Court File and Parties
COURT FILE NO.: FC-20-233 DATE: July 15, 2021
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Maxime Pierre Authier, Applicant AND: Valerie Helene-Marie Noel, Respondent
BEFORE: Honourable Madame Justice M. Fraser
COUNSEL: Natasha D. Pappin, for the Applicant Michael Rappaport, for the Respondent Sylvia Christinck, for the Office of the Children’s Lawyer
HEARD: July 13, 2021
ENDORSEMENT
1The Respondent Valerie Helene-Marie Noel (the “Respondent”) brings this motion.
2She asks for the following orders:
a) An order to impose a fine of $5,000. against the Applicant Maxime Pierre Authier (the “Applicant”) for wilful breach and contempt of paragraphs 1 and 3 of the Order of Justice James dated January 29, 2021 and for perjury for submitting Affidavits from Tracy Huff and Shannon Gray on the motion on May 11, 2021 which contained allegations which the Applicant knew to be false, inflammatory and vexatious;
b) An order that the Applicant provide a copy of his OCL intake form within three days of the date of this order;
c) An order that the Respondent can have Lexi for a six-week period from July 3 to August 14 as per paragraphs 15 and 16 of the domestic contract signed on May 13, 2016;
d) An order that the parties share Section 7 expenses in proportion to their respective incomes pursuant to section 7(1) of the Child Support Guidelines and that all travel related expenses to pick up and drop off Lexi be recognized as section 7 expenses;
e) An order for punitive and aggravated costs for bad faith conduct and full indemnity costs.
Background:
3The parties began to reside together in April 2009 and were married on July 12, 2013.
4Lexi is the only child of the marriage. She is presently 9 years old.
5The Applicant was formerly a member of the Canadian Armed forces. He is now an RCMP officer. His line 150 income for 2020 was $88,949.
6The Respondent is a former army medical technician. Her line 150 income for 2019 was $73,635 and for 2020 was $70,270.00. Her taxable income presently consists of income benefits received from Veteran’s Affairs and an employment pension. The Respondent also receives disability benefits which are not taxed as income in the amount of $1,496.96 per month.
7The parties separated on February 12, 2016. They were residing in Petawawa at that time.
8Following the parties’ separation, the Applicant moved to Cornwall to complete his RCMP training. The Respondent remained in Petawawa.
9The parties signed a domestic contract on May 13, 2016.
10The agreement provided, among other things, that Lexi would reside primarily with the Respondent and that when the Applicant completed his RCMP training and was posted, that the parties would negotiate a new access schedule for Lexi. The agreement further provided that:
“The Husband and the Wife shall make every effort to reside in Ontario for so long as possible. They shall each give the other not less than 60 days’ notice of moving to a new residence, especially moving the residence of the Child.”
11On October 12, 2020, the Respondent provided notice to the Applicant that she planned to move Lexi’s residence from Petawawa, Ontario to Hackett’s Cove, Nova Scotia.
12Two weeks after receiving the notice, the Applicant served the Respondent with an urgent motion asking to transfer primary care of Lexi to him and for an order prohibiting Lexi’s residence from being moved to Nova Scotia.
13The Applicant learned that the Respondent had already sold her home in Petawawa.
14On October 21, 2020 the Applicant was granted leave to bring his motion on an urgent basis prior to a case conference.
15At the return of that motion on November 5, 2020, the Respondent requested an adjournment in order to retain counsel. The motion was then adjourned to November 20, 2020. Pending further order, it was ordered that the Respondent not move the residence of Lexi outside of the Town of Petawawa.
16On November 5, 2020, a temporary order was made on the consent of both parties. That order provided, among other things, that Lexi would continue to reside in the primary care of the Respondent subject to her not relocating the residence of Lexi outside of the Town of Petawawa pending a final hearing or further order. The order also provided that the Applicant was to have access with Lexi, including every alternate weekend.
17A first court date was held on December 16, 2020. No one appeared at that time and the proceeding was adjourned to a further first court date on January 6, 2021.
18On December 30, 2020, the Respondent arrived at the Applicant’s home with Lexi. Although Lexi was only scheduled to be with the Applicant for a share of the Christmas holidays, the Respondent brought all of Lexi’s belongings and left them at the Applicant’s home and left Lexi in the Applicant’s care.
19On January 2, 2021, the Respondent left Ontario and travelled to Nova Scotia where she has resided since. Lexi has remained in the Applicant’s care since December 30, 2020.
20On January 6, 2021, only the Applicant appeared at the scheduled first court date which was held by zoom videoconference. The court was advised of the recent changes resulting in Lexi residing with the Applicant and that a further motion was necessary to reflect the changed status quo. The first court date was again adjourned, this time to March 3, 2021.
21On January 19, 2021, leave was granted for the Applicant to bring another urgent motion.
22At the return of that motion (January 29, 2021), the parties consented to a without prejudice order that Lexi would reside with the Applicant in Cornwall pending further order or agreement. The parties also agreed that the Respondent would have generous access with Lexi including telephone and video-link communication, and that the Applicant would consult with the Respondent on major decisions affecting Lexi and that the Applicant would keep the Respondent informed of Lexi’s progress.
23On March 3, 2021, a case conference was scheduled for March 25, 2021.
24At the case conference, a request was made for the involvement of the Office of the Children’s Lawyer. Ms. Christinck has now been appointed as child’s counsel.
25Two motions were heard on May 11, 2021. On June 29, 2021, I disposed of those motions. As part of my disposition, I denied the Respondent’s request to relocate Lexi’s residence to Nova Scotia on a temporary basis but an order was made that Lexi should be permitted to travel to Nova Scotia for four weeks of the summer break to spend that time with the Respondent.
Analysis:
26I propose to address each request for relief in the Respondent’s Notice of Motion in turn.
a) An order to impose a fine of $5,000. against the Applicant Maxime Pierre Authier (the “Applicant”) for wilful breach and contempt of paragraphs 1 and 3 of the Order of Justice James dated January 29, 2021 and for perjury for submitting Affidavits from Tracy Huff and Shannon Gray on the motion on May 11, 2021 which contained allegations which the Applicant knew to be false, inflammatory and vexatious:
27The Respondent argues that the Applicant breached paragraphs 1 and 3 of the Order of Justice James in that on or around June 24, 2021 he “dumped” Lexi at his parent’s house, “took off without even saying good-bye to Lexi” to attend a police training course.
28Even though the Respondent does not dispute that this was a weekend arrangement for the care of Lexi by her paternal grandparents, it was argued that the Order of James J. was breached as her “residence” was changed during this time. I disagree. Lexi has clearly remained resident with the Applicant from December 30, 2021 on.
29The Respondent also argued that the decision to have the paternal grandparents care for Lexi during the weekend was a “major” decision and that the Applicant had been obliged to “consult” with the Respondent prior to doing so. Again, I disagree. This weekend stay with the paternal grandparents was, in my view, a normal day-to-day issue concerning Lexi’s care and the Applicant was within his rights to arrange for her temporary care during this weekend.
30The Respondent asserts that the Applicant has perjured himself by filing affidavits sworn by Tracy Huff and Shannon Gray for the May 11, 2021 motion in which the deponents express their concern that the Respondent has developed a problem with cocaine. Perjury if committed in the face of the court, is a form of contempt of court. However, in this instance, I do not accept that such a finding is warranted. As a preliminary matter, the motion before me was not brought as a contempt motion. Furthermore, the “perjured” evidence complained of concerned certain allegation contained in the sworn affidavits of other individuals, not the Applicant. In any event, the Respondent’s evidence is insufficient to conclude that the allegations were false. At best, while the Respondent disputes the truth of the allegations, I do not conclude that she has refuted the allegations such that it must be concluded that the individuals in question swore false information. Finally, there is no evidence that the Applicant led such evidence with a view to misleading the court. or that he knew that the allegations were “false, inflammatory and vexatious” if indeed it were established that they were.
31Therefore, I decline to make the order sought by paragraph a) of the Respondent’s Notice of Motion.
b) An order that the Applicant provide a copy of his OCL intake form within three days of the date of this order:
The Applicant is prepared to provide a copy of his OCL intake form if the Respondent’s intake form is provided to him. Ms. Christinck, on behalf of the OCL takes no position on this request. Mr. Rappaport indicated his client’s agreement to a mutual obligation that each party disclose their intake form to the other. An order shall therefore issue accordingly.
c) An order that the Respondent can have Lexi for a six-week period from July 3 to August 14 as per paragraphs 15 and 16 of the Domestic Contract signed on May 13, 2016:
32When this proceeding was commenced in November 2020, the parties signed interim Minutes of Settlement which replaced the Domestic Contract. Those Minutes anticipated that the parties would each have Lexi for four weeks of the summer break.
33In my endorsement of June 29, 2021, I found that this division of the summer vacation was appropriate and in Lexi’s best interests.
34I note that Ms. Christinck has met with Lexi on one occasion and that she will meet with Lexi several more times and she will consult with collateral sources before taking a position on her behalf. However, she did report that Lexi reports a close and loving relationship with both of her parents.
35I continue to conclude that on a temporary basis, Lexi should enjoy four weeks of the summer vacation period with each parent.
d) An order that the parties share Section 7 expenses in proportion to their respective incomes pursuant to section 7(1) of the Child Support Guidelines and that all travel related expenses to pick up and drop off Lexi be recognized as section 7 expenses:
36The Respondent has not particularized what the travel expenses will be which she wishes to claim as a section 7 expense and I am not therefore prepared to make the Order requested. I am prepared to order, however, that unless the parties can agree upon an alternate arrangement, the Respondent shall be responsible for arranging for and the cost of transporting Lexi to Nova Scotia and the Applicant shall be responsible for transporting Lexi back to Cornwall Ontario at his own expense.
e) An order for punitive and aggravated costs for bad faith conduct and full indemnity costs:
37I do not find that there has been evidence of bad faith conduct on the part of the Applicant and I therefore decline to make this order.
Disposition:
38The following temporary orders shall issue:
Both parties shall provide the other with a copy of the intake form each provided to the OCL within three business day;
Unless the parties can agree upon an alternate arrangement, the Respondent shall be responsible for arranging for and the cost of transporting Lexi to Nova Scotia and the Applicant shall be responsible for transporting Lexi back to Cornwall, Ontario at his own expense.
The balance of the Respondent’s motion is dismissed.
41If the parties cannot agree on the costs of this motion, then the Applicant may make written submissions as to costs, no more than three pages in length, double-spaced, in addition to any pertinent offers and draft bill of costs, within twelve days of the release of this endorsement. The Respondent has twelve days from receipt of the Applicant’s submissions to respond on the same basis. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
Fraser J.
Date: July 15, 2021