COURT FILE NO.: FS-16-5194
DATE: 2019 09 11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Melissa Rehkopf v. David Rehkopf
BEFORE: D. E. Harris J.
COUNSEL: L. MacIntosh for the Applicant Melissa Rehkopf
David Rehkopf, Respondent, representing himself
E N D O R S E M E N T
[1] The applicant and respondent began living together in March of 1998, married in 2003 and separated in 2015. The applicant was 14 years old when the relationship began. The marriage was tumultuous and for the most part, unhappy.
[2] The marriage was burdened by enormous challenges. On December 3, 1999, a daughter, Becky, was born to the couple. The applicant had just turned 18 years old. Becky was diagnosed with Cerebral Palsy which may have been caused by medical difficulties involved in her birth. Becky was severely disabled and required an extraordinary amount of care throughout her short life. She became confined to a wheelchair and functioned mentally on the level of a one-year old child. She could not wipe her own nose. The applicant was Becky’s primary caregiver and devoted her life to Becky’s welfare. Becky died at the age of 6 years old.
[3] There is a pending medical malpractice suit against the doctor who attended at Becky’s birth.
[4] Mr. Rehkopf suffered from a serious crystal methamphetamine drug addiction according to his wife. He does not deny it. Ms. Rehkopf attests that Mr. Rehkopf became addicted in approximately 2002-2003. She did not realize it at the time. Towards the end of the marriage, she claims he was binging on drugs and spending a good deal of money on them. He would destroy things in the house, including essential appliances. He also allegedly sexually assaulted the applicant while in this state.
[5] Justice Conlan made an order dated January 24, 2018 that the respondent provide weekly drug screens. Tests supplied from the time period February 1, 2018 to March 19, 2018 detected opioids on one occasion, amphetamine on one occasion and cannabinoids on one occasion. On one of the tests, several drugs were found.
[6] No drug tests have been supplied since that time. In his affidavit filed April 20, 2018, the respondent said that he had given up drugs and the last time he did crystal meth was in October 2015. At the motion hearing, Mr. Rehkopf denied that he was still using drugs.
[7] Mr. Rehkopf has a criminal record for offences against the applicant, including criminal harassment (June 21, 2017, 90-day conditional sentence), breach of probation for contacting the applicant (March 15, 2018, a fine and probation), and possession of a firearm and ammunition while prohibited (May 8, 2018, 90 days intermittent minus 10 days credit for pre-trial custody).
[8] When life in her marriage got particularly intolerable, Ms. Rehkopf slept in shelters with Becky. She does not explain precisely what led to her taking this step. Living in shelters was exceedingly difficult in light of Becky’s mobility and other issues.
[9] Ms. Rehkopf was diagnosed with Multiple Sclerosis (MS) a number of years ago. Her bouts of MS have not been frequent but when under stress, it flairs up and leads to severe pain and impaired vision.
[10] Perhaps not surprisingly, a myriad of other difficulties existed in the marriage. The applicant attests in her affidavits to the respondent having a penchant for driving motor vehicles in a reckless manner (occasionally with his young sons present) and, in the process, totalling several vehicles. The applicant estimates that the respondent has been in four serious accidents since 2006, writing off each of the vehicles involved. There was no denial of this by Mr. Rehkopf who did not file a corresponding affidavit.
[11] The applicant claims that the respondent was a profligate spender, drawing on a line of credit and charging up credit cards. Some of the spending was on drugs.
[12] The couple bought a home in Walkerton in 2001. It was foreclosed on in 2016. There was a shortfall remaining. The respondent had been living in the home by himself for a period of time beforehand. There was significant damage to the house. There were holes the respondent punched in the walls, writing on the walls, portions of wallpaper ripped off the walls and flooring that had been pulled up.
[13] There are two sons of the marriage, Blaine—age 8—and David—age 5. The applicant has custody of them and the respondent has not seen them in over a year.
[14] Family litigation has been pending since 2016. In early 2018, Justice Conlan granted interim custody and primary residence to the applicant with limited access granted to the respondent.
[15] Turning to the relief requested by the applicant, I agree that the matter should proceed as an uncontested trial with the applicant’s affidavit furnishing the support for the relief requested. Although present at the hearing, the self-represented respondent did not participate in any meaningful way either by filing material or making submissions.
[16] Sole custody and primary residence will be granted to the applicant, I am persuaded by the evidence of the applicant that this is appropriate given the ongoing difficulties with the respondent.
[17] The applicant requests child support based upon an income attributed to the respondent of $60,000. He is a skilled welder and prior to separation, worked for a company called Systematic. It is unknown whether he is currently working. Imputed income case law looks to what he is capable of earning, not what he actually earns: Drygala v. Pauli (2002) 2002 41868 (ON CA), 61 O.R. (3d) 711, 219 D.L.R. (4th) 319 (C.A.).
[18] While the applicant claims that he may have made as much as $80,000 in the previous year, the evidence on this, in my view, is weak. The applicant claims that the respondent worked overtime on top of his yearly wage. Her evidence on this however, appears to be based on the respondent simply not being at home. In any case, this was several years ago and ought not to be attributed to him at this point of time.
[19] The respondent’s imputed income ought to be set at $60,000. I find that a person with the qualifications of the respondent and his work experience should be able to earn at least $60,000.
[20] The respondent has paid only $520 in two payments towards child support since November 15, 2015. This is contrary to Justice Conlan’s April 24, 2017 order that he pay $200 per month on an interim basis. The respondent’s records of employment and answer have not been supplied also contrary to Justice Conlan’s order of April 24, 2017. Income tax returns have also not been disclosed. He has also ceased attending for the weekly drug testing ordered. The respondent is in default of these orders.
[21] The applicant was virtually a full-time care giver for Becky until Becky’s death in 2005. Since that time, she has worked as a waitress, although only for a brief period of time. She ran a home-based daycare while Becky was alive. She also worked as a receptionist at a hotel for a year. In addition, the applicant worked in different capacities at Horizon Chicks Limited in Hanover. These jobs averaged about $12 per hour. The applicant is now on social assistance.
[22] Of course, the applicant’s main responsibility is to be the primary caregiver for her young sons. Because she is the sole caregiver, and in light of her MS, she is only available to work part-time. I would attribute an income to her of $10,000 per year.
[23] With respect to Section 7 expenses for the children, the applicant has requested 50% contribution from the respondent. Although she maybe entitled to more, this is a reasonable position.
[24] The applicant asks that the respondent be solely responsible for any and all debts in regards to the former matrimonial home. Although he did live alone in the home briefly after separation, it was sold under foreclosure in 2016. It is also requested that he be responsible for all debts of any kind, including credit cards, mortgages, vehicle loans, lines of credit and utility bills. She claims that his drug addiction and penchant for buying and destroying led to accumulation of significant debts.
[25] I am reluctant to make blanket orders of the kind requested. Prior to granting such relief, more specificity ought to have been supplied of the actual debts purportedly owed by the applicant.
[26] The applicant and respondent agreed in writing at the time they purchased the house in 2001 that the $30,000 she used as a down payment would, in case of separation, be paid back to her out of the sale of the house, over and above the amounts due each of them. This has not been done. I would order that the respondent pay back this $30,000.
[27] The evidence from the applicant is that the respondent is a loving father to the two boys. Clearly, the respondent is also a volatile and unpredictable presence in their lives. There are allegations of poor and arguably dangerous behaviour with the boys including physical fights with them. A gun, probably the respondent’s pellet gun, was found under one of the boy’s beds at one point.
[28] I believe the best solution at this time, rather than terminating access completely as is requested by the applicant, is to allow the respondent to have supervised access to the children. A total prohibition on contact with the boys will be severely detrimental to them. Their relationship with their father is fundamental and should be resurrected if at all possible. If there is a way that contact can be facilitated, in the hopes that it can be gradually increased, this should be done. Because of the history, it must start by way of supervised access and, if this is successful, it can eventually be expanded.
[29] The applicant and respondent shall exchange income tax returns and notices of assessment every year by July 1.
[30] If the respondent receives funds from the civil settlement with relation to Becky’s birth injuries, the applicant should receive all money due and owing to her from the respondent before he receives his entitlement.
[31] With respect to costs, given the respondent’s current situation, they should be minimal.
[32] In summary, an order will be issued:
a) Sole custody of the two sons of the marriage, Blaine and David, to the applicant.
b) Primary residence of the boys will be with the applicant.
c) Child support will be $915 per month. A corresponding support deduction order will be made for the purpose of enforcement.
d) The respondent will repay the applicant $30,000 representing the funds she advanced for the down payment on their home.
e) Section 7 expenses will be apportioned 50% between the applicant and respondent.
f) The respondent will have supervised access to Blaine and David once a week.
g) The applicant and respondent shall exchange income tax returns and notices of assessment every year by July 1.
h) If the respondent receives funds from the civil action with respect to their daughter Becky’s birth, debts owed to the applicant will be paid out first before the respondent receives his entitlement.
i) Costs to the applicant in the amount of $1,000.
D. E. Harris J.
DATE: September 11, 2019
COURT FILE NO.: FS-16-5194
DATE: 2019 09 11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Melissa Rehkopf v. David Rehkopf
COUNSEL: L. MacIntosh for the Applicant Melissa Rehkopf
David Rehkopf, Respondent, representing himself
ENDORSEMENT
D. E. Harris J.
DATE: September 11, 2019