Court File and Parties
COURT FILE NO.: FC-13-056
DATE: 20130830
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: PAVEL KOCIAN, Applicant
AND
JENNIFER KOCIAN, Respondent
BEFORE: Honourable Justice Martin James
COUNSEL:
Applicant is self-represented
Audra Bennett, for the Respondent
HEARD: August 29, 2013
ENDORSEMENT
[1] The Respondent seeks the relief set out in her Notice of Motion at tab 11, Volume II of the Continuing Record.
[2] The Applicant seeks the relief set out in his Notice of Motion at tab 5, volume II of the Continuing Record.
[3] I will deal with the Respondent’s requests first.
Appointment of OCL
[4] The Applicant initially opposed appointing a lawyer from the panel maintained by the Office of the Children’s Lawyer (the “OCL”) to interview the children and obtain their views independently of the parents. During the course of the hearing he changed his mind and said he would consent. He is aware of the need to complete an intake form and that the completed form needs to be delivered promptly to the Respondent’s counsel, Ms. Bennett, so the required documentation can be submitted within the required time limit.
Severing the Divorce From the Other Issues
[5] The Respondent requests severance of the divorce from the other issues. She says the Applicant clings to the hope of reconciliation. The Respondent hopes a divorce judgment will serve to reinforce to the Applicant that their relationship is over. There are two reasons that suggest to me this request is premature.
[6] Firstly, at this time reasonable arrangements for child support are not in place although child support will be part of the Order arising from this Endorsement. Satisfactory child support arrangements are an essential aspect of granting a divorce. I acknowledge this issue is more significant when the spouse seeking the divorce is the defaulting support payer.
[7] Secondly, there is no authority to authorize the sale of a matrimonial home under s. 10 of the Family Law Act, R.S.O. 1990, c. F.3 [“FLA”], unless the parties are spouses. The Respondent wishes to compel the sale of the home before more expenses accumulate. The Applicant thinks he should be granted additional time to purchase the Respondent’s half interest in circumstances where he has not demonstrated the financial capacity to accomplish this. A divorce judgment would terminate the court’s jurisdiction to control the sale process.
[8] In my view, because child support payments are not yet underway and the Respondent seeks to sell the matrimonial home under the FLA rather than the Partition Act, R.S.O. 1990, c. P.4, as amended, the request to sever the divorce should not be granted at this time.
Variation of Existing Access Order
[9] There is an existing temporary access Order granted by Sheffield J. in January, 2013 permitting the Applicant to have access every Wednesday from 4:00 p.m. to 7:00 p.m., every Saturday from 10:00 a.m. to 6:00 p.m. and each day via video phone at 6:00 p.m. for up to 10 minutes. The Respondent says the Applicant is placing stress on Gabriela, 5 years old, by asking her inappropriate questions, and making inappropriate statements as well as making access exchanges difficult, all of which is detailed in the affidavits. At the same time the Applicant is seeking more access, including overnight access. The Applicant says he understands the importance of not burdening the children with adult concerns but I’m not sure his actions reflect a true understanding of the importance of protecting the children from the parties’ relationship issues. At the same time it is common and sometimes unfair for the custodial parent to blame a child’s behaviour changes or difficulties on the actions of the non-custodial parent.
[10] Supervised access is a highly-controlled and artificial environment. It is not the most desirable setting in which to exercise access visits. Supervised access would also likely have the effect of reducing the time the Applicant actually spends with the children.
[11] It is very difficult to ascertain the accuracy of allegations based on affidavit evidence alone. Judges are reluctant to alter temporary access arrangements in the absence of clear evidence that there is a material change of circumstances that affects the best interests of the children. I am not persuaded that access arrangements should be altered to increase the access as requested by the Applicant or to require the Applicant’s access to be supervised as requested by the Respondent.
Partition and Sale
[12] The matrimonial home, which is located at 5431 Cuddy Street, Osgoode, Ontario, is jointly owned. The Applicant continues to live in the matrimonial home while the Respondent and the parties’ two daughters have resided with the Respondent’s mother since July 2012. The Respondent made the mortgage payments until April 2013 and has kept the house insured. The Applicant has been paying the mortgage payment since April but the mortgage may now be in arrears. The Respondent says the realty taxes for 2013 have not been paid.
[13] The Applicant makes $24,000 per year. He has not been paying child support. He says he wants to buy the house when he gets a better job. The Applicant’s desire to continue residing in the matrimonial home until some indefinite time in the future is unrealistic.
[14] This is a situation where the equity in the property may continue to erode and the home ought to be sold prior to trial. There is a real danger that further delay could result in a negative value for the property when on-going expenses are taken into account.
[15] If there are surplus funds after the sale has been completed, the money should be held pending trial or agreement between the parties.
Child Support
[16] The Applicant has not paid child support since separation. He says he has given cash to the Respondent and that he is currently making the mortgage payments. He said that giving money to the Respondent for child support means he is funding the Respondent’s legal expenses. Another view is that his unreasonable positions on the issues have increased the Respondent’s legal costs. The payment of child support should be given a high priority.
[17] He makes $24,000.00 per year which translates into monthly payments for two children of $359.00.
[18] Payment of child support shall commence effective September 1, 2013.
The Applicant’s Claim for Greater Access
[19] For the reasons given above, I am not prepared to alter the existing access arrangements.
Return of Passport
[20] The Applicant has not provided any reasons why he needs his passport at this time other than he would like to have it returned to him. I see no reason to alter the existing situation respecting his passport.
Disposition
[21] An order for the appointment of the OCL shall issue. The Applicant is ordered to complete the required intake form and deliver it to counsel for the Applicant immediately.
[22] As indicated above, I am not prepared to sever the divorce from the other issues at this time.
[23] An order shall issue requiring the Applicant to vacate the matrimonial home as soon as possible, but in any event not later than October 31, 2013. The Applicant shall deliver all keys to the home in his possession to the Resondent’s counsel upon vacating the home.
[24] He shall be responsible for keeping the mortgage payments up to date until he has vacated and delivered all keys to the Respondent’s counsel. Once he vacates the home, the mortgage payments shall be paid equally by the parties. The Applicant’s share of the monthly mortgage payment after he has moved out shall be delivered to the lawyer for the Respondent at least 5 days before the date the payment is due.
[25] The Applicant shall leave the house in a clean and tidy condition.
[26] The parties shall consult via the Respondent’s counsel respecting disposition of the contents of the home.
[27] The home is to be listed for sale. The parties shall consult respecting the listing price and the selling price. The Respondent shall select the listing real estate broker.
[28] The requirement for the Applicant to sign the listing agreement, agreement of purchase and sale, and any closing documents is dispensed with. The Respondent shall have control of the sale process.
[29] Subject to the requirement to consult, the Respondent shall be authorized to determine the selling price of the home.
[30] An order will issue prohibiting both parties from making disparaging comments about each other or discussing relationship issues or legal matters in the presence of the children.
[31] On the issue of legal costs, although the Respondent has been partly rather than completely successful, my view is that the Respondent is entitled to recover a portion of her costs of the motion. The Applicant shall pay costs of the motion to the Respondent which are fixed in the amount of $1,000 plus H.S.T., payable forthwith.
James J.
Date: September 3, 2013
COURT FILE NO.: FC-13-056
DATE: 20130830
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: PAVEL KOCIAN, Applicant
AND
JENNIFER KOCIAN, Respondent
BEFORE: James J.
COUNSEL: Applicant is self-represented
Audra Bennett, for the Respondent
ENDORSEMENT
James J.
Released: September 3, 2013