Endorsement

Court File No.: 1280/24
Date: January 27, 2025
Superior Court of Justice - Ontario
Re: Sara Lang, Applicant
And: Anwar Qureshi, Respondent
Before: Alex Pazaratz
Counsel:
Rebecca Ye, Counsel for the Applicant
Alisa Williams, Counsel for the Respondent
Heard: January 24, 2025

Introduction

1. Forget spiders or heights. What’s really scary is having to appear in front of the same family court judge you recently misled on an ex parte motion.

   a. Last time, you went behind the father’s back and complained dad was about to unilaterally change a long-standing status quo.
   b. Turns out, you were the one secretly changing a long-standing status quo.
   c. You didn’t tell the judge you had already hatched a plan to move to another city with your kids, to live with your boyfriend. You were selling your house. Registering the kids in a new school, in the middle of the school year. You’d be reducing the father’s time.
   d. You didn’t mention that you were doing all this despite a separation agreement which specifically said you couldn’t do what you were doing.
   e. You certainly didn’t give the father notice of relocation as required by law.
   f. You went ahead with your plan. It was a “done deal” and the father would just have to live with it.
   g. Except he’s brought a motion – on notice – to stop you.
   h. So now you’re in front of the same judge. Trying to explain why maybe last time it was a mistake to trust you. But this time you should be believed.

2. That’s a kind of scary even Stephen King wouldn’t mess with.

Background

3. The background:

   a. The parties started living together in August 2012.
   b. They separated on January 1, 2023.
   c. They have two boys, BQL age 7, and SQL age 4.

4. Upon separation the parties started out doing everything right. On February 24, 2023 they signed a comprehensive 10-page separation agreement which included the following terms:

   • The Parties agree that joint legal custody is in the best interests of the children. The Parties agree that both parents are fit and proper persons to have joint responsibility for the care of the children.
   • The Parties agree that the children will primarily reside with both parties and 30 Randall Ave., Stoney Creek, ON, LBG1W9 will remain their legal residence for school catchment, government, ID and travel purposes.
   • Should either parent choose to move more than 30 minutes drive from Collegiate Elementary School, they forfeit their weekday access to the boys.

5. The agreement then set out a detailed parenting plan which included:

   a. Equal time-sharing on a 2-2-3 schedule.
   b. Specified equal sharing of statutory holidays, March break, summer break, etc.
   c. Very detailed. Very equal.

6. The parties agree thereafter they modified the schedule from time to time, so it quickly deviated from 2-2-3.

   a. The father says throughout the various changes they consented to, he always had the children between 40 and 50 per cent of the time.
   b. The mother calculates that he had about 42% of the time until August 2023. She says they then tried a 2-2-5-5 schedule for the school year starting September 2023. But since October 2023 the father has had the children only on weekends -- every weekend.
   c. The father agrees he’s had every weekend, Friday to Sunday. But he says he’s also had a lot of weekday time until about September 2024 when the mother mentioned she wanted to relocate from Stoney Creek (where they both resided and where the children attend school) to Wellandport. He says she didn’t give him details. But after that she started cutting back on his weekday time.

7. Whatever the scheduling permutations, I find that they started out with precisely equal time, and along the way they agreed upon changes which continued the father’s involvement on a significant and almost equal basis. While the mother ended up having weekdays, during much of those days the children would be in school. In contrast the children were with the father the whole of the day each weekend. Weekends are often regarded as premium time in terms of parent-child interaction.

8. After September 2024 the mother provided the father with very little information about her plans for the children or any proposed changes.

The November 13, 2024 Ex Parte Motion

9. But on November 13, 2024 the mother went to court – behind the father’s back – to try to restrict his parenting time. She filed an application, a 35.1 affidavit, and a 35.1A affidavit. She also brought a motion without notice (also known as an ex parte motion) with a supporting affidavit, which came before me that same day. My November 13, 2024 endorsement is reproduced:

   1. I received this matter in chambers during the lunch hour.
   2. I had questions so I asked that the mother attend early in the afternoon, which she did.
   3. She confirmed that she has not served the Respondent father.
   4. I have reviewed the self-represented mother’s documents including her Application and Notice of Motion, both issued today, and her affidavit in support including exhibits.
   5. Briefly, based on the mother’s materials: a. The parties lived together from February 2013 to January 1, 2023. b. They have two children, (BQL) age 7 and (SQL) age 4. c. They have a “private separation agreement signed and notarized” dated February 24, 2023 (in court the mother corrected her Application which said the agreement was February 24, 2024). d. The agreement says the children are to be with the mother from Sunday to Friday and with the father on weekends. e. The mother says the father is not following the agreed parenting time schedule. She says the father is trying to change the schedule “back to week to week” and threatening to implement this as of Sunday November 17, 2024, even though she doesn’t agree. f. Exhibit D to her affidavit is a screen shot of lengthy texts between the parties discussing scheduling. g. She says he is threatening to take the children and not return them at the required time. However she confirmed in court today that the father hasn’t actually changed the schedule – the children are still with her and in school today. She is concerned that he has threatened to change the schedule as of this weekend, by not returning the children on Sunday.
   6. The mother expresses concern about physical abuse of the children by the father. a. Exhibit B to her affidavit is two photographs of the child (BQL) with a mark on his face. Notably, the mother describes this incident as occurring in January 2024. She says the father admitted to CAS that he slapped (BQL) across the face. While any injury to a child is serious, I must note that this incident occurred quite a long time ago, and the mother has had no difficulty with the father having regular parenting time since then. b. She says on November 12, 2024 (BQL) reported “several more incidents” of the father slapping him. The mother says there were several witnesses to these incidents. A report was filed with CAS on November 13, 2024 (today). c. The mother advised that CAS will be meeting with her later today.
   7. The mother says the father’s work schedule with the Ironworker’s Union varies, and the father will have difficulty providing care for the children on weekdays.
   8. She says (BQL) has been diagnosed with ADHD and requires stability and consistency.
   9. It is unclear the extent to which this matter may qualify as an emergency or urgent. But in any event I am not prepared to deal with this matter on an ex parte basis. a. The mother does not allege that she is unable to serve the father, or that any harm or mischief will arise if she notifies him of her claims. b. The mother does not allege that the father has actually exercised self-help or disrupted the children’s schedule. Her main concern appears to be that he intends to keep the children after the end of his coming weekend. c. Indeed, notwithstanding the allegation that the father has been physically abusive, the mother is not seeking to reduce the father’s time with the children. Despite everything she has said about him, she expresses no concern about the well-being of the children if they are in the father’s care – completely unsupervised – every weekend from Friday to Sunday. That suggests that the real issue here is scheduling, and not whether the children are in any danger during any time they are with the father. d. If the children are not in danger and they continue to be in the mother’s care, then ex parte relief is not appropriate.
   10. While unilateral action by a parent is generally inappropriate, there is no suggestion that the father intends to take any action which is not easily correctable. There is no suggestion he is going to abduct the children. In his texts to the mother he has indicated he will be seeing a lawyer, which suggests that he intends to deal with parenting issues through legal channels. Notice to the father will accelerate that discussion in an appropriate forum.
   11. Today in court the mother provided an important update. She indicated that after filing her materials she received a text from the father who indicated he spoke to a lawyer today who “didn’t tell him what he wanted to hear”. He said he wants to continue to renegotiate the schedule. Again, that doesn’t sound like an emergency or unilateral behaviour.
   12. I understand that the mother wants to avoid any disruption in the children’s lives. She is quite correct in wanting to ensure their stability.
   13. But there is no basis for an ex parte order. Courts require the participation of both parents, to make sure that children’s interests are protected.
   14. The mother’s emergency motion today is dismissed.
   15. If the mother wishes to proceed, she will have to arrange for the father to be served. For clarity, I am not suggesting that she be the one to serve him.
   16. Based on the current circumstances, so long as the existing parenting time schedule has not been disrupted, and so long as there are no safety risks in relation to the children, this matter is not urgent and should proceed through the case management process.
   17. A copy of this endorsement will be emailed to both parties by the court. When the father receives this endorsement, I am hoping he understands that while I was not prepared to make an order without notice to him, nonetheless the court does not approve of – and will not tolerate – any unilateral action which disrupts children’s routines.

Events Following the Ex Parte Motion

10. As is common practice for judges dealing with ex parte motions, before writing that endorsement I searched the court file attempting to glean as much information as possible. None of the mother’s other November 13, 2024 documents alerted me to what was really going on.

a. Her Application requested a change from “joint custody” to sole decision-making in her favour. She complained the father was not following the agreed parenting schedule. She said the children needed consistency. But she didn’t mention relocation, or the inconsistency inherent in a change of city and school, and a reduction in the father’s parenting time. b. Her 35.1 affidavit confirmed she planned to live at the Randall Avenue residence she had retained after the parties separated. She also stated: “Both children will continue to attend current school fulltime from their current address with their mother” and that it was in the children’s best interests to “see their father from 4 pm Friday to 6 pm Sundays.”

11. In her materials and during her court attendance on November 13, 2024 the mother expressed considerable anxiety about the possibility of the father unilaterally disrupting the children. But she made not the slightest mention that as of that moment she had already decided to unilaterally disrupt the children in the very near future. She was apparently attempting to nail down – on an ex parte basis – that the father should only have weekends with the children, to pre-empt the father’s complaint that she was suddenly denying mid-week time.

12. The good news is that the mother didn’t succeed in getting an ex parte order on November 13, 2024. But the bad news is the manner in which she tried.

13. Since then, the mother has retained counsel. During submissions on the current motion, her lawyer understandably distanced herself from the mother’s documents and behaviour in November 2024. Her lawyer suggested the mother may have misunderstood what information the court required.

14. However, I am unable to accept the suggestion that the mother’s lack of candor on November 13, 2024 was innocent or unintentional.

a. The mother went out of her way to portray herself as the guardian of the status quo, while demonizing the father as a dangerous disrupter. b. In three different court documents – and orally during our “on the record” interaction – the mother very clearly portrayed that the father was the problem. c. He wanted to recklessly change the children’s lives. She wanted to protect their stability. d. She emphasized the importance of consistency for young children. She and the boys would continue to live in the same house in Stoney Creek. They would continue to attend the same school in Stoney Creek. The parenting schedule would remain the same. e. She conveyed commendable parental insight. If only it were true.

The Law on Ex Parte Motions

15. Emergency motions without notice to the other parent are easily the toughest part of being a family court judge.

a. Even when we hear both sides of the story, it’s often hard to figure out what’s really going on and who to believe. b. Deciding hugely important issues based on only one version of events runs counter to the most fundamental concepts of fairness and natural justice. There are enormously complicated rules and procedures to try to make sure we get the whole story before deciding anything. c. And yet every week in family court – sometimes every day – a parent will walk in claiming that something terrible is going to happen to a child unless a judge acts immediately, without waiting to hear the other parent’s side of the story. d. Our overwhelming experience: Most of these emergency ex parte motions are false alarms. e. But just like the fire department, we still have to race to action until we can be sure it’s a false alarm.

16. In urgent situations, judges will do whatever is required to protect children – with or without notice to the other parent. But it is vitally important that our systems are not abused, either recklessly or for strategic advantage. In A.M. v. J.M., 2016 ONCA 644 the Ontario Court of Appeal explained why parents have to strictly adhere to very specific rules and expectations if they are going to request ex parte relief:

[26] Rule 14(12)(c) of the Family Law Rules, O. Reg. 114/99, allows a motion to be brought without notice if “there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences.” If an ex parte order is made, under rule 14(14) that order must contain a requirement that the matter come back to court, if possible before the same judge, within 14 days or on a date chosen by the court. And under rule 14(15), an order made without notice must be served immediately on all parties affected, together with all documents used on the motion, unless the court orders otherwise.

[27] These rules are consistent with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for other civil matters. An ex parte order is intended to be used only in exigent situations where the delay required to serve the motion would probably have serious consequences, or where the giving of notice by the service itself would probably have serious consequences. A judge hearing an ex parte motion who is not satisfied of the probability of those consequences will decide that the motion cannot proceed ex parte and order that notice be given.

[28] Where a motion is brought without notice, the person bringing the motion must make full and fair disclosure of all material facts (rule 39(6) of the Rules of Civil Procedure), including facts that may not be helpful to that party’s position. An ex parte order that is obtained without full and fair disclosure, even if the lack of full disclosure was unintended, is subject to being set aside. See for example, Rinaldi v. Rinaldi, 2013 ONSC 7368.

[29] Notice and the opportunity to be heard are basic tenets of our justice system. Ex parte orders are therefore made only in very limited circumstances. The requirement for full and frank disclosure is essential to allow a court to fairly make a temporary order that will affect the rights of another person in an emergency situation where the court has not heard both sides of the story.

[30] That requirement is well-known to lawyers. It applies equally to self-represented parties.

17. There are serious consequences if the court ultimately concludes that a judge was misled by one of the parties on an ex parte motion. In the short term:

a. If an ex parte order was made, it will likely be reversed immediately once a better understanding of the facts is ascertained. b. There may also be significant costs consequences, depending on how much work the other parent had to do correct the situation.

18. The longer-term consequences of deceiving the court are more complex.

a. Litigation misconduct will not be tolerated. A harsh judicial response is usually warranted. b. But the children who are the subject of the litigation should not be punished or adversely affected by the mistakes of a parent. At every stage, the best interests of the child are the only consideration. c. In some cases, a clear delineation may be possible between a parent’s “litigation misconduct” and “the best interests of the child.” The parent may have tried something that didn’t work, but it wouldn’t have affected the child. d. But in many cases, poor litigation behaviour offers a self-created window, unmasking significant deficiencies or questions relating to parental insight, judgment and trustworthiness. e. Where a party attempts to change or impose a parenting regime on a child through misleading materials, it’s not just the deception that matters. The bigger issue may be the selfish disregard of a child’s best interests as revealed by the deception. f. Lies and self-help instantly focus the spotlight on the offending parent’s overall capacity and inclination to meet all of the child’s needs – including promoting the child’s relationship with the other parent.

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Justice Alex Pazaratz
Date: January 27, 2025