Overview

[1] Notwithstanding the Order of O'Brien J. dated January 27, 2022, that the respondent wife is not entitled to further court orders unless she demonstrates compliance with existing court orders, the respondent brought a motion before me via Zoom seeking various grounds of relief relating to (a) AKA Creative Inc; (b) the applicant Mr. Sanvictores' personal belongings; and (c) "not permitting the applicant to accuse the respondent of 'breaching court orders' without proper evidence before the court at a long motion or trial."

[2] After hearing submissions from the parties, I dismissed the respondent's motion as I found that she continues to be in non-compliance with judicial orders. I also awarded costs of $3,000 against the respondent with written reasons to follow. These are my reasons.

Start Time of Motion

[3] The court hearing began at 10:00 a.m. despite Ms. Daichtman, counsel for the applicant, advising Ms. Sanvictores that she was unable to commence at 10:00 a.m. as she was scheduled to deal with another motion. Braveena Vinasithamby, a lawyer acting as an agent for Ms. Vinasithamby, attended at 10:00 a.m. to request that the matter be put over to later in the morning, a request that I granted. When I asked Ms. Sanvictores why, despite being advised that Ms. Sanvictores was not available at 10 a.m. she did not consent to rescheduling the motion, she indicated that "I wasn't sure that Ms. Daichtman was being honest with me." When I asked what would be in it for Ms. Daichtman to say she is not available at 10 a.m., but be available later in the morning, Ms. Sanvictores stated that she believes there has been a lot of misleading information from the applicant's side.

Discussion

[4] The endorsement of O'Brien J. dated January 27, 2022 dealt with the applicant father's motion seeking: (a) the appointment of an assessor pursuant to section 30 of the Children's Law Reform Act; (b) that the respondent mother pay for the assessment; and (c) that the respondent not be entitled to any further orders of the court until she complies with existing orders. The father was successful on his motion, except that Justice O'Brien ordered that costs of the assessment be shared between the parties.

[5] Paragraph 4 of Justice O'Brien's endorsement states:

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 and 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;

(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.

[6] The applicant's position is that the respondent remains non-compliant with various court orders.

[7] The respondent's position is that she wants to clear her name as previous judges have unfairly criticized her and found her in breach of court orders based on false and misleading information presented by the applicant.

[8] Given the time constraints on the motion, I delved into three areas of alleged ongoing non-compliance.

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

[9] At paragraph 4 of my order dated September 24, 2021 which was, in fact, a Consent Order, I stated:

The Respondent Mother shall immediately provide the Applicant Father with all information, passwords, logins, documents, and anything else required to allow him to access the following phone numbers and accounts:

(a) 647-929-3019,

(b) kyle_sanvictores@yahoo.com,

(d) http://www.akacreativeinc.com/ and any other websites associated with AKA including, but not limited to, all GoDaddypasswords, user IDS, and any other login information.

[10] The applicant submits that the respondent has refused to provide him with the login information for AKA's website which includes any passwords. The applicant points out that instead of doing what was ordered, the respondent has taken the following position as evident from paragraph 29 of her February 2, 2022 affidavit, "The website has been under my name well before this litigation began. Kyle is able to call and have access but we both cannot make changes without my consent."

[11] When I explored the respondent's position she stated that she had spoken to the website provider and that the applicant can phone the provider but "Kyle cannot pretend he's me on the computer". What I take from the respondent's answer is that, sitting at his computer, the applicant cannot log in as if he were the respondent but apparently, by phoning a particular number - presumably the website provider - the respondent has authorized the website provider to give the applicant any information he seeks. When I further explored why the respondent does not simply provide whatever consent is needed so that the respondent can access the AKA website (which is on a GoDaddy platform) himself, the respondent answered that there was sensitive information on the site, and that both parties would have to perform certain actions together. The respondent maintained that she continues to be a shareholder of AKA. The impression that I got was that the respondent is not prepared to give the applicant control over the AKA website/dashboard.

[12] My overall finding is that, because the respondent is of the view that the applicant can obtain the information he seeks through some other means, namely by phoning the website provider, she is unwilling to provide what I ordered at paragraph 4 of my order dated September 24, 202. I conclude, therefore, that the respondent is not, in fact, in compliance with my September 24, 2021 order, nor has she complied with paragraph 4b of the endorsement of Justice O'Brien.

Providing evidence that she has cooperated with the Applicant to jointly arrange counselling for the children

[13] The applicant submits that the respondent has not cooperated with the applicant on this issue and has not submitted any evidence that she has done so. The respondent submitted that C, the parties' daughter, obtained counselling from her school and this was not something that required parental consent. This was just a school counsellor offering counselling.

[14] Further, the respondent pointed to an email (date unclear), apparently from a Children's Aid Society that stated:

What is working well?

Both Kyle and Nancy are aware of the impact of changes in family dynamic and post separation conflict on children. They are both open to the children receiving counselling support. Nancy has already made contact with a child psychologist who has been offering support on how to engage the children about the family's transition. Kyle has request (sic) the Office of the Children's Lawyer be involved so that the children's voices are heard.

[15] When asked how the fact that C is getting counselling through her school, or this email demonstrates that she is cooperating with the applicant to jointly arrange counselling for the children, the respondent launched into a tangent about how counselling barely came up as a concern and that the parties were on waiting lists so the issue was sort of "parked."

[16] The applicant pointed me to evidence that, on June 19, 2021, he wrote to the respondent, "I have already suggested with urgency that C needs therapy ASAP and yet you ignore my petitions." The applicant suggested that the respondent ignored him. At the motion hearing, the respondent responded "because of the busyness, I'm sure that I did respond", however, the respondent could not point me to anywhere in the evidence that shows her response.

[17] The impression I have is that the respondent believes that counselling was not a priority for the parties, the parties are or were on waiting lists, C is receiving counselling now, and that individually, each party is trying to obtain counselling but has not been successful. I am not satisfied that any of this amounts to evidence that the respondent has cooperated with the applicant to jointly arrange counselling for the children. What I would have expected to see was an exchange of correspondence between the parties that they are jointly arranging counselling which means consulting with each other and exchanging the names and contact information and details about counselling professionals. That the respondent believes in counselling, or that she is making unilateral efforts to obtain counselling for the children, does not satisfy the court order.

Providing evidence that she has permitted the children to Facetime the Applicant

[18] The applicant's position is that the respondent has not provided such evidence. The respondent submitted that the relevant court order is that of Justice Nakonechny's of April 9, 2021, paragraph 3 of which states, "Neither parent shall impede the children from texting, phoning, or FaceTimeing (sic) with the other parent." The respondent stated that she has never prevented the children from FaceTiming the children but the fact is that the children are not interested in FaceTiming their father, whereas they regularly FaceTime her. The respondent stated that she is not going to force the children to FaceTime the applicant as this would be unnatural.

[19] I noted that Justice O'Brien's order states "Providing evidence that she has permitted the children to Facetime the Applicant." I agree there is a subtle difference between Justice Nakonechny's and Justice O'Brien's orders, however, both are operational. What is required is for the respondent to demonstrate that she has permitted the children to FaceTime the applicant. What I would have expected was some evidence that the respondent is initiating FaceTime contact, and helping the children contact the applicant via FaceTime. The respondent provided no evidence of this and simply maintained her position that she has not impeded the children's FaceTime access with their father and, in any event, they are not interested in FaceTiming him.

[20] I find that the respondent has not satisfied paragraph 4(d) of Justice O'Brien's order.

[21] Accordingly, as I have found three examples where the respondent has failed to satisfy the criteria for compliance indicated in Justice O'Brien's order, the respondent is not permitted to seek an order from the court.

[22] The respondent complained that I had not permitted her to explain certain misunderstandings and misrepresentations that had apparently been made through the course of this litigation with respect to Justice Shore's ex-parte order. I advised the respondent that, having found three instances where she remained non-compliant with judicial orders, I was not prepared to delve into another area where, apparently, the respondent may have been in compliance.

[23] For the foregoing reasons, the respondent's motion is dismissed.

Costs

[24] The applicant submitted that he had been wholly successful in resisting the respondent's motion which should have never been brought in the first place. The applicant sought $3,317.50 in costs on a full-indemnity basis based on a Bill of Costs filed with the court, plus attendance time at the hearing of the motion.

[25] The respondent claimed that she has no money to pay costs.

[26] Costs are in my discretion. As set out in rule 24 of the Family Law Rules and in Mattina v. Mattina, 2018 ONCA 867, modern costs rules are designed to foster four fundamental purposes:

(a) To partially indemnify successful litigants;

(b) To encourage settlement;

(d) To ensure that cases are dealt with justly under Rule 2(2) of the Family Law Rules.

[27] The importance of discouraging and sanctioning inappropriate behaviour by litigants has particular resonance here. The larger context is that the respondent continues to be in violation of a number of court orders. As I stated at the motion, the respondent's explanation always seems to be that she is not, in fact, in breach of any order on her interpretation of the facts. Usually, this seems to involve an alternate method of purportedly complying with the court order rather than simply doing what the court order, on its face, requires. I strained in this motion to understand the respondent's alternate way of compliance but, upon scrutiny of her arguments, her conduct simply amounts to ongoing non-compliance. Accordingly, I find that costs on a full-indemnity basis are warranted. The respondent's motion should never have been brought. This was not a case where, objectively, the respondent had made strenuous efforts to come into compliance with judicial orders but made a small mistake. The ink was barely dry on Justice O'Brien's order when the respondent decided to bring forward her motion. The respondent's actions in refusing to agree to a simple adjournment request from opposing counsel to start later in the day must be strongly condemned.

[28] Based on the factors identified in Rule 24 (12) of the Family Law Rules, and finding that the applicant's costs in the Bill of Costs are reasonable, I find that costs fixed in the amount of $3,000 (all-in) are appropriate and should be paid forthwith to the applicant.

[29] A draft order consistent with this endorsement shall be provided to me in WORD format through the family law team's judicial assistant Anna Maria Tiberio at AnnaMaria.Tiberio@Ontario.ca.

Pinto J.

Released: February 11, 2022

COURT FILE NO.: FS-20-20794

DATE: 20220211

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kyle Sanvictores

Applicant

– and –

Nancy Sanvictores

Respondent

REASONS FOR JUDGMENT

Pinto J.

Released: February 11, 2022

Sanvictores v. Sanvictores , 2022 ONSC 988

Case Summary

Overview

Start Time of Motion

Discussion

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

Providing evidence that she has cooperated with the Applicant to jointly arrange counselling for the children

Providing evidence that she has permitted the children to Facetime the Applicant

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues