ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-95-11145-02
DATE: 2012-02-10
B E T W E E N:
MELISSA ANN CATHERINE BAZIUK
unrepresented
Applicant
- and -
BRUCE BRIAN BAZIUK
Randall V. Johns , for the Respondent
Respondent
HEARD: February 7 , 2012, at Thunder Bay, Ontario
Mr. Justice J.F. McCartney
Decision on Motion
[ 1 ] This is an uncontested motion to change (terminate) two orders – the first on order of Platana, J. of January 7, 2001, the second an order of myself dated February 23, 2004. The Motion itself was commenced August 31, 2010. The parties married March 10, 1984, separated for a time in 1992, reunited again in 1993 and then separated permanently in September 1995. They divorced on February 21, 1999.
[ 2 ] Under the Platana order of January 7, 2001, the Applicant, Melissa Ann Catherine Baziuk, (hereinafter referred to as Melissa) and the Respondent Bruce Brian Baziuk, (hereinafter referred to as Bruce Sr.) were to have joint custody of the four children namely, Leila Ann Marie Baziuk, born […], 1986 (25 years old), Kaila Catherine Doris Baziuk, born […], 1988 (23 years old), William John Brian Baziuk, born […], 1990 (21 years old), and Bruce Brian Baziuk born […], 1991 (20 years), hereinafter referred to as Bruce Jr.
[ 3 ] Day to day care and control of the children was to be with Melissa, and Bruce Sr. was to pay Melissa $1300 per month child support and $1000 per month spousal support based on Bruce Sr.’s annual income of $60,850.
[ 4 ] Under the McCartney order of February 23, 2004, since the two daughters Leila and Kaila were then living with their father, child support was reduced to $823 monthly for the support of William and Bruce Jr., who were still living with their mother. Both these support orders are up to date as of June 2010.
[ 5 ] Bruce Sr. was, at the time of the Platana order the manager of the family business known as Baziuk Rail Inc. – and his mother was the owner. However, over the period of time we are dealing with the business fell upon hard times and ceased operations in 2008. Bruce Sr.’s employment ended in January 2010. Since that time he has not worked, has been mostly living on cashing in RRSP’s, but has been working towards a university degree in social work and will hopefully soon graduate. He then should be able to find gainful employment.
[ 6 ] At the present time Bruce Sr.’s 2010 income was composed of a small last paycheck from Baziuk Rail Inc., plus $20,000 withdrawn from RRSP’s. He estimates his 2011 income will be about $20,000.
Child Support
[ 7 ] Leila and Kaila are not the subjects of this motion, but are apparently no longer children of the marriage in any event. Bruce Jr. apparently finished high school and at the present time lives with Melissa, works part time, and shows no sign of continuing with his education. Consequently he appears to be no longer a child of the marriage for the purposes of support.
[ 8 ] I am, however, concerned about William, who clearly is not able, due to mental difficulties to withdraw from his parents charge. Even though Bruce Sr.’s affidavit indicates he is well looked after financially by a combination of his Ontario Disability Pension and the support he receives from the Lutheran Community Center, I do not think those facts take him out of the category of “child of the marriage” as it is defined by the Divorce Act .
Spousal Support
[ 9 ] It appears that when the final separation of parties came in September of 1995, Melissa had all the children with her, and this situation continued right through until the McCartney order of February 23, 2004, when the two daughters went to live with Bruce Sr., leaving the two boys with Melissa. And from what I can gather, having William as a child even if he was, as is indicated, with the Children’s Aid Society for 2005 and with the Lutheran Community Centre from 2005 to 2009, and only with Melissa for 2010, a very large burden. So, even though Melissa appears to have had training in finance prior to her marriage, and even though she had work experience all through her marriage, one could not expect her to become self sufficient before 2004, nor has she had sufficient time, as Bruce has, to retrain for new jobs.
[ 10 ] So, in conclusion, I am not prepared to terminate spousal support for Melissa in the Platana order of July 5, 2001, nor am I prepared to terminate the child support for the child William in the McCartney order. However, I do recognize that at the present time Bruce Sr. is unable to pay little, if anything more than a nominal amount for support. Hopefully that will change in the future.
[ 11 ] In the result, then, an order is to go in the following terms;
a) Spousal support for Melissa Ann Catherine Baziuk as set out in the order of Platana, J of July 5, 2001 is to be reduced to $1.00 per month, commencing July 1, 2010.
b) Child support for the child William John Brian Baziuk as set out in the order of McCartney, J of February 23, 2004 is to be reduced to $1.00 be per month commencing July 1, 2010.
c) Child support for the child Bruce Brian Baziuk Jr. as set out in the McCartney order of February 23, 2004 is to terminate July 1, 2010.
Costs
[ 12 ] Although I am not disposed to order costs at present, costs may be spoken to if requested.
“Original signed”
The Hon. Mr. Justice J.F. McCartney
Released: February 10, 2012
COURT FILE NO.: FS-95-11145-02
DATE: 2012-02-10
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: MELISSA ANN CATHERINE BAZIUK Applicant - and – BRUCE BRIAN BAZIUK Respondent DECISION ON MOTION McCartney J.
Released: February 10, 2012
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