SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-14-82101-00
DATE: 20150929
RE: N.S.F. – and – R.J.W.F.
BEFORE: F. DAWSON J.
COUNSEL:
N.S.F., on her own behalf
R.J.W.F., on his own behalf
HEARD: September 28, 2015
ENDORSEMENT
[1] On August 10, 2015 Daley R.S.J. conducted a case conference in relation to this matter. He found that the respondent was in default and ordered that the case proceed as an undefended trial on September 28, 2015. I note that although an affidavit of service shows that the respondent was served with the Notice of Application, Financial Statement and Affidavit of the applicant, no responding material of any kind was filed.
[2] The applicant appeared for the trial without counsel. She was in the witness box giving evidence when the respondent entered the court room and wanted to be heard. I explained to the respondent that he was in default and had no status to participate in the proceedings. However, I recessed so the respondent could speak to duty counsel.
[3] After speaking to duty counsel the respondent advised me, in essence, that he wanted to file an answer and participate in the proceedings. He explained that he is charged with sexual assault and assault on the applicant and that bail conditions and his disrupted circumstances have made it difficult for him to communicate with the applicant in relation to this matter. He acknowledged that he and the applicant have lived separate and apart for more than one year and that there have not been any attempts to reconcile. He advised me, not under oath, that he has agreed to pay the applicant $250 per week for support of the two children and has made some payments in that regard.
[4] Based on the foregoing, and the evidence adduced on the uncontested trial, I make the following order:
(1) The application for divorce is severed from the claim for corollary relief. The applicant is granted a divorce from the respondent who she married on October 12, 2007 in Mississauga. The divorce takes effect 31 days after the date of this order.
(2) The noting in default of the respondent is set aside. The respondent shall have 30 days from the date of this order to serve and file an Answer, and to comply with the rules regarding financial disclosure that is to accompany that Answer.
(3) If the respondent fails to deliver his Answer in accordance with para. 2 above, the applicant may bring a motion without notice to the respondent to have the temporary orders below converted into final orders.
(4) On a temporary basis, custody of the children A.F., born on […], 2007 and Z.F., born on […], 2012 shall be with the applicant.
(5) Also on a temporary basis, the respondent may have access to the children on Sundays from 11:00 a.m. to 6:00 p.m. The access exchanges shall be effected by the respondent’s parents or such other third party as is agreeable to the applicant. The children are to be picked up and dropped off at the applicant’s residence. The respondent shall advise the applicant though his parents or a mutually agreed upon third party 48 hours in advance if he needs to reschedule or cancel access.
(6) On a temporary basis, the respondent is to pay child support to the applicant in the amount of $481.00 per month for two children based on the Child Support Guidelines and an imputed income to the respondent of $33,000 per year. Payments are to be made on the 25th of each month. The commencement date is June 25, 2014 which was the date of separation.
(7) On a temporary basis the respondent is to pay the applicant 50 percent of the costs of daycare expenses based on the number of days the children are actually attending daycare, to a maximum of five days per week. Such payments are to be made on the 25th of each month commencing September 25, 2015.
(8) The need for approval of the order is dispensed with. The trial office shall assist the applicant with the expeditious issue and entry of this order.
(9) Unless withdrawn, by mutual consent of the parties, the support provisions of this order shall be enforced by the Family Responsibility Office.
(10) The respondent shall pay the applicant costs in the amount of $500 in relation to the proceedings on September 28, 2015.
[5] I note that the applicant sought further extraordinary child support expenses pursuant to s. 7 of the Child Support Guidelines. I am not prepared to make a further order on the basis of the limited information available about the respondent’s income or earning ability and ability to pay. In the event the respondent fails to deliver his Answer as provided in para. 2 above the applicant may renew her claim for such additional extraordinary expenses.
[6] I also direct that the documents provided to the court by the applicant on September 28, 2015, prior to the arrival of the respondent in the court room shall be marked as Exhibit 1 on the uncontested trial. That was overlooked due to the unexpected disruption of the proceedings. I have clipped those documents together and identified them for the assistance of the registrar of the court.
[7] In the material filed on September 28, 20015 the applicant also sought a restraining order against the respondent. No such request was included in the original application. The evidence before me is also sparse, beyond indicating that the respondent is charged with offences against the applicant. I am not prepared to issue a restraining order without further detailed evidence. In reaching this conclusion I note that the respondent is subject to a judicial interim release order on the criminal charges which contains a provision that the he is not to be within 50 metres of any place the applicant is known to be. That order also contains other provisions designed to protect the respondent. The applicant is free to renew her request for a restraining order on the basis of more comprehensive material should she wish to do so.
F. Dawson J.
DATE: September 29, 2015
COURT FILE NO.: FS-14-82101-00
DATE: 20150929
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: N.S.F. – and – R.J.W.F.
BEFORE: F. DAWSON J.
COUNSEL:
N.S.F., on her own behalf
R.J.W.F., on his own behalf
ENDORSEMENT
F. Dawson J.
DATE: September 29, 2015