Court File and Parties
COURT FILE NO.: FS-19-11490-00 DATE: 2023/01/13 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Jennifer Crystal Piluke, Applicant – and – David Douglas Piluke, Respondent
Counsel: Eryk Rybicki, for the Applicant
HEARD: In Writing
Reasons for Judgment
M. Kraft, J.
[1] The Applicant, Jennifer Crystal Piluke (“Jennifer”), and Respondent, David Douglas Piluke (“David”), who are 38 and 39 years of age respectively, were married on January 31, 2015 and separated on February 2, 2019. There are two children of the marriage, namely, W., born October 9, 2013 (age 9); and E., born January 12, 2016 (age 6).
[2] Jennifer issued the within application on July 2, 2019, in which she sought, among other things, a divorce; equalization of net family property, an order for joint decision-making responsibility of the two children; an order that the children reside primarily with her; child support, both table and s.7 expenses; and spousal support.
[3] On September 22, 2019, Eryk Maciej Rybicki, Jennifer’s lawyer, personally served David with Jennifer’s Application, her form 35.1, Affidavit in support of parenting, and her sworn financial statement, dated July 2, 2019, by special service at his address in Etobicoke. David did not file an Answer, nor did he respond to Jennifer’s Application.
[4] Accordingly, Jennifer proceeded with her claims by way of an uncontested trial in writing.
[5] On March 2, 2020, Eryk Maciej Rybicki, Jennifer’s lawyer, served David by mail with Jennifer’s motion to proceed with the uncontested trial; an affidavit updating her financial statement, sworn on January 31, 2020; her uncontested trial affidavit, dated January 31, 2020; and her affidavit filed in support of the divorce, Form 36, sworn on January 30, 2020. David did not respond.
[6] When Jennifer’s uncontested trial came before me in November 2020, I adjourned the matter. On November 5, 2020, I issued an Endorsement stating that the court did not have sufficient information to impute David with an annual income of $100,000 as she sought for child support purposes. I asked for a further affidavit which attached an income tax return; notice of assessment; or paystub from David before a child support order could be made. I also asked Jennifer to serve David with a copy of my Endorsement to enable him to have an opportunity to respond and/or file a sworn financial statement and/or consent to the relief being sought.
[7] On May 28, 2021, Jennifer filed a supplementary affidavit in support of the relief she seeks on this uncontested trial in response to my Endorsement, dated November 5, 2020. Jennifer’s supplementary affidavit sets out the following events which transpired after the release of my November 5, 2020 Endorsement:
a. On February 2, 2021, Eryk Rybicki, counsel for Jennifer, spoke with David on the telephone on David’s cell phone and David advised that he had not received a copy of my Endorsement because he no longer lived at either of the two addresses known to Jennifer, one in Etobicoke, ON and the other in Bayfield, ON. b. Between February 2, 2021 and March 24, 2021, a number of text messages between Mr. Rybicki and David were exchanged, copies of which were attached to Jennifer’s supplementary affidavit, sworn on May 28, 2021, at Exhibit “A”. The text messages confirm that: i. David was provided with a PDF copy of my Endorsement, dated November 5, 2020 on February 2, 2021; ii. David advised that he accept service of the Endorsement at his work email address at _____; iii. David sent picture images of his 2020 T4 issued by his employer, Century Sheet Metal Limited, indicating an annual income of $19,611.55, with his address redacted; iv. David sent picture images of his 2020 Income Tax Return Summary, indicating total income of $46,685.87, with his address redacted; and v. David sent picture images of his 2019 Tax Return Summary, indicated total income of $74,239.11, with his address redacted. c. On February 10, 2021, David texted Mr. Rybicki advising that “[he] will be having a lawyer contact [him] stop texting me”. Jennifer advises that Mr. Rybicki never heard from counsel on David’s behalf. d. Copies of text messages between her and David at Exhibit “D” show that in response to Jennifer asking for David for financial assistance with the parties’ two children: i. On January 12, 2020, David wrote “So I just talked to a family judge and you [sic.] can not speak to me anymore and you will not be getting [sic.] anymore money from me I also will not be picking up the boys anymore because I fear for my well-being so my lawyer will talking to yours don’t talk to me anymore: ii. On January 24, 2020, David wrote, “have to pay the lawyer thanks”.
[8] Jennifer deposes that she never heard from a lawyer on behalf of David.
[9] David has not responded to any of the material filed by Jennifer, despite being given multiple opportunities to do so.
[10] Accordingly, Jennifer proceeded with her claims by way of an uncontested trial. Jennifer’s uncontested trial has been heard by me in writing. These reasons set out my findings and disposition of the matters at issue.
Relief Sought
[11] The specific relief sought by Jennifer’s supplementary affidavit for Uncontested Trial, sworn on May 28, 2021, is as follows:
a. an order for divorce;
Parenting:
b. an order that she have final decision-making authority with respect to all major decisions pertaining to the parties’ two children; c. an order that the two children reside primarily with her, and their habitual residence be Ontario; d. an order that the children’s habitual residence not be changed without the consent of the parties or court order; e. an order that David have reasonable parenting time with the children on reasonable notice to Jennifer and at her sole discretion; f. an order that both parties communicate with each other if there is an exposure within their households to Covid-19 and that they shall obey all government safety protocols; g. an order allowing Jennifer to travel with the children without restriction; h. an order that David shall not be permitted to remove the children from Ontario without first providing her with 48-hours’ notice and obtaining her written consent; i. an order that Jennifer hold the children’s identification documents, including, their passports, health-cards and birth certificates and that she be permitted to apply for and renew such documents without first obtaining David’s consent; j. an order that a copy of the children’s health cards be provided to David upon his request.
Child Support
k. an order that David pay Jennifer child support for the parties’ two children on the basis of his 2019 income of $74,239.11, in the sum of $1,128 a month commencing February 2, 2019; l. an order that David pay Jennifer the retroactive child support arrears, totaling $23,234 from the date of separation to May 28, 2021, at the rate of $387.25 a month for 60 months; m. an order that she and David share the children’s s.7 expenses on the basis that David pay 75% and she pay 25% for all uninsurable and non-reimbursable expenses for W.’s monoplegia of his lower right extremity and for E.’s hearing and speech therapy and for all other s.8 expenses
Spousal Support
n. an order that David pay Jennifer spousal support in the sum of $705 a month, which is the mid-range of the Spousal Support Advisory Guidelines, using David’s 2019 income of $74,239.11 commencing February 2, 2019; o. an order that David pay Jennifer retroactive spousal support arrears totaling $19,740, at the rate of $329 a month for 60 months;
Property
q. an order that a pension administrator be directed to equalize David’s pension between him and her
Costs
r. an order that David pay Jennifer’s costs on a full-indemnity basis, in the sum of $14,673.13, inclusive of HST.
[12] The manner in which the husband has participated in this litigation is a relevant consideration to be taken into account in considering the relief that is being sought by the wife, for reasons described below.
Background Information
[13] Jennifer is a stay-at-home parent who has solely looked after both children without assistance from David. Jennifer deposes that she is currently in receipt of social assistance and that she is unable to be employed full-time given both children’s special needs.
[14] During the parties’ four-year marriage, David worked in the metal fabrication industry at TamKal Ltd., where he was a supervisor. It appears from the text messages filed by Jennifer that TamKal Ltd. either shut down or fired David in March 2020, when the Covid-19 health crisis began.
[15] The limited disclosure that David provided to Jennifer’s counsel appears to indicate that his employer is Century Sheet Metal Limited in Toronto.
[16] Prior to the separation, David was the sole income earner in the family. Jennifer did not work outside of the home.
Issue One: Parenting of the Children
[17] Jennifer seeks an order that the children reside with her primarily and that she have sole decision-making responsibility in connection with all matters concerning the children. Additionally, she seeks an order that David have reasonable parenting time with the children upon reasonable notice to her, at her sole discretion.
[18] Since the separation, Jennifer deposes that David has been largely absent from both children’s lives. Prior to separation, Jennifer was the primary caretaker to the children while David worked in the metal fabrication industry.
[19] Since the separation, Jennifer submits that she has encouraged David to have consistent and regular parenting time with the children and she has supported the children having a meaningful relationship with their father. However, David has not shown any intention to have regular parenting time with the children and not taken the opportunities provided to him to spend time with the boys.
[20] Jennifer is concerned that David does not have stable housing, which he confirmed in his text messages to her counsel. She believes that David stays with friends and family and, as such, she is not certain whether David has accommodations in which he is able to have parenting time with the children on an overnight basis.
[21] Since being served with Jennifer’s Application, David has had the following parenting time with the children:
a. one overnight visit with the children on Christmas Day to Boxing Day in 2019; b. one 45-minute visit on January 12, 2020, when he took the children to McDonald’s for dinner to celebrate E.’s birthday; and c. two overnight visits with the children on February 13, 2020 to February 15, 2020.
[22] Jennifer further submits that David has only exercised parenting time with the children at her insistence. She deposes that David has often not followed through with parenting time opportunities provided to him, which results in the children feeling disappointed and distraught. As such, she believes it is in the children’s best interests to have parenting time with David upon reasonable notice to her, at her sole discretion.
Parenting Analysis
[23] The only consideration in making a parenting order for the Court is the best interests of the children: s.16 (a) of the Divorce Act. The primary consideration for the Court is the children’s physical, emotional and psychological safety, security and well-being: s.16(2).
[24] Section 16(3) of the Divorce Act sets out the factors the Court shall consider in determining the best interests of the children, including:
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; (d) the history of care of the child; (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child’s care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
[25] The facts of this case demonstrate that a) Jennifer is the parent who has and can continue to provide stability and predictability for the children, given their ages and stage of development, as well as their need for stability; b) Jennifer demonstrated a strong willingness to support the development and maintenance of the children’s relationship with David, despite his own reluctance or his failure to do so; c) the history of care of the children has been that Jennifer is their primary parent and that she has made all decisions for them; d) David’s ability and wiliness to care for the children and meet the needs of the children is in question; and e) David, who has engaged in sending Jennifer abusive text messages, has demonstrated an inability and unwillingness to care for and meet the needs of the children as well as a refusal or inability to cooperate or communicate with Jennifer.
[26] In applying the law to the facts of this case, I find that it is in the children’s best interests that they be in the primary care of Jennifer; that David’s parenting time with the children be upon reasonable notice to Jennifer, at the sole discretion; that Jennifer have sole decision-making responsibility with respect to all matters concerning the children; that Jennifer be the parent to hold all of the children’s government-issued documentation such as their passports, health cards and birth certificates; that Jennifer be permitted to apply for and renew the children’s government-issued documentation without the need of David’s signature; that the habitual residence of the children remain in Ontario and that neither party be permitted to change their habitual residence without the consent of the other or court order; and that Jennifer be permitted to travel with the children without the need for David’s consent, upon giving David notice of her intended travel and providing him with an itinerary as to where the children will be travelling and an emergency telephone number where they can be reached.
Issue Two: Child Support
[27] David did make some voluntary child support payments to Jennifer after the separation. Jennifer deposes that a total of $8,400 was paid by David to her as voluntary child support from February 11, 2019 to and including May 21, 2021, particularized as follows:
a. For the period February 11, 2019 to and including December 14, 2019, David paid the total sum of $3,800 as voluntary child support to her, in 19 payments of $200; b. For the period October 8, 2020 to and including December 15, 2020, David paid the total sum of $1,550 as voluntary child support to her, in 1 payment of $450; 2 payments of $400; and 1 payment of $300 to be applied toward W.’s medical expenses; and c. For the period of February 8, 2021 to and including May 21, 2021, David paid the total sum of $3,050 as voluntary child support to her, in 6 payments of $200; 1 payment of $250; and 4 payments of $400.
[28] The court has no evidence as to what, if any, child support David has paid to Jennifer since her supplementary affidavit was sworn on May 28, 2021.
[29] David was employed throughout the marriage in the metal fabrication industry.
[30] Attached to Jennifer’s supplementary affidavit is a copy of David’s 2020 income tax summary; a T4 for 2020 from Century Sheet Metal Limited and a copy of David’s 2019 income tax return. Jennifer has no other evidence of David’s income. The limited disclosure provided by David demonstrates that,
a. In 2019, David’s total income was $74,239.11; and b. In 2020, David’s total income was $46,685.87.
[31] Jennifer has no income information for David in 2021 or 2022, because David refuses to participate in these proceedings. As a result, she asks this court to use David’s 2019 income of $74,239, for child support purposes, citing 2020 as an anomalous year because of Covid.
[32] The last known income for David as set out in his 2020 income tax summary is that he earned $46,685,87. On this level of income, the Federal Child Support Guidelines, SOR/97-175 (“CSG”) provide that David would have been obliged to pay table child support in the sum of $703 month for the parties’ two children.
[33] In 2019, the year of separation, David earned an income of $74,239. On this level of income, the CSG provide that he would be obliged to pay table child support in the sum of $1,128 a month for the parties’ two children.
[34] Jennifer seeks retroactive child support to the date of separation, February 1, 2019 to the present date. Specifically, Jennifer seeks an order that David pay child support arrears in the sum of $23,234, calculated as 20.5 months x $1,128. Jennifer seeks an order that David pay these arrears at the rate of $387.25 over a 60-month period.
[35] In terms of s.7 expenses, Jennifer seeks an order that David pay 75% and she pay 25% of the children’s prospective s.7 expenses, which include insured medical expenses for both W. and E. She does not appear to be seeking retroactive s.7 expenses from David.
[36] The text messages attached to Jennifer’s affidavit between she and David demonstrate that she has consistently asked David for financial assistance with children since the date of separation.
Child Support Analysis
[37] Pursuant to s.15.1 of the Divorce Act, the Court may make an order requiring a spouse to pay child support for any or all of the children of the marriage. Any such order shall be made in accordance with the applicable guidelines; s.15.1(3).
[38] Pursuant to s.16 of the CSG, a spouse’s annual income is determined using the sources of income set out under the heading, “Total Income”, in the T1 General form issues by the Canada Revenue Agency and is adjusted in accordance with Schedule III: s.16.
[39] Given that the court has David’s income information for 2019 and 2020, I make the following findings:
a. For the period February 1, 2019 to and including December 31, 2019, David ought to have paid child support in the sum of $1,128 a month based on his 2019 income of $74,239, pursuant to the CSG. This amounts to arrears of child support totaling $12,408. b. For the period January 1, 2020 to and including December 31, 2020, David ought to have paid child support in the sum of $703 a month, based on his 2020 income of $46,685.87, pursuant to the CSG. This amounts to arrears of child support totaling $8,436.
[40] For 2021 and 2022, the court does not have David’s income information. Jennifer asks the court to impute David with his 2019 income of $74,239, on the basis that this was a year that reflects the quantum of David typically earned during their marriage.
[41] Pursuant to s.17(1) of the CSG, if the court is of the opinion that the determination of a spouse’s annual income under s.16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.
[42] Further, pursuant to s.19 of the CSG, the court may impute income to David as it considers appropriate in the circumstances. S.19(1) provides as follows:
19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; (b) the spouse is exempt from paying federal or provincial income tax; (c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada; (d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines; (e) the spouse’s property is not reasonably utilized to generate income; (f) the spouse has failed to provide income information when under a legal obligation to do so; (g) the spouse unreasonably deducts expenses from income; (h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and (i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
[43] Although I do not have income information for David over a three-year period, given that David has failed to provide income information to Jennifer when he is clearly under a legal obligation to do so, pursuant to ss. 17 and s.19(1)(f), I am persuaded that using David’s 2020 income of $46,685.87 would not be the fairest determination of his income for 2021 or 2022. In the absence of any other evidence, I find that David ought to be imputed with an annual income of $74,239, using his 2019 income pattern, for child support purposes.
[44] Accordingly, for 2021, 2022 and to date, David would be obliged to pay table child support in the sum of $1,128 pursuant to the CSG. However, David needs to be given credit for the voluntary child support he paid, when calculating child support arrears.
The Issue of Retroactivity
[45] The issue of retroactive child support was canvassed at length in the Supreme Court of Canada decision of D.B.S. v. S.R.G., 2006 SCC 37, [2006] S.C.J. No. 37 (“D.B.S.”). D.B.S. compels any court considering a retroactive award to examine delay, blameworthy conduct, the circumstances of the child, and whether any hardship will be experienced by such an order.
[46] The jurisdiction to retroactively vary an existing child support order is expressly granted by section 17 of the Divorce Act. While such express language is absent from section 15.1 of the Divorce Act, D.B.S. makes it clear that judges can retroactively order child support to be paid for the period prior to the order.
[47] Under the CSG, an increase in one parent’s income means that the child is entitled to a greater amount of support in absolute terms. The implication of this is that a failure by the payor parent to disclose an increase in income means that the child loses. Under the previous model, such a failure represented a loss to the recipient parent.
[48] In D.B.S., Bastarache J. reaffirms the principle that child support is the right of the child. This principle has been stated in a number of cases: Richardson v. Richardson (1985), 1985 CarswellOnt 225 (Ont. C.A.), para. 4; Willick v. Willick (1994), 1994 CarswellSask 48 (S.C.C.), para. 99; Stotts v. Stotts (1996), 1996 CarswellOnt 1317 (Ont. S.C.J.), paras. 20-21; Narain v. Narain (1998), 1998 CarswellOnt 5107 (Ont. Gen. Div.), para. 45; McGouran v. Connelly (2007), 2007 CarswellOnt 5291 (Ont. C.A.), para. 17.
[49] As stated in Widmeyer v. Widmeyer, given that child support is the right of the child, the obligation to pay exists constantly, and independently of any previous court order. As such, a retroactive support order is not truly ‘retroactive.’ While the order is imposed with retroactive effect, the obligation to pay is not imposed retroactively because a ‘retroactive support order’ merely enforces an obligation that arose when the payor’s income increased.
[50] There are three situations where retroactive support orders may be made:
a. where there has already been a court order for the payment of child support; b. where there has been a previous agreement between the parents regarding child support; and c. where there has not been any court order for the payment of child support.
[51] In the case at bar there has not been any court order for child support.
The Issue of Delay
[52] In this case, there was a five-month delay between when the parties separated and when Jennifer issued an application. The parties separated in February 2019 and the text messages between them clearly demonstrate that Jennifer repeatedly requested that David pay child support and contribute to the children’s special and extraordinary expenses. David made some contributions but regularly resisted making payments.
[53] After making significant efforts to negotiate with David directly for child support, Jennifer issued the application. David refused to respond or to provide any financial disclosure. As soon as she was able to do so, Jennifer took steps to proceed with this uncontested trial.
The needs of the children
[54] Jennifer deposes that the children have special needs. However, she does not identify what those special needs. Jennifer does not provide any evidence about the specific special needs of either child. However, the text messages between her and David, attached to her supplementary affidavit filed in support of the relief she seeks, refers to W. requiring AFOs, referencing “ankle foot orthotics” and the fact that W. required Botox injections to loosen his calf muscles before casting. As well, the text messages refer to E. requiring speech therapy.
[55] In the draft order Jennifer provided the court, the order refers to s.7 expenses she seeks for the children for insured expenses for W.’s “monoplegia of the lower right extremity” and E.’s hearing and speech therapy. That is the extent of the evidence about the special needs of the children provided to the court. The court does not, however, have any details of what kind of additional care or therapies in which the children may be involved that relate to Jennifer’s inability to work outside of the home. Further, the court has no evidence about the extent of additional expenses that need to be incurred on account of the children’s special needs.
[56] It appears that Jennifer did her best to meet the needs of the children with whatever contribution David made and with her own resources. There is no evidence before the Court suggesting that the children suffered.
Issue of Hardship
[57] Hardship is another factor to be considered. Retroactive support awards are generally based on past income and are therefore not linked to what the payor can currently afford.
[58] D.B.S. instructs Courts to craft retroactive awards in a way that minimizes hardship to the payor. The Court has no income information or financial disclosure from David other than what is referred to above. There is no evidence before the court to establish that David would experience hardship should a retroactive award be issued. However, Jennifer has asked the court to make an order that he pay child support arrears over a 60-month period. I am persuaded that that structure of repayment is reasonable.
[59] My calculations of the retroactive child support David owes Jennifer, after giving him credit for his voluntary payments of child support demonstrate that he owes Jennifer child support arrears of $39,626 for the period commencing February 1, 2019 to and including January 1, 2023. These calculation are particularized in the below chart:
| Year | David’s income | Table Child support | Less Voluntary child Support paid by David |
|---|---|---|---|
| February 1, 2019 to December 31, 2019 | $74,239 a year | $1,128 a month X 11 months = $12,408 | ($3,800) |
| January 1, 2020 to December 31, 2020 | $46,685.87 a year | $708 x 12 months = $8,496 | (1,550.00) |
| January 1, 2021 to December 31, 2021 | $74, 239 a year imputed | $1,128 x 12 months = $13,536 | ($3,050) |
| January 1, 2022 to December 31, 2022 | $74,239 a year imputed | $1,128 x 12 months = $13,536 | |
| January 1, 2023 | $74,239 a year imputed | $1,128 | |
| Total Child Support Owing less voluntary child support paid | $49,104 | ($8,400) | |
| Arrears | $40,704 |
[60] Based on my calculations, David owes child support arrears to Jennifer in the remaining sum of $40,704, which takes into account the voluntary child support payments he made up to May 28, 2021. If, in fact, David made additional voluntary child support payments to Jennifer after May 28, 2021, then the child support arrears calculation would have to be adjusted.
[61] If David is to pay the child support arrears to Jennifer over a 60-month period, he would owe Jennifer $678.40 a month on account of child support arrears. This is in addition to the table child support David would owe Jennifer of $1,128 a month.
[62] In addition to monthly table child support, Jennifer seeks an order that David contribute 75% toward the children’s s.7 expenses and she be obliged to contribute 25% toward these expenses. In these circumstances, I am prepared to make this order.
Issue Three: Spousal Support
[63] Jennifer seeks spousal support based on the mid-range of the Spousal Support Advisory Guidelines (“SSAGs”) in the sum of $705 a month, using an income of $74,239 for David, his 2019 income. She seeks an order that reviews her entitlement to spousal support on the third anniversary date of any court order made.
[64] In addition to prospective spousal support, Jennifer seeks retroactive spousal support from the date of separation in the sum of $19,740 and asks that David be obliged to pay these arrears over the next 60 months in the sum of $329 a month.
[65] Pursuant to s.16.2(1) of the Divorce Act, the court can make an order requiring a spouse to secure or pay such lump sum or periodic sums as the court thinks reasonable for the support of the other spouse.
[66] In making a spousal support award, the court is required to take into consideration the condition, means, needs and other circumstances of each spouse, including the length of time the spouse’s cohabited; the functions performed by each spouse during cohabitation; and any order or agreement in place about support.
[67] In this case, the parties began cohabiting on January 1, 2014. They were married until February 2, 2019. This was therefore, a relatively short-term period of cohabitation/marriage of just over 5 years. However, two children were born.
[68] Jennifer does not set out the basis for her entitlement to child support, in the sense that she does not identify whether she has a compensatory claim to spousal support or a needs-based claim. In my view, Jennifer has established entitlement to spousal support on both a compensatory and needs-base. Jennifer has been at home with the children full-time; the children both have special needs making it difficult for Jennifer to work; she did not work outside of the home during the marriage and has continued to care primarily for the children post separation primarily, with little assistance from David. Further, the role Jennifer played during the marriage allowed David to pursue his work full-time. Jennifer continues to exist on social assistance and there is clearly hardship she has endured without David paying proper child and/or spousal support to her.
[69] The objectives of a spousal support order is to recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time: s.16.2(6) of the Divorce Act.
[70] However, as set out in 15.3(1) of the Divorce Act, the court is required to give priority to child support.
[71] Once entitlement to spousal support has been established, which it has in this case, the court can consider the SSAGs in determining the quantum and duration of spousal support. In the support calculations, Jennifer attached to her uncontested trial material, she imputed herself with $10,000 of income, imputed David with his 2019 income of $74,239, the SSAGs produce a range of spousal support of $0 on the low-end of the range; $80 a month on the mid-range of the SSAGs; and $298 a month on the high range. Without paying spousal support, as contemplate on the low-range of the SSAGs, and David paying child support of $1,128 a month, David would be left with 49% of the parties’ net disposable income and Jennifer would be left with 51% of the parties’ net disposable income.
[72] Since I have indicated that David will be ordered to pay retroactive child support over the next 60 months, Jennifer will end up with proportionately more net disposable income than David by a significant amount.
[73] In these circumstances, I find that David does not have the ability to pay both child and spousal support to Jennifer. This does not mean, however, that Jennifer does not have entitlement to spousal support. Accordingly, once David’s child support obligations diminish, then s.15.3(3) of the Divorce Act provides that Jennifer’s spousal support will resuscitate, and Jennifer will be able to seek spousal support from David.
Property Division
[74] Since Jennifer and David are married, Jennifer is entitled to seek an equalization of net family properties. Although Jennifer claims an equalization of net family properties in her Application, she makes no reference to any such claims in her affidavits filed in support of the relief sought in this uncontested trial. However, in the draft order provided, Jennifer seeks an order that the pension administrator of David’s pension be directed to equalize his pension between her and David.
[75] The court has absolutely no evidence on record that David has a pension. Accordingly, this relief cannot be ordered at this time.
[76] While s.10(4) of the Family Law Act provide the court to consider a number of different matters in deciding whether to order the immediate transfer or a lump sum out of a pension, the court first has to be satisfied that David has an interest in a pension.
[77] Further, Jennifer did not prepare a net family property statement and the court has no way to know whether she or David owes the other an equalization payment. Unless or until Jennifer has such evidence, the order she seeks in this regard cannot be made.
Costs
[78] Jennifer seeks an order that David pay her costs of this uncontested trial on a full indemnity basis in the sum of $14,6734.15. However, Jennifer did not put forward any evidence regarding her costs, such as a Bill of Costs. If she wishes to pursue this costs claim, she shall prepare written costs submissions of no more than 3 pages, not including her Bill of Costs or Offers to Settle.
Disposition
[79] Order to go as follows:
Parenting:
Decision-Making and Residence
a. Pursuant to s.16.1 of the Divorce Act, i. The applicant, Jennifer Crystal Piluke, shall have final decision-making responsibility for all major decisions that impact the parties’ two children of the marriage, namely, W. born October 9, 2013; and E., born January 12, 2016, including such decisions regarding medical, educational, extra-curricular, and religion. ii. The two children shall reside primarily with the applicant. iii. The applicant, Jennifer Crystal Piluke, shall make all day-to-day decisions pertaining to the two children of the marriage.
Parenting Time
iv. The respondent, David Douglas Piluke, shall have reasonable parenting time with the parties’ two children, at the sole discretion of the applicant, on reasonable notice to her.
Travel with Children
v. The applicant shall be permitted to travel with the children, inside and outside of Canada, without the respondent’s consent. The applicant shall notify the respondent via email fourteen days prior to any planned travel with the children and shall provide him with a detailed itinerary for all travel outside of Ontario.
Mobility
vi. If the applicant plans to relocate with the children, she shall provide the respondent with at least 60-days’ notice.
Children’s Documents
vii. The applicant shall renew or obtain any government issued documentation for the children, including passports, birth certifications, social insurance numbers, health cards, etc. without the need for the respondent’s consent. The applicant shall inform the respondent via email of any renewals ten days prior to completion. The applicant shall inform the respondent via email regarding any renewals and once completed, she shall provide proof of any renewals within 7 days. viii. The applicant shall be the holder of all of the children’s documentation, including their birth certificates, health cards, passports and social insurance cards. ix. The applicant shall provide the respondent with a copy of the children’s health cards upon his request.
Child Support
b. Pursuant to s.15(1) of the Divorce Act, i. The respondent, David Douglas Piluke, shall pay prospective child support for the parties’ two children of the marriage, namely, W., born October 9, 2013; and E., born January 12, 2016, in the sum of $1,128 a month, based on his 2019 income of $74,239.11, commencing on February 1, 2023, and on the first day of each following month; ii. Commencing on February 1, 2023 and on the first day of each following month until the child support arrears are paid, the respondent, David Douglas Piluke, shall pay retroactive child support for the parties’ two children of the marriage, namely, W., born October 9, 2013; and E., born January 12, 2016, in the sum of $40,704, for the period commencing February 1, 2021 to and including January 31, 2023, at the rate of $678.40 for 60 months. iii. The respondent, David Douglas Piluke, shall pay his proportionate share of the children’s current s.7 expenses, which amounts to 75% of such expenses, and the applicant shall pay her proportionate share of the children’s current s.7 expenses, which amounts to 25% of such expenses. iv. The respondent shall provide his proportionate share to the applicant within 14 days of receiving a receipt/confirmation of payment via e-transfer from the applicant. If the respondent does not provide his proportionate share as required by this subparagraph within 14 days, the applicant shall submit these payments through the Family Responsibility Office for enforcement. v. The applicant shall claim the Canada Child Benefit (including the Child Disability Benefit if applicable), the refundable children’ GST/HST credits, the Ontario Child Benefit, the federal non-refundable tax credit amount for children under 18, and the eligible dependent credit for the three children of the marriage, which shall not affect or impact the child support payable by the respondent.
c. Pursuant to section 25.1 of the Federal Child Support Guidelines, the parties shall exchange all personal and corporate financial statements, income tax returns, notices of assessment and any other information required and requested to determine income by May 15 of each year, commencing with May 15th, 2023.
d. Pursuant to section 6 of the Federal Child Support Guidelines, if either or both of the parties have health insurance plans, under which they have or can obtain family coverage, then they shall maintain such coverage, with the children as beneficiaries under the plan, and shall maximize all benefits available for the children.
e. Any adjustment of child support shall become effective on July 1 of each year, commencing with July 1, 2023, and shall be adjusted retroactively to January 1st of that year and forward from July 1st. In the event that the parties are unable to agree on the amount to be paid, then either party shall be permitted to apply to a court of competent jurisdiction.
f. Pursuant to s.15.3(2) of the Divorce Act, the court is unable to make a spousal support order given the priority to child support. When the respondent’s child support obligations diminish, the applicant shall be permitted to apply for spousal support.
g. Pursuant to the Divorce Act, the applicant, Jennifer Crystal Piluke and the respondent, David Douglas Piluke, who were married at the City of Toronto, Ontario, on January 31, 2015 are hereby divorced and that divorce shall take effect 31 days after the date of this order.
h. If the applicant wishes to pursue her costs claim of $14,673.15 for this uncontested trial, she shall file written costs submissions of no more than 3 pages, not including her Bill of Costs and/of Offers to Settle, within 30 days.
i. All support payments shall be payable to The Director, Family Responsibility Office and shall be sent to P.O. Box 2004, Station, Toronto, ON M5S 3E9.
j. Unless the support order and support deduction order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and that amounts owing under the Support Order shall be paid to the Director, who shall pay them to whom they are owed.
M. Kraft, J.
Released: January 13, 2023