BELLEVILLE COURT FILE NO.: FS-10-0353-00
DATE: 20131220
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marietta Zouganelis-Fobert
Sheri Thompson, for the Applicant
Applicant
- and -
Kevin John Fobert
G. Edward Lloyd, for the Respondent
Respondent
HEARD: April 12, 13, 14 and 28th, 2013
Abrams J.
DECISION
BACKGROUND
[1] The Applicant, Marietta Zouganelis-Fobert (“Marietta”) and the Respondent, Kevin John Fobert (“Kevin”) were married on August 21, 1999.
[2] Marietta and Kevin have two children, namely: Aristotelis Clarence Fobert, born September 15, 2005 (“Ari”) and Markos Alexandros Petros Fobert, born July 2, 2009 (“Marko”).
[3] The parties separated on January 4, 2010, following an incident of domestic violence. As conditions of his release, Kevin was not initially permitted to live at the matrimonial home, nor was he allowed to have contact with Marietta or the children.
[4] By temporary Order of Tranmer J., dated December 9, 2010, Kevin was eventually granted access to the children as follows:
a) Week one - Saturday at 9 a.m. to Tuesday at 1 p.m.
Thursday at 9 a.m. to 1 p.m.
b) Week two – Monday at 9 a.m. to Tuesday at 1 p.m.
c) Thursday at 9 a.m. to 1 p.m.
Friday at 9 a.m. to 1 p.m.
[5] Tranmer J. further ordered that Ari’s “schooling” would be maintained during Kevin’s access periods.
[6] Tranmer J. did not make an Order as to custody of the children.
[7] Accordingly, the status quo following the separation on January 4, 2010, has seen the children live primarily with Marietta, subject to the access ordered by Tranmer J. to Kevin. Notably, there were no interim motions to vary access on a temporary basis in advance of the trial.
[8] The trial occurred over the course of April 12, 13, 14 and 28th, 2013 in Belleville. Written submissions were received by May 30, 2013.
ISSUES
[9] In addition to the issues of custody and access, the pleadings raise other claims arising from the marriage breakdown, specifically:
Child support (retroactive, ongoing and contribution to s.7 expenses);
Whether the family residence is a matrimonial home for purposes of equalization;
Equalization of net family property;
Whether a charging Order is appropriate in all of the circumstances of the case; and
Costs.
CUSTODY AND ACCESS
[10] Marietta contends that she was the primary caregiver of the children during the marriage, particularly with respect to Ari.[^1] To that end, she established the feeding schedules, food selections and created routines. Moreover, Marietta asserts that she was responsible for taking Ari to all of his medical appointments and encouraging participation in extracurricular activities, all of which she continues to do today, in respect of both boys. Marietta contends that she did all of this notwithstanding that Kevin had substantial free time during the days when he was not teaching karate to his students during evening hours.
[11] Marietta’s mother, Denise Zouganelis, testified at the trial. Although Kevin cared for Ari for a couple of hours each morning after Marietta returned to work, following her maternity leave, Marietta’s mother took over for the balance of the day until Marietta finished her work day. Further, Marietta fully prepared Ari for the day before leaving for work, which included nursing him, bathing him, preparing his meals and putting him down for a nap.
[12] I find as a fact that the involvement of Denise Zouganelis was central to Kevin’s decision to have children with Marietta. Kevin readily conceded that he met with Denise Zouganelis after the parties married, but before Ari came along, and extracted a promise from her that she would agree to look after any children of the marriage.
[13] I find as a fact that Kevin taught karate during the evening hours, and even on those days when he was required to travel in advance of the class time, he chose not to involve himself with child care responsibilities. Rather, he deferred to Marietta and her mother to care for Ari.
[14] It is uncontested that the children were exclusively in Marietta’s care from January 4, 2010, until December 9, 2010, when Tranmer J. made his Order.
[15] Entered as Exhibit 12 is an Access Schedule created in accordance with Tranmer J.’s Order, which calculates the percentage of time that the children spend with each parent. Kevin conceded in cross-examination that Exhibit 12 fairly represents the current division of time, which sees the children with Marietta 71.4% and with Kevin 28.5%.[^2]
[16] There is no quarrel that Marietta is still responsible for arranging and taking the children to their medical and dental appointments.
[17] Moreover, it is uncontested that Marietta is responsible for enrolling the children in and transporting them to their various extracurricular activities, such as music lessons, soccer and ball hockey.
[18] Marietta further contends that she is the parent who is responsible for ensuring the children have sufficient changes of clothing, medical needs and other necessities in order to attend at access with their father.
[19] It is uncontested that Marietta provides Kevin with all of the necessary information regarding the childrens’ medical needs, schooling, and activities in a communication log that she initiated. Kevin conceded that there has been no important information that he has lacked receiving since separation and that he has made no independent efforts to seek out information from doctors, teachers, et cetera.
[20] The Court heard evidence that Ari was suspended from school for making threats against another student. More specifically, Ari threatened to kill the child and the child’s dog. He also threatened to burn down the child’s house. It was recommended by Ari’s Three Oaks’ counselor, school counselor, teacher, principal and the local Children’s Aid Society that Ari undergo counseling in respect of his behaviour. However, Ari could not be registered for counseling without the consent of both parties in the circumstances of there being no temporary Order of Custody in favour of Marietta. Kevin would not consent to the counseling. On this point Kevin testified: “I made a decision that counseling would not be in his best interest. I took his feelings into account.” … “I don’t want to force him into something he’s not comfortable with.”
[21] In the circumstances, I find as a fact that Kevin’s refusal to consent to the counseling recommended by a number of professionals was an abrogation of his parental responsibilities. Further, at the time of Tranmer J.’s Order, Ari was attending Montessori school in addition to his regular schooling. Tranmer J.’s Order made it clear that Ari’s “schooling” was to be maintained during Kevin’s access. Kevin admitted that he unilaterally removed Ari from his Montessori school for access, and when confronted about this his defence was that he did not consider Montessori to be “school”. I find as a fact that Kevin has a tendency to interpret Court Orders to achieve his own ends, which does not militate in favour of a joint custody regime. As further evidence of this, Kevin failed to produce financial disclosure prior to the trial by contending that he did not recall consenting to an earlier Order to do so. Accepting for the moment that he was mistaken regarding his obligations under the previous disclosure Order made on consent, even when he was ordered by the Court during the trial to make full financial disclosure he produced the bare minimum, with the caveat that he had the rest of the information at home and he could get it, if necessary. I find as a fact that Kevin has a cavalier and self-serving attitude regarding the obligation to comply with Court Orders.
[22] Moreover, I find as a fact that there is a power imbalance between the parties that would put Marietta at a disadvantage in any regime that requires joint decision making. Much of the cross-examination of Marietta focused on her inadequacies as a person and as a parent. The same was true of Kevin’s examination in-chief. In essence, Kevin asserted that Marietta was a defective human being from the outset of their marriage. To use his example, Marietta would not engage in premarital sex. Once the parties married, Marietta was overtaken by anxiety during sexual intercourse, which turns out was related to a sexual assault committed on her during her time as a student at Queen’s University. Kevin’s response was to go to see Marietta’s mother and demand to know what had taken place in Marietta’s past. Kevin contended that he had been deceived and that he wanted the marriage annulled. What came through in Kevin’s testimony was the sense that he had been duped into marrying Marietta without the benefit of a “buyer beware” notice of some sort. To that end, Kevin asserted, on more than one occasion during his evidence, that: “The problem between us from the beginning was one of trust”.
[23] Kevin was acquitted by Masse J. in the Ontario Court of Justice on March 30, 2012, with respect to the allegations of domestic violence. While Masse J. ultimately concluded that there was reasonable doubt in finding Kevin not guilty, he nevertheless made the following findings of fact:
a) With respect to an audio recording that Marietta surreptitiously made in December of 2005, Masse J. said:
“The audio recording is very revealing of the accused’s character. Indeed, judging by his behaviour while being audio recorded, it is clear that he is a callous, insensitive, boorish, obnoxious, abusive and self-centered bully.”
b) At one point during the recording Marietta is heard to say: “And you just threw me across the room”, referring to the incident that was alleged to have happened the day before. The accused responded: “I should have thrown you right through the fucking wall and snapped your neck. Everything about you just aggravates me more every day.” As Masse J. found, at no time during this audio recording does Kevin deny Marietta’s assertion that he threw her across the room.
c) While Masse J. found that the surreptitious recording was problematic, for a number of reasons, he agreed with Crown counsel that the recording shows the nature of the relationship that existed between the complainant and the accused and that this recording reveals the accused to be the cad that he is.
d) In considering the entirety of the surreptitious audio recording, Masse J. found it was clear that this “bully lout of a husband was doing his best to be obnoxious, insulting, demeaning, threatening and intimidating.”
ANALYSIS
[24] Marietta has always been the primary parent to the children. Kevin was, at best, ambivalent about having children, and only agreed to have children after extracting the aforementioned promise from Marietta’s mother to serve as a caregiver, in addition to Marietta. The current status quo reflects this historical pattern. To compound matters, Kevin exhibits little to no insight regarding what is needed to meet the children’s best interest, the most stark example being his refusal to acknowledge Ari’s need for counseling arising from the issues at school. Rather, Kevin abrogated his responsibilities as a parent by asserting that Ari should not be made to engage in anything (counseling) that he is not comfortable with. Finally, the power imbalance and Kevin’s default to availing himself of self-help remedies is such that a joint custody regime is not possible in the current circumstances.
CHILD SUPPORT
[25] Kevin is 46 years of age and in good health.
[26] Kevin graduated from University with a Psychology Degree in 1991. He supply taught for a time before starting his own business teaching karate to elementary school children after school hours.
[27] Kevin agreed that he does not have a conventional job. At the date of separation, Kevin was teaching karate a total of 11 hours per week for 39 weeks of the year. At the time of the trial, Kevin was teaching karate 7 hours per week for 39 weeks out of the year.
[28] Annualized on an hourly basis, Kevin was working 429 hours per year at the date of separation and 273 hours per year at the time of trial. In contrast, full-time employment of 40 hours per week x 52 weeks per year = 2,080 hours, minus time off for vacation and statutory holidays.
[29] Kevin agreed that he has never pursued full-time employment prior to or following the separation. Moreover, Kevin has never pursued any type of work during weekends or the summer months when he is not employed teaching karate.
[30] Kevin did not identify any barriers to pursuing alternate or additional work. He conceded that he has not handed out any resumes or made any inquiries about any additional employment, be it part-time or seasonal. Stated plainly, Kevin did not know what other type of work that he might be able to do.
[31] Kevin’s manner of bookkeeping in respect of his karate business is equally unconventional. He agreed that he is paid mostly in cash. He keeps no separate business account into which the money is deposited. And while he does provide receipts to those students and their parents who pay in cash, he admittedly does not keep a copy of the receipts for his own records.
[32] Marietta contends that Kevin has always been very secretive regarding his financial matters. For example, during the entire marriage Kevin directed his mail, including his banking information, to his father’s address at 336 Victoria Street in Tweed, Ontario. Further, while his financial statement, sworn April 2, 2013, lists his home address as 16 Oriole Park, Belleville, Ontario, the tax material appended thereto lists his home address as 336 Victoria Street in Tweed. Moreover, in the statement of business or professional activities, Kevin lists his address as 336 Victoria Street in Tweed, as opposed to the residence at 16 Oriole Park in Belleville. In a similar manner, the documents that Kevin produced to prove the mortgage amount at the Scotiabank, at the date of marriage, lists his address at a P.O. Box 367 in Tweed. Going forward to December of 2009, Kevin’s CIBC account statement continues to show him living at P.O. Box 367 in Tweed. His RRSP documents list his address at the same P.O. Box in Tweed. The insurance application in respect of his karate business list his main address as P.O. Box 367 in Tweed. Accordingly, for reasons that were never explained by Kevin at the trial, I find as a fact that he engaged in a stratagem to keep his financial information and other related financial documents away from Marietta in order to conceal from her, among other things, his actual income.
[33] Kevin’s attitude with respect to paying income tax is consistent with his unconventional employment and record keeping practices. Marietta contended that Kevin paid cash for everything. He drove an older Honda Civic car because he did not want to exhibit a “high life style”. He did not want people to know how much money he made. In all of the years they were together, he never filed a personal tax return. As a result, Marietta felt inhibited to file tax returns and apply for the Child Tax benefit as it might have led to Kevin being assessed by CRA.
[34] Kevin conceded in cross-examination that he had not filed tax returns until he was compelled to do so for purposes of this court proceeding. Thereafter, Kevin’s unsolicited response to his failure to file tax returns was remarkable: “Most people file a tax return because they want to get something back”. One would think that the reasonable response to why individuals file a tax return and pay income tax is because it is the law. For all of these reasons, I find as a fact that Kevin engaged in a stratagem to conceal his true income.
[35] I find as a fact that Kevin did not attach financial disclosure to his financial statement, sworn November 22, 2010.
[36] I find as a fact that Kevin did not provide his income tax returns and related information as ordered by Justice Scott on December 3, 2010.
[37] I find as a fact that Kevin did not provide copies of his income tax returns and notices of assessment until well after these proceedings were underway, as he had not filed tax returns with the CRA for at least 10 years.
[38] I find as a fact that Kevin did not fully comply with his obligations to provide financial disclosure up to and including the time of the trial, specifically income tax returns from 2007 to 2011, with documentation supplied to the accountant, as he was ordered to on August 30, 2012.
[39] I find as a fact that Kevin produced an updated financial statement, sworn April 2, 2013, however, he did not provide the related information or the documentation supplied to the accountant, at the commencement of the trial.
[40] I find as a fact that once the documentation supplied to the accountant was produced during the trial, Kevin provided no accounting evidence as to how his gross income was calculated for 2010 and 2011. Moreover, I find as a fact that Kevin did not produce his 2012 income tax return at trial as he had not yet filed it with CRA. I find as a fact that Kevin provided no banking records, receipt books, profit and loss statements, et cetera, with respect to his gross income for 2010 and 2011.
[41] I find as a fact that the only evidence proffered by Kevin with respect to his gross income for 2012 or his year to date income for 2013 was his bald assertion that his income had gone down due to a loss of schools and students.
[42] I find as a fact that the parties led a comfortable lifestyle, including extensive travel, and were free from debt throughout the marriage. Kevin testified as to the following vacations that the parties took between 1999 and 2009, specifically:
• 1999 – Cuba
• 2000 – France
• 2001 – Cuba
• 2002 – Greece
• 2003 – East coast (Canada)
• 2004 – East coast (U.S.) and Washington, D.C.
• 2005 – Ari born
• 2007 – Bahamas
• 2008 – Mexico
• 2009 – Mexico
[43] Marietta testified that after completing partial studies at Queen’s University and York University, she entered the Accounting and Business Administration Program at a business school in Belleville. She then entered into a CGA program and worked with a local accounting firm, Welch and Company. Thereafter, Marietta worked at Stream International in an accounting position for 10 to 11 years. Marietta had two lengthy maternity leaves in the last five years of the marriage without the family incurring significant debt. Marietta’s financial statement, sworn March 1, 2003, discloses gross annual income of $36,352.35 through her employment at Wilkinson & Company LLP.
[44] In all of the circumstances, Marietta contends that the parties could not have maintained their lifestyle on the level of income that Kevin reported on his income tax returns.
[45] Curiously, while Kevin admitted that the number of karate students fluctuates from year to year, which should impact his level of gross income, his income tax returns consistently show a pattern of gross income of $27,000 to $28,000 annually. Kevin conceded that these were simply numbers that he provided to the accountant, without any source documents to support the figures.
[46] Kevin now claims a debt of approximately $11,000 owing to CRA as a result of his failure to file tax returns during the marriage. Kevin asks that the $11,000 debt be treated as a deduction with respect to the calculation of his net family property.
[47] Marietta contends that Kevin told her on one occasion that he was earning approximately $60,000 per year at a time when his business was not doing that well. Further, Marietta looked through a book that Kevin kept at the time in which he recorded the number of students as being approximately 30 per class. This evidence is consistent with statements made by Kevin to Denise Zouganelis that he could not care for the parties’ children because he was tired from teaching approximately 25 to 30 students, in each class. Moreover, Denise Zouganelis testified that Kevin told her that he was making a pretty good living and earning approximately $60,000 per year.
[48] Marietta’s income in 2010 was $37,912 (Exhibit 24), 2011 $44,243 (Exhibit 22) and 2012 $37,399 (Exhibit 20).
[49] Marietta’s uncontradicted evidence was that she has spent $9,42.76 on the childrens’ daycare, $1,466.00 on their medical needs and $7,340.00 on extracurricular activities from the date of separation until the trial, for a grand total of $18,232.76. Kevin has contributed nothing to these expenses.
[50] I find as a fact that these S.7 expenses were both reasonable and necessary.
ANALYSIS
[51] Section 19(1)(a) of the Child Support Guidelines allows the court to impute income to a spouse who is intentionally under-employed. A parent is intentionally under-employed if they choose to earn less than they are capable of earning. Further, there is intentional under-employment if a spouse stubbornly adheres to a career path which only permits payment of child support at a level inadequate to cover the needs of the children in the face of an ability or capacity to earn more. In addition, S.19(1)(f) of the Child Support Guidelines allows the Court to impute income to a spouse who has failed to provide income information when under a legal obligation to do so.
[52] Kevin, having failed to produce financial disclosure as he was ordered to do so and which the Rules require, leaves open the option for the Court to impute income to him, as Marietta contends the Court should. Although Kevin admitted to Marietta and her mother that he earned gross annual income of approximately $60,000, which would not be difficult for the Court to find based on the parties admitted lifestyle during the marriage, the contention that $54,000 should be imputed to him can be reasonably and rationally supported by the evidence. The average hourly wage for men between 25-54 years of age is $26.07 per hour.[^3] Based on a 40 hour work week, at a figure of $26.00 per hour equals $54,000 of gross annual income. The monthly quantum of child support for two children is thus $802.00. No child support has been paid from January, 2010 until the present, which amounts to 48 months. Accordingly, there are presently $38,496.00 in child support arrears outstanding.
[53] Marietta’s average annual income over the three years was $39,851.33. Kevin’s imputed annual income for each of the three years is $54,000. Accordingly, I find as a fact that the parties shall share the aforementioned retroactive S.7 expenses on a pro-rata basis of 57% for Kevin and 43% for Marietta. As a result, Kevin owes to Marietta the sum of $10,396.62 for his share of the retroactive S.7 expenses.
MATRIMONAL HOME
[54] The transfer/deed of land dated September 3, 1997, shows that Kevin purchased the property known municipality as 16 Oriole Park Drive, Belleville, Ontario, from Kevin Carfra Maclean and Tara Michelle Sweeney. The solicitor who acted for Kevin on the purchase was Michael Black of Belleville.
[55] The property was purchased for $106,000 as sworn to by Kevin on September 4, 1997 and commissioned by Michael Black in the land transfer tax affidavit attached to the transfer/deed of land.
[56] Mr. Black’s reporting letter of November 6, 1997, is addressed to Kevin at 336 Victoria Street, P.O. Box 367, Tweed, Ontario. Notably, the reporting letter makes no mention of Clarence Fobert. Rather, the reporting letter states in the opening paragraph: “I am pleased to report completion of the above-noted transaction. In my opinion subject to the comments in this letter and subject to any defects or encroachments that an up-to-date plan of survey might reveal, you [Kevin] have good and marketable title to the property …”. On the second page of the reporting letter, under the subheading “Insurance”, Mr. Black says: “As you placed your own insurance on the property, no adjustment was made for same.” The letter then refers to certain enclosures, all of which reference Kevin as the purchaser of the property. For example, the trust ledger statement refers to the sum of $49,671.04 received from “you”, meaning Kevin. Similarly, Mr. Black’s fee account is addressed to Kevin. Again, there is no mention of Clarence Fobert.
[57] The mortgage document dated September 4, 1997, which was also prepared by Mr. Black, names Kevin as the “chargor”, with respect to the mortgage placed with the National Trust Company. Clarence Fobert and Diana Fobert are named as guarantors.
[58] Recall that the date of marriage was August 21, 1999. Marietta testified that at all times leading up to the date of marriage, Kevin asserted that he was the sole owner of 16 Oriole Park Drive. Moreover, Kevin continued to assert that he was the sole owner of the property following the date of marriage. It was not until following the date of separation that Kevin changed his story and contended that his father was the sole owner of the property. Denis Zouganelis testified that Kevin consistently held out to her that he was the sole owner of the property, both prior to and following the date of marriage. Again, it was not until after the date of separation that Kevin disclosed that his father was actually the owner.
[59] Kevin contends that he was in no position to purchase a home in 1997, but he very much wanted to establish a credit rating. As a result, his father agreed to purchase the home and put it in Kevin’s name. Thereafter, Kevin was expected to make the mortgage payments. However, with the date of marriage looming, Kevin asserted that his father wanted some assurance that in the event of marriage breakdown he (Clarence) would not lose his investment. As a result, Kevin contends that his father asked for title to the home to be transferred into his name.
[60] On August 20, 1999, the day prior to the wedding, Kevin and Clarence Fobert attended at Mr. Black’s office to execute a transfer/deed of land transferring the property from Kevin to Clarence. Admittedly, Kevin never told Marietta anything about the attendance at the lawyer’s office. Rather, as Marietta testified, while she was off decorating the church for the wedding the following day, unbeknownst to her, Kevin and his father attended at the lawyer’s office to effect the transfer.[^4] In the land transfer tax affidavit attached to the transfer/deed of land, the sole consideration shown is assumption of the mortgage at $62,900, as sworn to by Clarence Fobert on August 20, 1999. However, on the very same day before the same lawyer, Clarence Fobert executed a second transfer/deed of land (Quit Claim Deed) from him to Kevin, which Kevin admittedly maintained control over, but never registered on title. Further, Kevin swore a land transfer tax affidavit attached to the Quit Claim Deed listing $2.00, natural love and affection as the sole consideration, which was sworn August 20, 1999.
[61] Marietta’s position is that the execution of the Quit Claim Deed by Clarence Fobert and delivery to Kevin was enough to result in the release of Clarence’s interest in the matrimonial home property in favour of Kevin, such that registration of the Quit Claim Deed was not necessary. Accordingly, Marietta contends that the matrimonial property has been in the legal ownership of Kevin since August 20, 1999, and so the value should be included in his net family property. In the alternative, Marietta contends that the conveyance of the matrimonial home property from Kevin to Clarence Fobert and the holding of the unregistered Quit Claim Deed by Kevin is “property disposed of over which Kevin had the power to revoke”, such that the value of the matrimonial home property should be included in Kevin’s net property family statement. Further in the alternative, Marietta asserts that Clarence Fobert has been holding the matrimonial home property in trust for Kevin since August 20, 1999, such that the value of the matrimonial home property should be included in the net family property of Kevin.
[62] Kevin contends that he never owned the property. His father came up with the down payment in order to help him establish his credit rating. His father did not want to compromise his investment in the event that the marriage broke down. As a result, Clarence Fobert insisted that the house be transferred back to him. Further, the Quit Claim Deed was meant only as an estate planning tool in the event of Clarence’s death in order to ensure that the house went to Kevin. Kevin testified that he did not want the financial responsibility of owning a house, particularly this house. Rather, he wanted to save his money for travelling. Kevin’s position was the same with respect to the renovations that were done to the house, which he contends his father paid for. Put simply, he would never have invested any money in this house for the renovations that were undertaken.
Analysis
[63] The preponderance of the evidence shows that Kevin was the owner of the property. Put bluntly, transfer of the title to the property by Kevin to his father on the day before the wedding and the contemporaneous transfer back to Kevin, by way of the unregistered Quit Claim Deed, was a sham. Firstly, notwithstanding the evidence from Kevin and Clarence Fobert, there was no objective evidence to substantiate the contention that the down payment indicated in Mr. Black’s reporting letter was paid by Clarence Fobert. Rather, the only documentary evidence on this point shows the down payment coming from Kevin. Secondly, the reporting letter indicates that the down payment was received from Kevin. If there was any evidence to the contrary, Kevin and/or Clarence Fobert could have summonsed Mr. Black to attend at the trial and to produce his file. In the event that Mr. Black’s file was no longer available, surely Mr. Black could have been summonsed to testify regarding any arrangement as between father and son that was contrary to what Mr. Black reflected in his reporting letter and the transfer documents, if indeed that was the case. Thirdly, the uncontradicted evidence was that Kevin paid the mortgage, taxes and insurance on the home from 1997 to 1999. After the property was purportedly transferred to Clarence Fobert, Kevin testified that he paid the mortgage for 9 out of 12 months of the year, and paid taxes and insurance for all 12 months of the year from 1999 until shortly before the trial, when the small balance on the mortgage was purportedly paid off by his father. By rough calculation, Kevin paid approximately $90,000 towards a home that he purportedly did not own, which does not square with his evidence that he never wanted to invest in a home, particularly this home, so that he could save his money to travel. Fourthly, Kevin testified that he contributed much of the labour to the renovations to the home in addition to contractors, who he interacted with, with some help from Marietta’s father and her uncle. There was no evidence that Clarence Fobert took part in the renovations in any way. Fifthly, Marietta testified that Kevin paid in cash for the renovations to the home. Sixthly, Kevin testified that his father paid for the renovations and that Kevin maintained the receipts until they went missing. Kevin asserted that Marietta removed the receipts from the matrimonial home. However, Clarence Fobert testified that he kept all of the receipts until several years ago when he disposed of them. On this point, Kevin and his father contradicted each other.
[64] I find as a fact that both Kevin and Clarence Fobert’s credibility was seriously challenged in cross-examination. Not only was their evidence internally inconsistent, particularly Kevin’s, but they also contradicted each other. As a result, I place no weight on the truthfulness of their testimony. The objective, contemporaneous documentary evidence completed at the time of purchase shows that Kevin was the legal owner of 16 Oriole Park Drive. Again, the transfers effected on the day prior to the date of marriage were a sham. Thus, Kevin was the legal owner of the property at the date of marriage, which was where the parties resided at the date of separation and as such it is a matrimonial home for purposes of equalization.
[65] The parties filed with their written submissions a Joint Net Family Property Worksheet (“JNFPW”) identifying both those figures in respect to which they agree, and where they disagreed they provided the rational for their respective positions, with reference to the evidence. The JNFPW appears as Schedule 1 to this Decision.
[66] For the reasons earlier articulated, I find as a fact that Kevin was the legal owner of 16 Oriole Park at the date of marriage and thus it is a matrimonial home for purposes of equalization at the date of separation.
[67] I accept Kevin’s position as reflected in Note #1 to the JNFPW that the matrimonial home is appropriately valued at $170,000 at the date of separation, based on the evidence of Mr. Goerke. On this point Mr. Goerke’s evidence is preferred.
[68] I accept Marietta’s position as reflected in Note #2 to the JNFPW that Kevin should not be allowed to deduct $11,621.78 owing to CRA at the date of separation for 10 years of accumulated, unpaid taxes. Had Kevin paid his taxes on an annual basis, which in his evidence he estimated to be approximately $1,000 per year, there would have been no debt owing to the CRA at the date of separation. Moreover, Kevin conceded in cross-examination that he plans to make an assignment in bankruptcy and will thus not actually be responsible to pay this debt. Finally, there was no evidence proffered by Kevin of repayment of the debt at the time of trial.
[69] I accept Marietta’s position as reflected in Note #3 to the JNFPW. Apart from Kevin’s evidence, which was largely incredible, there was no objective evidence to support the purported debt of $14,040.00 owing to Mr. Stan Grmorsek for the purchase of the Harley Davidson motorcycle. Kevin was able to produce the bank draft for the purchase of the bike but was not able to produce any documents to prove the loan or the terms of the loan to Mr. Grmorsek, a disbarred lawyer who admittedly was attempting to evade law enforcement. Moreover, I find as a fact that Kevin attempted to hide this asset by not disclosing the bike in his Financial Statement, sworn November 22, 2010. Kevin came up with the story about the debt owing against the bike only after Marietta produced a Net Family Property Statement in which she showed the asset belonging to Kevin.
[70] For the same reasons, I reject the $1,000 debt that Kevin shows owing to his father for the retail sales tax that he contends he borrowed from Clarence Fobert when Kevin purchased the bike, as reflected in Note #4 to the JNFPW. There was no documentary proof that Kevin actually paid the retail sales tax on the bike. Moreover, Clarence Fobert testified but was never asked in his examination in-chief to explained the purported $1,000 debt owing to him. Rather, the purported debt was never acknowledged by Clarence Fobert.
[71] I do not accept Kevin’s position regarding the purported debt owing to his father of $120,000 for contributions made by Clarence Fobert to the matrimonial home, as reflected in Note #5 to the JNFPW. Firstly, neither Kevin or his father provided any evidence as to how the figure of $120,000 was arrived at. Secondly, the debt did not appear on either of Kevin’s previously sworn Financial Statements or the Net Family Property Statement served by Kevin at the commencement of the trial. It was Kevin’s evidence that, owing to the manner in which he admittedly paid the mortgage over the years, he would have contributed approximately $90,000 towards a house with a purchase price of $106,000. Clarence Fobert testified that he never expected to receive reimbursement from Kevin for the few mortgage payments that he did pay. To recall, there was no objective evidence to support the contention that the $40,000 down payment came from anyone other than Kevin, as confirmed in Mr. Black’s reporting letter and trust ledger statement. In respect of the assertion that Clarence Fobert contributed approximately $40,000 towards the renovations, Trousdale, J. made an Order in August, 2012, for Kevin to provide disclosure with respect to the renovation expenses. I find as a fact that no such disclosure was ever provided. Thus I draw an adverse inference against Kevin and Clarence Fobert that no such evidence ever existed. To recall, Kevin and his father contradicted each other in respect of this issue. Kevin contended that he kept all of the receipts for the renovations in a box at the home but alleged that Marietta must have found them and taken them. Clarence Fobert testified that he had all of the receipts for the renovations but that he discarded them years ago. Nevertheless, Clarence Fobert conceded in cross-examination that he did not expect to receive payment or reimbursement from Kevin for any monies spent on the renovations.
[72] In respect of Note #6 to the JNFPW, I accept Marietta’s position that the Mazda Miata owned at the date of marriage is appropriately valued at $10,000. Marietta testified that in approximately 2006 she obtained an appraisal for purposes of placing insurance on the vehicle which estimated its value at $9000. Thus it is reasonable that the vehicle was worth at least $10,000 approximately 7 years earlier.
[73] In respect of Note #7 in the JNFPW, I reject Kevin’s position that he had $1,100 in RRSP’s at the date of marriage. Firstly, Kevin was not able to produce any objective evidence to corroborate the existence, let alone the value of RRSP’s owned by him at the date of marriage. Secondly, Kevin’s evidence on the whole was not credible.
[74] Having considered the evidence, the positions of the parties and making adjustments for those figured which I accept and those which I reject, I make the following findings of fact:
a) Marietta’s Net Family Property = $53,425.29;
b) Kevin’s Net Family Property = $174,490.38;
c) $174,490.38 - $53,425.29 = $121,065.09 ÷ 2 = $60,532.54; therefore
d) Kevin owes to Marietta an Equalization Payment of $60,532.54.
Charging Order
[75] Marietta seeks an Order that any lump sum amounts owing from Kevin to her that arise out of the judgment be secured as a charge against the matrimonial home.
[76] Section 9(1)(b) of the Family Law Act grants the Court the power to make an Order that security, including a charge on property, be given for the performance of an obligation imposed by an Order for equalization of property.
[77] Section 34(1)(k) of the Family Law Act grants the Court the power to secure the payment under an Order for support by a charge on property.
[78] Kevin testified that he will make an assignment in bankruptcy. Such an assignment would defeat any debt owing from Kevin to Marietta on account of equalization of property. Moreover, while such an assignment would not defeat child support arrears or S.7 extraordinary expense arrears, the nature of Kevin’s self-employment, which is admittedly cash based and secretive as I have found, will make it very difficult for the Family Responsibility Office to enforce payment of the arrears.
[79] For all of these reasons a Charge Order shall issue, as requested.
Held
[80] The Applicant shall have sole custody of the children Aristotelis Clarence Fobert, born September 15, 2005 and Markos Alexandros Petros Fobert, born July 2, 2009.
[81] The Applicant shall keep the Respondent, Kevin Fobert, informed of all issues touching on the health, education and general welfare of the children including providing information with respect to any medical appointments or treatments they may have, information regarding school including report cards and information regarding the children’s extra-curricular activities.
[82] The Respondent, Kevin Fobert, shall have access to the children on:
a) Alternating weekends from Saturday at 9 a.m. to a drop off at school/daycare on Monday morning; and
b) Every Wednesday from after school (approximately 3:45 p.m.) to 6:30 p.m.; and
c) At such other times as the parties can agree.
[83] In addition to the regular access as stated above, the parties shall share holidays as follows:
d) Easter – The parties shall arrange the alternating weekends to ensure the Applicant’s weekend falls on the Greek Easter and the Respondent’s weekend falls on the Canadian Easter.
e) Christmas – Commencing in 2013 the Applicant shall have the children for Christmas Eve and up to 2 p.m. on Christmas Day and the Respondent shall have the children from 2 p.m. on Christmas Day until December 26 at 6 p.m.
f) One full week of access in the summer months with the Respondent, Kevin Fobert, to advise Applicant by May 1st of each year of his desire week.
[84] The Respondent, Kevin Fobert, shall pay child support to the Applicant for the support of the children, Aristotelis Clarence Fobert, born September 15, 2005 and Markos Alexandros Petros Fobert born July 2, 2009 in the amount of $802.00 per month commencing January 1, 2014 and on the first of each month thereafter based on an imputed annual income of $54,000.
[85] There shall be a charge on the property at 16 Oriole Park, Belleville, Ontario, as against both Respondents, Kevin Fobert and Clarence Fobert, equivalent to the total of all lump sum amounts that the Respondent, Kevin Fobert, owes to the Applicant under this Order and such charge only to be discharged from title once all lump sum amounts owing by the Respondent, Kevin Fobert, to the Applicant have been paid in full.
[86] Child support arrears owing from January 15, 2010 to December 1, 2013 are fixed at $38,496 and are payable in full within 60 days.
[87] The parties shall share extraordinary expenses for the children in a ratio of 57% for the Respondent, Kevin Fobert, and 43% for the Applicant. The Applicant shall provide a copy of the receipt for the expense to the Respondent, Kevin Fobert, within 14 days of incurring it and the Respondent, Kevin Fobert, shall reimburse the Applicant for one half of the payment within a further 14 days.
[88] The Respondent, Kevin Fobert, shall pay to the Applicant as his share of already incurred extraordinary expenses the sum of $10,396.62 payable within 60 days.
[89] A declaration that the property located at 16 Oriole Park, Belleville, Ontario, is owned by the Respondent, Kevin Fobert, and as such the sum of $170,000 shall be added to the Net Family Property for the Respondent, Kevin Fobert.
[90] The Respondent, Kevin Fobert, shall make an equalization payment to the Applicant of $60,532.54 payable within 60 days.
[91] If there are any amounts owing under this Order by the Respondent, Kevin Fobert, to the Applicant within 60 days that have not paid in full within 60 days, the matrimonial home at 16 Oriole Park, Belleville, Ontario, shall be sold and the Applicant paid in full under her Charge.
[92] The parties are hereby divorced.
[93] The issue of Costs shall be addressed in a separate Decision.
_____________________________
Justice Brian W. Abrams
Released: December 20, 2013
BELLEVILLE COURT FILE NO.: FS-10-0353-00
DATE: 20131220
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marietta Zouganelis-Fobert
Applicant
- and -
Kevin John Fobert
Respondent
DECISION
Abrams J.
Released: December 20, 2013
[^1]: Marko was only 6 months old at the date of separation when Marietta was still on maternity leave. Thus there was little history of Kevin parenting Marko. [^2]: Notably, counsel for the Respondent contended in his opening statement that his client would show that he enjoyed at least 40% access time with the children. In the end, that contention was not supported by the evidence. [^3]: Government of Canada – Statistics Canada for Ontarians in 2012. [^4]: Kevin’s complaint that “the problem between us from the beginning was one of trust” is indeed apt. However, it was not Marietta who lacked trust or could not be trusted. She trusted Kevin absolutely. It was Kevin who failed to place his trust in Marietta, as evidenced by him hiding his financial information from her over the entire marriage and plotting to defeat her claim to the home on the day prior to the wedding.