COURT FILE NO.: FC-19-1692 DATE: 20231127
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: IN CHAMBERS
RULING ON 14B MOTION Justice Alex Finlayson
PART I: NATURE OF THIS 14B MOTION
[1] After a considerable amount of chaotic, high conflict litigation over an extended period of time, this Court heard a long motion on September 25, 2023. This Court released its Reasons for Decision (48 pages) on November 14, 2023: see A.M.S. v. D.M., 2023 ONSC 6534. I do not intend to repeat what is set out in those reasons. This ruling is to be read in conjunction with the reasons.
[2] The Court made an Order with 19 different terms. The Court’s Orders are set out at ¶ 188 of the Reasons. Instead of following some of the Orders, three days after the release of the decision, the mother sent me another email, directly, which she has been told not to do. Her email is copied to 27 other people, including opposing counsel, Ms. Chan and Ms. Emrick with the Durham Children’s Aid Society (the “Society”), one other judge of this Court, various court employees, members of the media, the police and the Attorney General for Ontario.
[3] The mother’s email begins by reading: “Greetings Alexander Finlayson: a man”. She goes on to write that “…this is the 3rd time that I NOTICED you that my family court application was withdrawn on August 24, 2023, and that this matter is now closed.” She then “demands” that “any/all communications from you, the family court registrars, my ex’s attorney, CAS or other cease and desist immediately!”. [1] She says that if she receives any more “threatening communications”, she will file a criminal complaint for “harassment, threat, intimidation and fraud”, a civil action, and a complaint with the Canadian Judicial Counsel. She also says she will write to others, in addition to those already copied, including additional judges of this Court. Her email concludes by indicating that she hired a “private security consultant” for her and her sons’ protection.
[4] In regards to the father, rather than following my Order, which requires him to proceed with the assessment previously ordered (to which he consented), the father, represented by counsel, went before another judge on November 17, 2023, and obtained leave to proceed by way of a 23C. The Court ordered the 23C to be served on the Society. The Court also indicated that the 23C was not to be addressed until 20 days after that service.
[5] The father has now brought yet another 14B Motion, without notice to the mother, to have the children placed in his temporary care and for police enforcement, until he can proceed by way of that uncontested trial. But paragraph 188(9) of this Court’s Reasons dated November 14, 2023 prohibits either party from bringing any further motions without leave of this Court. This Court set out a procedure to obtain that leave. Leave was to be sought by a 14B Motion with an affidavit with no more than 2 pages of narrative explaining the basis for the request for another motion.
[6] The father’s 14B Motion is 3 pages. He filed a two-page, single spaced affidavit, and various exhibits. The affidavit inclusive of exhibits is 14 pages. He has also cross-referenced his previous affidavit of August 25, 2023, filed for the long motion heard on September 25, 2023, which is much longer. The father, who I reiterate again is represented by counsel, has not followed the procedure to obtain leave.
[7] In regards to this request, the parties have just had a long motion. As I indicated at ¶ 139 of the Reasons, the mother chose not to participate and the father “has said almost nothing about these children, their needs, which parent is better able to parent them, and so forth”. The father also could have, but failed to seek orders to have the children’s primary residence changed to him, when this motion was argued on September 25, 2023. Instead, as I indicated at ¶ 144 of the Reasons, the father “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.
[8] The father is now seeking to litigate this case in stages. His request for leave to bring an ex parte motion for a change in the children’s primary residence is dismissed.
[9] However, that does not end this matter, given the further escalation since the release of the reasons. The father now says in his affidavit of November 24, 2023 that:
(1) The mother is breaching my Order of November 14, 2023; (2) The father contacted the children’s schools on Friday November 17, 2023, but was informed that the mother picked the children up shortly after he called; (3) The father’s counsel wrote to the mother on November 17, 2023 setting out that one of the children was not in school and so the father said he was selecting a particular exchange location, pursuant to ¶ 188(6) of the Reasons; (4) The mother responded later that evening, saying “the matter was withdrawn and your client has a criminal restraining order/ conditions from seeing our sons.” The father says that the mother is therefore not allowing the exchange at an alternate location pursuant to ¶ 188(6) of the Reasons; and (5) The father filed school attendance records showing a number of absences. While most of them pre-date my decision of November 14, 2023 (and which may very well be a different issue of concern), particularly germane to this 14B now before the Court, the children were not in school on November 17 or 20, 2023. [2]
[10] The father telephoned the police. The father says that two different named police officers did multiple unsuccessful wellness checks on Friday November 17 through to Saturday, November 18, 2023, but no one has been able to see or contact the children. The father says that calls to the an Ipad owned by the children, and to one of the children’s cell phones have failed.
[11] The Court was crystal clear with the parties in the Reasons that they needed to stop behaving like this. The children are being harmed. At ¶ 140 to 144 of the Reasons, the Court was also crystal clear with the Society, that its intervention was required. The Court elaborated at ¶ 166 to 173. And at ¶ 173, the Court specifically wrote:
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.
[12] At ¶ 188(11) of the Reasons, I very specifically did not require leave for the Society to commence a protection application, or for either of the parents to bring the matter before the Court under section 81(4) of the Child, Youth and Family Services Act, 2017. To my knowledge, the Society has not commenced a protection application. Nor did the father move under section 81(4).
[13] Rather, the father has mischaracterized to the Society what the Court said about section 81(4) in the Reasons. At ¶ 8 of the father’s affidavit of November 24, 2023, the father says that he made a report to the Society on November 17, 2023. He says that he told a person named Virginia Banister, that in my Reasons, I directed the Society to “begin a child protection investigation”. That is not what I did. In response, Ms. Banister apparently told the father that the Society does not get involved when there is a “custody issue” in front of the Court. I have no idea whether Ms. Banister is aware of the history of this case, or whether she read the Court’s decision. But if that is what has been said, then that is a misunderstanding and a mis-statement of the Society’s responsibilities.
PART II: ORDER
[14] I make the following Orders:
(1) The father’s 14B Motion and affidavit of November 24, 2023 are to be immediately served by email to the mother and to Heather Chan and Kelly Emrick at the Durham Children’s Aid Society; (2) This matter is adjourned to Friday, December 1, 2023 @ 10 AM, to proceed in person, for a hearing under section 81(4) of the Child, Youth and Family Services Act, 2017, to determine whether the grounds exist for there to be a hearing under section 90(1) of the Child, Youth and Family Services Act, 2017, or for the children to be brought to a place of safety; (3) There is nothing preventing the Durham Children’s Aid Society from commencing a protection application, or from taking the children to a place of safety without a warrant before December 1, 2023. If a protection application is brought, it is to be scheduled before me. And if an application is brought, the hearing on Friday, December 1, 2023 may be rendered moot; (4) This decision is also to be sent to the mother, the father, and to Ms. Chan and Ms. Emrick at the Society immediately by the Court; (5) On or before November 30, 2023, the Society is to file an affidavit setting out the steps it took after receipt of this Court’s Reasons of November 14, 2023. It is to explain any decisions it has made, whether it has decided to commence a protection application, if not why not, and if not, what factors it took into account in coming to that decision; (6) Either party or the Society is free to file a factum and case law respecting this Court’s jurisdiction to hold this hearing. If either intends to challenge this Court’s jurisdiction to do so, they must file a factum; and (7) The affidavit in paragraph (5) and any facta and case law in paragraph (6) are to be filed in the ordinary course, and also sent to my attention c/o karen.hamilton@ontario.ca and manuella.pascoe@ontario.ca.
Justice Alex Finlayson Released: November 27, 2023
Footnotes:
[1] This was sent after the Court released its reasons and sent a copy to the mother. [2] The records do not state what happened on November 21, 22, 23 or 24, but perhaps the father obtained the records on November 20, 2023.