ENDORSEMENT

COURT FILE NO.: 1439-23

DATE: 2023/12/21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Paulo Jose Nobrega Alves, Applicant

AND:

Jennifer Michelle Galloway, Respondent

BEFORE: The Honourable Mr. Justice A. Pazaratz

COUNSEL: Monique Slade, Counsel, for the Applicant

Ryan Manilla, Counsel, for the Respondent

HEARD: December 20, 2023

ENDORSEMENT

1 The father has characterized this as an urgent motion about parenting time for 8-year-old Lucy, for two reasons:

a. Firstly, to deal with time-sharing during the upcoming Christmas school break.

b. More broadly, to reinstate what he characterizes as a status quo in terms of parenting time, which he alleges the mother has unilaterally changed.

2 As counsel are aware (and as the parents hopefully understand) the considerations in relation to a motion for urgent relief prior to a case conference are different from the broader analysis after a case conference has been held. There is a long history between these parties. It is impossible for a judge to instantly have a full and accurate appreciation of all of the facts and dynamics. As well, experience tells us that case management often leads to less acrimonious and more child-focussed resolution. That’s why “urgent” motions are the exception.

3 Rule 14(4) of the Family Law Rules provides that no notice of motion or supportive evidence may be served, and no motion may be heard, before a conference dealing with the substantive issues has been completed. However, this direction is subject to Rule 14(4.2), which provides that a motion may proceed prior to a case conference “if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.”

4 The purpose of Rule 14 is to encourage litigants to attend a case conference before proceeding with a motion, to lessen the number of interim motions that occur in family law matters. Generally speaking, motions are not to be brought before Case conferences except in exceptional circumstances. Spiegel v. Zigelstein 2015 80412 (Div Ct); Rosen v. Rosen, 2005 480 (ON SC), [2005] O.J. No. 62 (SCJ).

5 Courts have generally held that situations of urgency or hardship contemplate issues such as abduction, threats of harm, or dire financial circumstances. Rosen v. Rosen, 2005 480 (SCJ); Gould v. Jackman 2021 ONSC 4529 (SCJ).

6 Regrettably, counsel did not inquire about the availability of a case conference date, prior to proceeding with this motion. Such inquiries should always be made.

7 In this case, at the outset I should comment on the materials:

a. The father filed an affidavit sworn December 8, 2023 in support of his urgent motion.

b. The mother filed a responding affidavit dated December 18, 2023.

c. Those are the materials I initially read in preparation for this motion because that’s what the Confirmations told me to read.

d. I was then advised at the outset of today’s hearing that the father had late-filed a reply affidavit sworn December 19, 2023 – one day prior to the hearing. No amended Confirmation was filed alerting me to the existence of this affidavit.

e. More to the point, the father’s second affidavit included as “exhibits” five additional sworn affidavits from relatives or former co-workers supporting his description of the “status quo”. These same individuals had provided unsworn letters setting out the same narrative, which were attached as exhibits to the father’s December 8, 2023 affidavit. Those letters did not constitute admissible evidence.

f. Given the fact that we are dealing with parenting issues, when the matter was stood down I read all of these additional materials.

g. However, there is an element of unfairness to filing materials in this manner, because effectively the father is splitting his case, and also breaching the Rules in terms of the number of affidavits which can be filed.

h. As well, the volume of materials is excessive, in relation to the real issues on an “urgent pre-case conference” motion.

i. In any event, having reviewed the father’s supporting affidavits, there is a common theme: All of the people who signed supporting affidavits have simply repeated what they have been told by the father, concerning parenting arrangements, with no indication that these parties have personal knowledge of the facts relating to the specific dispute. Whether in unsworn letters or sworn affidavits, it was all hearsay.

j. (I also disregarded an unsworn statement from a dance teacher attached to the mother’s affidavit.)

8 The father says the status quo is that he has had his daughter Tuesdays and Thursdays overnight, and alternate weekends Friday to Monday morning since the beginning of 2023. He says this equal time arrangement has been unilaterally suspended by the mother, who has been denying overnights on Tuesdays and Thursdays, and also on Sunday nights, since about October 2023.

9 The mother says they never had equal time and it’s only been since about October 2023 that the father started unilaterally expanding his time.

10 The mother refers to a February 20, 2020 mediation report which sets out that the parties reached full agreement on all issues including joint custody; primary residence to the mother; father to have alternate weekends Friday to Sunday night; and alternate Tuesdays and alternate Thursdays 3:30 p.m. to 7:30 p.m.

11 (The mother acknowledges that even though the mediation report says alternate Tuesdays and alternate Thursdays, the father’s time is actually every Tuesday and Thursday -- although she insists there was never any agreement that weekday time would include overnights.)

12 In his initial affidavit the father said the parties went to mediation a number of times, but no agreement was ever reached.

13 This was contradicted by the mother who actually produced the very detailed mediation report which specifically said full agreement had been reached.

14 In his responding affidavit of December 19, 2023 the father again stated that the parties attended mediation but “no formal agreement was reached or signed”. In support of his position the father attached an email he sent to the mediator on March 31, 2020. I’m not sure that the email helps his position today because his second paragraph includes the statement: “I have changed my mind on some of the agreed topics...” That sounds like there was in fact an agreement, even if he later changed his mind.

15 The mother says the father has unilaterally kept the child overnight on some dates without her consent or agreement. Her materials include a text in which the father advises that the child will be staying overnight on a particular occasion. She also includes texts she sent basically asking why the child hasn’t been returned on a school night. These texts support the obvious question raised by the mother’s lawyer: Why would the father feel the need to send a text announcing that the child would be staying overnight on a particular occasion, if the “status quo” was that the child was regularly staying overnight on Tuesdays and Thursdays? Why would the mother send texts asking why the child hasn’t returned, if there was agreement that the child was staying overnight? The father’s counsel says the texts are undated, so it is unclear when they arose.

16 As well, the mother’s counsel notes that the father has been consistently paying child support as set out in the February 20, 2020 mediation report. Again, the obvious question: Why would he have been paying child support in the full table amount based on primary residence with the mother, if in fact he says they had equal time? The father’s counsel says the father was never advised he should stop paying full guideline support.

17 Courts should be cautious about changing a long-term parenting arrangement unless compelling circumstances dictate otherwise. Ceho v. Ceho, 2015 ONSC 5285 (SCJ); Batsinda v. Batsinda, 2013 ONSC 7869 (SCJ); Green v. Cairns, 2004 9301 (SCJ); Papp v. Papp, 1969 219 (ON CA); MacDonald v. Cannell, 2021 ONSC 7769 (SCJ).

18 Because of the obvious importance of the status quo as a best interests consideration, courts must be mindful of - and actively discourage - efforts by parents to unilaterally create a new status quo through manipulation, exaggeration or deception. Izyuk v. Bilousov, 2011 ONSC 6451 (SCJ); Coe v. Tope, 2014 ONSC 4002 (SCJ).

19 So obviously the status quo should generally be maintained on a temporary basis. But here we have completely different versions of what arrangement constituted the status quo. Each party is alleging the other party is unilaterally trying to change the status quo.

20 It is impossible for the court on an urgent motion to make the required factual determinations. And in any event, I am not satisfied that the facts of this case justify urgent intervention, prior to a case conference.

21 Parenting issues always have to be determined on the basis of the best interests of the child. There is a presumption that it is in Lucy’s best interests to have generous and meaningful involvement with both parents. There is also a presumption that both parents were mindful of Lucy’s best interests when they agreed to a very detailed mediation report in March 2020, the culmination of four sessions with the mediator.

22 The father is currently having significant time with the child. It may not be as much as he wants, and it may not be as much as he will ultimately have. But if he felt the mother was unilaterally reducing his time as far back as October, he could and perhaps should have initiated proceedings sooner. There’s no reason that this had to be hurried into court just five days before Christmas.

23 On this urgent motion I have to rely on the best evidence available. And I find that the mediation report; the ongoing child support; and the texts are more consistent with the mother’s narrative. The schedule described and proposed by the mother will not create any hardship as contemplated by Rule 14(4.2).

24 I stood the matter down for the parties to deal with timesharing for the Christmas school break. Fortunately they agreed on that issue.

25 On consent:

a. The Applicant shall have Lucy from Dec. 24, 2023 at 2:00 pm to Dec. 25, 2023 at 6:30 pm;

b. The Respondent shall have Lucy from Dec. 25, 2023 at 6:30 pm until Dec. 28, 2023 6:30 pm.

c. The Applicant shall have Lucy Dec. 28, 2023 at 6:30 until Dec. 31, 2023 at 2:00 p.m.;

d. The Respondent shall have Lucy from Dec. 31, 2023 a 2:00 p.m. until Jan. 2, 2024;

26 The balance of the father’s motion for pre-case conference relief is dismissed. For clarity, this means that the father’s time will be Tuesdays and Thursdays non-overnight, and alternate weekends Friday at 3:30 p.m. to Sunday at 7:00 p.m.

27 Adjourned to February 8, 2024 at 11:00 a.m. for a case conference, by Zoom.

28 I have urged the parties to consider returning to mediation, which they could attempt even prior to the case conference.

29 I would also urge both parties to be less litigious and approach this in a more child-focussed manner. The issue on this “urgent” motion was quite narrow. The materials satisfy me that both of these parties -- who still have “joint custody” – are good parents. They need to work together to create a parenting arrangement which will best meet the needs of this child. The status quo will continue to have significance, but in future it will not be as prominent an issue as it was on this urgent motion. And while I have referred to the mediation report as a starting point, the child is getting older, and both parents need to be flexible and respectful of one another – and acknowledge the importance that both of them have in Lucy’s life.

30 The mother seeks costs of $3,500.00 as partial reimbursement for total fees likely closer to $5,000.00. The father suggests there should be no costs, because neither party could predict the outcome of this motion.

31 The mother was entirely successful responding to an important motion which, in retrospect, shouldn’t have been brought on an “urgent” basis. The issues were important.

32 One of the purposes of costs is to encourage appropriate behaviour and discourage inappropriate litigation behaviour. That means that since the Rules make it clear the urgent motions are to be the exception, costs are an important tool to discourage inappropriate urgent motions.

33 The father notes that he doesn’t have a lot of money to pay costs. But the law is clear that impecuniosity is a relevant factor with respect to quantum of costs, but does not insulate an unsuccessful party from liability for costs. As well, the mother says while the father’s financial situation may be limited, her finances are even more limited, so she couldn’t afford to incur significant legal fees needlessly responding to a motion which shouldn’t have been brought.

34 Taking into account all of the Rule 24 factors including reasonableness and proportionality, the father shall pay to the mother costs of this motion fixed in the sum of $2,500.00 plus HST.

Justice Alex Pazaratz

Date: December 21, 2023