Court File and Parties

COURT FILE NO.: FS-07-61498
(Brampton)

DATE: 20120731

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

J.M.E.M. Applicant – and – K.L.G. Respondent

Self-Represented
Self-Represented

HEARD: April 24, 25, 26, 27, 30 and May 1, 2012.

REASONS FOR JUDGMENT

FITZPATRICK J.

Case Background

[ 1 ] J.M.E.M. (the “Applicant”) commenced an application dated November 20, 2007 (the “Application”), against K.L.G. (the “Respondent”), E.G. and a corporation, Southwest Greens Canada Incorporated seeking the following primary relief:

(a) a divorce;

(b) spousal support;

(c) joint custody of the children, namely, T.J.M. and J.L.M., both born […], 1999 with “equal and shared parenting time”; and

(d) the equalization of net family properties.

[ 2 ] The applicant did not stipulate any head(s) of relief or plead any particulars with respect to E.G. and Southwest Greens Canada Incorporated.

[ 3 ] The respondent in her Answer made the following claims:

(a) a divorce;

(b) lump sum spousal support;

(c) custody of the children;

(d) child support for the children, including contribution towards s. 7 expenses; and

(e) an unequal division of net family property in the respondent’s favour.

[ 4 ] The trial record filed by the applicant includes no fewer than ten endorsements/orders of this Court. It is clear from the quantity and contents of these endorsements/orders that the parties had little success in their post-separation relationship and, by relation, in resolving their competing claims in this litigation.

[ 5 ] There are at least four separate orders addressing the applicant’s disclosure obligations (reference Lemon J.’s endorsement, dated January 21, 2010; Price J.’s endorsement, dated September 16, 2011; Price J.’s endorsement, dated January 4, 2012; and Donohue J.’s endorsement, dated January 31, 2012).

[ 6 ] In his endorsement dated February 26, 2009, Hourigan J. struck the application as against E.G., noting that all parties conceded no relief was claimed against E.G. in the application.

[ 7 ] By his order dated February 12, 2010, Price J. granted the respondent “sole custody” of the children. The respondent was required to “confer” with the applicant on all plans and arrangements relating to access and custody of the children. However, Price J. granted the respondent “final decision-making authority” where the parties could not agree on matters relating to the access and custody of the children. The custody order of Price J. remained in effect as at the trial date for this case.

[ 8 ] By order of Price J. dated October 18, 2010, the Office of the Children’s Lawyer was requested to intervene and provide services in this proceeding. The Officer of the Children’s Lawyer agreed to assign a clinical investigator, Rory Reid. The report of Mr. Reid dated July 20, 2011, was filed with the Court and as part of the applicant’s trial record. The contents of this report will be addressed below in the section dealing with custody and access.

[ 9 ] At the commencement of this trial, both parties confirmed that the only three issues to be determined following the trial were custody/access for the children, related child support and equalization/division of property.

Custody and Access of the Children

[ 10 ] Neither the applicant nor the respondent called any evidence with respect to the Report of the Children’s Lawyer dated July 20, 2011.

[ 11 ] The applicant, during the trial and in his submissions, took the position that the respondent had interfered with and obstructed his relationship with the children so fundamentally that the applicant required a final order for sole custody or, alternatively, joint custody to ensure he had a meaningful relationship with the children going forward.

[ 12 ] Respecting custody and access issues, the applicant gave evidence and called three additional witnesses, namely, D.G., L.M. and J.S..

[ 13 ] The applicant’s primary allocation is that the respondent is alienating the children from him. In support of this allegation, the applicant gave evidence as follows:

(a) that the respondent registered the children for hockey under the surname “G.” and on a related note had the surname “G.” on the back of the hockey jersey.

(b) that the children’s Facebook account uses the surname “.G.”;

(c) that the applicant has experienced difficulties receiving report cards and notice of meetings or other significant school events for the children.

[ 14 ] The applicant, in his evidence, noted that he goes to the events for the children when he can. The applicant also gave evidence that he has cancelled access due to work, vacation or other plans he “can’t get out of”. The applicant gave no evidence of any specific denial of access by the respondent.

[ 15 ] In cross-examination by the respondent, the applicant admitted as follows:

(a) That during the latter part of the marriage, the applicant travelled extensively and was therefore absent from the matrimonial home for extended periods;

(b) With reference to emails dated November 18, 2008, May 13, 2010 and December 26, 2010, the applicant gave up access at his request due to work or vacation at periods proximate to the dates of the emails;

(c) The applicant’s father, M.M. was arrested in or about 2007 for crimes against children. Following his father’s arrest, the applicant did not contact the investigating officer or the respondent to determine if the children were victims of M.M.. The applicant advised that he was not aware that the outcome of the police investigation was that J.L.M. was being “groomed” by the applicant’s father. The applicant advised that he was “not surprised” that his brother’s children were victims of M.M. The applicant also confirmed that he was “not surprised” that the respondent had the children using the G. surname given that M.M. attended for his probation 1.5 kilometres from the children’s home and that M.M was convicted of sex crimes against his own family.

(d) That the applicant has two children from a prior relationship and that he consented to a court order (reference Order of Clark J. dated March 21, 2011), whereby the applicant agreed to relinquish custody and access for these children. The applicant further advised that he has not taken J.L.M. and/or T.J.M. to visit with the two children of the applicant from his prior relationship since he gave up custody/access to those children.

(e) That the applicant was not aware that all information pertaining to the children was available on a school website.

(f) That the applicant has never gone to a teacher/parent interview.

(g) That the applicant cannot identify any of the names of the teachers of the children during the parties’ marriage or following separation.

(h) That the applicant has never attended T.J.M.’s trumpet concert.

[ 16 ] The second witness called by the applicant was D.G.. Ms. D.G. is the applicant’s first cousin. Ms. D.G. testified that she spends time with the applicant and the children at times during the applicant’s access weekends. Her evidence in-chief was limited with respect to incidents of missed access, although she did reference plans for a dinner at Thanksgiving 2011 that she stated had to be cancelled because the applicant did not get the children. More generally, she offered that there were “many occasions” where the applicant was denied access but did not offer details of such occasions. Ms. D.G. also testified that her observations were that the children were affectionate with the applicant during access and that he was attentive and loving.

[ 17 ] During cross-examination by the respondent, Ms. D.G. confirmed the contents of her affidavit sworn in this matter October 7, 2010 where she referenced a June 4 th access weekend being cancelled, along with plans for that weekend, because J.L.M. and T.J.M. had head lice. Ms. D.G. also admitted that her view of any access issues was based on what the applicant had said to her. Ms. D.G. admitted that she did not spend any time with the applicant, the respondent or the children during the parties’ marriage, even though she lived in the same town and Ms. D.G.’s children attended the same school as the M. children. Finally, Ms. D.G. admitted that she has never discussed any of the access issues with the respondent directly.

[ 18 ] The second witness called by the applicant was L.M.. Ms. L.M. testified that she and the applicant had been friends for approximately one year and that her children have a close friendship with the M. children. She testified the children had a close and affectionate relationship with the applicant. Ms. L.M. testified that she had regular contact with the.M. children during the applicant’s access weekends. Ms. L.M. gave no evidence of specific incidents of missed access but did state that she had “learned” there was no flexibility with access. Ms. L.M. did not indicate how she learned of the inflexibility respecting access. Ms. L.M. did give evidence in-chief respecting some difficulties in coordinating the attendance of the.M. children at a concert for one of her children. Ms. L.M. also gave evidence with respect to alleged difficulty in obtaining T.J.M.’s snowboard from the respondent. Finally, Ms. L.M. confirmed that she had never met the respondent.

[ 19 ] The third witness called by the applicant was J.S.. Ms. J.S. testified that she was friends with both parties from the time that her child and the M. children attended preschool together. Ms. J.S. also testified to her observations of a good relationship between the children and the applicant. She indicated that her relationship with the respondent broke down irrevocably following the sale of the M. matrimonial home but that she had remained friends with the applicant. Ms. J.S. testified that she had no contact with the respondent following the sale of the matrimonial home. Ms. J.S. stated that the applicant and the.M. children have shared holidays and other times at her home following the parties’ separation. Ms. J.S. also testified that she had observed the applicant being denied access “lots”, although she provided no specifics of any denied access.

[ 20 ] The respondent’s position is that she should be granted sole custody of the children on a final basis. The respondent gave evidence on her own behalf with respect to the custody/access issues. The respondent did not call any other witness respecting the custody/access issue.

[ 21 ] The respondent essentially takes the position that she has been the primary caregiver for the children during the relationship and following separation. She relies upon the order of Price J. dated February 12, 2010, wherein she was provided sole custody of the children. She also relies upon and accepts the recommendations set forth in the Report of the Children’s Lawyer dated July 20, 2011.

[ 22 ] Respecting communication issues between the respondent and the applicant, the respondent gave evidence of alleged difficulties in obtaining the applicant’s cooperation (i.e. consent and/or financial contribution) for J.L.M.’s dental surgery such that the respondent was left to apply to the “SINOT” program which provides assistance for children who cannot dental coverage in Ontario. The respondent also testified that the applicant refused to make any contribution to the hockey for the children due to “G.” being the name on their jerseys. The respondent also gave testimony with respect to difficulties with the applicant with respect to school trips.

[ 23 ] During cross-examination by the applicant, the respondent confirmed the following:

(a) That she worked with the police respecting the Facebook accounts for the children and her concerns.

(b) That the children only used the G. surname for hockey and their Facebook accounts. Otherwise, the respondent registered the children with their school, doctor and everywhere else as M..

(c) The respondent did not agree with the suggestion by the applicant that the surname used by the children for their Facebook account made little difference (i.e. that the children could use the M. surname) given the protections afforded by the various settings available for a Facebook account. In addition, the respondent stated that her understanding was whenever Facebook makes changes/upgrades, then settings are lost and the children’s names could be searched such that the surname used did make a difference.

[ 24 ] As previously noted, the order of Price J. dated February 12, 2010, provided the respondent with sole custody of the children. Justice Price’s order also detailed the access schedule for the respondent. This order has been in place for the two years leading up to this trial.

[ 25 ] As also stated above, the Office of the Children’s Lawyer was requested to and did, in fact, intervene in this matter providing a comprehensive report dated July 20, 2011. The report includes 21 recommendations that essentially continue the status quo custody/access regime established by the order of Price J. dated February 12, 2010, namely, that the respondent have sole custody of the children and that the applicant have specified access, including the right to full information regarding the children.

[ 26 ] Neither the applicant nor the respondent called any evidence during the trial with respect to the Report of the Children’s Lawyer. The respondent takes the position that a final order should be made incorporating the recommendations from the Report of the Children’s Lawyer. The applicant also takes the position that the Report of the Children’s Lawyer should be ignored and that he should be awarded sole custody or, alternatively, joint custody on the basis that the respondent has obstructed his relationship with the children.

[ 27 ] There is no evidence that the respondent has, in fact, obstructed the applicant’s relationship with the children. To the contrary, the evidence of D.G., L.M. and J.S. was consistent that the applicant enjoyed a close and affectionate relationship with the children. The applicant gave no evidence as to specific incidents where the respondent denied him access. The applicant’s three witnesses were also unable to provide any direct evidence of incidents where the respondent denied the applicant access. Given this lack of evidence, I cannot and will not make any finding that the respondent has obstructed the applicant’s access.

[ 28 ] Similarly, I am not prepared to make any finding of fault against the respondent with respect to her decision to use the G. surname for the children’s hockey registration/jerseys and/or their Facebook account. The respondent gave uncontradicted evidence that she used the G. surname in those two specific instances specifically in response to the risk she assessed arising from the criminal conviction against the applicant’s father for sexual interference with children and the proximity of his probation office to the residence of the children. It is not the function of this Court to decide whether the respondent was right or wrong in taking those limited precautions but rather whether she has acted reasonably. I find that she has acted reasonably and in making that finding note that the respondent used the M. surname for the children’s school, doctors and otherwise. I make the related finding that the respondent has not obstructed the applicant’s relationship with the children on the basis of her registering the children using the G. surname for their hockey and Facebook registrations.

[ 29 ] The last allegation of obstruction raised by the applicant was with respect to his alleged difficulty in obtaining school information respecting the children. It was clear from the evidence of the applicant, especially in cross-examination, that he made little to no effort to obtain the school information for the children, including his failure to access the school website where this information was available.

[ 30 ] Based on all of the evidence before me during this trial, I am satisfied that the appropriate disposition is for the respondent to continue to have sole custody of the children, with the applicant having specified access, including access to all information for the children.

[ 31 ] A final custody and access order shall be made incorporating recommendations of the Children’s Lawyer - (1), (2), (3), (4), (5), (6), (7), (9), (10), (11), (12), (13), (15), (16) and (18), subject to the following amendments:

(a) Paragraph (1) shall be amended to state as follows: The parents should make reasonable effort to consult with one another regarding any major decisions affecting the welfare of the children, including but not limited to their education, recreational activities, health and religion. In the event the parties cannot agree regarding any such major decision, then the respondent shall have final decision-making authority. The parent residing with the children at the relevant time should make the daily decisions affecting their welfare.

(b) Paragraph (4) shall be amended to add the following: The cost of the counselling for the children shall be treated as a s. 7 extraordinary expense and shared/paid by the applicant and respondent in ratio to their respective incomes.

[ 32 ] By endorsement by Daley J., made March 1, 2012, the applicant’s contempt of access motion then before the Court was adjourned to the trial judge. The applicant did not argue the contempt motion specifically during the trial. In any event, and based on my findings set forth above, I do not find that the respondent has acted in contempt of the applicant’s right of access to the children as ordered by Price J. or otherwise. Accordingly, the applicant’s contempt motion is hereby dismissed.

Child Support and S. 7 Expenses

[ 33 ] The applicant offered no testimony in-chief with respect to his income and the related child support issue. The applicant’s trial record included his financial statement, sworn April 2, 2012. This financial statement noted a current income of $35,000 per annum and included a statement that the applicant’s gross income from all sources “last year” was also $35,000. In addition, the applicant’s sworn financial statement confirmed that he receives $7,303.20 in non-cash personal benefits paid for by the applicant’s business, including a vehicle, gasoline, insurance and a cell phone. The financial statement did not attach any copies of income tax returns, notices of assessment or any other proof of income.

[ 34 ] In cross-examination by the respondent, the applicant confirmed that he is working as a general contractor, operating his own business. The applicant admitted that he works for cash or payment “in kind” in his contractor business. The applicant was shown a picture of a boat and admitted that he had received the boat in lieu of payment for work done. The applicant rationalized that these jobs were for friends or colleagues and he did not claim such payments as income. Respecting the boat, the applicant stated he had received that as payment for a basement construction job he had completed. He indicated he had been using the boat recreationally with the children for the past two years.

[ 35 ] The applicant acknowledged in his cross-examination that he did not include cash payments or in kind payments for work he performed in the calculation of his income. As stated above, the applicant did not tender into evidence any income tax returns, notices of assessment or other proof of his current income save and only excepting his financial statement, sworn April 3, 2012 found in his trial record. The applicant’s sworn financial statement suggests an employment income of $35,000 annually plus non-taxable personal benefits of $7,303.20. These non-taxable benefits are income and should be grossed up for tax purposes. An appropriate gross up tax rate is 20% given the applicant’s financial circumstance. The grossed up value of these non-taxable benefits is $8,763.84. The applicant’s acknowledged employment income, including grossed up non-taxable benefits is $43,763.84.

[ 36 ] To this employment income, additional sums must be added to reflect the cash payments and in kind payments for work performed by the applicant. The only specific evidence as to quantum of these cash/in kind payments is the motor boat the applicant acknowledged receiving in payment for a basement construction project. Any imputation of income is by nature of the exercise speculative. Regardless, it is an exercise that must be undertaken in the circumstances of this case. Based on the applicant’s acknowledged receipt of cash/in kind payments, and his failure to tender evidence at trial of his income, including these cash/in kind payments, I conservatively impute an additional income of $6,000 per annum to the applicant for child support purposes, for the reasons stated, and relying on the adverse inference I draw pursuant to s. 23 of the Federal Child Support Guidelines .

[ 37 ] Given all of the above, I find the applicant’s total annual income to be $49,763.84 (rounded to $49,764.00) for child support purposes.

[ 38 ] The respondent’s 2010 notice of assessment was tendered as evidence during this trial, showing a Line 150 income for her of $24,560. The respondent’s financial statement, sworn April 12, 2012, contained in the trial record, suggested a current self-employment income of $36,000 annually. I find the respondent’s income to be $36,000 per annum for child support purposes.

[ 39 ] Given the above, the applicant shall pay basic monthly child support to the respondent in the amount of $739 per month, based on his total income of $49,764 per annum and the Federal Child Support Guidelines , commencing June 1, 2012, and each first of the month thereafter.

[ 40 ] The parties shall contribute to the s. 7 extraordinary expenses for the children in ratio to their respective incomes. Based on the applicant having an imputed income of $49,764 annually, at present, and the respondent having an income of $36,000 per annum presently, the current ratio of contribution is 58% for the applicant and 42% for the respondent (i.e. the applicant shall contribute 58% of the cost for the children’s s. 7 extraordinary expenses and the respondent the remaining 42% of such costs).

[ 41 ] As set forth in the custody/access section of my decision, the respondent shall consult with the applicant with respect to any s. 7 extraordinary expenses for the children prior to incurring such expenses. However, the applicant’s consent is not required for such expenses and the respondent shall maintain final decision-making authority in that regard. The respondent shall provide to the applicant proof of all such expenses (i.e. a copy of any invoice and proof of payment) at the time the respondent seeks payment of the applicant’s share of such expense. The applicant shall provide his share of the s. 7 extraordinary expense within 14 days of his receipt of the request for payment and related expense proof from the respondent.

[ 42 ] The parties shall exchange complete copies of his/her income tax return and related notice of assessment by June 1 st annually towards addressing any necessary adjustment to the ongoing child support obligations.

Equalization and Division of Property

[ 43 ] The parties disagree as to the date of separation. The respondent suggests March 29, 2007 as the correct date of separation. This was the date the police attended at the matrimonial home following a complainant made by the applicant against the respondent. However, both parties acknowledge the relationship had broken down the previous year. For example, the parties were sleeping in separate rooms (on different floors) at March, 2006. As such, I accept the applicant’s position and find that August 6, 2006 was the date of separation.

[ 44 ] The applicant at trial filed his financial statement, sworn April 3, 2012 and a revised Net Family Property Statement. The respondent filed her financial statement, sworn April 5, 2012, but no Net Family Property Statement. Both parties filed various exhibits.

[ 45 ] The most contentious issue was with respect to the cottage property known municipally as 50 Islandview Crescent, Wasaga Beach, Ontario (the “Wasaga Property”). The applicant’s position was that 50% of the value of the Wasaga Property had to be added to the respondent’s net family property on the basis that title was registered to the respondent jointly with her sister. The applicant also argued that the Wasaga Property was a matrimonial home.

[ 46 ] The Wasaga Property was registered to/owned by the respondent’s parents until July, 1996. On July 26, 1996 (i.e. prior to the parties’ marriage), the title to the Wasaga Property was transferred from the parents to the respondent and her sister jointly. Attached to the transfer was a “Declaration and Acknowledge of Trust”, dated July 18, 1996, signed by the parents, the respondent and her sister clearly stating the respondent and her sister held the property in trust for their parents. A more comprehensive “Declaration and Acknowledgment of Trust” was signed by the parents, the respondent and her sister January 15, 2009.

[ 47 ] The uncontradicted evidence at trial was that the value of the cottage had decreased significantly since 1998 due to a permanent drop in the water level that resulted in the cottage no longer having water access. The Wasaga Property was sold at February, 2012 for an amount approximately $13,000 less than what was then owed on the related mortgage.

[ 48 ] The respondent’s uncontradicted testimony at trial was that she did not receive any monies or financial benefit of any kind from the Wasaga Property. She testified that her parents were at all times the beneficial owners. The trial evidence was clear and I find that the respondent held 50% title to the Wasaga Property in trust for her parents and received no financial benefit from that property. As such, no inclusion need be made to the respondent’s net family property for the Wasaga Property.

[ 49 ] The applicant, during cross-examination of the respondent sought to file an affidavit sworn by a law clerk (Pirajic) as to conversations between that clerk and P.B., along with related exhibits. Mr. P.B. is a chartered accountant who appeared to have dealings with some or all of the parties, the parties’ various businesses and/or the respondent’s parents. The substance of the affidavit was to question the authenticity of the Wasaga Property trust. I did not allow this affidavit to be filed for several reasons.

[ 50 ] The primary reason for rejecting the affidavit was that it reference irrelevant information.

[ 51 ] The second reason for rejecting the affidavit was that the applicant did not call any witness, including Mr. P.B., or evidence to challenge the trust during his case.

[ 52 ] The third and related reason for not allowing the proposed affidavit was the prejudice that would flow to the respondent given she would be denied any opportunity to cross-examine the clerk on the affidavit.

[ 53 ] As an aside, it is clear on the trial evidence that the Wasaga Property was worth significantly more at date of marriage than at date of separation.

[ 54 ] Finally, I note there was no evidence whatsoever before me as to the Wasaga Property being a matrimonial home.

[ 55 ] The trial evidence was clear the respondent borrowed $34,000 from her sister to purchase the residence she owned in her name at date of marriage, namely 5 Crosby Avenue, Toronto, Ontario (the “Crosby Property”).

[ 56 ] There was no evidence any demand for repayment was made on the May 29, 1998 promissory note such that I am unable to determine this debt as uncollectable at the date of separation on the basis of any statutory limitation.

[ 57 ] I did not give the respondent any deduction for the debt she claims owed at date of separation to MKK Cruises Inc. and/or to the respondent’s father respectively for the deposit on the purchase of and subsequent improvements to the 1516 Troika Court, Mississauga, Ontario matrimonial home.

[ 58 ] The applicant removed/received collectibles/memorabilia from the matrimonial home at and following the date of separation.

[ 59 ] J.M. The applicant removed/was in possession of a work trailer at and following the date of separation.

[ 60 ] The parties were involved with three businesses/corporations at date of separation.

[ 61 ] The balance of the net family property entries for both parties require no further commentary.

[ 62 ] The parties each contend that the other received a disproportionate share of the household contents.

[ 63 ] Based on all of the evidence, the respondent owes an equalization payment to the applicant of $51,560.82 and the applicant shall have judgment in that amount.

[ 64 ] The applicant has already received $20,000 from the sale proceeds for the matrimonial home, which $20,000 payment must be credited against the equalization payment owed by the respondent.

Costs

[ 65 ] The Respondent was successful in her claim for sole custody and by relation child support. The result was mixed respecting the equalization/property division issue. Given these results, the overall modest finances for each of these parties and that both parties were self-represented at trial, I exercise my discretion to order that no costs shall be payable by either party.

FITZPATRICK J.

Released: July 31, 2012