CITATION: Ketchabaw v. Ketchabaw, 2016 ONSC 1570
COURT FILE NO.: 3333/15
DATE: 2016-03-03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WADE ELLIS KETCHABAW
Applicant
– and –
HANNAH SEPTEMBER SARAI KETCHABAW
Respondent
P. Skeggs, Counsel for the Applicant
H. Mendes, Counsel for the Respondent
HEARD: March 3, 2016
RASAIAH j.
DECISION ON MOTION
[1] Before me today, was a motion for chattels brought by the Applicant mother that are currently at the matrimonial home. She no longer resides in the matrimonial home.
[2] The Applicant and Respondent are husband and wife. The Applicant claims the parties’ date of separation was June 2014 while the Respondent claims it was November 2014.
[3] There are four children of the marriage, ages 3, 6, 7 and 9. The children are now residing with the Applicant in Sault Ste. Marie.
[4] The Respondent lives in Blind River in the matrimonial home. The address of the matrimonial home is 48 River Drive, Blind River, Ontario.
[5] In providing some background, the Respondent drew attention to his allegation that during the separation the Applicant unilaterally changed the children’s school from Blind River to Elliot Lake while he was preparing his said application that is before the court and that he unexpectedly found himself charged with what he describes as dated allegations of domestic assault which he has pleaded not guilty to committing. The trial is set to continue in the matter March 7, 2016.
[6] The Respondent currently has biweekly supervised access to the children at a supervised access facility on an interim interim without prejudice order, which followed the aforementioned charges.
[7] A List of chattels was filed as Exhibit 1. On this list, particular items were highlighted in yellow. The highlighted items represent the disputed items that the Applicant asks I order be provided to her.
[8] The Applicant claims that the chattels that the parties cannot agree to exchange belong to the Applicant and she relies on her affidavit at Tab 14 of the Continuing Record, paragraphs 82 to 87, in that respect. The trouble I have with this is that the affidavit is not particularized and the list in question, Exhibit 1, was admittedly updated and created after this affidavit.
[9] The Applicant also states that the children desire to have these items.
[10] The highlighted items on Exhibit 1 for the most part are pieces of furniture, like dressers and beds. The children admittedly have adequate furnishing where they are currently living with the Applicant.
[11] The Respondent argues that the Applicant has already taken most of the items from the matrimonial home; and with the other items he is in agreement that she receive, he will be left with virtually nothing. He is hopeful and confident that his current access situation with the children will not continue much longer pending the resolution of the trial on the assault charges. He is making a claim for custody and the return of the children. He will need the items in dispute for the care of the children in the home, whether he has custody or unsupervised access at a future date. He won’t have any children’s furniture if the items are provided to the Applicant. It was recommended by the court, Respondent’s counsel indicated, that the request to have the issues of custody and access determined follow the completion of the assault trial. The Respondent had hoped for this to be in January of this year, but due to illness, it was postponed and is set to continue next week.
[12] I am not satisfied that there is any urgent need for the chattels in dispute by the Applicant based on the submissions. I am not satisfied based on the submissions and the affidavit materials that the children need them or are being adversely affected in any way by not having the items in dispute. The Applicant has furniture currently meeting the children’s needs. In respect of the Quad, the materials suggest that she has one already.
[13] I did not hear any submission to contradict that submission that if the Applicant receives the disputed items that the Respondent will be left essentially with no furniture for the care of the children.
[14] There is no need in my view for these items for the care of the children by the Applicant, simply a desire to have the items. I can appreciate the children of these ages seeking their toys, but I am not satisfied on the evidence that they are actively seeking the return of furniture when they currently have some at the Applicant’s home.
[15] Based on the foregoing, I am not ordering that the disputed items set out in Exhibit 1 be delivered to the Applicant as requested and that request is dismissed.
[16] There was agreement by the parties as to particular chattels that would be received by the Applicant from the matrimonial home, and accordingly I will address that next.
[17] Paragraph 63 of the Respondent’s affidavit sworn November 10, 2015 at Tab 17 of the Continuing record corresponded to and replied to a chattels request located at Tab 14 of the Continuing Record, marked as Exhibit “B” to the Applicant’s October 8, 2015 affidavit. The Respondent continues to agree to the Applicant having the items he particularized in this said affidavit.
[18] Respondent’s counsel indicated that the Respondent also agrees that the Applicant have those items in the list set out as part of Exhibit “A” to the affidavit of Alba Campioni sworn February 2, 2016, save and except the items that are noted in Exhibit 1.
[19] I have taken, paragraph 63 of the Respondent’s affidavit at Tab 17 of the Continuing Record, the exhibited chattel lists attached to the affidavits at Tabs 14 and 19 of the Continuing Record, and Exhibit 1 and altered those lists based on what I understand is agreed to and not agreed to. I have removed duplications. I have removed the disputed items from Exhibit 1. I ask the parties to note that it was not explained to me what “bunk bed set” meant. One list had bunk beds and the other had an entire bunk bed suite. Accordingly, none of the bunk bed suite will be received by the Applicant unless agreed to by the Respondent. These lists amended by me will be attached as Schedules to my order.
[20] Of note on this motion and for my consideration are the facts that currently pursuant to bail recognizance, the Respondent is not to be communicating directly or indirectly with or be within 100 metres of the Applicant. Accordingly it is reasonable in my view to order that the Respondent not be at the home for pick up so the Applicant can attend the home if she so chooses.
[21] The Applicant has attended at the home for pick-up of other items. I have not been provided with any reason as to why she cannot attend again to pick up the items she wants.
[22] The Applicant asks that the items the court orders be returned be made available for pick up on or before April 1, 2016. The Respondent is currently working for Hydro One and his work schedule is subject to the unpredictable weather, and as such, needs time to organize and prepare the items the court orders to be returned to the Applicant. Given the list of items, the request for the items not being one of need but more so a desire, and the Respondent’s work schedule issues, which I accept, I do not find the Respondent’s request unreasonable.
ORDER
[23] Based on all of the above, I order:
That on or before April 30, 2016, that the Applicant shall receive those items as set out in the three pages of Schedule “A” and the one page of Schedule “B”, attached hereto;
That a pick-up date of the said items shall be arranged by and between counsel in consultation with their respective clients and committed to in writing by letters between counsel, which date, in any event shall be no later than April 30, 2016 without further order of the Court;
That the Respondent shall pack up and get the said items ready for pick up by the Applicant no later than the day before the pick-up date that is arranged by counsel.
That the said items shall be picked up at the matrimonial home by the Applicant and her designate together, or by her designate alone on the arranged date, at her cost;
That on the pick-up date arranged, the Respondent shall not be at the matrimonial home and shall have a designate there to receive the Applicant and/or her designate and to co-ordinate the removal of the items from the said home; and
That if any issue arises as to the value of the items the Applicant is receiving in the resolution of the issues before the court at a future date, that the Applicant shall make the items available for appraisal, should one be required.
Rasaiah J.
Released: March 3, 2016
CITATION: Ketchabaw v. Ketchabaw, 2016 ONSC 1570
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WADE ELLIS KETCHABAW
- and -
HANNAH SEPTEMBER SARAI KETCHABAW
REASONS ON MOTION
Rasaiah J.
Released: March 3, 2016
Page 1
SCHEDULE “A”
LIST OF CHATTELS, ASSETS AND CHILDREN’S TOYS REQUESTED TO BE RETURNED
Sheets
Towels
Handmade quilts of the children
Children’s quilts purchased by the Respondent
Two off white round mirrors for the girls
Lego Barbie House
Toy Kitchen
Little table set
Doll House furniture and people
Dress up clothes
Baby books
Matching wreaths belonging to the girls
Wooden drop leaf side table
Page 2
All of the Respondent’s photo albums
All of the Respondent’s books
The Respondent’s SD photo cards
Glass jars from the kitchen
All baskets
Cook books
The Respondent’s dishes from her grandmother
Decorative pictures belonging to the Respondent
Tin stars
BakewRe Movies
Children’s see-saw
Page 3
The Respondent’s tools
Children’s clothes especially the sweaters
Hats, mitts, scarves belonging to the Respondent and the children
The Respondent’s toiletries
Page 1
SCHEDULE “`B”
UPDATED LIST OF CHILDREN`S ITEMS REQUESTED TO BE RETURNED
a. Handmade quilts for the children;
b. Children’s quilts purchased by the Respondent which include the two white and two plaid nautical quilts;
d. two off-white round mirrors;
e. Pria’s twin white four poster bed (not part of the set);
g. children’s books;
n. Remainder of the children’s toys including the Polly Pockets and Legos;
p. All of the photo albums, wall photos, and photographs on the wall of the children located on the walls of the matrimonial home;
aa. The Respondent’s home videos;
hh. Hat, mitts, scarves belonging to the Respondent and the children;
ii. The Respondent’s toiletries;
jj. Two Nintendo 2Ds and games