ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-89-12
DATE: 2014-02-26

BETWEEN:

Larry Daniel Straus
Applicant

– and –

Eva Maria Pocsai
Respondent

William R. Clayton, Counsel for the Applicant

Tiffany Frederick, Counsel for the Respondent

HEARD: December 6, 10, 11, 13, 2013, and January 27, February 7, 2014

glithero j.

reasons for JUDGMENT

[1] The common issues in this case are custody, access and child support. In addition, the applicant father seeks the sale of the house pursuant to the Partition Act, R.S.O. 1990, c. P.4. The respondent mother seeks spousal support, a declaration that the applicant stands in the place of a parent to two of her other five children and support for them, and other related incidental relief. The applicant father is currently 32 years of age, and the respondent mother is 46. They have a child as between them, Halen Evette Pocsai Straus, born June 18, 2010.

[2] They began living together in late June or early July 2010, when the applicant moved in to the respondent’s house on Elizabeth Street in New Hamburg. They separated just over two years later on September 5-6, 2012.

[3] The respondent has five other children from four previous relationships, only one of which involved marriage. Those other children are 24 year old Mathew who is still in school, 11 year old Simon, 9 year old Christian, 7 year old Logan, and 6 year old Asher. It is only Christian and Asher for whom she seeks to have the applicant held responsible for child support, in addition of course to Halen.

[4] The applicant is an employee and shareholder in a family owned contracting business. I accept his evidence and that of his mother that those shares have no commercial value as the company is family held and the shares cannot be sold to an outsider. He works on a full-time basis for the family contracting business, five days a week. Since separation he has lived in his parents’ home. He has a room there, and there is another room for Halen when she is with him for access visits.

[5] Halen has been in her mother’s de facto custody from the date of separation, and after that pursuant to an interim order dated February 5, 2013, which provided that Halen would be in the care of her father on alternate weekends from 5:00 p.m. Thursday until 9:00 a.m. Monday and from Monday at 5:00 p.m. until Tuesday at 9:00 a.m. on the in between weekends. The order also provided she would be in the applicant’s care from noon on Christmas Day to December 28 at 6:00 p.m., and for three non-consecutive weeks each summer from Thursday at 5:00 p.m. until the second Sunday thereafter at 6:00 p.m., as such weeks were to include the alternate weekend access provision. The applicant was to give the respondent written notice of his choice of weeks by May 15th each year.

[6] The applicant testifies to having a loving and caring relationship with Halen, and that evidence is uncontradicted by anyone. During the periods of time when Halen is in his care, but he has to work, namely on Fridays, his mother, Anne Straus, cares for Halen. I am satisfied that she and her husband, Lewis Straus, both have very good and loving relationships with Halen. I will later make reference to difficulties which have arisen during the pickups and returns of Halen, but I am satisfied that those difficulties are as between the adults, and that Halen has a good relationship with all. When he is at home, I am satisfied that the applicant is a “hands on” and caring father making the meals for Halen, bathing her, getting her ready for bed and enjoying a variety of activities with her. The applicant also has two brothers who have families as well and his evidence as well as that of other family members is that all of them have a good relationship with Halen, and I so find. Halen enjoys the company of her cousins, children of the applicant’s brothers, and has a particularly close relationship with Lily Straus, one of his brothers’ daughters.

[7] Shortly after Halen was born, the applicant moved in to the respondent’s house. The uncontested evidence of the applicant is that between July 27, 2010 and November 18, 2010, he gave the respondent cheques totalling $40,750, at her request. The largest was a cheque for $20,250, which he provided so as to reduce the respondent’s mortgage indebtedness. During this period, the applicant’s pay cheques also went to paying the household bills. Later on his pay cheques went into a joint bank account and were used for the same purpose.

[8] In May or June 2011 the house in which the parties lived was sold and a new house on Merner Place in New Hamburg was purchased. The respondent testified that it was the applicant’s wish to move to a larger home and the she acceded to his wishes in this respect out of an awareness that he would feel more comfortable in a home the two of them had acquired, rather than continuing to live in what had been her home for a long period of time. The applicant was not questioned about this in chief or cross-examination.

[9] The applicant sold his home and received net proceeds of $116,629. Part of those proceeds were used to repay his father for the shares the applicant had acquired in the family business. Another chunk of it was used to repay a loan to the applicant’s mother, which had been advanced to assist the applicant to buy a 2006 Ford Expedition, a vehicle he still owns, but which the respondent has possessed and used since separation. Another portion of the proceeds was used by the applicant as a payment in the amount of $ 20,250 to reduce the respondent’s mortgage on her Patricia Street property which was then sold and the parties purchased the Merner Place home. A smaller portion was used by the applicant for maintenance on a Corvette owned by him.

[10] Christian Victor Pocsai, born August 5, 2004, and Asher True Pocsai, born August 9, 2007, are the two other children of the respondent for whom she would have the applicant pay support. These two children were born before the applicant and respondent knew each other, but lived with the two of them after the applicant moved into the respondent’s home, and during the time they then lived together in Merner Place.

[11] The overnight of September 5-6, 2012 was the date of separation. The applicant had worked a long day and came home tired. His evidence is that he phoned the respondent on his way home from work and that at that time she yelled at him for failing to do some chores and indicated she would have no supper for him. Once he got home, his evidence is that she continued to harp at him to finish whatever chores she had assigned to him as his responsibility. His evidence is that shortly after 11:00 p.m., he went up to have a shower, and then headed to bed. The respondent kept at him as the chores she felt to be his responsibility had not been done.

[12] He testified that her behaviour belittled him as she continued to be insulting and continued to yell at him. His evidence is that finally she asked him to leave and get help. He testified as well that he picked up a belt because he was frustrated and admits saying to the respondent “I could strangle you”, and then to have dropped the belt. He further testified that while showering, he could see through the glass shower door and said to the respondent “I could choke you”, but made no move to do so. There is no allegation that he made any actual physical contact, or attempted to make any physical contact with the respondent during these remarks. His evidence is that as a result of her statement that he should get help, he phoned the crisis line and then left to go to the hospital as the person in the crisis centre had recommended that he do. On the way, he changed his mind and drove to his place of business. During that drive, he was on the phone with the respondent. The police showed up at his place of business as the crisis worker had apparently called the police. He was handcuffed by the police, taken to a hospital where eventually he was seen briefly by a doctor, and then was taken to court and held in custody until being granted bail later in the day of September 6th. The conditions of his release prevented him from having any direct contact with the respondent and access dealings were to be with her through his father and surety, Lewis Straus. Eventually, the threatening charge was resolved in February 2013, with the applicant entering into a “peace bond” for a year, the terms of which recognizance continue to prohibit him from direct contact with the respondent.

[13] The respondent’s version of the night of separation is somewhat different. Her evidence is that there had been an agreement between the two of them that certain chores would be the responsibility of the applicant and that he frequently failed to live up to what she felt to be his end of the bargain. While he testified to his frustration on finding sour milk poured on his prized Corvette, the respondent’s version of that event is that one of the tasks she assigned to him was to find a “sippy cup” containing milk which he had provided to Halen, but which she was observed to be without shortly thereafter. He didn’t do so and when the respondent finally found the cup, the milk was sour and as a means of bringing home to him his failure to do as instructed, she poured the milk on the car. She describes a situation where on her account, there had been an understanding throughout the relationship that he was to perform certain of the household chores and that it was a problem throughout.

[14] On her evidence, the applicant lost control after coming out of the shower, became very emotional, and started screaming at her. During this time, he picked up the belt and held it tight between his fists and said that he was going to strangle her, but made no move towards her and dropped the belt. She claims he was screaming that he was not in fact a monster. She told him that he needed help. He was upset and indicated that he had watched her through the shower door and told her that he could easily come up and choke her. She repeated that he needed help. He went downstairs and began looking for the phone number for the crisis centre. She overheard him say to the crisis worker that his wife was freaking him out, that he had threatened to kill her, that he needed help, that he had suicidal ideation, and that he had been sexually molested as a child. When he got off the phone, he advised her that the crisis worker had recommended that he go to the hospital, but that he was scared that people would think he was crazy and lock him up.

[15] Her evidence is that she assured him that would not happen and as he left for the crisis centre, she told him to call her when he left for the hospital that he was to call her when he got there. He left and a few minutes later she got a phone call from him in which he screamed and yelled at her. As he was driving when he made the call, she was concerned about his extreme upset. He was yelling that he wanted to kill himself, that he was a loser, that he wanted to put himself in a metal cage and other remarks indicting he wanted to hurt himself. Her evidence is that she was so alarmed by this that she phoned the crisis centre as well, ended up getting the same crisis worker on the line and advised him of these threatening comments by the applicant. On her evidence, the crisis worker kept asking her where else, besides the hospital, the applicant would be likely to go, and she indicated that he would beat his place of work. He obviously alerted the police during the phone call and they attended as described by the applicant.

[16] In point of fact, not much turns on determining a precise scenario for the separation. The two accounts differ somewhat, but it is the outcome which is material to this case. Whether the respondent drove him over the edge as the applicant indicates, or whether the applicant just snapped as a result of appreciating that he was not seen as living up to his end of the bargain, as the respondent would suggest, the upshot is that as a result of police involvement, later court involvement, and then the consent order, the parties have been separate and apart since that night with no direct contact.

[17] The interim order dated February 5, 2013 was based on Minutes of Settlement as between the parties. The applicant’s access was as I previously described. Pickup of Halen by the applicant through his family was to be at the Kitchener YMCA, and drop off by the applicant through his family was to be at the Tim Horton’s in New Hamburg. The applicant was ordered to pay child support for Halen in the amount of $785 per month, but that provision was made on consent and without prejudice to the respondent’s claim for child support for the children, Christian and Asher. Without prejudice to his denial of responsibility for those two children, the order provided that he was to add the two of them as beneficiaries to his group family health plan through his employment. The applicant was also ordered to pay the respondent spousal support in the amount of $1,385 per month, based upon an income of $88,000 per year. The respondent was to pay all household and property expenses in respect of the Merner Place property in New Hamburg, and she was to retain possession of the Ford Expedition and was ordered responsible for the operating and insurance costs of that vehicle.

[18] Interestingly, the order provided that there was to be no further inspection by the respondent of car seats used by the applicant to transport Halen.

[19] This last provision was made necessary by the difficulties which frequently developed on the occasions of pickup and return of Halen by members of the applicant’s family.

[...continued verbatim exactly as in the source decision through paragraphs 20–75...]

C.S. Glithero J.

Released: February 26, 2014