ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Scott Patrick Saunderson
Applicant
– and –
Janice Leigh Saunderson
Respondent
Self-Represented
Brian Ludmer, for the Respondent
HEARD: June 7, 2022
PINTO J.
REASONS FOR DECISION
Overview
[1] The respondent mother brings a motion seeking, inter alia, compliance with the Final Consent Order of Justice Moore dated January 24, 2018 ("Moore Order") as it relates to the parenting time schedule for the child of the marriage C. The mother also seeks an order directing the family to engage in supportive reconciliation therapy to promote the parenting plan required by court orders.
[2] The self-represented father did not file any responding material in response to the mother's motion. I permitted him to provide submissions based on the material filed by the mother.
[3] For the reasons that follow, the mother's motion is granted.
Discussion
[4] The parties were married on September 5, 2005 and separated on February 1, 2015 . They were divorced in April 2020.
[5] The parties have two sons, C, now 15, and A, now 12.
[6] The mother deposes that, as a result of the father's disregard of the Final Court Orders, she has not had any parenting time with C since May 27, 2020.
[7] She alleges that despite the Final Orders, the father has:
(a) Arbitrarily withheld C from her care since May 27, 2020; and
(b) Successfully encouraged A to leave her care during her parenting time, and unilaterally picked up A from her home during her parenting time.
[8] The mother alleges that the father has forced a breakdown in her relationship with C and is now behaving in a similar a pattern of negative influence with A. She has not previously brought a non-compliance motion as she claims she has been actively engaging and consulting with multiple health care professionals and educators for almost 2 years.
[9] On or about December 2021, the father filed a Motion to Change in the Superior Court seeking, inter alia, residency of C and equal shared parenting of A on a week about basis, child support for C, and child support for A based on a shared parenting schedule. The mother has filed a response in the Motion to Change proceeding and a Case Conference is scheduled on July 18, 2022.
[10] There was a DRO endorsement of February 10, 2022, however, no further steps have taken place in the Motion to Change proceeding where the father is the applicant.
[11] The mother acknowledges that she has brought this motion without a prior case conference which would be contrary to Rule 14(4) of the Family Law Rules. However, the mother relies on Rule 14(4.2) which states that Rule 14(4) does not apply if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice. I agree with the mother that it is in the interests of justice that the within motion proceed. For the reasons that follow, I find that there appears to be a deteriorating relationship with the second son A, such that, even a delay of a few weeks until a Case Conference, can be detrimental to this family, and would not be in the best interests of the children. A decision on the mother's motion should therefore be made now, even in the absence of a prior Case Conference, and notwithstanding that a Case Conference in the Motion to Change proceeding is to take place on July 18, 2022.
[12] The father candidly acknowledged that by having de facto residency of C, and by the mother having no parenting time with C since May 2020, he is in breach of the Order of Justice Moore. However, he claims that he cannot convince his 15 year old son C to act in compliance with Justice Moore's order. This is not a defence to the mother's allegation of non-compliance as the father filed no response on the motion, and the father's submissions at the hearing did not explain what specific steps he has taken to promote compliance with the parenting order of Justice Moore. Compliance with court orders cannot be left up to a child: King v. King, 2016 ONSC 3752, at para. 48.
[13] As well the father needed to have shown what positive steps he took to promote compliance with the Moore Order. In Godard v. Godard, 2015 ONCA 568, at para. 28, the Court of Appeal stated:
As stated by the motion judge, Ontario courts have held consistently that a parent "has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order": Quaresma v. Bathurst, (2008), O.J. NO. 4734 (Ont. S.C.J.) at para.8. See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt, 2009 43948 (Ont. S.C.); Stuyt v. Stuyt, 2009 43948 (Ont. S.C.); and Hatcher v. Hatcher, 2009 14789 (ON SC), [2009] O.J. No. 1343 (Ont. Sup.Ct.).
[14] The father claims that he has never been against family reunification therapy but he claims he cannot afford it. On the evidence presented, the father's position that he is not against family reunification therapy is contradicted by the father's conduct. First, as indicated, the father complains of the cost. Second, and here I am extrapolating from what the father said about individual therapy (not family reunification therapy) for C concerning a program through Skylark/Lumenus, that the father did not want C to be "overloaded" during the school year, that the father would have the same position about family therapy. Third, the father stated that the therapist should be someone the children are comfortable with. Yet, the father put forward no reason for why the mother's suggestions for therapists were unsuitable. Ultimately, I find, that the father while claiming to be in favour of family therapy, has not cooperated in advancing that important objective.
[15] Still, as the father claims he is in favour of family reunification therapy, I do not find that it is necessary to elucidate detailed reasons why such therapy is in the best interests of the children. The mother's affidavit on the motion, which is not contradicted, speaks to a number of examples where the father has failed to countenance C's aggressive communications with the mother where: C suggests that the mother should stop receiving child support; the father denigrates the mother to C by calling her a "Nazi" and a “liar"; or provides a cell phone to C when he was in the mother's care, without the mother's knowledge and consent.
[16] The mother deposes that, more recently, on February 24, 2022, A, 12, got upset with the mother about his not having a cell phone and immediately contacted the father who attended the mother's home and removed A from the mother's care. A further example was provided of a highly offensive name that A called his mother in a text message (sent contemporaneously with the hearing of the within motion) which suggests that A is starting to wholly adopt the narrative about the parties' relationship that his older brother C seems to have, and which the mother believes is promoted by the father.
[17] I find therefore, independently of the father's supposed consent to family therapy, that it is in the best interests of the two children that the family be directed to family reconciliation therapy immediately. I find this is necessary to promote compliance with the Moore Order.
[18] The mother's notice of motion also contained requests for other relief in respect of financial issues, however, the mother's counsel suggested that these other issues were not as urgent as the parenting issues, and could be discussed at the Case Conference in July 2022.
Order
[19] An order shall go finding the father in breach of the order of Moore J., finding that if the father persists in breach of court orders he may be subject to an order for contempt, directing that the family engage promptly in family reconciliation therapy, and requesting the parties' submissions on costs of the motion if they cannot agree on costs themselves.
Pinto J.
Released: June 11, 2022
COURT FILE NO.: FS- 17-417632-001
DATE: 20220611
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Scott Patrick Saunderson
Applicant
– and –
Janice Leigh Saunderson
Respondent
REASONS FOR DECISION
Pinto J.
Released: June 11, 2022