Chakraborty v. Chakraborty, CITATION: 2018 ONSC 3643

COURT FILE NO.: 31/16

DATE: 2018-06-12

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Liudmila Chakraborty, Applicant

AND: Kallol Chakraborty, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: Both parties self-represented

HEARD: June 11, 2018 at Welland

ENDORSEMENT

[1] The parties separated in late 2015 after nine years together, including seven years of marriage. Neither one seeks equalization. The Respondent bought the Applicant’s interest in the matrimonial home.

[2] The parties had two children, who are now 9 and 10 years old. The parties agree that the Applicant should have primary care of the children. They do not agree on access. The Respondent wants significant access. The Applicant wants no access. There is also the question of support and the Applicant’s request for a restraining order under s.46 of the Family Law Act.

[3] When the parties separated, they had a long argument that began when the Respondent dropped one of the children. I heard an audio recording of the incident made on a mobile phone. The camera was pointed to the ceiling, so I could not see much. During the argument, the Applicant tried to calm the child, who was upset. She also said a few bad things about the Respondent. The Respondent was obnoxious. He was probably drunk, as the Applicant says. At the end of the contretemps he threatened to kill everybody. As a result he was charged with uttering a threat. He pleaded guilty and was put on probation for a year from February 16, 2016. Since then he has been restrained from communicating with the Applicant and the children by that order and then by orders under s.46 of the Family Law Act, the last of which is due to expire on June 30, 2018.

[4] The Applicant’s stepfather testified that on three occasions during the marriage the Applicant got drunk and belligerent with him. The Applicant’s brother testified that on one occasion the Applicant got drunk and pulled a knife on him. The Respondent testified that these things did not happen.

[5] I do not accept the Respondent’s testimony in the face of two credible witnesses who disagree with him, combined with one further incident that is captured on tape. I think that the Applicant has good reason to fear that the Respondent will harm her or the children. I do not think he would do such a thing while sober, but he can be volatile when he is drunk. That is not to say that there is no hope for improvement. The Respondent has completed the PAR programme as part of his probation and, if he is sincere in what he tells me, some insight in to the problem. I add that the evidence before me does not justify the conclusion that the Respondent has perpetrated actual violence or sexual abuse on the Applicant. There is no suggestion that the Respondent has struck the children. But what he has done is bad enough to cause serious concern.

[6] I make the order under s.46 of the Family Law Act on the following terms:

a. The temporary restraining dated March 14, 2018 is set aside and replaced by a new restraining order which will expire on June 30, 2019.

b. The Respondent is restrained from communicating directly or indirectly with the Applicant or her two children, subject to the following exceptions:

i. The Respondent may communicate with the children during the course of supervised access or reconciliation counselling that is undertaken in compliance with the court’s order as to access.

ii. The Respondent may communicate indirectly with the Applicant through a licensed access facility or a licensed counsellor for the purpose of arranging such supervised access or reconciliation counselling.

iii. The Respondent may send the Applicant a copy of his income tax return and notice of assessment once a year.

Access

[7] The Respondent has disentitled himself to immediate normal access to his children through his own conduct. For one thing, according to the social worker’s notes they are afraid of him. At this point, however, I do not think that it is in the children’s best interest to erase their father from their life. I will allow him to exercise access supervised through a licensed facility such as Pathstone at his own expense, for one two-hour visit per month, which may be increased by the court once reconciliation counselling is completed. He will also be allowed to see the children in the course of reconciliation counselling, in the presence of the counsellor, a maximum of one hour every two weeks, provided that the Respondent pays for the counselling and it is done through a qualified practitioner.

Custody

[8] In the circumstances the Applicant needs wide latitude to govern the lives of the children independently. The custody order should specify the maximum latitude that is consistent with the children’s best interests. The children have gone through some significant disruption. I do not think that they should go through the adjustment that would be required by a change of name until they are old enough to decide for themselves.

Support

[9] The Respondent’s income has changed significantly since the temporary orders for child and spousal support were made. In 2017 he earned $47,566. The Applicant earned just under $14,000. The appropriate child support is fixed by the Child Support Guidelines. In the present circumstances the Spousal Support Advisory Guidelines suggest spousal support of zero. Support should be adjusted as of January 1, 2018.

Retroactive support

[10] I accept Maddalena J.’s calculation of child support and spousal support from September 1, 2016. The Applicant left the matrimonial home with the children. The Respondent should have been paying support from December 1, 2015. I shall order him to pay support for the relevant period at the rate set by Maddalena J.

Orders

[11] In addition to the order set out at paragraph 8 of this endorsement I make the following final orders:

a. The parties, who were married on August 11, 2007 are divorced and the divorce takes effect 31 days hence.

b. The Applicant shall have sole custody of Elora Chakraborty born March 1, 2008 and Omkar Chakraborty born June 4, 2009. She is entitled to travel outside Canada with them and to obtain passports for them without the Respondent’s consent. The Applicant shall not change the name of the children.

c. The Respondent shall have access supervised by a licensed facility such as Pathstone at his own expense, for one two-hour visit per month. He shall also have access in the course of reconciliation counselling, in the presence of the counsellor, a maximum of one hour every two weeks, provided that the Respondent pays for the counselling and it is done through a qualified practitioner. If these conditions are met, the Applicant shall arrange transportation for the children to and from the meetings. The Respondent’s parents may attend the meetings if the counsellor or the access supervisor agrees.

d. Spousal support ordered by Maddalena J. on September 14, 2016 is terminated effective January 1, 2018.

e. The Respondent is ordered to pay child support to the Applicant for the two said children at the rate of $718 per month based on his annual income of $47,566 commencing January 1, 2018.

f. The Respondent is ordered to pay retroactive child support fixed at $1318 per month from December 1, 2015 to August 31, 2016 based on his annual income of $92,000 during that period.

g. The Respondent is ordered to pay retroactive spousal support of $1,308 per month from December 1, 2015 to August 31, 2016.

h. A support deduction order shall issue.

i. I declare that only the Applicant is entitled to claim the Child Tax Benefit with respect to the children.

j. The Respondent is ordered to send a copy of his income tax return and notice of assessment to the Applicant every year by June 1 for the previous taxation year.

k. As neither party is represented there will be no order as to costs.

J.A. Ramsay J.

Date: 2018-06-12