Sutherland v. Sutherland, 2011 ONCJ 396

Orangeville Registry No. 21/08 DATE: 2011·VII·12 CITATION: Sutherland v. Sutherland , 2011 ONCJ 396 ONTARIO COURT OF JUSTICE BETWEEN: DALE EDWARD SUTHERLAND, Applicant, — AND — TRISHA LESLIE LEINWAND CAMPBELL SUTHERLAND, Respondent. Before Justice Bruce E.

Pugsley Heard on 6 July 2011 Reasons for Judgment released on 12 July 2011 ACCESS TO CHILD — Form of order — Summer access — At father’s motion for interim summer access to his sons (now 13 and 8 years old), father asked court treat his request in same way that courts and parents of thousands of other children deal with extra access while children enjoy summer vacation, namely by extending time between children and non-custodial parent — Custodial mother filed no evidence but made her objections known before court at hearing of motion — Motion judge observed that even custodial parent often get to enjoy extended interval of custody to enjoy their company, uninterrupted by regular access, but mother never asked for such interval — Judge granted father two intervals of about 2½ weeks each for current summer.

Shirley R. Woodley Griffin .............................................................. counsel for the applicant father Jennifer J. Holder .............................................................. duty counsel for the respondent mother [ 1 ] JUSTICE B.E. PUGSLEY:— The applicant (father) brings a notice of motion purporting to be for temporary relief. More will be said about the issues set out in the motion, later.

Although the motion seeks broadly based relief, the argument resolved itself to two immediate issues: the appointment of the Office of the Children’s Lawyer to represent the children of the parties and summer visits between the applicant and the children. After discussions between the parties, an order for the appointment of the Children’s Lawyer was made on consent. Argument was received on the final issue and I reserved my decision.

The other issue here, at this point, is access as a whole, which will be revisited on a future date after the Office of the Children’s Lawyer has decided whether to become involved here. Custody, claimed to be an issue, is not, as will be seen. [ 2 ] The parties have a lengthy history of litigation with regard to their two children, Corey Sydney David Sutherland (male, born on 21 July 1998) and Cameron Brendon Sutherland (male, born on 24 February 2003). The matter commenced as an application in early 2008 brought by the applicant for access.

His recently filed motion seeks custody based upon what he says are the wishes of the boys. There is a problem with the relief claimed. [ 3 ] The motion is for a temporary order in the context of this application, but Justice Patrick W. Dunn of this court made a final order for custody to the respondent (mother) and access to the applicant (father) on 8 December 2010. That final order has not yet been taken out, nor has it been appealed.

In order to press for a custody change, a motion to change would have to be brought on after the completion of the application, or Justice Dunn’s order appealed to the Superior Court of Justice. In fact, the applicant’s affidavit seeks to demonstrate that the order made by Justice Dunn was not appropriate. In effect, he did not like the decision made in December 2010 and soon after, reserved time for a further temporary motion to continue the argument. That motion cannot be entertained. [ 4 ] The respondent has had the children in her full-time care since separation in September 2007.

There was a brief flurry of action on the application between the spring and fall of 2008, followed by two years when nothing happened while the applicant’s attention was focused upon his various personal problems and criminal charges. On 8 December 2010, Justice Dunn determined that

enough time had passed and decided custody and access in a final way. Justice Dunn’s order of 8 December 2010, having dealt with custody and access, then provided for temporary child support (which the applicant concedes is in arrears) and left that issue as the sole issue remaining between the parties. [ 5 ] The applicant has had a historical alcohol and drug habit and has been incarcerated at times in the history of this file. He complains that Justice Dunn’s order was based on incomplete materials, an issue addressed by Justice Dunn in his endorsement.

I repeat, His Honour’s order has not been appealed and we are not here at this time to re-litigate that final order. The order did not deal in a final way with all aspects of access however; regular access was continued as set out in the order of 5 November 2008, plus access as agreed on by the parties.

The parties are now unable to agree upon summer access, such that that issue remains alive. [ 6 ] The respondent has filed no material in response to the applicant’s motion in spite of the fact that she was served two months before the motion date. [ 7 ] Argument was received from both sides based on the fragmented evidentiary record. At times, each party sought to go beyond the four corners of the evidence in their submissions.

My decision is based upon the evidence plus any areas where the parties agree on facts not in evidence. [ 8 ] The Office of the Children’s Lawyer, should it become involved, will provide insight into the views and preferences of the children, one aspect of access. Today, the only issue is the nature and extent of summer visits between the boys and the applicant. [ 9 ] The applicant seeks to divide the summer between the parties: two, two-week stretches of access.

He states that the respondent resists access while his other, older, child, Courtney is present. [ 10 ] The respondent states that she called the boys during a lunch recess and that the children are not comfortable with the presence of Courtney in the applicant’s home. She suggests that access be four to five-day stretches of time during the week while Courtney is not there. [ 11 ] None of the material filed here refers to Courtney at all.

In fact, none of the applicant’s material speaks to summer access at all, the issue that the parties seek to have the court decide. [ 12 ] The existing court orders regarding access (from 5 November 2008 and continued by Justice Dunn’s order of 8 December 2010) stipulated every other weekend access by the boys to the applicant, provided for 2008 Christmas access, and left other access as agreed to between the parties. Summer access is not spelled out. [ 13 ] The parties seem to agree that Courtney, an older step-sibling of the children, has had medical and mental health issues in the past.

They disagree whether her presence (during weekend access enjoyed between her and the applicant) affects the boys at all. The respondent states that the children told her that they are “uncomfortable” when Courtney is there.

The applicant states that the boys have no problem with Courtney and went to see her when she was in the hospital. [ 14 ] The hearsay and statements presented to the court on 6 July 2011, are not evidence and have not been considered by me in making this order. [ 15 ] I presume that, by deciding not to answer the applicant’s evidence, the respondent was content to address the issues on that evidence alone. [ 16 ] There is no basis in the unanswered evidence of the applicant to treat summer access in any way other than the normal way that courts and the parents of thousands of other children deal with extra access while the children are off for the summer — by extended time between the children and the non-custodial parent. [ 17 ] Normally, the time that the custodial parent has with the children is similarly extended to allow the children and the custodial parent to have extended time together without that time being interrupted by regular access.

No request for such relief was made by the respondent. [ 18 ] The applicant’s proposed summer access dates are opposed by the respondent but there is no evidence to sustain that opposition since the respondent chose to file no evidence. I will therefore order the access sought by the applicant. [ 19 ] Neither party made submissions as to costs here.

Should the parties wish to address this issue they may do so as follows: the applicant by written submissions served and filed within the ten days following the release of this decision; the respondent by written materials served and filed within five days thereafter; and reply by the applicant, if any, within five days thereafter. Submissions shall be no more than one page in length and shall attach any appropriate offers to settle. [ 20 ] I therefore make the following temporary order (not on consent): 1.

Commencing on 22 July 2011, the children of the parties, Corey Sydney David Sutherland (male, born on 21 July 1998) and Cameron Brendon Sutherland (male, born on 24 February 2003), shall have extended summer access to the applicant (father), as follows: (a) 22 July 2011, at 6 p.m., until 7 August 2011, at 6 p.m.; and, (b) 19 August 2011, at 6 p.m. until 4 September 2011, at 6 p.m. 2. Such access is in addition to the access provided by the final order dated 8 December 2010. 3. The applicant’s counsel will forthwith take out the final order dated 8 December 2010, and this order.

The respondent need not approve the form and content of these two orders. 4. Costs are reserved as set out in my reasons herein. 5. Adjourned to 3 August 2011, at 10:00 a.m. to be spoken to as aforesaid, re: position of Office of the Children’s Lawyer on representing the children herein.