ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: D22984/11
DATE: 2012-02-15

B E T W E E N:

Roxanne Lynn Marazzo

Steven L. Nagy, for the Applicant

Applicant

• and -

Timothy Ryan Marazzo

Self-represented

Respondent

HEARD at Welland, Ontario: February 2, 2012

The Honourable Justice C. A. Tucker

ENDORSEMENT

Background

[ 1 ] Roxanne and Timothy Marazzo were married on September 24, 1994 after living together for approximately two years. They have two children; Sarah, now 16 who resides with her father, and Alicia, now 13 who resides with her mother. The parties separated on March 30, 2010. The parties have settled the issues of custody and access.

Issues

[ 2 ] The issues are:

(1) What quantum of child support shall be paid and for what time period?

(2) What quantum of spousal support shall be paid and for what time period?

(3) What is the appropriate equalization of debts?

(4) What is the appropriate division of the Marazzo pension?

[ 3 ] In terms of the last issue, and with the consent of Mr. Marazzo, I order that Mrs. Marazzo’s entitlement under Mr. Marazzo’s pension plan with Post Foods and Kraft be valued under the Pension Benefits Act . Subsequent to valuation and upon the parties’ applications, Mrs. Marazzo’s entitlement to the share of the pension shall be divided at source. For such purpose I find that such pension is an asset to be equalized and the valuation date to be March 30, 2010, and Mrs. Marazzo is entitled to such division at source of her share. If clarification is required in order for the parties to achieve this part of the equalization or further orders are required to do so, I may be spoken to.

Quantum and Timing of Child Support

[ 4 ] Mrs. Marazzo left the matrimonial home in July of 2010 with one child, Alicia. Sarah remained with Mr. Marazzo, and this situation remains unchanged with each parent being responsible for one child. In 2010, based on the previous years’ incomes of the parties of $73,244 for Mr. Marazzo and $25,836 for Mrs. Marazzo, Mr. Marazzo would pay $668 per month for the support of Alicia, and Mrs. Marazzo would pay $220 per month for Sarah. Accordingly, for 2010 the net payment on separation for child support would be made by Mr. Marazzo to Mrs. Marazzo in the amount of $448 per month. As the physical separation did not occur until July of 2010, ordinarily the child support would begin in August. However, based on the applicant’s evidence, there was an agreement between the parties that no support would be paid by the respondent until the matrimonial house was sold which occurred in December 2010. The reason for the arrangement was that Mr. Marazzo was to pay the household bills during that time period. Although Mr. Marazzo did not pay these bills - I will deal with that issue later in my decision - I find that the appropriate commencement date for child support is January 1, 2011. The child support owing for 2011 based on his income for 2010 of $67,260 and her income of $26,260 would be $628 per month and $226 per month respectively, for a net monthly payment by Mr. Marazzo to Mrs. Marazzo of $402 commencing January 1, 2011.

[ 5 ] Mr. Marazzo suggested that his income was larger in the past than it may be in the future due to financial issues with the company and a reduction in available overtime. He also suggested that Mrs. Marazzo had turned down overtime at her employment, which she said was done to meet the shift schedule of her husband and the ability of the parties to care for the children. There may be future changes to the income of these parties, but the present child support obligations will be based upon the 2011 reported income of the parties. Income tax returns and Notices of Assessment are to be exchanged by the parties each year by June so any adjustments can be made on an ongoing basis.

[ 6 ] Accordingly, commencing January 1, 2012 based upon the new Child Support Guidelines using his income of $67,890 and her income of $26,260, his obligation would be $620 per month and hers $212 for a net payment by him of $408 per month. Mr. Marazzo has regularly paid child support from December 2010 onward and also made one payment in July 2010. Given my commencement date of child support being January 1, 2011 all payments made by Mr. Marazzo shall be credited against payments I find to be owing.

Spousal Support

[ 7 ] The applicant seeks spousal support that would equalize the net disposable incomes of the parties citing the long term marriage of 18 years, her age, which is now 43, the large discrepancy in their employment income, and the fact that both parties are raising one child of the marriage who should be entitled to an equivalent lifestyle. By her calculations, the amount required to equalize their income would require spousal support in the amount of $998 per month. Mr. Marazzo does not wish to pay spousal support, indicating financial stresses which have left him in a position he submits whereby he is unable to even contribute to the family debts. Mr. Marazzo says he has no savings and when questioned about numerous cash withdrawals (in one month totaling $7,000), he testified that he paid bills with them. He says that he does not like using banks. Mr. Marazzo’s financial position is difficult to ascertain. Notwithstanding a $70,000 income, he is unable to plan a budget or pay debt while Mrs. Marazzo with a $26,000 income is able to do so. She, of course, does not have the car loan but she has no car. Given that both parties reside in apartments and each support one child, the financial difficulties of Mr. Marazzo are hard to explain. He points out that his net income is more like $45,000, but her net income would be less than her gross income as well. I will not go so far as to equalize their incomes, but I will order $500 per month in spousal support commencing January 1, 2011. I recognize that Mrs. Marazzo left the matrimonial home in July 2010, however given that I have decided to unequally “equalize” their debt making Mr. Marazzo responsible for the time period up until the sale of the matrimonial home, I have started the spousal support payments for the time period following such sale.

Equalization

[ 8 ] The applicant points out that the utilities on the matrimonial home were paid out of the proceeds of the home and that the respondent was living there rent-free during the last six months of the year. As such, the respondent should have been responsible for that $2,036.40. As noted above, I have not made him liable for child or spousal support until 2011. I agree that he should reimburse her for those costs in the amount of $2,036.40. I accept the net family property statement filed by the applicant which shows the applicant owes the respondent $1,030.64 which I find to be the correct amount and which shall be set off against the amount owing by the respondent to her. The applicant has paid $5,570.35 on the joint debts and is entitled to be reimbursed one half of that amount or $2,785.18 less $100.00 being one half of the $200.00 the respondent has paid on the debt. The increase in the overdraft and the cash withdrawals from the joint visa should also be borne by the respondent as he is solely responsible for them in the amount of $6,272.70 and $3,799.87 respectively, and I do so order. If Mr. Marazzo declares bankruptcy leaving Mrs. Marazzo responsible for the matrimonial debt, I find that there would be a material change in circumstances allowing for a further application by Mrs. Marazzo for support.

Costs

[ 9 ] If the parties are unable to agree upon costs, I may be spoken to.

Tucker, J.

Released: February 15, 2012

COURT FILE NO.: D22984/11
DATE: 2012-02-15

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Roxanne Lynn Marazzo Applicant - and – Timothy Ryan Marazzo Respondent ENDORSEMENT Tucker, J.

Released: February 15, 2012