Griscombe v. Daring, 2014 ONSC 7094

SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: FS-14-80046-00

DATE: 20141208

RE: GRISCOMBE v. DARING

BEFORE: Van Melle J

COUNSEL:
Ms. A. Zubair, for the Applicant
Mr. Daring in person

HEARD: December 5, 2014

E N D O R S E M E N T

1On September 10, 2014 the parties attended at a Settlement Conference before Justice Price. Justice Price found that Mr. Daring was in default as he had not delivered an Answer and ordered that the matter could proceed on a default basis. He made certain Orders including sale of the matrimonial home. He made further Orders dealing with the proceeds of sale of the matrimonial home. He ordered that the balance of the issues were to be determined at an uncontested trial to be heard on October 6, 2014.

2The uncontested trial came before Justice Ricchetti on October 6, 2014. Justice Ricchetti had some concerns because the Respondent Mr. Daring, an undischarged bankrupt, appeared on that day. He adjourned the uncontested trial. I got involved in my role as Regional Senior Justice. The parties attended before me to speak to the matter and I ordered that the Trustee in Bankruptcy was to be notified of the family law proceedings. I also granted Mr. Daring leave to serve and file a Financial Statement.

3Subsequently this matter came back before me as a Motion for Summary Judgment. Mr. Daring filed materials and participated in the motion. The matrimonial home has now been sold and the net proceeds of approximately $100,000 remain in trust.

CUSTODY AND ACCESS

4There are three children of the marriage: Estasia born December 22, 1998, Xavier born December 11, 2003 and Shakinah born March 24, 2006. Mr. Daring wishes to have joint custody but I am satisfied that the parties do not communicate and that the children are doing well with Ms. Griscombe so she will have sole custody.

5Ms. Griscombe is agreeable to Mr. Daring having access to the children. Access will therefore be as follows:

1. Alternating weekends from Friday night to Sunday night;

2. Two consecutive weeks in July and two consecutive weeks in August;

3. Mr. Daring will have the first option as to his preferred weeks in odd numbered years and Ms. Griscombe will have the first option as to her preferred weeks in even numbered years. Both parties are to advise each other of their preferred weeks by no later than June 15th in each year;

4. Family Day weekend in even-numbered years from their leaving school on Friday until their return to school on Tuesday;

5. School spring break in odd-numbered years from their leaving school as the Spring Break starts until their return to school following the break;

6. Easter weekend in even-numbered years from Thursday after school to return to school Tuesday morning;

7. Victoria Day weekend in odd-numbered years from after school on Friday until their return to school on Tuesday;

8. Every Father’s Day from 8 p.m. the night before (every Mother’s Day with Ms. Griscombe from 8 p.m. the night before);

9. The Canada Day weekend in even-numbered years and the Civic weekend in odd-numbered years;

10)The Labour Day weekend in even-numbered years;

11)The Thanksgiving weekend in odd-numbered years;

12)One-half of the children’s Christmas vacation. The children will reside with Ms. Griscombe for the first half of the Christmas Break in odd-numbered years and the last half of the Christmas Break in even-numbered years and with Mr. Daring for the first half of the Christmas Break in even-numbered years and the last half of the Christmas Break in odd-numbered years. The first half will start after school on the children’s last day of school in December and end at 8 p.m. on the date that is the half-way point of the Christmas Break. The second half will start at 8 p.m. on the date that is the half-way point of the Christmas Break and end on the morning the child returns to school in January. The party having the children for the first half of the Christmas Break shall have them on Christmas Eve until Christmas day at noon and the party having the children for the second half of the Christmas Break shall have them from noon on Christmas Day until the children return to school in January.

CHILD SUPPORT

6Ms. Griscombe seeks child support for the three children and is agreeable to using Mr. Daring’s annual income of $37,086 as the figure upon which to calculate support. Mr. Daring says that he actually earns $24,000.00 now but I am satisfied that he is able to earn $37,000.00. Mr. Daring submitted that I had the discretion to depart from the Child Support Guidelines. I asked him where he obtained that information and he advised me that he had researched it on the Internet. I therefore gave him additional time to bring this research to my attention. He sent me an e-mail indicating that he was facing financial hardship. He has not however, advanced a claim for undue hardship in this proceeding. It is unlikely in any event that he would be successful in making such a claim as he is one person as compared to Ms. Griscombe and the three children who are four.

7I am therefore ordering Mr. Daring to pay to Ms. Griscombe support for the three children in accordance with the Child Support Guidelines in the amount of $719.00 commencing January 1, 2015. Given Mr. Daring’s financial circumstances I am not prepared to order any contribution to section 7 expenses. Apparently the only section 7 expenses that will be incurred are piano lessons and karate lessons. These payments can be made from the monthly support payments.

8I am also not satisfied that Mr. Daring has any life insurance policies, but in the event that he does or comes to have any such policies he is to make Ms. Griscombe the beneficiary in trust for the children to secure his ongoing support obligation. He is also to leave the children as beneficiaries of any medical, dental or health insurance plans that he may have through employment.

EQUALIZATION

9The only real asset that the parties had was the matrimonial home which as stated earlier has now been sold. The net proceeds of approximately $100,000 are being held in trust. An order will issue that Ms. Griscombe receive her half in the amount of $50,000.00 forthwith.

10The trustee in bankruptcy, despite being advised of this proceeding, has declined to participate. Any amount going to Mr. Daring will go to his trustee to satisfy his debts. As well, the bank holding the mortgage on the property had commenced Power of Sale proceedings and there are legal fees flowing from that. On April 4, 2014 Mr. Daring was ordered to make the ongoing mortgage payments and he neglected to do so. Therefore the amount of $4,000.00 shall be paid to Ms. Griscombe from Mr. Daring’s share. From his share he will also pay to Ms. Griscombe $2,680.00 representing the bank fees.

COSTS

11Ms. Griscombe is entitled to her costs. She was put to additional expense by Mr. Daring’s failure to comply with court orders. Ms. Griscombe claims costs in the amount of $10,949.03 on a full indemnity basis and $7,465.07 on a substantial indemnity basis. I find that costs of $10,000.00 inclusive of legal fees, disbursements and HST are appropriate and I so order.

12The balance of $33,320 from Mr. Daring’s share is to be applied to ongoing child support. Ms. Griscombe is to receive the amount now and Mr. Daring will not have to pay monthly child support until January 1, 2019 unless his income increases above $37,000.00 and then a recalculation will have to occur. (A decrease will not trigger a reconsideration of child support.) In that regard, the parties are to exchange Income Tax Returns and Notices of Assessment by August 1 in every year.

13Ms. Griscombe seeks a restraining Order on the grounds that Mr. Daring has continued to harass her in an attempt to intimidate her. Apparently he has put a GPS under her car in the past and his cellphone in her car to spy on her. As well he has become angry and aggressive and has pushed and shoved her. I am satisfied that a restraining Order should issue. Mr. Daring may only contact Ms. Griscombe to arrange access.

ORDER

14The following Order will issue:

1. Sole custody to Ms. Griscombe;

2. Access as set out in this Order;

3. Neither party will travel with the children outside of Canada without the written permission of the other parent which permission shall not be unreasonably withheld;

4. A parent proposing to take the children out of Canada shall provide the other parent with at least 15 days’ notice and provide an itinerary showing all travel plans including the dates and times of travel as well as all carrier information;

5. Ms. Griscombe may apply for and renew the children’s passports without the consent or signature of Mr. Daring;

6. Child support in the amount of $719.00 per month based on Mr. Daring’s income of $37,000.00. A lump sum of $33,320 is to be paid to Ms. Griscombe from Mr. Daring’s share of the proceeds of the matrimonial home and monthly support payments will commence January 1, 2019;

7. Ms. Griscombe is to receive $50,000 from the matrimonial home proceeds as well as $4,000.00 representing ½ of the mortgage payments that Mr. Daring was to make and $2,680 representing the bank’s legal fees;

8. Ms. Griscombe is to receive $10,000 from the matrimonial home proceeds representing costs;

9. I am satisfied that the parties have been separated for more than one year so an Order for Divorce will issue;

10)A restraining Order will issue against Mr. Daring except that he may contact Ms. Griscombe for the sole purpose of arranging access;

11)Ms. Griscombe’s lawyer may take out this Order without Mr. Daring’s approval as to form and content.

Van Melle, J