ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-7995M
DATE: 20130607

BETWEEN:

I.S.S.

Erroll G. Treslan, for the Applicant

Applicant

• and -

R.K.D.

Carol A. Allen, for the Respondent

Respondent

HEARD: June 6, 2013

REASONS FOR DECISION ON MOTION

Conlan J.

Introduction

[1] Litigation is to these parties like honey is to bees. They love it. Or so it seems.

[2] Two young children prevent the Court from sitting back and watching the battle carry on. The parties ought to spend more time getting ready for trial and less time worrying about endless temporary motions.

[3] The parties have two children – K. (11 years old, born […] 2001) and I. (8 years old, born […] 2005).

[4] The parties were married on July 4, 1999 and separated in February 2013.

[5] Both parties are graduates of Indian medical schools. The Applicant father, Mr. S., is employed as an oncologist at the Hospital in Owen Sound, Ontario. The Respondent mother, Ms. D., is not licensed as a medical doctor in Canada or the Unites States of America.

[6] Both parties are U.S. citizens. Mr. S. was born in Punjab. Ms. D. was born in the United States.

[7] The parties have a home in Springboro, Ohio. Once he obtained employment in Owen Sound in 2011, Mr. S. moved to this area. Ms. D. and the two children moved to this area in the summer of 2012, although Ms. D. returned to Ohio to complete preparations for the family’s permanent relocation to Grey County.

[8] By Order of Herold J. at a prior court attendance, various motions brought by the parties were combined into one long motion heard by me in Owen Sound on June 6, 2013. I am grateful to counsel for their helpful materials filed, including facta, which served to synthesize the voluminous affidavit materials in the Continuing Record. I reserved my decision.

The Issues, Positions of the Parties and Analysis

Custody and Access

[9] Mr. S. is content with the current status quo as reflected at paragraphs 5 through 7 of the Temporary Order of Price J. made on February 15, 2013.

5. The children; namely, K.S.S. born […], 2001 and I.K.S. born […], 2005 shall continue to reside at 465 4th Avenue E., Owen Sound pending further Order of this Court.

6. The Applicant, Dr. S. shall, on a temporary basis, have care of the children; namely, K.S.S. born […], 2001 and I.K.S. born […], 2005 from Monday morning at the commencement of school to Friday at the conclusion of school, subject to the exceptions stated here. The Respondent, Ms. D., shall, provided she has complied with paragraph 4. above, shall have the children; namely K.S.S. born […], 2001 and I.K.S. born […], 2005 in her care every Tuesday and Thursday from the conclusion of school until 7 p.m.

7. Beginning Friday, February 22, 2013, the Respondent, Ms. D. shall, provided she has complied with paragraph 4. above, shall have the children; namely, K.S.S. born […], 2001 and I.K.S. born […], 2005 in her care on alternate weekends from Friday at the conclusion of school until Monday at the commencement of school. Pick ups and drop offs shall be at the children’s school, unless there is no school, in which case the pick up and/or drop off shall be at 465 4th Avenue East, Owen Sound.

[10] Ms. D. proposes that the status quo be varied to grant her sole custody of the children or, alternatively, to provide for a shared parenting regime.

[11] Any change to the current situation must be in the best interests of the children. In making that determination, I shall consider subsections 24(2) through (4) of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as amended (“CLRA”).

[12] The difficulty is that there are numerous alleged facts that are in dispute and which are directly relevant to the factors outlined in the legislation. As just one example, Ms. D alleges that Mr. S. has been abusive in the past. Whether Mr. S. has in fact been abusive in the past is relevant as per subsection 24(4) CLRA. But Mr. S. adamantly denies that abuse. I disagree with counsel for Ms. D. that a fair reading of Mr. S.’s affidavit material suggests that he admits having assaulted Ms. D. He does not.

[13] In this particular case, on the affidavit evidence before me, I am unable to resolve the conflict and determine whether in fact Mr. S. has been abusive or not. I would need to hear viva voce testimony in that regard so that I can better assess the respective credibility and reliability of the parties. Again, that is just one example.

[14] Further, I am loathe to disturb the status quo and effectively pre-empt the involvement of the Office of the Children’s Lawyer, both counsel and the clinical investigator, when that involvement will provide a more fulsome evidentiary foundation for determining the best interests of the children in terms of custody and access.

[15] For those two primary reasons, I am not satisfied on a balance of probabilities that a change in the current custody and access regime would, at this time, be in the best interests of the children. I agree with Mr. S. The status quo shall remain on a temporary basis except as provided immediately below regarding summer 2013 access.

[16] With regard to summer 2013 access, Mr. S. proposes that the children be with him or at camp that he intends to register them for during six weeks of the summer; the other four weeks the children would be with Ms. D.; and no parent would have the children for more than two weeks at a time.

[17] Ms. D. proposes that the months of July and August be split evenly between the parties.

[18] I agree with Ms. D. For the approximately ten-week summer period commencing July 1, 2013, the children shall be with Mr. S. for five weeks and with Ms. D. for five weeks. Whether Mr. S. wishes to have the children attend camp for two of his five weeks is entirely up to Mr. S. No parent shall have the children for more than two weeks at a time during the summer of 2013. Which weeks are devoted to which parent shall be resolved by mutual agreement. If the parties do not behave like grown-ups and force the Court to decide that for them, then serious costs consequences will befall the non-cooperative parent.

[19] Finally, Mr. S. wants expanded access with the children on June 15, 2013 – K.’s birthday. Ms. D. opposes that because of specific plans that she has that weekend. The request by Mr. S. is denied. The status quo shall remain.

Spousal Support

[20] Ms. D.’s entitlement to spousal support is not in dispute. The only issue is quantum.

[21] Skarica J. made a Temporary Order that Mr. S. pay $5,000.00 monthly.

[22] Mr. S. suggests that the said Order continue. That submission depends on the Court accepting the argument that Mr. S.’s obligation to pay about $2,000.00 per month to carry the home in Ohio, as ordered by a Court in Ohio, be considered as spousal support. Otherwise, the amount would be about $7,720.00 monthly (using $568,443.00 as the income for Mr. S., nil for Ms. D. and the mid-range figure under the Spousal Support Advisory Guidelines).

[23] Ms. D. suggests that $5,000.00 per month is woefully low; that close to $10,000.00 monthly is appropriate (using $595,000.00 as the income for Mr. S., nil for Ms. D. and the high end of the range provided by the Guidelines).

[24] There is no question that I may consider the effect of the Ohio Order in determining the quantum of spousal support. The jurisprudence is clear that expenses incurred by the spousal support payee which the payor would normally be responsible for contributing to should be taken in to account by the Court in determining the payee’s need for spousal support: Bradley v. Bradley, 2000 22513 (ON SC), [2000] O.J. No. 1734 (S.C.J.) and Cantwell v. Cantwell, [2000] O.J. No. 4439 (S.C.J.). There is no reason why the same analysis would not apply equally to a situation where the spousal support payor (Mr. S.) is incurring expenses (for the Ohio home) which the payee (Ms. D.) would normally be responsible for contributing to.

[25] Given the vast differences in the respective incomes of the parties, however, I will elect not to reduce the spousal support payable by Mr. S. by the full $2,000.00 per month that he is paying to carry the Ohio property. I will reduce it by $1,000.00 monthly.

[26] The appropriate income figure to use for Mr. S. is $570,000.00 as that was his actual gross income for 2012 and more reliable than the $595,000.00 estimate for 2013.

[27] Considering the factors underlying a spousal support order and the objectives of the same as outlined in subsections 15.2(4) and (6) of the Divorce Act, R.S.C. 1985, Chapter 3, as amended, the appropriate figure to use is the mid-range amount utilizing the Spousal Support Advisory Guidelines.

[28] As such, I Order that Mr. S. shall pay to Ms. D. spousal support in the amount of $6,720.00 ($7,720.00 as calculated by Mr. S. less $1,000.00 to account for Mr. S.’s expenses to carry the Ohio property) commencing July 1, 2013 and on the first day of each month thereafter. A Support Deduction Order shall issue.

Travel with the Children

[29] Price J.’s Temporary Order made on February 15, 2013 includes this restriction at paragraph 2.

2. Pending further Order of this Court, the children; namely K.S.S. born […], 2001 and I.K.S. born […], 2005 shall not be removed by either the Applicant, Dr. I.S.S. or the Respondent Ms R.K.D. or any other person, from Grey County.

[30] Mr. S. wants to be able to travel within Canada with the children, and he concedes that Ms. D. be able to do the same. Mr. S. opposes Ms. D. being permitted to travel to the United States with the children. If she is permitted to do so, Mr. S. wants to be able to take the children to India.

[31] Ms. D. wants to be able to travel to the United States with the children, particularly Ohio and Arizona.

[32] A compromised position is appropriate. The parties shall be permitted to travel within Canada with the children. The parties shall be permitted to travel with the children to Ohio. That is the extent of the permission granted on a temporary basis. The Order of Justice Price is varied accordingly.

[33] Travel within Canada is entirely appropriate. The children have a strong connection to Ohio. I am not satisfied that permitting travel otherwise, whether in the United States outside of Ohio or India, is necessary in the best interests of the children. Of course, travel within the United States directly to and from Ohio is permitted.

[34] I am confident that Ms. D. will not attempt to abscond from the jurisdiction of this Court and permanently remove the children to Ohio. If she attempts such folly, she will be unsuccessful and effectively lose any hope of future custody of or access with the children.

[35] While travelling with the children, the parent shall have personal possession of their passports and return those passports, forthwith, to his or her counsel upon return to Grey County.

[36] While travelling with the children, the parent shall have access to any games or personal possessions that the children wish to take with them and return those items, forthwith, to where they were removed from upon return to Grey County.

[37] While travelling with the children, the parent shall allow the children to telephone the other parent as often and at whatever times the children wish to do so.

The Sprint Account

[38] Mr. S. alleges that Ms. D. has spent about $3,000.00 on his Sprint cellular telephone account since the date of separation. He wants that money repaid. And he wants the account closed.

[39] Ms. D. states that the account is already closed.

[40] I make no Order regarding repayment. That is a “small ticket” item that can be worked out at trial if it cannot be resolved.

[41] I Order that Ms. D. shall, forthwith, provide any information necessary to Mr. S., including the passcode for the account, so that Mr. S. may close the account without delay (in the event that it is not already closed). In the meantime, Ms. D. shall not use the account.

Disclosure

[42] Each party seeks financial disclosure from the other.

[43] I will make the same Order against both parties. Each party shall, without delay, provide the other with the following for each and every bank, credit union, trust company or other financial institution account, anywhere in the world, in his or her name whether alone or jointly with someone else, between February 1, 2012 (one year before separation) and today:

(i) the name and contact particulars of the institution which holds the account;

(ii) the account number;

(iii) the name(s) of the person(s) on the account, and

(iv) the dates that the account was opened and closed (if closed).

[44] Further information, such as statements of account, can be dealt with by way of directions and authorizations and/or questioning and undertakings.

[45] On another note, Mr. S. shall, forthwith, provide disclosure of his on-call employment schedule for as long in to the future as it may be currently set.

Conclusion

[46] A Temporary Order shall issue in accordance with these Reasons for Decision. Otherwise, all relief sought by each party in every motion filed with the Court prior to June 6, 2013 is dismissed.

[47] Except as expressly varied by these Reasons, all prior Orders made in this Court proceeding remain in full force and effect.

[48] The balance of success on this long motion is in favour of Mr. S. If the parties cannot settle the matter of costs, then counsel shall contact the Trial Coordinator in Owen Sound to schedule a brief court attendance before me to address that issue. I shall consider the issue of costs resolved between the parties if the Trial Coordinator is not contacted by counsel within two weeks of the release of these Reasons.

Conlan J.

Released: June 7, 2013