ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Heather Deanne Williamson
William R. Clayton for the applicant
Applicant
- and -
Matthew Andrew Williamson
No one appearing for the respondent
Respondent
HEARD: February 13, 2015; written submissions received February 18, 2015
MITROW J.
INTRODUCTION
[1] This application proceeded before me as an uncontested trial.
[2] The applicant sought an order granting a divorce; awarding sole custody of the children to her, with primary residence to be with the applicant with access to the respondent to be at the applicant's discretion; a final order of child support; an order for annual income disclosure for the purpose of updating the child support payable by the respondent; a final order of spousal support; an equalization payment; an order vesting the jointly-owned matrimonial home in the sole name of the applicant; an order granting the applicant exclusive possession of the matrimonial home; an order granting the applicant the exclusive possession of a Toyota Sequoia motor vehicle and an order requiring the respondent to cause his corporation to continue making the loan payments and paying the insurance for the vehicle; and costs.
[3] For reasons that follow: a divorce is granted; the applicant is awarded custody of the children with access to the respondent as proposed by the applicant; the applicant is awarded exclusive possession of the matrimonial home and contents for the period of time set out in the order below; and the trial is adjourned for continuation to receive further evidence in relation to equalization payment and in relation to all issues that have been dealt with on an interim basis.
PROCEDURE
[4] The applicant complained, and rightly so, as to the respondent's failure to comply with disclosure orders. The respondent has an interest in a number of corporations, including Fusion Concepts Inc. ("Fusion") which is the corporation from which the respondent derives a significant portion of his income. Although Fusion is owned equally by the parties, the evidence is that the applicant has little to do with Fusion and that it is in the de facto control of the respondent.
[5] Despite the orders of Carey J. (July 18, 2014) and Henderson J. (October 14, 2014), the significant financial disclosure ordered to be provided by the respondent, both personally, and for the corporations, was not provided. The respondent did manage to file his answer, and later his financial statement, dated October 2014, the latter being filed approximately 16 months after the application was issued.
[6] The two aforesaid orders provided for costs to be paid by the respondent in the cumulative amount of a little over $7,100. Those costs have been paid.
[7] The order of Henderson J. had adjourned the proceeding to December 2, 2014 to allow the respondent to comply with the production order, failing which Henderson J. ordered that the applicant may seek an order dismissing the respondent's answer and may request a date for an uncontested hearing.
[8] On December 2, 2014, this matter came on before Marshman J.; the respondent was still in breach of the disclosure orders, including failing to produce any of the long list of personal and corporate disclosure listed in paragraph 1(a) in the order of Carey J. Consequently Marshman J. struck the respondent's answer/claim and ordered costs of $750 to be paid by the respondent and adjourned this matter to February 13, 2015 before me.
[9] On February 13, 2015, Mr. Vitsentzatos, who had been the respondent's counsel of record, appeared requesting an adjournment on behalf of the respondent. The applicant objected to Mr. Vitsentzatos being heard and objected to any delay in proceeding with her uncontested trial, noting that the respondent had not appealed the order striking his answer/claim. I made the following endorsement in denying the adjournment request:
This case has had a tortured procedural history. The respondent has been subjected to various orders for production in respect of which he remains in default. See for example the comprehensive production order of Carey J. dated 18 July 2014. The respondent let the situation slide to the point, that finally, Marshman J., on December 2, 2014 struck his pleadings. Today, Mr. Vitsentzatos appears for the respondent, asking for an adjournment. The order of Marshman J. has not been appealed; I did, over Mr. Clayton's vociferous objection, allow Mr. Vitsentzatos to make submissions which were to the effect that new accountants have been retained, and the financial statements for the corporations would soon be available; it is noteworthy that the regular accountants retained by the respondent, withdrew their service.
The applicant intends to proceed today (if an adjournment is not granted) by ascribing no value to the corporations and relying on the respondent's income as disclosed in his October 2014 financial statement.
The respondent is not here today. The court is advised by Mr. Vitsentzatos that he understands his client is away on business.
The respondent has engaged in a history of non-disclosure and obfuscation. The applicant is so fed up, she just wants to get this case over with based on the existing record and whatever disclosure has been made by the respondent.
This is not a proper case to delay today's hearing. The adjournment request is denied.
[10] Although it was Mr. Vitsentzatos' understanding that the respondent was on business, I accept the applicant's evidence that the respondent told her he was leaving for vacation in Mexico on February 7, 2015 and that he had no intention of attending the hearing on February 13, 2015. I reject any suggestion that the respondent was not in court because he was allegedly "on business".
[11] The previous accountant for the respondent and all of his corporations, Mr. Lowry, had elected to cease continuing as the accountant, effective March 2, 2013, as Mr. Lowry had not received necessary information as previously requested. Mr. Lowry's letter, resigning as accountant, is attached as an exhibit to an affidavit relied on by the applicant in the uncontested trial. Also, at the same time, Mr. Lowry ceased acting for the applicant personally and for her corporation, H.D. Hair Inc., for reasons similar to those cited in relation to the respondent and his corporations.
[12] The uncontested trial proceeded before me on February 13, 2015 with the evidence consisting of the applicant's Form 23C affidavit; her Form 35.1 affidavit, her affidavit sworn February 11, 2015 updating the earlier Form 23C affidavit, her two financial statements (with the second financial statement being sworn February 11, 2015); the respondent's financial statement sworn October 27, 2014; and some brief viva voce evidence from the applicant.
[13] There were no tax returns or other documents appended to the respondent's financial statement. The only tax information for the respondent was the information included in material filed by the applicant, consisting of the respondent's 2010 income tax return, and the financial statement for Fusion for the fiscal year ending January 31, 2012 (with that statement also including comparative information for fiscal 2011).
[14] The respondent's conduct, in failing to provide financial disclosure and in ignoring the orders of this court, is properly characterized as egregious.
[15] The applicant's affidavit material included hearsay statements from third parties. At a trial, such evidence is inadmissible: see, for example, r. 23(21)(c). I have ignored any inadmissible evidence in the applicant's affidavits.
BRIEF BACKGROUND FACTS
[16] The parties were married to each other on June 20, 2003. They separated on September 10, 2011. The parties met in 1987 and began living together in 1998.
[17] There are two children of the marriage namely Nathan Ross Williamson ("Nathan") and Cameron Michael Williamson ("Cameron"), both children being born on November 1, 2004.
[18] The applicant is self-employed and runs a hair salon. A portion of the matrimonial home is equipped for the applicant's hair salon business.
[19] During the course of the marriage the respondent started a business which became quite successful, resulting in the respondent earning a significant income and the parties enjoying an affluent lifestyle having an expensive home, expensive cars, and also going on various vacations abroad.
[20] The evidence at trial establishes that the respondent had significant substance abuse issues that included alcohol and other substances. This evidence is relevant to the respondent's ability to parent the children and the respondent's ability to care for the children during access.
[21] The significant evidence of the fallout from the respondent's untreated substance abuse includes the respondent being hospitalized for an overdose that occurred in March 2013.
[22] Significantly the applicant's evidence describes that the applicant, together with the respondent's parents and others, all joined together to confront the respondent and urge treatment and rehabilitation.
[23] The respondent at one point did attend at a treatment facility but discharged himself early.
[24] The evidence establishes that the responsibility for caring for the children after separation, fell to the applicant, and further, the applicant was also saddled with having to deal with the stress of the respondent's irresponsible behaviour in relation to his substance abuse and failing to follow through for treatment as urged by his family and friends.
[25] I am satisfied on all the evidence that the applicant at all times properly discharged her obligation to maintain the relationship between the respondent and the children, and that in doing so, the applicant had to balance having to assess the respondent's ability to parent the children during access, and imposing necessary restrictions on the respondent's access to protect the children.
[26] I find that the applicant behaved responsibly in promoting access, while at the same time properly intervening and shielding the children from risk presented by the respondent's untreated substance abuse.
[27] The respondent's behaviour subsequent to separation included making threats to abscond with the children. This prompted the applicant, near the end of June 2013, to stay in a hotel for two nights with the children because of the threats. It was the applicant's evidence that she sought the assistance of the Children's Aid Society at that time and that the respondent's mother, Marilyn Williamson, assisted the applicant in making the telephone call to the Children's Aid Society.
[28] The extent of the applicant's substance abuse issues are corroborated by the fact that subsequent to separation, the respondent's parents were supportive of the applicant, and assisted her from time to time in taking appropriate steps, and employing necessary strategies to protect the children from the respondent and to encourage the respondent to obtain treatment.
DECREE OF DIVORCE
[29] I am satisfied that the parties have been living separate and apart since September 2011.
[30] I find that the parties were married on June 20, 2003 in Bayfield, Ontario.
[31] Accordingly a divorce is granted to take effect 31 days from today's date.
CUSTODY AND ACCESS
[32] The evidence at trial establishes that it is in the best interests of the children to be in the sole custody of the applicant.
[33] On the issue of access, there had been occasions subsequent to separation when the respondent had access that was not supervised by the applicant and this included access sometimes supervised by the respondent's father and later the respondent's new partner.
[34] I accept the applicant's evidence that given the ongoing conduct of the respondent and his untreated substance abuse, that the applicant has properly intervened by structuring access, since April 2014, to include taking the children to see the respondent once a week; this would include meeting the respondent at a restaurant for dinner. The applicant is clear that she always supervises these visits and I find that the applicant's decision to supervise those visits is in the children's best interests.
[35] I am satisfied on the evidence that at the present time the necessity for supervision continues and is in the children's best interests. I am further satisfied that the applicant will ensure that the children see their father as much as reasonably possible and in circumstances where the children's safety is assured.
[36] I make a final order for custody and access as follows:
a) Pursuant to the Divorce Act, the applicant shall have sole custody of both children; and
b) The respondent shall have access to both children, with such access to be at the discretion of the applicant; the access shall be exercised in the applicant's presence, or in the presence of a third party deemed suitable by the applicant; and the applicant shall have discretion as to whether the access should be supervised and the extent of the supervision.
PROPERTY AND EQUALIZATION PAYMENT
[37] I cannot accept the applicant's submission that the respondent's one-half interest in the matrimonial home should be vested in the applicant to satisfy any equalization payment owing by the respondent.
[38] There is no independent expert evidence as to the current value of the matrimonial home. Accordingly, if a vesting order was to be granted, it would not be possible to value the respondent's interest in the equity that was being transferred to the applicant via the vesting order.
[39] In her net family property statement filed as Ex. 2, the applicant had calculated the equalization payment at over $270,000, but this was based on the respondent being notionally treated as the sole owner of the matrimonial home, when in fact the matrimonial home was jointly owned by the applicant and respondent.
[40] The applicant's alternative approach as set out in her net family property statement, filed as Ex. 1, is the preferred method of proceeding. In Ex. 1, the applicant has taken the position that she is prepared to proceed with a calculation of the equalization payment on the basis that the respondent's interest in all of the corporations has no value. The applicant takes this position somewhat reluctantly given the respondent's refusal to provide financial disclosure as ordered; and further the applicant is prepared to rely on whatever amounts have been shown by the respondent in his financial statement in order to calculate his net family property.
[41] While I do have some sympathy for the position that the applicant finds herself in, once the applicant elects to proceed in the manner described above, the applicant must still provide all relevant information to calculate her net family property.
[42] As the applicant and respondent are equal shareholders of Fusion, the value of Fusion, whatever it may be, would increase each party's net family property by an equal amount. The only indication of the value of Fusion is Fusion's financial statement, filed by the applicant, showing that as at Fusion's year-end January 31, 2012 and January 31, 2011, the shareholder's equity (rounded) was $1,000,000 and $677,000, respectively, and that Fusion's net income before tax (rounded) was $369,000 and $416,000, respectively.
[43] Also, 1781892 Ontario Limited is shown in the applicant's financial statement as being owned by the applicant and respondent; however, the respondent does not disclose this corporation in his financial statement.
[44] Using the calculations shown in Ex. 1, I find that I am unable to calculate the equalization payment because the applicant has failed to disclose the values of her RBC securities at date of separation (she shows same as "TBD"); similarly, the applicant's corporation, H.D. Hair Inc., through which she earns her income, has not been valued - its value is also shown as "TBD". The applicant needs to disclose the values of these assets, and provide some back-up documents to corroborate the values.
[45] In relation to the condominium owned by the applicant at date of marriage, I accept the applicant's viva voce evidence, together with exhibits filed at trial, that this condominium was purchased by the applicant in 1992 for $90,000, and that it was sold on July 31, 2003 (a little over a month after the parties were married); further I accept that the mortgage on this condominium had been paid off prior to the date of marriage. I accept the applicant's explanation that she had inadvertently neglected to show the condominium as a date-of-marriage asset in her financial statements. The applicant had in fact obtained the various exhibits relating to this property on the day of the trial.
[46] The sale price of the condominium was $118,000 and this is verified by Ex. 9. I accept as a reasonable estimate that the sales commission is 5%, and I allow $500 for legal fees. The commission (5% x $118,000 = $5,900) and legal fees total $6,400. I allow a date of marriage deduction in the amount of $111,600.
[47] The applicant's net family property statement (Ex. 1) includes some small amounts for a joint bank account and a joint VISA debt, without including a similar amount for the respondent's net family property. That adjustment should be made by the applicant.
[48] Finally, the applicant's net family property statement shows a $9,000 date of marriage deduction for an engagement ring and then the same ring is shown as having a value of only $2,700 at date of separation. These values should be backed up with some documentary evidence.
[49] There is no evidence as to the ownership and or value of the matrimonial home contents. Accordingly, unless evidence of value and ownership is provided, the contents are not part of the equalization process and the parties will need to deal with the ownership and division of those assets at some future time on their own.
[50] Possession of the matrimonial home contents is dealt with below.
[51] The applicant's failure to provide sufficient evidence to calculate her net family property could have resulted in her claim for equalization payment being dismissed. However, in the circumstances, especially given the respondent's conduct, a dismissal of the applicant's claim for equalization payment would not be a just result, and accordingly, the applicant is being given an opportunity to furnish necessary additional evidence.
[52] The order below provides for a continuation of the trial in relation to equalization payment.
[53] The applicant sought an order for exclusive possession of a Toyota Sequoia motor vehicle being driven by the applicant, with the car insurance and loan payments being paid by Fusion. It is unclear whether this is a 2010 or 2011 vehicle. The order sought refers to 2010, but the affidavit refers to 2011. The applicant should file proof of ownership. The applicant sought an order that the respondent require Fusion to continue paying the car insurance and car loan payments.
[54] Until further information is received regarding the amount of the loan payment and car insurance payment, and proof of ownership, I am prepared to make the order below but only on an interim basis pending the continuation of trial. In relation to the applicant's claim for exclusive possession of this motor vehicle, the applicant will need to furnish some authority that permits the court to make such an order, especially given the apparent corporate ownership of the vehicle.
[55] I order that the respondent on an interim basis shall direct Fusion to continue making all loan payments and car insurance payments in respect of the Toyota Sequoia motor vehicle.
SPOUSAL SUPPORT
[56] The evidence satisfies me that the applicant has been adversely affected by the separation, more so than the respondent, who has continued enjoying vacations and the purchase of an expensive car (a 2013 Corvette owned by Fusion) subsequent to separation.
[57] The parties had enjoyed an affluent lifestyle together prior to separation.
[58] I accept the applicant's evidence that the relationship was approximately 13 years in duration. Further, I accept the applicant's evidence that historically, she supported the family, including the children, until the respondent's business became profitable and his earnings became significant.
[59] Also, I accept the applicant's evidence that when the children were born, that she stepped back from her hairstyling business, focusing instead on child care and that when the applicant resumed her business, the children were in day care, but only part-time.
[60] In relation to the quantum of spousal support, the applicant seeks an order in the amount of $2,690 per month commencing February 1, 2015.
[61] In relying on the only financial disclosure provided by the respondent, specifically his financial statement filed in October 2014, the applicant has prepared Spousal Support Advisory Guidelines (SSAG) calculations (Ex. 11) showing SSAG ranges of $1,205 - $1,947 - $2,690 (low - mid - high) based on the respondent's income of $161,999 and the applicant's actual dividend income of $67,797 as required by Schedule III of the Federal Child Support Guidelines. The respondent's income shown in his financial statement consisted of employment income of $34,512, and actual dividends in the amount of $127,487.
[62] The respondent's income consists of $80,000 in taxable dividends from her corporation H.D. Hair Inc. The dividends from this corporation in the applicant's tax return are shown as non-eligible taxable Canadian dividends; this same description appears in the SSAG calculations.
[63] The SSAG calculations characterize the respondent's actual dividend income as an eligible Canadian dividend. As the notes to the SSAGs explain, actual dividends need to be grossed up.
[64] The respondent's tax return for 2010 (that was provided by the applicant) shows taxable Canadian dividends totaling $144,221, of which $143,750 was from Fusion, and the balance was from the numbered company (as mentioned in the applicant's financial statement) and as set out in Schedule 4 of the respondent's tax return. These dividends are shown as non-eligible dividends in the tax return.
[65] Although the source of the respondent's dividend is not disclosed in his financial statement, it is quite apparent that the source of this dividend would be Fusion as the respondent derives substantial income from Fusion.
[66] However, the SSAGs prepared by the applicant characterize the respondent's dividend income as "eligible", whereas the evidence would suggest the dividend is "non-eligible" (similar to the applicant's dividend).
[67] If the SSAG calculations are changed to describe the respondent's dividend income as "non-eligible", the result is that the spousal support is reduced by approximately $500 per month across the entire range of low-mid-high calculations. When the applicant characterized the respondent's dividends as "eligible" in her SSAG calculations, this resulted in a decrease in the respondent's income tax liability, which in turn would increase the respondent's individual net disposable income ("INDI") and which in turn would result in higher spousal support payments. The reason for the decreased tax liability for eligible dividends may be explained, at least in part, because of the significantly greater dividend tax credits that apply to eligible dividends as compared to non-eligible dividends.
[68] It is necessary for the applicant to provide some evidence to explain why her SSAG calculations characterized the respondent's dividends as "eligible" rather than "non-eligible". The applicant should provide additional SSAG calculations to show the difference that results when the respondent's dividends are characterized as non-eligible.
[69] Given that this court has to consider SSAG calculations, as discussed in Fisher v. Fisher, 2008 ONCA 11 (Ont. C.A.), the evidence provided by the respondent at trial, at best, is unclear whether her SSAG calculations are accurate.
[70] The applicant states in her most recent financial statement that she has a boarder and receives $600 per month. That income is not shown in the SSAG calculations. Also, the respondent's financial statement discloses that he receives as a benefit rental accommodation to which the respondent ascribes a yearly market value of $18,000. The market value of that benefit has not been included in the respondent's income in the SSAG calculations.
[71] The applicant also should produce her 2014 income tax return and her financial statements for H.D. Hair Inc. for the last three fiscal years. The applicant has filed some tax information; at the continuation of the trial, the applicant should ensure that she has provided for the last three years her T1 general income tax returns with all slips and schedules and her notices of assessment for those years.
[72] The applicant does agree that the respondent has been paying interest on the line of credit secured by the matrimonial home. However, the amount the respondent is paying is unclear. In her form 23C affidavit, the applicant states that the amount is approximately $3,000 per month, whereas in her subsequent affidavit she states this amount is $2,300 per month.
[73] As discussed earlier, it was also the applicant's evidence that the respondent was making payments on her Toyota Sequoia motor vehicle, and also the car insurance; it is the applicant's evidence that this was being paid by Fusion. However, there is no evidence of the amounts being paid towards the loan or the car insurance. In my view, this information should be provided as it may be appropriate to consider the quantum of these payments when dealing with spousal support.
[74] In relation to the interest payments on the line of credit secured by the matrimonial home, it was the applicant's evidence that at the date of separation the line of credit was at a little over $300,000, and that subsequent to the date of separation the line of credit was increased to around $700,000 by the respondent. According to the applicant, the increase in the line of credit was used solely by the respondent. It appears to be the applicant's position that any interest on the increase in the line of credit subsequent to the date of separation should be paid solely by the respondent, and that he should be solely responsible for the increase in the debt.
[75] Generally, payments made by a spouse to third parties, for the benefit of the other spouse, are taken into account in arriving at spousal support. The applicant and the children have remained in the matrimonial home since the date of separation. The applicant's evidence is unclear, if a final order of spousal support is made in the amount requested, as to whether the applicant will assume a portion of the interest payment on the line of credit and pay that out of the spousal support that she will receive.
[76] The applicant needs to clarify her position on whether she intends to assume any portion of the payment on the line of credit secured by the matrimonial home. The applicant should provide bank records confirming the line of credit balance as at date of separation, and currently.
[77] Accordingly, at this time, I am prepared to deal with spousal support but only on an interim basis. In fixing interim support, I take into account the applicant's evidence that the respondent is paying all of the interest on the line of credit that is secured by the matrimonial home, that the respondent is paying through Fusion the car loan and the car insurance for the Toyota Sequoia motor vehicle that is driven by the applicant and that the respondent pays the internet costs and cellphone costs for the applicant and the children.
[78] I also take into account the factors and objectives set out in s. 15.2 of the Divorce Act.
[79] I also consider for now, but subject to any further evidence to be adduced by the applicant, that it is more likely than not that the proper characterization of the respondent's dividend income is that it is "non-eligible" dividend income.
[80] I have at this point not factored in the value of the $18,000 annual rental benefit being received by the respondent, nor the $600 monthly rent being received by the applicant from the boarder.
[81] In my view, an appropriate amount for the respondent to pay for interim spousal support is $1,750.
[82] Pending the completion of the trial and until spousal support is dealt with on a final basis, I order the respondent to pay to the applicant interim spousal support in the amount of $1,750 per month pursuant to the Divorce Act, commencing February 1, 2015.
[83] The order below provides for continuation of the trial in relation to the issue of spousal support.
CHILD SUPPORT
[84] The applicant seeks a final order for child support in the amount of $2,149 per month based on an annual income of $161,999 commencing February 1, 2015.
[85] Given that spousal support is being dealt with on an interim basis for reasons outlined above, it is preferable also to deal with child support on an interim basis pending the completion of the trial.
[86] The applicant should provide some submissions as to whether the rental benefit in the amount of $18,000 disclosed in the respondent's financial statement should be included for child support purposes, and if so, whether that amount should be grossed up.
[87] Accordingly it is ordered that pending the completion of the trial and until child support is dealt with on a final basis, that the respondent shall pay to the applicant interim child support pursuant to the Divorce Act for the support of the two children, in the amount of $2,149 per month commencing February 1, 2015, based on the respondent's annual income of $161,999.
[88] The order below provides the continuation of the trial in relation to the issue of child support.
EXCLUSIVE POSSESSION OF THE MATRIMONIAL HOME AND CONTENTS
[89] The applicant seeks a final order for exclusive possession of the matrimonial home. I have considered the criteria set out in s. 24(3) of Family Law Act, R.S.O. 1990, c. F.3.
[90] In relation to the best interests of the children, I do find that a move at this time will be disruptive to the children.
[91] The evidence is clear, that the applicant, subsequent to separation, has been largely on her on own, providing financially for the children, providing a home for the children, and having to deal with the respondent's behaviour as discussed earlier. It is also an important factor that the respondent has a hair salon business that she runs out of the matrimonial home.
[92] In considering the criteria in s. 24(3), there are no existing orders under Part 1 of the Family Law Act nor are there any existing support orders. The evidence is that the respondent has made no payments for either child support or spousal support since the date of separation in September 2011, although the respondent, as discussed earlier, has made car payments and insurance payments for the applicant's motor vehicle, has paid the interest on the line of credit on the matrimonial home and has paid for cell phones and internet for the applicant and the children.
[93] In considering the financial position of the parties, the respondent's income (as disclosed in his financial statement) far exceeds the applicant's income. The respondent controls Fusion and he is his "own paymaster". On all of the evidence, the financial resources of the respondent, I find, significantly exceed that of the applicant.
[94] There is no written agreement between the parties.
[95] In relation to s. 23(3)(f), the court is required to consider any violence committed by a spouse against the other spouse or children; there is evidence, which I accept, that the respondent has been verbally abusive to the applicant on one occasion yelling "a plethora of profanities" at her during a telephone conversation.
[96] Dealing with the children's best interests in relation to an order for exclusive possession of the matrimonial home (s. 24(4)), there is no evidence as to the children's views and preferences.
[97] In the circumstances, I find that the applicant is entitled to an order for exclusive possession of the matrimonial home and also the contents.
[98] It is necessary to deal with the issue of the duration of any order for exclusive possession. Section 24(1)(b) of the Family Law Act directs that one spouse can be given exclusive possession of the matrimonial home "… for the period that the court directs …"
[99] The request for court order (Ex. 13) sought an order for exclusive possession, but did not deal with duration.
[100] The applicant's form 35.1 affidavit, sworn May 31, 2013, stated that both children are age 8 and that they attend grade 3 in Komoka, where the applicant resides.
[101] I find that the period of exclusive possession should be long enough for the children to complete grade 8, which will occur at the end of June 2018, with the children turning age 14 in November of that year, at which time they would be starting high school in September of that year.
[102] Accordingly, I make the following order in relation to exclusive possession:
- The applicant shall have exclusive possession of the jointly-owned matrimonial home located at 10745 Melrose Drive, Komoka, Ontario, and exclusive possession of the contents of the matrimonial home, up to and including July 31, 2018.
SECURITY FOR SUPPORT PAYMENTS AND ANY EQUALIZATION PAYMENT
[103] It is the applicant's concern, expressed in her evidence, that as the respondent has made no voluntary payments regarding child support or spousal support since the date of separation (other than payments to other parties for the benefit of the applicant and children discussed earlier), that it is likely that he will not voluntarily make any support payment ordered by the court. The applicant makes the same submission in relation to any equalization payment that may be ordered.
[104] It is premature to deal with the issue of security for any equalization payment as the equalization payment has yet to be determined.
[105] In relation to support payments, the applicant also adds that the respondent will be the person responsible for responding to any support deduction order as he is in control of the day-to-day operations of Fusion. Accordingly, the applicant has a significant concern as to whether the support payments can be effectively enforced by the Family Responsibility Office.
[106] Given the respondent's behaviour in this court case, including breach of orders to provide disclosure, and considering the respondent's failure to make any periodic voluntary child support and spousal support payments, I find that it is appropriate to order security for the interim child support and interim spousal support payments that have been ordered.
[107] The authority to secure spousal support payments pursuant to the Divorce Act is found in s. 15.2(1) and (2) and, in relation to child support, is found in s. 12 of the Federal Child Support Guidelines.
[108] Pending the completion of the trial, and on an interim basis, I order that the respondent's obligation to pay interim child support and interim spousal support pursuant to the Divorce Act shall be secured by his interest in the matrimonial home.
COSTS
[109] I have reviewed the applicant's bill of costs filed as Ex. 12. The amount claimed for full indemnity is $5,116.08. This amount is rather modest, as it takes into account the costs orders that had been previously made, and paid, by the respondent.
[110] The applicant is presumptively entitled to costs. I have considered the factors in r. 24(11) in relation to costs. I find that the respondent has engaged in unreasonable conduct throughout, as discussed earlier in these reasons.
[111] I order that the respondent pay to the applicant forthwith her costs up to and including February 13, 2015 in the amount of $5,100, inclusive of assessable disbursements and HST, and it is further ordered that the sum of $3,000 of the said costs shall constitute a "support order" within the meaning of the Family Responsibility and Support Arrears Enforcement Act, 1996.
ORDER
[112] A final order, in accordance with these reasons, shall issue in relation to the divorce, custody, access, and exclusive possession of the matrimonial home and contents.
[113] The issued order shall include all interim orders as set out in these reasons.
[114] The order shall also include the following:
The trial is adjourned to Wednesday, June 10, 2015 at 10:00 a.m. before me, to be spoken to for the purpose of setting a date to complete the trial in relation to equalization payment, the final order of child support, the final order of spousal support, the final order in relation to security for support payments and equalization payment, and costs incurred subsequent to February 13, 2015.
Any additional evidence of the applicant in relation to the issues remaining to be dealt with shall be given via an affidavit, with relevant documents being attached at exhibits to the affidavit. The applicant, if necessary, may request leave at the continuation of the trial to give viva voce evidence.
“Justice Victor Mitrow”
Justice Victor Mitrow
Released: June 3, 2015
COURT FILE NO.: FD854/13
DATE: June 3, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Heather Deanne Williamson
Applicant
- and -
Matthew Andrew Williamson
Respondent
REASONS FOR JUDGMENT
MITROW J.
Released: June 3, 2015