Court File and Parties

Court File No.: FS-08-FD336763-FIS0 Date: 2022-04-29 Ontario Superior Court of Justice

Between: J.S., Applicant And: K.T., Respondent

Counsel: Judith Arrillaga, for the Applicant Self-represented, for the Respondent

Heard: April 27, 2022

Before: Faieta J.

Reasons for Decision

The Applicant mother brings this motion for the following Orders:

1. An order for sole decision-making authority for the child G.S.
2. An order that parenting time between the Respondent and G.S. shall be arranged directly by them subject to G.S.’s wishes.
3. An order that the Respondent shall return through counsel all documents belonging to G.S. including her passport, her birth certificate and Canadian citizenship card.
4. An order that the Respondent cooperate as required to renew G.S.’s passport.
5. An order that the Respondent produce his complete income tax returns for the years 2013 to 2021 and notices of assessment for the years 2012 to 2020.

The hearing of the Applicant’s motion follows my Endorsement dated March 3, 2022, that dismissed the Respondent’s contempt motion for a finding that the Applicant willfully failed to comply with the parenting time provisions of the Order of Stevenson J. dated January 31, 2013. At that time, at the request of the Applicant and with the Respondent’s consent I held a judicial interview with G.S., age 16, on March 14, 2022, for the purpose of ascertaining her views on working on her relationship with the Respondent.

On March 22, 2022, I advised the parties at a case conference that I had met with G.S. and that she told me that: (1) she does not feel safe with her father; (2) she does not want any contact with her father; (3) she wants the Respondent to return to the Applicant her Canadian passport, proof of Canadian citizenship card and social insurance number card; (4) she wants to make her own education decisions both for high school and university/college; (5) she would like to attend counselling on her own for her own personal growth and not for the purpose of furthering her relationship with the Respondent.

Background

The parties were married in February 2005. They separated in February 2007. They are the biological parents of one child, G.S.

On November 1, 2012, Mesbur J. granted a temporary order in respect of child support and financial disclosure. (“the Mesbur Order”).

On January 31, 2013, the following consent temporary Order was granted by Stevenson J. (“the Stevenson Order”):

• The parties shall have interim joint custody of G.S.
• The respondent shall be entitled to make educational decisions concerning G.S. after consultation with the applicant.
• The applicant shall be entitled to make medical decisions concerning G.S. after consultation with the respondent.
• G.S. shall reside with the respondent on an interim basis as follows: (a) every alternate weekend, commencing February 8, 2013; (b) every Tuesday after school until Wednesday morning; (c) every Thursday after school until 8:00 pm.
• G.S. shall reside with the applicant at other times, subject to certain parenting time allocations over certain holidays
• The parties shall cooperate in renewing the Canadian passports of both children.
• The respondent shall hold G.S.’s passport.
• G.S. is at liberty to contact the other parent by telephone at all reasonable times.

The respondent states that he has not had parenting time as required by the Stevenson Order for many years:

• from 2014 to 2018, G.S. was in his care for only about 50% to 70% of the time required by the Stevenson Order.
• G.S. was last in his care for holiday time at Christmas of 2016.
• G.S. was last in his care for summer break during the summer of 2017.
• The last time that the respondent had any interaction with G.S. was on March 17, 2020, when he saw G.S. briefly at the Islington Subway Station.
• In 2017 he sent at least 55 text messages to G.S.
• A cell phone that he provided G.S. was cut off in February 2018.
• When G.S.’s cell phone was cut off, the respondent trying to call the applicant in order to contact G.S. but the applicant did not respond.
• The respondent called the applicant 199 times to ask her to spend time or communicate with G.S. He sent a confirming text each time. She never took any of his calls nor did she respond to his text messages.
• From March 2020 to September 2021, the respondent sent at least 47 emails to G.S.’s teachers. Very often he asked them to send a “hello” to G.S.
• Starting in October 2019, the respondent resorted to going to the Islington subway station about twice a week after school in the hope of being able to see G.S. and speak to her briefly. The respondent had a total of about ten such interactions during which they would have a brief discussion and he would give her some money.
• When “in person” class ended in March 2020 due to COVID-19, G.S. stopped attending school and the respondent has not seen her since.

The applicant states that although G.S. is quiet and reserved, she is not afraid to voice her views when asked. The applicant further states:

• G.S.’s parenting time proceeding in accordance with the Stevenson Order until the end of 2017. Up to that point the respondent’s parents were present to care for G.S. during her parenting time with the respondent.
• Starting in 2018, without the presence of her grandparents, problems started immediately. G.S. would return in a distressed state. She told the applicant that the respondent was always rude to her and made her feel bad. He implemented an exercise regime and forced her to exercise as he told her that he did not want her to be a “pig” like her mother. She states that the respondent would lose his patience while trying to help G.S. with her homework. He would speak negatively of the applicant. The respondent also took her cell phone away from her during visits.
• G.S.’s teachers told the applicant that G.S. was returning to school in tears on a regular basis. The school principal intervened and asked the respondent to “back off” a little with G.S.
• The applicant and the respondent met with the school principal, two teachers and a guidance counselor. They recommended that the respondent suspend visits with G.S. temporarily. Counseling was recommended. The applicant made arrangements. G.S. went to a psychologist twice a week for six months.
• Thereafter, G.S. went to counselling at Midaynta Community Services from May 2019 for many months to discuss family strains, its negative impacts on her and how she is struggling to cope. She made it clear that she would prefer to attend John Polanyi Collegiate Institute rather than Etobicoke Collegiate Institute. The above is confirmed by a letter from Midaynta dated August 16, 2019.
• The applicant states that she would drive to school to pick up G.S. when she should have been picked up by the respondent when G.S. called her in tears asking her to pick her up.
• For several years, the respondent has G.S.’s email address and has communicated with her directly.
• The applicant has encouraged G.S. to respond to the respondent’s messages and that G.S. did so.
• G.S. told her that she encountered the respondent at a subway station in March 2020 and that he was “his usual brusque self” and refused to go with him after he told her “Enough is enough. You have to comply with the court order and come with me”.
• The applicant does not oppose reunification therapy proposed by the respondent however she does not agree that the parenting time order should be police enforced as sought by the respondent.
• Most recently, in 2022 following the Order of Justice Sharma, G.S. has refused to take the respondent’s telephone calls even with the applicant’s encouragement to speak with him even if only for a few minutes.
• The respondent states that he will only return G.S.’s passport after meeting with her. The respondent denies that he has her birth certificate or Canadian citizenship card.

The applicant further states that she does not wish to share the location of her current residence with the respondent as he had interrogated her last landlord and learned of her new relationship whereupon he contacted the applicant to criticize her. When he learned in 2018 that her relationship had ended, he called her a “whore” and made other negative statements.

The applicant states that given G.S.’s age, all parenting time should be arranged directly by G.S. and the respondent.

The respondent states that it is in G.S.’s best interests to attend Etobicoke Collegiate Institute because a higher percentage of its graduates attend college/university than do the graduates of John Polanyi Collegiate Institute. He is willing to vary the Stevenson Order to provide that he has parenting time with G.S. on one weekend per month. Despite claiming not to have seen G.S. for 26 months, the respondent states that G.S. is an isolated, vulnerable child that has low self-esteem, no friends and no extra-curricular activities.

Variation of Temporary Parenting Order

A motion for an order varying a temporary parenting order is rarely granted. It will only be granted when: (1) there has been a material change in the child’s circumstances; (2) the best interests of the child dictate that the temporary parenting order be varied; (3) there are compelling reasons that militate in favour of immediate action rather than waiting for the hearing on the matter and a final order: F. (H.) v. G. (D.), 2006 NBCA 36, paras. 16 & 17; Blythe v Blythe, 2020 ONSC 2871, para. 24.

There is no indication on the face of the Stevenson Order about whether it was made under the Divorce Act, the Children’s Law Reform Act or both. In any event, the analysis of whether a temporary parenting order should be varied is the same under both statutes.

I am satisfied that there has been a material change in circumstances since the issuance of the Stevenson Order in that: (1) the relationship between G.S. and the respondent deteriorated; (2) although she was willing to exercise parenting time with the respondent for several years after the Stevenson Order, G.S.’s views and preferences have changed such that she no longer wishes to have any contact with him; (3) G.S. is nine years older and will be 17 years old next month. Her views and preferences are entitled to much more deference.

The considerations that comprise the best interests of the child are enumerated under s. 16(3) of the Divorce Act and s. 24(3) of the Children’s Law Reform Act. The respondent’s focus on his own interests and needs rather than those of his daughter is troubling. As described above, G.S. has needlessly suffered due to the respondent’s actions. The respondent’s actions have led her to the point that she wants no further contact with him. The respondent’s request for police enforcement of the Stevenson Order illustrates his misguided approach in choosing to force contact and a relationship with his daughter rather than change how he behaves in relationship with his daughter. The respondent could have sought this court’s assistance many years ago when he alleges that there was non-compliance with the parenting time provisions. At that time, reunification therapy might have been an appropriate option, but at this point, it is no longer an option given G.S.’s age and her clear desire not to have any contact with the respondent. From the evidence, it appears that the respondent has no insight into how his behaviour has negatively impacted G.S. If the respondent wishes to improve his relationship with G.S., then as Papageorgiou J. stated in Stavropolous v. Stavropolous, 2021 ONSC 5753, at para. 27, the respondent needs to work on himself and his own parenting skills through therapy or parenting coaching.

I find that there are compelling reasons that favour modifying the Stevenson Order. There is no trial date set in this matter. Currently, in Toronto, trial dates for trials that are scheduled to be five days or less are currently available starting in January 2023 and trials for longer than five days are currently available starting in March 2023. Any trial date in this matter is likely to be much later given that this matter has not proceeded to a Trial Management Conference and will not do so for at least another two months. There is no good reason to have a parenting order in place that is clearly not in G.S.’s best interests for another 10 -12 months.

I find that it is in G.S.’s best interests to vary the Stevenson Order to provide that:

1. The applicant has temporary sole decision-making responsibility for G.S.
2. Parenting time between the respondent and G.S. shall be at G.S.’s discretion.
3. The respondent shall deliver G.S.’s passport, and all other government issued documents pertaining to G.S. in his possession, to the applicant by 4:00 pm on May 4, 2022, by delivering the passport at a place and time directed by the applicant’s counsel.
4. The respondent’s consent is dispensed with in renewing G.S.’s passport.

Financial Disclosure

Paragraphs 1 and 12 of the Mesbur Order provide that:

1. Without prejudice to the position of either party with respect to child support, commencing November 15, 2012, the respondent shall pay to the applicant child support for two children, C.S., and G.S. in the amount of $1,000.00 per month.
2. For as long as child support is to be paid, the payor and the recipient, if applicable, must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this Order, in accordance with section 24.1 of the Federal Child Support Guidelines.

The applicant states that the respondent did not pay any child support from December 2018 to July 2020. The respondent states that he has overpaid support and that he is in discussions with the Financial Responsibility Office to adjust their records and intends to bring a motion to change vary his child support obligation.

The applicant’s assertion that the respondent has not complied with the disclosure obligations found in the Mesbur Order is not disputed. On this motion, the applicant asks that the respondent provide the outstanding disclosure. The respondent does not dispute that he has not complied with this disclosure obligation.

The Need for a Final Disposition

This Application has been outstanding for 14 years. This Application should be brought to a final resolution as soon as possible. I direct that a case conference be held on June 1, 2022, at 9:00 am before me. I also direct that a combined settlement conference/trial management conference be held on August 5, 2022, at Noon. Moving this matter to trial within the next year should obviate the need for further motions, such as the respondent’s contemplated motion to vary the temporary order for child support.

Order

Order to go as follows:

1. On or before May 13, 2022, the respondent shall produce the following documents: a) His complete income tax returns for the years 2013 to and including 2021 and his notices of assessment and re-assessment for the years 2012 to and including 2020, OR, b) Printouts from Canada Revenue Agency in respect of any of the above documents that the respondent cannot locate.
2. Paragraphs 1, 2, 3, 5, 6, 9 and 10 of the Stevenson Order are deleted and replaced with the terms described below. a) On a temporary basis, the applicant shall have sole-decision making responsibility for G.S. b) On a temporary basis, parenting time between the respondent and G.S. shall be at G.S.’s discretion. c) The respondent shall deliver G.S.’s passport, and all other government issued documents pertaining to G.S. in his possession, to the applicant by 4:00 pm on May 4, 2022, by delivering the passport at a place and time directed by the applicant’s counsel. d) On a temporary basis, the respondent’s consent for the issuance and/or renewal G.S.’s passport and any other government issued documents is dispensed with.
3. The parties shall attend a Case Conference on June 1, 2022, at 9:00 am and a combined Settlement Conference/Trial Management Conference on August 5, 2022, at Noon.
4. The applicant shall deliver her costs submissions by May 5, 2022. The respondent shall his responding costs submissions by May 12, 2022. The applicant shall deliver her reply, costs submissions by May 19, 2022. Each costs submission shall be no more than three pages exclusive of a bill of costs and any offers to settle that were made.
5. The need for the respondent’s approval of this draft order as to form and content is dispensed with.

Resources for Self-Represented Litigants

The respondent is now self-represented. Various websites provide information about the family law litigation process including the various steps in a family law proceeding, such as a case conference, settlement conference and a trial management conference, and as well as the forms that are required to be used. See:

1. Family Law Handbook for Self-Represented Litigants – Canadian Judicial Council (2021)
2. A Guide to Process for Family Law Cases at the Superior Court of Justice
3. Steps to Justice Community Legal Education Ontario
4. Family Law Legislation
5. Family Law Rules
6. Family Law Forms
7. List of Often Cited Family Law Cases

Released: April 29, 2022 Faieta J.