COURT FILE NO.: FC-44-2019
DATE: 2020/12/04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Robert Diamond, Applicant
– and –
Kimberly Clark. Respondent
Marc Gauthier, counsel for the Applicant
Alexandra Hachey, counsel for the Respondent
HEARD: October 20, 21, 22 and 23, 2020
CHARBONNEAU, J.
Reasons for Judgment
[1] The parties met in October 2012. They started to cohabitate in the summer of 2013. Two children were born of their union namely Shamus (7), born on October 31st, 2013 and Dio (3), born on April 20th, 2017. They never married.
[2] Unfortunately, they argued and were abusive, both physically and emotionally, to each other soon after the start of cohabitation. They both had extra marital affairs. I find that both spouses abused alcohol and drugs which fueled their abusive behavior towards each other.
[3] During one of their numerous fights, on November 15, 2018, the police was called and Mr. Diamond was charged with assault. He pleaded guilty on April 3rd, 2019. He was conditionally discharged and put on probation for 12 months.
[4] The criminal court did not impose any conditions restricting Mr. Diamond’s access to the children. There was however an order of no contact with the respondent mother. The father attempted to see the children through his lawyer. Valoris became involved. The mother refused all access except at a supervised access center. I find there was no valid reason for her refusal. Mr. Diamond had to bring court proceedings to gain access. Valoris was encouraging access and Valoris’s counsel wrote to both parties on February 15, 2019:
“For purposes of clarification, the Society never took the position that Mr. Diamond’s access be fully supervised. Instead, it was recommended that a third party be present to ensure that he would not abuse alcohol before or during his visit with children. Such arrangements were to be reassessed after a couple of visits. Since Mr. Diamond has been unable to see his children since his separation with Ms. Clark, the worker has been encouraging him to initiate custody and access proceedings in Family Court.
We also confirm that the Society’s file remains open in ongoing services to continue supporting the mother particularly with respect of her parenting skills.
Further, Mr. Diamond has been regularly meeting Ms. Laroche since she took the file (two months ago). He is keeping himself informed of the services the children have been referred to (they are on waiting lists). We can confirm that before the parents’ separation, to the Society’s knowledge, it was mostly Mr. Diamond who took care of the children’s follow-ups”
[5] The father obtained access supervised by his uncle Allan Miller by virtue of a temporary order of this Court dated May 2nd, 2019. His access was modified by order of this Court dated May 23rd, 2019 to cover for the time Allan Miller was not available to supervise. It provided:
“a) Supervised visits every Saturday, from 12:00 to 7:00 p.m. at Allan Miller’s home;
b) Starting June 2, 2019, supervised visits every second Sunday from 12:00 to 7 p.m. supervised by Allan Miller in his home or Tara Diamond or Randy Diamond provided that the new caseworker of Valoris approves him or her as a supervisor and the location where the visits occurs:
• The respondent mother will be responsible for the transportation.
• The respondent mother shall not leave Rylee Clark alone with the children.”
[6] Prior to the parties’ separation, on April 18, 2017, a fire damaged the couple’s residence at 1950 Victoria Street in Rockland. The applicant was the sole owner of the house. The parties filed an insurance claim for damages to the house and its contents. The insurer paid $6,000. The parties had already separated by the time the claim was paid. The applicant received the insurance funds. The respondent claims to be entitled to approximately 1/3 of those funds.
[7] The respondent continued to reside in the house until she moved to Ottawa in June 2019. The applicant paid all expenses related to the house.
[8] The respondent mother has two children from two previous relationships. First with Gary which lasted from the age of 18 to 24 years old, was born a daughter, Kasey Jane Mann, born January 13, 1994 (26). Then, with Kristan for 6 years, was born a son, Rylee Johnston Clark, born October 31, 2003 (16). Rylee was living with them at the start of the cohabitation but he now lives on his own. Rylee was not to be left alone with the children because he had sexually assaulted another child.
[9] At the time of trial, the father resides with his new partner Nathalie Bélanger in Orleans. The mother now resides with the children on Clarence Street in Ottawa’s lower town district.
[10] Shamus was diagnosed with autism spectrum disorder (level 3) by Dr. Laflamme of CHEO on January 22, 2019. He attended Rockland Public School until June 2020 when the respondent mother moved to Ottawa. In Rockland, he received an Individual Education Plan. He has expressive and receptive language delays.
[11] Dio is also experiencing delays in verbal expression and is on the waiting list for testing at CHEO.
[12] The respondent used to work part time at a Subway restaurant and supplemented her income with the child tax benefits. Now she receives Ontario Works benefits and some help from her mother. When she met the applicant, she was not working and had no income.
[13] The applicant to date has not paid any child or spousal support. He works as a mechanic for the Ottawa Transit Commission. In 2018, his annual income was $56,426; in 2019, it was $68,600 and in 2020, he expects to have an income of $80,000.
[14] He paid all the expenses for the house on Victoria Street where the mother and children were residing until June 2020. He estimates this cost him $2000 per month from November 2018 to July 2019. He sold the house in July 2020 for $310,000.
[15] The applicant has resided with his new partner, Nathalie Bélanger, for about 2 years. Mrs. Bélanger works as an education assistant with children with special needs.
[16] Presently, the children are with the father every week from 4 p.m. on Thursday to Monday at 9 a.m. which is 3 days and 4 nights per week. The respondent testified that Shamus is attending virtual schooling at York Street Public School in Ottawa. Dio is attending day care in Orleans when he is with his father.
Issues
What regime of custody and access is in the best interests of the children?
Is child support payable? If so, by whom and on what basis will the amount of support be fixed?
Is spousal support payable by the applicant to the respondent and if so, in what amount?
Should any support order be made retroactive and if so to what date?
Is the respondent entitled to a portion of the insurance funds and if so, how much?
The Position of the Parties
-A- Custody and Access
[17] The applicant submits that the court should award him sole custody with the respondent having access to the children every 2nd weekend. He submits that the respondent has little parenting skills and is generally incapable of properly caring for the children. The respondent suffers from mental illness including ADHD and PTSD. In the past, she has been investigated by child protection agencies and found to seriously lack parental skills, allows her residence to become very dirty and is incapable of properly managing the needs of her children. She has failed to see that Shamus regularly attend school as required. Throughout the parties’ relationship, the respondent has shown that she is severely addicted to alcohol and drugs. She has not taken steps to address these addictions and continues to smoke marihuana and drink beer when the children are asleep. There is evidence that she smoked marihuana with her teenage son Rylee. This shows a lack of responsibility. She has not taken any steps to obtain a psychological assessment as recommended in order to identify her needs and find the proper therapy.
[18] On the other hand, the respondent mother, in her final submissions, proposes a joint custody regime on the basis of one of the following alternative plans:
“1. An order that the parties shall make major
Decisions for the children, namely, Shamus
Diamond (“Shamus), born October 31, 2013 and Dio (“Dio”), born April 20, 2017 as follows:
a. The parties shall make all important decisions regarding the children together including decisions regarding the children’s health, education, activities and religion;
b. In the event that the parties cannot agree on an important decision outlined above within 14 days, the matter shall be determined by the Respondent mother.
- In the alternative to paragraph 1, an order that the parties shall make major decisions for the children, namely Shamus Diamond (“Shamus”), born October 31, 2013 and Dio Diamond (“Dio”), born April 20, 2017 as follows:
a. The parties shall make important decisions regarding the children together including decisions regarding the children’s health, education, activities and religion;
b. In the event that the parties cannot agree on an important decision outlined above within 14 days, the matter shall be determined by one parent for education and activities and the other for health and religion.
In the alternative to paragraph 1 and 2, an order that the Respondent mother be granted sole custody of the children.
An order that the parties shall share their time equally with the children on the following schedule:
a. From Monday before school (or 9 a.m. on holidays) to Thursday afternoon after school (or 4 p.m. on holidays) the children shall be with the Respondent mother;
b. From Thursday after school (or 4 p.m. on holidays) to Monday morning at school (or 9 a.m. on holidays) the children shall be with the Applicant father;”
-B- Child Support
[19] The respondent mother submits child support should be payable from the date of separation. The arrears would total $26,018.50 at the beginning of trial calculated as follows:
“For the month of December 2018 based on an annual income of $56,426; the amount of $860.00;
From January 2019 to December 2019 based on an annual income of $76,659; the amount of $13,956.00;
From January 2020 to mid-March 2020, based on an annual income of $76,659 for Mr. Diamond; the amount of $11,202.50.
Spousal Support
[20] The respondent claims spousal support based on the mid-range of the Spousal Support Advisory Guidelines, retroactive from the date of her answer to the beginning of trial in the following amounts:
“From June 2019 to December 2019 based on annual income of $76,559; the amount of $6,167.00
From January 2020 to October 2020 based on an annual income of $76,559; the amount of $13,887.50”
[21] The respondent is also claiming ongoing mid-range spousal support for an indefinite duration in the amount of $1,558 per month.
Applicant’s position on support
[22] The applicant takes the position that child support should only be retroactive to May 22, 2019, the date the respondent first claimed child support in her answer. The amount should be fixed on the basis of his gross annual income for 2019 and 2020 and in accordance with the Child Support Guidelines.
[23] For the purpose of determining ongoing child and spousal support, the applicant father asks the court to impute an annual income of $29,000 to the respondent based on 40 hours a week at the minimum hourly wage of $14.25 for a 40-hour week.
[24] The applicant submits that he paid spousal support from the date of separation to July 2019 by assuming alone all expenses related to the respondent’s living accommodation at 1950 Victoria Street.
[25] Finally, if the court grants him sole custody, the applicant claims ongoing child support and proportionate sharing of special expenses based on the amount of the respondent’s imputed income.
Analysis
Custody and Access
[26] The Office of the Children’s Lawyer accepted to provide the services of a clinical investigator. Chantal Bourgeois was appointed to conduct the investigation. Mrs. Bourgeois released her report on April 29th, 2020. After an extensive investigation, she made the following main recommendations:
“1. Custody/Decision Making: The children’s father, Robert Diamond, should have sole custody of the children, Shamus Diamond (born on October 31, 2013) and Dio Diamond (born on April 20, 2017), and should be able to make the final decisions regarding the children’s medical care, mental health, dental care, allied health care, and schooling.
Consultation prior to Decision: Prior to making a final decision about major issues regarding the children, Mr. Diamond should obtain Ms. Clark’s opinion regarding the children’s medical care and education. He is encouraged to fairly consider her preferences prior to making a final decision. If he does not receive a response back from Ms. Clark within 7 days, he should proceed with making a decision. Ms. Clark should have full access to the children’s medical and schooling records and should be kept informed regarding their care.
Religious Education: Both parents should share custody of the children’s religious education as they both agree that they should be exposed to a variety of religions and both are comfortable with the English public-school system.
Each parent should make daily decisions regarding the children while they are in their respective care and they should maintain consistent sleep, meal, bath, and nap routines in both homes. If they require urgent care while the children are in their care, the parent responsible for the children at the time should ensure they receive care immediately.
- Breakdown of Parental Responsibilities and Authority:
a. School: Shamus should remain enrolled in Rockland Public Elementary School until the end of June 2020. If another school in the eastern Orleans area is located that offers a similar small class program of 6 children for a minimum of 1.5 hours per day, then Mr. Diamond may consider a move to a school in Orleans to facilitate transportation. Dio should be enrolled in the same school as his brother to facilitate transportation.
b. Daycare: Dio should immediately be enrolled in an Early Years (or similar) pre-school program to help develop his socialization and communication skills with peers of similar age. Once the children move to another school, they should be able to be enrolled in a before school and after school daycare program to provide care to fill in gaps between school and work schedules.
c. Parent Communication with Daycare and School: Both parents should be free to communicate with the daycare and school and obtain updates from them at all times. They should be free to also attend all parent-teacher meetings and Individual Education Plan meetings. Both parents should be noted on the school records as an emergency contact parent.
d. Medical, Dental, Mental Health, and Allied Health Appointments: Mr. Diamond should schedule and attend all annual medical, mental health, dental, audiology, optometry, and speech-language pathology appointments for Shamus and Dio. The dates for these appointments should be entered into the shared parent calendar or he should advise Ms. Clark of the dates in writing. Mr. Diamond should provide a brief written summary of these appointments within 48 hours to Ms. Clark. In the event of a sick appointment, both parents may be free to bring the children to their physician, drop-in clinic or hospital. They should provide brief written feedback within 4 hours of this appointment.
e. Medical Emergencies: In the case of a medical emergency, the parent caring for the children should contact the other parent as soon as possible to advise of the incident and at which medical facility to meet. Once the no-contact order is lifted, both parents should have the opportunity to stay with the sick or injured child in the event of a medical emergency or hospitalization. In the event of conflict or during the no contact order, the parents should alternate time at the hospital in two-hour visits.
f. Prescriptions and OHIP: Important medical prescriptions should remain with the children at all times. A photocopy or digital picture of the children’s OHIP card should be given to Ms. Clark so that she may bring the children to their doctor or hospital in the event of unplanned sickness or accident.
g. Children’s Activities: The children should be enrolled in a minimum of one extracurricular activity at a time, such as swimming lessons or soccer. There are often activities and sports available through different Autism programs (e.g. consult OCTC/CHEO and/or Autism Canada). Both parents should be permitted to attend the children’s sports games or performances.
- Parenting Schedule – July 2020
Mr. Diamond should have primary care of the children at his home in Orleans and his access should be unsupervised. Mrs. Clark should parent the children every second Thursday after school (or 4pm on holidays) until Monday morning drop-off at school (or 9am on holidays).
It is understood that Ms. Clark does not have a car or driver’s license, so she will need to come up with a feasible plan to transport the children to and from school every second Thursday afternoon, every second Friday morning and afternoon, and every second Monday morning. If she cannot develop a feasible transportation plan and cannot reliably ensure the children attend school on these days, then her time with the children will need to be adapted to be Friday after school at 4pm to Sunday at 6:30pm.
Until July 1, 2021, Mr. Diamond should be using an alcohol monitoring device (as noted above) on his cell phone. He should take this test in the morning around 7am and in the evening at around 7pm. These results should be sent to Mrs. Clark to help build trust and provide reassurance.”
[27] The report of Mrs. Bourgeois is well researched and very comprehensive. It is very difficult to fault any of her recommendation. There is an overwhelming amount of evidence brought to light both by the investigation and the evidence at trial, that the respondent mother is unable to properly care for the children and ensure their needs are all met.
[28] In the years before she met with the applicant and was caring for other children, the police records revealed that at many occurrences, she was found to be highly intoxicated in public places. On other occasions, police were requested to assist child welfare authorities of both Quebec and Ontario. They found the respondent’s residence was very dirty including the presence of dog and cat feces on the floor, and insects crawling in various places in the apartment.
[29] Moreover, during the period 1994 to 2012, the Ottawa C.A.S. and the Gatineau Child Welfare Authorities were often called to intervene concerning referrals that the respondent was not properly caring for her children Kasey, and Rylee. The referrals mentioned intoxication, not seeking proper medical treatment for a child, not providing proper food to her children, general neglect, dirty and cluttered residence, and leaving a child unsupervised.
[30] The evidence at trial did not indicate that the respondent’s parental skills had improved. For example, evidence showed that Shamus school attendance was dismal. No evidence was produced to show she has sought professional help to control her abuse of alcohol and drug. She did not appear in control during her evidence. Although she showed no difficulty in answering all the questions of her counsel in examination in chief, she repeatedly asked to take a break every few minutes during the first day of her cross-examination. It was noted in both the OCL’s report and historical record that the respondent mother likely suffers from some mental illness. The respondent was asked by Mrs. Bourgeois to obtain a psychological assessment so that her particular problem could be identified and addressed. Unfortunately, the respondent had not obtained an assessment at the time of trial. The Court is left with the clear indication that the respondent is not presently mentally strong enough to assume the care of Shamus and Dio, particularly given their special needs.
[31] The Court is also left with the distinct impression that the respondent has not taken any means to control her drug and alcohol abuse. Long before she met the applicant, she suffered from severe alcoholism. There is no evidence she has undertaken any type of therapy to control her sickness.
[32] Moreover, the respondent has very little support to help her cope and meet the children’s needs. She does not appear to have good friends or family members to help her.
[33] On the other hand, while the applicant also greatly abused alcohol during his cohabitation with the respondent, he has taken steps and sought professional help to stop drinking. He testified that he has been successful in doing so. This has been corroborated by his new partner. I have found Ms. Bélanger to be a very credible witness.
[34] Mrs. Bélanger has been a very good influence in the applicant’s life. Everything points to a stable loving relationship. Moreover, Mrs. Bélanger given her experience and training will be a great assistance to the applicant in his care of the children.
[35] The best interests of the children dictate that the Court award their sole custody to their father. For now, the respondent mother should have access as suggested by Mrs. Bourgeois every second Thursday after school to Monday after school, if the respondent has transportation available plus the following special holidays:
“6. Holiday access: In principle, all holiday times should be shared or alternated. The parents should be free to make adjustments to these schedules as they see fit, as long as mutually agreed upon by both parents. The schedule below is meant to provide structure, help with planning and will be an important default in the case of conflict.
a. Christmas Holiday: In each odd year, Ms. Clark should have the children from Christmas Eve at 9am to Christmas Day at 1pm and Mr. Diamond should have the children from December 25th at 1pm to December 26th at 6:30pm. In each even year, Mr. Diamond should have the children from Christmas Eve at 9am to Christmas Day at 1pm and Ms. Clark should have the children from December 25th at 1pm to December 26th at 6:30pm.
b. New Year’s Holiday: In each odd year, Mr. Diamond should have the children from New Year’s Day at 1pm to January 2nd at 6:30pm. In each even year, Ms. Clark should have the children from New Year’s Eve at 9am to New Year’s Day at 1pm and Mr. Diamond should have the children from New Year’s Day at 1pm to January 2nd at 6:30pm.
c. Family Day (February): This holiday should fall to the parent with whom the children are with on the weekend leading into Family Day.
d. March Break: This holiday week should be equally split with a transfer on Wednesday at 12pm (or another time if mutually agreed upon). The parent’ time with the children should reflect their existing weekend schedules.
e. Parent day (Father’s Day & Mother’s Day): Ms. Clark should have the children each Mother’ Day from 10am to 6:30pm on Sunday. Mr. Diamond should likewise have each Father’s Day with the children from 10am to 6:30pm on Sunday.
f. Thanksgiving and Easter: The non-access parent should be permitted to take the children for a minimum of six hours during the long weekend to celebrate a lunch or dinner with their family. The access parent has the first choice for day but both parents are encouraged to remain respectful and flexible with the spirit of including both family’s celebrations.
g. Halloween: This day should fall to the parent exercising their access on this day.
h. The Children’s Birthday: Birthdays should fall to the access parent and the other parent may celebrate before or after the actual birth date.
i. Parent Birthdays: If they wish, each parent may choose to have the children on their own birthdays from pick-up after school time until 6:30pm.
j. PD Days/Snow Days: If a PD day or snow day falls on a parent’s parenting day, then they should have the first option to care for the children. If they are required to work and cannot assume care of the children, then the other parent should be given the option to care for the children until their work is done. The children’s PD days are available on the school’s website; therefore, the parents will know well in advance of those days falling on their access time. If a parent cared for the children overnight and a snow day or PD day occurs the next morning, then that parent should be responsible for caring for the children until the end of school day. If a parent cannot care for the children themselves, then they should provide the other parent the first right of refusal. This means that the other parent should be given the option to care for the children first instead of asking a family member or other caregiver to care for the children.
k. Summer period: Until Dio reaches 6 years old, each parent should be entitled to take two weeks of non-consecutive vacation each summer. The parents should provide notice of such vacation dates by May 1st of each year. Ms. Clark should have first pick of summer holiday weeks in each odd year and Mr. Diamond in each year.
l. If a Parent is working during a holiday, working out of town or away on vacation: If a parent is away for work or personal travel during his/her parenting time, then she or he should always offer the other parent the first option to care for the children in lieu of using a grandparent, extended family, stepparent, friend, or babysitter. If the other parent cannot assume care of the children, then the access parent at the time must arrange for care.
m. … Ms. Clark should be responsible for picking up the children at school every (day) on her parenting times. On holiday times, she should pick up the children when starting her parenting time. There should be no direct parent communication other than a civil greeting. Mr. Diamond should respect Ms. Clark’s need for personal space and should not physically approach her at any point.
Telephone or Video Call Access: Once old enough and verbal enough, Shamus and Dio should be free to phone, video call, text, or email their parents at every time. When they are old enough, the telephone number of the other parent should be clearly listed in a visible area. Upon mutual parent consent when the children are old enough, the parents may agree to set up parent-child phone calls in the evenings in which they may speak to the parent without being monitored.
Mobility: In the event that a parent chooses to move further away than their present location, the moving parent should provide at least one month’s written notice of their intent to move and providing their proposed address. They should obtain written consent from the other parent prior to moving with their children.
Travel: Out of courtesy to the other parent, a parent who will be travelling outside of the Ottawa-Gatineau/Prescott-Russell/Kingston/Stormont-Dundas & Glengarry/Montreal/Lanark regions for longer than two nights should provide one weeks’ notice of such a trip. The travelling parent should provide dates of travel, contact information during travel, and health insurance (if necessary) to the other parent. If going away for longer than four days, the travelling parent should ideally provide one month’s notice of such a trip and should allow Shamus and Dio to have telephone or Facetime access to the other parent during the trip. If travelling out of the country, the non-travelling parent should provide written consent to travel according to Passport Canada’s specifications. The parents should not refuse the other parent’s right to travel for a vacation with Shamus and Dio without and significant reason justifying otherwise.
There should be absolutely no consumption of alcohol, marijuana or any other illicit drugs for 12 hours prior to any parenting time with the children.
Ms. Clark should pursue further psychological assessment through Developmental Services or other subsidized agency to help fully identify her needs. Currently, Ms. Clark is experiencing fears, symptoms related to ADHD (inattentive type), some post-traumatic responses, pattern of seeking relationships with abusive interactions, and she exhibits some difficulty comprehending recommended interventions and programs suggested by a variety of professionals.
If Ms. Clark receives the above assessment and recommended therapy and moves to the Ottawa region, then she may seek an Update by the OCL to assess whether a transition to shared custody and a shared parenting schedule is warranted and in the best interests of the children.”
[36] I entirely adopt and incorporate in my final order all the recommendations of Mrs. Bourgeois set out above at pages 12, 13, 14, 15, 16 and 17.
[37] Both children will be enrolled at St-Claire School in Orleans. Until he starts school, Dio will be registered at Tiny Hoppers Day Care in Orleans as required.
Child Support
[38] I find that the applicant must pay child support while the children were mainly in the care and custody of the respondent, namely from December 2018 to August 2019. There is no reason not to make the support payable from December 1st, 2018. The applicant’s child support was clear and known to him, he had the means to pay support and in view of the respondent lack of income, the children needed that support.
[39] Therefore, for the period of December 1st, 2018 to August 1st, 2019, the applicant should have paid child support of $1060.00 per month based on his annual income of $68,600 in 2019. He therefore owes arrears of $8440 for that period of time.
[40] From September 1st 2019 to the present, the child support should be based on his 2019 income of $76,659 for the months in 2019 and his actual income (to be ascertained) for the months of 2020, namely $1060.00 per month for August 1st to December 1st, 2019. The monthly amount for 2020 is to be determined based on his actual income. Once determined, the overall arrears will be payable $311.00 per month starting January 1st, 2021.
[41] I am not prepared to impute any income to the respondent for the years 2019 and 2020 over and above any income actually received. However, for ongoing support in 2021, I find that the respondent given the reduction in her involvement with the children’s care and also being relieved from the stress of litigation should be able to work approximately 30 hours per week.
[42] The calculations of child support will have to take account of the periods in 2019 and 2020 when the children were at least 40% with the father.
[43] She is still young and had indicated a willingness to seek help and beat her addiction and mental health problems. Working part time should be greatly beneficial to her. Given the minimum wage of $14.75 per hour, I impute to her an annual income of $20,000. Therefore, as of January 1st, 2021, the respondent is ordered to pay to the applicant support in the amount of $311.00 per month. That support obligation will be suspended until the arrears are fully paid.
Spousal Support
[44] The respondent claims spousal support starting July 1st, 2019. I find that on a need and means basis, she is entitled to claim support. I find she is not entitled to compensatory spousal support. The support will be indefinite unless either party show a material change in circumstances.
[45] This was a short cohabitation of approximately 5 years. During that period, the applicant assumed all financial obligations. There is no doubt that at the time of separation, the respondent was fully financially dependent on the applicant. I find she is entitled to the mid-range guideline amount of $ 881.00 from July 1st, 2019. As of January 1st, 2021, that amount will be reduced to take into account the respondent’s imputed annual income of $20,000.
[46] Counsel for the applicant shall prepare calculations for all support arrears based on my reasons and submit same for approval to the respondent’s counsel. If there is a disagreement, they may make an appointment to speak to me.
The Insurance Claim
[47] The applicant received all of the money paid by the insurer. There is convincing evidence that most of those funds were his property. The house was damaged and the house was his property. The only one of the parties who could buy content for the house during the cohabitation was the applicant. Even assuming that some personal effects of the respondent form part of the claim, the evidence is not sufficient for the Court to evaluate the value of those when damaged. The respondent’s claim to a portion of the insurance proceeds is dismissed.
Conclusion
[48] Once the details of support and arrears are known, counsel for the applicant will prepare a draft order in accordance with my reasons and submit it to the respondent’s counsel for approval as to form and content.
[49] Respondent’s counsel will also prepare divorce mate calculations to take into account the imputed income of the respondent on the ongoing spousal support.
[50] If the parties cannot agree, they may arrange for a teleconference with me.
[51] I will entertain short written submissions on costs, from applicant’s counsel within 30 days and then from respondent 10 days thereafter.
The Honourable Justice M.Z. Charbonneau
Released: December 4, 2020
COURT FILE NO.: FC-44-2019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Robert Diamond, Applicant
– and –
Kimberly Clark. Respondent
REASONS FOR JUDGMENT
Charbonneau, J.
Released: December 4, 2020