COURT FILE NO.: FC-19-19
DATE: 2020/11/20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: PERRY BYRNE, Applicant (Responding Party)
AND:
CRYSTAL HANN, Respondent (Moving Party)
BEFORE: Madam Justice J. Breithaupt Smith
COUNSEL: Tara Lattanzio, Counsel for the Respondent Mother
Perry Byrne, Self-Representing
HEARD: November 16, 2020
E N D O R S E M E N T -- COVID 19 PROTOCOL
[1] AS A RESULT OF COVID-19 the regular operations of the Superior Court of Justice are suspended at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/
[2] This is the hearing of the Respondent Mother’s Summary Judgment Motion, originally brought in February of 2020, for a determination of issues regarding the parties’ daughter, A.M.B. (age 3).
Context of Today’s Hearing
[3] In accordance with the consolidated Regional Notice to the Profession issued on June 26, 2020 effective July 6, 2020 and the Protocol for Central South dated April 7, 2020, electronic materials were filed by email:
a. The Applicant Father, Mr. Perry Byrne (“Father”) filed:
i. Application issued January 7, 2019; and
ii. Financial Statement dated April 24, 2019.
b. The Respondent Mother, Ms. Crystal Hann, (“Mother”), filed:
i. Answer dated February 26, 2019;
ii. Form 35.1 Affidavit in Support of Claim for Custody or Access dated February 26, 2019;
iii. Affidavit sworn November 12, 2019;
iv. Notice of Motion originally returnable February 5, 2020, for Summary Judgment;
v. Affidavit sworn March 10, 2020;
vi. Factum;
vii. Confirmation; and
viii. Affidavits of Service.
[4] In addition, I requested portions of the file from Court Services Division and was provided with the following:
a. Father’s Form 35.1 Affidavit in Support of Claim for Custody or Access dated January 9, 2019; and
b. Father’s Financial Statement sworn June 3, 2019.
[5] The following Orders have been made in this matter:
a. Order of Hardman, J. dated March 28, 2019 regarding filing of Father’s Financial Statement in the absence of taxation documents and providing for supervised access between the child and Father at Child and Parent Place;
b. Order of Rogerson, J. dated May 9, 2019 extending the time for filing of Father’s Financial Statement and continuing supervised access between the child and Father at Child and Parent Place;
c. Order of Breithaupt Smith, J. dated October 24, 2019 authorizing that motions may be brought;
d. Order of Piccoli, J. dated December 18, 2019 removing Ms. Frey as solicitor of record for the Applicant Father;
e. Order of Piccoli, J. dated February 5, 2020 setting timelines for this Summary Judgment Motion anticipating a hearing during the week of March 30, 2020; and
f. Endorsement of Madsen, J. dated July 14, 2020 updating timelines for this Summary Judgment Motion.
[6] Finally, Mother testified in person today regarding Father’s outstanding criminal charges. The Non-Communication Order signed by Madam Justice of the Peace Woodworth on October 23, 2020 prohibiting any communication between Father and Mother (and three other individuals) was filed as Exhibit 1. The list of charges against Father is quite concerning and includes three charges of Assault (s. 266 of the Criminal Code of Canada) and four charges of Uttering Threats to Cause Bodily Harm (s. 264.1 of the Criminal Code of Canada). All of these charges relate to interactions between Father and Mother. Mother has been advised that Father is currently out on bail and that his criminal trial commences on Thursday, November 19, 2020. She received this information from a worker at the Victim Witness Assistance Program. She believes that he has criminal defence counsel but does not know the name of that individual.[^1]
[7] With respect to the scheduling of today’s hearing, I would note that Father was present on February 5, 2020 before Piccoli, J. when the original timelines were established. He did not attend the Scheduling Court before Madsen, J. on July 14, 2020, at which time timelines were updated, however a copy of Her Honour’s Endorsement was served upon him by Ms. Lattanzio via email to the address noted on his pleadings and an Affidavit of Service was filed. Father indicated to Madam Justice Piccoli on February 5th that he was in the process of retaining alternate counsel. No alternate counsel has come onto the record following Ms. Frey’s removal. Father is not in attendance today, although he was sent the call-in details for today’s appearance by the Trial Co-ordination office on Friday, November 13, 2020 to the email address set out in his pleadings.
[8] At my request, Ms. Lattanzio forwarded to the court an email exchange that she had with Father on October 9, 2020 in which she confirmed speaking with him by telephone on that date and recommended that he contact the Family Law Information Clinic to discuss both the Summary Judgment Motion and the Offer to Settle served upon him with her initial email of that date. During the email exchange, Ms. Lattanzio specifically sets out the documents (including the form numbers for reference) to be completed by Father for today’s hearing date. In response, Father wrote [sic]:
Re: Not happening I’m not paying support and not seeing my child I want joint custody and visitation every other weekend that’s the only way I’m giving her support the courts would not agree for sole custody and support for a mother that hasn’t let me see her child in two years
Importantly, the email exchange is to the same address indicated in Father’s pleadings and thus the same address used by the Trial Co-ordination office. Until today, as set out below, Ms. Lattanzio has received no further communication from Father.
[9] This morning, I stood this matter down to 10:45 a.m. and requested that the Trial Co-ordination office send a second email to Father again providing the call-in details with the following language:
The start time for this hearing was 10:00 a.m. You were not in attendance. At the request of the Judge hearing this Summary Judgment Motion today, the start time has been set for 10:45 a.m. specifically to provide you with the opportunity to attend. The Zoom call-in details are set out below. Please be advised that, should you fail to attend, the matter may nonetheless proceed in your absence and be decided on the basis of only the materials that you have filed with the court office before today’s date.
[10] While we stood down, Ms. Lattanzio emailed Father asking if he was going to be attending Court today and he replied back immediately, stating [sic]: “I think we have to talk I’ll giv up all right to [A.M.B.] with no child support to get your client out of my life”. For clarity, one minute passed between the sending of Ms. Lattanzio’s email (at 10:36 a.m.) and his response (at 10:37 a.m.). Disregarding any aspect of that email which may pertain to a settlement position by Father, I reference it exclusively to show that Father was aware of today’s attendance and is therefore choosing not to attend despite the warning that the hearing can proceed in his absence.
[11] I note finally that Madam Justice Madsen ordered in her Scheduling Court Endorsement that this Summary Judgment Motion should not be heard by me on the basis that I “conferenced the matter.” Having regard to the continuing challenges that we face in moving matters forward without access to the underlying court file, it is not surprising that Her Honour did not have access to my Endorsement from October 24, 2019 and would have only seen the basic scheduling information relating to that date. Three points allow me to proceed to hear this Summary Judgment Motion today:
a. On October 24, 2019, a case conference was not held before me (although scheduled) as Father was incarcerated and could neither appear nor give his then-counsel instructions;
b. In my Order of October 24, 2019 I noted specifically that a case conference was dispensed with so as to move the matter forward and confirmed that I had provided no opinion; and
c. Having been specifically asked today, Mother confirmed that she wished to proceed before me.
[12] Under Rule 2 of the Family Law Rules, the Court has a positive duty to deal with a case justly in a manner that saves expense and time, is appropriate to its complexity and balances the allocation of court resources. Although all issues impacting upon the parenting and support of the parties’ daughter are live for this Summary Judgment Motion, it is undisputed that Father has had no contact with the child since separation on December 11, 2018. He has had no meaningful involvement in his daughter’s life since that time and has filed no materials for this motion despite two clear sets of instructions (from my Sister Judges) in that regard. Court resources are extremely tight in this unprecedented time, with the next opportunity for a hearing of this Summary Judgment Motion likely to be in the New Year. At that point this litigation will have lasted for half of the subject child’s life. Based on all of the foregoing, I find that it is appropriate to proceed with the argument of the Summary Judgment Motion before me today.
Scope of Relief Sought and Parties’ Positions
[13] Mother seeks a Final Order for sole custody with no access between Father and the child or, if access is ordered, that it be in her discretion. She further seeks to compel Father to attend counselling for alcohol abuse and to take medication prescribed to him for mental health issues. She seeks child support based upon an income for Father of $58,181.00 retroactive to January 1, 2019 and attendant financial relief including costs fixed in the amount of $4,000, of which $1,500 is to be enforced as child support through the Family Responsibility Office.
[14] In his Application, which position is maintained in his email to Ms. Lattanzio of October 9, 2020, Father sought joint custody and parenting time on alternate weekends.
Summary of Conclusions Reached
[15] The parties’ daughter shall be in the sole custody of her Mother, with no access between the child and Father except in Mother’s discretion. On the issue of child support, Father shall pay based upon a calculated annual income of $48,480.00, representing full-time employment at the level set out in his sworn Financial Statement for ten months of the year.
[16] Father issued his Application on January 9, 2019. Pleadings were complete by the end of February 2019. Ms. Frey came on the record for Father on March 22, 2019 and the first return date was scheduled for March 28, 2019. The first case conference was held in the then-Ontario Court of Justice on May 9, 2019. With the arrival of the Unified Family Court on May 13, 2019, a further case conference was scheduled, but not held, on October 24, 2019. Ms. Frey was removed as Father’s solicitor of record by Order of Piccoli, J. on December 18, 2019.
[17] Mother served her Motion for Summary Judgment on January 17, 2020 which had an original return date of February 5, 2020 at 2:30 p.m. for scheduling purposes. On that date, Justice Piccoli set timelines for service and filing of materials anticipating a hearing during the week of March 30, 2020.
[18] Following the suspension of court operations on March 17, 2020 as a result of the government’s response to the COVID-19 situation, the hearing for the week of March 30, 2020 was cancelled, and the matter was eventually booked to Scheduling Court on July 14, 2020. From that date, fresh filing timelines were established and two Motion Running List weeks were selected. Although the matter could not be reached during either of those two weeks, as is the practice in the Superior Court of Justice at Kitchener, the motion stayed on the Running List and was called for hearing today.
Undisputed Facts
[19] The following facts are undisputed:
a. The parties have one child together, namely A.M.B. born […], 2017.
b. Mother has two other children from prior relationships, a thirteen-year-old son who resides primarily with his father and an eighteen-year-old son who lives with her. Mother’s thirteen-year-old son spends time with her in accordance with his wishes.
c. Father has two other children from prior relationships, a nineteen-year-old son who lives independently and a fourteen-year-old daughter who lives with her mother. Father does not have any contact with his daughter.
d. Mother does not appear to have re-partnered. Father has had at least one subsequent relationship since the parties separated.
e. Father has been convicted of the following offenses with the resolutions set out:
i. Accessory to Break & Enter – Probation Order;
ii. Drive While Impaired x 2 – Six months’ custodial term;
iii. Drive While Disqualified – Two months’ custodial term.
f. The parties’ relationship began in November of 2016 and they separated on December 11, 2018.
g. Mother says that Father assaulted and attempted to kill her in the Summer of 2018.
h. Mother assaulted Father on November 13, 2018 and charges resulted in a Peace Bond with a year-long Probation Order.
i. When the parties separated, Father refused to vacate Mother’s home, being a rental property owned by Maternal Grandmother to the child, such that she was obligated to leave. Father continued to reside at that location for several months until Maternal Grandmother took the matter to the Landlord Tenant Tribunal.
j. Mother resides again in Maternal Grandmother’s rental property. She has installed a video security camera system out of fear of Father. She suffers considerable anxiety and attests that she continues to fear for her safety on a daily basis.
k. On July 18, 2019, Mother agreed to meet Father in the No Frills parking lot in Cambridge near St. Benedict’s Catholic Secondary School at Father’s request. When she told him she did not want to reconcile, he chased her through the high school’s sports field pushing and striking her. At least two witnesses saw the incident, one of whom called police and the other of whom videotaped some of the events using a cellphone. Father threatened the witnesses in attendance on that date.
l. Father has been charged with the following acts of violence and intimidation against Mother (from July 18, 2019 onward):
i. Assault x 3 (s. 266 of the Criminal Code of Canada);
ii. Uttering Threats to Cause Bodily Harm x 4 (s. 264.1 of the Criminal Code of Canada)[^2];
iii. Fail to Comply with Recognizance x 3 (s. 145(3) of the Criminal Code of Canada);
iv. Operate Conveyance while Prohibited (s. 320.18(1) of the Criminal Code of Canada);
v. Fail to Comply with Release Order (s. 145(5)(a) of the Criminal Code of Canada).
m. Father’s criminal trial is scheduled to commence on Thursday, November 19, 2020. He is currently out on bail.
n. Father has ongoing issues with alcohol abuse and emotional dysregulation (anger). Mother’s observation is that he has issues with controlling his anger and has no respect for the law or for authority.
o. Commencing January 17, 2020, Father started serving a jail term of ninety (90) days on weekends. The conviction giving rise to this incarceration is not clear on the evidence, although it may relate to an incident of allegedly impaired driving dating to September of 2019.
p. Father is subject to a Non-Communication Order signed by Justice of the Peace Woodworth on October 23, 2020 which lists Mother, Father’s current partner (D.M.) and two other individuals believed by Mother to be the witnesses to the events of July 18, 2019 (the “Non-Communication Order”).
q. Mother maintains contact between A.M.B. and Father’s daughter from his prior relationship.
r. Mother visits Maternal Grandmother regularly with A.M.B. and stays at her residence when feeling anxious or fearful.
s. Father has had no contact with A.M.B. since December 11, 2018.
t. Father’s behaviour toward staff at the local supervised access facility, Child & Parent Place, during the intake process resulted in the Program Supervisor declining service to the family, writing:
During the intake process the program was notified of updated criminal charges and a restraining order between yourself and [Mother]. When program staff contacted you to discuss the incidents surrounding the charges, as is part of our screening process, you became verbally aggressive with staff on the phone. Following that telephone call, you attended the administrative offices and demonstrated further aggressive behaviour including “carrying keys with the metal part facing out of his fist” and “made a pointing motion towards staff,” in addition to stepping towards staff while speaking in a “very raised tone.” … As a result, our ability to ensure safety of all children and families while providing service to you within a group access setting could not be ascertained.
… Based on these standards and our group supervision model, we are unable to provide services to your family at this time.
u. Father was most recently employed by Rock Concrete Forming Limited located at 935 Winston Churchill Blvd. in Mississauga. His work is somewhat seasonal, and he generally does not work during the months of December, January and February in each year but collects Employment Insurance during those months. He had the following Line 150 income amounts:
i. 2015 - $46,830
ii. 2016 - $15,545
iii. 2017 - $48,760
iv. 2018 - $42,983
v. Father’s Financial Statement dated June 3, 2019 shows a monthly income of $4,848.48 which extrapolates to an annualized amount of $58,181.76.
w. Mother is employed by Compass Group Canada (through whom she works at Toyota Motor Manufacturing Corporation) and by Grand Valley Roofing and Coatings. Her Financial Statement dated March 5, 2019 shows a monthly income of $4,202 from all sources which extrapolates to an annualized amount of $50,424.00.
[20] The only sworn evidence submitted by Father was in the form of his Form 35.1 Affidavit in Support of Claim for Custody or Access and his Financial Statements. Therefore, there is no need to assess credibility on conflicting affidavit narratives. Subject to my comments regarding evidentiary considerations below, the evidence presented by each party is effectively uncontested by the other.
The Law and its Application
Part 1 – Summary Judgment
[21] In family proceedings, Family Law Rule 16 addresses Summary Judgment Motions. The following sub-sections of Rule 16 are relevant to this proceeding:
- (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.
(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.
(3) In a case that includes a divorce claim, the procedure provided in rule 36 (divorce) for an uncontested divorce may be used, or the divorce claim may be split from the rest of the case under subrule 12 (6).
(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.
(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.
(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[22] The leading case on Summary Judgment in the civil context generally is Hyrniak v. Maudlin[^3], which dealt with Rule 20 of the Ontario Rules of Civil Procedure. Writing for a unanimous Supreme Court of Canada, Karakatsanis, J. noted[^4]:
Summary judgment motions must be granted whenever there is no genuine issue requiring a trial.
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
[23] Reviewing both Rule 16 of the Family Law Rules and Hyrniak, the Court of Appeal provided the following guidance in the family litigation context in Chao v. Chao[^5]:
Rule 16(6) of the Family Law Rules provides that, on a summary judgment motion, if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order.
The moving party bears the onus of showing there is no genuine issue requiring a trial. The responding party may not rest solely on mere allegations or denials, but shall “set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial”: r. 16(4.1).
…the court must decide the claims presented in the litigation on the evidence before it.
… each party [must] put its best foot forward [citation omitted]. [A responding party] cannot succeed on summary judgment by saying that further or better evidence would be available in the future. The motion judge [is] entitled to assume … that the evidence before him [is] the best evidence available.
[24] The case of Kawartha-Haliburton C.A.S. v. M.W., Curve Lake First Nation, and OCL,[^6] provided significant guidance to the court in addressing summary judgment motions in the child protection context. Although overall not directly applicable to matters outside the child protection context, two points raised by Madam Justice Benotto on behalf of the Court of Appeal are, in my view, applicable in the family litigation context, both of which are summarized at paragraph 80 of her decision. They are:
The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial; and
Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.
[25] To summarize, I must assess the propriety of addressing the issues raised in this matter on a final basis without a trial. The procedure must be fair to both parties and must ensure that the court has confidence in its ability to apply the law to the facts in order to reach a just result. In assessing the suitability of the matter for summary resolution, I should not focus on evidence elicited in the context of the court’s fact-finding powers under Rule 16(6.1) and 16(6.2) but must base my determination on the documentary evidence filed in anticipation of the hearing. Such documentary evidence must be screened to ensure that only trial-worthy evidence is relied upon in concluding that no genuine issue exists which requires a trial for its resolution. Finally, in ensuring procedural fairness, the court must assist self-represented litigants while maintaining judicial neutrality.
A. Screening the Evidence
[26] Without going into detail regarding every point raised by Mother which is not otherwise referenced in these reasons, I note that some of Mother’s testimony has been excluded as a result of evidentiary screening concerns. By way of two examples:
a. In her Affidavit of November 12, 2019, Mother attests that: “My boys left my home because they did not get along with Perry. [A.] wanted to stay with his father as he feared [Father] and believed that [Father] was going to hurt me. [A.] has a lot of issues resulting from my relationship with [Father] and he attends counselling to help him with these issues, his fears and his anxiety.”
This evidence is regarding the views of a minor child. It is a long-held tenet that children’s evidence is to be taken with great care with a view to minimizing any negative impact of the litigation process upon them. This regularly requires the presentation of evidence that would otherwise be excluded as inadmissible hearsay. In R. v. Khan[^7], the Supreme Court of Canada provided clear direction in the admission of hearsay evidence to provide a child’s statements to the Court via an adult witness on the basis that such presentation is both necessary and reliable. Exposing Mother’s younger son, now age 13, to the trauma of testifying in contested family litigation is undesirable, thus meeting the first branch of necessity. The same may not be true regarding the views and observations of Mother’s eighteen-year-old son. In this particular instance, the adult child could have placed his own views and observations before the court by means of an affidavit. Regardless, the admissibility of Mother’s statements fails as the reliability stage, as Mother is not an independent witness. An interview of Mother’s thirteen-year-old son could have been conducted for the purpose of submitting an Affidavit by an independent adult, his counsellor perhaps, setting his views before the court. Such an Affidavit could also have addressed the purpose and goal of his counselling. It would have quashed any concerns regarding the impartiality of the affiant when contrasted with an active litigant’s potential motivation to present only such evidence as is favourable to her case. In the absence of Father or any advocate on his behalf, but without suggesting that Mother’s testimony is inherently unreliable, the court must err on the side of caution in declining to admit this hearsay.
b. Also in her Affidavit of November 12, 2019, Mother describes a prescription medication bottle found at the residence after Father’s eviction by Maternal Grandmother. She attests: “I looked up the medication and found that it is prescribed for schizophrenia.” However, the photograph attached as Exhibit “B” to her Affidavit is of a medication called “Apo-Naproxen” and the unidentified screen shot of text at the last page of Exhibit “B” (which presumably represents Mother’s research on the point) names “Quetiapine.” As no explanation is provided demonstrating any interplay between these two prescription drugs, the evidence does not support Mother’s testimony and thus is ascribed no weight.
[27] Overall, I would confirm that I have screened the evidence to ensure that only that which is trial-worthy is admissible.
B. Assisting Self-Represented Father
[28] My colleagues Justices Piccoli and Madsen both provided significant assistance to Father in setting out clear timelines for the service and filing of materials for use on this Summary Judgment Motion. Madsen, J. took great care in updating the timeline; providing the email address for electronic filing; and specifically pointing out that: “Parties should be aware that they will likely receive no more than 24 hours’ notice of the date on which their motion will be called.” In addition, as described at paragraphs 4 and 6 of these Reasons, above, multiple attempts were made to engage Father in participating in today’s appearance, to no avail. There appears to be no question that Father was aware not only of the process leading up to today’s hearing, but of the convening of the hearing in real time and of the possibility that the motion would be dealt with even in his absence. One wonders what else, if anything, the presiding judges and the Trial Co-ordination office could do to engage with an absentee self-representing litigant.
C. Conclusion
[29] Looking only at the screened evidence presented in advance of the hearing date, I find that Mother has discharged her burden of demonstrating that a trial is unnecessary. The Summary Judgment approach is procedurally fair to Father in all of the circumstances, particularly having regard to the assistance provided to him since the removal of his solicitor of record. I am satisfied that there is no genuine issue requiring a trial and that this matter can be addressed using the court’s powers under Rule 16.
Part 2 – Substantive Order Sought
[30] This proceeding was brought under the Children’s Law Reform Act[^8] on parenting issues and the Family Law Act[^9] on the question of child support. On her client’s behalf, Ms. Lattanzio has also filed a Bill of Costs and seeks $4,000 in costs payable by Father to Mother, of which she asks that $1,500 be enforced as support through the Family Responsibility Office.
A. Parenting Issues
[31] Section 24(2) of the Children’s Law Reform Act sets out the factors to be considered by the court in making an order regarding decision-making and parenting time and is reproduced in its entirety at Schedule “A” hereto. In addition, Sections 24(3) through 24(5) provide that past conduct shall only be considered with respect to family violence or a person’s ability to act as a parent, and that family violence does not include actions taken in self-defense. What follows is a review of the undisputed evidence applicable to each factor, as abbreviated by me.
[32] Application of Section 24(2) enumerated factors:
(2)(a) – Emotional Ties – A.M.B. was just fifteen (15) months of age at the date of separation and has not had any contact with Father since. Based upon her age and stage of development, it is reasonable to conclude that any emotional ties between her and Father are tenuous. Father has taken no steps during this litigation to ensure consistent and meaningful contact with A.M.B., and it is due to his emotionally-dysregulated actions that supervised access could never start. In contrast, A.M.B. is closely bonded to her primary caregiver, Mother. A.M.B. also has frequent contact with her older brother, Mother’s eighteen-year-old son with whom they live, and with her Maternal Grandmother, with whom Mother regularly stays. Mother also facilitates contact between A.M.B. and her sister, Father’s daughter from a prior relationship, despite Father’s lack of contact with that child.
2(b) – Child’s Views – A.M.B. is too young to provide her views and preferences.
2(c) – Stability of Home Environment – A.M.B. has lived in Mother’s stable residence for almost two years (from December 11, 2018). Other than the period when they resided with Maternal Grandmother while Father refused to vacate that residence, they have been in the same home throughout. As the residence is owned by Maternal Grandmother, it is likely to remain available to Mother for the foreseeable future.
2(d) – Parenting Ability – There is no suggestion in the materials that Mother is unable to provide A.M.B. with guidance, education and the necessaries of life to enable her to succeed into adulthood. Mother is employed on a full-time basis and is able to meet A.M.B.’s financial needs. A.M.B. does not have any special needs.
2(e) – Proposed Plan of Care – Mother will remain in her current residence with A.M.B. who will continue to have ongoing contact with her extended maternal family and with her sister on her Father’s side. In his Answer, Father concedes that A.M.B. should remain primarily in Mother’s care.
2(f) – Stability of Family Unit – As noted above, Mother’s lifestyle is stable and child-focused. In contrast, until the outcome of Father’s criminal charges are determined it is impossible to say whether he can generate stability. Certainly, it is notable that the Non-Communication Order prohibits him from contacting his most recent (and possibly still current) partner, as this speaks to the stability of his family unit after separation.
2(g) – Ability to Act as a Parent – Simply stated, Father’s ability to act as a parent to A.M.B. is unknown. Although this is his Application, his behaviour thwarted the family’s ability to build a connection between Father and child in the safe environment of Child & Parent Place. There is no objective evidence that Mother’s ability to act as a parent to A.M.B. has ever been in question.
2(h) – Familial Relationships between A.M.B. and her Parents – Mother has always been A.M.B.’s primary caregiver. Father has not seen her in the past twenty-three months. Only fifteen months of age when her parents separated, it would be unlikely for A.M.B. to have much recollection of Father, if any. It is reasonable to conclude that there is no relationship between them from A.M.B.’s perspective at this time, and therefore a relationship would have to be rebuilt between Father and daughter.
[33] Regarding the issue of family violence, the undisputed evidence clearly supports a finding on the balance of probabilities that Father has been violent with Mother and suggests that it is likely that he would be violent with her in future should the opportunity arise. Although there is no evidence that Father has been directly abusive toward A.M.B., Father’s conduct is relevant to his ability to co-parent with Mother, A.M.B.’s primary caregiver, and thus to his ability to act as a parent to A.M.B.
[34] Based on all of the foregoing, it is clear that a Final Order providing sole custody of A.M.B. to Mother is in the child’s best interests.
[35] The specific question of access merits further analysis.
[36] Mother seeks an order for no access between the child and Father or, in the alternative, that access be supervised and in her discretion. Courts are generally hesitant to deny access completely in a Final Order having regard to section 20 of the CLRA,[^10] despite the fact that a non-access parent can seek to vary the Final Order on the basis of a material change in circumstances once six months have elapsed since its determination. In O.E. v. E.O.[^11], Mr. Justice S. Paull of the Ontario Court of Justice synthesized a succinct review of the considerations regarding the complete suspension of access. At paragraph 57, he specifically referenced the inclusive and often co-indicated list of factors set out by Madam Justice J. Blishen of our court in V.S.J. v. L.J.G.[^12], namely:
long term harassment of the primary care parent causing stress and fear to that parent and the child;
history of violence, unpredictable and/or uncontrollable behaviour including drug or alcohol abuse;
extreme parental alienation;
ongoing severe denigration of the other parent;
lack of attachment between the child and the access parent;
neglect or abuse of the child by the access parent;
children’s stated views and preferences.
[37] Her Honour’s comments at paragraph 140 of V.S.J. v. L.J.G. further remind us that supervised access should be attempted, but if same has proven unworkable then termination must be considered.
[38] Mother attests to her fear of Father: “… I have severe anxiety that [Father] is going to hurt me and every day I am looking over my shoulder wondering where he might be.” As noted, there is a history of violence and an absence of Father/daughter attachment. Supervised access was attempted, but Father’s unpredictable and irascible behaviour thwarted its commencement. I note that the harassing and paranoid comments attributed to the Respondent Father in O.E. v. E.O. are not present in this case. In contrast, however, Father’s violent criminal conduct against Mother in the presence of independent witnesses in a public place demonstrates his volatility and his complete disregard for the consequences of his actions. Having regard to all of these circumstances, I find that a termination of access is in A.M.B.’s best interests. I would stress that if Father is able to remediate his personal situation and to demonstrate that he has worked diligently to address his emotional dysregulation and to learn positive parenting techniques, such work would constitute a material change in circumstances that could support some form of contact in the future.
B. Child Support
[39] Section 31 of the Family Law Act sets out a parent’s obligation to support a child as follows:
- (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,
(a) is a minor;
(b) is enrolled in a full-time program of education; or
(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.
(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.
[40] The Ontario Child Support Guidelines calculation and tables are appended as Schedules to the Family Law Act.[^13] They can be found at: https://www.ontario.ca/laws/regulation/970391
[41] As noted above, Father’s earned income for the years 2015; 2017; and 2018 fluctuated between $42,983 and $48,760. In his Financial Statement sworn June 3, 2019, he attests that he earned $4,848.48 monthly at that time. He works in construction forming concrete, and thus there is a seasonal aspect to his employment. Mother testified that, although their relationship was relatively short-lived, it was her understanding that Father did not generally work during the months of December, January and February, but collected Employment Insurance during that period. She further testified that, to the best of her knowledge, information and belief, Father was working continuously when work was available to him throughout 2019 and 2020 other than during a period of incarceration of approximately nine days. Father has otherwise served any terms of incarceration on weekends which did not inhibit his ability to work.
[42] I find that the “Annual Income” as set out at page 3 of Father’s Financial Statement sworn June 3, 2019 is not in fact representative of his earnings but rather was generated by the document-creation software as a simple multiplication of the monthly amount by 12. I find that the figure that best represents Father’s actual earning capacity for 2019 and 2020 is $48,480, being the monthly figure multiplied by ten months of earnings, which roughly accounts for employment earnings and Employment Insurance or other benefits.
[43] Child support payable for one child in accordance with the applicable table for Ontario based on an annual income for the support payor of $48,480 is $448 monthly. As Father commenced his Application on January 9, 2019 and has paid no child support at any time, child support shall be made retroactive to January 1, 2019. As of the end of November, 2020, the arrears of child support are therefore fixed in the amount of $10,304 (being $448 monthly x 23 months from January 1, 2019 through to November 30, 2020). Child support shall be payable commencing December 1, 2020 at the rate of $448 monthly. Arrears of child support shall be payable at the rate of $200 monthly commencing December 1, 2020 until paid in full.
[44] Finally, Mother’s Financial Statement dated March 5, 2019 shows her annual income as $50,424 inclusive of Child Tax Benefits or Tax Rebates (per Schedule III to the Child Support Guidelines (Ontario) at section 3.1). A comparative analysis of the parties’ incomes therefore results in an apportionment of special and extraordinary expenses for the child with 49% being payable by Father and 51% being payable by Mother. To simplify this, I am ordering that any such expenses be divided equally between the parties after the application of any associated benefits or other coverage.
C. Restraining/Non-Communication Order
[45] In her Notice of Motion Mother seeks relief pertaining to contact between the parties which could be confusing in light of the on-going Non-Communication Order, as the Non-Communication Order does not provide any exception to account for a Family Court Order issued after its effective date. The criminal proceeding is on-going. The paragraphs in question are (using the paragraph numbering in the Notice of Motion):
The Applicant shall not attend the residence of the Respondent without her written consent.
The parties shall keep one another apprised of their address and contact information.
The Applicant and the Respondent shall only communicate with one another in writing and in regards to access issues respecting the child, or any emergency regarding the health and welfare of the child.
[46] I am concerned that a duplication of court orders in this case could actually lead to the possibility that Mother and the child are not adequately protected from future violent conduct by Father. Mother is currently protected by the Non-Communication Order. She will have the opportunity, through the Victim Witness Assistance Program and the Crown Attorney’s Office, to have specific provisions regarding any limited contact included in the terms of disposition of the criminal charges against Father. From a pragmatic perspective, it is likely that the most flexibility will be available through terms of Father’s eventual release (i.e. via the office of Probation and Parole). Those terms can include the option for contact that can be revoked by Mother at any time through communication to Father’s Probation Officer. I have included a similar term in the Final Order. Should Father be acquitted, such that Mother no longer has the protection of the criminal proceeding, same would be a material change in circumstances giving rise to the ability for Mother to return to the Superior Court of Justice to seek a Restraining Order.
D. Costs
[47] Ms. Lattanzio submits, on her client’s behalf, a Bill of Costs setting out the figure of $13,983.75 (inclusive of HST) on the full indemnity scale and the figure of $8,898.75 (inclusive of HST) on the substantial indemnity scale at approximately two-thirds recovery. In addition, disbursements amount to $220.35. She seeks costs fixed in the amount of $4,000, with $1,500 to be enforceable as support through the Family Responsibility Office.
[48] Modern costs rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly under Rule 2 (2) of the Family Law Rules.[^14]
[49] Costs awards are discretionary and engage two important principles in the exercise of judicial discretion: reasonableness and proportionality. There is no distinction between family cases having a financial component and family cases that focus exclusively on parenting issues; costs consequences and considerations apply equally to all family litigation. Consideration of success is the starting point. Whilst there is a presumption that the successful party is entitled to costs, judicial discretion prevails; a costs award is not automatic.[^15] An assessment of reasonableness and proportionality of costs includes the following factors:[^16]
Ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay.
Costs need to be proportional to the issues and amounts in question and the outcome of the case.
Amounts actually incurred by the successful litigant are not determinative.
In assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration.
[50] Father has failed to participate meaningfully in the Summary Judgment process. He filed no materials despite two opportunities to do so and clear prodding by Ms. Lattanzio. He did not attend today despite the court’s best efforts to encourage his participation. Mother was wholly successful, and her request is extremely reasonable, even when the fee line item for today’s argument is reduced from the six hours claimed to a more accurate two hours. Having regard to the actual amounts expended by Mother, I have no trouble concluding that $4,000 (being less than one-third of the substantial indemnity total) is attributable to the issue of child support specifically. Costs shall be awarded in the amount of $4,000 as sought, all of which are to be enforceable through the Family Responsibility Office, to be paid at the rate of $100 monthly commencing December 1, 2020 until paid in full.
Order
[51] Based on all of the foregoing, Final Order to go:
The Respondent Mother, Crystal Hann, shall have sole custody and primary residence of the child, A.M.B. [name and birthdate redacted].
The Respondent Mother, Crystal Hann, shall advise the Applicant Father, Perry Byrne, in writing not less than sixty days prior to moving the child’s primary residence more than 100 km outside of the Regional Municipality of Waterloo, which notice shall be sent by email to: [personal email address redacted].
The Respondent Mother, Crystal Hann, shall be entitled to apply for and renew all government documents for the child, A.M.B. [name and birthdate redacted], including but not limited to a Canadian Passport, without the consent or participation of the Applicant Father, Perry Byrne, which is hereby dispensed with.
The Applicant Father, Perry Byrne, shall have no access with the child, A.M.B. [name and birthdate redacted], until further Order of the Court or upon the written consent of the Respondent Mother, Crystal Hann, which consent may be revoked at any time. The Respondent Mother, Crystal Hann, shall retain all discretion as to the location, frequency, duration and supervision of access.
For greater clarity, the Respondent Mother, Crystal Hann, is the residential parent and the Applicant Father, Perry Byrne, is the visiting parent.
The Applicant Father, Perry Byrne, shall not consume alcohol or non-prescription drugs, and shall not abuse prescription drugs, for twenty-four hours prior to or during access.
The Applicant Father, Perry Byrne, shall take all medications and follow all courses of action regarding treatment for mental health issues, including but not limited to alcohol addiction and emotional dysregulation (anger management), as recommended by his treating physician. Upon written request by the Respondent Mother or her counsel, the Applicant Father shall provide a letter directly from his treating physician setting out the recommendations made and his progress in relation to same.
The Applicant Father, Perry Byrne, shall pay to the Respondent Mother, Crystal Hann, support for the child, A.M.B. [name and birthdate redacted], commencing December 1, 2020 and on the first day of each month thereafter at the rate of $448 monthly in accordance with the Ontario Child Support Guidelines and based on his annual income of $48,480.
As at November 30, 2020, arrears of child support payable by the Applicant Father, Perry Byrne, to the Respondent Mother, Crystal Hann, are fixed in the amount of $10,304 (being $448 monthly x 23 months from January 1, 2019 through to November 30, 2020). Arrears of child support shall be payable at the rate of $200 monthly commencing December 1, 2020 until paid in full.
The Applicant Father, Perry Byrne, shall deliver a complete copy of all documentation available to him regarding life insurance and any health, medical and/or dental insurance available to him through his employment within seven (7) days of being served with a copy of this Order by emailing a .pdf scanned copy of such documentation to counsel for the Respondent Mother, Ms. T. Lattanzio, at: taralattanzio@yahoo.ca.
Until such time as the child no longer qualifies for child support, the Applicant Father, Perry Byrne, shall maintain the child as beneficiary of any and all life insurance policies available to him through his employment, with the Respondent Mother, Crystal Hann, being listed as the irrevocable beneficiary in trust for the benefit of the child.
Both parties shall maintain the child as beneficiary of any extended health, medical and/or dental insurance available to them through their respective employment. The Respondent Mother, Crystal Hann, shall be entitled to make inquiries of and to receive information directly from the said insurance provider for the Applicant Father, Perry Byrne, regarding the availability of benefits for the child’s expenses. The Respondent Mother, Crystal Hann, shall be entitled to deal directly with the said insurance provider for the Applicant Father, Perry Byrne, with respect to submitting claims and receiving reimbursement for benefits available for the child’s expenses. In the event that the consent of the Applicant Father, Perry Byrne, is required for any such contact with the said insurer, such consent is hereby dispensed with and this Order shall constitute sufficient authority for the said insurer in this regard.
The parties shall divide any special and/or extraordinary expenses for the child equally between them after the application of any associated benefits or other coverage.
The Applicant Father, Perry Byrne, shall provide the Respondent Mother, Crystal Hann, with full written particulars of any change in his residential address, his income, his employment or any benefits available to him through employment, within ten (10) days of such change by emailing a .pdf scanned copy of such particulars, including supporting documentation as applicable, to the Respondent Mother at: [personal email address redacted]. Provided that it is businesslike in tone and child-focused, communication in this regard shall not be considered a breach of any Non-Communication Order or other non-contact term in place at the time of the communication.
The Applicant Father, Perry Byrne, shall pay to the Respondent Mother, Crystal Hann, her costs of this litigation fixed in the amount of $4,000, enforceable as support through the Office of the Director of the Family Responsibility Office and payable at the rate of $100 monthly commencing December 1, 2020 and on the first day of each month thereafter until paid in full.
SDO to issue.
Approval of the Order by the Applicant Father, Perry Byrne, is waived.
J. Breithaupt Smith, J.
DATE: November 20, 2020
SCHEDULE “A”
Children’s Law Reform Act, R.S.O. c. C-12
24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.
[^1]: I note here that I did not consider this evidence, submitted under the court’s fact-finding powers authorized by Rule 16(6.1) and 16(6.2) of the Family Law Rules, in determining whether this matter was suitable for Summary Judgment.
[^2]: Note that one or more of these charges may relate to the witnesses to the July 18, 2019 incident.
[^3]: 2014 SCC 7, [2014] 1 SCR 87 (“Hyrniak”).
[^4]: Hyrniak, supra, at paragraphs 47, 49 and 50.
[^5]: 2017 ONCA 701 at paragraphs 15, 16,
[^6]: 2019 ONCA 316 (“Kawartha-Haliburton C.A.S.”).
[^7]: [1990] 2 S.C.R. 531, 1990 CanLII 77 (SCC).
[^8]: R.S.O. 1990, c. C-12, as am. (“CLRA”)
[^9]: R.S.O. 1990, c. F-3, as am. (“FLA”)
[^10]: CLRA sections 20(1); 20(4); and 20(5).
[^11]: 2019 ONCJ 921 at paragraphs 52 – 59.
[^12]: 2004 CanLII 17126 (ON SC), [2004] O.J. No. 2238 at paragraph 135.
[^13]: O. Reg. 391/97: CHILD SUPPORT GUIDELINES.
[^14]: Family Law Rules, rule 2(2); Mattina v. Mattina, 2018 ONCA 867 at paragraph 10.
[^15]: Mattina, supra, at paragraphs 12 & 13.
[^16]: Snelgrove v. Kelly, 2017 ONSC 4625 at paragraph 31 citing Serra, Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 CanLII 1042 (ON CA), 2005 CarswellOnt 189 (C.A.).