Court File and Parties

COURT FILE NO.: FS-18-40831 DATE: 2020 09 21 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jennifer Mercanti, Applicant AND: Charles Edward Urbshott, Respondent

BEFORE: Conlan J.

COUNSEL: William H. Abbott, Counsel for the Applicant Charles Edward Urbshott, Self-Represented

HEARD: September 21, 2020

Endorsement

[1] This deals with the self-represented Respondent father’s Amended Notice of Motion dated July 24, 2020. The Motion was argued via Zoom on September 21, 2020.

[2] The Applicant mother, Mercanti, and the Respondent father, Urbshott, share a child named Connor, 5 years old. Connor was adopted by the parties.

[3] The child lives primarily with mother. Father has access every Tuesday and every Thursday, from 5 pm to 7:30 pm, and every Saturday from 9:30 am to 4 pm.

[4] Father has brought a Motion seeking a specific schedule of expanded access with Connor, a schedule that includes Friday overnights, first every other week and then becoming every week, in addition to what is currently in place as described above.

[5] Father also seeks summer vacation time with Connor, preferably one full week. By the time that this Motion was argued, that relief was moot but may be revisited in the future for 2021.

[6] Father also asks in his Motion for a plethora of financial relief in his favour - retroactive spousal support between August 2016 and June 2019, ongoing spousal support of $3702.00 monthly, and a $50,000.00 advance payable to him on account of equalization.

[7] Mother is a lawyer with Manulife Financial. Father is self-employed and operates two real estate investment companies.

[8] Mother lives with her new partner in a home in Oakville. They have a child together. Father lives in a rented condo in Burlington. He has a new partner but does not live with her.

[9] Father currently pays $605.00 monthly in child support based on an income of $65,000.00, by way of an Order that was made on consent of both sides. He also contributes to section 7 expenses. He alleges that his income has been drastically reduced over the last few years, and he complains about not being paid any spousal support.

[10] Father says that he desperately needs the advance equalization payment to properly protect his interests in the litigation, and he calculates that mother owes him a payment of approximately $200,000.00.

[11] As evident in the Factum filed on her behalf, succinctly put, Mercanti’s position on the issues raised in this Motion is as follows:

− Urbshott’s entitlement to and quantum of spousal support, both retroactive and ongoing, are live issues and should not be determined prior to trial;

− the status quo parenting schedule should remain until such time as the Court-ordered section 30 assessment, which process the father has delayed due to his failure or refusal to pay his share of the retainer, has been completed and the recommendations are known; and

− an advance equalization payment is not appropriate here because that relief was never claimed by the father in his Answer, and the mother has calculated that she owes no equalization payment in any event.

[12] In addition, Mercanti argues that the father’s Motion should be dismissed and he should be required to obtain leave before bringing any further motions or proceedings on account of his alleged non-compliance with the disclosure Order made by Justice Fitzpatrick dated April 26, 2019.

[13] The mother relies on subrule 1(8) of the Family Law Rules.

[14] For the following reasons, the father’s Motion is dismissed. Either party may contact the trial office to schedule a very brief attendance by Zoom to make oral submissions regarding costs.

[15] I do not for a moment question the father’s love for Connor. Nor do I impugn his motives for having brought this Motion. Nor do I complain about his presentation or his materials; both were well done. Simply put, there is just no merit to any of the relief that he seeks.

[16] First, on access, it would be absurd for this Court to effectively pre-empt the Court-ordered section 30 assessment and expand access at this time.

[17] The father is absolutely correct that to wait for the assessment report is not always necessary. It may be that there is compelling evidence that an interim expansion of access pending the results of the assessment is clearly in the best interests of the child. Phillips v. Phillips, 2019 ONSC 4568.

[18] Here, however, there is no such compelling evidence. In fact, the parties disagree as to whether the child’s behaviours militate against or rather support more time being spent with his father.

[19] In addition, none of the cases relied upon by the father involves a party who wants more access time pending an assessment but who has been the primary cause of the delay in the assessment process. I do so find here.

[20] Actually, the father admits that he never paid his share of the Court-ordered assessment retainer fee for many, many, many months (he paid it very recently, more than two years after the original Order was made, and only after the mother announced her intention to have the within Motion stayed due to the father’s non-compliance).

[21] Finally, the father is clearly most concerned about having to wait until trial to obtain expanded access with his son. He stated that major concern multiple times during the hearing of the Motion. He is worried that, if the assessment (expected to be done within four to six months’ time) supports his position, the mother will simply ignore it and delay the matter further.

[22] The father’s worry is totally misplaced. If the assessment supports his position, then he ought to bring the matter to Court immediately by way of a Motion, regardless of the mother’s position.

[23] Second, on spousal support, this is not a case of clear entitlement thereto on the part of the father, both retroactively and on a go-forward basis.

[24] The evidence as to the father’s income and his finances generally since separation is highly conflictual, and on a compensatory basis the evidence in favour of spousal support is almost non-existent.

[25] Proceeding with some caution, as we are told to do, a trial is required. Schnarr v. Schnarr (2006), 2006 CanLII 190 (ON CA), 22 RFL (6th) 52 (Ont. CA). Since that Endorsement from the Court of Appeal for Ontario is so brief, reference should also be had to the lower Court’s decision.

[26] In addition, on the evidence as a whole, I accept the mother’s argument that the father has not complied entirely with the financial disclosure Order made by Justice Fitzpatrick on April 26, 2019. I accept the evidence in that regard proffered by the mother and contained at paragraph 20 of her August 10, 2020 Affidavit.

[27] As such, under Family Law Rule 1(8), I hereby dismiss the father’s request for spousal support, without prejudice to him raising the issue again down the road, whether by way of another Motion or at trial, should he no longer be delinquent in his disclosure responsibilities pursuant to the said prior Order.

[28] To be clear, I decline to make an Order that the father must obtain leave before bringing any further proceeding in this case; but I caution the father that any step that he does take is in jeopardy of being similarly dismissed on account of his non-compliance with a very simple and straightforward disclosure Order.

[29] Finally, on the advance equalization payment, there are multiple grounds upon which the said relief must be denied - it was not pleaded by the father (I would likely overlook that, in isolation), and this is also a financial issue that the father is pursuing despite his non-compliance with a prior Court Order regarding financial disclosure, and most important I am not satisfied on the evidence in totality that the father (I) is owed an equalization payment and (2), if so, that he needs an advance on it now in order to properly litigate the case. This Motion is but one illustration to the contrary.

[30] The father’s Motion is therefore dismissed.

[31] One further issue must be dealt with. This Court orders that the draft without prejudice document(s) from the mother, contained at Exhibit P of the father’s July 23, 2020 Affidavit, shall be struck from the Continuing Record. They are clearly inadmissible under the protection of settlement privilege.

(“Original signed by”)

Conlan J.

Date: September 21, 2020