ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: D15213/97
DATE: 2013-07-05
BETWEEN:
David Michael Kassay
Applicant
Robert E. Corbett, for the Applicant
– and –
Jacqueline Jolan Roch
Respondent
In Person
HEARD: June 10, 11, and 12, 2013
The honourable justice b. h. matheson
REASONS FOR JUDGMENT
[1] The parties were married on July 17, 1995. They separated on July 7, 1997, and were divorced on August 30, 2000.
[2] There was one child born of this union, Kyle Darren Kassay-Roch, on April 18, 1997.
[3] Justice Quinn, in an Order dated August 30, 2000, gave custody of Kyle to the mother.
[4] Mr. Kassay brought a motion to change on September 6, 2011. He wanted sole custody of Kyle, with access to be arranged directly by the respondent with Kyle. He also wanted child support and s. 7 expenses for Kyle.
[5] Kyle is now 16. He is six-foot-four and weighs 320 pounds. From the evidence that was produced, he is a very good football player.
[6] There have been other matters brought before the court and much time has elapsed since the motion to vary was originally started.
[7] The Office of the Children’s Lawyer was appointed. Mr. Ron Marion was appointed to be that lawyer. Mr. Lou Coppola was hired to assist Mr. Marion. He filed a very impressive curriculum vitae as Exhibit No. 5.
[8] At the start, Kyle resided with his mother in Hamilton. He was attending St. Thomas More Catholic Secondary School in that city.
[9] At some time Kyle moved to Crystal Beach to be with his father, although he would still attend St. Thomas More Secondary School in Hamilton.
[10] By order of Justice Walters dated September 9, 2011, while Kyle was in the custody of the father; he was still attending St. Thomas More Secondary School in Hamilton. It was also ordered that Kyle attend Pathstone Mental Health to obtain some counselling.
[11] Justice Maddalena, by order of January 30, 2012, ordered that Kyle shall continue to reside with the father and he will attend Lakeshore Catholic Secondary School in Port Colborne. The counselling regime was to continue. The mother by this order was at liberty to contact Kyle by email, telephone or text messages. Kyle could contact his mother without interference by the father.
[12] The main issue is whether the mother should regain custody of Kyle or whether the father should have continued custody. Also, there is a claim for child support and s. 7 expenses if the custody continues with the father.
[13] Both the parents have, in my opinion, taken very hard and fast positions with respect to their son. There is a total lack of communication between them. The police have been called by the father complaining about the conduct of the mother. The mother has taken a position that the father is totally to blame for the present situation.
[14] Ms. Roch states that Kyle is prevented from seeing her because of the conduct of Mr. Kassay. Their positions were diametrically opposite. The text messages of the Respondent to her son are least objectionable. I believe that they have been a major factor in the son not wishing to have time with his mother. This conduct must cease.
[15] Mr. Coppola gave evidence of his talking with Kyle and others. He formed the opinion that Kyle wants to remain with his father and attend Lakeshore Catholic Secondary School. There was nothing in his evidence that would indicate that the father or anyone else was preventing Kyle from seeing his mother. Kyle is 16 years of age and at that age his wishes should be given sufficient weight.
[16] In my opinion, the mother is not able to accept reality and that by texting her son, with some totally uncalled for messages, is only aggravating the situation. Kyle should get more therapy and should be assisted by the mother and the father, who should act in a non-confrontational manner.
[17] Therefore, I am finding that there be a final order that custody of Kyle be granted to the father, David Michael Kassay. Access of the mother shall be allowed taking into account the concerns of Kyle.
[18] The father is asking for child support. He had an income of $42,186.80 for 2012, and $37,993.08 for 2011.
[19] The mother did not file full financial documents as she was ordered to. She stated that she made $44,886.00 in 2012, $50,048.11 in 2011 and $20,324.00 in 2010. She states that she has been on employment insurance for a period of time, after she was laid off from her work as a salesperson with a car dealer. Her last employment insurance payment was on May 25, 2013.
[20] I would order the respondent to pay child support, but do not have enough information as to her financial position. If the parties cannot come to agreement as to the amount of child support, I may be spoken to.
[21] If the parties are unable to agree on costs, I may be spoken to.
Matheson, J.
Date: July 5, 2013
COURT FILE NO.: D15213/97
DATE: 2013-07-05
ONTARIO
SUPERIOR COURT OF JUSTICE
David Michael Kassay
Applicant
– and –
Jacqueline Jolan Roch
Respondent
REASONS FOR JUDGMENT
Matheson, J.
Released: July 5, 2013