Turner v. Gomes, 2022 ONSC 6655

COURT FILE NO.: 1147/22

DATE: 2022-11-28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Ashley Turner

Applicant

– and –

Clayton Gomes

Respondent

Fareen Jamal, Counsel, for the Applicant

Kathryn Junger, Counsel, for the Respondent

HEARD: November 25, 2022

JUDGMENT

THE HONOURABLE MR. JUSTICE A. PAZARATZ

Overview

1"No" means no! In sex. And with pre-Case Conference motions.

2During this urgent motion – the second for this family within two weeks – counsel repeatedly reminded me that we need to be child-focussed when dealing with parenting issues.

3I agree.

4But being child-focussed involves avoiding aggressive and strategic litigation – rather than promoting it.

5We are talking about two young children, Silver, age 2 and Gemma age 1.

6As is typical of high conflict files like this, the past is complicated.

7And the future is likely to be complicated.

8But the present shouldn't be complicated at all.

Background

9On November 16, 2022 Justice Tweedie dealt with an emergency pre-Case Conference motion brought by the Applicant mother. The father disagreed that the matter was urgent, but he brought a cross-motion in case urgency was accepted by the court.

a. In a thorough endorsement, Justice Tweedie reviewed the evidence of both parties, and heard submissions from experienced counsel.

b. Justice Tweedie applied the test set out in Rule 14(4.2) of the Family Law Rules, with respect to the limited circumstances in which motions should be allowed to proceed prior to a Case Conference.

c. With clearly articulated reasons, Justice Tweedie concluded that the matter was not urgent.

d. She specifically reviewed the current parenting arrangements for the children – the status quo – and determined that there was no justification for changing anything.

e. The motions were adjourned to a Case Conference scheduled for December 21, 2022 at 3:30 p.m.

10That should have been the end of the matter, until the Case Conference.

11But within two days of the November 16th endorsement the parties disagreed on what Justice Tweedie really meant.

a. The father said Justice Tweedie accepted that there was a status quo – however brief, and however it may have come to be created. And that the status quo would continue. That's my reading of the endorsement as well.

b. But having initially brought an unsuccessful motion to change the status quo, the mother then denied that there was a status quo in relation to the younger child Gemma.

c. So whether you call it miscommunication or a mix-up or self-help or contempt – somehow the father missed his very next weekend with Gemma following the November 16, 2022 endorsement.

d. What Justice Tweedie expected would happen did not happen.

Analysis

12The father then brought this emergency motion – again seeking leave to proceed prior to a Case Conference – basically asking that Justice Tweedie's endorsement of November 16, 2022 should be complied with: That the status quo should continue.

13Ironically, the mother then challenged whether the father's motion was urgent. She sought an opportunity to file more materials – even though she had filed extensive materials for the first motion dealing with exactly the same fact situation.

14For clarity, there is little doubt about the parenting arrangement that Justice Tweedie was referring to, in determining that there was no urgent need to change anything.

15Even though the parties may not agree on how it was created, how long it lasted, or whether it was a good idea – the status quo which they allowed to evolve as of November 16, 2022 was as follows:

a. In relation to the older child Silver, the parties have maintained an equal time, 2-2-3 schedule, divided Monday-Tuesday; Wednesday-Thursday; and Friday-Saturday-Sunday; and alternating weekly.

b. Silver attends daycare in Waterdown where the father resides. The mother resides in Grimsby. The mother complains about transportation requirements between the two households. But that's also part of the arrangement the parties created themselves.

c. Gemma is in the mother's care from Monday at 8:00 a.m. to Friday at 4:00 p.m., and in the father's care each weekend.

16At the November 16, 2022 motion the mother submitted that it was urgent to change a number of aspects of that arrangement, including removing the older child from the daycare she has attended for more than a year, and significantly reducing the father's time.

17I make no comment on the specific parenting arrangements the parties themselves allowed to evolve prior to court involvement. I make no prediction as to whether modifications or refinements may be appropriate for the children as time goes on. We are at a very early stage in the process, and these are very young children. A lot can and will change.

18But on November 16, 2022, having considered the evidence and submissions, Justice Tweedie made a determination that a specific parenting arrangement was in place; it was working; it was meeting the children's needs; it reflected terms which the parties themselves had created; and there was no obvious or urgent reason that anything needed to be changed.

19The father just wants the status quo to continue.

20The mother purports to agree. But having already denied the father a weekend with Gemma that Justice Tweedie said he was entitled to, the mother is again asking a motions judge to impose changes to the status quo, prior to a Case Conference.

21The mother now characterizes her proposed changes as so minor and sensible that there shouldn't be any dispute. But it's presumptuous for a party to proclaim that they are so obviously correct that there's nothing to talk about.

22The father disagrees with the mother's changes, however "minor" she may describe them. He says the mother won't accept that her previous motion was dismissed, so she's again manoeuvring to strategically create a more favourable status quo.

23This is precisely the bad start to litigation that the Rules try to prevent. If the issues are truly "minor", the parents should be able to work them out. Otherwise, they should wait for their respective positions to be fully canvassed at the appropriate time.

24But this isn't the appropriate time.

25There has already been a judicial determination that nothing is to change and that everything will be reviewed at the Case Conference on December 21, 2022. If necessary, motions can subsequently be argued.

26I find that Justice Tweedie's November 16, 2022 endorsement was clear:

a. The mother shouldn't have unilaterally changed the schedule thereafter.

b. The mother shouldn't have caused the matter to return to court less than two weeks later.

c. And the mother shouldn't again be seeking "urgent" changes prior to a Case Conference.

d. Simply put: The mother lost but she wouldn't take "no" for an answer.

27I tried to be equally clear: Both parties were present for the motion and I reiterated that parenting arrangements are to remain unchanged, pending written agreement or court order.

28This case illustrates how parents need to make an early decision about whether they want to resolve parenting disputes the hard way or the easy way.

a. The hard way involves never agreeing to anything; paying lawyers a lot of money to be as aggressive as possible; going back to court over and over again until you "win"; and leaving control over the most important thing in your life to a bunch of strangers.

b. The easy way involves talking; listening; compromising; showing civility and respect; acknowledging that your child loves and needs both parents; never acting like you hate your ex more than you love your child; selecting therapeutic rather than adversarial options; and abandoning the hollow excuse that you're "fighting for the sake of the child." Fighting is never for the sake of the child.

c. Truthfully, even the easy way isn't that easy. But it's a lot better than the hard way.

The December 4, 2022 Weekend

29Having said that Justice Tweedie determined that no changes are urgently required, the parties have (mostly) agreed to a change for one specific weekend.

a. The mother asks that Gemma be with her on Sunday December 4, 2022 starting at 9:00 a.m. so that the child can participate in a birthday party for an older half-sibling who is turning 16.

b. The father does not object, but he seeks make-up time. There is slight disagreement about what the makeup time would look like.

c. Although this December 4, 2022 issue could and should have been addressed at the November 16, 2022 motion, since there now seems to be some agreement, I will make an order: The mother shall have the child Gemma on December 4, 2022 starting at 9:00 a.m. The father's weekend with Gemma shall commence at 4:00 p.m. on the preceding Thursday, for that weekend only.

Costs

30This was a 10:00 a.m. motion. We took breaks along the way, and I dealt with other matters while the parties negotiated (unsuccessfully). We finished at 5:00 p.m. It's too late in the day to deal with costs. Costs are reserved.

31Justice Tweedie's November 16, 2022 endorsement set out a timeline for written costs submissions:

a. Since both parties still have to file submissions in relation to the previous motion, I am directing counsel to include with those submissions a copy of this endorsement.

b. While post-event behaviour isn't usually part of a costs analysis, in this case one of the factors Justice Tweedie will have to consider is the reasonableness of each party's behaviour in relation to the November 16, 2022 motion. The mother will undoubtedly submit that even though she was unsuccessful, she was still acting in good faith.

c. Judges like to know when their orders and endorsements are ignored. I will leave it to Justice Tweedie to determine whether the mother's behaviour immediately after losing her motion speaks to the overall issue of reasonableness.

d. If Justice Tweedie elects not to deal with costs of both motions globally, then costs in relation to this second motion are reserved. If a motion proceeds immediately after the Case Conference, costs of November 25, 2022 are reserved to the judge disposing of the motion. Otherwise, counsel should exchange written submissions, to my attention, during the month of February. I will leave it to counsel to work out timelines for the completion of submissions within the month of February. Submissions should be no longer than three pages long, plus any bill of costs, offers, and case law.

32On consent, the father may serve and file his Answer by December 5, 2022.

Pazaratz J.