CITATION: Bernard v. Edwin, 2016 ONSC 1240

COURT FILE NO.: FC-12-2549

DATE: 2016/03/01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Alex Bernard Applicant

– and –

Richard Edwin Respondent

Self-Represented

Ms. Tanya Pompilio, for the Office of the Children’s Lawyer

HEARD: January 21, 22 and 25, 2016 (at Ottawa)

REASONS FOR JUDGMENT

Shelston J.

[1] The issues in this trial are sole custody versus joint custody; access; retroactive and prospective child support including section 7 expenses; extended health coverage; life insurance as security for child support; equalization of the net family properties and costs.

Facts

[2] The applicant was born February 15, 1971, in St. Lucia where she graduated from high school. She came to Ottawa in the early 1990’s and lived with her sister in Orleans, Ontario. She found employment as a caregiver for three children.

[3] The respondent was born on April 3, 1948, in St. Lucia. He moved to Ottawa in 1980-1981. He spent time in Toronto and the Virgin Islands but returned to Ottawa in the early 1990’s where he found employment as a cleaner.

[4] The respondent has a child from a previous relationship, namely Richard Edwin Junior, born September 2, 1982, who is currently 33 years of age and lives in Toronto.

[5] The applicant also had a child from a previous relationship namely Braenen-Jamal Bernard-Edwin (“Braenen”), born September 10, 1993. He is 22 years of age, is working and lives with the applicant.

[6] The parties met in the 1993-1994 period in Ottawa. At the time, the applicant was 22 years of age and the respondent was 46 years of age.

[7] The parties fell in love and moved in together. Soon thereafter, the respondent legally adopted the applicant’s child Braenen.

[8] The parties married each other in Ottawa on February 2, 1995.

[9] A second child was born, namely Kafele Bernard-Edwin (“Kafele”), born December 19, 1997.

[10] After the birth of this child, the applicant ceased working outside of the home and started a home daycare for approximately two to three years.

[11] From approximately 1996 to 2000, the respondent worked five days per week from 11 p.m. to 7 a.m. in a group home and then in a retirement home.

[12] In the year 2000, the applicant started working outside the home as an administrative assistant from 8 a.m. to 4 p.m. while the respondent started worked on a series of contracts at Public Works Canada.

[13] During this period of time, there were two children, namely Braenen and Kafele, at home. The daycare arrangements were that nieces of the parties came into the home and as well there was an in home caregiver.

[14] After three years as an administrative assistant, the applicant found employment as a room attendant at the Minto Suites Hotel, where she remained for approximately four years. She then obtained employment with Statistics Canada as a casual employee, where she won a competition and became a full-time employee. After three years at Statistics Canada, she moved to the Treasury Board where she currently is employed as a financial administrative officer earning $54,575 per year.

[15] She attended Carleton University and obtained an Honours degree in political science and sociology, graduating in 2006. She was able to attend Carleton University because she started originally as a part-time student and then studied full-time for three years, when she worked at Statistics Canada (which was an evening position).

[16] A third child was born namely, Azizi Bernard-Edwin (“Azizi”) on February 19, 2002 and the fourth child, namely, Obasi Bernard-Edwin (“Obasi”) was born on July 13, 2004.

[17] For approximately three years in the early 2000’s, the respondent worked on a series of short term contracts at Public Works Canada. In 2006, the respondent obtained employment with the Canadian Human Rights Commission on a contract basis. He became a permanent employee in 2007 and his annual income in 2015 was $82,171. He has a full health benefit plan and all four boys are covered under his plan. His responsibilities are to monitor employee equity programs across Canada.

Childcare Arrangements

[18] Prior to the applicant working at the Treasury Board, the normal routine was that the family would get up between 6:30-7:00 a.m., have breakfast, and the children would go to school by bus. Both parents would then go to work.

[19] Things changed when the applicant started working for Treasury Board. Her hours of work were from 7 a.m. to 3 p.m. As a result, the applicant would leave for work early in the morning and the respondent was responsible to ensure that the children got up, were fed and went off to school. The applicant would return home by 3:30 p.m. to care for the children. The respondent came home between 5:00 p.m. and 5:30 p.m.

[20] The boys were all involved in a series of activities such as cadets, music lessons, swimming and soccer. The parties shared in the responsibility of taking the children to their activities.

[21] The respondent took the lead in organizing a soccer team in which the children participated; helped the children with their school assignments; supported Kafele’s run for president of the student council and helped Braenan when he was on the debating team.

[22] The applicant took the children to see her dentist and her doctor and that she was primarily responsible to taking the children to these appointments.

[23] The respondent was on various school councils for schools that the children attended and at one time he was on three different school councils. He was also instrumental in dealing with a bullying incident with respect to Kafele where he intervened at the school to have his son protected from a bully.

[24] Both parties testified that each was actively involved in raising the children, that each was very good at parenting and each had a very close relationship with the children.

[25] The evidence of the applicant is that the marriage has been on the decline for a while, the parties are slowly separating and that the respondent was becoming antagonistic and controlling.

Separation

[26] In March 2012, the applicant sent the respondent an email indicating that she wanted to physically separate in June 2012 after the children finished school. After that email was sent, the relationship between the parties was extremely strained and the atmosphere in the home was toxic.

[27] During the trial, the respondent denied that the atmosphere was toxic, but he did not deny that in March 2012, the applicant moved out of the matrimonial bedroom and stopped cooking for him or doing his laundry.

[28] On July 4, 2012, the applicant moved to a rental unit. She did not tell the respondent before she moved and her evidence is that she removed the children’s furniture, the dining-room table and chairs, the couch in the basement and kitchen supplies.

[29] She indicated she left all of the master bedroom furniture, all the contents of the garage which included a washer-dryer and freezer as well as the kitchen table and chairs; a small blue couch and chair in the family room and the computer.

[30] From July to October 2012, the evidence is contradictory as to whether or not the respondent saw the children. The applicant states that she drove the children every Saturday to the respondent’s home to spend the day. The respondent states he never knew where the children were and that he had no access until proceedings were commenced.

Legal Proceedings

[31] On October 22, 2012, the applicant commenced her proceedings. The respondent filed an Answer and Claim signed on November 29, 2012.

[32] The parties proceeded to a case conference on December 7, 2012, before Master MacLeod. At that time, the court ordered:

With the consent of the respondent, the respondent will begin paying child support in the amount of $1,224 per month commencing on December 15, 2012 and continuing on the 15th of each month thereafter. This is without prejudice to the determination of the correct amount of support and to the claim for retroactivity;
There will be a temporary order with the consent of the applicant that the respondent have access to the children every second weekend and from December 21, 2012 to December 26, 2012. The exact times and the arrangements for pick-up and drop of are to be agreed between the parties and reduced to writing. The agreed upon access arrangements for the children and the respondent are as follows:

(a) Commencing Saturday December 15, 2012, and on every second Saturday thereafter, the children shall be in the care of the respondent from 9:00 am until the following Monday at school;

(b) For the Christmas holidays, the children will be in the care of the respondent from 5:30 pm on Friday, December 21, 2012 until 5:30 pm on Wednesday December 26, 2012 unless as otherwise agreed upon by the parties;

There may be such further access as the parties may agree upon, having regards to the wishes and best interests of the children.
The parties shall provide the disclosure required by the rules and the forms on an ongoing and timely basis and shall answer all other reasonable and relevant requests.
Without limiting the generality of the foregoing, the parties shall make specific disclosure as agreed between counsel within the next thirty (30) days.
The costs of the case conference are reserved to the judge determining the application.

[33] At a settlement conference before Justice P. Kane on December 18, 2013, the parties consented to the following temporary order:

Divorce severed from other relief. The applicant may proceed with the divorce.
Three (3) youngest children to be with the respondent December 20 to 27, pick up and drop off at 9 Parkmount Crescent, Nepean, Ontario at 10:00 am. Respondent to observe the children’s swimming schedule and appointments.
Respondent at his costs now (but reserved as to ultimate liability) to arrange for DNA Paternity Testing of the two (2) youngest children between December 20 and December 27, 2013 at DNA Testing Facility with production to applicant of the test results, issue as to applicant’s cost contribution to be addressed 1) after she has a copy of the result and 2) her liability not to exceed fifty percent.
By February 1, 2014, applicant to give respondent her pension booklet (severance/vacation/benefits’ description). Respondent to then obtain parties’ verbal pension valuations from Guy Martel. Email confirmation of both pension valuations to be sent to the applicant by March 15, 2014. Costs to the applicant not to exceed $118 plus HST.
Office of the Children’s Lawyer requested to appoint lawyer and social worker. Intake forms to be completed by each party by December 27, 2013.
Starting January 1, 2014, and until the respondent gets a new residence of two bedrooms, access to the respondent a) week one Friday at 4 pm until Sunday at 8 pm; and b) week two, Tuesday at 4 pm to 8 pm.
By February 15, 2014,

(a) the respondent to give the applicant a) evidence of St. Lucia savings account of approximately $20,000 CDN at date of separation and evidence what expended from it / when / amount / to whom;

(b) the applicant to give the respondent a) evidence of her OSAP loan in the approximate amount of $50,000 when accrued / amounts, etc. and history repayment thereafter with the same; b) evidence of her payment of the respondent’s $17,000 student loan.

…
Costs reserved to the motion / trial judge.
Applicant to give respondent list (categories) of section 7 expenses she is claiming past and future amounts including evidence of same and her 2012 income tax return and notice of assessment by February 16, 2014.
Placed of the September 2014 trial list.
Parties to give each other

(a) Copy of their 2013 T4 employment income by February 16, 2014;

(b) Income tax return with enclosures 2013 by May 1st, 2014.

Applicant to give the respondent evidence from Algonquin that oldest child is

(a) full-time student Algonquin;

(b) program;

(d) evidence of his graduation there from by December 30, 2014

[34] Having received permission from Justice Kane on December 18, 2013, to sever the divorce from the corollary relief, the applicant applied to obtain the divorce. The parties were divorced by divorce order of Justice McLean dated February 15, 2014.

[35] On September 25, 2015, the Honourable Justice Mackinnon, at a joint trial management/settlement conference, made the following order:

The parties shall serve and file in the Trial Record, up to date financial statements and net family property statements from each of them.
Each party has the order of Kane, J, dated December 18, 2013 and shall provide to the other side any outstanding items, or additional copies as each may request, by November 30.
For the oldest children, the applicant, Alex Bernard, should try to obtain from them, proof of post-secondary school registration, course completion, post-secondary expenses and accounting of registered educational savings toward post-secondary costs, and income tax returns for each year of “adulthood”.
The respondent, Richard Edwin, shall also provide the additional documents asked for by the applicant:

(a) Pension booklet;

(b) tax return from 2004 and forward;

(d) bank account at time of separation-St. Lucia

(e) value of house and land - St. Lucia - proof of ownership of property;

(f) RRSP at time of separation;

(g) copies of income tax return for past 10 years from March 2012;

(h) T4 employment income by November 30th.

The applicant shall produce returns of any RRSP owned by her at the date of separation, and / or savings bonds.

Parties Position at Trial

[36] At trial, the applicant sought the following:

(a) An order that the parties will have joint custody on the education, health and activity decisions regarding Azizi, born February 19, 2002 and Obasi, born July 13, 2004;

(b) An order that the applicant will have the sole authority to make any decision regarding Azizi and Obasi’s religion;

(c) An order that the children Azizi and Obasi’s primary residence will be with the applicant and the respondent will have reasonable access on reasonable notice to the children;

(d) An order that the respondent pay child support in accordance Guidelines effective July 2012 for the four children of the marriage namely: Braenen, born September 10, 1993; Kafele, born December 19, 1997; Azizi, born February 19, 2002, and Obasi, born July 13, 2004;

(e) An order that the respondent contributes his share of section 7 extraordinary expenses under the Guidelines for the children in proportion to his income;

(f) An order that the respondent maintain both children on his health and dental coverage provided by his employer for so long as the support is payable and as long as he is covered by his employer;

(g) An order that the respondent obtain and maintain a life insurance policy in the amount of $250,000 as security for child support and shall designate the applicant as the irrevocable beneficiary of said life insurance policy, in trust for the children of the marriage;

(h) An equalization of the net family property; and

(i) An order for costs of these proceedings on a full indemnity basis.

[37] At trial, the respondent sought the following:

(a) An order that the parties will have joint custody on the education, health and activity decisions regarding Azizi, born February 19, 2002 and Obasi, born July 13, 2004;

(b) An order that the applicant will have the sole authority to make any decision regarding Azizi and Obasi’s religion;

(d) An order that Obasi is not a child of the marriage within the meaning of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as am. and that the respondent has no legal obligation to pay child support for Obasi;

(e) An order for prospective child support of the children of the marriage Kafele, born December 19, 1997; and Azizi, born February 19, 2002, in accordance with the Guidelines including any special and extraordinary expenses pursuant to section 7 and the parenting regime in place;

(f) An order that the support payments be binding on the estate of the respondent and form a first charge on the estate of the respondent and/or for both parties to obtain and maintain security for support in regards to their respective support obligations;

(g) An order requiring the applicant to maintain, acquire and designate the respondent and the children of the marriage as irrevocable beneficiary of her life insurance policy or policies for an amount sufficient to secure obligations to pay support pursuant to subsection 34 (1)(i) of the Family Law Act, R.S.O. 1990, c. F.3 [“FLA”];

(h) An order that both the applicant and the respondent exchange annually their yearly income tax returns with notices of assessment and reassessment and all financial disclosure reports on June 1st of each year commencing June 1, 2016;

(i) An order requiring the applicant and the respondent to maintain in force medical and dental coverage for the benefit of the children of the marriage through their respective employer or a private plan;

(j) An order that the parties’ respective net family properties be equalized; and

(k) An order for costs.

Analysis

Custody and Access

[38] In September 2012, the children were all attending school and residing with the applicant.

[39] At the case conference on December 7, 2012, the parties consented to an order that the respondent could have access to the children every second weekend. By January 2013, there was a verbal agreement that the respondent was to have access to the children on Saturdays at noon until Sunday evening. Unfortunately, this was very short-lived and none of the children had attended overnight at the respondent’s home since 2013.

[40] The situation with access was as follows:

(a) The respondent admitted that in 2014, 2015 and 2016, the three youngest boys have not slept at his house except for one weekend in 2015 when the applicant was out of town.

(b) The respondent’s access is restricted to the two youngest children whom he sees four times per month when he attends their school to give them lunch and converses with them for approximately 15 minutes.

(c) Most Saturdays, the respondent picks up the two youngest children at noon, spends the day with them and returns them to the applicant between 6 p.m. and 7 p.m. after feeding the children supper.

(d) Since November 2015, he also picks up the boys at 3 p.m. until 7:30 p.m. on Tuesdays and Thursdays, feeds them and returns them home.

[41] Since separation, the respondent has not taken any vacation with the children.

[42] One of the factors that the respondent indicates is an important consideration as to why the children do not want to spend time at his apartment is that he does not have a TV or Internet connection but believes the boys should read books instead.

[43] To the parties’ credit, the children advise that the parents have insulated them from their conflict.

[44] The wishes of the children are one of the factors that I must take into consideration when determining their best interests. I acknowledge that the children are 11 and 13 years old and have the right to have their views seriously considered.

[45] At trial, the applicant’s position was that the parties would have joint custody on all major decisions affecting the children, including education, health and activities but that the issue of the children’s religion shall be restricted to the applicant. Further, the applicant seeks primary residence for the children and that access by the respondent be open and subject to the consent of the children.

[46] The respondent’s position has evolved during the trial. In his pleading, he was seeking sole custody of the children but at the beginning of the trial he indicated that he would agree to joint custody on the condition that he would have the boys in blocks of time ranging from one to three months. He also agreed that the applicant could have sole decision-making power on the children’s religion as the applicant and the children have been practising Muslims for an extended period of time.

[47] At the end of the trial, in his submissions, the respondent modified his position on the residential arrangements for the children and indicated that he is now willing to move closer to the boys’ school, change his work hours and join the school council. Based on his moving, he would have the children half of the time on some alternating schedule.

Evidence of the Office of the Children’s Lawyer

[48] Counsel for the Office of the Children’s Lawyer has met with Obasi and Azizi. The parties consented that counsel for the children meet with them and advise the court as to their wishes.

[49] The children have indicated that they wish to remain in the primary care of the applicant. They enjoy time with the respondent and would like more time with the respondent but they do not want to be pinned down for schedule and did not want to have to make the decision.

[50] Based on the consent of the parties, I order that both parties will be granted joint custody of the two children of the marriage and that both parties will have an equal say in all decisions affecting the children’s education, health and activities. Also, based on the consent of the parties, I order that the applicant shall have the sole decision-making power regarding the children’s religion.

[51] Regarding the residential arrangements of the children, I have considered the following factors in my decision:

(a) Since separation the children have resided with the applicant and the respondent has had access;

(b) Despite the consent order for access at the case conference on December 7, 2012, since January 2013, the children requested that the access be modified to every second Saturday to Sunday;

(c) Since December 7, 2012, the respondent could have brought a motion to seek additional time with the children but he did not;

(d) The children have not stayed overnight at the respondent’s home since 2013;

(e) The evidence is that the children are doing well in the care of the applicant;

(f) The children’s wishes to remain in the primary care of the applicant;

(g) I have considered the respondent’s plan that he will move closer to the children but despite being separated for over four years he has failed to do so by the time of this trial; and

(h) I am not prepared to test a new plan proposed by the respondent when the children are progressing in school and they are opposed to such a radical change.

[52] Based on all of the factors, I find that the best interests of the children would be met by residing in the primary care of the applicant and that the children have reasonable access with the respondent upon reasonable notice.

Child Support

[53] Upon a review of the pleadings in this matter, both parties have sought child support. Since July 4, 2012, all four children have remained in the primary care and control of the applicant.

Table Child Support from July to October 2012

[54] At trial, the applicant sought retroactive child support from the date of separation being July 4, 2012. Her position is that she should receive child support from the date the parties separated. She did not receive any child support until mid-December 2012.

[55] The applicant admits that she made no verbal or written request for child support from July 4, 2012 until she signed the court application in October 2012. The respondent confirms that he did not receive any request for child support until he read the application filed by the applicant.

[56] Further, in her application dated October 22, 2012, the applicant does not seek child support retroactive to July 4, 2012.

[57] Considering that there was no request made for child support until October 2012 coupled with the fact that the applicant’s pleading, prepared with counsel, does not request retroactive support to July 4, 2012, I am not prepared to make the order effective July 2012.

Table Child Support as of November 2012

[58] However, the respondent was served with the application towards the latter part of October 2012. He voluntarily agreed on December 7, 2012 at the case conference to pay $1,224 per month as child support for the two eldest children but not for the two youngest as he was contesting their paternity. It is important to remember that the respondent could have consented to an order in December 2012 to pay support for all four children. He only agreed to pay support for two of the children.

[59] The paternity tests results were released in March 2014 and confirmed the respondent’s paternity for Azizi. By March 2014, all the children were in school on a full-time basis. The respondent never increased the child support and continued to pay $1,224 per month as table child support. It is again important to remember that the respondent could have consented again to an order to pay support for all children in March 2014. Again, he only agreed to pay support for two of the children.

[60] The decisions not to pay support for all four children taken by the respondent on December 7, 2012 and March 2014 were his own. He must live with the consequences of those decisions.

“Loco parentis” and Obasi

[61] With respect to Obasi, the respondent’s position is that he should not pay child support for that child until the natural father paid support. During the trial, the applicant disclosed, according to the respondent for the first time, that the natural father is Martin Joseph whom she met at Carleton University. She testified that he was not a Canadian citizen when she met him at university and that she had no idea where he was living today.

[62] On the one hand, the respondent’s position is not to pay any child support while on the other hand he is seeking an order for joint custody and equal timesharing of the same child. The respondent admits that he has acted as a parent for the child since birth.

[63] The question for the court is what is the respondent’s legal obligation to Obasi and what role, if any, should the natural parent have on the issue of child support.

[64] The applicable legislation is section 5 of the Federal Child Support Guidelines:

Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that person, such amount as the court considers appropriate, having regard to these Guidelines and any other parent’s duty to support the child.

[65] The applicant seeks full table child support from the respondent on the basis that he has acted as a parent for the child since his birth.

[66] The respondent testified that he only received confirmation in March 2014 that Obasi was not his biological son.

[67] In Chartier v. Chartier, 1999 CanLII 707 (SCC), [1999] 1 S.C.R. 242 the Supreme Court of Canada confirmed that a parent standing in loco parentis has an obligation to pay child support. At para. 42 of the judgment the court states:

Huband J.A., in Carignan, also expressed the concern that a child might collect support from both the biological parent and the step-parent. I do not accept that this is a valid concern. The contribution to be paid by the biological parent should be assessed independently of the obligations of the step-parent. The obligation to support a child arises as soon as that child is determined to be a "child of the marriage". The obligations of parents for a child are all joint and several. The issue of contribution is one between all of the parents who have obligations towards the child, whether they are biological parents or step-parents; it should not affect the child. If a parent seeks contribution from another parent, he or she must, in the meantime, pay support for the child regardless of the obligations of the other parent.

[68] In A.(L.M) v. H.(P), 2014 W.D.F.L. 2261, the court, relying on the British Columbia Court of Appeal decision in H.(U.V) v. H.(M.W) 2008 BCCA 177 held at para. 176:

While the facts in UVH are distinguishable, this decision articulates and repeats several guiding principles concerning s. 5 that must be considered:

First the "legal duties" of the biological parent to pay child support must "be considered when support is sought from a step parent".

The biological parent's duty of support "must be quantified if possible". For this purpose, "the 'other parent(s)' should be before the court, or other evidence satisfactory to the court relating to that parent's status should be adduced".

The obligation of the step parent to pay child support must consider the biological parent's obligation.

The objectives of the Guidelines must guide the court in the exercise of its discretion under s.5.

Given the 'children-first' perspective of the Guidelines ..., primacy must be given to the children's standard of living.

[69] The British Columbia Court of Appeal in UVH, recognized that in some situation, the step-parent may be required to pay the full table amount. These situations include where one of the natural or adoptive parents is not present or is unable to pay support. Another situation is where the support against the natural parent cannot be enforced as was held by the British Columbia Court of Appeal in Shen v. Tong, 2013 BCCA 519.

[70] Does the respondent stand in loco parentis to the child? I find that the respondent stands in loco parentis of the child for the reasons set out herein. The respondent was unaware that the child was not his biological child until March 2014. Since the child’s birth, he has treated the child as his own. Even after the DNA results, he has treated the child as his own child and has in fact sought custody of the child in this proceeding. Further, he has agreed to maintain the child as the beneficiary of his extended health benefits through his employment as well as his life insurance policy.

[71] Having decided that the respondent stands in loco parentis, the next step is to determine the amount of support to be paid. The respondent argues that he should not pay child support until the natural father pays child support.

[72] In G.(T.D.) v. G.(L.M.), 2009 NBBR 207, 2009 NBQB 207, Justice Morrison held at paras. 20-22 as follows:

The authorities dealing with the contest between the obligations of biological parents and stepparents to support their children were extensively canvassed in H.(U.V.) v. H.(M.W.), 2008 BCCA 177, [2008] B.C.J. No. 717, 2008 CarswellBC 798. In that case, Justice Newbury on behalf of the British Columbia Court of Appeal concluded that determining the child support obligation of a presumed parent or stepparent under section 5 of the Guidelines is a two-step process. First, the court must determine the support obligation of the "other parent". Once the duty of the "other parent" is determined, the Court may proceed to determine the stepparent's obligation "having regard to" that duty and "these Guidelines". In determining the stepparent's obligation, the Court's discretion is not unfettered. It must be exercised in light of the Guidelines including the objectives stated in section 1 of the Guidelines.

In this case, the "other parent" would be A.G.'s biological father. He was not before the court and indeed his identity has not been made known. The support obligation of the biological father has not been determined and no enforceable support order has been made against him. Therefore, there is no other support obligation to be considered by the court as a set-off or contribution in determining T.D.G.'s support obligation.

Unless and until the support obligation of A.G.'s biological father is determined (either by proceedings for contribution by T.D.G. or an application by L.M.G. or otherwise), T.D.G. shall continue to be liable to pay the Guidelines amount as set out in the Consent Order dated October 29, 2003. I refer to the comments of Justice Bastarache in Chartier at paragraph 42:

The contribution to be paid by the biological parent should be assessed independently of the obligations of the step-parent. The obligation to support a child arises as soon as that child is determined to be a "child of the marriage". The obligations of parents for a child are all joint and several. The issue of contribution is one between all of the parents who have obligations towards the child, whether they are biological parents or step-parents; it should not affect the child. If a parent seeks contribution from another parent, he or she must, in the meantime, pay support for the child regardless of the obligations of the other parent.

[73] In this case, there is no evidence provided concerning the income or financial contribution of the biological father. On the contrary, the biological father was not a party to this proceeding and his actual whereabouts are unknown.

[74] One of the factors that I must consider is that primacy must be given to the child’s standard of living. I have considered the history of the relationship between the child and the respondent, the position taken by the respondent in this proceeding regarding custody and conclude that the respondent should pay the full table amount of child support for Obasi.

Commencement of Table Child Support

[75] As previously discussed in these reasons, the respondent made decisions on December 7, 2012 and in March 2014 to only pay support for two of the four children. At the case conference on December 7, 2012, the order for support was without prejudice to the applicant seeking a different quantum and to the issue of retroactivity.

[76] I find that all four children were entitled to child support as of November 1st, 2012 to April 30, 2015. Since May 1, 2015, only the three youngest children are entitled to support because Braenen ceased being a “child of the marriage” within the meaning of the Divorce Act as of April 30, 2015 when he stopped attending school. Braenen is working and plans to attend to complete his degree in the fall 2016. His entitlement to child support should be reviewed at that time.

Quantum of Child Support

[77] The respondent was ordered to produce his financial disclosure on two occasions. The first was the order of Justice Kane on December 18, 2013 and the second was the order of Justice Mackinnon on September 25, 2015.

[78] At trial, the respondent only provided his financial statement on January 22, 2016 with his T4 for 2013 and a paystub dated January 13, 2016. During the trial, I ordered the respondent to provide his T4 for 2010, 2011, 2012 and 2014 as well as his notice of assessment for 2010, 2011 and 2012, including a paystub for 2015.

[79] On January 25, 2016, the respondent provided a notice of assessment only for the year 2010 and not 2011 and 2012. He provided a T4 for 2012, 2013 and 2014 as well as a December 30, 2015 paystub.

[80] Based on the evidence that I have received, I find that the respondent’s income is as follows:

(a) Year 2012, the sum of $79,694;

(b) Year 2013, the sum of $84,234;

(d) Year 2015, the sum of $82,171; and

(e) Year 2016, the sum of $82,171.

[81] Based on the custodial arrangements of the four children and the applicant’s annual income, I have calculated the child support from November 2012 to February 2016 as follows:

(a) For the period of November 2012 and December 2012 for four children based on an income of $79,694, the table child support would be $1,817 less $1,224 paid leaving a shortfall of $593 x 2 months = $1,186;

(b) January 2013 to December 2013 for four children based on an income of $84,234, the table child support would be $1,902 less $1,224 paid leaving a shortfall of $678 x 12 months = $8,136;

(c) January 2014 to December 2014 for four children based on an income of $81,893, the table child support would be $1,859 less $1,224 paid leaving a shortfall of $635 x 12 months = $7,620;

(d) January 2015 to April 2015 for four children based on an income of $82,171, the table child support would be $1,864 less $1,224 paid leaving a shortfall of $640 x 4 months = $2,560;

(e) May 2015 to December 2015, the table child support would be $1,565 less $1,224 paid leaving a shortfall of $341 x 8 months = $2,728;

(f) January and February 2016, the table child support would be $1,565 less $1,224 paid leaving a shortfall of $341 x 2 months = $682.

[82] Consequently, the respondent owes the applicant the sum of $22,912 in table child support from November 15, 2012 to and including February 15, 2016.

[83] I order the respondent to pay to the applicant the sum of $500 per month commencing on March 15, 2016 and on the fifteenth day of every month thereafter until said arrears are paid in full.

[84] I order that based on the respondent’s income of $82,171, commencing March 15, 2016 and on the fifteenth day of every month thereafter, the respondent to pay to the applicant the sum of $1,565 per month as table child support for the three children, namely Kafele, Azizi and Obasi.

[85] At trial, the applicant abandoned any claim for retroactive contribution to section 7 expenses for the four boys. The only ongoing section 7 expenses will be Kafele’s post-secondary education expenses at Carleton University, where he is currently in his second semester of his first year of a three-year program.

[86] Neither Azizi nor Obasi are currently involved in any extracurricular activities. They have no special expenses that need contribution.

[87] I order that the parties shall share proportionally to their annual income the section 7 expenses for the children of the marriage. Before any liability is incurred, consent must be obtained and such consent must not to be unreasonably withheld.

Life Insurance

[88] The applicant has requested life insurance as security for the support of the children of the marriage. The respondent is employed with the Canadian Human Rights Commission and has life insurance available through his employment though he has no idea how much is in place.

[89] I order the respondent to designate the applicant as the irrevocable beneficiary in trust for the children of the life insurance policy available through the terms of his employment with the Canadian Rights Commission.

[90] Further, I order the respondent to provide written confirmation from his insurer of said designation by March 31, 2016 and annually upon written request from the applicant. In the event that the respondent should die without said life insurance policy in place, this charge shall be the first charge on his estate.

Extended Health Coverage

[91] The respondent has an extended health plan available through his employment for the children of the marriage. He has agreed to designate the children of the marriage as the beneficiaries of said health plan. I so order and he shall maintain said coverage for so long as the children are children of the marriage so long as the benefit is available to the respondent through his employment.

Equalization of the Net Family Property

[92] The applicant seeks an order finding that the respondent had $80,000 (Eastern Caribbean dollars) in his account with the First National Bank of St. Lucia as of the date of separation. From that amount, she seeks an order that I transfer $40,000 (Eastern Caribbean dollars) into an account set up by the applicant. The respondent’s position is that there is no equalization owing.

[93] Both parties were self-represented for this trial. On September 25, 2015, they were ordered to file updated financial statements and net family property statements for the trial. Only the applicant filed a net family property statement and an updated financial statement. The respondent filed a financial statement on January 22, 2016 during the trial. I have received the evidence from the parties on the various assets and liabilities set out below.

Furniture

[94] Neither party has any valuation of furniture that existed at the time of separation. The applicant’s evidence is that she had most of the children’s furniture when she left in early July 2012 and it was worth approximately $3,000 while the respondent retained approximately $2,500 worth of furniture. The respondent indicates that he was left with a washer and dryer that he threw out as well as a freezer and very little furniture.

[95] Based on the evidence that most of the furniture removed by the applicant was for the children and without any valuations, I find that the value of the furniture to be placed on the net family property statement is zero for both parties.

Bank Accounts

[96] The applicant indicated she had $500 in a Canada Trust chequing account at the time of the separation, while the respondent indicated he had between $200 and $300 in a Canada Trust account at the time of separation. No statements have been produced to the court. I accept their evidence.

[97] The applicant had a joint savings account/savings bond with the eldest child Braenen which she indicated was worth $2,000. I will attribute a value of $1,000 on the date of separation to the applicant.

Motor Vehicle

[98] At the time of the separation, the respondent alleged a value of $36,000 for the Chevy Traverse. There is no valuation provided to the court. I find the value to be $36,000.

Pensions

[99] Both parties admitted that they had pensions through their employment. Despite the fact that they were ordered during the proceedings to provide valuations, neither party provided a valuation. Consequently, I attribute no value to both parties’ pensions.

RRSP

[100] The applicant indicated her RRSP’S were worth approximately $500 at the time of the separation. No statement was provided but I accept her testimony. I find that the applicant had an RRSP worth $500.

St. Lucia Bank Account

[101] The applicant testified that in 2005 the parties agreed that they wanted to build a retirement home in St. Lucia. To be able to finance the purchase of the land and build a home, she indicated that the parties agreed that the respondent would send money monthly to an account in St. Lucia. In exchange of the respondent contributing between $400 and $500 a month to the St. Lucia bank account, the parties agreed that the respondent would pay for the rent, hydro and gas expense while the applicant would pay for the food, car payments, phone bill and cable expenses.

[102] The respondent denies that there was ever any such agreement.

[103] From 2005 to early 2009, the applicant testified the parties followed the verbal agreement. In 2009, the parties returned to St. Lucia for a vacation with the four children.

[104] During the vacation, the applicant wanted to go to the St. Lucia Bank with the respondent to find out how much money had been accumulated in the account. Her evidence is that the respondent was evasive and refused to go to the bank to obtain a bank statement with the applicant.

[105] Despite many requests, the respondent never provided the applicant with a copy of the bank statement for the First National Bank in St. Lucia

[106] In 2009, the applicant became suspicious when the respondent told her that his mother’s home in St. Lucia was destroyed by fire. The respondent indicated that he was going to rebuild her a home. The applicant suspected that the respondent was going to build a house for himself on his mother’s land with the money that they had been saving.

[107] In her proceedings, the mother had made a claim against the land in St. Lucia but at trial she withdrew that claim. She, however, never varied in her position that the parties had a verbal agreement to accumulate savings which, according to the applicant, were deposited in the respondent’s account in St. Lucia.

[108] The applicant filed a savings activity statement dated May 24, 2009, from the First National Bank of St. Lucia, account number 821476 belonging to the respondent. In that statement, the opening balance in 2005 was 2149.70 in eastern Caribbean dollars. By March 31, 2009, the balance had increased to 54,324.35 in eastern Caribbean dollars.

[109] The respondent denies that there was ever any verbal agreement as alleged by the applicant. However, he admitted that he never took the applicant to the bank in 2009 when she asked to go and that he never provided her with a copy of the bank statements despite her numerous requests.

[110] He also indicated that in 2009 he borrowed $50,000 (Eastern Caribbean dollars) from the National Bank of St. Lucia repayable in the monthly amount of $1,164 for a period of 60 months and that there was a lien as security by the bank against a savings account number 821476 for the $50,000 (Eastern Caribbean dollars) loan. The respondent testified that he borrowed the $50,000 (Eastern Caribbean dollars) to build a home for his mother, whose previous home had burned and was destroyed. Further, he testified that he did not pay the monthly payments on the loan and the Bank in St. Lucia deducted his defaulted payments from his account in St. Lucia.

[111] Despite being in St. Lucia in 2015, the respondent never attended at the bank to obtain a statement regarding the loan payments from the date he borrowed the funds or an updated statement from the account.

[112] The respondent admitted that he was aware of the court order of Justice Kane to provide a statement as of the date of separation and he knew that the issue of the bank statement was an issue in the divorce proceedings with the applicant. Despite this knowledge, he went to St. Lucia for one month in 2015, failed to attend at the bank and never provided a statement as of the date of separation.

[113] In the circumstances, considering the importance of this issue between the parties, I find that the respondent intentionally did not attend at the bank to obtain a bank statement and I draw an adverse inference against him in determining its value.

[114] I prefer the evidence of the applicant with respect to the existence of the verbal agreement to save money to be able to afford the construction of a retirement home in St. Lucia. The applicant was very clear as to her recollection of the agreement and the actual arrangements as to who would pay what expense, while the funds were being diverted to St. Lucia. I contrast her evidence to the evidence of the respondent who was evasive and vague in discussing the construction of the home in St. Lucia, the verbal agreement with the applicant and his reply to questions as to why he did not take the applicant to the bank when the parties were there in 2009. Finally, he was evasive on the issue as to why he did not go to the bank in June 2015, while in St. Lucia, to obtain the bank statement as of the date of separation as well as to provide evidence to support his allegation regarding the $50,000 (Eastern Caribbean dollars) loan.

[115] Consequently, I find that as of the date of separation, the respondent owned a bank account with the First National Bank of St. Lucia savings account number 821476 in the amount of $54,324.35 (Eastern Caribbean dollars). As of July 4, 2012, the conversion rate of Eastern Caribbean dollars to the Canadian dollar was 2.66526 resulting in a value of $20,260.60 in Canadian dollars.

[116] I find that as of the date of separation, the respondent owned the sum of $20,260.60 (CDN) in the First National Bank of St Lucia.

Applicant Student Loans and Credit Card Debts

[117] The applicant indicates that she had the following debts as of the date of separation but she provides no statement despite the order of the Master MacLeod at the case conference to produce such statements being a student loan $50,000 and a credit card debt of $2,000.

[118] I have no documentary evidence to allow me to make the finding that the applicant owed these debts. I also have no evidence of monthly payments being made. I do not find that these debts existed on the date of separation.

Citi Financial $16,787.50 Debt

[119] In support of the debt, the respondent has provided the original letters from Natale Law offices dated December 18, 2008 and December 14, 2009 both seeking payment towards an outstanding debt with Citi Financial Canada. On the December 18, 2008 letter, the balance outstanding is $19,787.50 while the balance outstanding on the second letter of December 14, 2009 is that of $16,787.50. On the letter of December 14, 2009 there are handwritten notes indicating the dates for five postdated cheques with the cheque number in the amount of $200 commencing January 7, 2010, and concluding on May 3, 2010. The respondent contends that this is a debt owing as of the date of separation. He indicates that no proceedings have been commenced but that he continues to receive calls regarding said debt.

[120] Considering the debt was incurred in 2008; that the last payment was in 2010 and that the debt was outstanding as of July 4, 2012, I decline to find that this is a valid debt on the date of separation. Further, at the date of the trial in 2016, no proceeding had been commenced.

Student Loan

[121] The respondent’s financial statement dated January 22, 2016, indicates he had a student loan with a balance outstanding of $18,000 as of the date of marriage, $12,000 as of the date of separation and $6,000 as of January 22, 2016.

[122] The respondent has not provided any documentary evidence to support the existence of the debt on the three specific dates and I decline to attribute any value on any of the three dates.

Home Loan

[123] The respondent alleged that he still owed $50,000 for the home loan to rebuild a property for his mother in St. Lucia as of the date of separation. However, the respondent has been requested on numerous occasions to provide the documentary evidence and despite being in St. Lucia in 2015 he failed to attend at the bank to obtain any statement to confirm any debt. I decline to find that this is a valid debt at the date of separation.

Francis Nichols

[124] The respondent alleges that he borrowed $4,000 as a cash advance from his friend Francis Nichols when the parties travelled to St. Lucia for six weeks in 2009. He indicated he used it to pay for expenses. He originally stated that he had made no payment on the debt since August 2013 but then indicated the last payment was made in June 2015. In support of that debt, he has provided a copy of a Royal Bank credit card statement for Francis Nichols for the period of December 11, 2012 to January 8, 2013 with handwritten notes indicating dates and amount of payments.

[125] Mr. Nicols was not called as a witness. The only document that I have is a copy of Mr. Nicols’ Royal Bank credit card statement. Further, the debt has allegedly existed since 2009 and by the date of separation on July 4, 2012, apparently still existed. The applicant denies that any money was borrowed for the trip to St. Lucia in 2009 as both parties were gainfully employed and there was no discussion of any party having to borrow money for the trip. Based on the totality of the evidence, I decline to find that this is a valid debt at the date of separation.

Car loan of $36,000

[126] In his testimony, the respondent indicated that he had a car loan of $36,000. The applicant did not contest that amount and I find that his debt at the date of separation was $36,000.

Calculation of the Net Family Property

[127] Based on my findings, the net family property calculation is as follows:

	Applicant	Respondent
ASSETS
Furniture	Nil	Nil
Motor Vehicle		$36,000
RRSP	$500	$200
Bank Accounts	$500	$20,260
Pensions	Nil	Nil
Total	$1,000	$56,260
DEBTS
Car loan	Nil	$36,000
TOTAL	$1,000	$20,260

Difference $ 19,260 Equalization Owing $ 9,630

[128] Based on my findings, the respondent owes the applicant an equalization payment of $9,630.

Disposition

[129] I make the following orders:

(a) The applicant and the respondent shall be granted joint custody of the two children of the marriage namely, Azizi, born February 19, 2002, and Obasi, born July 13, 2004.

(b) The parties shall consent on all decisions regarding the children’s health, education and activities.

(d) Commencing March 15, 2016 and on the 15th day of each month thereafter, the respondent shall pay table child support to the applicant for the three youngest children of the marriage in the amount of $1,565 per month based on an annual income of $82,171.

(e) As of February 15, 2016, the arrears of table child support are set in the amount of $22,912;

(f) Commencing March 15, 2016 on the 15th day of each month thereafter the respondent will pay $500 per month towards the arrears until paid in full.

(g) Both the applicant and the respondent shall exchange annually their yearly income tax returns with notices of assessment and reassessment and all financial disclosure reports on June 1st of each year commencing June 1, 2016;

(h) Braenen’s entitlement to child support shall be reviewed on or after August 2016.

(i) The respondent shall maintain the children as the beneficiaries of his extended health plan through his employment for so long as the children are entitled to support and the benefit is available to the respondent through his employment.

(j) The respondent shall designate the applicant as the irrevocable beneficiary in trust for the children of the marriage of the life insurance policy available through the respondent’s employment for so long as the children are entitled to support and the benefit is available to the respondent through his employment. The respondent is to provide written confirmation from his insurer of said designation by March 31, 2016, and annually upon written request from the applicant. In the event that the respondent should die without said life insurance in place, this charge shall be the first charge on his estate.

(k) The parties shall share on a pro rata basis the section 7 expenses under the Guidelines for the children of the marriage, including but not limited to the post-secondary educational expenses of the children. Both parties must consent before such expenses are incurred and such consent shall not to be unreasonably withheld.

(l) The respondent shall pay to the applicant an equalization payment in the amount of $9,630.

(m) Interest shall accrue on the equalization payment in accordance with the Court of Justice Act.

Costs

[130] The applicant shall provide her costs submissions not to exceed three pages plus any Bill of Costs and offers to settle within 14 days of the date of these reasons. The respondent shall have 14 days to provide his costs submissions not to exceed three pages plus any Bill of Costs and offers to settle. The applicant may file any reply submissions within five days thereof.

Shelston J.

Released: March 1, 2016

Bernard v. Edwin, 2016 ONSC 1240

Case Summary