ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-05-0080-04
DATE: 2015-09-10
B E T W E E N:
Allan Hensel
The Applicant being self-represented
Applicant
- and -
Iryna Hensel
The Respondent being self-represented
Respondent
HEARD: August 27, 2015,
at Thunder Bay, Ontario
Regional Senior Justice D. C. Shaw
Reasons For Judgment
[1] The respondent, Iryna Hensel, brings a motion for an order relieving her of support payments for her child, Kristina Iryna Hensel, born August 22, 2002, for 12 months between August 2014 and September 2015, and for 12 months during 2009 – 2010. She also requests an order for access to her child.
[2] Ms. Hensel is employed as a teaching instructor with Lakehead Public Schools. She deposes that she is asking for relief from payment of child support for the 2014-2015 period because she had taken a leave of absence from her employment, both for health reasons and to visit with her family in Ukraine after war broke out in that country. Attached to her affidavit, sworn August 20, 2015, are translations of medical notes from a medical clinic in Ukraine where she was examined as an outpatient for physical and psychiatric issues.
[3] There is nothing in the notes attached to Ms. Hensel’s affidavit that provide an opinion that she was unable to work during August 2014 to September 2015.
[4] A Request for Leave of Absence from Lakehead Public Schools, signed by Ms. Hensel, dated August 11, 2014, is attached to her affidavit. In that Request, she asked for leave for the period September 8, 2015 to August 31, 2015 for “personal reasons”.
[5] With respect to the 12 months during 2009 – 2010, Ms. Hensel deposes that she was not employed. No details of her employment status during that period are attached. There are extensive details in the Report of the Children’s Lawyer, dated October 24, 2013, attached as an exhibit to Ms. Hensel’s affidavit sworn August 25, 2015, regarding psychiatric issues that Ms. Hensel was having during 2009 – 2011. There is reference to a diagnosis of paranoid psychosis resulting in a Form 1 admission to hospital for a psychiatric assessment in March 2010 and a second, lengthy admission to the Forensic Unit of Thunder Bay Regional Hospital and then the Adult Mental Health Unit, during November 2010 to August 2011. There is also a reference in the Report of the Children’s Lawyer to a leave of absence which Ms. Hensel was put on by her employer after a work performance review in May 2009. The report indicates that the teacher’s union advocated that her performance issues were related to a medical condition and that Ms. Hensel had been provided with Short Term Disability benefits beginning in September 2009, for six months. There are no details as to the amount of her benefits.
[6] A Financial Statement sworn by Ms. Hensel on December 28, 2011, attached to her affidavit, shows employment income of $2,581.75 per month for the period December 22, 2010 to December 22, 2011, or $30,981. That Financial Statement also shows that Ms. Hensel had $32,800 on deposit at the Royal Bank.
[7] Ms. Hensel’s 2013 Income Tax Return, attached to her affidavit, shows line 150 income of $55,006, based on employment income of $50,790 and employment insurance benefits of $4,216.
[8] The child support order which Ms. Hensel seeks to vary was made by Justice Warkentin on July 3, 2009, in the amount of $478 per month, to commence May 2008. There is no indication in that order as to what income the amount of child support was based on.
[9] Ms. Hensel had been granted access to the child pursuant to the judgment of Justice Smith of October 23, 2007. In her order of July 3, 2009, Justice Warkentin terminated that access. Justice Warkentin ordered that any future access was to be limited to access through the Supervised Access Program and in conformity with any recommendations from the Children’s Centre.
[10] On September 16, 2010, Justice Fregeau heard a motion by Ms. Hensel to change the order of Justice Warkentin. Ms. Hensel requested custody of the child. Justice Fregeau dismissed the motion on the grounds that Ms. Hensel had not presented any evidence in support of the motion to change.
[11] On March 31, 2012, Justice Fregeau requested the involvement of the Office of the Children’s Lawyer, resulting in the above-mentioned Report of October 24, 2013. This comprehensive report recommended that Mr. Hensel have sole custody and that Ms. Hensel’s access be limited to contact on a monthly basis in the form of a letter, card or present.
[12] On June 17, 2014, Mr. Hensel and Ms. Hensel attended before me and, on consent, an order was made dismissing Ms. Hensel’s application for access.
[13] Ms. Hensel is in arrears of child support as of August 25, 2015, in the sum of $22,469.09.
[14] Ms. Hensel is in default of a costs order made by Justice Smith on August 29, 2005, in the amount of $8,749.65. She is in default of a costs order made by Justice Smith on January 4, 2008, after a lengthy trial, in the amount of $56,315.07. She is in default of a costs order made by Justice Warkentin on July 3, 20009 in the amount of $2,500. She is in default of an equalization payment of $5,192.21 ordered by Justice Smith on October 23, 2007.
Discussion
[15] Ms. Hensel’s motion to rescind child support is dismissed.
[16] Firstly, she has not presented sufficient evidence to support her claim that she should be relieved of her child support obligations.
[17] There is no medical evidence to support her claim that she was unable to work between August 2014 and September 2015. Her request for a leave of absence from Lakehead Public Schools made no reference to medical necessity. Rather, it stated that the leave was requested for “personal reasons”. In her submissions, Ms. Hensel said that she was concerned for her family in Ukraine and wanted to be with them. I do not doubt her concerns, given the war in Ukraine. However, that is not a sufficient reason to terminate child support. Moreover, as pointed out in Mr. Hensel’s affidavit, Ms. Hensel is able to take her summers off as a teacher and could have spent time with her family in Ukraine as she has done in the past, without giving up her employment.
[18] No financial information has been filed for the period of 2009 – 2010. There is an indication that Ms. Hensel was on disability benefits, but she provides no details. There is also her acknowledgment in her Financial Statement that she had $32,800 at the Royal Bank in December 2011.
[19] Secondly, with respect to the request to rescind child support in 2009 – 2010, I find that there has been an unreasonable delay in making this request. In September 2010, Ms. Hensel brought a motion before Justice Fregeau to vary Justice Warkentin’s order of July 3, 2009. She made no request at that time to vary Justice Warkentin’s support award. She made a further application to vary Justice Warkentin’s order, resulting in Justice Fregeau’s order of March 21, 2012 to involve the Children’s Lawyer. Another application to vary Justice Warkentin’s access order was made by Ms. Hensel in 2014, which was dismissed on consent on June 17, 2014. She had ample opportunity to deal with child support issues that are now six years old.
[20] Thirdly, Ms. Hensel has failed, repeatedly, to pay costs awards made against her, going back ten years. She is in arrears of child support, beyond the support owing for the two periods in issue on this motion. She is in default of making the equalization payment ordered in 2007. Having ignored the orders of the court during the past decade, during which time she has had $32,800 in her bank account, the court should not be quick to exercise its discretion to grant the financial relief which Ms. Hensel seeks.
[21] Ms. Hensel’s motion for access is also dismissed.
[22] The only reason which Ms. Hensel gives in support of her claim for access is that, as the mother of the child, she is entitled to access. This is not a sufficient reason. The only test is what is in the best interests of the child. In her order of July 3, 2009, Justice Warkentin determined that it was in the best interests of the child that access was to be limited to access through the Supervised Access Centre, in conformity with recommendations of the Children’s Centre. Access was suspended in May 2009 on the recommendation of the Children’s Centre due to concerns with Ms. Hensel’s behaviour. After the appointment of the Children’s Lawyer, access occurred at the Supervised Access Program from November 11, 2012 until May 23, 2013, when it was stopped by the Supervised Access Program because of the child’s refusal on three separate occasions to return to or go up to the access room. There had been no meaningful contact between the child and Ms. Hensel for over four years, from May 2008 until November 2012.
[23] After a lengthy investigation, the Children’s Lawyer determined in October 2013 that it was not in the best interests of the child for Ms. Hensel to have access other than by monthly letters, cards or presents.
[24] There is no evidence of any material changes since the Children’s Lawyer’s Report of October 24, 2013. There is no evidence that access would be in the best interest of the child.
Conclusion
[25] For the reasons given, Ms. Hensel’s motion dated August 20, 2015, is dismissed.
The Hon. Mr. Justice D. C. Shaw
Released: September 10, 2015
COURT FILE NO.: FS-05-0080-04
DATE: 2015-09-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Allan Hensel
Applicant
- and -
Iryna Hensel
Respondent
REASONS FOR JUDGMENT
Shaw R.S.J.
Released: September 10, 2015
/mls