Court File and Parties

Barrie Court File No.: FC-09-1143-01 Date: 2024-07-03 Superior Court of Justice – Ontario – Family Court

Re: Flor Escobar Moran, Applicant -and- Wesley Helmuth, Respondent

Before: The Honourable Madam Justice S.E. Healey

Counsel: Linda Paterson-Kelly, Agent for the Applicant Brendan McDermott, Agent for the Respondent

Heard: June 28, 2024

Endorsement

[1] This long motion was last before the court on May 31, 2024, and a series of orders made with a view to assisting the respondent to re-engage with the two daughters of the marriage, in an effort to renew their relationship. The motion was originally scheduled to be heard during the November 2023 trial sittings and was not reached until May 2024.

[2] The motion was set for continuation today for the purposes of: 1) determining whether any progress has been made by the applicant with respect to compliance with court orders; 2) to consider the implementation of additional recommendations made by therapist Deborah Alton; 3) to order make up time; 4) if necessary, to consider a change in the residential arrangements; and 5) to deal with the issue of costs.

[3] Since then, the respondent has filed an affidavit sworn June 20, 2024 to update the court on his parenting time, and to set out his position on costs. The applicant has clearly consulted with counsel for advice and has filed an affidavit sworn June 25, 2024 (12 pages long, which was in violation of the order that it be restricted to 8 pages) and had Ms. Paterson-Kelly assisting her today.

[4] The applicant’s recent affidavit contains many more allegations pertaining to her marriage and to the post-relationship conduct of the respondent, much more than in her earlier affidavit or revealed through the Cook or Alton interventions. It attempts to re-litigate the issues decided by this court last day. As indicated in my Reasons, there are numerous credibility concerns with her evidence, as also noted in the Alton report. Her current evidence is untested, and goes beyond what is permissible in a reply affidavit or one intended to update the court since the last proceeding.

[5] The respondent’s confirmation for today indicated that he was continuing to seek an order for make-up parenting time and an expansion of parenting time, fining the applicant for not surrendering Flora’s passport, an order clarifying that Flora is a child of the marriage and that he be permitted to obtain documents and information about her from third parties without her consent, and an order for costs. During submissions, however, Mr. McDermott stated that he was trying to achieve only an order that would permit Deborah Alton to do her job by involving the applicant and creating some means of a step-up order, along with costs of the motion.

[6] The applicant sought an adjournment to allow the two girls to obtain counsel so that their position can be heard. This request was denied. Although the applicant takes the position that Flora is an adult by virtue of being over 18 years of age, a finding was made last day that she remains a child of the marriage. Flora did not appear to ask to make submissions to the court. Also, as indicated last day when the applicant asked for a Voice of the Child report, the girls’ position is well-known, such that hearing from counsel that they do not wish to see their father would be of little assistance.

[7] However, after this motion was argued the Court of Appeal released J.F.R. v. K.L.L., 2024 ONCA 520. In J.F.R. the Court dealt with the question of how to approach a request for a parenting order under the Divorce Act for an adult child who is presumed capable under the common law.

[8] The Court of Appeal set aside the order of the motion judge, which provided an interim parenting order for a person over 18 years of age under s. 2(1)(b) of the Divorce Act and the definition of “child of the marriage” contained therein. The parties’ son, “M”, who was the subject of the order, had not been named as a party, served with notice of the proceeding, or given an opportunity to make submissions on a matter that affected his fundamental rights.

[9] The appeal was allowed on the basis that “M” had the right to be heard before a determination was made with respect to whether he was “unable to withdraw from their [parental] charge or to obtain the necessaries of life” in the specific context of the order sought.

[10] Although Mr. McDermott pressed the court to go ahead with the finding made on the previous day that Flora remains a child of the marriage, he did not have the benefit of J.F.R.

[11] As Flora has been in the same position as “M”, with no procedural rights given, I am terminating all orders that affect her.

[12] The applicant describes that Anna may wish to withdraw from parental control and in her evidence asks that child support for her be terminated immediately. Anna has one more year of high school to complete. She will be 17 years old in October 2024. No procedural steps have been initiated by the applicant to terminate support for Anna.

[13] The evidence shows that since the order of May 31, 2024, Flora and Anna have attended for access on each Monday but did not interact with their father. The respondent’s affidavit indicates that he permitted this to occur because he did not want to push them and is content to wait to speak to them in Deborah Alton’s presence. By not taking those opportunities to speak to them in any meaningful way, I agree with Ms. Paterson-Kelly’s submission that those were lost chances to reconnect.

[14] The respondent has been to see Deborah Alton since the last attendance to discuss next steps but has not made an appointment to attend with Anna. He last saw Ms. Alton this morning. His affidavit states that Ms. Alton believes it is of utmost importance to have the applicant participate if there is to be any chance at family reunification.

[15] In his material, the respondent submits that my order of May 31, 2024 was breached because Anna did not allow herself to be driven home by him as permitted by the order, but instead left the library after calling an Uber for a ride at the end of the parenting time. The respondent alleges that her mother must have been the one to arrange this, which the applicant denies. There is no evidence to show that this was orchestrated by the applicant; either Flora or Anna would be equally as likely to have arranged for the ride.

[16] The respondent also submits that the order was breached because the applicant did not provide Flora’s passport. As the order to do so is now terminated, this is of no effect.

[17] Ms. Paterson-Kelly submitted that Deborah Alton is not the right person to offer family therapy to this family, as Anna does not relate to her and has no relationship with her. She urged another choice that would give Anna her own voice.

[18] At this stage, I find that Deborah Alton is the best option. And there is nothing stopping Anna from talking directly with her father if she wanted to express what it is that she needs or wants from him.

[19] This court orders: (a) All orders made with respect to Flora shall terminate immediately. (b) The applicant shall participate in reintegration therapy with Deborah Alton and shall follow her advice and recommendations. (c) The respondent’s parenting time with Anna shall increase within a reasonable period from today and when recommended by Deborah Alton, to include both Monday and Wednesday from 5:00 p.m. to 7:00 p.m., and thereafter shall increase to such further times as Deborah Alton may reasonably recommend, after taking into account the views and preferences of Anna. (d) This matter shall return to court for a further review of parenting time when Deborah Alton has completed sufficient work with the family to deliver a written report. The parties are to schedule a settlement conference for this purpose.

Costs

[20] This leaves the issue of costs. The applicant’s recent affidavit says that she has not violated any order. My reasons released on June 4, 2024 have already stated why I do not accept that evidence. Specifically, at paragraph 51, I found that she has not complied with paragraph 1 and 2 of the order of February 26, 2020, nor paragraph 7 of the February 25, 2021 order by historically permitting the children to decide whether they wished to interact with their father. I also found, at paragraph 52, that the applicant has involved the children in this legal matter contrary to paragraph 5 of the February 26, 2020 order, with specific examples given. I have no difficulty finding that the applicant has acted in bad faith in this proceeding, and that her actions directly necessitated the motion having to be brought.

[21] Further, the respondent was successful in setting aside the long-standing restraining order, which the applicant opposed.

[22] The applicant clearly exerted persuasion over Flora to have her return to Ontario following the last order and the fact that both daughters showed up and remained for the two-hour window does indicate that she likely actively encouraged them, since the order, to be with their father. This militates in her favour on the costs issue yet does not mitigate the years in which the respondent has lost time with his daughters because of the applicant’s passive and active resistance to his involvement in their lives.

[23] The respondent made two offers to settle this motion, one on November 16, 2023 and one on May 29, 2024. The offer of November 16, 2023 deals with expansion of parenting time, with the assistance of a family therapist or, in the alternative, seeks only access under the order of February 25, 2021, which is two hours per week.

[24] Neither offer sought to have the restraining order set aside or to deliver up passports.

[25] If accepted, the offers would have resulted in both parties paying their own legal fees.

[26] The respondent submits that the results of this motion are more favorable than either of his offers to settle. I agree that he has achieved a more favourable order.

[27] This motion, as well as this proceeding, has been at great expense to the respondent. He seeks costs on a partial indemnity amount of $7,160.42 prior to service of his offer to settle dated November 20, 2023, and on a full indemnity basis after service of that offer, in the amount of $11,495.32, for a total of $19,119.74 inclusive of HST and disbursements. I have examined the Bill of Costs filed by the Mr. McDermott, which provides a detailed breakdown of the steps taken to bring this motion to a final hearing.

[28] The bottom line is that the respondent should not have had to go to this expense just to attempt to have a relationship with Anna, and the applicant has not followed the orders, either directly or in spirit, that were made to attempt to salvage that relationship.

[29] After weighing the outcome of the motion, the positions taken by each party, the conduct of each party during the litigation, the underlying reasons necessitating the motion, the bad faith motivating the applicant, the principle of indemnity and the applicant’s reasonable expectations, I find that a fair and reasonable amount of costs is $15,000.

[30] This court orders that the applicant, Flor Escobar Moran, shall pay to the respondent, Wesley Helmuth, costs of this motion fixed in the amount of $15,000 inclusive of HST and payable within 30 days.

Healey J. Released: July 3, 2024