COURT FILE NO.: FC-20-00000149 0000

DATE: May 17, 2021

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: D. H., Applicant

AND:

A. C., Respondent

BEFORE: Justice Mary Fraser

COUNSEL: Tanya C. Davies, Counsel for the Applicant

Michael Rappaport, Counsel for the Respondent

HEARD: April 20, 2021

ENDORSEMENT

[1] A. C. (the “Respondent”) brings a motion, among other things, to strike the within application brought by D. H. (the “Applicant”) pursuant to Rule 16(12)(b) and (c) of the Family Law Rules.

Background:

[2] The Applicant was married to the Respondent on August 21, 1999. They had one child together (“E.”). The Respondent also had a daughter from a previous relationship (“A.”). The Applicant acted as a parent to A. during the marriage and he has continued that relationship with her. When the parties separated in November 2001, they agreed upon joint custody of both E. and A. and terms were incorporated into the Order of Justice N. Jane Wilson dated October 31, 2003.

[3] A. gave birth to a child (hereinafter called “Jimmy”) in August 2015. The biological father of Jimmy is O. J.. Jimmy is the subject of the within application.

[4] On March 5, 2018, following a motion for summary judgment by the Family and Children’s Services of Renfrew County (“FCSR in a child protection proceeding, an Order was made placing Jimmy in the primary custody of the Respondent pursuant to section 57.1 of the Child and Family Services Act (the predecessor for what is presently section 102 of the Child Youth and Family Services Act (“CYFSA”)).

[5] The Applicant was not a party to that proceeding. His evidence is that he had the option to be added as a party but he chose not to on the basis that he felt he needed to support his stepdaughter A. without complicating matters. The Applicant maintains that he did not feel he needed to assert a right to have contact with Jimmy as he was having ongoing contact with Jimmy at the time.

[6] I have reviewed the affidavits filed in support of and in response to the present motion and I note the following evidence contained in those affidavits.

Affidavits of the Respondent sworn November 3, 2020 and April 9, 2021:

[7] The Respondent has had Jimmy in her full-time care since shortly following his birth in December 2015.

[8] The Respondent disputes the Applicant’s right to bring the within application as he is not a biological grandparent of Jimmy. She asserts that there is already a final order for custody and access dated March 5, 2018. This custody order was made as the disposition of a child protection proceeding.

[9] The Applicant has, in any event, been having ongoing visits with Jimmy through A. The Respondent asserts that A. regularly continues to facilitate contact between the Applicant and Jimmy.

[10] The Respondent recalls the years she shared custody of A. and E. with the Applicant as very difficult and stressful. She states that it was very difficult to communicate and interact with the Applicant. It was because of this that she left the issue of the Applicant’s contact with Jimmy to be addressed through A.

[11] The Respondent states that the Applicant was particularly difficult to work with when decisions needed to be made concerning A. and she recounts instances where she disagreed with the Applicant’s parenting of either of her daughters. She asserts that the Applicant has anger issues.

[12] She feels that if the Applicant is granted “access” to Jimmy that this will impact Jimmy’s right of access to his mother in that it will limit her ability to expand upon her time with Jimmy.

[13] The Applicant maintains that she has never prevented the Applicant from supporting Jimmy when Jimmy has been involved in various activities such as skating or jujitsu. However, she maintains that the Applicant has chosen not to attend such activities.

[14] The Respondent believes Jimmy should increasingly be provided the space to decide what he wants, including the time spent with his various members of his family. She objects to an order which would impose too much structure and demand in his routine, particularly since she maintains that Jimmy is seeing the Applicant frequently enough as it is without the need for a court order.

[15] The Respondent also questions the Applicant’s good faith in bringing this proceeding, suggesting that he is trying to force her to engage with him. She suggests as well that the Applicant’s home is not a good environment in that everyone fights, have verbal exchanges and angry physical encounters.

Affidavit of the Applicant sworn November 26, 2020:

[16] The Applicant states that he acted as a father to A. and shared custody of her following his separation from the Respondent. He considers Jimmy to be his grandson. He asserts that once the Respondent assumed custody of Jimmy following the child protection proceeding, the Respondent began to interfere with the Applicant’s ability to maintain his relationship with Jimmy.

[17] The Applicant maintains that he did not formally request contact with Jimmy in the context of the child protection proceedings. He maintained that he did not want to add to the complication of the custody issues at the time and that there was no issue with his having ongoing visits with Jimmy at the time and therefore he did not think it would be necessary.

[18] The Applicant asserts that he always had a supportive and positive relationship with A.

[19] The Applicant also asserts that he has had a close bond with Jimmy until the Respondent began to prevent his having access with Jimmy. As a result, any continued contact with Jimmy, he asserts, has had to come through A.

[20] He believes that it would be in Jimmy’s best interests to have consistent, expanded access time with him and he asks, in this proceeding, for access to Jimmy one weekend a month from Friday after school to Sunday at 2:00 p.m. and any other access visits as may be agreed upon.

Affidavit of A. G. T. sworn April 9, 2021:

[21] A.G.T. is a long-time acquaintance of the Respondent.

[22] A.G.T. suggests that given the pattern of behavior she maintains the Applicant demonstrated when A. was a child and her view that the Applicant failed to meet A.’s emotional, cognitive and behavioural needs, it should be questioned whether the Applicant is capable of meeting Jimmy’s needs. She points out that Jimmy will require ongoing supports to address his emotional, cognitive, behavioural and physical needs and that the Respondent has been very proactive in meeting these needs.

Affidavit of M.S.C. sworn April 12, 2021:

[23] M.S.C. is the mother of the Respondent. She reports that when the parties lived together she was appalled with how the Applicant behaved with A. in that he was very critical of her.

Issues:

[24] The issues I am to decide are as follows:

a. Should the Application be struck on the basis that it sets out no reasonable claim?

b. Should the Application be struck on the basis that it is a waste of time, a nuisance, or an abuse of the court process?

c. If not, ought the Applicant be required to add O.J. and A. as Respondents to the proceeding?

d. Should there be an order requiring the Applicant to serve and file a Financial Statement form 13 with his T4 or NOA for 2020 and NOAs for 2019, 2018 and 2017?

e. Should there be an order that the Applicant pay retroactive child support to the respondent from the date of issuance of the application in July 2020 to present and ongoing child support pursuant to the Federal Child Support Guidelines.

Analysis:

[25] The Respondent’s motion is expressly brought pursuant to subrule 16 (12) of the Family Law Rules. Subrule 16 (12)(b) and (c)(iv) of the Family Law Rules provides as follows

(12) MOTION FOR SUMMARY DECISION ON LEGAL ISSUE – The court may, on motion,

(b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or

(c) dismiss or suspend a case because,

(iv) the case is a waste of time, a nuisance or an abuse of the court process.

[26] Subrule 16(13) provides as follows:

(13) EVIDENCE ON MOTION FOR SUMMARY DECISION OF LEGAL ISSUE – On a motion under subrule (12), evidence is admissible only if the parties consent or the court gives permission.

[27] The parties advised that they consented to the evidence which has been filed by the parties being considered as it provided context for the issues.

Should the Application be struck on the basis that it sets out no reasonable claim?

[28] The Applicant is asking by way of this Application for contact with Jimmy. The Respondent argues that that issue of the Applicant’s contact is res judicata because issues of custody and access with regard to Jimmy were considered and determined in the child protection matter and those terms incorporated into a final order.

[29] I disagree.

[30] While the principle of res judicata requires that parties to litigation bring forward their whole case, this principle applies to those parties alone. In such instances the Court will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case.

[31] The Applicant was not a party to the child protection proceeding. The doctrine of res judicata does not apply as it pertains to the Applicant’s claim.

[32] Furthermore, issues of custody and access are always subject to variation in the event it is in the bests interests of the child.

[33] The relevant sections of the Children’s Law Reform Act (“CLRA”) provides as follows:

Parenting orders and contact orders

28 (1) The court to which an application is made under section 21,

(a) may by order grant,

(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),

(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or

(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);

(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child. 2020, c. 25, Sched. 1, s. 6.

Exception

(2) If an application is made under section 21 with respect to a child who is the subject of an order made under section 102 of the Child, Youth and Family Services Act, 2017, the court shall treat the application as if it were an application to vary an order made under this section. 2020, c. 25, Sched. 1, s. 6.

Same

(3) If an order for access to a child was made under Part V of the Child, Youth and Family Services Act, 2017 at the same time as an order for custody of the child was made under section 102 of that Act, the court shall treat an application under section 21 of this Act relating to parenting time or contact with respect to the child as if it were an application to vary an order made under this section. 2020, c. 25, Sched. 1, s. 6.

29 (1) A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order. 2020, c. 25, Sched. 1, s. 6.

[34] In my view, the above sections of the CLRA specifically anticipates the bringing of an application requesting contact with a child subsequent to a custody/access order made in a child protection proceeding.

Should the Application be struck on the basis that it is a waste of time, a nuisance, or an abuse of the court process?

[35] While there is insufficient evidence at this juncture for me to conclude whether or not the Applicant will succeed with his claim for contact once this matter gets heard on its merits, I do not find that the Applicant’s claim is a waste of time, a nuisance or an abuse of process. I am not satisfied that the Applicant’s claim will not succeed and in fact, I conclude that it warrants a proper determination on a full evidentiary record.

If not, ought the Applicant be required to add O.J. and A. as Respondents to the proceeding?

[36] Given the provisions of the CLRA already referred to, I conclude that A. and O.J. ought to have been added as parties to this proceeding as any order made could potentially impact them.

Should there be an order requiring the Applicant to serve and file a Financial Statement form 13 with his T4 or NOA for 2020 and NOAs for 2019, 2018 and 2017?

[37] I am not prepared to make an order at this time requiring the Applicant to serve and file a Financial Statement form 13 with his T4 or NOA for 2020 and NOAs for 2019, 2018 and 2017. Firstly, even on the Respondent’s evidence, I do not find that the Applicant has acted as a “parent” who would have a legal obligation to provide for Jimmy’s support and this has not been appropriately pleaded in the Respondent’s Answer.

Should there be an order that the Applicant pay retroactive child support to the respondent from the date of issuance of the application in July 202 to present and ongoing child support pursuant to the Federal Child Support Guidelines

[38] Given I am not prepared to find, based upon the evidence filed for this motion, that there is a legal obligation to provide for Jimmy’s support, I decline to make a retroactive or temporary order on the issue of child support.

[39] If the parties cannot agree on costs, the Applicant may make written submissions as to costs within 10 days of the release of this endorsement. The Respondent shall have 10 days after the receipt of the Applicant’s submissions to respond. All written submissions are to be forwarded to Pembroke.SCJ.Courts.ca and are to be no longer than three pages, double-spaced exclusive of ay pertinent offers and draft bill of costs. If no submissions are received with 20 days, the parties will be deemed to have settled the issue of costs as between themselves.

M. Fraser J.

Date: May 17, 2021