COURT FILE NO.: FS-16-88027-00
DATE: October 12, 2022
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: C.M.Y, Applicant
AND:
W.J.L.S.Y., Respondent
BEFORE: The Honourable Justice Mandhane
COUNSEL: YING, Rebecca (via videoconference), for the Applicant
KANIA, Andrew J., for the Respondent
OCL : PATEL, S
Third Party Respondent : SOLES, Keegan
HEARD: October 12, 2022 (Heard in Person)
E N D O R S E M E N T
The Father brings a motion for a finding that the Mother is in contempt of the interim parenting order of Barnes J. dated December 21, 2021. He says that this matter is urgent because he continues not to see the Children.
The Mother brings a cross-motion to “review” Justice Barnes’ order in light of the OCL report and the position of the Peel Police against police enforcement. She also seeks an order for interim child support.
On July 27, 2022, Bloom J. ordered that the parties two motions be heard together as a two-day motion commencing the week of October 11.
The current Central West Region Notice to the Profession states that parties in family law disputes are generally only allowed to bring one motion before the matter proceeding to trial and that leave is required to bring a second or subsequent interim motion. Some of the factors that the judge considering the leave request can consider is whether the issue was dealt with in a prior motion, whether the matter can or should proceed directly to trial, and whether there have been intervening events that make a subsequent motion necessary.
In his endorsement dated July 27, 2022, Bloom J. did not consider all of these “leave factors” when he set the matter down for a hearing, presumably leaving that to the motions judge to decide as a preliminary matter.
For reasons that follow, I refuse to grant the Applicant/Mother and the Respondent/Father leave to seek interim relief in relation to contempt and child support, respectively.
I find that granting leave to the parties at this late stage in the life of the matter would be inconsistent with Rule 2 of the Family Law Rules, will only fuel the high conflict nature of their dispute, and will not further the children’s long-term best interests.
According to Rule 2 of the Family Law Rules, the primary object of the rules is to enable the Court to deal with cases justly, which requires a fair procedure, saving expense and time, dealing with the case in way that is appropriate to its importance and complexity, and giving appropriate court resource to the case while taking into account the need to give resources to other cases.
This matter has been outstanding before the courts since 2017. There has been an early case conference, which was conducted by Justice Sproat on March 13, 2017, and a case conference conducted by Justice Fragomeni on December 14, 2017.
There has been no settlement conference or trial management conference conducted to date, whether on the parenting or financial issues. A settlement conference on the financial issues scheduled for August 2022 was inexplicably abandoned by the Applicant/Mother who did not file any materials.
No trial dates have been set. Meanwhile, the parties have been engaged in a seemingly endless, expensive, and high conflict battle over the two children of the marriage through interim parenting motions. To date, the following judges have made interim parenting orders in this case, each time favouring joint custody and equal parenting time for both parents:
a. McSweeney J. on April 11, 2017;
b. Doi J. on July 1, 2019; and
c. Barnes J. on December 21, 2021.
The Father says that, despite the existence of these interim court orders, the Mother refuses to facilitate the parenting time ordered by the Court. The Mother says that she is unable to facilitate the parenting time ordered because the Children refuse to attend. She says that the Father’s use of police enforcement has been ineffective and harmful to the Children.
The OCL has filed an affidavit which outlines the children’s views and preferences. To summarize, the children are troubled by the Father’s use of police enforcement of the court order, and neither child wishes this court to order joint parenting time. What is unclear is whether the views and preferences of the children are genuine or whether they are the result of the changed status quo due to the Mother’s refusal to follow by court orders, or whether they are the result of the Mother’s alleged pattern of alienation.
In light of the primary objective of the Family Law Rules, I am not prepared to hear another interim motion on parenting (whether framed as a “review” or a contempt motion). The Father’s criminal charges remain outstanding and there is no clear timeline for their resolution. The only change since Justice Barnes’ order was that the OCL report outlining the Children’s views and preferences is now available. However, given the concerns that I have regarding the factual context for the children’s changed views, I worry that deciding the matter on an interim basis (again), without proper testing of the evidence, will not advance the children’s best interests in the long term. That is because, five years into this litigation (and nearly half their life later), the children require finality, not just another interim order that is subject to change.
In relation to the Mother’s motion for child support, I note that both parties agree that the financial issues have never been properly conferenced. I find that hearing such a motion prior to a fulsome conference is inefficient and counterproductive.
I refuse to grant the parties leave to have their motions heard. The parties’ motions are adjourned sine die.
Instead, the parties shall proceed to trial on the parenting and child support issues only on December 5, 2022 for 4 days. This will include consideration of the issue of police enforcement. Both the OCL and Peel Police should attend at the first day of trial and to address the matter with the presiding justice.
The parties agree to the following timelines:
a. The Peel Police shall be permitted to rely on their affidavit sworn July 20, 2022, factum dated July 21, 2022 and brief of authorities as their evidence and submissions at trial;
b. The OCL shall serve and file an updated affidavit on or before November 7, 2022;
c. The parties shall prepare and file a Joint Trial Record on or before November 11, 2022;
d. The parties shall prepare and file a Joint Document Book on or before November 11, 2022;
e. Each party shall file a Supplementary Document Book with any contentious documents on or before November 11, 2022.
- In terms of the trial itself, the parties agree that:
a. The parties’ shall provide viva voce evidence in chief and under cross-examination;
b. The OCL clinical worker shall be available for cross-examination by both parties.
I shall conduct a joint settlement and trial management conference on all issues commencing this afternoon at 2:00 p.m. and over the full-day tomorrow.
The parties shall not bring any further motions prior to trial. As the conference judge, I shall not be assigned to the trial of the matter.
Mandhane J.
DATE: October 12, 2022
COURT FILE NO.: FS-16-88027-00
DATE: 12 October 2022
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: C.M.Y., Applicant
AND:
W.J.L.S.Y., Respondent
BEFORE: The Honourable Justice Mandhane
COUNSEL: YING, Rebecca (via videoconference), for the Applicant
OCL : PATEL, S
Third Party Respondent : SOLES, Keegan
ENDORSEMENT
Mandhane J.
DATE: October 12, 2022