Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Holleigh D. Hrischenko, Applicant
AND:
Cristopher James Williams, Respondent
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: Martin Vamos, Counsel, for the Applicant Respondent, Self-Represented Robert Murdoch, Counsel, for the Office of the Children’s Lawyer
HEARD: February 10, 2023
ENDORSEMENT
Background
1On September 6, 2011 at an uncontested trial this court granted a final order which included the following:
a. Applicant mother to have sole custody of the only child of the relationship James who was two years old at the time (he is now 13).
b. The order specified that “the Respondent father was to have no access to the child. Upon completion of an anger management course and parenting course by the Respondent, access shall be in the discretion of the Applicant.”
2On November 12, 2020 the father commenced a motion to change that order.
3The matter has been extensively case managed.
4The Office of the Children’s Lawyer (OCL) assigned Robert Murdoch to represent the child. Mr. Murdoch has met with James on seven or eight occasions since May 2021. As well, the OCL has assigned a social worker Glory To to assist Mr. Murdoch. The social worker has also had in-depth involvement with James.
5On July 11, 2022 Justice Bingham reviewed a Trial Scheduling Endorsement Form with the parties and scheduled the matter for a three day trial during the sittings of January 9, 2023.
6On December 9, 2022 the parties consented to Justice Brown removing the matter from the January 9, 2023 trial sitting and rescheduling the three day trial for the April 2, 2023 sittings. The adjournment was to accommodate Mr. Murdoch.
7The father has now brought a motion seeking to further adjourn the trial. Counsel for the mother and the OCL both oppose the motion. Mr. Vamos characterizes the father’s request as an abuse of process.
The Father's Motion
8The father’s February 1, 2023 motion included requests for the following:
a. Adjourn the trial until sittings in September 2023.
b. Bank statements from the mother back to January 2018.
c. Business income and expense reports supplied to ODSP dating back to 2018.
d. Business name and operating licence number.
e. Invoices from Bethel Community Church to the mother’s business dating back to 2018.
f. Mother to provide the child James with a cellphone to be used “for contact without discrimination” (sic).
g. Costs.
9The father’s supporting affidavit dated February 1, 2023 included the following narrative:
a. He lacks sufficient financial disclosure from the mother to calculate arrears of section 7 expenses.
b. There are inconsistencies in the financial disclosure provided by the mother. He wishes to wait for CRA to assess and investigate her information.
c. He has filed a complaint with the OCL and wants their response prior to a trial.
d. The mother’s financial statement is not supported by the filed tax statement.
e. He is struggling to secure employment that will accommodate time off for court proceedings.
f. An adjournment of the trial would not affect the child as the only outstanding issues are financial.
g. The mother has refused his requests for bank statements back to 2018.
h. The mother has not proven the $100 per month in extra curricular activities which she is claiming.
i. The mother previously withdrew a claim for section 7 expenses but she is now seeking them again.
j. The mother claims to be unemployed and self-employed through her church. She has not provided documents to prove her status.
k. On December 26, 2022 the mother texted the child James demanding that he return from the father’s care. The child was very upset by this.
l. He has informed the OCL lawyer about the emotional abuse and mental abuse the child has been exposed to, but the OCL has not responded or followed up.
m. The mother ignores his messages.
The Mother's Response
10The mother’s responding affidavit of February 2, 2023 includes the following narrative:
a. The father seeks disclosure to verify section 7 expenses, but in Justice Brown’s endorsement of December 9, 2022, it was confirmed that the mother’s claim for contribution to special and extraordinary expenses, as set out in her Response to Motion To Change, was withdrawn. Paragraph 11 of the endorsement stated: "The disclosure being asked for by the Respondent is no longer relevant as the Applicant has withdrawn her claim for section 7 expenses."
b. In paragraph 9 of the December 9, 2022 endorsement the father was ordered to serve and file within 30 days: "an up to date Financial Statement and, for any of his expenses that are shared with his partner, he shall set out the total of the expense along with his share of same. He shall also include an explanation as to how he is funding his monthly expenses if those expenses exceed his monthly income." He has failed to comply with this order.
c. The mother’s lawyer explained to the father in writing why it is in the best interests of the child that the resolution of the file should not be further delayed.
d. The mother understands the father’s complaint to the OCL has been resolved, and Mr. Murdoch will be ready for trial.
e. The father’s request is an abuse of process, seeking to delay the determination of his child support obligation and arrears.
f. Pursuant to the order of Justice Chappel the father was to pay $326.57 in child support monthly commencing September 1, 2021. He is in arrears of $1,826.14, not including any further request for retroactive support.
g. The issue of James’ cell phone is a “red herring”. The father previously agreed with the mother to withhold the cell phone as James had allowed himself to fall victim to a scam. Police spoke at James’ school about the issue. The father has the cell phone.
h. The timesharing dispute on December 26, 2022 was straightforward. James was to be with the father between December 24 to 26, and the visit went well. James called the mother to ask if he could stay longer. The mother said no because the times had been clearly set out in the consent order of December 9, 2022, and the mother hadn’t seen James for Christmas. But she reassured James that he could spend more time with the father during the balance of the Christmas break. James was a bit upset but understood.
Analysis
11At the commencement of the hearing of the motion, the father confirmed he is withdrawing some of his requests for disclosure. He said he still seeks some financial disclosure. But he also acknowledged that he has already assembled his own financial disclosure which in his view will confirm his position as to how much child support he has paid. He disputes the exact amount of arrears outstanding, but he acknowledges there are arrears.
12Ultimately, during submissions the father indicated his main reason for requesting an adjournment is to allow him time to find employment. He said a pending trial date interferes with his ability to find employment because potential employers won’t want to hire someone who will soon have to take time off for a family court trial. He acknowledged however that he last worked on August 31, 2022 when he quit his job after the January 2023 trial date had already been set. He said he was unable to find employment during the fall of 2022 even though the then-scheduled-January 2023 trial was not “imminent.”
Best Interests of the Child
13The father insists delaying the trial will not affect the child because the only outstanding issues are financial. However, this does not appear to be precisely correct.
a. The OCL has had extensive involvement with the child James, and it would appear that Mr. Murdoch and the social worker have established a very good connection with the child.
b. Mr. Murdoch feels the parties are close to finalizing parenting arrangements, but so far they only have a temporary order. They have never signed final minutes on parenting issues.
c. So, until parenting issues are actually finalized, those parenting issues remain part of the currently scheduled trial. And that means Mr. Murdoch and the social worker have to keep interviewing James for updates.
d. Mr. Murdoch confirmed that he and the social worker met James by Zoom very recently, so they have up to date information about the child’s views and preferences. This means they are ready for an April trial.
e. If the trial is delayed, it will require additional interviews of James for the OCL to update its position.
14Given how long this matter has remained outstanding, I agree with Mr. Murdoch that it is in James’ best interests that this case be resolved as quickly as possible.
a. Children’s issues always take priority in family court.
b. If parenting issues have actually been resolved the terms of settlement should be formalized and removed from any further contention.
c. Parenting issues should be determined based solely on the best interests of the child.
d. Where there is no real disagreement about the appropriate parenting arrangements, children’s issues should not linger on the trial list through inattentiveness or as a bargaining wedge with respect to unrelated financial issues.
15Hopefully all issues can be resolved. But at the very least parenting issues should be finalized as quickly as possible – prior to trial -- to provide some relief for James and to put an end to ongoing updating interviews by the OCL and the social worker.
Ruling on Adjournment
16I agree with counsel for the mother and the OCL that the father’s motion should be dismissed.
a. The father participated in the scheduling of the original January 2023 trial date back in July 2022.
b. He participated in the rescheduling of the trial to the April 2023 sittings.
c. Whatever information the father deems relevant, he has known about a pending trial for a long time, and he has had ample opportunity to address disclosure issues.
d. Similarly, he has had a long time to try to find replacement employment after quitting his job. The trial – and closure from James’ perspective – cannot be delayed indefinitely, simply because the father has elected to relocate to a more remote southern Ontario community where employment opportunities appear to be more limited.
e. The father acknowledges that some of the disclosure he requested in his motion is no longer required.
f. While the mother should provide updated and comprehensive disclosure relevant to the outstanding financial issues, the father has not convinced me that there is any lack of disclosure justifying a delay in the trial.
g. In any event, some of the disclosure which the father now seeks has already been deemed to be irrelevant because the mother is no longer claiming section 7 expenses.
17Since the parties appear to be in agreement on parenting issues, I would urge them to direct their minds to formally settling these issues immediately and independently from financial issues. The trial judge is entitled to know what issues are actually in dispute. In any event, partial minutes of settlement may result in less trial time needing to be scheduled.
18In any event, this already delayed trial needs to proceed as scheduled. Everyone – especially James – needs closure and an end to the litigation.
19Mr. Vamos noted that in January the father served him with a financial statement but it turned out he sent the mother’s financial statement rather than his own. The father undertook to send his own financial statement immediately.
Costs
20The mother’s counsel seeks costs of $1,000.00 on the basis that the father’s motion was entirely inappropriate, and included requests for disclosure which were irrelevant. Indeed, the father abandoned some of his motion at the commencement of submissions today. Mr. Vamos requests that costs be payable prior to the April trial.
21The father says he can’t afford to pay the costs, and he feels it is unfair that on other occasions the mother has acted inappropriately without any costs sanction. He feels it is inappropriate for him to be penalized when the mother has not been penalized for improper behaviour on other occasions.
22It is not appropriate for me to make any determination or make any presumption about costs relating to other situations or court attendances. But the Rules require that I deal with costs in relation to each event as it comes before me.
23There is no doubt that the father was completely unsuccessful in his motion. Indeed, he abandoned some of his request when we started.
24The father’s main request was to adjourn the trial, and as noted above, I find that there was no justification for this request. Quite to the contrary, I agree with the mother and the OCL that it is important for everyone – especially James – that this family court litigation be concluded as quickly as possible.
25The mother was successful. Mr. Vamos had clearly indicated to the father that they were opposing the request. The father was given opportunities to mitigate his position by discontinuing the motion, but he elected to proceed. As a result he put the mother and the OCL to significant expense, needlessly.
26The OCL does not seek costs.
27The mother is entitled to costs. I have taken into account all of the Rule 24 considerations, including specifically the issues of success, ability to pay, reasonableness and proportionality.
28The parties were in court about two hours this morning. The mother had to prepare extensive responding materials on this very important issue.
29I believe the amount requested by the mother is reasonable, but I am not prepared to make costs payable prior to the trial. That could simply jeopardize a trial which I have already determined should proceed.
30The father shall pay to the mother costs fixed in the sum of $1,000.00 including of HST and disbursements.
Pazaratz J.
Date: February 10, 2023