SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS3807-15

DATE: 2015/11/20

RE: Cindy Brouillette v. Charles Desgroseilliers

BEFORE: Ellies J.

COUNSEL:
Erinn A. Fitzpatrick, for the Applicant
Charles Desgroseilliers, acting in person

HEARD: November 13, 2015

ENDORSEMENT

[1] Ms. Brouillette filed a simple divorce application, seeking nothing other than a divorce. Mr. Desgroseilliers apparently served an Answer, but failed to file it. Perhaps thinking that he had, Ms. Brouillette’s counsel served a conference notice and the divorce application up in front of Karam J. at a case conference on September 8, 2015. Notwithstanding Karam J.’s order of that date that Mr. Desgroseilliers take the steps necessary to pursue corollary relief under the Divorce Act, R.S.C. 1985, c.3, if he wished to do so, Mr. Desgroseilliers has still not filed an Answer.

[2] Despite that fact, Mr. Desgroseilliers has managed to file a motion (see tab 3 of the continuing record) in which he seeks custody of the children, spousal support, and what I believe is an order for equalization of family property, among other things. In response, Ms. Brouillette moves (see tab 5 of the continuing record) for a temporary order for custody and primary residency of the children, with supervised access only to Mr. Desgroseilliers, and other relief.

[3] These motions raise issues relating to the effect of pre-existing orders under provincial family law legislation in the context of divorce proceedings, as well as issues regarding the limitation period for applying for equalization of family property under the Family Law Act, R.S.O. 1990, c. F.3.

Mr. Desgroseilliers’ motion

[4] In his motion, Mr. Desgroseilliers seeks the following relief:

(a) an order for joint custody or, in the alternative, unsupervised access to the children, André Patrick Réjean Desgroseilliers, presently age 12, and Roch Roy Réjean Desgroseilliers, presently age 8;

(b) spousal support;

(c) equalization of family property, including pensions and an accounting of various sums of money Mr. Desgroseilliers alleges were loans he has repaid which survived Ms. Brouillette’s bankruptcy;

(d) the return of various items of property, including a 1994 snow machine and his father’s personal belongings;

(e) the removal of Ms. Brouillette’s name from title to his 2002 F-150 SuperCrew King Ranch vehicle and another motorized vehicle; and

(f) copies of family photos and videos.

[5] I will deal with the first three requests separately. I will deal with the last three as a group.

Custody and Access

[6] The parties were married in 1995 and separated on August 24, 2009. Proceedings were commenced in the Ontario Court of Justice shortly after the parties separated. The first temporary order was made by Duchesneau-McLachlan J. of that court on September 24, 2009. In it, Ms. Brouillette was granted custody of the children. She has retained custody of the children and their primary residence has been with her since that date.

[7] On June 29, 2011, Lebel J. of the Ontario Court of Justice made a final order, on consent. That order resolved all of the outstanding issues between the parties in the Ontario Court of Justice, with the exception of ongoing summer access and child support.

[8] In March, 2014, Mr. Desgroseilliers was arrested and charged with child luring and making sexually explicit material available to a child. The alleged victim resides in the United States. According to Mr. Desgroseilliers, he was released on a recognizance containing conditions, including that he be in the company of one of his sureties at all times.

[9] On May 29, 2014, Klein J. of the Ontario Court of Justice made a temporary order, on consent, that Mr. Desgroseilliers’ access to the children be exercised at the Sturgeon Falls Supervised Access Centre.

[10] On December 4, 2014, Mr. Desgroseilliers brought a motion before the Ontario Court of Justice, requesting joint custody and week about access to the children, or at a minimum a return to the unsupervised access schedule imposed by Lebel J. in 2011. Mr. Desgroseilliers’ motion was dismissed. Klein J. held that there had been no material change in circumstances since the consent temporary order was made in May, 2014. According to the evidence of Ms. Brouillette, in oral reasons, Klein J. noted that the supervised access that was imposed on that date was agreed to in order to await the results of the criminal charges.

[11] The criminal charges are still outstanding. According to Mr. Desgroseilliers’ oral submissions to me, his attempts at pleading guilty or reaching a plea agreement with the Crown have failed. Therefore, he advises, the matter is scheduled for trial on May 19, 2016.

[12] It is not necessary for Mr. Desgroseilliers to demonstrate a material change in circumstances as a precondition to obtaining an order for custody or access under the Divorce Act that differs from the orders imposed under provincial legislation: see Durso v. Mascherin, 2013 ONSC 6522 (Ont. S.C.) at para. 14; Houle v. Trottier, 2012 ONSC 6661 at paras. 7 and 10. However, a divorce court has the discretion to refuse to grant an order for temporary relief under the Divorce Act and to allow an order made under provincial legislation to remain in force: Pantry v. Pantry (1986), 1986 2537 (ON CA), 53 O.R. (2d) 667 (Ont. C.A.). Moreover, a divorce court should be reluctant to allow a party to re-litigate issues that have already been decided as between the parties: see Smith v. Smith (1998), 1998 29652 (ON SC), 36 R.F.L. (4th) 419 (Ont. Gen. Div.); Rehn v. Rehn (1988), 1988 8627 (ON SC), 13 R.F.L. (3d) 440, 1988 CarswellOnt 236, [1988] O.J. No. 522 (Ont. U.F.C.).

[13] I agree wholeheartedly with the reason for which Klein J. dismissed Mr. Desgroseilliers’ December, 2014 motion. The allegations against Mr. Desgroseilliers warrant the imposition of the supervised access order and nothing appears to have changed since it was imposed to justify making a different one. I do not accept Mr. Desgroseilliers’ submission that he has “maxed out” his time at the supervised access centre.

[14] I also wholeheartedly agree with Ms. Brouillette’s concerns arising from Mr. Desgroseilliers’ apparent defence to the criminal charges. According to the evidence of Ms. Brouillette and the oral submissions of Mr. Desgroseilliers, the events that led to the criminal charges arose as a result of the acts of his son, André, who was 10 years old at the time. If true, I would be concerned about Mr. Desgroseilliers’ ability to properly supervise the children while in his care.

[15] For these reasons, Mr. Desgroseilliers’ request for unsupervised access to the children is denied.

Spousal Support

[16] Mr. Desgroseilliers’ motion for spousal support is also denied, for two principle reasons.

[17] First, Mr. Desgroseilliers failed to file a financial statement in support of his request, as required under the Family Law Rules. Nor has he filed the necessary supporting financial documentation required by those rules. Therefore, there is no evidence before me of Mr. Desgroseilliers’ means and needs.

[18] Second, the evidence that has been filed by Mr. Desgroseilliers in support of his motion is devoid of any explanation as to why an apparently able-bodied man now requires spousal support more than six years following separation. In argument, Mr. Desgroseilliers submitted that he has suffered from various medical conditions that have impaired his ability to earn income. However, there is no basis for these submissions in the evidence.

[19] Even if Mr. Desgroseilliers’ submissions had an evidentiary foundation, they would not be sufficient to justify an award of spousal support in his favour, in my view. One of the conditions upon which he relies is the fact that he was born with “cranial synthosis”, which he explained involves the improper fusing of the skull bones. He says he underwent surgery for this condition as a child. According to Mr. Desgroseilliers, it left him susceptible to concussions. However, he also advises that as recently as 2010, he was employed full-time as an excavator operator, working 10 to 14 hour shifts on occasion. Therefore, the condition of his cranium does not appear to interfere with his ability to work.

[20] The second medical condition relied upon by Mr. Desgroseilliers arose more recently. He alleges that he was diagnosed with cancer in his lymph system and in his prostate in 2012. However, he says he was treated and that now he is fine. He offers no explanation, even in his oral submissions, as to why this condition now prevents him from working.

Equalization of Family Property

[21] At paras. 5, 6 and 12 of his notice of motion, Mr. Desgroseilliers makes the following requests:

5. I would also like the court to look at pensions and benefits as when we were married for fourteen years and together for almost twenty years.

6. In March of 1998, we both had a written agreement with my uncle Albert Desgroseilliers for a personal loan of $10,000.00 since she didn’t include that debt in her 2009 bankruptcy the my uncle still holds us both responsible for the debt. I have since made arrangements with him to repay that debt to a maximum of fifty percent.

7. In September 2006, Cindy had drafted an agreement with my Aunt Diane Desgroseilliers for a personal loan for $10,000.00 and had documentation made with her employer stating that until that said debt is paid in full that my Aunt had a lean on benefits from Au Chateau where Cindy is employed as a nurse. She did not include that debt into her bankruptcy in 2009.

[22] Pursuant to s. 7(3) of the Family Law Act, an application to equalize family property must be brought within six years after the date the spouses separated and there is no reasonable prospect that they will resume cohabitation. As indicated above, this occurred on August 24, 2009. Six years expired on August 24, 2015.

[23] Although, once again, there was no evidence in Mr. Desgroseilliers’ affidavit to support his submissions, Mr. Desgroseilliers indicated that he had failed to bring his application earlier as a result of the advice of the various lawyers that represented him in the proceedings before the Ontario Court of Justice. According to Mr. Desgroseilliers, those lawyers advised him to deal first with the issues surrounding custody and access before dealing with the issues relating to property. Mr. Desgroseilliers says that he was advised by his lawyers that he had lots of time within which to deal with the property issues.

[24] Even if I accept Mr. Desgroseilliers’ submissions as evidence, they would not be sufficient to extend the limitation period, as I am permitted to do under s. 2(8) of the Family Law Act. That section permits a court to extend a time prescribed by the act where three conditions are met:

(a) there are apparent grounds for relief;

(b) relief is unavailable because of delay that has been incurred in good faith; and

(c) no person will suffer substantial prejudice by reason of the delay.

[25] As pointed out by Ms. Fitzpatrick, the vast majority of the outstanding family issues were resolved by the order of Lebel J. made on June 29, 2011. That was over four years ago. Mr. Desgroseilliers did nothing to advance his claim with respect to property after that date until bringing his motion on October 8, 2015. In my view, Mr. Desgroseilliers has failed to establish condition (b). I need not address whether he has established the others.

[26] For these reasons, the request for equalization of family property is dismissed on a final basis.

The Request for Various Personal Items, Copies of Family Photos and Videos, and Transfer of Vehicles

[27] Unlike the situation with respect to equalization of family property, I am not aware of any limitation period for bringing applications for the determination of title between spouses under s. 10 of the Family Law Act. However, there is an issue as to whether the parties remain “spouses”. In her affidavit evidence, Ms. Brouillette indicates that “a divorce was granted” at the case conference on September 8, 2015 (see tab 6, para. 31). If true, Mr. Desgroseilliers’ request would be out of time, given that his notice of motion is dated October 8, 2015 and given that Karam J. did not specifically order that any claim for corollary relief be dealt with separately from the divorce. Karam J.’s endorsement of September 8 in this regard states only:

Divorce Judg. to go uncontested. Approval by Resp. as to form & content unnecessary.

[28] However, there is no indication in the continuing record that the divorce was granted, other than Ms. Brouillette’s evidence.

[29] For this reason, Mr. Desgroseilliers’ request is adjourned to November 27, 2015. It shall be open to the parties to file sworn evidence in connection with this issue.

[30] With respect to the truck, Ms. Fitzpatrick advises that Ms. Brouillette is content to appear with Mr. Desgroseilliers at an agreed upon time before the proper authorities for the purpose of transferring the ownership into Mr. Desgroseilliers’ name alone. I accept Ms. Brouillette’s evidence that the remaining vehicles have been disposed of. Therefore, no order will be made in connection with those.

Ms. Brouillette’s Motion

[31] In her motion Ms. Brouillette requests a temporary order for custody and primary residence of the children with supervised access to the respondent along the lines of the order of Klein J. of May 29, 2014. Given my decision to allow that order to stand, however, it is not necessary to grant this relief.

[32] In addition, Ms. Brouillette seeks an order for production of “records relating to the respondent” from the West Nipissing Police Service and the Ontario Provincial Police, pursuant to Rule 19(11) of the Family Law Rules. However, that rule requires that the notice of motion be served on the parties from whom such production is required. The affidavit of service filed in connection with Ms. Brouillette’s notice of motion does not indicate that that notice of motion was served upon either the West Nipissing Police or the Ontario Provincial Police. That is a necessary precondition to granting the relief requested.

[33] In my view, production of the materials requested is also governed by the procedure set out in D.P. v. Wagg (2004), 2004 39048 (ON CA), 187 O.A.C. 26, 71 O.R. (3d) 229 (Ont. C.A.). That decision requires that the party seeking production of the contents of a Crown brief must also provide notice to the Crown. Again, that does not appear to have been done in this case.

[34] Ms. Brouillette’s request for production is, therefore, denied. However, during the hearing, Mr. Desgroseilliers indicated that he is prepared either to obtain or to provide consent to Ms. Brouillette to obtain a copy of his criminal record. Unlike a request for production of documents that may comprise Crown disclosure, a request for an order of a copy of a person’s criminal record need not be served on the police. For that reason, there is no impediment to this court making an order that Mr. Desgroseilliers provide either a copy of his criminal record from the RCMP or, alternatively, that he provide counsel for Ms. Brouillette with a signed consent directed to the RCMP so that she may obtain a copy directly.

[35] Ms. Brouillette’s further request for an update of the s. 30 assessment is also dismissed, given my decision to allow the orders in the Ontario Court of Justice to stand.

Costs

[36] During the hearing, I requested submissions on the issue of costs, depending on which party was successful. On behalf of Ms. Brouillette, Ms. Fitzpatrick submitted that her client should be awarded costs of $1,000, if successful. Mr. Desgroseilliers submitted that neither party should pay costs, regardless of the outcome of the motion.

[37] I see no reason not to accept Ms. Fitzpatrick’s submission. Mr. Desgroseilliers’ request for joint custody and access is an obvious attempt to take advantage of Ms. Brouillette’s request for a divorce to re-litigate issues that have already been decided against him. Ms. Brouillette’s motion was brought in response.

[38] Accordingly, Mr. Desgroseilliers shall pay costs in the amount of $1,000 within six months of the date of this endorsement.

order

[39] For the foregoing reasons the following order shall issue:

(1) Mr. Desgroseilliers shall file his Answer, together with proof of service, within 10 days of the release of this endorsement.

(2) Mr. Desgroseilliers’ requests relating to custody, access, support and equalization of property shall be and the same are hereby dismissed.

(3) The balance of Mr. Desgroseilliers’ motion shall be adjourned to November 27, 2015.

(4) Mr. Desgroseilliers shall either provide written proof that he has requested a copy of his criminal record from the RCMP and, once received, forthwith provide the original thereof to counsel for Ms. Brouillette, or provide a signed consent for that purpose to counsel for Ms. Brouillette within 10 days of the date of this endorsement.

(5) Ms. Brouillette shall attend with Mr. Desgroseilliers on a mutually agreeable date within 14 days of the date of this endorsement for the purpose of executing any documents necessary to remove Ms. Brouillette from title to the 2002 Ford F-150 SuperCrew King Ranch vehicle.

(6) Mr. Desgroseilliers shall pay to Ms. Brouillette or to her counsel costs in the amount of $1,000 within six months of the date of this endorsement.

[40] It shall not be necessary for Ms. Fitzpatrick to obtain Mr. Desgroseilliers’ approval of the draft order under Rule 24(4) of the Family Law Rules.

Ellies J.

Date: November 20, 2015