SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-13-896 DATE: 2021-11-16
Parties
RE: A.M., Applicant AND: D.M., Respondent
Counsel
Mr. Mamo and Mr. Weisbrot, for the Applicant Mr. Ludmer, for the Respondent Ms. Pop-Lazic and Ms. Jamal, for the child, K. Ms. O’Byrne, Agent for Mr. Kay, for the child, J.
BEFORE: Conlan J. HEARD: November 15, 2021
ENDORSEMENT on motions
The Respondent Mother Moves for 23 Heads of Relief, Excluding Costs, Regarding Parenting
[1] In her Notice of Motion dated October 24, 2021, in addition to procedural orders, D.M. (the Respondent mother) seeks:
i. findings that A.M. (the Applicant father) has breached various provisions of Minutes of Settlement dated March 4, 2020 – items related to parenting time, therapy, family counselling, non-disparagement of the other parent, and other issues;
ii. an order that A.M. shall “strictly and without exception comply” with all of the provisions of the Minutes of Settlement that he is accused of having breached; and
iii. a host of other relief related to (a) therapy and counselling, (b) A.M. being required to acknowledge to the children the parenting role of D.M.’s current partner, (c) A.M. being required to ensure that there are no further breaches of the Minutes of Settlement, even if at the behest of the children, (d) A.M. being prohibited from saying certain things to the child K., (e) the children’s official records with various entities being made available to both parents, (f) A.M. being required to restrict the child J.’s access to money that he can use to leave D.M.’s home, (g) the child J. being prohibited from bringing a phone provided by A.M. to J.’s time spent with D.M., (h) requiring A.M. to contribute funds to an RESP for the child J. as a consequence of any further incidents of the child J. not attending and staying for his parenting time with D.M., (i) requiring make-up parenting time in favour of D.M., (j) requiring A.M. to deliver the child J. to D.M.’s home in Stoney Creek for her parenting time, (k) the appointment of a reunification therapist and family counsellor (Wendy MacKenzie, Joanna Seidel, or someone else chosen exclusively by D.M.), (l) requiring certain other things to be done with regard to that reunification therapist, and (m) police enforcement.
[2] It is a mammoth motion that would ordinarily be reserved for trial, in whole or in part. The proceeding is on the March 2022 trial sittings. In any event, here we are.
[3] I do understand the importance of the matter; I do not want to be seen as criticizing either parent or their counsel for proceeding with the hearing at Court, via Zoom, on November 15th. The full day had been set aside, and it was used for the submissions.
[4] I observe merely that many judges would have simply dismissed the requests on the basis that the trial is looming and the rough justice that is normally part and parcel of temporary orders on motions is incompatible with the sheer volume of material filed and the extent of the relief sought. I elect not to do so, though my reasons are necessarily more abrupt than they may otherwise have been. I cannot afford to reserve on the matter without risking a result that is largely moot.
The Applicant Father Moves to Strike Evidence Filed by the Respondent Mother
[5] In response, in his Amended Notice of Motion dated November 10, 2021, A.M. asks that certain material contained in the filings of D.M. be struck, under 1(8.2) of the Family Law Rules.
[6] That subrule provides that 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.
[7] The material that A.M. seeks to strike is as follows:
i. D.M.’s Form 35.1 Affidavit sworn on September 8, 2021 – paragraphs 1 through 15, and 18; and
ii. D.M.’s Form 35.1 Affidavit sworn on November 8, 2021 – paragraphs 1 through 21, 25, and 28 through 41.
[8] There is alternative relief sought as well. If the material is not struck, then A.M. wants an order that D.M. shall provide evidence to support the said allegations within 30 days, and he also wants an order granting him leave to question D.M. on the two affidavits.
[9] I will not set out, verbatim, the content of the impugned evidence. Suffice it to say that it deals with everything from alleged abuse and intimidation of the children by A.M., conduct of A.M. in pretending to be the children while sending electronic messages to D.M., A.M. forcing the children to lie to persons in authority, A.M.’s criminal past, A.M.’s attempts to financially starve D.M., A.M. having raped D.M., A.M. mocking D.M. about her past sexual contact with D.M.’s father, A.M. burning pictures of D.M. in the presence of the children, A.M. stealing D.M.’s property, A.M. physically abusing D.M., A.M. verbally abusing D.M. and the children, A.M. bad-mouthing D.M. in front of the children, A.M. telling the children that D.M. will kill herself, A.M. being the subject of multiple no-trespass orders issued by schools and other authorities, A.M. interfering with the children’s education and school attendance, A.M.’s current criminal charge that involves defamatory libel, A.M. not complying with his financial settlement responsibilities, A.M. unilaterally changing the children’s disability benefits, A.M. causing trouble for D.M. with Canada Revenue Agency, A.M. being in arrears of section 7 expenses for the children, A.M. getting D.M. evicted from her housing, A.M. being irresponsible about the children’s Health Cards, A.M. withholding the children from D.M., A.M. threatening D.M.’s respite workers, A.M. unilaterally changing the children’s service providers, A.M. stalking D.M.’s home, A.M. showing a pedophile video to the child J., A.M. failing to provide proper financial disclosure, and A.M. just plainly and simply abusing and controlling D.M. and destroying her relationship with the children.
[10] It is quite a litany of salacious and despicable behaviour, alleged.
[11] There is considerable overlap in that the two impugned Forms 35.1 contain many of the exact same or very similar statements.
[12] When this Court advised counsel for A.M., during the hearing, that D.M.’s two Forms 35.1 were not being considered in any way on the adjudication of the mother’s motion, counsel still pursued the motion to strike, arguing that the impugned evidence could be relied upon at trial.
The Documents Filed by the Parents on the Two Motions
[13] In addition to a factum, D.M. filed (i) a Form 35.1 sworn by her on September 8, 2021, (ii) an affidavit in her name sworn on October 24, 2021 (109 paragraphs and 80 pages in length including exhibits), (iii) an affidavit in the name of her current partner sworn on that same date, (iv) another affidavit in her name sworn on November 8, 2021 (37 paragraphs and 38 pages in length including exhibits), (v) a Form 35.1 sworn by her on that same date, and (vi) another affidavit in her name sworn on November 10, 2021 (84 paragraphs and 41 pages in length including exhibits).
[14] Further, D.M. has filed a behemoth four-volume “Brief of Court Record Documents”, consisting of hundreds and hundreds of pages of material – professional reports, court orders, endorsements, pleadings, and so on.
[15] On top of his factum, A.M. filed (i) an affidavit in his name sworn on October 24, 2021 (42 paragraphs and 47 pages in length including exhibits), (ii) another affidavit in his name sworn on November 8, 2021 (109 paragraphs and 161 pages in length including exhibits), and (iii) another affidavit in his name sworn on November 10, 2021 (67 paragraphs and 18 pages in length including exhibits).
[16] It should be noted, as I said to all counsel and the parties during the hearing at Court on November 15th, I did not read and have not considered anything filed by either parent on November 15th. I think the above is quite enough.
[17] I did return to the salt mine on Sunday, November 14th, and whatever was on CaseLines that afternoon was read. Anything that wasn’t, wasn’t.
Input from Counsel for the Two Children
[18] Counsel for the child, K., has also filed materials – an affidavit of a law clerk sworn on November 8, 2021, and a factum. That affidavit outlines information provided by K. to his counsel on October 30, 2021.
[19] K. is currently 22 years old. He has a G2 Driver’s Licence. He has his own vehicle that he pays for. He receives disability payments. He attends college, with an expected completion date of April 2022. His current co-op placement is at Tim Horton’s. He has a girlfriend.
[20] K.’s disability benefits are the result of his autism and cognitive limitations.
[21] In their factum, counsel for K. take the position that this Court should respect K.’s decision to not pursue a relationship with D.M. at this time and refrain from making any further order that implicates K.’s personal freedoms or autonomy.
[22] As well, counsel for the child, J., now 19 years old, has filed a factum. The position of counsel for J. is that J. should not be compelled by this Court to do anything that he does not want to do.
[23] J. was professionally assessed in November 2018 and found to be continuing to exhibit symptoms of Autism Spectrum Disorder. He has an intellectual disability that is significant and a developmental level of around 7-8 years old, according to the assessor.
[24] J. also meets the criteria for other diagnoses – Attention Deficit Hyperactivity Disorder and Unspecified Anxiety Disorder.
[25] The factum filed by counsel for J. sets out some examples of J. being able to show his independence – cooking, going to the store on his own, going to a hotel pool and gym on his own, starting a car by himself, calling a taxi on his own, and using public transit independently.
[26] Both Mr. Stephen Cross (the family’s reunification therapist) and counsel for J. have stated that J. has been clear and consistent that he does not want to follow the parenting schedule and, in particular, does not want to spend any overnights at D.M.’s home.
[27] Neither child’s counsel takes any position on A.M.’s motion to strike. Their filings are focussed entirely on D.M.’s motion for compliance. They did not participate in that portion of the Court hearing on November 15th that dealt with the father’s motion to strike.
[28] In oral submissions, counsel for each child stressed the importance of that child’s right to self-determination, his right to autonomy, and his clear views and preferences.
Input from Mr. Stephen Cross, Family Therapist
[29] Mr. Cross authored a recent report about the family. In that report, found at the end of volume 4 of the Brief filed by D.M., Mr. Cross speaks about the sad estrangement of the two children from their mother. He states, emphatically, that A.M. has not done enough to facilitate a healthy relationship between the two children and D.M. He states further that the common thread in the children’s reasons for having nearly severed their contact with their mother is D.M.’s current partner. He concludes the said report with these words, “without the full cooperation of [A.M.], my efforts shall likely continue to be futile. It is imperative that [A.M.] be able to support the boys in having healthy contact with their mother”.
This Case is a Special One, with Special Circumstances
[30] As is evident from the above, neither of these two children is a minor. Everyone acknowledges that this Court would not be entertaining any further parenting order today if not for the children’s disabilities.
[31] Hereinafter, I prefer to say “K.” and “J.”, rather than “child” or “children”.
The Current Court Order About Parenting
[32] As indicated above, the parents signed comprehensive Minutes of Settlement dated March 4, 2020. Those Minutes of Settlement were made into a Final Court Order granted by Justice Kurz on March 5, 2020.
[33] That Order is still in effect. It provides, in very brief summary, for a 2/2/5/5 schedule for J.’s time with each parent (equal division). It provides for K. to reside on his own or with A.M., with additional provisions for extra time and overnights between K. and D.M.
[34] To be clear, the current Order does not provide a parenting schedule for K., as it does for J.
Analysis of the Mother’s Motion
[35] First, the procedural relief requested by D.M. at clauses 1 and 2 of her Notice of Motion is granted. Clause 1 (regarding service) was unopposed. Clause 2 was opposed in the sense that Mr. Mamo observed that the mother’s factum was served relatively late, is very lengthy, and contains dozens and dozens of case citations in the endnotes.
[36] Nevertheless, I read that factum. There is no prejudice to A.M.; he also filed a very thorough factum, and few cases were actually commented on by counsel on all sides during oral submissions.
[37] Moving now to the substantive relief being sought by D.M., some more general comments are instructive.
[38] In what I will refer to as being this type of “compliance motion”, I think that I should ask myself these four questions:
i. what specific term(s) of the existing court order(s) is/are not being complied with;
ii. why, or how, is the said term(s) not being complied with;
iii. what should be done about the non-compliance; and
iv. is whatever the court is contemplating doing in the best interests of the child(ren)?
[39] Question number one is a prerequisite to the court granting any relief at all. If the moving party is unable to establish on a balance of probabilities that there is a term of the existing court order that is not being complied with, then that is the end of the matter.
[40] Question number two is not designed to attribute fault to one parent or the other, or to a child for that matter. The enquiry is designed to facilitate an understanding as to the reason(s) for and the nature of the non-compliance so that the court will be in a better position to address the third and fourth questions.
[41] Question number three deals with the remedy for the non-compliance. And question number four is a reminder for the court that if that remedy deals with decision-making responsibility, parenting time, contact, or anything that affects the child, it must be found by the court to be in the best interests of the child.
[42] The reader will notice that I have focussed the analytical framework around the fact of non-compliance rather than around the target of the alleged violative behaviour – the father. That is deliberate. I do not think that it serves anyone’s interest to concentrate exclusively on whether A.M. has done something, or omitted to do something, in contravention of the existing Order. Further, it is naïve to think that any one person is solely responsible for non-compliance of the kind complained of here.
[43] At clause 3 of her Notice of Motion, the mother has identified five categories of terms in the March 4, 2020 Minutes of Settlement (which agreement is the equivalent of the Order that incorporated those Minutes) that she says have been breached by A.M. – (i) parenting time provisions, (ii) therapy provisions, (iii) family counselling provisions, (iv) acknowledgement of the children as “children of the marriage” provisions, and (v) parental covenants and non-disparagement clauses.
[44] Unfortunately, with a few exceptions, the mother has not been precise in her Notice of Motion, or in her factum, or in any of her affidavits, as to what specific term(s) of the Minutes of Settlement has/have not been complied with.
[45] In any event, let us deal with each category of terms identified by D.M. at clause 3 of her Notice of Motion, in the order that they appear in the Minutes of Settlement.
“Children of the Marriage” Provisions
[46] At the time that the Minutes of Settlement were executed, K. was already an adult. At clause 1 of the Minutes, however, it was expressly agreed by the parents that K. was a child of the marriage and would remain so “until such time as he is able to withdraw from parental care despite his autism and cognitive disabilities”.
[47] I see nothing in the record before me that would suggest that the said term has not been complied with. Neither parent is taking the position, today, that K. is no longer a child of the marriage. Neither parent is taking the position, today, that K. has withdrawn from parental care.
[48] Whether K. has withdrawn from parental care is certainly not a finding that this Court will be making on this motion. That will have to be determined at the trial in March 2022. Until then, K. remains a child of the marriage.
[49] At the time that the Minutes of Settlement were executed, J. was not an adult (he was between 17 and 18 years old). He is an adult now. At clause 1 of the Minutes, it was expressly agreed by the parents that J. would remain a child of the marriage “until such time as he is able to withdraw from parental care despite his autism and cognitive disabilities”.
[50] The above comments apply equally to the term of the Minutes dealing with J. I find no breach.
Parenting Time Provisions
[51] Unquestionably, the parenting schedule terms of the Minutes of Settlement, as they relate to J. (starting at clause 7 of the Minutes and continuing through to clause 10), have not been complied with.
[52] In fact, the intended equal sharing of parenting time for J. has been so chronically and extensively a fiction that the Order has turned into nothing more than a scrap of paper, a memento of a past bargain between the parents and not much more than that.
[53] J. has not spent one single overnight with his mother in months. Nothing further needs to be said.
[54] As for why or how this has been allowed to occur, I accept the thoughts of the only truly independent person who has provided information to this Court – the jointly retained professional reintegration therapist, Mr. Stephen Cross.
[55] It serves no purpose to demonize anyone in this Endorsement. Suffice it to say that, per Mr. Cross in his recent report found at the conclusion of volume 4 of the Brief filed by the mother, and I agree, the person primarily responsible for the non-compliance with the Court-ordered parenting schedule for J. is the father, A.M.
[56] Yes, it is true that the most immediate reason for the non-compliance is that J. has stated that he does not want to go to his mother’s place. But J. is a child in the eyes of this family court proceeding. In fact, the only professional assessment evidence of J.’s functioning, in the record before this Court, is that completed in late 2018 which places J. at the level of a young child less than ten years old.
[57] The decision whether to comply or not with a parenting time or contact order (formerly referred to as access) cannot be left up to a child. A.M. has a positive obligation to do everything that he reasonably can, to take every concrete measure available to him, to ensure that J. follows the Court-ordered, on consent, parenting schedule. Godard v. Godard, 2015 ONCA 568, at paragraphs 28-29.
[58] A.M. has not done so, in the eyes of Mr. Cross. I accept that.
[59] What should be done about it? I agree with Mr. Mamo that there is no point making an order that the prior order shall be complied with. More paper does not increase the chance of better compliance.
[60] But I am persuaded on balance that something needs to be done. And now. It cannot wait until the trial in four months. The parents were convinced that equal parenting of J. was in his best interests when the Minutes were signed in March 2020, and there is nothing in the evidence before me to suggest that the said sentiment does not remain as strong today as it did then.
[61] In the best interests of J., and to do whatever this Court can to salvage a healthy relationship between D.M. and J. sooner than later, I order as follows:
i. A.M. shall use his very best efforts to ensure that the parenting schedule for J., as outlined in the Minutes of Settlement dated March 4, 2020, is followed without exception;
ii. A.M. shall, commencing immediately, start a journal, handwritten or electronic, in which he shall write down or type in the steps that he has taken, on a daily basis, to ensure that the said parenting schedule is followed without exception;
iii. those “steps” shall include not only the actions taken by A.M. but also what he says to J. as part of his very best efforts to ensure that the said parenting schedule is followed without exception;
iv. the journal referred to herein is not privileged and is open to disclosure requests made on behalf of D.M. and/or by counsel for J. and K.;
v. A.M. shall offer to spend time with J. and D.M.’s current partner, the three of them together, and A.M. shall encourage J. to accept that offer;
vi. A.M. shall make enquiries of D.M.’s current partner in order to learn more about his background, employment history, family, hobbies, and interests, and A.M. shall use that information to speak, regularly, with J. about D.M.’s current partner in a positive way;
vii. A.M. shall write a short and simple letter addressed to J., D.M., and D.M.’s current partner, all three of them, telling them that he wants J., D.M., and D.M.’s current partner to spend time together and stating why he thinks that is a good thing for all concerned;
viii. A.M. shall not in any way facilitate, assist, or encourage J. to not attend with D.M. or to leave where D.M. is when J. is required, under the parenting schedule, to be with D.M.;
ix. A.M. shall not say anything to J. that is negative, critical, disparaging, or demeaning about D.M. or D.M.’s current partner, and further A.M. shall not permit K., in the presence of A.M., to say anything to J. that is negative, critical, disparaging, or demeaning about D.M. or D.M.’s current partner; and
x. A.M. shall immediately redirect J., and say that he does not agree with J., if J. says anything that is negative, critical, disparaging, or demeaning about D.M. or D.M.’s current partner, and further A.M. shall immediately do the same with K. if K., in the presence of A.M. and J., says anything that is negative, critical, disparaging, or demeaning about D.M. or D.M.’s current partner.
[62] The within Temporary Order supplements, and does not substitute for, anything contained in the existing Court Order. The existing Court Order, based on the March 2020 Minutes, shall remain in place, unchanged. This is a new Temporary Order. It must be adhered to in its entirety.
[63] I appreciate that the within Temporary Order includes provisions that are unusual and that may stretch the bounds of this Court’s jurisdiction. So be it. I make no apologies for that. I am doing what I think is right for J.
[64] There could have been other terms inserted into the within Temporary Order, but we have to be practical here. Ten affirmative obligations on the part of this father, in addition to everything else contained in the existing Court Order, amount to a substantial commitment on his part. Anything more would be counter-productive, in my view.
[65] I am not ordering make-up time for J. and his mother. Given the recent report of Mr. Cross, and given the length of time that the current near-estrangement between J. and his mother has persisted, and given the special needs of J., I am not persuaded that such an order would be in J.’s best interests. It would effectively mean that J. would have to suddenly adjust to being with his mother almost constantly between now and the March 2022 trial date. That is not a reasonable thing to expect of J., in my opinion.
[66] I am not making any order regarding parenting time between K. and D.M.
[67] I agree with A.M. when he states in his affidavit material and in his factum that K. and J. should not be treated the same. They were not treated the same when the Minutes of Settlement were executed, and there is no reason to depart from that today. K. is a fair bit older than J. K. is a fair bit more removed from parental control than J. K. is a fair bit more independent than J. K., unlike J., has never been the subject of a specific parenting time regime agreed to by the parties or ordered by the court. Finally, K. has been estranged from his mother for a longer period of time, and in a deeper way, than can be said of his brother.
[68] The existing Court Order for K. remains unchanged, but I decline to find that there has been non-compliance with its parenting time provisions, and I therefore decline to make any additional order today regarding K., except for the therapy dealt with below.
[69] Let me be clear, however. I agree with Mr. Cross that this is a sad case. For some reason, which reason I am convinced has absolutely nothing to do with the parenting of D.M. or her current partner, K. is completely estranged from his mother, and J. is at serious risk of going the same way. It is terrible.
[70] Although unnecessary to say this, I also want to make it clear that I do not for a moment believe that D.M. or her current partner has ever said anything to J., or done anything to J., that would explain J.’s current stated wishes. Any alleged stories about driving around with someone locked in the trunk of a vehicle and/or threatening that someone will not go to heaven because of his bad behaviour are just that – tales. I do not believe them to be true.
[71] Mr. Ludmer is absolutely correct, and I wholeheartedly agree with him, that these types of allegations are not only patently false but so hurtful that they ought to provoke outrage in even A.M. He must disbelieve the allegations himself, otherwise he would of course ask the Court to keep J. (and K.) away from D.M. completely. He has not made that request. Instead of saying things to Mr. Cross like “he is running away from something”, referring to J., A.M. should be standing up to J., calling him out on the nonsense (because that’s what it is), and sending to J. the clear and unequivocal message that A.M. does not support any degree of reluctance on the part of J. to spending time with D.M. and her current partner.
[72] There is a disconnect, a serious one, in how A.M. is dealing with J., in my respectful view. On the one hand, he encourages this Court to accept, and he told Mr. Cross directly, that J. has a developmental age of a teenager (despite the last professional assessment report that says otherwise). Yet he chooses to coddle his son’s irrational opinions about D.M. and her current partner as if J. is a very young child that cannot handle being told that he is speaking pure nonsense. That disconnect needs to stop.
[73] More is required of A.M. More is to be reasonably expected of A.M. I agree with Mr. Cross. Hence, the within Temporary Order.
Therapy, Family Counselling, Parental Covenants, and Non-Disparagement Provisions
[74] On the record before me, I am unable to conclude that there has been any non-compliance with any parental covenants (not dealt with above) or non-disparagement provisions of the March 2020 Minutes of Settlement.
[75] The same applies to the issue of family counselling. Frankly, I am not sure what the mother is referring to; perhaps the counselling is the same as the therapy with Mr. Cross.
[76] As for the therapy with Mr. Cross, referred to at clause 12 of the Minutes of Settlement and in other places of the agreement, it has been an abject failure, through no fault of D.M., or her current partner, or Mr. Cross. The abysmal result is because, plain and simple, there has been non-compliance with subclause 13(c) of the Minutes – A.M. has not participated in good faith in the therapeutic process as requested by Mr. Cross.
[77] As just one concrete example, when Mr. Cross recommended to A.M. that K. have his driving privileges suspended on account of his non-cooperation with the therapeutic process generally, and specifically with Mr. Cross’ request that K. apologize to his mother for hanging up on her when she telephoned him on his birthday, A.M. appeared to hesitate. “Any parent wishing to send a strong message to their son, would have immediately suspended [K.’s] driving privileges”, Mr. Cross writes in his recent report (page 16). I agree.
[78] What is evident from the recent report of Mr. Cross, as a whole, is that A.M. has not shown the same passion, the same commitment, the same zealous drive, in support of the therapeutic process as compared to D.M. That means that A.M. has not participated in good faith.
[79] What should be done about it? I think that it is in the best interests of K., and of J., to continue therapy/family counselling, in whatever format the professional deems appropriate. I also think that the therapy/family counselling should continue with Mr. Cross, failing which it should continue with another professional selected exclusively by D.M. but approved by the court.
[80] If it is someone else besides Mr. Cross, the court approval can be obtained quickly, via a basket motion, and that will address Mr. Mamo’s point about this Court having insufficient information about the two professionals suggested in D.M.’s motion materials.
[81] Respectfully, I do not understand why counsel for K. and J. do not support continued therapy/family counselling. I appreciate that neither K. nor J. has expressed a desire to continue that process, but regardless of whether one chooses to respect their wishes about contact with their mother as per the Minutes of Settlement, one would think that one cannot reasonably respect their wishes about continued therapy/family counselling.
[82] Why do I say that? Because there is something seriously unhealthy about the current situation. That seems an inescapable conclusion. If the upcoming trial in March 2022 is going to have any utility in conducting a responsible review of the current Order in place, then we surely cannot abandon any hope of reintegration four months before the trial even starts. That seems equally inescapable. The therapy contemplated by the agreement reached in March 2020 did not even get a fair chance to succeed. And there was never any hard cap placed on how long it would last.
[83] I respect the self-determination and personal autonomy rights of K. and J., expressions used frequently in the written and oral submissions of counsel for both. But there is a limit to that respect. It cannot be used to trump all else, even therapy/family counselling that I believe to be clearly in their own best interests.
[84] Thus, this Court orders that the family (K., J., D.M., D.M.’s current partner, and A.M., and anyone else deemed appropriate by the professional therapist) shall, without delay, engage the services of Stephen Cross, or such other professional to be chosen exclusively by D.M. but to be approved by the court, for family therapy/counselling, the format, duration, and details of which are to be dictated by the professional therapist.
[85] There is no time to waste going back and forth on the selection of an alternate therapist, if necessary. That is why I have permitted D.M. to decide who it will be, if not Mr. Cross, subject to court approval.
The Mother’s Motion, in all other Respects
[86] Except where expressly indicated above, that is the (i) procedural relief granted, (ii) the relief granted under the heading “parenting time provisions”, and (iii) the relief granted under the heading “therapy/family counselling provisions”, all other relief sought in D.M.’s Notice of Motion, besides costs dealt with below, is dismissed.
[87] I am not satisfied that any of it is appropriate, or that any of it is necessary in the best interests of K. and/or J., especially with the looming trial.
Analysis of the Father’s Motion
[88] For the brief reasons that follow, A.M.’s Amended Notice of Motion is dismissed, except for the following proviso.
[89] This Court orders that A.M. shall have leave to question D.M. on the content of the two impugned Forms 35.1 between now and the trial date.
[90] I take no issue with the state of the law, interpreting 1(8.2) of the Family Law Rules, as outlined in paragraphs 104 through 110 of A.M.’s factum. In short,
i. affidavit evidence that is clearly unrelated to the issues at hand is susceptible to being struck on the basis that it is inflammatory, a nuisance, and a waste of time, never mind the fact that inflammatory allegations only serve to impede (rather than foster) the resolution of family law disputes – Frick v. Frick, 2016 ONCA 799, at paragraphs 43 and 44;
ii. allegations contained in an affidavit that are based on unsworn, untrue hearsay statements are classic targets for a motion to strike – Mohajeri v. Stroedel, 2020 ONSC 6554, at paragraph 11;
iii. an affidavit should not contain argument, and where it is based on third party information it should clearly state that, along with identification of the source of the information and a declaration that the affiant believes that information to be true – Callwood v. Callwood, 2020 ONSC 3657, at paragraphs 27, 28, and 31; and
iv. hyperbolic language and rhetorical flourishes might be good for storybooks but are bad for affidavits – Alsawwah v. Affi, 2020 ONSC 2883, at paragraphs 107-108.
[91] I have serious concern about the propriety of a few of the allegations contained in the impugned Forms 35.1, such as how A.M. being in arrears of section 7 expenses could possibly rise to the level of violence or abuse as contemplated by the legislation referred to at clause 8 of the Form, however, this is not a make-work project.
[92] I stated clearly to counsel that I was not relying upon the Forms for my decision on D.M.’s motion. Further, the Forms are inadmissible at trial without an order from the trial judge. Unless and until the trial judge orders that the evidence of the parties can be inclusive of prior affidavits, which is not the normal practice, then the issue is moot.
[93] That the Forms are required to be filed under 23(1), clause 3.1, of the Family Law Rules, as part of the Trial Record, is of no consequence to this discussion. The issue is still moot. Contrary to what is sometimes assumed by litigants and counsel, the Trial Record is not evidence at trial.
[94] An issue is moot if what was a tangible and concrete dispute between the litigants has disappeared, such that the issue has become academic. New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, at paragraph 41, citing Borowski v. Canada (Attorney General), 1989 123 (S.C.C.).
[95] Given this Court’s clear position on the impugned Forms vis a vis the within decision, and given the presumptive inadmissibility of the Forms as evidence at trial, the issue is indeed academic.
[96] Although I retain the discretion to decide something that is moot, I decline to exercise that discretion here. This is more of a distraction than anything else, at least for the here and now.
The Result
[97] D.M.’s motion is allowed in part, and temporary orders have been made regarding (i) procedural relief, (ii) parenting time relief, and (iii) therapy/family counselling relief.
[98] The rest of what the mother sought in her motion is denied.
[99] A.M.’s motion is dismissed, but for the single proviso delineated above.
Costs
[100] If costs cannot be settled between the parties, a brief Zoom attendance can be arranged with the trial office in Halton to address that issue. Thirty (30) minutes total, for everyone who wants to be heard, to be set aside. Bills of Costs, with supporting dockets, and offers to settle may be filed in advance. No written submissions are permitted to be filed.
[101] I am grateful to Mr. Ludmer, Mr. Mamo, Mr. Weisbrot, Ms. Pop-Lazic, and Ms. O’Byrne, for their oral submissions at Court on November 15th. And all counsel I would like to commend for their very thorough and helpful written materials.
“C.J. Conlan”
Conlan J.
Date: November 16, 2021