Superior Court of Justice – Ontario
COURT FILE NO.: FC-21-521
DATE: 2022/06/09
RE: NWAMAKA FELICIA MUOKA, Applicant
-and-
BERNARD ONYEBUCHI MUOKA, Respondent
BEFORE: Justice D. Summers
COUNSEL: Valerie Akujobi, for the Applicant
Jenny Johnston, for the Respondent
HEARD: January 25, 2022
ENDORSEMENT
Introduction
[1] This was the third return of a motion declared urgent on October 8, 2021, and originally scheduled to be heard on October 12. The matter was set down as a one-hour motion. Despite this, the parties claimed fifteen heads of relief between them and filed a total of seventeen affidavits plus their financial statements. It was clear to me that the one-hour time estimate was given by counsel to jump the queue and obtain an earlier date rather than wait for the availability of a long motion date. Rather than imposing a further delay on the parties by requiring their counsel to schedule the matter appropriately, I allowed counsel to proceed as scheduled for one hour. My endorsement is commensurate with a one-hour motion. The same indulgence should not be expected a second time.
Procedural History
[2] On October 8, 2021, the applicant brought a motion without notice seeking approval for an urgent motion, and for other immediate relief. Urgency was found and relief was ordered pending the disposition of the motion that was to return on October 12, on notice to the respondent. The relief granted on October 8 was for temporary exclusive possession of the matrimonial home, a temporary restraining order against the respondent, an order that neither parent may remove the children from the City of Ottawa, and for police enforcement of the order.
[3] The respondent had retained counsel but was not ready to proceed on October 12. The motion was adjourned again, however, the assistance of the Office of the Children’s Lawyer (“OCL”) was requested, and production of the Children’s Aid Society (“CAS”) and Ottawa Police Services (“OPS”)’ files were ordered.
[4] On the next return date those records had only just been received by counsel. A further adjournment was sought and granted, and the court made an interim without prejudice order providing the father with parenting time on alternate Saturdays and Sundays, from noon until 4 pm, with exchanges to occur at the Ray Friel Recreation Complex. Additionally, there was an order for virtual parenting time by video conference, on Tuesdays and Thursdays, from 7:00 to 7:30 pm. The restraining order was suspended to the extent necessary to facilitate these parenting terms.
Factual Context
[5] The parties married on January 17, 2009, and separated in May 2020. From that date until October 9, 2021, they lived separate and apart in the jointly owned matrimonial home. They have three children together who are eleven, eight, and five years of age. According to the applicant, she was the primary caregiver for the children during cohabitation and says that for most of those years she combined childcare and study while the respondent was working as many as three jobs at a time to support the family. She also asserts that the respondent engaged in different forms of family violence toward her throughout the marriage.
[6] The respondent denies the violent and controlling behaviour alleged against him. He acknowledges that the applicant was often the primary parent during the marriage but describes himself as an involved parent. He says as parents, they worked around each other’s employment and educational hours to juggle parenting responsibilities including dropping off and picking up the children from school. He also maintains he was involved in the children’s religious upbringing, their activities, and helping them with homework.
[7] In terms of his current parenting time, the respondent acknowledges that he presently stays with friends and is not in a position to have the children in his care overnight. He asks for another return date to review his parenting time once he has his own accommodation and can facilitate a more equitable parenting schedule.
Restraining Order / Exclusive Possession
[8] On October 8, 2021, Mackinnon J. granted an ex parte restraining order against the respondent with the expectation that the motion on notice would be heard on October 12. That expectation was not met. The ex parte order was, in fact, in place for more than three months before this motion was argued. The affidavit filed by the applicant in support of the ex parte order described longstanding physical violence by the respondent, including in the presence of the children. She deposed that the police had to be called twice in 2021, to save her and the children from the respondent’s physical abuse. The applicant deposed that the respondent punched the wall and slammed the table when served with her application earlier in 2021. She provided several examples of his anger, his loud, aggressive behaviour toward her, and that was overheard by one or more of the children. The alleged misconduct included awakening the applicant in the middle of the night to demand that she pack up and leave the house with the children.
[9] The applicant also described emotional abuse and controlling behaviour by the respondent. Other supporting deponents described the respondent as quick tempered, verbally aggressive and threatening. One witness described the respondent slapping the applicant in the face because she was cooking hot dogs and he considered them unhealthy.
[10] The respondent denies the allegations and says he has never been physically violent with his wife. He says the police were never called to their home until 2021, and in that year, each time they came, they left, finding no violent or threatening behaviour by him. The respondent agrees the children would have seen him distraught and crying over his crumbling marriage and separation, but not violent. He left amicably with the police when served with the October 8 order. He has not re-attended since, has not attempted to contact the applicant, and had a friend go to the house to retrieve some personal belongings, as he was permitted to do.
[11] Counsel had received the CAS and OPS records and made them available to the court. The records provide a useful source of independent evidence regarding some of the relevant issues in dispute. The closing letter from the CAS dated November 10, 2021, confirmed that the respondent had left the children in his car for a period of time outside his office after he was unexpectedly called into work but did not verify that the children had witnessed violence in the home. The children told the CAS that there had been arguing in the past but did not disclose violence. They also said that more recently their parents had stopped talking and no longer spoke to one another. The oldest child was visibly upset by the silence between them. Overall, the children spoke favourably about their relationship with both parents.
[12] The mother is noted to have said that the last incident of domestic violence took place in December 2019, but she is fearful it will happen again. The CAS worker advised the respondent father that it would be best if he did not reside in the home with the applicant given the allegations.
[13] The occurrence report from the OPS for June 22, 2021, does not support the necessity for a restraining order. In it the applicant is said to have reported common verbal arguments with minor physical altercations on occasion. She said the last time that happened was in January when she was grabbed forcefully by the arm and fell on her knee. On June 22, there had been no physical force or abuse. The applicant was not concerned that her husband would hurt her but had called the police to send a message to him, and for the police to intervene to stop his bullying behaviour. On that day, the officer reported that a child could be heard crying in one of the upstairs rooms. Clearly, what was happening was causing distress to at least one child.
[14] The respondent admitted to the officer that he had interrupted the applicant while she was online teaching a class by repeatedly asking her the same question over and over. When she did not answer, he grabbed her laptop, in the presence of her class. He said he felt justified because she was being disrespectful in not answering him.
[15] Since moving out of the house on October 9, the respondent has stayed with friends; the applicant remains in the home with the children. On the whole of the record, I am satisfied that it is in the best interests of the children to continue to live in the home with their mother, in the absence of their father. This conclusion is supported by the observations of both the CAS and the OPS. If the respondent was to move back into the home, I find it probable that there would once again be disagreements of the type that provoke tension in the children.
[16] I conclude that the restraining order and its requirement that the respondent remain 200 meters from the home should be, and is, hereby rescinded. The order for exclusive possession shall continue, and the respondent is ordered not to attend the home or communicate with the applicant other than by email with respect to child-related matters only. This order is made without prejudice to the respondent’s ability to bring a motion for the sale of the home before trial, if so advised, after the necessary disclosure has been made to complete net family property statements.
Payment of Expenses Related to the Matrimonial Home
[17] According to the respondent’s financial statement, the mortgage, taxes, and insurance expenses total $1,769.26 per month. He shows the other occupancy costs at $671.84 for a combined total of $2,441.10 per month. The applicant’s financial statement does not show any of these amounts as her expenses.
[18] As the sole occupant of the jointly owned matrimonial home, the applicant should be responsible for payment of the expenses noted above and she is ordered to cover those costs each month effective June 1, 2022.
Child and Spousal Support Including Section 7 Expenses
[19] The respondent states that his line 150 income was $94,671 in 2021 while for 2020 his line 150 income was $105,139. The monthly child support table amount for three children for each income is $1,837 and $2,001 respectively. Since the respondent continued to pay all housing expenses after vacating the matrimonial home in October 2021, he appears to have exceeded his child support obligation.
[20] Commencing June 1, 2022, the respondent shall pay the applicant child support for three children based on his stated income for 2021 of $94,671.00, in the monthly amount of $1,837. The respondent shall produce his 2021 Income Tax Return as filed, and his Notice of Assessment for 2021 upon receipt. Any adjustment needed to bring the child support into line with his actual line 150 income for 2021 shall be made at that time.
[21] The applicant’s submission that the respondent should pay table support and all of the costs of carrying and running the matrimonial home is not reasonable. According to her own DivorceMate calculation, doing so would leave him with approximately $1,553 per month for his own living expenses. As it is, payment of child support results in a division of the parties’ net disposable incomes between their households of 34.6% and 65.4% in the applicant’s favour. When the applicant’s own income is combined with the child support ordered, she is left with net monthly cash flow of $7,535. Leaving aside a debt payment claimed of $1,200 per month, her expenses are $4,256. The difference between her monthly income and expense of $3,279 will go a long way to covering the costs of living in the matrimonial home. The debt payment of $1,200 declared is related to two credit cards and a line of credit balance, totaling $5,595. I am confident that the applicant can make arrangements that will allow her to manage these debts at a far lesser monthly cost.
[22] In addition to his monthly child support obligation, the respondent shall pay to the applicant his proportionate share of section 7 expenses for the children, after adjusting for any income tax deductions and/or insurance reimbursements, provided the expenses are agreed to in advance.
[23] The applicant’s claim for a temporary order for spousal support is dismissed, without consideration of the merits regarding what may be her potential entitlement. The applicant’s own DivorceMate calculations at both income levels for the respondent show no ability to pay spousal support after payment of child support. In these circumstances, it should be a trial judge, not a motion judge, who determines the issue of entitlement to spousal support and whether any payment obligation should be deferred until after the reduction or termination of child support.
Parenting Issues: Decision-making, Residential Schedule, Non-removal, and Police Enforcement
[24] I decline to make an order for decision-making, other than in the case of a medical emergency and in that circumstance, the mother shall have the decision-making authority, on a temporary without prejudice basis. If a medical emergency arises when the children are with the respondent father, he shall notify the applicant mother forthwith, and until she arrives, he may take any necessary steps in the best interest of the child’s safety such as calling an ambulance.
[25] The children all attend St. Dominic’s Catholic School and shall continue to do so. Their primary physician and dentist shall remain as is currently in place. As there is no evidence of any pressing decisions currently required, no further order is needed at this time
[26] As soon as the respondent has his own accommodation, his parenting time as currently ordered shall be extended to commence at the current time on the Saturday and to extend until the current return time on the Sunday. The terms of his parenting time may be reviewed when the OCL report is available.
[27] Out of an abundance of caution, there shall be a mutual order that neither parent may remove the children from the City of Ottawa, without further order of the court.
[28] I decline to order police enforcement as I am not satisfied that is necessary.
Miscellaneous
[29] The respondent father seeks an order for telephone calls with the children in lieu of the video calls already ordered and asks that they occur at the same times as they currently do. An order shall go to this effect.
[30] After the respondent has secured his own accommodation, he may arrange to attend at the matrimonial home to remove agreed upon items from the property. The time and circumstances of his attendance are to be agreed on between counsel, in writing, and the document, whatever form it may take, shall be signed by the parties, and dated.
[31] Lastly, I am recommending this matter to the local administrative justice for case management.
Costs
[32] The parties must now address the costs of the ex parte motion, the subsequent appearance before myself, Justice Phillips, and of this motion. If they are unable to resolve the issue, they may make written submissions to me of not more than three pages double spaced using 12-point font, plus attached relevant offers and Bills of Costs, to be delivered as follows:
• The applicant shall have until 4:00 p.m. on June 24, 2022;
• The respondent shall have until 4:00 p.m. on July 11, 2022; and
• The applicant shall have until 4:00 p.m. on July 18 to deliver her reply, if any, not to exceed one page.
Justice D. Summers
Date: June 9, 2022
COURT FILE NO.: FC-21-521
DATE: 2022/06/09
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: NWAMAKA FELICIA MUOKA, Applicant
-and-
BERNARD ONYEBUCHI MUOKA, Respondent
BEFORE: Justice D. Summers
COUNSEL: Valerie Akujobi, for the Applicant
Jenny Johnston, for the Respondent
ENDORSEMENT
D. SUMMERS J.
Released: June 9, 2022