Court File and Parties

COURT FILE NO.: FC-19-1692 DATE: 20231114 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: A.M.S. Applicant Mother – and – D.M. Respondent Father

Counsel: On her own behalf Nandishi Bekah, for the Respondent Father

HEARD: September 25, 2023

Justice Alex Finlayson

PART I: NATURE OF THIS MOTION

[1] This decision relates to a long motion, scheduled by me, after the parents engaged in extremely high conflict litigation before this Court for at least the last two years, and repeatedly caused chaos during that time. The long motion was supposed to be about parenting issues and support. But as the long motion approached, the mother withdrew her Application dated October 28, 2019, insisted that this Court order this case be closed (even though the father did not withdraw the claims in his Answer), and ultimately, she claimed to call the police, while in the court room, at the outset of argument on September 25, 2023.

[2] After the apparent call to the police ended and some further discussion with the mother about the wisdom of her withdrawal ensued, she left the court room. In the result, only the father had his long motion for various relief before the Court. But just because his motion was unopposed does not mean that the Court will automatically grant all that he asks for.

[3] The parents’ conduct before this Court is teetering on being an abuse of process, if it has not already crossed the line. In the mean time, the parties are causing emotional harm to their children. The Durham Children’s Aid Society (the “Society”) has already verified this, several times, yet it has closed its files more than once.

[4] Among the numerous heads of relief in his Amended Notice of Motion dated September 21, 2023, the father has essentially asked for child welfare orders; not under the Child, Youth and Family Services Act, 2017, but rather under the Divorce Act or the Children’s Law Reform Act. He has not explained what jurisdiction the Court has to order such relief under the latter two statutes. This decision is being sent to the Society. If the Society declines to commence a protection application, either of the parents is also free to take steps under section 81(4) of the Child, Youth and Family Services Act, 2017. If that is done, it must be done properly, on notice to the Society.

[5] In the meantime, without any motion from the mother, and based on the inadequate record that the father has placed before me, this Court is not inclined to significantly vary the previous temporary Orders of this Court, on a temporary basis. The majority of the relief claimed by the father in his Amended Notice of Motion is dismissed for the reasons that follow.

PART II: BACKGROUND

[6] According to the mother’s Application dated October 28, 2019, the parties started living together on December 1, 2010, they married on March 1, 2013 and they separated on October 25, 2019. The parties reconciled after their 2019 separation, and then separated again in 2021. According to the mother’s Amended Amended Application dated October 13, 2022, the parties separated on May 10, 2021. In his Answer to this Amended Amended Application filed on November 4, 2022, the father says that the parties separated for a second and final time on July 17, 2021, not May 10.

[7] The parties are the parents of three children, named L.S. age 11 (almost 12), C.M., age 10 and T.M., age 9.

[8] The Continuing Record now stands at four volumes thick.

[9] Among the numerous heads of relief in his Amended Notice of Motion dated September 21, 2023, the father seeks orders “removing” the children from the mother, and “placing” them with his family members. He initially asked for orders removing the children from the mother and placing them “in the foster care system”, but he struck that request for relief from his original Notice of Motion when he amended it.

[10] That is not all that the father seeks. Specifically, he seeks in excess of 20 different Orders in his Amended Notice of Motion. These include:

• an order that “the Applicant’s Withdrawal stand and she not be permitted to withdraw her withdrawal”;
• “an order that the Applicant’s pleadings be struck and that this matter proceed by way of uncontested trial”, even though the mother has already withdrawn her Application;
• an order declaring the mother to be a vexatious litigant, even though he too has breached orders, filed copious amounts of material, and brought multiple motions, over the lifespan of this case;
• an order that the mother must seek leave from the Court before being granted permission to start another proceeding, into which her vexatious litigant declaration will also carry through;
• an order requiring the mother to undergo a mental health assessment, even though I have already made orders, on consent, for a custody and access assessment, to include a mental health assessment of both parents;
• primary decision-making respecting the children, in the face of Leef J.’s December 12, 2019 Order for temporary joint decision-making and a week about schedule;
• temporary decision making until the previously ordered assessment is completed;
• the order that the children be “removed” from the mother and placed elsewhere;
• an order that the mother not have parenting time or contact with the children, including prohibitions against attending at the children’s school, appointments, and at the homes of the paternal uncle and the grandparents;
• an order varying Leef J.’s temporary order for the week about schedule, to reduce his own parenting time, too;
• an order that the children’s passports be given to the father;
• police enforcement;
• an order that the mother’s income be imputed at $90,000 for the purposes of calculating support, even though the mother was granted leave to pursue support on this motion, and then did not do so;
• an order compelling the mother to sign a “Miglin Release” of spousal support, something which there is no jurisdiction in this Court to order;
• “an order that records from all agencies that have had contact with the children and/or the Applicant and the Respondent be released without redaction and without needing the consent of the parties”;
• an order that the mother “produce full and frank disclosure”;
• an order that the mother maintain health and dental benefits for herself and the children, and life insurance policies for the children in the amount of $500,000.00; and
• an order that the matrimonial home designation placed by the mother against the paternal grandfather’s home be removed.

PART III: PRIOR PROCEEDINGS

[11] For this motion, I directed that comprehensive information be put before me in singular affidavits, and I ordered the parties to file facta that summarized the prior proceedings. The mother failed to file anything. The father’s affidavit is replete with argument and focused almost exclusively on the parental conflict. This has put the Court in a very difficult position. This case concerns three vulnerable children. The Court needs comprehensive evidence about the children’s best interests, to make the right decision.

[12] To put this motion into its proper context, and to assist my colleagues before whom this matter may come in the future, I will summarize the prior proceedings in some detail.

A. The Mother’s First Ex Parte Motion and the Father’s Cross Motion

[13] This matter first came before the Court on October 28, 2019 by way of the mother’s very first ex parte motion. She sought orders for temporary sole custody (as it was then referred to), a restraining order, restrictions on communication, supervised parenting time for the father, and police enforcement.

[14] The mother asserted that the father had committed acts of physical violence towards herself and the children, and acts of psychological abuse. She said there had been police and Society involvement.

[15] On October 28, 2019, Rowsell J. made an order that the children were to remain in the mother’s care, he granted the restraining order, and he restricted the parties’ communication. As this was done on an ex parte basis, the motion had to return before the Court.

[16] The parties next appeared before Rowsell J. on October 31, 2019. On that day, they entered into a temporary consent for an order for custody to the mother, that the father would have supervised parenting time, and that the paternal grandmother could attend supervised visits, but no other paternal relative could attend or have contact with the children via other means during supervised visits. They also agreed that the restraining order would continue. A new date was selected for the motion to continue.

[17] The return of the mother’s ex parte motion was ultimately argued on December 12, 2019. On December 5, 2019, a week earlier, the father brought a cross-motion, asking for a variety of relief, that included orders lifting the supervision, a shared parenting arrangement, an order terminating the restraining Order, and terms respecting the parties’ communication.

[18] Leef J. heard the return of these motions. Leef J. delivered oral reasons. Neither of the parents ordered and provided me with a transcript of the reasons. Consequently, I do not know what findings the Court made, and I do not have the original basis of the Order, against which to now assess change.

[19] As set out in her Endorsement, Leef J. ordered, among other things, that:

(1) until the father secured his own residence, he would have unsupervised parenting time on Wednesdays from 4:30 PM until 7 PM, and on every weekend from Friday at 7:00 PM until Sunday at 7:00 PM, with the exception of the first weekend of each month; (2) once the father secured his own residence, there was to be a week about schedule, with exchanges to take place on Fridays; (3) joint custody, as it was then referred to; (4) a mutual non-removal order; (5) the restrictions on contact between the children and their paternal family were terminated; (6) the children’s Canadian and German passports were to be deposited with the Court; (7) the parties were to work with Cindy Chisvin, as a neutral family professional; (8) the parties were to communicate by AppClose; and (9) the mother was to pay costs to the father in the amount of $8,000.00, payable once an order for child support was made.

[20] Although a number of Orders have been subsequently made tweaking what Leef J. put in place, Leef J.’s Order of December 12, 2019 remains the governing Order.

B. The Parties’ Reconciliation

[21] There was a relative period of calm after this. According to the mother’s affidavit of November 16, 2021, the parties reconciled in December of 2019. But the parties then separated again at some point in the spring or early summer of 2021. On July 14, 2021, the father was arrested and charged with sexual assault.

C. The Sexual Assault Charge, the Mother’s 14B Motion of October 25, 2021, and the Father’s 14B Motion in Response

[22] On October 25, 2021, the mother filed a 14B Motion seeking leave to bring another motion. Her request was to essentially restore what had been ordered on her first ex parte motion, before the return of that motion that resulted in the Order of Leef J. of December 12, 2019.

[23] In particular, the mother wanted to bring a motion for a restraining Order, sole decision-making and primary residence of the children, for an order that the father again have supervised parenting time, for restrictions on the paternal grandfather and uncle from being in the presence of the children, and for police enforcement.

[24] In her affidavit of October 21, 2021, the mother asserted that the father had been harassing her, that there was a “criminal court restraining order in place” and that she was in the process of filing peace bonds against various paternal family members. The mother further asserted that on July 14, 2021, the father had sexually assaulted her while lying in bed next to the oldest child, L.S. The mother provided some other evidence about conflict that the paternal family had engaged in, and she alleged physical abuse of the children.

[25] The father responded to the mother’s 14B Motion, alleging that the mother was not complying with the week about parenting schedule, and that she was withholding parenting time. In his affidavit, the father admitted that he had been charged with the sexual assault, but he denied having committed it, or that he had committed a physical assault.

[26] The conditions of the father’s release pertaining to the sexual assault charge prevented him from attending at places the mother was known to be. The conditions also precluded other forms of contact with the mother except through legal counsel or family court orders, and except through an approved third party to arrange for visits between the father and the children. The father advised the Court through his affidavit, that the Society had already undertaken an investigation, but decided to close its file on September 27, 2021. The father provided the Court with a letter to this effect.

[27] This 14B Motion was not dealt immediately dealt with, until November 23, 2021. In the mean time, the mother brought another “urgent” ex parte motion, now on November 16, 2021.

D. The Mother’s Ex Parte Motion of November 16, 2021

[28] The mother’s next ex parte motion of November 16, 2021 concerned a request for orders permitting her to enroll the children in a particular school for “in-person schooling immediately” [^1]. At this point, the father had moved to Brampton to live with his parents after the separation, and the mother and the children remained in Durham. I gather the parties had continued to have the children attend school virtually, and they no longer agreed.

[29] While the genesis of this motion concerned the method of the children’s schooling, the mother again repeated her request for an order for primary residence in this ex parte motion, but now with the father having parenting time on alternating weekends, different from what she had claimed in the 14B Motion of October 25, 2021. She asked for an order that the children attend counselling with a person named Jennifer Vieira. She said that the week about parenting schedule was no longer working, given the father’s move to Brampton.

[30] In her affidavit of November 16, 2021, in addition to discussing the alleged abuse, the mother raised other concerns about the children’s behaviour, including aggressive behaviour, bed wetting, and complaints of physical pain. It seems that as of this point, Ms. Chisvin, whom Leef J. had previously ordered to work with the family, was no longer working with the family.

[31] Fryer J. endorsed that the mother’s motion should not proceed on an ex parte basis. She also declined to schedule a motion date, and instead said that the father could deliver a response, if he otherwise did not reconsider his position about the school. Fryer J. directed that the mother’s ex parte motion would be treated as a 14B Motion she would rule on, once the father replied, or after his time to reply elapsed.

[32] The father responded to the mother’s motion on November 21, 2021, setting out his position about virtual versus in person schooling. In regards to counselling, he questioned Ms. Vieria’s qualifications, and indicated that Leef J. had already ordered the parties to work with Ms. Chisvin. He said that the parties had commenced counselling with her, with the expectation that the children would be involved at some point. He accused the mother of raising a conflict of interest about Ms. Chisvin. He suggested that Families in Transition as an alternative.

E. The Endorsement of Nicholson J. dated November 23, 2021

[33] On November 23, 2021, two days after the father’s response to the mother’s school motion, Nicholson J. ruled on the earlier 14B Motion of October 25, 2021, and response to it. He endorsed that both parties had raised issues that required urgent attention, and so urgent motions would be scheduled.

[34] Nicholson J. also indicated that because of their length, the motions should be scheduled during the last week of the fall 2021 trial sittings, or during the February of 2022 sittings, but that all existing orders were to be followed in the interim.

F. The Father’s Ex Parte Motion of December 6, 2021

[35] The next documents filed consisted of another ex parte motion, now brought by the father, dated December 6, 2021. The father asked for a new order for a week about schedule (although this had already been ordered by Leef J. and continued by Nicholson J.), communication by AppClose (also already ordered by Leef J. and continued by Nicholson J.), and further terms respecting exchanges, a Christmas schedule and police enforcement.

[36] In his affidavit of December 6, 2021, the father confirmed that he was living with his parents in Brampton since the “false allegations of sexual assault”. He said the children were attending virtual school. He said his parents were assisting with the exchanges to avoid any potential breach of his undertaking, given respecting the sexual assault charge.

[37] The father complained that since Nicholson J.’s Endorsement of November 23, 2021, the mother had been “forcing the exchanges at different cities and at different times” such that travel time was taking away from his parenting time. He made additional statements about the children continuing in school virtually. He complained that the children started to exhibit rowdy and rebellious behaviour, since the mother terminated the week about schedule.

[38] On December 7, 2021 Scott J. ordered that the father’s motion was not properly an ex parte motion, and directed that service was required.

G. The Order of Fryer J. dated January 13, 2022

[39] On January 13, 2022, Fryer J. ruled on the school motion. Notably at this point, there had not yet even been a case conference, and the case had been before the Court for over two years. Fryer J. also noted in her Endorsement, that the parties had not even taken the steps needed to bring the urgent motions that Nicholson J. had permitted them to bring in his Endorsement of November 23, 2021.

[40] In the result, Fryer J. dismissed the 14B Motion of November 16, 2021 without prejudice, and ordered an expedited case conference. She also indicated that the conference judge could schedule any motions thereafter.

H. The First Case Conference Before Rowsell J. on March 4, 2022

[41] The very first case conference in this case happened on March 4, 2022 before Rowsell J. It proceeded at a time when this case had been before the Court for almost 2 ½ years. In his Endorsement, Rowsell J. granted leave for motions to be brought respecting support and parenting. He also appointed the Office of the Children’s Lawyer.

[42] In regards to the counselling dispute, Rowsell J. ordered that if counselling was recommended by the children’s school or other professionals interacting with the children, then the parents were to follow those recommendations. Rowsell J. wrote that if there was to be counselling, then it was to ideally occur with someone covered by the father’s insurance.

[43] Rowsell J. otherwise ordered a number of other terms. For example, he ordered exchanges to take place at the school, unless another place was agreed to in writing. He ordered the parties to communicate using a parenting App. That said, the general structure of the parenting order that Leef J. had ordered, remained in tact. Notably, this is yet another family court order made after the father’s criminal charge, in accordance with the release conditions.

[44] Finally, Rowsell J. scheduled a Settlement Conference for October 11, 2022.

I. The Mother’s 14B Motion dated September 7, 2022 and the Father’s 14B Motion of September 8, 2022

[45] Even though Rowsell J. had already granted leave for motions, on or around September 7, 2022, the mother filed a 14B Motion asking for leave to bring another urgent motion, yet again to change the children’s primary residence, to require the father to have supervised parenting time, and for various other procedural orders.

[46] The mother repeated much of the aforementioned history and told the Court that the father’s criminal trial was not scheduled until November of 2023. She asserted that the matter required immediate court intervention. She said there had been conflict between her and the paternal relatives at almost every single exchange, even though Rowsell J. had ordered exchanges to occur at the school. She said that she did not feel safe at exchanges. She told the Court about various conflict over getting supervised exchanges in place in the first place, which she said was fraught with problems. She also said the father had guns in his possession, something that Rowsell J. prohibited in his October 11, 2022 Order.

[47] The mother also repeated that the children were being abused in the father’s care, and she said the paternal grandfather was abusing them too. She said that the father did not bring the children to medical appointments, refused to give them prescribed medication and refused to take the children to counselling.

[48] On September 8, 2022, the father brought a 14B Motion, too. He also sought leave to bring another motion, this time to find the mother in non-compliance pursuant to rule 1(8) of the Family Law Rules, and to compel the mother to comply with the week about parenting schedule as of September 9, 2022.

[49] According to his affidavit sworn September 8, 2022, the father said that the mother had continuously withheld the children from him since August 19, 2022, and he iterated that she had done so previously. Most recently, this included a 22-day period between July 8 and July 30, 2022, according to the father.

[50] The father said that on August 19, 2022 the mother sent him an email alleging “serious safety concerns”, now accusing him of having inflicted a variety of punishments on the children like denying them food, forced push-ups, exposing the children to adult conflict, and yelling in his home. The father admitted that he had raised his voice at times to get the children’s attention if they were “doing something dangerous”. He admitted that he had given them the choice to do push ups as a consequence for any bad behaviour. He said the Society had been contacted on several occasions about these matters, and that the Society closed their files.

[51] On September 16, 2022, Leef J. granted leave for urgent motions to be heard during the November 2022 sittings, on a priority basis. She also converted the Settlement Conference that Rowsell J. had already booked before him on October 11, 2022, to be a combined settlement conference and trial scheduling conference. However, despite her scheduling Order, she indicated that Rowsell J. could decide whether the matter would proceed as an urgent motion, or by way of a trial instead, during the November 2022 sittings.

J. The Appearance Before Rowsell J. on October 11, 2022

[52] There have been changes in counsel over the lifespan of this case. There have been periods of representation and self-representation. But both parties were represented at this point. [^2] In that context, Rowsell J. endorsed on October 11, 2022, that neither counsel were ready to have a trial date set. As such, further to Leef J.’s Endorsement of September 16, 2022, Rowsell J. ordered that a ½ day motion on parenting issues was to be scheduled. He made various procedural orders relating to the bringing of that motion. He then set the matter down for a Trial Scheduling Conference on April 12, 2023, with the expectation that the parties were to be ready for a May trial.

[53] In the same Endorsement, Rowsell J. indicated that the parties consented to having IEPs done, and to the SERT programs at the children’s schools. He ordered the parents to sign consents for these things to occur. He ordered the parties to use AppClose to communicate, again. He ordered, also again, that parenting exchanges were to take place at school, with a named individual present. He ordered that the parents could agree to alternate supervisors who could be present instead, but only if they did so in writing. Lastly, Rowsell J. ordered the parties to sign consents for the release of police records, child welfare records from the Peel and Durham Children’s Aid Societies, school records and counselling records involving the children.

K. The Mother’s 14B Motion dated October 25, 2022

[54] At this point, the parties should have proceeded to the half day motion that Rowsell J. set, but the scheduling Order that Rowsell J. made was not followed, and this derailed the motion. On October 25, 2022, the mother, now representing herself, filed a 14B Motion seeking an extension of time to file her motion material. She explained that when she came to the Court house, the filing office was “busy”. She raised other issues respecting commissioning her material, such that it was not done properly.

[55] For reasons that I do not understand, (perhaps due to administrative error), the mother’s 14B Motion only came before me on November 17, 2022. The 14B Motion came up to chambers after the deadline for the filing of her material. This impacted the motion.

[56] I made a new scheduling order as a result. The motion would have to proceed in February, 2023, instead.

L. The Mother’s Long Motion Material dated November 18, 2022

[57] The mother then filed her Notice of Motion and an affidavit on November 18, 2022. Much like the Amended Notice of Motion that the father has now placed before the Court, the mother’s Notice of Motion dated November 18, 2022 was lengthy. She claimed some 30 paragraphs of relief. Similarly, the relief claimed also exceeded the scope of the leave that Rowsell J. granted.

[58] In particular, the mother repeated her earlier motions claims for decision-making, primary residence, supervised parenting time for the father, and police enforcement. I gather that by this point, the parties had been made aware that the OCL had declined to accept the Court’s earlier order appointing it. The mother therefore claimed an order appointing the OCL, again, or for a Voice of the Child Report.

[59] In addition, the mother claimed orders seeking to impute income to the father, for child support, an order requiring the father to disclose the location of his parents’ new home, an order that the children not spend overnights in an unknown location or in the parents’ home, various other parenting orders, an order directing the father to consent to having the children undergo a trauma assessment, the return of the children’s passports, life insurance, health insurance, and relief in connection with a family trailer and the “matrimonial home in Brampton”.

[60] Notably, the mother for the first time claimed an order to compel the father to submit to a mental health assessment pursuant to section 105(2) of the Courts of Justice Act.

[61] Much of the mother’s supporting affidavit repeats the history and complaints contained in previous affidavits. In addition, the mother filed certain communications from the C.M.’s and T.M.’s school, expressing concerns about the children’s behaviour, which the mother linked to “distress in our past family life and attending virtual school from 2020 to end of February 2022.” [^3] The mother also said that the father failed to consent to the children having an IEP, and to the SERT programs, despite the Order of Rowsell J. dated October 11, 2022.

[62] The mother made reference to various Society investigations in her affidavit. She said the children had now started to receive counselling at Family Services of Durham as of October 19, 2022, and that counsellors had called the Society because of the children’s disclosures.

M. The Father’s Cross Motion

[63] In his cross-motion, the father sought an order continuing the Order of Leef J. In addition, he asked for daily facetime calls, which he said had been previously agreed to between the parents in counselling, and he asked for an order that the mother not interrogate the children about their parenting time with him. He asked for various holiday time between December 2022 and Father’s Day in 2023. He asked for decision-making, make up time, police enforcement and terms respecting exchanges.

[64] The father asked for reunification therapy. He asked for relief under rule 1(8) of the Family Law Rules. He asked for an order preventing the mother from disparaging him, and other miscellaneous relief.

[65] Notably, the father asked for a section 30 assessment.

[66] In his accompanying affidavit, the father repeated a number of statements that he had made in previous affidavits. He set out more detail of various conflicts. He set out various additional periods of time that the mother had withheld the children from him, too. These periods included time between February 11 and 25, 2022, March 19 and 21, 2022, three days around April 15, 2022, July 8 to July 20, 2022, and August 19, to September 9, 2022.

[67] The father accused the mother of having used the police and the Society as tools of harassment against him.

N. The Further Motion Material From The Mother

[68] This motion continued to spiral out of control. The mother filed a reply affidavit. She then filed further affidavits of January 26, 2023 and February 9, 2023, in contravention of the scheduling Order.

[69] In her affidavit of January 26, 2023, the mother said that C.M. was suffering from constant exhaustion, and that he had been diagnosed with Somatic Symptom Disorder. The mother said that the family doctor recommended continued psychotherapy and made a referral to the child psychiatric department at Lakeridge. The mother said that T.M. had been “diagnosed with suicidal ideation”, and L.M. had “chronic abdominal pain and it is believed to be somatic in nature”.

[70] The mother also said that she believed a section 30 assessment was necessary.

O. The Father’s Amended Notice of Motion

[71] The father then responded in the midst of this, with an Amended Notice of Motion dated February 6, 2023. In it, he sought different terms respecting the holidays, an order requiring the mother to also submit to a mental health evaluation, and an order that she have supervised parenting time. He deleted his earlier request for a section 30 assessment.

P. The Long Motions Did Not Proceed During the February 2023 Trial Sittings

[72] The long motions did not get called during the sittings in February of 2023.

Q. The Mother’s Ex Parte Motion dated March 9, 2023

[73] The next event was another ex parte motion, now dated March 9, 2023, brought by the mother. Although her requests for relief were pared down from what she included in her Notice of Motion for the long motion, the mother nevertheless repeated much of the prayers for relief that she had claimed in the long motion, but now to proceed ex parte.

[74] It seems what precipitated this motion, other than the fact that the long motion had not yet been called, was that the father decided to overhold the children. The Court notes that he did this after complaining in his long motion material, that the mother had done the exact same to him.

[75] The mother’s ex parte motion came before me on March 9, 2023. Other than the 14B in November of 2022 about scheduling, this was my first interaction with this family. I ordered the parties to appear before me on March 10, 2023.

R. The Various Attendances on the Mother’s Ex Parte Motion

[76] It took some three attendances to resolve the mother’s latest ex parte motion.

[77] The first attendance on it, occurred on March 10, 2023. On that day, the father’s counsel confirmed that the father had in fact kept the children, but not in his care. He sent the children to live with his parents.

[78] Counsel for the father also said that the father had telephoned the police and the Society to report “serious incidents’, including the potential poisoning of the children. In his motion material now before the Court on this long motion, the father denies having alleged this.

[79] This was an alarming allegation. After hearing it, I scheduled a quick return date on the ex parte motion for March 17, 2023, permitted the father to respond, and I requested that the Society write a report to the Court about the state of its latest investigation into the “serious incidents”.

S. The Father’s Motion Material

[80] The father then filed another Notice of Motion and an affidavit, now sworn March 14, 2023. In it, he said that on February 24, 2023, the mother took L.S. to the emergency room in Bowmanville for an alleged stomach ache. He said that the mother’s alarming behaviour towards the children was causing them irreversible psychological and potentially physical harm. He said that he had not been able to bring an urgent motion yet, due to some delay in obtaining Society records.

[81] The father went on to say that the mother had taken the children to the hospital at least 12 times since September of 2022. He said that C.M. had been diagnosed with Somatic Symptom Disorder, a diagnosis that he described as a “psychologically unwell person” unconsciously fabricating symptoms that have no actual physical cause. He said that he was fearful, that the mother had been adding “adulterants to the children’s food or choosing food or dietary supplements to cause abdominal stress”. He said that L.S. had been subjected to an ultrasound, but that his test results were not in line with his reported condition. He then said that he believes that the mother suffers from Munchausen Syndrome by Proxy.

T. The Society’s Response to the Court’s March 10, 2023 Endorsement and the Child Welfare History Concerning this Family

[82] In response to the Court’s Endorsement of March 10, 2023, the Society filed a letter of child protection worker Kelly Emrick dated March 16, 2023. Ms. Emrick then filed a further “follow up letter” of the same date, as she had been able to meet with the children in the father’s home just before the March 17, 2023 appearance. Heather Chan, counsel from the Society, and Ms. Emrick also attended on March 17, 2023.

[83] According to Ms. Emrick’s main letter:

(1) Between February 6, 2015 and February 24, 2023, Peel Children’s Aid Society and Durham Children’s Aid Society received a total of twenty nine phone calls regarding the children from family members, police, childcare providers, the children’s schools, counsellors, social service providers, health care providers and anonymous parties; (2) Between the two agencies, there had been nine investigations and fifteen “Intake/Community Link/No Direct Client Contact reports” ; and (3) Given the large number, Ms. Emrick summarized these various investigations and child welfare responses, into a chart that she appended to the letter.

[84] According Ms. Emrick’s supplementary letter of March 16, 2023, on March 3, 2023 the father complained to the Society, that the mother had not been sharing medical information with him since 2019. He complained she was rotating the children around different doctors, caregivers and counsellors. He alleged she was taking the children to hospitals for unneeded medical procedures. He also complained that she was medically abusing the children by taking them to the hospital against their will.

[85] The Society had not yet investigated these complaints. In fact, without a proceeding before the Court and the ability to obtain an Order, or without the parents’ cooperation respecting the release of health information, the Society could not investigate.

U. The Court Appearance on March 17, 2023

[86] This Court admonished the parents for their conduct. I then ordered them, as had been ordered before, the resume following the governing Order of Leef J. dated December 12, 2019, and any orders subsequent made. I observe yet again, that this is yet another family court order made after the date of the father’s release conditions. I further ordered the children to resume attending counselling at Family Services of Durham, which I then understood, had been interrupted and the father objected to.

[87] By this point, both parties had asked the Court for additional orders appointing the OCL, but Rowsell J. had already ordered that, and the OCL declined the Court’s earlier referral. In addition, they both asked for orders for mental health assessments of the other, for a custody and access assessment, or for some combination thereof (although in the case of the custody and access assessment, the father asked for it first, the mother agreed, and the father then retracted his request). As such, I put the matter over again, for a brief time to March 31, 2023, to enable the parties to properly put before me, the information needed for the Court to Order a section 30 assessment. [^4] I also took the unusual step of making an Order in a private proceeding about parenting, of ordering the parents to sign releases of medical information, to enable the Society to investigate. [^5]

[88] I rescheduled the long motion to the May 2023 sittings. I prohibited both of the parties from filing any further materials, as it very much appeared to me that they had already both violated the directions Rowsell J. had given on October 11, 2022 respecting the motion material. I cautioned the parties to stop filing excessive/repetitive 14B Motions, but ordered that they could do so if any truly urgent issues arose. Such motions could be brought to my attention or to the attention of Rowsell J. The parties would go on to violate those aspects of my Order, too.

[89] Like Leef J. had done before me in the fall of 2022, I also left the ultimate question of whether the long motion would proceed during the May 2023 sittings to the discretion of Rowsell J., as the case management judge. For example, as there would now be an assessment, it might not make sense to argue a motion for relief pending the assessment.

V. The Appearance on March 31, 2023

[90] The parties reappeared before me on March 31, 2023 to finalize the terms of an order for the custody and access and mental health assessments. Ms. Chan and Ms. Emrick from the Society also reattended to provide an update.

[91] I appointed Howard Hurwitz to undertake a custody and access assessment, and Dr. Daniel Fitzgerald to assess the parents’ mental health within the ambit of the custody and access assessment. Both parents agreed to this. I was told that Mr. Hurwitz was ready to start his assessment very soon, in April, and Dr. Fitzgerald would do so in May. I also made an order about apportionment of the cost of this assessment. This was not on consent.

[92] The Society reported that it was still in the process of gathering medical information to investigate the “poisoning” and other health allegations. The Society also said that it had a discussion with the school, and the father needed to sign documentation for C.M. to return to participating in the classroom.

W. The Trial Scheduling Conference Before Rowsell J. on April 12, 2023

[93] My Order of March 17, 2023 specifically contemplated that the parties were supposed to attend before Rowsell J. for the already scheduled next event on April 12, 2023, at a minimum to discuss whether the long motion would proceed in May in light of the assessment. The parties ignored this aspect of my Endorsement.

[94] The parties instead adjourned the matter though the trial coordinator’s office. According to the Endorsement of Rowsell J. dated April 12, 2023, the mother also attended on her own for some reason. She asked Rowsell J. to put the trial scheduling conference over to November 17, 2023.

X. The Mother’s 14B Motion dated April 20, 2023, the Father’s 14B Motion dated April 24, 2023, and the Father’s Arrest for an Alleged Assault

[95] A mere eight days later on April 20, 2023, the mother filed another 14B Motion, asking for a date for a contempt motion, because she claimed the father had not signed certain school documentation, she said he was obstructing counselling, and she said he had committed various other alleged breaches. This could have been dealt with had the parties appeared before Rowsell J. as they were supposed to.

[96] On April 24, 2023, the father filed a responding 14B Motion asking that the mother’s 14B Motion be dismissed. In his responding affidavit, he advised that he had now been arrested. More information about this would follow. He would then be arrested a second time just a few days later on May 1, 2023, for an alleged breach. As a result of these charges, coupled with the mother’s conduct, the assessments that the Court had just ordered on consent became completely derailed.

[97] The two 14Bs were not addressed on their merits. Before they were adjudicated, the mother filed a Notice of Withdrawal of that 14B Motion and of her accompanying affidavit on April 26, 2023. On May 8, 2023, Rowsell J. endorsed that the father’s responding 14B Motion was rendered unnecessary, because the mother had withdrawn hers.

Y. The Mother’s Breach of My Prohibition Against Filing Further Material

[98] After the parties chose not to appear before Rowsell J. on April 12, 2023 to address the long motion proceeding or not, in contravention of my Order of March 31, 2023, the mother filed further affidavit material on May 12, 2023, for the long motion.

[99] Now the mother asked for an order that the section 30 assessment not proceed, due to the new criminal charges. She also asked the Court to change the earlier Order respecting payment of the assessment.

Z. The Mother’s Evidence About the Assault and Breach Charges

[100] In mid April, the father was charged with an assault pursuant to section 266 of the Criminal Code. According to the mother’s new, improperly filed affidavit of May 12, 2023, the children were in the father’s care from April 11 to April 18, 2023. On April 17, 2023, someone at the school told the mother that C.M. “seemed off” and was “not himself”. The mother says she got called into the school because the child was crying. She said she noticed a 4cm bruise on the child’s right arm, and said the child reported that he had been hit by the father three times. Apparently other family members and the child’s siblings witnessed the assault.

[101] The police and the Society were then called. The mother now objected to the assessment proceeding, because the child would have to “sit with his abuser”. The mother also “deemed” the assessment to be unsafe due to various health issues she said that L.S. and C.M. were experiencing.

[102] Pursuant to the terms of his undertaking relating to this assault charge, the father is once again prohibited from having contact with or attending at places the children or the mother are known to be, except pursuant to a family court order or a child protection order, made after the date of the charge. The new undertaking also makes exceptions for communication through counsel, or in mediation.

[103] The charge for the alleged breach was laid on May 1, 2023. In the May 12, 2023 affidavit, the mother says that on April 30, 2023, the father telephoned the membership director of the German social club in which she says that she and the children are members. The mother claimed that the father asked the membership director if the mother was a member, and then asked to renew his membership. The mother said this is a breach. The mother said that the father then showed up at the club and parked next to her car.

[104] As a result of this further charge, there is now a release Order of criminal court dated May 1, 2023. It prohibits the father from communicating with or coming within 2 kms of the mother, to include a German social club where the breach is alleged to have occurred, except in the presence of or through legal counsel. Also according to this release Order, any parenting time needs to be arranged through a mutually agreed upon third party, or through a family court order, made after May 1, 2023.

AA. The Mother’s Next 14B Motion dated June 15, 2023

[105] On June 15, 2023, the mother filed another 14B Motion without providing any affidavit evidence to accompany it. In the body of the 14B Motion form itself, she repeated similar (and other) requests for relief that had been contained in the May 12, 2023 affidavit.

[106] I endorsed that I was not prepared to vary the previous order for the assessment, achieved over several attendances in March, on the mother’s 14B Motion that did not include any accompanying evidence. I also indicated that if the long motion was not called, now on the June 2023 sittings, that the parties could appear before me on July 14, 2023, to deal with next steps. I endorsed that the Court required documentation about the new charges and any release conditions, as well as evidence about the status of the section 30 assessment.

BB. The Father’s Evidence About the Assault and Breach Charges

[107] On July 10, 2023 the father filed an affidavit denying the assault and setting out his account of the incident at the social club. The father would later repeat this evidence in his affidavit for this motion.

[108] In regards to the assault charge, the father denies that he struck the child. He says that he has not yet even obtained disclosure from the police as to the nature of the charges. He says that other adults were present when the alleged assault is said to have occurred, and have not been contacted. The father says that no other inquiry has been made into previous allegations, and no medical disclosure was given to the police.

[109] The father goes on to say that in the Society’s files, there is a photograph of a bruise allegedly caused by the father, but he and family members had noticed it after picking the child up from the mother prior to the alleged assault. The father attached to his affidavit for this motion various photographs that he says he had taken prior to the assault allegation, showing a bruise. He also points out what he describes as inconsistencies in the children’s statements to the Society.

[110] In regards to the breach charge, the father said he called the social club to inquire whether the mother was there before attending there himself, even though he knew that the mother had not attended the social club in over 5 years. When he arrived, the manager met him in the parking lot and advised him that the mother was in the building, so he left without entering the premises. The father was then arrested and charged.

[111] The father has not had parenting time since the assault charge in April.

CC. The Appearance on July 14, 2023

[112] The parties appeared before me on July 14, 2023. The father arranged for Mr. Hurwitz to attend, also.

[113] At this appearance, the mother objected orally to the assessment continuing. The Court declined to vacate the order for the assessment. The Court held a discussion with the parties and with Mr. Hurwitz about what was required for the assessment to get underway.

[114] The Court ordered a number of new terms to empower Mr. Hurwitz to continue with his assessment. There are 17 terms in the Endorsement that I do not intend to repeat in their entirety. As an example only, I ordered the parents to sign consents for the release of whatever information Mr. Hurwitz required. I also ordered the release of OHIP records to Mr. Hurwitz so that he could find out exactly where the children had attended for medical appointments, and then obtain health records directly if there was a lack of cooperation from either parent. I ordered that Mr. Hurwitz could obtain a variety of collateral records directly in the absence of signed consents from the parents.

[115] To address the complaint that the mother was refusing to take the children to Mr. Hurwitz’ office and because of the new criminal release Order, I endorsed that Mr. Hurwitz was empowered to attend at the children’s school with the father on a date and time of his choosing, without notifying the mother in advance. I ordered that he may take the children out of school for observation visits with the father. I specifically indicated that I was making this Order after the date of the recent charges and the release Order, to permit the father to have contact with the children in Mr. Hurwitz’ presence, to enable the assessment to proceed.

[116] But in view of the fact that the father was not now seeing the children, the fact that the assessment had not yet started, and despite the fact that the parties chose not to appear before Rowsell J. on April 12, 2023 as they were supposed to, I also booked a full day long motion to proceed on September 25, 2023. I indicated that the issues would be interim interim parenting pending the assessment, and prospective child and spousal support. I warned the parties not to expect the Court to review the entire multi-volume continuing record to understand the issues. I ordered the parties to file one comprehensive set of motion materials. I imposed page limits. I ordered the parties to file facta, to include a brief summary of the prior proceedings. The parties did not follow my directions about this either. The Court was put in the position of having to in fact review large portions of the prior proceedings, to understand fully the context in which this motion has now been brought.

DD. The Mother’s Ex Parte Motion dated July 25, 2023

[117] Nine days later, the mother brought another emergency ex parte motion dated July 25, 2025, seeking to disqualify Mr. Hurwitz based on information that she had found on the internet. She accused him of discrimination and bias. Fryer J. ordered the mother to bring a 14B Motion and that it was to go before the case management judge. She also ordered the mother to serve the father, and to notify Mr. Hurwitz.

EE. The Mother’s 14B Motion dated July 27, 2023

[118] Two days later, the mother filed a 14B Motion dated July 27, 2023, asking for an “urgent motion date” to address the issue. The father filed responding material and objected.

FF. The Society’s Closing Letter dated August 10, 2023

[119] On August 10, 2023, Ms. Emrick wrote a letter updating the Court about its latest investigation. She reported to the Court that the parents had signed consents for the Society to obtain medical information and records from 9 different health care professionals, hospitals or clinics. The Society did not verify the father’s allegation about “poisoning”, or the inappropriate use of health care professionals.

[120] In regards to the assault charge, under a heading in the letter called “Voice of the Children”, Ms. Emrick wrote that C.M. and T.M. said that the father caused the bruise (without providing any elaboration as to what exactly the children reported). They otherwise reported to Ms. Emrick that they felt safer with their mother, that the father yelled a lot, and used physical discipline that included “pulling their ears, flicking them, backhanding them and withholding food”. By this point, the children had not seen their father in months. The letter makes no comment about the reliability or independence of these statements, nor whether the Society was verifying or not verifying the assault.

[121] But the Society did not then recommend either the suspension or the supervision of the father’s parenting time. Rather it is now just recommending that a third party facilitate parenting time exchanges “should [the father’s] no contact provisions be removed”. [^6] It is also recommending the John Howard co-parenting program, previously recommended.

GG. The Mother’s 14B Motion dated August 11, 2023 and the Father’s 14B Motion dated August 15, 2023

[122] There was yet more 14B Motion material filed by both parties after this. On August 11, 2023, the mother filed another 14B Motion “to contest/appeal” my Endorsement of July 14, 2023. The father responded with a 14B Motion of his own on August 15, 2023, asking to strike the mother’s material, and asking for similar if not identical relief to the requests he would later include in his Notice of Motion for September 25, 2023, that he was authorized to bring. The mother then filed a Reply affidavit. She also wrote to me directly more than once.

[123] This latest round of filings (and emails) occurred during the summer months, mostly during times that I was not sitting. On August 23, 2023, I endorsed the following:

The mother has now filed a motion to disqualify Mr. Hurwitz as assessor, which Fryer J. already dealt with. This spurred on a litany of further 14B’s, including requests to contest or appeal my Endorsement of July 14, 2023 and a cross-motion by 14B now from the father for various relief. If [the mother] wants to appeal my Endorsement of July 14, 2023, then she is free to do so in the correct court.

There is a long motion booked for September 25, 2023 before me. I made a detailed scheduling order. It is to be followed.

On August 15, 2023, [the mother] sent the attached email to me directly. Litigants are not entitled to write to judges directly. This is not to be repeated.

Finally, from a review of the recent Endorsements, on August 14, 2023, at assignment court, Fryer J. adjourned the long motion to February 2024. This was an administrative error. The long motion has already been fixed before me on September 25, 2023.

HH. The Mother’s Notice of Withdrawal dated August 23, 2023

[124] Two days later, on August 23, 2023, the mother filed a Notice of Withdrawal of her Application dated October 28, 2019. She also continued to email me directly. She then filed an affidavit of September 22, 2023 stating in paragraph 10, that “this motion is moot”.

II. The Inappropriate Court Room Conduct During the September 25, 2023 Motion

[125] At the outset of the hearing the Court advised the mother that her Notice of Withdrawal did not end the case, as the father had claims in an Answer before the Court. [^7]

[126] The mother immediately became upset, and told the Court that she was going to call 911, because the Court was “threatening” her. The mother proceeded to take out her cell phone and made statements into her phone. The mother said into her phone, that she could not leave the court room, that the father, his lawyer and his family were in attendance and that “he” (presumably referring to this judge) was aware of the situation. She then said, “would you please bring the police inside. Perfect, thank you so much.”

[127] The Court sat quietly while held the phone up and talked into it saying these things. No police officer attended in response.

[128] The father’s counsel then advised the Court that the mother had completely withdrawn from Mr. Hurwitz’ assessment process. While Mr. Hurwitz had apparently been able to gather some collateral records, counsel also advised that he was not prepared to act on the various orders that I had made on July 14, 2023, such as the one that empowered him to attend with the father at the school, when the father was not otherwise seeing the children.

[129] In response to a question from the Court about what the mother expected the Court to do, she responded that the Court should “respect [her] withdrawal”. When the Court further explained, again, that the father had an Answer with pending claims before the Court, that the father’s motion was now undefended, that the motion had been scheduled and rescheduled and would be proceeding, and when the Court asked the mother, more than once, if she was sure that she wanted to not participate in this fashion, the mother said, among a number of other things, that she could not participate because of “legal abuse syndrome”. She complained that the long motion was proceeding in person. She then left the court room.

[130] During the Court’s attempt to interact with the mother, the father’s counsel sought to interrupt and interject, and was directed to stop doing so until the Court called upon her.

[131] The Court then heard the father’s motion.

[132] Towards the end of the motion, at a time that I was not in the court room, the mother had a friend return and deliver a binder of documents called “Ontario Law Enforcement Package” to the Court Services Officer. This was also “served” upon Ms. Bekah.

PART IV: ANALYSIS

[133] This Court has just gone to some effort, to set out in detail what has transpired in this case, to date. I do so for the benefit of another judge, if the parties seek to continue to carry on in this fashion before this Court. None of my colleagues should be put in the position of having to parse through a 4 Volume Continuing Record to try to figure out what has transpired and to try to manage these parties. I now turn to the analysis.

A. The Mother Has No Motion Before the Court; the Peel and Durham Children’s Aid Societies Have Not Verified Physical or Sexual Harm, or Recommended the Suspension or Supervision of the Father’s Parenting Time; the Father’s Parenting Time Is To Resume

[134] The governing Order is that of Leef J. dated December 12, 2019, except to the extent that it has been tweaked or varied subsequently by other judges, including Rowsell J., Nicholson J. and myself.

[135] Although she has alleged that the children are at risk of harm in the father’s care, the mother has put herself in the position of having no motion before the Court.

[136] The Court attempted to have a discussion with the mother about the advisability of the withdrawal of her Application on September 25, 2023, without success. The mother then left, only to return to serve some kind of package of documents that the father’s counsel says may be associated with the sovereign citizen movement.

[137] Despite the fact that the mother does not have a motion before the Court, the Court must still remain vigilant. Various allegations have been made by the mother along the way, about the safety of these children. Various allegations have been made by the father too, for that matter.

[138] For example, the Court already took a pause on March 10, 2023, when it called in the Society to investigate, when the father made the “poisoning” allegations. These have now been investigated, according to Ms. Emirck’s letter of August 10, 2023.

[139] But the Court must also act on evidence. The Court relies on the parents to tender that evidence. In this case, this is a real problem. The mother withdrew her case. While the father’s remaining evidence goes into the conflict in great detail, he has said almost nothing about these children, their needs, which parent is better able to parent them, and so forth.

[140] Under the circumstances, in a case of this nature, where:

(1) the mother has opted out of the process; and (2) the father has filed insufficient evidence; but (3) a plethora of allegations have been raised, that raise alarm bells;

the Court has no choice but to rely on child welfare agencies to investigate child protection allegations, to undertake assessments, and to report back to the Court. That proves very difficult, when a decision by the child welfare agency responsible, has decided not to commence a protection application, at a minimum for a supervision order.

[141] What this Court now knows, is that it is not only the “poisoning” allegation that has not been verified. Starting with the Peel Children’s Aid Society and then the Durham Children’s Aid Society, these two agencies have not verified any of the allegations of physical or sexual harm, over the course of six different investigations. Even the Society’s most recent closing letter of August 10, 2023 does not verify an assault, when reporting to the Court what the child apparently said to Ms. Emrick.

[142] The father has not seen the children since April. His parenting time is to resume.

[143] Whether the governing Orders in place should be otherwise varied on this record though, is quite another matter. And while the Society did not verify physical or sexual harm, it did verify, multiple times, that the children are at risk of a different kind. The Society’s intervention is required.

B. Numerous Requests for Relief in the Father’s Amended Notice of Motion Will Be Dismissed Due to Lack of Jurisdiction, or Due to the Lack of Necessity

[144] The father has claimed numerous heads of relief in his Amended Notice of Motion that this Court either does not have jurisdiction to order, that the Court has already ordered, or that the Court does not need to Order.

[145] The following paragraphs of the father’s Amended Notice of Motion dated September 21, 2023 are dismissed, because:

• Paragraph 1: The Court does not intend to proactively order that the mother cannot “withdraw her withdrawal”. If the mother changes her mind and seeks to participate properly in this case, the Court will consider it; [^8]
• Paragraph 2: The Court does not need to strike the mother’s pleadings. She has either already withdrawn them, or if she has not done so previously, that was her intention; [^9]
• Paragraph 13: The Court has already ordered on an interim basis that the children’s passports were to be deposited with the Court. In fact, this has been ordered at least twice. The father did not provide Leef J.’s reasons for ordering this in the first place, provide evidence as to what has changed, or explain why he needs the passports back at this time;
• Paragraph 14: The Court cannot order the mother to sign a Miglin release. There is no jurisdiction for a court to order a party to release a support claim;
• Paragraph 15: The Court is not prepared to Order police enforcement in perpetuity. If there is a specific enforcement motion brought before the Court in relation to another incident after the date of these reasons, the Court will consider it;
• Paragraph 16: The Court has already made orders for the release of the collateral records. It appears that records have already been released. For example, I have been told that the father already has the Society’s records, although perhaps not the records from the most recent investigation. He is free to request those if he wants them. I have been told that Mr. Hurwitz has some records. The Society’s letter of August 10, 2023 states that various health records were obtained and reviewed by it. The father has not specified what specific “agencies” that he is seeking records from, why he has not been able to get records, what efforts he made to get them, nor has he served any record holders with a motion, if a particular record holder refused to produce;
• Paragraph 17: The Court does not need to order imputed income to the mother. The mother has not pursued a claim for child or spousal support on this motion, although she was given leave to do so. This claim for relief is unnecessary. If and when a support claim is pursued, this can be dealt with;
• Paragraph 18: The Court does not understand what the father is seeking when he asks for “full and frank financial disclosure”. He has not specified what the mother hasn’t provided and why what he is seeking is relevant. An order of this kind for “full and frank financial disclosure” is meaningless. All parties are required to provide the financial disclosure needed to address the claims before the Court. The request is too vague and will just lead to more conflict between the parties; and
• Paragraph 20 & 21: There is no evidence before me about whether the mother has health benefits and life insurance, and if not, about her ability to acquire these benefits. In regards to life insurance, the father also failed to provide any calculations as to the amount of life insurance that is required. See for example Katz v. Katz, 2014 ONCA 606.

C. The Father’s Request for Different Parenting Orders

[146] In regards to his request for sole decision-making, it seems fairly obvious that joint decision-making is not working. However the Court is not in a position, based on the absence of participation by the mother, and the calibre of evidence the father filed (ie. large gaps in the evidence about the children’s needs and the parties’ abilities to meet those needs), to consider whether the Court should be varying the temporary Order already in place on a temporary basis, according to the compelling circumstances test, to award the father sole decision making.

[147] The father’s affidavit sworn August 25, 2023 is full of improper argument. At the risk of repeating myself, while it states much about the parental conflict, it tells the Court very little about the children. The Court is particularly loathe to make an order changing decision-making in the face of the Order for the assessment that the Court previously ordered, that the parties are to follow.

[148] In regards to the schedule, it is very notable, that the father has not asked to change the children’s primary residence to be with him. Rather, he has asked the Court “remove” the children and place them with family members. The father’s counsel was unable to point the Court to its authority to do this. Counsel then conceded that she was essentially asking the Court to make a child protection Order.

[149] The Court queries how, in a case under the Divorce Act or the Children’s Law Reform Act, the Court can “remove” children and place them elsewhere. Even were this a child protection proceeding, removal orders are not done like that. For example, if the Society was proposing to remove and place the children with members of the father’s family, the procedures in sections 40 of O. Reg. 156/18 would have to be followed. There would be a hearing according to a certain legal test. These things have not been done. And assuming the Court could make such an order in private parenting litigation, would the Society not have to be made aware, and would the procedures in section 41 of O. Reg. 156/18 not then have to be followed? The Society has closed its files.

[150] Moreover, not only was I told very little about these children, there is little to no evidence before me about the family members with whom the father would have the Court place the children. There is no evidence of their consent to act as caregivers, and to be subject to proposed Order. What role would they play in facilitating the mother’s and the father’s parenting time under the proposed Order? Would they consent to do that? There has already been conflict between the mother and members of the father’s extended family. And as I explain below, in yet another 14B Motion dated October 12, 2023, filed after the argument of this long motion, the father’s brother says he is the grandfather’s “power of attorney and litigation guardian” due to his age and a language barrier. This demonstrates how little the Court knows about the household. The paternal grandfather is one of the persons with whom I have been asked to “place” the children.

[151] Alternatively, had the grandparents or the children’s paternal uncle brought an application for a parenting order of this kind themselves, they would be required to submit the documents required by rule 35.1 of the Family Law Rules. This too has not been done.

D. The Father’s Requests for Further Orders for Assessments

[152] In regards to paragraph 4 of the father’s Amended Notice of Motion dated September 21, 2023, the Court has already ordered the mother to undergo an assessment. It has also ordered the father to do so, as well. The Order was made on consent. The Court does not understand why these parents are continuously coming before this Court to ask it to order things previously ordered, or to tweak its prior orders.

[153] The Court’s process does not entail this Court making an Order, only for the parties to immediately bombard the Court with more motions to change those terms, or for further orders for the same or similar terms, while the parties to pick and choose amongst which aspects of the Orders in place that they intend to follow. In regards to the assessment previously ordered specifically, this Court has already refused to vacate the order for the assessment, and it attempted to intervene once on July 14, 2023, in aid of the assessment. Yet despite this Court’s efforts and Order of July 14, 2023, Mr. Hurwitz was not prepared to act on the powers conferred upon him.

[154] I am not making any further orders about the assessment, except to reiterate that the parents are to follow it and there may be consequences to one or both of them if either does not. Pursuant to an Order of this Court that is being made today, the children will now revert to the week about schedule. The father can now arrange to take the children to see Mr. Hurwitz as needed, and for there to be observation visits with Mr. Hurwitz, when the children are in his care. If the mother chooses not to participate in the assessments that she agreed to, then amongst the potential consequences to her, she runs the risk that an adverse inference will be drawn against her pursuant to section 30(6) of the Children’s Law Reform Act.

E. Both Parties’ Litigation Conduct Must Now Be Tightly Controlled

[155] The father seeks a declaration that the mother is a vexatious litigant. Attached to his supplementary affidavit of September 18, 2023, the father has attached a five-page list of the various documents that have been filed in this case. While it does appear that the mother has filed more documents than the father, he too has filed many of the documents.

[156] Rule 2(3)(d) of the Family Law Rules requires the Court to give appropriate court resources to the case while taking account of the need to give resources to other cases. I find that both parties have abused the unrestricted right to seek recourse from this Court for a number of reasons.

[157] First, the parties carried on with this litigation by way of motion for over two years, in contravention of the requirement in the Family Law Rules to have a case conference. On January 13, 2022, Fryer J. noticed this, and reminded both sides that a case conference was required. She ordered them to go and have that conference. They had it, and then resumed their prior patterns of behaviour, of bringing multiple motions.

[158] Second, I agree with the father that the mother’s conduct has been problematic. But he has not behaved above reproach either. For example, both parties have breached orders. They have both engaged in overholding the children. They have also both violated procedural orders of this Court respecting the filing of material.

[159] This Court has made scheduling orders, imposed page limits, issued directions about what the Court required in order to have a meaningful hearing, and warned the parties about the filing of more and more 14Bs. They have not listened. The amount of 14B Motions, responses to 14B Motions, ex parte motions, motions with notice, cross-motions, and affidavits are frankly so numerous that if I tried, I would likely miscount them.

[160] It is shocking that after this Court allocated a full day to these parties for this motion, taking time away from other families during a child protection trial sittings in September of 2023, the mother then chose not to participate, and the father filed deficient motion material.

[161] Third, the mother has also written to me directly, despite being admonished not to do so. When I asked her why she did this on September 25, 2023, she said that she wanted an acknowledgement of her Notice of Withdrawal. Most recently on October 3, 2023, the mother has sent an email to inform me that she is “submitting a private prosecution” against the father’s lawyer and others for various reasons. At the end of her email, she wrote that she was bringing these “serious allegations to [my attention]” and requested that I review her evidence. She writes that their actions “have undermined the integrity of the legal process”. Notably, the mother sent this latest email weeks after having withdrawn her Application, after an Endorsement of this Court directing her not to email me directly, and after her appearance in Court on September 25, 2023.

[162] Consequently, this Court intends to prohibit both parties from bringing any further motions without leave of the Court. If there is one more act of non-compliance from either side, the offending party should except a significant cost consequences. And if a contempt motion ends up being brought, the offending party risks other sanctions being imposed. The Court suggests that both parties review what those potential consequences might be.

F. Costs of the Father’s Motion

[163] The father claims costs. The father filed a Bill of Costs claiming costs ranging between approximately $100,000.00 and $150,000.00. The father’s Bill includes work done by 7 different lawyers and 3 law clerks. The Bill appears to be before the entire case.

[164] Although the mother did not participate in this motion, the father has not enjoyed great success. I have also made findings about his own non-compliance and behaviour.

[165] There shall be no order for costs.

G. The Society’s Response to the Protection Issues in this Case

[166] Although it did not verify a number of harms alleged, protection concerns have been verified on five occasions, by two different child welfare agencies. Specifically:

• In its investigation conducted between June and July of 2017, the Peel Children’s Aid Society verified “inadequate parental supervision, extreme” when a stranger contacted the police and saw C.M., then four years old, left barefoot and alone in a park. Apparently, the mother had dropped C.M. off at “a grandparents’ home” and C.M. exited the residence on his own and was located by the stranger;
• In its investigation conducted between February 8 and 28, 2019, the Peel Children’s Aid Society verified “child exposure to partner violence, moderate”. The investigation began when the mother attended at the police station seeking education and safety planning as there had been escalating verbal conflict between herself and the father;
• In its investigation between June 16, 2021 and September 27, 2021, the Durham Children’s Aid Society verified “Emotional harm – Caregiver Causes and/or Caregiver Response to Child’s Emotional Harm or Risk of Emotional Harm, Moderate” as children appeared to be experiencing post-separation conflict. In this instance, there had already been a community link service put in place, and it was the service provider that reported the family to the Society. The mother then reported to the Society that there had been “ongoing conflict occurring in the home and in the presence of the children”;
• In its investigation between March 3, 2022 and April 4, 2022, the Durham Children’s Aid Society again verified “Emotional harm – Caregiver Causes and/or Caregiver Response to Child’s Emotional Harm or Risk of Emotional Harm, Moderate”. This time, Family Services of Durham called to report that the children caught COVID when visiting with their father, and the mother believed that the father was aware that his parents had Covid, but nevertheless welcomed the children into the home. Other allegations were then made, the source of which appears to have been the mother, about the condition of the home, other post-separation conflict, and that the father was not allowing the children to go to counselling. The Society’s verification was based on the children being “acutely aware of the parents’ current conflict and custody access dispute”;
• For a third time, the Durham Children’s Aid Society verified “Emotional harm – Caregiver Causes and/or Caregiver Response to Child’s Emotional Harm or Risk of Emotional Harm, Moderate” in its investigation between August 5, 2022 and September 1, 2022. This time, the mother sent an email reporting that the father was engaging in the use of physical discipline. In verifying the aforementioned protection concern for a third time, the family was rated “at high risk in the risk assessment… due to the previous extensive involvement with child welfare” [my emphasis added];
• In the body of her first letter dated March 16, 2023, Ms. Emrick also writes that the Society’s investigations that were verified, included “parents withholding the children from one another”.

[167] According to the chart attached to Ms. Emirck’s first letter of March 16, 2023, the Society’s efforts to address the concerns that it verified, have included:

• In its investigation between June 16, 2021 and September 27, 2021, the Society “encouraged [the parents] to resolve their conflict away from the children and to deal with their differences through Family Court”. The Society says it “educated” them regarding the impacts of their conflict on the children and “strongly urged [the parents] to connect these boys to counselling and to set appropriate behavioural expectations and boundaries to address any behaviours appropriately.” The Society also concluded that risk of harm was mitigated due to the “very detailed Court Order in place” and the fact that the matter had returned to Court “to address the change in circumstance”, being the sexual assault charge that was laid during this time frame;
• In its investigation between March 3, 2022 and April 4, 2022, the Society again cautioned the parents. It also relied on the fact that the OCL had been appointed “to represent the children’s interest and wishes in Family Court”. It provided referrals for counselling and co-parenting resources; and
• In regards to the investigation between August 4, 2022 and September 1, 2022, it is not clear what actions, if any, the Society took. The chart attached to Ms. Emrick’s letter says that the mother made positive gains in seeking counselling and support for the children, without actually elaborating about exactly what the gains were. The letter then concludes that it was because the children were getting counselling, that reports of concerns historically investigated, were now being made again, but from service providers, when repeated by the children. This statement is curious to the Court, since it was the mother who made the particular complaint that caused this investigation.

[168] The Society has also placed great weight on the fact that the parties were involved in this proceeding. To be precise, the Society said it was placing weight on this on eight different occasions, namely:

• in June and July of 2021, when verifying protection concerns;
• in February of 2022, when closing a file at intake;
• in March and early April of 2022, when verifying protection concerns;
• in late July and early August of 2022, at intake. On this instance, the intake worker referred the allegation of physical discipline for an investigation, but also concluded that the ongoing post-separation conflict was “best suited for family court”;
• in September and October of 2022, after a hospital nurse reported that T.M. had reportedly wrapped the straps of his backpack around his neck, referred to the father as “devil dad” and had been identified to be in emotional distress, the Society encouraged the mother to address her concerns in “family court”;
• in October of 2022, the Society again referred the mother to this Court after the mother made more allegations that had been previously investigated; and
• in February of 2023, when Durham Family Services reported that C.M. had said he could not eat until 1 pm at his father’s house, a new investigation was opened, but reference was also made to this ongoing family court case.

[169] Additionally, the Society has twice made reference to the fact of the OCL appointment, as a kind of protective factor.

[170] Meanwhile, the Society itself has recognized that its prior interventions have not worked to protect the children from conflict. In the body of the first letter dated March 16, 2023, Ms. Emrick writes that the parents had been unsuccessful in “putting these supports into place” and “the worry is that the children will continue to suffer emotional harm if the parents are unable to co-parent without exposing them to post-separation conflict and/or emotionally and physically alienating the children from each other.”

[171] Later on in the body of the same letter, in relation to what was then the most recent allegation and ongoing investigation that started February 24, 2023, [^10] Ms. Emrick wrote:

The Society has significant concerns for the children being exposed to adult conflict directly or indirectly based on the contentious post-separation relationship between [the parents]. The Society maintains its recommendations for counselling for the children, which both parties have confirmed they explored and secured, but the counselling has yet to take place because each claims there are challenges due to the other parent. [my emphasis added]

[172] Moreover, there is no information in either of the Society’s letters explaining what the Society did to inform itself about what has been going on in the litigation, why the concerns are best addressed in this case (as opposed to in the child protection realm), and just exactly how leaving two parents embroiled in a high conflict dispute to argue in court alleviates the protection concerns. There is no information as to whether the Society informed itself about the status of the OCL, or for that matter, the assessment that I ordered when the Society was last in Court. Neither have occurred.

[173] The Court is very concerned with this approach, of identifying protection concerns, making referrals for services, recognizing that the protection concerns are not being addressed, and relying on the existence of high conflict litigation as a protective factor. It should now be obvious to the Society, when it reads this decision, that the litigation before this Court has not yet resolved the conflict, but rather has been used by the parents, as a weapon to fuel it.

H. The Father’s and Paternal Grandfather’s Requests for an Order Cancelling the Matrimonial Home Designation that the Mother Placed on the Paternal Grandfather’s Home

[174] The father has sought an order for this in paragraph 22 of his Amended Notice of Motion dated September 21, 2023. He did not provide any evidence in support of his request.

[175] While this motion was under reserve, the paternal uncle brought a 14B Motion for similar and additional relief. He did so on behalf of the paternal grandfather, acting as his power of attorney and litigation guardian for property.

[176] The relief sought by the paternal uncle/grandfather includes a claim for a declaration that the grandfather is the sole beneficial owner of the property, an order compelling the mother to remove the matrimonial home designation at her expense, an order that the Registrar of the Land Titles Office or other relevant authority, amend the title of the property and remove any reference to the designation, a date for another long motion if the issues are not dealt with by way of 14B Motion, and for costs.

[177] Although this is now yet another, albeit separate, 14B Motion in this case, I will deal with it here and now. The mother has not responded to the 14B Motion. The motion is therefore unopposed.

[178] On the merits, in regards to the request for declaratory relief, the paternal uncle’s affidavit states that the property in question, in Brampton, is owned by the grandfather, but the father is on title also “in name only, as a joint tenant, to minimize the risk of fraud”. Although the father is on title to the property, the affidavit states that the father holds no beneficial interest in the property and he made no financial contribution to the purchase of the property.

[179] The Court does not intend to grant declaratory relief about the ownership of this property, on a 14B Motion brought by a non-party, without an originating pleading from the non-party before the Court. Moreover, the fact that the father is on title, may or may not impact the property issues between the parties, in this case. That issue is not before me right now. It is also unnecessary for me to deal with this question of title, and to grant the declaratory relief sought, to deal with the matrimonial home designation, which is the real reason this motion has been brought.

[180] In regards to the designation, a matrimonial home is defined in section 4(1) of the Family Law Act as a matrimonial home under section 18 and includes property that is a matrimonial home under that section at the valuation date. Section 18(1) states that every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.

[181] Pursuant to section 20(1) of the Family Law Act, one or both spouses may designate property owned by one or both of them as a matrimonial home, in the form prescribed by the regulations. Pursuant to section 23, the Court may make an order cancelling a designation made under section 20 if the property is not a matrimonial home.

[182] The paternal uncle’s affidavit states that the parties moved into the home in around August of 2011, after entering into a “verbal lease agreement to rent the property”. The terms of the verbal lease apparently required the father to pay rent and carrying costs. According to the affidavit, the parties moved out of the property in or around April of 2019, and moved to Newcastle. The parties then separated in October of 2019. [^11]

[183] The argument therefore, is that the property is not a matrimonial home. I agree. The evidence before me is that the parties were not ordinarily occupying the property as a family residence on their ultimate date of separation in 2021, whether it occurred on May 10 or July 17, 2021, let alone at the time of the first separation on October 25, 2019.

[184] I am prepared to cancel the matrimonial home designation. I am not prepared to order the mother to remove it. It is very likely that the mother will not comply. Ordering the mother to do this will just lead to more conflict, and perhaps further litigation in the nature of enforcing compliance.

[185] Therefore, the grandfather, or the paternal uncle on his behalf, may take steps to discharge the designation from title.

[186] Although this 14B Motion claims costs, the paternal uncle has not specified what exactly is being sought for costs. Therefore, there shall be no order as to costs.

I. Other

[187] Following argument of the long motion, the father ordered the audio tapes of the argument on September 25, 2023. The father did not seek the Court’s permission. It was brought to my attention that the tapes were released to the father by Court Services, without prior judicial authorization. This should not have happened.

PART V: ORDER

[188] I make the following Orders:

(1) The Order of Leef J. dated December 12, 2019, and any further Orders of this Court, shall continue until further Order of this Court; (2) In particular, the week about schedule shall continue, with exchanges on Fridays; (3) However I shall make the following additional Orders specifying exchanges; (4) Exchanges shall take place at the children’s school. The parent having the child shall drop the children off in the morning on the Friday, and shall pick the children up at the end of the day. The other parent shall not be in attendance for the pick up or drop off at school, as the case may be. The father may bring another person with him, if necessary for the purposes of any release conditions in his criminal matters; (5) The parent having the children in his or her care is not to keep any of the children home from school for the purposes of interfering with the other’s parenting time; (6) Within 48 hours, the father shall choose a location for an exchange outside the school that is within 500 meters of the school, and he shall advise the mother in writing. This shall become the alternate exchange location if the school is closed. The exchange time shall be at 4:00 PM. The father shall send a designate to avoid breaching any release conditions; (7) If for whatever reason the children are not in school on Friday, and/or one parent or the other does not take the children to the exchange location, then the parent who is supposed to pick the child up shall do so after school on the next day that they attend school, and that parent will then drop the children off on the upcoming Friday morning, or at 4PM at the exchange location if there is no school, as the case may be; [^12] (8) As the father shall now resume having parenting time, he is to carry on with the assessments previously ordered. The mother is ordered to participate as well. If the mother refuses to cooperate with the assessments that were ordered, she risks that adverse inferences will be drawn against her, and there will be an assessment of the children and the father, but not involving her; (9) Neither party is entitled to bring any further motions without leave of the Court. Any party seeking leave may file a 14B Motion with no more than 2 pages of narrative explaining the basis upon which a motion is sought. The 14B Motion is also to direct the judge to this decision; (10) The process provided for in paragraph (9) above also applies to any contempt motion that may become necessary, if there continues to be non-compliance; (11) Leave is not required for the Society to commence a protection application for a supervision order or for some other child welfare order, or for a parent or other person to take steps under section 81(4) of the Child, Youth and Family Services Act, 2017; (12) A copy of this decision shall be sent to Heather Chan and Kelly Emrick at the Durham Children’s Aid Society; (13) The matrimonial home designation that the mother registered on title to the property described in the 14B Motion dated October 12, 2023, is cancelled. The paternal grandfather, M.M., or the paternal uncle, M.M. acting on his behalf under a power of attorney, may take steps to have the designation removed from title. Either is at liberty to sign any documentation to cause this to occur, without the signature or consent of the mother; (14) A copy of this decision shall also be sent to Patrick Smith, the lawyer acting for the non-party on the 14B Motion (patrick@weedonlaw.ca); (15) The draft order to issue shall refer to the parties and the children by their full names; (16) The terms in subparagraph (13) shall be incorporated into a separate order of this Court, that shall refer to the parties by their full names and that shall identify the property in question, to enable the paternal uncle or grandfather to cause the designation to be discharged from title; (17) There shall be no costs of this motion or of the 14B Motion referred to in subparagraph (13); (18) The mother’s approval as to form and content of any draft orders to be issued is dispensed with; and (19) There shall be no costs of this motion.

Justice Alex Finlayson Released: November 14, 2023

Footnotes

[^1]: The mother brought this particular motion during the Covid-19 pandemic. [^2]: The mother is again self-represented. [^3]: It seems that according to the mother, the father had by this time moved back from Brampton to Bowmanville, and then he agreed to the children attending school in person. This seems to have rendered moot the parties’ earlier dispute that went before Fryer J. [^4]: Neither party initially proposed someone who could undertake assessments under s. 30 of the Children’s Law Reform Act or s. 105 of the Courts of Justice Act, nor had they provided consents or curriculum vitaes, suggested what the parameters of these assessments would be, nor had they addressed funding. [^5]: The presence or absence of parental cooperation should normally be a factor that a Society takes into account in deciding whether to launch a protection application. [^6]: A bail variation is not actually required. [^7]: Also, the mother did not withdraw her amended pleadings, although she was clear with the Court as to her intention to withdraw on September 25, 2023. [^8]: The Court again observes that she did not withdraw her amended pleadings, although she stated her intent to have this case come to an end completely, when she was in Court on September 25, 2023. [^9]: See the previous footnote. [^10]: On this occasion, a vice principal at C.M.’s school had called to report that C.M. said he did not feel safe with the father, he was not permitted to eat there until between 1PM and 2PM, that the family was stalking the mother and there was a lot of screaming and yelling in the home. [^11]: As set out earlier, the parties actually separated ultimately at some point in first half of 2021, not October of 2019. Both parties’ agree about this in their pleadings. [^12]: To be clear, I do not make this Order to empower either parent to keep the children home to interfere with the other’s time, but I do so as an alternative, in the hopes that these parents will not have to come back before this Court on enforcement motions.