Court File and Parties

COURT FILE NO.: FC70/21-00

DATE: April 21, 2021

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: P.G., applicant

AND:

L.V.G., respondent

BEFORE: MITROW J.

COUNSEL: Allison M. Nesbitt for the applicant

Laura Moyer for the respondent

HEARD: April 9, 2021 via videoconference

ENDORSEMENT

INTRODUCTION

[1] The applicant father, P.G. (“the father”), and the respondent mother, L.V.G. (“the mother”), are the parents of M., age 7.

[2] Both parties bring urgent motions prior to a case conference on the heels of the father’s application issued March 23, 2021.

[3] The parties raise urgent issues relating to parenting; the father, in addition, raises urgent issues in relation to spousal support and child support.

[4] During the course of the hearing of the urgent motions, dates were set for a case conference and the hearing of the parties’ motions. Those dates are reflected in the order below, being June 2, 2021 for the case conference and August 6, 2021 for the motions.

[5] For reasons that follow, an order is made on an interim interim without prejudice basis to address the parenting issues and, as a condition of the adjournment, the mother is required to pay a sum of money, with the amount being credited towards any order requiring the mother to pay spousal support or child support.

PARENTING ISSUES

[6] The parties were married in 2013; according to the father, they began to cohabit in 2011.

[7] The parties agree that they separated on March 1, 2021.

[8] The parties’ affidavit material contains significant conflict as to the facts.

[9] The father’s evidence is that he has been a victim of domestic violence at the hands of the mother, and this includes also the child.

[10] The mother, in her evidence, denies categorically all allegations of domestic violence made against her.

[11] On March 1, 2021, the parties’ separation was prompted by an incident between the parties that the father has characterized as a domestic assault perpetrated against him by the mother.

[12] The father called the police, who attended at the parties’ residence in Port Stanley. The father deposes that “to my complete surprise,” no charges were laid against the mother and that he was directed by the police to leave the matrimonial home, which he did. The child remained with the mother.

[13] The father now has secured rental accommodation in London. His evidence is that he continues to be fearful of the mother and he refuses at this time to disclose his address, although he does depose that it is in the Byron area of London.

[14] The mother is a self-employed denturist. Her office is located in London. The parties had been living in Port Stanley, but the lease on their matrimonial home in Port Stanley expires in the beginning of May. The mother has provided evidence that she has found rental accommodation in London effective May 1, 2021 and that she will be moving to London with the child.

[15] The parties are unable to agree on a parenting time schedule and they are unable to agree on the school that the child should attend in London. I find those issues are urgent and that it is in the child’s best interests that those issues be addressed pending full argument on the motions.

[16] During the hearing, I made clear to both parties, and I also reflect on these reasons, that it is necessary only to make a parenting order on an emergency basis that will stabilize the child’s parenting time with each party and deal with the issue of which school the child should attend for the balance of the current academic year. I will deal first with the parenting time.

[17] While each party sought primary residence of the child by way of an emergency order, each party did provide an alternate position in relation to the emergency order being sought. The mother’s alternate position, in essence, was that the child spend equal parenting time with the parties, while the father’s position was that, during each week, the child should spend four consecutive days with him and three consecutive days with the mother.

[18] At this time, there is no dispute regarding the fact that the father does not work outside the home. The mother’s self-employment income supports the family. The father deposes that, since shortly after the child was born, that he was the child’s primary caregiver.

[19] The mother disputes categorically that the father was the child’s primary caregiver. It is the mother’s position that she always was actively involved in all aspects of the child’s parenting.

[20] The mother, however, does depose that she returned to work shortly after the child was born and that she has been the “only” parent to provide financial support for the family (paragraph 16), The mother agrees that the father does most of the drop off and pickup of the child for school (paragraph 27).

[21] While the mother does not dispute that, at separation, the father was not employed, she characterizes the father’s non-employment outside the home as a refusal to work.

[22] The gist of the father’s evidence is that generally, since the child was born, that he has been the stay-at-home caregiving parent. The father does not agree with the characterization that he failed to provide any financial support and provides some evidence as to his position that he has provided financially for the family in the past.

[23] Given the conflicting evidence, I prefer at this time to focus on each party’s alternate proposals and the reality that, at the date of separation, the father was a stay-at-home parent.

[24] The father adds that he recently was injured in a motor vehicle accident and that this adversely affects his ability to work. However, there was no medical report or other evidence filed by the father in relation to the extent of his injuries and how those injuries affect his ability to work. That type of evidence may be something that will need to be made available when the motions are argued.

[25] I find that no status quo was created when the father left the matrimonial home on March 1, 2021 and with the child remaining with the mother. The father’s departure from the matrimonial home was precipitated by an argument between the parties and also by police intervention. The father acted expeditiously in seeking parenting time, including the commencement of the court proceeding.

[26] I find that it is in the child’s best interests, on an interim interim without prejudice basis, that the father should have parenting time with the child each week for four days and that the mother should have parenting time with the child each week for three days. That parenting time schedule will apply during the child’s school year.

[27] For the summer, the parenting time shall be a week-about with each parent. This will allow each parent, if he or she wishes, to enroll the child in any summer activity or day camp, assuming those options are available, given the limits imposed by the pandemic.

[28] The second issue relates to the child’s school. There are two areas of dispute between the parents. The parents, in essence, are unable to agree as to whose residential address defines the catchment area for the school that the child will attend.

[29] The second area of dispute is whether the child should attend public school or Catholic school. The father wants to register the child in a Catholic school and the mother wants to register the child in a public school.

[30] I did indicate to the parties, during the hearing, that the issue of placing the child in a public school versus a Catholic school is not an issue that needs to be determined on an emergency basis. I indicated during the hearing, and I repeat in these reasons, that the child should remain in a public school for now because the child had been registered by the parents in a public school when the parents were living in Port Stanley. Currently, as the mother has remained in the matrimonial home, the child has continued to attend grade one in the public school in Port Stanley.

[31] In relation to the school that the child attends, I find that it is in the child’s best interests, for now, that the child be registered in a public school in the catchment area of the father’s residence. It is emphasized that the order being made below in relation to the child’s schooling is intended to address the issue of the child’s school attendance until the current school year is completed. The issue as to where the child should attend school in September 2021, and whether the child should attend a public school or Catholic school, all remain live issues to be addressed on the hearing of the motions.

[32] There was no evidence of the name of the public school that is in the father’s catchment area in Byron. However, the father advised the court through counsel that the school was Byron Somerset Public School, although that is not in evidence. The order below addresses the requirement that the father provide a letter from the public school confirming that the school is in the father’s catchment area.

[33] The mother raised an issue regarding the father’s refusal to disclose his address. Domestic violence is a serious issue that, regrettably, is raised in many cases in this court. In the present case, the father has raised domestic violence as an issue and the mother has denied the allegations. No police records are filed. It is not possible, on the current evidentiary record, to make any finding as to whether domestic violence has occurred.

[34] In her motion, the mother requests an order that the father disclose his address.

[35] At this time, I leave that request for the parties to argue on the motions. However, I do urge the parties strongly to use the case conference process to come to some resolution of that issue. For now, it is sufficient that disclosure has been made that the father resides in Byron.

[36] The parenting order below is made pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12 as there is no claim for a divorce in the application and, as at the date of the hearing, the mother’s answer had not been filed.

INTERIM CHILD SUPPORT AND INTERIM SPOUSAL SUPPORT

[37] The father submits that his need for an immediate order for interim child support and spousal support is urgent. The father points out that the first available motion date to argue the motions is approximately three and a half months away and that he should not have to wait that length of time to obtain a support order.

[38] The mother argues that she has had no opportunity even to file a financial statement, that the interim support issues are not urgent, that the issues should not be dealt with now and that each party will need to provide to the court all the necessary financial disclosure before any interim support issues can be addressed. The mother raises entitlement to spousal support as an issue.

[39] While the father did file a financial statement, it was incomplete and this was quite likely related to the shortness of the time period to prepare motion material, the main focus of which was on parenting issues.

[40] The father discloses monthly income of $3,908 ($46,896 annually, consisting of $2,108 per month LIRA pension withdrawals and $1,800 per month from the federal “CRB” benefit. The father points to his financial statement showing that his LIRA will be exhausted after one more payment. It is not entirely clear how long the “CRB” benefits will continue.

[41] The father’s financial statement discloses three Bank of Montreal accounts – RRSP, direct investment and TFSA – but the values at date of separation and “today” are not disclosed.

[42] The mother, understandably in the circumstances, has had insufficient opportunity to prepare a financial statement. She did append her 2017, 2018 and 2019 notices of assessment to her affidavit. This documentation discloses income of $90,058 in 2017, $88,322 in 2018 and a loss of $1,972 in 2019.

[43] While I agree with the mother’s submissions that an opportunity must be given to provide proper financial disclosure, I cannot ignore the undisputed evidence that, as at the date of separation, the mother was providing financially for the support of the family and that it may impose financial hardship on the father to have no financial assistance while waiting for motions to be argued.

[44] In the circumstances, I find that it is just and fair to resort to the court’s authority to impose appropriate conditions as part of the terms of an adjournment.

[45] I find that the mother should pay a sum of $5,000 as a condition of the adjournment, with this amount being payable in four equal monthly installments as set out in the order below.

ORDER

[46] I make the following order:

1. This proceeding is adjourned to a case conference at 12:15 p.m. June 2, 2021.

2. The motions are adjourned to 11:30 a.m. August 6, 2021 (one hour).

3. The initial return date set for the application, which is 9:30 a.m. April 30, 2021, is vacated.

4. At the case conference, if the parties have not been able to resolve the motions, then the timelines for serving and filing any further motion material and facta should be dealt with.

5. Pending the hearing of the motions, and on an interim interim without prejudice basis, the following order is made pursuant to the Children's Law Reform Act, effective immediately, unless otherwise stated:

(a) the child shall have parenting time with the father each week from 5 p.m. Sunday to 5 p.m. Thursday;

(b) the child shall have parenting time with the mother each week from 5 p.m. Thursday to 5 p.m. Sunday;

(c) the child shall be registered by the father in the public school for the catchment area in London, in the Byron area where the father resides, and for the current school year, the child shall attend that public school either in-person or virtually, as circumstances require; the registration process shall be completed within the next seven days and the child shall commence attending that public school within seven days;

(d) the father shall provide, within seven days, a letter from the school confirming that the school is the child’s public school in the catchment area where the father resides, but the letter shall not disclose the father’s address;

(e) during the summer, when the child is no longer attending school, the child shall have parenting time with each party on a week-about basis from 5 p.m. Sunday to the following Sunday at 5 p.m., starting the first Sunday after school ends and, unless the parties agree otherwise, during the first week the child shall be with the mother;

(f) each party has decision-making responsibility for the child during his or her parenting time with the child, in relation to day-to-day and routine matters;

(g) the parties shall have joint decision-making responsibility for all major issues affecting the child’s health or welfare and, failing agreement, either party is at liberty to schedule a motion before the court to deal with any dispute in relation to joint decision-making; and

(h) the issues as to which school the child attends commencing September 2021, and whether the child attends public school or a Catholic school, remain live issues and shall be dealt with when the motions are heard.

6. As a condition of the adjournment of the motions, the mother shall pay to the father the sum of $5,000 on the following terms:

(a) this amount shall be paid in four equal monthly installments in the amount of $1,250 each, payable on the 30^th^ day of each month commencing April 30, 2021;

(b) the amounts paid by the mother shall be credited towards any future final or interim order requiring the mother to pay child support or spousal support, and the manner in which the credit is applied shall be agreed to by the parties, and failing agreement, as ordered by the court; and

(c) if no interim or final order is made in this proceeding requiring the mother to pay child support or spousal support to the father, then the father shall repay all amounts paid to the mother at the conclusion of this proceeding; if an interim or final order is made requiring the mother to pay child support or spousal support, but the total amount to be paid is less than $5,000, then the father shall repay the difference between $5,000 and that amount to the mother at the conclusion of this proceeding.

7. Costs are reserved to the judge who deals with the motions on a final basis.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: April 21, 2021