Barrett v. Barrett, 2019 ONSC 6197

Court File and Parties

COURT FILE NO.: FC-09-3103-1 MOTION HEARD: 2019-10-22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Christine Barrett, Applicant AND: Henry Barrett, Respondent

BEFORE: Master Kaufman

COUNSEL: Christine Barrett, self-represented Henry Barrett, self-represented

HEARD: October 22, 2019

REASONS FOR DECISION

1The applicant brings this motion to have a matter declared urgent. She seeks an immediate payment of child and spousal support on the ground of dire financial circumstances. She also seeks an Order to remove the parties’ daughters from the respondent’s care for safety concerns.

2This is a case where both parties are self-represented. I have read the applicant’s materials as generously as possible and given due allowance for inadequacies due to drafting deficiencies. Ultimately, I conclude that the applicant has not provided sufficient evidence to support a finding of dire financial circumstances, and there is no basis to make an interim Order removing the parties’ daughters from the respondent’s care. The motion is dismissed without prejudice to the applicant returning to court with a further affidavit in accordance with my reasons below.

3A brief review of the history of this proceeding is apposite.

4The parties were married in 1999 and separated in 2009. They have two daughters, Julianna who is 15 years old and Alyssa who is 13.

5The applicant commenced an application in December of 2009, seeking custody, child and spousal support, equalization and the sale of family property. The parties settled before trial and entered into minutes of settlement. Pursuant to the settlement, the respondent had parenting time with the parties’ two daughters 5 days out of 14. His income was imputed to be $45,000 per year, and he was required to pay $680 per month in child support and $200 per month in spousal support.

6The respondent brought an unsuccessful motion to change in 2015, seeking a variation of the access schedule relating to the parties’ eldest daughter Julianna. Justice Phillips denied the motion.

The parties’ competing motions

7On September 13, 2019, the respondent brought another motion requesting sole custody of the parties’ first daughter Julianna, and for an Order that their second daughter, Alyssa, be enrolled in school. The motion was scheduled to be heard on September 24, 2019.

8Presumably in response to the respondent’s motion, the applicant brought this motion. It was initially scheduled for September 17, 2019. The applicant’s motion is “for financial relief and protection for myself and my children”.

9The applicant’s motion was initially before Justice Riopelle on September 17, 2019. Justice Riopelle noted that the applicant’s motion was made without notice. He recommended that the applicant file her materials in response to the respondent’s motion, and that she serve her own motion materials at the same time. He ordered that both motions be heard at the same time as the respondent’s motion scheduled for September 24, 2019.

10On September 24, 2019, the parties attended before Justice Desormeau. She held that the respondent’s motion was procedurally flawed. Because final Orders had been made in respect of custody / primary residence, the respondent had to bring a fresh motion to change. Nonetheless, she held an impromptu case conference which did not result in any settlement. Justice Desormeau directed the respondent to bring a fresh motion to change within 30 days and to file a 35.1 Affidavit and a sworn financial statement. The applicant was required to file a response which would include updated medical information for Alyssa and a financial statement.

The Applicant’s motion

11The applicant brought her motion back to Court on October 22, 2019. There are two categories of relief requested: 1) for immediate payments of unpaid child and spousal support and 2) restraining and non-communication orders, and limiting the respondent’s parenting time.

The orders requested include:

a. the payment of past due child and spousal support and section 7 expenses;

b. an order that respondent’s access to the children be withheld to protect them from psychological and physical abuse;

c. a restraining order against the respondent;

d. and an order for the arrest of the respondent if he does not provide the financial relief requested within the time ordered by the court.

12The applicant states that she is unable to pay her rent, that she has taken out a payday loan that carries a high rate of interest, that the respondent has not paid child or spousal support for the months of June, July and September 2019, that she has asked friends and family for money and that she has nowhere else to turn to.

13The applicant also claims that the respondent has anger management issues, that he refuses to acknowledge his daughter Alyssa’s medical condition, and that he is paranoid about the children’s school attendance.

14She attached five exhibits to her affidavit:

a. An e-mail dated February 13, 2017 where she request $249.43 from the respondent to pay for health and dental insurance for the children;

b. A letter from CHEO dated March 22, 2019 regarding Alyssa’s medical condition; an email to the respondent regarding recommendation that Alyssa receive home instruction and receipts for online courses;

c. A “Landlord’s notice to tenant” advising the applicant that her rent was late. At the hearing she supplemented that document with a “Notice to end your tenancy” form which requires her to pay $1,086 in rent by August 30, 2019, or else move out of her apartment.

d. An orthodontists’ invoice dated July 25, 2019, in the amount of $1,750, of which she has paid $1,000 (leaving a balance payable of $750).

e. Receipts from an online school for Alyssa Barrett, dated February and March, 2019.

15The applicant has also provided me with a police report relating to an incident dated June 21, 2019, which concerned an argument about the return of the children’s passport, which allegedly occurred in front of Alyssa. The police did not charge the respondent.

16The respondent submits that the matters raised are not urgent and that Justice Desormeau has already provided a method for these issues to be addressed. The respondent claims that he is owed money for section 7 expenses, that he has overpaid child and spousal support, and that he is entitled to half of the child tax benefits the applicant received over the years. The respondent claims that the applicant earns $65,000 per year as a teacher with the Ottawa Catholic School Board.

17The respondent submits that Julianna now lives with him, which is one of his bases to reduce child support. He believes that the applicant’s motion, which seeks to remove the children from his care, is an attempt to pre-emptively thwart his motion.

Analysis

18Rule 14(4) of the Family Law Rules, O. Reg. 114/99 requires that case conferences dealing with the substantive issues in the case be held before every motion. Subrule 14(4.2) provides that motions may be brought before a case conference only where the Court is of the opinion that there is a situation of urgency or hardship, or that a case conference is not required for some other reason in the interests of justice.

19The applicant’s motion concerns two separate requests. The first is for an Order to remove the children from the respondent’s care. There is no basis to make such an Order. I have no doubt that the relationship between the parties is highly conflictual. But the evidence submitted, including the altercation regarding the passports, his alleged “anger management” issues (which are not specified), and his alleged disagreement on Alyssa’s medical condition does not provide a basis to find that there is a situation of urgency which needs to be addressed before a case conference.

20The applicant has provided some evidence regarding her financial situation, but the evidence raises more questions than it answers. The Notice to End the Tenancy required her to pay $1,086 by August 30, 2019. The applicant does not state whether she has paid the amount requested, whether she has already been evicted or will be required to leave by a certain deadline. The applicant provides no supporting documentation about her employment, her salary, her bank account balances, her credit card balances, any lines of credit, the amounts allegedly borrowed from payday loans. All of this information is within her control. I am not able to assess the cause of her failure to pay her rent for the month of August 2019. I cannot tell if she has been prudently spending her money on necessities, or if she has been spending money extravagantly with abandon. She may be in a situation of dire financial hardship, but I cannot tell. And I have no information as to the causes of her financial situation. The few supporting documents filed do not provide me with a full picture of her financial situation.

21In Rooney v. Rooney¹, this Court held that judicial determinations under subrule 14(4.2) should be infrequent and should be based on compelling evidence. When it comes to proving dire financial circumstances, the moving party should provide full financial disclosure with robust particularity. Only the applicant knows her financial situation. There should be no material questions left unanswered.

22I am of the view that the standard for proving dire financial circumstances should be similar to that applied to a party resisting a motion for security for costs on the basis of impecuniosity:

Full financial disclosure is required and should include the following: the amount and source of all income; a description of all assets (including values); a list of all liabilities and other significant expenses; and indication of the extent of the ability of the plaintiffs to borrow funds; and, details of any assets disposed of or encumbered […].²

23I am denying the applicant’s motion without prejudice to the applicant’s right to return to Court with affidavit material fully setting out her financial situation.

Costs

24The respondent asked for costs. Where parties are self-represented, they may not recover costs for the time and effort that any litigant would have to devote to the case. But they may claim compensation if they can demonstrate that they forwent remunerative activity as a result of devoting time and effort to do work ordinarily done by a lawyer.³

25As I do not have any evidence supporting such a loss of opportunity, costs of this motion are reserved to the judge hearing the respondent’s motion to change.

Master Kaufman

Footnotes

1. 1[2004] O.J. No. 1737 (S.C.J.).
2. 2Morton v. Canada (2005) 2005 CanLII 6052 (ON SC), 75 O.R. (3d) 63 (S.C.J.).
3. 3Benarroch v. Fred Tayar & Associated P.C., 2019 ONCA 228.