ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12-268
DATE: 2013-01-11
B E T W E E N:
Roseann Simmons
Meghan de Souza, for the Applicant
Applicant
- and -
Calvin Baranyk
Unrepresented
Respondent
HEARD: January 9, 2013,
in Thunder Bay, Ontario
McCartney J.
Decision
[1] This is an uncontested application whereby the Applicant (Simmons) requests the following relief from the Respondent (Baranyk):
Custody of the child Riley Calvin Baranyk born August 12, 1996 (16 years old)
Ongoing support for Riley
Support arrears for Riley and the child Toria Baranyk born November 24, 1993 (presently 19 years of age)
A restraining order against the Respondent
Exclusive possession of the jointly owned family home
Ongoing financial disclosure
[2] It should be noted that the Applicant withdrew her claim for support for herself.
[3] The facts are as follows: the parties are an unmarried couple who commenced their relationship in 1979. They have three children Lindsay Marie Baranyk born July 10, 1987, Toria Baranyk born November 24, 1993, and Riley Calvin Baranyk born August 12, 1996.
[4] The relationship might be called a “traditional one” - both parties working full time, the Respondent being the main bread winner and the Applicant being mainly responsible for the upbringing of the children.
[5] The parties separated on January 2, 2011. At that time a restraining order was issued against Baranyk not to be within 100 metres of the family home up to March 30, 2014.
Custody
[6] Riley has always lived with his mother (and father before separation) and apparently his father has not shown a lot of interest in him, which of course is unfortunate. There is no reason I can see why the Applicant should not have custody of Riley. Regarding access, the Applicant is willing to promote same if it is requested by her son, but suggested any arrangements regarding same may should be made directly between father and son. This appears to be a sensible solution to the access situation.
Support
[7] Since separation, the Applicant has been maintaining the family home on behalf of herself and her son Riley and Toria (who moved out of the family home in August 2011 and is now independent).
[8] The Applicant claims child support arrears (more correctly to back date support) from January 2011 to August 2011 for Toria, and from January 2011 to the present for Riley.
[9] The application was commenced August 24, 2012. The Applicant testified that she had not requested support from the Respondent before that time. Apparently Toria asked the Respondent to help him with school expenses, and the Respondent gave the Applicant $600.00 in May 2011 to pay for some of his bills, but no other discussions were held about money. Now, however, the Applicant testifies that the Respondent has lost his most recent job and is collecting Unemployment Insurance. Under these circumstances, while I am prepared to backdate support for Riley to September 2012, I am not prepared to do this for Toria, who by September 2012 was no longer entitled to child support.
[10] Regarding Riley’s support, since the Respondent’s income is not known at the present time, income will have to be imputed to him for the purpose of setting support. The evidence is that in 2009 he earned $7000.00, in 2010 $13,200.00, and in 2011 $19,100.00. For the purpose of imputing income, the Applicant felt that he was or could be making about $13.50 per hour working on home repairs in 2012. At 35 hours per week this would come out to about $24,570.00 per annum. I am prepared to base Riley’s child support on this imputed figure, which comes to $197.00 monthly.
Exclusive Possession of the Family Home
[11] The jointly owned family home was purchased in November 1989 for $65,000.00. The Respondent paid the down payment of 10 per cent and the rest was financed. The mortgage was paid off in 12 years.
[12] In November 2010 the parties took out a Northern Home Repair Program grant (N.H.R.P.) for $22,422.00. They did a great many repairs to their home with the money, most of which were accomplished before separation in 2011.
[13] The Applicant would like to continue to live in the family home exclusively if she could afford it. The alternative solution (a sale of the home) is not attractive because the N.H.R.P. loan is only forgivable at a rate of 10 per cent per year, so a sale now would trigger a large payment to N. H. R. P.
[14] The Applicant has suggested an order for exclusive possession until such time as the full forgiveness period under the N.H.R.P. has arrived. However, I do not feel that this can be done under the Family Law Act, since this is not a matrimonial home.
[15] Alternatively, the Applicant suggests that the Respondent has been unjustly enriched over the years due to her contributions to the home, and to the raising of the children, and so a sum should be set aside out of the Respondent’s share of the jointly owned premises for the Applicant i.e. a constructive trust, on condition that no sale could be made until the N.H.R.P. forgiveness date is arrived at. Along with this, a restraining order would have the same effect as an order for exclusive possession.
[16] The difficulty with this proposal is that the evidence does not show that the Applicant was unjustly enriched, and thus no constructive trust arises. As I mentioned earlier, this is a fairly typical common law relationship with each party contributing time and effort to maintaining a home, and raising a family. The Respondent was the main bread winner, the Applicant was mainly responsible for the children. Neither party seems to have benefitted unjustly from the effort they put into the relationship, and while it is unfortunate that it faltered the way it did, no consequences arose which would give rise to the suggested constructive trust based on unjust enrichment.
[17] Furthermore, the existing probation order prohibits the Respondent from attending within 100 metres of the home until March 30, 2014. It would not be just to extend this time in anticipation of possible difficulties one and one half years from now.
[18] Finally with respect to ongoing financial disclosure, it goes without saying that the Respondent should, on an annual basis, provide the Applicant with information relating to his annual earnings, and in particular a copy of his income tax return and notice of assessment when each becomes available for the preceding year.
[19] In the result an order will go as follows:
Custody of the child Riley Calvin Baranyk born August 12, 1996 to the Applicant.
Child support for Riley Calvin Baranyk to be paid by the Respondent to the Applicant in the amount of $197.00 monthly commencing September 1, 2012.
The claim for support arrears for Toria Baranyk born November 24, 1993 is dismissed.
The claim for a restraining order against the Respondent is dismissed.
The claim for exclusive possession of the jointly owned family home is dismissed.
On an annual basis the Respondent is to provide the Applicant with a copy of his income tax return and notice of assessment for the previous year when they become available.
[20] The Applicant has claimed costs in the amount of $2,000.00. Under the circumstances of this short uncontested trial I am prepared to award costs of $1,500.00 all inclusive.
The Hon. Mr. Justice J. F. McCartney
Released: January 11, 2013
COURT FILE NO.: FS-12-268
DATE: 2013-01-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Roseann Simmons
Applicant
- and –
Calvin Baranyk
Respondent
DECISION
McCartney J.
Released: January 11, 2013
/mrm