ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-13-50-1
DATE: 20141202
BETWEEN:
TAMMY LEE FARSTAD
Applicant
– and –
ROBERT PATRICK SOLOMON
Respondent
Thomas Hunter, Counsel for the Applicant
Self-represented
HEARD: November 26, 2014
REASONS FOR JUDGMENT
BLISHEN J.
Introduction
[1] This matter proceeded as an uncontested trial after the Respondent’s pleadings were struck as a result of an order made by Parfett J. on December 6, 2013. That order required Mr. Solomon to comply with a previous court order for disclosure and provide further financial information by February 1, 2014, failing which his pleadings would be struck. Mr. Solomon did not fully comply; did not seek to return the matter to court; and did not appeal Parfett J.’s order.
[2] At trial Ms. Farstad requested orders relating to:
the parenting arrangements for the parties’ son Aiden born June 26, 2009;
child support retroactive to July 1, 2011;
ongoing child support based on an imputed income to Mr. Solomon;
extraordinary expenses retroactive and ongoing;
payment of a debt owed by Mr. Solomon;
vesting orders for child support and extraordinary expenses;
life insurance to secure support; and
a restraining order.
Background
[3] The parties lived together in Kingston, Ontario from September 1, 2006 to July 1, 2010. They never married. They have one child, Aiden, who is now 5 years old.
[4] On separation, the jointly owned residence was sold and the proceeds divided. Ms. Farstad moved to Ottawa with Aiden and purchased a townhouse where she and Aiden continue to reside.
[5] Mr. Solomon and his brother-in-law jointly purchased a home in Kingston where Mr. Solomon now resides. By court order dated January 20, 2010, Mr. Solomon has sole custody of his daughter Trinity from a previous relationship. Trinity was born June 16, 2004 and is now 10 years old.
[6] On September 14, 2010, shortly after separation, the parties entered into a separation agreement which was filed as Exhibit 1, Tab 1. Pursuant to that agreement:
(a) Ms. Farstad was granted sole custody (para. 4.1);
(b) the Respondent would have access to Aiden on terms as agreed between the parties (para. 4.2);
(c) the Respondent was to pay child support in the amount of $452.00 per month commencing September 1, 2010. The amount of support was based on his 2009 income of $49,000.00 (para. 6.1);
(d) the parties were to share equally, all extracurricular expenses for Aiden (para. 6.3);
(e) the Respondent was to pay the Applicant $500.00 per month towards Aiden’s child care expenses (para. 6.4);
(f) child support was to be adjusted annually on July 1, of each year commencing 2011, based on the Respondent’s previous year’s total income in accordance with the Federal Child Support Guidelines. The Respondent was to provide his income tax returns on or before June 1 of each year and his notices of assessment when they were made available (para. 6.7);
(g) the Applicant was to maintain Aiden on the health plan available as a consequence of her employment. The parties were to share equally in any medical or dental costs not covered by the plan (para. 9.1); and
(h) the Respondent was required to maintain life insurance in the minimum amount of $100,000.00 naming the Applicant’s sister, Sara Besik, as Trustee and Aiden as Irrevocable Beneficiary (para. 14).
[7] As of January, 2011, Mr. Solomon had visits with Aiden every second weekend. Aiden would spend the time with his father and his half-sister Trinity. Ms. Farstad deposes that Aiden, who was only one year old when the parties separated, resisted going for visits with his father and cried when he saw a vehicle that resembled his father’s. On his return from visits, she notes Aiden became angry and aggressive towards her. Nevertheless, the visits continued on an every second weekend basis.
[8] On September 7, 2012, Mr. Solomon advised Ms. Farstad he had been arrested by the Kingston City Police; charged with possession of marijuana for the purposes of trafficking and released. Ms. Farstad expressed concern as to the type of people he was associating with and who might be after him. She states his response was:
I only feel safe with the children around me as they protect me. The Police or Hell’s Angels or whoever is threatening me will not come after me if the kids are around.
[9] Ms. Farstad was disturbed by the comment and by the criminal charge. She retained counsel and took the position that Mr. Solomon’s access to Aiden had to be supervised. She refused weekend access or any other unsupervised access and negotiations began. No agreement could be reached. In November, 2012 Mr. Solomon stopped paying child support.
[10] In May, 2013, Ms. Farstad filed an Application requesting:
an order varying the provisions of paragraph 4.2 of the separation agreement so all access would be at the discretion of the Applicant or by order of the court;
an order permitting the Applicant to travel outside of Canada with the child without the consent of the Respondent on condition that, at least 7 days before departure, an itinerary was provided along with the address and telephone number where they could be reached;
an order permitting the Applicant to relocate the principal residence of Aiden upon providing the Respondent with 60 days’ notice and new residence coordinates;
an order varying the provisions of paragraph 14 of the separation agreement by requiring the Respondent to sign a direction to allow the Applicant to communicate directly with the Respondent’s insurer, to ensure that the provisions of paragraph 14 of the said agreement are being complied with;
an order requiring the Respondent to forthwith satisfy the arrears of child support and contributions to child care expenses owing since December 1, 2012;
an order requiring the Respondent to forthwith comply with the provisions of paragraphs 6.7 and 14 of the separation agreement;
an order requiring the Respondent to forthwith pay the Applicant the sum of $2,928.40, being his one-half share of the funds which remain owing to her as a result of outstanding bills and accounts from the sale of the property located at 14 Rose Abbey Drive, Kingston, Ontario;
an order restraining the Respondent from molesting, annoying or harassing the Applicant; contacting or communicating directly or indirectly with the Applicant except through counsel and coming within 500 metres of the Applicant’s home or place of employment;
an order of costs of a full indemnification basis with such costs to be fixed by the court and made payable forthwith; and
pre- and post-judgment interest pursuant to the Courts of Justice Act.
Mr. Solomon filed an Answer on June 17, 2013.
[11] At Ms. Farstad’s request, leave was granted for the parties to bring motions regarding custody and access prior to a case conference. Motions were heard by Justice de Sousa on June 23, 2013 who ordered supervised access at the Supervised Access Facility in Ottawa and noted that both Mr. Solomon and Ms. Farstad should file intake documents quickly to ensure the commencement of access as soon as possible. Ms. Farstad submitted her intake documents but Mr. Solomon did not. As a result, the file at the Supervised Access Facility was closed effective October 19, 2013.
[12] In April, 2014, the drug charge against Mr. Solomon was dropped. Mr. Solomon made no attempt to contact Aiden or Ms. Farstad and has not seen Aiden since September 9, 2012, in over two years.
[13] In June, 2013 Mr. Solomon paid the outstanding arrears of child support from November, 2012 as well as the outstanding daycare costs totalling $6,664.
[14] On July 29, 2013, a case conference was held. Justice R. Smith ordered that Mr. Solomon continue to pay child support and daycare costs for July, August, and September, 2013. Smith J. further ordered financial disclosure, including tax returns and notices of assessment for 2010 to 2012 and that Mr. Solomon arrange life insurance as security for child support in accordance with the separation agreement. Timelines were set.
[15] Mr. Solomon complied with the court order to pay child support and daycare costs up to September, 2013. He did not comply with the orders respecting obtaining life insurance by August 31, production of the documents listed on a Schedule A submitted by Ms. Farstad by August 29, nor did he file his income tax returns for 2010 to 2013 by September 15, 2013.
[16] Counsel for Ms. Farstad wrote letters to Mr. Solomon on August 30 and September 17, 2013. On September 17, 2013 Mr. Solomon indicated in an email that he would have all the information required by that Friday and would deliver it by Monday or Tuesday. He did not. Therefore a motion proceeded before Justice Parfett on December 6, 2013. Parfett J. ordered full financial disclosure be completed by February 1, 2014, failing which Mr. Solomon’s pleadings would be struck and the matter would proceed to an uncontested trial.
[17] Mr. Solomon did produce some documents on January 31, 2014 including the income tax returns. However, numerous documents outlined in Schedule A to the order of Justice Smith on July 29, 2013 were not produced. Therefore pursuant to Justice Parfett’s order, Mr. Solomon’s pleadings were struck.
[18] Ms. Farstad has been employed by the Royal Bank of Canada for 24 years. Her November 21, 2014 financial statement discloses her 2014 income to be $50,262.
[19] Mr. Solomon was a member of the Canadian Armed Forces until 2008 when he received a medical release due to problems with his knee. He received a payout and was put on a Veterans’ Affairs pension that paid 75% of his salary until June, 2013. When he left the military, Mr. Solomon was a Corporal-Specialist in Communications. After leaving the Armed Forces he attended St. Lawrence College in Kingston completing a two year programme in Computer Networking and Technical Support in April, 2011. There was no evidence as to whether Mr. Solomon has obtained employment, nor as to his income for 2013 and 2014.
[20] Five year old Aiden has suffered from severe behavioural problems, including: aggression, impulsivity, and hyperactivity. Ms. Farstad received a referral to the Children Hospital of Eastern Ontario in 2011 and thereafter to Crossroads. Aiden’s first year of school, 2013 to 2014, was extremely difficult. In February and March, 2014 an assessment was completed by psychologist Dr. Jeff Sherman (Exhibit 3) who concludes that Aiden demonstrates prominent symptoms of ADHD. He may also suffer from a mood disorder or oppositional defiance disorder, but this needs to be re-examined. Aiden is now attending regular counselling with Dr. Sherman and the school is making accommodations for him in accordance with the assessment’s recommendations. During the summer of 2014, Aiden attended a special summer school program to address his behavioural issues.
[21] Ms. Farstad notes this school year has been better. Aiden is making progress and is slowly becoming a more healthy and happy boy. She does not want to disrupt his progress.
Analysis
Custody and Access
[22] The separation agreement in effect since June, 2010 provides sole custody of Aiden to Ms. Farstad.
[23] Although Ms. Farstad’s application requested an order for access at her discretion, she now requests an order for no access based on the following:
Mr. Solomon’s statement that the children, Trinity and Aiden, could act somewhat as a shield from police or Hell’s Angels;
his refusal to participate in a supervised access program after his criminal charge and the order of Justice de Sousa;
his failure to abide by, apply to vary, or appeal Justice de Sousa’s order, even after his criminal charge was dropped in April, 2014;
the fact he has not seen Aiden in over two years;
Aiden’s reaction to visits with his father up to September, 2012; and
Aiden’s significant behavioural problems and recent slow progress which Ms. Farstad does not wish to disrupt.
[24] Termination of a child’s right to visit and have a relationship with a parent is an extreme remedy to be ordered in only the most exceptional circumstances. It is a last resort. After considering all the evidence as to the relevant circumstances relating to Aiden’s needs and his father’s ability and/or willingness to meet them, the question is whether such an order is in the child’s best interests. The focus must be on the best interests of the child, not on the interests and rights of the parent. The onus is on the parent seeking to terminate access.
[25] In determining whether termination of access is in Aiden’s best interests, I must consider the circumstances outlined under s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, am. (“CLRA”).
[26] The application of the best interests test in the context of access was carefully considered by the Supreme Court of Canada in Young v. Young (1993), 1993 34 (SCC), 49 R.F.L. (3d) 117 (QL) (S.C.C.). The majority decision considered the issue of best interests one of balancing harmful conduct against the benefits of promoting parental contact. McLachlin C.J.C. concludes as follows:
- I conclude that the ultimate criterion for determining limits on access to a child is the best interests of the child. The custodial parent has no “right” to limit access. The judge must consider all factors relevant to determining what is in the child’s best interests; a factor which must be considered in all cases is Parliament’s view that contact with each parent is to be maximized to the extent that this is compatible with the best interests of the child. The risk of harm to the child, while not the ultimate legal test, may also be a factor to be considered. This is particularly so where the issue is the quality of access – what the access parent may say or do with the child. In such cases, it will generally be relevant to consider whether the conduct in question poses a risk of harm to the child which outweighs the benefits of a free and open relationship which permits the child to know the access parent as he or she is. It goes without saying that, as for any other legal test, the judge, in determining what is in the best interests of the child, must act not on his or her personal views, but on the evidence.
[27] A review of the case law reveals there are no standard criteria for a termination of access within the best interests test. Madam Justice Abella noted at para. 34 of M.(B.P.) v. M.(B.L.D.E.) (1992), 1992 8642 (ON CA), 42 R.F.L. (3d) 349 (QL) (Ont. C.A.):
It is not a question of what standard should be used to deprive a parent of access, it is a question of what standard should be used in deciding what form of access, if any , should be ordered. The answer is clear from the statute: the standard is the child’s best interests.
[28] In that case, the court dismissed the appeal from the trial judge’s decision to terminate access by the father to the child and stated:
In the absence of any, let alone a significant demonstrable benefit to the child, and based on the solid evidence of four years of harassing, insensitive, disruptive, and harmful behaviour from the father, Wright J. made no error in terminating access by the father to the child based on the material change reflected in the child’s stress.
[29] The majority of the court held that access must be for the benefit of the child and the father’s biological relationship should not be allowed to override the child’s welfare. It is important to note, in that case, there was “solid evidence” of significant ongoing harassment and harmful behaviour from the father. There was also evidence that the child was suffering from stress. In this case, although there is some evidence that Aiden appeared to resist some of the visits with his father, there is no evidence of significant stress nor that any of his behavioural problems were a result of the relationship he had with his father. In addition, there is no evidence of ongoing harassment of Ms. Farstad. In fact, the parties have had little contact during the last two years other than through counsel.
[30] In this case, Mr. Solomon has not actively pursued access to Aiden in over two years. He refused the reasonable option of supervised access when he was facing criminal charges. He brought no application to change Justice de Sousa’s order after his criminal charge was dropped in April, 2014.
[31] Nevertheless, I am not prepared to completely terminate Aiden’s right to have a relationship with his father. I do not find sufficient evidence of exceptional circumstances in this case to take the extreme measure of ordering no access. I find it in Aiden’s best interests to make the order sought in Ms. Farstad’s pleadings with some conditions.
[32] There will be access by Mr. Solomon to Aiden at the discretion of Ms. Farstad, based upon written recommendations provided to her by Aiden’s counsellor, at this time Dr. Sherman, as to the appropriate time to begin access, location, frequency and duration. The written recommendations shall also be provided to Mr. Solomon. When access commences, it is to be supervised at the Supervised Access Program in Ottawa or supervised by another individual or organization as agreed upon between the parties. A reduction or termination of the supervision will be based upon the recommendations of Aiden’s counsellor.
[33] Mr. Solomon is to be kept fully informed as to Aiden’s counsellors or other professionals involved with him. Mr. Solomon may contact those individuals or organizations to receive information regarding his son and his progress.
Other Child Related Orders
[34] Ms. Farstad is permitted to travel outside of Canada with Aiden. She is to advise Mr. Solomon of the duration of the trip, and provide him with an itinerary.
[35] Ms. Farstad may obtain or renew any official documents including passports, health cards or social insurance cards for Aiden without the consent of Mr. Solomon.
[36] Ms. Farstad may relocate the principal residence of the child without Mr. Solomon’s consent on the condition that she provides 60 days’ written notice and her new residence coordinates.
Retroactive Child Support
[37] Pursuant to the separation agreement, Mr. Solomon was required to pay child support of $452 per month based on his income of $49,000 for 2009, commencing September 1, 2010. Child support was to be adjusted annually in July of each year commencing in 2011, based on Mr. Solomon’s total income for the previous year. He was required to provide his tax returns on or before June 1 of each year and the notices of assessment when available.
[38] Mr. Solomon did not comply with the provisions of the separation agreement and child support continued to be paid in the amount of $452 per month until June, 2013.
[39] Based on Mr. Solomon’s tax summaries contained in Exhibit 1, Tab 16, his total annual income for 2010 through 2012 is as follows:
A 2010 Total Income $46,719.63;
B 2011 Total Income $49,536.12;
C 2012 Total Income $60,770.54.
[40] From July 1, 2011 to June 1, 2012 Mr. Solomon paid $452 x 12 = $5,424 in child support. Based on his 2010 income of $46,719.63 he should have paid $431 per month or a total of $5,172. Therefore, for that time period he overpaid child support in the amount of $252.
[41] From July 1, 2012 to June 1, 2013, Mr. Solomon again paid $5,424 in child support. Based on his 2011 income of $49,536.12, he should have paid $457 per month for 12 months for a total of $5,484. Therefore, there was a shortfall of $60.
[42] From July 1, 2013 to June 1, 2014 Mr. Solomon paid $452 for August and September of 2013 for a total of $904. Child support payable on his 2012 income of $60,770.54 should have been $553 per month for 12 months for a total of $6,636. Therefore, for that time period there was a child support shortfall of $5,732.
[43] I find therefore a total retroactive child support payment due and owing of $5,540, as outlined by Ms. Farstad in her affidavit and supporting documents, for July 1, 2011 to June 1, 2014. Mr. Solomon is to pay the retroactive child support by January 31, 2015.
Retroactive Special and Extraordinary Expenses
[44] Pursuant to the separation agreement, Mr. Solomon and Ms. Farstad were to share equally in health care costs not covered by Ms. Farstad’s insurance plan through employment. She provides documentation to show a number of health care costs not covered. In addition, she notes the cost of the counselling with Dr. Sherman and requests contribution to the increased cost of coverage under her health plan to accommodate this counselling.
[45] Further to the separation agreement, Mr. Solomon was to contribute $500 per month to Aiden’s child care expenses. In her affidavit, Ms. Farstad outlines the child care expenses that she has paid including summer school costs for Aiden. She then credits the payments made by Mr. Soloman and requests the remaining costs be paid by him.
[46] Finally, pursuant to the separation agreement, Mr. Solomon and Ms. Farstad were to equally share in extracurricular expenses for Aiden. Again, Ms. Farstad documents those extra costs and requests Mr. Solomon pay his 50% share.
[47] Based on the affidavit of Ms. Farstad and the supporting documentation I find that Mr. Solomon owes a total of $5,696.62 as his share of retroactive special and extraordinary expenses, which is to be paid by January 31, 2015.
Ongoing Child Support – Imputation of Income
[48] Ms. Farstad argues that going forward, income should be imputed to Mr. Solomon in the amount of $50,000 annually. His Veterans’ Pension income for 2010 to 2012 as outlined on his tax summaries was in 2010 - $46,154, 2011 - $46,846, and 2012 - $47,783.
[49] Despite court orders and the terms of the separation agreement, no financial disclosure for 2013 and 2014 has been provided. The Veterans’ Pension was terminated as of July, 2013.
[50] No evidence has been provided as to how Mr. Solomon has been maintaining himself since July, 2013. His last financial statement, dated June 13, 2013, revealed a net worth of $46,451.81. He is a joint owner of a property in Kingston and has RRSPs as of June, 2013 of approximately $11,000.
[51] Section 19(1)(f) of the Child Support Guidelines, O. Reg. 391/97 indicates:
19(1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,
(f) the parent or spouse has failed to provide income information when under a legal obligation to do so.
[52] Clearly Mr. Solomon has failed to provide the required income information.
[53] Based on the documentation filed by Mr. Solomon in response to the motion heard by Justice Parfett, it appears he had a bright future in the Armed Forces when he left. In addition, Mr. Solomon achieved excellent marks in the two year Computer Networking and Technical Support Program at St. Lawrence College. Based on Mr. Solomon’s resumé and a letter of recommendation, I find that most of his experience in the Armed Forces was in the field of communications. He filed a letter from his superior in the Armed Forces recommending him for an accelerated promotion. That letter, dated February 2, 2004, describes Mr. Solomon as a “dedicated professional” who has a “untiring work ethic” and is “never one to remain idle”.
[54] Mr. Solomon had significant experience in the area of communications before leaving the Armed Forces. As previously noted, he was a Corporal with a specialty in communications and after leaving the services completed a two year certificate in Computer Networking and Technical Support. The documentation provided by Ms. Farstad notes that based on the Canadian Armed Forces pay rates for March, 2013, even if Mr. Solomon had remained a Corporal with a specialty in communications as he was in 2008, his income would be in the range of $63,000-72,442. Having graduated in April, 2012 from St. Lawrence College in the communication and technical support field, the salary information provided indicates a median salary range with 3-5 years of experience of approximately $45,000.
[55] Therefore, I am prepared on the basis of the evidence to impute income of $50,000 annually to Mr. Solomon and to order child support on that basis in the amount of $450 per month commencing July 1, 2014.
Life Insurance
[56] The separation agreement as amended on consent by the order of Justice Smith requires Mr. Solomon to obtain a life insurance policy in the amount of $100,000 naming his sister, Lee-Ann Solomon as the Trustee and Aiden as the Irrevocable Beneficiary. That order will remain in effect. Proof of that policy is to be provided to Ms. Farstad by January 31, 2015.
Restraining Order
[57] Although there appears to have been little if any contact between Mr. Solomon and Ms. Farstad since June, 2013, she argues that based on past behaviour she remains frightened of Mr. Solomon. She indicates a fear that he might kidnap Aiden. There is no evidence to substantiate this as a real possibility.
[58] Pursuant to s. 35 of the CLRA, as well as s. 46 of the FLA, on application, the court may make a final restraining order against a person if the Applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.
[59] I cannot find on the evidence before me that Ms. Farstad at this point in November, 2014 has reasonable grounds to fear for her safety or for the safety of Aiden, such that I would make a restraining order in this case.
Share of Debt Owing
[60] When Ms. Farstad and Mr. Solomon sold their jointly-owned family home in Kingston in November, 2010, there was an outstanding debt due and payable by Mr. Solomon and Ms. Farstad for outstanding bills and accounts. Ms. Farstad paid the entire debt. Pursuant to the separation agreement all the joint debts were to be paid equally. Ms. Farstad’s share as requested in the Application was $2,928.40.
[61] Ms. Farstad notified Mr. Solomon of this debt and his responsibility for a share of it in November, 2010. There was a demand for his half share to be paid by Ms. Farstad’s lawyer in a letter dated January 17, 2011. This debt has yet to be paid. Mr. Solomon is to pay Ms. Farstad $2,928.40 for the outstanding debt by January 31, 2015.
Vesting Orders
[62] Ms. Farstad requests an order that Mr. Solomon’s interest in the jointly owned property on Conacher Drive in Kingston and in the Bayliner Boat noted in his June 13, 2013 financial statement, be vested in her name pursuant to s. 34(1)(c) of the FLA on her application for child support under s. 33 of the FLA. She further requests an order that Mr. Solomon transfer his RBC RRSP to her. She argues the following:
(1) collecting from Mr. Solomon to satisfy his arrears of child support and s. 7 expenses or to secure his future obligations will be a difficult task;
(2) he has demonstrated no concern or respect for his obligations under court orders and the separation agreement; and
(3) the only funds that she is certain to receive are through the vesting orders and transfer order she requests.
[63] Section 34(1)(c) of the FLA indicates:
In an application under section 33, the court may make an interim or final order, requiring that… property be transferred to or in trust for or vested in the dependant, whether absolutely, for life or for a term of years.
[64] In Lynch v. Segal (2006), 2006 42240 (ON CA), 82 O.R. (3d) 641, the Ontario Court of Appeal at paras. 32-33 notes with respect to vesting orders that:
32 …the onus is on the person seeking such an order to establish that it is appropriate. As a vesting order – in the family law context, at least – is in the nature of an enforcement order, the court will need to be satisfied (as the trial judge was here) that the previous conduct of the person obliged to pay, and his or her reasonably anticipated future behaviour, indicate that the payment order will not likely be complied with in the absence of more intrusive provisions: see Kennedy v. Sinclair (2001), 2001 28208 (ON SC), 18 R.F.L. (5th) 91 (Ont. S.C.J.), affirmed (2003), 2003 57393 (ON CA), 42 R.F.L. (5th) 46 (Ont. C.A.). Thus, the spouse seeking the vesting order will have already established a payment liability on the part of the other spouse and the amount of that liability, and will need to persuade the court that the vesting order is necessary to ensure compliance with the obligation.
33 In addition, the court should be satisfied that there is some reasonable relationship between the value of the asset to be transferred and the amount of the targeted spouse’s liability and, of course, that the interests of any competing execution creditors or encumbrances with exigible claims against the specific property in question are not an impediment to the granting of a vesting order…
[65] In this case, although Mr. Solomon did not provide the annual disclosure required under the separation agreement in 2011 and 2012 until court-ordered, he did pay the $452 per month child support pursuant to the separation agreement until November, 2012. He then paid the outstanding arrears up to June, 2013 prior to the case conference and the order of Justice Smith in July, 2013. Finally, when ordered to pay for July through September, 2013 by Justice Smith, he did so and paid the outstanding costs ordered by Justice de Sousa of $1,500.
[66] I am not satisfied that, when served with the court order after this trial, Mr. Solomon will fail to comply. In addition, I am not satisfied that there is a reasonable relationship between the value of the asset to be transferred and the amount of the liability. Further, the property on Conacher Drive in Kingston is jointly owned by Mr. Solomon and his brother-in-law. The brother-in-law’s ownership interest would be an impediment to the granting of a vesting order. Overall I find Ms. Farstad has not met the onus upon her for a vesting or a transfer order as requested.
Costs
[67] Pursuant to R. 24 of the Family Law Rules the successful party is entitled to costs. There is no question that Ms. Farstad was the successful party, although she did not obtain every order sought. Further, I find Mr. Solomon behaved unreasonably in failing to provide the disclosure required by court order which resulted in his pleadings being struck.
[68] I was not provided with any Offers to Settle in this case.
[69] The Bills of Costs submitted by counsel for Ms. Farstad for the contempt motion (costs were reserved) and the trial detail the time spent and the hourly rates of counsel. I find the rates to be reasonable.
[70] The total fees, HST and disbursements for the contempt motion were $5,603.68.
[71] The total up to the day of the uncontested trial for preparation was $13,754.40. The Bill of Costs reveals that 52.2 hours were spent preparing for the uncontested trial. I find this to be an unreasonable amount of time for a trial where the Respondent’s pleadings had been struck. The actual trial time of 2.5 hours must also be considered.
[72] Therefore, taking into consideration the circumstances of this case, I find a reasonable amount of costs including disbursements and HST to be $8,500. Costs of $8,500 are payable by the Respondent to the Applicant by January 31, 2015.
Blishen J.
Released: December 2, 2014
COURT FILE NO.: FC-13-50-1
DATE: 20141202
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
TAMMY LEE FARSTAD
Applicant
– and –
ROBERT PATRICK SOLOMON
Respondent
REASONS FOR JUDGMENT
Blishen J.
Released: December 2, 2014