ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-06-056901-00
DATE: 2012-02-24

B E T W E E N:

X.Y.M.

Applicant

• and -

J.Z.

Respondent

HEARD: January 3, 4, 5, 6, 9, 10, 11, 12 and 13, 2012

REASONS FOR JUDGMENT

Thomas A. Bielby

[ 1 ] The applicant husband and the respondent wife were married to each other in China on February 19, 1998.

[ 2 ] They separated from each other on or about April 11, 2005.

[ 3 ] There is one child of the marriage, A.M., born […], 2005 who currently resides with the respondent.

[ 4 ] Both parties represented themselves throughout the trial. Further, interpreters were required for much of the evidence.

[ 5 ] The parties were unable to formally settle any of the issues notwithstanding various attempts to do so. At a final settlement conference held on January 3, 2012, just prior to the commencement of the trial, Justice Ricchetti set out the issues to be addressed and his endorsement provided the parties with a roadmap as to how to organize their evidence.

DIVORCE

[ 6 ] When the applicant originally commenced these proceedings the only relief he sought was a divorce. Both parties agree that they were married in Nanjing, China and with the dates of marriage and separation. There were no reconciliations and there is no possibility of same. I accept these facts.

[ 7 ] The untranslated marriage certificate was made Exhibit 52.

[ 8 ] A divorce judgment shall issue, dissolving the marriage.

CUSTODY

[ 9 ] Shortly after A. was born, in 2003, he was taken to China to live with his maternal grandparents. The parties were struggling economically and the respondent had a very difficult pregnancy and further health issues subsequent to A.’s birth. The child remained in China until the spring of 2007.

[ 10 ] The child returned to Canada accompanied by his maternal grandmother. He resided with the respondent who, by this point, had been separated from the applicant for approximately two years.

[ 11 ] The respondent’s health problems were ongoing and it was decided she would return to China in the fall of 2007 to live with her parents and seek medical treatment. The respondent’s mother, X.P.S., is a medical doctor. The major health issue for the respondent as this point was depression.

[ 12 ] The respondent testified that she wanted to take A. back to China with her but that the applicant refused to consent to the child leaving Canada. It was decided that A. would then live with his father who, by that point, was living with his girlfriend in a home they had purchased.

[ 13 ] As a result of this new relationship, the applicant has now two other dependent children.

[ 14 ] A. lived with the applicant until the spring of 2010. In 2008, the respondent had returned to Canada to re-establish herself and to reconnect with A..

[ 15 ] It should be noted that A. has been diagnosed as having Asperger’s Disorder and as a result has special needs.

[ 16 ] Exhibit 44 is the document book prepared by the applicant created in an effort to produce a trial record. At tab G of this exhibit is a letter from the York Region Children’s Aid Society. From this letter and the testimony of the respondent, it is clear that because of difficulties at home the applicant placed A. in the care of a third party, without any notice to the respondent.

[ 17 ] The difficulties in issue would appear to be the behaviour of A. as a result of his disability. In any event, the CAS became involved and in the spring of 2010 placed A. with the respondent under the supervision of the CAS.

[ 18 ] Exhibit 39 is a letter from the Peel Children’s Aid Society which state the respondent has made great effort in meeting A.’s unique needs and that she has fully cooperated with the CAS.

[ 19 ] At tab F of Exhibit 44 is the Report of the Children’s Lawyer, dated March 24, 2010. The report suggests that the applicant did not demonstrate a willingness to support a relationship between A. and his mother. Further, it suggests that A. was considered a burden in the new home the applicant had made with his girlfriend Ms. Y.M..

[ 20 ] By order dated April 11, 2011, the respondent was given interim custody of A.. The order, granted by Justice Ricchetti, also granted specific access to the applicant including alternate weekends. No access has been exercised and from the evidence before me, none has been sought.

[ 21 ] The applicant testified that he would call the respondent and they would argue but it is clear he did nothing to enforce his access and did not make it an issue.

[ 22 ] The order also required the applicant to pay support in the amount of $900.00 per month, an amount which included section 7 expenses. The applicant, by his own admission, has only paid $200.00 since the order was made.

[ 23 ] The applicant does not contest A. living with his mother. He asks the Court, however, to grant him certain “control” with respect to A.. He asks that his consent be required before A. can change schools. A. is currently enrolled in the public school system. It was clear during his testimony that he is afraid that the respondent will enrol A. in a Montessori school which will require the payment of tuition.

[ 24 ] It is my opinion that the applicant’s request is only driven by financial reasons. He expresses no other reason for requesting this relief. He has not shown any real interest in A.’s development. From the date of separation forward, the applicant has not offered nor paid any support to the respondent even when A. has been in her care, apart from $200.00.

[ 25 ] The applicant has shown no wish to have any ongoing relationship with A.. It seems that he has started a new family at the complete expense of his old family.

[ 26 ] The applicant also asks that his consent be required if the child is to travel away from his home for 10 days or more. He has a concern the child may be taken back to China.

[ 27 ] The respondent has in the past sought the applicant’s consent for A. to travel and the applicant has withheld this consent or made the process very difficult. One example is when the respondent wished to travel to China with A. when her grandmother died. The applicant initially withheld his consent and only granted it when the respondent brought the appropriate motion.

[ 28 ] If the applicant wishes to exercise the privileges of parenthood, he should also show a willingness to share the responsibilities. He has shown no inclination to do so.

[ 29 ] Accordingly, the respondent shall be granted sole custody of A.. With respect to travel outside the country and obtaining a passport for A., the need for the applicant’s consent is dispensed with.

[ 30 ] The respondent shall provide the applicant with particulars of any travel plans which include A. and will be for more than 10 days or out of the country. Apart from emergencies, the particulars shall be provided five days in advance of the commencement of the travel period.

[ 31 ] If the respondent plans to change A.’s place of residence to somewhere outside of Ontario, she shall provide the applicant with 60 days notice, in writing, prior to the move.

ACCESS

[ 32 ] The respondent does not contest access. The applicant suggests access when it is convenient to everyone including A.. I doubt any real access will be sought but I will order reasonable access on reasonable notice. If any access is requested, the respondent can then consider the circumstances and the best interests of A..

CHILD SUPPORT, BENEFITS, LIFE INSURANCE

[ 33 ] The applicant has a health and benefit package as a result of his employment. On consent, he shall maintain A. as a beneficiary of this plan or any other plan provided to him as long as A. remains eligible and as long as the applicant has such coverage.

[ 34 ] The applicant also has group life insurance which he says will pay two times his salary in the event of his death. Keeping in mind the applicant has two other children the applicant shall name the respondent the beneficiary of one third of this insurance in trust for A. and shall, within 30 days of the release of this judgment, provide to the respondent written proof that he has done so.

[ 35 ] The applicant suggested a friend of his should be the beneficiary of any part of the insurance protected for A.. The respondent submitted she should be the trustee. I see no reason why the trustee should be anyone else but the respondent. Support is payable to her to the benefit of A. and the life insurance would be used to replace the support payments if anything should happen to the applicant.

[ 36 ] There is also an RESP that is registered in the name of the applicant and which existed at the time of separation. The parties agree this asset should be preserved and the respondent wishes some control over it as she wishes to be able to make contributions to it. I will order that the applicant do whatever is necessary to place this asset in the joint names of the parties, upon the written request of the respondent, if she is unable to open a new RESP in her name.

[ 37 ] With respect to child support and its monthly payment, the applicant takes the position that the order made by Justice Ricchetti, April 11, 2011, is excessive. He asks the court to consider he is the sole supporter of his new family as his new spouse is a full time homemaker.

[ 38 ] Clearly, the applicant wants to minimize his financial responsibility to the respondent and A.. At one point in his evidence, he suggested that $100.00 per month would be a responsible level of support.

[ 39 ] Further, the applicant challenges the section 7 expenses suggesting they are unreasonable and unnessary. He suggests A. should spend more time on his school work.

[ 40 ] The interim order was based on a 2010 income for the applicant of $76,507.00. The order was for $692.00 per month pursuant to the Guidelines. In my opinion, the order was entirely appropriate. The applicants did not then, nor now make, out a claim for undue hardship as defined in the Guidelines. To that was added $208.00 per month for section 7 expenses.

[ 41 ] Exhibit 57 is the financial statement of the applicant sworn, January 9, 2012. Attached thereto was certain tax information which reflects the following information.

[ 42 ] His 2010 Notice of Tax Assessment reflects an annual income of $76,508.00.

[ 43 ] For 2009, his reported annual income was $79,285.00.

[ 44 ] For 2008, his annual income was $72, 590.00.

[ 45 ] From other evidence, it is apparent his income for 2007 was $70,549.00 and much the same in 2006, the year when the applicant acquired his current job with Rogers Cable.

[ 46 ] The applicant’s earnings for 2011 to December 24, 2011 were $77,739.85.

[ 47 ] The applicant argues his base pay is just over $55,000.00 and that support should be determined on this level of income. The respondent submits that the applicant historically works overtime and that support should be fixed at the level of income actually reflected, including overtime.

[ 48 ] No doubt the applicant is a hard worker, working long hours. However, he argues he needs to work these hours to support his family and to carry his financial obligations. He does not include in this scenario his duty to his old family and specifically to A.. He took on the added financial obligation with respect to his new spouse and children in the face of his obligation to the respondent and A..

[ 49 ] I accept that working overtime is part of the applicant’s regular work pattern and has been since he started with his current employer almost six years ago.

[ 50 ] The applicant also argues that the same amount of overtime will not be available to him in the future or may not be available to him. If his income changes in the future, the applicant can seek a variation. However, child support shall be determined on the actual income shown on the tax returns. A. is entitled as much as it is possible to the same standard of living as the applicant’s other two children.

[ 51 ] The applicant’s annual income since 2006 averages out at approximately $75,000.00 and support will be ordered on that amount going forward in the amount of $682.00 per month, commencing the 1 st day of January, 2012, pursuant to the child support guidelines as recently amended.

[ 52 ] Justice Ricchetti’s order will remain in place for the period of May 1, 2011 to December 31, 2011. The arrears which have accrued as of the date of the trial are $7,000.00

[ 53 ] Further, child support shall be ordered, under the guidelines in place at the time, for the period from May 1, 2010 to April 30, 2011 in the amount of $680.00 per month. A. was back in his mother’s care during that period. The arrears for that period are $8,160.00.

[ 54 ] While A. lived with his mother for a few months after separation and until she went to China, there will be no child support ordered for that period. This period is more than six years ago and would represent a windfall to the respondent.

SECTION 7 EXPENSES

[ 55 ] As mentioned previously A. has a disability. The respondent takes the advice of various counsellors and professionals and enrols A. in activities which will assist him. This includes sports, music lessons, and tutoring. I accept that she is acting in A.’s best interests in doing so. This is reflected in the correspondence from the CAS as well as from the school.

[ 56 ] These expenses exceed $600.00 per month. Given the level of the respondent’s income which I will discuss later, these expenses would appear to be beyond her means. Clearly, she receives financial assistance from her family. That is not to say, however, that the activities are not beneficial to A..

[ 57 ] Also, some of the activities such as the soccer registration are items which likely should be covered by the guideline amount of child support. They are not necessarily extraordinary.

[ 58 ] I think it appropriate to continue the applicant’s contribution to these expenses at the level of $200.00 per month commencing January 1, 2012. This shall be added to the base support for a total monthly obligation of $882.00 to be enforced through FRO and a support deduction order.

[ 59 ] I appreciate this amount of support is a burden to the applicant and that it will impact on his current family. However, he has to recognize that A. is unique and is entitled to his father’s financial support.

CHILD SUPPORT AS CLAIMED BY THE APPLICANT

[ 60 ] A. did live with his father from October 2007 until May 2010. The respondent, at the date of separation, was operating from her home a spa facility offering facials and massages. What income she earned from this is a point of contention. After the separation, she did have health issues. On her return from China, she enrolled in school and in December 2010 became licensed as a Registered Massage Therapist. I so think, however, just as she holds her husband responsible to pay child support, that she too had some financial obligation to A..

[ 61 ] The applicant provided to the court a series of cheques for the period March 2003 to December 2004, payable from various sources to the respondent. These cheques total over $25,000.00 and were made Exhibit 5. The applicant testified that these cheques represent a portion of what the respondent was paid over that period for spa services and product. He testified that a large amount of these services and products were paid in cash. He suggested she had an annual income of over $50,000.00.

[ 62 ] The respondent disputes that she had this level of earnings. She spoke of her post pregnancy issues, including depression, yet the aforementioned cheques represent payment to her for services provided after the birth of A..

[ 63 ] I do accept that, after separation, the respondent’s ongoing health was such that it would have adversely impacted her ability to earn a living. She decided to return to China for a time and also decided to return to school. I will impute to the respondent an income of $20,000.00 per year which would result in a monthly obligation of $172.00, under the guidelines in place at the time, for the period from October 1, 2007 to and including April 1, 2010, a period 31 months. The total support owing under this paragraph is $5,332.00.

SPOUSAL SUPPORT

[ 64 ] I accept that, on the date of separation in 2005, the parties were co- dependent, relying on each other for support. The respondent had significant health issues after A.’s birth and after the separation. It would seem until 2006 the applicant’s employment was uncertain.

[ 65 ] Regardless, when the applicant left the matrimonial home the only money to which the respondent had access was their joint bank account. The respondent used funds from a joint account to pay the rent for a few months immediately after separation. The applicant challenged her for doing so since he was no longer living in the matrimonial home. This is further proof that the applicant was of the opinion that he had no financial obligation to the respondent and A..

[ 66 ] Shortly after separation, the respondent moved into a home, the large down payment for which was provided to her by a gentleman with whom she had a brief relationship. She was expected to carry the expenses of this new residence.

[ 67 ] The respondent seeks spousal support from the date of separation until at least December 2010 when she obtained her license as a registered massage therapist. Preferably, she would like support until March 2015 when A. turns 12. She testified that given A.’s disability she cannot work fulltime and meet all his needs including getting him to his various activities. While there may be some merit to this argument, the respondent seemed to focus more so on the period ending December 2010 and I will only consider spousal support to this date. Further, since December 2010, the respondent’s fortunes have improved and in her financial statement sworn November 18, 2011, filed as Exhibit 49, she discloses an annual income, without child support of $39,000.00.

[ 68 ] After May 2010, when the child is living with the respondent, the guidelines suggest a range of spousal support from a low of $122.00 per month to a high of $751.00 per month. The mid-range is $456.00 per month.

[ 69 ] What the guidelines do not account for is the applicant’s post separation assumption of financial obligations to his current, stay at home, spouse and his other two children.

[ 70 ] While I recognize the applicant took on these new obligations in the face of the obligations to the respondent and A., they have to be taken into account.

[ 71 ] The respondent’s claim for spousal support for the period when A. was living with his father is to be set off against her obligation to pay child support. Further, we must take into account monies used by the respondent for rent for the few months immediately after the separation. The rent on the matrimonial home was $1,380.00 per month and the respondent paid it from the monies in a joint chequing account. One half of the monies paid for rent shall be considered tax neutral spousal support. All of the monies from the account, less the $5,000.00 withdrawn by the respondent shall be attributed to the applicant in the net family property value calculations.

[ 72 ] From May 1, 2010 to December 31, 2010, the applicant shall pay spousal support of $450.00 per month for a total of $3,600.00.

EQUALIZATION OF NET FAMILY PROPERTIES

[ 73 ] This is a difficult issue for self represented parties to understand and address. Often their opinions as to the value of certain assets are of no assistance as they are not based on anything more than an unfounded approximation or on a “gut feeling.”

[ 74 ] In order to arrive at an equalization figure, I first must determine the net family property value for each of the parties. That is, I must establish each of their worths as of the date of separation, being the value of the assets or share of assets attributed to each of them, less the debts that can be attributed to each of them.

[ 75 ] Once such a value is determined for each of them, the party with the higher net family property value must pay half of the difference between the two respective net family property values to the other. The purpose of all of this is to allow both the applicant and respondent to have the same property or asset worth on the date of separation.

[ 76 ] There were no values given in regards to the contents of the household or the motor vehicle. Further, in issue is an interest in a property in China held by the respondent for which no value has been attributed, let alone the nature of the interest. It is the obligation of the party having the interest in a property to establish its worth.

[ 77 ] I also need to address at the outset of the equalization analysis, the monies allegedly owed by the parties to the respondent’s parents. The respondent’s mother testified in this trial as to these debts which are denied by the applicant. Both the respondent and her mother want me to ensure that these debts are paid from the remaining monies held jointly by the applicant and the respondent, directly to the mother; that somehow I am to protect the interests of the mother who is not a party to these matrimonial proceedings.

[ 78 ] In fact, the most important issue to the respondent is to ensure her mother is repaid. In her submissions, she said that if the debt was not repaid she would “lose face” with her parents.

[ 79 ] In a family law action, the parties thereto are the husband and wife. It is not my function nor do I have jurisdiction to award monies to a third party creditor. I can, however, determine whether or not the parties to this action have a debt to the respondent’s mother.

[ 80 ] There were two major debts in issue. The respondent’s mother seeks compensation for the time A. was in her care from shortly after his birth in 2003 until 2007 when the child was returned to Canada. The sum sought is large and includes the cost of a nanny, clothing and food.

[ 81 ] The respondent in her testimony admitted to me that had the parties stayed together, repayment of this “debt” would never have been sought. Certainly, there was no evidence before me as to any understanding between the parties and the respondent’s parents in 2003, in regards to the expenses to be incurred on behalf of A..

[ 82 ] This debt obligation has only surfaced as a result of the separation and there is no substance to it.

[ 83 ] The second debt relates to monies allegedly loaned by the respondent’s parents and others to the parties to make a down payment on a home of their own.

[ 84 ] This claim has merit. There is evidence of monies advanced and placed in joint accounts held by the parties. The principal of this debt is $25,300.00 in U.S. funds and $3,000.00 in Canadian funds.

[ 85 ] The respondent filed during his testimony, Exhibit 33, which is an ING statement, reflecting that $20,000.00 U.S. was deposited on January 2, 2004. Another statement, this one form the CIBC, reflects a $20,000.00 deposit on November 19, 2003. This statement was filed as Exhibit 34. These exhibits create a paper trial as to a portion of the claimed funds.

[ 86 ] The applicant tried to say that these monies represented the cash in the house from the respondent’s spa business being deposited in the bank but then said he was just assuming that and could not recall.

[ 87 ] Despite the applicant’s argument that no such monies were advanced, I find that, in fact, such a loan was made to the parties. In that regard, I accept the evidence of the respondent and her mother over that of the applicant. She testified that when she became pregnant she was having a difficult time and asked her mother to come to Canada to look after her. The respondent’s mother confirmed that at the same time her daughter asked her for a loan to make a down payment on a house and that she would help her parents immigrate to Canada.

[ 88 ] The mother related how the money was raised and how the money was brought into Canada.

[ 89 ] In March 2005, the applicant travelled to China and the respondent’s mother asked him why no house had been purchased. She testified that she was told the money was invested in mutual funds and stocks.

[ 90 ] The debt will be reflected in my calculations of the parties’ net family property values, one half of the debt being attributed to each of the parties.

[ 91 ] I will not and cannot, in my opinion, order any monies to be paid to the respondent’s mother. She an pursue her own remedy in that regard.

[ 92 ] I will not attribute any values regarding the household contents. I have no acceptable evidence on which to do so.

[ 93 ] I will attribute some value to the motor vehicle, a 1997 Taurus, which remained in the possession of the respondent. It was acquired for a value of $4,000.00 and I will attribute a value to it of $2,000.00 as of the date of separation.

[ 94 ] With respect to all the other assets, they are made up of investments and monies in the bank. The respondent testified that the applicant did all the banking and took care of all the financial dealings. In the applicant’s financial statement, sworn January 4 2012, made Exhibit 1, was an itemized schedule regarding these financial assets. During the trial, the applicant submitted supporting documentation to validate his entries. He provided bank statements and investment statements for periods relevant to the date of separation.

[ 95 ] These assets are itemized on the attached net family property statement.

[ 96 ] The respondent, for the most, part agreed with the amounts or could not prove otherwise. She often said that she did not have much documentation because the applicant had it all. However, I note she could have made her own inquiries as to the joint assets.

[ 97 ] The applicant also claims an accounting of four rings inherited from his grandmother. The respondent denies to some extent the existence of four rings but in any event testified that no such jewellery is in her possession. Further, no value was attributed to these items other than “priceless”. I will not take them into account for equalization purposes. Their existence and value have not been established.

[ 98 ] As referenced earlier, the respondent would appear to have a property interest in China. The existence of this asset was raised by the applicant. It was not disclosed on any financial statement filed by the respondent.

[ 99 ] As I understand it, the respondent gained an interest in the property after marriage but prior to the parties coming to Canada. She was entitled to “possession” of a condominium unit of sort in Nanjing, China as a result of her employment with a bank. It would appear her ownership of the asset crystallizes after 20 years from the anniversary date of the start of the employment.

[ 100 ] The respondent did not admit such an interest and testified the property was uninhabitable. However, monies were paid in regards to the property. These payments were confirmed in the testimony of the respondent’s mother. One such payment was described as a penalty which was paid by the respondent’s mother to protect whatever interest there is in the property.

[ 101 ] The respondent admits paying 14,000 RMB to obtain the rights to this property initially, but testified that she needed to work for the owner, in this case the bank, for 20 years to get title. (RMB was described as the name for Chinese currency.) She admitted the property is registered in her name and that her mother had made a penalty payment. The respondent’s mother testified that in September 2003, after the parties came to Canada, she paid a penalty of 35,117 RMB to protect her daughter’s interest in the property.

[ 102 ] On my own initiative, I researched on line the appropriate currency converter that suggests in April 2005, when the parties separated, these amounts would convert to $7,266.00.

[ 103 ] The respondent ultimately acknowledged the unit had some value and said that she will get some compensation when the building unit is demolished, testifying that the properties in the area were being demolished to make way for new development.

[ 104 ] It was the mother’s evidence that the 20 year period will be completed in September 2012 and that the interest in the property can be sold. It is also clear that, on a sale or transfer of interest, the original owner, being the respondent’s employer in China, would receive some share of any sale proceeds.

[ 105 ] I find that the respondent has some property interest. Why else would monies be paid to protect the interest? The problem is placing a value on it as of the date of separation, especially if the bank will get a portion of the sale price as suggested during the testimony of X.P., the respondent’s mother.

[ 106 ] The respondent’s mother testified that in 2005 or 2006 the property suffered water damage and that it was too expensive to fix. Accordingly, the property may be uninhabitable.

[ 107 ] For equalization purposes, I will attribute a value of $7,000.00 to this property interest. The asset is that of the respondent and if the water damage was prior to the date of separation it was her obligation to satisfy the Court of a reduction in price. She has failed to do this and, in fact, never disclosed the asset on any of her financial statements.

[ 108 ] The applicant testified that there has been the equivalent of approximately $60,000.00 paid in two instalments to acquire or maintain an interest in this property. This claim had not been substantiated.

[ 109 ] The respondent’s mother is claiming a debt owed to her for the monies she paid on the penalty. This will show as a debt on the respondent’s side of the net family property calculations. It seems fair. Further, even if it were a gift to the respondent, it would be excluded from the equalization calculations and could be traced to this property. It seems to me the debt is a large part of the value on the property and I will convert it to $5,000.00.

[ 110 ] I am satisfied that no rents have been collected on the property. Even if there had been, the property is not joint and the applicant would have no entitlement to any rents. If there were rent collected, it would be considered income and would be relevant to the issue of support.

[ 111 ] With respect to the funds held in U. S. accounts at the date of separation, the conversion rate was 1.2252.

[ 112 ] With respect to the RRSPs, I attributed a tax rate of 19% and reduced their values accordingly.

[ 113 ] It was the evidence of the applicant that there was $10,000.00 cash in the house when he left. He said that it was monies received by the respondent from her business. The respondent denies this but indicates some small amounts of money were kept in the house for day to day expenses. She testified that she gave all her earnings to the applicant for banking purposes.

[ 114 ] On the strength of this evidence or rather the lack of strength, I will not attribute any amount to the respondent as cash kept in the house. I am simply not satisfied as to what amount may have been there.

[ 115 ] The applicant submits I should attribute $2,900.00 to the respondent for monies that should have been reimbursed to her in regards to their application to Immigration Canada to allow her parents to immigrate to this country. As a result of the separation, the applicant withdrew his sponsorship and the application either failed or was withdrawn. The applicant argues the fee ought to have been reimbursed.

[ 116 ] The respondent denies any knowledge of this and denies receiving any refund. I accept her evidence and will not attribute any monies in this regard. No inquiry was mad to Immigration Canada to substantiate this claim and it fails for lack of evidence.

[ 117 ] Currently, the parties currently have two joint accounts at the CIBC for which withdrawals require both of their signatures. They set this up to freeze these assets until this court action is resolved. In one account is $37,236.72 together with any accrued interest and in another $29,488.18 in U.S. funds together with accrued interest. These accounts were opened subsequent to the date of separation and the monies therein are from investments held at the date of separation.

[ 118 ] The applicant claims in his financial statement that the respondent put through her RBC account number 03372-5106380 the sum of $110,000.00. This was money given to the respondent by her “friend” to allow her to make a down payment on the purchase of a home after separation. The friend wanted the money to be run through the respondent’s account, as a matter of discretion.

[ 119 ] I accept this was not an amount of money she had at the date of separation. Further, I accept this money was repaid to the friend through advances from friends and from the proceeds from the sale of this property.

[ 120 ] In the schedule prepared by the applicant and in regards to TD account 1309-6287969, the $5,000.00 came from an account existing on the date of separation, being the TD joint chequing account which will be accounted for in establishing the net family values. The respondent admittedly withdrew $5,000.00 after separation and two rent cheques of $1,380.00 were drawn from the account to pay the rent on the matrimonial home after separation. I will not attribute the whole account to the respondent. I will attribute to her $5,000.00 and the balance to the applicant who had an obligation to pay support. The monies drawn against this account for rent on the matrimonial home after separation, as referenced earlier, will be treated as support coming from the applicant’s share of the asset.

[ 121 ] With regards to the CIBC joint account, I accept the applicant’s evidence that $2,702.00 of those funds went to pay the respondent’s supplemental Visa card debt relating to business expenses as confirmed by Exhibit 12.

[ 122 ] The applicant claims that I should attribute a value to the respondent’s business, both its equipment and what I would term as the goodwill or the loyal customer base. The value he suggests is $40,000.00; however, that is only his personal opinion.

[ 123 ] The respondent argues that, as a result of her health issues before and after her pregnancy, she lost all her customers. She says she had to start all over as a registered massage therapist.

[ 124 ] The spa she had at the time of the separation was operating out of her home, out of the master bedroom to be precise.

[ 125 ] I am not persuaded the business had any real value at the date of separation, nor has any such value been proven and will not take it into consideration for equalization purposes. Any value lies in the personal attributes of the respondent.

[ 126 ] I have determined that the applicant’s net family property value is $46,189.36 and the value for the respondent is $32,531.05.

[ 127 ] Therefore, the applicant owes an equalization payment to the respondent of $6,829.30, being one half of the difference between the net family property values. This number is premised on the parties sharing their debt to the respondent’s parents in regards to the monies advanced for a house down payment.

[ 128 ] I have attached to this judgment a net family property statement completed by me to support this determination.

[ 129 ] At the date of this judgment, the Canadian and U. S. dollars are close to parity so for my purposes I will treat the different currencies as equal when dealing with the funds held at the CIBC, a large portion of which are in U.S. dollars.

[ 130 ] The total remaining investments, therefore, amount to $66,724.90 and each, subject to adjustment, is entitled to one half of this amount or $33,362.45.

[ 131 ] I order that, from this total amount, the respondent shall receive $58,951.75 and the applicant shall receive $7,773.15. These amounts take into account all the support owing as to December 31, 2011 together with the equalization of net family properties. Set out in Schedule 1 attached is the calculations by which I determined these amounts.

[ 132 ] Any interest accrued on the existing two joint CIBC accounts shall be divided proportionately, with the respondent receiving 88% and the applicant 12%.

SUMMARY

[ 133 ] To summarize, I order:

1. A divorce judgment is to issue.

2. The respondent, J.Z., shall have sole custody of the child A.M., born [], 2003.

3. The applicant shall have reasonable access on reasonable notice to the child.

4. With respect to the application for a passport for the child, and with respect to the child travelling out of the country, the consent of the applicant is hereby dispensed with.

5. The respondent shall provide the applicant with five days notice of any trip she plans to take with the child, for 10 days or more, or outside of the country. The notice shall provide the purpose of the trip and the destination(s).

6. If the respondent plans to change the child’s residence from the Province of Ontario, she shall provide the applicant with 60 days notice in writing of her intentions, identifying the new place of residence.

7. The applicant is to maintain the child as a beneficiary of any health/medical group insurance provided to him through any place of employment, and shall maintain the coverage as long as it is available and as long as the child remains a dependent.

8. The applicant shall designate the respondent as a beneficiary, in trust for the child, with respect to one third of the face value of any group life insurance provided to him as a benefit through employment. He shall maintain the designation as long as he is required to pay support for the child. The applicant shall within 30 days provide to the respondent proof of his compliance with this requirement.

9. Commencing on June 1, 2012 and on the first of June of each subsequent year, the parties shall exchange income tax returns together with notice of assessment as issued by the Canada Revenue Agency. This obligation shall continue as long as child support is payable.

10. Commencing January 1, 2012, the applicant shall pay child support to the respondent for the child in the amount of $682.00 in accordance with the child support guidelines, based on an average annual income of $75,000.00.

11. Commencing January 1, 2012, the applicant shall pay to the respondent for the child’s section 7 expenses, the sum of $200.00 per month, for a total child support obligation of $882.00 per month.

12. For the period of May 1, 2011 to December 31, 2011 the order of Justice Ricchetti, dated April 11, 2011, shall remain in effect and the arrears as of the date of the trial amounted to $7,000.00

13. For the period from May 1, 2010 to April 30, 2011, the applicant shall pay to the respondent child support of $680.00 per month for a total amount owing of $8,160.00.

14. The applicant shall take all necessary and reasonable steps, on the written request of the respondent, to place the RESP established for the child in the joint names of the applicant and the respondent.

15. Any spousal support claim on behalf of the respondent for the period prior to May 1, 2010 is set off against the respondent’s claim for child support for the same period.

16. Commencing May 1, 2010 and on the first of each month thereafter, to and including December 1, 2010, the applicant shall pay to the respondent spousal support of $450.00 per month, for a total of $3,600.00.

17. The applicant shall pay to the respondent $6,829.30 in satisfaction of the claim for equalization.

18. From the principal funds held in the two joint CIBC accounts, numbers 03022-6891934 and 03022-9461132, the applicant shall receive $7,773.15 together with 12% of the accrued interest and the respondent shall receive $58,591.75 together with 88% of the accrued interest. Upon the respondent receiving this amount of monies, all support, both child and spousal, owing to December 31, 2011 shall be deemed to be paid as will the equalization of net family properties.

___________________________

Justice Thomas A. Bielby

Released: February 24, 2012

COURT FILE NO.: FS-06-056901-00
DATE: 2012-02-24

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: X.Y.M. Applicant - and – J.Z. Respondent REASONS FOR JUDGMENT Bielby J.

Released: February 24, 2012