COURT FILE NO.: FC-12-62-0

DATE: 2012/10/24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nabil Yazdani, Applicant

AND

Nika Vuthy, Respondent

BEFORE: Mr. Justice Peter Annis

COUNSEL: Tanya Davies, for the Applicant
Leslie Robertson, for the Respondent

HEARD: October 17, 2012

ENDORSEMENT

Introduction

[ 1 ] The applicant father brings this motion for interim orders, to which the respondent mother has cross-motioned, three months in advance of the trial date set in January 2013.

[ 2 ] The orders sought by the applicant are frankly incomprehensible in the circumstances. They include the following requests: sole or joint custody of the two children of the marriage, Nia (D.O.B. […], 2010) and Thida (D.O.B. […], 2011) who are presently in de facto custody of the mother; shared parenting; equalization of property; spousal support payable by the applicant in an unspecified “reasonable” amount proposed by him for the period of three years, which shall be the final termination date.

[ 3 ] In addition, he requests various secondary orders, most of which are of the nature that should have been brought forward during the case or settlement conferences. These include the return of some personal property, that both parties undergo professional counselling and anger management, prohibition against family members speaking ill of the parties, restriction on removing the children from the city of Ottawa, providing the code to open the garage door, the production of all police and CAS records and several others.

[ 4 ] Having been motioned on these matters, the respondent has responded with a cross‑motion for support, which I find is reasonable in the circumstances, even though coming on the eve of the trial.

Applicant’s Motion: Custody and Other Orders Sought

[ 5 ] The affidavits of the parties are similar in describing a highly acrimonious relationship between the parties. However, the exact nature of the myriad of incidents and who is the blameworthy perpetrator of these events remains to be determined.

[ 6 ] One concrete piece of evidence however, is a photograph confirming that the father drove the car of the mother’s sister through the garage door of the matrimonial home, destroying it and damaging some of the contents inside the garage.

[ 7 ] The applicant deposes that this was the result of the respondent physically and verbally attacking him causing him to accidently put the vehicle in drive instead of reverse while escaping.

[ 8 ] The credibility determinations necessary to arrive at a conclusion on the various factual versions put forward can only be made at trial, particularly in as much as there is very little third‑party evidence that is not from interested witnesses.

[ 9 ] In any event, now that the parties are living apart with very little contact except at transition time, I see no basis to vary the de facto custody or primary residence of the children with the mother. I also would hesitate to make such an order that could have the effect of pre‑empting the trial judge hearing this matter.

[ 10 ] There is similarly little evidence to support the other orders sought by the applicant. Again, these are matters best dealt with by the trial judge, if they cannot be resolved before then.

[ 11 ] Concerning the procedural request, I am prepared to order the production of the CAS records. I refuse the order of the police reports. The applicant has already attached some incident reports to his affidavit, which I find are in most respects self-serving.

[ 12 ] I also order that access be increased to that proposed by the mother at paragraph 25 of her affidavit dated October 11, 2012.

[ 13 ] Otherwise, the applicant’s motion is dismissed.

Cross-motion

[ 14 ] Turning to the mother’s cross-motion, I will make an interim order for spousal support to the mother given her dire living conditions in comparison with those of the father.

[ 15 ] It was noted above that the applicant sought an order requiring him to pay spousal support for an unspecified “reasonable” amount on the basis that it be paid for a fixed term of three years.

[ 16 ] I will fill in the “reasonable” amount of his request on an interim basis, and obviously leave the term of the order for spousal support to the trial judge.

[ 17 ] The parties were married in December 2008 and separated in January 2012. The mother stopped working, initially after quitting her job as a registered nurse to follow the applicant to California in pursuit of his career, and thereafter to raise the two young children upon their return to Canada.

[ 18 ] They continued to reside together in the matrimonial home until July 2012. At that time the mother left the matrimonial home for reasons which she claims were in the best interests of the children. This would seem to be confirmed by both parties’ stories of verbal and physical abuse while together, much of it in front of the children. She now lives in subsidized housing and on social assistance.

[ 19 ] In accordance with the consent order of Ratushny J. dated January 23, 2012, the father has been paying child support as per the Child Support Guidelines of $1,489 per month based on his then salary of $106,000 per annum for the two children.

[ 20 ] The father presently earns $109,000 annually, while the mother has reported no income, although on social assistance.

[ 21 ] While the parties lived together, the father paid $2,000 monthly to maintain the family residence in lieu of support. He has not paid any spousal support since the mother left the residence with the children in July 2012.

[ 22 ] Although only three months before trial, as indicated on the basis of significant need, I am prepared to make an interim order effective August 1, 2012 that the father pay $1,500 per month for spousal support for the two children based on his present salary of $109,000 and no reported income earned by the mother.

[ 23 ] I also see no reason not to order that the child support be increased to $1,526 per month for the two children effective October 1, 2012, as per the Child Support Guidelines based on his increased salary of $109,000.

Costs

[ 24 ] The mother filed an offer to settle the interim motion. By it, she sought monetary relief in excess of that ordered by the court.

[ 25 ] In submissions made at the conclusion of argument, the mother sought costs of $3,000. The amount requested is reasonable in terms the complexity of the issues, time expended and experience of counsel. Besides, the applicant father sought costs in a greater amount. I award her costs of $3,000, plus HST.

Interim Orders

[ 26 ] No order is made varying the de facto custody of the children with the respondent.

[ 27 ] Access of the applicant is varied to the following:

(a) Tuesdays and Thursdays from 5:30 p.m. to 7:30 p.m. for both children;

(b) Saturdays from 9 a.m. to 11 a.m. for Thida;

(c) Saturdays from 9 a.m. to 3 p.m. for Nia;

(d) Every second Sunday from 9 a.m. to 11 a.m. for Thida;

(e) Every second Sunday from 9 a.m. to 3 p.m. for Nia;

[ 28 ] The CAS is ordered to disclose its files relating to the children of the parties in accordance with its protocols to do so.

[ 29 ] The other orders of the applicant are dismissed.

[ 30 ] The applicant is ordered to pay monthly child support of $1,526 effective October 1, 2012 and monthly spousal support of $1,500 effective August 1, 2012.

[ 31 ] A further settlement/pre-trial conference is ordered at the first possible date to be determined by the parties in conjunction with the trial coordinator.

[ 32 ] The applicant is ordered to pay costs to the respondent of $3,000 plus HST, within 30 days of this order.

Annis J.

Date: October 24, 2012

COURT FILE NO.: FC-12-62-0

DATE: 2012/10/24

ONTARIO SUPERIOR COURT OF JUSTICE RE: Nabil Yazdani, Applicant AND Nika Vuthy, Respondent BEFORE: Mr. Justice Peter Annis COUNSEL: Tanya Davies, for the Applicant Leslie Robertson, for the Respondent ENDORSEMENT Annis J.

Released: October 24, 2012