ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 5142/09
DATE: 20120917

B E T W E E N:

JOCELINE CHAUMONT

Wayne G. Stickland, for the Applicant

Applicant

• and -

ANDRÉ CHAUMONT

No one for the Respondent

Respondent

HEARD: August 16, 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 was subject to a trial on August 16, 2012 that was uncontested by the Respondent. All of the evidence comes from the Applicant. The issues were custody, access, child support, property division, spousal support, the provision of extended health benefits, and costs. For reasons which follow, this court orders:

1. The Applicant shall have custody of the child, Maxime Marie Annie Chaumont born June 8, 1995.

2. The Respondent shall have reasonable access to Maxime on reasonable notice, subject to Maxime’s wishes.

3. The Respondent shall pay to the Applicant arrears of child support that accumulated between separation and the end of September, 2012 in the amount of $31,677.

4. Commencing October 1, 2012, the Respondent shall pay to the Applicant child support for the child Maxime of $680 per month based on an imputed annual income of $75,000.

5. The Respondent shall immediately return to the Applicant and the children the personal property listed in Schedule A to this order. If necessary, the Applicant shall obtain the assistance of the OPP or other local law enforcement agency to enforce this term.

6. Grant Forest Pension Plan or its successors or heirs, and/or the Investors Group or any other entity with which the Respondent has a pension plan shall forthwith provide the Applicant with any information necessary to obtain a formal valuation of the Respondent’s pension for equalization purposes.

7. The Respondent shall pay to the Applicant arrears of spousal support for the period from separation to the end of September, 2012 of $23,664.

8. The Respondent shall pay to the Applicant spousal support of $800 per month commencing October 1, 2012.

9. The Respondent shall confirm that the children are maintained on his health benefits available through his employment with Kirkland Lake Gold to the extent that they remain eligible under the terms of the benefit plan.

10. The Respondent shall reinstate the Applicant on his employer health care benefit plan immediately as granted in the order of the Honourable Justice Rivard dated August 31, 2010.

11. Kirkland Lake Gold is hereby authorized to deal directly with the Applicant with respect to any health benefit claims she may have.

12. The Respondent shall reimburse the Applicant for medical expenses for the children in the amount of $4,440 and medical expenses for the Applicant in the amount of $4,059, for a total of $8,499.

13. The Respondent shall pay to the Applicant costs of $14,592.03. This is in addition to the cost orders made previously in this case.

[ 3 ] PROCEDURAL BACKGROUND

[ 4 ] This is a family law matter. A previous Application had been commenced in 2008, but was dismissed on June 10, 2010, for reasons which were not made clear, with no orders having been made. The current Application and other documents were served on the Respondent on September 22, 2009. The Respondent obtained counsel and filed an Answer on January 15, 2010. The matter went through various interim steps. By order of August 30, 2010, the Respondent’s counsel was removed from the record. The Respondent subsequently failed to appear for a settlement conference and the matter was ordered to proceed to trial. The attempt to serve the Applicant’s trial record on the Respondent in September, 2011 was unsuccessful. The Respondent failed to appear for trial on October 18, 2011. Pursuant to an order made that date, the Respondent’s case was dismissed and the Respondent was personally served with that order, on November 22, 2011. It allowed him ten days to move to set aside the order, failing which the matter would proceed to an uncontested trial, in writing or otherwise at the Applicant’s option. The Respondent faxed a Form 14-B motion form dated October 26, 2011 to the Applicant’s counsel’s office on November 28, 2011. It said under “Order that you want the court to make”:

• Motion to set aside order.
• Never been contacted about this matter.
• What am I actually setting aside.

The motion form was not filed with the court.

[ 5 ] The matter was scheduled for trial on August 16, 2012. The affidavit of Simona Peterson, assistant to the Applicant’s counsel, dated August 15, 2012, deposed that the Respondent had made no further contact with counsel’s office. In court on August 16, 2012, the Applicant’s counsel sought and obtained an order of the court allowing him to provide the evidence by affidavit and the submissions in writing. In addition to the previously filed trial record, he subsequently filed an Applicant’s written submissions brief containing:

• Applicant’s written submissions,
• affidavit of Applicant dated September 4, 2012,
• financial statement of the Applicant dated September 4, 2012,
• 2006 residual earning capacity wage table for Ontario,
• summary of calculations for 2007, 2008, 2009, 2010, 2011 and 2012 with Divorce Mate calculation for each year,
• temporary orders of December 18, 2009, August 31, 2010, and October 18, 2011,
• Bill of costs.

Also, he filed a draft final order for the court’s consideration.

Further written submissions were requested and were received on September 13, 2012.

[ 6 ] Counsel’s assistance in dealing with this matter in an efficient fashion is appreciated by the court.

[ 7 ] BACKGROUND

[ 8 ] The parties married in June, 1987, and separated on September 15, 2007. She is now 48 years of age and he 50. There are four children of the marriage:

• Monica Marie Janet Chaumont born July 6, 1989
• Edith Marie Emelie Chaumont born January 4, 1991
• Felix Joseph Martin Chaumont born November 19, 1993 and
• Maxime Marie Annie Chaumont born June 8, 1995.

The Applicant deposed that, throughout the marriage, the parties had a relatively good relationship. However, in November of 2006, the Respondent went on a medical leave from his work and this caused a change in their relationship. The Respondent began taking anti-depressant medication and the drugs he was prescribed did not help him. There were a number of different prescriptions tried. However, the Respondent decided that he would not take any medication and he refused to get any further help or counselling. The Respondent had mood swings and rather strange outbursts, and he acted very peculiar. People would tell the Applicant that they saw the Respondent dancing or talking to himself in the streets. The Respondent even threatened and later assaulted the two older daughters during this period. They did make statements to the police but he was not charged. The two oldest daughters moved out of the home shortly after those incidents.

[ 9 ] The parties then separated on September 15, 2007. An incident occurred that day resulting in the Respondent making allegations of assault against the Applicant, which forced her from the matrimonial home. Shortly after that, the Respondent changed the locks, forcing the Applicant and the children to find alternative accommodations. Initially, the three daughters lived with the Applicant and the son remained with the Respondent.

[ 10 ] The Applicant is a qualified school teacher who returned to school later in life to obtain her teaching certificate. She was employed until July, 2008 when she was involved in a severe motor vehicle accident. She has not been able to return to work since the accident. She received accident benefits, but no financial assistance from the Respondent beyond one child support payment of approximately $900 in December, 2008. Since the accident, the Applicant has undergone numerous surgeries and has incurred significant medical expenses, some of which have not been covered by any insurance plan.

[ 11 ] The Respondent is employed full time as an electrician with Kirkland Lake Gold. He has not provided his financial information except for his January 14, 2010 financial statement.

[ 12 ] The Applicant says that the Respondent has proven to be a difficult man to deal with, has absolutely no regard for authority or rules, and does not comply with court orders.

[ 13 ] As of the date of the affidavit, all the Applicant knows about the Respondent’s whereabouts is that he continues to work at Kirkland Lake Gold. He appears to have moved from the area. His parents live in the area and he has occasionally been seen at their place.

[ 14 ] CUSTODY

[ 15 ] The Applicant requested a final order with respect to custody of the children in accordance with the temporary order of Ian Gordon J. dated December 19, 2009, but provided a draft order providing for her custody of all four children. That there are problems raised by the form of this request will become clear.

[ 16 ] When the parties initially separated and the Applicant was forced from the matrimonial home, she had to reside at her mother’s until she obtained other accommodations. The daughters Edith and Maxime stayed with her; Monica was living in Toronto, attending university, which she completed in April, 2011. The son, Felix, lived with the Respondent until August, 2008 when he returned to live with the Applicant. The Applicant had three children living with her until August, 2009, when Edith finished her post-secondary education and became self-sufficient. Felix quit school in November, 2011. Maxime continues to live with the Applicant and attends school.

[ 17 ] The temporary order of Ian Gordon J. dated December 18, 2009 orders in paragraph two that the Applicant shall have custody of the children, without specifying any particular ones. Paragraph one required the Respondent to pay child support for Maxime and Felix, implying that paragraph two refers only to them, and not to all four of the children as set out in the draft order.

[ 18 ] In any event, at this time, it appears that only one child, Maxime, is properly the subject of a custody order. The Applicant shall continue to have custody of her.

[ 19 ] ACCESS

[ 20 ] The application, in which the Applicant sought custody of the children, offered the Respondent access to them in accordance with their wishes. The Respondent’s Answer and the application’s submissions are silent regarding access. Given Maxime’s age, it is likely that access will only take place if she, as well as the Respondent, want it to. As there has been an order for her custody, it seems appropriate that access also be dealt with. The Respondent shall have reasonable access to Maxime on reasonable notice, subject to Maxime’s wishes.

[ 21 ] CHILD SUPPORT

[ 22 ] The Applicant requested an order for child support. In her affidavit at paragraph 31, she asked that the child support provision of the temporary order of Ian Gordon J. dated December 19, 2009 be made final. The draft order repeats this. However, the written submissions brief contains a summary of calculations for child support dating back to separation in September, 2007, supported by Divorce Mate calculations, and indicates that the calculations include the amount paid by the Respondent to date.

[ 23 ] The Respondent’s financial statement of January 14, 2010 indicated he had income of $4,336.76 per month or $52,041.12 per year and that he was employed by Kirkland Lake Gold. The Respondent says in her affidavit of September 4, 2012 that she knows that he continues working there. However, she has supplied a 2006 Residual Earning Capacity Wage Table indicating $69,582 per year for industrial electricians with ten or more years of experience. She has then used the Consumer Price Index to calculate his annual income for subsequent years and used these income numbers in the Divorce Mate calculations. She alleges that he now earns at least $75,000 per year and requests that the court impute to him that income. Given the lack of involvement of and information from the Respondent, this is a reasonable approach.

[ 24 ] The Applicant’s calculations indicate that child support arrears that accumulated from separation to and including September, 2012 total $32,577. From that, I would deduct $900 which was the approximate amount that the Applicant says in her affidavit that the Respondent paid for child support in December, 2008, which does not appear to have been factored into the calculations. Therefore, I find that the Respondent owes arrears of child support to the end of September, 2012 of $31,677.

[ 25 ] SECTION 7 EXPENSES

[ 26 ] Although there have been substantial costs for the children’s post-secondary education, the Applicant abandoned her claim for special or extraordinary expenses for child support.

[ 27 ] PROPERTY

[ 28 ] The Respondent declared personal bankruptcy. His Answer dated January 14, 2010 says that he was then an undischarged bankrupt. The Applicant was in possession of the matrimonial home by November, 2009, after the Respondent declared bankruptcy, and moved back in in March, 2010 after arranging a mortgage and giving notice at her rental accommodation. The Applicant indicated that all the property issues have been resolved, save and except for the return of the Applicant’s and children’s personal property and the equalization of the Respondent’s pension.

[ 29 ] PERSONAL PROPERTY

[ 30 ] The Applicant sought an order requiring the Respondent to immediately return the Applicant’s and children’s personal property and, if necessary, to obtain the assistance of the police.

[ 31 ] As previously mentioned, the Applicant and children vacated the matrimonial home at separation. Subsequently, on September 23, 2009, she observed the Respondent and his brother and nephew loading items from the home into a U-Haul van. She obtained on October 8, 2009 an order that the Respondent shall not dispose of or deplete any of the family property and that he shall preserve the matrimonial home and its contents. Despite this, he continued to move items out of the home. When the Applicant and children returned to the matrimonial home, she found that the Respondent had removed most items of importance, such as the furniture, dishes, new washer and dryer, stove and refrigerator. He had also taken the children’s personal belongings. He left a dishwasher, as well as an old sump pump which caused the ruin of other items, such as the Applicant’s sewing machine and some of her teaching materials. He had also burned some of their personal belongings in a fire pit. The Respondent has not returned any of the personal property taken, nor provided financial assistance in replacing it. The Applicant has had to replace what she could afford to.

[ 32 ] The Respondent also took a Plymouth van that was registered in the Applicant’s name and has not returned it. The Applicant does not know where it is being kept.

[ 33 ] Attached as Schedule A to this judgment is a list prepared by the Applicant of the personal items of hers and the children that she would like returned. There shall be an order for the Respondent to return that property, with the assistance of the police if necessary.

[ 34 ] PENSION PLAN

[ 35 ] The Applicant sought an order that Grant Forest Pension Plan or its successors or heirs, and/or the Investors Group with which the Respondent has a pension plan, shall forthwith provide the Applicant with any information necessary to obtain a formal valuation of the Respondent’s pension for equalization purposes. The Applicant’s affidavit of September 4, 2012 says that the Respondent has a pension with Grant Forest, which is managed by the Investors Group and which was exempt from his bankruptcy proceeding. Indeed, there was an order made on August 31, 2010 requiring the Respondent to obtain a valuation of his pension and provide it to the Applicant’s counsel within 60 days, but the Respondent did not comply. However, the Applicant also says that the holder of the Grant Forest Pension Plan is yet to be determined. Either way, she believes that she is entitled to an equalization of the pension in accordance with the new Pension Division Rules. The law, of course, provides for the division of pension plans. The order needs to be broadly enough worded that the plan can be caught even with the uncertainty regarding the holder.

[ 36 ] SPOUSAL SUPPORT

[ 37 ] The Applicant seeks spousal support from the Respondent. During the course of their 20 year marriage, the Applicant was financially dependent upon the Respondent. Although she returned to school and secured a degree that would allow her to teach, she has not obtained full time employment. Additionally, the injuries sustained in the motor vehicle accident of July, 2008 are preventing the Applicant from returning to work. She has always maintained the need for spousal support from the Respondent. She alleges that she has been economically disadvantaged because of the breakdown of the marriage and that the Respondent has not only failed to provide child support (except, of course, that which has been noted above, under the heading “Child Support”), but he has also failed to provide any other support to maintain the home for the children or to provide the Applicant with any financial assistance. He has the ability to pay support.

[ 38 ] The Divorce Mate calculations referred to with respect to child support also provide spousal support ranges. The Applicant seeks spousal support in the high end of the range to account for the high-handed actions of the Respondent and his disregard for court orders. She seeks an order for ongoing spousal support in the amount of $800 per month for an indefinite period, and an order for retroactive spousal support to date.

[ 39 ] Based on the Applicant’s calculations, I find that the Respondent owes arrears of spousal support for the period from separation to the end of September, 2012 of $23,664.

[ 40 ] The Respondent shall also pay spousal support to the Applicant of $800 per month commencing October 1, 2012.

[ 41 ] HEALTH BENEFITS

[ 42 ] The Applicant seeks an order that:

• the Respondent confirm that the children are maintained on his health benefits available through his employment
• the Respondent re-instate the Applicant on his health care benefits immediately as granted in the order of Rivard J. dated August 31, 2010
• Kirkland Lake Gold is hereby authorized to deal directly with the Applicant with respect to any health benefit claims she may have
• the Respondent reimburse the Applicant for medical expenses for the children in the amount of $4,444 and medical expenses for the Applicant in the amount of $4,059, for a total of $8,499.

She deposes that the Respondent has health benefits available through his employer, Kirkland Lake Gold. The order of Rivard, J. of August 31, 2010 required him to reinstate the Applicant on those. He did not do so. The children were kept on the plan, but he refused to sign the forms to allow for reimbursement of their expenses. Consequently, the Applicant says, she has incurred costs of $4,440 for the children and $4,059 for herself for things that would have been covered by the Respondent’s plan. Some of these were for items not covered by the accident benefits she got for the severe motor vehicle accident that she was in in July, 2008. In these circumstances, the Applicant’s requests are appropriate.

[ 43 ] COSTS

[ 44 ] The Applicant sought costs from the Respondent in the amount of $14,595 inclusive of fees, disbursements and HST, together with previous costs awarded in the amount of $3,000 plus taxes.

[ 45 ] The temporary order of Rivard J. of August 31, 2010 required the Respondent to pay $1,000 in costs to the Applicant, forthwith. The order of MacDonald J. of October 18, 2011 required the Respondent to pay costs of $2,000 plus HST. Counsel for the Applicant indicated that those remain outstanding in full.

[ 46 ] In addition, the Applicant’s counsel submitted a bill of costs for fees, disbursements and HST of $14,592.03. Taking into the account the bad faith demonstrated by the Respondent and the unreasonableness of his behaviour, in addition to other factors, I agree that the costs award requested is appropriate.

Justice James A. S. Wilcox

Released: September 17, 2012