Court File and Parties

Court File No.: FC-21-404-00 (Hamilton Family Court) Date: 2022-02-11

SUPERIOR COURT OF JUSTICE - ONTARIO

Re: D.C.A., Applicant And: A.E.C., Respondent

Before: Honourable Justice D.J. Gordon

Counsel: Applicant appearing in person J.L. Swan, for the Respondent

Heard: February 4, 2022

ENDORSEMENT

[1] In her motion of January 18, 2022, returnable on February 2, 2022, the respondent mother seeks an order for costs pursuant to Rule 1(8), Family Law Rules, and the order of Chappel J., granted December 13, 2021.

Background

[2] D.C.A., the applicant father, and A.E.C. are the parents of E.A.C.. The child is less than 3 years of age. This is a high conflict case involving parenting and other issues. A case conference was held in August 2021 and several temporary orders have been granted as a result of motions brought by each of the parties.

Order Granted December 13, 2021

[3] The parties appeared before Chappel J. on December 13, 2021. Each had presented a motion. Submissions were received. Later that day, Chappel J. released her endorsement. The resultant order was prepared and issued on a later date.

[4] In this order, Chappel J. varied a prior order granted by MacLeod J. on September 10, 2021, and directed father’s parenting time to be supervised by the Children’s Aid Society of Hamilton or Thrive Counselling. Of interest on the present motion are additional terms imposed in paragraphs 8 and 9, namely:

“8. All communications between the parties shall be through counsel or another third party agreed upon in advance in writing. The Applicant’s communications with counsel and any third party agreed upon for communication purposes shall be subject to the following terms and conditions:

a) his comments shall be strictly limited to issues pertaining to the child;

b) his messages shall be brief, informative, and courteous; and

c) without limiting the generality of subparagraphs (a) and (b), he shall refrain absolutely from making derogatory comments about counsel, any agreed upon third party or the Respondent, and shall refrain from setting out personal opinions regarding their character.

9. In the event that the Applicant breaches the terms set out in paragraph 8, the Respondent may apply for an order for costs in connection with each breach pursuant to Rule 1(8)(a) of the Family Law Rules.”

Events Since Motion

[5] In her affidavit, sworn January 18, 2022, the respondent asserts that twenty-five emails and text messages have been delivered by the applicant to her or Ms. Swan in contravention of paragraph 8 of the prior order.

[6] The following are portions of some of these communications:

i) December 13, 2021, at 7:55 p.m., to Ms. Swan:

“What’s it going to take for [E.A.C.] to get her daddy back. I get it your protecting your client financial best interest. But really. What is it going to take for [E.A.C.] to get her daddy back. The daddy that she loves and adores, makes decisions with and has meaningful moments with. The daddy that she makes memories with. You know that you’re client is only setting [E.A.C.] up for the life that she had as a displaced young lady. I’m sorry that you feel that I have a vendetta against you but I do now and…it’s legitimate. For [E.A.C.]. Because you suck it hard Ms. Swan. Really Hard. You’re the monster that I hope to rid [E.A.C.]’s life of. Just saying.

So for [E.A.C.] it’s going to be CAS or nothing. See you at that bullshit settlement conference that they’re forcing to do.”

ii) January 6, 2022, at 8:54 p.m., to Ms. Swan:

“Ask for it if you want but you were given an opportunity to secure your settlement yesterday. I’m sorry that you feel that you can push me around but your bullying tactics are falling on deaf ears. Don’t worry. I’ll make sure that you pay for how you’re supporting my daughters abuse. It’s that simple for me. As long as it takes. You will pay with your career. Even if you’re retired. I plan on living that long”

iii) January 6, 2022, at 11:08 p.m., to Ms. Swan:

“Is this why you’re trying to bully me into accepting this agreement for $750. I’m just wondering why you are financially bullying me out of [E.A.C.]’s life. Is it a matter of statute or like before when you had a vendetta against me for your personal treatment by Justice MacLoed on September 8 2021, who wasn’t in your pocket like Ms. Chappell and Mr. Pazzaratz.

You do know that Mr. Pazzaratz comments on that day were a huge breach of trust by the judiciary and in complete contraventions to [E.A.C.]’s and my right to due process as per the Charter of Human Rights of Canada. Yes, I quoted that correctly and I will also quote 200+ more cases of precedence when we head to court again at trial because your client is a fraud. Your asinine 100’ restraining order is a joke all around the child welfare community of Hamilton, just so you know. Your are a joke to the CAS, Strive, the CHCAS, several psychiatrist and psych therapists and most of the legal community in Toronto. You thought I was a dumbass but don’t worry, I will make sure that your reputation is worthless by the time that we’re done. That process is well underway. You should have worked with me from the start.

By the way, when will I finally get your clients cooperation in providing me with [E.A.C.]’s Birth Certificate so that I can have it changed as she agreed to under Justice Reid’s order. I’ll also need to know, in an email and not by Official Court Documents that your client doesn’t wish to negotiate with me ever. You know, an affirmation from her that she never wants to negotiate with me. We haven’t agreed on that yet though your clients submission at the Settlement Conference seems to indicate that she never wanted to cooperate in [E.A.C.]’s best interest ever. I’ve been asking that question for 8 months so it’s probably time that you answer it directly, unless you’re still unwilling to cooperate with me, which is your clients prerogative, though absolutely detrimental to [E.A.C.]’s well being in every court. As was emailed to Ms. Bell, you have until Monday January 10 2022 at 2 pm to respond, after that date I will be submitting our case for review by the Supreme Court of Canada for Judicial and Professional Malfeasance which shouldn’t be too hard given the Hamilton Superior Family Courts exposure to that environment.

This case should have been a simple determination of parenting time and parentage for [E.A.C.]. You alone Ms. Swan, have decided to procure your clients obedience in a conflicted environment for [E.A.C.] for your clients financial well being, which financially benefits you as well. Given that there are no financial issues other than support in our case I believe that I won’t have any trouble proving this. Our trial will see to that. Your professional misconduct has been dealt with by me personally immediately following Mr. Pazzaratz’s inappropriate comments about your professionalism at the settlement conference.

Your have until 2pm on Monday January 10 2022 to make your clients intentions aware to me. After that date I will pursue all, including the highest avenue, to make sure that all parties at fault get their just deserves.

You really should have just been honest with me from the start about your clients unwillingness to be cooperative with me. I get it though you’re a liar… I mean Lawyer… no….I meant liar.

Empowered by your personal blatant corruption,”

iv) January 6, 2022, at 9:30 p.m., to A.E.C.:

“I hope you’re happy. You’re unwillingness to help [E.A.C.] have a happy life over your own financial well being will cost your lawyer her career. But you never cared how your actions hurt others…especially [E.A.C.]. You’re a dolt.”

v) January 6, 2022, at 9:24 p.m., to Ms. Swan’s law clerk:

“Subject: Your Jackass Boss

Hi,

Please advise Ms Swan that her efforts to thwart justice for [E.A.C.] are being treating as such. The proper authorities have been notified about the Judicial prejudice in FC-21-404-00 and that Ms. Swan herself has been named as a complicit participant in this corruption of justice for [E.A.C.].

Should Ms. Swan decide to settle this issue of costs for the previous motion hearing as she previously suggested in an email, am willing to settle for $4.00. That is my offer. I understand that Ms. Swan can work the rules better than me but her solicitation of a reprimand for me from Justice Pazzaratz crossed a very thick line from a human rights pint of view.

Please tell Ms. Swan that if she wants to keep accepting the rope that will hang her and her client then she is more than welcome to accept it but I will never succumb to a bully anywhere. I have never and I will not.

Ms. Swan and [A.E.C.] have until 2pm Monday January 10 2022 to respond to my request for appropriate supervised parenting time made yesterday. In the absence of that response I will be forced to bring more motions before the court at that time.

Please also express to Ms. Swan that I am even more focused on bringing her to lack of professionalism to light because of Justice Pazzaratz’s unsolicited comments at the Settlement conference.

I eagerly await [A.E.C.]’s (Swan’s) cooperation in providing [E.A.C.] with a healthy coparenting environment, or we can see how it plays out.”

vi) January 13, 2022, at 10:23 p.m., to Ms. Swan:

“My desire is to be amicable with your client about [E.A.C.]’s parenting time and that fact should be very clear to you by now with Justice Chapell’s order.

Despite our personal difference, Ms. Swan, [E.A.C.] should not have to suffer because you don’t want to recognize me as a legitimate litigant. We need to talk in [E.A.C.]’s benefit ASAP.

Unfortunate side affects aside, [E.A.C.] is willing and agreeable to unsupervised time with me like she is used to. I have 240hrs of video proof of that…. with [E.A.C.]’s own determinations recorded as to where she wants to be included. I am, and have always been, open to negotiating [E.A.C.]’s future whatever that looks like with your client so please make her aware of that forthwith. Until your client recognizes that I will be an integral part of [E.A.C.]’s life starting immediately there will be no agreement in [E.A.C.]’s benefit.

Please make sure that your client receives this prior to our COSTS hearing where no one benefits but you.

Poppa D.

Just saying Jenny but that’s probably what she wants. That’s what she should be able to enjoy. Keep hurting my daughter and see where it gets you.

I promise that I will never stop seeking an Equal relationship and living arrangement for [E.A.C.] as long as I’m alive. She is what I live for. My other kids are misguided missiles and I’ll pick up their pieces when they let me. For now, I am 100% about [E.A.C.] having her daddy. All of the time.

I know how this works, merry Christmas and Happy New Year.”

vii) January 17, 2022, at 9:21 p.m., to Ms. Swan; and A.E.C.:

“Diony worry. I’m on top of what is [E.A.C.]’s well being even though you’re both lost. So here’s the deal [A.E.C.]. When your idiot, reactive, incompetent lawyer decides that [E.A.C.]’s best interest is what matters…that’s when we’ll talk. Until then you’re enemy number one because you’re in Jswans camp.

When you start thinking for yourself we can talk. Ok child.

viii) January 18, 2022, at 3:05 a.m., to A.E.C.:

“I just spoke to [M.] at Thrive counselling and she hung up on me when I asked her for proof of your registration. I’m in contact with the director of services because I believe that your lawyer is trying to keep [E.A.C.] from her parenting time again. That’s why Brayden pulled out. Because I showed them how they were not a neutral third party. WHATS THE FUCKING PROBLEM LADY.

You’re getting child support and I successfully made me her dad…even though you’re in contempt of that order. When does this end for [E.A.C.]? I would have had it done for her in April but you’re a special kind of abuser aren’t you. This doesn’t end until she tells to stop it. See you in court in a couple weeks. Maybe you should take into consideration what’s best for her and stop deciding to do what’s best for your lawyer.

I would say that I sleep better than you at night except you’re a psychopath. Good luck during the next 13 years of court. That’s what you wanted right.”

[7] In the responding affidavit of D.C.A., sworn January 26, 2022, there is no reference to the affidavit of A.E.C. or the emails and messages attached as exhibits. Rather, his affidavit focuses on parenting, complaining about a lack of co-operation from A.E.C. and Ms. Swan as well as the conduct of Ms. Swan and judges involved in this case. It appears D.C.A. assumed, incorrectly, that his confirmation served as a motion, expecting to address his request for a repeal of the order of Chappel J., equal parenting time and other matters. In the absence of evidence from D.C.A., it might be presumed he acknowledges the communications are improper.

[8] I advised D.C.A. that only the motion of A.E.C. was being addresed, asking him to address the emails and text messages.

[9] D.C.A. reported being unable to open the attachments to the affidavit of A.E.C., being the exhibits. He made a similar complaint on the prior motion. To expedite matters, I read some of the emails to D.C.A.. He acknowledged the first email, sent on December 13, 2021, was accurate. He then reported being unable to find the remaining emails on his computer, also saying some were a fabrication resulting from A.E.C. having access to his old computer

[10] D.C.A. also referred to his email to Ms. Swan on December 21, 2021, proposing a alternate supervising facility, saying no response was ever received. Ms. Swan’s law clerk, in an affidavit sworn on January 26, 2022, indicates this email was never received. I note the purported email of D.C.A. does not contain the email address of Ms. Swan.

[11] In reply submissions, Ms. Swan indicated the emails from D.C.A. presented as echibits were retrieved from her computer.

Analysis

[12] I well understand that litigation is stressful for some parties, particularly when, as here, parenting time is restricted to a supervising facility. In addition, the difficulty in arranging supervised parenting time as a result of the COVID-19 pandemic compounds that stress. Further, it is appropriate for a party to approach opposing counsel to propose alternate arrangements. However, communications must always be presented in a civil manner.

[13] I am satisfied the emails and messages were delivered by D.C.A. to Ms. Swan and A.E.C.. I reject D.C.A.’s submission to the contrary. He was well aware that his emails and messages were the subject matter of this motion. Such were ignored in his responding affidavit. Assuming D.C.A. was unable to open the attachments, he could have requested further copies be forwarded. Regardless, he acknowledged the first email was accurate. The remaining emails and messages contain similar comments. There is a recurring theme of harassment and intimidation.

[14] Court orders are presumptively valid. Paragraphs 8 and 9 in the order of Chappel J. would have been included for a reason.

[15] D.C.A. relies on his status as a self-represented litigant, claiming to not understand the process and being frustrated as a result. The Family Law Rules were drafted in plain language specifically for litigants to navigate through the court system. D.C.A. is no stranger to court proceedings. His application initiated this case and he has now presented several motions. The submission is rejected.

[16] If D.C.A. was of the view the order of Chappel J. was incorrect, the remedy he ought to have sought was on appeal. Such has not occurred. If the designated supervisors are unable or unwilling to provide services, D.C.A. should have returned to motions court seeking a replacement. Instead, he decided to attack A.E.C. and Ms. Swan on a personal level, expecting them to agree to his demands. That is not how the court system functions.

[17] The emails and messages of D.C.A. presented on this motion are in breach of paragraph 8 of the prior order in two respects:

i) communicating with A.E.C. when he was directed to only contact her lawyer; and

ii) delivering communications that were derogatory, offensive and threatening.

[18] D.C.A. was warned on two occasions by Ms. Swan, by emails delivered on December 14, 2021, and January 10, 2022. The warnings were ignored.

[19] It is of some interest that D.C.A. refers to Ms. Swan’s “bullying tactics” in his email on January 6, 2022. The comment was improper. It was also incorrect, there being no evidence presented to suggest Ms Swan has done anything improper. The role of the lawyer is to advocate for the client, not to follow the direction of the opposing party as D.C.A. requests.

[20] Bullying tactics more properly describe the conduct of D.C.A.. He may be frustrated by the court process and delay. However, his emails and messages clearly reveal an attempt to harass and intimidate A.E.C. and Ms. Swan. Such tactics rarely succeed.

[21] All participants in the litigation process are expected to conduct themselves in a dignified and respectful manner. There can be no excuse for threats, harrassment and derogatory comments about others involved in the case. Improper conduct renders the litigation process more difficult, creates unecessary conflict and causes delay.

[22] Rule 1(8) provides as follows:

(8) FAILURE TO OBEY ORDER – If a person fails to obey an order in a case or related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

a) an order for costs;

b) an order dismissing a claim;

c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

f) an order postponing the trial or any other step in the case; and

g) on motion, a contempt order.

[23] D.C.A. received the endorsement of Chappel J. on December 13, 2021. Within hours, he was sending emails that were in breach of the terms imposed. Such continued regularly. By the time this motion was prepared on January 18, 2022, there were 25 improper emails and messages.

[24] D.C.A. must understand his conduct is unacceptable and will not be tolerated. I am not asked to address criminal harassment, as defined in section 264, Criminal Code. However, it is to be noted the communications of D.C.A. are in breach of a court order, an aggravating factor in section 264(4).

[25] D.C.A. submits a cost award would cause undue financial hardship. There is no evidence presented in support of that position. More importantly, D.C.A. does not acknowledge his communications were improper, saying only that he is frustrated with the process. Nor did he apologize or undertake to communicate in a respectful manner in future.

[26] In these circumstances, it is necessary to impose a cost award to get the attention of D.C.A.. Such an award is meant to be a penalty and to compensate A.E.C. for time wasted by the conduct of D.C.A.. The amount sought, namely $5,000.00 is, in my view, a minimal award in the circustances. I would have considered a higher amout had it been requested.

Summary

[27] An order is granted on the following terms:

(a) finding the applicant to be in breach of paragraph 8 of the order granted by Chappel J. on December 13, 2021;

(b) costs are awarded, pursuant to paragraph 9 of the said order and Rule 1(8), Family Law Rules, fixed in the amount of $5,000.00, payable forthwith by the applicant to the respondent;

(c) costs are awarded for the motion, fixed in the amount of $500.00, inclusive of HST and disbursement, payable forthwith by the applicant to the respondent; and

(d) counsel for the respondent shall prepare the order, approval by the applicant as to form and content being dispensed with.

D.J. Gordon, J.

DATE: February 11, 2022