2018 ONCJ 56, 2018 ONCJ 56

Ontario Court of Justice CITATION : Kiri v. Scattoloni, 2018 ONCJ 56 DATE : January 29, 2018 Court File Number : 346/16 at 7755 Hurontario Street, Brampton, Ontario Endorsement Justice L.S. Parent (Court office address) Date Applicant: Jennifer Patricia Kiri XX Present January 29, 2018 Counsel: Murray E.

Lightman X Present Duty Counsel: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Present Respondent: John Stelvio Frederick Scattoloni X Present Counsel: Bonnie Caplan-Stroeder X Present Duty Counsel: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Present Order to go in accordance with minutes of settlement or consent filed. _____________________ _______________________________________________________________ Proceedings Before the Court [ 1 ] On September 27 th , 2017, I released an endorsement highlighting procedural and jurisdictional issues raised within the context of

(1) Ms. Kiri’s motion for a

summary judgment dismissing Mr. Scattoloni’s request for an order for an equal parenting

schedule and (2) a motion by Mr. Scattoloni seeking an order for the involvement of the Office of the Children’s Lawyer and transportation terms surrounding access. [ 2 ] Paragraph 21 of my endorsement noted that these issues resulted from the parties, on September 19 th , 2017, reaching a consent on the issues of child support and then proceeding to make submissions on the motions referenced above. [ 3 ] Paragraph 21 provides as follows: Submissions were not made by either counsel that: (

a) given the absence of an existing court order regarding the issues of custody and access, there is no applicability of

section 29 of the CLRA in this matter; (

b) Mr. Scattoloni’s request regarding a change in the current custody and access arrangement should have been sought pursuant to an Application under Rule 8 (1) or (2.1) of the Family Law Rules ; (

c) Mr. Scattoloni’s request regarding a change in the current custody and access arrangements be deemed to having been made pursuant to an Application given Rule 2(2) and 2(3) of the Family Law Rules ; (

d) if an order was made deeming Mr. Scattoloni’s Response to be an Application, the order requested is to be considered pursuant to a “ best interests ” test under

section 24 of the CLRA and not a “material change in circumstances” threshold under

section 29 of the CLRA ; and (

e) given the applicability of a “ best interests” test, does Ms. Kiri wish to pursue her motion for

summary judgment regarding Mr. Scattoloni’s claim for an equal time sharing arrangement? (Emphasis in original endorsement) [ 4 ] On October 12 th , 2017, following a conference call with counsel, I endorsed the record to provide for the continuation, on December 11 th , 2017, of the hearing of this matter in light of my endorsement of September 19 th , 2017.

[5] On December 11th, 2017, the hearing proceeded as scheduled and my decision was reserved. Position of the Respondent/Father Mr. Scattoloni [6] On December 6th, 2016, Mr. Scattoloni filed his Response to Ms. Kiri’s Motion to Change. [7] In his Response, Mr. Scattoloni requests an order varying the current parenting arrangements to a week about

schedule and anequal sharing of all holidays for their daughter Victoria Scattoloni, born October 7, 2008. [8] The current arrangement between the parties is set out in their separation agreement which is dated June 21st, 2012. Thisagreement provides that Ms. Kiri have sole custody of Victoria and that Mr. Scattoloni have liberal access. [9] In her opening submissions on December 11th, 2017, counsel on behalf of Mr. Scattoloni acknowledged that her client’s claimbefore the court should not be considered a “variation” request.

Counsel acknowledged that the claim for custody should have beencommenced by way of an Application, rather than by way of a Response to a Motion to Change, given the absence of an existing order. [10] Given this procedural deficiency, counsel seeks, on behalf of Mr. Scattoloni, an order deeming or converting his requestregarding custody and access to be considered as having being filed before the court by way of an Application under Rule 8 of theFamily Law Rules Ont. Reg. 114/99 (FLR) and not by way of a Response. [11] Counsel further seeks, that if this order is granted, a temporary order granting Mr.

Scattoloni’s request for the involvement of theOffice of the Children’s Lawyer and permit the involvement of third parties in the transportation of Victoria during access periods. [12] Counsel on behalf of Mr. Scattoloni filed a factum which contains case law in support of her client’s position regarding hisrequest for an order deeming or converting his claim into the appropriate proceeding. [13] Counsel relies on the decision of Jarvis, J. in Cosentino v. Cosentino, 2017 ONSC 6031 , and the cases referenced withinhis decision, in support of the position being advanced on behalf of Mr.

Scattoloni. [14] Counsel submits that Rule 2(2) and (3) of the FLR grants the authority to the court to deem or convert claims raised in a Responseto a Motion to Change to claims raised in an Application. [15] Counsel submits that Rule 2 requires the court to deal with all cases justly. In striving for this objective, counsel submits that thecourt must ensure that the procedure is fair to all parties and saves them expense and time. It is within this duty that counsel submits thatMr.

Scattoloni’s claim for equal parenting be permitted to move forward on its merits rather than being delayed by having to bring anApplication. [16] Counsel further submits that Ms. Kiri has implicitly consented to the issue of custody being before the court for determinationdespite the procedural fault in the pleadings. Counsel submits that this consent was given when she agreed to an order for summer accessat a case conference in September 2017. [17] Counsel further submits that Ms.

Kiri has never raised the issue of procedural deficiency throughout the progress of the case but rather, this deficiency was raised in my endorsement of September 27th, 2017, and not the parties in their pleadings or during priorappearances. [18] Counsel further submits that should Mr. Scattoloni file an Application seeking equal parenting, the evidence is clear that Ms. Kiriwill also seek leave to

schedule a

summary judgment motion for the dismissal of this claim. Counsel submits that this request, if granted,would result in the parties being before the court with identical positions that exist before the court today. [19] Counsel submits, therefore, that deeming or conversion of the pleadings, as requested by Mr. Scattoloni, would not impact theparties’ respective positions regarding the substantial issues.

Counsel indicates therefore that there is no benefit to the parties for thecourt to merely delay hearing both parties’ claims regarding custody in light of a procedural deficiency. [20] Counsel further submits that both parties have provided the court with their respective evidence on the substantive issues. Counselconfirms that no further submissions or evidence is needed for the court to consider Ms. Kiri’s request for a dismissal and the orderssought by Mr.

Scattoloni. [21] However in later submissions and in response to my question, counsel did confirm that if an order is granted converting ordeeming the claims in Mr. Scattoloni’s Response to be before the court pursuant to an Application, an Amended Application would haveto be filed by him and then responded to by Ms. Kiri. [22] Counsel submits that for all of these reasons, an order should be granted as follows: (

a) converting or deeming Mr. Scattoloni’s claim for equal parenting in his Response to be considered by the court to have beenbrought by Application; (

b) requesting the appointment of the OCL; and (

c) permitting the participation of third parties in the transportation of Victoria for access purposes. Position of the Applicant/Mother Ms. Kiri

[23] Counsel on behalf of Ms. Kiri submits that the court does not have jurisdiction under Rule 2 of the FLR or any other statute toconvert or deem Mr. Scattoloni’s claim for equal parenting. Counsel submits that should Mr. Scattoloni wish to pursue this claim, hemust serve and file an Application under Rule 8 of the FLR. [24] In support of the position of Ms. Kiri, counsel submits that the court has no jurisdiction to vary a domestic contract as it relates tocustody and access terms pursuant to

section 35 of the Family Law Act R.S.O. 1990, c. F.3, as am. (FLA). [25] Counsel submits that this absence of jurisdiction on the substantive issues prevents the court to convert or deem the proceedingsas submitted on behalf of Mr. Scattoloni. Counsel submits that the court’s decision in Carpenter v. Carpenter, (ON SC), 11 R.F.L. (5th) 281 supports Ms. Kiri position. [26] In

summary, counsel submits that the FLR cannot be interpreted to enable the court to obtain the authority, in this case to varythe terms of a separation agreement regarding custody and access, that it does not otherwise have under an existing statute. [27] Counsel concedes that the procedural deficiency was raised by the court and not by the parties. However, counsel submits that both parties had closed their cases following the hearing of the motions on September 19th, 2017. Accordingly, counsel submits that is itnot procedurally fair to “change the rules of the game when the game has ended”. In

summary, counsel submits that it would notprocedurally fair, given that each party has closed its case, to convert or deem the existing pleadings as requested. [28] Counsel submits that converting or deeming pleadings is not the intention of Rule 2. Counsel submits that the cases referred to bycounsel for Mr. Scattoloni granting such orders proceeded on consent of the parties and not following a contested hearing. [29] Counsel for Ms.

Kiri submits that the impact of his client consenting to an access order in September 2017 does not result in aconsent that the claims are properly before the court but rather that the order is without jurisdiction and therefore an agreement by theparties to those limited terms of access. [30] Counsel further submits that advancing a position that Ms. Kiri will seek a

summary judgment motion should Mr. Scattoloni filean Application seeking shared parenting is speculative and premature therefore this submission should not be given any weight by thecourt. [31] Counsel submits that it is for all of these reasons the following orders should be granted: (

a) dismissing Mr. Scattoloni’s request for an order deeming or converting his Response; (

b) should an order permitting the conversion or deeming be granted, Mr. Scattoloni’s claim for equal parenting should be dismissedsummarily given that the order he is seeking is not in Victoria’s best interest given the evidence of Ms. Kiri; and (

c) should an order permitting the conversion or deeming be granted, Mr. Scattoloni’s motion for OCL involvement andtransportation should be dismissed given that the order he is seeking is not in Victoria’s best interest given the evidence of Ms. Kiri. Analysis [32] I have carefully reviewed the case law and factums of both parties filed in support of their respective positions. [33] A review of the case law and submissions made reveal that there is agreement between the parties on the following points: (

a) The court does not have the jurisdiction, under

section 35 of the FLA ,to vary terms of custody and/or access agreed to by theparties pursuant to a separation agreement (see: Carpenter; Cowan v. Alves-Cowan, (ON SC), 30 R.F.L. (3d) 277;and Huazarik v. Fairfield, (ON SC), 2004 CarswellOnt 840); (

b) Mr. Scattoloni’s claim for equal parenting must be considered by the court as an initial request and not a variation of an existing

order. Accordingly, this claim must be brought before the court by an Application under Rule 8 of the FLR ; (

c) The applicable test to be applied in determining whether or not an order for equal parenting is appropriate is whether or not such an order is in Victoria’s best interests and not whether a material change in circumstances has occurred; and (

d) The existence of an agreement between the parties is a factor for the court to consider in determining what order is in a child’s best interest. [ 34 ] It is disputed between the parties that the court has the authority to rely on Rule 2 of the FLR in order to deem or convert the claim regarding custody in Mr. Scattoloni’s Response to an Application. [ 35 ] After hearing submissions by counsel and reviewing the case law provided, I do find that I have the authority to convert or deem the pleadings, whether on consent of the parties or not, as requested by Mr. Scattoloni.

The cases which are particularly on point are Huazarik; Culligan v. Culligan, 2010 CarswellOnt 1102 ; Petrenko v. Petrenko, 2014 ONSC 309 ; and Verhey v. Verhey, 2017 ONSC 837 . [ 36 ] I further find that the conversion or deeming in this case is an option as clearly this court has jurisdiction to determine the issues of custody and/or access regarding a child pursuant to

section 21 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA). [ 37 ] Paragraph 28 of the factum filed on behalf of Mr. Scattoloni reads as follows: “in the present case, there is little doubt that Rule 2 requires that the Court exercise its discretion to deem that the Motion to Change be converted to an Application in order to allow the requested relief to proceed on its merits and in the most efficient and cost-effective manner possible.” [ 38 ] Although the above referenced paragraph references a Motion to Change, the record is clear that the claim for custody arose from the filing of Mr.

Scattoloni’s Response to the Motion to Change. [ 39 ] The submissions by counsel for Mr. Scattoloni rely on the principle that an order converting or deeming proceedings is appropriate if such an order meets the objectives of Rule 2 of the FLR and results in avoiding further delay and expense to the parties. I accept that this is the criteria to be applied in determining whether or not to exercise my discretion to deem or convert proceedings. [ 40 ] In her submissions, counsel for Mr.

Scattoloni conceded that if an order was granted deeming or converting the pleadings filed to date, an amendment would be needed to the Response filed by her client so as to ensure that all of his evidence in support of his claim for equal parenting is before the court. [ 41 ] I find that an amendment to the Response would: (

a) require additional costs to be incurred by Mr. Scattoloni in the preparation, serving and filing of the amended document; (

b) require additional costs to be incurred by Ms. Kiri in the preparation, serving and filing of her responding materials; (

c) result in a delay in the matter proceeding before the court given the need to prepare, serve and file amended pleadings; and (

d) require the issue of costs to be addressed as required by Rule 11 of the FLR. [ 42 ] I acknowledge that the impact of an order deeming or converting the pleadings as requested would eliminate the need for the parties to re-attend before the First Court Clerk.

However, I find that there may well be a need for a further case conference, prior to any motions being heard, depending on the claims raised in the amended pleadings given submissions that the amendment is needed so as to place all custody and access claims and evidence regarding Victoria before the court. [ 43 ] Given that the pleadings I am being requested to deem or convert cannot be seen by the court to be complete as currently filed, I find that the criteria for me to exercise my discretion under Rule 2 of the FLR has not been met.

[ 44 ] For these reasons, the request for an order deeming Mr Scattoloni’s Response to the Motion to Change of Ms. Kiri as an Application is denied. [ 45 ] The impact of this decision is that there are no claims before the court given the final order reached by the parties on the issue of child support on September 19 th , 2017. It is therefore not necessary to determine the motion by Ms. Kiri to summarily dismiss Mr. Scattoloni’s claim regarding custody. Furthermore, it is not necessary to determine the motion for the OCL and access transportation as requested by Mr. Scattoloni. Order [ 46 ] For the reasons stated above, the following order is granted: (

a) the request for an order deeming Mr Scattoloni’s Response to the Motion to Change of Ms. Kiri as an Application is denied; (

b) The

summary judgment motion filed by Ms. Kiri and the motion for OCL involvement and access transportation terms filed by Mr. Scattoloni are denied given the absence of the claims regarding custody and access being before the court; and (

c) The return date of February 26 th , 2018 at 10:00 a.m. in Courtroom #202 is vacated. Costs [ 47 ] If the parties are unable to come to an agreement on the issue of costs, a conference call can be requested by counsel through my assistant […] so as to determine a timetable for written submissions on this issue. [ 48 ] The request for a conference call must be made on behalf of the parties by no later than February 5 th , 2018 failing which an order will go that each party will bear their own costs. Justice L.S. Parent