ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: FS-13-78233-00
Date: 20150703
B E T W E E N:
Chiara Merchan
Self-represented
Applicant
- and -
Manuel Merchan
Self-represented
Respondent
Heard: June 23, 2015
REASONS FOR JUDGMENT
Tzimas J.
INTRODUCTION
[1] I heard a one-day trial in this matter. The Applicant, Chiara Merchan commenced an application for a divorce, sole custody of the children of the marriage, ongoing child support, section 7 expenses, and equalization. The Respondent, Manuel Merchan responded with a claim for spousal support, equalization and the return of various personal items.
[2] By the time of the trial, the parties’ respective claims were reduced to the following claims:
Chiara Merchan:
(a) Retroactive child support for one child for thirteen months, from March 2013 until April 2014 in the amount of $150.00 per month;
(b) 50% contribution to an outstanding loan of $4,000 = $2,000
(c) 50% contribution to a second loan of $1,000 = $500
(d) 50% contribution to the phone bill of $1,100 for the child = $550
(e) 50% contribution to the child’s transportation of $500 = $250
(f) $601 for the home internet
(g) $813 for the towing of a vehicle
The total claim against Mr. Merchan comes to $6,664.
Manuel Merchan:
(a) Equalization of $15,000 based on an estimate of an estimate that the parties had savings of $30,000;
(b) Spousal Support – asking for the court’s mercy.
(c) 50% contribution to expenses of $4,000 for home renovations = $2,000
(d) 50% contribution towards parents’ loan of $5,000 = $2,500
(e) 50% contribution towards brother’s loan of $5,000 = $2,500
(f) Contribution to the storage costs of $295 per month for stored household belongings and furniture – for 15 months that is $4,425 = $2212.50
(g) Return of the following personal items: A Dell laptop, an ivory dagger, a daisy pellet gun, the incorporation documents for the Bar and Café business.
Apart from the equalization and the spousal support, the contributions add up to $9,210.50.
BACKGROUND
[3] The parties were married for approximately twenty years. There are three children of the marriage. The youngest of the three children turned eighteen this past April.
[4] The parties encountered financial difficulties almost from the very beginning of their marriage. When the parties first got married they lived with Chiara’s parents. Eventually, with the financial support from the parties’ parents, the parties purchased a condominium apartment. Some years later, the parties sold the condominium and purchased a house. They could barely afford this purchase and required two mortgages to meet their obligations. Their difficulties were compounded when they both lost their jobs. They struggled to keep their mortgages in good standing.
[5] Eventually Chiara obtained a job as a medical receptionist. Manuel had various jobs doing scrapping, operating a forklift, and also attempted to start up various projects. The parties chose to have a joint account where all their earnings were deposited. In addition to earnings from periodic projects, Manuel would receive a monthly disability pension of $295 monthly from Workers Compensation on account of a 20% disability.
[6] Chiara left the matrimonial home and the parties separated on March 1, 2013. The matrimonial home was sold on December 19, 2013 for $260,097.20. The parties agreed that they would share the net proceeds on the basis on a 50% basis. As a result, each party received $11,958.99.
THE EVIDENCE BEFORE THIS COURT
[7] The evidence before this court was sparse at best. Chiara had some evidence concerning some of the expenses she has incurred while married and she provided the court with the documents concerning the sale of the matrimonial home. Chiara also provided her income tax returns to substantiate her annual income for the past three years.
[8] Manuel had no evidence whatsoever to support any of his claims. He asked the court for mercy and said that it would make sense for him to receive $500.00 monthly for spousal support. With respect to his equalization claim, he did not file a financial statement or net family property statement to support his claim that he receives a payment of $15,000. Instead, he purported to rely on common sense to suggest that taking a marriage of twenty-five years as a measure, one would expect savings in the range of $1,000 to $1,500 per year to result in savings in the range of $30,000. That sum could then be divided equally. Manuel was oblivious to the consistent financial struggles throughout the marriage. Manuel’s mother, who testified at the trial confirmed that reality and said that she and her husband were constantly providing Manuel with funds to help with the family’s financial needs.
[9] Manuel filed limited evidence concerning his earnings over the years that recorded annual earnings between $8,000 and $19,000. These figures included the WSIB monthly compensation of $295 per month.
[10] Manuel’s mother also testified on the subject of certain loans. Mrs. Merchan confirmed that she and her husband gave Manuel $4,000 to undertake some basic repairs to the matrimonial home before it was put up for sale. She did not confirm any other loan but she did say that over the years she and her husband gave Manuel money to meet his various needs.
ANALYSIS AND DISPOSITION
[11] This trial was plagued by a paucity of evidence by both parties. The reality is that there was never a moment when Chiara and Manuel were not facing serious financial difficulties. Parents on both sides supported them financially. Neither Chiara nor Manuel ever confronted their aspirations with reference to their financial means and their abilities to pay for those aspirations. It is a wonder that they even earned net proceeds of almost $25,000 from the sale of their matrimonial home.
[12] At this point in time, both Chiara and Manuel are in a weak financial position. Chiara may be earning twice as much as Manuel, but on Manuel’s own evidence, she also shouldered the bulk of their debts and expenses. She is still paying down those debts.
[13] Regarding the parties’ respective monetary claims, for the most part, they cancel each other off. There isn’t anything really to share and there isn’t anything to contribute. My findings on each claim are outlined specifically as follows:
(a) Contributions to respective loans: If I assume some basis for the respective loans and claims, the figures between the parties cancel each other out. Had the parties included these claims in a proper equalization analysis, there might have been slight variations in the payout to each of them from the net proceeds of the sale of the matrimonial home. Given the 50-50 division between the parties and the minor variations, there is no basis for a retroactive variation. I therefore conclude that each party is to absorb their respective loans.
(b) Child Support: Manuel is barely supporting himself. He is living with his parents and is of very limited means. Chiara recognized Manuel’s limitations. Even with the claim of a nominal amount of $150 for thirteen months, I decline to make the requested order. In reaching this conclusion I also note that at least for some of that period of time Manuel’s and Chiara’s daughter was working on a part-time basis.
(c) Spousal Support: Manuel’s evidence in support of this claim was inconclusive. Initially he suggested that he was the primary caregiver of the family and that Chiara was the one who supported the family. Then he testified that he ceased to be the primary caregiver after 1995-1996. He said that he worked when he could. He confirmed Chiara’s evidence that he undertook various business initiatives that failed.
Against Manuel’s sparse evidence, the reality is that Chiara herself is of limited means. Over the years, she bore the overwhelming weight of the family debt and expenses. She is still paying down loans to a pawnshop to meet her needs and she is still supporting one of her three children who just turned eighteen. On the basis of Chiara’s own financial statement, her enumeration of her expenses makes it clear that she does not have the means to pay any spousal support. I add that this is not a case where one spouse stayed home to enable the advancement of the other spouse. Nor is it a case where the family’s lifestyle has been materially compromised as a result of the separation.
In further contrast to Chiara’s financial situation, I find that Manuel is not making any effort to support himself. He is underemployed. Over the years he grew accustomed to seeking help from his parents and to relying on Chiara to finance two mortgages and all of the family’s needs. He has magnified his twenty per cent disability to remain underemployed. It is time for Manuel to change his attitude. It did not appear to this court that Manuel was without any ability. He has been without a will to work. In these circumstances I see no basis for spousal support and decline to make such an order.
(d) Home Internet for the period March 2013 – December 2013: Chiara paid this expense for Manuel’s benefit. It is appropriate that Manuel reimburse Chiara for the sum of $601.
(e) Towing Charges: The car that was towed by the police may have been owned by Chiara but it was in Manuel’s possession. The car was parked in front of the home of Manuel’s parents. I find that it is only appropriate that Manuel should reimburse Chiara for the towing costs of the car in question in the sum of $813.00.
(f) Storage Costs: Manuel’s evidence that he is paying monthly storage costs of $295 for the household items and furniture that used to be in matrimonial home is incomprehensible. It is troubling that Manuel would spend all of the funds he receives from WSIB towards storage costs particularly when Chiara told Manuel that she was not interested in anything in the home and that she removed whatever she wanted to keep before she left the home. The evidence became even more confusing when Mrs. Merchan stated that Manuel’s father, and not Manuel is paying for the storage. There is therefore no basis to make any order for contribution by Chiara to these costs.
(g) Equalization: There is no evidence to support any order for equalization. The parties chose a practical path and shared the net proceeds of the sale of the matrimonial home equally. Any outstanding debts are to be satisfied by those payments.
(h) Manuel’s Personal items: There was no evidence that the items Manuel is seeking even exist. Chiara denies knowing anything about the items. She left the matrimonial home and according to Manuel he moved everything into storage when the matrimonial home was sold. I have no evidence before me to make any order. If, as Manuel suggests he stored all the household items, perhaps at least some of the items are packed away and Manuel should take a second look.
FINAL DISPOSITION
[14] Apart from the order that Manuel reimburse Chiara a total sum of $1,414, payable within thirty days from the date of this order, the Application is dismissed.
Tzimas J.
Released: July 3, 2015
Court File No.: FS-13-78233-00
Date: 20150703
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Chiara Merchan
Applicant
- and –
Manuel Merchan
Respondent
REASONS FOR JUDGMENT
Tzimas J.
Released: July 3, 2015