Court File and Parties
COURT FILE NO.: 44872-10
DATE: 2013-08-30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Anessa Nadia Zamaludeen Ruffudeen-Coutts - Applicant (Responding Party)
AND:
Conrad Michel Coutts - Respondent (Moving Party)
BEFORE: The Honourable Mr. Justice R. D. Reilly
COUNSEL:
Paul D. Amey - Counsel for the Applicant (Responding Party)
Jodi L. Feldman - Counsel for the Respondent (Moving Party)
HEARD: August 21, 2013
JUDGMENT ON A MOTION
[1] The parties were married in April of 2006 and separated in November of 2010. They were divorced on May 15, 2013 by the Honourable Justice Campbell. Their son Ethan was born on May 15, 2009. He is now four years of age
[2] Since their separation in November of 2010, the parties have been involved in a constant state of litigation. From the first order of Mr. Justice Loccoco on December 22, 2010, to the most recent decision of Mr. Justice Sloan in March of 2013, the parties have appeared before eight different judges of the Superior Court (in some cases more than once). While their litigation has dealt with a number of issues related to their separation, it is focused largely on their claims with respect to their son Ethan. They have litigated the issues of custody, access and support. There is some urgency to one of the issues they raise on this motion, that is where Ethan will attend school beginning September 2013. Therefore my reasons will be relatively brief.
[3] The current status quo was effectively set by a ruling of Mr. Justice Sloan dated March 21, 2013 and an addendum dated May 16, 2013. I cannot help but adopt the opening comment of Mr. Justice Sloan in his endorsement. He stated “this case has had a tortuous and likely very expensive journey through the courts so far”. It is to be regretted that the parties, both of whom are well educated, intelligent and otherwise sophisticated, are unable to agree on a parenting plan that would serve Ethan’s best interests. I would note that it is obvious both parents love Ethan and that notwithstanding some of the accusations in the voluminous affidavit evidence before me, both are capable to be appropriate caregivers to Ethan.
[4] Justice Sloan in his endorsement detailed some if the history of this family and the litigation since separation. Such history need not be repeated at this time. I would note that a parenting assessor, Ms. Lourdes Geraldo, has been appointed to report on the family’s situation. Ms. Geraldo is well qualified to provide an objective assessment that undoubtedly will be of great assistance to the court and hopefully to the parents. I would emphasize that her report will not be determinative of the issues of custody, principal residence or Ethan’s schooling. Those determinations will be made by the court. However, appropriate consideration will obviously be given to her objective assessment.
[5] A Settlement Conference has been arranged before Mr. Justice Campbell on the 16th of September. It is hoped by that time Ms. Geraldo’s report will be available. It is also hoped that by that time the parties will have agreed on such things as the value of certain matrimonial assets which have been another source of disagreement. Both parties seek greater certainty in their lives and regrettably it appears that such certainty will only occur after a contested trial when a judge is able to make final orders as to custody, principal residence and other related matters. I am therefore directing that there be an expedited trial in this matter. Hopefully Justice Campbell, with the assistance of the Trial Coordinator, at the Settlement Conference can set an appropriate date for the trial.
[6] I now return to Mr. Justice Sloan’s orders of March 21 and May 16, 2013. Summarizing that order, it provided for shared custody of Ethan on a week about basis with the exchange to take place Friday afternoon at 5:30 p.m. unless otherwise agreed upon by the parties. Justice Sloan’s order also provided for mother to make child support payments to the father without prejudice to either party to argue the issue of child support at trial. The orders also provided for mother to continue to pay the Montessori school expense until further order of the court. I direct that the orders of Mr. Justice Sloan shall continue in effect until such time as there is a further court order.
[7] I now turn to the specific claims brought by the respondent/father on this motion.
Ethan’s Schooling
[8] There is significant disagreement between the parties as to where Ethan should be enrolled in school for the fall term in 2013. Father pleads that Ethan should be enrolled in the Sunshine Montessori School for the school year 2013/2014 where he has been a student for the last year and half. Mother pleads that Ethan should be enrolled in the J. W. Gerth Public School near her current residence. Having carefully considered the submissions of counsel and the material filed I conclude that Ethan’s best interests will be served by his enrolment in the Sunshine Montessori School. I would emphasise that both schools seem to provide an excellent learning environment for a child of Ethan’s age. Ethan has done well at the Montessori school and I am sure he would do well at J. W. Gerth Public school as well. However, pending resolution of the issues at trial, I conclude that Ethan’s best interests are served by his continuing as a student in the Montessori school. Ethan is going through significant changes in his life. Both parents have changed their residences and they may change them again in the near future. Continuity in his schooling may be a significant factor in Ethan’s young life. I am therefore directing that he be enrolled at least for the fall term in the Sunshine Montessori School. I also direct that the applicant/mother will be responsible for all school fees (I will take this factor, at least in part, into account in assessing whether on an interim basis the applicant/wife should pay spousal support to the respondent/husband on an interim basis). I now turn to the claim for spousal support.
Spousal Support
[9] The respondent/husband claims on an interim basis spousal support from the applicant wife. Their current incomes are arguably quite different. The applicant/wife earns in the range of $145,000 per year. The respondent/husband earns in the $84,000 range per year. This was a marriage of relatively brief duration (4.5 years). On an interim basis I conclude that the applicant/husband is not entitled to compensatory support to address the economic advantages and disadvantages to the spouses flowing from the marriage. Nor is there a basis for non compensatory dependency based support to address the disparity between the parties’ needs and means upon the marriage breakdown. I therefore reject the respondent/husband’s claim for spousal support on an interim basis without prejudice to his right to pursue such claim should he choose to do so at trial. I do give some slight weight to the fact that I have directed the applicant/wife to absorb on an interim basis the costs of Ethan’s schooling at the Montessori school, which school was the respondent/husband’s choice.
The Respondent/Husband’s Claim for Expert Fees
[10] The respondent/husband pleads that the applicant/wife pay expenses to him of $2,500.00 so that he may retain an expert to critique the expert report obtained by the applicant/wife. I reject such claim. Either party may retain an expert to prepare a report of give evidence at trial with respect to any of the issue between the parties. The responsibility of retaining such expert and payment of the fees charged by the expert is strictly the responsibility of the parties. If this matter goes to trial a claim may be made by either of the parties with respect to the issue of costs at the end of the trial. In the circumstances of this case it is not an issue to be determined by an interim order. There is no need to “level the playing field” by making such an order.
[11] It would appear that the parties’ principal problem seems to be one of communication between themselves. As noted above I believe they are both loving, nurturing and competent parents. It is regrettable that they cannot communicate and agree upon the best interests of their son Ethan. An example might be father’s trip with Ethan to Calgary when Ethan was in his care and custody. The applicant/mother claims that this was in violation of the order of Loccoco J. of December 22, 2010 and at least at one point sought to find the respondent/father in contempt of that order. The trip in my view was a reasonable one and should have resulted in full communication between father and mother about father’s travel plans. Mother was upset (perhaps understandably so) when she found that father had left the province with Ethan. The applicant/mother has also complained about father’s lack of cooperation in facilitating a trip she had planned with Ethan south of the border. I see nothing wrong with such excursions. There is not the slightest suggestion that either mother or father had any plans to “kidnap” Ethan. I would therefore direct that not withstanding the order of Loccoco J. of December 22, 2010, either parent may travel with Ethan outside the province of Ontario on reasonable vacation trips and that each parent will cooperate with the other with respect to a passport for Ethan and any letters of permission that may be necessary for Ethan to travel with either of his parents outside of Ontario.
[12] What both parents must realize is that though they are no longer married they are and always will be a mother and father to Ethan. I trust they both feel blessed to have him as their son, and he is fortunate to have each of them as his mother and father. They are going to have to learn to communicate and cooperate if they wish to co-parent Ethan in the many years ahead.
[13] For the above brief reasons, I direct:
That the judgements of Sloan J. dated March 21, 2013 and May 16, 2013 shall remain in full force and effect;
Ethan shall be enrolled in the Sunshine Montessori School for the fall term 2013. The applicant/mother shall be fully responsible for all school fees for such enrolment;
There shall be no order for temporary or interim spousal support to be paid by the applicant/wife to the respondent/husband pending any further order of the court. This is without prejudice to the respondent/husband’s claim for such spousal support at trial.
The respondent/husband’s claim that the applicant/wife pay expenses so that he may retain his own expert to critique the report of the applicant/wife’s is dismissed.
The court declines to appoint an appraiser to conduct a valuation of the parties’ contents of the former matrimonial home such request is rejected at this time. The parties should be able to agree upon such valuation. If they cannot, a trial judge can appoint an appraiser.
Any adjustments to child support, retroactive support, section 7 expenses and any overpayments or underpayments shall be determined by a trial judge if the parties cannot agree.
If a settlement conference cannot resolve these issues I direct an expedited trial. The settlement conference judge can coordinate a trial date with the Trial Coordinator at which time these sensitive issues can and will be determined by a trial judge. The parties must understand that if they truly wish to jointly parent Ethan they should come to a resolution of these issues. Otherwise a trial judge will then determine issues of custody, principal residence and principal decision maker with respect to such issues as Ethan’s schooling. I cannot imagine anyone more capable of deciding the issues that directly impact upon Ethan than his mother and father in this case. I would sincerely hope they would put aside their personal differences and focus instead on his best interests in resolving these issues as opposed to leaving it to a court to determine those same issues.
[14] If the parties cannot agree on the issue of costs, they may make brief written submissions directed to me in chambers in Kitchener.
R. D. Reilly J.
Date: August 30, 2013