COURT FILE NO.: FS-08-877 (Brantford)

DATE: 2013-11-19

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Kimberley Marie Stephens

Applicant

– and –

William Russell Stephens

Respondent

Andrew A. Nichols, for the Applicant

Appearing in Person

HEARD: October 21 and 22, 2013

REASONS FOR DECISION

THE HONOURABLE MR. JUSTICE D.J. GORDON

[1] Although numerous claims were presented in the pleadings, the issues addressed at trial and requiring determination pertain to access, spousal support and equalization of net family property. Other matters were either resolved or withdrawn.

Background

[2] Both parties are 45 years of age. They married on August 1, 1998. Separation occurred on August 15, 2008. There are two children from their relationship: Jessica, born August 3, 2000 and Allan, born November 12, 2002. The children reside with Ms. Stephens.

[3] Ms. Stephens was originally from Prince Edward Island. In 1994, she moved to Ontario to complete her post-secondary education. The parties met at university and started living together in January 1995. Both parties obtained a teaching degree and commenced employment in or near Brantford in 1997.

[4] The parties initially resided in an apartment in Brantford. They purchased the family residence in 2001.

[5] Ms. Stephens and the children continued to occupy the family residence following separation. Mr. Stephens secured other accommodation. The residence was sold in August 2010. Ms. Stephens and the children moved to Prince Edward Island that month.

Separation

[6] Ms. Stephens reported the relationship with Mr. Stephens declining following the birth of Allan. Also occurring at this time was her diagnosis for breast cancer. Significant medical intervention and treatment followed.

[7] In the Summer of 2008, Ms. Stephens and the children travelled to Prince Edward Island to visit members of her family. They returned in early 2008. On August 15, 2008, an argument escalated and ended when Mr. Stephens assaulted Ms. Stephens. He was arrested by the police and removed from the family residence. Mr. Stephens would later plead guilty to the assault charge and was granted a conditional discharge.

[8] Lawyers were retained following separation. Negotiations took place. Further events lead to this case being commenced in November 2008.

Litigation History

[9] In her application, issued November 27, 2008, Ms. Stephens presented claims for custody, child support, exclusive possession of the matrimonial home, equalization of net family properties and a restraining order.

[10] In his answer, dated March 2009, Mr. Stephens sought an order for custody, child support and sale of the family residence. His amended answer, dated June 26, 2012, added claims for spousal support, access, freezing assets, equalization of net family properties, damages and gave notice of a constitutional question.

[11] Mr. Stephens did not pursue the claim to freeze assets. At trial, he withdrew the claim for damages and the notice of a constitutional question.

[12] The parties have been in motions court on many occasions. There was also an attendance in the Court of Appeal. This case has been one of high conflict from the outset.

[13] The following is a summary of significant orders:

(i) November 28, 2008 - temporary custody of children to Applicant, no access to Respondent until further order (on motion without notice);

(ii) December 5, 2008 - primary residence of children with Applicant, regularized access (alternate weekends, mid-week and Christmas) to Respondent;

• child support payable by Respondent of $1,165 monthly plus $125 towards day care expense on income of $80,000 (consent order);

(iii) January 30, 2009 - Respondent’s access modified to Sunday and Wednesday and conditional on his friend, Gail Sheppard, being present at all times during access;

(iv) February 20, 2009 - access order continued with provision for communication book and counseling for the children;

(v) July 30, 2009 - Respondent’s access to be supervised by Children’s Aid Society, to occur at least twice weekly; Applicant permitted to travel with children to P.E.I. for three weeks in August (Children’s Aid Society participating in motion, including oral evidence from service worker);

(vi) September 17, 2009 - temporary custody of children to Applicant, permitting Applicant to purchase Respondent’s interest in matrimonial home for $17,000 and dispensing with his signature on required documents and indicating equalization has occurred with respect to the matrimonial home, Respondent’s motorcycle and stated debts (Respondent not appearing);

(vii) November 13, 2009 - having commenced an appeal of the above order, Respondent permitted to obtain appraisal of matrimonial home; Respondent allowed to communicate with children by letters, such to be vetted by Children’s Aid Society;

(viii) August 27, 2010 - Respondent’s child support obligation reduced to $354 monthly on income of $23,400;

(ix) August 30, 2010 - Applicant permitted to move with children to P.E.I.; no access to Respondent unless supervised by an equivalent C.A.S. agency in P.E.I. (motion took place on August 26 and 27 with oral evidence);

(x) September 9, 2010 - Court of Appeal grants Respondent’s appeal of order dated September 17, 2009, regarding sale of matrimonial home with direction to the trial court for an accounting (hereafter discussed in greater detail);

(xi) October 14, 2010 - costs regarding mobility motion (order of August 30, 2010) awarded to Applicant in the amount of $10,000, payable by Respondent within 60 days;

(xii) December 9, 2011 - Respondent directed not to initiate further proceedings unless leave of the court obtained in advance; and

(xiii) September 20, 2012 - Respondent’s child support obligation reduced to $73 monthly on income of $11,520 and no future obligation for extraordinary expense.

Respondent’s Mental Health

[14] Mr. Stephens has had mental health issues for some time, reflected, in part, in the aforementioned orders. Although he initially retained counsel, Mr. Stephens appeared in court in person for most of the motions and at trial.

[15] Reference was previously made to Mr. Stephens assaulting Ms. Stephens on August 15, 2008, the date of separation. He was arrested by the police, charged with assault. Mr. Stephens subsequently was incarcerated for breach of his release terms. He later pleaded guilty and was granted a conditional discharge on these charges.

[16] Mr. Stephens continued to have encounters with the police. On January 24, 2009, he was charged with mischief regarding an incident occurring at the residence of a friend of Ms. Stephens. On August 24, 2009, Mr. Stephens was charged with criminal harassment of two persons and was incarcerated from that date until January 2010.

[17] On April 29, 2010, Mr. Stephens’ employment as a teacher was terminated by the School Board as a result of prior events. His present income source is Canada Pension Plan based upon his disability.

[18] The behavior of Mr. Stephens pertaining to his access to the children was problematic. He was agitated, causing difficulties on the exchange and upsetting the children. As a result, the Children’s Aid Society became involved. The access order then required supervision. A problem occurred when one letter was delivered to the children that had not been vetted by the Society.

[19] The impact of these many events lead Ms. Stephens to seek court approval to return to Prince Edward Island with the children. That occurred following the order granted August 30, 2010.

[20] Mr. Stephens has not exercised access to the children since June 2009.

[21] On February 26, 2011, Mr. Stephens was arrested and charged with offences pertaining to theft and an indecent act. The events are said to have occurred at a gas bar in Cambridge when Mr. Stephens declined to pay for gas and undressed. This conduct lead to a psychiatric assessment in the criminal proceedings. Following that assessment, Mr. Stephens was found not criminally responsible on account of a mental disorder, pursuant to section 16, Criminal Code.

[22] In result, Mr. Stephens was remanded to a mental health facility. He has been at Regional Mental Health Care St. Thomas from April 18, 2012 to the present. Mr. Stephens is expecting to be released into the community in the near future.

[23] When this case first came up for trial in December 2012, the presiding judge had concerns with respect to Mr. Stephens’ ability to represent himself. With the consent of Mr. Stephens, and Mr. Nicholls, counsel for Ms. Stephens, a conference call occurred in the courtroom with Dr. Prakash, a psychiatrist at the St. Thomas facility. As a result of that conference call, the trial was adjourned and Dr. Prakash agreed to submit a report following an assessment of Mr. Stephens.

[24] Dr. Prakash delivered a report dated January 10, 2013. The report set out in detail the relevant events, diagnosis and treatment. In brief, the diagnosis was schizoaffective disorder, paranoia and related matters. Mr. Stephens agrees with this description. I understood him to say at trial that he had been similarly diagnosed in 2004.

[25] Dr. Prakash was of the opinion that Mr. Stephens was not capable of managing his property due to a mental illness, having regard to section 6, Substitute Decisions Act. He recommended the appointment of a litigation guardian.

[26] Mr. Stephens appealed to the Consent and Capacity Board. A hearing followed and on January 24, 2013, the Board determined that Mr. Stephens was capable of managing his property.

[27] During his time at the mental health care facility, Mr. Stephens as been under the care of a treating psychiatrist and other health care providers. He has been prescribed medication. As a result, the mental health status of Mr. Stephens has improved. Indeed, from my perspective, Mr. Stephens was able to participate in the trial and represent himself. He was well prepared and his presentation was organized.

(continues exactly as in the original decision …)