Jordan v. La Russa, 2021 ONSC 7049

COURT FILE NO.: FC-21-561

DATE: 2021/10/26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JENNIFER MAE JORDAN, Applicant

-and-

SARAH MARIE LA RUSSA and CHRISTOPHER JORDAN REUBEN LA RUSSA, Respondents

BEFORE: Madam Justice S. Corthorn

COUNSEL: Vasu Naik, for the Applicant

Kevin Kavanagh, for the Respondent, Sarah Marie Kelly (misnamed in the title of proceeding as Sara Marie La Russa)

No one appearing for Christopher Jordan Reuben La Russa

HEARD: October 22, 2021 (By Zoom)

CASE CONFERENCE ENDORSEMENT

Introduction

1The applicant, Jennifer Mae Jordan, is the paternal grandmother of Tanner La Russa (DOB: December 4, 2013). The respondents are Tanner’s parents. The parents separated in 2019. Through her application, Ms. Jordan seeks certainty with respect to her relationship with Tanner, including opportunities to spend time with him in communication by telephone or video call and in-person. The respondent father, Christopher Jordan Reuben La Russa, supports his mother’s application.

The Paternal Grandmother’s Application

2The respondent mother, who goes by the name Sarah Kelly, does not, in principal, oppose Ms. Jordan’s application. She does, however, have concerns about Tanner’s well-being.

3As a result, when the case conference commenced in August 2021, Ms. Kelly requested a cautious, graduated resumption of Ms. Jordan’s contact with Tanner. Ms. Kelly’s cautious approach stems in part from her concerns about the potential for Mr. La Russa to have a negative influence on Tanner’s well-being.

4To their credit, when the parties were before this court in August 2021, they reached an agreement to facilitate Ms. Jordan’s gradual resumption of regular contact with Tanner on an interim basis. The case conference was adjourned to late October 2021 to permit Ms. Jordan and Ms. Kelly to assess how resumption of contact is going.

5Throughout the past couple of months, the resumption of contact between Tanner and Ms. Jordan has not gone as smoothly as might have been hoped. Ms. Jordan has made the difficult decision to step back a bit from Tanner’s life, while still maintaining limited contact with him. Ms. Jordan considers it to be in Tanner’s best interests, at this time, that she do so.

6Stepping back a bit does not mean that Ms. Jordan will not play any role whatsoever in Tanner’s life. Ms. Kelly agrees to keep Ms. Jordan informed of Tanner’s life through the regular provision of photographs or videos of him. In addition, Ms. Jordan will remain a presence, even if in limited form, in Tanner’s life by sending notes or letters and sending gifts for Tanner for special occasions such as his birthday.

7The order made on consent at the conclusion of this endorsement reflects the terms to which Ms. Jordan and Ms. Kelly agree.

The Claims Made by Ms. Kelly

8In her Answer to Ms. Jordan’s application, Ms. Kelly identifies that she is also making a claim of her own. Ms. Kelly’s claims are against Mr. La Russa. The claims made are with respect to (a) decision-making responsibility, (b) parenting time, (c) a no contact order for Mr. La Russa in relation to Tanner, (d) permission to apply for a passport for Tanner without Mr. La Russa’s consent, and (e) permission to travel internationally with Tanner without Mr. La Russa’s consent.

9Ms. Kelly’s Answer is dated May 18, 2021. It was served on Mr. La Russa.

10Mr. La Russa’s Answer is dated May 31, 2021. His Answer is restricted to providing support to Ms. Jordan’s application. Mr. La Russa does not make any claims of his own. He did not, in his Answer or any other document, respond to Ms. Kelly’s claims. His Answer was not filed with the court. A copy of that document was provided to the court for the limited purpose of the case conference.

Mr. La Russa’s Application (in Perth)

11In December 2020, Mr. La Russa commenced an application for divorce and for relief related to Tanner (“the Perth Proceeding”). The Application was issued in Perth, Ontario. The address for Ms. Kelly listed in that document is a Perth address.

12In the Perth Proceeding, Mr. La Russa seeks an order for joint custody and for Tanner’s access time with Mr. La Russa to include every second weekend (Friday after school to Sunday at 4:00 p.m.) and one day per week after school for two hours. Additional relief sought is set out in detail; it relates to matters such as mobility, the sharing of information about Tanner and, on an interim basis, the involvement of the Office of the Children’s Lawyer. Mr. La Russa is not making any claims for an equalization payment or related to a matrimonial home.

13Mr. La Russa did not serve his application on Ms. Kelly. Mr. La Russa was represented by counsel when the Perth Proceeding was commenced. Ms. Kelly became aware of the Perth Proceeding when she received a notice of change identifying that Mr. La Russa is now self-represented in that proceeding.

14It is now more than 10 months since the Perth Proceeding was commenced (December 8, 2020). There is no evidence that Mr. La Russa has taken any steps to advance that proceeding.

Section 27 of the Children’s Law Reform Act

15In the Perth Proceeding, Mr. La Russa seeks a divorce and the relief related to Tanner. The latter form of relief is sought both under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

16It is significant that the relief sought by Mr. La Russa includes a divorce. Section 27 of the CLRA is titled “Effect of Divorce Proceedings”. As of December 2020, when the Perth Proceeding was commenced, that section provided as follows: “Where an action for divorce is commenced under the Divorce Act (Canada), any application under this Part in respect of custody of or access to a child that has not been determined is stayed by leave of the court.” In the current version of s. 27, the terms “custody” and “access” are replaced by “decision-making responsibility” and “parenting time or contact”, respectively.

17Pursuant to s. 27 of the CLRA, the application before this court is stayed. Both Ms. Jordan and Ms. Kelly ask the court to (a) lift the stay of this proceeding and Ms. Kelly’s claim therein, and (b) make a final order with respect to each.

Lifting the Stay of this Proceeding

18In support of the request for the stay of this proceeding to be lifted, Ms. Jordan and Ms. Kelly rely on the decision of Zisman J. in Zhong v. Yang, 2014 ONCJ 487, 49 R.F.L. (7th) 485. As noted by Zisman J. at para. 18, s. 27 of the CLRA does not provide any guidance as to when or why a court should grant leave to continue a proceeding under the CLRA after a divorce proceeding has been commenced. She also noted that pursuant to s. 138 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the court is to avoid a multiplicity of proceedings “as far as possible”.

19At para. 19, Zisman J. reviewed the decision of Kirkland J. in Lepper v. Lepper, 1986 CanLII 2270 (ON CJ), [1986] O.J. No. 1725 (Ont. Fam. Ct.). Kirkland J. established a principle (quoted at para. 19 in Zhong) that has been followed in many cases between 1992 and 2010:

The dominant principle in dealing with this issue appears to be the wisdom of dealing with similar matters simultaneously in one court. Clearly, the “staying” provision is designed to prevent inconsistent results among courts, redundant litigation, constitutional entanglements and delay in finality.

20At para. 20, Zisman J. identified three factors to be considered in addition to the dominant principle: (a) bad faith with respect to the issuance of the divorce application (for example, to gain a strategic or tactical advantage); (b) prejudice to one of the parties if the stay is not lifted; and (c) a waste of court resources contrary to Rule 2 of the Family Law Rules, O. Reg. 114/99.

21Applying each of these three factors to the matter before this court, I conclude that the stay of this proceeding is lifted in its entirety and without prejudice to Mr. La Russa to pursue a divorce (whether in the Perth Proceeding or, if necessary by reason of his delay in that proceeding, in another proceeding).

22I address in turn each of the three factors listed above.

▪ Bad Faith

23There is no suggestion, nor is there any evidence, that Mr. La Russa commenced the Perth Proceeding in an effort to gain some form of tactical or strategic advantage. The Perth Proceeding was commenced before Ms. Jordan commenced this application. That timing does not suggest bad faith conduct.

24Ms. Jordan, on the other hand, could only advance her claim through a proceeding commenced under the CLRA. Ms. Kelly, never having been served with the originating process in the Perth Proceeding, did not act in bad faith by pursuing her claims in this proceeding. It made sense for her to do so given that Mr. La Russa is a co-respondent. Proceeding as she did, Ms. Kelly likely believed that she was avoiding a multiplicity of proceedings (i.e., Ms. Jordan’s Application and a proceeding that Ms. Kelly might otherwise have commenced).

25In summary, bad faith is not relevant as a factor in this case.

▪ Prejudice

26It is possible to sever a request for a divorce from other forms of relief claimed in a divorce proceeding. Permitting Ms. Jordan’s application and Ms. Kelly’s claims to proceed herein is akin to severance of Mr. La Russa’s request for a divorce from the other forms of relief requested in the Perth Proceeding.

27All parties have engaged to date in this proceeding by exchanging pleadings. Only Ms. Jordan and Ms. Kelly filed their respective pleadings. Mr. La Russa did not do so.

28Mr. La Russa was clearly not concerned about Ms. Jordan’s Application proceeding even though he had already commenced a divorce proceeding. Not only did he do nothing in an effort to enforce the automatic stay under s. 27 of the CLRA, he chose to support his mother’s Application by serving an Answer setting out that support.

29Mr. La Russa is well aware of the claims being advanced by Ms. Kelly. He was served with her Answer. In addition, in accordance with my August 2021 case conference endorsement, Mr. La Russa was served with Ms. Kelly’s case conference brief prepared for the continuation of the case conference in October 2021.

30In both her Answer and in the most recent case conference brief, Ms. Kelly clearly spells out the relief she is seeking. Mr. La Russa cannot be mistaken about the end result Ms. Kelly hopes to achieve. He has taken no steps whatsoever to enforce the automatic stay under s. 27 of the CLRA, specifically in an effort to prevent Ms. Kelly from advancing her claims.

31Other than to serve an Answer supportive of his mother’s claim, Mr. La Russa has not participated in this proceeding in any way. By virtue of his failure to file his Answer, Mr. La Russa was not entitled to any further notice of steps in the proceeding: rr. 1(8.4) and 10(5).

32Mr. La Russa was given an indulgence in that my August 2021 endorsement provided that he would be permitted to participate in the October 22, 2021 case conference if he delivered a case conference brief in accordance with the FLR. He did not do so.

33In addition to serving Mr. La Russa with a copy of my endorsement and Ms. Kelly’s case conference brief, Ms. Kelly’s counsel provided Mr. La Russa with a copy of Ms. Kelly’s October 2021 Affidavit for an Uncontested Trial. That document, although not “served” on Mr. La Russa within the meaning of the FLR, is yet again notice to Mr. La Russa of the relief that Ms. Kelly is seeking in this matter.

34The information before the court, although not in the form of evidence, includes that Mr. La Russa has a significant criminal record, including for armed robbery. That information also includes that Tanner witnessed Mr. La Russa being removed from the trunk of a car and moved about at gunpoint. Last, the information before the court includes that Mr. La Russa has had no involvement in Tanner’s life since the summer of 2020.

35Assuming there is a grain of truth to the information about Mr. La Russa’s criminal record and the potential for Tanner to again be exposed to the criminal element of Mr. La Russa’s life, it is unlikely that Mr. La Russa’s claim for joint custody would succeed.

36In summary, I see no prejudice to Mr. La Russa if the stay is lifted of this proceeding and of Ms. Kelly’s claim is lifted, Ms. Jordan’s claim is resolved on consent, and Ms. Kelly is permitted to pursue her claim.

37I find that Ms. Kelly would, however, suffer financial prejudice if the stay of this proceeding is not lifted and she is, instead, required to participate in the Perth Proceeding with respect to the relief requested other than a divorce. She has incurred expenses for counsel to date in responding to Ms. Jordan’s Application and in advancing her own claim. To require Ms. Kelly to participate in the Perth Proceeding in that regard would require her to incur expenses for the same type of work to be repeated. She is a single mother of a young boy and is not in receipt of any financial assistance from Mr. La Russa.

38In summary, in balancing the interests of the parties as they relate to the second factor, the balancing identifies prejudice to Ms. Kelly if the stay is not lifted.

▪ Waste of Court Resources

39The primary objective of the FLR is “to enable the court to deal with cases justly”: r. 2(2). Dealing with cases “justly” requires that the court consider, amongst other factors, that the procedure is fair to all parties and the potential to save expense and time: rr. 2(3)(a) and (b), respectively. The court, counsel, and parties have an obligation to promote the primary objective of the FLR: r. 2(4). In addition, the court must promote the primary objective through its management of cases: r. 2(5).

40The only proceeding in which both Mr. La Russa and Ms. Kelly served a pleading is this one; no documents have been served in the Perth Proceeding except the notice of change. Mr. La Russa has taken no steps to either advance the Perth Proceeding or participate in a meaningful way in this proceeding.

41I find that the issues between Ms. Kelly and Mr. La Russa with respect to decision-making responsibility, parenting time, and other aspects of Tanner’s life can be dealt with expeditiously and without unnecessary expense by permitting Ms. Kelly to proceed to an uncontested trial of her claims.

42Mr. La Russa had notice that Ms. Kelly would, at this case conference, be seeking an order lifting the stay of proceedings. The court is therefore entitled to make an order in that regard: r. 17(8)(c).

▪ Summary

43For the reasons set out above, the automatic stay of this proceeding under s. 27 of the CLRA is lifted.

The Request for an Uncontested Trial

44Ms. Kelly requests that the court make a final order with respect to her claims. The relief sought includes a ‘no-contact’ order for Mr. La Russa with Tanner. As already indicated, while there is information regarding Mr. La Russa’s background before the court, there is minimal evidence before the court in that regard.

45The Affidavit for an Uncontested Trial is succinct. Additional evidence is required from Ms. Kelly in support of a number of the forms of relief requested. Either she files another affidavit for an uncontested trial in which she sets out the evidence upon which she relies, or she will be required to give viva voce testimony at the uncontested trial.

46For those reasons, a final order with respect to Ms. Kelly’s claims could not be made at the case conference.

Disposition

47This court orders as follows:

1. The stay of this proceeding, including both the Application and the claims advanced in the Answer delivered by Sarah Marie Kelly (misnamed in the title of proceeding as Sara Marie La Russa), pursuant to s. 27 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 is lifted.

2. On the consent of Jennifer Mae Jordan (“Jennifer”) and the respondent, Sarah Marie Kelly (“Sarah”), the child, Tanner Dakota Reuben La Russa (DOB: December 4, 2013 and “Tanner”) shall have contact with his paternal grandmother, Jennifer as follows:

a) Tanner shall be permitted to call Jennifer at any time that he wishes;

b) Sarah shall send Jennifer pictures and videos of Tanner once each quarter;

c) Jennifer shall be permitted to send Tanner letters/cards/gifts for special occasions to Tanner’s maternal grandmother, Anne Burgma’s residence;

d) Tanner shall be informed of this new contact plan with Jennifer, in an age appropriate manner, to reflect Jennifer’s concerns and shall be informed that Jennifer is happy to speak with and maintain contact with Tanner at any time that he wishes.

3. On the consent of Jennifer Mae Jordan and Sarah Marie Kelly there shall be no order as to costs between them with respect to the Application.

4. The claims advanced by Sarah Marie Kelly in her Answer in this proceeding shall proceed to an uncontested trial.

48I remain seized of the matter for the uncontested trial, save and except that a date for an uncontested trial is available before one of my colleagues before such a date is available before me, the uncontested trial may, at Ms. Kelly’s choice, proceed before any judge sitting in Ottawa.

49The costs of the case conference – both in August and October 2021 – are reserved to the trial judge.