Reilly v. Lacharite, 2015 ONSC 2999

COURT FILE NO.: 131/09

DATE: 2015 May 14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Carla Joan Pauline Reilly

Applicant

– and –

Jesse Collin Lacharite

Respondent

Theresa J. Van Luven, for the Applicant

Douglas R. Haunts, for the Respondent

HEARD: April 24, 2015 at Kingston

TAUSENDFREUND j.

REASONS

Overview

1This is a motion for leave combined with a motion to change, both brought by the Respondent. The Applicant opposes both motions based on the Respondent’s failure to comply with several existing court orders and his failure to file a complete Financial Statement and to provide full financial disclosure as required by the Family Law Rules.

Background

2The parties were married August 26, 2000. They separated October 18, 2008 and were divorced April 23, 2010.

3The parties are the parents of two children, namely:

Nicholas Reilly Lacharite, born September 30, 2001, and

Owen James Richard Lacharite, born November 30, 2005.

4The following is a summary of the Orders arising from the parties’ litigation following their separation in 2008:

Date of Order

Justice

Terms of the Order Summarized

March 23, 2010

Robertson, J.

Sole custody to the Applicant, with specified access to the Respondent;

Child support payable by the Respondent of $878.00 per month, plus $125 per month for section 7 expenses. The Respondent’s income was imputed at $50,000, based on his experience and work history;

Arrears of child support fixed at $15,422;

Costs payable to the Applicant in the amount of $6,628.

July 14, 2010

Ray, J.

Respondent’s Motion to Change dismissed;

Costs payable to the Applicant of $3,500;

No further proceedings by the Respondent without leave, unless all outstanding costs Orders have been satisfied.

January 30, 2013

Trousdale, J.

Respondent’s Motion to Change resolved by Consent Order;

No further proceedings by the Respondent without leave, unless all outstanding costs Orders have been satisfied;

Child support reduced to $210 per month + $75 per month on account of arrears + $30 per month for section 7 expenses based on the Respondent’s annual income of $15,500;

Amended access schedule;

Respondent forthwith transfer in full to the Applicant his RRSP pension by way of a spousal rollover.

May 7, 2013

MacLeod-Beliveau, J.

Applicant’s Motion to Change;

No access with the children for the Respondent except in accordance with the recommendation of the Family and Children’s Services of Frontenac, Lennox & Addington, which access is to occur in a supervised setting.

5The total costs of $10,128 not including accumulated interest remain unpaid.

6This motion to change by the Respondent is dated July 18, 2014. Prior leave was neither sought nor obtained. This motion seeks the following relief:

a. a stay of the enforcement of the current Order for support and arrears;

b. a new order for child support based on the Respondent’s current financial status;

c. enforcement of access terms set out in the Order of Trousdale, J. dated January 30, 2013 without specific reference to the Order of MacLeod-Beliveau, J. of May 7, 2013, which Order had amended the Order of Trousdale, J. of January 30, 2013.

d. supervised access at the Salvation Army Supervised Access Centre;

e. the appointment of the Office of the Children’s Lawyer; and

f. a rescission of arrears of support.

7This matter proceeded to a case conference on March 6, 2015 before Justice Minnema. The endorsement of that day read:

The Respondent brought a motion to change which also seeks leave, although the previous Orders require that leave be granted first.

On Consent, April 24, 2014 at 10:00 a.m. set for a one hour motion on the leave request only, factums required. Costs of today reserved to hearing

8Although the Respondent filed a document entitled “Factum,” it provides neither an overview of the cases cited nor of the issues on this motion. Further, it does not provide a summary of the facts nor does it refer these facts to applicable legislation or relevant law. The document was not helpful nor does it comply with Rule 37.10(6) of the Rules of Civil Procedure which provides that a factum shall consist of a concise argument, stating the facts and the law relied on by the respective parties.

Analysis

9Based on the endorsement of Justice Minnema of March 6, 2015, this matter came before me as of “leave” motion.

10The position of the Respondent is deficient in a number of areas:

a. The Respondent has failed to serve the Family Responsibility Office with respect to his claim for a stay of enforcement of the existing child support orders and a rescission of the arrears;

b. As of August 2014, the arrears of child support then exceeded $33,000. There is no evidence that since January of 2013 the respondent made any payments on account of either child support, arrears of child support or section 7 expenses.

c. The Respondent failed to transfer his RRSP to the Applicant as he had agreed to do and as provided for in the Order of January 30, 2013. In fact, his Financial Statement of June 30, 2014 makes no reference to the RRSP asset.

d. This application is further deficient as he has failed to provide a complete updated sworn Financial Statement. Although he had agreed and as provided in the Order of January 30, 2013, the Respondent failed to provide a signed income tax return and Notices of Assessment for the previous taxation year as of June 1st annually, commencing June 1, 2013.

11I am troubled that the material does not include any evidence of payment by the Respondent under the terms of any of the Orders with respect to his obligation for ongoing child support, arrears and costs. In my view, even a modest income should result in adherence to a regular payment plan of commensurate amounts. That, apparently, did not occur.

12The Respondent father who initiated this motion to change included in the relief he seeks the request that the Order of Justice MacLeod-Beliveau of May 7, 2013 be changed with respect to access to provide:

that, initially, there be supervised access at the Salvation Army Supervised Access Centre pending further disposition.

13He relies on Bazinet v. Da Costa [2001] O.J. No. 4881 in which Belch J. stated:

20 … the issue of … custody and access is not one that should be decided by the payment or non payment of costs. …it appears the solution would be to put in place a payment schedule, and provided that schedule was adhered to, the motions of the respondent mother on custody and access would not be stayed.

14He also relies on Pepper v. Frankum 2007 ONCA 429 wherein the court held:

4 …it is an error in law to bar a parent from seeking access to a child on the sole ground of unpaid costs without considering the amount of costs, the reasons they were unpaid, and the parent's ability to pay.

15As already noted, had the Respondent made arrangements for a regular payment plan of modest amounts and commensurate with his represented income, his position here would be quite different. The Respondent father’s failure to adhere to the various court decisions noted above is far more egregious than his failure to address any aspect of the Costs Orders. Access Orders are put in place largely for the benefit of the children. This, in my view, is the basic underlying reason that non-payment of costs, in and of itself, should not necessarily play a part in deciding whether access should or should not be granted.

16The Order of Justice MacLeod-Beliveau of May 7, 2013 provides that access for the Respondent/father be in accordance with the ongoing recommendation of the Family and Children Services of Frontenac, Lennox & Addington and that any such access shall occur in a supervised setting. There is nothing in the Respondent/father’s material regarding the position of the CAS on the question of access or any indication that the Respondent/father even contacted that organization in his efforts to institute a pattern of access as contemplated by this Order.

Order

17The motion for leave is dismissed with leave to the Respondent/father to bring such a motion again, subject to further and more detailed financial disclosure, which shall include:

a. Signed income tax returns for 2010 to 2014, inclusive and Notices of Assessment from 2010 to 2013, inclusive.

b. Evidence of the status of the Respondent/father’s RRSP referred to in paragraph 10 of the Order of Justice Trousdale of January 30, 2013. This shall include source documents to outline the status of that RRSP as of the date of that Order and verification of the Respondent/father’s steps to have that RRSP transferred to the Applicant/mother.

c. Details as supported by third party documents of the Respondent/father’s involvement with “Joe’s Musical Instrument Lending Library” including particulars of his income from that source and from Kingston Sound Works.

d. Written third party confirmation of the Respondent/father’s status with IBEW (Local 115) and the record of his employment with that Local as of 2010.

e. Copies from January 2012 to April 2015 of the Respondent/father’s bank account number 35086061 with RBC main branch Princess Street, Kingston and written confirmation by RBC as to any other bank accounts the Respondent may have with that institution.

18The Respondent’s application for motion to change is stayed pending an Order for leave to be granted within one year and failing which, the application is dismissed with costs.

19Leave to the Respondent/father to bring a motion to change the Order of Justice MacLeod-Beliveau of May 7, 2013 for supervised access and subject to providing written recommendation from the Family and Children Services of Frontenac, Lennox & Addington and from the opinion of Dr. Mazher regarding such proposed access.

20Costs of the case conference of March 6, 2015 and of this motion to the Applicant/mother in any event of the cause and fixed at $3,200.00 and payable at a minimum rate of $100.00 on the first day of each month, starting June 1, 2015.

Honourable Mr. Justice W. U. Tausendfreund