COURT FILE NO.: FS-09-65858-00
DATE: 20120120
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Radica Amanda Rambarran
M. Dutt, for the Applicant
Applicant
- and -
Vishnudath Bissessar
A. Vimal, for the Respondent
Respondent
HEARD: September 19 and 20, 2011
REASONS FOR JUDGMENT
Daley J.
Introduction
[1] The parties Radica Amanda Rambarran, the applicant wife ("the applicant") and Vishnudath Bissessar, the respondent husband ("the respondent") were married on September 7, 1992 and separated on April 14, 2008.
[2] The parties have three children namely Darien Adam Bissessar born July 31, 1996, Danial Aaron Bissessar born October 24, 1999, and Darrell Axel Bissessar born April 27, 2004. The children have continually resided with the applicant since the separation.
[3] In accordance with the terms of the final consent order of Snowie J. dated June 15, 2010, the applicant has sole custody of all the children.
[4] The respondent has been employed as an auto mechanic. He obtained a diploma in electrical engineering from Sheridan College. The applicant has, from time to time, worked as a hairdresser.
[5] The applicant and the respondent did not live together until 1995, at which time the applicant disclosed her marriage to her family. At that time, the parties began living in the matrimonial home located at 1 Matterdale Avenue, Brampton, Ontario.
[6] The following five issues were to be determined on this trial:
(1) the equalization of net family property;
(2) the respondent's child support obligations;
(3) the respondent's spousal support obligations;
(4) the respondent's rights of access to the children; and
(5) the granting of a divorce.
Equalization - Family Property
[7] Attached at schedule "A" to these reasons is the net family property equalization calculation that I have performed.
[8] This statement reflects that the respondent is required to make an equalization payment to the applicant in the amount of $173,430.90, in accordance with s. 5 of the Family Law Act, R.S.O. 1990, c.F.3.
Matrimonial Home
[9] The matrimonial home was registered in the respondent's name alone and sold for $341,000.00 in March of 2011. Both parties agree that the net value of this property for the purpose of equalization is $325,178.62.
[10] The respondent asserted, at trial, that there was a debt owing by the parties related to the purchase of the matrimonial home, which must be considered in the equalization calculation. Respondent testified that his sister and brother each loaned to him $50,000.00, which was used to purchase the matrimonial home.
[11] The respondent’s evidence regarding the alleged loans was confusing, unreliable, and contrary to prior financial statements sworn by the respondent.
[12] The respondent filed sworn financial statements during the course of this litigation. In his financial statements, sworn on June 23, 2009, and June 9, 2010, he made no reference to any debts owing to his brother and sister as he has alleged during his trial evidence.
[13] Within the respondent's trial brief of documents (Exhibit 5), he included an unsigned financial statement dated June 13, 2011 wherein he states that the respondent owes his brother and sister $50,000.00 each.
[14] The applicant testified that the respondent had advised her that his brother and sister had each loaned him $25,000.00 at the time the matrimonial home was purchased.
[15] The applicant testified that the respondent repaid his sister the amount he had borrowed from her by 1996, using the proceeds gained when he had sold some music equipment he owned for approximately $20,000.00. The applicant further testified that any money borrowed by the respondent from his brother and sister was repaid to them prior to the parties' date of separation.
[16] The respondent's brother and sister resided in the matrimonial home with the parties and the respondent acknowledged that his sister moved from the matrimonial home approximately one and a half years after it was acquired. His brother left the home approximately three years thereafter.
[17] The respondent further acknowledged that his brother and sister each paid him rent in the amount of $400.00 per month while they were occupying the matrimonial home with the parties.
[18] Further, the respondent agreed that in 2002 he purchased a motor vehicle from his brother and paid him $11,000.00.
[19] In 2003, the respondent took title to a property located at 28 Franklin Court in Brampton, this property was purchased by his brother and sister. He explained that the house was registered in his name because his siblings did not have permanent resident status in Canada. He denied acquiring any financial interest in this property. The applicant claims no interest in the property at 28 Franklin Court, Brampton.
[20] Although the respondent states in his unsigned financial statement, dated June 13, 2011 that his brother and sister each loaned him $50,000.00, in his evidence at trial, he claimed that he repaid both siblings $50,000.00 each prior to the sale of matrimonial home. After separation, a further sum of $5,000.00 each was paid. He further testified that he agreed to pay them an additional $5,000.00 each at the conclusion of this litigation.
[21] The Respondent offered no evidence of the debts alleged nor the repayments. The Respondent’s brother and sister did not testify at this trial. In my view, it is open to me to draw an adverse inference as a result of the Respondent’s failure to call these witnesses and I do so. I conclude that these witnesses would not offer evidence in support of the Respondent’s position that he owed them $100,000.00.
[22] The respondent acknowledged that no loan agreement was ever executed by him evidencing the loans from his brother and sister.
[23] On the clearly contradictory and unreliable evidence offered by the respondent, I cannot find, on the balance probabilities, that as of the date of separation of these parties that the respondent's brother and sister were owed any monies as he has alleged. As such, the debts are not accounted for in my calculation of the net family property value for equalization purposes.
Personal Property
(1) 2005 - Nissan Titan:
[24] This vehicle is registered in the name of the respondent. The Respondent takes the position that this vehicle has a value for equalization purposes of $17,000.00. However, in applying to a bank for a mortgage loan in June 2010, he declared the value for this vehicle at $45,000.00 in his application for financing.
[25] The respondent also stated that he spent $10,000.00 in repairing this vehicle.
[26] The evidence of the respondent was conflicting and unsupported. I conclude therefore that this vehicle should have a value attributed to it in the sum of $20,000.00.
(2) 2000 Honda Odyssey:
[27] The applicant is the registered owner of this vehicle and states a value of $4,000.00. The respondent values it at $6,000.00. The evidence offered as to value is uncertain, I choose to accordingly attribute a value of $5,000.00 to this asset.
(3) RRSPs:
[28] Each party had RRSPs in their own names at the date of separation. The respondent held an RRSP account with Keybase with a value of $134,292.43 and with Sunlife Financial with a value of $29,698.90, totalling $163,991.33.
[29] The respondent takes the position that the value of the Keybase RRSP was $28,500.00 prior to the date of marriage. However, on the latest unsigned net family property statement filed by counsel for the Respondent in her submissions, she did not seek to deduct that amount.
[30] The applicant cashed out her RRSP in 2009 and received $25,280.00.
[31] The respondent claims a notional cost of disposition of his RRSP at 35%. Based on the respondent's earnings in 2008 and 2009, I conclude that the notional cost of disposition should be 20%. The respondent's declared and net taxable income in 2008 was $39,172.18 and taxes were assessed at $3,134.42 at a resulting tax rate of 8%. The respondent's income in 2009 was $78,609.80 with taxes assessed at $12,805.07 thereby resulting in a tax rate of 16.4%.
[32] On this basis, I conclude that a tax reduction of 20% is appropriate, in the amount of $32,798.26 (20% of the respondent’s total RRSP accounts - $163,991.30): Hunter v. Hunter, [2005] O.J. No. 2613 (ON S.C.).
(4) Hairdressing Equipment:
[33] The applicant and the respondent agree that the applicant purchased certain hairdressing equipment in 1996. The applicant produced an invoice relating to the purchase of this equipment (Exhibit 2) dated March 28, 1996 showing a purchase price of $2,575.95.
[34] Given that this equipment is 12 years old, it is the applicant's position that no value should be attributed to it. The respondent takes the position that the applicant's equipment has a value of $5,000.00. The applicant has retained the equipment and although the evidence as to its value as of the date of separation is incomplete, I set a value for the equipment at $1,000.00.
(5) DJ Equipment:
[35] The respondent acknowledged owning DJ equipment during the parties’ marriage, however, it was his evidence that it was used as a hobby only and not for the purpose of earning income. He valued the equipment at the date of separation at $950.00.
[36] In cross-examination, the respondent admitted that in March of 2008, just prior to the parties' separation, he purchased DJ equipment at a cost of $5,000.00 (Exhibit 3 – Tab 13). It was the applicant's position that from time to time throughout their marriage the respondent purchased DJ equipment and that he had rented out the equipment. The respondent acknowledged doing this, but testified that he had not engaged in this type of business since 1995 or 1996.
[37] While there is a conflict in the evidence offered by these parties as to whether or not the DJ equipment was owned by the respondent at the date of separation, the record is clear that the respondent owned DJ equipment with a value of $5,000.00 at that time.
[38] Although the respondent asserts that the value of the equipment in his possession at the date of separation was $950.00, given the evidence that he purchased DJ equipment in March of 2008 from a supplier in the United States at a cost in the order of $5,000.00, I find that the DJ equipment had a value in that amount as of the date of separation.
(6) Household Contents:
[39] The parties were not able to agree on what contents were present in the matrimonial home at the date of separation, let alone the value of the contents.
[40] It was the applicant's position that no value should be attributed to the household contents, as the parties had divided the contents of the home.
[41] It was the respondent's evidence that the household contents were not divided in kind and that he should be credited with the value of $6,000.00 in respect of that property.
[42] The applicant vacated the matrimonial home. It was her evidence that she took the children’s' bedroom furniture, the master bedroom furniture, and the two televisions. She claims to have left the rest of the furniture in the matrimonial home located in the living room and dining room.
[43] The respondent testified that the parties had paid approximately $10,000.00 for new master bedroom furniture approximately 3 years prior to their date of separation and that they spent $2,100.00 on a bed, dresser, and table for their son's room within the three years prior to separation.
[44] Overall, I found the respondent's evidence as to the household contents and the values to be attributed to them to be less than credible. I reach this conclusion based on his contradictory evidence as to the alleged loans from his siblings and from his less than frank manner in testifying at this trial. He gave trial evidence contradicting two prior sworn statements. Further, the respondent, in applying for a mortgage on the matrimonial home, after the date of separation, declared to the bank that he was single.
[45] Given the conflicting evidence of these parties as to what household contents were present in the home, who took what contents from the home and the value of any of the contents, and further, given the lack of reliable evidence as to the value of these contents, I conclude that no value should be attributed to the household contents. I also reach this conclusion as I prefer the evidence of the applicant over that of the respondent on this issue.
(7) Dan's Automotive:
[46] The respondent, in addition to his regular employment as a mechanic with Penske Truck Rentals, also operated a sole proprietorship, namely Dan's Automotive.
[47] The parties agreed at trial that the respondent's business should be valued, for the purposes of the equalization calculation of family property, at $27,000.00.
[48] The respondent, however also testified that he used a TD Canada line of credit in account number 1184021906 as a business line of credit for Dan's Automotive.
[49] The respondent sought to reduce the value of the business by the amount owing on this line of credit, which as of the date of separation was $5,105.32. However, this amount was also claimed by the respondent as a debt within Part 5 of his net family property statement, and as such, this amount has already been accounted for and a further reduction would result in a double counting of this amount.
[50] The respondent also seeks to reduce the business value for the purpose of equalization based on the notional cost of disposition of the business, which he claims operates at a loss.
[51] The respondent introduced into evidence a letter of intent dated November 13, 2008 purported to be an "expression of interest" in the purchase of the respondent's business by a numbered company, at a suggested purchase price of $20,000.00.
[52] The respondent has operated his business for approximately 13 years. He agreed in cross-examination that approximately 50% of the income from this business is received in cash and that his accountant does not do a full audit of the business in preparing its financial statements.
[53] The respondent offered neither clear evidence of any intention to sell this business nor evidence that the disposition would occur at a probable point in time. In my view, the suggested deduction related to an anticipated disposition cost is not appropriate as the respondent's evidence on this score is entirely speculative: McPherson v. McPherson (1998), 1988 CanLII 4732 (ON CA), 13 R.F.L. (3d) 1 (Ont. C.A.); Loiselle v. Loiselle (2000), 2000 CanLII 22461 (ON SC), 12 R.F.L. (5th) 400 (ON S.C.).
(8) Debts of the Parties of the Valuation Date:
[54] I have determined the parties’ debts are as set forth in the net family property statement attached as appendix "A" to these reasons.
[55] The loan amount alleged to be owing by the respondent to his brother and sister totalling $100,000.00 has not been considered as a debt for the reasons expressed.
[56] As of the date of valuation the following debts existed: a mortgage of $100,753.49, an RBC line of credit at $13,598.49, and an RBC Visa account in the sum of $8,216.13.
[57] The mortgage was paid off on the sale of matrimonial home. The RBC line of credit and Visa account were paid off by the respondent when he refinanced the mortgage on the home in 2009.
[58] The applicant acknowledges that the respondent paid in the applicant's TD Visa account in the sum of $1,334.02. The applicant had a CIBC Dividend Card debt of $1,702.27 and a Sears Card debt of $177.75.
(9) Respondent's Income:
[59] It is the applicant’s position that an income of $86,000.00 should be imputed to the respondent for the purpose of determining his support obligations.
[60] The respondent has, at all material times, been employed as a mechanic with Penske Truck Rentals and in the year of separation -- 2008 the respondent's earned income from this employment was reported at $70,833.75.
[61] The respondent has also carried on his sole proprietorship business, Dan's Automotive, since 1998.
[62] As noted, the respondent conceded that 50% of the income generated by his business was received in cash. He agreed that on occasion he would have as much as $20,000.00 in cash, but claims to have deposited the cash in the bank.
[63] The respondent acknowledged that he has employed his nephew in his automotive business since 2006 and that he has paid him $1,200.00 in cash per month.
[64] The financial statements produced related to Dan's Automotive do not reflect these cash payments to the nephew and the respondent conceded this.
[65] The tax and financial records for Dan's Automotive reflect that the business only reported a loss on one occasion, specifically a loss of $31,000.00 in 2008, the year the parties separated.
[66] In the years 2006 and 2007 the business earned a net income of $3,021.00 and $6,691.00 respectively.
[67] The respondent acknowledged that he was the subject of an audit by the Canada Revenue Agency after the parties separated. No evidence was offered with respect to the outcome of this audit, nor were the respondent's business records and financial statements for 2009 and 2010 produced at trial.
[68] It is clear that the respondent's business involves substantial cash transactions and expenditures, some of which are not reflected in the business’ operating and financial statements or within the respondent's tax returns.
[69] For the reasons expressed, I have concluded that the respondent's evidence as to his financial circumstances is less than credible and not reliable.
[70] The respondent testified that he did not draw any regular income from Dan's Automotive, however, in addition to his full-time job at Penske Truck Rentals, where he worked from 4:00 p.m. to 12:30 a.m.; he worked long hours at his automotive business during the day and on weekends.
[71] I find that the respondent's business provides income to him that is not disclosed in neither his business records nor his tax returns. I further find that he has made incomplete and selective disclosure of financial and tax records.
[72] The respondent testified that after 2006 his nephew was the only employee of his business. Accepting the respondent's evidence that he paid his nephew a monthly cash income of $1,200.00 and given the respondent's evidence as to the many hours he works in his automotive business each week, I am of the view that it is reasonable to conclude that the respondent has drawn income from his business of approximately $1,200.00 per month similar to his nephew’s cash earnings. This results in annual income from his business in the sum of $14,400.00.
[73] As to the applicant's assertion that the respondent has received income from the rental of DJ equipment, while the respondent acknowledges purchasing this type of equipment in March 2008, on the whole of the evidence, I cannot conclude on the balance of probabilities that the respondent has received the rental income as suggested by the applicant.
[74] I, therefore, conclude that the sum of $14,400.00, annually, must be imputed to the respondent over and above his declared income from his full-time employment at Penske Truck Rentals for the years 2008 and the following.
[75] The respondent's reported income from employment for 2008 was $70,883.75, to this I have added the imputed income of $14,400.00 for a total of $85,283.75.
[76] With respect to the year 2009, the respondent had earnings from his employment in the sum of $81,190.80, to this I have added the imputed income of $14,400.00 for a total of $95,590.80.
[77] With respect to 2010, the record shows that the respondent received income from employment of $88,329.67, to which I have added the imputed income of $14,400.00 for a total of $102,729.67.
(10) Child-Support:
[78] The respondent did not make any child support payments to the applicant until after an order was made February 12, 2010, by Justice Herold, requiring him to pay $1,605.00 per month based on total income, part of which was imputed, at $86,000.00 retroactive to the date of separation.
[79] The respondent's child support obligation shall be paid pursuant to the Child Support Guidelines based on the income levels I have determined for the years 2008 through to 2010, inclusive.
[80] As the record is unclear as to what child support has been paid by the respondent in accordance with the order of February, 2010, if necessary, counsel may file written submissions as to the payments made and as to the re-adjustments that are required with respect to child support payments from 2008, forward. However, I trust that counsel, with the assistance of the Family Responsibility Office, can calculate the necessary adjustments with respect to the respondent's child support obligations, based on his income, as I have determined in this judgment.
(11) Spousal Support:
[81] The applicant seeks spousal support from the date of separation in April 2008 to September 2010 when the parties' youngest child began full-time attendance at school.
[82] By the order of February 12, 2010 of Justice Herold, the applicant was granted a temporary order requiring the respondent to pay spousal support in the amount of $600.00 per month until September 2010. The applicant asks that this temporary order as to spousal support be made final.
[83] The applicant testified that she has not worked since the birth of the parties' first child in 2004, and as such states that she has been out of the workforce for approximately four years as of the date of the parties' separation.
[84] While the applicant has acknowledged she babysat her sister’s children since the parties separated, she denied receiving any compensation for this. In this respect, her sister's husband, Terence Fanning, cooborates her testimony stating the applicant has assisted with babysitting his children, but also denied that she was paid to care for these children.
[85] While it was suggested by the respondent in his evidence that the applicant has been receiving income from babysitting and that she has worked part-time as a hairdresser, the applicant denies this and the respondent has offered no reliable evidence in support his position.
[86] It is the evidence of the applicant that when employed as a hairdresser she earned between $250.00 and $300.00 per week, which would result in annual income of between $12,000.00 and $15,000.00.
[87] Considering that this was a 16 year marriage and the applicant's role was as homemaker and primary child care taker, I conclude that the applicant has suffered an economic disadvantage as a result of the marriage and its breakdown and resulting economic hardship. It was the applicant's evidence that she cashed in her RRSP in order to cover the family's day-to-day needs.
[88] The four objectives to be considered in making an order for spousal support pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) are:
15.2 (6)
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
(Emphasis added)
See: Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813.
[89] It has been asserted by the respondent that he cannot afford to pay child and spousal support. For the reasons expressed, I have determined that the respondent earns a substantial income, some of which has been imputed to him. While he testifies that he resides in his business premises as he cannot afford to live elsewhere, given his income level as I have determined it, I cannot accept the respondent’s evidence in this regard. In my view, the respondent has the means and the ability to pay spousal support.
[90] I conclude that the applicant has suffered an economic disadvantage arising from the marriage and its breakdown. She has remained out of the workforce and devoted herself to caring for the parties' children and their home.
[91] It is clear from the evidence that the respondent worked long hours, including weekends and nights, working in two jobs, thereby advancing himself financially. In my view, the applicant has suffered adverse financial consequences as a result of her devotion to her role as child caretaker and homemaker, while the respondent has been able to advance in his employment, career, and business.
[92] The applicant seeks spousal support on the basis of $600.00 per month from the date of separation until September of 2010 when the youngest child started attending full-time school.
[93] Taking into account the Spousal Support Advisory Guidelines and considering the objectives of support as outlined above, I am of the view that the applicant's request for spousal support in that amount and for the duration proposed is reasonable and appropriate.
[94] Even assuming that the applicant had earnings in the order of $8,000.00 per annum, from part-time employment, which I have not found to be the case, the Spousal Support Advisory Guidelines would call for spousal support for the applicant ranging from a low-range of $353.00, a mid of $560.00,and a high of $771.00.
[95] I therefore order that the spousal support award in the order dated February 12, 2010, be made final.
(12) Adjustments Related to Carrying Costs of Matrimonial Home:
[96] The respondent claims an adjustment to his equalization credit for occupation rent, although, there is no express claim for occupation rent in the respondent's pleadings. He is claiming the operating cost related to the occupancy of the matrimonial home by the applicant and the children from May 2008 until it was damaged by water and made uninhabitable in or around October 2009. The respondent did not occupy the home following the parties' separation in April 2008.
[97] It is the position of the applicant that there is no claim for occupation rent which has been expressly made in the respondent's pleadings, and therefore, there is no jurisdiction in the court to grant this discretionary remedy to the respondent. While I agree with the position taken by the applicant, I will briefly review the history associated with this aspect of the respondent's claim at trial.
[98] The applicant remained in possession of the matrimonial home from May, 2008 until October 2009. As the respondent was subject to bail conditions relating to his assault on the applicant and was also subject to a probation order prohibiting him from attending at the matrimonial home, he had no ability to return to the home. Further, in May 2009, a restraining order was also issued as against the respondent for the benefit of the applicant.
[99] The record shows that the applicant had taken the position that the matrimonial home should be sold. The respondent resisted this and did not co-operate with the sale after the initial listing agreement expired, shortly after the parties' separation.
[100] In May 2009, without the applicant’s required spousal consent, the respondent placed an additional mortgage on the matrimonial home.
[101] By an order dated July 13, 2009, the parties were directed to list the matrimonial home for sale and pursuant to that order the matrimonial was home was scheduled for closing on October 29, 2009.
[102] On or around that date, the applicant and the children moved to where they now reside. Subsequent to the applicant and children vacating the home, and before the scheduled closing, the home suffered extensive water damage due to a burst pipe.
[103] The respondent filed an insurance claim with respect to this loss and the repairs to the home were completed in July of 2010. Thereafter the respondent did not re-list the home for sale and as a result, the applicant filed a motion seeking the sale of the home and an order to that effect was granted on December 2, 2010 by Justice Lemon. Upon appearing in court on December 2, 2010 on the applicant's motion, the respondent failed to advise the court that he had already signed a listing agreement for the sale of the home on December 1, 2010. Eventually the home was sold pursuant to the order of December 2, 2010 and the transaction closed on May 18, 2011.
[104] Although the court had directed that the respondent make up-to-date payments with respect to utilities, mortgage, property taxes, and insurance for the matrimonial home until the sale was completed, property taxes outstanding on the home as of the date of closing were $3,572.49.
[105] It is apparent that the respondent resisted the timely sale of the matrimonial home.
[106] The respondent misrepresented to the bank, at the time he refinanced a mortgage in May of 2009 and June 2010 that he was single and as such, no spousal consent was sought by the bank.
[107] As a result of the re-financing, which was not consented to by the applicant, monthly mortgage payments which had been approximately $1,300.00 per month increased to approximately $1,600.00 per month by the time the property was sold in March 2011.
[108] While I am of the view that absent the respondent's claim for occupation rent in his pleadings, I have no jurisdiction to consider such a claim, even if I were to consider the claim, I would deny it, as it is clear that the respondent's conduct, at least in part, resulted in the delay in the sale of the matrimonial home. Further, I cannot consider such a claim as there is an incomplete evidentiary record relating to it.
(13) Respondent's Access Rights:
[109] On June 15, 2010, the applicant was granted a final consent order of sole custody by Snowie J.
[110] Prior to the final order as to custody of the children, and by way of a consent order dated November 13, 2009, Seppi J. granted an order allowing the respondent access to the children whereby he was to have visits with them on the last Sunday of each month from 10:00 a.m. to 6:00 p.m. with pick-ups and drop-offs taking place at the Tim Horton's in Pickering. He has continued to have access to the children on these terms.
[111] The respondent testified that he currently resides in the business premise of Dan's Automotive, where he has established sleeping quarters in a storage room. He testified that he showers at his place of work and eats his meals at work, or eats store-bought foods cooked in a microwave. He also testified that he is on-call with his employer, Penske Truck Rentals, on weekends, and could be working up to 10 hours on any given weekend.
[112] The respondent did not present any definite plan for the children's care during his access visits and offered no proposal as to adequate housing arrangements in the event he was granted overnight access visits with the children. He suggested that his sister has a home that can accommodate overnight access visits, however no evidence was offered by the sister, nor was there any evidence as to what accommodations were actually available within her home. Thus, the suggestion that proper and safe overnight access visits could be conducted at the respondent's sister’s home is presently unsupported by the evidence available.
[113] The respondent acknowledged that he had been providing some driving instruction to their 15 year old son Adam while at his business. He further conceded that Adam, had taken and driven a vehicle for a few minutes while in his care.
[114] The respondent testified in examination-in-chief that "drinking" was one of his hobbies. This certainly gives rise to grave concerns as to the safety of the children and the circumstances in which the respondent may have access time with the children.
[115] Had the respondent put forward an adequate and safe plan for overnight access with the children, I would have been inclined to have granted such access on certain terms. Unfortunately, no such evidence was available.
[116] While clearly the respondent should have as much reasonable access with his children as possible, the paramount concern here is the children's welfare and safety. At this time, the respondent has not presented an adequate plan for overnight access visits with the children, including a safe and proper environment in which they can spend the night.
[117] The applicant has offered instead increased access time for the respondent, namely on alternate Saturdays from 10:00 a.m. to 6:00 p.m. on the condition that the respondent not allow the children to operate a motor vehicle and that they engage only in age appropriate activities.
[118] In my view, this does not provide the respondent with adequate and proper access time with his children, given that the children are of the ages of 15, 12 and 7. Until the respondent presents a proper plan for overnight access, which the court may consider, he shall have access on a weekly basis on Saturdays from 10:00 a.m. to 6:00 p.m. with pick-ups and drop-offs taking place at the Tim Horton’s in Pickering. In addition, this access should be subject to the terms that he not consume any alcohol prior to, or during his visits, with the children and that he not allow the children to operate a motor vehicle.
[119] Liberal telephone access should be allowed throughout the weekdays between 6:00 p.m. and 8:00 p.m.
[120] Further, as to information regarding the children, the respondent may obtain that information from their school or other service providers and the applicant will sign any authorization that may be necessary to facilitate this in keeping with the terms of the order made by Seppi J. dated November 13, 2009.
Outstanding Costs Orders
[121] The respondent currently owes to the applicant costs of prior court orders in the sum of $2,250.00, namely $750.00 owing with respect to the order of Herold J. of February 12, 2010 and $1,500.00 with respect to the order of Goodman J. of December 16, 2010.
Conclusion
[122] An order shall be issued granting a divorce to these parties, 30 days following the issuance of this order in accordance with these reasons.
[123] The respondent shall pay child support for the children of the marriage namely Darien Adam Bissessar, born July 31, 1996, Danial Aaron Bissessar, born October 24, 1999 and Darrell Axel Bissessar, born April 27, 2004, in accordance with the Child Support Guidelines based on his 2010 annual imputed income of $102,729.67.
[124] The respondent shall pay to the applicant the sum of $173,430.90 in satisfaction of the equalization payment.
[125] The proceeds from the sale of the matrimonial home currently held in trust by the parties' real estate lawyer, in the sum of $36,576.79, shall be sent to the applicant forthwith in partial satisfaction of the equalization payment, with the balance of equalization payment to be paid to the applicant, within 30 days from the date of the release of this judgment.
[126] The respondent shall have access to the children each Saturday from 10:00 a.m. to 6:00 p.m. with the pick-up and drop-off to occur at the Tim Horton's location at 938 Liverpool Road, Pickering, Ontario, L1W 1S6. The respondent shall engage the children in age-appropriate activities only. He is not to allow any child to operate a motor vehicle nor is he to consume alcohol prior to or during any visits with the children.
[127] The respondent shall have telephone access to the children each weekday evening from 6:00 p.m. to 8:00 p.m.
[128] In the event the parties cannot come to an agreement as to appropriate costs, counsel for the applicant shall file cost submissions of no longer than three pages plus a costs outline within 15 days, to be followed by submissions on behalf of the respondent of a similar length within 15 days thereafter. No reply submissions are to be filed.
Daley J.
Released: January 20, 2012
COURT FILE NO.: FS-09-65858-00
DATE: 20120120
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Radica Amanda Rambarran
Applicant
- and –
Vishnudath Bissessar
Respondent
REASONS FOR JUDGMENT
Daley J.
Released: January 20, 2012