ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 03331/10
DATE: 20120917
B E T W E E N:
PATRICK NERON
Raymond A. Warman, for the Plaintiff
Plaintiff
- and -
SANDRA NERON
No one appearing for the Respondent
Respondent
HEARD: September 4 and 5, 2012
R E A S O N S
WILCOX, J.
[ 1 ] INTRODUCTION
[ 2 ] This matter arises out of the marriage and separation of the parties. It went to trial on September 4 and 5, 2012. For the reasons which follow, there shall be judgment in the following terms:
A divorce order shall issue.
The Applicant shall have custody of the children Kaylee Neron, born [..], 2005 and Zoe Neron born […], 2009.
The Respondent shall have reasonable access to the children on reasonable notice, subject to the best interests of the children.
There will be no child support payable by the Respondent at this time as she lacks the means to do so.
The parties shall exchange their income tax returns and notices of assessment or reassessment for the previous year, together with current income information, by June 1 each year, commencing in 2013.
The requirement for the Applicant to pay child support and spousal support in the temporary order of December 17, 2010 is terminated as of the end of September, 2012.
There are no arrears of child support or spousal support owed by the Applicant as of the end of September, 2012.
The Applicant has paid to the Respondent by way of set-off spousal support for the 24 months following this order at $1,220 per month, totalling $29,328, in a lump sum. There shall be no further spousal support payable by the Applicant to the Respondent.
There shall be no further equalization of net family property.
The Respondent shall pay the Applicant’s costs of this matter in the amount of $7,000, inclusive of fees and disbursements. HST shall be in addition.
[ 3 ] BACKGROUND
[ 4 ] The parties began cohabiting on October 30, 2004, married August 19, 2006 and separated around November 1, 2009. They have two daughters, Kaylee Neron, born […], 2005 and Zoe Neron, born […], 2009. The Respondent has an older son, Dustin Degagner, born […], 1995, who now lives with his biological father in Earlton. The matrimonial home was at E[…] Street, Earlton, Ontario.
[ 5 ] RESPONDENT’S NON-ATTENDANCE AT TRIAL
[ 6 ] The trial of this matter took place without the Respondent. A review of the court file indicated that, after the case began, she obtained counsel and served and filed an Answer and other documents. Her address at that time was that of the matrimonial home in Earlton, Ontario. Her notice of change in representation dated September 21, 2011 indicated that she had decided to appear in court without a lawyer and gave the matrimonial home’s address as her address for service. She continued to participate and appeared at a combined settlement and trial management conference on March 23, 2012. However, she failed to appear at a trial management conference on July 4, 2012. The Applicant’s counsel advised then that his office had received an email from her just prior to the trial management conference advising that she had a family emergency and would not be attending, but that he suspected, based on his previous dealing with her, that she had chosen not to attend.
[ 7 ] When the Respondent failed to appear for trial on September 4, 2012, efforts were made to determine that she had been made aware of the date and that her absence was not for some innocent reason.
[ 8 ] The endorsement made at the trial management conference indicates, among other things, that the parties were to file financial statements and net family property statements, that the Respondent was to provide a witness list to the Applicant, that the case was scheduled for Assignment Court on July 30, 2012 to set a date for trial, and that the Applicant would provide a copy of the endorsement to the Respondent. Composite Exhibit number 1 includes the Applicant’s counsel’s letter of July 25, 2012 to the Respondent at L[…] Road, New Liskeard, Ontario enclosing both a photocopy and a typed copy of that endorsement, advising her of the trial dates of September 4, 5 and 6, 2012 at the courthouse in Haileybury, and noting the requirement for her to provide a list of witnesses and willsays. That package was returned to sender, marked “Unclaimed”.
[ 9 ] As indicated, the Respondent’s address had initially been at the matrimonial home in Earlton. Exhibit 5 contains a copy of her email of January 11, 2012 to the Applicant’s counsel’s office assistant giving her cell number and a new home address of B[…], New Liskeard, Ontario. Composite Exhibit 8 includes an email of February 8, 2012 to the Applicant’s counsel’s office, indicating that she was to be moving to L[…] Road, New Liskeard, and an affidavit of service of a private process server, Burl Regan, swearing that he served the Respondent with documents on June 19, 2012 at the L[…] Road address. So, it appears to have been the appropriate address to use for her, as the Applicant’s counsel and the trial coordinator did in the relevant period.
[ 10 ] The Applicant’s counsel recalled attending at the Assignment Court and that the Respondent had not been there.
[ 11 ] The trial coordinator was summoned to court to advise of her communications with the Respondent. Exhibit 2 is her letter of July 6, 2012 to the Respondent advising of the trial dates, location and time, the need for the Respondent to appear for trial, and the trial coordinator’s phone number for the Respondent to contact her. The letter was returned to sender marked “Unclaimed”. Exhibit 3 is a printout of the trial coordinator’s email of July 5, 2012 to the Respondent, advising that the trial was scheduled for three days starting September 4 and seeking confirmation of receipt of the message. No reply was received, nor did the email come back undelivered. Exhibit 4 is the trial coordinator’s case event list for this case. On it, the trial coordinator had made these notes:
July 05, email to Mrs. Neron.
July 09, letter sent by mail to Mrs. Neron.
To be confirmed on the record on July 30.
Date set by telephone with Tanya/Warman in July.
August 14, left a message on her cell giving trial date.
This last entry apparently refers to the Respondent.
Exhibits 5 and 8 contain copies of emails dated January 11, 2012 and February 8, 2012, respectively, from the Respondent to the Applicant’s counsel’s office, stating her email address. That is the email address that the trial coordinator used in Exhibit 3.
[ 12 ] There is some onus on a litigant to keep track of his or her own case, especially when self-represented. Even if that were not so, I am satisfied that adequate efforts were made by the Applicant’s counsel and by the trial coordinator to advise the Respondent through various means of the trial’s schedule. Her efforts to keep the Applicant’s counsel advised of her contact information in the past indicate her understanding of the importance of doing so and suggest that, if the information had changed again and she was interested in continued involvement in the case, she would have updated that information again. In light of the above, I find that the Respondent knew of the trial dates, time and location and chose not to participate. Indeed, she was paged on occasion during the trial with no response, and did not attend at any time during the two day duration of the trial. It was appropriate to proceed without her.
[ 13 ] REQUEST TO ADMIT
[ 14 ] Exhibit 6 is a request to admit produced by the Applicant’s counsel’s office, and an affidavit of service of it on the Respondent by courier which picked it up on August 3, 2012. It was addressed to the Respondent at the correct L[…] Road address, but was returned undelivered. Consequently, an issue arose as to whether the request to admit had any effect. The Applicant’s counsel pointed out Family Law Rule 6(2)(b) which provides that regular service of a document on a person is carried out by sending a copy to the person by courier, as he did. Rule 22(2) provides that a party may serve a request to admit on another party asking it to admit that a fact is true or a document is genuine. Rule 22(4) says that, unless the party served serves a response within 20 days, it is considered to have admitted that the fact is true or the document is genuine. There has been no response from the Respondent. Here, the Respondent appears to have been ignoring the case and avoiding service, as discussed above regarding her non-attendance at trial. Therefore, I find that the Applicant’s counsel has followed the proper procedures to serve the Request to Admit. As there has been no response, the facts in the Request to Admit and the genuineness of the documents attached are considered to have been admitted. In any event, the Applicant’s counsel called witnesses, being the Applicant, his father Denis Neron, his mother Denise Neron, and his partner, Melanie Plourde, whose evidence repeated and expanded on the facts in the Request to Admit.
[ 15 ] It should be noted that the Applicant provided an extensive paper trail to support his evidence. This can be found in the trial record in his Financial Statement of June 15, 2012, and in the Continuing Record in the attachments to his affidavit of December 5, 2011, as well as in the Request to Admit.
[ 16 ] DIVORCE
[ 17 ] The application includes a claim for divorce. Separation was nearly three years ago. The Applicant testified that there is no chance of reconciliation. The marriage certificate and clearance certificate are on file. The requirements having been met, a divorce order shall issue.
[ 18 ] CUSTODY
[ 19 ] At the date of separation, the family was living in the matrimonial home, but the Applicant was working at a remote fly-in site from November 3 to December 23, 2009 and January 2 to late February or early March, 2010, and did not come home during those periods. After he returned home, the Respondent severely limited his contact with the children. The restrictions on access extended to members of the Applicant’s family. Denis Neron, the children’s paternal grandfather, testified that he had no access to them for between seven and nine months post-separation. Denise Neron, the paternal grandmother, said access had not been good until August 2010 when the Applicant brought a motion for access. She had seen the children before Christmas in 2009, and then saw Kaylee twice at school events. That motion resulted in an order of August 12, 2010 for three overnight periods of access in August and eventually to a temporary order on December 17, 2010 for Christmas access that year, followed by regular access in the first three of each four weekends, commencing January 14, 2011.
[ 20 ] In contrast to the court-ordered access schedule, the Applicant testified that he had the following access since late in 2011:
December 23, 2011 to January 1, 2012, but for overnight December 25.
January 2 to 6, 2012,
13 days in February, 2012,
23 days in March, 2012,
19 days in April, 2012,
19 days in May, 2012,
21 days in June, 2012,
21 days in July, 2012, in addition to which Kaylee was away from the Respondent’s at camp July 16 to 20.
28 days in August, 2012.
The calendar for January to June, 2012 showing the days that the children are with the Applicant was attached to the Request to Admit and is considered to be admitted. In addition, the Request to Admit contained calendars for June, July and August, 2011 showing that the children were with the Applicant nearly full time through that summer. Exhibit 9 is the calendar for July and August, 2012 which was not part of the Request to Admit but which the Applicant produced in testimony to show the days the children had been with him. No evidence was provided regarding access in the fall of 2011 between the periods covered above. The access in these periods far exceeds the provisions of the order. One might say that it looks like the Respondent is being generous with access. However, it appears that the children are spending increasing amounts of time with the Applicant and correspondingly less with the Respondent such that it is more consistent with an arrangement in which he has their principal residence and she has access.
[ 21 ] Zoe is not yet of school age. Kaylee attended school in Earlton initially but is now in grade two in New Liskeard. There is an option of switching her back to her school in Earlton.
[ 22 ] The Request to Admit says that the Respondent has habitually sent Kaylee to school without lunches or with inadequate ones, and with inadequate clothing.
[ 23 ] The Applicant testified that the school year for Kaylee began on August 28, 2012, but that he had called the school on the 27 th and found that she had not been registered by the Respondent. He had also confirmed that arrangements could be made to bus the children to school in New Liskeard from Earlton if they were with him there during the school week but attending school in New Liskeard. Correspondence from the township regarding this was attached to the Request to Admit.
[ 24 ] Also in the Request to Admit is an attendance report from Kaylee’s school for August 30, 2011 to March 27, 2012. There is a high frequency of absenteeism. Comparison with the Applicant’s calendar records of when he had the children with him reveals that all but one of the absences took place when Kaylee was in the Respondent’s care.
[ 25 ] The Respondent and children remained in the matrimonial home after separation until October, 2011 when she decided to move out and the Applicant took it over. He testified that he went there in that month with his parents and partner and that they took pictures. Denis Neron confirmed taking some pictures on that occasion. Exhibit 10 is a series of pictures that the Applicant identified as the ones taken. He indicated what parts of the property these were of, including outside of the house and inside. Inside, there are pictures of the garage, basement, and the main floor, including a laundry room, a washroom, the pantry, the rec room, the master bedroom, and Kaylee’s room. They depict a great deal of garbage, litter, damage, decay, destruction and mold, such as would not have happened over a short period of time. That the Respondent lived in this is astounding. That she had children living in there is deplorable. The Applicant testified that the house was not in that condition prior to separation. He also commented that garbage was collecting around her present residence, too.
[ 26 ] The paternal grandparents, Denis and Denise Neron, testified regarding their situation as it is relevant to the issues of custody. They have been a couple and have lived in Earlton for many years. Both continue to work for the same employers they have had for over 30 years. They have a daughter also living in Earlton. Denise also has her parents and some siblings there. She and Denis have assisted the Applicant with the children in the past and would continue to do so. The children are said to be happy when with the Applicant and to love the grandparents, too.
[ 27 ] The grandparents presented and spoke well. It is apparent that they can offer much, including stability, to these children.
[ 28 ] Melanie Plourde testified. She has lived with the Applicant since March 19, 2010. She left a job in order to be available for the children when the Applicant is working, including caring for them, getting Kaylee to and from school, getting lunches for Kaylee at school when the Respondent has not, and picking Kaylee up from school if she is ill and the school cannot contact the Respondent. She claimed to have an excellent relationship with the children and favoured the Applicant getting custody. She said she had no criminal record, had never been involved with the CAS and, indeed, had no children of her own. Notably, she also objected to the incivility she had witnessed in the Respondent at exchanges of the children because of its effect on them, and expressed confidence that she herself could be civil with the Respondent for the good of the children.
[ 29 ] It was noted that the Applicant had arranged for the children to visit their older half-brother, Dustin, at times. Generally speaking, it is important for such relationships to be maintained, and the Applicant’s efforts in this area are looked upon favourably.
[ 30 ] The Applicant’s counsel sought joint custody, with the principal residence of the children being with the Applicant. Joint custody, he reasoned, would allow the Respondent to get information regarding the children without having to go through the Applicant for it. I question this. There is relatively little information with respect to the best interests of the children on which to base decisions about them, and that comes from the Applicant. There is nothing to show that joint custody could work or that the Respondent is even interested in it. In fact, the opposite is true. I would instead award custody of the children to the Applicant. If the Respondent wants information regarding them, she can use the provisions of subsection 20(5) of the Children’s Law Reform Act.
[ 31 ] ACCESS
[ 32 ] The Applicant’s counsel proposed that the Respondent have access two weekends per month, from 9:00 a.m. to 6:00 p.m., both Saturday and Sunday until her home proves to be safe, when access can be revisited and in addition, any other access as the parties can agree upon. Again, however, there is little information to base an access order on. I am not convinced that such an order would be in the best interests of the children. Access is generally thought to be in a child’s interests, but that, of course, depends to a large extent on the access parent’s situation. In the circumstances of this case, it is preferable to make access flexible, so that the Applicant, as the custodial parent, can assess the situation from time to time and adapt the access to it, keeping the interests of the children at the forefront. Therefore, the Respondent shall have reasonable access upon reasonable notice, subject to the best interests of the children.
[ 33 ] CHILD SUPPORT
[ 34 ] The Applicant’s counsel did not request an order for the Respondent to pay child support, because he said she had no means to do so. He did request an annual exchange on June 1, of the parties’ financial information.
[ 35 ] There will be no order for child support at this time because the Respondent lacks the means to base such an order on. The parties shall, however, exchange their income tax returns and Notices of Assessment or Reassessment for the previous year by June 1 of each year, commencing June 1, 2013.
[ 36 ] APPLICANT’S INCOME
[ 37 ] The Applicant testified that his income, as shown on his tax return summaries at Tab 8 of the Trial Record, was:
2009 – 105,813
2010 – 100,735.06
2011 – 94,158.64.
[ 38 ] 2012 was expected to be similar to 2011. The income had fallen, he explained, because the Ministry of Labour had reduced the amount of time that could be spent working in the field.
[ 39 ] The Respondent was said to have $1,200 of annual income from a source other than the Applicant.
[ 40 ] SUPPORT THAT THE APPLICANT SHOULD HAVE PAID
[ 41 ] To show an amount of support should have been paid, the Applicant’s counsel referred to Divorce Mate calculations found at Tab 8 in the Trial Record for the years 2009, 2010 and 2011.
[ 42 ] For 2009, they show child support of $1,465 and spousal support at the low end of the range of $1,402, totalling $2,867 a month. He provided a calculation showing that the Applicant had overpaid for those two months by $5, and agreed to ignore that difference.
[ 43 ] For 2010, they show child support of $1,425 and low end spousal support of $1,345, totalling $2,770 a month or $33,240 per year.
[ 44 ] For 2011, they show child support of $1,344 per month and low end spousal support of $1,222, totalling $2,566 per month or $30,792 per year.
[ 45 ] For 2012, as the Applicant expected his income to remain the same as in 2011, the monthly amount would also. Nine months to and including September, 2012 comes to $23,094.
[ 46 ] SUPPORT PAID
[ 47 ] The Applicant testified that between separation in November, 2009 and late February or early March, 2010, he was working at a remote site. His pay was being deposited into the account he held jointly with the Respondent. Tab 8 of the Trial Record is his financial statement, sworn June 15, 2012, and supporting documents. Page 012 of those is an operations log from the Caisse Populaire for November 1, 2009 to April 30, 2010 showing these deposits, totalling $32,141.76. He did not have access to that account over that period, but the Respondent did. He identified a bank statement for that account at pages 014 to 020. The balance at November 2, 2009, the approximate date of separation, was $1,194.67. By March 31, 2010 it is $10 overdrawn, despite his pay and other unidentified amounts going into it. The Respondent did not, the Applicant said, have a job at that time.
[ 48 ] The Applicant said that he was paying the Respondent $1,200 per month in combined child and spousal support for April to December, 2010, which would total $10,800. This evidence conflicts somewhat with the Request to Admit and other records. At Tab 8 of the Trial Record, starting at page 076, a withdrawal receipt and cancelled cheques for support dated from January 1, 2010 to November 30, 2010 totalling $10,100 which appears to be the more reliable number. The Applicant’s counsel pointed out that this was not paid pursuant to a court order. Consequently, the Applicant did not get any income tax deduction, nor would the Respondent have paid income tax on any part of it.
[ 49 ] A temporary order dated December 17, 2010 required the Applicant to pay child support of $1,363 per month commencing December 1, 2010, and spousal support of $1,160 per month commencing January 1, 2011. However, the spousal support was to be reduced by $650 per month to $510 per month until the Respondent produced her financial information. This information was not served until May 19, 2011, according to the affidavit of service of Tracey McVittie at Tab 12 of the Continuing Record, and not filed until June 20, 2011. Despite that delay, payment of the full amount of the support was enforced. The total is $2,523 per month. That order has remained in force and, according to the Applicant, is paid up to date. The Applicant’s evidence was that he had lost the intended reduction for nine months, totalling $5,850. I calculate six months, totalling $3,900.
[ 50 ] MATRIMONIAL HOME
[ 51 ] The Applicant said that the matrimonial home at E[…], Earlton was purchased for $63,756.87 in May, 2005. It is apparently in his name. The balance owing on the mortgage at separation was $57,743.67. The Respondent remained in the home from separation until October, 2011. The temporary order of Justice Valin dated May 30, 2011 ordered that it be listed for sale immediately. Justice DelFrate ordered on September 26, 2011 that Mr. Neron would take possession to carry out some repairs and that the property was to be appraised and then sold. The Applicant said that three attempts were made, but that the Respondent would not let anyone in to appraise the property. The Applicant intended to move back into the matrimonial home after the Respondent moved out in October, 2011, but could not because of its condition. The pictures of it have previously been referred to. He refinanced, as allowed by a court order, to pay for the repairs, increasing the mortgage to $116,138.79. The cost of the repairs alone, not including other expenses involved in the refinancing, was $35,169.03.
[ 52 ] EXPENSES PAID BY THE APPLICANT
[ 53 ] The Applicant listed other amounts that he paid for expenses relating to the matrimonial home while it was still occupied by the Respondent, notwithstanding that he was paying support to her. These included:
- 2010 municipal taxes $1,116.35,
- 2011 municipal taxes to September, 2011, after which he took possession of the matrimonial home, $655.75,
- mortgage payments that the Respondent missed, $1,177.89,
- house insurance that the Respondent failed to pay, $399.58
- Union Gas bill for heating the matrimonial home from November, 2009 to June, 2010 while the Respondent occupied it, $667.36
- Reliance Home Comfort hot water tank rental bill for November, 2009 to June, 2010, $295.93,
- the Respondent’s phone bill, averaging $1,050 a month for eight months, $1,200.
[ 54 ] In addition, he had made payments of $237.99 every two weeks for the Respondent’s Chevrolet Trail Blazer motor vehicle, and of approximately $200 per month for the insurance for that vehicle, but the number of such payments was not in evidence.
[ 55 ] The Applicant reviewed the entries in his financial statement and the supporting documentation attached. He testified that he had assumed all of the debt from the relationship, including some incurred by the Respondent post-separation without his permission, totalling $111,944.73. He retained assets of $74,956.87. Therefore, the net debt that he was left with was $36,987.86.
[ 56 ] SUBMISSIONS RE: ASSETS AND DEBTS
[ 57 ] The Applicant’s counsel made submissions in support of a final order which were realistic in the circumstances and intended to bring the matter to a conclusion with a clean break. He calculated that, from separation to September, 2012, the Applicant had paid $83,259 of combined support, but should have paid $92,860, leaving an underpayment of $9,601. However, the Respondent had the benefit of other moneys from the Applicant. Over the first four months of the separation, she had the use of their joint account into which $32,141.76 of his pay had gone, leaving it overdrawn. In effect then, counsel calculated that she had taken ($32,141.76 - $9,601 =)$22,540.76 that she was not entitled to. In addition, the Applicant had paid for some items that the Respondent was supposed to pay for. Specifically, he mentioned mortgage payments and house insurance payments totalling $1,577.77, the heating gas bills of $667.36, and the hot water tank rental of $295.93. This brings the total to $25,081.82. Frankly, although the presentation of the financial matters was difficult to follow, I think that even more expenses paid by the Applicant for the Respondent could be accounted for here. I will accept counsel’s number, however. Damage to the matrimonial home while the Respondent occupied it post-separation was conservatively valued at $35,169.03. The Applicant assumed all of the family debts, which were joint, including the Respondent’s one half, $18,493.93, which she lacked the means to pay. This brings the conservative grand total to $78,744.78 of costs to the Applicant which the Respondent has benefitted from while walking away from a trashed house with no debt.
[ 58 ] The Applicant’s counsel would set off against this the spousal support that the Applicant might otherwise owe the Respondent. In view of the short duration of the relationship and referring to the Divorce Mate calculation, he proposed a further 24 months of support at the low end of the range, being $1,220 per month, totalling $29,328. I note for interest that twice that duration at the high end of the range closely approximates the grand total, above, so, even if the approach or the numbers were varied from the above, there is a great deal of room to accommodate counsel’s proposal in principle. Not only that, but he proposed treating the financial matters as “a wash”, and not pursuing the Respondent for moneys that she lacks the means to pay for equalization and damages.
[ 59 ] In view of the fact that the Respondent did not see fit to continue to participate in these proceedings to advance her case, implying that they were not important to her, I will accept counsel’s submissions.
[ 60 ] COSTS
[ 61 ] The Respondent shall pay the Applicant’s costs in the amount of $7.000.
[ 62 ] The Applicant’s counsel requested $7,000 in costs noting that there had been two days of trial plus other court appearances, the Respondent had fired her counsel, the Respondent had failed to respond to offers and that the Applicant had had to move for temporary relief to deal with various issues. Counsel had also sought a caveat from the court that the Respondent was not to bring any further Family Law proceedings until those costs were paid. I am not prepared to order that in the circumstances, but the non-payment of costs by the Respondent in this matter can be raised in the future as appropriate.
Justice James A. S. Wilcox
Released: September 17, 2012