Tina Anne Riley v. Darren Daniel Riley, 2013 ONSC 4380

SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 07-6801M

DATE: 20130625

RE: Tina Anne Riley v. Darren Daniel Riley

BEFORE: Fragomeni J.

COUNSEL:
Glenna G. McClelland, for the Applicant
No one appearing for the Respondent

HEARD: June 14, 2013

E N D O R S E M E N T

1This matter was heard before me on Friday, June 14, 2013. Mr. Darren Daniel Riley was served with the following documents on April 18, 2013:

Name of Document

Author (if applicable)

Date when document signed, issued, sworn, etc.

Notice of Motion (summary judgment)

Tina Anne Riley

April 17, 2013

Affidavit

Tina Anne Beckenhauer (formerly Riley)

February 7, 2013

Affidavit

Kimberly Martini

February 13, 2013

14B: Motion Form (without notice)

Tina Anne Riley

March 19, 2013

Affidavit

Kimberly Martini

March 19, 2013

Affidavit

Kimberly Martini

March 20, 2013

Order (red seal original)

Hon. Justice A. Skarica

March 21, 2013

2Service of all of these documents was effected by mail at 15-119 Spring Road, Keswick, Ontario L4O 2K4, being the address of service on Darren Daniel Riley pursuant to the Final Order of the Honourable Justice Skarica dated March 21, 2013. The Affidavit of Service is filed with the Court and it is sworn April 18, 2013.

3On May 28, 2013 a further Affidavit, sworn May 27, 2013 by the Applicant wife, was served on the Respondent husband as evidenced by the Affidavit of Service sworn May 28, 2013.

4The wife’s Notice of Motion for Summary Judgment is at Tab 29 of the Continuing Motion Record and it sets out the relief requested. The wife filed in support of her Notice of Motion, her Affidavit sworn February 7, 2013 at Tab 30; the Affidavit of Kimberly Martino, an employee at Glenna G. McClelland’s office sworn February 13, 2013 at Tab 31, and the wife’s Affidavit sworn May 27, 2013 at Tab 32 of the Continuing Record.

5Mr. Riley did not file any responding material to the wife’s motion for Summary Judgment nor did he appear at the motion on June 14, 2013.

6I have read the Affidavits filed and heard submissions of counsel with respect to the relief requested.

7Rule 16(1) of the Family Law Rules states:

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1).

Rule 16(6) states:

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. O. Reg. 114/99, r. 16 (6).

Rule 16(2) and (3) states:

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. O. Reg. 114/99, r. 16 (2).

(3) In a case that includes a divorce claim, the procedure provided in rule 36 (divorce) for an uncontested divorce may be used, or the divorce claim may be split from the rest of the case under subrule 12 (6). O. Reg. 114/99, r. 16 (3).

8By order dated September 12, 2008 of the Honourable Madam Justice Seppi, on consent, the divorce was severed from the corollary issues. A Divorce Order was granted by the Honourable Mr. Justice Belleghem on March 27, 2009.

9I have read and considered the Affidavit material filed.

Background

10The wife is 39 years of age and the husband is 42 and they commenced cohabiting together in April 1977. They were married May 2, 1998 and separated May 4, 2006.

11There are two children of the marriage, namely, Vanessa Joy Riley born September 23, 1998 and Shea Rayanne Riley born April 4, 2001.

12The children have resided with their mother since the date of separation on May 4, 2006. The children are settled in the community in which they live. The wife has remarried and has a child in that new relationship.

13In her Affidavit sworn February 7, 2013 the wife sets out the sporadic and infrequent access by the husband as follows at paragraphs 22 to 35:

22. The Respondent had some consistent access until early 2010 when he was between jobs or working in the area. That has changed.

23. Even when he was having regular access he usually took the children to a rented cottage in the Port Elgin area or to his parents’ home in Schreiber, Ontario. I did not know his permanent address and he refused to tell me. In fact he have me incorrect addresses. I refer to my addifavit sworn March 8, 2011 at C.R. Vol 2, Tab 23, pars. 28-44.

24. He used to maintain fairly regular telephone contact with the children. He has sporadic telephone contact with the children by his choice.

25. The Respondent was incarcerated for a period of time in 2009 for drinking and driving (second offence and incarceration).

26. The Respondent was incarcerated for a period of time in 2010 for unpaid speeding tickets. I learned that he had in excess of 100 speeding tickets.

27. The Respondent was incarcerated for a period of time in 2012. I do not know why or whether it was relevant to access with the children.

28. When the Respondent is incarcerated he does not tell me or the children in advance; he simply ends any contact for a period of time.

29. By August, 2009 the Respondent had lost his driver’s licence. I learned that he had no licence when I called police because he was more than 24 hours late returning the children from access and I could not locate him and the children. The police followed him to my home and asked me if I knew his licence was suspended. The Respondent denied it until the police arranged for his vehicle to be towed from my residence. At that point he admitted his driver’s licence was suspended.

30. I have never been informed that he has his driver’s licence back. I have not let him drive with the children since.

31. In 2011 the Respondent saw the children 4 times at most.

32. In 2012 the Respondent saw the children once and sent a few emails to them. He requested a visit at Christmas, 2012, however, children refused as he is to have them on alternate Christmases and 2012 was not “his” year.

33. In 2011 children travelled with the Respondent to visit his parents in Schreiber, Ontario for a week. They were hesitant to go and upon their return complained about the visit and that their father was often absent and spent a lot of time communicating with a girlfriend. When I called to speak to the children the Respondent’s mother refused to let me speak to them. The Respondent was not driving at that time.

34. In 2012 the Respondent first contacted the children in early May and said he wanted access on May 12. Arrangements were made, however, the respondent did not show up. Vanessa called him and he advised that he would not be coming because his friend’s son had been injured and taken to hospital. Vanessa contacted him by text later in the day and learned that he had attended a birthday party that day. He told her he was sleeping that night to go out west to work for a few weeks.

35. The Respondent has attempted to explain to the children his failure to communicate with them by saying that he is working offshore and the communications have been ‘down’.

14Both the wife and the husband have certificates in non-destructive testing.

15The husband’s income for the past three years has been as follows:

a. 2009 $114,391.00 - $2,021 union = $112,370.00 tax return and Notice of Assessment attached as Exhibit “E”;

b. 2010 $455 union = $103,709.00 including $16,270.00 in RRSP income Tax return attached as Exhibit “F”. (He was incarcerated for part of the year)

c. not produced. I seek attribution of $114,391.00 for 2011 and 2012.

16The wife’s income has been:

a. 2009 $124,609.00 - $874 assumed union = $123,735.00 Notice of Assessment attached as Exhibit “G”:

b. 2010 $102,876.00 - $874 assumed union = $102,002.00 attached as Exhibit “H”;

c. 2011 $68,945.00 attached as Exhibit “I” employed 9 months mostly non-union;

d. 2012 $103,868.00 - $1,022.00 = $102,848.00. Final paystub attached as Exhibit “J”.

17On this basis the wife calculates what the husband should have been paying for child support as follows at paragraphs 48 of her February 7, 2013 Affidavit:

The Respondent should have been paying child support:

a. For 2009 in the amount of $1,567.00 per month and 48% of s. 7 expenses. A copy of the support calculation is attached as Exhibit “K”;

b. For 2010 in the amount of $1,461.00 per month and 50% of s. 7 expenses. A copy of the support calculation is attached as Exhibit “L”;

c. For 2011 in the amount of $1,592.00 per month and 62% of s. 7 expenses. A copy of the support calculation is attached as Exhibit “M”;

d. For the Respondent’s 2011 income I used my income for 2011 calculated as though I had worked full time for the year.

e. For 2012 in the amount of $1,592.00 per month and 53% of s. 7 expenses. A copy of the support calculation is attached as Exhibit “N”;

f. For 2012 I used my 2012 income from my final pay stub. The pay for the last incomplete pay period in December each year appears on the following year’s income. I assumed that the Respondent earned as much as I did for 2012.

18All of the support orders were filed with FRO. The wife sets out the payments she received as follows:

1. In April or May 2011 she received a support payment of $7,000.00.

2. In December 2011 she received $986 and $100 in August 2012.

3. In December 2012 she received $5,000 from FRO. This was the first support payment since $100 was paid in August 2012. The wife deposes that she has received nothing since that date.

19The wife also deposes that she believes FRO has difficulty enforcing the orders as the husband often changes employers and the wife has not known for several years where he is working.

20As a result of these circumstances and the difficulties the wife has had over the long history of these proceedings securing full disclosure of the husband’s financial status, she is asking for the relief set out at paragraph 12 of her draft order. The history and details of those difficulties are set out by the wife at paragraphs 9 to 18 of her February 7, 2013 Affidavit. I will not reproduce those in these reasons however, the concerns she expresses are serious and significant and supports the relief requested at paragraph 12 of her draft order.

21I am satisfied that Summary Judgment be granted in accordance with the draft Judgment prepared by counsel with the following changes:

1. Paragraph 11 is to be deleted;

2. Costs are fixed in the all-inclusive sum of $9,000.

Fragomeni J.