Sadowski v. Sadowski, 2011 ONCJ 403

Milton Registry No. 480/06 DATE: 2011·VIII·04 CITATION: Sadowski v. Sadowski, 2011 ONCJ 403 ONTARIO COURT OF JUSTICE BETWEEN: ALEXANDRA CHRISTINE SADOWSKI, Applicant, — AND — ROBERT RICHARD SADOWSKI, Respondent. Before Justice Sheilagh M.

O’Connell Heard on 2 August 2011 Reasons for Judgment released on 4 August 2011 CUSTODY OF CHILD — Jurisdiction — Effect of divorce proceeding on custody proceeding under provincial law — Automatic stayof custody proceedings under provincial law — Motion to lift stay — Grounds — Avoiding multiplicity of proceedings — About 3 yearsago, Ontario Court of Justice granted mother sole custody of 2 boys (now 5 and 7 years old) and allowed father supervised access oncertain conditions — Father recently applied to vary that order, seeking joint custody and unsupervised access to his sons — Mother wasready to allow unsupervised access but not overnight access and she began action for divorce in Superior Court of Justice in which shesought rulings on property issues and on custody — Her action had effect of triggering

section 27 of Children’s Law Reform Act, whichautomatically stayed father’s custody claim under provincial law, unless Ontario Court of Justice lifted stay for which father now mademotion — In reviewing case law, motion judge observed that purpose of stay was prevention of inconsistent results among courts,redundant litigation, constitutional entanglement and delay in finality — In his motion, father argued that custody dispute was distinctfrom other claims and could safely proceed in Ontario Court of Justice without impeding property claims and divorce — Mother, onother hand, pointed to inconvenience and expense of having to attend before 2 separate courts and assured motion judge that caseconference in Superior Court could be arranged in less than 2 weeks to address any expansion of father’s access — Motion judge foundthat outstanding property issues raised by mother were legitimate; that parties’ settlement discussions over those issues had genuinelybroken down; that only Superior Court had authority to deal with them and with divorce; and that father had not proved on balance ofprobabilities that mother’s actions were made in bad faith — Motion judge agreed with mother that going back and forth between 2courts would be very expensive for parties and concluded (1) that multiplicity of proceedings was not in parties’ or children’s bestinterests and (2) that all matters (including custody and access) should proceed in Superior Court — But because mother had alreadyconceded that supervision of father’s access was no longer needed and, just in case there were any delays in starting and transferringcustody and access case to Superior Court (which could prejudice children’s best interest), motion judge decided to make interim orderthat unsupervised daytime access between father and children start as soon as possible — Aside from this interim order, father’s motionfor stay was dismissed.

STATUTES AND REGULATIONS CITED Child Support Guidelines, O. Reg. 391/97 [as amended],

section 7. Children’s Law Reform Act, R.S.O. 1990, c. C-12 [as amended],

section 27. Courts of Justice Act, R.S.O. 1990, c. C-43 [as amended],

section 138. Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3 [as amended]. CASES CITED Anderson v. Anderson, , 82 A.C.W.S. (3d) 720, [1998] O.J. No. 3767, 1998 Cars​well​Ont 3682 (Ont. Prov. Div.).

D’Appollonio v. D’Appollonio (1992), 35 A.C.W.S. (3d) 824, 3 W.D.C.P. (2d) 577, [1992] W.D.F.L. 1397, [1992] O.J. No. 1984, 1992Cars​well​Ont 3935 (Ont. Gen. Div.). Doherty-Mulder v. Mrowietz, , 43 R.F.L. (5th) 313, [2003] O.J. No. 3388, [2003] O.T.C. 764, 2003 Cars​well​Ont 3214(Ont. S.C.). Husein v. Chatoor, 2005 ONCJ 240, 141 A.C.W.S. (3d) 453, [2005] W.D.F.L. 3966, [2005] O.J. No. 3292, 2005 Cars​well​Ont 3451(Ont. C.J.). Kucera v. Smith, 2010 ONCJ 172, 193 A.C.W.S. (3d) 563, [2010] O.J. No. 4161, 2010 Cars​well​Ont 7375 (Ont. C.J.). Lakhani v.

Lakhani, , 23 O.R. (2d) 575, 96 D.L.R. (3d) 564, 10 R.F.L. (2d) 156, 1 F.L.R.A.C. 379, [1979] O.J. No.4106, 1979 Cars​well​Ont 280 (Ont. H.C.). Lepper v. Lepper, , 38 A.C.W.S. (2d) 300, [1986] W.D.F.L. 1797, [1986] O.J. No. 1725, 1986 Cars​well​Ont 1615 (Ont.Prov. Ct., Fam. Div.). McKay v. McKay (1982), (ON SC), 30 R.F.L. (2d) 463, [1982] O.J. No. 2484, 1982 Cars​well​Ont 338 (Ont. H.C.). Geoffrey J. Carpenter .................................. counsel for the applicant (responding party on motion) Patrick G.

Muise ............................................ counsel for the respondent (moving party on motion) JUSTICE S.M. O’CONNELL:— 1: OVERVIEW [1] In the motions before me, the respondent father seeks an order for graduated unsupervised access leading towardsalternating weekend overnight access with his two sons and for an order that the this court has jurisdiction to continue to proceed withthe father’s motion to change.

The applicant mother seeks an order that the proceedings in this court be stayed with respect to custodyand access and that the matter continue in the Superior Court of Justice in court file no. 33826/11, pursuant to

section 27 of theChildren’s Law Reform Act, R.S.O. 1990, c. C-12, as amended. In the alternative, the applicant mother seeks an order requesting thefurther involvement of the Office of the Children’s Lawyer. 2: BACKGROUND [2] This proceeding was commenced by way of a motion to change the final order of the Honourable Justice Theo Wolderdated 29 August 2008.

The final order of Justice Wolder, dated 29 August 2008 provides that the mother have sole custody of thechildren, Joseph Robert Sadowski (born on 22 July 2004 — age 7 years) and Noah Jacob Sadowski (born on 9 September 2005 — age 5years) and that the father’s access be as follows: 2. The respondent [father] shall have supervised access to the two children at the supervised access centrein Brampton on the terms set out in recommendations 2 through 8 of the report of the Office of theChildren’s Lawyer dated December 27, 2007 as follows: a.

Access visits between Robert Sadowski, Joseph and Noah, should continue to take place at thesupervised access centre for two hours each week, as per the current schedule, for an additionalsix months. b. Robert Sadowski should participate in and complete a treatment program for substance abuseand follow any recommendations made by the clinicians. c. Robert Sadowski should attend counselling or therapy. d. Robert Sadowski should participate in a parenting program. e.

Upon the useful completion of the above recommendations, and after 6 months time, accessvisits should take place twice weekly, two hours per visit, for an additional 3 months. Thesevisits should take place with the assistance of a parenting coach, as therapeutic access, or in astructured, community based program such as those available at an Early Years Centre. f. Upon the successful completion of the community based access visits, access should beexpanded to include three visits weekly, for three hours per visit.

These visits would beunsupervised and take place locally. [3] The father is seeking to change the final order to provide that he have joint custody and unsupervised access to thechildren. The father commenced his motion to change on 5 November 2010. The first court date was 31 January 2011 and has been casemanaged by me since that time. [4] At the first appearance on 31 January 2011, the parties reached a final order regarding the issues of spousal support,child support and expenses under

section 7 of the Child Support Guidelines, O. Reg. 391/97, as amended. The issues of custody andaccess remained outstanding and a case conference on those issues was held before me on 23 March 2011. [5] At the case conference on 23 March 2011, the father submitted that he has been exercising supervised access to the twochildren for almost three years, that he has satisfied all of the conditions set out in Justice Wolder’s final order, and that it is now in the

children’s best interest to move towards unsupervised access with their father. However, the father did not file evidence that he hadsatisfied the conditions of the final order of Justice Wolder at the time of the hearing. The father agreed to provide this evidence by thenext conference date. The father also submitted that the mother had unilaterally changed the weekly supervised access and that shewould not consent to the paternal grandparents’ attending the supervised access centre. Further discussions were held on those twoissues. [6] Accordingly, on consent of the parties, the case conference was adjourned to 27 June 2011 at 11:30 a.m. on thefollowing terms:

(1) The weekly supervised access set out in the final order shall be reinstated immediately. Thepaternal grandparents are permitted to occasionally visit the children at the supervised accesscentre.

(2) Mr. Sadowski to serve and file his psychologist’s report, evidence and report of the completionof his parenting program and counselling, a hair follicle test or regular urine screens (hairfollicle preferable) regarding his marijuana use (or not) and copies of all the reports from theSupervised Access Centre before the next case conference. [7] At the next case conference on 27 June 2011, the father filed an updated case conference brief, in accordance with myorder above, which included the following evidence: (

a) psychological evaluation of the father; (

b) reports confirming father’s counselling; (

c) report and certificate confirming father’s completion of “Triple P” parenting program; (

d) toxicology reports dated 20 and 29 April 2011 confirming negative results for drugs and alcohol; and (

e) Peel Supervised Access Observation notes from June of 2009 to 4 June 2011. [8] However, notwithstanding the material filed, the mother then advised through counsel that she was not consenting toany expansion of the father’s access and that it was now her intention to issue an application in the Superior Court of Justice as theparties had not been able to resolve the outstanding property issues, specifically, the disposition of the matrimonial home. Accordingly,it was counsel’s position that these proceedings were now stayed in accordance with

section 27 of the Children’s Law Reform Act, andthat the father was free to bring a motion for unsupervised access in the Superior Court of Justice proceedings soon to be commenced bythe mother. [9] After hearing submissions, I made the following endorsement, in part, at the case conference of 27 June 2011: The father has filed an updated settlement [sic] conference brief addressing the disclosure required andordered pursuant to my order of March 23, 2011 regarding the custody and access issues, althoughprimarily access.

The mother is now seeking to commence proceedings in the Superior Court of Justicebecause the parties have been unable to resolve the outstanding property issues. The mother submitsthat, once an application is commenced in the Superior Court of Justice, this application will be stayedand the father is free to bring his motion for unsupervised access in the Superior Court. The mother hasnot yet commenced her action for divorce in the Superior Court of Justice, so this action is not stayed. [10] I then adjourned the matter to 2 August 2011 for a one-hour motion regarding access.

If the mother commenced herapplication in the Superior Court of Justice before that date, then I indicated that I would hear argument at that time whether theseproceedings should be stayed or whether I should grant leave to continue the proceedings in this court regarding the custody and accessissues. 3: THE LAW [11]

Section 27 of the Children’s Law Reform Act provides that where an action for divorce is commenced under the DivorceAct, R.S.C. 1985 (2nd Supp.), c. 3, as amended, any application under the Children’s Law Reform Act in respect of custody of or accessto a child that has not been determined is stayed except by leave of the court. [12] The staying provision is designed “to prevent inconsistent results among courts, redundant litigation, constitutionalentanglement and delay in finality”: see paragraph [12] of Anderson v. Anderson, , 82 A.C.W.S. (3d) 720, [1998] O.J.No. 3767, 1998 Cars​well​Ont 3682 (Ont. Prov.

Div.), per Provincial Judge Heather L. Katarynych. It supports the principle set out atsection 138 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, which states that “as far as possible, multiplicity of legalproceedings should be avoided.” As Provincial Judge D. Kent Kirkland stated at paragraph [7] in Lepper v. Lepper, ,38 A.C.W.S. (2d) 300, [1986] W.D.F.L. 1797, [1986] O.J. No. 1725, 1986 Cars​well​Ont 1615 (Ont. Prov. Ct., Fam.

Div.): “The dominantprinciple in dealing with this issue appears to be the wisdom of dealing with similar matters simultaneously in one court.” [13] The principles developed in the case law establish that the Ontario Court of Justice can and should exercise its discretionto lift the stay of proceedings in the following circumstances: (

a) When the divorce action has been commenced in bad faith. Bad faith can constitute sufficient grounds for the lifting of theautomatic stay. See Husein v. Chatoor, 2005 ONCJ 240, 141 A.C.W.S. (3d) 453, [2005] W.D.F.L. 3966, [2005] O.J. No.3292, 2005 Cars​well​Ont 3451 (Ont. C.J.), per Justice Robert J. Spence; D’Appollonio v. D’Appollonio (1992), 35A.C.W.S. (3d) 824, 3 W.D.C.P. (2d) 577, [1992] W.D.F.L. 1397, [1992] O.J. No. 1984, 1992 Cars​well​Ont 3935 (Ont. Gen.Div.), per Justice Thomas M. Dunn; Lakhani v. Lakhani, , 23 O.R. (2d) 575, 96 D.L.R. (3d) 564, 10R.F.L. (2d) 156, 1 F.L.R.A.C. 379, [1979] O.J. No. 4106, 1979 Cars​well​Ont 280 (Ont. H.C.), per Justice Wilfred RolandDuPont;

(

b) When the delay involved in transferring the proceedings to the Superior Court could cause prejudice to the children and thedelay in the determination of the proceedings pertaining to the children is not in their best interests: Husein v. Chatoor,supra; Anderson v. Anderson, supra; (

c) When the consequences of the stay cause a pointless and inequitable waste of court resources and does not serve theinterests of the administration of justice (this is often coupled with bad faith): Kucera v. Smith, 2010 ONCJ 172, 193A.C.W.S. (3d) 563, [2010] O.J. No. 4161, 2010 Cars​well​Ont 7375 (Ont. C.J.), per Justice Roselyn Zisman; Lakhani v.Lakhani, supra. [14] An additional issue raised by the father’s counsel is that the proceedings in the Ontario Court were commenced by thefather by way of a motion to change a final order of the Ontario Court of Justice. Mr.

Muise submits that the Superior Court of Justicehas no jurisdiction to vary an order of the Ontario Court of Justice, and relies on the decision of Justice Emile R. Kruzick in the case ofDoherty-Mulder v. Mrowietz, , 43 R.F.L. (5th) 313, [2003] O.J. No. 3388, [2003] O.T.C. 764, 2003 Cars​well​Ont 3214(Ont. S.C.). [15] I agree with the Mr. Muise that the case law is clear that the Superior Court has no jurisdiction to vary an order of theOntario Court of Justice, just as the Ontario Court of Justice could no vary an order of the Superior Court. There is no statutory authorityto do so. [16] However, as Mr.

Carpenter argues, the doctrine of paramountcy still applies and the Superior Court does have thejurisdiction to issue a corollary relief order addressing outstanding issues of custody and access under the Divorce Act that will have theeffect of superseding any such order under of the Ontario Court of Justice: see McKay v. McKay (1982), (ON SC), 30R.F.L. (2d) 463, [1982] O.J. No. 2484, 1982 Cars​well​Ont 338 (Ont. H.C.). The Superior Court therefore has jurisdiction to hear anddetermine these issues.

The issue before me therefore is whether I should exercise my jurisdiction to lift the stay, having regard to theprinciples set out above. 4: ANALYSIS [17] I do find that the timing of Ms. Sadowski’s decision to commence her application in the Superior Court of Justice to betroubling. I am concerned that this was a tactical decision on her part to delay the determination of Mr. Sadowski’s motion forunsupervised access. I am also troubled by Mr. Sadowski’s allegation that Ms.

Sadowski would not consent to any change in the custodyand access terms unless there was a satisfactory settlement of the property issues, despite Ms. Sadowski vigorous denial of this in heraffidavit materials. [18] In Kucera v. Smith, supra, after an intensive series of case-managed settlement conferences that spanned a period ofalmost one year in the Ontario Court of Justice, the wife became dissatisfied with the process and commenced a divorce application inthe Superior Court for the same relief, thereby creating an automatic stay of the proceedings in the Ontario Court of Justice.

In view ofthe length of time that the case had been before the Ontario Court of Justice, Justice Zisman questioned whether it served theadministration of justice to permit a litigant who does not agree with a ruling of the Ontario Court of Justice to then commence a newapplication in the Superior Court of Justice and to start the entire litigation over again. [19] Justice Zisman made an order lifting the stay and that the Ontario Court of Justice has jurisdiction to continue to proceedwith the husband’s motion to change. In doing so, she stated the following in her ruling: [23] . . .

In considering whether to exercise my jurisdiction to do so [lift the stay], as I previouslyindicated, this motion to change was issued on 25 November 2008 and there have been numerousattendances where a great deal of the parties’ time and judicial resources been devoted to this case. Thefather, in particular, has already spent a great deal of his financial resources for legal representation. . . . . . . [25] I am mindful that motions to change are meant to proceed expeditiously through our courtprocess.

I have also considered that subrule 2(5) of the Family Law Rules requires a court actively tomanage cases and to control the process of a case. This motion to change has been thoroughly casemanaged and to allow the proceedings to now be halted because the mother, who chose to file herseparation agreement in this court, wants to begin the process over again in another court would beinequitable and a waste of resources. [20] However, in this case, the mother is now prepared to consent to unsupervised daytime access between the children andthe father in the Halton Region. She is not willing to consent to a graduated

schedule leading to overnight weekend access at this timewithout first seeing how the children react to the unsupervised day visits and she appears to be very concerned about overnight accessoccurring at the paternal grandparents’ home. Mr.

Carpenter, counsel for the mother, advises that a case conference in the SuperiorCourt can be arranged as early as 15 August 2011 to address any expansion of access once more information becomes available. [21] Further, in listening to the submissions of both counsel, I find that the outstanding property issues are legitimate issuesand that the parties’ settlement discussions regard the property issues seem to have genuinely broken down. The only court that hasjurisdiction to deal with those issues is the Superior Court of Justice. Unlike Kucera v.

Smith, supra, referred to above, the mother is notseeking to litigate the exact same issues in the Superior Court of Justice that were before the Ontario Court of Justice. Indeed, thefather’s counsel Mr. Muise concedes that, when he was first retained by his client, he attempted to commence these proceeding by wayof an application in the Superior Court, given the issues of property and divorce as well as the issues of support, custody and access, buthis application was rejected by court staff and he was advised to bring a motion to change in the Ontario Court of Justice. [22] Mr.

Muise argues that the custody and access issues could remain in the Ontario Court of Justice, case managed by me,while the Superior Court of Justice deal with the property issues in a parallel proceedings, as there is no conflict given that we aredealing with different issues. He submits that this would not be cumbersome or too expensive for the parties because, if I make a

detailed graduated access order today, building in overnight weekend access in stages, then it will not likely be necessary to return to this court for further resolution, thus saving further time and court resources. Mr. Carpenter submits that a multiplicity of proceedings will be expensive for the parties and it will likely be necessary for the parties to come back on more than one occasion to review the access, particularly given that his client is vigorously opposed to any overnight access occurring at the paternal grandmother’s home.

Going back and forth between two courts will be very expensive for the parties. I agree with Mr. Carpenter on this point. [ 23 ] After careful consideration, I am not satisfied that the father has established on a balance of probabilities, that the mother’s application in the Superior Court of Justice was commenced in bad faith, given that the property issues are live issues and the mother is now consenting to unsupervised access.

However, I am satisfied that the delay involved in starting and transferring the custody and access proceedings to the Superior Court could cause prejudice to the children unless I make a temporary order today that provides that unsupervised daytime access between the father and the children commence as soon as possible. I am prepared to make that temporary order in the children’s best interests. [ 24 ] Given the temporary order that I will make today and Mr.

Carpenter’s assurances that a case conference date can be arranged in the Superior Court of Justice as early as 15 August 2011 to review access, if necessary, I am satisfied that a multiplicity of proceedings is not in the best interests of these parties or the children and that all matters should proceed in the Superior Court after I dispose of the father’s motion for access today. [ 25 ] I wish to make the following comments regarding the potential expansion of that access to unsupervised overnight visits, assuming that the access goes well.

The evidence presented by the father demonstrates that supervised access is no longer necessary, as the mother now concedes. The mother’s position that overnight access should not take place in the paternal grandparents’ home because of the grandmother’s animosity towards her and the very strained relationship between the father and his parents in the past is questionable.

Although I agree that the clinical investigator from the Office of the Children’s Lawyer noted the grandmother’s hostility towards the mother in 2007 (shortly after the separation and more than three years ago), there is no current evidence to suggest that the grandparents will continue to demonstrate this hostility in the presence of the children or speak about the mother in a derogatory manner to the children. The only evidence is the positive observations set out in the supervised access reports, although I recognize that this is a controlled and artificial environment, and more information may be necessary.

Further, since the parties’ separation, the father has reconciled with his parents and has presumably established a good relationship with them, as he is now living with them. [ 26 ] In any event, the Superior Court of Justice will be able to monitor how the children react to the unsupervised access and any expansion to overnight access.

It is always open to the court to impose as a condition of access that neither the father nor the grandparents will speak in a derogatory or negative way about the children in the presence of their mother, once overnight visits commence. 5: CONCLUSION [ 27 ] For the above reasons, I make the following order: 1. Leave is granted to the respondent (moving party) to bring his motion for unsupervised access in the Ontario Court of Justice, heard on 2 August 2011. 2.

On a temporary basis, pending an order in the Ontario Superior Court of Justice, the order of Justice Wolder of the Ontario Court of Justice, dated 29 August 2008, is varied as follows: (

a) commencing on Saturday, 6 August 2011, and every Saturday thereafter, the father shall have unsupervised access with the children from 9:00 a.m. to 7:00 p.m. The father will pick the children up at the mother’s home and return the children to the mother’s home at the designated times; (

b) commencing Tuesday, 9 August 2011, and every Tuesday thereafter, the father shall have unsupervised access to the children from 1:00 p.m. until 7:00 p.m. If the children are attending school, the access shall be from 4:00 p.m. to 7:30 p.m. The father shall pick the children up from the mother’s residence and return the children to the mother’s residence at the designated times; (

c) neither party shall speak about the other party in a negative or derogatory manner in front of the children and both parties will ensure that the children are not exposed to negative or hostile comments about the other parent by extended family members; (

d) paragraphs 14(

a) and 14(

b) of the restraining order against the respondent in the order of Justice Wolder, dated 29 August 2008, are terminated forthwith; and (

e) The access provisions can be reviewed with a view to expanding towards overnight weekend access between the father and the children after the completion of five Saturday day visits. If no agreement is reached between the parties regarding the review of the access schedule, then any further motions regarding the custody and access issues should continue in the Superior Court of Justice proceedings, court file number 33826/11.