COURT FILE NO.: FS-12-5197
DATE: 2012-11-19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: McMahon v. Coulis
HEARD: November 14, 2012
BEFORE: Pierce RSJ
COUNSEL: Cheryl Siran, for the Applicant
Tom Carten, for the Respondent
E N D O R S E M E N T
Background
[1] The parties are the parents of two children, Charleigh McMahon born May 23, 2006 and Emme McMahon born June 1, 2010. With the consent of the parties and pursuant to court order, the children are ordinarily resident with their mother.
[2] The parties began cohabiting in or about 2005 and separated for the final time on June 1, 2012. The mother currently occupies the parties’ residence together with the children. The father is living temporarily with his parents.
[3] The mother earns an income from providing babysitting services in the family residence and cares for the parties’ children as well. The father works for the CPR. He is training to be an engineer. The amount of his income is in dispute. The mother’s income according to her sworn financial statement, is $11,424.00 per annum. Of that total $667.00 per month (or $8000.00 per year) is from employment and $285.00 per month from child tax benefits.
[4] The sale of the parties’ home is under discussion; the father’s motion in that regard has been adjourned. The mother seeks a variety of interim orders:
temporary custody of the children;
interim child support retroactive to June 1, 2012;
interim spousal support of $1,500.00 per month retroactive to June 1, 2012;
an interim order requiring the father to maintain medical, drug, and dental coverage for the mother and the children through his employment plan so long as the benefit is available to him;
a restraining order prohibiting the father from attending within 100 metres of the mother’s residence;
an amendment to the mother’s answer and claim to include a claim for a permanent interlocutory injunction or mandatory order for exclusive possession and use of a motor vehicle with the applicable license plates and registration and insurance and proof of insurance to be provided;
an injunction or mandatory order pursuant to section 101 of the Courts of Justice Act giving the mother exclusive possession of the motor vehicle as plated and insured;
an interim order directing the father to maintain the existing policy of insurance for the vehicle; and
costs.
Interim Custody
[5] The father’s application seeks joint custody (although there is no motion currently before the court).
[6] Counsel for the father argues that no order should be made as an interim order would prejudice the father and the court ought not to disrupt the status quo, represented by the interim order for primary residence to the mother and interim access to the father.
[7] I do not agree. The trial judge will visit the issue afresh; any temporary order is not binding on the trial judge. However in the meantime, there may be decisions involving the children’s health care, education or other matters which require an authoritative decision-maker. It is obvious that the parties are unable to communicate with respect to the children. The interim order made on consent requires access exchanges to take place through a third party. The father pleaded guilty earlier in the summer to assaulting the mother. He arranged to have the family vehicle which is registered in his name, removed from the mother’s possession. He unilaterally cancelled her cell phone account. He refused to return the children after an access visit. The mother suspects but cannot prove that the father complained to the Kenora Patricia Child and Family Services about her care of the children as well. These are not hallmarks of a relationship between the parents where there is communication and cooperation. In my view, the best interests of the children require that there be a parent who is responsible in law for making decisions for them, particularly where the parents cannot do so jointly. Accordingly the respondent mother shall have interim custody of the children.
Health Coverage
[8] The father, in his submissions, agreed that he would continue to cover the children with the medical, drug and dental coverage available through his employment but objected to an interim order extending coverage to the mother. This, too, is an example of the animosity between the parties. There is no justification for the father’s refusal. A temporary order will issue directing the applicant father to maintain the respondent mother and the children on his medical, drug, dental and optical coverage available through his place of employment.
Restraining Order
[9] In view of the climate of animosity between the parties and the admitted assault on the respondent by the applicant, a restraining order will issue prohibiting Mr. McMahon from attending within 100 metres of Ms. Coulis’ residence. While Mr. McMahon is currently on probation with conditions that he not have contact with Ms. Coulis, the period of probation may come to an end before the matter reaches trial. It is in the best interest of the children that they not be exposed to conflict between their parents.
Injunction
[10] The mother seeks an injunction requiring the father to provide her with a Sante Fe motor vehicle identified in her pleadings. As there is no provision in the family law rules for injunctive relief, the court must have regard to the Rules of Civil Procedure. The rules governing injunctive relief are found at Rule 40. Rule 40.3 provides:
On a motion for an interlocutory injunction or mandatory order, the moving party shall, unless the court orders otherwise, undertake to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the order has caused damage to the responding party for which the moving party ought to compensate the responding party.
[11] The mother’s affidavit contains no such undertaking. Therefore the motion to amend the answer and claim of the respondent to claim an interlocutory injunction is premature. The mother’s motion to amend her answer to claim a permanent and interlocutory injunction or mandatory order is dismissed without prejudice to her reapplying on further and better material. As a result of the mother’s motion not being properly constituted, her motion for an interlocutory injunction giving her possession of the vehicle is also dismissed.
[12] Even if the mother’s pleadings were properly constituted, I am not satisfied on the evidence set before me that her application meets the test set out in the seminal case, R.J.R-McDonald Inc. v. Canada (Attorney General) 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. The decision of the Supreme Court of Canada considered interlocutory motions in a Charter case. However the test has since been widely applied in a civil context. The applicant for an injunction must prove:
that there is a serious question to be tried;
that irreparable harm will result if the relief is not granted; and
the balance of inconvenience favours the moving party.
[13] In this case, there is scant evidence that there is a serious question to be tried. There is no evidence that irreparable harm would result if the mother is not given possession of the vehicle. On the evidence filed, I would not have been inclined to grant an injunction even had the matter been properly pleaded.
Father’s Income
[14] The father has filed three financial statements in this proceeding, with conflicting financial information. His income tax return for 2011 shows total income of $68,235.48; his sworn financial statement dated November 1, 2012, shows annual income of $67,716.00; his sworn financial statement dated August 22, 2012, deposes that his income at the time of swearing the affidavit was $83,436.00; his financial statement sworn September 4, 2012, sets out his annual income at $83,436.00.
[15] Based on the father’s paystub, filed, he argues that his projected income for 2012 with five remaining pay periods is $67,716.00.
[16] Despite the sworn financial statements that are showing higher income, the pattern of income disclosed by the paystubs and the father’s 2011 income tax return suggests that his income is in the area of $68,235.00. I find that for the purposes of this motion and based on the evidence before me that his income for 2012 is $68,235.00. If I am in error in this finding, an adjustment can be made by the trial judge. The father is under an ongoing obligation to disclose his income including his income tax returns and notices of assessments.
Child Support
[17] In accordance with the child support tables, the father is ordered to pay to the mother child support fixed at $1013.00 per month commencing June 1, 2012 with credit to the father for any payments made to the mother for the support of the children.
Spousal Support
[18] The father concedes that entitlement is not an issue. He simply contests the quantum.
[19] The father submits that he has paid all of the bills for the household since separation and therefore he should not be obliged to pay retroactive support. He submits that the mother continued to use the family vehicle until October while he paid the loan, insurance and other related expenses. He submits that he is unable to bear the debt burden for the parties unless it is shared. He proposes that the mother pay one half of the mortgage and the line of credit or alternatively her costs of occupation of the home including the mortgage while the father pays the line of credit. He alleges that the mother is working for cash and that her income is understated. Apart from his assertion, there is no evidence in this regard. The mother has produced invoices from her clients over a period of months both before and after the parties’ separation. She has produced her 2011 income tax with the comparative summary which demonstrates that between 2007 and 2011 she has never earned more than $6,062.00. Her total income for 2011 was $3,200.00.
[20] The mother’s monthly expenses are approximately $4,100.00. This figure includes sum of $626.00 for a joint loan and transportation expenses of $340.00, both monthly. Her budget also includes an amount for mortgage and property insurance and household maintenance of $720.00 per month. The father also claims similar expenses for the home in the amount of $991.00 per month; utilities, phone, cable and internet (presumably for the home) of $740.00 per month; transportation expenses of $896.00 per month (which includes two vehicles in his possession); an expense of $200.00 per month for the respondent’s cell phone which she says he unilaterally cancelled; and assorted debt payments.
[21] It is clear that the parties were living beyond their means. Nevertheless, the father will have fewer expenses while he lives temporarily with his parents. The wife has no transportation. That must be taken into account in assessing her financial need. For that reason I am inclined to award greater spousal support than is indicated by the Spousal Support Advisory Guidelines. The parties need to consider ways of reducing their debt. However in the meantime, the mother and children must be maintained in a reasonable standard of living having regard for the parties’ combined incomes. Mr. McMahon will enjoy some tax relief from the payment of spousal support pursuant to a court order. Ms. Coulis will have to pay income tax for the spousal support she receives.
[22] The applicant father is ordered to the respondent mother interim spousal support of $1287.00 per month, which is at the high end of the Spousal Support Advisory Guidelines, plus a transportation allowance of $600.00 per month for a total of $1,887.00 per month. Spousal support is to commence November 1, 2012, without prejudice to the mother’s claims for a retroactive support order.
Costs
[23] If the parties cannot agree on costs they may apply within thirty days to obtain an appointment to argue same, failing which costs will be deemed to be settled.
“Original Signed by”
Regional Senior Justice H.M. Pierce
DATE: November 19, 2012
COURT FILE NO.: FS-12-5197
DATE: 2012-11-19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: McMahon v. Coulsin
BEFORE: Regional Senior Justice Pierce
COUNSEL: Cheryl Siran, for the Applicant
Tom Carten, for the Respondent
ENDORSEMENT
Pierce RSJ
DATE: November __, 2012
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