COURT FILE NO.: 028/11
DATE: 20121204
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
AMY DAWN BULLOCK-PEDDIE
Applicant
- and -
MARK LARRY ALBERT PEDDIE
Respondent
Julie Richard-Gorman, for the Applicant
Did not appear, unrepresented
HEARD: November 16, 2012
D E C I S I O N
WILCOX, J.
[1] The parties cohabited from October, 2006, were married June 6, 2009, and separated February 2, 2012.
[2] They have one child, Landon Nathaniel Bullock-Peddie born July 15, 2011, now age one.
[3] The Applicant mother’s application for divorce and corollary relief was served on the Respondent father personally on July 25, 2012, as appears from the affidavit of Burl Regan, a private process server, dated July 25, 2012.
[4] In the application, the Applicant described a situation in which she had taken care of their child, who the Respondent had been quite distant from. Landon is a hemophiliac, but the Respondent has shown little interest in the disease, its treatment, and Landon’s care.
[5] The Respondent has not responded nor participated in these proceedings in any way. Consequently, at the case conference held on September 7, 2012, a temporary order was made for the Applicant to have sole custody of Landon subject to the Respondent’s access at times agreed upon by the parties. The access was to be supervised to ensure that the child’s medical requirements are met. The matter was then referred to the trial coordinator to set a date for an uncontested trial, which took place on November 16, 2012.
[6] In addition to her Application, Affidavit in Support of Claim for Custody and Access, and Financial Statement, the Applicant filed a form 23C Affidavit For Uncontested Trial, with exhibits, dated November 6, 2012 and a form 14 Affidavit (general) of Jeannie Myers, with exhibits, dated November 9, 2012. This latter affidavit is not entirely proper. On its face, it appears that it was intended to be the Applicant’s affidavit, but was re-worded slightly and signed by Ms. Myers. Of particular note are Exhibits C and D which are said to be ledgers that the deponent kept for the Respondent in 2010 and 2011, respectively, for unreported cash payments that he received while employed cutting wood. However, the evidence showed that it was the Applicant who kept these ledgers, in fact. In addition, some of the income figures for the Respondent set out in the Applicant’s materials were not clear. In view of these shortcomings, the Applicant was required to give oral evidence to supplement and clarify the documentary evidence.
[7] Regarding her own income, the Applicant said that she was on maternity leave to the end of June, 2012. She then worked at Walmart to August 30, 2012. Since then, she has been a full time student in a nursing program, living with her son on OSAP.
[8] She said that the Respondent had paid $200 in child support since separation. She was content to apply it to February, 2012 and start a child support order as of March 1, 2012.
[9] She testified as to what the Respondent’s income had been prior to separation.
[10] In 2011, he had worked at Mid-Canada Fiberglass LTD. (MCFL) earning both reported and unreported income. The reported income is shown in his T-4 for 2011, found in Exhibit B to the Affidavit of Jeannie Myers, as $27,138. The Applicant said that he had worked an additional 40 to 60 hours per month for MCFL at $17 per hour. Taking the mid-point of 50 hours per month, that would generate $10,200 per year.
[11] The Applicant testified that the Respondent worked for his cousin, Daniel Peddie, in the months of September, October and November cutting wood. She estimated his earnings from this at $7,000 to $8,000 per year. She identified the above-mentioned Exhibits C and D in Jeannie Myers’ affidavit as records that she had kept because the Respondent had wanted to know how much money he made each year so that he would know what money he had to buy a truck. The “Paid” column showed what he had received. Exhibit C, for 2010, totaled $7,780. Exhibit D, for 2011, totaled $7,970.
[12] As further support for these numbers, she pointed to Exhibit E of Jeannie Myers’ affidavit, a MasterCard statement, saying that it showed in highlighted entries money the Respondent had paid on this account from cash earnings, rather than depositing those earnings into a bank account where they could be traced. This was said to be in addition to any cash he had kept for spending. I calculated that these highlighted entries totaled $8,450 for 2011.
[13] The Respondent had also received Employment Insurance benefits for November and December, 2011, the Applicant said. Exhibit A in Jeannie Myers’ affidavit shows the Respondent’s T-4E for 2011 showing such benefits in the amount of $3,855.
[14] The Respondent was said to have undeclared income from the owner of two bars where he had worked since 2008 and was the head bouncer, working eight hours per weekend at $12 per hour, three to four weekends per month. Taking the midpoint of 3.5 weekends per month, I calculate income of $4,032.
[15] The Applicant said that she had seen this pattern of income earning continue into 2012 during their co-habitation prior to the February 2, 2012 separation.
[16] She said that he qualified for Employment Insurance until September of 2012, he continued to work for his cousin, Daniel Peddie, cutting wood and renovating an apartment, he had worked the bars each weekend, and he had worked some days for MCFL for cash. Indeed, MCFL had contacted the Applicant wanting to know where to find the Respondent who was not answering calls. It wanted to get him back to work.
[17] The Applicant explained that the Respondent had underreported his income so as to avoid paying child support for another child that he has from a previous relationship.
[18] Including the Respondent’s reported income for 2011 and an estimate of his unreported income based on the Applicant’s evidence, I calculated that the Respondent’s 2011 income was $52,867. The Applicant had estimated that it was roughly $45,000. I will accept her number for child support purposes. The child support tables for one child at that income give $406 per month.
[19] The Applicant was content with splitting special or extraordinary expenses 50/50 despite the Respondent’s greater income.
[20] The Applicant claimed a net property family equalization of $11,059.36 based on her Net Family Property Statement attached to her affidavit for uncontested trial. However, that statement gave her net family property as a negative number, which the Family Law Act does not allow. Putting her net family property at zero produces an equalization payment of $475 to be made by the Respondent to the Applicant.
[21] The application included a request for divorce and the grounds of separation. However, the one year anniversary of the separation has not passed yet. Once it has, the Applicant may move for an uncontested divorce.
[22] The Applicant’s counsel sought costs of $1,000, inclusive of all fees, disbursements and HST, including preparing documents and preparing for and attending both the case conference and the trial. As disbursements alone were $186.56, that is a reasonable amount.
[23] Therefore, an order shall go as follows:
The Applicant shall have custody of the child Landon Nathaniel Bullock-Peddie, born July 15, 2011.
The child shall have reasonable access to the Respondent, supervised by the Applicant or another responsible adult.
The Applicant is authorized to apply for a passport for the child without the consent or signature of the Respondent.
a) Starting on March 1, 2012 and on the first day of each month thereafter, the Respondent (hereinafter referred to as the “Payor”) shall pay to the Applicant (hereinafter referred to as the “Recipient”) support for the child in the monthly amount of $406 for Landon Nathaniel Bullock-Peddie, born July 15, 2011.
b) The annual gross income of the Payor is imputed to be $45,000.
c) This amount is in accordance with the Child Support Guidelines.
d) The Payor shall also pay the Recipient 50 percent of the special and extraordinary expenses related to the child, within 14 days of being provided with receipts by the Recipient.
The Respondent shall pay an equalization payment to the Applicant in the amount of $475 on or before March 1, 2013.
The Applicant may file for an uncontested divorce once the one year anniversary of the separation has passed.
The Respondent shall pay to the Applicant costs of $1,000 forthwith.
Justice James A. S. Wilcox
Released: December 4, 2012