COURT FILE NO.: D25224/15
DATE: 2018/06/04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Mario Elias
Angelo P. Fazari, for the Applicant
Applicant
- and -
Sarah Elias
Bernadette McCartney, for the Respondent
Respondent
MOTION HEARD at Welland, Ontario: May 30, 2018
The Honourable Justice T. Maddalena
ENDORSEMENT ON MOTION
THE ISSUES
- Access
[1] The respondent mother seeks a temporary order for the applicant father’s access to the child Niko in accordance with the most recent recommendations of the Office of the Children’s Lawyer (“OCL”). The applicant father has filed a dispute to the latest recommendations of the OCL and seeks access as outlined in his notice of motion dated May 25, 2018.
- R.E.S.P.s
[2] The respondent mother wishes $26,000 paid out of the R.E.S.P. funds (total funds $35,000) to cover the student debt for the parties’ daughter Alyssia, leaving approximately $9,000 in the fund for two remaining children, Matthew and Niko.
[3] The respondent mother also wishes control or guardianship over the R.E.S.P. funds which are currently in the sole name of the applicant father.
[4] The applicant father opposes both requests and further states that this court has no jurisdiction in this motion to order the transfer of the R.E.S.P. from the applicant father to the respondent mother.
R.E.S.P.s
[5] The parties’ daughter Alyssia, who is estranged from her father, completed a three-year degree at Brock University plus a one-year program at Niagara College. She has now completed her educational program.
[6] R.E.S.P.s were taken out by the parties before their third child Niko was born. Originally, there were two R.E.S.P. plans, one controlled by the applicant father and one controlled by the respondent mother.
[7] Since the applicant was considered disabled, the parties, during their marriage, combined the plans under the applicant’s name since it was determined that he would receive a greater government contribution due to his disability.
[8] The evidence before the court at the time of the temporary motion is that the R.E.S.P.s currently total approximately $35,000.
[9] From the affidavit of the respondent mother, sworn May 9, 2018, I am satisfied that Alyssia, who has completed her education, has a student debt of $26,000.
[10] No contributions were made for Alyssia’s education from the R.E.S.P.s.
[11] While the applicant father states that he is prepared to assist Alyssia with her student debt, there is no proposal put forward by him to release any of the R.E.S.P. monies to assist her.
[12] The respondent mother wishes sufficient monies released from the R.E.S.P.s to cover the entire debt of Alyssia, i.e. the $26,000. The respondent mother states there is still sufficient time to contribute further to the R.E.S.P.s for the remaining two children, Matthew and Niko.
[13] The applicant father states that it was always his position that the funds in the R.E.S.P. account would be distributed equally among the three children.
[14] From the court’s perspective, it is clear that there are $35,000 approximately in the R.E.S.P. account. There are three children of the marriage.
[15] Future contributions to an R.E.S.P. plan are very uncertain at this time.
[16] At this interim motion, it is reasonable, given that Alyssia has finished four years of post-secondary education and that no part of the R.E.S.P. fund has been paid out to assist her, that at least one-third of the funds in the R.E.S.P., on a without prejudice basis, be immediately paid out to reduce her student debt.
[17] This will then leave two-thirds in the plan for Matthew and Niko.
[18] The applicant argues that this court has no jurisdiction to deal with the actual transfer of the R.E.S.P. account.
[19] It is clear, and courts have held in the past, that R.E.S.P.s do not form part of net family property.[^1]
[20] Funds in an R.E.S.P. account are impressed with a trust on behalf of the children, for the specified purpose of the children’s education. From reading the motion materials, I conclude that making these parties joint owners to the R.E.S.P. account is very problematic given the breakdown in their communication and the animosity that still exists between them, notwithstanding that the parties were separated in September 2015. Thus, I have concerns that disagreements between these parties will likely prevent successful joint decision-making regarding the R.E.S.P.s.
[21] Courts in the past have dealt with R.E.S.P.s on a motion and I find sufficient precedent for this court to deal with the issue of the R.E.S.P.s on this temporary motion.
[22] As cited in McConnell v. McConnell, paras. 146-148, the court noted as follows:
[146] There is precedent for the court, on the application of one spouse, to remove the other as the co-title-holder of an R.E.S.P. In Vetro v. Vetro, the Court of Appeal dismissed an appeal from a motion judge’s decision to strike the father’s pleading on the ground, among others, that he had failed to comply with an order requiring him to repay funds that he had removed from his children’s R.E.S.P. The Court stated:
In addition, the appellant took money from the children’s R.E.S.P. for his own purposes and although he agreed to repay the money he had only repaid $2,000 of the $5,500 he took. Irrespective of the issues of disclosure, the motion judge struck the pleadings on the basis of the appellant’s non-compliance with prior court orders and, having regard to the history and circumstances of the case, he was entitled to do so without giving the appellant any further opportunity to correct or explain his defaults.
[147] In Maimone v. Maimone, Fragomeni J. ordered that the husband be removed as administrator of the R.E.S.P.s and that the R.E.S.P.s be transferred to the wife, on the ground that the husband had not demonstrated any financial responsibility and had made “less than frank and truthful disclosure” throughout the proceedings. Similarly, in Borisoff v. Borisoff, Dillon J. of the B.C. Supreme Court ordered the R.E.S.P. be transferred
[148] For the foregoing reasons, this court is invoking its inherent jurisdiction to remove Mr. McConnell as trustee of the children’s R.E.S.P. He and Ms. McConnell will both benefit by the payments made from the R.E.S.P. as a result of the expenses to which they are required to contribute being reduced by payments being made from the fund. Ms. McConnell will therefore be required to account to Mr. McConnell for any disbursements she makes from the R.E.S.P. This will enable both parties to calculate the net s.7 expenses of each child and their own respective proportionate contributions, at the hearing on April 22nd.
[23] My conclusion, therefore, is that this court has jurisdiction to deal with the children’s R.E.S.P. accounts. I have concerns regarding the father’s hesitancy or otherwise unwillingness to assist his daughter Alyssia who is a clear beneficiary of the R.E.S.P.s. This situation cannot be permitted to continue.
[24] For all of the above reasons, therefore, my order, on a without prejudice basis, is that after payment of the one-third of the monies in the R.E.S.P. account for the benefit of reducing Alyssia’s educational debt, the remainder shall be transferred to the respondent mother as trustee. The respondent mother shall not disburse any further funds from the R.E.S.P. account without the consent of the applicant father or further court order.
Access with Respect to the Child Niko, born September 29, 2013
[25] The applicant father does not see or have visitation with the two older children of the marriage, that is, Alyssia and Matthew.
[26] Pursuant to an order dated December 21, 2016 the applicant father has access to Niko as follows:
Each Monday, Wednesday and Friday from 9:00 am to 3:00 pm and on alternating weekends from Friday at 9:00 am to Saturday at noon.
[27] Ms. Cindy Katz from the OCL was directed to prepare a s.112 Courts of Justice Act report. The initial report is dated May 3, 2016.
[28] In August 2017 the applicant father moved from the Niagara area to Oakville, Ontario. Further, in September 2017, the child Niko commenced school so that the midweek access could no longer take place.
[29] In October 2017 Ms. Katz completed a further investigation and produced a report dated April 3, 2018.
[30] The respondent mother now seeks to amend the previous access provisions and seeks access in accordance with the recommendations of the OCL in the report dated April 3, 2018.
[31] The applicant father has filed a dispute to the report from the OCL dated April 3, 2018 and seeks access as outlined in his notice of motion dated May 25, 2018.
[32] The recommendations of Ms. Katz in her report of April 3, 2018 are as follows:
Niko will be in the sole custody of his mother, Sarah Elias.
For the remainder of the 2017-2018 school year, Niko will spend alternate weekends with his father from Saturday morning at 9am to Sunday evening at 7pm. Additionally, Niko will spend one weekday evening from after school until 7pm.
In September 2018, when Niko starts Senior Kindergarten, alternate weekend access should extend from Friday after school (to be picked up at school) until Sunday evening at 7pm.
Holiday access should be shared equally according to a pre-determined schedule.
Mr. Elias and Ms. Elias should utilize the Supervised Visitation and Exchange Niagara (SVEN) service of Pathstone Mental Health or an agreed-upon third party.
Matthew’s contact with Mr. Elias should be at Matthew’s discretion.
Mr. Elias and Ms. Elias should adopt a clear and comprehensive Parenting Plan that addresses each parenting task and ascribes it to one parent or the other.
Mr. Elias and Ms. Elias should communicate directly by email.
Mr. Elias should attend counseling to better understand the role he plays in maintaining the conflict and learn strategies to disengage from the conflict with Ms. Elias.
Ms. Elias should attend counseling to better understand the role she plays in maintaining the conflict and learn strategies to disengage from the conflict with Mr. Elias.
[33] The respondent mother also requests pickup and drop-off at the SVEN program (Supervised Visitation and Exchange Niagara) at Pathstone Mental Health due to ongoing conflict with the applicant father. Further, the respondent mother has expressed concern regarding the fact that the applicant father is video-recording all of the access exchanges. Generally, the access contact between these parties has not been going well.
[34] The father states that he is making recordings in order to protect himself against unwarranted accusations and allegations of the mother. The applicant father states there are no incidents and problems associated with the access exchanges.
[35] There are many allegations flowing back and forth from the various affidavits that are outlined in the two motions before the court. I find these are all triable issues.
[36] Furthermore, it appears that the conflict between the parents is escalating instead of lessening. I have noted recommendations 9 and 10 of the OCL and would encourage both parents to attend counselling to better understand the role that he/she plays in maintaining the conflict and to learn strategies to disengage from conflict
[37] On an ongoing basis, I find the issues with access and the OCL report are all triable issues.
[38] For the purposes of this interim motion, I make no change to the access order at this time. For the summer months, which are immediately upon us, the applicant and respondent should follow the order currently in effect.
[39] This matter should move to trial forthwith. Unfortunately, the likelihood of these parties arriving at any reasonable compromise, at this time, is remote.
[40] I do not order pickup and drop-off through the SVEN program, but I do order that the applicant father on his pickup and drop-off shall remain on the street at the end of the driveway of the respondent mother. He shall not enter onto the mother’s property. The child shall be permitted to walk from the father’s car to the front door of the home on drop-offs and vice versa on pickups.
[41] I further order that the father, or anyone on his behalf, is not permitted to record any time or anything during the access pickup and drop-off.
[42] Except as dealt with herein, all other relief in the motions at Tab 37 and Tab 39 is dismissed. Pending trial, there shall be no change to the order of December 21, 2016.
Summary of Orders
[43] The following orders are made:
On a without prejudice basis, one-third of the funds in the R.E.S.P. account shall be forthwith paid out and credited against Alyssia’s student debt.
On a without prejudice basis, the R.E.S.P. account shall be forthwith transferred to the respondent mother as trustee and no further funds shall be disbursed from this R.E.S.P. account without the consent of the applicant father or further court order.
Pending the trial of this matter, the order of December 21, 2016 shall remain in full force and effect.
During pickup and drop-off of the child Niko, the applicant father shall not enter onto the property of the respondent mother. The child Niko shall be permitted to walk from the father’s vehicle to the front door of the mother’s home on drop-offs and vice versa on pickups.
The applicant father or anyone on his behalf shall not record during access pickup and/or drop-off.
Except as dealt with herein, all other relief in the respective motions of the parties (motions at Tab 37 and Tab 39 of the Continuing Record, Volume I) is dismissed.
This matter is placed on the assignment court list for June 25, 2018 at 11:30 am. The court recommends that it shall be scheduled for trial at the next available sittings.
[44] Given the mixed success, there shall be no order as to costs.
Maddalena J.
Released: June 4, 2018
COURT FILE NO.: D25224/15
DATE: 2018/06/04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Mario Elias
Applicant
- and –
Sarah Elias
Respondent
ENDORSEMENT ON MOTION
Maddalena J.
Released: June 4, 2018
[^1]: McConnell v. McConnell, 2015 ONSC 2243