J.M. v. L.P, 2011 ONCJ 845

Elliot Lake Registry No. 28/10 DATE: 2011·XII·19 CITATION: J.M. v. L.P , 2011 ONCJ 845 ONTARIO COURT OF JUSTICE BETWEEN: ) ) J.M. ) ) Douglas B. Kearns, for the applicant father, J.M. ) — AND — ) ) L.P ) ) T. Frederick Baxter, for the respondent mother, L.P. ) ) ) HEARD: 18 November 2011 For previous proceedings, see • consolidation of previous access and residency orders: J.M. v. L.P. , 2011 ONCJ 816 , [2011] O.J. No. 6126, 2011 Cars​well​- Ont 15387 (Ont. C.J., 13 September 2011), per Justice John Kukurin; and • dismissal of father’s motion for interim variation of mother’s access: J.M. v.

L.P. , 2011 ONCJ 840 , [2011] O.J. No. 6284 (Ont. C.J., 16 December 2011), per Justice John Kukurin. [ 1 ] JUSTICE J. KUKURIN:— This is an addendum to my reasons released on 16 December 2011. These relate to the motion of the applicant father at tab 3, volume 2. In arriving at my reasons released on 16 December 2011, I failed to take into account an important affidavit of the applicant father sworn on 15 November 2011. This affidavit had not been filed in the continuing record by 18 November 2011, the day upon which I heard submissions of counsel on the motion.

However, it had been provided to me on the day of this hearing and I had an opportunity to review its contents, at least superficially. This affidavit was served on counsel for the mother on 15 November 2011, at approximately 2 p.m. by fax, so he had actual notice as of that date and time. There was no response by the mother to this affidavit. The mother did not seek to adjourn the hearing. [ 2 ] This affidavit presents something of a problem. The father’s motion at tab 3, volume 2 was filed on 28 September 2011.

The father’s claim in this motion was prompted by events that he alleged had taken place on 25 September 2011, a few days earlier. The father’s motion was supported by his brief affidavit (at tab 4, volume 2). The mother responded to this affidavit by two responding affidavits (at tabs 5 and 6, volume 2). Regrettably, these were not served on counsel for the father until 15 November 2011. The father immediately replied with his affidavit sworn on 15 November 2011. This procedural scheme for evidence on motions is contained in subrule 14(20) of the Family Law Rules , O.

Reg. 114/99 as amended. [1] [ 3 ] Unfortunately, the father’s affidavit sworn on 15 November 2011 is not so much a reply to new matters raised by the responding evidence of the mother. His most recent affidavit is devoted mostly to events that have taken place since the motion was brought.

Clearly, this is evidence that was not served with the notice of motion for the very good reason that it did not exist at that time. [ 4 ] This places the mother in the position of facing new evidence at the hearing of the motion to which she could not realistically be expected to respond. [2] In effect, it splits the father’s case on this motion. [ 5 ] This might be inconsequential in some cases. In this one, it is not.

This is so mainly because the new evidence is with respect to events that are fairly significant and certainly relevant to the issues raised in the motion before the court. [ 6 ] Among these events are: (

a) the “abduction” of the child S.1 by her mother and the mother’s boyfriend B.Q. on 30 October 2011 at approximately 7 p.m.; (

b) the attempted abduction of the child S.2; (

c) the arrest of B.Q. by police on a charge of abduction; (

d) the charge of abduction laid against the mother; (

e) the intervention of police and children’s aid society personnel to retrieve the child S.1 from the mother and return her to the father; (

f) the charge of breaching a court order laid against the father for denying the mother access to the children during times when she was entitled by court order to (secondary) residency with her; and (

g) what became of the November Florida trip and the new plans for a Florida trip.

[ 7 ] These are all very significant and new developments. The only way these could come to the attention of the court is by one or more affidavits. That the father filed this evidence is understandable. Had he done so a little sooner, perhaps the mother might have responded to this new evidence. [ 8 ] My intent since February 2011 has been to normalize the circumstances of the children S.1 and S.2 as much as possible until the trial in this case results in a final resolution. This normalization is even more desirable now that an OCL investigator is involved.

Normalization means, from my view, the ability of these children to spend time enjoyably in the households of both father and mother, and to do so on a regular, frequent and recurring basis. [ 9 ] What has happened in the nine months since the order of 17 February 2011 was made has been anything but normal and I can only infer that it has been far from enjoyable for S.1 and S.2. It is rare that judicial loss of temper is expressed in formal reasons, but this precisely what I wish to express.

The present circumstances are brought about by the stupidities of both the father and the mother and, from my perspective, could have been minimized had they just followed the terms of the orders of 17 February 2011 and 30 September 2011. [ 10 ] Normally, police intervention and criminal charges are to be decried. In this case, I welcome at least the criminal charges.

I can think of nothing more fitting than the incarceration of father, mother and boyfriend to give them some time to reflect on just how far beyond unreasonable their conduct and attitudes have escalated and to think about what impact their conduct and behaviour has had and is having on these two children. [ 11 ] It is unusual for me to reverse a decision. In this case, I have to conclude that my judicial attempts to “normalize” the lives of S.1 and S.2 have been failures.

The parents evidently do not respect court orders or, alternatively, believe they are better able to decide when they can unilaterally depart from the terms of such orders. [ 12 ] Accordingly, I have reassessed my decision to simply dismiss the father’s motion at tab 3, volume 2. I am not, however, inclined to grant the relief requested by him for supervised access to the mother at the Supervised Access Facility. [ 13 ] I propose to suspend part of the order of 30 September 2011. Although it remains a valid order, the operation of paragraphs (1) and (2) are to be suspended.

The children will not have their secondary residence with their mother at all. Their primary residence will remain with the father on an interim basis. The balance of the clauses of the order can continue in full force and effect. Their operation is not suspended. This means that both parties continue to be prohibited by court order from disparaging or demeaning the other. [ 14 ] Although this suspension cuts off personal contact between these children and their mother (and half-siblings), this has now become the lesser of two evils.

I would be prepared to implement Supervised Access Facility (“SAF”) supervised access or any other reasonable supervision of maternal access but only on much better evidence than is presently before me as to the readiness, willingness and ability of SAF to provide its services, and as to details of such proposed “access”. This places the onus on the mother. [ 15 ] These children went through lengthy periods not seeing their mother, or spending very little time with her. They do not appear, from the evidence, even the mother’s own evidence, to be any the worse for wear as a result.

They are subjected to (probably) traumatic events more when there are maternal secondary residency ( i.e. , access) provisions in operation than when there are not. [ 16 ] I note that there is an OCL investigator now involved. The suspension of paragraphs (1) and (2) of the order dated 30 September 2011 will not apply to prevent the OCL investigator from observing the children in the home of the mother. The parameters of such contact are to be arranged between the OCL investigator and counsel for the parties.

To be perfectly clear, S.1 and S.2 may be in their mother’s home for any occasion, or for more than one occasion, that the OCL investigator wants them to be there. It will be up to counsel for the mother and the father to work out the logistics of how this will be accomplished, even if it means that the children need be transported by taxi. [ 17 ] At this point, it is important to move this case to trial.

I can only recommend that a combined case conference-trial management conference continuation be scheduled as soon as possible as there will be a number of issues that will inevitably complicate the trial and should be addressed well in advance. In that regard, I refer the parties to paragraph [23] of my reasons released on 13 September 2011. The identity of the biological father of S.1 is now known to the court and he should either be added and served, or an order made dispensing with service.

He should not be popping up on the first day of trial. [ 18 ] The other concerning aspect of this case is with respect to evidence of what the children have said, and what they have been told. There is clearly going to be an evidentiary issue at trial because this entire case is built on hearsay. Is anyone planning to call these children as witnesses at trial? [3] If not, how do the parties plan to get into evidence what these children are alleged to have said? Is there likely to be a consensus about this? I don’t think so. [ 19 ] In

summary, my order will be: (

a) that the provisions in paragraphs (1) and (2) of the order dated 30 September 2011 are suspended until further order of the court; (

b) the motion of the applicant father at tab 3, volume 2 is otherwise dismissed. Released: 19 December 2011 Justice John Kukurin

(20) Restrictions on evidence.— The following restrictions apply to evidence for use on a motion, unless the court orders otherwise: (

a) The party making the motion shall serve all the evidence in support of the motion with the notice of motion. (

b) The party responding to the motion shall then serve all the evidence in response. (

c) The party making the motion may then serve evidence replying to any new matters raised by the evidence served by the party responding to the motion. (

d) No other evidence may be used.