COURT FILE AND PARTIES
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Nizia Aparecida Martins
Applicant
– and –
Francisco Jose Sousa Jardim
Respondent
Darlene Rites, for the Applicant
Self-represented Respondent
HEARD: Monday December 8, 2014
KITELEY J.
[1]
Background
The husband and wife began living together in March 2001 and married on November 30, 2001. Their son Igor was born June 30, 2002 and Frank was born February 27, 2006. The spouses separated on November 2, 2013 as a result of Mr. Jardim having been arrested and charged with assault.
2Ms. Martins commenced this application on February 13, 2014. On April 10, 2014, after Mr. Jardim had been acquitted of the assault charge, Ms. Martins’ counsel attended before Mesbur J. seeking a restraining order. Mesbur J. noted that Mr. Jardim had been served earlier in the day with a motion returnable April 17, 2014 for the same relief and she dismissed the motion because there was no evidence as to why it should be considered without notice to Mr. Jardim.
3On April 17, 2014, Justice Corbett granted a temporary without prejudice order prohibiting Mr. Jardim from contacting or communicating with Ms. Martins and directing that he not come within 100 meters of Ms. Martins, including the matrimonial home. He also made an order that Ms. Martins have temporary exclusive possession of the matrimonial home. Mr. Jardim attended court that day without a lawyer.
4Mr. Jardim attended the case conference on May 14, 2014 but he had not filed any responding material. The case conference was adjourned to June 4 on terms. In addition, Justice Goodman made an order prohibiting Mr. Jardim from removing either of the children from the school and she gave leave to Ms. Martins to bring a motion relating to travel with the children to Brazil. She ordered Mr. Jardim to pay costs in the amount of $500.
5Mr. Jardim did not attend for the continuation of the case conference on June 4. Jarvis J. made an order noting Mr. Jardim in default; permitting Ms. Martins to travel with the children outside of Canada without Mr. Jardim’s consent; on an interim interim basis, he imputed income of $70,000 to Mr. Jardim and ordered him to pay child support in the amount of $1037 per month. He also made an order that the date of separation was November 2, 2013 for purposes of equalization of net family property. A Support Deduction Order was issued.
6The uncontested trial came on before me on September 8, 2014. There was evidence that Mr. Jardim had been served with the Application and related documents but he had not been served with a copy of the order of Jarvis J. noting him in default. I adjourned the trial to October 20, 2014 on terms that included service of various documents1 on Mr. Jardim.
7Having been served with all of the previous documents, Mr. Jardim attended on October 23, 2014. As I indicated in the endorsement made that day, it was difficult to understand him when he spoke English. He wanted an adjournment but it was not clear what he would do if I did adjourn. He had brought with him a note dated October 22, 2014 from a clinic that indicated he attends physiotherapy 3 times a week for a back problem. He also brought documents which indicated that he received social assistance in the amount of $656 per month. He said that his disability insurance ended in August. In the uncontested trial, Ms. Martins sought to recover title to the matrimonial home partly on account of arrears or retroactive child support based on a higher imputed income. I adjourned the trial to December 8, 2014 on condition that, by November 20, 2014 he serve and file a financial statement Form 13.1, a form 35.1 and an Answer; and on condition that he comply with the restraining order dated April 17, 2014, failing which Ms. Martins would call the police; and on condition that when he speaks to the children, he must not discuss the financial issues between the parents and must not discuss with them his desire to return home. I ordered Mr. Jardim to pay costs fixed in the amount of $1000, to be deducted from his share of the matrimonial home.
8On December 8, 2014, Ms. Rites and her client attended, as did Mr. Jardim. Ms. Rites provided to me a copy of a Financial Statement sworn by Mr. Jardim on December 1 as well as an Answer dated December 1, both of which she had received on December 4. Neither had been filed in court. Mr. Jardim did partially comply with my order but failed to do so by November 20, 2014. Mr. Jardim said his lawyer was Michel Bouchard and that Mr. Bouchard was ill that day and could not come to court. Mr. Bouchard was the commissioner who took his affidavit on Form 13.1. Mr. Jardim asked that I adjourn the trial.
9Ms. Rites advised that she had contacted Mr. Bouchard after receiving the Form 13.1 and Answer on December 4th. Mr. Bouchard indicated to her that he had not been retained for the trial and had only assisted Mr. Jardim in completing the documents.
10I did not adjourn the trial for these reasons. First, I am satisfied that Mr. Jardim has had service of the Application and related documents at the outset of the case and more recently, that he has been served with all endorsements and orders, the affidavit of Ms. Martins sworn September 4, 2014 for purposes of the uncontested trial, the net family property brief of documents and the trial record. While he did serve an Answer and a financial statement form 13.1, he did not do so by November 20 and he provided no explanation for compliance 2 weeks late. Mr. Jardim has failed to properly participate in this case.
11Second, Mr. Jardim did not have a lawyer and there is no prospect of him having one. If Mr. Bouchard was his counsel, he would have gone on the record or minimally, sent a letter explaining his unavailability and suggesting alternate dates. In the absence of confirmation directly from Mr. Bouchard, I accept the information provided by Ms. Rites that Mr. Bouchard had simply helped to prepare the documents.
12Third, in his Answer, Mr. Jardim agreed that Ms. Martins would have final custody of the children but he asked that the other claims made by the Applicant be dismissed. In his Claim, he asked for access and an equalization of net family property. Both of those issues were included in the Application and hence he did not raise new issues.
13Last, this was the third trial date. The Applicant had taken time off work and had been responsible for paying her lawyer on each occasion. Pursuant to rule 2(2), the primary objective of the Family Law Rules is to enable the court to deal with cases justly which includes ensuring that the procedure is fair to all parties; saving expense and time; dealing with the case in ways that are appropriate to its importance and complexity; and giving appropriate court resources to the case while taking account of the need to give resources to other cases. I concluded that it met the objective of the rules to proceed given Mr. Jardim’s failure to properly participate in the case, the expense and time incurred by Ms. Martins while indulgences were given to Mr. Jardim on September 8 and on October 23; the lack of complexity to the issues; and the recognition that the court was available and could hear all of the evidence on that occasion.
14As indicated, it is essential that the procedure be fair to all parties. Both parties speak some English. Ms. Rites had arranged for an interpreter from the Barbara Schlifer Clinic to attend at the trial. Typically such interpreters provide service only to the client of the clinic. At my request, the interpreter assisted me at the outset in explaining, in Portuguese, the procedure to be followed. Ms. Martins testified in Portuguese and the interpretation was provided in English. Mr. Jardim heard both the original and the English versions. Ms. Martins’ examination in chief concluded at about 1:00 p.m. coincidental with the departure of the interpreter.
15After the recess, I did not offer Mr. Jardim an opportunity to cross-examine Ms. Martins for these reasons. On October 23 and on December 8, Mr. Jardim demonstrated that he was angry and belligerent toward Ms. Martins. I doubted that he could formulate a question and if he did it would be in the same belligerent manner. It was not fair to expose Ms. Martins to questions under those circumstances when the questions, if he were able to formulate any, would likely not be probative of the issues before me. In any event, I had an appreciation of the issues and of his position as articulated in the Answer and I asked questions of Ms. Martins and raised issues in submissions designed to address his position.
16I offered Mr. Jardim an opportunity to give evidence and he did so. The interpreter had left. I compensated for that in several ways. I asked Mr. Jardim to speak slowly in English and several times I asked him to repeat what he had said. Several times I repeated back what I understood he had said and he agreed that I had correctly understood. As the audio tape of the hearing will demonstrate, I spoke slowly and insisted that Ms. Rites also speak slowly. I asked Mr. Jardim questions relevant to the issues he had raised. Ms. Rites cross-examined in English briefly and slowly.
17Under all of those circumstances, I was satisfied that the procedure was fair to both parties.
18The evidence consisted of the following:
(a) Application and Answer
(b) Financial Statements of the Applicant sworn February 4, 2014 and September 18, 2014; and of the Respondent sworn December 1, 2014
(c) Applicant’s Form 35.1
(d) Affidavit of the Applicant sworn September 4, 2014 Form 23C for Uncontested Trial
(e) Applicant’s Net Family Property Statement Form 13B with documents attached
(f) Affidavit of the Applicant sworn December 7, 2014
(g) Testimony of the Applicant and of the Respondent and exhibits.
The Evidence
[19]
The Evidence
Ms. Martins worked throughout the marriage except for brief maternity leaves. Mr. Jardim worked and earned as much as $70,000 a year. She said that they purchased the matrimonial home in 2003 and at about the time they moved into the home, Mr. Jardim stopped working in the winter and as time went on, his summer hours got shorter and shorter and he did not work until July. She said that he lost a lot of days due to drinking alcohol. She said that lots of time he could not leave the house to go to work because of drinking. Some days he would go to work and he would be sent home because he was not capable of working. He did have some workplace injuries but she did not know the details. In his Answer, Mr. Jardim referred to having had several work injuries, the last of which had occurred on December 7, 2012 and that he had not been able to work since then. She said that she remembered something happening but did not know the details. She said that he drank a gallon or 18 litres of alcohol a week.
20In her evidence Ms. Martins said that life with her husband was “very turbulent”. In the Application and in her evidence she described the abuse that she had experienced for many years. Starting in late 2008, she and the children had occupied the 2nd floor of the house because they could share a bedroom that could be locked so that she could avoid his abuse at night. She had called the police on an earlier occasion in 2003 but said that she did not have the courage to register a complaint until November 2, 2013. She described the events that had occurred on the day before and on November 2, 2013 including her admission that as a result of his abuse, she had lost patience and had hit him with a broom which caused him to call the police. After questioning both of them, the police arrested Mr. Jardim and he was removed from the family home.
21Ms. Martins said that she has experienced enormous relief since she called the police and he was removed from the home. She observed that the children were far more relaxed and were happy that they could now have friends over to the house. They were doing well in school.
22Ms. Martins said that since the separation, Mr. Jardim had gone to the school to see the children, and lots of time he was “under the influence of alcohol”. She said that one day he had walked into the house, notwithstanding the restraining order, and spoken with the children including telling them that he could not come home because of their mother. She also said that he had contacted her, notwithstanding the restraining order and that most of the time, he just wants to come home, he doesn’t ask about the children. She was confident that the phone call she had received the evening before the trial from a “private number” was him calling and she had not answered.
23Ms. Martins wants the children to see their father but she can’t predict how he will act and anticipates that he would use his time with the children to pressure her to let him come home. She asked that access be arranged through and under the supervision of Maria Pacheco who is the former babysitter and a family friend who is so close that she considers Ms. Pacheco and her husband to be her “parents” in Canada. She said that Ms. Pacheco has agreed to assist so long as the times were convenient to her.
24Ms. Martins works in a carpet factory in Mississauga where she earns about $21,000 per year. She manages her tight finances with considerable sacrifices on her part, for example by routinely riding her bicycle (regardless of weather) from where she lives in Toronto to her workplace.
25Ms. Martins said that, at the time of marriage, she had savings of $15,000 that were used in 2003 as a down payment on the purchase of the matrimonial home. She does not have any records from 2001. In the net family property statement, she has taken that amount as a premarital deduction.
26As for the matrimonial home, Ms. Martins relies on three written opinions of value: from Cintia de Aguiar broker in the amount of $550,000 as of May 13, 2014; from Remax Ultimate in the amount of $560,000 as of July 11, 2014; from Remax West Realty Inc. dated September 17, 2014 in the amount of $490,000. The latter also indicated that the MPAC assessed value was $454,000.
27Mr. Jardim had obtained a written opinion of value of the matrimonial home signed by a salesperson at Re/Max Ultimate Realty Inc., that indicated that the market value as of December 4, 2014 was $675,000. The author had not had access to the home and had provided the opinion based on a “drive by” and a comparable at 240 Brock St. that had sold for $705,000 in November 2014. Ms. Rites advised that immediately after receiving the opinion of value on December 5, 2014, she had contacted the agent and had arranged for him to have access to the home for purposes of reconsidering his opinion. Ms. Rites said that the agent had gone to the home on the day before the trial and had said he would send a revised letter on the morning of the trial but he had not done so. Ms. Martins said that work needed to be done on the property including a leaking roof and electrical work and that other repairs needed to be done before the house is sold.
28The CIBC Annual Mortgage Statement indicates that as of December 31, 2013, the mortgage principal was $149,214 and as of September 4, 2014, it was $145,715.
29Ms. Martins gave evidence about the joint line of credit that the parties had had. Exhibit D to her affidavit sworn September 4, 2014 is a CIBC Personal Line of Credit statement as of September 21, 2011 in which the balance owed was $42,331.43. Ms. Martins said that it came as a surprise to her to learn at that time that the line of credit had been so extended. She referred to entries in a bank account in which there were many withdrawals, all of which she attributed to Mr. Jardim and about which she had no knowledge. It was her evidence that Mr. Jardim was responsible for all of that indebtedness. The mortgage statement referred to above indicates that it is a 5 year mortgage maturing on October 14, 2016. She said that in October 2011, they had refinanced the mortgage and rolled the line of credit into the mortgage. Since the separation, Ms. Martins has been solely responsible for payment of all household expenses included the mortgage, property taxes and insurance which totaled $17,598 ($900 plus $245 plus $112 = $1,257 x 14 months). She argues that since Mr. Jardim is a joint owner, he should be held accountable for half of those amounts or $8,799.
30Ms. Rites had obtained a family law value with respect to the pension owned by the Respondent through the Labourers’ Pension Fund of Central and Eastern Canada.
31In his Answer, Mr. Jardim said that prior to and during the marriage he had worked in construction as a cement finisher and a labourer but on December 7, 2012, he had suffered the last of several work injuries and had not been able to work since then. He says his back injury results in severe lower back pain and he is incapable of working. He received disability benefits through his union until August 2014 and since then, his sole source of income is social assistance payments. He says he has been reduced to living in one small room in an apartment shared by 5 men at a cost to him of $400 per month. He said that in order to maintain his drug benefits for himself, the Applicant and the children, he must maintain his membership in the Labourers’ International Union at a cost of approximately $145 per month. He denied that he is intentionally underemployed/unemployed and that if it were not for his back injury, he would be working and would be able to contribute to the support of the children and Ms. Martins.
32In his Answer Mr. Jardim also denied having accumulated a significant amount of debt during the marriage and asserted that the joint line of credit had been used with the full knowledge of the Applicant for the purpose of repaying loans which they had obtained from Ms. Martins’ relatives in Brazil. He asserted that they had jointly made the down payment on the matrimonial home and that his contribution was at least equal to or greater than her contribution. He insisted that he had contributed at all times to the mortgage payments while he was working and that he had continued to contribute to the mortgage payment and other carrying costs of the home until his disability benefits ceased. He also took the position that he had “at all material times contributed meaningfully to the child care and household management during the marriage”.
33In his evidence, Mr. Jardim denied what his wife had said about his treatment of the children and insisted that he had never touched them and had never hit them. He said that the boys wanted him to go back home. He is upset about not being able to live in his home and said that the house had a 2nd floor apartment and a 3rd floor apartment and he could live there. He insisted his wife was a big liar. He asked why his wife was making such problems for him. He gave his version of the events that led to his being arrested – although he had called the police. He said that he had stopped drinking partly because he doesn’t have money since his disability insurance stopped in August. He provided a remittance form from the City of Toronto that indicates that he receives $656 per month allocated as $280 for basic needs and $376 for shelter. He insists that he can’t work because he broke his back but acknowledged that he did not have any medical letter and had only the document he referred to when he attended on October 23rd that indicated he saw a physiotherapist 3 times a week for “a chronic low back condition”.
34As for the line of credit, he said that some of it was caused by trips his wife made to Brazil such as the summer of 2014 when she took the boys to visit her family for much of the summer.
35In cross-examination, he agreed that when they bought the house they had a total down payment of $90,000 of which $60,000 came from Ms. Martins’ family. He did not agree that Ms. Martins had $15,000 before the marriage. In his financial statement sworn December 1, 2014, he said that he had $25,000 at the date of marriage.
36Attached to his financial statement sworn December 1, 2014 are copies of his income tax returns for 2011 and 2012 and a tax summary for 2013 which disclose the following Line 150 incomes: 2011: $29,741 (including approximately $25,000 employment income and approximately $4,500 EI); 2012: $29,484 (including approximately $19,000 employment income and approximately $11,000 EI); 2013: $24,377 (consisting largely of “other employment income” or disability pension). In each of 2011 and 2012, he received a refund of approximately $4,000. In 2013, he had to pay $2,059.
37In reply evidence Ms. Martins insisted that when she took trips to Brazil (as she did in 2014 because she had no money to pay for child care over the summer while she worked), that her family sent her the money for air fare and that that cost did not come from the joint line of credit.
Analysis
A. Custody and Access
[38]
Analysis
On the evidence of Ms. Martins, she has been the primary caregiver of the children since each was born. As Mr. Jardim concedes, it is in their best interests that she continue in that role and that a final custody order be made.
39Mr. Jardim wants to see the children and he should do so. He did not comment on Ms. Martins’ proposal that Ms. Pacheco should be the intermediary and the supervisor but since she has been a longstanding babysitter, that appears to be an appropriate arrangement so as to reduce the conflict between Ms. Martins and Mr. Jardim.
B. Restraining Order
[40]
Restraining Order
As indicated above, there has been a restraining order in place since April 17, 2014 which Mr. Jardim has not respected. He takes no responsibility for any of the harm that has occurred from his longstanding alcohol consumption. He blames his wife for everything and he sees himself as a victim. The evidence of Ms. Martins as to the significant changes in the children since their father has been gone as well as his lack of respect for the existing restraining order demonstrate why the restraining order should continue.
C. Net Family Property
[41]
Net Family Property
The opinions of value of the matrimonial home obtained on behalf of Ms. Martins are in the range of $490,000 to $550,000 to $560,000. The opinion of value obtained by Mr. Jardim is $675,000 but it did not include an internal inspection. Ms. Rites took the position that the value of $550,000 should be used for calculating the equalization of net family property.
42None of those opinions of value obtained by either of the parties constitutes expert opinions. I accept that counsel attempted to put information before the court without Ms. Martins incurring a fee for a professional appraisal, as did Mr. Jardim. Since they both approached the determination of value in the same manner and since no formal appraisals are available, I have no choice but to consider them.
43I do not accept the opinion of value provided by Mr. Jardim because it did not include access to the property. His opinion of value was provided by a salesperson at Re/Max Ultimate Realty Inc., which was the same brokerage as provided the opinion of value to Ms. Martins in the amount of $560,000 as of July 2014. Since they both obtained an opinion of value from the same brokerage, I accept that that is the value for purposes of calculating the net family property, namely $560,000.
44The contents of the matrimonial home have not been listed nor valued. Much of the contents relate to the occupation by the children and Ms. Martins and ought not to be divided. Ms. Rites agreed that Mr. Jardim should retrieve his personal items and she volunteered to assist in making that happen.
45The only other asset is the pension that Mr. Jardim has through the Labourers’ Pension Fund of Central and Eastern Canada which is a defined benefit plan. Appendix A to the Family Law Valuation report indicates that Mr. Jardim joined the pension plan on August 1, 1996. He had total credited service during the entire period of employment of 16.25 years, 4.25 of which accrued during his spousal relationship period. The Family Law Valuation report indicates that the total value of the pension accrued during that period is $35,093.05 and the maximum amount that may be assigned and transferred to Ms. Martins is $17,546.52. She does not want it to be assigned to her. She wants it to remain with Mr. Jardim so as to reduce the amount she would have to pay to him to acquire his interest in the matrimonial home. I agree with that approach.
46Ms. Martins claims that she had savings of $15,000 at the time of the marriage and in his financial statement, he claims that he had $25,000 in savings at the time of the marriage. Neither has any documents to confirm those amounts. Ms. Martins was born in August 1963 and was 38 at the time of the marriage in 2001. She had arrived in Canada in 1999 and had an account with her cousin in which she had accumulated savings. She said that she told Mr. Jardim at the time of the marriage that she had the savings. She said early on in the relationship she was worried about him because he appeared to be dependent on alcohol and she knew he was leaving a difficult marriage. She thought he needed a second chance. He insisted that she transfer the money to his account. She described how, on a daily basis she transferred $500 until all the funds were in his hands. At the time of the marriage in 2001, Mr. Jardim was 40 years old. I accept Ms. Martins evidence that he was leaving a marriage from which I infer that it is unlikely that he had any savings. I consider her explanation for her savings and how she transferred the funds to him to have the ring of truth. Accordingly, while I do not accept his evidence of pre-marital savings, I accept her evidence as to her pre-marital savings.
47The following is the relatively straightforward net family property calculation:
Value of Assets at Valuation Date November 2, 2013
Applicant
Respondent
Brock Avenue current value $560,000 at 50%
$280,000
$280,000
Contents (other than those needed for the children)
to be divided between Applicant and Respondent
N/A
N/A
CIBC RRSP ending #975
$ 325
CIBC RRSP GIC ending #343
$ 1,180
CIBC chequing ending #892
$ 175
CIBC RESP ending #866
$ 1,457
Labourers’ Fund Pension – value attributed to pension
accumulated between November 30, 2001 and
November 2, 2013
$ 35,093
Value of assets at Valuation Date A.
$283,155
$315,093
Liabilities at Valuation Date
Mortgage CIBC as of September 4, 2014
$72,857
$72,857
Total Liabilities at Valuation Date B.
$72,857
$72,857
Pre-Marriage Deductions C.
$15,000
$ 0
Net Family Property A. minus B. minus C.
$195,298
$244,236
Equalization Payment: Respondent pays Applicant
- $24,469
- $24,469
48I do not agree that the accumulation of debt in the joint line of credit in the amount of $42,331 should be attributed to Mr. Jardim. Even if the evidence supported that conclusion, I would not be persuaded that such a debt (which had been rolled into the mortgage) justified a distribution of the value of the net family property on other than an equal basis. Given the substantial equity in the home, a debt of that amount would not lead to an equalization payment to Mr. Jardim that would be unconscionable as required pursuant to s. 5(6). The Applicant has not met the burden necessary to persuade me that an order pursuant to s. 5(6) of the Family Law Act is appropriate.
D. Spousal Support
[49]
Spousal Support
In her Application, Ms. Martins asked for spousal support but she did not make that claim at the trial. Given her evidence as to the extent to which she had had to shoulder so much of the financial responsibility during the marriage, I would not have found that she was entitled to spousal support.
E. Child Support
[50]
Child Support
Ms. Martins is 51 years old. She expects to continue to work for as long as possible.
51Mr. Jardim is 53 years old. He has not been employed December 7, 2012. As his tax returns indicate for 2011 and 2012, his total income has included wages and EI, as anticipated for a labourer where some of the work is weather and economy dependent. According to Ms. Martins, his days consisted of watching tv, drinking alcohol and smoking cigarettes. Based on the significant portion of EI received in 2011 and 2012, I infer that he had an opportunity to do just that. He did not admit to the excessive drinking alleged by Ms. Martins, but he did say that he had quit drinking, albeit because he could no longer afford it. His only evidence that he is not capable of working is a handwritten note from someone at a rehab clinic that says he has chronic back pain and his evidence that he was injured in December 2012 and can no longer work. I am not persuaded that Mr. Jardim is not capable of working. I find that Mr. Jardim has an ongoing obligation to pay child support.
52For the period November 2013 to and including August 2014, Mr. Jardim should have paid child support which I calculate as follows:
Disability income $2000 per month x 10 months
$24,000
Child support for 2 children $362 per month x 10 months
$ 3,620
53Commencing in September 2014, Mr. Jardim’s income from social assistance of $656 per month leads to an annualized income of $7872 on which, according to the Child Support Guidelines, he has no obligation to pay child support.
54The question becomes whether, for prospective child support, income should be attributed to Mr. Jardim and if so, how much.
55Ms. Rites provided a DivorceMate calculation based on Mr. Jardim’s non-taxable disability income of $26,000 which yields an annual guideline income of $30,195 and Ms. Martins’ income of $21,840 that leads to child support in the amount of $441 per month. Ms. Martins asks for a lump sum child support award in the amount of $66,680 calculated on the basis that Mr. Jardim would pay $441 per month from November 2013 to June 2025 when Igor turns 23 years old and then $205 per month for 4 years until February 2029 when Frank turns 23 years old.
56During submissions, I indicated to Ms. Rites that I would not entertain a request for child support to age 23 given that there was no way to predict how long these children would remain “children of the marriage” within the meaning of the Divorce Act. She provided revised calculations to age 18 to June 2020 when Igor would turn 18 and then to February 2024 when Frank would turn 18 which she said yielded lump sum child support in the amount of $42,690.
57I do not accept that the DivorceMate calculation should assume that Mr. Jardim’s disability income was non-taxable and then be grossed up. In the 2013 tax summary, he was required to pay taxes of $2052. I cannot confirm it from the available information, but it may be that his disability income was taxable. I have no information about the details of disability pension entitlement through his union and as a result I cannot draw inferences as to whether it was a time limited policy or it was subject to proof of disability which he could not meet. In any event, his disability income has ended and is not an appropriate basis upon which to calculate his income for child support purposes.
58I agree that this is a case where Mr. Jardim’s social assistance income ought not to be the basis upon which his obligation is determined. He is only 53 years old. He says he has chronic back pain. He may be entitled to a CPP disability pension. The evidence of his attendance at a rehab clinic 3 times a week does not mean that he cannot work. He should be doing far more to contribute to the support of his children than he is now doing. I infer that he is intentionally unemployed and that income should be imputed to him.2 I am satisfied that his income for purposes of establishing his child support payments should be the income reflected in the line 150 income of his 2012 return which included a significant portion of EI. I impute his income at $29,000 annually and I find that that income will continue to his age 65 which will be in January 2026. Igor will be18 in June 2020 and Frank will be 18 in February 2024.
59Mr. Jardim is angry with his wife. He has not voluntarily paid any support in over a year although he had the ability to do so, leaving her to struggle to maintain the home and the children. Given his attitude, I consider it unlikely that he will accept responsibility to pay child support and unlikely he will actively seek employment. I consider it more likely that he will remain in what he considers to be impoverished circumstances rather than pay his wife child support. Under those conditions, I agree with Ms. Rites that this is a case in which I should award lump sum child support in lieu of table amount of child support.
60Having found his income to be $29,000, the current table amount for 2 children according to the Child Support Guidelines is $423 per month. In July 2020, when Mr. Jardim’s obligation will be only for Frank, the amount for one child at current Child Support Guidelines rates is $237 per month. I calculate Mr. Jardim’s obligation to pay lump sum child support as follows:
January 2015 to June 2020:
$423 per month for two children x 5.5 years
$27,918
July 2020 to February 2024:
$237 per month for one child x 3 years 8 months
$10,428
TOTAL LUMP SUM CHILD SUPPORT TO AGE
18 OF EACH CHILD
$38,346
61That calculation does not take into consideration any s. 7 expenses (which are not now asserted) nor any obligation to pay child support after each child reaches age 18.
62I understand why Jarvis J. made an order on June 4, 2014 imputing income to Mr. Jardim in the amount of $70,000 which was the amount that Ms. Martins said he earned at the time that they married. The order does not include a commencement date and accordingly it must be taken as effective on that date. Since then 7 months have elapsed and Mr. Jardim has not made any payments of child support. Pursuant to that order, Mr. Jardim is in arrears the sum of $7259 ($1037 x 7 months). Ms. Martins does not ask for an order enforcing payment of that order. Based on the evidence of Mr. Jardim’s actual income, I agree that it would be inappropriate to enforce that order.
F. Exclusive Possession
[63]
Exclusive Possession
Ms. Martins asks for an order for exclusive possession of the home. Given the vesting order referred to below, an order for exclusive possession might not be necessary. However, it will take some time for the vesting order to be registered against title. In the meantime and to bring home to Mr. Jardim that he does not have a right to occupy the home, there ought to be no uncertainty as to possession. I am satisfied that pursuant to s. 24(3) of the Family Law Act it is in the best interests of the children that Ms. Martins have exclusive possession.
G. Vesting Order
[64]
Vesting Order
Ms. Martins asks for an order awarding her title to the former matrimonial home taking into consideration the equalization payment, post-separation adjustments, retroactive child support, lump sum child support and costs.
65Since Mr. Jardim left on November 2, 2013, Ms. Martins has been paying all of the expenses related to the matrimonial home. She has paid mortgage principal and interest, property taxes and house insurance, of which 50% should be treated as on his account and for which she should be compensated. In addition, since title is to be vested in her, it is reasonable to deduct notional costs of disposition. Ms. Rites suggested 5% but I find a more conservative approach, namely 4% is appropriate.
66I agree that this is an appropriate case for a vesting order pursuant to s. 34(3) of the Family Law Act in order to ensure that Mr. Jardim meets his obligation to provide for his children.
67In her closing submissions, Ms. Rites provided a calculation that would require Ms. Martins to pay Mr. Jardim on account of his child support obligations and other issues, the sum of $79,125. As indicated below, I have arrived at a higher figure. I have no evidence as to whether Ms. Martins is able to obtain financing in order to pay Mr. Jardim. I consider it reasonable that Ms. Martins make a partial payment, at which time title will vest in her name, to be followed by the more substantial payment no later than October 14, 2016 when the mortgage matures. If the Applicant is unable to make either payment, then the home shall be listed for sale by the Applicant and out of the proceeds of sale, the amount set out below will be paid to the Respondent.
H. Costs
[68]
Costs
As indicated above, there are two orders for payment of costs. In addition, Ms. Martins incurred the cost of the family law valuation for Mr. Jardim’s pension in the amount of $678 which she should recover. Ms. Rites did not provide a costs outline. She pointed out that there had been 7 attendances with costs ordered on only 2 of those. She also noted that her client had served one (if not more) offers to settle. She was unable to conclude her submissions as to costs without being able to compare the outcome with the content of the offer or offers.
69It is important that the steps taken to fix costs be proportionate to the issues and the services properly required. This was not a complex case. It became more protracted because Mr. Jardim did not properly participate. Given that he acted unreasonably by ignoring the proceedings, I will infer that he never made an offer to settle. I am satisfied that it is in keeping with the primary objective of the rules if I fix the costs on the basis of my review of the court file and the evidence that was before me. I fix costs of the action in the amount of $7000.
I. Calculation of Mr. Jardim’s interest in the matrimonial home
[70]
Calculation of Mr. Jardim’s interest in the matrimonial home
Mr. Jardim’s interest in the matrimonial home is calculated as follows:
50% of current value
$280,000
50% of current mortgage (total $145,715)
$ 72,857
50% of notional disposition costs at 4%
of current value (total $22,400)
$ 11,200
Equalization payment
$ 24,469
50% of post-separation adjustments
(mortgage principal, interest,
property taxes, house insurance:
$1257 x 14 months = $17,598)
$ 8,799
retroactive child support (November 2013 to
December 2014)
$ 3,620
prospective lump sum child support (January
2015 to February 2024)
$38,346
costs: $500; $1000; $678; $7000
$ 9,178
Owed to Respondent
$111,531
ORDER TO GO AS FOLLOWS:
[71]
Order
The Applicant has final custody of the children Igor Martins Jardim born June 30, 2002 and Frank Martins Jardim born February 27, 2006.
72On a final basis, the Applicant is permitted to travel outside of Canada with the children Igor Martins Jardim born June 30, 2002 and Frank Martins Jardim, born February 27, 2006 without prior written consent of the Respondent.
73On a final basis, the Applicant is permitted to obtain passports, renewal of passports and other identity documents for the children, namely Igor Martins Jardim born June 30, 2002 and Frank Martins Jardim, born February 27, 2006
74On a final basis, the Respondent shall have access to the children under the supervision of Maria Pacheco, at such times as are agreed by Ms. Pacheco.
75The Respondent is prohibited from removing either or both children Igor Martins Jardim, born June 30, 2002 and Frank Martins Jardim, born February 27, 2006 from the province of Ontario without the consent in writing of the Applicant or court order made on notice to the Applicant.
76The temporary restraining order dated April 17, 2014 is terminated.
77A final restraining order shall issue that:
(a) the Respondent is prohibited from coming within 100 meters of the Applicant, Ms. Nizia Martins, born August 24, 1963 or anywhere she is likely to be, including the matrimonial home municipally located at 211 ½ Brock Avenue; and
(b) the Respondent is prohibited from contacting or communicating directly or indirectly with the Applicant except for the purposes of arranging access to the children.
78By January 15, 2015, the Applicant and Respondent shall divide the contents of the home other than those needed for the care of the children (which includes their bedrooms, living room, dining room, kitchen). The Respondent is entitled to retrieve his personal belongings including documents such as birth certificate and passport. Counsel for Ms. Martins shall arrange for the Respondent to attend at the home under the supervision of a police officer for purposes of this paragraph.
79The Applicant shall pay to the Respondent $111,531 as follows:
(a) by March 16, 2015, the sum of $20,000
(b) by October 14, 2016, the sum of $91,531.
80Upon payment of the amount in paragraph 79(a), title to 211½ Brock Avenue, Toronto, Ontario M6K 2L8 shall be vested in Nizia Aparecida Martins in consideration of the obligations listed in paragraph 70 above.
81Upon payment of the amount in paragraph 79(a), the Respondent has no right, title or interest in 211½ Brock Avenue.
82If the Applicant fails to make either of the payments referred to in paragraph 79, then she shall forthwith list the house for sale. The consent of the Respondent to the listing, to acceptance of offers or making of counter-offers, and to the closing of the transaction is dispensed with. On closing, the Respondent shall receive the amount referred to in paragraph 79 and the balance shall be paid to the Applicant.
83The Applicant has final exclusive possession of 211½ Brock Avenue.
84The Applicant is solely responsible for repayment of the mortgage payable to CIBC loan number 003086139 in the current principal amount of approximately $145,000.
85The Respondent has no obligation to pay the mortgage to CIBC loan number 003086139 in the current principal amount of approximately $145,000.
86The Applicant has no claim against the pension of the Respondent in the Labourers’ Pension Fund of Central and Eastern Canada 0573188.
87The Support Deduction Order dated June 4, 2014 is terminated.
88The divorce is granted and takes effect in 31 days.
89Counsel for the Applicant may take out this order (including the restraining order) without approval of the draft order by the Respondent.
Kiteley J.
Released: December 2014
Footnotes
- The endorsement and order dated April 17, 2014; endorsement and order dated May 14, 2014; endorsement and order and Support Deduction Order dated June 4, 2014; endorsement and order dated September 8, 2014; affidavit of the Applicant sworn September 4, 2014 for uncontested trial; net family property brief of documents; trial record; up-to-date Form 13.1; up-to-date Form 35.1; order that the Applicant would seek at trial; covering letter listing all of the foregoing and confirming that the trial was set for an uncontested hearing for the week of October 20, 2014.
- Drygala v. Pauli (2002) 2002 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.).