COURT FILE NO.: 12-0459

DATE: 2013 Dec 31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Dorothy Joanne Stadig, also known as Joanne Stadig

Applicant

– and –

Darren Stadig

Respondent

Clinton H., Culic, for the Applicant

Respondent, self-represented

HEARD: October 23, 24, 25 and November 4, with written submissions received November 20, 2013, followed by further evidence on December 11, 2013

BELCH j.

DECISION

[1] Dorothy Joanne Stadig (Applicant) and Darren Stadig (Respondent) were married June 9, 2007 and separated January 3, 2012. Before marriage they cohabited for two years. Both parties had been married to others before this marriage and they are parents of children from those earlier relationships.

[2] In these proceedings, the Respondent requests a divorce, the Applicant requests a restraining order and both claim equalization of their net family properties. The Applicant seeks a finding the Respondent stands in place of a parent to her daughter, Daryka, born June 2, 1997 and an Order requiring the Respondent to pay child support for Daryka. The Respondent denies standing in place of a parent and resists payment of child support. The Applicant also seeks spousal support which is resisted by the Respondent. Finally, both parties seek their costs from the other.

[3] For the reasons that follow, it is my decision:

1. A divorce issue forthwith;

2. An equalization payment of $168.49 be paid by the Applicant to the Respondent;

3. A set off “reimbursement” of $539.10 to be paid by the Respondent to the Applicant;

4. The Respondent stands in place of a parent to Daryka;

5. The Respondent pay to the Applicant child support in the amount of $400.00 monthly on an annual income of $57,820, first payment to commence the first day of January 2013. This monthly payment is lower than the suggested guideline amount of $525.00 monthly;

6. There is to be no order the Respondent pay spousal support;

7. The Applicant’s request for a restraining order against the Respondent is denied;

8. Costs - As the court is not aware of whether offers to settle were made prior to trial, the court remains seized of this issue and will entertain submissions at a date to be arranged after April 21, 2014 with representations to be made no later than May 30, 2014.

The Divorce

[4] After determining neither party desired to resume cohabitation, the evidence tendered established grounds for a divorce based upon separation, and being satisfied there was little likelihood of reconciliation, the court granted a divorce.

Did the Respondent stand in place of a parent to Daryka?

[5] While financial matters occupied the majority of trial time, the most contraversial issue was the determination of whether the Respondent stood in place of a parent to Daryka.

[6] Is it possible for a person to form both a relationship with another who is the parent of a child while at the same time avoid being found by a court as standing in the place of a parent to that other’s child? As noted at page 258 of The Annual Review of Family Law, 2012, “a person should not be found to be a parent simply because he or she was pleasant to a child. A person should not have to ignore a child or risk an ongoing child support obligation to that child…. and at page 259, in the case of Andela v. Jovetic, 96 RFL (6th) 108 [it was decided], while the Applicant had not treated his wife’s children well as a result of him being in love with their mother, the Applicant had not demonstrated that he had a settled intention to treat the daughters as members of his family”.

[7] The Supreme Court of Canada in Chartier v. Chartier, [1998] S.C.R. No. 79 provides guidance for determining whether a person stands in place of a parent:

(i) … The doctrine of loco parentis [and] the words “in the place of a parent” used in the Divorce Act were intended to have the same meaning.[18]

(ii) ... the proper approach to this issue, as it recognizes that the provisions of the Divorce Act dealing with children, focus on what is in the best interest of the children of the marriage, not on biological parenthood or legal status of the children.[21]

(iii) ... Once a person is found to stand in the place of a parent, that relationship cannot be unilaterally withdrawn by the adult… The provisions of the Divorce Act that deal with children aim to ensure that a divorce will affect the children as little as possible. Spouses are entitled to divorce each other, but not the children who were part of the marriage. The interpretation that will best serve children is one that recognizes that when people act as parents toward them, the children can count on that relationship continuing and that these persons will continue to act as parents toward them.[32]

(iv) It is clear that the court must address the needs of the child as of the date of the hearing or order. The existence of the parental relationship under s.2(2)(b) of the Divorce Act must however be determined as of the time the family functioned as a unit.[36]

(v) The opinion of the child regarding the relationship with the step-parent is important, but it constitutes only one of many factors to be considered. In particular, attention must be given to the representations of the step-parent, independently of the child’s response. [38]

(vi) Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively. What must be determined is the nature of the relationship. The Divorce Act makes no mention of formal expressions of intent…. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change. The actual fact of forming a new family is a key factor in drawing an inference that the step- parent treats the child as a member of his or her family, i.e., a child of the marriage. The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child’s relationship with the absent biological parent. The manifestation of the intention of the step- parent cannot be qualified as to duration, or be otherwise made conditional or qualified, even if this intention is manifested expressly. Once it is shown that the child is to be considered, in fact, a “child of the marriage”, the obligations of the step- parent towards him or her are the same as those relative to a child born of the marriage with regard to the application of the Divorce Act. The step- parent, at this point, does not only incur obligations. He or she also acquires certain rights, such as the right to apply eventually for custody or access….[39]

(vii) The contribution to be paid by the biological parent should be assessed independently of the obligations of the step- parent. The obligation to support a child arises as soon as that child is determined to be a “child of the marriage.” The obligations of parents for a child are all joint and several. The issue of contribution is one between all of the parents who have obligations toward the child, whether they are biological parents or step- parents; it should not affect the child.[42]

[8] Keeping in mind Chartier, supra, I turn to examine the evidence presented in this case. The Applicant testified the Respondent in the early stages bonded quickly with Daryka perhaps because this was a time when the biological father was absent. Daryka’s relationship with the Respondent was “amazing.” He was her contact at school and he made sure she got to appointments. Evidently, the child told the Applicant she intended to change her name to Stadig and went as far as to hyphenate her name for some purposes to Stadig-Murray. They attended church as a family; he took her on fishing and camping trips and played games with her and in e-mails had commented “we teach our kids” and with reference to Daryka said “we all love her too much for that.” She testified they both disciplined the child. As she established her relationship with the Respondent, the biological father was not in the picture, in fact, he had not enjoyed a parental role since the child was five or six years of age. The Applicant testified, “Daryka likes her father, but their relationship is more “buddy-like than father/daughter.”

[9] Daryka, now 16, testified the family took trips together i.e. NASCAR. She described them as one big family. She called her biological father, dad, and called the Respondent, Darren. She did not remember being disciplined by the Respondent, but then again she did not remember being punished by her father either.

[10] The biological father, Dan Murray, acknowledged during the marriage he worked shift work, but still spent time with the children including taking them to daycare, shopping, and day trips. It was his evidence he and the Applicant shared parenting. Following separation, he did testify he understood Daryka had bonded with another father in his absence.

[11] He testified his daughter never told him that she wanted to change her name. He felt their relationship was good. He had attended all of the important events in her life including graduation. “Anything important, I was there”. He said he had purchased items of clothing for Daryka i.e. shoes. At the time of their divorce, he requested joint custody. Today, he feels that he’s her father in every sense of the word and he loves his daughter. Further, he testified that while he once was in arrears of child support for Daryka, approximately $800 monthly was being garnisheed from his wages and he had now overpaid. He acknowledged he and the Applicant signed Minutes of Settlement wherein they agreed the arrears of child support was zero, his income was $32,500 annually and further, he agreed to pay $278 monthly in support of Daryka. The issue of Section 7 expenses is still before the courts.

[12] The court heard from Johannes Stadig, the Respondent’s father. He testified he never considered Daryka as his granddaughter.

[13] In his evidence, the Respondent at first denied ever disciplining Daryka however later agreed he once took away her laptop. He did not feel taking the laptop away on one occasion, disciplining her one time, made him a father; it was simply an event. He testified he never grounded her, spanked her, or hung out with her friends. He did not discipline her as he did his own children nor did the Applicant expect him to discipline Daryka.

[14] He was asked whether he had ever had a “special talk” with Daryka along the lines that he was marrying her too, not just her mother. He agreed having several special talks with her, but not the one put to him in cross-examination. While there may have been suggestions they were one happy family it was clear, at least in his mind, Daryka knew she was not his child. While agreeing he and the Applicant had operated a joint account which was a source of money for food, clothing, and accommodation, he had not in the beginning, as suggested by the Applicant, been the sole source of support testifying there were times both hydro and gas had been cut off for non-payment. He testified Daryka’s grandmother often advanced money for the family. He had never paid support directly to Daryka. He provided what he could but it was never enough. He has maintained Daryka on the benefit plan provided by his employer.

[15] He testified he was never a father figure to Daryka in the same way as his own children. He was asked, given step-children are in a different position than biological children, had he been a loving parent to Daryka? and he responded he had tried to be; he used his best efforts. In explaining his e-mail “we both love her too much for that,” he said his love for Daryka was purely “financial.”

[16] His attention was drawn to another email of September 13, 2011.The email, from Darren to Joanne read,” I spoke briefly to Daryka about what happened today at court, she was defensive of dad [her biological father], but not hostile in any way. She said he has to work and people need his care, I plainly explain the court does not care. I told her you [the Applicant] could have requested he be arrested but did not want that. I feel we need to be honest with her and keep her informed she will hear it from him or whatever he chooses to tell her”. He was asked, were you not speaking about Daryka’s best interest here? He agreed the email showed he cared for Daryka beyond “financial.”

[17] He confirmed the evidence of Daryka that they had gone on family trips and he included examples such as summer camping in New York State, white water rafting and attending NASCAR. He denied they always celebrated special days at their house, noting Daryka attended the home of her biological father’s parents for Christmas and Easter. He denied his daughter, Kirstin, had accused him of loving Daryka more than her.

Did he stand in place of a parent?

[18] Turning to the time this family functioned as a unit, I am satisfied Daryka participated in the extended family in the same way as a biological child. This family unit was in her best interests. Given his ability to pay, the Respondent provided what he was able financially for her; I am satisfied her biological father was absent at least in the early stages when this new family unit was formed. The special talks, and the hyphenation of her name I find happened and I am satisfied the Respondent was aware of this although by the date of this trial, he had tried to distance himself from both. The name change was something initiated by the child and could be seen as self-serving, however, the Respondent could have discouraged that. True, the laptop was only one act of discipline and would not in itself support a finding of parenthood, but I am satisfied that viewed objectively the Respondent represented to the child, the family, the world, either explicitly or implicitly that he was responsible as a parent to the child. Since separation, I am satisfied the Respondent attempted unilaterally to withdraw from the parent/child relationship, however, post separation is not the time at which the court addresses whether such a relationship existed. The court must focus on the time the family was together and not after separation. As well as an obligation, my finding the Respondent stands in place of a parent is the basis for rights too, such as custody and access. The Respondent testified he was not interested in advancing a claim for custody and/or access.

Equalization

[19] By the date of trial, the parties were agreed on most valuations and the Applicant filed a net family property worksheet as Exhibit 3. The outstanding differences in valuation were limited to:

a. Household goods: the Applicant submitting she retained $2000 of household goods at separation; the Respondent believing it was more like $5000. As for the Respondent, the Applicant believed the Respondent retained $5000 of household goods whereas he submitted he received $500 in personal effects, mainly, his clothing.

b. The 2003 Chevrolet Avalanche in the Applicant’s possession valued by her at $1900 based upon Black Book information; and at $4500 by him based upon Auto Trader Internet printouts.

c. The 2003 Toyota Corolla in the Respondent’s possession valued by him at $200 (scrap value) and $1900 by her.

d. Two debts claimed by the Applicant, one owed to D. Cobey at $300, a second to S. Seward at $500. Both debts were questioned by the Respondent as he claimed he paid the bills for which the promissory notes had been written by the Applicant.

e. An amount of $884.34 was claimed by the Respondent as dental expense but later reduced to $590 at trial. The Applicant testified she did not know the details of the dental expenses.

f. The Applicant takes issue with the debt of the Respondent owing to CIBC at the date of the marriage in the amount of $10,389. The Applicant submits the Respondent owed the entire debt to CIBC rather than half the debt, therefore, he owed $20,779.46. If true, the Respondent entered marriage with a negative property value rather than the modest property value he shows.

Written Submissions

[20] In her written submissions, the Applicant makes concessions on the issues of household goods, dental expenses, and the value of the Corolla, however, advised the court the Avalanche was jointly owned as opposed to her property alone, and the Respondent’s pensions needed to be adjusted for disposition or notional costs. Given this turn of events the parties were invited to return to court to present further oral testimony which took place December 11, 2013

Findings related to household goods and outstanding payments

[21] In his testimony, the Respondent provided “estimates” of those goods the Applicant retained. I am satisfied he did not prove the $5000 he had claimed as her share. In her written submissions, the Applicant modified her position to $2000 in her possession and $1000 in the Respondent’s possession. Based on his evidence and her modified position, I fix the value in her possession at $2000. I am not satisfied the Applicant established the Respondent left the relationship with more than his clothes and accept his value of $500 for those.

Avalanche

[22] At tab 38, Exhibit 11 the Applicant produced a vehicle” trade-in estimate” from the Canadian Black Book for the Avalanche showing a low of $1880 to a high of $4280. The document contains the statement that reconditioning and detailing costs may be subtracted from the value of the vehicle. The Applicant provided an estimate from Direct Automotive Service estimating the vehicle required repairs of $2380 including labour costs for front shocks, a window switch, driving light assembly, a turn signal assembly and new front tires. Based upon the valuation and the repair estimate, the Applicant arrived at a value of $1900.

[23] My understanding of the Canadian Black Book is this book is compiled from auction results where the majority of those bidding are auto dealers who of necessity must purchase closer to wholesale value than retail because after repairing the vehicles they hope to sell and realize a profit. In arriving at her value the Applicant has deducted the cost of projected repairs from what I find to be the wholesale value of the car.

[24] The Respondent tendered Exhibit 8, a printout from Auto Trader CA detailing 14 results from an Ontario search on October 22, 2013. The Avalanche owned by the parties had approximately 200,000 km. Examining the printout the court notes that vehicles with similar mileage were valued from $5000-$10,100 with most being in the range of $5500-$6500. I find the sellers listed their vehicles somewhat higher knowing they would likely need to bargain on price. The Respondent’s evidence was he had recently paid $400 to repair the Avalanche.

[25] The Respondent’s value of $4500 does not address repairs but is lower than the average of the 14 vehicles displayed in Auto trader. Among the 14 vehicles are four with more kilometres than the Applicant’s Avalanche, however, there are four more vehicles of note. The first has 283,741 km with an asking price of $6495, certified. The second has 236,000 km, certified, with an asking price of $5990. The third has 256,006 km, no mention of certification, and is listed at $5700. Finally, a certified vehicle with 258,000 km listed at $5500. The average of these four vehicles is $5921, all have more kilometres, three of the four are certified and finally, these are values as of October 22, 2013 approximately 22 months after separation.

[26] In finding value, I am of the opinion market value is closer to retail value and a car that is certified is one where the necessary repairs have been completed. Starting with the average of $5921 as retail but taking into account the sellers expect and will likely be forced to accept lower than asking price, I find the Respondent’s value of $4500 to be more credible and in keeping with market value.

Toyota Corolla

[27] The Respondent’s evidence is, at separation, this car was not drivable as the transmission was not working. The Respondent produced a receipt showing he paid $1073.50 to make the car drivable. Given the Applicant did not produce a valuation other than her estimate the Corolla was worth $1900 I find the Respondent’s estimate of $200 as scrap at separation is the more acceptable, and in her recent written submissions, she now accepts this valuation.

Promissory Notes

[28] After considering all of the evidence, I have little doubt the Applicant found it necessary to borrow money as supported by the promissory notes, but I am not convinced the money was borrowed for rent as she testified it was and I accept the Respondent’s evidence the debts she claims to have borrowed the money for were actually paid from the joint account at a time when the only spouse depositing money was the Respondent.

Dental Expenses

[29] Given the Applicant admitted she did not have details of what the dental expenses were, I accept the reduced value of $590 that the Respondent testified to and reject his earlier figure of $884.34. The Applicant’s written submissions have accepted this figure.

[30] Despite the fact the Respondent’s attention was drawn to Exhibit 10, Tab 3 which appears to be a loan statement from CIBC identifying the principal as Darren Stadig, not Darren and his previous wife, the Respondent testified the loan was indeed joint, there was a court order requiring both he and his wife pay the loan and in fact they both retired the obligation jointly. I accept the position of the Respondent believing it highly unlikely his former wife at the time of their marriage was breaking up would agree to pay $10,389 she did not owe.

[31] I find the Applicant’s property on valuation day consisted of $2000 in household goods; $15,924.69 in bank accounts, pensions and savings; $132,000 for the property on County Road 29; and $2250 for the Avalanche, for a total of $152,174.69.

[32] I find the Respondent’s property on valuation day consisted of $500 in household goods, bank accounts savings and pensions of $52,445.89; $2250 for the Avalanche; and $200 for the Corolla, for a total of $55,395.89.

[33] I find the Applicant’s debts on valuation day were $116,331.33, having subtracted the $800 for promissory notes. The Respondent’s debts are found to be $24,969.78 on valuation day.

[34] I find the Applicant brought property totalling $91,641.32 to the marriage less debts of $73,173.57, resulting in an equity of $18,467.75. The Respondent brought property of $109,192.27 less debts of $95,804.79, for an equity of $13,387.48.

[35] I find the total deductions for the Applicant to be $134,799.08 and for the Respondent, $38,357.26.

[36] Neither party claimed excluded property.

[37] The Applicant’s net family property is $17,375.61; the Respondent’s, $17,038.63.

[38] Applying the above findings to Exhibit 3, the Net Family Property Worksheet, Exhibit 32, the Applicant’s amended Net Family Property Statement, the testimony and submissions of the parties, and on the understanding communicated to the court by the parties that the Respondent would convey his interest in the County Road 29 property to the Applicant, the Applicant is ordered to pay to the Respondent an equalization payment of $168.49 as set out in the following calculation.

[39] Equalization payment:

Applicant

Respondent

Property on Valuation date

152,174.69

55,395.89

Debts on Valuation Date

116,331.33

24,969.78

Equity on Date of Marriage

18,467.75

13,387.48

Total deductions

134,799.08

38,357.26

Net Family Property

152,174.69

134,799.08

17,375.61

55,395.89

38,357.26

17,038.63

Equalization of Net Family Property

17,375.61 – 17,038.63

=336.98 ÷2

=$168.49 payable from Applicant to Respondent

Reimbursement

[40] The Applicant seeks $2616.79 from the Respondent made up of $553.50 for his share of the appraisal costs for joint property; $348.30 she paid in premiums for his life insurance policy; and expenses of $1714.99 for such items as rent, vehicle insurance, house insurance, phone/internet/cable bills, a truck payment, a Christmas party expense and Enbridge/water/hydro bills. The Respondent concedes her payment of $435.60 for his life insurance policy premiums. The court is satisfied that costs of appraisals for joint property should be shared equally and therefore awards the Applicant a further $553.50. The court is unable to find the Christmas party expenses in the amount of $250 are those of the Respondent alone.

[41] Of those expenses remaining from her claim of $1714.99 namely, $435.89, that was paid from their joint account at a time when only the Respondent was depositing funds in that account, the court therefore disallows the Applicant’s claim for $435.89.

[42] The Respondent seeks reimbursement of $3000 he paid as the retainer for the Applicant’s prior marriage, $450 for January’s rent, $536.75 for her share of the Corolla repairers and $400 paid for repairs to the Avalanche.

[43] Having accepted the Respondent’s value of $200 rather than the Applicant’s value of $1900 for the Corolla upon which he paid $1073.50 to make drivable, I dismiss his claim for one half of those repairs.

[44] I allow his claim for $450 for rent, noting the Respondent did not claim reimbursement for all those other expenses paid from the joint account to which he alone contributed.

[45] This leaves the retainer of $3000 and while there appears to be no dispute he advanced these funds from his charge card, I am satisfied the monies were advanced voluntarily and, in fact, on the basis of a suggestion he made. This claim is disallowed as the monies were advanced early in their relationship and there was no evidence this was a loan that was expected to be repaid.

Setoff

[46] Equalization payment-- Applicant to Respondent-- $168.49. In addition, the Applicant owes the Respondent $2250 for his interest in the Avalanche."

[47] Repayment of rent------- Applicant to Respondent-- $450.00.

[48] Appraisal costs, insurance premiums--- Respondent to Applicant----$989.10.

[49] I find the final set off as follows:

a. Equalization, Applicant to Respondent, $168.49;

b. Avalanche transfer, Applicant to Respondent, $2250.00;

c. Rent repayment, Applicant to Respondent, $450.00;

less d. Appraisal costs, insurance premiums, Respondent to Applicant, $989.10;

resulting in the Applicant owing the Respondent, $1879.39.

Income of the Parties

[50] On December 11, 2013 when the parties returned to court to present evidence addressing adjustments to their positions on equalization, the Applicant also presented proof, accepted by the Respondent that her income for 2013 was $34,087.

[51] The Respondent’s position on his income for 2013 is while his income amounted to $72,000, he pointed out he pays $1015 monthly in guideline support for a daughter by a previous marriage plus $2000 annually for section 7 expenses. This was not seriously challenged by the Applicant and accordingly, the court finds his 2013 income for support purposes to be $57,820; the Applicant’s, $34,087.

[52] Based upon his income rounded at $57,800, the court would normally order the Respondent pay to the Applicant $525 monthly for guideline child support. Should the court take into account the $278 monthly based on his annual income of $32,800 already being paid by the biological father to the Applicant?

[53] The Child Support Guidelines in one of the very few exceptions permit the court to deviate from the guideline amount. Case authorities span a range from a court ignoring the amount paid by the biological parent and requiring the person found to stand in place of a parent to pay full guideline amount to other cases where child support is shared or balanced by these two parents.

[54] I am satisfied, in these circumstances, I should exercise my discretion and not order full guideline support but instead a somewhat reduced amount which I fix at $400 monthly. Full guideline support provides the Applicant with net disposable income of approximately $3370 monthly while the Respondent has $3140 and in these circumstances, the SSAG guidelines at the mid-range level suggest spousal support of zero. This calculation ignores the additional $278 monthly from the biological father, and even reducing child support from $525to $400 monthly, still generates very little if any spousal support under the SSAG guidelines. Given the reduction in guideline child support has little if any impact on the payment of spousal support and in view of his present commitments, I am satisfied fairness requires a balancing of child support between these two fathers and the combined payment results in a payment that exceeds the suggested level for a payor earning $72,000 annually.

[55] When should the child support commence? The parties separated January 3 2012. The Application requesting child support is dated April 26, 2012. Despite a number of pretrial motions, at no time was there a request for temporary child support although given it had not been decided whether the Respondent stood in place of a parent perhaps this is understandable. Similarly, it is understandable why the Respondent did not voluntarily pay child support as he did not believe he stood in place of a parent to Daryka. Generally, a parent is obliged to pay child support from the date of separation but those are in circumstances where the parent knows he or she is the parent. That is not the case here.

[56] Given the functioning of the family unit, should the Respondent have realized with the absence of Daryka’s biological father that he was standing in place of a parent? If so, payments of $400 monthly should have commenced in May 2012 when the Respondent realized the Applicant was seeking child support. If this was the case, he would now be in arrears of approximately $8000. The court notes spousal support in the amount of $175 monthly was ordered on a temporary basis commencing July 2013 and if all payments have been made, the Applicant would have received $1050 to the end of December 2013.

[57] Given his commitments, the Respondent has no ability to pay $8000. Any assets accumulated by this couple, for example, the County Road 29 property and Avalanche, are now with the Applicant although it is true the Respondent has contributed further to his pension plan. In the circumstances, I am satisfied the Respondent should have had a sense he had taken on a role, although different than with his biological children, that was parental in nature. Taking a midpoint of January 2013 for commencement of child support, $4800 would be owing in arrears. I order the Respondent to pay to the Applicant $400 monthly in child support commencing January 1, 2013 and fix the arrears as of December 31, 2013 at $4800, however, deducting the $1879.39 owing by the Applicant to the Respondent leaves arrears of $2920.61. The Respondent is ordered to pay $100 monthly on account of arrears until the $2920.61 is satisfied. His total monthly support will be $400 for ongoing child support and an additional $100 for arrears of child support.

[58] It had been suggested throughout the trial that the Respondent would either pay child support or spousal support, but not both, given his income. The SSAG guidelines are not mandatory but suggestive only and while they are expressed in levels identified as low, mid and high, the court heard no argument as to which level would be appropriate if spousal support was to be ordered. Given the six year relationship, the fact that the earnings of the Applicant were actually higher than the Respondent for part of the time, given the commitments of the Respondent, and given the suggested spousal support was zero at both the low and mid-levels and only modest at the high level, I choose the mid-level as appropriate for my determination. Payment of child support has priority over spousal support and under these circumstances, there will be no order requiring the Respondent to pay spousal support, given his income.

[59] As mentioned earlier, the Respondent had been ordered to pay temporary spousal support commencing July 2013 and he has already paid $1050 on account of that Order. It’s unlikely this would have been ordered if the motions judge was aware there would be a final order finding the Respondent stood in place of a parent and was ordered to pay child support. The court has no evidence of the income tax relief the Respondent may be entitled to, in view of these payments of spousal support, therefore, there is uncertainty surrounding any credit that might be applied towards the payment of child support arrears and the court has taken this into account in selecting January 1, 2013 as the commencement date for child support.

Restraining Order

[60] The Applicant has requested a restraining order in view of some alleged physical abuse she suffered at the hands of the Respondent and she is uncomfortable and annoyed because he frequently stares at her in church which they both attend. The Respondent denied physically abusing the Applicant although there was some evidence that a witness of the Applicant had seen marks on the Applicant.

[61] Restraining orders should not be granted lightly. I choose not to grant a restraining order in this case on the basis of disputed evidence of physical abuse which occurred some time ago and there is no suggestion that it was repeated. Restraining orders can be granted on the basis of annoying behavior, but I am not prepared to make such an order in these circumstances. While it may make the Applicant uncomfortable, if it does occur, and again the Respondent denies that it occurs, at least she is in a public place where she is unlikely to be harmed. Having said that, the Respondent is cautioned the court will not countenance behaviour of this type in the future.

Costs

[62] Both parties have enjoyed some success. The Respondent was self-represented. The court has no knowledge as to whether there were offers exchanged prior to trial. Offers might have an impact on an award of costs. Should the issue of costs be pursued, each party is to prepare written submissions limited to five pages which must be received at my Kingston office by May 30, 2014. If no costs submissions are received by that date, the court will no longer be seized of this issue.

[63] To avoid controversy over the approval of the draft judgment, counsel for the Applicant is to prepare the draft and forward it to my office so I might approve the form of the judgment before it is issued.

Original signed by D. M. Belch, J.

The Honourable Mr. Justice Douglas M. Belch

Released: December 31, 2013

COURT FILE NO.: 12-0459

DATE: 2013 Dec 31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Dorothy Joanne Stadig, also known as Joanne Stadig

Applicant

– and –

Darren Stadig

Respondent

REASONS FOR JUDGMENT

Belch J.

Released: December 31, 2013