ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-10-069112-00
DATE: 20120926
B E T W E E N:
GONZALO DOUNIS
In person
Applicant
- and -
PATRICIA JOHNSON
Respondent
HEARD: September 25, 2012
REASONS FOR JUDGMENT
VAN MELLE J.
[ 1 ] This is an uncontested trial. Although the respondent, wife, commenced her own application for divorce, which was joined with this action, she did not file any documents in response to the applicant’s application to contest the applicant’s claims. As a result, Justice Seppi ordered that this matter proceed as an uncontested trial.
[ 2 ] The parties commenced cohabitation in December of 2002; married August 14, 2004; separated February 1, 2009; reconciled June 28, 2009; and separated for the final time on December 7, 2009. There were no children of the marriage.
[ 3 ] The applicant claims:
A divorce;
An equalization of the parties’ net family property;
Spousal support.
[ 4 ] I am satisfied that there is no prospect of a resumption of cohabitation and that the parties have been separated for more than one year. A divorce judgment will issue.
EQUALIZATION
[ 5 ] The applicant claims $58,161.72. He seeks $9,000.00 for payments he made to the respondent’s Visa account during the marriage; $1,090.00 that he advanced to the respondent prior to the reconciliation; lawyer’s fees of $20,561.47 and rental payments he made during the first separation in the amount of $5,098.20. When I pointed out that it was unlikely that I would award the amount of the rental to him, he testified that during that same time period he made all the mortgage payments in the amount of $424.85 bi-weekly and property tax payments of $312.00 every 2 months.
[ 6 ] He is also seeking $9,247.00, the amount that the respondent received from the sale of the matrimonial home on the basis that he should have received all of the proceeds of sale from the home as he made the down payment of $45,000.00.
[ 7 ] Finally he seeks $13,165.00 which he says reflects the value of contents that he purchased after reconciliation and which were removed from the matrimonial home and retained by the respondent.
[ 8 ] Although the applicant produced a Financial Statement (dated May 10, 2010), he did not produce a Net Family Property Statement. According to the Financial Statement, the applicant’s net family property was zero as of the date of separation. There was no evidence before me as to the respondent’s net family property. It is therefore impossible for me to calculate an equalization payment. In any event, none of the amounts claimed would actually form part of an equalization calculation. I am, however, prepared to grant some of the relief.
[ 9 ] The applicant has proven that he paid $9,000.00 toward the respondent’s Visa account. He has also proven that he advanced $1,090.00 to the respondent prior to moving back in with her. He is entitled to receive these amounts back from her.
[ 10 ] He is not entitled to be reimbursed for rental payments made while he was out of the matrimonial home from February 1, 2009 to June 28, 2009. He would be entitled to receive half of the mortgage and property tax payments that he made during this time. At this trial he testified that he paid $424.85 bi-weekly toward the mortgage and $312.00 every 2 months for property taxes. However, at his criminal trial he testified that the respondent asked for a reconciliation because she was unable to make the payments with respect to the matrimonial home on her own and that the applicant had stopped making any payments when he moved into his own place. I am therefore not persuaded that the applicant made the mortgage and property tax payments during this time.
[ 11 ] He is not entitled to receive any more money on account of the matrimonial home. The $45,000.00 that he “invested” into the matrimonial home came from money that he received as a severance payment from Bell. It was received after the marriage. He did not put $45,000.00 toward the matrimonial home. He put $45,000.00 into an RRSP which he cashed in to use toward the purchase of the house. The amount that he actually put into the matrimonial home was $29,000.00 as he had to pay tax on the amount that he removed from the RRSP. In any event, as the money was used to purchase the matrimonial home, there is no legal basis upon which he can claim a repayment of this amount.
[ 12 ] He is entitled to receive one half of the value of the contents removed from the matrimonial home by the applicant. As this is an uncontested trial, the amounts that he has claimed as values for those items are not in question. There will be an order that the respondent pay to the applicant $6,582.50.
SPOUSAL SUPPORT
[ 13 ] The applicant claims spousal support in the amount of $300.00 per month based on the respondent’s annual income of $45,000.00. He claims that the respondent’s actions in having him charged criminally caused him to lose his job at Telus, a job that paid him $50,000.00 per year. He did not lose his job until June 10, 2011 because, he says, his criminal record did not come to the attention of his employers until that time. He was told that he was being dismissed for failing to properly do his job, although he testified that as far as he was concerned, the real reason was his criminal record. He testified as well, that as a result of his criminal record he was unable to secure employment that paid him as much as he earned at Telus. He is working now and earns $11.00 per hour which I calculate to be approximately $22,000.00 per year.
[ 14 ] The applicant did not have any spousal support guidelines calculations. I checked the guidelines and given the length of time that the parties were together, the applicant would be entitled to between $172.00 and $230.00 per month for three to six years if he could establish entitlement.
[ 15 ] The applicant takes the position that his criminal record is the fault of the respondent. He was charged with two counts of assaulting the respondent, one count of mischief to property, one count of assaulting police and during sentencing pled guilty to one count of breach of his bail conditions. I reviewed the transcript of the trial and throughout he totally denied that any of the events, except for the breach, occurred.
[ 16 ] Despite the applicant’s denials, the trial judge found that he preferred the evidence of the respondent and of the police officer. He was found guilty on all counts and sentenced to 30 months in jail. He appealed the decision to the Superior Court and his appeal was dismissed.
[ 17 ] I am mindful that the burden of proof in criminal matters is “beyond a reasonable doubt”. I am mindful as well that I cannot retry the applicant. There is no question that he acknowledged that he had breached his bail conditions in returning to reside with the respondent after he had been charged with assaulting her. He would have ended up with a criminal record in any event.
[ 18 ] I decline to order spousal support in favour of the applicant. The applicant’s criminal record and any consequences flowing from that record are of his own making.
[ 19 ] Regarding the applicant’s claim for legal fees, I cannot tell what part relates to the divorce proceeding and what part relates to the criminal case. As the applicant was found guilty of the criminal charges, he is responsible for those bills and cannot claim repayment from the respondent. As well, he already received an award of costs of $1,000.00 in connection with a 14(b) motion to transfer the respondent’s application to Brampton.
[ 20 ] The applicant is entitled to some of his costs for this application. I award him $3,000.00 for his costs in this regard.
[ 21 ] Therefore the following Orders will issue:
A divorce judgment is granted.
The respondent will pay to the applicant $16,672.50 plus costs fixed at $2,000.00.
Van Melle J.
Released: September 26, 2012
COURT FILE NO.: FS-10-069112-00
DATE: 20120926
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DOUNIS v. JOHNSON
BEFORE: JUSTICE VAN MELLE
COUNSEL: G. Dounis, in Person
REASONS FOR JUDGMENT
Van Melle J.
DATE: September 26, 2012