ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 29931/07
DATE: 20130201
BETWEEN:
PATRICIA WILSON
Applicant
– and –
HUGH ANTHONY CLARKE
Respondent
Patricia Wilson, Self-Represented
Hugh Clarke, Self-Represented
HEARD: January 29th and 30th, 2013
rEASONS FOR JUDGMENT
snowie j.
On Consent
[1] The father shall pay to the mother child support commencing January 1, 2011 of $704.00 per month for the support of the child Antonio Jayden Clarke, birth date July 25, 2001, based upon his 2011 income tax returns ($77,512.00).
[2] The father shall be given credit for the payment of $440.00 per month child support paid from January 1, 2011 to January 31, 2013. Therefore, there is a shortfall of $264.00 per month for 25 months. Therefore, the arrears outstanding from January 1, 2011 to January 31, 2013 are $264.00 x 25 months = $6,336.00.
[3] Additionally, the income tax returns of the father show that he earned $67,157.00 in 2010. As such, he should have paid $615.00 per month child support pursuant to the Guidelines in 2010. The father did pay $440.00 per month from January 1, 2010 to December 31, 2010. Therefore, there was a shortfall of $175.00 per month. The arrears for 2010 are $175.00 x 12 months = $2,100.00.
[4] Therefore, the total outstanding arrears of child support as of January 31, 2013 are $6336.00 + $2,100.00 = $8,436.00.
[5] The parties shall pay s. 7 expenses in proportion to their respective incomes. In 2011 the father earned $77,512. The father is to pay 40% of the s. 7 expenses. In 2011 the mother earned $120,000.00. The mother is to pay 60% of the s. 7 expenses.
[6] The mother, Ms. Wilson, shall have sole custody and decision-making responsibility in all major custodial areas, including but not limited to medical, dental, religion and education. She shall inform Mr. Clarke of all these decisions in a timely manner.
[7] Mr. Clarke shall have the right to all information regarding medical and dental issues, including the right to be informed of all appointments and to be in attendance at the appointments and have the right to communicate directly with all of the health care professionals treating the child.
[8] Mr. Clarke shall have the right to access directly to all school records, to be informed of and to attend all parent-and-teacher interviews and school activities and the right to communicate directly with all school teachers and officials with respect to Antonio.
[9] All communication between the parties shall be restricted to matters concerning access and/or the welfare of the child and shall take place by means of telephone (cells and/or landlines) and text messages.
[10] Christmas Day shall be shared equally between the parties with Antonio. Christmas holidays, March breaks and the month of August each year shall be shared equally between the parties. Antonio shall spend Mother’s Day with the mother and Father’s Day with the father each year.
[11] The parties shall not expose Antonio to adult conflict and shall not expose Antonio to anyone making disparaging remarks about either party or any other significant adult in Antonio’s life.
[12] The parties shall foster and encourage the relationship between the child and the other parent. The parties acknowledge that Antonio has the right to have a relationship with his mother and a relationship with his father.
Not On Consent
[13] The father shall have access to Antonio alternating weeks from Thursday to Monday mornings and each week overnight on Wednesday. In other words, the child shall be with the father alternate weeks from Wednesday after school to Monday morning. Wednesdays and Thursdays are father’s days off. This arrangement commences the week of February 4, 2013.
[14] All exchanges shall take place at Antonio’s school unless the school is closed, in which case the child is to be picked up and returned to Ms. Wilson’s home. There is to be no unnecessary verbal communication.
[15] The mother shall list the father as the second contact person on all “emergency contact persons forms” for any and all official documents, i.e. school documents, passports, etc., immediately.
[16] The child has a strong relationship with his mother and his father. Both parents love this child very much. The father wants more time with his son and testified that the child wants more time with him. This is understandable. The child is 11 years old and clearly he and his dad have a strong relationship. The father also facilitates contact with his paternal cousins, aunts and uncles on his time. This time allotted to the father clearly is in the child’s best interests. The father’s days off from work are Wednesday and Thursday each week. The father works the 6:00 p.m. to 2:00 a.m. shift for the TTC to accommodate quality time with Antonio. His family members and a friend provide evening care for the child while the father works. I feel that extended time with his father is in the child’s best interest.
[17] The father shall be free to set up child care for the child when the child is with the father. It is recognized by this Court that father has full-time gainful employment and will need some child care.
[18] Spousal support is denied. The father’s circumstances have changed since the parties separated in 2006. He is gainfully employed at $77,000.00 per year (2011) by the TTC. He has been in their employ for the last 5 years.
[19] Mother holds two jobs by choice. Her primary job pays approximately $80,000.00 per year. Her secondary job (part-time) pays approximately $35,000.00 to $40,000.00 per year. This Court would not force or expect the mother to carry a second job at this level. Therefore, the parties’ salaries from their primary jobs are relatively equal ($80,000.00 vs. $77,000.00).
[20] I find that the parties lived separate and apart after January 7, 2007 under the same roof. The Applicant testified and I accept her evidence that she and the 2 children took a trip to Jamaica in December 2006 alone. When they returned the Applicant and the Respondent slept in separate bedrooms. The Applicant remained in the master bedroom and the Respondent moved to the guest room. I accept that there were no further sexual relations between them.
[21] The Respondent was removed from the matrimonial home by the police on October 30, 2007. He was charged with assault. He never returned to the matrimonial home.
[22] The Respondent alleges the separation date was October 30, 2007. However, this Application was signed September 29, 2007. It is clear that the separation occurred January 7, 2007. I accept January 7, 2007 as the separation date. As such, I accept the Applicant’s Net Family Property Statement attached as Schedule “A” and, therefore, I find that the Respondent owes an equalization payment to the Applicant in the amount of $15,099.12.
[23] The parties agree that the mother shall purchase the father’s interest in the jointly-owned matrimonial home. The purchase value of the matrimonial home was $334,177.30. (2006)
[24] The parties were married on May 18, 2006. They separated January 7, 2007. They purchased the present matrimonial home jointly (210 Miller Drive, Georgetown) on May 18, 2006 for $334,177.30. They secured a mortgage for $288,868.25. The mother testified that the present value is in the range of $485,000.00 to $520,000.00, with comparables that have sold are between $505,000.00 and $519,000.00. Father produced an appraisal that stated a value of $520,000.00. I accept that the fair market value of the property is $510,000.00. This amount best reflects the recent sales.
[25] The outstanding mortgage balance on the matrimonial home (as of December 15, 2012) was $229,092.51. The Applicant has remained with the children in the matrimonial home and she has paid all of the principle, interest and taxes (“PIT”) and expenses for the matrimonial home since November 2006. The Respondent has made no contribution at all since November 2006. The PIT has been paid at a rate of $1,079.00 every 2 weeks or $28,054.00 per year or $2,337.83 per month from May 2006 to June 2012. From June 2012 to the present (January 30, 2013) she has been paying $980.00 every two weeks or $25,480.00 per year or $2,123.33 per month.
[26] From January 2007 to and including June 2012 (5 years and 4 months), the Applicant has paid $2,337.83 per month x 64 months for a total of $149,621.12. In addition to payments from June 2012 to February 1, 2013, the mother has paid $2.123.33 per month x 7 months for a total of $14,863.33. Therefore, the total of $149,621.12 plus $14,863.33 equals a total of $164,484.45 paid by the applicant.
[27] As a joint owner of this property, the Respondent should have contributed his 50% of the PIT being $164,484.45 divided by 2 = $82,242.22.
[28] Therefore, the Applicant owes to the Respondent the following:
$510,000.00 Present Fair Market Value of matrimonial home
Less $229,092.00 Existing mortgage (December 15, 2012)
Divide by 2
Total $140,454.00 Equity owed to each party from the equity in the matrimonial home
[29] The Respondent owes to the Applicant the following:
$82,242.22 Respondent’s ½ share of the PIT from separation date to present
Plus $ 8,436.00 Respondent’s arrears of child support outstanding
Plus $15,099.12 Equalization payment owed by Respondent to Applicant
Total $105,777.34
[30] Therefore, the Applicant owes to the Respondent the sum of $140,454.00 minus $105,777.35 for a total of $34,676.66 as full and final settlement of any and all property and/or financial issues between the parties. Upon payment of the aforesaid $34,676.66, the Respondent shall transfer all interest and rights he has past, present and future in the matrimonial property located at 210 Miller Drive, Georgetown, to the Applicant absolutely.
[31] The Applicant shall immediately remove the Respondent’s name and, thus, his liability with respect to the mortgage.
[32] The restraining order is no longer being sought by the Applicant.
[33] There was an agreement between the parties dated May 18, 2006 acknowledging the 70/30 split of the downpayment for the matrimonial home. The Applicant’s extra contribution has already been acknowledged with respect to these monies or monies/worth that she brought into the marriage. As such, this agreement is not relevant.
[34] This property title was taken as joint tenants. If the parties had agreed upon any different percentage of ownership other than a 50/50 split, they could have registered their ownership as to different percentages as tenants-in-common. This was not done. Clearly, they wished to have joint ownership and, as such, I have divided equally their obligations and benefits from the ownership of the matrimonial home.
Costs
[35] The parties may submit in writing by February 28, 2013 no more than 3 pages on the issue of costs.
Snowie J.
Released: February 1, 2013
COURT FILE NO.: 29931/07
DATE: 20130201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Wilson v. Clarke
REASONS FOR JUDGMENT
Snowie J.
Released: February 1, 2013.