Court File and Parties

COURT FILE NO.: FS-20-0073 DATE: 2023/07/07 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: P.G. Applicant – and – L.R. Respondent

Counsel: Self-represented (for P.G.) D. Chohan for the Defendant (L.R.) E. Fitzpatrick, for the Office of the Children’s Lawyer

HEARD: June 30 and July 6, 2023

Reasons for Decision

Ellies R.S.J.

[1] Ms. R. moves for an order admitting fresh evidence at trial and an order suspending Mr. G.’s parenting time, among other things. The motion arises in the context of a trial in which the main issues are decision making and child support.

[2] The evidence at trial was concluded and the matter was set for submissions on June 30, 2023. However, on June 25, Mr. G. removed the child, C. (age 13), from Ms. R.’s care and has failed to return her, in breach of a consent order dated April 26, 2023. The April 26 order was intended to be a final order, resolving the issue of parenting time at trial.

[3] On June 30, I granted the motion to introduce fresh evidence because, in my view, the four-part test set out in R. v. Palmer, [1980] 1 S.C.R. 759, was met. Although I attempted to hear the motion based only on the affidavit Ms. R. had filed in support of the motion, that proved to be impossible because I could not put the cross-examination questions being asked of her by Mr. G. into context. Therefore, I adjourned the motion and required Mr. G. and Ms. Vaillancourt, the OCL clinician, to serve and file their own affidavits. The motion resumed on July 6, 2023.

[4] According to Mr. G., C. called him using her sister, E.'s, Apple watch about 20 times on June 25, saying that she had been left alone, asking him to come and get her, and telling him that if he did not, she "was going to die" at her mother's house.

[5] According to Ms. R., she had taken E. and her son, B., to E.'s karate grading on June 25. Mr. G. arrived shortly after she returned home. He left shortly after that with C., who came out of the house to join him.

[6] There is no issue that, according to the April 26 order, Mr. G. was not supposed to have any of the children until June 29. C. has still not returned to Ms. R.’s home, nor have the other two children spent any parenting time with Mr. G.. According to Ms. R., they do not wish to see him.

[7] On Ms. R.’s behalf, Mr. Chohan stresses the importance of enforcing court orders and the broad enforcement powers available to me under r. 1(8) of the Family Law Rules: Boucher v. Sgovio, 2021 ONCA 709. He asks for an order that C. be returned immediately to Ms. R.’s care and that Mr. G.'s parenting time under the April 26 be suspended pending my final decision at trial.

[8] On behalf of the children, Ms. Fitzpatrick submits that the sudden change in the children's attitude from wanting throughout these proceedings to spend more time with both parents to polarized views in which E. and B. want only to be with Ms. R. and C. wants only to be with Mr. G. does not necessarily mean that either parent is trying to influence the children. She asks, therefore, that I give the children's wishes due weight.

[9] Clearly, the April 26 order has been breached by Mr. G.. His breach is not justified by his position that Ms. R. is also breaching the order when it comes to his parenting time with E. and B. The issue in this motion is only whether Mr. G. is in breach of the order and there is nothing in any alleged breach by Ms. R. that would justify what Mr. G. has done. There is no evidence that C.'s emotional, physical, or psychological well-being were in jeopardy on June 25. At its highest, the evidence shows that Ms. R. may have had some small degree of physical contact with C. while she was trying to take away C.'s cell phone.

[10] However, although the decision has been a difficult one, I have decided not to suspend Mr. G.'s parenting time under the April 26 order pending the final result at trial. My reasons are three-fold.

[11] First, as both the parties and the OCL admit, there is no threat to C.'s emotional, physical, or psychological well-being by allowing the present situation to continue pending the outcome of the trial. While I accept that there is a strong presumption in favour of keeping children together, C. and E. have a long history of interpersonal conflict such that this is not a situation in which any of the children are suffering by not being together, at least in the short term.

[12] Second, pursuant to the terms of the April 26 order, the parents are to have week-about parenting time during the summer. Thus, C. would have been at Mr. G.'s residence for half of the time, in any event.

[13] Finally, I believe that any decision I make to suspend Mr. G.'s parenting time should be based on the whole of the evidence called at trial and not just the evidence of events occurring only recently. Certainly, Mr. G.'s recent act of removing C. from Ms. R.’s care is relevant to that determination. But suspending parenting time is no small matter and, in my view, it should not be done temporarily when a final decision about parenting time is so close at hand. In that regard, as I directed at trial, the parties shall provide written submissions, limited to 25 type-written pages, exclusive of attachments, as follows:

(a) On behalf of Ms. R., within 30 days of today's date; (b) On behalf of Mr. G., within 45 days of today's date; (c) On behalf of the OCL, within 52 days of today's date.

[14] In the meanwhile, I order that Mr. G. return C. to Ms. R.’s care by no later than 5 p.m. on Sunday, July 9, 2023, that Mr. G.'s week-about parenting time will resume on July 23, 2023, and continue thereafter in accordance with the summer schedule proposed by Ms. R. (found at p. B108 of the Caselines master bundle), and that the parties otherwise comply with the terms of the April 26 order with respect to such things as which parent retrieves the children for summer parenting time.

[15] For the sake of clarity, should parenting time be exercised during the school year before a final order can be made, where Mr. G. has the children and a PA or PD falls on a Monday, such that Ms. R. cannot simply pick the children up from school that day, Mr. G. shall be responsible for returning the children to Ms. R.’s home. Any other interpretation of the April 26 order would be unreasonable. Mr. G. is not employed outside of the home and, at one time, proposed that he drive 40 minutes each way from his home twice a day to take the children to school if he was granted week-about parenting time during the school year: G.(P.) v. R.(L.), 2022 ONSC 1831, at para. 18 (5).

[16] I also order that both parents must make every reasonable effort to encourage the children to spend parenting time with the other parent and must make every reasonable effort to facilitate such parenting time.

[17] I wish to make it clear that this is a temporary order only and that I will be considering whether to vary the April 26 order on a final basis based on all of the evidence called at trial. In that regard, the parties should include submissions on the issue of parenting time in the written submissions referred to above. Their submissions should include submissions on the cost of the recent motion to re-open the trial.

M.G. Ellies R.S.J. Released: July 7, 2023