Daley-Wooder v. Wooder, 2011 ONCJ 642

Brampton Registry No. 1699/04 DATE: 09·V·2011 CITATION: Daley-Wooder v. Wooder , 2011 ONCJ 642 ONTARIO COURT OF JUSTICE BETWEEN: JOANNE HEATHER DALY-WOODER Applicant — AND — WILLIAM ANDREW KEVIN WOODER Respondent Before Justice Patrick W. Dunn Heard on 3 May 2011 Ruling on Motion released on 9 May 2011 Joanne Heather Daly-Wooder .............................................................................. on her own behalf William Andrew Kevin Wooder ............................................................................ on his own behalf [ 1 ] JUSTICE P.W.

DUNN:— Before the court is the applicant’s motion dated 28 March 2011 in Volume 3, Tab 10 of the Continuing Record. [ 2 ] In regard to this motion, I read:

(1) The applicant’s affidavit, sworn 28 March 2011, in Volume 3, Tab 11;

(2) The respondent’s affidavit, sworn 11 April 2011, in Volume 3, Tab 12;

(3) The applicant’s affidavit, sworn 19 April 2011, in Volume 3, Tab 13. [ 3 ] The parties have a separation agreement dated 12 October 2004 that gave joint custody in decision making to both parties for the children, Mahailia Wooder, eleven, and Noah Wooder, seven. The children had a primary residence with the applicant, and had access with the respondent on alternate weekends and on holidays. The agreement required the respondent to pay child support, and contribute to special expenses. [ 4 ] The applicant’s motion requested temporary orders for sole custody and financial disclosure by the respondent.

The applicant also agreed to access to the respondent on alternate weekends. [ 5 ] It was the respondent’s position that the applicant had not shown that there is a material change in circumstances, and that therefore, the applicant’s motion before the court today as well as her Motion to change, dated 6 December 2010 in Volume 3, Tab 1, should be dismissed. [ 6 ] The respondent requested that all arrangements in the parties’ separation agreement should continue. [ 7 ] The first issue to consider is whether there has been a material change in circumstances since the separation agreement was signed in October 2004.

[ 8 ] It was the applicant’s position that there has been a material change in circumstances for the following reasons: 1. In the six years since the execution of the agreement, the children are six years older, and their needs and circumstances have altered over those intervening years. 2. The level of conflict between the parties had seriously escalated over the six years. 3. The respondent did not exercise the access on a regular basis, which access was specified in the agreement. 4. The respondent’s behaviour towards Mahailia has adversely affected the girl’s emotional health and school performance. 5.

The respondent would not cooperate in consenting for professional help to be given to Mahailia. 6. The respondent has not regularly paid the child support and the special expenses required in the separation agreement. 7. The applicant alleged that Noah has a learning disability and the respondent was insensitive to the boy’s special needs. 8. The respondent continuously disrespected the applicant and was verbally abusive to her, which made decision making on a joint custody basis, virtually impossible. 9.

The applicant alleged that the respondent left the children in care of his girlfriend, which violated the separation agreement that specified that the parties were not to delegate parental responsibility to others. 10. Mahailia had been complaining to her teacher and school counsellor about problems she was having with the respondent on access. [ 9 ] I agree with the applicant that there has been a material change in circumstances since the time of the separation agreement.

The condition and circumstances of Mahailia, and probably also of Noah, have changed over the six years, as well as the respondent’s ability to meet the children’s needs. The changes in the respondent’s ability to do decision making with the applicant and to provide for the children’s emotional and psychological needs have materially and adversely affected the children. [ 10 ] Now the issue is; what custody and access and financial disclosure orders would be best for the children? [ 11 ] Before embarking on that enquiry, I considered the contents of the applicant’s two affidavits and the respondent’s affidavit.

I found the applicant’s affidavits to be detailed and very explanatory of issues. In the applicant’s second affidavit, she dealt quite comprehensively with the concerns raised by the respondent. [ 12 ] In the respondent’s affidavit, he denied all the claims made against him by the applicant. The respondent’s affidavit did not give the court any confidence that he was being factual or truthful. [ 13 ] The present joint custody arrangement is deleterious to Mahailia’s mental health, because the respondent would not consent to treatment.

Hence, only a sole custody order in favour of the applicant can guarantee that the girl will get the help she and her brother need. [ 14 ] The respondent’s belligerent, argumentative and disrespectful attitude to the applicant makes cooperation in decision making an impossibility. There should be an order for sole custody to the applicant. ORDERS:

1. Temporary order for the applicant to have sole custody, to include all decision making, of Mahailia Sarah Wooder (“Mahailia”), born 23 July 1999 and Andrew Joseph Noah Wooder (“Noah”), born 30 June 2003. 2. Order for Dr. Marino Battigelli, Clinical Director of the Child and Family Services at the Credit Valley Hospital, to provide private and confidential care for Mahailia Wooder. Notes and reports of such care are confidential and cannot be released to private parties outside the Credit Valley Hospital without an order of this court. If Dr.

Battigelli believes a referral should be made to a professional outside the Credit Valley Hospital, he may share his notes and reports with that professional. [ 15 ] The court has a concern about the respondent’s access to the children, and the length of time they would spend with him. It appears that Mahailia needs counselling in order to deal with the issues the child has with the respondent.

In order to protect the children, until their needs are better understood and treatment is commenced, the following order will issue; also the applicant fears that the respondent is leaving supervision of the children to the respondent’s unnamed girlfriend. 3. (

a) Temporary order for the respondent to have day access to Mahailia Wood and Noah Wooder on alternate Saturdays from 9:00 a.m. to 7:00 p.m. starting Saturday 14 May 2011. 3.(

b) The respondent may have such other access as the parties may agree upon. 4. Order for the respondent to serve the applicant and file in court by 24 June 2011, the following:

(1) Copies of the respondent’s Income Tax Returns and Notices of Assessment and Reassessment for the years 2008, 2009 and 2010.

(2) Proof of the respondent’s income earned to date in 2011.

(3) Copies of all the respondent’s bank statements for 2010 and 2011 for himself personally and Simply Ballistic Incorporated and 1265419 Ontario Inc.

(4) Copies of the respondent’s credit card statements for 2010 and 2011.

(5) Copies of any lease or rental agreements for the respondent personally or for the above named companies that the respondent signed on or after 1 January 2010.

(6) Copies of any applications for a real estate mortgage(

s) that the respondent signed on or after 1 January 2010. [ 16 ] Adjourned to10:00 a.m. on 29 September 2011 in courtroom 210. Allow 45 minutes for settlement conference/trial management conference. Settlement conference/trial management conference briefs are not required. [ 17 ] No motion may be brought without specific leave of the court. [ 18 ] The applicant’s motion dated 28 March 2011 in Volume3, Tab 10 is now complete. [ 19 ] There is outstanding the temporary restraining order against the respondent, dated 21 December 2010. On the return

date, the court will consider whether the restraining order is still necessary. 5. Order for the applicant to serve the respondent and file in court by 1 September 2010, an affidavit in which she will explain whether she believes a restraining order against the respondent is still necessary, and if so, to explain why. 6. The respondent is ordered to serve the applicant and file in court by 16 September 2011, an affidavit explaining his position regarding the restraining order. 7.

The applicant is ordered to serve the respondent and file in court by 26 September 2011, a reply affidavit to deal with the respondent’s position regarding the restraining order as expressed in his affidavit. [ 20 ] If the applicant does not comply with paragraph 5, above, on the return date the court will consider vacating the restraining order. [ 21 ] The applicant may request costs to be paid by the respondent because of the success on her motion. Such a request, with reasons, must be served on the respondent and filed in court.

If there is such a request, the respondent should respond in writing and serve that Response on the applicant and file in court. Released: 9 May 2011 __________________________ Justice P.W. Dunn