ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-15-5468
DATE: 2015-09-17
B E T W E E N:
Nichol Genevieve Wesley,
Samuel R. Bachinski, for the Applicant
Applicant
- and -
Russell Vincent Wesley,
Respondent not appearing and not filing answer.
Respondent
HEARD: September 10, 2015,
at Kenora, Ontario
Regional Senior Justice D. C. Shaw
Endorsement On Motion
[1] The applicant, Nichol Genevieve Wesley, brought an application on April 2, 2015. The application and accompanying financial statement were personally served on the respondent, Russell Vincent Wesley, on April 9, 2015, as appears from the affidavit of service of Darren Viklen, sworn April 9, 2015.
[2] Mr. Wesley did not defend the application.
[3] On June 11, 2015, Justice Fregeau granted Ms. Wesley leave to schedule an uncontested trial. Rule 10(5) of the Family Law Rules provides that if a respondent does not serve and file an answer as required by the rules, the respondent is not entitled to any further notice of steps in the case, the respondent is not entitled to participate in the case in any way, the court may deal with the case in the respondent’s absence and a date may be set for an uncontested trial.
[4] The clerk set September 10, 2015 as the date for an uncontested trial. The matter came before me on that date. However, the trial did not commence. On reading the affidavit material filed by Ms. Wesley, it was apparent that Mr. Wesley’s pension needed to be valued before equalization of the parties’ net family property could be determined at a trial. There were also valuation issues related to four real properties owned jointly by the parties and relating to another real property owned jointly by the parties with certain non-parties. I accepted the oral motion of counsel for Ms. Wesley to proceed on September 10, 2015 by way of interlocutory relief, rather than as a trial, with the trial to be rescheduled for a later date.
[5] Ms. Wesley’s motion was for the following relief:
(1) interim spousal support;
(2) valuation of Mr. Wesley’s pension; and
(3) listing the four real estate properties jointly owned by the parties for sale.
I. Interim Spousal Support
[6] The parties began to live together in 1989 and were married July 14, 1990. They separated July 31, 2014.
[7] Ms. Wesley is 48 years of age. Mr. Wesley is 49 years of age. The parties have two adult children.
[8] In 2012, 2013 and 2014, Ms. Wesley earned significant income, including taxable dividends. In 2012 she also had a taxable capital gain of $317,469.41, which was deposited into a joint investment account with the respondent at Investor’s Group. The account totals over $1,000,000. Investor’s Group has informed Ms. Wesley that it will not release any monies without the signatures of both parties.
[9] Ms. Wesley’s only income in 2015 has been employment insurance benefits in the amount of approximately $6,000 and some interest income in an amount unknown to her. Her employment insurance benefits have ended.
[10] In June 2015, Ms. Wesley applied for Canada Pension Plan disability benefits. Canada Pension Plan has not made a decision whether benefits will be granted. Ms. Wesley has filed a letter dated January 13, 2015, from her physician advising that she is unable to work for medical reasons and that she will not be able to return to work in the near future.
[11] Mr. Wesley is employed as a Customer Relations Manager with Hydro One. He has been employed with Hydro One since 1986. He has had the following income during the years 2011 to 2014:
2011 - $127,093
2012 - $109,587
2013 - $136,024
2014 - $129,467.
[12] Mr. Wesley has paid no support to Ms. Wesley since the date of separation.
[13] Ms. Wesley’s financial Statement shows monthly expenses of $5,164.
[14] Based on income of $129,467 for Mr. Wesley and nil income for Ms. Wesley the Spousal Support Advisory Guidelines suggest a range of spousal support, from a low of $3,884, a mid-range of $4,531 to a high of $5,179 per month. If Ms. Wesley’s $6,000 of employment insurance benefits received in 2015, but which have ended, are taken into account, the range is $3,704 - $4,321 - $4,939.
[15] In view of the length of the parties’ marriage, the ability of Mr. Wesley to pay support and the need of Ms. Wesley for support, I award Ms. Wesley interim, interim spousal support of $4,600 per month.
II. Valuation of Mr. Wesley’s Pension
[16] Mr. Wesley has a Hydro One pension. A 2010 Annual Pension Statement shows a plan membership date of August 1, 1986. His annual earned pension to December 31, 2010 is estimated at $47,814.60, payable at age 65. His high, consecutive years’ average annual base earnings as of 2010 were $109,683.71.
[17] The pension will have a significant family law value. A valuation is necessary to calculate the parties’ net family property. Mr. Wesley has an obligation to value his pension and provide that valuation to Ms. Wesley, but he has taken no steps to do so.
[18] An order will go that Ms. Wesley may obtain from the pension plan administrator of the Hydro One Pension Plan (Registration #1059104) a family law value of Mr. Wesley’s interest in the pension plan under the Family Law Act and the Pension Benefits Act, without the necessity of the signature or consent of the respondent/plan member, Russell Vincent Wesley. For the purpose of calculating the family law value of Mr. Wesley’s interest, the date of marriage is July 14, 1990 and the date of separation/valuation date is July 31, 2014.
III. Sale of Real Properties
[19] Mr. and Ms. Wesley jointly own the following properties:
(1) 13741 Highway 17 E., Dryden, Ontario;
(2) 157 Pronger Road, Dryden, Ontario;
(3) Vacant lot at Con 2 5-Pt. Lot 3, Part 1, 2, 3, 8 and 11 ON 23R4081, Wainwright Twp., Ontario;
(4) 145 Richan Road, Dryden, Ontario.
[20] An order shall go, under the Partition Act, that these four properties shall be listed for sale with a real estate agent of Ms. Wesley’s choosing, including Angela Berry of Austin and Austin Realty.
[21] Ms. Wesley shall have access to the properties and shall be entitled to change the locks on the properties to facilitate the listings.
[22] Any offers to purchase shall be subject to approval by the court on motion by Ms. Wesley.
[23] Mr. Wesley’s signature shall not be required for the listings.
Costs
[24] Costs of this motion are reserved to the trial judge.
Service on Mr. Wesley
[25] A copy of this endorsement and order shall be served by Ms. Wesley upon the respondent by registered and ordinary mail addressed to him at 255 Burwood Road, Thunder Bay, ON., P7B 6T9.
[26] I am not seised with this matter.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: September 17, 2015
COURT FILE NO.: FS-15-5468
DATE: 2015-09-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Nichol Genevieve Wesley,
Applicant
- and -
Russell Vincent Wesley,
Respondent
ENDORSEMENT ON MOTION
Shaw R.S.J.
Released: September 17, 2015
/mls