Court File and Parties

COURT FILE NO.: 931/19

DATE: 2020-09-21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Laura Laidman, Applicant

AND:

Christina Jessica Pasalic and Marcel Richard William Laidman, Respondents

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: D. Walkling, Counsel, for the Applicant

J. Vandenberg, Counsel, for the Respondent, Christina Jessica Pasalic

Self-Represented Respondent, Marcel Richard William Laidman

HEARD: September 18, 2020

ENDORSEMENT

[1] We have two active court files concerning one child – a three year old girl – and the issue on this motion is whether those two proceedings should be consolidated and determined at the same time using the same evidence.

[2] The dispute involves three adults – the mother, the father, and the paternal grandmother. However only the mother and grandmother filed materials on this motion. Both are represented by counsel.

[3] The self-represented father filed no materials but attended the hearing of the motion and made brief submissions supporting the grandmother’s position.

[4] The chronology includes the following:

[5] The mother and father had a turbulent, intermittent relationship lasting between two-and-a-half and three years, leading to a final separation in October 2018.

[6] Their only child Akalia was born on December 27, 2016.

[7] The mother says the parties separated from June 2017 to August 2017. They reconciled but separated again in January 2018. They reconciled in August 2018 but separated again October 17, 2018.

[8] Akalia remained with the mother during each period of separation. The child was less than two years old when the parties finally separated, and since then Akalia has remained with the mother.

[9] During one of the separations the mother commenced an Application under file number 1116/17. This resulted in this court issuing a final order on November 27, 2017. That order included the following:

a. Sole custody and primary residence to the mother.

b. Father to have access on alternate weekends Friday 3:00 p.m. to Sunday 7:00 p.m. together with additional times including some weekday non-overnight visits.

c. There were no restrictions or terms of supervision with respect to the father’s access.

d. There was no mention of the paternal grandmother in that original final order.

[10] On September 17, 2018 – again, just prior to the final separation – the parties consented to a final order changing the November 27, 2017 order. That order, granted by Justice Brown pursuant to Minutes of Settlement, included the following terms:

a. The father’s access terms were changed to provide that he would have access supervised in the mother’s discretion, on alternate weekends from Friday 3:00 p.m. to Sunday at 7:00 p.m.; Father’s Day; and a sharing of holidays, special occasions, and other times as agreed between the parties.

b. The paternal grandmother “shall supervise the (father’s) visits until supervision is no longer necessary.”

c. If there is a disagreement about the need for supervision or the selection of the supervisor, the parties shall attend mediation prior to returning to court.

[11] The paternal grandmother was not named as a party in that order, or in action 1116/17; nor was she ever granted any rights of her own in relation to the child. She was only named as a supervisor in relation to the father’s access “until supervision is no longer necessary.”

[12] Within a month of the consent order being granted, the father was charged with 22 criminal offences all relating to the mother. Some of the charges related to incidents occurring prior to Justice Brown’s September 17, 2018 order. But a number of serious charges arose soon after the order was made, including:

a. Break and Enter with Intent to Commit an Indictable Offence on October 17, 2018.

b. Breach of Recognizance on October 17, 2018.

c. Breach of Probation on October 17, 2018.

d. Mischief under $5,000.00 on October 16, 2018.

e. Breach of Recognizance on October 16, 2018.

f. Breach of Probation on October 16, 2018.

g. Assault on October 7, 2018.

h. Mischief Under $5,000.00 on October 7, 2018.

i. Breach of Probation on October 7, 2018.

j. Assault on October 17, 2018.

[13] The father was released on bail on terms requiring him to reside with his surety in Brantford. He was prohibited from contacting or communicating with the mother or attending within 100 metres of her, except for court appearances or at the direction of the Children’s Aid Society.

[14] Following the October 2018 charges, the father had supervised access at the Catholic Children’s Aid Society (“CCAS”) until September 2019. There is disagreement between the parties as to why CCAS supervision was arranged. There is also disagreement about why access stopped.

a. The paternal grandmother says the mother arbitrarily stopped taking Akalia for visits.

b. The mother says she stopped taking the child to the CCAS office for visits after she arrived at the end of a visit to see the father walking with Akalia outside, completely unsupervised, smoking a cigarette and not even holding the then two-year old’s hand.

c. The father filed no evidence on this or any other topic.

[15] On June 4, 2019 the mother commenced a motion to change the September 17, 2018 order, within file number 1116/17. She wants to eliminate overnight access, and remove the paternal grandmother as a supervisor. She proposes that the father’s access should be supervised by CCAS or an institutional supervisor. She also seeks a restraining order against the father.

[16] On July 8, 2019 the paternal grandmother commenced a fresh application under file number 931/19, naming both parents as Respondents, and seeking her own right to access to the child, independent of the father’s rights.

[17] In January 2020 the father pleaded guilty to nine of the 22 criminal charges. The remaining charges were withdrawn. Sentencing was delayed as a result of the suspension of court operations due to the COVID pandemic. His sentencing is now scheduled to take place October 23, 2020.

[18] So, we currently have two different types of proceedings before the court:

a. The mother’s motion to change in file 1116/17 involves only the two parents. This will entail a determination as to whether there has been a material change in circumstances; and if so, whether a change to the September 17, 2018 order would be in the best interests of the child.

b. The paternal grandmother’s application under file 931/19 names both parents as Respondents. This is a fresh application in which the grandmother is seeking to establish her own right of access to Akalia, independent of the father’s rights.

[19] The father and the paternal grandmother are on good terms with one another. The grandmother acknowledges that if the father is allowed his own alternate weekend access, she won’t need to pursue her own time with the child: She will see Akalia during the father’s times. But she seeks specification of her own time with the child, just in case the father’s time is restricted or curtailed in the future.

[20] On September 9, 2020 the paternal grandmother brought this motion to consolidate the two court actions.

a. She wants the mother’s motion and her application heard at the same time, relying upon the same oral evidence.

b. The father supports her position.

c. The mother opposes consolidation.

[21] The affidavit materials filed on this motion set out starkly conflicting narratives.

a. The paternal grandmother states that she has always been closely and beneficially involved in the child’s life; that she had regular contact with Akalia until October 2018; and that she and the child have a loving relationship with one another. She feels it is unfair for the child that she and Akalia have had no contact with one another for almost two years. She says it is in the best interest of the young child to have to assurance of regular future contact with the grandmother, not dependant on any uncertainties or complications relating to the father’s access.

b. The mother disputes the extent or quality of the paternal grandmother’s relationship with the child. She says Akalia was 22 months old when she last saw the grandmother, and at that point there had been periods totalling 11 months when the grandmother was completely out of the picture. The mother disputes that it is in the child’s best interest for the grandmother to have her own access times. She says the paternal grandmother has a history of overlooking and concealing the father’s serious and dangerous misconduct. She feels the grandmother can no longer be trusted as a supervisor of the father’s access, and it is not in the best interests of the child that the grandmother now be granted her own rights in relation to the child.

[22] It is not my function on this motion to make any determination as to the relative merit of those competing narratives, or to speculate as to ultimate result. My task is merely to determine whether the two matters before the court should be decided separately or together.

[23] The mother’s motion to change and the paternal grandmother’s fresh application have made their way through case management roughly in tandem.

a. At a Settlement Conference on August 27, 2020 Justice Brown placed the paternal grandmother’s application on the trial sittings of November 16, 2020 for a four-to-five-day oral hearing.

b. The mother’s Motion to Change has not yet been set down for a determination. If the matters are consolidated, the motion will be heard at the same time as the application. But if the matters are not consolidated, the mother’s motion could be dealt with separately – and sooner than the grandmother’s application.

[24] The paternal grandmother’s arguments in favour of consolidation include the following:

a. Both proceedings relate to a determination of the best interests of the same child.

b. Both proceedings involve the same parents. The paternal grandmother is a party in her own application, but she is also involved in the motion to change because she was previously named as an access supervisor, and her status under the existing order is now in dispute.

c. The same witnesses will be called in both matters. The evidence in both matters relates to the same events or situations. CCAS evidence will also be required on both matters.

d. If the matters are dealt with separately, two different judges might receive the same evidence in a different fashion or make different credibility findings. This could result in inconsistent orders.

e. Both proceedings were commenced at approximately the same time. They had Case Conferences and Settlement Conferences at the same time.

f. Neither matter will be delayed if the actions are consolidated.

g. Akalia is just starting school, so scheduling for the child and timesharing among the adults in her life need to be coordinated.

h. There is no prejudice to any party by having the matters tried at the same time.

i. There are going to be two trials involving the same child, so it would be more efficient and convenient to consolidate all child-related issues into one trial.

j. The father consents to his mother’s request.

[25] The mother’s arguments against consolidating include the following:

a. The mother disagrees with the grandmother’s basic premise that we are dealing with “two trials involving the same witnesses.” She clarifies that we have “one trial” and “one motion”, and those are very different types of legal proceedings.

b. The mother disputes that it would be more convenient or efficient to have both matters heard at the same time.

c. She says the two cases are very different, involving different presumptions; different legal tests; different volumes of evidence; and requiring different amounts of court time for determination.

d. The mother’s motion to change is relatively straightforward, based on largely undisputed facts concerning events occurring subsequent to the September 17, 2018 order. The evidence can be presented efficiently by affidavit. CCAS has already issued correspondence supporting the mother’s request. The motion could be heard immediately, requiring less than an hour on a regular motion list.

e. In contrast, the paternal grandmother’s application for access is a de novo hearing estimated to take four-to-five days of trial time. The evidence would deal with a much longer timeline and require a significantly broader analysis, both factually and legally.

f. There is little overlap in the evidence. The motion to change focuses on the father’s behaviours over a narrow period of time immediately after the final order. The application would focus on the paternal grandmother’s interaction with the mother and relationship with the child over a much longer period of time.

g. With the backlog of cases in family court as a result of the COVID pandemic, the November 16, 2020 three week trial sitting in Hamilton Family Court is overbooked, and there can be no level of confidence as to when the trial of the grandmother’s application would actually be heard.

h. Even if the trial proceeds during the November 16, 2020 sittings, the mother’s motion to change needs to be determined sooner than that. The current protections for the mother and the child are in place pursuant to the father’s criminal court bail terms. But with the father’s sentencing scheduled for October 23, 2020, those bail restrictions will end, and there is no certainty that alternate protections will be imposed by the criminal court. The mother needs to have her motion to change dealt with in family court prior to the October 23, 2020 sentencing, as a precaution in case the criminal court lifts restrictions on the father. Without restrictions, the September 17, 2018 order would again become operative, and this would jeopardize the well-being of the mother and child.

i. The mother will be prejudiced if the matters are consolidated because issues which need to be dealt with quickly will be delayed.

j. There is no danger of inconsistent rulings because the motion to change only deals with the father’s rights. The grandmother has no standing on the motion to change. Any order flowing from the motion would be known to the trial judge.

k. Similarly, the fresh application only deals with the paternal grandmother’s rights. The grandmother has openly stated that she is seeking her own stand-alone right of access, independent of the father’s access. Her request is not contingent upon any decision flowing from the motion to change.

[26] Counsel agreed on the legal test. Rule 12(5) of the Family Law Rules (“the Rules”) sets out that “cases, claims or issues” may be heard together if it would be “more convenient” to do so.

[27] I must also consider:

a. Rule 2(2) which sets out that the primary objective of the Rules is to enable the court to deal with cases justly.

b. And Rule 2(3) requires consideration of procedural fairness; saving expense and time; dealing with cases in ways appropriate to their importance and complexity; and allocating court resources appropriately.

[28] Among my considerations in determining this motion:

a. I agree with the mother that we are dealing with two fundamentally different proceedings: A Motion to Change; and a Trial.

b. The mother’s motion to change is less complex than the paternal grandmother’s application. The factual analysis is more focussed. The evidence on the motion would presumptively be presented by affidavit. A contested motion can be scheduled and completed much sooner than a four-to-five-day oral trial.

c. I agree with the mother that the child’s interests would be better safeguarded if the added protections sought in the motion are determined prior to October 23, 2020, when the father’s existing bail terms may end. I have no way of anticipating what may result from the father’s sentencing hearing in relation to his extremely troubling collection of criminal convictions.

d. I do not accept the submission by the grandmother’s counsel that I should rely on the presumption that at the sentencing hearing the criminal court judge will ensure that the mother is protected. There has already been a plea bargain, the particulars of which have not been disclosed. I have received no information from the father as to any agreement or expectation with respect to sentencing. I have no way of knowing or presuming what information will be conveyed to the Criminal Court judge. In any event, sentencing with respect to the criminal charges involves different considerations than apply in the Family Court context.

e. The father’s contact with the mother (and effectively the child) is currently restricted by virtue of bail terms which are soon to disappear. If those bail terms evaporate with no comparable replacement protections, the access provisions of the September 17, 2018 order would again become operative. And given the nature of the mother’s allegations (and the charges that the father has pleaded guilty to) family court cannot allow a potentially inappropriate access regime to be resurrected by default.

f. I must also consider some practical realities faced by our court and all courts. We are still trying to recover from the suspension of court operations resulting from the COVID pandemic. The November 16, 2020 trial sitting is the first trial sitting since we stopped doing trials in March. There is a huge backlog of trials, and many of those matters have been placed on the November 16, 2020 list alongside the paternal grandmother’s application. It is not merely speculative – I dare say there is a significant possibility – that the trial of the grandmother’s application may not be reached during the November 16, 2020 sittings. Or at all in 2020.

g. The bottom line: It’s likely the court can deal with the motion to change quickly. It’s unlikely we can deal with the grandmother’s application nearly as quickly. The urgent matter which is ready to proceed, and which can be accommodated quickly should not have to wait for a less urgent file which will take longer to resolve.

[29] I agree with the paternal grandmother that these two cases share an overarching objective: determining the best interests of Akalia. But the mere fact that two proceedings relate to the same child does mean that they should necessarily be consolidated.

a. The motion to change deals with the child’s immediate safety, and determination of that issue cannot and should not be delayed.

b. In contrast, the grandmother’s access application attempts to create a new legally enforceable relationship, after a period of no contact with the child for almost two years.

c. Potential resumption of an access relationship with extended family is important.

d. But it does not have the same immediacy as the need to determine whether an existing access order to a biological parent may no longer reflect the best interests of the child.

[30] I agree with the mother that she would be prejudiced if the matters are consolidated. Ironically, there are advantages to the paternal grandmother and the father if the mother’s position prevails.

[31] From the mother’s perspective:

a. Her motion to change is ready to proceed. It could be dealt with quickly and efficiently within the next few weeks as a regular motion based on affidavit evidence. Final disposition could occur prior to the father’s October 23, 2020 sentencing. There would be no potential gap in protection as a result of his bail terms expiring. That motion can and should be determined independently of the grandmother’s application for access.

b. But if the cases are consolidated, resolution of the motion – resolution of the child’s situation -- will be delayed as the parties wait for a trial. The mother will be delayed, and she will be deprived of the ability to proceed with her motion pursuant to the provisions of Rule 15. Delay and added complication/expense constitutes potential prejudice.

c. (The mother’s motion also seeks a restraining order against the father, which she hopes to obtain prior to the expiry of his bail conditions on October 23, 2020. During submissions the father offered that he would consent to a without prejudice “no contact order” – which isn’t exactly the same as a restraining order – if the matters are consolidated. However, I do not believe that last minute offer nearly addresses the overall prejudice which would be created by consolidation.)

[32] From the paternal grandmother’s perspective.

a. She has no standing in relation to the motion to change the father’s access – so she shouldn’t have the right to delay disposition of that motion. She is not a party. She does not have the right to participate. Whatever the result, she will not be prejudiced because she is pursuing her own claim for access in a separate proceeding.

b. As it happens, if the mother’s motion proceeds within the next few weeks, the paternal grandmother may actually be better off. If the mother’s motion is dismissed, then the September 17, 2018 order will again be operative. That means the father would resume access on alternate weekends supervised by the grandmother. If the motion results in the grandmother resuming contact with the child during the father’s access, then by her own admission she wouldn’t need to proceed with her November trial. If there’s any possibility a one-hour motion in one proceeding could obviate the need for a four-to-five-day trial in another proceeding, that would be more efficient and convenient for everybody.

[33] From the father’s perspective:

a. The father has not brought a cross-motion. He is simply asking that the mother’s motion to change be dismissed.

b. If the mother’s motion to change is allowed to proceed separately and quickly, the result will inevitably entail some form of ongoing supervision.

c. If the father is successful on the motion, supervision (by the grandmother) will continue pursuant to an unchanged September 17, 2018 order. That would be a favourable result for the father, and he and the child would benefit from an opportunity to have that determination made as quickly as possible – without having to await the grandmother’s November 2020 trial.

d. If the mother is successful on the motion, the father’s access will be reduced and supervised at an agency. But even that result would likely mean that at least some form of access could be re-established more quickly than waiting for a trial.

e. Either way, his visits are going to be supervised. It is in the father’s interest that the specifics of his access be determined – and implemented – sooner rather than later.

f. Whatever the result of the motion, the father’s next access order likely won’t be the last word. Because “supervised access” is never a long-term or permanent goal. Hopefully at some point the father’s personal issues will be resolved, and the need for supervision will abate. That will likely mean that the father’s access will be subject to further consideration in the not-too-distant future. And that’s another example of how files 1116/17 and 931/19 are so very different.

g. So even though the father supports the grandmother’s request for consolidation, in reality he would likely be better off if the motion dealing with his access was dealt with as quickly as possible.

[34] Similarly, from the child’s perspective:

a. Three year old Akalia hasn’t seen her father in a year. She hasn’t seen the paternal grandmother in two years.

b. I make no prediction as to what sort of access order is likely to result in relation to either the father or the grandmother.

c. But access is the right of the child, and time must be viewed from the child’s perspective. The longer the gap in her contact with important people in her life, the greater the disservice to the child. And the more difficult it will be to promote reunification.

d. If a simple, early motion might address the child’s best interests – rather than waiting for a potentially much-delayed trial – we owe it to the child to be practical and efficient. With children’s issues, time is always of the essence.

[35] Consolidation would not be more convenient or efficient for the parties. It would not enhance the court’s ability to determine the child’s best interests. It would not be more fair to anyone. And it might have the unintended consequence of committing the parties to a long trial which might easily be avoided, depending on the results of the mother’s motion to change.

[36] The motion to consolidate proceedings is dismissed.

[37] The mother may set her motion to change down for determination on a regular motions list, which should be scheduled prior to October 23, 2020. I am neither seized nor excluded from hearing that motion.

[38] If the parties wish to address any remaining issues other than costs, they should arrange a time for the matter to be spoken to before me.

[39] If only costs remain outstanding, the parties should file written submissions on the following timeline:

a. Mother’s submissions to be served and filed by October 5, 2020. (2 page maximum, plus bill of costs)

b. Responding submissions to be served and filed by October 19, 2020. (2 page maximum, plus bill of costs)

c. Mother’s reply submissions by October 22, 2020. (1 page maximum)

Pazaratz J.

Date: September 21, 2020