Court File and Parties

COURT FILE NO.: FC-19-2475 DATE: 2021/03/11 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Barbara Hutchings, Applicant AND Caitlin Murdock-McDougall Mathieu Dwayne Marcotte, not present, Respondents

BEFORE: Mackinnon J.

COUNSEL: Joan Rothwell for the Applicant Sonia Smee for the Respondent, Caitlin Murdock-McDougall

HEARD: March 11, 2021

Endorsement

[1] Should a motion for parenting time proceed on the eve of trial in the absence of any contact between the moving party and the child in question for the past nineteen months?

[2] The moving party is the child’s paternal grandmother. She last saw her granddaughter in July 2019. Her application was issued in December 2019. A case conference was held on July 7, 2020, at which time the grandmother was authorized to bring a motion for access.

[3] She did not do so.

[4] On November 20, 2020 the presiding justice at the settlement conference completed the Trial Scheduling Endorsement Form listing the case for trial in the May 10, 2021 sittings.

[5] At the same time, he again allowed the mother to bring a motion for access provided she delivered her materials within 45 days. He specifically endorsed that if the motion was not delivered within that time period it could not be brought. The force of his order is reinforced by Family Law Rules, O.Reg. 114/99 as am r 3(7)(b) requiring the court staff to refuse to accept the documents:

LATE DOCUMENTS REFUSED BY COURT OFFICE (7) The staff at a court office shall refuse to accept a document that a person asks to file after, (b) the later time specified in a consent under subrule (6), a statute that applies to the case, or a court order. O. Reg. 544/99, s. 3 (2).

[6] The motion materials were delivered on January 7, 2021, that is, 48 days after the permission was granted.

[7] Normally one might expect a three day lapse to be excused. But here the permission given was exceptional in that it allowed a motion for temporary relief to be brought after the settlement conference and after the case was listed for trial. The judge strictly defined the permissible time frame. No reason has been given why that time frame was not or could not have been adhered to.

[8] The back drop is that this motion is the first the grandmother has brought for parenting time since the commencement of her application over one year ago. The explanation for the gap following the July 2020 case conference is thin: she needed to retain counsel, obtain a copy of her file from the courthouse, and respond to a Request to Admit.

[9] There is a serious issue of fact between the parties around the reason why the mother stopped the grandmother’s contact with the child in July 2019. If the grandmother’s testimony is accepted there were some misunderstandings between them. If the mother’s testimony is accepted the grandmother did not honour the agreements she had made for the terms of her contact with the child and had involved the child in an attempt to keep her noncompliance secret. This is important not only to the question of whether the mother acted with good cause but may also be material to the determination of whether the grandmother will comply with terms in a court order. The trial judge will be much better able to determine the facts in relation to this dispute than a motion judge.

[10] The child who was three years old when she last saw her grandmother is now five years of age. That is a significant passage of time in her life. Given the duration of time without contact it is not in the child’s best interests in the short time before trial to order contact to resume when the potential outcome of trial may be that contact is again terminated.

[11] On behalf of the grandmother it was noted that the mother’s counsel had a registered an objection on the TSEF to the trial proceeding by ZOOM. What if the trial did not proceed in May as scheduled? It is now on record that the objection was registered to protect the mother’s position on any potential appeal and that no steps will actually be taken to oppose the trial from proceeding in May on the ZOOM platform.

[12] The mother has also advised court that she has no objection to the grandmother joining the father’s supervised parenting time provided she is not the supervisor. This would of course also require the agreement of the father.

[13] For these reasons the motion is dismissed with costs to the responding mother in any event of the cause. If counsel cannot agree on the amount of costs, they may exchange brief written submissions to be delivered to me within three weeks. These are to be sent by email to scj.assistants@ontario.ca.

Mackinnon J. Date: March 11, 2021