Court File and Parties
Court File No.: FS-15-0259 Date: 2016-06-30
Ontario Superior Court of Justice
Between: Felicia Agnes Sagutch, Applicant
Counsel: Afton Brown, for the Applicant
And: Joseph Lawrence Jerry Sagutch, Respondent
Counsel: The Respondent not appearing
Heard: June 28, 2016, at Thunder Bay, Ontario
Before: Regional Senior Justice D. C. Shaw
Reasons For Judgment On Uncontested Trial
1The within application was personally served on the respondent, Joseph Lawrence Jerry Sagutch on November 24, 2015.
2Pursuant to rule 10(1) of the Family Law Rules, the respondent had 30 days after being served with the application to serve and file an answer. No answer was filed. Pursuant to rule 10(5) the clerk set today as the date for an uncontested trial and the case was dealt with in the respondent’s absence.
3At the uncontested trial, evidence was received from the applicant, Felicia Agnes Sagutch, by affidavit under rule 23(22) and by way of her viva voce testimony.
4The parties were married on February 25, 1989. They separated in March 2006 after Ms. Sagutch suffered domestic violence at the hands of Mr. Sagutch.
5The parties have four children. Three of those children were no longer children of the marriage as of the date that the application was filed. The fourth child, Logan Teagan James Sagutch, was born September 18, 2000. At the time the application was filed, he was a child of the marriage within the meaning of the Divorce Act and he remains a child of the marriage. The children resided in the care of Ms. Sagutch after separation. Logan continues to reside in the care of Ms. Sagutch in Thunder Bay. He attends high school in the City.
6During the marriage, Mr. Sagutch was the main income earner in the family. He held a variety of jobs including working as a heavy equipment co-ordinator and a housing authority manager for Fort Hope First Nation. He was also an officer for Nishnawbe-Aski Police Services.
7Ms. Sagutch testified that Mr. Sagutch usually worked in managerial or leadership roles. Based on her own knowledge of pay rates in First Nations communities, Ms. Sagutch testified that coordinators and managers in First Nations communities earn approximately $1,800 to $2,000 every two weeks ($46,800 to $52,000 per year) on a non-taxable basis.
8Ms. Sagutch believes that Mr. Sagutch is presently employed by Long Dog First Nation (Wawakapewin First Nation) on a full-time basis as an office manager, earning approximately $50,000 per year, non-taxable. On February 10, 2016, by mail to Mr. Sagutch, care of Shibogama First Nation Council, Ms. Sagutch sent a Request to Admit requesting, among other facts, that Mr. Sagutch admit that he is employed by Long Dog First Nation as an office manager at an income of $50,000, non-taxable. No Response to Request to Admit was received from Mr. Sagutch.
9By letter dated March 22, 2016, Mr. Sagutch wrote to the Court, with a copy to Ms. Sagutch’s lawyer, in which he referred to his “… co-workers at our Sioux Lookout Office.”
10Ms. Sagutch submits that the court impute income to Mr. Sagutch of $50,000 on a non-taxable basis. This amount appears reasonably supported by the evidence Mr. Sagutch acknowledges in his letter of March 22, 2016 that he is working “at our Sioux Lookout Office.” He has a history of employment in managerial positions. Ms. Sagutch, who has been employed as a band councillor, has personal knowledge of pay scales for positions in First Nations communities. Mr. Sagutch has failed to provide any income information notwithstanding his obligation to do so. He therefore assumed the risk that the court would have to use limited information to determine his income for purposes of support. Income of $50,000, non-taxable, grossed up to $63,321, taxable, will be imputed to Mr. Sagutch. An income of $50,000, non-taxable, results in child support for one child of $577 per month under the Child Support Guidelines.
11After separation, between 2006 and 2015, Mr. Sagutch maintained little contact with Ms. Sagutch and the children and provided minimal financial support apart from infrequently sending groceries from time to time. When Ms. Sagutch and the children moved to Thunder Bay in August, 2015, Mr. Sagutch started paying $400 per month in child support. He paid $200 in May 2016 and $200 in June 2016, for a total of $4,000 since August 2015.
12On the evidence before me, Mr. Sagutch failed in his obligation to pay proper child support for his four children. This was blameworthy conduct. Retroactive child support would be appropriate. However, because three of the four children were no longer children of the marriage as of the date of the application, I consider that the court is without jurisdiction to order retroactive support for those three children. See S. (D.B.) v. G. (S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231, at paras. 88-89. Blameworthy conduct cannot confer jurisdiction on the court. Retroactive support can, however, be ordered for the youngest child, Logan, who has not lost his status as a child of the marriage within the meaning of S. 2(1) of the Divorce Act. I consider it proper to go back three years from the date that the application was filed, to October 2012. October 2012 through to June 2016 constitutes 45 months. At $577 per month, retroactive support for 45 months would total $25,965. Mr Sagutch should receive credit for the $4,000 that he paid between August 2015 and June 2016. That results in a net amount for retroactive child support for Logan of $21,965. Ms. Sagutch proposes that because Mr. Sagutch will be paying ongoing child support, she is willing to accept payment of the retroactive support amount at the rate of $150.00 per month. That is a reasonable proposal which I am prepared to accept.
13Ms. Sagutch’s income since separation has been as follows:
- 2007 – 2011 – band councillor - $21,600 per year;
- October 2011 – January 2013 – Tikinaagen Child & Family Services - $42,000 per year;
- February 2013 – May 2013 – employment insurance benefits;
- 2013 – July 2015 – band councillor - $21,600 per year;
- August 2015 – September 2015 – chambermaid - $864 for four weeks.
- October 2015 – February 2016 – Dilico – foster parent - $9,700 for five months.
14In May 2016, Ms. Sagutch secured a one year contract with Nishnawbe-Aski Nation as a Health Support Officer at an annual income of $37,219.
15Ms. Sagutch’s formal education went only to Grade 7, plus a program at Confederation College. She has no formal training. She is 54 years of age. She has diabetes. She is unable to use her dominant hand on a regular basis because of extreme pain as result of an ailment described as “trigger thumb”. Surgery is being considered.
16I am satisfied that Ms. Sagutch is entitled to spousal support. She contributed to the career potential of Mr. Sagutch by looking after the matrimonial home and caring for the children. She testified that she did not bring her application earlier because she was afraid of Mr. Sagutch and concerned that he might also harm himself. The parties’ cohabited for 17 years. Ms. Sagutch’s ability to support herself after her present contract position ends is uncertain. This uncertainty arises out of the respective roles that the parties assumed during the marriage. Spousal support in this case would meet the objectives of s. 15.2(6) of the Divorce Act. Because Ms. Sagutch currently has temporary employment which pays her $37,219 annually, and because Mr. Sagutch will be under an order to pay child support of $577 per month, the Spousal Support Advisory Guidelines show a nil amount for spousal support. However, Ms. Sagutch’s employment is scheduled to end in several months. She may well need spousal support at that time. I will therefore order spousal support at the present time in the nominal amount of $1.00 per month, which may be revisited on a motion to change.
17The following order shall issue:
- A divorce is granted which shall become effective 31 days after June 28, 2016.
- The applicant, Felicia Agnes Sagutch shall have custody of the child, Logan Teagan James Sagutch, born September 8, 2000.
- Commencing July 1, 2016, the respondent, Joseph Lawrence Jerry Sagutch, shall pay to the applicant support for the child, Logan Teagan James Sagutch, in the sum of $577 per month based on income imputed to the respondent of $50,000, non-taxable, grossed up to $63,321, taxable, and the Child Support Guidelines.
- The respondent shall pay child support for the child, Logan Teagan James Sagutch, for the period of August 1, 2012 to June 1, 2016, in the lump sum of $21,965, based on income imputed to the respondent of $50,000, non-taxable, grossed up to $63,321, taxable, and the Child Support Guidelines, calculated at $577 per month for 45 months, of $25,965, less credit of $4,000 for monies paid by the respondent for child support between August 1, 2015 and June 1, 2016. The said sum of $21,965 shall be payable at the rate of $150.00 per month, commencing July 1, 2016 until paid in full.
- The respondent shall pay to the applicant spousal support of $1.00 per month, commencing July 1, 2016, subject to change in the event of a material change in circumstances.
- The respondent shall disclose to the applicant by January 1 of each year, commencing January 1, 2017, his income from all sources by producing cheque stubs from those income sources showing year to-date income to the end of the calendar year.
- Costs of this case shall be paid by the respondent to the applicant in an amount to be fixed by the court after receipt of written submissions and a Bill of Costs from the applicant, to be filed within 45 days.
The Hon. Mr. Justice D. C. Shaw
