COURT FILE NO.: FS-16-38946

DATE: 2021 03 30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: M.P., Applicant

AND:

S.P., Respondent

BEFORE: Conlan J.

COUNSEL: Ms. Uppal, for the Applicant

Mr. Dauphney, Office of the Public Guardian and Trustee, for the Respondent

Mr. Carpenter, for the Office of the Children’s Lawyer

HEARD: March 30, 2021

ENDORSEMENT

I. Introduction

The Motion

[1] The Motion before the Court is brought by the Applicant father, M.P., for summary judgment. Although the Motion was brought long ago, in December 2019, because of the recent amendments to the legislation, I will use the current terminology to describe the relief being sought by the father – he asks for an Order that the children reside with him, and that he be the sole decision-maker for them, and that any contact between the mother, the Respondent S.P., and the children be supervised.

[2] The children that are the subjects of the Motion are R. (19 years old, born in November 2001), and N. (12 years old, born in April 2008), and S. (9 years old, born in May 2011).

[3] The Motion was heard at Court, via Zoom, on March 30, 2021. Present were the father, the father’s counsel, the lawyer for the children, and a lawyer from the Office of the Public Guardian and Trustee (“PG&T”), on behalf of the mother. The mother was advised of the hearing date but did not attend. She filed no materials on the Motion.

The History of the Motion

[4] As indicated above, the Motion was brought in December 2019. On January 7, 2020, Justice Chozik adjourned the Motion to June 30, 2020, marked peremptory on the mother.

[5] The Motion did not proceed on June 30, 2020 because of the ongoing health pandemic.

[6] On February 12, 2021, Coats J. confirmed the rescheduled hearing date of the Motion for March 30, 2021.

[7] By the Form 14C Confirmation filed on behalf of the mother, and through an oral request made by counsel from the PG&T at Court on March 30th, the mother requested another adjournment of the Motion. That request was opposed by both the father and by counsel for the children. The further adjournment request was denied. Submissions were delivered, and the Motion was granted, with reasons to follow, subject to further consideration of one item of relief requested by the father. Costs submissions were also made. The father sought costs on a partial indemnity scale in the amount of approximately $8000.00. The lawyer for the children took no position on costs. Counsel from the PG&T submitted that no costs should be awarded.

The Court’s Reasons for Denying the Mother’s Further Adjournment Request

[8] This Court denied the mother’s further adjournment request because:

i. the matter had clearly been endorsed peremptory on the mother;

ii. the mother had well more than one year to deliver responding materials and failed or refused to do so;

iii. the mother was clearly aware of the March 30th hearing date and, in fact, had spoken to counsel from the PG&T as recently as March 1st;

iv. there was no reason for this Court to believe that another postponement would change anything in terms of the mother providing instructions to counsel, and/or the mother delivering any responding materials, and/or the mother appearing at Court; and

v. in all of the circumstances, this Court concluded that further delaying the matter was clearly not in the best interests of the children.

II. Analysis and Conclusion

[9] It is beyond any debate that the mother has a lengthy history of serious mental health issues. She is the mother of these children, however, and always will be. I am sure that she loves them, and they love her. She deserves the respect of this Court in being provided with some reasons for the disposition of the Motion, notwithstanding that she did not oppose it.

The Issue

[10] On the claims advanced by the father, is there a genuine issue requiring a trial? That is the question to be decided, as per Rule 16(6) of the Family Law Rules.

[11] It is the burden of the father, as the moving party, to establish on the evidence filed specific facts showing that there is no genuine issue requiring a trial: Rule 16(4).

The Facts

[12] From a review of the thorough evidence filed by the father and on behalf of the Office of the Children’s Lawyer, the undisputed facts include the following:

i. the mother has a lengthy history of serious mental health issues which have necessitated institutional care in the past and which persist today;

ii. the mother lives in New Brunswick, while the children and the father are in Halton Region, Ontario;

iii. the mother relocated to New Brunswick voluntarily;

iv. the mother currently has supervised access with the children, via Zoom, for about 45 minutes every Sunday, although that access is inconsistent and is mainly with the two youngest children;

v. the children have been living full-time with the father for nearly five years now, since August 2016;

vi. the mother has not had in-person access with the children, outside the supervised access centre, since sometime in 2017;

vii. the views and preferences of the children are clearly in favour of the relief being sought by the father, and they have been consistently so; and

viii. the children are doing well, especially over the last year or so, as the family (the father and five children in total) lives, supportively, under one roof.

Findings

[13] The undisputed facts clearly warrant a finding that it is in the best interests of the children to bring to them some finality and formality to what has already been the status quo for a long time now.

[14] The children live with the father; it is in their best interests that they continue to do so. The father is the sole decision-maker for them; it is in their best interests that he continues to be so. The contact between the children and the mother is supervised; it is in the best interests of the children that the said arrangement continues.

Order

[15] This Court, therefore, grants the father’s Motion and makes a Final Order accordingly. As I indicated to counsel for the father during oral submissions, the Order that is submitted to the Court for issuance shall use the current terminology as per the recent amendments to the legislation.

[16] To be clear, all of the relief requested in the father’s Notice of Motion dated December 19, 2019 is granted, with these qualifications. At the hearing of the Motion, the father abandoned the request for a restraining order. Also, at the hearing of the Motion, the father amended his request on costs from substantial indemnity recovery to partial indemnity recovery, and the quantum of costs is dealt with below. Further, I indicated at the hearing of the Motion that I would take under advisement the father’s request for an Order that the mother be prohibited from attending and physically removing the children from the children’s school(s). After further reflection, I decline to grant that relief. I do not think that the evidence filed justifies it. Finally, at the hearing of the Motion, Ms. Uppal focussed her presentation on the two youngest children, as R. is now an adult (19 years old). Thus, unless Ms. Uppal and/or Mr. Carpenter wish(es) to make further submissions on this point, it seems to me that the Order should be in relation to N. and S.

Costs

[17] The father’s request that the costs award be satisfied from the mother’s share of the net proceeds of sale of the matrimonial home, currently being held in trust, is granted.

[18] On quantum, I asked counsel from the PG&T to give the Court some information about the mother’s ability to pay. She receives some spousal support from the father. She has not been employed since 2008. She receives Canada Pension Plan disability benefits of $900.00 monthly. She has no assets to speak of.

[19] The mother did not oppose the Motion, but she did not consent to it either. She should have to pay some fairly modest costs, in my opinion.

[20] In all of the circumstances, I think that a fair, just, reasonable, and proportionate sum is $5000.00, all-inclusive. I order that the mother shall pay those costs immediately, out of the net proceeds of sale. The lawyer holding the funds in trust may treat this Endorsement as lawful authority to release the $5000.00 to the father, forthwith.

[21] I thank all three counsel for their assistance with this matter.

(“Original signed by”)

Conlan J.

Date: March 30, 2021