s access in light of the COVID-19 pandemic. I prohibit the mother from conduct that tracks or follows the father and require her to turn over any records of her surveillance.

Background

[6] The parties met in 2006 and married on February 17, 2007. They separated on August 1, 2018 but remained separate and apart in the matrimonial home until the father moved out in May 2019. They have three children, Aleksander, born March 3, 2010, Maja, born October 24, 2012, and Adam, born June 14, 2016.

[7] By all accounts, the time between the parties’ separation and the father moving out of the home was extremely acrimonious. That is the period during which the mother called the police seven different times to report the father for some alleged breach of the law. Among her allegations were that:

a. The father harmed two year old Adam by spanking him (the police found no mark on the child but the father admitted to the spanking after Adam bit him. The mother later produced a photo that showed a red, hand-shaped mark on the child’s buttocks. But that photo does not accord with the police officer’s observation after the event). Presumably, the father understands that he should not engage in any corporal punishment of any of the children because there are no reports that the spanking has been repeated.

b. The father damaged the walls in the home by punching them while the parties were in the process of separating (the police, who attended at the home, saw no marks).

c. The father removed his tools from the home (he was moving out).

d. The father took the children to his parents’ cottage in Huntsville without her consent (there was no order preventing this).

e. The father left the children alone (he says that he never did so other than to throw out the trash. However, he did leave the two eldest children with his brother while camping, when he went to pick up Adam).

[8] The parties signed an interim without prejudice separation agreement on May 18, 2019. Among the terms of that agreement, were the following parenting terms:

a. The children shall reside primarily with the mother other than the times that they are with the father (secondarily), as follows:

a. Aleksander and Maja:

1. Every Wednesday after school until drop off at school Thursday morning;

2. Alternate Mondays from after school until 6:30 p.m.

3. Alternate weekends from Friday at 5:00 p.m. – Sunday at 6:30 p.m.

b. Adam:

1. Every Wednesday from 4 –6:30 p.m.

2. Alternate Mondays from 4 – 6:30 p.m.

3. Alternate Saturdays and Sundays from 9:00 a.m.- 6:30 p.m. each of the two days.

4. When Adam turns 3 years old (June 14, 2019), access shall expand to be from Saturday at 9:00 a.m. until Sunday at 6:30 p.m. and the Wednesday visits shall be from 4:00 p.m. until 8:30 a.m.[sic, it is clearly intended to read “p.m.”].

[9] The parties later appeared before Chozik J. on September 14, 2019. At that time, they agreed to a temporary order. It appears that the order was never taken out as neither party has produced it and court staff have been unable to locate it.

[10] From reviewing the parties’ minutes of settlement of that date, it appears that the only parenting term to which the parties agreed was that Adam will have the same access to his father as his two siblings. But it implicitly acknowledged the binding nature of the parenting terms of the interim separation agreement. It also required the parties to communicate with each other exclusively through Our Family Wizard other than in case of emergency.

[11] As set out below, because the terms of the interim separation agreement, as amended by the terms of the consent that the parties reached on September 14, 2019, appear not to have been incorporated into an order, I do so below.

Mother’s Reporting of the Father to Child Protection Authorities and Police

[12] Since the time of the Chozik J. order, the mother has made a number of calls to child welfare authorities, seeking to report the father.

[13] On January 28, 2020 the mother called the Peel Children’s Aid Society (“PCAS”), to report that the father had left the children unattended, that he was not putting Maja in her booster seat and that he was engaging in parental conflict in the presence of the children. The father adamantly denied the allegations. He said that he only leaves them alone to take the garbage out in his condo. He denied ever failing to use a booster seat for Maja. But Aleksander told the PCAS worker that he had twice been left alone for 45 minutes at a time.

[14] The PCAS report does not say when this occurred or how the then nine-year old child knew that he was left alone for 45 minutes, as opposed to some other period of time. Aleksander could not recall the last time his parents fought in his presence. The PCAS worker spoke to the children’s school principal, who reported no concerns. The worker tried to get hold of the children’s doctor, who failed to respond. The PCAS closed the file as “not verified”. It warned the parents of the dangers of their conflict harming the children.

[15] The mother reported the father and his girlfriend to the PCAS on April 2, 2020 for hiking with the children during the pandemic. He responded that he follows all COVID-19 recommendations and followed updates through the news and denied placing the children at risk. He told the court that they were hiking in open areas with no one else around. He produced the public notices issues by Kelso park, in which they hiked. The PCAS closed its file, again warning the parents about the risks of their conflict.

[16] The mother again reported the father to the PCAS, stating that he takes the children to stay overnight at a friend’s home. Nothing in either party’s materials say which friend that is, but I assume that it is his (unnamed) girlfriend. Aleksander told the PCAS worker that he feels safe with both parents because of their hygiene regimes. But he does not always feel safe with the father’s friend “because they shouldn’t be meeting each other because of COVID”. The PCAS worker does not seem to have enquired as to the source of this concern and whether he is simply repeating something told to him by his mother. In any event, the PCAS said that it continues to be involved. However it made clear that its concern is parental conflict.

[17] The Halton CAS (“HCAS”) received a report from the Halton Regional Police about a complaint relating to conflict between the parents. The HCAS chose not to investigate, finding that the complaint did not meet its mandate and that a full investigation was not required.

The Mother’s Other Accusations Against the Father and his Oblique Replies

[18] The mother claims that the father took the children hiking or to parks on five occasions since the pandemic began, March 18 and 25, April 4, May 3 and May 20. She also claims that he took them to his parents’ cottage on March 20-22 and May 15-17. She also alleges that he has taken the children to supermarkets to shop when they are in his care. The mother states that she obtained this information speaking to the children. The court has a concern about the extent to which the mother had those conversations.

[19] The father is somewhat oblique in offering a response to these allegations. He does not deny taking the children to his parents’ cottage, although his counsel argues that doing so did not violate COVID-19 recommendations. His affidavit says that the first time he took them, a gathering of more than 5 people was not forbidden. The second time, he says that Premier Ford’s comments misled him. That is a new excuse for a failure to ensure that he is following pandemic protocols.

[20] With regard to his taking the children to grocery stores, his counsel rhetorically asked what he is to do if his child wants an apple when the child is with him. My answer is that he should have shopped for the children before he took them into his care. Or fed the child a different fruit.

[21] The father offered photos of him flying a kite with the children in an empty park and points to regulations at the Kelso Park, that allowed hiking during the pandemic.

[22] The father is not explicit about having slept over at his girlfriend’s home, although that is what appears to have happened. He did not tell this to the mother. He appears to have deliberately chosen not to name the girlfriend or her children, who are allegedly close to his children. Neither the mother nor the court know anything about them, including how long he knew her before introducing the children to her, and whether this first occurred during the pandemic. Last month, the father told the mother that he plans to buy a home with his girlfriend this summer. They appear to be presently together in a “bubble”, which is allowed under current provincial regulations allowing for family groups of up to ten people.

[23] I have reviewed the limited correspondence between the parties that the mother has cut and pasted into exhibits to her two affidavits. But it is hard to make any definitive findings about them. I cannot assume that they accurately represent the entirety of the parties’ correspondence. There are no full strings of the messages that passed between them. Thus, it is hard to fully contextualize them.

[24] That being said, the excerpts that have been presented do indicate that the father can be brusque and dismissive of the mother. He has told her to cease and desist from her harassment when she has simply attempted to communicate with him.

[25] While the father says that the communications attached to the mother’s affidavits are taken out of context, he has not offered any versions of fully contextualized communications between.

[26] Put simply, I have to be very careful about what either parent says about their communications or their interactions with each other. If there are to be future court attendances in which either of the parties wish to reproduce their communications, the full strings of their electronic correspondence should be reproduced, with the relevant portions highlighted. That way, the full context of the parties’ exchanges can be discerned.

[27] On the other hand though, there is no question that the mother has used a tracking device to monitor the father when he is with the children. That fact is troubling to the extreme.

[28] The mother placed the tracking device in the children’s backpack, using them to unknowingly surveil their father. The father discovered the device during an access visit. The mother admits to doing so, out of concern for the children. But she says that the father discovered the device on the very day that she first planted it. She denies having followed him. However she seems to know a great deal about what activities he engages in with the children. I take her responses with a huge grain of salt.

Analysis

[29] This is clearly a high conflict case that is at risk of exploding into an even greater level of conflict. Each party seems to have played a role in this state of affairs. The mother persists in monitoring the father and reporting him to various authorities, despite a paucity of evidence. She is both hyper-suspicious of the father and ultra-protective of the children. For his part, the father is often less than candid and dismissive of her.

[30] Both the police and two children’s aid societies have found that the father has done nothing that raises child protection concerns in his parenting of the children. That is a finding that the mother has been stubbornly unwilling to accept. She records all access pickups and returns on her home surveillance camera. She either follows the father or so closely questions the children that she has a good idea of what they are doing whenever they are with the father. I cannot decide which is the case, based on the materials before me. Either way, her conduct in that regard is problematic.

[31] The mother is either, as the father says, stalking him or she is debriefing the children about their father each time they return home. It is not unusual to ask children how they are and what they did with their access parent at the end of a visit. But more than that appears to be going on here.

[32] The mother’s conduct in surreptitiously placing a tracking device makes it difficult for her to argue that her intentions are benign. She now admits that she acted wrongly. She may have committed a tort by invading his privacy or intruding on his seclusion. Whether or not that is the case, it demonstrates that the mother’s pursuit of the father needs to be restrained.

[33] While the father did not specifically request a restraining order, I note that such a remedy is not available under either s. 35 of the Children’s Law Reform Act (“CLRA”) or s. 46 of the Family Law Act. That is because the father does not, in the wording of both provisions, have “…reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody (see: Noriega v. Litke, 2020 ONSC 2970, Children's Aid Society of Toronto v. L.S., 2017 ONCJ 506). However I do have jurisdiction under s. 28 (1)(c) of the CLRA to

a. “[limit] the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child.”

b. [prohibit] a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child.

[34] Those provisions are broad enough to prohibit the kinds of conduct in which the mother has engaged. Further, under r. 19(3) of the Family Law Rules (“FLR”), I may order a party to disclose any “document mentioned in a party’s application, answer, reply, notice of motion or affidavit”. The disclosure requested by the father falls within those categories.

[35] All of that being said, the father is not without blame in this case. While the children have not been harmed, he has been cavalier in walking close to the line in regard to both pandemic regulations and recommendations not to mention his lack of candour to the mother about where he takes the children during the present pandemic.

[36] The father needs to consider the warning of Pazaratz J. in the now seminal COVID-19 case, Ribeiro v. Wright, 2020 ONSC 1829:

14 And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.

[37] Further, in behaving in the manner he does, the father ignores the mother’s concerns with keeping the children safe during the pandemic. There is some merit to her concerns, albeit not to the extent that she claims. Unfortunately, the father contributes to those concerns. There is no reason that he cannot:

a. do all of his shopping before he has the children in his care. Grocery shopping with the children should be a last resort;

b. be more candid with the mother and the court about his domestic arrangements;

c. state the name and circumstances of the “friend” to whose home he has taken the children to sleep, whether the girlfriend or otherwise;

d. be more circumspect about taking the children to see their grandparents and cousins at a cottage in Huntsville. That would be the case, particularly for his parents, who are likely vulnerable because of their age. But we are learning that the notion that children are invulnerable to COVID-19 is a myth. The father should not be taking that extra risk, particularly when the children’s primary caregiver has such a strong reservation against such visits.

e. be more forthcoming and respectful in his communications with the mother.

[38] Again to quote Ribeiro v. Wright,

16 And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household - including children of former relationships.

27 Every member of this community is struggling with similar, overwhelming COVID-19 issues multiple times each day.

a. The disruption of our lives is anxiety producing for everyone.

b. It is even more confusing for children who may have a difficult time understanding.

c. In scary times, children need all of the adults in their lives to behave in a cooperative, responsible and mature manner.

d. Vulnerable children need reassurance that everything is going to be ok. It’s up to the adults to provide that reassurance.

e. Right now, families need more cooperation. And less litigation.

28 I would urge both parents in this case to renew their efforts to address vitally important health and safety issues for their child in a more conciliatory and productive manner.

[39] Because the father has not harmed the children and because the GTA is now engaged in a stage two of its reopening, I am not going to restrict the nature or timing of the father’s access. However I will offer some necessary restrictions as set out below.

Added Terms

[40] I add terms to my order, as set out below, that were not requested by either party. I do so because I find that they are very much in the children’s best interests in encouraging greater trust and openness between the parties, which will hopefully reduce their level of conflict. It may also assist in keeping the children safe during these difficult times.

[41] In doing so, I am relying on FLR r. 2(2), which speaks of the primary objective of those rules being “to enable the court to deal with cases justly”. There is a growing body of law that speaks to the place of r. 2(2) in expanding the scope of the court’s discretion to do justice between the parties within the distinct context of family law. Uniquely to family law, the best interests of children are involved, emotions are often high, and for parenting and support, the case can continue long after a final judgment. Further, this court has an inherent parens patriae jurisdiction, explicitly preserved under s. 69 of the CLRA, to protect children in certain circumstances.

[42] In A.A. v. Z.G., 2020 ONCA 192, a trial judge had been called upon to provide direction with regard to a support decision he had made after a lengthy trial, four years earlier. The husband had been ordered to pay either periodic or lump sum spousal support. He did neither. In providing his directions, the trial judge ordered that he pay all arrears, including the cashing of a letter of credit. On appeal, the husband argued that the trial judge had effectively re-written his original decision. The Ontario Court of Appeal disagreed for a number of reasons. Among them was its reference to r. 2. The court wrote:

[24] By resolving the issues before him the motion judge was following the primary objective of the Family Law Rules to “deal with cases justly” by ensuring that the procedure is fair to all parties, saving time and expense and dealing with the case in the way that is most appropriate to its importance and complexity (r. 2). Rule 2 specifically grants judges some procedural freedom to resolve family law disputes fairly and expeditiously. The motion judge’s approach was both fair and expeditious in the true spirit of r. 2. [emphasis added]

[43] In Medu v Medu, 2020 ONSC 2630, McSweeney J. of this court was faced with a request to “clarify” a previous series of comprehensive parenting orders. She was asked to interpret her orders broadly, to expand the persons who could participate in access changeovers. In response, it was submitted that to expand the terms of her previous orders would require a motion to change. McSweeney J. rejected that argument, looking to r. 2(2)’s primary objective and the comments of the Ontario Court of Appeal in A.A. v. Z.G. McSweeney J. wrote:

46 In my view, assisting the parties in this way is consistent with, if not required by, the primary objective identified in Rule 2(2) of Family Law Rules. The Ontario Court of Appeal in A.A. v. Z.G., 2020 ONCA 192 recently described "dealing with cases justly" to mean "ensuring that the procedure is fair to all parties, saving time and expense and dealing with the case in the way that is most appropriate to its importance and complexity". In order to achieve fair and expeditious resolutions, Rule 2 "specifically grants judges some procedural freedom" (at para 24).

47 Such freedom, elsewhere referred to by the Ontario Court of Appeal as "great latitude", enables a court, particularly in cases involving unrepresented litigants, to make such substantive orders, whether requested or not, as are needed to effect a just and fair result between the parties: Titova v Titov, 2012 ONCA 864 (at para 48); see also Rule 25(19)(c) [dealing with changing an order .in the event of fraud,

[44] I also rely on my decision in Multani v. Rana, 2020 ONSC 1745, where I wrote, in explaining my previous decision to allow a parent to argue for relief not found in a notice of motion before the court:[^1]

6 Although I did not cite the authority at the time of the decision, I also rely on the decision of the majority of the Ontario Court of Appeal in Richardson v. Richardson, 2019 ONCA 983. There, the majority found that in making child custody decisions, the court is not limited by the positions that parties take before it or even by the terms of their settlement. That is because the court is required to determine any parenting issue before it based only on the child's best interests. Of course, that remedy should be rarely invoked and fully explained in the court's reasons.

7 In Laliberte v. Jones (2016), 2016 SKQB 192, Danyliuk J. of the Saskatchewan Court of Queens Bench took a very similar approach to that adopted by our Court of Appeal. He wrote:

17 First, I note this is a family law matter. It is not a criminal trial, nor a commercial dispute. This is an action involving a child's interests. The court is not obligated to sit idly by and act only as a referee. In family law matters this court frequently exercises its inherent or parens patriae jurisdiction to attempt to do real justice between the parties and for the children, and to ensure that the interests of children (who cannot speak for themselves in these proceedings) are protected. Family law requires a somewhat different perspective than what is required for other legal disputes, not only for adjudicators but for counsel and the litigants as well.

18 This is reflected in legislation, in the rules of court, in judgments, and in the very practice and procedure by which such matters are conducted.

(see also the thorough discussion of the issue in Franks and Zalev, This Week in Family Law, Westlaw Next. Canada, April 13, 2020)

[45] I add that r. 2(2) does not offer carte blanche to litigants who ask for one thing in their notice of motion and then request another in court. Nor is it a magic wand that allows creative judges to impose whatever terms they wish in deciding family law cases, whatever the parties have requested or expect. The use of the degree of discretion enabled by r. 2(2) must be exercised in a manner that does justice to the parties. The manner in which the court does that is spelled out in r. 2(3), and includes “(a) ensuring that the procedure is fair to all parties” and also active management of cases (r.2(5)). One way in which courts engage in that active case management is to:

(a) At an early stage, identifying the issues and separating and disposing of those that do not need full investigation and trial.

(f) dealing with as many aspects of the case as possible on the same occasion…

[46] I believe that I have done just that in this case.

Order

[47] For the reasons set out above, I order as follows:

1. The children shall reside primarily with the mother, other than the times that they reside with the father (secondarily).

2. The children shall reside with the father as follows:

   a. Every Wednesday after school until drop off at school (or 4:00 p.m. if they are not in school) until Thursday morning return to school (or 9:00 a.m. if they are not in school);

   b. Alternate Mondays from after school (or 4:00 p.m. if they are not in school) until 6:30 p.m.

   c. Alternate weekends from Friday at 5:00 p.m. – Sunday at 6:30 p.m.

3. During his parenting time, the father shall:

   a. not take the children shopping unless under circumstances of urgency. In that event, he shall inform the mother immediately;

   b. not take the children to his parents’ cottage in Huntsville;

   c. not allow the children to participate in socialization with any persons but his partner and her children;

   d. obey all COVID-19 regulations and recommendations made by the Ontario and Canadian governments.

4. Within 30 days, the father will serve on the mother and file with this court a Form 35.1 parenting affidavit from his girlfriend/partner. If she is unwilling to swear such an affidavit, he shall, within the same 30 days, swear his own affidavit setting out the information that he knows about her that is required in the Form 33.1 affidavit.

5. Each parent will be entitled to telephone access to the children at 7:00 p.m. each full day that the child is in the care of the other parent.

6. All parenting exchanges will take place outside the home of the mother. During each exchange, the mother will remain at the front door of her home and the father shall remain at the curb, beside his car. The children will walk between the parents to begin and end their access. The mother shall not record those exchanges.

7. The mother shall not use any devices to track the movements of the father, whether with the children or otherwise.

8. Other than during access changeovers, the mother shall not come within 500 meters of the father during any access visit.

9. The mother will produce to the father, at her own expense and within 30 days:

   a. The proof of purchase of the Track! device that she placed in a child’s backpack and the app that accompanies that device;

   b. All records of the surveillance conducted by the Track! Device and app;

   c. Any recordings that she has in her possession, power or control of the access exchanges in front of her home.

   d. Any other forms of recording or tracking of the father’s movements that she has made without the father’s knowledge or consent since the date of separation that she has in her possession, including any records.

10. The parties will arrange a case conference before me to deal with any outstanding issues when the normal operations of this court resume.

Strong Encouragement to Retain a Polish Speaking Parenting Mediator

[48] I strongly recommend to the parties that they engage the services of a Polish language mediator with expertise in parenting issues so that they can avoid further litigation such as this. It is corrosive to their already tenuous relationship and very harmful to the children. The parties’ conflict is far more harmful to the children than anything that each suspects of the other.

Costs

[49] While the results of this motion are somewhat divided, the father was the more successful party. He may offer a written submission as to the costs of this motion of up to three pages, double spaced, along with any bill of costs/costs outline and authorities on which he seeks to rely, within 14 days. The mother may respond within a further 14 days.

Endorsement Deemed an Order

[50] In the circumstances of the COVID-19 emergency, this endorsement is deemed to be an Order of the Court. It is operative and enforceable from the time of its release, without any need for a signed or entered, formal, typed Order. The parties may submit a formal Order for signing and entry once the court re-opens.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz,

Dated: June 26, 2020 Original will be placed in court file

[^1]: I had earlier found, on the materials the before me, that her notice of cross motion was not urgent as defined in the Court’s then current Notice to the Profession.