DATE: 20120413

DOCKET: FS-11-373963

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: A.C., Applicant

AND:

O.D., Respondent

BEFORE: Czutrin J.

COUNSEL: Dana Cohen, for the Applicant

Respondent – Un-Represented

HEARD: April 3, 2012

ENDORSEMENT

[1] O.D. is the father of D., born […], 2010. O.D. is the Respondent in an action commenced by the Applicant, A.C., D.’s mother.

[2] On April 3, 2012, I heard the father’s motion for contempt. The motion for contempt was commenced by the father on February 14, 2012, and first returnable on February 21, 2012. In the contempt motion, the father alleges on Form 31 (Notice of Contempt Motion):

That the Applicant does not take our son ... to daycare since December 19, 2011 for 2 months now, although it was ordered by Justice Curtis on November 23, 2011 at the Ontario Court of Justice located at 47 Sheppard East, file number D55426/11.

[3] In his affidavit of February 14, 2012, the father outlines the facts he alleges in support of the motion for contempt. Although he appeared without counsel, and the material prepared makes reference to the fact that he is without counsel, it is prepared in a fashion and style that leaves me with the impression that he had legal assistance.

[4] The father commenced a case in the Ontario Court of Justice on November 13, 2011, and when the mother also attempted to commence an action in the same court, she was advised that the father had already done so (she had yet to be served) so she sought an order without notice using the same Ontario Court of Justice case number. She obtained a Form 25G Restraining Order on Motion without Notice from Spence J. on November 16, 2011, prohibiting the father from contacting or communicating with her and coming within 200 metres of the residence of her aunt, I.C., where she lives with the parties’ son when in her care. The matter was adjourned to December 14, 2011.

[5] Prior to serving the father with the order she obtained, the mother was served on November 18, 2011 with father’s urgent motion returnable November 23, 2011.

[6] On November 21, 2011, the mother commenced this case seeking relief under Divorce Act, Family Law Act and Children’s Law Reform Act.

[7] These parents are married and there is a matrimonial home in the father’s name and in addition to the divorce claim, there are property claims that in all of the circumstances make it reasonable and appropriate for the issues to be dealt with in one court. While the Children’s Aid Society (“Society”) has been involved with this family, no protection proceeding was commenced and as I will further refer to Sherr J., who last dealt with the family in the Ontario Court of Justice heard from the Society on January 11, 2012:

CAS counsel ... present - indicates that there are no urgent protection concerns. Parties in intervening period, dealt with access issues in SCJ. These issues cannot be dealt with in 2 courts at the same time. Parties consented to terns in SCJ case. There are multiple issues in SCJ- it is appropriate that all issues be dealt with in one court

[8] This court, in the circumstances, declines to make any further orders. The lifting of the automatic stay of this proceeding pursuant to the Children’s Law Reform Act (“CLRA”) is rescinded.

[9] The father’s contempt motion arises from his allegation that the mother was in breach of Curtis J.’s order of November 23, 2011.

[10] According to the mother, the parties separated on November 11, 2011.

[11] I am unclear as to what material and evidence Curtis J., had on November 23, 2011. There were serious cross allegations made by each parent against the other. I am not sitting in appeal of Her Honour’s order and start my consideration based on that order remaining in effect, and that since it is clear that this court now has jurisdiction, this court will deal with the interim issues de novo, but at the same time, until this court modifies or makes a new order that order remains.

[12] I leave for another day as to what judge or court has the jurisdiction to lift, stays under s. 27 of the CLRA. Of course, this would not be and issue where there is, under section 21.1 (1) of the Court’s of Justice Act, a branch of the Superior Court of Justice, known as the Family Court successor to the Unified Family Court. Given that there remains an open file with The Children’s Aid Society, it would be unfortunate that if they decided to intervene by commencing any protection applications then the parenting issues would be stayed in this court, not being a Family Court and them again returned to the Ontario Court of Justice.

[13] I continue on a temporary-temporary basis and pending further order of this court as an order of this court, the parenting time share ordered by Curtis J. in paragraph 3 of her order. I also continue the order for non consumption of alcohol pursuant to paragraph 4 of the order and ask that the child’s Passport be deposited with her counsel Dana Cohen and not be released to either party without court order.

[14] On December 22, 2011, Perkins J. of this court, on consent, made an order (without prejudice) with both parties represented by counsel that, amongst other things, modified the daycare provisions of Curtis J.s’ November 23, 2011 order and the time sharing over the Christmas Holidays. The daycare term was now:

D. shall attend daycare full-time (the previous wording was “shall attend every day Monday to Friday all day”) at a mutually agreeable registered daycare facility which is suitably located for both parties and until then D. will remain at his current daycare at J.’s located at D[…] Avenue…).

[15] From a review of the affidavit material filed by each parent, by December 22, 2011, the daycare location was identified as an issue as well the need for agreement on any change of daycare. The father’s material concedes that the mother needs to take TTC and walk to get their son (who was then 17 months) would take according to a TTC trip planner 54 minutes including walking time each way. The mother claimed two hours.

[16] The father sought to change daycare at the time to a friend’s daycare and since that time after the father suggested a new daycare and the mother had an opportunity to check it out, the parties have agreed to D[…] Daycare.

[17] The mother does not wish to be obliged to take the child to daycare every day and suggest that was not the prior arrangement pre-separation.

[18] Father submitted that he is only interested in his child’s welfare and his protection. Curtis J. was made with some limited information and Sherr J. received submissions from counsel for the Society.

[19] Mother advised that she is willing to undergo testing relating to her alleged alcohol consumption but that she was waiting for the Society to advise her where to go and what to do. I note that mother has stated in an affidavit that her doctor provided a “prescription” re alcohol testing Curtis J. made in an order that she perhaps thought might address any concerns about alcohol consumption by having the child in a daycare setting daily.

[20] It is impossible, absent reliable independent evidence, to decide credibility between the parties. I reviewed a letter from the Society dated December 13, 2011. The Society letter advises that the police found her drunk on October 18, 2011, and the police sent an email to the Society.

[21] The Society’s letter stated:

The Society’s Intake Department completed their investigation on November 16, 2011. At that time they verified that the child D. ... was in need of protection because ...: the mother is struggling with her alcohol use; the father’s (charges against mother, now withdrawn) ... the parents have a history of conflict and there is a risk that the conflict will increase with the pending court matter for custody...

[22] The letter suggests that mother’s aunt with whom she and the child lives will supervise her care of the child. The Society spoke with the aunt.

[23] Given the current resolution of the problem with location of daycare, the remaining high conflict and incomplete evidence re mother’s alcohol issues, I am not prepared to alter the daycare requirement nor the status quo of the father picking up for exchange at the aunt’s home as father has the means to pick up and transport the child. Neither party is seeking to alter, for now, the week about arrangement.

[24] Mother does not want the child to go to daycare when she is available as she is in school only one day per week.

[25] Pending being satisfied that the mother has resolved her issues concerning use of alcohol and a doctor’s letter from her own doctor given previous hospitalization (September 23, 2011), I will not consider any alteration at this time to the daycare requirement, but that requirement is mutual as the father has in the past made some unilateral changes to daycare and has not always taken the child to daycare. The mother’s hospital discharge summary may be helpful.

[26] The mother is to follow up to obtain such alcohol and drug testing as may be recommended by the Society and when the matter next returns, provide proof of same, the results of same and the doctor’s letter, as requested. The Society to provide to the Court an update of their involvement and the results of any drug and alcohol testing.

[27] Parties to endeavour to obtain police incidents reports.

[28] Contempt, as a method of enforcement, has been described as the “big stick” of civil enforcement (Fisher v. Fisher, 2003 CanLII 2119 (ON SC), [2003] O.J. No. 976 (Ont. Sup. Ct. J.). It is quasi criminal. Within weeks of the order of Curtis J., the mother pointed out her problem with the order and by December 22, 2011, this court modified the order and more recently the location of daycare changed.

[29] I do not excuse the mother’s failure to abide by an order of the court, but the order, until recently, created some practical and realistic impediments of compliance consistent with a young child’s best interests in travel, weather etc., support and how to manage compliance perhaps should have been addressed. It was suggested that the daycare requirement was not asked for.

[30] If the court receives evidence that any concerns about the mother’s safe care of the child can be addressed then the issue of the daycare requirement may be addressed.

[31] An alternative to contempt in civil family matters is the use of rule 14 (23).

[32] For now, rather than dismiss the contempt motion, the motion is adjourned to have mother address the issues that I have outlined above and provide evidence of drug and/or alcohol testing that will address historical and ongoing use of alcohol and her previous hospitalizations.

[33] This can be addressed when the matter returns to be spoken to re: O.C.L.’s willingness to accept my referral.

[34] With respect to the issues of child and spousal support, much of this issue turns on the father’s income.

[35] I am satisfied that the mother is entitled to spousal support retroactive to the date of separation.

[36] The father was, until November 22, 2011, employed and in receipt of income where his Line 150 income would establish his income for guideline purposes.

[37] As of November 22, 2011, the father’s business, “E[…]”, entered into an agreement with N[…] Inc.., to provide services outlined in the agreement for which E[…] would receive a weekly fee of $4,000 for each week of completed work. He received that amount for work done from November 22, 2011 to the end of December. His 2011 T4 does not reflect any of this.

[38] He also advised that he took some paternity time and was in receipt of employment insurance but the amount was not disclosed. Although he claims he has filed his 2011 Income Tax Return and Notice of Assessment, it was not part of his material.

[39] The wife wants me to find that the father’s income, based on his consulting agreement, is $208,000 per annum and therefore child support and Spousal Support Advisory Guidelines (SSAG) support should follow. The father points out that his work is covered for a period November 7, 2011 to May 7, 2012, and although he concedes that it may continue, he is not sure at this time.

[40] As early as the father knows, he is to provide wife’s counsel with documentation as to what his income sources will be after May 7, 2012, and provide documentation to substantiate same.

[41] I am not in a position to conclude that his income will be $208,000 for 2012, but I do not accept that his 2011 is as his T4 provided.

[42] In the meantime, I will rely on his 2010 Notice of Assessment, Line 150 of $112,499. Counsel to now provide new calculations and I will fix a new amount and costs can be addressed at the speak-to date.

[43] Motion otherwise adjourned without return date on seven days notice.

Czutrin J.

Released: April 13, 2012