ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-13-0174
DATE: 2014-01-22
B E T W E E N:
Nancy Allard,
Tracey J. Nieckarz, for the Applicant
Applicant
- and -
Lee Allard,
Respondent was self-represented
Respondent
HEARD: January 9, 2014,
in Thunder Bay, Ontario
McCartney J.
Reasons On Summary Judgment Motion
[1] This matter commenced by way of Application for Divorce in April of 2013. The present proceeding is a motion for summary judgment pursuant to s. 16 of the Family Law Act.
[2] At the commencement of the motion an order severing the divorce claim itself from the corollary relief requested under the Divorce Act and the Family Law Act was requested, and this severance is allowed.
[3] As far as to whether the motion for summary judgment should proceed further, I would refer to rule 16(6) of the Family Law Rules which reads as follows:
(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
[4] I am normally very reticent in allowing motions for summary judgment in family law proceedings since, as often as not, the problem is not that there are no genuine issues for trial, but rather for whatever reasons the other side of the case never gets before the court. In this particular case, however, I am making an exception and allowing the motion to proceed, since the respondent here, even though he was far out of time, was given the opportunity to file an Answer and Financial Statement and was served with the motion material herein and allowed to file an affidavit with respect to the motion. Furthermore, he was allowed to attend on the motion and to make submissions regarding his position.
Custody of the Children
[5] The parties married October 3, 2002, and separated July 1, 2009. There are two children of the marriage, Jayda Leigh Allard born November 28, 2003, and Jersey Lynn Allard born October 18, 2007. The children had always lived with their parents until separation and thereafter primarily with their mother. The evidence would indicate that they were well looked after, doing well in school and healthy apart from some difficulty Jayda is presently having with the separation of her parents. And even though the Respondent would like to have a joint custody situation the poor relationship between the parties mitigates against such a situation succeeding. So it seems that it is in the best interests of the children to maintain the status quo, i.e., to continue to live with the Applicant, and to be raised primarily by her, and so she should have custody of them.
Access to the Children
[6] Access arrangements prior to April of 2012 were relatively smooth, with the Respondent having the children Tuesday evenings, alternate Thursdays and alternating weekends. As a result of an incident on April 11, 2012, which the Respondent was stopped by police with the children in the car and was found to have an alcohol reading in the “warning range” on the breathalyzer machine, access has been supervised, but not successfully, and now the Respondent is only allowed to visit the children in the Applicant’s front yard – a very unsatisfactory arrangement.
[7] The Applicant’s position is that if she is successful in obtaining custody, the Children’s Centre would be requested to provide supervised access, and that is what she wishes. It seems to me to be quite harsh, considering there were apparently three years of normal access with the Respondent post separation. So, I am not prepared, without further evidence, to restrict the Respondent’s access by making it permanently supervised. Clearly, he should not be allowed access if he is using intoxicants, but other than that, he should be allowed reasonable access on reasonable notice along the lines of the old access arrangements.
[8] So the Respondent is to have generous access to the children, supervised through the Children’s Centre for a three month period, and thereafter access should be organized as previously arranged, i.e., unsupervised access every second weekend – every Tuesday and every second Thursday – unless otherwise ordered or agree between the parties.
Child Support - Ongoing
[9] The Respondent has filed with his Financial Statement a pay slip for 2013 which would indicate his earnings for that year would be approximately $74,000. This would, according to the Guidelines, require ongoing support for the two children of $1,092 per month commencing January 1, 2014.
Child Support - Retroactive
[10] While the usual rule under these circumstances might allow retroactive support to be ordered for three years prior to the date of the Application, I am prepared to allow retroactive support commencing January 1, 2011. The reason for this is even though the Applicant certainly provided better evidence of payments made, I am not convinced that the Respondent has not paid more than he has been given credit for. So the income and corresponding child support I am prepared to accept based on the information provided during 2011, 2012 and 2013 are as follows:
2013 - Income: $74,000 ($1,092 per month) - $13,104 annually
2012 - Income: $37,300 ($536 per month) - $6432 annually
2011 - Income: $78,086 ($1,098 per month) - $13,171 annually
Total $32,707
[11] The Applicant indicates that over those three years the Respondent paid $2,929 in support and deducting this amount in coming to the amount of retroactive support owing $32,707 - $2,929 or $29,778.
Extraordinary Expenses
[12] The evidence concerning extraordinary expenses would seem to indicate that it is not required at this time and therefore an order requiring same, if required, is presently pre-mature.
Equalization of Net Family Property
[13] The Applicant provided a Net Family Property Statement (Respondent’s pension not included), based on the information she had, showing an amount owing to the Respondent of $1,571. I accept this amount. Further, the Applicant requests that 50% of the value of the Respondent’s employment pension be transferred to her for the period of their marriage, the reason being that the Applicant has been unable to obtain particulars of the pension to claim any certain amounts. This appears to be a fair way of handling the situation since it is clear that the Applicant is entitled to the amount of the pension claimed.
Proceeds of Sale of Jointly Owned Matrimonial Home
[14] The Statement of Adjustments on the sale of the matrimonial home shows that after the parties each received a pre-payment of $5,000, there was left a balance of $51,519.28 or $25,757.64 each. From this net amount the Applicant claims that $23,584.47 was due to a combination of the Respondent’s personal debts and his occupation of the matrimonial home between the time of separation and the sale of same, i.e. July 2009 to December 2013. She claims one-half of this amount, i.e. $11,792.24 should be credited to her, and under the circumstances this would seem to me to be a fair disposition of this claim.
[15] In the result, then, an order is to issue as follows:
(1) Severance of Divorce: the relief requested in this motion is to be severed from the divorce application;
(2) Custody of Children: custody of the children, Jayda Leigh Allard born November 28, 2003, and Jersey Lynn Allard born October 18, 2007, to the Applicant;
(3) Respondent’s Access: the Respondent is to have regular access to the children to be supervised for the first three months by the Children’s Centre, and thereafter on a basis similar to the previous structure of alternating weekends – every Tuesday – and every second Thursday. This situation to continue until further order of the court or agreement of the parties;
(4) Ongoing Child Support: the Respondent is to pay to the Applicant for child support the sum of $1,092 monthly for the support of the two children commencing January 1, 2014, based on an annual income of $74,000;
(5) Retroactive Child Support: retroactive child support for the years 2011, 2012 and 2013 is set at $29,778, payable by the Respondent;
(6) Extraordinary Expenses: the claim for extraordinary expenses is disallowed at this time;
(7) Net Family Property:
(a) the Applicant shall pay to the Respondent as an equalization payment the sum of $1,571;
(b) 50% of the imputed value of the Respondent’s pension in UA. Local 628 (Plumbing and Pipefitting) Members Pension Plan shall be transferred to the Applicant in accordance with the transfer options under the Public Pension Benefits Act based on the time between the dates of marriage (October 3, 2002) and the date of separation (July 1, 2009). The Respondent shall assist in providing information necessary to determine the Applicant’s interest in the pension;
(8) Proceeds of the Sale of the Matrimonial Home: upon the sale of the matrimonial home, and after each of the parties was provided with an advance payment of $5,000, there was left in trust for the parties the sum of $51,519.28 or $25,757.64 each. The Respondent’s share is to be transferred to the Applicant to firstly cover the amount of $11,792.24 owing to the Applicant on the sale as set out previously, less the amount owing to the Respondent ($11,792.24 - $1,571) or $10,221.24. The balance of the Respondent’s share is then to be credited toward the retroactive child support payment set out in paragraph 5 above, and is to be transferred to the Applicant.
(9) the Respondent shall provide the Applicant with proof of his annual income on a yearly basis;
(10) the Respondent shall maintain the children on his extended health care plan through employment;
(11) the Respondent shall designate the Applicant as trustee, and the children as the irrevocable beneficiaries of his employment life insurance plan through employment.
(12) Costs of this motion are allowed to the Applicant in the amount of $950.00.
“Original Signed By”
The Hon. Mr. Justice J. F. McCartney
Released: January 22, 2014
COURT FILE NO.: FS-13-0174
DATE: 2014-01-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
NANCY ALLARD
Applicant
- and -
LEE ALLARD
Respondent
REASONS FOR SUMMARY JUDGMENT
McCartney J.
Released: January 22, 2014
/mls