ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-12-0160-00
DATE: 2013-03-11

B E T W E E N:

Susan Rae McDaid O’Kane

Randall Johns, for the Applicant

Applicant

• and -

James Joseph O’Kane

Self-represented – did not appear.

Respondent

HEARD: February 26, 2013,
at Thunder Bay, Ontario

Mr. Justice F. B. Fitzpatrick

Reasons For Judgment on Uncontested Trial

1On November 29th, 2012, the applicant moved for an order that this matter proceed by way of an uncontested trial. Justice Fregeau granted that order. On February 26th, 2013, this matter proceeded as an uncontested trial. The respondent did not file an answer in this matter and did not appear at trial.

2During the trial, the court received both the affidavit evidence of the Applicant and her vive voce testimony.

3The issues to be resolved are as follows:

1. Granting these parties a divorce;

2. What is the Respondent’s income for the purposes of any child support or spousal support award that may be given in this matter;

3. Whether James Joseph O’Kane (date of birth June 24, 1991) is a child of the marriage within the meaning of the Divorce Act 1985, S.C. 1986 (the “Divorce Act”) or is entitled to be supported pursuant to the Family Law Act R.S.O. 1990 c. F-3 (as amended) (the “Family Law Act”) such that the Respondent is required to pay retroactive and ongoing child support for him;

4. Whether the Applicant is eligible for spousal support to be paid to her by the Respondent under the Divorce Act or the Family Law Act;

5. The amount of any equalization payment owed by either party;

6. Should the matrimonial home be sold either to satisfy any child or spousal support award or to satisfy an equalization payment.

Background

4The Applicant and Respondent were married on December 1st, 1990. They had lived together since September 1989. They separated April 15, 2011. The Applicant is now 53 and the Respondent is 51 years of age.

5There were two children of this relationship. Carrie is now 25 and independent. The Applicant makes no claim in respect of Carrie. The second child was James Joseph O’Kane (James) who is now 21 years old.

6The parties had a relatively traditional marriage. The Applicant returned to work full time once James started Grade One. The Applicant provided the bulk of child care as the Respondent was an iron worker and frequently had to go outside of the Thunder Bay area to pursue his trade. The Applicant has been employed for 15 years as a Registered Practical Nurse with St. Joseph’s Care Group here in Thunder Bay. She holds a secure position.

7This application was commenced on May 22nd, 2012. While the Respondent did not file an answer, he did file some financial disclosure by way of a financial statement dated August 2012 which attached a pay stub for 2011 and a summary of an income tax filing for 2010.

Divorce

8The parties have lived separate and apart for more than one year. Ms. O’Kane satisfies the residency requirement of the Divorce Act. There is no possibility of reconciliation. There has been no agreement, conspiracy, understanding or arrangement for the purpose of subverting the administration of justice, fabricating or suppressing evidence or deceiving the court. The evidence before me indicates that the provisions of the Divorce Act have been met. A Divorce order shall be issued.

The Respondent’s Income

9Despite the Respondent’s failure to provide complete financial disclosure, the disclosure he did make, in my view, allows an income to be attributed to him for the purposes of this decision. In 2010, the Respondent reported a gross annual income of $111,381.82. A pay stub for 2011 for the week of February 5th to February 10th was placed in evidence. In that week, he worked 40 hours and earned $2,423.63. Extrapolating that week to obtain an annual income for 2011 would indicate an annual income of $126,028.76.

10A 2012 pay stub for the week of July 27th to August 2nd was provided to the court. In that week, the Respondent worked 40 hours and earned $2,454.54. Extrapolating the earnings of that week to obtain an annual income for 2012 would indicate an annual income of $127,636.08.

11The Applicant argues that based on the above evidence, it is appropriate to attribute an annual income to the Respondent for all times relevant to matters at issue in the amount of $125,000.00. I agree, and this amount shall be utilized for the purpose of determining an obligation for support as discussed below.

Retroactive and Ongoing Child Support for James

12Section 31 of the Family Law Act is as follows:

31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so. R.S.O. 1990, c. F.3, s. 31 (1); 1997, c. 20, s. 2.

Idem

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control. R.S.O. 1990, c. F.3, s. 31 (2).

13At the time the within application was commenced, James was no longer a minor and was not attending a program of full time education. Accordingly, the Respondent cannot be required to pay the Applicant child support pursuant to the provisions of section 31 of the Family Law Act. However, that does not end the matter. There is still a possibility for entitlement under the provisions of the Divorce Act.

14Section 2(1)(b) is as follows:

2. (1) In this Act,

“child of the marriage” means a child of two spouses or former spouses who, at the material time,

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;

15The Applicant gave evidence about James’ drug addiction. The Applicant argues this makes James disabled and unable to withdraw from the care of the Applicant or to obtain the necessaries of life.

16The Applicant testified that James’ problems with drugs, and particularly cocaine, caused him to quit school in 2007 before he finished Grade 9. A drug treatment program was undertaken by James. After that program of treatment, in 2008, he started working in the ironworking trade, like his father. He continued to do this until March of 2012. During this time, he moved away from home and rented his own place in Marathon “for a couple of months” according to the Applicant. During this time he would come home on weekends.

17In March 2012, James went to Edmonton to work with his father. This arrangement lasted all of one week. According to the Applicant, the Respondent provided James with cocaine. James could not handle this and returned home to Thunder Bay and entered a treatment program. He has not worked since.

18He is now taking methadone and is doing sufficiently well in treatment that he is eligible for six day “carries”, meaning he is not required to attend daily at a methadone clinic, which indicates a degree of success in his treatment.

19According to the Applicant, James is not actively seeking to re-enter a program of full time education and is “not working hard on his school”. He indicates a desire to return to the work force as an ironworker, something the Applicant says he always wanted to do, but is concerned if he makes money, he will not be able to resist the temptation to spend it all on cocaine.

20The Applicant acknowledges that no support would be payable up until March 2012. However she is seeking an order for retroactive support, pursuant to the Child Support Guidelines for the period March 2012 to date, and ongoing.

21In my view, the evidence presented at trial was not sufficient for me to make a finding that James is presently, or was at any material time for this application, a child of the marriage within the meaning of the Divorce Act. While it is clear that in some circumstances a drug addiction can constitute a disability or illness, based on the evidence presented in this matter, I cannot conclude that James’ condition prevents him from withdrawing from the charge of his mother, or otherwise prevents him from obtaining the necessaries of life.

22There was no evidence at trial how much James was making while employed from 2008 to 2012. It was indicated by the Applicant that he was working as an ironworker. We do have evidence of the Respondent’s income of being in excess of six figures, although admittedly, he was a long serving member of that trade. Given the length of time James worked, I can only assume that he was making good money during that period in absence of any evidence to the contrary. Also, his express fear of returning to the trade because he perceives he will be making sufficiently good money to indulge a cocaine habit, leads me to believe, that the ironworker trade was lucrative and well paying for a person of James’ age and experience.

23Counsel referred me to the decision of the Manitoba Queen’s Bench, Flynn v. Daoust, 2012 MBQB 295. That case involved a 23 year old person who struggled with a drug addiction and related mental health issues. The person had not been employed for 3 years prior to trial. He had been admitted to psychiatric wards for treatment four times between March 2009 and September 2011 and, at the time of trial, was under the care of a psychiatrist. The person was attending a centre of learning where he was training to become independent. The person was found to be a child of the marriage within the meaning of the Divorce Act.

24In my view, any issue of a determination as to whether or not a person is a child of the marriage is very fact specific. I am also not bound by the decision in the Manitoba case and I believe the case can be distinguished on the facts of this case, as there was not sufficiently persuasive evidence provided here of the nature of the alleged illness or disability other than the very broad assertion that James was, and is, a drug addict.

25In my view, his four year work history, coupled with his apparent lack of interest in pursuing a program of full time education would make it inappropriate for the Respondent to be required to pay child support for James for the period March 2012 to date of this trial as was requested by the Applicant. The Applicant’s claim for retroactive and ongoing child support for James is hereby dismissed.

Retroactive and Ongoing Spousal Support

26Based on the evidence presented about the family history as set out above, in my view, the Applicant has established an entitlement for spousal support. This was a lengthy marriage where the Applicant took responsibility for the majority of the child rearing. While she does have a good career now, there was evidence of her economic dependence on the Respondent and the fact that she has suffered economic hardship on the breakdown of the marriage. The Applicant testified the family organized their affairs on the basis that her salary covered the day to day expenses of the house, and the Respondent paid the mortgage. The parties owned several homes and always “traded up” and increased their mortgage debt when they sold.

27The Respondent stopped paying the mortgage on the house in October 2011. From that time forward, the wife has covered most of the mortgage, although she admitted he did pay some of the mortgage cost once he was so ordered in July 2012. Since that time he has paid $2,866.38 in 2012 and $956 in 2013. Regardless, the Applicant has had to go in to debt to cover her expenses, the expenses for the mortgage, and expenses for James.

28In my view, the Applicant has satisfied me that the condition, means, needs and other circumstances of the parties is such that the Respondent should pay spousal support to the Applicant. The order for spousal support will commence in October 2011, as this was the time when the economic bargain that had been present for the latter years of the marriage was “broken” by the Respondent.

29In terms of quantum, the income of the Applicant is found to be $55,622.00 for 2012. The Applicant has not filed her income tax return for 2011. For the purposes of spousal support, I accept the submissions of the Applicant that the Respondent’s annual income will be fixed at $125,000.00 for 2012 and ongoing. Counsel for the Applicant provided the court with Divorce Mate calculations for support based on the Applicants 2012 income and the Respondent’s income of $125,000.00. In this matter, I find it appropriate to set the quantum at the high end of the range, $2,313.00 per month commencing November 1st, 2011 and ongoing. A credit for retroactive support will be given in the amount of $2,866.38. I have set the matter to the high side based on the additional expenses that Applicant has had to incur as the result of care for James. The amount may be reviewed upon James leaving home but the order will be for unspecified duration unless modified upon review.

30Accordingly arrears of spousal support are set at $33,185.62 (16 months X $2,313 - $3,822.38) and an order shall issue requiring the Respondent to pay the Applicant this amount.

Equalization

31Based on the financial statements filed by both parties, the Applicant prepared and filed a net family property statement at this trial. I accept that statement as an accurate reflection of the parties respective positions on the date of separation. The Respondent’s pension valuation was provided by Ontario Ironworkers/Rodmen benefit plan administration corporation on the basis of the provisions of the Ontario Pension Benefits Act R.S.O. 1990 c. P. 8, and Regulation 287/11. The Applicant’s pension value was included in the NFP. The matrimonial home value was divided between the parties on the net family property statement. The NFP indicated a payment by the Respondent to the Applicant in the amount of $124,622.50.

32Accordingly, I find that the Respondent is to pay the Applicant the sum of $124,622.50 in order to satisfy the Applicant’s entitlement to equalization pursuant to section 5 of the Family Law Act. Once this amount is paid, the parties shall be deemed to have equalized their respective net family properties and no further obligations will be owed pursuant to section 5 of the Family Law Act.

33The Respondent’s employment pension is by far the most significant asset owned by the parties on the valuation date. The vast majority of its value was accrued between the date of marriage and the date of separation. It appears from the review of the net family property statement that the only method by which the Applicant will realize her entitlement to an equalization payment is to obtain same by way of an immediate court ordered lump sum transfer of pension benefits at source, pursuant to sections 5, 7, 9 and 10.1(3) of the Family Law Act and sections 67.3(1) of the Pensions Benefits Act. An order shall issue accordingly. It shall contain the following terms:

1. The Applicant Susan Rae McDaid O’Kane, and the Respondent James Joseph O’Kane, were married on December 1, 1990;

2. The Applicant and the Respondent separated on April 15, 2011 and April 15, 2011 is the valuation date for the purpose of an equalization of their net family properties including equalization of James Joseph O’Kane’s benefits in the Ontario Ironworkers/Rodmen benefit plan;

3. It is ordered that the Applicant has an interest in the Ontario Ironworkers/Rodmen benefit plan of the Respondent in the amount of $124,622.50. The total value of the benefits assigned to the Applicant must not exceed 50 per cent of the imputed value for family law purposes of the pension benefits;

4. The Ontario Ironworkers/Rodmen benefit plan administration corporation is hereby ordered and directed to assign to the Applicant Susan Rae McDaid O’Kane $124,622.50 of pension benefits accumulated by James Joseph O’Kane between the date of marriage (December 1, 1990) and the valuation date (April 15, 2011) as permitted by sections 67.3 of the Pension Benefits Act;

5. The Applicant shall provide a copy of this court order to the Ontario Ironworkers/Rodmen benefit plan together with her written request to complete a division of the Respondent’s pension benefits as ordered herein;

6. Subject to the terms of the Ontario Ironworkers/Rodmen benefit plan and the Pension Benefits Act, the Applicant may direct the Ontario Ironworkers/Rodmen benefit plan to transfer her pension benefits, or the commuted value thereof, into her Registered Retirement Savings Plan or another allowable locked-in savings vehicle, or may leave the funds in the plan if the administrator agrees.

34I may be spoken to within 30 days of this order if there are additional terms required in this order to carry out the intent of this section of the judgment.

Sale of the Matrimonial Home

35Since separation, the Applicant indicated that the value of the matrimonial home has appreciated to $230,000.00. She testified that the equity in the home at present is in the order of $61,462.00. She asks for an order for sale of the matrimonial home. She required an order to amend her pleading to request this relief and it is so granted.

36The Respondent lives in Alberta and has done so since before the parties separated. In my view, it is unlikely that the Respondent will cooperate in the sale given his failure to continue to pay the mortgage post separation and his failure to continue to pay the amounts ordered to be paid pending trial. In the circumstances, it is appropriate that the house be listed for sale immediately at a price to be determined by the Applicant. The signature of the Applicant alone shall be sufficient for the purposes of listing the property for sale with a realtor, accepting any offer to purchase, and executing any and all conveyancing documents necessary to transfer the interests of the parties in the home to a purchaser.

37The proceeds of sale shall be applied firstly to discharge any encumbrances on the home, and thereafter, to pay any real estate commission and legal fees owing on the sale. Thereafter, the net proceeds of the sale shall be divided between the parties subject to the following charge: the Respondent’s obligation to pay the Applicant arrears of spousal support of $33,185.62 shall represent a first charge on the Respondent’s share of the net proceeds of sale of the matrimonial home.

Costs

38This matter was relatively straight forward. A trial was necessitated due to the Respondent’s failure to participate in the process. Accordingly, in my view, it is appropriate that the Applicant have her costs of this matter. Costs shall be payable by the Respondent to the Applicant fixed in the amount of $5,500.00.

39Based on this judgment, the Applicant shall prepare a draft order to be filed for my approval prior to it being issued. Once issued, the order shall be served personally on the Respondent and proof of service shall be filed with the court.

The Hon. Mr. Justice F.B. Fitzpatrick

Released: March 11, 2013

COURT FILE NO.: FS-12-0160-00
DATE: 2013-03-11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Susan Rae McDaid O’Kane

Applicant

• and –

James Joseph O’Kane

Respondent

REASONS FOR JUDGMENT

Fitzpatrick J.

Released: March 11, 2013

/mrm