ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-14-5357
DATE: 2014-09-10
B E T W E E N:
C.L.L. (R.)
Beth White, for the Applicant
Applicant
- and -
R.S.R.
Michelle Simone, for the Respondent
Respondent
HEARD: August 29 , 2014,
at Thunder Bay, Ontario by videoconference (counsel in Kenora, Ontario)
Mr. Justice D.C. Shaw
Reasons on Motion
[1] Mr. R.S.R. brings a motion for access. Ms. C.L.L. brings a motion for child support and for an order that Mr. R.S.R. be required to pay the mortgage, utility bills and other expenses related to the matrimonial home, in lieu of spousal support.
Background
[2] The parties began residing together in April 2009. They married on August 13, 2011. They separated briefly in May 2013 and again in August 2013, before final separation on January 14, 2014.
[3] The parties are the parents of twin boys, J.L.R. and M.W.R., born […], 2013.
[4] The children have resided with Ms. C.L.L. since separation.
[5] The parties reside in Dryden. Mr. R.S.R. works in R[…] Lake as an underground electrician for G[…]. He works a shift of one week on and one week off.
[6] Ms. C.L.L. is a hairdresser and operated a hairdressing business out of the matrimonial home.
[7] Ms. C.L.L. alleges that she was the victim of emotional and physical abuse throughout the relationship and that Mr. R.S.R. has alcohol abuse and anger management problems.
[8] The police and Child and Family Services became involved with the family at the time of separation. Child and Family Services took the position that they would apprehend the children unless either Mr. R.S.R. or Ms. C.L.L. left the matrimonial home. Ms. C.L.L. moved with the children out of the home and lived with friends and family. Mr. R.S.R. remained in the home.
[9] Mr. R.S.R. deposes that from January to April 2014, he had daily unsupervised access to the children in Dryden during his weeks off work. Ms. C.L.L. deposes that initially Child and Family Services was content that Mr. R.S.R. have access in the presence of a third party, usually either his parents, or hers, because of the concerns of Child and Family Services about domestic violence.
[10] After separation, Ms. C.L.L. went on social assistance because she was no longer able to operate her hairdressing business out of the matrimonial home.
[11] At the beginning of April 2014, Mr. R.S.R. agreed to vacate the matrimonial home. Ms. C.L.L. and the children moved back into the home on April 3, 2014.
[12] On April 9, 2014, Mr. R.S.R. attended at the home to visit the children. Ms. C.L.L.’s mother was present. An argument ensued between Mr. R.S.R. and Ms. C.L.L.. Ms. C.L.L. asked Mr. R.S.R. to leave. Ms. C.L.L. deposes that shortly after this incident she was told by Child and Family Services that they would be assuming the role of access supervision because there had been an incident in which Mr. R.S.R. threatened suicide.
[13] On April 15, 2014 Ms. C.L.L. filed the within application. On April 23, 2014 she served the application together with a motion for custody, exclusive possession of the matrimonial home and a non-harassment order. On April 30, 2014 the motion came before Fregeau, J. Mr. R.S.R. did not attend and had not filed any responding material. Justice Fregeau granted Ms. C.L.L. interim-interim custody of the children and interim-interim exclusive possession of the matrimonial home. He also made an order that Mr. R.S.R. was not to harass Ms. C.L.L. nor to communicate with her except by way of text messaging as necessary to address issues pertaining to the children.
[14] Notwithstanding the non-communication order, Mr. R.S.R. telephoned Ms. C.L.L. on June 7, 2014. Mr. R.S.R. acknowledges in his affidavit that he should not have contacted Ms. C.L.L. to express his frustrations while he was drinking. Ms. C.L.L. deposes that Mr. R.S.R. telephoned her repeatedly that evening. She states that when she finally answered, Mr. R.S.R. was raging at her, intoxicated. She states that she could hear Mr. R.S.R.’ parents in the background telling him to stop. She then heard a slap and heard Mr. R.S.R.’s mother say, “Don’t you dare hit me”. Ms. C.L.L. called the police.
[15] Ms. R.S.R. was charged with uttering threats contrary to s.264.1 (2)(b) of the Criminal Code with respect to the June 7, 2014 incident. He has also been charged with assault under s.266, assault causing bodily harm under s.267 (b) and mischief, all with respect to alleged offences in 2011.
[16] After the June 2014 incident, Mr. R.S.R. saw the children for two hours on Thursday and Friday every second week at the Child and Family Services Centre in Dryden, supervised by Child and Family Services staff. Since mid-August 2014, that supervised access has been increased to four hours on Thursday and Friday of every second week. Mr. R.S.R. has taken the children to a park with a supervisor. Child and Family Services is not available to supervise on weekends.
[17] Mr. R.S.R. wants to have daily unsupervised visits. He suggests that he be allowed to take the children to programs for children such as Best Start Hub.
[18] Mr. R.S.R. admits to drinking to excess in the past but states that he has been sober since the June 7, 2014 incident. He states that he has been pro-actively participating in mental health counselling and attending counselling and community support programs for his use of alcohol.
[19] Mr. R.S.R. deposes that he has been advised by Child and Family Services that his visits will continue to be supervised unless otherwise ordered by the court.
[20] Ms. C.L.L. is concerned about Mr. R.S.R.’ alcohol use and his temper if he is given unsupervised access to the eight month old twins. Ms. C.L.L. is willing to explore extended supervised access and suggests that such extended visits could be arranged through the Supervised Access Centre, which is distinct from Child and Family Services. She suggests that the Supervised Access Centre, unlike Child and Family Services, is available to supervise access during evenings and on the weekends.
Decision on Access
[21] I am satisfied from Ms. C.L.L.’s evidence of events and from Mr. R.S.R.’ own admissions, together with the evidence of both parties as to the position taken by Child and Family Services, that there is reason to be concerned with Mr. R.S.R.’ alcohol and anger management issues as well as with his mental health issues that led him to threaten suicide.
[22] The children are only eight months old and therefore completely vulnerable in any environment where there maybe alcohol abuse, anger management problems or serious emotional issues.
[23] Although I have Mr. R.S.R.’ evidence that he is receiving counselling for mental health issues and counselling and community support for his problems with alcohol, there is nothing in evidence from those counselling and community agencies. I do not know who is providing the counselling and community support, the nature of the services or the results of the services. I do not have evidence from the service providers as to whether or not they have concerns about the effect of Mr. R.S.R.’ issues on his ability to safely parent the two infant children without supervision or assistance. Although there is no direct evidence from Child and Family Services, which would be most helpful to the court, it is clear that from their investigations and involvement with this family, that they are not prepared, from a child protection perspective, to permit Mr. R.S.R. to exercise unsupervised access at this time. There is also no evidence concerning the programs that Mr. R.S.R. suggests he could take the children to, such as Best Start Hub.
[24] The sole concern for the court on this motion is the best interests of the children. On the evidence before me, it is not in the best interests of the children to terminate supervision of Mr. R.S.R.’ access at this time. My order will be made on an interim-interim basis. This will give the parties an opportunity to gather further evidence from the relevant agencies and proceed to a motion before trial, on further and better material. In the meanwhile, Mr. R.S.R. may wish to consider Ms. C.L.L.’s willingness to explore extended access through the Supervised Access Centre. Reports from the Supervised Access Centre may be of assistance to the court in its determination of what form of access is in the best interests of the children.
[25] An interim-interim order shall go that Mr. R.S.R. shall have access to the children, for four hours every Thursday and Friday of every second week, while he is off work, supervised by Child and Family Services, and such further supervised access as may be agreed to through Child and Family Services and the Supervised Access Centre. Mr. R.S.R. may renew his motion for access on further and better material.
Decision on Support
[26] It is agreed that Mr. R.S.R.’ income for the purpose of support is $97,420. The Child Support Guidelines call for $1384 per month for two children at that income. Mr. R.S.R. does not dispute the child support amount. However, he wants to pay the support by receiving credit for his payment of the mortgage on the matrimonial home. The monthly payments are $626.92. He would pay the balance of the $1,384, namely $757.08 per month, to Ms. C.L.L..
[27] Mr. R.S.R. submits that Ms. C.L.L. is not entitled to spousal support because of the short relationship of less than five years and because, he submits, Ms. C.L.L. has not been economically disadvantaged by the marriage or its breakdown.
[28] Ms. C.L.L. requests that in lieu of spousal support Mr. R.S.R. be required to pay the mortgage payments, utility expenses and all other expenses related to the matrimonial home. She submits that these payments and expenses total $1460 per month. Title to the matrimonial home is held by Mr. R.S.R.. The mortgage and utilities are in his name alone. Ms. C.L.L. submits that the utilities, other than the cell phone bill, are not in good standing. Mr. R.S.R. submits that he has paid all the mortgage payments and utility expenses for the home in lieu of child support to date.
[29] Although Ms. Ms. C.L.L. does not request a periodic sum for spousal support, she does provide a Divorce Mate calculation. At an income of $97,420 for Mr. R.S.R. and an income of $10,000 for herself, and with child support at $1384 per month, the Spousal Support Advisory Guidelines (SSAG) suggested range of spousal support is a low of $714, a mid-range amount of $967 and a high end of $1,232 per month.
[30] If I were to accede to Ms. C.L.L.’s request to order Mr. R.S.R. to pay the costs of the matrimonial home, which she says are $1460, that would result in payments well beyond the high end of the SSAG range.
[31] Ms. C.L.L. states that she is no longer receiving social assistance and has resumed work as a hairdresser out of the home. She says that she has the assistance of a nanny. Details of Ms. C.L.L.’s present earnings and her business expenses are not before me.
[32] The parties advise that they are able to argue a motion on spousal support on October 15, 2014.
[33] I make an interim order on the issue of child support and require Mr. R.S.R. to pay support for the two children commencing September 1, 2014 in the amount of $1384, based on his income of $97,420 and the Child Support Guidelines.
[34] I make an interim-interim order that Mr. R.S.R. pay spousal support by way of paying the mortgage payment on the matrimonial home in the amount of $626.92 per month, until October 15, 2014. On that date in motions court, the parties shall address the issue of spousal support. Ms. C.L.L. shall provide further and better evidence as to her current income and expenses, including business expenses, and the currency of any utility bills for the home. Mr. R.S.R. shall provide further and better evidence of his payment of the mortgage and any utility bills.
[35] In view of the parties’ agreement on the amount of child support and in view of the need for both parties to provide further and better evidence on the issues of access and spousal support, there shall be no order as to the costs of this motion.
“Original Signed By”
The Hon. Mr. Justice D.C. Shaw
Released: September 10, 2014
COURT FILE NO.: FS-14-5357
DATE: 2014-09-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
C.L.L. (R.)
Applicant
- and –
R.S.R.
Respondent
DECISION ON MOTION
Shaw, J
Released: September 10, 2014
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