COURT FILE NO.: FC-13-0356

DATE: 20131022

CORRIGENDA: 20131108

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ana Paula Guimaraes Parreira, Applicant

AND:

Michael Silva Parreira, Respondent

BEFORE: The Hon. Mr. Justice J.P.L. McDermot

COUNSEL:
Omar Khan, for the Applicant

Lorene H. McDougall, for the Respondent

HEARD: October 17, 2013

The text of the original decision has been corrected with text of corrigenda

(released November 8, 2013) appended.

ENDORSEMENT

Introduction

[1] Mr. and Ms. Parreira were married in New York City on July 24, 2000. Ms. Parreira is from Brazil; this was a second marriage for her and a first for the Respondent. Mr. Parreira sponsored Ms. Parreira’s immigration to Canada along with her daughter, Alana, who is nearly 22 years of age. The parties have two children, Jullie, who is now 12 and Michael who is four.

[2] The root of this motion lies in the circumstances surrounding the parties’ separation, which occurred on February 10, 2013. On that date, Mr. Parreira was removed from the home and was arrested and charged with domestic assault, sexual assault and mischief. The seriousness of the allegations was reflected in the recognizance, which, in addition to the normal non-communication with the complainant, also contemplates limited house arrest with his surety and enjoins the Respondent to “stay away from Alliston – no exceptions.” The surety is the Respondent’s mother, Izabel Parreira.

[3] Since separation, the children have lived with the Applicant, first at the matrimonial home which has been sold, and now at her residence in Alliston. Because of the charges, the parties are unable to communicate and have been unable to agree on the terms of access. Ms. Parreira wishes supervised access at a supervised access centre, and Mr. Parreira wants his parents or his sister to supervise. As well, support is not flowing; Mr. Parreira says that he is unable to work because of the stress arising out of the separation and has not worked since February 11, 2013. Ms. Parreira has received no support, although she has received rental income from a rental property owned by the parties as well as at least one advance from the net proceeds of the sale of the parties’ matrimonial home and rental property. She requests support based upon Mr. Parreira’s income earned in 2012, which was just over $80,000.

[4] The Respondent brought a motion returnable on August 15, 2013. The motion was for access to be supervised by a family member, an order for child support to be payable based upon income of $29,556.34, return of a vehicle and disclosure. The motion was adjourned for disclosure to a long motion date unless the parties agreed that they could do their argument on “all issues in 20 minutes.” At that time, the parties also agreed to several issues including disbursement of funds from the sale of the matrimonial home. The long motion was called in before me on October 17, 2013.

[5] For the reasons set out below, I have determined the following:

a. Paragraphs 20, 26, 36 (and Exhibit “H” referred to therein), 39 (and Exhibit “K” referred to therein), 43, 61, 86 and 87 of the Applicant’s affidavit sworn August 13, 2013 and found at Tab 21 of Volume 1 of the Continuing Record are struck.

b. The Respondent shall have access to the children supervised by either of his parents or his sister.

c. Access shall be on the following terms:

i. Weekly access on Saturdays from 10:00 a.m. to 8:00 p.m. with the pickup and drop off to take place at the Nottawasaga office of the Ontario Provincial Police;

ii. As that office is within the boundaries of Alliston, the Respondent shall not be present at pickups or drop offs, which shall be effected by the Applicant or her designate and one or more of the access supervisors.

iii. There shall be one overnight visit during the Christmas season on a date between December 24, 2013 and December 27, 2013. If the parties are unable to agree upon a date and times for the visit, this issue may be spoken to before me through a conference call.

iv. Upon the Respondent complying with the conditions set out in the correspondence from the Children’s Aid Society dated July 10, 2013, and further upon completion of at least ten Saturday visits, the supervision requirement may be reviewed with a view to regularizing access, including overnight access.

v. Neither the Respondent nor the access supervisors will deprecate the Applicant or permit deprecation of the Applicant to or in the presence of the children;

vi. There shall be no corporal punishment of the children of any type during access visits.

d. Prior to access commencing, the Respondent’s counsel shall provide copies of this order to the access supervisors and shall explain the requirements of supervision of access to those access supervisors in person, and confirm in writing to the Applicant’s counsel that she has done so.

e. The Respondent shall pay the Applicant temporary child support in the amount of $438 per month based on income of $30,000 per annum commencing March 1, 2013.

f. The sum of $3,280.84 shall be credited to child support through the net payments made to the Applicant by the Respondent under paragraphs 5 and 8 of the order of Wildman J. dated April 26, 2013, which payments shall be characterized as child support.

g. The motion for an accounting of the funds paid pursuant to paragraph 5 of the order of Wildman J. dated April 26, 2013 is dismissed.

h. The child support is without prejudice and may be reviewed upon any change in the Respondent’s income. To this end, the Respondent shall forthwith advise and disclose to the Applicant any change in his disability income or his medical condition, or of any return to work, part time or otherwise at which point in time, along with evidence to support that change including a sworn financial statement confirming the Respondent’s present income.

i. On consent, the Applicant shall be forthwith reinstated under the Respondent’s extended medical and dental plan available through his employment, and there shall be a temporary order that the Respondent provide coverage for the Applicant under his extended medical and dental plan as available through his employment until further order.

j. The motion for delivery of the motor vehicle being used by Alana is dismissed, provided that the Applicant shall continue to provide and maintain comprehensive liability insurance on that vehicle and forthwith provide proof thereof to the Respondent. The Applicant shall further pay all 407 ETR charges and parking and traffic tickets associated with that vehicle. If the Applicant is unable to maintain insurance on that vehicle, it shall be forthwith returned to the Respondent.

[6] Prior to argument of the motion itself, there were certain procedural issues to be dealt with arising out of the material (or lack thereof) filed.

Procedural Issues

[7] There was firstly an issue raised on August 15, 2013 as to the contents of Ms. Parreira’s affidavit sworn on August 13, 1013 inasmuch as it contained a number of paragraphs which referred to statements made in case conferences and settlement conferences and/or referred to or attached offers to settle made in these proceedings. Wildman J. directed on August 15 that those issues be dealt with by way of a short 14B motion if the parties could not agree on what paragraphs were to be struck. The parties could not agree, but the 14B motion was not brought. On return of the motion before me, Ms. McDougall requested an adjournment; she stated that she had only discovered that the motion was going ahead at 8:00 p.m. on the previous evening and disclosure was incomplete. As well, she was concerned about the paragraphs in the affidavit which had not been removed, and which I reviewed.

[8] I refused the adjournment request. I firstly permitted the Respondent to file a further affidavit prepared on October 16 and served the morning of the motion, which contained information about disclosure. As acknowledged in that affidavit, Ms. McDougall’s client had not met the time lines for requests for disclosure imposed by Wildman J. on August 15; he can hardly complain about disclosure not being made prior to the motion under those circumstances. Moreover, I indicated that I would hear argument and strike any offending provisions in the affidavit of Ms. Parreira sworn on August 13, 2013; as a judge hearing a motion, as with a judge hearing a trial without a jury, I am presumed to have the ability to ignore offending evidence disclosed to me and remove it from consideration where proper. Finally, in my view, it was important to deal with the access issues as the children had only seen their father on two occasions since separation, and disclosure had little effect on that determination.

[9] The Applicant had served a responding motion on the Respondent. It was not filed on the continuing record although there was proof of service of the motion. Other than disclosure issues, the issues raised in that motion were access and child support; these were the same issues raised by the Respondent’s original Notice of Motion. All that the Applicant had requested (outside of disclosure)[^1] was that access be at a supervised access centre and that child support be based upon the Respondent’s 2012 income and both of these issues were raised for argument in the Respondent’s notice of motion. I ruled that the failure of the Applicant to file her responding notice of motion was not a bar to those issues being considered by me.

[10] The Respondent complained about a number of paragraphs and exhibits attached to the Applicant’s affidavit sworn in response to the Respondent’s motion. Included were paragraphs 20, 26, 36 (and Exhibit “H” referred to therein), 39 (and Exhibit “K” referred to therein), 43, 61, 86 and 87. A review of all of those paragraphs and exhibits confirms that there were references in all of them to statements made by the parties or a justice at several case conferences held in this matter. The two offending exhibits are unsigned Minutes of Settlement negotiated at a case conference, and an offer to settle submitted by the Applicant which expired at a case conference.

[11] It is trite that any offer to settle is inadmissible in subsequent family law proceedings except when dealing with costs issues; see Rule 18(8) of the Family Law Rules.[^2] The same rule would apply to draft minutes of settlement which were tendered on another party but not signed. Statements made at a case conference are also inadmissible; they are confidential and not to be included or referred to on the record: see Rule 17(23). A review of the offending paragraphs and the Exhibits confirm that all of the exhibits and paragraphs complained of by Ms. McDougall fall afoul of either or both of these rules.

[12] As such the paragraphs noted above are struck from the Applicant’s affidavit sworn August 13, 2013. I have not considered those paragraphs or the offending exhibits in making my decision in this motion.

Access Supervisor

[13] The Respondent has only seen his children on two occasions since the parties separated in February of this year. That is primarily because the parties do not agree as to the degree of supervision required. There were initially several suggestions by the Children’s Aid Society, including the Simcoe County Supervised Access Centre,[^3] and if they could not act, Jen’s Place in Alliston, Ontario.[^4] Mr. Parreira did not find these suggestions palatable, and in fact refused to consider supervised access as suggested by the C.A.S. At one point, the matter was adjourned by me without access because Mr. Parreira would not agree to go to the Supervised Access Centre.[^5] And to be fair to Mr. Parreira, his position may have been valid; the Simcoe County Supervised Access Centre would not get involved while there was an open C.A.S. file; he could hardly attend Jen’s Place as it is located in Alliston, and he cannot enter that community for any reason as a result of his recognizance.

[14] Mr. Parreira suggests that access be supervised by his mother, father and/or his sister. He states that these are appropriate supervisors under the circumstances. He suggests that he have at least eight one-day visits after which overnight access could be considered. He also acknowledges that access should be supervised in one form or another until the conditions suggested by the C.A.S. are met: these conditions include the following:

a. The Respondent attend at a parent education program;

b. The Respondent engage engage in personal counselling to address adult conflict and domestic violence;

c. The Respondent demonstrate an understanding of the impact of adult conflict and domestic violence on the children;

d. The Respondent can demonstrate a sustained period of positive and healthy supervised access visits, free of any adult related discussions.[^6]

[15] The C.A.S. has now closed their file, while suggesting that access be supervised by a Supervised Access Centre, or “an appropriate third party supervisor, such as a neighbour, family friend or relative.”

[16] The Applicant disagrees. She says that there are unaddressed safety issues as recited by her in her Form 35.1 affidavit and her affidavit sworn March 8, 2013, as well as the various pieces of correspondence from the C.A.S. She states that the Respondent’s parents overheld the children during their first access visit and permitted negative statements to be made about her in front of the children. She says that the safety of the children requires supervision to be professional in nature, and that the Respondent’s parents are not neutral and will not adequately supervise the access.

[17] These are divorce proceedings, and accordingly, in determining temporary access by the Respondent to his children, I have to have regard to a number of factors as set out in the Divorce Act.[^7] Above all, I must take into account the best interests of the child: s. 16(8) of the Act. In determining best interests, and in making an order for access, I must keep in in mind the requirement in s. 16(10) to maximize contact between the parents and the child. As well, although not specifically mentioned in the Divorce Act¸ I note that it is important to take into account a history of domestic violence; that is, unquestionably a factor as to one’s ability to act as a parent to the children.[^8] And it is also unquestioned that domestic violence in front of the children can be as harmful as abuse directed at the children themselves and it is a factor that I must consider in ordering access.

[18] However, institutional supervised access at a supervised access centre is, in my view, something to be avoided if possible. The visits are anything but normalized access. However much the centre may attempt to provide a relaxed atmosphere, it is access in an institutional setting which necessarily limits the perametres of the visit. The visiting parent cannot go outside; he or she cannot take the children shopping or to the park or a movie. The visits are necessarily short, which is required due to the limited resources of the centre, no more than two or three hours a week. Older children will always remember having to come and visit a parent in an institutional setting; it can also be embarrassing to adolescent children who are often only too aware of their surroundings.

[19] Accordingly, supervised access at a centre should only be ordered where absolutely necessary for a justice to err on the side of caution. These would include circumstances where there are allegations of serious and current safety issues which can only be addressed through institutional supervised access. Also, a supervised access centre is necessary where a suitable access supervisor cannot be found. These would include situations where the proposed access supervisors would not protect the children where there are safety issues, for example where the access supervisors refuse to acknowledge that there are safety issues. Alternatively, it may be necessary where an access supervisor cannot be found or where there are no family members or others who are familiar to the children in order to address the children’s comfort level. However, where these factors do not exist, access at a supervised access centre may be a solution which causes more harm than good.

[20] In the present case, one of the greatest difficulties that I had is the material filed by the Applicant. That material did not specify, in my view, current safety issues which would require access supervision at the Simcoe County Supervised Access Centre. The only affidavits which specifically addressed the concerns requiring supervised access were the Form 35.1 affidavit and her affidavit in support of her ex parte motion for custody, both of which were sworn on March 8, 2013. Both of those affidavits alleged significant spousal abuse, some of which took place in front of the children. Those affidavits, as well as the correspondence from the C.A.S. satisfy me that the children were witness to domestic violence, and that Jullie, in particular, was troubled by that violence, and probably continues to be affected by it to this day.

[21] Mr. Khan on behalf of the Applicant also said that there was evidence of significant and excessive corporal punishment of the children. It is correct that the correspondence from the Society dated March 15, 2013 and April 25, 2013 mention that there was disclosure by Jullia that there was excessive physical discipline by the Respondent, in neither affidavit does the Applicant adopt the statement as a fact that she relies upon. In fact, in her affidavit of July 2, 2013, she does not even refer to the letter in that affidavit, but just attaches it as an exhibit without identifying the letter. Significantly, when attempting to obtain an ex parte custody order, Ms. Parreira did not mention the physical discipline to the children; you would think that were she to consider it a concern affecting access, she would have mentioned it in one or both of those affidavits.

[22] Moreover, I note that after the affidavits of March 8, 2013, Ms. Parreira does not address or allege safety risks to the children other than in two paragraphs in the middle of her affidavit of August 13, 2013; in those paragraphs, she does not provide evidence of safety risks other than a statement that the Respondent “continues to involve ...Jullie in adult discussions.” She does not provide particulars of those discussions or the alleged trauma suffered by Jullie with regard to those discussions. Otherwise, she reiterates her interpretation of the correspondence from the Society in order to justify her position that the Applicant’s family members could not provide “neutral” supervision of the children. She suggests that Sandy Desouza provide the access supervision; however, she acknowledges that Ms. Desouza is a friend of hers and gives no further particulars of why she would be any more neutral than the Respondent’s parents or as to why she would be an appropriate access supervisor, including evidence as to the children’s familiarity with her or where the access would take place.

[23] It appears that, in reading the Applicant’s materials, the C.A.S. provided her with the idea of supervised access, and she is now unwilling to let that go. In the Applicant’s affidavit sworn March 8, 2013, she states that she “does not oppose the Respondent having access to the children” and later that she says that she hopes that the “Respondent and I will be able to work out a schedule that includes weekends, mid-week visits, vacations and other holidays.” She then states, however, that access should be at the Supervised Access Centre as “recommended by C.A.S. to the Applicant Mother”. And if we are to rely upon the recommendations of the Society, they have now closed their file and are recommending that access can be supervised by an appropriate neighbour, family member or friend. There is no requirement of neutrality; nor could neutrality be found in a highly charged separation such as the present one.

[24] Finally, the Applicant relies upon an incident that occurred where the children were not returned by the Respondent’s parents after a visit that took place prior to the March 8, 2013 affidavit. It is mentioned in that affidavit that when the Applicant called to ask when the children were going to be returned, she was told to “go to hell”. Counsel attempted to portray this as an overholding incident; however, it was not that but was a dispute over who would pick up and deliver the children. That is clear both from a reading of the March 8, 2013 affidavit as well as the Applicant’s August 13, 2013 affidavit. There was no intent to overhold; when the Applicant attended to pick up the children, they were handed over without dispute.

[25] Accordingly, I cannot find any present danger to the children which would warrant supervision at the Simcoe County Supervised Access Centre. There were concerns about domestic violence, but these are no longer concerns as the parties are separated and cannot have contact with each other pursuant to the recognizance. There are also concerns about physical discipline which I will address in the terms of the access order. I will also address the issue of deprecation of the Applicant and discussion of adult issues in the access order.

[26] I am accordingly going to order that the access be supervised by the Respondent’s mother, father or sister. They are to pick up the children and drop them off for access. I realize that the Respondent requested that the Applicant pick up and deliver the children. However, the Respondent moved to Toronto partly because of the criminal charges, and if these charges are dismissed, it does not necessarily mean that the domestic violence did not occur. I note as well that the Respondent is seeking to minimize the support payable which affects the Applicant’s financial ability to pick up and deliver the children to the Respondent’s home in Toronto. Accordingly I am going to order that the Respondent or his supervisors transport the children for access. Finally I note that the proposed pick up and drop off point of the Nottawasaga O.P.P. office is located in Alliston. Accordingly, the access supervisors must pick up or deliver as the Respondent cannot enter that community under the terms of his recognizance.

[27] I am also going to order that there be no physical discipline of the children by the Respondent during access visits, and that there be no deprecation of the Applicant or discussion of adult issues in front of or to the children during access visits. I am also going to request that Respondent’s counsel explain to the proposed supervisors their responsibilities as access supervisors and make them aware of the terms of this order prior to access commencing.

[28] The supervision requirement may be reviewed by the court after ten visits and once the conditions set out in the correspondence of Ms. Kermanshahi dated July 10, 2013 are satisfied. Once that occurs, a settlement conference or case conference must be held prior to proceeding to a motion.

Child Support

[29] The Respondent has not paid child support since the parties separated. He states that he did not have to because advances were made to the Respondent which should be deducted from child support. He says that his income this year has been a combination of employment income, snow ploughing and employment insurance paying about $500 per week for a total of $29,556.34. He states that child support should accordingly be set at $431 per month based upon that income pending trial.

[30] The Applicant says that this is an entirely inadequate proposal. She notes that the Respondent disclosed income of more than $81,000 for 2012. Of that income, about $70,000 was income from employment. She says that the Respondent has bought an iPad (of which he boasted to his daughter), that he got the latest Blackberry cell phone and that he got a new tattoo and that he went on a camping trip. Mr. Khan questioned why the Respondent continues to pay union dues when he is off of work on disability. He suggests that the Respondent has income in the amount of $70,000 per annum.

[31] It is correct that the Respondent worked to the date of separation as a carpenter, and made a good living at that profession until then. However, the material confirms that after the date of separation, he was no longer working and that there were depression issues arising out of the criminal charges and the separation. He has filed two letters from his doctor both of which indicate that he cannot work; the latter piece of correspondence from Dr. Shabash is dated July 8, 2013 and states that the Respondent suffers from a “severe major depression” and that “due to his lack of energy and inability to concentrate I am concerned for his safety because he works with dangerous tools and recommend that he remains off work for three months and is re-assessed.”[^9] Apparently the disability payment was undergoing a re-assessment and was not being paid;[^10] however counsel advised that she had received correspondence that day confirming that the short term disability had been re-approved and would continue into the new year; counsel undertook on the record to provide this correspondence to the Applicant. It appears that the Respondent is receiving short term disability and that he would be a danger to himself and others were he to operate machinery in his capacity as a carpenter.

[32] I decline to find that the Respondent should be found to have income of $70,000 as requested by the Applicant. The items purchased by the Respondent are not such that they are unaffordable at the income the Respondent says he made especially considering that it is doubtful that his mother is charging him substantial rent. A camping trip is not a trip to a Caribbean resort.

[33] Nor can income be imputed to the Respondent in the amount suggested. There has to be some basis for imputation of income. Although not cited, I presume the Applicant’s argument rests on s. 19(1)(a) of the Child Support Guidelines^11 which allows imputation of income where the Respondent is “intentionally under-employed or unemployed”. No evidence was supplied that this was the case; in fact the Respondent filed compelling medical evidence confirming that he could not, in fact, presently work. His disability insurer has approved his claim. There is no evidence provided by either party which would suggest intentional unemployment. Accordingly, I decline to impute income at this time to the Respondent; that claim may be pursued at trial and if proven, a retroactive adjustment may then be made. There is no basis before me to impute income.

[34] The Respondent has satisfied me that his income is presently $500 per week or $26,000 per annum in disability payments. I note that disability payments are not generally taxable income unless the cost is deducted for tax purposes; that does not appear to be so in the present case. No evidence was given of what the gross up amount should be for taxes. However, taking into account the fact that this income is not taxed, and the snowplowing income, I find that Mr. Parreira has income for child support purposes of $30,000 per annum. Accordingly ongoing child support is set in the amount of $438 per month.

[35] Respondent’s counsel acknowledges that the temporary child support would commence on March 1, 2013, immediately after separation. She suggests however, that several payments made to the Applicant pursuant to various court orders be credited to child support and be applied to retroactive arrears.

[36] Two payments were made to the Respondent; they are as follows:

a. By paragraph 8 of the order of Wildman J. dated April 26, 2013, the sum of $5,000 was ordered to be paid to Ms. Parreira from the net proceeds of the rental property at 190 Nairn Avenue, Toronto, Ontario. The order states that the “funds will [be] classified at a later date as child support or equalization.” Mr. Parreira now requests that this amount be characterized as child support.

b. By paragraph 5 of that same order, the sum of $7,500 was paid to Ms. Parreira from those net proceeds “for the sole purpose of servicing the [matrimonial home] mortgage including arrears.” The order provides that there was to be an accounting by June 1, 2013 including back up documentation. That accounting did not happen, but Ms. McDougall says that there is evidence that only $5,938.32 was applied to the mortgage leaving some $1,561.68 to be applied to child support.

[37] The property in question was a jointly owned property. Neither of the provisions in the order required payment to be made from the husband’s share of that property. Accordingly, joint funds were paid to the Applicant, and half of those funds (other than money ear-marked for the mortgage) belonged to her and were her funds to spend as she pleased. Therefore, the amount in issue is not $6,561.68 ($5,000 + $1,561.68) but one half of that amount or $3,280.84 which was what the Respondent in fact paid to the Applicant from his share of the net proceeds.

[38] Accordingly, child support will commence March 1, 2013. The sum of $3,280.84 shall be credited to child support through the net payments made to the Applicant by the Respondent under paragraphs 5 and 8 of the order of Wildman J. dated April 26, 2013, which payments shall be characterized as child support.

[39] It is apparent that there is now no need for an accounting of the money paid to the Applicant for payment of the mortgage. That motion is dismissed.

Return of Vehicle

[40] The Respondent claims the return of a vehicle presently being used by the Applicant’s daughter Alana. The Respondent says that his parents had loaned the Applicant and Alana the sum of $2,500 to buy this parent; they have actually commenced small claims proceedings to collect that amount.

[41] The vehicle is a Ford Escort motor vehicle; it is registered in the Respondent’s name. It is used by Alana to drive to work. The Respondent states that he wants the vehicle back because Alana has run up 407 ETR bills on the vehicle as well as some $40 in parking tickets, which have been charged to the Respondent when he attempted to renew his license. The total amount owing is under $100.

[42] I expressed my surprise that the Respondent was pressing this issue; in his affidavit of April 8, 2013, he says that he treated his step daughter as his own and says that “I admire and am very proud of her accomplishments.” That being said, to remove the vehicle from her possession over less than $100 is hardly treating Alana as his own daughter.

[43] My major concern, however, is who owns the vehicle. If the Applicant and Alana are being sued by the Respondent’s parents in Small Claims Court, then the car must belong to them; if it was actually the Respondent’s car, then it would follow that he owed the money to his parents and would have to pay it to them. This court is not in the business of collecting and enforcing debts, especially on behalf of individuals who are not parties to this proceeding. If Alana and her mother do not own the car, and the Respondent takes it back, then they do not owe the debt; however, the action in debt by the Respondent’s parents against them seems to indicate that beneficial title to the vehicle belongs to Alana and/or the Applicant.

[44] The motion for return of the motor vehicle is therefore dismissed. However, I am going to order that the Applicant continue to maintain liability insurance on the vehicle and provide proof thereof, failing which it shall be returned to the Respondent. The Respondent should not be liable for the Applicant’s daughter driving an uninsured vehicle. The Applicant says it is insured, so she should provide proof of that.

Order

[45] Therefore, there will be a temporary order to go as follows:

a. Paragraphs 20, 26, 36 (and Exhibit “H” referred to therein), 39 (and Exhibit “K” referred to therein), 43, 61, 86 and 87 of the Applicant’s affidavit sworn August 13, 2013 and found at Tab 21 of Volume 1 of the Continuing Record are struck.

b. The Respondent shall have access to the children supervised by either or all of his parents or his sister.

c. Access shall be on the following terms:

i. Weekly access on Saturdays from 10:00 a.m. to 8:00 p.m. with the pickup and drop off to take place at the Nottawasaga office of the Ontario Provincial Police;

ii. As that office is within the boundaries of Alliston, the Respondent shall not be present at pickups or drop offs, which shall be effected by the Applicant or her designate and one or more of the access supervisors.

iii. There shall be one overnight visit during the Christmas season on a date between December 24, 2013 and December 27, 2013. If the parties are unable to agree upon a date and times for the visit, this issue may be spoken to before me through a conference call.

iv. Upon the Respondent complying with the conditions set out in the correspondence from the Children’s Aid Society dated July 10, 2013 and located at Tab 20 of Volume 1 of the Continuing Record, and further upon completion of at least ten Saturday visits, the supervision requirement may be reviewed with a view to regularizing access, including overnight access. The parties shall case conference that issue prior to bringing a motion.

v. Neither the Respondent nor the access supervisors will deprecate the Applicant or permit deprecation of the Applicant to or in the presence of the children;

vi. There shall be no corporal punishment of the children of any type during access visits.

d. Prior to access commencing, the Respondent’s counsel shall provide copies of this order to the access supervisors and shall explain the requirements of supervision of access to those access supervisors in person, and confirm in writing to the Applicant’s counsel that she has done so.

e. The Respondent shall pay the Applicant temporary child support in the amount of $438 per month based on income of $30,000 per annum commencing March 1, 2013.

f. The sum of $3,280.84 shall be credited to child support through the net payments made to the Applicant by the Respondent under paragraphs 5 and 8 of the order of Wildman J. dated April 26, 2013, which payments shall be characterized as child support.

g. The motion for an accounting of the funds paid to the Applicant pursuant to paragraph 5 of the order of Wildman J. dated April 26, 2013 is dismissed.

h. The child support is without prejudice and may be reviewed upon any change in the Respondent’s income. To this end, the Respondent shall forthwith advise and disclose to the Applicant any change in his disability income or his medical condition, or of any return to work, part time or otherwise at which point in time, along with evidence to support that change including a sworn financial statement confirming the Applicant’s present income.

i. On consent, the Applicant shall be forthwith reinstated under the Respondent’s extended medical and dental plan available through his employment, and there shall be a temporary order that the Respondent provide coverage for the Applicant under his extended medical and dental plan as available through his employment until further order.

j. The motion for delivery of the motor vehicle being used by Alana is dismissed, provided that the Applicant shall continue to provide and maintain comprehensive liability insurance on that vehicle and forthwith provide proof thereof to the Respondent. The Applicant shall further pay all 407 charges and parking and traffic tickets associated with that vehicle. If the Applicant is unable or unwilling to maintain insurance on that vehicle, it shall be forthwith returned to the Respondent.

[46] The parties may make submissions as to costs, with the Applicant and then the Respondent providing written submissions on a ten day turnaround. Costs submissions to be no more than three pages in length not including bills of costs or offers to settle made on this motion.

McDERMOT J.

Date: November 8, 2013

C O R R I G E N D A

1. Page 1, para. 2 now reads: ...with his surety and enjoins the Respondent to “stay away from Alliston – no exceptions.”

2. Page 3, para. 5(h) now reads: ...including a sworn financial statement confirming the Respondent’s present income.

3. Page 3, para. 5(j) now reads: ... provided that the Applicant shall continue to provide and maintain comprehensive liability insurance on that vehicle...

4. Page 4, para. 9 now reads: The Applicant had served a responding motion on the Respondent.

5. Page 8, para. 25 now reads: I will also address the issue of deprecation of the Applicant and discussion of adult issues in the access order.

6. Page 9, para. 30 now reads: He suggests that the Respondent has income in the amount of $70,000 per annum.

7. Page 13, para. 45(j) now reads: ... provided that the Applicant shall continue to provide and maintain comprehensive liability insurance on that vehicle...

[^1]: Both parties had raised disclosure issues in their respective notices of motion; both parties agreed that disclosure issues could be dealt with between counsel without a motion. Neither party argued disclosure issues before me.

[^2]: O. Reg. 114/99

[^3]: The Simcoe County Supervised Access Centre cannot open a file where there is an open child protection file. As the Simcoe County C.A.S. closed their file on July 10, 2013, they could have been involved after that date.

[^4]: See the correspondence from Laura Dickson and Maria Malvaso dated April 25, 2013 and attached as Exhibit “C” to the Applicant’s affidavit sworn June 8, 2013.

[^5]: See my endorsement dated March 28, 2013.

[^6]: See the correspondence from Sarvenaz Kermanshahi dated July 10, 2013 and attached as Exhibit “E” to the Respondent’s affidavit sworn August 8, 2013.

[^7]: R.S.C. 1985, c. 3 (2nd Supp.)

[^8]: The requirement to consider spousal violence and abuse is set out in s. 24(4) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. Although not mentioned in the Divorce Act¸ I would be surprised if anyone suggested that I could not take it into account in determining the best interests of the children in a divorce proceeding. See, for example, Young v. Young (1989) 1989 8784 (ON SC), 19 R.F.L. (3d) 227 (Ont. H.C.) where a potential for domestic violence was a factor in divorce proceedings well before that requirement was codified in the Children’s Law Reform Act.

[^9]: Correspondence from Dr. Shabash dated July 8, 2013 attached as Exhibit “D” to the Respondent’s affidavit sworn August 13, 2013

[^10]: Correspondence from L.I.U.N.A. Local 183 dated October 3, 2013 attached as Exhibit “K” to the affidavit of Brenda Dittburner sworn October 16, 2013