COURT FILE NO.: FC-05-1813-2
DATE: 20120426
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Chantal Caparelli, Applicant
AND
Pino Caparelli, Respondent
BEFORE: J. Mackinnon J
COUNSEL:
Stephen S. Appotive, for the Applicant
Mark P. Shelston, for the Respondent
HEARD: April 5, 2012
ENDORSEMENT
[ 1 ] There are two motions for temporary relief before the court.
[ 2 ] The Respondent’s motion seeks the following :
(a) an order granting him custody of Mila Caparelli born August 21, 1995;
(b) an order appointing the Office of the Children’s Lawyer to investigate and report on the views and preferences of the children, Carina Caparelli born June 10, 1998 and Ariana Caparelli born February 6, 2001, with respect to his request to have access to them;
(c) an order varying the child support payable by him to the Applicant as of September 1, 2010 based on the fact that Mila has resided with him as of that date;
(d) an order terminating the Respondent’s obligation to pay spousal support to the Applicant as of January 1, 2010;
(e) an order varying the Respondent’s obligation to provide life insurance for child support; and
(f) an order terminating the Respondent’s obligation to have life insurance for spousal support.
[ 3 ] The Applicant’s motion seeks the following :
(a) an order for payment of child support arrears;
(b) an order for ongoing interim child support in the offset amount of $766.00 per month, commencing May 1, 2012;
(c) an order suspending the Respondent’s access to Carina and Ariana until he completes the treatment/counseling recommended by Dr. Weinberger;
(d) an order by way of summary judgment for payment of $31,237.00 being the underpayment of the Applicant’s entitlement to 50% of the net proceeds for the sale of the former matrimonial home (4886 Bank Street);
(e) an order that all other support issues, including but not limited to the calculation of arrears of s. 7 expenses and spousal support be reserved to the Trial Judge;
(f) an order for an augmented restraining order against the Respondent to include a provision that: The Ottawa Police Service or police service of local jurisdiction shall investigate and take appropriate action where there is evidence of a breach of this restraining Order. A copy of this restraining Order shall be delivered to the Ottawa Police Service, by facsimile to 613-760-8127 by Stephen Appotive (counsel for the Applicant) within 7 days; and
(g) an order that the Respondent provide to the Applicant an open-ended travel letter so that the Applicant be allowed to travel with the two youngest children, Carina Caparelli born June 10, 1998 and Ariana Caparelli born February 6, 2001 as she chooses.
[ 4 ] At the opening of the hearing, counsel advised an agreement had been reached to direct the issues with respect to access and section 7 expenses to trial and that the restraining order would be amended as asked. An order will go in these terms.
Background History
[ 5 ] The parties married on May 14, 1994 and separated on May 1, 2005. There are three (3) children of the marriage, Mila currently 16 ½ years of age; Carina currently 13 ½ years of age; and Ariana currently 11 years of age.
[ 6 ] After separation in May 2005, the Applicant commenced divorce proceedings seeking corollary relief. The matter was settled and the settlement became part of the divorce order of Justice Blishen dated October 11, 2007. Pursuant to that order, the Applicant was granted sole custody, the Respondent was granted access, income was imputed to the Respondent of $243,000.00 per annum, child support was ordered in the monthly amount of $3,996.00 together with spousal support of $3,400.00 per month (the Applicant’s imputed income was agreed to be $20,000.00), and the Respondent was required to maintain $500,000.00 of life insurance and the Applicant, $250,000.00 worth.
[ 7 ] In June 2008, the Applicant brought a motion to vary the divorce order by reducing access. In July 2008, the Respondent brought a motion to vary custody, child support and spousal support. The parties retained Dr. Weinberger to prepare an assessment.
[ 8 ] In September 2008, the Respondent’s financial situation changed. His company lost its largest client, resulting in a significant decrease in his income. In April 2009, the parties consented to an order varying the child support to $2,000.00 per month based on an income of $110,000.00 and reducing spousal support to $1,000.00 per month, both on a without prejudice basis.
[ 9 ] Following a contested motion, Justice Sheffield varied the Respondent’s access by order dated July 15, 2009, limiting it to three Saturdays each month from 10 a.m. to 7 p.m., supervised, and suspended his telephone access.
[ 10 ] The motions to vary were ultimately settled by consent reached in the fall of 2009, but not confirmed by court order until the July, 2010 order of Justice Linhares De Sousa. That order continued day time supervised access for the Respondent, required Mila to attend individual therapy and joint therapy with the Applicant and required the Respondent to pursue psychotherapy, all as had been recommended by Dr. Weinberger in his first report. The order specified that the Respondent was to provide the Applicant with quarterly written reports from his psychotherapist stipulating whether treatment sessions had started, been completed or terminated (if so, by whom), and whether treatment sessions are of continued benefit or not. The order also required an updated assessment to be conducted by Dr. Weinberger.
[ 11 ] The consent order fixed the Applicant’s income in 2009 as $20,000.00 and the Respondent’s income as $85,000.00. Commencing October 1, 2009, the Respondent was to pay the Applicant spousal support of $800.00 per month and $1,590.00 per month for child support.
[ 12 ] Dr. Weinberger’s updated report was available August 31, 2010. He concluded custody of the children should remain with the Applicant and that the Respondent’s access should remain supervised day time access until the necessary counselling was in place and all indications of alienation by the Respondent had ceased. He recommended that the Respondent should be required to complete programs available through the Family Services dealing with parenting 6-12 year olds; parenting through separation and divorce; anger management and parenting an anxious child, and also that completion of these programs and obtaining individual psychotherapy counselling be a condition of his continued access.
[ 13 ] Dr. Weinberger also recommended that the Applicant seek therapy to deal with how to modulate her own emotions.
[ 14 ] By the time Dr. Weinberger’s report was released in August 2010, Mila had moved in with the Respondent. She has remained in his care since August 2010.
[ 15 ] In March 2011, the Respondent initiated his present Motion to Change. The Applicant responded with her own Motion to Change shortly thereafter. The motions before the court now are temporary motions in the third full round of litigation between these parties.
Custody of Mila
[ 16 ] Mila has resided with her father since August 2010. For many months, she did not see her sisters or mother. More recently, she has begun to see them again but she still resides primarily with her father. Mila is 16 years old. Her father submits that he should have custody of her given that there are still parental decisions to be made on her behalf. Her mother believes that Mila has gone over to her father’s home in response to alienating behaviour on his part. She does not wish to consent to Mila’s custody being changed to the Respondent because she does not want Mila to think that her mother ever gave her up. She would consent to an order providing the Respondent with care and control over Mila.
[ 17 ] Custody of Mila is awarded to the Respondent. The reality of the situation is that one or other parent should have parental decision making authority for this child. Mila resides full time with her father and is only recently re-establishing a relationship with her mother. Regardless of how these circumstances came into being, at this point in time and given Mila’s age, custodial decision making authority should conform to her residential arrangements.
Request to Appoint the Office of the Children’s Lawyer (“OCL”)
[ 18 ] The Respondent has not seen Carina or Ariana since August 2010. He admits that he did not comply with the recommendations made by Dr Weinberger as they pertained to him or to the court order that incorporated them. His submission is that the OCL should be appointed to ascertain whether the children would like to renew access with him. Their views and preferences should be ascertained and communicated to the court especially having regard to their ages and to the passage of time, 20 months, since they were last seen by Dr. Weinberger.
[ 19 ] The Applicant opposes this request. She points out that the OCL was appointed in 2007. A lawyer and a social worker were assigned to the case at that time. In 2009, the parties retained Dr. Weinberger to conduct a complete custody and access assessment. He was subsequently retained again in 2010 to provide an additional update report. The Applicant submits that the children have been interviewed and assessed enough. In her submission, the fact that the Respondent has not taken any of the courses or therapy that he was ordered to take should be sufficient reason not to appoint the OCL. Since he has not changed in any way, even if the children said that they would see him, a court would not find that access was in their best interests.
[ 20 ] The Respondent replies that if the OCL reports the children do want to see him and if in the face of that information he [still] does not follow Dr. Weinberger’s recommendations, the trial judge should take that into account in reaching his or her decision. If the OCL reports that the children do not want to see him, the Respondent says he will abandon his claim for access.
[ 21 ] In his first report, Dr. Weinberger noted that the conflict between the parties was ongoing and the feelings between them entrenched. He concluded Mila was being turned against her mother by her father and her complaints against her mother were being significantly precipitated and reinforced by the father. With respect to Mila, Dr. Weinberger stated:
Mila has taken the brunt of exposure to the conflict and to influence by the father. She loves her father but she is not emotionally in a position to discern the harm that he does and in how she can have a loving relationship with her mother in the context of a final separation.
[ 22 ] In his second report dated August 31, 2010, Dr. Weinberger noted that Ariana and Carina had nothing good to say about their mother and nothing but good to say about their father. He stated:
Unless there are objective indicators to support such a polar view, the spectre of alienation would appear to arise.
[ 23 ] Dr. Weinberger noted that the father’s disparagement of the mother to the children during telephone calls continued. In his view, Carina and Ariana’s negative portrayal of their mother was not accurate. He observed that, “with the father fully accepting Mila’s complaints and at times abetting them as per the taped conversations, none of these girls have opportunity to hear an objective voice that would try to put things in context for them and seek better ways of coping than allying against the mother and rallying behind the father.”
[ 24 ] His opinion was that Mr. Caparelli could not appreciate that the girls could love both parents equally. He stated that, “...without counselling he has no options in developing a different view, and with it at least there is some opportunity.”
[ 25 ] Finally, Dr. Weinberger observed that whereas in the first report “Mila’s triangulation was addressed…Now, it appears that Carina and Ariana are being drawn in to a taking of sides as well.” He recommended counselling of the girls themselves because they “…have a lack of understanding of the process of alienation, and that this ought [to] be covered in the counselling so that they can give feedback to the father and counter his comments and in turn promote his own change lest they continue to become a party to what has become a faltering process.”
[ 26 ] Dr. Weinberger found that ongoing supervision of the father’s access was necessary because of “the father’s negativism toward the mother and how he may be unable to contain himself were he seeing the girls unsupervised”. He went on to conclude that, “The children’s negativism toward their mother is excessive and disproportionate”. His recommendation was that the father’s access should remain supervised until “all indications of alienation by the father have ceased and over a reasonable timeframe.” His recommendations for counselling and parenting education have been set out earlier. The reason he recommended individual counselling for the father was because he “still needs to understand how he alienates, or contributes to it, and how to stop it. This too ought to be a condition of continued access.”
[ 27 ] Justice Sheffield heard an interim motion in July 2009 when the Applicant sought to suspend the Respondent’s access until trial. Despite the fact that the case was within three months of trial, he found the circumstances were exceptional and required an immediate change to the access:
19 In reviewing the evidence in this case, I cannot fail to find that Mr. Caparelli has used his telephone access to his children, through very inappropriate language, comments and requests, to deliberately denigrate and alienate Ms. Caparelli contrary to court order and contrary to the best interests of the children. Although I note that this alienation is not present in every conversation, it is sufficiently prevalent to be alarming. I find that Mr. Caparelli has attempted to alienate the children from Ms. Caparelli.
20 Therefore, in the present case, I find that such exceptional circumstances do exist as contemplated in Genovesi, supra . I find it reasonable to conclude that there has been a material change in circumstances sufficient that the best interests of the children warrant an immediate variation in the access provisions of the Divorce Order of October 11, 2007. In my view, there is clear evidence that since the granting of that Order the children have been caught in a vortex of emotional strife created in large measure by Mr. Caparelli's parental alienation of Ms. Caparelli. This has caused negative effects both psychologically and emotionally on these girls, particularly so in the case of the eldest daughter, Mila.
[ 28 ] Justice Sheffield questioned how much weight could or should be placed on the children’s views wishing to spend more time with their father. He stated at para. 21:
21 ...However , I am uncertain as to how much weight I may realistically place on those views given the level of negative reinforcement about their mother they have received from father. In this situation and in circumstances where parental alienation has been found, the child's views may not be seen as their own: ...
[ 29 ] The Respondent candidly admitted that he has neither followed Dr. Weinberger’s recommendations nor complied with Justice Linhares de Sousa’s order with respect to availing himself of counselling and parenting courses. In view of the finding of parental alienation, the Respondent’s failure to do so persuades me that ascertaining the wishes of the two youngest children through the appointment of the OCL is not necessary in order to permit the trial court to ascertain what is in their best interests. I agree that the ruling in Laurin v Martin 2006 CarswellOnt 8905 (SCJ), [2007] W.D.F.L. 4434 , is applicable here:
4 Having read all the material in this long and hard-fought litigation it is obvious that the child’s wishes, the parental ability of the parents, the needs of the child and her relationship to both parents have been the subject of intense scrutiny by the Court for the last four years. The Court has already had the help of many professionals, including the O.C.L. The Respondent has failed to point to any evidence which convinces the Court that the appointment of the O.C.L. in the context of this new round of litigation will add anything to help the Court decide the issue raised by the main motion.
[ 30 ] There is no evidence before the court that the Respondent has taken a single step to address the problems identified years ago. The mere passage of time does not satisfy me that even if the two younger children did want to see him, that access could be in their best interests without his having done so. There was no evidence that the children did want to participate in this case. There is much evidence that the alienating conduct of the father was a very serious problem for the children. For these reasons, I decline to grant him the order he seeks for involvement of the OCL.
Child Support
[ 31 ] Commencing September 2010, one child has resided with the Respondent and two with the Applicant. This is a change in circumstances warranting a variation of the existing child support order. Both parties agree that the simple set off approach is appropriate. They also agree that the Applicant earned $63,899.00 in 2010 and 2011. The Respondent’s income is in dispute.
[ 32 ] The Respondent submits that when the parties settled the second round of litigation by Minutes of Settlement dated January 20, 2010, they agreed that his income for child support purposes was $85,000.00 annually. These Minutes were subsequently embodied in Justice Linhares de Sousa’s order dated July 16, 2010. His position is that this agreement should stand for 2010 especially since his income tax return for 2010 also shows $85,000.00 as his income in that year.
[ 33 ] The Respondent is self employed. His income has been the subject of dispute between the parties since their separation. In the Divorce Order made on consent on October 11, 2007, he agreed that the assistance of an accounting professional may be required to determine his income and that he would provide the Applicant with such a report or opinion. This provision was made in connection to the requirement for annual disclosure for the purposes of adjusting the table amount of child support and the parents’ respective proportions of special expenses. An income report was delivered as part of the Respondent’s materials for this current motion to change. It is dated June 22, 2011. It states that the gross income attributable to the Respondent for 2010 is $94,548.00, whereas wages of $84,000.00 were distributed to him. The report also expressed the opinion that $80,500.00 was a reasonable if conservative estimate of go forward income for him based on a weighted average of the years 2008, 2009, 2010.
[ 34 ] The Applicant’s position is that the court should use the actual income figure for 2010 provided by the Respondent’s own expert. I agree. The direction in the Child Support Guidelines is to determine income by use of the most current information. The figure agreed to in January 2010 could not have been based on the Respondent’s actual income for 2010 which would not yet have been earned or known at that time. Now that his expert has provided an actual income figure for 2010, there is no need to use an average or estimated amount for that year.
[ 35 ] Nor do I accept that the average estimate on a go forward basis is persuasive. For the year 2008, $42,912.00 is used as the Respondent’s annual income figure. That was his income minus any earnings attributable to the major client that was lost in October 2008. It is not an accurate reflection of actual earnings in 2008, nor is it predicative of future earnings. Even without that major client, the Respondent’s income was $78,127.00 in 2009, and increased again in 2010. The Respondent has not yet produced his income tax return, records of earnings or report from his expert for 2011. One assumes that soon he will be in a position to do so and that his actual income for 2011 can then be determined.
[ 36 ] For these reasons, I conclude that the child support to be paid by the Respondent to the Applicant shall be determined by the simple set off approach commencing on September 1, 2010 based on the Respondent’s income being $94,548.00 per annum and the Applicant’s being $63,899.00 per annum. Child support in this amount shall continue to be paid by the Respondent until a determination of his income for 2011 for child support purposes is made by agreement or order, at which time any necessary adjustments shall be made.
[ 37 ] Counsel shall provide a draft order setting out the actual amounts of support payable pursuant to these rulings, including a calculation of any arrears or over payment that may result from them.
Spousal Support
[ 38 ] The Applicant ought to have notified the Respondent in February 2010 when she obtained full time work and began to earn the full time salary of $63,899.00. She did not do so. The Respondent submits that having regard to what she actually earned in 2010 and 2011, no spousal support ought to have been paid to her during those years. He asks for a retroactive order to this effect and a set off of amounts paid against any arrears of child support that he may owe to her.
[ 39 ] It should be noted that the Respondent simply stopped making any support payments in January 2011. In March 2012, he resumed child support payments in the amount of $680.00 per month on a without prejudice basis.
[ 40 ] The Applicant continues to earn about $63,899.00 each year. Her position is that no decision should be made on the temporary motion with respect to spousal support rather that the issue should be determined after trial.
[ 41 ] I agree that I should not terminate spousal support on this motion as asked by the Respondent. That issue is one that should be dealt with by the trial judge on a complete record. I agree that the quantum of spousal support payable from 2010 forward should be dealt with on this motion having regard to the very substantial increase in the Applicant’s income. I direct counsel to provide me with SSAG calculations which will reflect the Respondent’s income as $94,548.00 from 2010 forward, the Applicant’s as $63,899.00 from 2010 forward and reflecting the custodial arrangements in place before and after September, 2010. When I receive this, I will issue my ruling on quantum of spousal support commencing January 2010.
Life Insurance
[ 42 ] I decline to vary the existing life insurance provisions at this time. So doing could lead both parties to cancel or reduce available life insurance coverage that might not easily be replaced or restored if required by the trial judge. To protect the positions of both parties until trial, I order that any insurance proceeds payable from either of them to the other between now and trial shall be held in trust to the credit of this action to the extent that they exceed $250,000.00.
Travel Letter
[ 43 ] The Applicant asks that a travel letter be signed by the Respondent that would permit her to travel with the two youngest children without having to either obtain his consent or court order on each occasion as has happened in the past. The Respondent agrees on condition he receives an itinerary in advance of departure. An order will go requiring him to sign an open ended travel letter that allows the Applicant to travel internationally with Carina and Ariana. The Applicant shall provide the Respondent with a copy of her detailed flight and itinerary information including contact information at least 48 hours prior to her departure.
4886 Bank Street
[ 44 ] The Applicant seeks summary judgment awarding her the balance owing to her from the court ordered sale of this property. It was owned by Caparelli Inc. On September 8, 2006, an order was made on consent that the property was in fact the matrimonial home, was to be sold and the net proceeds divided equally between the Applicant and Caparelli Inc.
[ 45 ] The property had already been listed for sale when the Respondent produced a signed Purchase and Sale Agreement whereby Caparelli Tri Tech had purchased it for $401,000.00. The Respondent maintained that the net proceeds should reflect deductions for real estate commission and for the capital gains tax that would be payable. He provided a letter from the corporate accountant calculating the capital gains and the resulting taxes. On this basis, the Applicant agreed to and did receive $175,000.00 instead of $200,500.00 as her one half of the net proceeds of sale.
[ 46 ] She learned years later when the real-estate agent sued for his commission, that the property had not been sold to Tri Tech, no commission had been paid and no capital gains incurred. Accordingly, her position is that she is still owed the balance of her one half interest based upon the agreed selling price of $401,000.00 plus interest for a total of $31,237.00.
[ 47 ] The Respondent submits that the temporary order merged into the final order in which the Applicant received $242,500.00 in full and final satisfaction of her claim for an equalization payment. Alternatively, the Respondent submits that the Applicant is essentially alleging that the final order should be set aside on the basis of fraud, but she has not established all of the necessary elements to prove fraud.
[ 48 ] The facts are not in dispute. Indeed the Respondent does not refer to the transaction at all in his own affidavit material. In questioning, he described it as a “mockery”. In my view, the order which provided that the Applicant was to receive one half of the net proceeds of sale did not merge into the final order. The Applicant’s entitlement to receive one half the net proceeds of sale of 4886 Bank Street was independent of her entitlement to the equalization payment from the Respondent. Additionally, it is a misnomer to refer to the September 8, 2006 order as temporary in respect to its determinations as to the matrimonial home. Those portions of the order are properly described as final and accordingly, merger has no application.
[ 49 ] It is not necessary for the Applicant to set aside the final order on the basis of fraud. There is no dispute that she was entitled to receive one half of the net proceeds of sale of the property. She did not. The Respondent has not taken any issue with the value of $401,000.00. He did not take the position that the property should now be sold and the net proceeds of an actual sale divided equally between them. In my view, there is no genuine issue requiring trial. The Applicant is owed the balance up to one half of the sale price represented to her by the Respondent, with interest as provided by the Courts of Justice Act . Summary judgment is granted as asked.
Costs
[ 50 ] Counsel may make written submissions with respect to costs. These should not exceed two pages in length plus necessary attachments. The timetable for delivery will be set after I have completed my ruling on quantum of spousal support.
J. Mackinnon J
Date: April 26, 2012
COURT FILE NO.: FC-05-1813-2
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Chantal Caparelli, Applicant
AND Pino Caparelli, Respondent
BEFORE: J. Mackinnon J
COUNSEL: Stephen S. Appotive, for the Applicant
Mark P. Shelston, for the Respondent
ENDORSEMENT
J. Mackinnon J
Released: April 26, 2012