Wilson v. Tierney, 2014 ONCJ 152

File No: 140/13 Citation: Wilson v. Tierney , 2014 ONCJ 152 ENDORSEMENT Applicant: Jocelyne Amanda Wilson Respondent: Joshua Travis Tierney Date: March 19, 2014 Counsel: M.L. Riddell for the Respondent (Moving Party) Applicant (Responding Party), Personally __________________________________________________________________________ The Applicant (mother) and Respondent (father) cohabited (according to the separation agreement) between March of 1999 and July 8, 2010 when they separated. They had three children who are now 12, 8 and 7 years of age. On August 27, 2010, they executed a Separation Agreement.

This was a pre-printed form of agreement taken from a divorce website. It was signed by both parties in front of the local M.P. for Elgin County. The agreement provided that the parents would have joint custody of the children and primary residence was to be with the mother. The father’s right to have the children in his care and control were specified. They agreed no table support for the children would be paid by the father to the mother. No reasons for this provision were identified in the agreement but the father now alleges it was a trade-off for his assumption of “family debt”.

They agreed the mother would keep two vehicles valued at $8,000.00 and the father would keep one valued at $3,000.00. Additionally, the father retained the matrimonial home and refinanced it in order to remove the mother’s name from title and the mortgage. Of interest is how these parents defined their “family debt”. Nothing was particularized in the agreement but the pre-printed and hand written provisions did provide that each undertook to indemnify and save harmless the other from all debts, loans or credit cards in his/her individual name.

The parties shaped their lives around the terms of this agreement until August 6, 2013 when the mother applied for sole custody, child support (tables and s. 7) and asked the court to disregard the child support provisions in the separation agreement. In his answer, the father claimed, among other things, sole custody, table support and s. 7 support.

In her application, the mother based her sole custody claim on allegations the father refused to communicate with her about the children or participate with her in meeting their physical and emotional needs with the result that she was making all the major decisions for the children. She also claimed he minimized her concerns about the children’s physical and emotional well-being. The father countered alleging the mother was the one who refused to communicate, that she interfered with his time with the children and that she overstated or manufactured physical or emotional aliments of the children.

He claims she is manipulative and by her manipulation, his relationship with the children is weakened. The mother did not specify why, after almost four years, she is now seeking child support. In her pleadings, her entire claim is focused on custody with the result that it appears she will argue the deal respecting child support was not in the interests of the children and it should be set aside for that reason alone. The father counters’ alleging that child support was not provided for because he assumed family debt – particularly one debt on which $17,500 was owed at the separation.

He provided no particulars of this debt in his answer and the particulars provided since pleadings were closed does not tell us how he believes the debt falls outside the terms of the separation agreement, what it was originally for and the monthly payment at the time the agreement was executed and since. The mother was represented when the application was issued but she has since filed a notice of change stating she will represent herself. At the case conference, I directed counsel for the father to bring a motion respecting the Rule 20 questioning he wanted to undertake.

The motion before me today seeks Rule 20 directions as well as a motion to amend the title of proceedings to change the mother’s surname, appointment of a lawyer for the children and a request to allow the father to amend his answer to include a “hardship” claim under s. 10(1) of the Guidelines. As to the title of proceedings, the mother’s surname is Wilson and she brought her application using that surname. She married Daniel Asselin on November 3, 2012 and has used his surname at times but claims she did not formally change her surname on her marriage.

She claims all of her personal documents still identify her surname as Wilson. I agree with counsel for the father that to assure any orders eventually made against her can be enforced, the title of proceedings should

reflect any name she may use from time to time. I therefore order that the title of proceedings is amended to reflect the Applicant’s nameas “Jocelyne Amanda Wilson, also known as Jocelyne Amanda Asselin, also known as Jocelyne Amanda Wilson-Asselin”. The father asks for appointment of child’s counsel. As this request was argued, he appears to want a recommendation for an O.C.L.Social Worker assist. With respect to his submissions, I am of the view an appointment should not be made. The father’s reasons for the appointment are set out at page 4 of his factum at Tab 10 of the Record.

His first five and seventh reasonswould have been considered by him at the time the separation agreement was executed and he has given me no reason to question at thistime the wisdom of the decision he made in 2010. His sixth reason has nothing to do with his custody claim. In addition to these reasons, the father added some new ones during submissions. The children were involved in a motor vehicle accidentin March of 2013. Each suffered some level of injury and each has been emotionally affected to some degree by virtue of theirinvolvement.

The father wants the O.C.L. to “look into” expenses the mother might claim flow from treatment and whether the childrencontinue to suffer some level of distress from their injuries or involvement. These are issues that are being addressed in a civil suit andthe children have physicians who can attest to after-the-fact impact. There is no need to involve the O.C.L. given the availability of suchevidence. The father wants the O.C.L. to “look into” the children’s school attendance, progress and problems.

Again, there is ample evidence fromteachers and school reports and we do not need to waste the O.C.L.’s limited budget merely reciting evidence that is readily available toboth parents. Lastly is the issue of views and preferences. The father alleges the 12 year old has expressed a wish to live with him. The other two havenot. He wants the O.C.L. to interview all of the children and determine if their views and preferences are being freely expressed withoutany pressure or prompting.

The father gave very little background to the comments by the 12 year old except that they were made and soit is not clear to me that his statements merit a formal investigation. The mother argues that due to their involvement in the M.V.A., the children have been subjected to repeated questioning and probing andit would be unfair to them to be subjected to more. This submission carries some weight with me.

But in the end, the father has not satisfied me he has a prima facie case to set aside the custody provisions in the separation agreement orto support a “material” change in circumstances justifying a change to the status quo that has existed for close to four years. I would echothis comment in regard to the mother’s materials. In the result, I find there is no set of facts or evidence beyond the reach of the parents that requires professional intervention and there isno “clinical issue” to be investigated that is beyond the capacity of the court to assess. I would dismiss this aspect of the motion.

As to Rule 20 questioning, the father wants the right to question the mother respecting all incidents of custody defined in s. 24(2) of theC.L.R.A.; to secure the addresses of witnesses; to generally investigate “the mother’s dealings with finances”; the validity andenforceability of the August, 2010 separation agreement; the “real income” and earning capacity of the mother and “all sources offinancial assistance”; to investigate her financial means and needs that might otherwise be covered by her husband and the extent of hiscontributions; whether the father has paid the debt since the agreement was executed, whether his payments have satisfied his childsupport obligation; the nature and circumstances of the debt; the mother’s specific s. 7 claims and alternate sources to cover thoseexpenses; and to specifically identify which of the M.V.A. expenses are claimed as s. 7 expenses.

The right to question is not absolute: it should be granted only where document disclosure or discovery through written questions wouldnot achieve the desired result and the inability to question would be unfair: Boisvert v. Boisvert, (ON SC), 40 R.F.L. (6th) 137. At this stage of the proceeding, the right to question should be limited to discovery since there is no outstanding motion forinterim relief. Cross-examination would be inappropriate. As to general questioning respecting best interests, each party has a view how the joint custody arrangement has not worked.

Theseallegations are clearly articulated in the pleadings. As is the case in most custody/access claims, it comes down to a he said/she saidissue. In my mind, to allow the sort of questioning requested can result in “a trial within a trial” (see: Moneco Limited v. CommonwealthInsurance Co., 2001 SCC 49 , [2001] 2 S.C.R. 699) with the result that the discovery process so grows beyond proportion thatfacts that demand investigation on a fairness basis create an unjustness in regard to time and cost. Subject to my comments below, I am reluctant to allow such an unrestricted process.

Further, considering the pleadings and submissions,it is not clear what level of unfairness might arise if the father had to continue his case without this general questioning. The father suggests that he has an unrestricted right under Rule 20(18) to question the mother to secure addresses of witnesses. He isentitled to names of witnesses as of right but addresses require the approval of the court. The father has given me nothing upon which toexercise the discretion described in the Rule.

As to generally investigating “the mother’s dealings with finances”, the father has not satisfied me how questioning her about thewisdom of some of her expenditures will advance his claim under s. 7 of the Guidelines. As described, this issue appears moreargumentative than issue related. He is entitled to know her expenses but beyond this, the line of questioning is for argument orsubmissions. The father wants to question the mother’s “real income” and earning capacity and “all sources of financial assistance”. Again, assubmitted, I got the sense this heading was more a matter of argument than discovery.

All of this information is accessible as of rightunder the Rules and questioning is unnecessary to get it. The father wants to investigate the mother’s financial means and needs that might otherwise be covered by her new husband and theextent of his contributions. To my knowledge, the ability of a new partner to pay for a s. 7 expense does not reduce the obligation of abiological parent to share in a meeting a child’s needs. This submission appeared to be focused on the new husband’s employment

coverage that might also cover an expense related to a child’s involvement in the motor vehicle accident. This information is easily discoverable through the insurance litigation process. The father wants to question the validity and enforceability of the August, 2010 separation agreement, whether the father has paid the debt since the agreement was executed and whether his payments have satisfied his child support obligation; the nature and circumstances of the debt. Validity and enforceability are legal questions and are not the appropriate subject-matter of questioning.

However, he is entitled to know specifics under which the mother may claim that the separation agreement is unenforceable but this information does not demand formal questioning to secure it. Whether the father has paid the debt since the agreement and the nature and circumstances of the debt is knowledge specific to the father and the mother would only be speculating. Whether the debt payments have satisfied his support obligations is again a legal argument.

The father wants to question the mother’s specific s. 7 claims and alternate sources to cover those expenses; and to specifically identify which of the M.V.A. expenses are claimed as s. 7 expenses. Presently, it appears the mother’s s. 7 claim merely seeks a finding pro- rating her and the father’s incomes and an order fixing the percentage responsibility of each in the event a s. 7 expense arises in the future. All of this information, including a confirmation of the mother’s position is easily discoverable by means other than questioning.

In the end, I am of the view the father’s right to question should be limited. The mother is unrepresented and I cannot be assured she will adequately answer written questions in areas requiring pure discovery and the father is entitled to some level of direct information from her. Beyond the facts and information I will now describe, the balance of the father’s discovery should be addressed under Rule 19(1) and written questions. I order that the mother shall submit to questioning for the purposes of discovery only.

This discovery shall be limited to 60 minutes and the father is entitled to seek particulars respecting the mother’s custody claim and the names of any witnesses she will call to support her version of facts. The father is also entitled to discover the mother’s evidence respecting the negotiations leading to the separation agreement and her knowledge and information respecting the “personal debt” alleged by the father and any other reasons she might allege to support the decision to exclude child support from the agreement. The last issue raised is an amendment of the father’s answer to include a hardship claim.

This issue is adjourned for a specific motion. The father did not mention any facts he intended to set out in his amended pleading with the result that I am not able to determine whether any facts exist upon which a reasonable cause of action might be based. A hardship claim is an exception to the table provisions and how the father is prima facie entitled to the benefits of the exception must be specifically identified. Without this information, I am also not able to assess prejudice. _________________________________ Justice M.P. O’Dea