Krezanowski v. Wannamaker Krezanowski, 2015 ONSC 4039
PETERBOROUGH COURT FILE NO.: FC-58/14
DATE: 20150622
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Gary Philip Krezanowski Applicant
– and –
Kristi Anne Wannamaker Krezanowski Respondent
Paula F. Armstrong, for the Applicant
Christopher Spear, for the Respondent
HEARD: May 12, 2015
RULING ON MOTION
SUTHERLAND J.:
Introduction
[1] This is a motion brought by the respondent, Kristi Anne Wannamaker Krezanowski (the “respondent” or “respondent/mother”), for a variety of relief. The relief requested by the respondent is found in her notice of motion at vol. 3, tab 5 of the continuing record. The relief claimed is as follows:
(a) An order that the respondent have access with the child Madeleine Dawn Krezanowski, born May 25, 2010, on alternate weekends commencing February 20, 2014, from Friday at 4:00 p.m. to Sunday at 7:00 p.m., and each Monday and Wednesday from the end of the school day until 7:00 p.m., with general supervision of access to be by responsible adult.
(b) An order that the respondent have access with the child Liam James Keith Krezanowksi, born August 9, 2005, on the same terms as para. (a) above. After any appropriate re-introductory visit.
(c) An order that the respondent have the right of first refusal for care of the children on any professional activity day, snow day, or any other occasion when the children are not required to attend school during the school year.
(d) An order that the applicant, Gary Philip Krezanowski (the “applicant” or “applicant/father”), inform the respondent immediately of any illness or other medical issue affecting either child.
(e) An order that the applicant provide the respondent with the telephone number of Deborah Wood, the mother of the applicant.
(f) An order that the applicant can answer the telephone when the respondent calls if he is present in the home; and further, that he facilitate, rather than hamper, the calls between the children and their mother.
(g) An order that the applicant provide the respondent with at least forty-eight hours’ notice of any overnight absence of the children from the former matrimonial home, and provide contact numbers for the place the children are visiting.
(h) An order that the applicant shall not permit Deborah Wood to take the children outside of the City of Peterborough unless he is also present and responsible for the care of the children.
(i) An order that the applicant not introduce the children to a new girlfriend unless first advising the respondent with the name of the person and the nature of the relationship.
(j) An order that the applicant pay spousal support and costs to the respondent.
[2] The applicant/father opposes every claim of relief in the motion put forth by the respondent/mother.
[3] The respondent’s counsel did withdraw the relief by para. (b) of the notice of motion, namely, access to Liam. It was agreed by both parties that Liam is proceeding with reconciliation therapy as recommended by the assessor, and until that therapy has proceeded, the respondent, at this time, is not requesting access to Liam over and above what has already been ordered by this court.
Background
[4] The applicant and respondent were married on October 9, 2004. They separated on December 4, 2013. They have two children of the marriage, namely, Liam James Keith Krezanowski (“Liam”), born August 9, 2005 and Madeleine Dawn Krezanowski (“Madeleine”), born May 25, 2010.
[5] The applicant was involved in a serious automobile accident. This accident took place in 1995 prior to the marriage of the parties and prior to the parties starting living together in the spring of 2003. As a result of this accident, the applicant lost part of his right foot and part of his left leg. Due to the injuries sustained in this accident, the applicant received a substantial settlement and this settlement came in the form of a structured settlement. In that structured settlement, there was a portion dealing with loss of income, a portion dealing with pain and suffering and a portion for future care.
[6] It was agreed and confirmed by the parties that the portion of the structured settlement that dealt with income is around $120,000.00 and produces a grossed up income to the applicant of $2,912 per year.
[7] The respondent was diagnosed with having early stages of Huntington’s Disease. The respondent is the third child in her family. She had two brothers and has one sister. There seems to be a history of Huntington’s Disease in the family. The respondent’s father suffered from Huntington’s Disease. Huntington’s Disease is a progressive disease. The respondent has also been diagnosed with depression; she continues to be monitored and treated for depression.
[8] The applicant and respondent have been living separate and apart since December 2013. The respondent left the matrimonial home in December 2013. The factual basis and reasons for leaving the matrimonial home are not agreed upon between the parties. For the purposes of this motion, the reasons are not material.
[9] The respondent has been receiving day access to Madeleine. The respondent has not been having access to Liam. There has been a breakdown of the relationship between the respondent and Liam. It is because of this breakdown that Liam and the respondent will be attending reconciliation therapy.
[10] The parties have been to court for motions and conferences at various times. Relevant to this motion, a temporary order was made by Gunsolus J. dated June 24, 2014. In that order, Gunsolus J. provided access to the respondent.
[11] Gunsolus J. ordered:
[2] Respondent/mother should have visits with Madeleine (Liam may attend if he wishes) as follows:
(a) existing visits at the Children’s Aid Society Access Centre shall continue as follows:
(i) Monday from 3:30 p.m. to 5:00 p.m.; and
(ii) Wednesday from 4:00 p.m. to 5:30 p.m.
(b) One visit each week from 10:00 a.m. to 6:00 p.m., to be surprised by Nancy and Dan Wannamaker or Molly Mace or Phyllis Mace, with visit to take place at 266 McGill Street, or in community on Fridays (alternate weeks commencing July 11, 2014), and on Saturdays (alternate weeks commencing July 5, 2014). Visit on alternate Fridays shall change to alternate Saturday or Sunday once Madeleine commences fulltime school in September 2014.
(c) Mother and supervisor shall pick up Madeleine at commencement of visit at 1963 Parkwood Circle and at the end of visit father or Deborah Wood shall pick up Madeleine at 266 McGill Street.
[12] 196 Parkwood Circle is the residence of the applicant and 266 McGill Street is the residence of the respondent. The respondent lives with her aunt, Phylis Mace at that residence.
[13] The applicant lives with his mother, Deborah Wood, at the Parkwood Circle residence.
[14] There is also an order made by the court with respect to a section 30 assessment under the Children’s Law Reform Act[^1]. This order was made by Ingram J. on March 5, 2014, wherein David Tonge was appointed as assessor to perform that assessment.
[15] The assessment by Mr. Tonge was completed and filed with the court at the time of hearing this motion.
[16] In this motion, I was provided with medical reports and records from various medical practitioners or social workers. These reports, notes, or letters were attached to the affidavits. In particular, I note the reports, notes, and letters are from the following:
(a) From Peterborough Regional Health Centre, Dr. Andrew Chan;
(b) Dr. Rustom Sethna, a psychiatrist;
(c) Markham Stouffville Hospital;
(d) Sunnybrook and Women’s College Health Sciences Centre;
(e) Report from Dr. D. Okoro, Jeanette Wilkins, a genetic counsellor;
(f) Dr. Cynthia Forester Gibson at Peterborough County City Health Unit;
(g) Dr. John Adams at the Centre for Movement Disorders, a National Parkinson’s Foundation Centre of Excellence;
(h) Dr. Mark Guttman, also at the Centre for Movement Disorders;
(i) Dr. Anita Madan, a neurologist at the Assistive Technology Clinic, Baycrest Centre.
(j) Dr. Stacey Sanderson a member of the Medical Centre Family Team in Peterborough.
Increased Access to Respondent/Mother for Madeleine
Position of Respondent/Mother
[17] It is the position of the respondent/mother that there is no reason why she should not have extended access, including overnight access with Madeleine.
[18] It is the position of the respondent/mother, that supervised access is required and she agrees to supervised access with the agreed upon individuals for supervision, as set out in the orders of December 19, 2014 and June 27, 2014. Three other individuals were agreed upon and ordered on March 13, 2015 to be supervisors, and they are, Jean and Donny Livings, and Holly O’Brien.
[19] In effect, the respondent/mother relies on her affidavits of February 17, 2015 and March 11, 2015, and the assessment of Mr. Tonge, along with the letters and reports from Dr. Guttman, Dr. Sethna, and Ms. Sanderson. The respondent also argues that concerning a supervisor that not only can the seven individuals already ordered to be supervisors continue, but any “responsible adult of the choice of the respondent/mother” also be supervisors.
[20] The respondent/mother lives with her aunt, Phyllis Mace, who is already named as an acceptable supervisor, as set out in the order of MacDougall J. dated December 19, 2014, and in the order of Gunsolus J. dated June 27, 2014.
[21] In support of the respondent/mother’s position, respondent/mother’s counsel points me to the following:
(a) The report of Dr. Sethna, dated June 13, 2014, which finds that the respondent/mother’s health is stable. Although she has Huntington’s Disease and is symptomatic, Dr. Sethna indicates that her symptoms are very well managed and minimally disruptive to her life. Dr. Sethna also states in the second last paragraph of the report:
I did speak with a worker from the Children’s Aid Society on December 12, 2013 (Andrea) and offered my opinions to her at that time. I see no evidence of abusiveness toward anyone by Ms. Krezankowski. I do not believe that she poses a risk or a danger to her children or anyone else in society. The source, in my opinion, of her current predicament, is the acrimony in her marriage.
(b) Supervised Access Observation Forms as attached to the affidavit of the respondent/mother sworn June 25, 2014 (see the report of Dr. Guttman dated December 3, 2014). Dr. Guttman, in his report, does indicate that it is impossible for him to assess the respondent/mother’s capability of managing her children due to her Huntington’s Disease since he has no direct observation of her skills; however, he does state that the respondent/mother is in a good situation in that she is living at her aunt’s house and her aunt is at home all the time, so there is someone around if there is a problem, and he “strongly supports increased custody with supervision.”
(c) There are the reports of Ms. Stacey Sanderson dated November 26, 2014 and June 23, 2013, which also indicate a recommendation with increased access visits that are supervised with a family member.
Position of Applicant/Father
[22] It is the applicant/father’s position, that the status quo should continue in that the respondent/mother should not have any increased access and, specifically, no overnight access.
[23] The applicant/father made it clear in his various affidavits and in the attachments to those affidavits, that he is concerned with respect to the children in the care of the respondent/mother. The applicant/father’s position is clearly set out in his affidavit of March 9, 2015, which is an affidavit in response to the affidavit of the respondent/mother of February 17, 2015. In that affidavit, the applicant/father details his response to every paragraph of the affidavit of the respondent/mother. The applicant/father also goes through a detailed examination through of letters between the applicant/mother’s counsel and Dr. Menan, Dr. Sanderson and Dr. Gibson. He also goes through a response concerning the letters between Dr. Guttman to Dr. Gibson and comments regarding the medical records provided by the respondent/mother.
[24] Paragraph 59 of the applicant/father’s affidavit clearly sets out his position. Paragraph 59 states:
I am very concerned regarding what is taking place on Saturday visits which are supervised by members of Kristi’s family given that Maddy returns to me from visits upset and immediately following the visits Maddy expresses no one in her house loves her and that only her mother or Tammy (Kristi’s sister) loves her. It certainly appears that Kristi or her family may be making inappropriate statements to Maddy. I am concerned given I have observed on many occasions that Maddy has stomach aches prior to visits or that she does not want to go for visits. Maddy is often upset and withdrawn after visits and she has pulled her hair out following visits.
[25] In effect, the position of the applicant/father is that the respondent/mother should not have overnight access at this time. Things may change in the future. However, for the purposes of this motion, the applicant/father’s position that no overnight access should be given. It is too premature. Further, the applicant/father takes the position that there has been no questioning of assessors at this time because disclosure was not provided on a timely basis and he cannot question the assessor. The supervisor(s) should be as ordered by the court and that the location for access should continue to be on McGill Street which is the address in which the respondent/mother resides with her aunt, Phyllis Mace.
Analysis
[26] It is not a dispute that this court does have jurisdiction to make a temporary order concerning access. Section 16 of the Divorce Act[^2], namely subsection 2, provides the court with that authority. Section 24 of the Children’s Law Reform Act also sets out that the court does have jurisdiction to make orders for temporary access and that, similarly in the Divorce Act, the primary basis of such an order is “the best interest of the child.”
[27] For the purposes of this motion, what I need to consider is not whether the respondent/mother should have access, for there are court orders providing access. I also do not need to consider whether or not the access should be supervised or unsupervised. Both parties have agreed at this motion, and previous court orders have mandated, that the access be supervised.
[28] The issue that I must decide, is whether there should be increased access for the respondent/mother to her one child, Madeleine. And in doing so, I must take into consideration the best interests of the child. Again, this is a temporary order. The applicant/father will have the opportunity at trial to cross-examine Mr. Tonge, the assessor, and the other doctors and social workers who have provided letters and reports in this matter. I am confident that full issues with respect to a final permanent order for overnight access will be thoroughly examined and dealt with at trial.
[29] My concern, however, is the interim time from now to trial. Is it in the best interest of Madeleine to have overnight access with her mother?
[30] On the material I have read and specifically the assessment report of Mr. Tonge, the reports of Dr. Guttman and Dr. Sethna, the supervised access reports and the reports of Ms. Sanderson, I do not see that it would not be in the best interest of Madeleine to have overnight access with her mother. I do not see from the material in front of me, that it will be a “risk” to Madeleine, or that there will be “harm” to Madeleine if Madeleine should have overnight access with her mother.
[31] I do find, however, which has been conceded by the respondent/mother, that the access must be supervised and that the access must be at the residence where the respondent/mother is living with her aunt, Phyllis Macy, namely the address on McGill Street.
[32] I therefore order that the access of the respondent/mother shall continue during the weekdays as ordered by Gunsolus J., but the weekend access shall be from Saturday 10:00 a.m. to Sunday 6:00 p.m. with overnight supervised visits to take place at the McGill Street residence. The order of Gunsolus J. with respect to the weekend access is varied accordingly.
Spousal Support
Position of the Respondent/Mother
[33] It is the position of the respondent/mother that she has no income; that she is entitled to spousal support and requires the spousal support for she has no income.
[34] I must note that the issue of entitlement is not in dispute. Both parties acknowledge that the respondent/mother is entitled to spousal support. The issue, however, what is the amount of that support, if any.
[35] The respondent/mother indicates that she cannot work because of her health. The respondent/mother indicated that she was on short term disability through Wal Mart but that long term disability was disallowed. She was on disability with Employment Insurance but that has ended. She has appealed the decision of the insurer, Manulife Financial Group, concerning her long term disability and the decision is pending. The respondent/mother also indicates that she is in the process of applying for CPP[^3] and also for ODSP[^4]. But at this present time, she has no income. To support her position that she has no income and that she cannot work, the respondent/mother points to the denial of long term disability as set out in the letter of December 3, 2014 from A.O.N. Benefits Administration and, further, the Manulife Financial Group Benefits’ initial obtaining the physician’s statements for disability claim of Dr. Guttman dated April 21, 2015. At page two of the physician’s statement, Dr. Guttman states that the respondent/mother “cannot perform any work due to motor control problems and cognitive decline.” He further indicates “depression” under the Cognitive and Psychiatric Patient box. Under the Treatment Response box, he indicates that it is a progressive condition. Under box 7 “Remarks”, Dr. Guttman states, “HD is [a] progressive neurological disorder will never work again.”
[36] Accordingly, the respondent/mother is seeking spousal support in the amount of $687 per month to commence March 1, 2015.
[37] In determining spousal support, the respondent/mother’s position is that the annual income of the applicant/father is $58,297. In coming to that figure, the respondent/mother relies on the 2014 Income Tax Return of the applicant/father, along with the gross-up for structural settlement in the amount of $2,912.
Position of the Applicant/Father
[38] It is the position of the applicant/father that the income or the lack of income, for the respondent/mother cannot be determined at this motion. He does not dispute entitlement.
[39] It is the position of the applicant/father that the respondent/mother can work. It is the position of the applicant/father that the evidence put forth by the respondent/mother dealing with her ability or inability to work, is not consistent. Is it the applicant/father’s position as set out in his factum, that the respondent/mother’s evidence is “inconsistent and incomplete.” The respondent/mother has not been clear with respect to her employment status on her application for long term disability, her ability to work, her sources of income, and how she is paying for her expenses since separation.
In effect, it is the position of the applicant/father that the respondent/mother can work and income should be imputed to her or, has the ability to obtain disability benefits either from CPP, or ODSP, long term disability through her insurer, or work at Wal Mart and because of this, income should be imputed to her.
Analysis
[40] Section 15.2 of the Divorce Act grants the court jurisdiction to make an order for spousal support, requiring one spouse to pay the other spouse either a lump sum or periodic sums, in the amount the courts thinks reasonable for the support of the other spouse.
[41] Subsection 2 of the Divorce Act makes it clear that such an order can be made on an interim or temporary basis.
[42] Subsection 4 of section 15.2 of the Divorce Act sets out factors which the court is to take into consideration. These considerations are the condition, needs and means and other circumstances of each spouse, including:
(a) the length of time spouses cohabitated;
(b) the functions performed by each spouse during cohabitation;
(c) any order, agreement, or arrangement relating to support of either spouse.
[43] Subsection 6 of section 15.2 of the Divorce Act sets out the objectives of spousal support. The objectives of spousal support includes:
(a) Recognize any economic advantages or disadvantages to the spouse arising from the marriage or its breakdown;
(b) Promote between the spouses, any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) Insofar as practical, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[44] It is not an issue that the marriage between the parties was just over nine years. At the age of the applicant/father and the date of separation was forty-three years of age. He is now forty-four years of age. The respondent/wife at the date of separation was forty-five years of age. She is now forty-six years of age.
[45] There is also no issue that the respondent/mother suffers from depression and has early signs of Huntington’s Disease.
[46] The issue is that of quantum, as indicated previously. And in looking at quantum, the applicant/father puts forth that his court should impute income to the respondent/mother.
[47] Each case is different and the significance of each of the factors outlined above will vary from case to case. Accordingly, this requires a contextual approach. In looking at a contextual approach, Lemon J. in Driscoll v. Driscoll[^5] set out a list of principles concerning interim spousal support motions. At para. 14, Lemon J. referenced the list of legal principles from Robles v. Kuhn[^6]:
(a) On an application for interim support the recipient’s needs and the payor's ability to pay assume greater significance;
(b) An interim order should attempt to be sufficient to allow the recipient to continue living at the same standard of living enjoyed prior to separation if the payor's income and ability to pay allows it;
(c) The court does not attempt to impark on an in-depth analysis of the parties' circumstances. This should be left to trial. At best, the court achieves a form of rough justice;
(d) The court should not over or unduly emphasize any one of the statutory considerations as set out above;
(e) The need to achieve self-sufficiency is often of less significance;
(f) Interim support should be ordered within the range as suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate a variance from those guidelines;
(g) Interim support should only be ordered where it can be said a prima facie case for entitlement exists; and
(h) Where there is a need to resolve contested issues of fact, especially those connected with the threshold question such as entitlement, it becomes less advisable for a court to make an interim order for support.
[48] The above list is not an exhaustive list. But the list as set out my Lemon J. is of assistance in conducting a contextual analysis.
Means to Pay Support by the Applicant/Father
[49] There is no dispute in this motion that the applicant/father has the means to pay spousal support. His income is not in dispute nor the amount of the income contested. It is the position of the respondent/mother that the income of the applicant/father, as already stated, is $58,297 per annum. In contrast, the income put forth by the applicant/father is $58,355. Accordingly, for the purposes of this motion, I accept the income put forth by the respondent/mother of $58,297 per annum.
[50] The next question to be resolved is what is the income of the respondent/mother, if any?
Income of Respondent/Mother
[51] The applicant/father submits that the respondent/mother should be imputed income. The imputation of this income should be for child support and consequently for quantification of spousal support. The income that the respondent/mother should be imputed is of $22,000 to $23,000 per annum as employment income, as was her income with Wal Mart, or $15,000 per annum, being income she should be receiving if she applied in a timely basis for CPP disability.
[52] In determining whether to impute income, the court is governed by the Federal Child Support Guidelines[^7], namely section 19 of those guidelines. Section 19 of the Federal Child Support Guidelines states:
- The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
[53] In determining whether a spouse is intentionally under-employed or unemployed, the court is guided by the Ontario Court of Appeal decision in Drygala v. Pauli[^8]. In that decision, the court indicated that a trial judge is required to consider:
(a) First, is the spouse intentionally under-employed or unemployed.
(b) In determining whether a spouse is “intentionally” under-employed and unemployed, intentionally means a voluntary act.
(c) Accordingly, what the court must determine is whether the under-employment or unemployment is due to an act of the spouse or is that act outside of the spouse’s power, such as being laid off, terminated, or given reduced hours of work.
[54] Thus, the court needs to determine in this circumstance, is whether or not the respondent/mother is “intentionally” under-employed or unemployed.
[55] I have also found instructive, the decision of Chappel J. in Smith v. Smith[^9]. In that decision, Chappel J., at para. 81, sets out relevant factors in determining whether impute income includes:
The onus is on the party seeking to impute income to establish an evidentiary basis upon which to establish that the other party is intentionally unemployed or underemployed.
It is not necessary to establish bad faith or an attempt to thwart support obligations before imputing income. A payor is intentionally underemployed if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances. The factors that the court should consider include the age, education, experience, skills and health of the party, the party’s past earning history and the amount of income that the party could reasonably earn if they worked to capacity.
There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their dependants.
The court will not excuse a party from their support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce support payments.
If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the party’s support obligations.
Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them.
The amount of income that the court imputes to a party is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute.
[56] I have also reviewed the cases provided by the applicant/father as his basis that I should impute income to the respondent/mother. The applicant/father provided a Court of Appeal decision in Edgar v. Edgar[^10]. This is an appeal from a trial decision. In this case, there is an issue of imputing income to the respondent to the fact that the respondent was aware of the Canada Pension Plan benefits had not applied.
[57] I have also reviewed the other decision provided of Rea v. Rea[^11]. This is again an appeal from a 2012 trial, where the wife was called on to report on her condition efforts to find employment. In this decision, a 2007 order found the wife medically unfit at that time. It was the obligation of the wife to provide medical evidence to determine whether or not she is fit to work. The court found: “the wife was the only person in position to put her medical condition into evidence and had been warned that further proof was needed.” The trial judge found that the wife had imputed income to her for $19,500 based on the entry level work. Divisional Court found this reasonable, given that the wife did not provide the necessary medical evidence.
[58] In reviewing the decisions outlined above, the evidence provided, and taking a contextual approach, I am not persuaded at this stage that the respondent/mother is “intentionally” under-employed or unemployed.
[59] Consequently, I am not convinced to impute income to the respondent/mother. The respondent/mother has indicated she has appealed the decision from her insurer with respect to her long term disability. The respondent/mother has also indicated that she has applied for CPP benefits.
[60] I also do wish to note that the respondent/mother did not bring a motion for spousal support until this motion. She was collecting short term disability from the insurer of her employer and she was also obtaining employment insurance. It is until both of those have run out and that her request for long term disability was denied, that the respondent/mother brought this motion requesting spousal support.
Quantum of Spousal Support
[61] Both parties have provided me with spousal support guideline calculations. As indicated, the income of the applicant/father is not in dispute. The question becomes the quantum of that spousal support to be paid by the applicant/father. It is not in dispute that this court can use calculations from the spousal support guidelines, as a measurement in determining a quantum of support to be paid. I am also cognizant of the fact that the applicant/father is the one who has the children living with him on a day-to-day basis and is the primary caregiver of the children.
[62] Based on the Divorcemate calculations provided by both parties, and utilizing the income of the applicant/father the sum of $58,297 per annum, the spousal support advisory guidelines indicate that the spousal support monthly amount is:
(a) On the low end, $516 per month;
(b) On the mid end, $601 per month;
(c) On the high end, $687 per month.
[63] Given my finding that I am not convinced to imputing to the respondent/mother at this time, I am also not convinced that the amount of spousal support to be paid should be at the high end as requested by the respondent/mother.
[64] In light of all the circumstances, I find that the applicant/father should pay to the respondent/mother spousal support in the mid-range of $601 per month, commencing April 1, 2015. The support deduction order should therefore issue.
Other Relief Claimed by the Respondent/Mother in her Notice of Motion
[65] With respect to the claims of relief in paras. 3, 4, 5, 6, 7, 8, and 9 of the notice of motion of the respondent/mother, I heard very little submissions, if any, on any of these points. In reviewing the affidavits of the respondent/mother of February 17, 2015 and March 11, 2015, there is little or no evidence dealing with these claims of relief in the notice of motion. Therefore, I am not inclined to grant relief requested in paras. 3, 6, 8, and 9 of the notice of motion. I am, however, ordering:
(a) That both the applicant/father and respondent/mother immediately inform the other of any illness or other medical issue affecting either Liam or Madeleine.
(b) That both the applicant/father and respondent/mother facilitate any telephone calls between the children and that parent when that parent does not have the children in their care. Neither party should prevent the other from having reasonable telephone calls or communication with the children.
Disposition
[66] For the reasons given above, a temporary order to go as follows:
(a) That the respondent/mother’s weekend access shall be varied to the child, Madeleine, as follows: every other Saturday and Sunday, from Saturday 10:00 a.m. to Sunday 6:00 p.m., commencing July 4, 2015, or any other date the parties may agree. Paragraph 2(b) of Gunsolus J.’s order dated June 24, 2014, is varied accordingly.
(b) The arrangements for picking up the child as set out in the order of Gunsolus J. dated June 24, 2014, namely para. 2(c), to continue.
(c) The individuals named for supervision of access as set out in the orders dated June 27, 2014, December 29, 2014 and March 13, 2015, shall remain.
(d) Access at the Children’s Aid Society Access Centre as set out in para. 2(a) of the order of Gunsolus J. dated June 24, 2014, to continue.
(e) The applicant/father shall pay spousal support to the respondent/mother in the amount of $601 per month, based on his annual income of $58,297, commencing April 1, 2015 and payable on the first day of each month thereafter. Support deduction order to issue.
(f) Both the applicant/father and respondent/mother to facilitate any telephone calls between the children and that parent when that parent does not have the children in their care. Neither party should prevent the other from having reasonable telephone calls or communication with the children.
(g) Both the applicant/father and respondent/mother shall immediately inform the other of any illness or other immediate issue affecting either Liam or Madeleine.
Costs
[67] If the parties cannot agree on costs, I will accept written submissions for costs. The respondent/mother shall provide her submissions within twenty-one days from the date of this order. The applicant/father shall reply with his submissions within fourteen days from receipt of the costs submissions from the respondent/mother. Costs submissions to be no longer than three pages, not including any bill of costs/costs outline, case law, or offer to settle.
Justice P.W. Sutherland
Released: June 22, 2015
[^1]: RSO 1990, c. C.12 [^2]: RSC 1985,c 3 (2nd Supp) [^3]: Canada Pension Plan [^4]: Ontario Disability Support Program [^5]: 2009 Carswell (ONT. 7393) [^6]: 2009 BCSC 1163, [2009] B.C.J. No. 1699 [^7]: SOR/97-175 [^8]: 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731(ca) [^9]: (2012) ONSC 116 [^10]: 2012 ONCA 646 [^11]: 2013 ONSC (ON SCDC)