Ulibarri v. Ulibarri, 2015 ONSC 2762

CITATION: Ulibarri v. Ulibarri, 2015 ONSC 2762

COURT FILE NO.: D20544-13

DATE: 2015-04-29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Mireille Ulibarri

Applicant

– and –

Dr. Gerardo Ulibarri

Respondent

Carol L. Hartman, for the Applicant

Christopher D. McInnis, for the Respondent

HEARD: April 16, 2015

REASONS ON MOTION

O’NEILL, J.

1The within motion was argued before me at Sudbury on April 16, 2015. Counsel for Mireille Ulibarri identified the following four issues as being in dispute on her filed confirmation form:

i. access; ii. quantum of child and spousal support; iii. distribution of the sale proceeds from the matrimonial home; and iv. costs.

2I will deal with each of these interim or temporary issues in turn.

Access

3The applicant mother proposes supervised access every Sunday from 1:00 p.m. to 6:00 pm. The access is to be supervised by a third party acceptable to both parents, and the access need not take place at a supervised access center.

4The respondent further proposes day access, unsupervised, once monthly, or twice monthly, on Saturdays and Sundays.

5The mother’s position is that the child was traumatized following the father’s assault of her mother and that although the child has only seen her father four times in the past six months, the child in fact does not wish to see her father as much as he has requested. The father’s position is that the child has been happy and affectionate while in his care and that this is corroborated by the letters of support filed at tabs 20, 21 and 22 of the continuing record.

6Galadriel Ulibarri was born on August 23, 2003. The parties married on July 26, 2001, and separated on September 7, 2013, following the serious assault of Mr. Ulibarri upon Mrs. Ulibarri.

7Mr. Ulibarri pleaded guilty to common assault on December 13, 2013. He was ordered to be imprisoned for a term of twelve months (conditional sentence order, to be served in the community) and placed on six months’ probation.

8I accept his affidavit evidence that he pleaded guilty within three months of the event, so as to bring resolution to the serious charge before the court and to “avoid any further fracture to my family.”

9Galadriel did not witness the assault whereby her mother was seriously injured, but I accept that this event did have a serious impact and effect upon her. She certainly would have seen her mother’s bruises, and her slow recovery from the assault.

10Galadriel has attended counselling and visits with her father have recommenced, even if at a slow pace.

11Mr. Ulibarri accepts that Mrs. Ulibarri is to have sole custody and that the child is to have her principal residence with the mother. In his affidavit sworn March 13, 2015, the respondent indicated that he has only seen his daughter four times during the previous fifteen months, not six months, as indicated by the applicant.

12At the conclusion of the motion, I made an order, in standard form, appointing The Office of the Children’s Lawyer to carry out an investigation and to report to the court. It is not yet known whether the OCL will accept the court recommended order.

13In my view, it is time to now slowly, but surely, increase parental access to the child. The affidavits at tabs 20, 21 and 22 give support to the view that Galadriel’s visits with her father are important and have been happy occasions for both the father and his daughter. By the same measure, I appreciate that Galadriel has shown some understandable reluctance to fully embrace a usual and generous access order, given her awareness of the events of September 2013. In my view, this court should provide constructive support for the healthy restoration of the daughter and father relationship.

14The law supports the reconciliation of these relationships. Children very quickly grow up and pass into adulthood.

15I would not, at this time however, order overnight access. That can be phased in later, hopefully with the assistance of the OCL. Nor do I conclude that the visits need be supervised. There is no evidence before me that Mr. Ulibarri is at risk of harming his child, and that his time with her needs to be supervised at all hours. Mr. Ulibarri has pleaded guilty to the events of September 7, 2013, and has been sentenced for them. He is attempting to heal and restore a father and daughter relationship. He is fully employed as a contributing member of the Sudbury community.

16The access order that I will make needs to be respected and implemented by all parties. The process has to be trusted and worked through.

17I accordingly order temporary access as follows:

i. on May 9 and May 10 from 12:00 noon to 6:00 o’clock p.m., each day; and ii. on May 23 and May 24 from 10:00 a.m. to 7:00 p.m., each day, and thereafter every second Saturday and Sunday from 10:00 a.m. to 7:00 p.m., both days. Galadriel shall be free to text, telephone or otherwise communicate with her mother at reasonable times during these visits, as and when may be required.

Sale Proceeds from the Matrimonial Home

18It is not clear whether the sale of the matrimonial home will close in June of this year. Further, it is premature to simply release 100% of such net sale proceeds to Mrs. Ulibarri, this despite the fact that Mr. Ulibarri has a pension and, further, that Mrs. Ulibarri will be pressing a damage claim against Mr. Ulibarri for assault.

19The net proceeds from the sale of the matrimonial home shall remain in trust and shall not be distributed without a court order, or the agreement of the parties. The court may be requested to review the distribution issue if the parties cannot reach a resolution, if and when the home is sold.

Child and Spousal Support

20The dispute in relation to this issue hinges on the amount earned by Mr. Ulibarri for consulting fees. That amount will have been better determined after April 30, 2015, when Mr. Ulibarri has completed filing his 2014 return.

21Mr. Ulibarri’s salary in 2014 was $145,000. His consulting income in 2013 was $51,213. In his affidavit sworn March 13, 2015, he indicated his consulting income for 2014 was approximately $24,000, and he attached (exhibit E) a monthly invoice to CEMI for $2,000.

22His counsel submitted that his tab 9 initial financial statement sworn December 18, 2013, incorrectly outlined his consulting income at $610.17. Counsel submitted that this court could accept, on an interim basis, fixing consulting income at $24,000, but not $51,000 for the taxation year 2014. Counsel for Mrs. Ulibarri submitted that Mr. Ulibarri misled the court in his tab 9 financial statement and that the best evidence of 2014 consulting income was the year 2013 income.

23For the purposes of this child and spousal support motion, the gap between the parties is the difference in consulting fees income – $51,213 versus approximately $24,000.

24Accordingly, one party submitted a support calculation showing $196,375 in total 2014 income, while the other party reflected income of $169,162, or a difference of $27,213.

25Before finalizing 2014 income for the purpose of this temporary motion, I conclude that until the matrimonial home is sold and vacated, Mrs. Ulibarri should receive spousal support at the SSAG high amount. The reason for this is straight forward - she and her daughter are living in the home and her monthly mortgage, utilities, and insurance payments are approximately $2,326. Mr. Ulibarri’s present comparable expenses are nil. Commencing the month following the closing of the sale of the matrimonial home, the temporary SSAG support payment shall revert to the mid-amount payment.

26For the purpose of this motion, I would fix the 2014 consulting fees income at an amount equal to 2013 income on the basis that 2013 income was fully reported for income tax purposes. A one month contract or fee billing to CEMI (November 30, 2014) attached to an affidavit is not comprehensive enough, or of such full 2014 disclosure, so as to convince me, on a temporary basis, that the 2014 consulting income is approximately $27,000 less than the 2013 income. And I am not convinced that Mr. Ulibarri did not have reasonable access to required office and computing equipment so as to continue earning consulting income without a noticeable or appreciable decline.

27The order that I will make can be adjusted, upward or downward, by either party filing their income tax returns as reported to Revenue Canada (together with Revenue Canada’s Notice of Assessment) for the taxation year 2014. In the interim, I make the following temporary child and spousal support order on my fixing Mr. Ulibarri’s 2014 income at $196,375 and Mrs. Ulibarri’s 2014 income at $44,000:

i. Commencing May 1st and continuing on the 1st of each month thereafter, Mr. Ulibarri shall pay child support to Mrs. Ulibarri for the support of Galadriel Ulibarri, born August 23, 2003, in the sum of $1,606.

ii. Commencing May 1 and continuing on the 1st of each month thereafter, Mr. Ulibarri shall pay to Mrs. Ulibarri spousal support in the sum of $4,146. This sum shall be reduced to $3,499 on the 1st of the month following the closing of the sale of the matrimonial home.

iii. Either party is entitled to seek an interim variation of the within child and spousal support order (failing agreement) by filing or causing to be filed full and complete 2014 income tax returns as reported to Revenue Canada (and Revenue Canada’s Notice of Assessment) for the taxation year 2014. Such reported income may assist both the parties and the court in better appreciating and determining the 2014 income of the parties for the purposes of refining, if necessary, the within temporary child and spousal support order.

28Costs

29I would award the applicant, Mireille Ulibarri, her costs of the within motion on a partial indemnity basis. However, given that Mr. Ulibarri was more successful with respect to the access issue, but that the financial issues occupied more of the courts time on the motion, I would accordingly reduce the applicant’s said costs by 40%, thus awarding her 60% of a partial indemnity award of costs for this motion. Those costs are to be paid by the respondent to the applicant within 30 days following the closing of the sale of the matrimonial home. The costs shall be paid from the respondent’s share of the net sale proceeds (paid into trust), as previously ordered herein.

30If the parties cannot agree on the amount of the costs award, they shall each file a bill of costs and costs submissions. The applicant by May 13, 2015. The respondent by May 22, 2015. Submissions are to be delivered to the trial co-ordinator’s office in Sudbury.

31Order accordingly.

The Honourable Mr. Justice J.S. O’Neill