SUPERIOR COURT OF JUSTICE – ONTARIO

Racine v. Racine, CITATION: 2015 ONSC 6932

COURT FILE NO.: D23640/12

DATE: 2015-11-12

RE: Anna Racine, Applicant

AND: Ralph Racine, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: B. Macdonald for the Applicant; Respondent represented by his guardian by order of Maddalena J.

HEARD: November 9 and 10, 2015 at Welland

ENDORSEMENT

[1] The parties married in 1983 and separated in 2012. They divorced in 2015. They produced a son, Ryan, in 1993 and adopted a daughter, Julianna, who was born in year 2000. The Applicant wife is now 55 years old. The Respondent husband is 59.

[2] The Respondent acquired a serious brain injury before the marriage. As a result he suffers from cognitive deficits that affect his memory and his ability to make decisions. He is a quiet, gentle man. The Applicant seems to be a high energy person, judging by her accomplishments. She worked outside the home throughout the marriage, did significant volunteer work at the children’s school and took care of not only the children, but the Respondent, too. The son had special needs in infancy which he has now overcome. He is in his fifth year of university, due to graduate with B.A. B.Ed. degrees next April, following which he plans to enrol in an M.A. programme. The daughter has foetal alcohol syndrome. The Applicant has borne the burden of the special needs presented by that circumstance. In 2011 she also had to take on the burden of caring for her mother in her final illness. Unfortunately, it appears that around that time the Applicant got into the habit of yelling at the Respondent when she was frustrated with him. He escaped the constant verbal abuse by moving to his mother’s house in 2012. That very day he decided that after 30 years he had had enough of working. He lived off a year’s worth of unused sick pay and then was awarded a disability pension from his benefit provider, and another one from CPP.

[3] Four issues are before me. The Applicant asks for custody, child support and equalization of net family property. The Respondent asks for spousal support. The parties disagree on terms of access to the minor child.

Equalization of net family property

[4] The Respondent has called no evidence to contradict the Applicant’s evidence about net family property. The evidence supports her calculations. The Respondent has greater net family property than the Applicant, and half the difference is $47,763.03. On consent, I order that this debt be adjusted as agreed to reflect the Applicant keeping the jointly owned Honda and by grossing up the pension value to take into account income tax, and that the Respondent settle the debt by transferring $56,206.11 from his pension to a locked in investment in favour of the Applicant.

Child support

[5] On consent I quantify unpaid extraordinary expenses previously ordered at $7,641.70. The parties have discussed settling the debt through another pension transfer, but as the negotiations are not complete, I shall leave it at that.

[6] The Respondent’s tax documents show annual income of $55,683 in 2012, $47,379 in 2013 and either $52,867.81 or $36,500 in 2014. The Respondent says that as far as 2014 is concerned, the former number is the result of an error and the latter is the corrected figure. I know that his sources of income are his two disability pensions (one from work and one from CPP) and RRSP withdrawals. Given that, I think that $36,500 must be the correct amount. The Respondent further says that the $36,500 includes a $6,000 RRSP withdrawal that is a one off because there is no more to draw on. Time will tell. If his income is reduced to $30,500 in 2015, he can move to vary the order. For now, I take $36,500 to be the true number.

[7] For the purposes of ongoing child support I order the Respondent to pay child support monthly at a rate of $528 a month for two children until April 30, 2016, when the son finishes his undergraduate degrees. Thereafter child support is fixed at $320 a month for the daughter.

Future extraordinary expenses

[8] The son’s expenses have already been ordered. Ongoing expenses for the daughter include summer and winter camp programmes and tutors. Of the reasonable and affordable expenses, the Respondent’s share will inevitably amount to $200 a month. I order the Respondent to pay that amount on an ongoing basis. If the Applicant wants child support for her son for his graduate degree, she will have to come back to court once the likely finances are known.

Spousal support

[9] During the marriage the parties earned approximately the same income. They still do. She makes about $46,000 a year. Even if the Respondent were only earning $31,000 a year, as he claims, this would not be a case for spousal support. He has what he needs. He is not disadvantaged by the marriage or its breakdown. His income has been reduced because he decided to retire. At his age I do not consider that an unreasonable decision, but it is not the Applicant’s responsibility.

Custody and access

[10] The parties agree that the Applicant should have custody of the daughter. They do not agree on access. The Applicant is content that the Respondent have access to the daughter. She has a problem with the Respondent’s siblings and mother. So do the children. Both children are adamant that they do not want to see their father if his relatives are present. This seems to have started when, after the separation, the son, then 19, got an insensitive text message from his uncle Pete and an extremely obnoxious text message from his uncle Fred. On another access visit, the Respondent’s sister showed up unannounced, which upset both children significantly. It is obvious from the capacity assessment filed by the Respondent that he is not able to stand up to his siblings any more than he could stand up to his wife. The Applicant has tried to break the impasse by suggesting conditions that in effect require Ryan to supervise access. I am not sure to what extent Ryan will be available, and I do not think it fair to impose this burden on him in a court order. Furthermore, I see no benefit to be gained by crafting elaborate conditions for access by a 15-year-old. She is quite capable of deciding what access she will agree to and under what conditions and her views deserve respect at this point. Her special needs require consistency and sensitivity, neither of which her father can offer. But her cognitive deficits are slight. She knows her own mind and I think it in her best interest that I take her views into account. If her paternal relatives learn to do the same, she will see her father. If they do not, she will not. Nothing I do has a realistic chance of changing that.

Orders

[11] In the result, I make the following orders:

a. The Applicant shall have custody of Julianna Racine. The Respondent shall have access in the discretion of the Applicant. Julianna may obtain a passport and travel outside Canada without the Respondent’s consent.

b. The Respondent shall satisfy his duty to equalize net family property by transferring $56,206.11 from his pension to a locked in investment in favour of the Applicant.

c. The Respondent shall pay child support for Ryan Racine born January 27, 1993 and Julianna Racine born September 29, 2000 at a rate of $528 a month commencing November 1, 2015 based on an annual income of $36,500.

d. The Respondent shall pay child support for Julianna Racine at a rate of $320 a month commencing May 1, 2016 based on the same annual income;

e. The Respondent shall pay extraordinary expenses for Julianna Racine at a rate of $200 a month commencing November 1, 2015.

f. Arrears of extraordinary expenses for both children are fixed at $7,641.70 payable forthwith.

g. A support deduction order will issue.

h. The Respondent’s application for spousal support is dismissed.

i. The Applicant may take out an order consistent with this endorsement without the Respondent’s approval.

[12] The parties may make written submissions to costs that are no longer than three pages, double spaced, 12-point font. They may attach a bill of costs and any written offers to settle. The Applicant’s submissions are due by 4 pm on November 19, 2015. The Respondent’s are due by the same hour on November 26.

J.A. Ramsay J.

Date: 2015-11-12