Court File and Parties

NEWMARKET COURT FILE NO.: FC-23-995

DATE: 20240207

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Natalia Igorevena Arbuzova, Applicant

AND:

Brent Edward Scriver, Respondent

AND:

Lisa Rayna Gordon, Respondent

BEFORE: The Honourable Mr. Justice D.A. Jarvis

COUNSEL: Nirmala Armstrong, Counsel for the Applicant Mark Greenstein/Katie Hunter, Counsel for the Respondents

HEARD: January 24, 2024

SUMMARY JUDGMENT RULING

JARVIS, J.

[1] The respondents have brought a summary judgment motion to dismiss this Application on the basis that there is no genuine issue requiring a trial. They are the biological parents of TDS born on July 30, 2008. For ease of reference, the surnames of all the parties shall be adopted in this ruling.

[2] In her Application, Arbuzova seeks a contact Order with TDS for herself and/or her son, MR, born on January 18, 2020. In particular, Arbuzova seeks the following relief:

(a) An Order that Arbuzova, and/or MR, have contact with TDS once a week for approximately 2 hours for rock climbing or any other activity that TDS may want to pursue in the future, Arbuzova to assume all transportation responsibility.

(b) An Order that Arbuzova, and/or MR, have contact with TDS at any time upon which the parties may agree.

(c) An Order permitting Arbuzova, and/or MR, to communicate with TDS via telephone, social media, video-call, internet, and/or online.

[3] The following material is before the court:

(a) The pleadings, which comprise the Application, Answer and Reply.

(b) The affidavits of Scriver sworn on December 20, 2023, and January 19, 2024 (reply).

(c) The affidavits of Gordon sworn on December 20, 2023, and January 19, 2024 (reply).

(d) The affidavit of Arbuzova sworn on January 15, 2024.

(e) The parties also filed motions and supporting affidavits pursuant to Rule 14(10) of the Family Law Rules complaining about non-compliance with, and seeking relief from, court filing deadlines and the Central East Region Practice Direction page limits (the Rule deals with procedural, uncomplicated or unopposed matters). Nothing in any of those affidavits is relevant to the issue before this court; counsel agreed that the court could disregard them.

[4] This is the relevant evidence:

(a) Arbuzova is a single parent of MR who is 13 years old and for whom Arbuzova has complete parenting time (“100%”) and sole decision-making responsibility.

(b) Scriver are and Gordon are divorced. They have three children, CS and TDS (twin boys) and DS (a daughter, age 13 years old) for whom they share decision-making responsibility and equal parenting time.

(c) Arbuzova and Scriver began a relationship in early 2018 and cohabited as a couple from March 2020 until either December 31, 2022 (Scriver’s evidence) or February 2023 (Arbuzova’s evidence, this being the date when she and MR left the residence shared with Scriver and his children).

(d) Arbuzova and Scriver kept their parenting separate with respect to the children. No major decision about, for example, heath care, education or extracurricular activities would be, or was, made involving the other’s child or children without the other’s approval.

(e) While Arbuzova and Scriver shared household expenses, they mainly paid for their own children.

(f) Arbuzova managed household responsibilities and activities for the family.

(g) TDS was diagnosed with Autism Spectrum Disorder (ASD) in October 2020.

(h) Arbuzova and Scriver began to experience difficulties in their relationship less than a year after they began cohabiting and eventually sought out couples therapy, which was unsuccessful. Most of the parties’ cohabitation (January 2021 until late December 2022/early 2023) was beset by parenting disagreements, issues about household expenses, and Arbuzova’s tensions with Scriver’s daughter, DS.

(i) Arbuzova and Scriver had different parenting styles. Arbuzova “tried to educate [Scriver] about positive parenting. [She] frequently advised on how to raise children to be independent and confident. [She] encouraged Scriver to use [her] parenting and child psychology resources.”[^1] Arbuzova initiated rules for the children involving the use of electronic devices in the home, set up schedules for household duties for the children and “consistently educated them about a healthy diet.”[^2] In her view, Scriver did not manage sibling conflict well, was biased against TDS such that she had to talk to Scriver about parenting strategies (on one occasion) and (on another occasion) felt that Scriver did not treat TDS with empathy and dignity about TDS’ enuresis (bedwetting).

(j) In late 2021, TDS participated with Arbuzova and M.R. in a rock-climbing activity. Beginning in April 2022, Arbuzova would take TDS and her son rock climbing twice weekly when TDS was residing with his father, her and R

(k) Arbuzova claimed that she “was heavily involved in supporting [TDS] and [she] recognized his emotional and developmental needs were greater than other children but were not being met in the family or through a specialist.”[^3]

(l) The separation between Arbuzova and Scriver was acrimonious. The day before Arbuzova and MR left Scriver’s residence (February 25, 2023) Arbuzova contacted Gordon to discuss what Gordon thought would involve issues about TDS’ education but during which call Arbuzova sought confirmation from Gordon about abuse in her (Gordon’s) relationship with Scriver. Gordon described Arbuzova as having “distaste” for Scriver.[^4]

(m) While Arbuzova acknowledged her tensions with DS, Scriver gave as a reason (among others) for their separation the troubled nature of the relationship between CS and DS with Arbuzova and their dislike of her.[^5]

(n) After Arbuzova and MR left Scriver’s residence, she started a long-term occasional teaching position in March at the twin’s school. She was assigned responsibility for supporting high risk students and coordinating a Credit Recovery Program (CRP). She was assigned, and accepted, responsibility for teaching TDS. According to her, she had no duty to inform Scriver or Gordon about her involvement with TDS or share his work with them. They only became aware of her involvement on or about April 19, 2023, when TDS told his mother that Arbuzova was his CRP teacher. Gordon requested that she share TDS’s project with her, which she did, but Arbuzova did not share that with Scriver because she “felt unsafe contacting [Scriver] because [she] did not want her intentions to be misinterpreted.”[^6] Gordon reported that Arbuzova told her that she was not comfortable talking with Scriver and so would not communicate with him about TDS’s school progress.”[^7]

(o) There were four, possibly five, occasions after Arbuzova and MR left Scriver’s residence where she took TDS and MR rock climbing.

(p) The parents met with the school on April 24, 2023. Around that time TDS made a call to Kid’s Help Phone about self-harm. When Arbuzova learned of this (thinking that TDS had been hospitalized) she contacted the local child protection agency (the “agency”). The agency contacted the parents; the file was closed on May 15, 2023, as there were no child protection concerns.

(q) On May 3, 2023, Arbuzova contacted TDS through Discord (a form of software communication), which TDS reported to his parents. They emailed her to refrain from further contact with their children.

(r) On May 10, 2023, Arbuzova approached TDS to tell him that she needed to stop communicating with him. That was the last time that she had any contact with him. On May 12, 2023, Arbuzova subscribed to TDS’ You Tube channel to track him.

(s) On May 29, 2023, TDS messaged MR that he had to block him.

(t) Scriver and Gordon are agreed that Arbuzova spending time with TDS is not in his best interests.

Summary Judgment

[5] A Summary Judgment motion can fulfill very important objectives in family law proceedings. It enables the court to make an expeditious, less expensive and proportionate disposition of a case in whole or in part.

[6] The procedure governing a motion for summary judgment is set out in Rule 16 of the Family Law Rules, the relevant provisions of which provide as follows:

RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

16. (l) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16.

EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

POWERS

(6. l) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[7] As stated by the Supreme Court of Canada in Hyrniak v. Maudlin, to succeed on a summary judgment motion, an applicant must prove that there is no genuine issue requiring a trial”.[^8] “No genuine issue for trial” has been equated with “no chance of success” and “plain and obvious that the action cannot succeed.”[^9]

[8] A two-step analysis is required. The judge must first determine if there is a genuine issue requiring a trial on the evidence without using the additional fact-finding powers set out in Rule 16(6.1) of the Family Law Rules. If, after this initial determination, there remains a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required. These powers involve the weighing of evidence, evaluating credibility, drawing inferences and possibly receiving oral evidence on the motion. The use of these powers is discretionary.

Statutory Framework

[9] Arbuzova’s Application is brought pursuant to Part III of the Children’s Law Reform Act (“the Act”).[^10] Section 21(3) of the Act provides as follows:

21. (3) Any person other than the parent of a child, including a grandparent, may apply to a court for a contact order with respect to the child.

[10] “Contact order” is defined in s. 18 of the Act:

18. (1) In this Part,

“contact” means the time a child spends in the care of a person other than the child’s parent, whether or not the child is physically with the person during that time;

“contact order” means an order made under section 28 respecting contact with respect to a child;

[11] Section 28 of the Act deals with parenting and contact orders. Subsections 28(1)(a)(iii), (b) and (c)(i) and (vii) provide as follows:

28. (1) The court to which an application is made under section 21,

(a) may by order grant,

(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);

(b) may by order determine any aspects of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be with respect to a child; and,

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

[12] Section 62 of the Act deals with procedure in the sense of permitting the joinder of claims respecting children with those relating to relief under the Family Law Act[^11] and the Divorce Act.[^12] Subsection 62(3) provides as follows:

(3) The parties to an application under this Part in respect of a child shall include,

(a) the child’s parents;

(b) a person who has demonstrated a settled intention to treat the child as a child of his or her family;

(c) a person who had the actual care and upbringing of the child immediately before the application; and

(d) any other person whose presence as a party is necessary to determine the matters in issue.

Non-parent relationships with children

[13] The caselaw dealing with the involvement of persons other than a child’s parents in their care and upbringing involves an assessment of the nature of that relationship from the perspective of the child. Most often the tension is between extended family members (such as grandparents, step-parents or other extended family members) who have (or had) a history of involvement with the child and parental autonomy of parents to make decisions on their child’s behalf. In Chartier v. Chartier[^13], the Supreme Court identified a non-exhaustive list of factors relevant to a child’s relationship with persons other than their biologic parent. Although Chartier involved child support, Bastarache J. (at para. 39) observed,

The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child’s relationship with the absent biological parent. The manifestation of the intention of the step-parent cannot be qualified as to duration, or be otherwise made conditional or qualified, even if this intention is manifested expressly. Once it is shown that the child is to be considered, in fact, a “child of the marriage”, the obligations of the step-parent towards him or her are the same as those relative to a child born of the marriage with regard to the application of the Divorce Act. The step-parent, at this point, does not only incur obligations. He or she also acquires certain rights, such as the right to apply eventually for custody or access under s. 16(1) of the Divorce Act.

[14] The leading case in Ontario dealing with non-parent relationships with children is Chapman v. Chapman[^14] in which the paternal grandmother sought more frequent access to two grandchildren than their parents thought was in their best interests.[^15] The evidence at trial was that the grandmother was a “strong-willed woman who is used to having her own way”, the parents were “highly dedicated and loving” and that the children did not have a positive relationship with their grandmother. The trial judge ruled that the children would benefit from a meaningful relationship with her and ordered more frequent access. The parents appealed.

[15] In that case, as in the case before this court, the parents submitted that they should have the unfettered right to determine the nature and frequency of their children’s relationship with their grandmother. The Court of Appeal allowed the appeal. Abella J.A. (as she then was) observed,

[19] A relationship with a grandparent can – and ideally should – enhance the emotional well-being of a child. Loving and nurturing relationships with members of the extended family can be important for children. When those positive relationships are imperiled arbitrarily, as can happen, for example, in the reorganization of a family following the separation of the parents, the court may intervene to protect the continuation of the benefit of the relationship (Shendroff v. Bruhand, a judgment of the Ontario Superior Court of Justice, released September 8, 1999 (unreported); Chabot v. Halladay, [1992] O.J. No. 2636 (Ont. Gen. Div.); Padbury v. Lee, [1994] O.J. No. 1075 (Ont. Gen. Div.); Peck v. Peck, [1996] O.J. No. 755 (Ont. Prov. Div.); McLellan v. Glidden (1996), 1996 18917 (NB QB), 23 R.F.L. (4th) 106 (N.B.Q.B.); Young v. Young, supra).

[20] In this case, however, the issue is not about preserving a positive relationship, but about whether the disruption and stress generated by the grandmother's insistent attempts to get access on her own terms are in the children's best interests.

[21] The trial judge acknowledged that the right of Larry and Monica Chapman "to independently raise their children should not be lightly interfered with", yet he defers that right to the speculative hope that continued imposed access to the grandmother will one day produce a positive relationship for these children. This speculation, it seems to me, is an insufficient basis for overriding the parents' right to protect the children's interests and determine how their needs are best met. These are loving, devoted parents committed to their children's welfare. In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children's behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them.

[22] Larry and Monica Chapman, not Esther Chapman, are responsible for the welfare of the children. They alone have this legal duty. Esther Chapman, as a grandparent, loves her grandchildren and, understandably, wants to maintain contact with them. Nonetheless, the right to decide the extent and nature of the contact is not hers, and neither she nor a court should be permitted to impose their perception of the children's best interests in circumstances such as these where the parents are so demonstrably attentive to the needs of their children. The parents have, for the moment, decided that those needs do not include lengthy, frequent visits with their grandmother. Although the parents' conflict with Esther Chapman is unfortunate, there is no evidence that this parental decision is currently detrimental to the children. It should therefore be respected by the court and the children's best interests left in the exclusive care of their parents.

[23] The trial judge's articulated purpose was to create a close relationship between two children and a grandmother who loves them. There can be no criticism of this goal. But any duty to create such a relationship lies with the children's parents. The failure to do so does not warrant judicial intervention, especially in circumstances such as these where the immediate family is functioning well and the children's best interests are being assiduously nurtured by dedicated parents.

[24] The appeal is allowed, the order of Ingram J. is set aside, and the application for access is dismissed. This does not mean that the grandmother will be unable to have access; it means that the nature and frequency of the access will be at the discretion of the parents who, it is assumed, will make that determination based on the best interests of the children. There will be no order for costs.

[16] In Nichols v. Herdman[^16] Stevenson J. applied the test from para. 21 of Chapman:

“…In the absence of any evidence that [the parents] are behaving in a way which demonstrated an inability to act in accordance with the best interests of [the child], their right to make decisions on [the child’s behalf] should be respected.”[^17]

[17] In Agmon v. James[^18], a case upon which Arbuzova relies, a stepmother sought a temporary Order for access that was opposed by the child’s parents. The stepmother and father had cohabited for 7 years: the child was 9 years old when the matter came before the court. As noted by Sherr J., the case raised issues about the access rights of a person who had formed a settled intention to treat a child as a child of his or her own family and the autonomy of parents to make decisions with respect to such a person.[^19] Sherr J. concluded that the Chapman line of cases favouring parental autonomy did not apply to persons who had formed the requisite settled intention. Those persons enjoyed a higher status as reflected in s. 62(3) of the Act.

[18] In Ninkovic v Utjesinovic, a 2019 case involving grandparent access, Madsen J. observed that amendments made in December 2016 to the class of persons (i.e., “grandparents” in s. 21(1) of the Act) who could seek an Order for custody or access did not extend or give them any special standing. No reference was made to Agmon. The court did, however, adopt the same test applied in Agmon as set out in Giansante v. DiChiara[^20] that deference should be given to a custodial parent’s decision regarding access if three questions could be answered in the affirmative, namely:

(a) Did a positive relationship exist between the person seeking access and the child (In Giansante, the applicants were members of the deceased mother’s extended family)?

(b) Has the parent’s or, in this case, the parents’ decision imperilled that positive relationship?

(c) Have the parents acted reasonably?[^21]

[19] In Hicks v. Geist[^22], a 2022 case involving a stepfather’s request for contact and an expansion of parenting time involving a 5 year old child that was opposed by the mother, and upon which Arbuzova also relies, Eberhard J. accepted the view expressed by Sherr J. in Agmon that the Chapman line of cases favouring parental autonomy did not apply where a person seeking contact or parenting time had demonstrated the requisite settled intention. The child was 18 months old when the stepfather and the mother began cohabiting. Eberhard J. implicitly followed Agmon in considering:

“[16]…the continuum of involvement and settled intention that will be in the child’s best interests to preserve. Factors may include length of the relationship, the age and developmental stage of the child during the relationship and when contact ceased, the length of time since contact ceased and the extent of step parents participation in usual parenting initiatives…

[17] The biological parent who has created, facilitated and encouraged the development of this close attachment cannot be legitimately outraged that her personal autonomy is limited. She must recognize that by cutting off all contact because of her own sensibilities, she has deprived the child of one of the two principal relationships in her life.”

[20] Given the stepfather’s request for contact and parenting time, and the evidence, in Ninkovic, it was unnecessary for the court to consider the 2020 amendments to the Act that reserved decision-making to parents.

Discussion

[21] The amendments to Part III of the Act in November 2020 reformulated the terms “custody” and “access’ in favour of decision-making responsibility, parenting time, contact and guardianship, all to be determined according to the best interests of a child. Section 18(1) defines “contact” or a “contact order”, as noted above, differently from parenting:

“parenting order” means an order made under section 28 respecting decision-making responsibility or parenting time with respect to a child.

“parenting time” means the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during that time.

[22] What distinguishes a contact order from a parenting order is decision-making responsibility accorded to the latter definitions. Underpinning both, the foremost consideration involving “the time a child spends in the care of” the non-parent or parent is the best interests of the child. The issue then in this case is to what extent should the decision of Scriver and Gordon be overruled in favour of TDS having contact with Arbuzova?

[23] In Agmon Sherr J. rejected the Chapman line of cases favouring parental autonomy where settled intent could be demonstrated, referencing s. 62(3) as conferring a higher status on a person demonstrating that intent. That section is found under Part III of the Act under the heading “Procedure” and, in my view, confers no such status. As with the unsuccessful argument in Ninkovic that the reference to “grandparent” in section 21(1) and section 24(2)(a)(i) conferred no enhanced status or higher standing on a grandparent, “settled intent” is but one of several factors relevant to determining whether a contact order, in the circumstances of this case, is in the best interests of TDS. Section 62 does no more than mandate the proper parties to an application under Part III of the Act. Even so, this court adopts the three-question test set out in Giansante and followed by Agmon and Hicks.

(a) Did a positive relationship exist between TDS and Arbuzova?

[24] The evidence discloses that there was a positive relationship between TDS and Arbuzova and between TDS and MR. This was not seriously challenged by Scriver and Gordon.

(b) Has the decision made by Scriver and Gordon imperilled that relationship?

[25] The decision by Scriver and Gordon ended the relationship between TDS and Arbuzova and between TDS and MR.

(c) Have Scriver and Gordon acted reasonably?

[26] This issue must be approached from the standpoint of TDS’ bests interests. As s. 24(2) of the Act mandates, the primary consideration must be the child’s physical, emotional and psychological safety, security and well-being. In this case:

(a) There was, and remains, no evidence of any physical risk to TDS or to his security by his parents’ decision. Arbuzova’s complaint to the child protection agency resulted in no action being taken. It is not an unreasonable inference that the agency was unable to verify any emotional or psychological risk to TDS.

(b) There was, and remains, no evidence of any issue relating to TDS’ need for stability or other issue between Scriver and Gordon impacting TDS (or his siblings) or between Scriver and Gordon after Scriver and Arbuzova began cohabiting or after they separated. In her affidavit, Gordon noted that while she and Scriver did not always agree on parenting they were “strongly” agreed that it was not in their children’s best interests, not just TDS, to have contact with Arbuzova.

(c) There was no evidence about the nature and strength of TDS’ relationship with either of his parents. There is evidence that Arbuzova disagreed with Scriver’s parenting.

(d) There is no evidence that Arbuzova named TDS as an eligible dependant under any plan of insurance available to her, that Scriver did so with respect to MR or that Arbuzova did so with respect to Scriver and Gordon’s other children.

(e) There is no evidence that either Arbuzova or Scriver identified the other as an emergency contact person for the other’s child or children.

(f) Arbuzova and Scriver agreed that neither would assume disciplinary responsibility for, or make important decisions about, the other’s child or children without the approval of the other.

(g) Apart from activity and household related expenses, Arbuzova and Scriver paid for their own child or children.

(h) There is evidence of interpersonal conflict between Arbuzov and Scriver within a year of their cohabiting and continuing through to their acknowledged acrimonious separation.

(i) Scriver and Gordon “vehemently” disagree with Arbuzova that TDS’ special needs were not being met by them or that they were not connecting TDS to appropriate resources. In argument Arbuzova maintained that Scriver (no reference to Gordon) did not understand TDS’s needs, implying that only she did. It is clear from the evidence that Arbuzova, in her professional opinion, did not think Scriver and Gordon were doing enough for TDS or as she thought best for him.

(j) There is evidence that Arbuzova did not accept the decision made by Scriver and Gordon to end contact with her. This involved her accepting the role as TDS’ teacher in circumstances where she and Scriver were, and have continued to be, highly conflicted. Arbuzova maintained that she had no duty to let TDS’ parents know about her involvement with him. She ignored the parents’ decision by subscribing to TDS’ You Tube account so that she could track him.

(k) Arbuzova did care for TDS, along with MR and TDS’ siblings. But behaving kindly or offering emotional, physical and even educational assistance does not mean that she intended to treat TDS like MR or that the decision made by Scriver and Gordon demonstrated an inability to act in accordance with the best interests of TDS. A stepparent has no presumptive right to a contact order.

[27] The Agmon and Hicks cases upon which Arbuzova relies are distinguishable. In Agmon, the relationship between the stepmother and the child lasted seven and a half years: the child was two years old when her stepmother and the father began cohabiting. In Hicks, the relationship between the stepfather and the child was longer (three and a half years of cohabitation) than in this case, more concentrated (there is no mention in the case report about any involvement by the biological father in the child’s life) and the child was much younger (eighteen months old).

[28] It is noteworthy too that, in this case, despite the apparently difficult circumstances surrounding the separation of Scriver and Gordon, there is no daylight between their positions, there is no evidence of conflicting parenting styles between them but there was, and remains, ongoing conflict between Arbuzova and Scriver. That cannot be in the best interests of TDS given his ASD diagnosis. In my view Chapman applies to the decision made by Scriver and Gordon. This court should not impose its perception of TDS’ best interests where his parents are attentive to his needs: Arbuzova thinks they should do more, or differently. That is not her call, it is the parents’ decision.

[29] The decision to end the relationship between Arbuzova and TDS was reasonable.

Disposition

[30] In her affidavit Arbuzova referred to third-party corroborative affidavit evidence; these affidavits were never filed with the court, although their existence was referenced in her factum. Nothing is inferred from this; the best evidence proffered by Arbuzova was contained in her affidavit. In my view, there is no genuine issue for trial based on the evidence before this court.

[31] Even if I am wrong in this regard, it is my view that the weight of the evidence is insufficient to warrant a trial. Arbuzova overstated her relationship with TDS and was unable to accept that the parenting decisions made by Scriver and Gordon were in their son’s best interests. She could have (but did not) look to alternatives to reporting a child protection concern. She could have declined to accept (but did not) acting as a CRP teacher to TDS in circumstances where her relationship with his father was acrimonious and their ability to communicate severely compromised. She could have reacted differently, and perhaps less defensively, when she maintained that she was under no duty to share TDS’ project work with Scriver and Gordon. This is not to say that the parents (Scriver in particular) were perfect parents (Gordon acknowledged as much) but this court’s impression is that the relief sought in Arbuzova’s Application is really for an unarticulated parenting order based on a disagreement about parenting disguised as a contact order and underpinned by a wish for all the parties’ children to have some kind of relationship unimpeded by their parents.

Costs

[32] Scriver and Gordon are presumptively entitled to costs. They filed a Bill of Costs and two Offers to Settle, one dated July 7, 2023, and the other dated January 10, 2024. The Bill totals $18,513.64, comprising fees ($16,245), disbursements ($156.79) and HST ($1,317.64). The Bill identifies the services of Mr. Greenstein, Ms. Hunter and their clerk, their experience, hourly rates and briefly describes the date of service provided, the work done and time spent. Both Offers comply with Rule 18 of the Family Law Rules dealing with the requisite formalities for an Offer and in each case seek the dismissal of the Application. The first Offer proposed, among other things, that the Application be dismissed, that Arbuzova have no contact with them or their children, not make social media postings about them or their children and not accept any teaching position at a school where their children attended. This Offer was open for acceptance until August 1, 2023, on a no costs basis or, if accepted afterward, then costs would be assessed by the court. This Offer expired one minute after the start of trial. In their January 10, 2024, Offer they simply proposed that, if accepted, the Application be dismissed and that Arbuzova pay $12,224.22 in costs. This Offer also had a deadline by which it could be accepted but, if not, then costs would be assessed by the court. Neither Offer was withdrawn; both were open for acceptance until the motion began.

[33] Arbuzova presented a Bill of Costs totalling $6,780 comprising fees ($6,000) and HST ($780). It is described as a “Court Appearance Flat Rate”. Partial recovery would be $5,085. She served five Offers to Settle, all complying with Rule 18. Her first Offer dated July 11, 2023, sought the relief set out in her Application. This Offer expired on July 31, 2023. The second Offer dated September 19, 2023, proposed that her Application be withdrawn on a no costs basis, that there be no future legal proceedings between the parties relating to their children and that there be no communication between the parties. It expired if not accepted by October 2, 2023. The third Offer dated October 26, 2023, proposed that she pay $5,610.45 in costs over eight months, that communication be restored between the parties’ children and that efforts be made to rebuild their children’s relationship. This Offer expired on November 1, 2023. Her fourth Offer was dated January 19, 2024, and proposed that there be communication between Arbuzova and MR with all the Scriver/Gordon children, including activities, along with efforts by the parents to rebuild the children’s relationships. Each party would bear their own costs. The Offer was open for acceptance until the morning of argument of the motion. The last Offer was dated January 23, 2024, and proposed much the same as the fourth Offer. None of the Offers was accepted.

[34] Apart from the exchange of pleadings, most of the work on the parent’s file was undertaken by Ms. Hunter and most of that after Arbuzova’s second Offer dated September 19, 2023, to withdraw her Application. At that time, the costs incurred by Scriver and Gordon were not materially greater than what Arbuzova had proposed in her third Offer made a month later but with contact terms unacceptable to Scriver and Gordon.

[35] There are certain well-established principles guiding the court’s exercise of its discretion pursuant to the Rules. The primary objective, of course, is to enable the court to deal with cases in a fair and timely manner. Three fundamental purposes are served: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants.[^23] Family law litigants must act in a reasonable and cost-effective way; they should, and will, be held accountable for the positions they take in their litigation.[^24]

[36] This is not a case, as submitted by Scriver and Gordon, for a “full recovery” award whether on the ground that they achieved all they proposed in their first Offer (they did not: for example, they proposed a restriction where Arbuzova could work) or an award based on bad faith (there was nothing egregious about Arbuzova’s conduct in this case that would warrant such a disposition). An overview of all the Offers suggests that the parties got lost in the weeds of their dispute and should have by late September 2023, after the receipt of Arbuzova’s second Offer, taken time to seriously assess what these proceedings were costing them, would cost them and the risks associated with proceeding further. In the Bill of Costs from Scriver and Gordon, most of the work was done by Ms. Hunter. Even though she attended the motion as Ms. Gordon’s counsel, no costs were claimed for her attendance as she adopted Mr. Greenstein’s submissions.

[37] This case should have settled in the Fall of 2023 had the parties not been so entrenched in the minutiae of their positions. In my view, considering the provisions of Rule 24 of the Family Law Rules dealing with the factors to be taken into account when assessing costs, Arbuzova should pay Scriver and Gordon costs of $7,500, inclusive of HST.

[38] One last point.

[39] Consistent in the offers made by Arbuzova after her first Offer was not accepted was a wish that the parties’ children have some kind of relationship with each other. While the court in Chapman viewed the adults’ conflict as “unfortunate”, no criticism of the trial judge’s effort to foster a closer relationship between the grandmother and children was made. Rather, the court simply affirmed that the nature and frequency of “access” be at the discretion of the children’s parents. When viewed from the perspective of TDS in this case, the court hopes (but does not order) that Scriver and Gordon will consider allowing some form of contact between the parties’ children.

Justice D.A. Jarvis

Date: February 7, 2024

[^1]: Affidavit of Natalia Igorevna Abruzova sworn on January 15, 2024, para.10. [^2]: Paragraphs 12, 16 and 17 of Abruzova affidavit. [^3]: Paragraph 28, Abruzova affidavit. [^4]: Affidavit of Lisa Rayna Gordon sworn on December 20, 2023, para. 11. [^5]: Affidavit of Brent Edwad Scriver sworn on December 20, 2023, paragraph 7e. [^6]: Arbuzova affidavit at para. 67. [^7]: Gordon affidavit, at para. 10. [^8]: Hyrniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 43. [^9]: Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, 432 D.L.R. (4th) 497, at para. 13. [^10]: R.S.O. 1990, c. C. 12 as am. [^11]: R.S.O. 1990, c. F.3, as am. [^12]: R.S.C. 1985, C.3 (2nd Supp.) as am. [^13]: Chartier v. Chartier, 1999 707 (SCC), [1999] 1 S.C.R. 242, 168 D.L.R. (4th) 540. [^14]: Chapman v. Chapman (2001), 2001 D.L.R. (4th) 443, 2001 24015 (ON CA), 15 R.F.L. (5th) 46 (Ont. C.A.). [^15]: The paternal grandfather had died several years earlier and was noted as having had a moderating influence on his spouse. [^16]: Nichols v. Herdman (2015), 61 R.F.L. (7th) 380 (Ont. S.C.). [^17]: Nichols, at para. 66, citing Chapman, at para. 21. This test was also applied in Ninkovic v. Utjesinovic, 2019 ONSC 558, a nine day trial involving grandparent access (at para. 60). [^18]: Agmon v James, 2018 ONCJ 4, 7 R.F.L. (8th) 483. [^19]: Ibid, at para.4. [^20]: Giansante v. DiChiara, 2005 26446 (ON SC), 2005] O.J. No.3184 (Ont. S.C.), at para. 18. [^21]: Ninkovic, at para 63. [^22]: Hicks v. Geist, 2022 ONSC 5671. [^23]: Serra v. Serra, 2009 ONCA 395, 66 R.F.L. (6th) 40, at para, 8. [^24]: Heuss v. Sarkos, 2004 ONCJ 14; Peers v. Poupore, 2008 ONCJ 615, 61 R.F.L. (6th) 453, at para. 34.