ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-12-5231

DATE: 2013-06-21

B E T W E E N:

Debra Lynn Mary Broman

Mark Van Walleghem for Applicant

Applicant

• and -

Timothy Dark

Not Represented

Respondent

HEARD: June 18, 2013 in Kenora, Ontario

Mr. Justice J.S. Fregeau

Judgment

Introduction

1This application was brought by the applicant under the Family Law Act, R.S.O. 1990. The respondent, Timothy Dark, has never filed an Answer, Claim or Financial Statement. Pursuant to the Temporary Order of Platana J. dated January 31, 2013, made at the Case Conference, the respondent was ordered to provide a Financial Statement and current income information by February 28, 2013, failing which the applicant was given leave to obtain a date for an uncontested trial.

2A copy of this order was served on the respondent as required. The respondent failed to comply with the order. The applicant therefore scheduled this hearing and the matter has proceeded on an uncontested basis in the absence of the respondent.

Background

3The only evidence called at the hearing was that of the applicant, Ms. Debra Broman. Ms. Broman testified that she and the respondent began to live together in a common law relationship in 2004 in Balmerton, Ont. Ms. Broman and the respondent resided in a home owned by her. This home was sold on August 12, 2004. From the sale proceeds, the mortgage registered against the home was paid off, as were two personal debts of the applicant. Ms. Broman received net sale proceeds of approximately $11,000.00 and was debt free at this time.

4Ms. Broman testified that the net sale proceeds she received from the sale of her Balmerton residence were used by her and the respondent for various household purposes over the next several years until exhausted.

5Approximately seven years ago, the parties moved to Ignace, Ontario. In 2007, the parties purchased a residence at 416 Colley Street, Ignace, Ontario. This home, described legally as Parcel 32321, Lot 71, Plan M671, District of Kenora, was registered in the names of the applicant and respondent as joint tenants. The home was purchased for $35,500.00; the mortgage registered against the property at the time of purchase was in the principal amount of $34,703.00.

6In evidence, the applicant testified that the approximate current market value of this home is $32,000.00. The applicant filed a mortgage statement showing that the current outstanding balance on the mortgage is $19,401.23.

7The applicant testified that she and the respondent separated on May 16, 2011. At this time, the respondent vacated the jointly owned Ignace residence and moved to Thunder Bay. The applicant has remained in the home. The applicant testified that prior to separation the parties contributed jointly to the mortgage payments and all other usual costs of the home. Since separation, the applicant alone has paid the mortgage, all utility accounts and the taxes on the home, without contribution from the respondent.

8The applicant filed a copy of her 2012 T1 General Income Tax Return. This return confirmed the applicant’s 2012 income at $26,209.00, being $16,110.00 employment income and $10,099.00 employment insurance income. The applicant testified that since moving to Ignace with the respondent, she has worked seasonally in tourist camps and received employment insurance in the off season. She testified that her past income has been similar to 2012 and that she anticipates her 2013 income will be about $26,000.00.

9The applicant testified that the respondent is in his early 50’s and that he has worked as a truck driver during the course of their relationship. The applicant filed a copy of the respondent’s 2010 Notice of Assessment, which confirms his income in that year at $58,101.00. The applicant also filed a copy of a Superior Credit Union statement for a bank account held jointly by the parties during cohabitation, but utilized solely by the respondent since separation. This statement confirms payroll deposits of the respondent in the net amounts of $1,820.98 and $1,700.13 on March 8, 2013 and March 22, 2013 respectively. The applicant submits that this confirms a current net income of approximately $40,000.00 per year for the respondent.

10The applicant testified that while they lived together, she and the respondent pooled their income and jointly contributed to all the usual household expenses. The parties both had vehicles and were able to meet all expenses as they came due, albeit living from pay cheque to pay cheque. Since separation, the applicant has received no financial assistance from the respondent. The applicant’s car broke down and she has not been able to repair or replace it. The applicant testified that she barely meets her expenses, which she has reduced as much as possible. She still finds herself behind on credit card payments and real property taxes.

Relief Sought

11Essentially, the applicant is asking this court to provide her with sole ownership of the jointly owned residence. The applicant submits that the court has jurisdiction to do so by ordering the respondent to pay lump sum spousal support to the applicant in an amount equivalent to the respondent’s share of the equity in the jointly owned residence and then vesting title to the jointly owned residence in the name of the applicant alone in satisfaction of the spousal support debt.

12The applicant also seeks costs of this application in the very modest amount of $1,600.00 inclusive of fees, disbursements and HST.

Discussion

13I am satisfied that the applicant is entitled to spousal support from the respondent. The applicant was financially dependent on the applicant during the common law relationship. The applicant’s standard of living has decreased since separation. The respondent has chosen to ignore this court process and has provided no financial information as to income or expenses. The evidence of the applicant as to the respondent’s past and current income satisfies me as to his ability to pay a modest amount of spousal support. The applicant is entitled to some transitional financial assistance from the respondent.

14I am persuaded that the specific relief sought by the applicant is fair, equitable and available in the circumstances. Pursuant to the un-contradicted evidence of the applicant, the total equity in the jointly owned residence is approximately $13,000.00; the parties respective shares being $6,500.00. The SSAG suggest, at the respective income levels disclosed in the evidence, being $58,000.00 for the respondent and $26,200.00 for the applicant, that the respondent should pay spousal support to the applicant within the range of $238.00 to $318.00 per month for a duration of three to six years.

15Spousal support of $238.00 per month, the low end of the range, for a period of three years, the shortest duration suggested by the SSAGs, would translate into total support of over $8,500.00, an amount in excess of the respondent’s equity in the home.

16The Family Law Act, R.S.O. 1990, section 34(1)(c) provides that in an application for support under section 33 of the Act, a court may make a final order requiring that property be transferred to or in trust for or vested in the dependant, whether absolutely, for life or for a term of years.

Conclusion

17I order the respondent, pursuant to sections 33 and 34 of the Family Law Act, pay to the applicant spousal support in the lump sum of $6,500.00 forthwith. The applicant requests this debt owed to her by the respondent be satisfied by her purchase of the respondent’s interest in the jointly owned Ignace residence for an identical amount. I am satisfied that this is appropriate.

18I order that a vesting order issue, vesting full title in 416 Colley Street, Ignace, Ontario, legally described as Parcel 32321, Lot 71, Plan M671, District of Kenora, in the name of the applicant, Debra Lynn Mary Broman and removing the respondent, Timothy Dark, from title. Upon registration of this vesting order, the respondent’s spousal support obligation to the applicant shall be satisfied.

19The respondent shall pay to the applicant costs of this application fixed at $1,600.00, inclusive of fees, disbursements and HST, forthwith.

The Hon. Mr. Justice J.S. Fregeau