Court File and Parties

COURT FILE NO.: 43170/20

DATE: 2020-08-28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Manuel Figueiredo Martins da Silva, Applicant

AND:

Carla Moreira, Respondent

BEFORE: Kurz J.

COUNSEL: Jose Bento Rodrigues, for the Applicant

Sender Herschorn, for the Respondent

HEARD: August 20, 2020 by Zoom teleconference

ENDORSEMENT

[1] The respondent father (“the father”) moves for the reinstatement of his access to his 11-year old son, A[^1] on alternate weekends and one non-overnight weekday per week. He also seeks a police enforcement clause. He states that the Applicant mother (“the mother”) unilaterally terminated his access on or about February 28, 2020. Until then, he had been enjoying alternate weekend access since the previous September, when the parties separated. About a month after terminating access, the mother sent the father a text in which she forbade him from contacting her or their children.

[2] The mother opposes the motion, arguing variously that:

a. The father has acted “cruelly” to her and the parties’ children. While vaguely referring to his abusive nature during the marriage, she mainly points to their disagreement about the proper quantum of support;

b. A does not want to see his father alone’

c. If any access is to take place, it must include the parties’ 19-year old daughter, R, who has written to the father to cut off all contact with him. R has ostensibly done so because of the parsimonious financial positions that he has taken during litigation between the parties;

d. A has special medical needs, which the father is unable to care for. In fact, he does not know how to care for his son.

[3] For the reasons to follow, I order that access be gradually reinstated. I also refer to some previously delivered comments about the level of conflict reflected in one party’s evidence, reflecting on its effect on proceeding and family litigation in general.

Background:

[4] The parties married in Portugal on December 8, 2000. They separated on September 15, 2019. The parties have two children, 11-year old A and 19-year old R. The two siblings are close. The father says that he was closely involved in raising the children until the parties separated. The mother does not seriously dispute this allegation.

[5] A had a kidney transplant in 2017. He has special needs that arise from his delicate medical condition. He requires a number of medications each day and a blood pressure monitor. The father had the parties’ two children in his care from December 25, 2019 until January 2, 2020.

[6] There is no previous court order for custody and access in this proceeding. After the parties separated in September 2019, the father began access to both children. His access took place on alternate weekends and on Wednesdays from 4-7.

[7] The mother unilaterally moved with the children from Toronto, where they had grown up thus far, to Halton. She did not inform the father of the move, let alone request his consent. The father only received her address when he was served with her Answer in this proceeding. He still does not know the identity of A’s school.

[8] This access continued until in or about February 28, 2020, when the mother unilaterally terminated it. On March 19, 2020, R wrote to her father to break off their relationship because of her view of her father’s positions in the financial litigation with her mother. She explicitly set out what she understood to be the father’s positions on support and property in the litigation with her mother. She wrote:

… We don't want to talk to you anymore, we're not calling again or even going over because you've treated this separation as if you're the only one who deserves their share and is the only one who is affected by this situation. You've been a pain in everyones [sic] asses about this separation and the division of assets. You sent a letter to mom from your lawyer saying that since I'm 18 and an adult l can get a job to pay for school myself and apply for OSAP…[A] doesn’t want to talk to you any more…

[9] Very obviously, information, if not correspondence and pleadings in this litigation, was disclosed by the mother to R. and likely to A as well. Through counsel, the mother implicitly admits that she showed the relevant court documents to R. Counsel defends the mother’s conduct by stating that if R is an adult, who is being asked to contribute to her education, she should know that her father is insisting that she do so. From the text, far more than that has been taking place.

[10] On March 30, 2020, the mother wrote to the father terminating all of his contact with herself and the children. She wrote: “…starting today, you are not allowed to contact me or my kids.” [Emphasis added] This excerpt is part of a text in which she bitterly complains about the position that the father takes on financial issues between the parties.

[11] The mother claims that the father refused her entreaties to contact the children. She claims that his failure to contact A on his birthday led to a dangerous episode in which his blood pressure went sky high. However, the father provides a log of his attempts to contact the children before the mother terminated all contact on March 30, 2020. He also provides the court with a copy of the text he sent the boy on his 11th birthday. It reads (with some of the emoji’s deleted because they could not be reproduced):

Hi Tiger wanna wish you happy birthday and hope i see you soon, Daddy loves you so much and miss you a lot, have a beautiful day, you always my tiger
Mannys ds

Analysis

[Divorce Act s. 16](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html)

[12] The test for an interim access order under s. 16(2) of the Divorce Act is simply what arrangement is in Alexandre’s best interests, considering the maximum contact principle enshrined in s. 16(10). Under s. 16(8), the court shall take into consideration the best interests of the child as determined by refence to the conditions, means, needs, and other circumstances of the child. Under s. 16(9), the court may not take into consideration the past conduct of a parent unless it is relevant to the ability of a person to act as a parent to a child.

Lack of Justification for Terminating Access

[13] The mother does not point to any single incident or accretion of incidents that justified her cutting off of the father’s access and then the contact. From the context of the termination of access and contact, I infer that the mother is angered about the perceived lack of financial support from the father. She has chosen to bring her children into the financial conflict, to the extent that R wrote an angry and insolent text purporting to cut off all contact with her father.

[14] The mother has claimed that she has always kept the door open to the father to see the children and that it is he who has abandoned them. I do not find her evidence credible for the three reasons that follow.

[15] First, within the context of this motion, where I find that the evidence of the parties’ conflicts, I prefer the father’s evidence to that of the mother. I say this because:

a. As I will set out below, the mother’s affidavit was hyperbolic and rhetorical. It reflects exaggeration borne of deep animus towards the father. For example, she writes: “I have no words to describe how cruel Manuel has behaved towards all of us, but, especially to the children.” Deprived of words, she provides few concrete examples of that other than his position in regard to support.

b. She claims that the father never attempted to contact the children or to reach out to A on his birthday. The text set out above puts lie to that allegation. The father has provided a log of attempts to contact the children in late March, before the cut off of all contact. He also produces letters from his counsel, dated April 9, May 14, May 22 and June 3, 2020, before this matter came to court, seeking to reinstate access.

c. The mother’s own email of March 30, 2020, set out above, makes clear that she is the one who cut the father off from contacting his children, rather than vice versa.

[16] Second, I have no doubt that the mother has allowed, if not encouraged the current state of affairs to continue. I state this because:

a. She has a history of unilateral behaviour towards the children, including:

• She felt entitled to unilaterally change the city in which the children reside;
• She chose not to tell the father where she moved with the children or where they go to school;
• She felt entitled to unilaterally determine when he can see or not see the children;
• She feels entitled to say that the father can only see A if R is present.
• She speaks for both children in setting out what she claims to be their views and preferences, which of course support her position.

b. She clearly has an animus towards the father, which R, at the least shares.

c. She has clearly discussed the parties’ conflict with the children. R’s text to her father makes that clear. So too does the mother’s text to the father of March 30, 2020, which I have quoted in part, above. Among the things she says to him in the text are the following (which puts her statement terminating all contact with the children in a fuller context):

Who payed [sic] your rent Manuel. Kids even know I offered you to take more from the house. Even your daughter confirms I gave you money for your rent. Forget everything I tried to make amends with you in dealing with this situation. From today on it's going to be the legal way. Staring today you are not allowed to contact me or my kids. Since you didn't want to take my reasonable way to solve the problem. I’m going to make sure to let everyone know what you are doing to your kids. Not providing since I don't even have a job.

d. Her insistence that R accompany A during every visit and phone call with the father can be seen as a further element of control over the access. R is clearly aligned with her mother against her father. She can offer her mother both a report as to what happened and an element of adverse influence on A during the course of the access.

e. She has clearly assumed a significant level of control over the children’s contact with their father. She has exercised a manifest influence on them. Yet she says nothing about having insisted on the children, and A in particular seeing their father. I can only take from that absence of evidence that the mother has not encouraged access. In fact, as set out above, it appears that she has directly or indirectly discouraged it

[17] Third, the mother’s affidavit is prone to exaggerated, pejorative statements about the father, a matter which I have already mentioned and will further discuss below. I have already mentioned a few of them but cannot ignore the following additional hyperbolic statements, which are quoted from her affidavit:

• Manuel is solely responsible for the current situation that is destroying our family. • I believe that A's body reacted to the fact that Manuel did not wish him happy birthday [i.e. he became ill because his father did not wish him a happy birthday]. • Manuel would like to disown R, through no fault of her own. • I understand why A does not want to be alone with Manuel. • I do not understand what Manuel means by the term, "parenting time". Manuel should start by acting like a parent to both our children.

[18] The mother’s counsel has fairly made oral submissions to the effect that both parents share responsibility for the present state of affairs. However nothing in the mother’s materials reflects any element of acceptance of responsibility for her termination of the access or self-awareness of her role in this conflict.

[19] It is an understatement to assert that there is obviously a great deal of conflict between the parties, or that it has greatly affected the children. When conflict that great arises, the custodial parent may feel that they should share their views on the conflict with the children. The opposite is the case; when that level of conflict arises, the children have a heightened need to be protected from their parents’ conflict. Unfortunately, the mother has failed to protect the children from that conflict.

The Financial and Support Issues are not Intertwined

[20] I neither know nor can I judge the father’s position regarding financial issues. I have seen no materials regarding that issue. The mother wanted to argue the access and financial issues together but the court was unable to find the time to do so. Accordingly, it selected a separate date to deal with the financial issues. However, as presented in this motion, in the mother’s mind, the two issues are intertwined.

[21] I do not agree with that approach, whereby access and finances are intertwined. I say this for two reasons. First, unless R withdraws from parental control, the support issues are between the parents. She does not need to be dragged into them. The mother has very experienced counsel. I assume that the temporary support issues will be resolved at the support motion. They serve as no excuse to withhold access.

[22] That being said, I am sure that counsel are aware that in Coghill v. Coghill, 2006 28734 (ON SC), [2006] O.J. No. 2602 (S.C.J.), Wright J. adopts the following statement from Julien D. Payne’s text, Child Support in Canada:

A student loan is not a “benefit” within the meaning of section 7(3) of the Child Support Guidelines that must be automatically taken into account in determining the amount to be ordered in respect of expenses sought under section 7 of the Guidelines… nor should the availability of student loans automatically require the child to obtain such loans. Student loans are not to be equated with bursaries, grants, or scholarships. A student loan delays the payment of expenses rather than defraying them. (Julien D. Payne: Child Support in Canada).

[23] Second and even more to the point, a parent who underpays support is still entitled to access. Even if the father is taking the position to which the mother alludes, and even if he is wrong, that does not give her licence to terminate access. Nor does it give a ten or eleven-year old a veto over access. It is no coincidence that that alleged veto aligns perfectly with the mother’s position on the “cruelty” of the father’s financial arguments. If he is wrong, the court will correct that error in the mother’s support motion.

[24] But the mother has an obligation to A to encourage his access, just as she would to encourage his school attendance or compliance with beneficial medical treatments. Mossip J. of this court put the issue very well in Reeves v. Reeves, 2001 CarswellOnt 277 (Ont. S.C.J.) stating:

Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children not have a relationship with the other parent simply demonstrates the irresponsibility of the parent who has the children and demonstrates that parent's inability to act in the best interests of their children. Children do not always want to go to school or want to go to the dentist or doctors. It is the responsibility of good parents to ensure the children go to school, go to doctors, and go to the dentist. Good parents manage their children's health and safety issues without necessarily the consent or joy of their children. A healthy relationship with both parents is a health and safety issue that good parents ensure takes place.

[25] I expect the mother to encourage A to attend access, whether or not R wished to attend as well, and to insist that he do so.

[26] I add that the father expressed through counsel that he is more than willing to allow R to attend on the access. It is to be hoped that she will and that she will use the opportunity to reconnect with her father. But she must not use the opportunity to disrupt the access.

[27] With regard to the mother’s other arguments, I point out the following:

a. The father’s failure to seek access to both children is not, in itself an indication that he has abandoned his daughter. The court lacks the jurisdiction to order access to a competent adult child.

b. I agree with the mother that the parties should attend at counselling/mediation to assist them in communicating and ensuring that henceforth, the children are kept out of the litigation.

c. The mother’s statement that the father does not know how to treat A’s medical condition is simply not credible. If that were the case, she would not have agreed to his access from separation until late February 2020. There is no evidence that A’s medical needs have changed since separation. No children’s aid society has intervened. The mother has provided no medical evidence that the fathers alleged ignorance caused any harm to the child.

d. The mother implies that the COVID-19 pandemic has raised an additional medical concern regarding access. The father says that he will take all necessary medical steps to protect A. Presently, the incidence of COVID-19 in this province is quite low. Further, I adopt the following comment of Pazaratz J. Ribeiro v. Wright, 2020 ONSC 1829:

10. None of us know how long this crisis is going to last. In many respects we are going to have to put our lives "on hold" until COVID-19 is resolved. But children's lives -- and vitally important family relationships -- cannot be placed "on hold" indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence -- even to visit their other parent -- is inconsistent with a comprehensive analysis of the best interests of the child. In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.

e. In Ivens v. Ivens, 2020 ONSC 2194, I added the following comment in the context of a parent who had unilaterally terminated access, ostensibly because of the pandemic:

122 As I stated above, I find this motion to be urgent, but not for the reasons proffered by the moving party, the mother. As Pazaratz J. stated in Ribeiro v. Wright and as quoted above, parents and courts must not presume that the existence of the present health crisis will automatically result in a suspension of in-person parenting time. Each case must be determined on its merits.

f. I agree with the mother that a police enforcement term requested by the father under s. 36 of the Children's Law Reform Act would be counterproductive and potentially harmful for A. In Patterson v. Powell, 2014 ONSC 1419, Pazaratz J. engaged in a comprehensive review of the case law on police enforcement clauses. Those cases show that police enforcement should only be limited to exceptional circumstances and as a last resort. Police enforcement should only be ordered when it is shown to be in the best interests of the child, after considering the risk of trauma of such a term to the child. That is particularly true for young children.

Comments About the Mother’s Materials

[28] I have written above about the concerns raised by the mother’s materials and how they adversely reflect upon her state of mind regarding access to the father. Her affidavit is full of hyperbole, personal attacks and argument.

[29] The mother’s affidavit also improperly attempts to refer to materials found in the parties’ case conference briefs and suggest what was discussed at the case conference before Gibson J. All of that is inadmissible under r. 17(23) (see Bordynuik v. Bordynuik, 2008 39219 (ON SC), [2008] O.J. No. 3049 (S.C.J.) at para. 8).

[30] Family law judges are frequently faced with such problematic materials. They only exacerbate the ongoing conflict between former spouses, who are going through some of the most difficult periods in their lives. They also reflect very poorly on the parties who sign those affidavits and those who seek, in their arguments, to rely on such problematic evidence. Here, the mother’s lawyer attempted to effectively move past her affidavit, but that would be the equivalent of standing next to an elephant and then attempting to ignore its presence.

[31] In Alsawwah v. Affifi, 2020 ONSC 2883, I wrote at length about the danger of such materials in family law proceedings. I repeat my comments at length below because I am hopeful that they will assist the parties in this case. They do not simply reflect my idiosyncratic view of family law advocacy but rather, as I understand it, the view of the majority of judges who are tasked with resolving family law disputes:

1 The famous American trial lawyer, Louis Nizer, once wrote that "[w]hen a man points a finger at someone else, he should remember that four of his fingers are pointing at himself." This aphorism, pointing to the ubiquity of human foible, is one that more lawyers who pride themselves on their aggressive family law advocacy, should take to heart. I recommend it in this case.

104 Family litigation is far too corrosive of once-loving relationships and far too soul destroying for emotionally scarred litigants to be exacerbated by an unnecessary war of invective. Yet far too often that is just what occurs. Litigants feel that they can leave no pejorative stone of personal attack untilled when it comes to their once loved one. Many lawyers, feeling dutybound to fearlessly advocate for their clients, end up abetting them in raising their discord to Chernobyl levels of conflict.

105 Often those parties and their lawyers forget that once the war is over, the financially and emotionally drained family still has to pick up the pieces. And the children whose best interests are ostensibly the central concern of their parents' struggle, can leave their field of battle scarred for life.

106 The role of lawyers in family law cases is a complicated one. That role involves a balancing act of duties towards the client, the administration of justice and even the child before the court.

107 Beyond the balance of those duties, many capable family law lawyers realize that if the cost of victory is too great, everyone loses. Those lawyers realize that their role as advocate should often be as rational counsel not flame-throwing propagandist. Where the client wants to raise the emotional stakes with invective and personal attack, that lawyer must often counsel restraint. While many lawyers who appear before this court recognize the truth of Mr. Nizer's aphorism that began these reasons, all too many, unfortunately, fail to do so.

108 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:

1. Evidence regarding a former spouse's moral failings is rarely relevant to the issues before the court.

2. Nor are we swayed by rhetoric against the other party that verges on agitprop.

3. 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".

4. 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.

5. Affidavits that read as argument rather than a recitation of facts are not persuasive. They speak to careless drafting.

6. 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.

7. 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.

8. Facts win cases. A pebble of proof is worth a mountain of innuendo or bald allegation.

9. 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.

10. 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.

11. 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.

[References omitted]

Conclusion

[32] Access must resume immediately. The mother must ensure that she encourages and requires it of A. That being said, access has not occurred in almost six months. Accordingly, the access must begin as day access and then rebuild to overnight access.

[33] Therefore, I order that the father’s access to A will take place as follows:

a. For the next four weeks: each Wednesday from 4 - 7:00 p.m. and Sunday, from 9:00 a.m. – 5:00 p.m. If the parties prefer to switch the weekend dates, they may do so to allow access on Saturdays rather than Sunday.

b. Thereafter, weekend access shall commence Saturday at 5:00 p.m. and continue to Sunday at 5:00 p.m. for a further four weeks. The Wednesday access shall continue from 4 - 7:00 p.m.

c. After eight weeks, the weekend access shall be alternate weekends from Friday at 4:00 p.m. to Sunday at 7:00 p.m. and each Wednesday from 4 - 7:00 p.m.

d. R may attend at the access but her attendance is not a precondition to access. However, she shall do nothing during the visits she attends to undermine them

e. The father may speak to A each Tuesday and Thursday for up to 15 minutes by telephone or some other electronic means. I leave it to counsel to make the arrangements.

f. These reasons, other than the terms of my order that specifically apply to each child, shall not be shared with either child. Nor shall any other court materials in this proceeding be shared with either child.

g. The mother shall encourage A to attend at access whether or not R chooses to attend. Further, she shall insist that he does so.

h. Neither parent will derogate the other to either of the children. The mother shall instruct R not to do so either.

i. The parties shall each purchase, at their own expense (unless the court orders otherwise), Our Family Wizard and communicate through that medium. They shall not allow either R or A access to any such communications.

[34] If the parties wish to attend before me at case conference to review the progress of the access they may arrange to do so at any stage on consent or after 90 days if there is no consent.

[35] On the other hand, if the access is withheld or otherwise compromised, the parties may bring the matter before me on a motion, provided that I have not conducted a case conference in the matter. In that event, they may attend before any other judge of this court.

[36] If the parties and R wish, they may arrange separate parenting time for the father and R (although I am not ordering it.).

Costs

[37] I encourage the parties to resolve costs. If they are unable to do so, the father may provide written submissions of up to three pages, double spaced, one-inch margins, plus bill of costs, within 14 days. The mother may respond within a further 14 days.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz, Original will be placed in court file

Dated: August 28, 2020

[^1]: I identify the children only by their first initials to protect their privacy.