ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: D24086/13
DATE: 2014/06/19
B E T W E E N:
Alana Marlane Somerville
Kenneth W. Garland, for the Applicant
Applicant
- and -
Gregory Charles Somerville
Lisa Triano, for the Respondent
Respondent
HEARD: June 18, 2014
The Honourable Justice C. A. Tucker
ENDORSEMENT
[1] The respondent seeks to vary the order made by Justice Matheson on November 12, 2013 to provide him with an equal sharing of the children’s time. The children, Charley (age 7) and Rudy (age 4), are given access with their father in week one on Friday and Saturday and after school on Monday and Wednesday until 7:30 p.m. In week two, the respondent has access on Sunday and Monday and after school on Tuesday and Thursday until 7:30 p.m.
[2] The applicant resists the proposed variation, firstly, on the basis that there has been no material change in the children’s or parties’ circumstances which would provide a basis to assert such a variation and, further, that the proposed variation would not be in the best interest of the children.
[3] Numerous affidavits were filed by both parties asserting their positions. It is the applicant’s belief that the respondent seeks the increased access to gain child support from the higher income earning mother. The respondent denies this allegation.
[4] The material filed on the application and in the answer is virtually the same material that the parties are using to put forward their present positions. The only “new” material is the information about how the access visits have gone with the applicant pointing out that the respondent has missed 17 visits out of 50 such visits since the making of the order and that the child Charley has been delivered early to school on occasion. The rest of the lengthy materials filed are assertions by both parties claiming their position is in the best interest of the children.
[5] Frankly, whether or not there has been a “material change”, the motion is simply a proposed rehearing of the original motion. The change in residence of the father is not a material change, I find, but even if it could be so considered, it has no effect on the children nor does it change what has been found to be in their best interest. The father had planned to purchase a new residence at the time of the motion and had already rented one used by the parties prior to separation. It is clear from Justice Matheson’s order that he found the coming disruption to the children’s lives with the parents living separate and apart should be minimized after living with their parents in the matrimonial home together although the parties were separated. He crafted his order to provide status quo and stability for such purpose.
[6] The failure of the respondent to utilize his present access fully since the date of the order leaves me in doubt as to how he would manage half the time with the children, even given his “flexible” work schedule. I find there is nothing here but a thinly disguised appeal of Justice Matheson’s order. Whether the matter was without prejudice and/or interim there is no additional material put forth by either party which would cause a court to reconsider the best interest of the children.
[7] The trial is scheduled for November of this year. The focus of the trial is on the issue of 50/50 access to the children claimed by the father. The trial judge will have viva voce evidence rather than untested affidavits to make a decision on the best interest of the children.
[8] Accordingly, I dismiss the motion to change.
[9] If the parties are unable to agree upon costs, I may be spoken to.
Tucker J.
Released: June 19, 2014
COURT FILE NO.: D24086/13
DATE: 2014/06/19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Alana Marlane Somerville
Applicant
- and –
Gregory Charles Somerville
Respondent
ENDORSEMENT
Tucker J.
Released: June 19, 2014