COURT FILE NO.: 34242/11
DATE: 20120813
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sherry D. Durrant v. Trent R. Barnes
BEFORE: Fragomeni J.
COUNSEL: Elliot Birnboim, for the Applicant
Jennifer A. Krob, for the Respondent
HEARD: August 8, 2012
E N D O R S E M E N T
[1] Order to issue as follows:
- That the respondent husband’s pleadings are hereby stayed until he cures his defaults and complies with the following:
(a) Payment, forthwith, of the cost order of Justice Murray dated July 15, 2012 in the amount of $1,500;
(b) In the event that costs of this motion are made in favour of the wife, that those costs be paid forthwith;
(c) That in accordance with the order of Justice Gray dated April 26, 2012, the husband shall forthwith pay $2,500, through his counsel, to the proposed Assessor, Jackie Van Betlehem;
(d) That the husband immediately vacate the matrimonial home;
(e) That the wife have exclusive possession of the matrimonial home;
(f) That the husband is restrained from interfering with the sale of the matrimonial home and that his consent to the sale be dispensed with;
(g) That the husband comply with all remaining disclosure issues;
(h) Upon compliance with all of these terms the husband shall be at liberty to proceed with whatever motions he deems necessary and appropriate.
This matter is adjourned to September 27, 2012. At that time, the issue of whether the stay shall continue and whether there has been compliance with the terms set out in this order will be dealt with;
Counsel for the parties shall discuss and make arrangements for access to the child by the father, failing which the issue of access terms shall be addressed at the return of the motion whether the stay is lifted or not. In other words, the father is entitled to deal with issues relating to access in any event;
The parties shall file written submissions on costs within 10 days.
Reasons for Order
[2] The parties separated on July 1, 2011 after a two year marriage. They had lived together since 2002. They have one child born of their relationship, namely, Taylor born […], 2003.
[3] The parties continue to live together in the matrimonial home. In her Affidavit sworn July 16, 2012 the wife states that living together with her husband has been incredibly tumultuous and contrary to the best interests of Taylor. She states that her husband is deliberately disruptive and acts inappropriately. At paragraphs 3 to 7 of her July 16, 2012 Affidavit, the wife sets out the following:
The Respondent has successfully derailed a custody assessment by a) failing to pay his share of the fees per Court Order; and, b) by lodging complaints against the assessor, forcing her to withdraw. I believe that the Respondent will do everything he can to avoid having his conduct in our home and vis a vis our child subjected to scrutiny.
He has also failed to pay his outstanding costs order of $2,500 arising from a motion to compel the assessment.
Furthermore, despite the Respondent’s counsel having conceded (on behalf of the Respondent) in open court that the Respondent was content to sell the home, the Respondent has obstructed the sale.
I believe our continued cohabitation is particularly disruptive for our son and he uses it to intimidate and harass me as well as hereafter set out.
My intention is to get the home sold as quickly as possible so that we can physically separate. However, I believe the Respondent will use his presence in the home to interfere with such a sale and delay the untenable status quo as he has already done so.
[4] On April 26, 2012 Justice Gray made the following endorsement, in part:
As to the first issue, there is no overwhelming disagreement regarding an assessment, although the preference of the Respondent is that the OCL be requested to become involved. I am not persuaded that requesting the involvement of the OCL is adequate. There would be a delay … What is required is an assessment.
The parties separated in July 2011. Respondent claims he is supporting himself through loans and gifts from family and friends. He is unemployed. … I am skeptical that he cannot find employment of any kind.
[5] Justice Gray determined that the wife should pay 2/3 of the initial assessment costs ($5,000) and the husband pay 1/3 ($2,500). (The initial retainer was $7,500) for Ms. Timmerman.
[6] Justice Gray dealt with costs on May 14, 2012 and ordered that the husband pay the wife $2,500 in costs within 30 days. Those costs were paid on Friday, August 3, 2012. However, the husband has not yet paid his share of $2,500 for the assessor.
[7] As a result of allegations of bias, Ms. Timmerman withdrew from the case and the new proposed assessor is Jackie Van Betlehem.
[8] At the motion before me, the husband agreed to an order staying his pleadings pending compliance with the terms set out herein and the September 27, 2012 return date was set.
[9] Further, since new counsel has been retained, the husband has been fulfilling his disclosure obligations and has complied with most of the requests. He is continuing to make his best efforts to comply fully.
[10] The husband explains that he has not been able to pay the costs order or his share of the assessment retainer as he is in dire financial straits. However, it must be noted that at no time has the husband proceeded with a motion for spousal support.
[11] Further, the husband submits that on September 9, 2011, his wife fired him from her Tim Horton’s franchise without notice and without cause thereby cutting him off from his source of income that he had for the previous 10 years. However, the wife deposes that she owns the Tim Horton’s store and he was fired for cause. At paragraph 35 of her July 16, 2012 Affidavit she states:
The Respondent was asked to stop coming to the Tim Horton’s store that I own when he was discovered on video surveillance taking cash from the office.
[12] In her Affidavit sworn July 16, 2012 the wife details other relevant financial conduct of her husband at paragraphs 36, 39, and 40 as follows:
- The Respondent is clearly deliberately under-employed. Not only has he made no effort to achieve any remunerated employment in the past 10 months but, following our separation, the Respondent actually quit his employment (which he did to his first wife as well). I received the following email, the contents of which I verily believe to be true, from his former employer establishing that he quit for the purpose of the divorce:
From: Ben Dobrocky
To: Sherry Durrant
Sent: Monday, November 14, 2011
Subject: Trent
Sherry,
As discussed, in the middle of September 2011, I had a discussion with Trent where he told me that you and him were getting divorced.
As part of that conversation, he mentioned to me that he did not want to be paid a salary from PropertyGuys.com on a go forward basis and would rather be compensated by way of office rent paid to him for the use of 397 Valleyview Drive instead, presumably to minimize his reported income.
Should you have any further questions with respect to the above, don’t hesitate to contact me.
Ben Dobrocky
905-749-4890
Without my knowledge or consent, he deposited my income tax return cheque in the amount $6482,86 on May 9, 2012 at the CIBC home branch, which was joint and withdrew the funds on May 10, 2012 at another CIBC branch. This account was dormant as Trent had already emptied it last year, taking the balance of approximately $3000.00. He effectively stole my IT Refund by having taken my mail. Attached hereto and marked as Exhibit “L” are copies of the account records.
He took rent money, $1750.00, from my tenants but did not deposit the funds. Attached hereto and marked as Exhibit M is a copy of that letter.
[13] Further, there is evidence that the husband has the ability to earn a meaningful income. He claims he had positions in 2001 and 2002 where he was earning $90,000 per year. He claims he was offered a position in 2004 in Winnipeg for a job earning $150,000 per year, which he turned down.
[14] The issue of whether the husband is underemployed can be fully reviewed at trial. I am satisfied, however, on the record before me that the husband’s financial position is not as set out by him. In addition to that the husband has accessed funds as set out by the wife at paragraph 12 of her August 8, 2012 Affidavit as follows:
The Respondent makes no effort to respond to, quite literally, his thefts from me as set out in my prior affidavit material:
a. Being caught on video with “his hand in the cash” at my business;
b. Having taken rent money from tenants;
c. Having taken $5000 on my credit card – to pay his own lawyer; and,
d. Having taken my $6400 2011 ITR in May and deposited it into his own account.
[15] I am satisfied that the husband has the ability to find and afford alternative accommodations. The order that he vacate the matrimonial home forthwith is reasonable in all of the circumstances.
[16] Further, the wife details why the parties cannot continue to remain in the home together. At paragraphs 28 and 29 of her July 16, 2012 Affidavit she sets out the following:
I have done everything I can to live in this unbearable situation and shield my son from conflict but it is not in the interest of my son to commence another school year in this situation.
I note the following:
a) I have been the primary caregiver for our son since birth. The Respondent is incapable of meeting his physical or emotional needs.
b) The Respondent is bombarding our son with inappropriate “information” (lies, actually).
c) He deliberately interferes with bed time, meal time, and homework routines I have set in an effort to show my son (and me) “who is boss”.
d) He regularly absents the child from the home without telling me and particularly when I have plans for the child, in order to disrupt our schedule.
e) When we are both home he will sit himself so that he is interposed between Taylor and I - he will not permit us to be alone together in the house for any period.
f) He is physically aggressive with me in front of our son:
i) The police have been called on several occasions, including over Christmas when he tried to take my car, leaving my son with no means of transportation. The police told him to return the car, which he eventually did. The police were also called at the end of November when the Respondent attempted to intimidate our nanny/boarder and kicked over a full garbage bin (because he was angry) in front of our son.
ii) He threw a plate at me in June 2011 in front of our son;
iii) He slams doors, tips furniture over and breaks things when he is angry. I do my best to avoid any contact with him which makes life in the home extremely difficult.
iv) He drove our nanny/boarder, Victoria away because of his aggressive behaviour. Attached hereto and marked as Exhibit “J” is a copy of a letter from her documenting this behaviour.
v) He constantly threatens me that he plans to “take everything” and “live off of me”.
g) On January 10, 2012, the Respondent came home at 4:30am deliberately waking up the whole home (including our son) and advising he had been at a bar until then “drinking and smoking”.
h) He constantly uses horrific vulgar language directed towards me in front of our son. By way of recent example:
a) On July 11, 2012, the Respondent angrily took away a “Lego” set I had purchased for Taylor causing a scene and embarrassing Taylor in front of his friends who were present. He then called me a “f”king moron” in front of Taylor. Taylor went outside when he heard this and the Respondent continued in a barrage of name calling. I left the home that night with our son.
b) I returned the next day and when we arrived, the Respondent gave him the Lego set.
i) I am particularly concerned about certain non-prescription drug addictions but I am reluctant to rely on these issues until they have been documented and validated in the course of an Assessment.
[17] At paragraph 39 of his August 3, 2012 Affidavit, the husband acknowledges that his position is and has always been that the matrimonial home should be sold. Although he does not object to the sale of the home he objects to the sale of the home immediately as a result of his dire financial circumstances. As I have already indicated, I do not agree with the husband’s characterization of his financial situation.
[18] Further the husband denies the allegations made by the wife relating to the details she sets out as to why they can no longer live under the same roof. At paragraph 42 of his August 3, 2012 Affidavit he states:
The allegations made in Sherry’s Affidavit are hyperbole designed for the sole purpose of evicting me from our family home. I freely admit that Sherry and I have arguments, but I do not, and would not, fight with her in Taylor’s presence, nor have I kicked furniture and garbage bins and thrown items. I have not disposed of any of her family heirlooms. I have never thrown a plate at Sherry, but in her embellished tales of conflict a dropped plate became an act of aggression.
[19] It is important to point out that none of the Affidavits filed by the parties have been the subject matter of cross-examinations. In these circumstances it is always difficult to resolve conflicting Affidavits and the differing version of events put forward.
[20] However, it is imperative in the circumstances of this case and on the evidentiary record before me at this motion, that the primary interest to be protected is that of the child. I am satisfied that it is in Taylor’s best interests that the parties no longer live together under the same roof. The comments of Justice Murray on July 25, 2012 are very appropriate when he stated to Mr. Barnes at page 24 in part:
… and that’s what Taylor would say if he were here. Create two sanctuaries, not one warzone. …
[21] I am satisfied in all of these circumstances that the order made herein is reasonable and appropriate. Although I have not reviewed in great detail the contents of the Affidavits filed, I have read and considered all of the Affidavits filed and I am satisfied on that record that the order is in Taylor’s best interests.
Fragomeni J.
DATE: August 13, 2012
COURT FILE NO.: 34242/11
DATE: 20120813
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sherry D. Durrant v. Trent R. Barnes
BEFORE: Fragomeni J.
COUNSEL: Elliot Birnboim, for the Applicant
Jennifer A. Krob, for the Respondent
ENDORSEMENT
Fragomeni J.
DATE: August 13, 2012