COURT FILE NO.: FS-20-20794
DATE: 20220901
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KYLE SANVICTORES
Applicant
– and –
NANCY SANVICTORES
Respondent
Lauri Daitchman & Nadia Warsi, for the Applicant
Self-represented, Respondent
HEARD: August 30, 2022
M. D. FAIETA j.
Reasons for Decision
[1] The parties were married in July 2012. They separated in May 2020. They have two children: a daughter, age 9, and a son, age 6.
[2] It would be an understatement to describe this case as being high conflict. According to the Respondent mother there have been 40 attendances before this Court.
[3] On January 27, 2022, Justice O’Brien ordered that:
- The Respondent is not entitled to any further court orders, unless the court orders otherwise, unless and until she demonstrates that she has complied with existing court orders by doing the following:
a. Providing evidence that she has returned the Applicant’s laptops and other property set out in the Order of Shore J. dated December 18, 2020 at para. 3. If any of the property has been destroyed, the Applicant shall provide a detailed affidavit describing particulars as to what occurred to the property and why.
b. Providing evidence that she has provided all passwords and other information set out at para. 4 of the order of Pinto J. dated September 24, 2021.
c. Providing evidence that she has cooperated with the Applicant to jointly arrange counselling for the children.
d. Providing evidence that she has permitted the children to Facetime the Applicant. and
e. Providing evidence specifically addressing any further allegations of breaches of court orders of which she is aware that arise after this order.
[4] Subsequently, various members of this Court have found that the Respondent mother has not complied with the above requirements. Most recently, Horkins J. dismissed the Respondent’s motion for leave for various relief on the grounds that the Respondent had failed to comply with the above requirements. See Sanvictores v Sanvictores, Reasons for Decision, May 27, 2022, para. 10.
[5] On April 5, 2022, Justice Lococo granted the Applicant father’s motion that the children attend a public school, whether French language or English language, rather than the private school that they have attended. His Endorsement, dated April 5, 2022, states:
a. The children shall attend either Lester B. Pearson Elementary School or Ecole Elementaire Jeanne-Lajoie (“Lajoie”), commencing September 2022.
b. The parties shall sign all documents necessary to give effect to the preceding paragraph.
c. The Applicant father’s costs are fixed at $2,500 including disbursements and taxes, payable by the Respondent mother within 60 days.
[6] The Respondent mother brings this motion for the following Order:
“As an exception to paragraph 4 of Justice O’Brien’s Order dated January 27, 2022, the Respondent shall be permitted to bring a Motion solely for the Children’s school commencing September 2022.”
“The Children shall attend TFS (their current school) until the Applicant provides full, honest, Financial Disclosure for year 2021 and 2022.”
[7] Notwithstanding the clear terms of the Order granted by Lococo J., the Respondent insists that the children attend their current private school commencing September 2022. The Applicant has attempted to enrol the children at Lajoie for months. The school requires one French speaking parent for the children to attend Lajoie. The school requires: (1) the transcripts from a parent’s French school; or that (2) a parent to pass a French test. The Applicant does not speak French however the Respondent does speak French. A representative from Lajoie advised the Applicant on August 23, 2022 that the Respondent, who attended school in Quebec, has not yet provided evidence of her French background to the school. That same representative advised the Applicant that he may be able to enrol the children at Lajoie without the Respondent’s cooperation if they demonstrated sufficient French language skills. The school had arranged for an appointment to meet the children to make this assessment for August 26, 2022. The Respondent cancelled this appointment. The Respondent also advised the school on August 26, 2022 that the issue of school choice was before this court and that she may “fully withdraw my application”. The Applicant sought to re-schedule this appointment to August 31, 2022. The Respondent advised the school that she did not consent to this request. The school refused to schedule an appointment to test the children until “a court decision” is made.
[8] The Respondent alleges that the Applicant failed to fully disclose his finances at that time that the motion was heard by Lococo J. on April 5, 2022 and, for that reason, the children should continue to attend TFS until he does so.
[9] I dismiss the Respondent’s motion for leave for the following reasons.
[10] First, the Respondent has failed to comply with paragraph 4 of Justice O’Brien’s Order.
[11] Second, the Respondent has failed to comply with numerous Orders that have been issued since that time, which include the following matters:
a) Paragraph 15 of Leiper J’s Order dated January 14, 2021 requires the parties to arrange counselling for their daughter as soon as possible. The Respondent has refused to do so. An email dated August 23, 2022 from the Family Psychology Centre states that “… unfortunately, Nancy does not consent to booking sessions for [their daughter] until she meets with Nicole in September.”
b) Orders dated May 3, 2022 and May 17, 2022 order the sale of a rental property and require that the Respondent provide the Applicant with contact information for the tenants of their rental property. She has admitted that she is not cooperating with these Orders.
c) Paragraph 3 of O’Brien J.’s Order dated January 27, 2022 requires the parties to cooperate with their section 30 assessor, Ms. Lieberman. The Respondent has not yet met with Ms. Lieberman. An email dated August 5, 2022 from Ms. Lieberman states “I heard from Nancy and she’s still postponing booking appointments”.
d) The Respondent continues to fail to facilitate Facetime access between the Applicant and the children contrary to the Order of Leiper J. dated January 14, 2021 and O’Brien J. dated January 27, 2022.
e) The Respondent is in breach of numerous Orders for the payment of costs. A total of $45,593.78 is owed by the Respondent to the Applicant pursuant to these Orders.
[12] Third, it is an abuse of process of this Court to re-litigate the issue of whether the children should attend a public school or a private school. In her affidavit sworn April 1 2022, the Respondent alleged that the Respondent is misleading the Court with false financial information financial disclosure at the time the motion was heard. Lococo J. ruled that the children were to attend a public school. The Respondent raises the same argument on this motion.
[13] Given that the Respondent does not want to the children to attend Lajoie, I agree with the Applicant’s submission that:
The Applicant … does not know how he can enroll the children in school without an Order for interim Decision-Making Responsibility, while the Respondent is actively thwarting his attempts to do so.
[14] I find that, pursuant to Rule 1(8) of the Family Law Rules and section 16.3 of the Divorce Act, it is just to grant the Applicant temporary decision-making responsibility in respect of the children with respect to all matters related to their education including the registration of the children at either school described in the Order of Lococo J. The best interests of a child are served by ensuring that there is compliance with court orders that directly affects that child. In my view, the award of temporary sole decision-making responsibility in respect of the children’s education is a proportional measure to ensure compliance with this court’s earlier order that requires the children attend one of the two schools.
[15] I also find that it is just, pursuant to Rule 1(8) of the Family Law Rules, to order that the Respondent forthwith deliver any documents required by Lajoie, including the transcripts from any school that she has attended, to Lajoie and the Applicant.
[16] I also find that it is just, pursuant to Rule 1(8) of the Family Law Rules, to order that the Respondent is not entitled to any further court orders, unless the court orders otherwise, unless and until she demonstrates that she has complied with all existing court orders.
[17] The Applicant seeks his costs of $4,150.00. In my view, the Respondent it was entirely unreasonable for the Respondent to have brought this motion as it lacked any chance of success given the reasons outlined above. Costs of $3,500.00 shall be paid forthwith by the Respondent to the Applicant.
ORDER
[18] Order to go as follows:
(1) The Respondent’s motion for leave is dismissed.
(2) Pursuant to Rule 1(8) of the Family Law Rules and section 16.3 of the Divorce Act, the Applicant is granted temporary sole decision-making responsibility in respect of the children with respect to all matters related to their education including the registration of the children at either school described in the Endorsement of Lococo J. dated April 5, 2022.
(3) Pursuant to Rule 1(8) of the Family Law Rules, the Respondent shall forthwith deliver any documents required by Lajoie, including transcripts from any school that she has attended, to Lajoie and the Applicant.
(4) Pursuant to Rule 1(8) of the Family Law Rules, the Respondent is not entitled to any further court orders, unless the court orders otherwise, unless and until she demonstrates that she has complied with all existing court orders.
(5) The Respondent shall forthwith pay costs of $3,500.00 to the Applicant.
(6) The Applicant shall deliver a draft Order for my review and signature. The Respondent’s approval of the draft Order as to form and content is dispensed with.
Mr. Justice M. D. Faieta
Released: September 1, 2022
COURT FILE NO.: FS-20-20794
DATE: 20220901
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
KYLE SANVICTORES
Applicant
– and –
NANCY SANVICTORES
Respondent
REASONS FOR DECISION
Mr. Justice M. D. Faieta
Released: September 1, 2022