COURT FILE AND PARTIES

COURT FILE NO.: FS-10-69389

DATE: 2012-01-25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: S.R.W., Applicant

AND

T.W., Respondent

BEFORE: PRICE J.

COUNSEL: Clinton V. Ellis, Counsel for the Applicant

Edosa Adams-Idode, Counsel for the Respondent

HEARD: January 24, 2012

ENDORSEMENT

Nature of Proceedings

[ 1 ] This is a Case Conference in a proceeding which Mr. W. began by Application issued July 2, 2010, in which he claims a divorce, custody of the parties’ child, J.R.W., born […], 2005, child support, and exclusive possession and sale of the matrimonial home at [….]Boulevard in Brampton.

[ 2 ] Ms W. delivered her Answer on December 30, 2011, almost a year and a half later. In it, she claims divorce, custody and support for herself and the children, both J.R.W. and her child, D. A.D.Jr.., born […], 1998, from her previous union, exclusive possess and sale of the matrimonial home, and an equalization and freezing of net family property.

Delay in the Proceedings

[ 3 ] The explanation for the year and a half delay from the issuance of the Application to the delivery of the Answer is explained by an apparent delay by Mr. W. in serving the Application and Financial Statement on Ms W., who says that she did not receive the Application until she found it on the kitchen table in her home in December 2011. It appears that Ms W. received a Notice of Mandatory Information Session which she attended, as required, on July 22, 2010. She retained her present solicitor to represent her on November 29, 2010, but her solicitor asserts that she was unable to secure an affidavit of service of the Application on her client from Mr. W.’s solicitor and none can be found in the court file.

[ 4 ] I note that the affidavit of service of Mr. W.’s Case Conference Brief by a process server, Elliot Hartstone, sown on October 4, 201, states that the Conference Notice, the Conference Brief, and two affidavits of Mr. W. sworn September 27 and 28, 2011, were said to have been served on Ms W. on October 3, 2011, by leaving a copy of these in a sealed envelope, addressed to Ms W., with the Applicant, S.W., at the residence which the parties share at 154 S.L.B. in Brampton. I infer from this that Mr. W’s Application and Financial Statement, although issued on July 2, 2010, were never properly served on Ms W. and did not come to her attention until sometime after November 29, 2010, when she retained her solicitor, and perhaps not until December 2011, when she says she found them on her kitchen table. Ms W. delivered her Case Conference Brief, with her Answer and Financial Statement, on December 23, 2011, attended with her solicitor at the Case Conference today, and did not seek an adjournment of the conference when asked if she required one.

Background Facts

[ 5 ] Mr. W. is 57 years old, Ms W. is 31. Ms W. is from Jamaica and Mr. W. met her in 2003, when he was on vacation there. Mr. W. travelled to Jamaica later for a funeral, at which time he pursued their relationship. They were married September 23, 2003, and separated six years later, on June 21, 2009. They have continued to reside under the same roof since then, Mr. W. occupying the finished basement of the home and Ms W. and the children occupying the main floor.

Custody and Access

[ 6 ] Mr. W. sponsored Ms W.’s immigration to Canada. Later, in 2004, Ms W. travelled to Jamaica and returned with her child, D. A.D.Jr.., from Ms W.’s previous union, who was then six years old (born […], 1998). Although Mr. W. agreed to sponsor D.Jr..’s immigration to Canada and apparently accepted him into their household for the next five years, he states that he did not stand in the place of a parent and therefore denies that D.Jr. is a “child of the marriage” within the meaning of section 2(2) (b) of the Divorce Act . Mr. W. and Ms W. had a child of their own, J.R.W., who was born […], 2005.

[ 7 ] The marriage became dysfunctional, and the relations between them became violent. Ms W. attributes this to Mr. W.’s excessive consumption of alcohol; she alleges that he is alcoholic. Mr. W. attributes their difficulties to Ms W.’s violent and manipulative disposition. In 2008, the parties sold the condominium townhouse which was in Mr. W.’s name alone and in which he had lived for twenty years, and bought their present house at […]Boulevard in Brampton, which they took title to in both their names and which became their matrimonial home.

[ 8 ] Mr. W. says that:

(a) he sold his townhouse because of Ms W.’s inability to get along with their neighbours, who complained when she played music too loudly. She also used unpleasant language toward the neighbours and they felt threatened and called the police on numerous occasions. Police attended on four occasions and apparently charged her Ms W. with breaches of the noise by-law. She was fined $400.00 according to Mr. W..

(b) he was forced to relocate their child J.R.W. to a different school as a result of an incident in which Ms W. parked in a no parking zone and refused to move to avoid impeding the school bus and responded instead with expletives and insults towards the teachers to the point when they demanded that she leave the premises Mr. W. asserts that the school later wrote a letter to his wife stating that they wanted nothing further to do with her and that she was not allowed to attend on their premises.

(c) his wife exhibits the same aggressive attitude toward J.R.W.. In his Affidavit sworn September 27, 2011, he states that on one occasion among many, he saw her grab their son around his neck and literally lift him. He states that J.R.W. was so “grievously hurt” that he developed an extreme fear of his mother and, at the time of the affidavit, found refuge in his father. He asserts that he has had to move to the basement of their home because of Ms W.’s attitude toward him and that J.R.W. generally stays with him there.

[ 9 ] Ms W., on the other hand, states that:

(a) the Peel Police attended at their home twice in 2011 following reports by her of her husband’s aggressive and abusive behaviour and its impact on the children. Ms W. alleges that on occasion when Mr. W. became intoxicated, he threatened her in the presence of the children, which prompted her to call the police. On one occasion, the police attended and advised her to leave because Mr. W. was too intoxicated to drive. She states that she took refuge in a shelter for the night and that the police, although they did not charge Mr. W., referred the children to the Peel Children’s Aid Society.

(b) Mr. W. uses foul language, such as “fucking pussy”, “fuck-up”, “I picked you up from the gutter” and “you are linen that was exported” to her in the presence of the children.

[ 10 ] Counsel agree that this is a high conflict family and that the environment in the home is toxic.

Sale of Matrimonial Home

[ 11 ] The parties agree that the matrimonial home should be sold. Ms W. would like the sale to be timed to allow her and the children to remain in the home until the end of the school year on about June 17, 2012. Mr. W. agrees to this timeline.

[ 12 ] There is a dispute as to the division of the eventual net proceeds. Mr. W. estimates the current value of the house to be $460,000.00 and the house is currently encumbered by a mortgage whose balance is estimated to be $270,000.00. If real estate commission at 5% is deducted (approximately $23,000.00) and the mortgage, the equity will be approximately $167,000.00.

[ 13 ] Mr. W. seeks an unequal division of the net proceeds of sale based on the fact that it was he who provided the down-payment of $100,000.00 from the proceeds of sale of their previous residence, which was in his name alone, and on the basis that the marriage was of relatively short duration. If Mr. W. succeeds in his claim, Ms W. would realize approximately $33,000.00 from the sale; if he does not, she should realize approximately $83,000.00. The difference of $50,000.00 may be largely eroded by legal costs if the matter must proceed to trial, especially if the parties are forced to occupy and maintain separate residence until trial. The parties therefore are in agreement that they will try to maintain the status quo for the present and each occupy a different level of the matrimonial home until it is sold.

Spousal Support

[ 14 ] Ms W. asserts a claim to spousal support based on the discrepancy in the parties’ income – Mr. W. says that he currently earns $63,000.00 per year, a reduction of $5,000.00 having resulted from his having had to give up supervisory responsibilities when J.R.W. changed schools and from the fact that he must now pick J.R.W. up when his school day finishes. Ms W. estimates her income to be $17,193.00.

[ 15 ] The extent of Ms W.’s need for support and of Mr. W.’s ability to pay will depend in part on the extent of time each will have to devote to child care and on the arrangements they make for alternative accommodation when the house is sold. It is hoped that a motion on this issue can be deferred until a child assessment by the Office of the Children’s Lawyer, if that office will undertake one, can be completed, and arrangements can be made for the sale of the matrimonial home.

Disclosure

[ 16 ] An assessment of the children’s needs, and a valuation of the matrimonial home, will facilitate the early resolution of the issues. In the meantime, the parties seek disclosure of financial information from the other so that they will be in a position to make an informed decision once the assessment is completed and the house is sold.

Order

[ 17 ] Based on the foregoing, the proceeding will be adjourned, on consent, to April 10, 2012, at 10:00 a.m., for a combined Settlement/Trial Management Conference, on the following terms:

1. A request will be made for involvement of the Office of the Children’s Lawyer to conduct a clinical assessment of the needs of the child of the marriage, J.R.W., born […], 2005, and of the ability of each of the parents to meet his needs;

2. Each of the parties shall, by March 23, 2012, produce to the other:

(a) all monthly statements from June 1, 2009 to the present, for every bank account and credit card they have operated, alone or with others (other than for joint accounts which they have operated with each other) at any time during that period;

(b) all pages of all passports they have held from January 2003 to the present;

(c) any and all applications for credit they have made from January 1, 2009, to the present, including mortgage, line of credit, and credit cards;

(d) all benefit plans, pension plans and insurance policies in which they have had an interest at any time since June 1, 2009.

(e) Tax returns and Notices of Assessment in 2009 and 2010 and last three pay stubs for 2011 and 2012.

3. If a party fails to produce any of the documents required by paragraph 2 by March 23, 2012, that party shall produce, by that date, a sworn affidavit setting out the steps they have taken to obtain the documents, the reasons they were not produced, and a signed direction authorizing and directing any third party who may be in possession of them to produce them, at the expense of the party required by this order to produce them, directly to the solicitor for the party to whom this order required them to be produced.

4. Mr. W. shall forthwith attend at an organization in the Drug and Alcohol Registry of Treatment (DART) database and submit to in-depth screening for alcohol dependency. He shall provide a copy of this endorsement to the organization, with a signed Direction authorizing the organization to provide information and documents concerning the assessment directly to Ms W.’s solicitor. He shall also provide a copy of this Direction to Mr W.’s solicitor.

5. The parties shall, by February 10, 2012, agree upon and retain a real estate agent to sell the property municipally known as […]Boulevard in Brampton (“the property”).

6. If the parties are unable to agree by February 10, 2012, on a listing agent, they may, after that date, each sign a non-exclusive listing agreement with a realtor of their choice and, in that event, shall forthwith fax to the other party’s solicitor a copy of the listing agreement they have signed.

7. The parties shall also, by February 10, 2012, agree upon and retain Hendren Appraisals Inc., or such other certified property valuator as they may agree upon by that date, to provide an up-to-date valuation of the property. The cost of the valuation shall be borne initially by Mr. W. and shall be reimbursed to him from the proceeds of sale.

8. The house shall be listed for sale no later than February 29, 2012, for a sale to close no earlier than June 17, 2012. The parties shall agree, in consultation with the real estate agent or agents, on an initial listing price. In the event of disagreement as to the selection of real estate agent or as to listing price, or as to any matter in relation to the sale of the property, either may seek directions from the court, on short notice, by telephone conference, which notice may be provided in the form of a letter from counsel, with relevant attachments, and provided to this court by fax or email, by arrangement with my judicial secretary.

9. In consultation with the real estate agent or agents, the parties shall take reasonable steps to ready the house for sale. These steps shall be completed by March 15, 2012. The cost of these steps shall be paid by Mr. W., who shall be reimbursed for them from the proceeds of sale of the property, up to the amount of $1,500.00 unless the parties agree in advance and in writing to a greater amount.

10. The parties shall take all reasonable steps to facilitate and complete the process of selling the property. If either part fails to comply with this paragraph, the other party may apply to this court to dispense with the non-co-operating party’s participation in the process of selling the property, which application may be made in accordance with paragraph 8.

11. In the event that either party enters into an agreement to purchase the property, that party will be responsible for all of the costs of sale, including the real estate commission and assumption of any liens.

12. The net proceeds of sale of the property after payment of taxes, real estate commissions, legal fees of the sale and standard adjustments, and after reimbursement of the costs referred to in paragraphs 7 and 9, shall be held in trust in an interest bearing trust account by the parties’ real estate solicitor pending written agreement of the parties or further court order.

13. The parties have leave, after March 23, 2012, to conduct questioning and to bring motions.

PRICE J.

Date: January 25, 2012