Court File and Parties
NEWMARKET COURT FILE NO.: FC-19-59057-00 DATE: 20200911
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Fanny Cicci, Applicant AND: Michael Alfredo Cicci, Respondent
BEFORE: A.J. Himel J.
COUNSEL: P. Viater, Counsel for the Applicant C. Mota, Counsel for the Respondent Non-party on the motion: York Regional Police (Counsel: M. Insanic)
HEARD: September 8, 2020
ENDORSEMENT
[1] The Respondent (the “Father”) brings a motion directing the York Regional Police to locate, apprehend and deliver the children pursuant to the Douglas J. Order (the “Order”) dated June 2, 2020, in accordance with section 36(2) of the Children’s Law Reform Act (“CLRA”). He also seeks make-up time for the missed access visits from July 2020 to date.
[2] There are two children of the marriage, M.C. (born February 12, 2014 – age six) and J.C. (born September 4, 2016 – age four).
[3] The York Regional Police sent legal counsel on behalf of the Chief of Police. She attended at the teleconference motion and took the following position, relying on the relevant available caselaw (see for example: Patterson v. Powell, 2014 ONSC 1419):
(a) the York Regional Police appreciate being provided the notice of the motion in advance of any hearing and, when necessary, they welcome the opportunity to take a position;
(b) the Chief of Police typically does not oppose a one-time locate, apprehend and deliver Order with a six month expiry date, and there is preferred wording. If the Chief of Police takes no position or does not object to the requested Order, then the York Regional Police will make their position known in advance of the motion. In these instances, their participation is typically unnecessary;
(c) when a party is seeking a more expansive Order, the Chief of Police may take a position on the motion. When an Order is made without notice to the York Regional Police, they may bring a motion to vary same. An open-ended locate, apprehend and deliver Order is neither appropriate nor available as a long-term, multi-use, on-demand custody and access enforcement tool (see: Sokolov v. Sokolov 2020 ONSC 2755 at para. 18 (unreported); and
(d) following discussions with the Father’s counsel an agreement respecting the proposed terms of the requested Order was reached. The York Regional Police do not object to the requested relief as it is now a one-time attendance that is requested.
[4] At the commencement of the motion I advised the parties that I would not be inclined to make a section 36 CLRA Order, unless I found that the Applicant Mother has been interfering with the Father’s access in violation of the Douglas J. Order.
[5] I decline to make the requested Order for police involvement.
[6] I am granting certain make-up time as access is the right of the children. The current schedule order appears to be a stepping stone towards a more normalized access schedule. The Douglas J. Order requires that a certain number of visits of a specified duration take place before leave may be granted to review same. By ordering make-up access the issue can be reviewed closer to the timeline that was contemplated by Douglas J.
Background Facts
[7] The parties married on May 23, 2009 and divorced on September 30, 2018. McGee J. made a final Order on August 30, 2020. There have been ongoing problems and high conflict litigation since that time.
[8] The Father has had only six access visits (less than six hours each) since September 2019.
[9] The Father alleges that the Mother has interfered with his relationship with the children. The Mother alleges parenting concerns about the Father, including an unwillingness to follow orders and Covid-19 protocol.
[10] The Father resides in Niagara Falls. The Mother and children reside in Aurora.
[11] Pursuant to the Douglas J. Order, the Father was granted a graduated access schedule, with visits to take place at the home of the paternal great-grandmother (the “Residence”), which is vacant. The Residence is situated next to the paternal grandparents’ home. There is no fence or other barrier between the backyards.
[12] The Douglas J. Order, which was made following a contested motion, provides that access will take place on Sundays from 8:00 a.m. to 12:00 p.m. (for eight visits) plus additional time as agreed; followed by Sundays from 8:00 a.m. to 4:30 p.m. (for eight visits). Douglas J. granted leave to seek as expansion of the Father’s parenting time, including overnights, once this access takes place.
[13] Following the access visits, the Mother raised concerns that the Father was not complying with the terms of the Order. In early July, she declined to provide further access unless the Father followed her interpretation of the Order. The Father declined to comply with the Mother’s demands as he disagrees with that interpretation.
[14] There has been no in-person access between the Father and the children since June 28, 2020.
The Law
[15] Section 36(2) of the CLRA reads as follows:
Order to locate and take child
(2) Where a court is satisfied upon application that there are reasonable and probable grounds for believing,
(a) that any person is unlawfully withholding a child from a person entitled to custody of or access to the child;
(b) that a person who is prohibited by court order or separation agreement from removing a child from Ontario proposes to remove the child or have the child removed from Ontario; or
(c) that a person who is entitled to access to a child proposes to remove the child or to have the child removed from Ontario and that the child is not likely to return,
the court by order may direct a police force, having jurisdiction in any area where it appears to the court that the child may be, to locate, apprehend and deliver the child to the person named in the order. R.S.O. 1990, c. C.12, s. 36 (2).
Analysis
[16] A plain reading of the Order of Douglas J. reveals the following:
(a) the Court addressed the Mother’s concerns respecting the Covid-19 virus by imposing specific clauses including sanitizing toys, cleaning plates and protecting the children from contact with third parties;
(b) the Court provided an Order that was designed to enable the Father, who has rarely seen the children since September 2019, with the opportunity to reconnect with them; and
(c) restricting access to the children and Father alone achieves these goals.
[17] Below is a summary of the restrictions imposed on the Father’s access. The access is to take place in the Residence or outside. Third parties may not spend any time outside the Residence (para. 9). No person other that the Father is permitted to attend at the Residence, whether or not access is taking place. The Father must sign an undertaking that he will not permit any person other than himself and the children to enter the Residence. Access is delayed until his parents signed this type of undertaking including that they will not enter the Residence (para. 10). Access will take place only between the Father and the children. He is not permitted to allow any other person to attend for access, including without limitation, his girlfriend and her children. The paternal grandparents’ contact is limited to seeing the children through a closed (glass) window or a door, or in the backyard at a safe social distance (para. 11).
[18] From the very first visit various people were present in the other half of the mutual backyard. This includes: the paternal grandparents, a great uncle and his dog and the Father’s girlfriend and her children.
[19] In response to the concerns raised by the Mother, the Father takes the position that: (1) He did not invite these people; (2) He has no control over who his parents invite to their backyard; (3) He did not permit the children to have contact (as the third parties remained on the paternal grandparents’ property); and, (4) The paternal grandmother is not willing to be restricted as to who she can invite to her backyard.
[20] The Mother made various proposals to address her concerns pending a return of the issue to the Court. This includes a proposal that when the third parties are in the backyard, the Father and children remain in the residence.
[21] The Father declined to comply with the Mother’s terms. For a parent who states that he wants to see his children this decision shows poor judgement.
[22] I find that the Father has not complied with the meaning and spirit of the Douglas J. Order. Instead of spending one-to-one time with the children, he permitted the children to be in the backyard where extended family members were present (although I make no findings as to whether the social distancing requirements were violated).
[23] If the Father wanted to take the children to the backyard it was his obligation to ensure that his great-uncle and his girlfriend and her children were not out back. The Residence has a front yard and a driveway, which provide the same opportunity for outdoor time and are away from any third parties.
[24] So long as the paternal grandparents were situated in their backyard and at least six feet from the children, I find that they have not violated the terms of the Order. A plain reading provides that this was permissible notwithstanding the Mother’s arguments against same.
[25] However, if the Father wishes to persuade the Court that he can care for, entertain and engage with the children on his own, then he may wish to limit the amount of time that the paternal grandparents are present during the visits. It is the Mother’s position that the Father consistently has third parties present on his parenting time, and/or relies on technology to keep the children occupied, which is concerning to the Court.
[26] The Court is also concerned about the lack of insight shown by the Father in respect of the impact that his recent decisions have had on the children, the Mother and his relationship with each of them. The parties must find a way to parent these young children in a business-like manner, with at least a minimal amount of respect and trust. “Toying” with a Court Order is not the way to achieve that goal.
[27] The Father knew, or ought to have known, that the access was designed to provide him with the opportunity to re-connect with the children.
[28] The Father knew, or ought to have known, that the Mother has significant fears about the children’s exposure to Covid-19 (and the risks to others in her family).
[29] The Father knew, or ought to have known, that this behaviour would cause unnecessary conflict with the Mother.
[30] The Father’s decision not to comply with the terms of the Order, and his decision not to see the children because he did not agree with the Mother’s position sends a strong message to the Court about his priorities.
[31] I am troubled with the Mother’s allegations respecting the various other ways that he is in breach of the Order. She should not pepper the children with questions, which she must have done, given the allegations about the Father withholding the children from the bathroom and the dishes issue. I do not believe that these complaints form any basis for negative findings about the Father’s parenting ability or compliance with court Orders. There is no (good) reason to ask the children for information about their time with the Father. The only reason is to build a case against the Father.
[32] The Father alleges that the Mother has engaged in gatekeeping behaviour. I am concerned about that issue as well.
[33] Both parties are more interested in controlling one another and “winning” than on ensuring that their children have a healthy and appropriate relationship with each of them.
[34] I decline to order police enforcement as it is not warranted in this case. Moreover, this type of remedy should be used very cautiously. The idea that it may be in children’s best interests to be picked up by police officers (currently wearing masks) and placed in a stranger’s car to be delivered to the other parent is disconcerting. It is an exceptional remedy for only the clearest of cases. Children can be traumatized by being forcibly removed by the police and delivered to the other parent. The Chief of Police raises concerns that an unknown police officer, in unknown circumstances, on unknown dates, is best suited to managing anticipated access disputes between parents (Patterson, supra at paras. 3, 48 and 53). I agree.
[35] I am ordering make-up access to decrease the amount of time that it will take to comply with Douglas J.’s Order so that leave can be granted for a review by early December. As stated above, the children have a right to a normalized parenting schedule with the Father that accords with their best interests. On the assumption that the Father and his parents execute the required undertakings within seven days, the 12 remaining visits can be completed by late November 2020.
[36] I am ordering that a Settlement Conference before Jarvis J. take place on December 18, 2020 at 9:30 a.m.
[37] At the conclusion of the motion I asked the parties for their submissions on costs. The Mother is successful, however, her Offer to Settle does not meet the requirements of a Rule 18 Offer as it was served at 3:45 p.m. on the day before the hearing. I have considered the offer in my decision. The requested costs of $8,000 are excessive for the limited issues that were before the Court. A reasonable amount of costs is $3,500 plus HST, which is the amount requested by the Father if he had been successful.
Order to Go as Follows:
The Father and the paternal grandparents shall forthwith comply with the undertakings required by the Douglas J. Order. If the grandparents fail to comply, they may have no contact with the children pending further Court Order or agreement by the parties.
Once the Father has executed the required undertakings the access shall resume. The four remaining morning visits shall take place every Saturday and Sunday (for two weeks). Thereafter, every Sunday as per the Order of Douglas J.
The access shall take place inside the paternal great-grandmother’s home, unless there are no third parties in the backyard or the front yard, except that the paternal grandparents may stay on their property in the backyard when the children are present. The grandparents must remain more than six feet away from the children, who must remain in the backyard of the Residence.
All other terms of the Douglas J. Order remain in full force and effect.
The Father’s motion for police enforcement is dismissed.
Costs payable by the Father to the Mother in the amount of $3,500 plus HST, within 30 days.
A Settlement Conference shall be convened before Jarvis J. on December 18, 2020 at 9:30 a.m.
A copy of this Endorsement shall be sent to Melissa Insanic, York Regional Police, by email.
In the circumstances of the Covid-19 emergency, this Endorsement is deemed to be an Order of the Court that is operative and enforceable without any need for a signed or entered, formal, typed Order. Approval of this Order is dispensed with: either party may submit a formal Order for signing before me.
DATE: September 11, 2020 Justice A. Himel