David v. Rivero
Between Emlyn John David, Applicant, and
Yainez Alvarez Rivero, Respondent
Yainez Alvarez Rivero, Respondent
[2011] O.J. No. 4479
2011 ONSC 5878
Court File No. FS-11-17314
Ontario Superior Court of Justice
Family Court
S.E. Greer J.
Heard: August 30, 2011.
Judgment: October 5, 2011.
Court File No. FS-11-17314
Ontario Superior Court of Justice
Family Court
S.E. Greer J.
Heard: August 30, 2011.
Judgment: October 5, 2011.
(24 paras.)
ENDORSEMENT
1 S.E. GREER J.:-- This matter has been before the Court on a number of occasions, and it was adjourned over on July 26, 2011 by Madam Justice D. Wilson, to August 30, 2011. In her Endorsement, Madam Justice Wilson called the case one of high conflict and urged that the Office of the Children's Lawyer become involved. By fax dated August 30, 2011, that Office has agreed to provide the Court with a report pursuant to section 112 of the Courts of Justice Act.
2 The Applicant, Emlyn John David ("the Father"), had asked for extensive relief in his Motion set down for May 10, 2011. On that date, Madam Justice Goodman adjourned the Motion to a Case Conference, as none had taken place. By July 7, 2011, the Father had withdrawn certain claims he was making and required time to obtain counsel. Certain interim Orders were made on that appearance and the Motion was put over until July 26, 2011. On each occasion, it was noted that the Respondent, Yainez Alverez Rivero ("the Mother"), required a Spanish Interpreter to be present. One was ordered, and when the matter came on before me, one was present.
3 The Father filed a new Notice of Motion, in which he asked for modified relief respecting the parties' child, Gareth John David Alverez, ("the son") born October 1, 2002. Gareth has just turned 9 years of age. The Father seeks interim access to his son, with access to be supervised by his brother, Kevin Matthew David and/or Kevin's partner, Catherine Mitanis. The Father agrees to pay interim child support of $462 per month based on an imputed annual income of $50,000, with such interim support to commence on August 1, 2011. He further asks the court to set aside condition 2 of the Order of Madam Justice Wilson that he not deplete his assets while the litigation continues between the parties.
4 While the Father originally asked for sole interim custody of the son, the parties have agreed on consent that the Mother have sole interim custody of the son. They also agree that neither of them shall remove the son from Ontario without a court Order or by the agreement of the parties in writing. The Mother also consents to the Father paying the son's special expenses directly to the source providers of such expenses.
Some background facts
5 In my view, the background history of the parties' relationship, is important in understanding how this case has become a high conflict case. They met in Cuba, where the Father, who is now 46 years of age, was on vacation. The Mother was 17 years of age when she met the Father. She is now 28 years of age and was, at the time the parties met, a citizen of Cuba and continues to be one.
6 The Mother says that she and the Father "were together" from 2001 onward. The Father denies this. The son was born in October 2001, and the Mother says the parties married in Cuba on December 20, 2003. The Mother's affidavit evidence about the nature of the parties' relationship and the amount of time spent by the Father there, over the years, is sketchy. What is clear, however, is that the Father financially supported his son's education and the son attended the "International School of Havana", a private school, which cost approximately $9,500 U.S. per year.
7 At the suggestion of the Father, the Mother and the son came to Canada in August 2010 for a visit. The parties shared space for a short period and the Mother and son returned to Cuba. A second visit was arranged and they returned to Canada on January 31, 2011, where she says they began living together at his apartment on Spadina Road. The Father denies that they ever lived together in Canada. In his letter to the Canadian Embassy in Cuba, the Father said, "At this time we are NOT requesting permanent residency visa". He says he found an apartment for her and had it painted. The Respondent and the son stayed with him for 2 days, he says, until they could occupy that new apartment.
8 The Father says the parties were divorced in Cuba in March of 2005, where they attended before a tribunal. He denies that they have been in a "relationship" since 2001. He says that the parties' relationship was never serious and that they never lived together. He says in his Affidavit sworn May 5, 2011:
· The Respondent and I never lived together. I would only travel back and forth between Cuba and Canada sporadically. When in Cuba I did not reside with the Respondent. The respondent, while pregnant with the child of the relationship, was involved in another relationship ... our involvement was sporadic at best.
He acknowledges that he travelled to Cuba and secured an apartment for the Mother and his son and provided clothing, food and toys for the son. He also says he "bailed" the Respondent out of jail in Cuba, where she had been incarcerated on an offence in November 2003. He says that in June of 2010, the Respondent was arrested for solicitation in Cuba and he was contacted by her Aunt. He says he went to Cuba to pay her fines and get her released from custody. He then arranged their visit to Canada in August 2010.
The Mother's disappearance with the son
9 Each party has a different version of what took place and how the Mother disappeared on April 1, 2011. The Children's Aid were contacted at one point, and the Mother alleges violence on the part of the Father. The police became involved. The Mother and son were found to have gone to a Shelter. Litigation was begun by each party. The son had been attending school in the Father's school district at Forest Hill Middle School. I am told by the Mother's assistant from the Shelter through the Mother's counsel, that the child is now attending a school in the area where the Shelter is.
Interim Access for the Father
10 Earlier in this proceeding, it was suggested by Mother's counsel that the Father have supervised access at an Access Centre. The Mother continues this position, without, in my view, any independent evidence that the Father should not have unsupervised access.
11 The Father says that he wants unsupervised access, such as he had while the Mother and son were living in the apartment provided by the Father. There is no independent evidence that the Father was anything but a loving Father throughout the son's residency in Cuba and in Toronto. The Father says that the child has visited with his paternal grandmother, while in Toronto and has established a relationship with her.
12 The Father not only provided financial support for the son, he also paid for music and karate lessons while the son lived in Cuba. After the son came to visit in Canada, the Father enrolled him in UCC summer camp, the Island Yacht Club junior sailing programme and karate classes. All this was in place when the Mother disappeared in April 2011 to the Shelter and the litigation ensued.
13 The son has also met the Father's partner of the past four year, Elena Poliakova. They have been living together since 2009. She could also be a supervisor for Father's access visits. In her Affidavit of August 17, 2011, Ms. Poliakova says that she has been aware of the son's living in Cuba. She says that she travelled to Cuba about 10 times with the Father to see the son during her relationship with the Father.
14 The Father's brother, Kevin and his partner, have also agreed to act as supervisors if necessary. In his Affidavit sworn August 17, 2011, Kevin says that the son has spent weekends at his home with them and their two children, who are 3 and nine months old. He says that have spent "considerable" time with the son and that the son is like a big brother, to their son Keenan.
15 The Father has not seen his son since April of this year. I made a short temporary Order on September 16, 2011, for two visits with the Father to be supervised by the brother and his wife, while I was out of the country for two weeks, as my Endorsement was not yet completed.
16 In my view, the Father is entitled to interim access to his son while awaiting the Report of the Office of the Children's Lawyer and I make the following Orders regarding that access:
The access shall begin as supervised access for the month of October only and unsupervised access shall begin on November 1, 2011. All interim access shall be on the basis set out as follows.
The supervisors shall be Kevin and/or Catherine or both, depending on their availability. If neither of them is available, the supervisor shall be Elena.
The Father's access shall be every Saturday 10:00 a.m. to 7:00 p.m., to allow the Father to have a dinner with his son on that visit. On every Sunday the access shall be from 10:00 a.m. to 5:00 p.m., to allow the son to have dinner with his Mother that evening and allow the son time to do homework and get ready for school the next day.
The pick-up and drop-off shall be at the McDonald's restaurant at 2218 Bloor St. West, unless the parties agree otherwise through their counsel. I am aware that the Mother wanted access to be at an access centre. This never would have given the Father a full day with his son. I find that the Father is entitled to have a full day of access on the days noted above. The Mother also wanted the drop-off and pick-up, in the alternative, to be at the nearest police station. I do not think this is in the best interests of the son. He, I am told, is aware that the police have been involved in his parents' difficulties. It also places an added burden on the police station, which is not equipped for such drop-offs and pick-ups. The Mother shall bring the son to the McDonald's on Saturday and Sunday mornings and he will be picked up by the supervisor(s) and returned to there at the appointed time.
The Mother's counsel raised the issue of the bail conditions/restraining order against the Father from communicating directly or indirectly with the Mother or going near where she lives. The Mother is not working and I was not told the address of the Shelter. I told counsel that the Father's bail conditions could be varied in the Ontario Court of Justice to allow such limited contact for pick-up and drop-off purposes. The Father should try to effect such change immediately. In the meantime, either one or more of the designated supervisors shall do the drop-off and pick-up until those conditions have been varied.
The parties may, in writing through counsel, agree on any variation of this Order while it is in effect and while waiting for the Office of the Children's Lawyer to prepare its Report.
Interim Child Support
17 The Father has agreed to pay interim child support of $452 per month based on an imputed income of $50,000. He has also agreed to pay 100% of the son's special expenses directly to the providers.
18 The Mother takes the position that the Father was late in filing his up-to-date Financial Statement pursuant to an earlier Order. The Mother also says that the Father's income must be more than $50,000, given the assets he owns. She points to his business assets and his condominium and a draft trust declaration and an interest in Crown Taxi Company and in Bellair Ventures Inc. as possible assets to produce income. The Mother believes the Father has employment contracts through companies involved in the film business. She wants the Court to impute income to the Father of $95,750, on a without prejudice basis, based on his 2009 income of that amount on his Income Tax Return that year. This would equate to $844 per month under the Guidelines. She wants that support to be retroactive to April 2011, the month she left the apartment.
19 The Father says he no longer works for Crown Taxi since the Mother had him charged criminally. He was the CEO of Crown Taxi, as is shown on its website. He is also shown as such in 2008 for Bellair Ventures Inc. There are no details of compensation on that website for either of these companies. The same is true of Fairport Capital Inc. and several other small companies that the Mother's counsel has found on the internet.
20 The Father's up-dated Financial Statement sworn on August 11, 2011, shows his monthly income as $2,113.04 or $25,356.48 per year. His monthly expenses are shown as $4,535 per month or $54, 420 per year. That number would fit into a 2009 income as noted. He also shows ownership of a condominium at 10 Bellair Street, Suite 509, which he says is a 400 square foot bachelor apartment valued at $330,000, subject to a lien of $126,000 and a mortgage of approximately $278,000. He also shows bank accounts and savings of about $70,000. He and three other directors of Fairport Capital, the Father says, are subject to a claim by CRA of $797,000. His NFP is therefore, shown as "NIL".
21 I am not prepared at this stage in the parties' litigation to attribute any income to the Father other than that which he has agreed to have imputed to him. There is no evidence to show that any of the companies listed on the internet is currently active or has any assets at all. There is much puffery in what individuals put on the internet about themselves. In the meantime, these Orders shall issue:
Order to go that the Father pay interim child support of $462 per month based on an imputed income of $50,000 per year. That support shall be retroactive to August 1, 2011 and shall be paid on the first of every month to the Mother . Until the Mother has a fixed address for purposes of mail, the payments shall be sent to her care of her counsel, Ms. Archana Medhekar, Barrister and Solicitor, 4489 Dundas Street, West, Suite 2, Toronto, Ontario, M9A 1B2.
The Father shall file his 2010 Income Tax Return with CRA, within 30 days of this Order, unless he has already filed it. A copy of it shall be sent to the Mother's counsel upon filing. A copy of any Notice of Assessment or Notice of Reassessment shall be sent to the Mother's counsel within 30 days of the receipt thereof, by the Father.
The Father shall prepare a Document Brief of corporate interests, together with copies of all documents he has relating to the current status and operation of each of the corporate entities named in this Endorsement, including but not limited to shareholdings of all shareholders, list of directors and officers, articles of incorporation, last meeting of shareholders, description of the business conducted and copies of recent financial statements. The Father shall put in affidavit form, the source of the documentation obtained and what he says is the current value of any interest he has in these companies. The Affidavit and Document Brief shall be prepared within 60 days of this Order and served and filed no later than December 5, 2011.
Order of Madam Justice D. Wilson of July 26, 2011
22 In paragraph 2 of her Order of July 26, 2011, Madam Justice D. Wilson said that the Father was not to deplete his assets. The Father has asked the Court to remove this restriction against him, since he will have to realize on his assets to make his child support payments. He has sworn to the accuracy of his most recent Financial Statement. It is clear that the Mother's step in calling the police has led to the Father being unable to work for Crown Taxi any longer due to regulations governing the taxi business. The Charges against the Father are allegations only and nothing has yet been proven in Court.
23 The Mother wants the Order to remain in place to ensure that the interim child support payments are met. No evidence was provided by the Mother as to her current immigration status. She is in Canada on a visitor's visa and will have to return to Cuba with the son at some point in time. It is important, however, at this stage that the interim child support payments are made. I therefore vary the terms of the July 26, 2011 Order by deleting paragraph 2. Order to go accordingly, so that the Father will be able to realize on some assets to pay the interim child support.
Costs
24 The Father was substantially successful on his Motion. The Father consented to paying the interim child support, consented to paying all the special expenses of the son which the Mother was asking for in her Motion. She was not successful on other parts of her Motion. In the circumstances of this case, there shall be no Costs of either Motion.
S.E. GREER J.
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