ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-03-2603-01
DATE: 2013/12/16

BETWEEN:

KELECHI AKWIWU
Applicant

– and –

NDUBUISI UMEUGO
Respondent

Self‑represented

Jessica Abou-Eid, Counsel for the Respondent

HEARD: November 19, 2013 (Ottawa) and by written submissions

REASONS FOR DECISION

PARFETT J.

[1] This matter consists of a motion by the Applicant for various orders and a cross‑motion by the Respondent, also for a variety of orders. This hearing is the latest in a long series of court hearings in this matter dating back to 2010. Better judges than I have already issued decisions they believed would put an end to this endless litigation. This decision is my attempt.

[2] The Applicant seeks the following orders:

• A declaration that both arrears and ongoing child support be set at nil;

• A declaration that the Respondent not be entitled to spousal support;

• An order enforcing the payment of the equalization payment forthwith or in the alternative the transfer of the matrimonial home into the Applicant’s name in satisfaction of the equalization payment;

• An order requiring the Respondent to provide a copy of mortgage statements from both mortgagees in relation to the matrimonial home as already ordered by Smith J. on August 2, 2013; and

• An order dismissing the cross‑motion because not properly before the court given that leave was not granted by the court as required.

[3] The Respondent seeks the following orders:

• Direction from the court regarding whether costs orders made prior to the trial decision of February 13, 2013 were dealt with in that decision and if so, in what manner;

• An order staying enforcement of the equalization payment given the Respondent’s financial position;

• An order enforcing the payment of child support orders made in the past and also an order establishing ongoing child support; and

• Spousal support for the Respondent.

Dismissal of the Respondent’s cross‑motion

[4] Either party was permitted by the July 3, 2013 order of this court to bring a motion to deal with outstanding financial matters without leave of the court. The cross‑motion deals primarily with financial matters and on that basis will proceed.

Disclosure of mortgage statements

[5] The Respondent did not argue that this disclosure ought not to be made. In fairness to the Respondent, an order was made previously permitting the Applicant to go directly to the mortgage institution to request this statement, but the bank refused. The Respondent will therefore provide the Applicant with up‑to‑date copies of his mortgage statement or statements within 14 days of this decision being issued.

Child support arrears

[6] Both parties agree that although two separate orders for child support were made (one on consent) that no child support has ever been paid. An order of this court dated May 10, 2011 provided that the Applicant was to pay the Respondent child support of $784 per month based on an annual salary of $84,409 starting June 1, 2011 with arrears set at $9,084.

[7] A second order dated May 23, 2012 was granted on consent varying the child support to reflect the fact that custody of the couple’s child was shared equally between the parents. However, there was no financial information available at that time to permit the court to establish either ongoing child support or arrears. Instead, disclosure of financial information was to be exchanged by the parties in order to permit that calculation to be made. Ultimately, financial disclosure was made by the Applicant on December 16, 2012. The Respondent continued to rely on his January 10, 2010 financial statement as his income had not changed since that time.

[8] On March 19, 2012, the May 10, 2011 order was stayed pending a decision regarding the Applicant’s motion to set aside that order as well as several others. On November 28, 2012, the Applicant’s motion to set aside the May 10, 2011 order was dismissed and the stay of enforcement order was lifted.

[9] The Applicant argues that she should not be obliged to pay any arrears of child support dating from the May 10, 2011 order on the basis that she was ill and could not care for her child. An inability to care for a child is not a basis for not paying child support. The Applicant also contends that the income imputed to her was too high and consequently, child support owed by her should be reduced. Unfortunately, the Applicant did not provide evidence of her income during the relevant time period. She did supply the court with a document confirming that she was in receipt of disability payments in 2010, but no evidence of income. Furthermore, in the May 23, 2012 order, arrears and ongoing child support could not be calculated due to a lack of financial information from either party. The Applicant was ordered to provide the required financial information to demonstrate what her income was in order to properly calculate arrears and ongoing child support. She did not do so then and has not done so now. Therefore, the order of May 10, 2011 stands as does the order of May 23, 2012 and arrears with respect to those orders are fixed as follows:

Period of time

Applicant’s income

Respondent’s income

Child support amount owing by Applicant to Respondent

Interest accumulated from date of order to December 16, 2013

Source document

Before May 10, 2011

$84,409.00/year

N/A

$9,048.00

$707.97[^1]

Order of May 10, 2011

May 10, 2011 to May 23, 2011[^2]

$84,409.00/year

N/A

$9,408.00[^3]

$736.14[^4]

June 1, 2012 to December 31, 2012

$53,556.00

$51, 050.00[^5]

0[^6]

N/A

Order of May 23, 2013 and

Financial Statements of Parties (A – 2012 & R – 2010)[^7]

January 1, 2013 to present

$52, 588.00

$21,783.20

$3,612.00[^8]

$103.90[^9]

Sworn Financial Statements of Parties (2013)

Total arrears

$22,068.00

Total interest

$1,548.01

Total owing

$23,616.00

[10] The arrears of child support owed by the Applicant to the Respondent will be offset against the equalization payment the Respondent owes to the Applicant. Consequently, the net equalization payment owed as of today’s date is $147,873.55.[^10] Given my comments below regarding the payment of the equalization amount, no interest will run on the equalization payment from today’s date to July 1, 2014. In addition, no further interest will run on the arrears.

Ongoing child support

[11] Since April 2013, the Respondent has not been receiving WSIB benefits. As of September 2013, he has been on welfare. The Respondent is hopeful that his WSIB benefits will be reinstated, but he does not know when that might happen. The Applicant provided evidence to the court that she has decided to retire as of February 2014. She does not know yet what her income from pension will be precisely, although she believes that it will be in the range of $11,000 per year.

[12] The Applicant’s financial statement dated April 15, 2013 indicates that her income is $52,588. The Respondent’s income from January 1, 2013 to April 30, 2013 was $17,827.32.[^11] His income from May 1, 2013 to August 31, 2013 was nil and his income from welfare starting September 1, 2013 is $988.97 per month. The Applicant argues that the Respondent was receiving the child tax benefit of $357 per month from January 1, 2013 to July 1, 2013 and that this income should also be included in the calculation of child support. However, the child tax benefit is not included in the calculation of income for the purpose of child support. Therefore, the Respondent’s total annual income in 2013 is $21,783.20.

[13] The parties are in agreement that the offset method should be used to establish child support. Using that method, the Applicant will pay the Respondent $301 per month starting January 1, 2013. Any arrears of ongoing child support with interest, owing to the Respondent at the time of the payment of the equalization payment will also be offset against that equalization payment.

[14] The ongoing child support amount will have to be readjusted starting February 1, 2014 to reflect the changes that will occur in the Applicant’s income and hopefully, the Respondent’s income.

Costs orders

[15] Numerous costs orders were made between 2010 and the trial decision in February 2013. In his decision regarding equalization of the net family property, the trial judge noted the following:

In my calculation of the net equalization payment, I have also taken into consideration the parties’ respective claims for outstanding mortgage payments made … in regards to the matrimonial home … as well as the outstanding costs awards that have been granted over the years which remain unpaid by each of the parties.[^12]

[16] The Applicant takes the position that all previous costs awards were factored into the calculation of the equalization payment and therefore apart from a costs award of $1,500 made on July 3, 2013 and payable to the Applicant, there are no outstanding costs awards payable. The Respondent states that the trial judge did not outline his precise calculations in arriving at the amount of the equalization payment and therefore the earlier costs awards are still payable.

[17] In my view, the trial judge’s intention is clear – in coming to the equalization payment that he did, he took into consideration all the previous costs awards that were made and therefore, apart from the costs award of July 3, 2013, there are no other outstanding costs awards payable by either party.

Equalization payment

[18] The Respondent is seeking a stay of enforcement of this provision given his precarious financial state. On the other hand, the Applicant is seeking an order that the equalization payment be made forthwith or in the alternative that the matrimonial home be transferred to her in satisfaction of that payment.

[19] The Respondent was given 90 days to pay an equalization payment of $152,068 to the Applicant. The only asset of any significance possessed by the Respondent is the matrimonial home. He attempted to refinance the home in order to make the equalization payment, but was turned down. The house is currently for sale. Initially, the asking price was $499,900 but after approximately 30 days on the market, the price was reduced to $474,900.

[20] The Applicant argues that the Respondent is not acting in good faith. She points to the fact that the Respondent took until August 2013 to put the house up for sale and additionally, contends that the asking price is well above the fair market value of the house given its age and condition. The Respondent states that he acknowledges the age of the house and as a result made some significant renovations to the house in order to address that issue. He indicated that he changed the windows, redid the floors and modernized the kitchen. The Applicant disputes the fact that any renovations were done by the Respondent and suggested in argument that it was she who changed the windows and that the floors were redone after a fire in the home.

[21] Both parties presented comparables in the form of homes in the neighbourhood that had sold in the recent past. In addition, they provided the court with letters from two different real estate agents. The Respondent’s agent confirmed that the home had been recently renovated and suggested that a sale price of approximately $475,000 was reasonable. The Applicant’s agent was dismissive of the kitchen renovation and suggested that the home would sell for between $390,000 and $410,000.

[22] In the four months that the house has been for sale there has been only one offer – from the Applicant’s sister who made an offer of $390,000. The Respondent made a counter‑offer of $472,000 that was rejected by the Applicant’s sister. Given that the only offer came from a relative of the Applicant and that the offer was substantially below the asking price, I cannot find that it was unreasonable for the Respondent to reject that offer.

[23] In addition, the Respondent points to the fact that the Applicant bears some of the responsibility for the current, precarious state of his finances. I agree. The Applicant alleged to WSIB (whether in response to questions from WSIB or on her own initiative I do not know) that the Respondent’s claim was fraudulent. As a result, WSIB suspended the Respondent’s benefits and began an investigation. They have recently concluded that the allegations were unreliable. The Respondent’s benefits have yet to be reinstated pending some administrative procedures. It is clear that the Respondent’s request to refinance the matrimonial home would not have been viewed positively by the bank given his lack of income. Therefore, the slow pace of the delivery of the equalization payment is at least in part the fault of the Applicant herself.

[24] In the circumstances, I will neither require the Respondent to make the payment forthwith nor will I order the transfer of the matrimonial home. On the other hand, it is nonetheless incumbent on the Respondent to sell the matrimonial home within a reasonable time. Taking into consideration both the time of the year and the fact that the real estate market is slow at the moment as noted by the Respondent’s real estate agent, I will suspend temporarily the enforcement of the equalization payment. I will give the Respondent until July 1, 2014 to provide the Applicant with the equalization payment or to show that he has sold the house and that a payment is forthcoming in the near future.

[25] The Respondent has offered to pay the Applicant $400 per month towards the equalization payment until such time as the matrimonial home is sold. The Applicant has refused this offer on the basis that there are strings attached to the offer. I was unable to determine what, if any, strings were attached to this offer that might prejudice the Applicant’s claim. In my view, the Respondent would be well‑advised to make that monthly payment (less the child support amount owing to him) pending the sale of the matrimonial home, but I will not order him to do so given his difficult financial situation.

Spousal support

[26] The Respondent requests spousal support on the basis that the Applicant is earning substantially more income than he is at present and she is responsible for his loss of income.

[27] While I agree that the Applicant is partially responsible for the Respondent’s loss of income, this fact does not entitle him to spousal support. In addition, the mere fact that one party is earning more income than the other party does not automatically entitle the lower earning spouse to spousal support.[^13] Finally, even if the Respondent were entitled to spousal support, insufficient information concerning the Respondent’s current spouse’s income and the family budget were put before the court to be able to establish quantum. Consequently, there will be no order for spousal support.

Conclusion

[28] The trial judge imposed an order that no further motions were to be brought by either party without leave of the court. That order was varied slightly on July 3, 2013 to permit the parties to bring a motion to finalize the remaining outstanding financial issues. I have now done that. Therefore, the trial judge’s order requiring leave of the court for any further motions still stands with the following two exceptions:

• If the parties are unable to calculate ongoing child support based on their respective incomes after February 1, 2014, they may bring a motion after providing the court with up‑to‑date financial statements with appropriate supporting documentation; or

• If the Respondent has failed to either pay the net equalization payment or demonstrate that he has sold the matrimonial home by July 1, 2014 then the Applicant may renew her application to have the equalization payment be payable forthwith or the house be transferred to her.

Costs

[29] The parties should resolve the issue of costs themselves if possible. However, if the parties cannot resolve the issue of costs, brief written submissions of not more than one page, with attachments including Offers to Settle and a detailed Bill of Costs, are to be provided within 15 days with a right of reply within a further five days.

Madam Justice Julianne A. Parfett

Released: December 16, 2013

Footnotes

[^1]: $9,048.00 x 3% /365 x 952 days.
[^2]: Child was living full‑time with Respondent.
[^3]: $784.00 x 12 months.
[^4]: $9,408.00 x 3% /365 x 952 days.
[^5]: WSIB benefits grossed‑up using both Federal and Provincial income tax rates.
[^6]: Child was in a 50/50 shared parenting arrangement. Offset method used. Difference in payment is minimal.
[^7]: Application record tabs 4 & 5.
[^8]: $469.00 - $168.00 = $301.00 x 12 months.
[^9]: $3,612 x 3% /365 x 350 days.
[^10]: The equalization payment ordered by the trial judge is $152,068 payable June 1, 2013 to which must be added the award of compensation for the contents of the home of $15,000 that was made July 3, 2013 and the costs award associated with that motion of $1,500 and interest at 3% bringing the total owed by the Respondent to the Applicant to $171,489.55.
[^11]: His actual annual WSIB benefits were $41,239 and applying a gross‑up of $12,243, his income for the purpose of establishing child support would be $53,482 annually or $4,456.83 monthly.
[^12]: 2013 ONSC 993 at para. 17.
[^13]: Reaney v. Reaney (1990), 1990 8062 (ON SC), 28 R.F.L. (3d) 52 (H.C.J.).