ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-11-71232-00
DATE: 20140107
B E T W E E N:
TIMOTHY EDOCHIE OKAFOR
Joan C. Manafa, for the Applicant
Applicant
- and -
ANNYKA BOWYER-OKAFOR
Self-represented
Respondent
HEARD: November 7, 8, December 4, 2013
JUDGMENT
Bielby, J.
INTRODUCTION
[1] The parties are husband and wife. They commenced living together on December 27, 2007, and were married on February 23, 2008. They separated on June 30, 2010.
[2] There is no chance of reconciliation.
[3] At the completion of the trial, I granted the divorce and reserved judgment on the issues of child and spousal support and the equalization of net family properties.
[4] There is one child of the marriage, Xavier Emeka Okafor, born May 5, 2008.
[5] The issues of custody and access have been resolved pursuant to Minutes of Settlement, dated February 27, 2013. The parties have joint custody of their son whose primary residence is with his mother, the respondent. The applicant father has access weekly and on alternate weekends.
[6] The matrimonial home, known municipally as 100 Sandy Cherry Crescent, Brampton, and registered in the sole name of the applicant has been sold and the net proceeds remain in a solicitor’s trust account ($73,387.28).
[7] On March 21, 2011, Daley J. ordered the applicant to pay $651.00 per month to the respondent for child support, commencing April 1, 2011.
[8] The quantum of child support was based on the applicant’s disclosed income in his financial statement dated September, 30, 2010, of $70,600.00.
[9] By order, dated July 13, 2011, the applicant was ordered to pay retroactive support from September 30, 2010 to March 1, 2011.
[10] By Minutes of Settlement dated, I believe, July, 2011, the applicant advanced $1,000.00 to repair a gas leak and is to get a credit of $500.00 from the proceeds of sale of the matrimonial home.
[11] Van Melle J. made an order on February 22, 2012. It was ordered that the sum of $3,300.00, being the retroactive child support, was to be paid from the proceeds of sale. Child support continued, to be paid on the 6th of each month, in the amount of $650.00.
CHILD SUPPORT
[12] In his endorsement of June 13, 2012, Price J. noted that the applicant earned $62,451.00 in 2010 and that while he lost his job in February, 2012, the learned judge noted the applicant had “marketable skills”. Price J. ordered that on a monthly basis the applicant was to advise of his efforts made to obtain new employment.
[13] Exhibits 1 and 2 are document briefs filed by the applicant. Exhibit 3 is the spread sheet calculations prepared by the applicant.
[14] The respondent did not provide any documentation at trial in regards to any of the issues. A review of the trial record would indicate that the respondent generally failed to meet her disclosure obligations. The applicant is a certified general accountant and has provided a substantial amount of disclosure to corroborate his calculations in regard to support and equalization.
[15] Therefore, in regards to what monies have been exchanged and as to the value of assets and liabilities, I have accepted the evidence of the applicant unless I specifically state otherwise.
[16] The applicant testified as to his income over the past few years and the child support he ought to have paid. The numbers are set out as follows:
2010 $62,451.00 $575.00/month
2011 $31,982.00 $281.00/month
2012 $48,543.73 $437.00/month
[17] For the year 2013, the applicant testified his income is the same as it was in 2011.
[18] The applicant submits that the total child support that should have been paid from separation to the end of 2013 is $15,732.00.
[19] The applicant submits that the total amount of money paid to the respondent and which should be attributed to child support is $30,330.72 (see page 1, Exhibit 3). This figure includes support paid pursuant to the interim orders.
[20] Included in that figure are monies paid for some utilities on the matrimonial home. After separation, the respondent remained in the home with Xavier until the house was sold.
[21] For the purposes of child support calculations, I will delete the utility payments and find that the total child support paid was $25,388.96.
[22] I will account for the balance of the monies paid, $4,941.80, when I consider spousal support.
[23] With respect to the applicant’s 2011 tax return, while his line 150 income is $31,982.75, his income from employment was $66,965.53. For the year 2011, the applicant claimed a business income loss of over $46,000.00. He also claimed a rental income loss of over $3,700.00.
[24] For support purposes I will impute to the applicant, an income figure of $51,987.40 for the year 2011 rounded up to $52,000.00. Neither the business loss nor the rental income loss was explained. I am not persuaded that the applicant’s real income for that year was so much lower than the year before. No explanation was offered as to the loss.
[25] As noted previously, the applicant lost his job early in 2012. His income for that year is made up of employment income ($23,157.23); employment insurance income ($9,700.00); RRSP income ($15,061.60); other income ($14,803.15); and a business loss ($14,178.63).
[26] Very little evidence was led regarding the applicant’s efforts to obtain new employment. As noted by Price J., the applicant has marketable skills and was to keep a monthly record of his efforts at obtaining employment. No such record was brought to my attention and no evidence was led with respect to the applicant’s efforts to obtain employment.
[27] The applicant testified that he is currently on Ontario Works and resides with his sister. He receives $700.00 per month and pays rent of $400.00 per month.
[28] Contained in Exhibit 7, a supplementary document book is a doctor’s note suggesting a back injury which prevents the applicant from any heavy labour. While this evidence is hearsay and not properly before the Court, in any event the applicant is trained as an accountant - a job which does not require physical labour.
[29] The respondent testified that she believed the applicant was hiding income in an effort to avoid support. She testified that the applicant is someone who has always worked and earned monies.
[30] The applicant submits he is prepared to pay child support of $300.00 per month and that the Court may impute an income of $37,500.00, being the income necessary to generate the offered child support pursuant to the Child Support Guidelines.
[31] There is no doubt the applicant lost his employment. However, for support purposes for the years 2012 and 2013, I will impute an income of $52,000.00. The applicant has the capacity to earn such income and likely more. He has not provided any real evidence as to why he cannot work in the accounting field, nor has he provided any job search particulars as required to by Price J.
[32] The child support obligation based on an income of $52,000.00 is $469.00 per month for one child and amounts to $9,228.00 annually.
[33] Therefore the total support which ought to have been paid from separation to the end of 2013 is $19,984.00.
[34] The overpayment is then calculated to be $5,404.96.
[35] I am not persuaded on the evidence before me that the applicant cannot earn income, in the range of $52,000.00 per annum, and commencing January 1, 2014, the applicant is to pay to the respondent child support of $469.00 per month. The interim order is to remain in effect until December 31, 2013.
SPOUSAL SUPPORT
[36] The parties were together for a total of two and a half years, approximately.
[37] The respondent testified that at the time she met the applicant, she worked in a candy factory in Mississauga. She was unsure what she earned, but thought it was around $14.00 per hour.
[38] The respondent testified that shortly after she met the applicant, he told her he would take care of her, and asked her to quit her job.
[39] Her employment thereafter was sporadic. Of course, for part of the time she was pregnant with Xavier and after his birth, the respondent was a nursing mother.
[40] Any work she did get was through an employment agency.
[41] The respondent testified that she did not want to work through an agency anymore. She testified that she wanted to return to school and be a dermatologist. She did register in the transitions program at the University of Toronto which was to last for a year. The program, if completed, would allow the respondent to apply for university. The respondent dropped out of the course before Christmas, alleging the applicant was jealous of the people she met and forced her to quit.
[42] The parties have now been separated for over three years and the respondent testified that she has not looked for any employment since separation, and has done nothing to upgrade her skills or further her education. She submits the applicant has an obligation to support her.
[43] During her closing submissions, the respondent advised the Court she was involved in two motor vehicle accidents. The applicant and their son were also involved in the first accident. The second accident occurred a year after the first accident. She submitted that as a result of the injuries she sustained, she is unable to work and referenced a disability certificate that had been filed somewhere in the continuing record at some court proceeding before the trial.
[44] Such a disability has not been proven. There is no corroborative medical information to support a disability claim.
[45] The respondent worked at a minimum wage job before she met the applicant. While the respondent is currently on Ontario Works, I agree with counsel for the applicant that for spousal support purposes, at some point after the separation, it is reasonable to impute a minimum wage income to the applicant of $21,500.00.
[46] The respondent has done very little to better herself financially since the date of separation. The respondent testified that the stress of this litigation has made it difficult for her to get on with her life. I do not accept this as true or reasonable.
[47] I find that the respondent was not economically disadvantaged as a result of the marriage. The marriage was of short duration, and I do not believe the applicant has any long term obligation to pay spousal support. However, at the date of separation, the respondent was caring for an infant child and financially dependent on the applicant. As a result, and for a reasonable period of time to allow for a transition, I find there is an obligation on the applicant to pay spousal support.
[48] I must now consider what would have been a reasonable amount of spousal support since separation and for what length of time.
[49] With respect to duration, spousal support shall terminate on December 31, 2013. On a two and a half year marriage I believe three and a half years of spousal support, in these circumstances, is appropriate.
[50] On an income of $62,451.00, for 2010, the spousal support guidelines show a range of support from $1,105.00 per month to $1,412.00 per month, assuming the respondent has no income. Given the circumstances of this matter, I think the guidelines are somewhat excessive.
[51] Commencing July 1, 2010, I find that a reasonable amount of spousal support would have been in the range of $950.00 per month.
[52] For the years 2011 to 2013, inclusive, I will again impute an income of $52,000.00 attributable to the applicant.
[53] The range of spousal support, pursuant to the Guidelines and not imputing any income to the respondent, is $879.00 per month to $1,135.00 per month.
[54] For the year 2011, given the circumstances I find that spousal support of $650.00 per month would be reasonable.
[55] For the years 2012 and 2013, I impute a minimum wage income to the respondent of $21,500.00 per annum. By that point, a year and a half after separation, it would have been reasonable for the respondent to have found some employment.
[56] In these circumstances, the range of spousal support pursuant to the guidelines is $0.00 to $214.00 per month, the mid-range being only $24.00 per month.
[57] For the years 2012 and 2013, I find that no spousal support would be payable.
[58] The applicant has not paid any direct spousal support to the respondent; and subject to adjustment, the arrears of spousal support are notionally considered to be in the range of $13,500.00.
[59] I now turn to the expenses and other payments the applicant testified he made on behalf of the respondent.
[60] I have determined that there has been an overpayment of child support of $5,404.96, which, as noted, will be a credit against any spousal support arrears.
[61] A portion of the monies paid to maintain the matrimonial home after separation while the respondent resided therein will also be considered as a set off and amount to $4,941.80 as noted previously. Exhibit 3 contains calculations of all the monies paid by the applicant in respect of the carrying cost of the matrimonial home over the period when the respondent resided therein after the date of separation. These expenses are, in total, greater than what I have calculated the spousal support which should have been paid.
[62] The applicant required a court order to have the house sold. The sale closed on October 31, 2011, a year and four months after separation.
[63] I conclude that the expenses paid by the applicant directly or indirectly as house expenses, together with the child support over-payment should be treated as a complete set-off in relation to the spousal support that should have been paid. There is no spousal support owing to the respondent, nor do I find that the respondent owes any monies to the applicant with respect to any of the expenses paid.
[64] In reaching this conclusion I was not persuaded that, after separation, members of the respondent’s family lived with her in the matrimonial home and have not made any adjustments in regards thereto.
[65] I have not failed to consider that spousal support has income tax implications. However, on the incomes reported by the parties (as opposed to imputed income for support purposes) I doubt those implications would be significant to either party.
PROPERTY CLAIMS and EQUALIZATION
[66] As noted previously, while the parties were together they were in a car accident. Their son was with them at the time. The applicant submits that after deducting legal fees, the parties each received $7,500.00. The applicant testified that he put the full $15,000.00 against his line of credit. Monies were also received related to child care expenses. The applicant testified these monies were used to maintain their lifestyle.
[67] The respondent disputes this evidence and submits that the monies received were more and that the child care monies went to buy the applicant’s current motor vehicle. In her closing submissions, the respondent asked that she receive back her share of the insurance monies, although she could not say with any certainty what the amount was and had no corroborating evidence.
[68] The applicant in his disclosure provided the documents to show the deposit of the $15,000.00 in the joint account and the timely pay down of the line of credit in the same amount (June, 2010).
[69] I accept the evidence of the applicant in this regard given the corroboration.
[70] The matrimonial home was purchased in December, 2007. It was registered in the sole name of the applicant. The applicant submits that he put up the entire down payment of $30,000.00. $20,000.00 of that was taken from his RRSP’s as a first time home owner, and $10,000.00 was taken from his line of credit. The applicant testified that the respondent contributed nothing.
[71] The applicant’s evidence was corroborated by RRSP and line of credit statements.
[72] The respondent testified that she contributed $4,000.00 to the closing costs, which was denied by the applicant. Again, I accept the evidence of the applicant given the corroboration.
[73] With respect to the contents of the home, the applicant alleges the respondent took all but a couch. The respondent contests this. There is no valuation submitted in regards to the contents at the date of separation.
[74] The applicant offers that based on his research, the car he owns was worth $3,000.00 at separation. I will accept this figure.
[75] I will grant the applicant a credit of $560.00, being the expense he incurred to clean out the matrimonial home after the respondent moved out.
[76] The respondent is also to be credited with $500.00 in regards to the monies paid out to fix the leak mentioned previously.
[77] The applicant seeks repayment of a portion of the interest accrued on the line of credit which the applicant calls the family loan.
[78] The applicant is entitled to deduct, from his net family property value, the full value of this debt. I am not persuaded he is entitled to any adjustment for interest.
[79] In Exhibit 3, Item 4, the applicant seeks a 50% credit for the child day care he paid of $2,850.00. No such credit will be allowed. Any such claims are to be proportionate to income. I will not attribute any income to the respondent for that period.
[80] For equalization purposes, I accept for the most part the values attributed to the applicant’s assets and liabilities both at the time of marriage and the date of separation, with one exception. The applicant submits that at the date of marriage he had general household assets and vehicles having a value of $11,850.00. I have no evidence in that regard. The car the applicant presently owns was acquired after marriage. I will allow a claim for $3,000.00 as the applicant did own a car when the parties married.
[81] The respondent testified she did not have any significant debt or assets at the date of marriage and at the date of separation only had the contents she removed from the house. She had no other assets, and the debts were all in the name of the applicant.
[82] The applicant filed a net family property statement dated November 26, 2013, and it was received as Exhibit 6. No such statement was filed by the respondent.
[83] Accordingly, for equalization purposes I have determined the applicant’s net family property value to be $25,582.37. There are no financial entries whatsoever in regards to the respondent. The equalization number is therefore $12,791.19.
[84] Counsel for the applicant argued that there should be no equalization. She did not, however, provide her reasons nor provide any authority.
[85] The only reason that suggests itself is the short duration of the marriage.
[86] Section 5 of the Family Law Act deals with equalization. Section 5(6) allows for the variation of the equalization if any one of a number of factors is present. Subsection (e) therein allows a variation having regard to the fact that the amount a spouse would otherwise receive is disproportionately large in relation to a period of co-habitation that is less than five years.
[87] I find that the equalization payment is not disproportionately large.
[88] In addition, the application filed to commence these proceedings sought an equalization of net family properties. There was no claim for an unequalization.
[89] I see no reason to vary the equalization figure, and the applicant owes to the respondent for equalization the sum of $12,719.19.
[90] From the figure, the sums of $560.00 and $500.00 are to be deducted, as noted previously.
[91] Therefore I order the applicant pay to the respondent for equalization purposes and the respondent have judgment for the sum of $11,659.19.
[92] The said judgment amount is to be paid to the respondent from the sale proceeds held in trust, and the balance of the funds are to be released to the applicant as the house was registered in his name alone.
[93] With respect to child support a Support Deduction Order is to issue.
[94] With respect to costs, the parties can make written submissions to me within 21 days of the release of this judgment. The submissions are to be no more than three pages in length.
Bielby J.
Released: January 7, 2014
COURT FILE NO.: FS-11-71232-00
DATE: 20140107
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
TIMOTHY EDOCHIE OKAFOR
Applicant
- and –
ANNYKA BOWYER-OKAFOR
Respondent
JUDGMENT
Bielby J.
Released: January 7, 2014