Court File and Parties

COURT FILE NO.: FS-13-018839 DATE: 20160825 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Muralidaran Sivarajah, Applicant AND: Gamalini Muralidaran, Respondent

BEFORE: Kiteley J.

COUNSEL: Elinor Shinehoft, for the Applicant Dilani Gunarajah, for the Respondent

HEARD: August 25, 2016

Endorsement

[1] The parties were married on August 22, 1997 in Sri Lanka and began living together in May 2000. They have two children: S.M. born […], 2006 and A.M. born […], 2009.

[2] On June 24, 2013 the Respondent attacked the children and the Applicant’s mother in the matrimonial home. She was arrested and charged with 2 counts of assault with a weapon, 2 counts of assault causing bodily harm, and 2 counts of attempt to commit murder all against the children and 2 counts of assault with a weapon and 1 count of assault causing bodily harm against the paternal grandmother.

[3] Initially the Respondent was detained without bail. On or about July 4, 2013 she was moved to the Ontario Shores Centre for Mental Health Sciences where she was assessed to determine whether she was mentally capable to stand trial and be held criminally responsible. She remained there until August 19, 2013 and was found fit to stand trial.

[4] On December 13, 2013 the Respondent was released on bail pending trial. The conditions of her release including no contact with the children or the paternal grandmother.

[5] On November 10, 2015 the Respondent pleaded guilty and was found guilty of three counts of aggravated assault and was sentenced to 420 days in jail, plus 3 years of probation.

[6] On April 18, 2016 the Respondent was released from jail, having completed her custodial sentence. On May 8, 2016, the Respondent was advised of her release and of her terms of probation that include that she have no contact or communication, directly or indirectly, with the two children and the paternal grandmother for three years starting on the date of her release, except pursuant to a family court order and with written consent revocable by the children and paternal grandmother.

Proceedings in this court

[7] On July 26, 2013 the Applicant issued this application. On July 29, 2013, Mesbur J. made an order that the Applicant have temporary sole custody and the Respondent not have access. She also made a restraining order.

[8] On July 18, 2014, Horkins J. made an order on consent for sale of the matrimonial home and made an order referring the matter to the Office of Children’s Lawyer.

[9] The Applicant brought a motion returnable May 17, 2016 for a final order for sole custody and an order that he be permitted to move with the children to Australia. The Respondent brought a motion for various orders including for therapeutic supervised access. Justice Chiappetta made an order adjourning the motions until after a settlement conference on July 8, 2016.

[10] At the settlement conference on July 8, 2016, Justice Horkins set this date for the Applicant’s relocation motion and the Respondent’s motion for therapeutic supervised access. She directed that the Respondent could bring a motion for temporary spousal support returnable today but that there might not be time for it to be heard. She made other procedural orders including allowing an amendment to his Application to add a claim for relocation and requiring the Applicant to serve a disclosure brief by August 12 which he did. His Application has been amended and the amended Answer has been delivered. Both parties have delivered supplementary affidavits since then.

Parenting Issues

[11] The Applicant asks for the following orders: final sole custody with no access to the Respondent and permission to move with the children to Australia.

[12] The Respondent asks for an order for therapeutic supervised access. The Respondent does not agree that a final order of custody should be made because she takes the position that it will empower the Applicant to prevent her from having a relationship with the children. She opposes the relocation to Australia for the same reason.

[13] In her affidavits on these motions, the Respondent did not give her version of the events on June 24, 2013. At the time of her guilty plea, she would have been required to agree to facts which informed the court as to what had occurred and those facts would have been relied on by the court when imposing the sentence. Having pleaded guilty and been convicted, there was no legal prejudice for her not to provide that information.

[14] I pointed out to counsel for the Respondent that I do not have evidence from her client as to what occurred on June 24, 2013. Attached to her client’s affidavits are reports or letters from professionals who provided information to the Respondent’s defence counsel. In one of those attachments, the author gives the Respondent’s version of the events which includes the suggestion that it was the paternal grandmother who initiated the attack. The author reports that the Respondent is vague about what all happened with respect to the paternal grandmother and the Respondent said that she had no memory as to what had happened with the children.

[15] In his affidavit sworn April 26, 2016, the Applicant deposed that the Respondent pushed his mother down a flight of stairs and then, in front of the two children, hit her over the head with a lamp. He also deposed that the Respondent stabbed the then 6 year old daughter with a knife 6 times in her right shin and cut her head, both requiring stitches and then tried to strangle her with a pair of pants and tried to drown her by forcibly holding her head under water in the bathtub. He said that she stabbed the then 4 year old son by cutting his left forearm, requiring stitches and tried to drown him by forcibly holding his head under water in the bathtub.

[16] Counsel for the Respondent takes the position that the evidence of the Applicant is hearsay because he was not present when the attacks occurred and his evidence is based on what his mother and the children told him and told the police.

[17] I do not have evidence from the Respondent as to what occurred and I will not rely on the author of the report for defence counsel. I refer to the evidence of the Applicant set out above and rely on it, not for the purpose of concluding that the attacks occurred exactly as he described but for the purpose of concluding that (a) these were very serious attacks against the children and against their grandmother and (b) since the Respondent minimizes her role in the attack on the grandmother and does not remember her role in the attacks on the children, she could not be said to appreciate the gravity of the offences and the profound impact on the children.

[18] The Applicant has been the sole custodial parent of the children since June 2013. He has addressed all of their needs including shelter, nourishment, education and counselling.

[19] Pursuant to s. 16 of the Divorce Act, the court must make a custody order that is in the best interests of the children in the context of the children’s condition, means, needs and other circumstances. Based on the evidence as to his caregiving since the events occurred, I am satisfied that it is in the best interests of the children that an order for final custody be made so that the Applicant can continue to make all appropriate decisions for these children.

[20] The Applicant seeks leave to move the children to Australia with an order that the Respondent not be granted access. The Applicant’s sister and her child live in Australia. The aunt has visited with the children since 2010 excepting only 2012. In the summer of 2013, to help the family deal with the events that had occurred, the aunt and cousin visited Toronto. Both families have attended family reunions in Denmark in 2014 and 2015 and 2016. The children speak with their aunt and cousin daily and they have important relationships with their aunt and cousin. The Applicant intends to live in the same neighbourhood and have the children attend the same school. As he pointed out, the aunt will assist in providing role modelling for the daughter. The school term has already started in Australia. If the Applicant is permitted to leave with the children, the move will likely take place immediately to accommodate the school year.

[21] The Respondent acknowledges that it will take some time for the children to adjust to resuming a relationship with her and that cannot occur without counselling. As counsel for the Respondent pointed out, if the Applicant is permitted to move the children to Australia, the Respondent will lose the opportunity to take those steps.

[22] Relying on cases noted in the frontmatter, counsel have made submissions with which I agree including: past conduct of the Respondent is relevant to her parenting skills and the past conduct in question here is of the most serious nature; access is the right of the children and must only be ordered when it will benefit them; and the relevant factors in Gordon v. Goertz all favour relocation. Of the three cases referred to in which criminal charges were laid, they all involved the mother of the children as victim. Counsel advised she had not been able to find any case in which the children had been the victim. It is only logical to conclude that when the violence is against the children, the past conduct of the Respondent is even more important and the potential positive effect on the children if allowed to move is even more profound.

[23] I conclude that it is in the best interests of the children that their father be permitted to take them from Canada with the intended destination of Australia. The record shows amply that the Applicant has done what has been needed to respond to the situation of trauma and crisis that the actions of the Respondent caused. In anticipation of the sentencing hearing the daughter gave a child victim impact statement, the contents of which are revealing. The Applicant has attended to their needs in school and in counselling. He has responded particularly to his daughter’s anxieties. The plan he proposes of relocating to Australia is well thought out and reasonable.

[24] In her evidence and her counsel’s submissions, the Respondent has apologized for her actions and regretted the impact on the children. Her submissions are largely based on what she wants, namely an opportunity to re-integrate with her children. But that is not the factor that is relevant. I see no basis for finding that it is in the best interests of the children that I make an order for therapeutic supervised access. The Respondent has considerable work to do to prepare herself, particularly in view of the conclusions her psychologist reached following the testing that there appears still to be a risk that the events that occurred in 2013 are not isolated.

[25] I appreciate that if I make an order that the Applicant may remove the children from this jurisdiction, it effectively means that the Respondent will not have an opportunity to explore any sort of relationship with the children. The reality is that that opportunity would not arise for the next three years in any event. Her conditions of probation prohibit any contact with the children without a court order and consent by the children. As their custodial parent, the Applicant would be the person giving consent. For the reasons he indicates, he will not consent. I find no basis in the evidence for suggesting that he takes that position in bad faith. On the record before me, withholding consent on the part of the children is reasonable and in the best interests of the children.

[26] This is one of those rare cases where the best interests of the children demand that there be no order for access. As long as the probation order is outstanding, this Respondent’s interest in trying to resume a relationship with her children is secondary to their best interests. It may be that the result of this order denying her access and allowing him to move to Australia is that she has no opportunity to even explore having a relationship until the children reach the age and maturity when each child can decide for herself and himself.

[27] The motion by the mother for therapeutic supervised access is dismissed.

Respondent’s claim for temporary spousal support

[28] The parties married in 1997 and separated 16 years later in June 2013. They lived together from 2000 to 2013, a period of 13 years. From the birth of the first child in December 2006 until June 2013, the Respondent was largely a homemaker and the Applicant was the financial provider. On those bare facts, the Respondent is entitled to temporary spousal support.

[29] Counsel for the Applicant takes the position that the Respondent is not entitled to spousal support because, pursuant to s. 33(10) of the Family Law Act, her “course of conduct was so unconscionable as to constitute an obvious and gross repudiation of the relationship”.

[30] I agree with counsel for the Respondent that the motion for temporary spousal support is pursuant to the Divorce Act and therefore s. 15.2(5) applies and the court shall not take into consideration any misconduct of the Respondent “in relation to the marriage”. However, I do not agree that the conduct of the Respondent on June 24, 2013 was “in relation to the marriage” because it was in relation to a criminal attack on the children and on the paternal grandmother. In that sense, her conduct is relevant. Furthermore, I would not apply s. 33(10) because the Divorce Act takes precedence and in any event, the events on June 24, 2013 do not constitute a “course of conduct”.

[31] The conduct of the Respondent is relevant both to s. 15.2(5) and to the consideration of the “condition, means, needs and other circumstances of each spouse” reflected in s. 15.2(4). I am satisfied that the Respondent is entitled to spousal support but her conduct must be reflected in a reduction of the amount of spousal support that the Applicant should be ordered to pay.

[32] Counsel have provided a variety of SSAG calculations but I intend to depart from them because of the unique circumstances and the issue of conduct. The Applicant is granted to take the children to Australia which means that he will not have an employment source in Canada. Furthermore, the order I make is temporary and, based on what is left to be decided, will not likely be in force longer than 8 to 10 months during which time the Respondent will be expected to take steps to re-enter the labour force and try to become be self-supporting rather than on social assistance.

[33] As a result of the order made July 18, 2014, the former matrimonial home was sold with the closing in March 2016. The real estate lawyer holds $222,650 in trust. As a jointly owned property, each spouse is entitled to 50%. I understand why the parties and their lawyers have not yet grappled with the net family property calculation because of the prioritization on parenting issues. But those issues are not complex. In the unique circumstances of the case, I will order that the payment of temporary spousal support be made out of the proceeds held in trust. I do know that if I make an order for lump sum spousal support, it is not tax deductible to the Applicant and not tax payable by the Respondent. If I order that the payments be made on a monthly basis from the trust funds, I do not know whether the payments are tax deductible and tax payable, although it might be more likely to be tax deductible to the Applicant if I order that the payments are allocated against his 50% share of the net proceeds. With all of the possibilities, I cannot make an informed decision as to the tax effect of my order. But whatever it is will be modest. By this order I intend to put $1300 per month in the hands of the Respondent but it will be payable in a lump sum from the proceeds held in trust.

[34] On that basis, I order that the Applicant shall pay temporary spousal support commencing September 1, 2016 in the amount of $1,300 per month for 10 months in a lump sum in the amount of $13000 and I direct the real estate lawyer to pay $13,000 to the Respondent or to whom she may direct.

[35] The trial judge will take paragraphs 33 and 34 into consideration in deciding any future spousal support entitlement.

[36] If counsel are unable to finalize the outstanding property issues, they should arrange a settlement conference before me if available. If the Applicant is in Australia at the time, counsel may consider making arrangements for him to join remotely.

Allegations of Abuse

[37] During these motions, the Applicant has made allegations that evidence has arisen since June 24, 2013 that the Respondent abused the children before the separation. The Respondent has made allegations that during the entire relationship the Applicant abused her emotionally, financially and sexually. The evidence from both is denied. I do not accept that the Respondent’s evidence is corroborated by the email on the morning of June 24, 2013 or by letters or opinions of professionals that are based entirely on information provided by the Respondent. I have not taken those cross-allegations into account. My decisions are focused on the events of June 24, 2013 and the consequences thereof.

ORDER TO GO AS FOLLOWS:

[38] The Applicant Muralidaran Sivarajah shall have final custody of the children of the marriage namely S.M. born […], 2006 and A.M. born […], 2009.

[39] On a final basis, the Respondent shall not have access to the children.

[40] The motion by the Respondent for therapeutic supervised access is dismissed.

[41] After her period of probation is finished in 2019, the Respondent may bring a motion or application in the appropriate jurisdiction in which she seeks temporary access.

[42] The Applicant is permitted to remove the children from Canada without consent or other authorization from the Respondent.

[43] The Applicant has the exclusive authority to sign all travel documents such as passports and visa applications.

[44] The Respondent is entitled to temporary spousal support and the Applicant is obligated to pay temporary spousal support.

[45] From the Applicant’s share of the proceeds of sale of the jointly owned former matrimonial home, the real estate lawyer [name to be inserted] shall pay to the Respondent (or to whom she may direct in writing) the sum of $13000 on account of the Applicant’s obligation to pay spousal support provided that the trial judge shall determine how to credit that amount.

[46] Counsel may forward approved draft order to my attention for signing.

[47] Neither party shall pay or recover costs.

Kiteley J. Date: August 25, 2016