ONTARIO
Court File Number / Numéro de dossier du greffe:
FS-13-0191
Superior Court of Justice,
277 Camelot Street, Thunder Bay, Ontario, P7A 4B3 Endorsement / Inscription
(Name of court / Nom du tribunal)
Date
Mar 27/14
Applicant(s) / Requérant(e)(s): Cindy Lisa Maureen Sakakeep Present / Comparaît
Counsel / Avocat(e): William G. Shanks x Present/ Comparaît
Duty Counsel / Avocat de service
Respondent(s) / Intimé(e)(s): Robert Baxter Present / Comparaît
Counsel / Avocat(e): Present/ Comparaît
Duty Counsel / Avocat de service
__ Order to go in accordance with minutes of settlement or consent filed. /
Ordonnance conformément au procés-verbal de l’audience de transaction ou le consentement déposé.
Heard : March 25, 2014
1Summary judgment motion heard. Jordan Lester appearing for the Applicant. The Respondent not represented and not present.
2The Applicant and Respondent began to live together in September 1994 and separated in January 2005. They have lived separated and apart since that date.
3The Applicant and Respondent have three children:
i) Brittany Baxter, born April 1, 1996;
ii) Brandon Baxter, born August 28, 2003; and
iii) Braydon Baxter, born March 18, 2005.
4This application was issued on June 14, 2013. A case conference was held on August 15, 2013. It is not clear from the endorsement of that date, but it appears that Mr. Baxter attended the case conference and was self-represented.
5At the case conference, Mr. Baxter, the Respondent, was ordered to file his Answer/Claim and Financial Statement by September 30, 2013. He was also ordered to serve tax returns and other financial information by September 30, 2013.
6The Respondent has never filed an Answer/Claim. The Respondent did file a Financial Statement, dated and sworn September 19, 2013. This Financial Statement of the Respondent had attached to it the Respondent’s 2010, 2011 and 2012 T4s, from Nishnawbe-Aski Police Services and a pay stub for the pay period ending August 1, 2013.
7Due to the Respondent’s default, the Applicant has brought this motion for summary judgment in which she seeks an order for the following relief:
(1) sole custody of the three children of the relationship
(2) child support and a proportionate contribution from the Respondent to the Applicant’s s. 7 expenses for the children;
(3) requiring the Respondent to designate the children and/or the Applicant, in trust for the children, as irrevocable beneficiaries of his employment life insurance policy;
(4) requiring the Respondent to designate the children as beneficiaries of his employment benefit plan;
(5) requiring the Respondent to provide to the Applicant a copy of his income tax returns and Notices of Assessment for each year by June 30 of each year beginning with 2014;
(6) costs of the summary judgment motion.
8The evidence on this motion consisted of the following:
(1) the Applicant’s affidavit, sworn December 30, 2013;
(2) the affidavit of Ms. Norma Badi, law clerk in the office of the Applicant’s solicitor; and
(3) the oral evidence of the Application, via teleconference.
9The Applicant resides in the remote First Nation community of Kingfisher Lake, where she is employed on a full-time basis as a registered nurse. The two younger children reside with her. Brittany, who is 17 years of age, attends school in Thunder Bay and returns home to live with her mother for summer, Christmas and spring vacations and some weekends during the school year.
10The evidence before this court on this motion, which is completely unchallenged, indicates that the Applicant has always been the primary caregiver to all of the children, before and after separation and to the present date. The Respondent does not make any effort to exercise access to the children.
11I am satisfied there is no requirement for a trial on the issues of custody and access. A final order shall issue granting the Applicant sole custody of the three children, Brittany Baxter, born April 1, 1996, Brandon Baxter, born August 28, 2003, and Braydon Baxter, born March 18, 2005. This order shall be silent as to access.
12The issues before the court were previously before the Ontario Court of Justice in Thunder Bay. On July 26, 2005, Kunnas J. made an order requiring the Respondent to pay to the Applicant child support in the amount of $1,000.00 per month beginning on December 1, 2005. This order has not been varied. This order was stayed on July 3, 2013 as a result of this Superior Court proceeding having been commenced. Thus, the Respondent’s child support obligation to the Applicant for the period of time up to and including July 2013 has been addressed in the Ontario Court of Justice proceeding. All child support having accrued pursuant to the July 26, 2005 final order up to and including July 2013 remains payable by the Respondent to the Applicant.
13On this motion, the Applicant requests that I make an order requiring the Respondent to pay to her child support for three children, beginning August 1, 2013, in the amount of $1,734.00 per month, based on income of the Respondent in the amount of $80,035.00. This income figure is the income the Respondent swore to be receiving in his Financial Statement filed in this proceeding in September 2013. The Respondent is of First Nations descent and is deemed to earn his income on a First Nations community. His income is therefore exempt from income tax. The child support figure above takes into account the tax free status of the Respondent’s income.
14I am satisfied that this issue does not require a trial. The Applicant’s position as to the quantum of child support which should be paid by the Respondent is quite reasonable given that the income disclosed in the Respondent’s 2011, 2011 and 2012 T4s is substantially higher than the $80,035.00 per year figure found in the body of his Financial Statement.
15A final order shall issue requiring the Respondent to pay to the Applicant child support in the amount of $1,734.00 per month beginning August 1, 2013, and payable on the 1st day of each month thereafter.
16The Respondent shall provide to the Applicant a copy of his T1 General Income Tax Return and Notice of Assessment by June 30 of each year beginning in 2014.
17The Respondent shall designate all three of the children as beneficiaries or dependents under his employment benefit package. The Respondent shall designate the Applicant as beneficiary of his life insurance policy in trust for the three children through his present and/or any future employer.
18The final issue is the Applicant’s request for an order requiring the Respondent to contribute his proportionate share to the Applicant’s s. 7 expenses for all three of the children. For the purpose of this calculation, I find the Respondent’s income to be $80,035.00 per year and the Applicant’s income to be $127,000.00 per year, as set out in the Applicant’s Financial Statement dated and sworn June 13, 2013.
19The Applicant provided detailed evidence as to her out of pocket expenses for the following matters, all of which I find to be qualifying s.7 expenses incurred by the Applicant:
(1) day care and/or babysitting costs of the Applicant for the two boys who live with her in Kingfisher Lake and incurred as a result of the Applicant’s employment. These expenses approximate $10,000.00 per year;
(2) hockey camp expenses incurred by the Applicant for the purposes of travelling with her two boys to Ignace, Ontario, for one week each summer for a well recognized and beneficial hockey school. This includes travel costs, registration and meals. This expense totals $3,500.00 per year including registration, travel costs, hotel and meals;
(3) hockey equipment for both boys in the total amount of $500.00 per year;
(4) travel and food costs for hockey tournaments for the boys in neighbouring First Nations communities. This totals $1,200.00 per year;
(5) the cost of flights for Brittany to visit her community and family during the school year. These flights are very expensive and this expense has to be kept at a reasonable amount, bearing in mind the means of the parties. A figure of $3,000.00 would allow for three flights home for Brittany during the school year, in addition to Christmas which flight is paid for by her education authority.
20The Applicant’s s.7 annual expenses total $18,200.00 per year. Of this amount, the Respondents proportionate share is 39% or $7,098.00 per year or $591.00 per month.
21An order shall issue requiring the Respondent to pay to the Applicant the amount of $591.00 per month toward the Applicant’s s.7 expenses for the children. This shall begin April 1, 2014.
22The Applicant seeks her costs of this proceeding. The amount claimed is $2,500.00 which I find to be fair and reasonable for the time and effort expenses on this application. The Respondent shall pay to the Applicant costs of $2,500.00 within 30 days.
23If counsel for the Applicant has not already done so, he shall forthwith forward a copy of the Ontario Court of Justice order staying the Ontario Court of Justice proceeding to the Family Responsibility Office in order that the Family Responsibility Office has on record that the Respondent’s child support obligation to the Applicant pursuant to the 2005 Ontario Court of Justice order ends on July 2013 with the Respondent’s child support obligation to the Applicant pursuant to this order beginning August 1, 2013.
24A final order shall issue incorporating the terms of this endorsement.
Fregeau J.