Matthew Brown v. Erin Brown, 2012 ONSC 6696

COURT FILE NO.: 1947/10

DATE: 2012 11 26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Matthew Brown

Applicant

– and –

Erin Brown

Respondent

Christopher Fitzgerald, for the Applicant

Michael Walz, for the Respondent

HEARD: November 20,2012

E.J. Koke J.

reasons for judgment on MOtion

tHE RELIEF cLAIMED BY THE PARTIES

[1] The applicant father (Mr. Brown) brings this motion requesting an order for:

a) Unsupervised access, initially for daytime only and in the future for overnight access. This order to be enforced by the police if so required;

b) Costs of this motion

[2] The respondent mother (Ms. Brown) brings a motion for :

a) Child support;

b) An order that funds received by Mr. Brown for damages in relation to a motor vehicle accident claim be paid into court as security for future support;

c) An order permitting her to amend her pleadings by adding thereto a claim for damages against Mr. Brown on her behalf and on behalf of the children of the marriage, in relation to the aforementioned motor vehicle accident;

d) Additional disclosure in relation to Mr. Brown’s income;

e) An order setting this matter down for trial;

f) Costs of the motion

BACKGROUND

[3] The parties are husband and wife and are the parents of two children, ten year old Connor Brown who was born on March 17, 2002 and five year old Olivia Brown who was born on June 15, 2007. They were married on October 4, 2003 after living together for four years.

[4] The parties describe their relationship prior to December, 2006 as happy and stable. During this time Ms. Brown was able to continue her education and achieve her certification as a teacher. Mr. Brown, who is an avid outdoorsman and fisherman, worked the afternoon/evening shift at an outdoor recreation store as manager of the fishing supplies department. They shared the child raising responsibilities.

[5] On December 4, 2006 Mr. Brown was involved in a car accident and he sustained a number of injuries, including a serious and painful injury to his back.

[6] Following the car accident, Mr. Brown was able to continue working, notwithstanding the fact that the back injury caused him chronic pain. He was prescribed various medications by his treating doctors, including narcotics such as Oxycocet and Oxy-Contin. He developed a dependency on these medications and required increased amounts to cope with his pain. The medications also made him listless, sleepy and inattentive and according to Ms. Brown she felt she could no longer rely on him to care for the children. Stresses appeared in the relationship, and in July, 2009 Ms. Brown herself was placed on anti-depressants and she began to see a counsellor for support.

[7] In September, 2009 Mr. Brown was admitted as an inpatient to the Chronic Pain Management Unit of the Hamilton Health Sciences (the “Chronic Pain Unit”), where he was taught different techniques to help him deal with his pain. When he was discharged on October 23, 2009 he was prescribed a reduced dosage of medications, which at the time included Fentanyl and Oxycocet for pain and Fluoxetine for depression.

[8] It was noted by Mr. Brown’s treatment providers at the Chronic Pain Unit that his medication also made him drowsy and his doctors ordered him to stop driving. They notified the Ministry of Transportation that he presented a risk on the road and in November 17, 2009 the Ministry revoked his licence.

[9] Mr. Brown returned home after his discharge from the Chronic Pain Unit. On the advice of his doctors he decided not to return to work at his former place of employment but instead he attempted to find employment which would be more accommodating to his injuries. He has been unsuccessful and has not been employed since that time.

[10] The problems in the marriage continued after his discharge. Ms. Brown, who is employed by the school board as a teacher on an on call basis felt that she could not trust Mr. Brown to take care of the children while she was at work. She did not believe that he was serious about overcoming what she believed was an addiction to drugs and she began seeing an addiction counsellor. On May 3, 2010 the parties separated, with Ms. Brown remaining in the matrimonial home with the children. Mr. Brown lived with friends and relatives for a while and then moved into a third floor three bedroom apartment above a restaurant.

[11] Following the separation, Ms. Brown refused to allow Mr. Brown to see the children alone. She states that she is not convinced that he has his addiction under control. Mr. Brown does not feel that there is any reason at the present time to be concerned with his drug use as he had done what he needed to make sure he is not depending on the drugs for his pain. He believes the children are safe with him and that he is able to provide for their needs.

[12] On July 30, 2010 Mr. Brown filed an application with this court in which he requested custody of the children, or in the alternative, joint custody with Ms. Brown. Ms. Brown countered with her application for custody and support.

[13] On September 13, 2010 the parties attended a case conference. At this conference the parties agreed to a consent order on an interim interim basis whereby Ms. Brown would have custody of the children and Mr. Brown would be permitted to have supervised access at the Algoma Family Services once or twice per week in accordance with the availability of time at the facility. The parties also consented to an order requesting the involvement of the Office of the Children’s Lawyer.

[14] Following the motor vehicle accident of December 4, 2006 Mr. Brown retained a lawyer and issued a claim against the person who was responsible for the accident. This claim was ultimately settled in December, 2011 for the all-inclusive sum of $658,000.

[15] The order of September 13, 2010 remains in place to the present and for the past 26 months, Mr. Brown has only been able to see his children for two hours every other Sunday afternoon. He wishes to exercise access without the requirement that it be supervised. It is his position that he has put any previous drug dependency issues behind him and that he is capable of providing a safe and nurturing environment for the children. Ms. Brown does not accept that Mr. Brown has resolved his drug dependency issues and that the children will be safe with him. She also maintains that Mr. Brown’s current residence is not safe or appropriate for overnight access.

ACCESS

Supervised or Unsupervised?

[16] At the request of the parties, the Office of the Children’s Lawyer agreed to become involved in this dispute on behalf of the children. The Office retained Ms. Marion Mitchell to conduct an investigation and prepare a report for the assistance of the court. Subsequently, Ms. Mitchell prepared a 24 page report (the “Mitchell Report”) in which she summarized her investigation and made a number of recommendations.

[17] Included in the recommendations set out in the Mitchell Report is a recommendation that Mr. Brown be given unsupervised access to his children.

[18] I have received and considered the submissions of counsel for the parties and I have carefully reviewed the documentary evidence referred to by them. I have also given consideration to the contents and recommendations set out in the Mitchell Report. After doing so I have concluded it is not necessary that Mr. Brown’s access to his children be supervised. In fact, I find that it is not in the best interests of the children that his access be restricted to supervised visits at the child access centre.

[19] In coming to this conclusion I place substantial reliance on the reports and information received from Mr. Brown’s treating health care providers.

[20] Mr. Brown filed a report by Dr. Gary Keleher. Dr. Keleher is a registered Psychologist who began seeing Mr. Brown on May 12, 2008 and on a weekly basis thereafter for a period of three years, through May 11, 2011. Dr. Keleher admits that assessment of parenting capacity is outside of his scope of practice. He volunteers however that on the basis of his documented sessions with Mr. Brown that Mr. Brown’s upper most priorities in life appear to involve his children and their well-being on all levels. He concludes his report with the following paragraph:

As Mr. Brown’s treating psychologist, I have never had any concerns whatsoever about the safety or well-being of his children in any context or contact that he has had with them in the past or that he might have with his children in the future.

[21] Dr. M.V. Keating has been Mr. Brown’s family doctor for about 10 years. Significantly, Dr. Keating provided professional care to Mr. Brown while he was dealing with his pain and dependency issues. In a report dated March 30, 2011 Dr. Keating writes:

There was a period of time during which Matthew was using undue quantities of narcotic medication as prescribed by myself. Since he and I became aware of the large quantities of medication he was requiring a couple of years ago, Matthew has undergone evaluation at a chronic pain centre, as well as ongoing rehabilitation treatment through my office, as well as through the office of Dr. Brian Shamess.

As a result of these interventions, Matthew’s use of narcotics has stabilized and has been minimized to the absolute lowest level possible for control of his pain.

It is my experience over the past couple of years that Matthew has been responsible and reliable in use of his medications, and I have had no concerns about abuse thereof. He reports reliably when the pain increases and he requires more frequent administration of pain killer, and he also puts up with the pain at times when he could tolerate larger doses but does not take them.

It is my impression that Mr. Brown is dealing responsibly with his need for narcotic medication, which is produced by physical injury resulting from two successive accidents. I have no concerns in this regard, and I am very candid and frank with Mr. Brown in discussing his issues at the office, and he equally understands when limits are placed on the use of narcotics.

[22] In her report, Ms. Mitchell refers to a telephone conversation she had with Dr. Keating, during which Dr. Keating informed her that he has no concerns about Mr. Brown being able to drive a car on his present medication as he is coping well. Also, he had no concerns with Mr. Brown’s ability to care for his children while on his present medication as Mr. Brown is a responsible person. He advised that he has not renewed his pain medication with Dr. Keating since October 13, 2011 and therefore if he is still on pain medication he must be obtaining it elsewhere.

[23] With respect to Dr. Keating’s comment that he has not prescribed medication to Mr. Brown since October, 13, 2011, Ms. Mitchell reports in the Discussion portion of her report that Mr Brown informed her that he had found healthier ways to manage his chronic back pain which do not consist of any medication.

[24] Mr. Brown was referred to Dr. Shamess for pain management. Dr. Shamess last saw Mr. Brown on September 29, 2010. The Mitchell Report refers to a telephone conversation between Ms. Mitchell and Dr. Shamess. Ms. Mitchell states:

He stated that he viewed Mr. Brown as an honest and a straight shooter who wanted to find ways to better manage his pain. Mr. Brown did share with him the stress he was feeling regarding the struggling relationship he was having with his wife as he found her lacking support and understanding for what he was going through. He also talked about being depressed at that time.

Dr. Shamess stated that he has no concerns at that time with Mr. Brown’s abuse of medications as once he was placed on the appropriate medication there was no reason for him to continue seeing him and therefore he referred him back to his family doctor, Dr. Keating for ongoing support.

[25] Ms. Mitchell took the opportunity to review the Supervised Access reports which were prepared in relation to the children’s visits with their father between October 10, 2010 and March 11, 2012. She reports as follows:

Mr. Brown has been consistent and active in his supervised access for eighteen months and during that time there has been no substance concerns reported by the staff. All reports indicate that he has been appropriate and active with his children during their visits. The present arrangements have made it hard for the children to have a positive and consistent relationship with their father. All parties will need time to adjust to change as there is a need to re-establish trust. All parties need to be open to change and start working towards Mr. Brown taking a more active role in his children’s lives.

[26] I expect that the staff at the Supervised Access Centre is trained to observe the demeanour and condition of parents who attend at the Centre and to detect whether they are under the influence of drugs or alcohol. I take comfort from the fact that there have been no reported concerns.

[27] Ms. Brown is very critical of the observations and conclusions set out in the Mitchell report. She argues that the report was rushed and not thorough, and that Ms. Mitchell failed to consider pertinent medical information and other relevant information.

[28] The material before me does not support Ms. Brown’s criticisms.

[29] Firstly, there is no evidence that the report was rushed. Ms. Mitchell states in her report that this matter was assigned to her on January 13, 2012. The completion date on the report is April 24, 2012, more than three months later. In completing the report Ms. Mitchell interviewed the parties, their children, family friends, three of Mr. Brown’s doctors, the children’s doctors, teachers and staff at Olivia and Connor’s school, Ms. Francis at the Children’s Rehabilitation Centre, Mr. Mertis at the Addiction Treatment Centre. She also received and reviewed reports from the Supervised Access Centre and the Sault Ste. Marie City Police, as well as various court documents.

[30] The pertinent medical evidence which Ms. Brown submits was neglected includes a report which she refers to as the “Omega Report”. This report was a medical assessment prepared by Dr. Henry Rosenblat who is a psychiatrist with Omega Medical Associates. Omega Medical Associates prepares medical-legal Evaluations for the legal community, and this assessment was requested by the lawyer who was handling Mr. Brown’s personal injury claim. The assessment was based on a one time visit with Mr. Brown which took place two years ago, on November 26, 2010. This report was intended to be used to support and further Mr. Brown’s claim for damages, and as such it suffers from all the limitations associated therewith; by this I mean it was not treatment based and its focus was not on Mr. Brown’s parenting skills. Dr. Rosenblat made a diagnosis of pain disorder associated with both psychological factors and a general medical condition which Dr. Rosenblat points out is the same diagnosis as that made at the Chronic Pain Clinic.

[31] In my view, Ms. Mitchell was right to rely primarily on the reports and information she received from Mr. Brown’s treating doctors, who had the benefit of seeing Mr. Brown over a long period of time and having an established relationship with him.

[32] In conclusion, although it is likely that there was a period of time in the past when Mr. Brown was not capable of caring for his children without some form of supervision, the evidence before the court indicates that following his admission to the Chronic Pain Clinic Mr. Brown made significant progress in learning how to deal with his pain and coming to terms with his addictive tendencies. In fact, there is no evidence before the court from anyone that Mr. Brown is still inappropriately using prescription medications at this time. In the circumstances, there is no longer any reason to require that his access be supervised.

[33] As a final comment on the issue of supervised access, I note that Connor has been reluctant to visit his father at the Supervised Access Centre. Olivia enjoys and looks forward to the visits. This is understandable. Connor is a ten year old boy and I do not expect that many 10 year olds would enjoy spending 2 hours on a Sunday afternoon indoors in an institutional setting. Connor has voiced his desire to go fishing and experience the outdoors with his father. In my view, one of the greatest benefits to be gained by permitting unsupervised access is that Connor will now have an opportunity to share and enjoy these outdoor pursuits with this father. As Olivia grows older, she too will outgrow the Supervised Access Centre and will want to be “out and about” with her father. Time spent with their father should be enjoyable and something to look forward to. Clearly, unsupervised access with their father is in the best interests of these children.

Overnight or Daytime only

[34] The Mitchell Report does not recommend that overnight access commence immediately. It recommends Sunday access from 9 am. to 5 pm.

[35] I agree that it is too early to commence unsupervised access on an overnight basis. As pointed out by Ms. Mitchell, all parties, including the children, will need time to adjust to change as there is a need to re-establish trust. In particular, Ms. Brown needs time to learn how to give up control. Her insistence for control is commented on in the Mitchell Report and is reflected in the materials before the court. This need for control is understandable given the unpredictability and uncertainty which has characterized her life for the last 6 years. It is also a natural consequence of living with someone who has substance abuse issues. However, she must get past this if she is sincere in her stated desire that Mr. Brown take a more active role in the lives of his children.

[36] In deciding that it is too early to permit overnight access I am also influenced by the fact that there is very little information before the court with respect to the accommodations which are available for overnight visits. Ms. Brown submits that she requires an assurance that the accommodations are safe and clean, and since Mr. Brown smokes, that they are smoke free. The court requires this assurance as well and it has not been provided.

[37] In her report, Ms. Mitchell states that the Office of the Children’s Lawyer would be open to re-evaluating the situation after the father has had ongoing unsupervised access for the time period of 6 months. It is my recommendation that the parties re-visit the issue of overnight access in 6 months, either directly or with the assistance of the Office of the Children’s Lawyer.

Frequency of Access Visits

[38] I am ordering that the Sunday visits take place from 9 am to 5 pm as recommended in the Mitchell Report. I am also ordering that the visits occur every Sunday, and not every other Sunday as recommended in the report.

[39] In deciding that the visits should take place on a weekly basis I note that Mr. Brown has been limited to only two hour visits with his children every other week for the last two and a half years. He has therefore seen very little of them over a long period of time.

[40] Mr. Brown will require considerable time with his children to re-establish a close bond with them. In my view, a two week interval between visits will not be conducive to re-establishing such a bond.

[41] I fully expect that there will be situations when it is not convenient or in the interests of the children to adhere strictly to this schedule. There will be days, such as Mother’s Day, when it would be unreasonable for Mr. Brown to insist on having an access visit. There will also be days when they may be sick or have other family commitments. It is not my desire to micro-manage the access schedule. It should not be necessary in the circumstances of this case. Clearly, both parties love their children and want what is best for them. They are mature and educated individuals. They are represented by responsible and experienced counsel. I am placing in their hands the responsibility of exercising the necessary flexibility to make this arrangement work. At the very least I expect and I am ordering that any Sunday that the children are unable to visit their father will be replaced with another day i.e. a Saturday or vacation day.

Police Enforcement of Access Order

[42] Mr. Brown has asked that the court make an order providing for police enforcement of the access order made by this court.

[43] Notwithstanding the fact that the interim order provided only very limited access to the father, the information before the court reveals that Ms. Brown has been uncooperative throughout in ensuring that the children attend at the Supervised Access Center in accordance with the order. The Mitchell report indicates that Connor missed 10 visits between October 10, 2010 and March 11, 2012. It appears that failure of Connor to attend the visits on a consistent basis was with the tacit approval of Ms. Brown, with no initiative or effort on her part to assist in scheduling replacement visits. Most disturbingly, it came to my attention that on the Sunday prior to the hearing of this motion, at a time when the parties were bound by an order that no further materials be filed, Ms. Brown chose not to deliver the children to the Supervised Access Centre for their bi-weekly visit. Presumably, this was because she had been informed that Mr. Brown’s parents were visiting from Southern Ontario and he intended to take them to the Centre so they could see their grandchildren. She alleges that the late notice of this visit did not provide her with sufficient time to “prepare” the children for a visit with their grandparents. The children had not seen their grandparents for a significant period of time and it is hard to reconcile how her unilateral decision to deny access can be justified as being in their best interests.

[44] Ms. Brown has been aptly described in the Mitchell Report as having become mistrusting and hyper-vigilant in regards to the safety and care of the children. The report also notes that there are indicators of her inability to trust the work and actions of other professionals as she tussles with following the guidelines and procedures of their systems. Unfortunately, these fears and tendencies have also caused her to disregard the existing court order when she saw fit. In the circumstances I am of the view that a police enforcement order is necessary at this time.

[45] Until such time as the parties may agree otherwise, the transfer of the children will continue to take place at the Supervised Access Centre.

SHOULD THE FUNDS RECEIVED BY MR. BROWN FOR DAMAGES IN RELATION TO THE MOTOR VEHICLE ACCIDENT CLAIM BE PAID INTO COURT FOR FUTURE SUPPORT AND FOR A FUTURE CLAIM BASED ON THE FAMILY LAW ACT

Nature and Background of Award.

[46] Ms. Brown requests the court to make an order that proceeds which Mr. Brown received in relation to the motor vehicle accident claim be paid into court. Her basis for making this request is the following:

a) She and the children are entitled to a portion of the award because Mr. Brown failed in his duty to include a claim on their behalf as dependents; She seeks leave to amend her claim and add this as a claim against Mr. Brown in these proceedings;

b) A portion of this award should be applied to child support;

c) The Omega Report identified Mr. Brown as having a gambling addiction. Also, he has never had such a substantial sum of money and has little control over his spending and the proceeds of the award should therefore be safeguarded to ensure that he can meet his obligations.

[47] Mr. Brown’s motor vehicle occurred on December 4, 2006 when he was injured while a passenger in a friend’s vehicle.

[48] Although counsel were unable to advise the court of the date Mr. Brown’s claim was issued, I will assume it was within the two year limitation date for commencing such actions, which means that the action would have been commenced some time before December 4, 2008.

[49] The decision to commence the action, as well as the decision not to include in the claim a dependants claim on behalf of Ms. Brown and the two children was therefore made at least two years and five months before the parties separated, and while the parties were living together.

[50] Mr. Brown signed the Final Release in relation to the claim on December 16, 2011. The total settlement was in the amount of $658,000 broken down as follows:

Pain and Suffering: $150,000

Past loss income $11,000

Future loss income $300,000

Past and Future Loss of Housekeeping $75,000

Contribution to Costs, HST and Disb. $87,000

Prejudgment Interest $35,000

$658,000

[51] Mr. Brown filed a copy of the trust statement prepared by his lawyer in relation to his injury claim. The statement indicates that approximately one third of the award, or $222.746.57 was deducted from the award and applied to legal fees, leaving Mr. Brown with the net amount of $435,253.43.

[52] Thereafter, the sum of $585 was paid to satisfy an obligation to Ontario Works, the sum of $6,422 was applied to satisfy an obligation to ODSP, and the sum of $6,000 was paid to Legal Aid Ontario, leaving him with approximately $422,000. Following these payments he paid an additional amount of $5000 for chiropractic treatments which his insurer refused to pay and a further sum of $535 to ODSP which reduced the amount of money available to him to less than $417,000.

[53] In Singh v. Singh[^1] Mazza J. listed the criteria for the court’s consideration in exercising its discretion in ordering that property be subject to a security order. These criteria include the following:

a) where a party has a history of dissipation of assets, that is, unable to handle money

b) where the respondent is likely to leave the jurisdiction and become, in effect, an absconding debtor.

c) where the respondent has, in the past, refused to honour a support obligation, whether it came by court order or contract or has refused to provide support at all.

d) where the party has a poor employment history, or has indicated that he or she, will leave their employment.

[54] I note that the Omega report does indicate that Mr. Brown advised that at the time of the interview he walked to the local Casino on almost a daily basis and that he spent about 6 or 7 hours per week playing the slots. However, he claimed that he was not losing money overall. He stated that he believed that he gambles because it gives him a task to do. He also confessed that he believes that he should stay away from the casino because he does not think it is “okay” to go to the casino on a daily basis.

[55] I am not prepared to conclude on the basis of this information that Mr. Brown has a gambling addiction. What I see is a lonely, unemployed man who did not have a drivers licence finding a place to go where he had some company and something to do with his time.

[56] I am not prepared to make an order securing the balance of the funds for the following reasons:

[57] Firstly, there is no evidence that Mr. Brown has a history of dissipating his assets or that he is unable to handle money. His latest Financial Statement, which is dated October 26, 2006 reveals that he has the sum of $362,849 invested in bank accounts.

[58] Secondly, Mr. Brown’s children reside in this province and he is clearly devoted to them. His parents live in Southern Ontario. There is no evidence that Mr. Brown might leave the jurisdiction and become an absconding debtor.

[59] Thirdly, Mr. Brown has never been subject to a support order and therefore he has never been in a position to disregard such an order. He left the matrimonial home with little more than the clothes on his back. He has been unemployed since then and the evidence before me indicates he helped out financially as much as he could.

[60] Fourthly, until his attendance at the Chronic Pain Clinic in the fall of 2009 Mr. Brown was steadily employed or in school throughout his life. The evidence is that he was never terminated from any employment. Following his accident, he continued to work for a period of three years, notwithstanding the fact that he was often in a considerable amount of pain.

[61] In my view, security orders such as the one requested by Ms. Brown should only be made in the most unusual of circumstances, especially so in circumstances such as this where Ms. Brown’s Family Law Act Claim is only a potential claim, and has not yet been heard on its merits.

[62] The claim that the settlement proceeds be paid into court pending the completion of this action is therefore denied.

AMENDING PLEADINGS

[63] Ms. Brown requests an order permitting her to amend her claim to include a claim against Mr. Brown for an amount of money which she believes she and her children should have been entitled to in relation to Mr. Browns personal injury claim. Although Mr. Brown denies that she is entitled to such damages, he is prepared to consent to the amendment of the pleadings, and her entitlement can therefore be determined at trial.

[64] An order is to issue permitting Ms. Brown to amend her pleadings as requested.

CHILD SUPPORT

[65] The parties agree that an order should be made requiring Mr. Brown to pay support. Ms. Brown submits that the order should be based on Mr. Brown’s last full year of employment. Mr. Brown resigned from his last job in September, 2009 so his last full year of employment was 2008. His taxable income for that year was $24,237, and if this approach was adopted, Mr. Brown would be required to pay $364 per month if based on the Child Support Guidelines.

[66] Mr. Brown points out that the settlement documentation indicates that his future loss of earnings was assessed at $300,000. With about one third allocated to legal fees he is left with the net amount of about $200,000 with respect to future lost earnings. He argues that his income should be determined on the basis of a notional 5% return on this $200,000 ($10,000 per annum) plus his CPP income of $9142 annually. Using these amounts, the monthly amount payable is $296 applying the Child Support Guidelines.

[67] I am reluctant to base the payment of support on Mr. Brown’s earnings during his last year of employment. He has not worked for three years and he may not be successful in securing employment considering his physical limitations. In my view, the more reasonable approach is the approach suggested by Mr. Brown, which involves certain and quantifiable amounts, and is a formula which can be considered in future years.

[68] I am ordering that Mr. Brown pay interim child support in the amount of $296 monthly. Mr. Brown received the proceeds of his settlement in January of this year and in the circumstances I am ordering that this obligation is retroactive to January 1, 2012.

[69] I note that in view of its finding that Mr. Brown has suffered a disability, Canada Pension Plan pays the sum of almost $450 monthly for the benefit of the children. This sum is paid to Ms. Brown on a tax free basis.

DISCLOSURE

[70] Ms. Brown claims that Mr. Brown has not been candid, diligent or forthcoming in providing the requisite disclosure. The evidence indicates that this complaint is justified. I note for example that Mr. Brown did not disclose the receipt by him of the personal injury settlement funds in January of this year until such time as Ms. Brown was informed by a third party that Mr. Brown had received a substantial settlement. This was in August, approximately 8 months after he received the settlement funds. There have been other incidents as well in which disclosure was not forthcoming until Mr. Brown was pressed to provide it.

[71] I have not been provided with a list of outstanding undertakings or disclosure items from counsel. I am ordering however that in the future any requests for disclosure be responded to by Mr. Brown within 15 days, failing which Mr. Brown can be held liable for costs.

SETTING THIS ACTION DOWN FOR A TRIAL DATE

[72] A review of the file indicates that a trial management conference was scheduled in this matter on November 8, 2011. There is no apparent reason why the matter cannot proceed to trial at this time. This matter is to be placed on the assignment court list scheduled for December, 2012, at which time a trial date will be scheduled. This is peremptory on both parties, with any requests for adjournments to come before me.

COSTS

[73] If parties cannot agree on costs, they can make written submissions within 15 days of the date this decision is released.

SUMMARY

[74] In summary, I am ordering the following in relation to the motions before me:

a) That Mr. Brown is entitled to exercise unsupervised access every Sunday from 9am to 5pm;

b) That the exchange of the children is to take place at the Supervised Access Centre, unless the parties otherwise agree;

c) That in the event either of the children are not available on a Sunday, Mr. Brown is to be provided with a replacement day when he can exercise such access;

d) That Mr. Brown is entitled to assistance from the police if necessary to enforce this order;

e) That Ms. Brown is entitled to amend her pleadings by adding a claim on her behalf and on behalf of the children against Mr. Brown for Family Law Act based damages in relation to Mr. Brown’s 2006 motor vehicle accident;

f) That Mr. Brown is to pay child support in the sum of $296 per month, retroactive to January 1, 2012, based on an income of $19142 per year;

g) That Mr. Brown is to provide disclosure of all material and relevant financial information upon request, within 15 days, failing which he can be liable to a costs order;

h) That a trial date is to be scheduled at the December, 2012 assignment court, peremptory on both parties, and that any further requests for adjournments are to come before me.

i) That the parties are to agree on costs, and if unable to do so they are to submit written submissions in relation thereto within 15 days.

E.J. Koke J.

Released: November 26, 2012