COURT FILE AND PARTIES
COURT FILE NO.: FS-10-356028
DATE: 20121204
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: C.Y., Applicant
AND:
J.N., Respondent
BEFORE: Czutrin J.
COUNSEL: Linda Tan , for the Applicant
Respondent – No Response
HEARD: November 20, 2012
ENDORSEMENT
[ 1 ] The Applicant, father’s counsel renews her request on his behalf to sever the granting of the divorce from corollary claims.
[ 2 ] On December 23, 2009 the Applicant commenced a Divorce Application. He sought access to the parties’ two children born […], 2004 and […], 2006.
[ 3 ] The Application asserted the following:
a. As a result of an argument between the parties, the Applicant was arrested and pled guilty to assault.
b. He had difficulty in seeing his children.
c. The Respondent mother is physically and mentally disabled and is living on ODSP.
[ 4 ] The Respondent was served by the Applicant (he did the service) contrary to the Rules on February 6, 2010.
[ 5 ] On March 9, 2010, counsel served a Notice of Case Conference on the Respondent for a March 29, 2010 case conference date but the Respondent did not appear.
[ 6 ] On July 10, 2010, the Applicant (in person) again served the Respondent with a Notice of Motion returnable for July 20, 2010.
[ 7 ] The Applicant filed an affidavit dated June 18, 2010 in support of his request for access to his children.
[ 8 ] Contrary to the facts set out in his Application, while he concedes being arrested for assault on March 31, 2007, the Crown withdrew the charges but he became “seriously depressed since.” “I am unable to function as a normal person every time I visit my children as I am worried about (the Respondent) may call the police again”. In his Application he asserted “As a result of an argument between the parties, the Applicant was arrested and pled guilty to assault.”
[ 9 ] Apparently the motion did not proceed because his counsel had other motions.
[ 10 ] The Applicant’s 35.1 affidavit in support of his claim for access is dated July 8, 2010.
[ 11 ] Paragraphs 6 and 7 all indicate “none” as to child protection issues; criminal charges pending; or being found guilty in the past.
[ 12 ] Paragraph 8 also says “none” as the issue of violence.
[ 13 ] In Paragraph 8(d) he discloses seeing a psychiatrist bi-weekly and a plan to return to work once his health improves.
[ 14 ] He states that his parents visit the children twice weekly.
[ 15 ] He brings a new motion returnable October 21, 2010, seeking access and wanting to the see the children at the Respondent’s residence and other locations.
[ 16 ] On October 21, 2010, Goodman J. considered the motion.
[ 17 ] In her endorsement of that date Goodman J. noted: “I have serious concerns about ordering access of any duration outside of Ms. N.’s (mother) residence …”
[ 18 ] She also noted that in one place in the file (the father) indicated that he pleaded guilty to assault and spent 20 days in custody. In another place “…. charge(s) were withdrawn”.
[ 19 ] Goodman J. then adjourned the motion to November 10, 2010 to file further and better evidence.
[ 20 ] Herman J. considered the motion and I note that she was advised by father’s counsel that mother does not object.
[ 21 ] There was a letter from the mother about the different access proposal.
[ 22 ] The motion was adjourned again for further evidence.
[ 23 ] On August 26, 2011, I considered the motion. I too was concerned, as were my colleagues, and referred the matter to the Office of the Children’s Lawyers (“OCL”).
[ 24 ] In the comments section of the O.C.L. standard order area I made reference to criminal charges. I specifically mentioned mother’s failure to file an Answer and that the mother “is unlikely to complete questionnaire but the court needs assistance.” I endorsed that to consider the request to sever divorce from corollary issues I would require a Financial Statement and evidence to satisfy s. 11 (b) of the Divorce Act .
[ 25 ] My August 26, 2011 endorsement, was to be attached to the O.C.L. order, and it included the likelihood of mother not completing the questionnaire and “domestic violence” (assault?).
[ 26 ] I adjourned the motion to October 28, 2011 to hear from the OCL.
[ 27 ] In a letter to the court dated October 17, 2011; the OCL advised that “we have been unable to proceed with processing request because parties did not complete intake forms”.
[ 28 ] On June 8, 2911, I referred the matter to the Children’s Aid Society of Toronto (“CAST”).
[ 29 ] On September 21, 2012 CAST wrote to Applicant’s counsel.
[ 30 ] The letter signed by an intake worker and supervisor included:
“… the father we understand … is concerned about the children’s wellbeing in the mother’s care should he no longer be in a position to provide ongoing, daily instrumental and other support, which is mostly outside the home. We have met with the mother, father, and the children (individually). Without the authorization of the mother one cannot provide any specific details or information about her circumstances. The Society will work with the family to ensure the children’s needs are met in the care of the mother and in the absence of the father, should he decide to re-locate to another jurisdiction.”
[ 31 ] This letter was provided as part of the revised request to grant the divorce and to sever the corollary issues, including father’s claims of access.
[ 32 ] The Applicant has filed a Financial Statement to show his income on Social Assistance (total per annum ($12,542). For two children his support obligation would be $165 per month.
[ 33 ] ODSP appears to be his source of income.
[ 34 ] I remain in the dark about parenting issues and neither the CAST information on the disappointing OCL response allows me any comfort.
[ 35 ] While s. 11(b) refers to “reasonable arrangements … for the support of … children, rule 12(6) also speaks to when cases may be severed.”
[ 36 ] If the divorce is granted, I know there will be no consideration of parenting issues or a court order in place and no support in place.
[ 37 ] The Respondent wrote a letter to the court dated October 22, 1911. The letter is in English.
[ 38 ] The letter refers to the father interests to return to China. She suggests that she suffers from “a degenerative and chronic nervous disorder which affects my ability to work; at present, I walk with some difficulty with the aid of walker. It s this disorder which prevents me from attending the court in person”.
[ 39 ] She advises that her husband’s “help is essential to the wellbeing of our children”. She also advise that “my husband provide some measure of financial support to his children should he ever be in a position to so at present, he depends entirely on Social Assistance although he remains hopeful of obtaining employment as a computer programmer either here or in China. I leave to the court’s discretion the question of the level of financial assistance that might be appropriate”.
[ 40 ] She also advises that once a divorce is granted “he will return to China with the (plan of) remarrying”.
[ 41 ] I require from CAST information about criminal charges and outcome and some confirmation of the source of the letter from the mother.
[ 42 ] I was hopeful that the OCL would provide assistance so that I might be satisfied on issues of the Divorce Act and the children’s best interests based on conflicting evidence.
[ 43 ] If the mother’s health interferes with her ability to respond to this court she needs assistance. If there are language barriers she needs assistance.
[ 44 ] The court cannot be satisfied given the circumstances that satisfactory arrangement are in place. While it is not my desire to prolong, delay or create issues for the parties and their children I require from the Applicant his position on support and confirmation from the Society that there are no issues that this court needs to address.
Czutrin J.
Released: December 4, 2012