Stirling v. Marciniak, 2020 ONCJ 161

Stirling v. Marciniak, 2020 ONCJ 161

This case involved Drew James Stirling (Applicant) and Natalia Marta Marciniak respondent). The case was heard on March 20, 2020, under the Court File Number; Toronto DFO-18-16040. The court endorsement happened in the chambers.

The judge observed in the beginning that both parties had exchanged the written costs submissions emanating from the motion as well as the cross-motion that they had argued before him on October 25, 2019. After that, the ruling was made by the court on November 15, 2019.

Type of motion/argument

The father was requesting the court to grant him an immediate overnight parenting time with for his young child (Oliver) who was currently under the primary care of the mother because he is young.

The facts at hand

The two parties were in an intimate relationship for almost two-and-half years (January 2016 to August 2018). The two parties had two children. One (James) was born in 2017, and the other (Oliver) was born in 2019. Oliver was the subject of contestation between the parties before the court. He was born after the parents had separated. Separation of the parties happened because the Natalia was charged for assaulting Drew. Natalia was pregnant during this time. It is also essential to observe that both parties have seriously accused each other on numerous accounts of domestic violence. The criminal charges of Natalia were later withdrawn after entering a peace bond.

The parents seemed to be in constant conflicts. This case was classified as a high conflict case because of the numerous allegations raised and the volumes of affidavit materials presented in the court. It appears that the father filed this case on December 5, 2018. However, the two parties arrived at a temporary parenting framework concerning their son James on April 12, 2019. As a consequence, James was living with them on a ‘4-3-3-4’ basis – an equal time-sharing arrangement.

On the other hand, Oliver has been living with her mother since birth – an issue that the father disputed. The parties entered a truce to allow the father to have regular parenting time for Oliver three days per week and four days per week in week one and week two, respectively. This schedule would alternate after that excluding overnights. Therefore, the father filed a motion in court to be allowed overnight parenting to start immediately a proposal that the mother disputed arguing for a more gradual schedule.

The issue in the case proceeding

The leading issue in the case beating the father against the mother in the court was the request of the father as far as overnight parenting time is concerned. This request was the most significant in the case proceeding – it was not only consuming tome but also a delicate matter for the court to determine.

Arguments by the parties

Both parties submitted Rule 18 Offers to settle to their credits. According to the judge, the mother had served two offers for settling on October 1, 2019, and October 18, 2019, respectively. These offers addressed both her suggestion for supervised access as far as the father’s overnight parenting is concerned and the provisions for parenting. The offers also contained comprehensive suggestions on how the supervised access exchanges should be. However, he offers to settle was not severable. However, the father did not consent to a supervised access centre for exchanges or a private and fee-based supervisor. He suggested the number of access exchanges is reduced. He also argued that some exchanges can still take place at the daycare where their older son attends.

According to the father’s counsel, the court had eventually adjourned all relief that both parties were seeking to February 7, 2020. This time, Oliver had turned 12 months old. However, there was no successful party at this stage. But the review of offers to settle from both parties revealed that the father should be awarded costs because he was the more successful party.

Conclusion of the case

The court concluded that the father must pay the mother compensation amounting to $5,000 inclusive of disbursement and HST. The mother successfully convinced the court, and the ruling of the court favoured her. The mother got a fair and proportional as well as a reasonable cost award. However, the endorsement of the court was considered a court order enforceable and operative devoid of a typed, formal, entered, or signed order because of the circumstances of the Covid-19 emergency.

Interesting procedure

According to cases of such nature, the standard procedure is that a satisfactory material or documentation must support any claims for costs respecting expenses or fees to the court. Therefore, the court borrowed from the Mattina v. Mattina case 2018 ONCA 867, where the court in Ontario expanded a renowned court decision in Serra V. Serra, 2009 ONCA 395. It argued that contemporary rules on costs must foster four fundamental objectives. They include to partially compensate successful complainants for the litigation cost, sanction or discourage misconduct by complainants, encourage settlement, and ensure just dismissal of cases according to family law rules and subrule 2 (2).

Representatives of parties

Both parties had lawyers who were representing them. For instance, Meghan Lawson was the counsel for the Applicant and Alix Nenniger was the counsel for the respondent.

Ontario social benefits Tribunal hearing

Parties in the tribunal

The hearing date of the Ontario social benefits tribunal was on June 27, 2019. The respondent in the case was the Director, Ontario Disability Support Program. The presiding member of the tribunal was Pamila Ahfeld (1811-07565, 2020)

The claim behind the hearing

The appellant, who was self-represented, requested the Ontario Disability Support Program (ODSP) office. She wanted to leave Ontario for health reasons from November 2018 to May 2019. As a consequence, the caseworker was requesting to be granted a letter from the doctor. In September 2018, the appellant submitted a letter from the doctor to the caseworker. The letter recommended that the appellant is free to leave the country in the winter months to attend to his health needs. And on October 31, 2018, a caseworker reviewed a second letter from the doctor. The letter was more detailed with as far as the health reasons for leaving the country of the appellant is concerned. However, the request by the appellant was denied. The director denied the appellant his payments and income support benefits beyond the thirty days that the appellant was leaving Ontario for Mexico from November 2018 to May 2019.

Issue

Was the decision of the director to deny the appellant her payments and income support benefits beyond the thirty days that the appellant was leaving Ontario for Mexico from November 2018 to May 2019 for health reasons correct?

Respondent’s argument

The respondent used Section 7 (1) (a) of the Ontario Regulation 222/98 to deny the application before the tribunal. He also quoted Directive 2.4 and Clearinghouse 1578 to argue in his favour. According to the respondent’s argument, the appellant is not entitled to an absence from Ontario for 30 days and above because of health reasons since she was leaving Ontario for medical reasons out of the province and therefore not insured by the Ontario Health Insurance Plan (OHIP). The respondent also argued that the appellant did not provide a letter proving that she under OHIP insurance from the Ministry of Health and Long-Term Care.

The respondent also argued that according to the Clearinghouse 1578, it is incumbent upon the appellant to show that the reason why she wanted to leave the province is that it was medically necessary. She was also supposed to demonstrate that she could not get the health service in Ontario and could also be found outside Ontario. Therefore, there was no adequate information from the appellant to support her request. The respondent also argued that the appellant had in the past been granted such absences. However, he argued there was an error in granting those absences. Those errors do not, therefore, negate the present decision. The appellant was a beneficiary of grants before that she did not deserve.

Appellant’s argument

The appellant argued that the reason why she sought for the absence is because of her health conditions. However, this request is based on the unique circumstances of her treatment. She also argued that she was suffering from a spinal cord injury which has a significant impact on her mobility. Similarly, she said that she has an issue of dizziness and persistent pain. These symptoms, and other, are worse during the winter because her body does not have the capacity of controlling the body temperature.

Another argument was that her cervical spine at C3 was pinched to the size of a pea, and therefore her body cannot warm up. Also, that any temperature below 15’C makes her sometimes stop breathing after seizing up.

She argued that she had used physiotherapy before only hurting her more on the shoulders and back. The only medication she takes reduces her pain and nothing further. Therefore, she heard of deep diving and its benefits on spinal injury and the only place she could learn it was Mexico. She revealed that diving helped her greatly as her pain decreased and mobility improved. She supported her arguments with a recommendation letter from her doctor, who said that the services she needed were not available in Canada during winter. Therefore, when she was denied to leave Ontario for over 30 days, she could not travel since she feared to lose her benefits. She stayed in Ontario, had a rough time, stayed in one room to regulate her body, her mobility decreased, her body deteriorated, and broke four ribs after falling down. She wanted the director to allow her to leave Ontario during winter months.

Conclusion

The tribunal concluded that the appellant was unfairly treated and granted her the request for absence during winter months with her benefits intact.

Facts

The director analyzed the issue using Section 7 (1) (a). The appellant failed to state her unique circumstances to the director. The appellant reason was medical, but this is not an excuse for the director not to consider exceptional circumstances.

Representation

The appellant represented herself. The respondent also represented himself, but his submissions were written.

Summary

Proceedings in the courts are formal as compared to tribunal proceedings which are a bit informal. For instance, parties in the tribunals appear without legal representation – the respondent in the tribunal did not even appear but sent his written submission, and the appellant represented herself. In the tribunal proceedings, the member and the judge only explain the proceedings to the parties present and asks questions if they want to get more information during the hearing. Tribunal hearings are set up for ordinary employees to appear on their own because most of them do not have legal representation. The panel in the tribunal hearing decides at the end. The process does not take a lot of time as compared to a court hearing. The court hearing between Drew James Stirling (the Applicant) and Natalia Marta Marciniak took longer time including the appeal. Tribunals have simple procedures, thus needing no legal representation as compared to the court hearing whose procedures are complex and expensive (Philips & Dill, 2018). Members in the tribunal are addressed as Mr., and Mrs While in the courts’ proceedings they judges are addressed as ‘Your Honor’ or ‘My Lord’.

References

1811-07565 (Re), 2019 ONSBT 2398 (CanLII), <http://canlii.ca/t/j2j3l>, retrieved on 2020-04-06

Phillips, E., & Dill, M. E. (2019). Access to Information in Administrative Tribunals: Toronto Star v. The Attorney General of Ontario. Canadian Journal of Administrative Law & Practice, 32(1), 45-55.