NEWMARKET COURT FILE NO.: FC-08-029-558-00

DATE: 20120120
CORRIGENDA: 20120131

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

S.D. Applicant – and – T.D. Respondent

Dilani Gunarajah, for the Applicant
Ronald T. Velanoff, for the Respondent

HEARD: May 31, June 1, 2 and 3, 2011

REVISED DECISION

The text of the original decision has been corrected with text of corrigendum (released January 20, 2012) appended.

McDERMOT, J.

Introduction

[ 1 ] The applicant, S.D., and the respondent, T.D., had a volatile relationship of approximately 14 years in duration. They began to live together in Texas in early 1997 and moved to Toronto in 1998. There were two children, H. and S., born in 2001 and 2002 respectively. The parties separated in 2007; since early 2008, the parties have shared custody of the children on a more or less equal basis.

[ 2 ] Much of the conflict within the marriage arose over Ms. S.D.’s perceived alcohol use. Mr. T.D. believes Ms. S.D. to be a binge drinker and alcoholic; she denies this to be the case, and states that she is a social drinker only. Ms. S.D. maintains that her husband is a controlling individual who has been physically abusive; she says that he used her alcohol use as an excuse for his abuse. In any event, because of conflict between the parties, the police were called on a number of occasions and the York Region Children’s Aid Society (the “CAS”) has had a filed opened with these people on a continuous basis from sometime around separation until March, 2011.

[ 3 ] These proceedings were commenced by Ms. S.D. on April 3, 2008. About a month prior, the parties had agreed to an equal time sharing arrangement respecting the children; this was by way of a written agreement which was not reduced to court order. However, there are a number of court orders worth mentioning as follows:

a) On July 10, 2008, after a number of unsuccessful attempts to do so, Ms. S.D. obtained a default final order signed by Perkins J. giving her custody of the children subject to reasonable access on reasonable notice to Mr. T.D.. The default order also gave her child support of $1,453 per month and spousal support of $1,600 per month, all based upon the husband’s stated income of $104,000 per annum;

b) On July 16, 2008, on motion by Mr. T.D., the default judgment was set aside based upon the fact that Ms. S.D.’s lawyer was well aware that Mr. T.D. had retained counsel and had been attempting to file an answer. It was unclear to Wildman J. as to whether the default proceedings were at the instigation of the client or her lawyer at the time, Mr. Dipo Ola. Costs of $3,000 were ordered, but are not payable until further order or agreement of the parties, or until conclusion of the case, whichever comes first.

c) On January 9, 2009, Maddalena J. requested the involvement of the Office of the Children’s Lawyer. Pursuant to that order a social work investigation was completed and a report issued on August 19, 2009.

d) On January 25, 2010, on consent, Gilmore J. ordered the matrimonial home to be listed and sold. This was confirmed by subsequent order dated May 4, 2010. The home has now been sold and there is approximately $20,000 held in trust to the credit of this action.

[ 4 ] The applicant has had a number of lawyers represent her in these proceedings; Mr. Velanoff puts the number at six. He blames this for the protracted length of these proceedings. The record indicates that Ms. Gunarajah was on the record by May 4, 2010, and that the matter had to be adjourned from the fall sittings in 2010 because of health concerns of Ms. Gunarajah. Gilmore J. indicated in her endorsement dated January 25, 2010 that disclosure was problematic because of the frequent changes in counsel by the applicant.

[ 5 ] This trial was conducted over a period of four days during the May, 2011 sittings. Property issues were settled prior to trial; the major issues were custody of the children and child and spousal support. Written submissions were provided; the applicant’s final written reply submissions were received on June 28, 2011. The applicant wishes a continuation of shared custody of the children; as an alternative, she indicated that she wants sole custody. Mr. T.D. took the position that he should have sole custody of the children. Both parties took the position that the other should have income imputed to him or her. The respondent has paid no support since October, 2008 to the applicant; the applicant claims both child and spousal support retroactive to separation.

[ ... continued exactly as in source text ... ]