SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: FC43/19-1

DATE: July 5, 2021

RE: A.T., Applicant

AND:

E.R.P., Respondent

BEFORE: TOBIN J.

COUNSEL: Karen M. King for the Applicant

Matthew Dupre for the Respondent on a limited scope retainer

HEARD: June 17, 2021

ENDORSEMENT

The Motions

[1] The Applicant seeks a temporary order changing the final order of Price J. dated May 24, 2019 by providing that the Respondent’s parenting time with the parties’ two children be supervised.

[2] In response, the Respondent brought a Motion seeking an order for police enforcement of the access provisions of Price J.’s order and compensatory (or make-up) access. He also asked for an order striking the Affidavit of S.R. sworn March 26, 2020, as well as the Affidavits of the Applicant.

The Evidence Considered

[3] The Applicant brought her Motion first returnable before the court on April 8, 2021. The Motion was then before Mitrow J., who made an order which defined the record to be relied upon by the parties on these Motions as follows:

1. The Applicant’s material is to consist of her fresh Affidavit, plus the Affidavit of N.P. and the Affidavit of S.R., previously filed.

2. The Applicant’s fresh material was to be filed by May 3, 2021.

3. The Respondent’s material shall include the Respondent’s fresh Affidavit, to be served and filed by May 17, 2021, plus the Affidavit of C.S.

4. Reply is to be filed by May 21, 2021.

[4] In compliance with the endorsement of Mitrow J., the evidence considered by me on these Motions is as follows:

1. the Affidavit of A.T., sworn May 3, 2021;

2. the Affidavit of N.P., sworn November 7, 2019;

3. the Affidavit of S.R., sworn March 26, 2020;

4. the Affidavit of C.S., sworn May 14, 2021; and

5. the Reply Affidavit of A.T., sworn May 21, 2021.

[5] I did not consider any other Affidavit filed previously by the parties, including the Affidavits of the Applicant, sworn February 12, 2020, September 17, 2020, and April 6, 2021, nor the Affidavit of C.S., sworn May 25, 2020.

[6] The Respondent did not file a fresh Affidavit on these Motions. In his confirmation filed for the return of these Motions before me and, in contravention of Mitrow J.’s order of April 8, 2021, he sought to rely upon his and C.S.’s Affidavits, sworn March 25, 2020 and the Affidavit of N.P., sworn April 1, 2019. Having regard to the endorsement of Mitrow J., I did not consider these Affidavits.

Should the Affidavit of S.R. be struck?

[7] The Affidavit of S.R. (the R. Affidavit) was sworn March 26, 2020. The Respondent submits that this Affidavit should be struck “on the grounds that it is defamatory hearsay, malicious, vexatious, abusive and irrelevant.” He relies upon Rules of Civil Procedure, R.R.O. 1990, Reg. 194 R. 25.11 and Family Law Rules, O. Reg. 114/99 r. 1(7) for this submission.

[8] Rule 1(7) allows the court to consider, if appropriate, the Rules of Civil Procedure if the Family Law Rules do not cover a matter adequately. It is not necessary to consider Rules of Civil Procedure R. 25.11, which provides as follows:

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

because r. 1(8.2) of the Family Law Rules, which provides as follows,

The court may strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process.

adequately covers the matter of striking documents for the reasons provided for in Rules of Civil Procedure R. 25.11.

[9] The substance of the Respondent’s argument is that the contents of the R. Affidavit are defamatory and malicious. He also relies upon S.R. not being a party to this proceeding. The Respondent specifically refers to paragraph 23 of the R. Affidavit, which describes an event which took place on July 7, 2019. On that day, S.R. accompanied N.P. to the Halton Police Department. N.P. is the Respondent’s adult child. N.P. attended at the police department to give a statement about the Respondent sexually abusing her when she was five years old, and that started when she lived with her mother and the Respondent. S.R. did not have firsthand knowledge of the allegations that N.P. intended to report to the police. S.R. attended as a support to N.P. S.R. also, in her evidence, described rumours that she heard about the Respondent and speculates why the Respondent’s adult children are estranged from him.

[10] The theory of the Applicant’s case is that the Respondent’s parenting time with their young children should be supervised because of the risk they may be sexually abused by the Respondent. The evidence that she relies upon is that the Respondent’s adult child, N.P., was sexually abused by him when she was the similar age of the children who are the subject of this case.

[11] I agree with the Respondent that statements in the R. Affidavit that contain speculation, innuendo, bald allegations, and rumour are not admissible evidence.

[12] I will not strike the R. Affidavit in its entirety. It does contain relevant and firsthand evidence from S.R. regarding her observations of the Respondent and his children. I will not take into consideration, and treat as struck, the rhetorical excess contained in the R. Affidavit, including the gratuitous and irrelevant conclusions and speculations offered in that Affidavit.

Should the Applicant’s Affidavits be struck?

[13] The Respondent submits that the Affidavits filed by the Applicant on these Motions should be struck because they are based on inadmissible hearsay. In argument, the Respondent’s counsel did not point out any specific statements that he relied upon in support of his argument.

[14] The Applicant’s Affidavits will not be struck.

[15] I will consider those statements attributed by the Applicant to third parties if the requirements of Family Law Rules r. 14(18) and (19) are met. These Rules provide as follows:

AFFIDAVIT BASED ON PERSONAL KNOWLEDGE

(18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.

AFFIDAVIT BASED ON OTHER INFORMATION

(19) The affidavit may also contain information that the person learned from someone else, but only if,

(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and

(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.

Should the final order of Price J. dated May 24, 2019 be varied by a temporary order requiring the Respondent’s parenting time to be supervised?

Facts

[16] The parties separated in 2018 after having cohabited for approximately seven years. They are the parents of two children, N.D.D.P., born in 2013, and N.J.P., born in 2015.

[17] The children have lived with the Applicant since the parties separated.

[18] Shortly after separating, the Applicant started a court case to address the issues of parenting and child support. The parties eventually entered into Minutes of Settlement which addressed these issues. By order dated May 24, 2019, made by Price J., based upon the Minutes of Settlement, the Applicant was granted custody (now decision-making responsibility) of the children. The Respondent was granted access (now parenting time) that includes alternate weekends and holidays.

[19] In June 2019, the Respondent told the Applicant through a text message that he was having financial difficulty. He had $46 in his bank account with which to meet his needs.

[20] In July 2019, the Respondent told the Applicant, again by text, that he was “two months behind in everything,” including his rent.

[21] Because of the difficulties the Respondent was facing due to his financial circumstances, the Applicant did not send the children on access visits. She advised the Respondent that there would be make-up visits when he “got back on his feet financially.”

[22] The Respondent has not seen the children since July 2019.

[23] In July 2019, the Applicant was advised by S.R. of information she received from N.P. about the Respondent. I put no weight on the evidence made by S.R. in her Affidavit purporting to detail what was alleged by N.P. about the Respondent. This evidence only explains why the Applicant contacted N.P.

[24] Subsequent to receiving information from S.R., the Applicant contacted N.P. As stated above, N.P. is the Respondent’s adult child from a prior relationship.

[25] N.P. told the Applicant that it was true that the Respondent sexually molested and physically assaulted her and her sister “from an age which is close proximity to that of N. and N. [the children].” She also told the Applicant that the Respondent was not managing his mental health.

[26] On July 19, 2019, the Respondent sent a text to the Applicant for the purpose of arranging his access. In response, the Applicant texted the Respondent to ask about his circumstances and the allegations made by N.P. that he sexually and physically assaulted her and her sister, and that he was not managing his mental health. The Respondent did not respond to these questions. His response was:

Those issues are none of your concern. Groceries? Absolutely. A fridge full. That’s all that is relevant.

[27] K.P., N.P.’s sister, told the Applicant that the allegations made by N.P. were true.

[28] In N.P.’s Affidavit of November 7, 2019, she states:

1. on February 27, 2019, the Respondent acknowledged to her and K.P. his mental health struggles and that he was in crisis;

2. the Respondent physically and sexually abused her when she was a child; and

3. on June 27, 2019, the Respondent assaulted her: a head butt that broke her nose.

[29] The Respondent did not swear and file an Affidavit on these Motions, as allowed by Mitrow J. in the endorsement of April 8, 2021. His counsel explained that he did not respond to the evidence relied upon by the Applicant because it was “beneath contempt.”

[30] The evidence filed on behalf of the Respondent on these Motions was the Affidavit of C.S., sworn May 14, 2021. She is the Respondent’s fiancée. C.S. does not claim to have firsthand knowledge of the events described by N.P. She does not state in her Affidavit that the Respondent told her that he denies N.P.’s allegations.

Legal Considerations

[31] A court may not vary a parenting order made under Part III of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (CLRA) 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: CLRA s. 29(1).

[32] Section 72 of the CLRA gives the court jurisdiction to make an interim order in proceedings under Part III. To do so, the court must first make a finding that there has been a material change in circumstances: Swan v. Swan (2002), 2002 78090 (ON SC), 27 R.F.L. (5th) 444 (Ont. S.C.), aff'd (2002), 2002 78075 (ON SCDC), 27 R.F.L. (5th) 449 (Div. Ct.).

[33] In F.K. v. A.K., 2020 ONSC 3726, 43 R.F.L. (8th) 441, which was not cited to me by either party, the court, at para. 52, summarized what is to be considered when a temporary variation of a final order is requested:

52. The added complication: the father seeks a temporary variation of a final parenting order. This requires that the court conduct an even more stringent analysis:

a. In all instances, courts must exercise caution before changing an existing arrangement which children have become used to.

b. This is especially the case where the existing parenting arrangement has been determined by way of court order. The starting point is that court orders are presumed to be correct. M. (B.P.) v. M. (B.L.D.E.) 1992 8642 (ON CA), [1992 CarswellOnt 295 (Ont. C.A.)], 1992 8642; Gordon v. Gordon, 2015 ONSC 4468 (Ont. S.C.J.); Oickle v. Beland, 2012 ONCJ 778 (Ont. C.J.).

c. And the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. If the general rule is that we are reluctant to change temporary orders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue.

d. Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority to grant a temporary variation of a final order - in the appropriate circumstances. Stokes v. Stokes, 2014 ONSC 1311 (Ont. S.C.J.); Huliyappa v. Menon, 2012 ONSC 5668 (Ont. S.C.J.); Clements v. Merriam, 2012 ONCJ 700 (Ont. C.J.).

e. But the evidentiary basis to grant such a temporary variation must be compelling.

f. The court must start with the aforementioned two-part material change in circumstances analysis.

g. But for a temporary variation, the court must also assess whether the changed circumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child's best interests.

h. The onus on the party seeking a temporary variation is onerous. They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child's physical and/or emotional well-being. They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child.

i. The court must be satisfied that the child's best interests require an immediate change - to reduce the detrimental impact of unacceptable negative dynamics or behaviours.

j. The court must be satisfied that the existing order has come to be demonstrably contrary to the best interests of the child - and that the proposed temporary variation is urgently needed to shield the child from likely future harm.

k. Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.

l. And given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied - on a balance of probabilities - that a clear and compelling need to make an immediate change has been established.

m. On a temporary motion, the status quo will have a strong gravitational pull - until the moment when the court determines that a child is in peril. After that, priority switches to rescuing and protecting the child. And the pace of correction is directly related to the magnitude of the child's current exposure to harm.

Discussion and Decision

[34] This is one of those exceptional cases where an interim variation of a final order is called for.

[35] The uncontradicted evidence of N.P., about the Respondent’s actions towards her, was not known to the Applicant when the Minutes of Settlement were entered into and the order of Price J. was made. This new evidence constitutes a material change in circumstances that is likely to affect the best interests of the children. Had this information been known at the time, it is unlikely that the Minutes of Settlement and order would have been made.

[36] It is in the best interests of the children that the Respondent’s parenting time with the children be supervised having regard to the following:

1. The Applicant provided firsthand evidence that the Respondent physically and sexually abused his daughter, N.P.

2. The evidence given by N.P. regarding the Respondent’s abuse of her and the state of his mental health in 2019 is clear, unambiguous, and unequivocal.

3. The age at which the abuse suffered by N.P. began was similar to the ages of the children, who are the subject of this case.

4. The Respondent did not file evidence denying the allegations made by N.P.

5. The Respondent has had the opportunity to deny the allegations made.

6. The evidence given by C.S. on behalf of the Respondent does not address the allegations made by N.P. Instead, her evidence is that N.P. has been charged with some criminal offences and she has been hospitalized for mental health issues. She does not provide any context for these statements, nor how she knows about these matters.

7. C.S. did not respond to the allegations concerning the Respondent’s mental health, nor his assault of N.P.

8. It is not a sufficient answer for the Respondent to claim that he did not respond to the statements made because they were beneath contempt. This court cannot assume that they are denied, as submitted by Respondent’s counsel.

9. In making an order in the best interests of the children, the court is required to give primary consideration to the children’s physical, emotional and psychological safety, security, and wellbeing: CLRA s. 24(2). The allegations made regarding past sexual abuse by the Respondent raise serious potential risk to the safety, security, and wellbeing of the children.

[37] Until there is further investigation and evidence presented in this case, the Respondent’s parenting time with the children is to be supervised.

[38] I agree with the Applicant that C.S. is not an appropriate supervisor at this time. She has considerable animus toward the Applicant. She views the Applicant as “demonstrating malicious mother syndrome and parent alienation.”

[39] In these circumstances, supervised access is to take place at Merrymount Children’s Services until further order of the court.

[40] The parties may wish to consider seeking an order requesting the involvement of the Children’s Lawyer in this case.

Conclusion

[41] Paragraph 4 of the order of Price J. dated May 24, 2019 is suspended until further order of the court.

[42] Pending further order of the court, the Respondent shall have parenting time with the children, N.D.D.P., born in 2013, and N.J.P., born in 2015, at Merrymount Children’s Services or such other supervised access as the parties may agree.

“Justice B. Tobin”

Justice B. Tobin

Date: July 5, 2021