Court File and Parties
Del Gobbo v. Del Gobbo, CITATION : 2019 ONSC 3963
COURT FILE NO.: D26635/18 DATE: 2019-06-26
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Ilona Del Gobbo, Applicant AND: James Del Gobbo, Respondent
BEFORE: Mr Justice Ramsay
COUNSEL: Paula Ferré for Applicant; Respondent in person
HEARD: June 26, 2019 at Welland
Endorsement
[1] After four years of cohabitation the parties married in 2007 and separated in July 2018. They have a seven-year-old daughter. Both parties move for temporary orders regulating access and other relief.
[2] The Applicant and the daughter left the matrimonial home in Thorold, which is wholly owned by the Respondent, in 2018. The Applicant now lives with the daughter in Niagara Falls at her parents’ home. Starting next September she plans to withdraw the child from her school in Thorold and enrol her in school in Niagara Falls.
[3] Temporary orders have been made. On September 19, 2018 Lococo J. ordered weekly access to the Respondent from Monday after school to Wednesday before school. On October 31, 2018 Maddalena J. invited the Children’s Lawyer to participate. On December 17, 2018 Lococo J. ordered Christmas access and granted leave to both parties to amend their pleadings. He also made orders for disclosure by both parties. On March 28, 2019 on consent I ordered Easter access and telephone access every other day between 7 pm and 8 pm. On June 5, 2019 Kril J. ordered the Respondent to pay $112 child support based on the income of the Respondent as it was known at the time.
The Respondent’s motions
[4] The Respondent asks for:
a. Extended summer access, with exchanges at Richmond Street Public School in Thorold; b. Daily telephone access; c. An order requiring the child to remain in school in Thorold; d. Production of documents by the Applicant; e. Spousal support in the amount of $520 per month.
Access
[5] The Applicant agrees that access should be extended during the summer. She only asks that it take place at a Tim Horton’s. She would like it to be in a public place given the Respondent’s habit of making derogatory statements to her within earshot of the child.
[6] What has gone on between the parties is the subject matter of two sets of conflicting affidavits. I am unable to resolve all of the factual questions at this point, but I can make some credibility findings. The Respondent does not make a good impression. He makes serious allegations that turn out to be unfounded. For example, he says that the Applicant depleted family assets through heavy gambling. He demanded that she produce reports from local casinos. She produced reports for the last three years, which show no activity since a loss of $227 in 2017 and no activity since. Now he says that the heavy gambling predated 2017.
[7] Another example: The Respondent demanded a pension value report. Both parties signed the required form, but it was returned because a date was improperly formatted. When the Applicant’s lawyer presented the Respondent with a corrected form to sign, he refused to do so until I essentially embarrassed him into doing so in open court.
[8] A third example: The Respondent wants leave to amend his pleadings because he is considering asking for an annulment of the marriage on the grounds of the Applicant’s longstanding mental illness. Apart from the fact that there is no evidence of mental illness, the idea is nothing less than bizarre.
[9] The final and worst, example: The Respondent deposed that the Applicant has a history of mental health issues and a suicide attempt. In support he filed a notice of referral to a physiatrist (yes, a physiatrist, not a psychiatrist) in 2009, with the Crisis Intervention hours and contacts listed on the back, or on an accompanying sheet of paper. The Applicant explained that she was given this information as a matter of routine because she had just had a miscarriage. The Respondent then said in oral argument that the Applicant had attempted suicide in 2001, over a previous relationship.
[10] The Respondent is not serious about making an honest attempt to resolve the issues between the parties. He is interested in making trouble. By comparison, the Applicant’s factual assertions and positions are reasonable on their face and are often backed up with documentary proof. I believe that she has good reason to want the access exchanges to take place in public. I propose to order access as agreed, with exchanges to take place as suggested by the Applicant.
Telephone access
[11] The Respondent has abused telephone access and has disregarded the terms of the order to which he consented. He told me in oral submissions that he disregarded them because they were not practical. In these circumstances I see no reason why he should have telephone access when he has such generous personal access. Moreover he is not willing to reciprocate.
The child’s school
[12] It is evident that the Applicant is the serious parent. She has for good reason moved to Niagara Falls, which is now the child’s primary residence. Her choice of school is reasonable and should not be interfered with. I also think that this child needs the structure that will be provided by a custodial parent who has power to make decisions without risk of court proceedings. Of my own motion I order that the Applicant shall have temporary custody of the child.
Production of documents
[13] The Respondent wants a report about the child’s counselling. The evidence does not satisfy me that there is anything to report at this point.
[14] The Respondent wants the Applicant’s bank and credit card statements going back three years before separation. It would not be proportionate to order that. The parties kept their finances separate for the most part. The matrimonial home was owned by the Respondent. There is no realistic prospect that any unreasonable depletion of assets took place or that it would have any legal consequences.
[15] The other disclosure demanded has been made to the extent required.
Spousal support
[16] The Respondent has an arguable, but not inevitable claim to spousal support. He is living in the matrimonial home. He got a settlement from Redpath, the particulars of which he has not disclosed. For support purposes, he should be working full time. If they do not need him full time where he works, he should get a second part time job. He is fortunate that the Applicant has not asked that more income be imputed to him for the purposes of child support.
The Applicant’s motions
Child support
[17] The order of Kril J. needs to be varied based on the correct figures that are now available.
Telephone access
[18] As I have said, telephone access needs to stop.
Passport
[19] The child already has a passport and the Applicant has not fled with her. The Applicant only wants to renew the passport. The idea that she is a flight risk is fanciful. She and her parents have been in Canada for years. Her country of origin, Poland, is a signatory to the Hague Convention. There is no reason why the Applicant should not be able to renew the passport.
Appraisal of the matrimonial home
[20] The Respondent does not seem to understand that even though he is sole owner of the matrimonial home, it is still part of his net family property and subject to equalization. The Applicant is entitled to know its value.
Costs
[21] I heard the parties on costs on a hypothetical basis, which was possible as there were no offers to settle for me to consider. The Applicant as the successful party should be generously indemnified given the Respondent’s unreasonable positions, within the bounds of what would reasonably be contemplated.
Orders
[22] I make the following temporary orders:
a. The Applicant shall have custody of Cassandra Magdalene Del Gobbo, born August 17, 2011 which includes but is not limited to the sole decision-making power as to the choice of the child’s school. b. The Respondent shall have access i. weekly from Sunday at 6:30 pm to Wednesday at 8:30 am commencing June 30, 2019; exchanges shall take place on Sundays at the Tim Horton’s on Ormond Street in Thorold and on Wednesdays at the Tim Horton’s on Montrose Road in Niagara Falls. ii. weekly from Monday at 3:25 pm to Wednesday at 9:00 am commencing September 9, 2019; exchanges shall take place at Princess Margaret School, 6624 Culp Street, Niagara Falls. c. The Respondent has no right to telephone access when the child is in the Applicant’s care. d. The Respondent shall pay child support at a rate of $143 per month commencing June 1, 2019 based on an annual income of $18,361. A support deduction order shall issue.
[23] In addition I make the following procedural and final orders:
a. The Applicant may renew the child’s passport without the consent of the Respondent. b. The Respondent shall have the matrimonial home appraised by a certified appraiser within 30 days. The Applicant shall be permitted to attend at the time of the appraisal with Krzysztof Milewski or Elizabeth Marzena Maluska. c. The Respondent shall inform the Applicant of a telephone number at which he can be reached during access visits. d. Apart from the request for access that has been disposed of in paragraph 22 b. of this endorsement, the Respondent’s motion is dismissed. e. The Respondent shall pay costs to the Applicant fixed at $4500 forthwith. For enforcement purposes, one-tenth of that amount is deemed to be costs related to support.
J.A. Ramsay J.