CITATION: T.A.G. v. A.T.G., 2016 ONSC 1547
COURT FILE NO.: FS-15-0049
DATE: 2016-03-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
T.A.G.,
Applicant
- and -
A.T.G.,
Respondent
Counsel: Christin Marrello, for the Applicant No one appearing for the Respondent
HEARD: March 2, 2016, at Thunder Bay, Ontario
Before: Mr. Justice W.D. Newton
Reasons For Judgment
[1] On January 7, 2016, I ordered that this action proceed as an uncontested trial. The respondent husband was served on November 21, 2015, but has not filed any responding material or a financial statement as required by Rule 13 of the Family Law Rules.
OVERVIEW
[2] The parties were married on September 10, 2011. Together they had three children: A.W.G., born […], 2009, J.A.G., born […], 2010 and A.M.G., born […], 2012. The applicant also has two other daughters from a prior relationship who resided with them during the marriage.
[3] The parties separated on October 24, 2014. The circumstances surrounding the separation arise from the discovery that the respondent was sexually abusing one of his stepdaughters. The respondent pleaded guilty to charges of making child pornography and sexual interference and was sentenced to imprisonment for nine months consecutive and two years probation. The probation order, dated February 24, 2015, specified that the respondent is not to be in contact with the applicant or any of the children or to be within 50 m of any place where the respondent or the children live, work, attend school or frequent.
[4] The respondent was released from custody on October 25, 2015. On October 23, 2015, in anticipation of the respondent’s release, I made a temporary restraining order pursuant to s. 35 of the Children's Law Reform Act and s. 46 of the Family Law Act restraining the respondent, born […], 1978, from contacting the applicant or the three children and restraining the respondent from coming within 100 m of the applicant's residence, 725 B[…] Street, or within 100 m of the children's school, S[…] school – M[…] Street. Thereafter, other judges have extended that temporary restraining order.
[5] Earlier, in March 2015, the Ontario Court of Justice made a final order, on consent, that the applicant was to have sole custody of the children of the marriage with no access to the respondent.
[6] In this uncontested trial, the applicant seeks a divorce, an order that the restraining order be made final, child support and s. 7 expenses (daycare) retroactive to November 1, 2015, division of family property, and costs.
1. Divorce
[7] As the parties have been living separate and apart for in excess of one year and there is no reasonable prospect of reconciliation, a divorce order shall issue.
2. Restraining order
[8] Section 35 of the Children's Law Reform Act provides that the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for her own safety or for the safety of any child in her lawful custody. I am satisfied that the requirements for this order are made out in this case. The applicant gave statements to the police which led to the applicant's conviction. Given the nature of the charges and the pre-existing Ontario Court of Justice order specifying no access to the respondent, the temporary restraining order made October 23, 2015 is hereby made final.
3. Child Support and Section 7 Expenses
[9] I am satisfied the respondent was gainfully employed throughout the marriage as a driver with Thunder Bay transit and with charter and trucking companies. In 2012 the respondent had T4 income from those sources totaling a little over $56,000. In 2013 the respondent had T4 income from those sources totaling just over $60,000. Since being released from custody the respondent has not paid any child support and has not filed a financial statement as required.
[10] The applicant asks that income be imputed to the respondent and relies upon s. 19 (f) of the Federal Child Support Guidelines which provides that the court may impute such amount of income as it considers appropriate in the circumstances where a spouse has failed to provide income information when under a legal obligation to do so. Since the respondent's earnings were increasing prior to his incarceration the applicant asks that income be imputed to the respondent in the amount of $64,000 annually and seeks the Child Support Guidelines table amount of $1,245 per month for child support for the three children. While I expressed some concern during submissions whether his convictions would interfere with the respondent's ability to have employment involving public transit, there is no evidence before me to indicate that he would have difficulty in securing other employment such as truck driving. Therefore, in the circumstances, it is appropriate to impute income to the respondent in the amount of $64,000. Therefore, the child support payable by the respondent to the applicant for the three children of the marriage shall be $1,245 per month. This is retroactive to November 1, 2015.
[11] With respect to s. 7 expenses, the only claimed expense is for daycare in the amount of $600 monthly. I order that the respondent pay 54% of s. 7 expenses based on his imputed income of $64,000 annually and the applicant's income of $54,000 annually. The obligation to pay s. 7 expenses is retroactive to November 1, 2015.
4. Division of family property
[12] The respondent is a recently discharged bankrupt having received his certificate of discharge in 2010. The only significant asset of the family is the jointly owned matrimonial home at 725 B[…] Street which has a value of approximately $169,000. The mortgage as at valuation date was approximately $167,000. As a result of the respondent's bankruptcy, the majority of the family debt is held in the applicant's name. The applicant presented two scenarios regarding the family property. Assuming ownership of the matrimonial home by the applicant results in an equalization payment to the applicant of $1,900. Assuming joint ownership results in an equalization payment of $44,150 to the applicant. I accept these calculations.
[13] Section 9 (d) of the Family Law Act provides that the court may order that property be transferred to a spouse to satisfy an obligation. To give effect to the equalization I order that matrimonial home at 725 B[…] Street be transferred from the parties as a joint tenants to the applicant. The remaining equalization payment owed to the applicant is $1,900.
[14] The material filed also discloses that the respondent is the registered owner of a 2006 Honda shadow motorcycle which has an approximate value of $3,800. I further order that the 2006 Honda shadow motorcycle be transferred from the respondent to the applicant and that the applicant is to apply the proceeds of the sale of the motorcycle to the equalization payment of $1,900. Further, pursuant to s. 34 of the Family Law Act, I order that any proceeds from the sale of this motorcycle remaining from the payment required for equalization shall be payable to the applicant and applied as a credit for child support and or s. 7 expenses in arrears.
5. Costs
[15] I further order that the applicant shall have her costs of this application fixed in the amount of $1,600 plus HST.
SUMMARY:
[16] According, I make the following order:
THIS COURT ORDERS THAT: T.A.G. and A.T.G., who were married at Thunder Bay, Ontario, on September 10, 2011, be divorced and that the divorce take effect 31 days after the date of this order.
The Respondent. A.T.G., shall pay to the Applicant, T.A.G. the amount of $1,245.00 per month for the support of the children, namely, A.W.G., born […], 2009, J.A.G., born […], 2010, and A.M.G., born […], 2012 based on the Respondent’s imputed annual income in the amount of $64,000.00 and pursuant to the Federal Child Support Guidelines, commencing November 1, 2015 and on the first day of every month thereafter.
The parties shall contribute to the special and/or extraordinary expenses of the children, as defined under Section 7 of the Federal Child Support Guidelines, proportionate to their respective annual incomes. Based upon the Respondent’s imputed annual income of $64,000.00 and the Applicant’s approximate annual income of $54,000.00, the Respondent shall contribute 54% and the Applicant shall contribute 46% to the Section 7 expenses of the children. The Respondent’s contribution shall be collected and enforced through the Family Responsibility Office.
Accordingly, the Respondent shall pay the sum of $1,350.00 to the Applicant representing his proportionate share of retroactive daycare expenses of the children for the period of November 1, 2015 up to and including February 29, 2016.
For as long as child support is to be paid, each party, if applicable, shall provide updated income disclosure to the other party annually, in accordance with section 24.1 of the Child Support Guidelines.
A support deduction Order shall issue.
This Order bears post-judgment interest at the rate of 2 % per annum on any payment in respect of which there is a default effective the date of the default.
Unless this support Order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the Order shall be paid to the person to whom they are owed.
The matrimonial home located at 725 B[…] Street, Thunder Bay, Ontario shall be transferred into the Applicant’s name alone.
The 2006 Honda Motorcycle shall be transferred into the Applicant’s name solely to reflect an equalization payment from the Respondent to the Applicant in the amount of $1,900.00.
The Respondent, A.T.G., born […], 1978, shall on a final basis be restrained from contacting or communicating directly or indirectly with the Applicant, T.A.G., born […], 1977, A.W.G., born […], 2009, J.A.G., born […], 2010, and A.M.G., born […], 2012 or come within 100 metres of 725 B[…] Street or S[…] School located at […] Street W., Thunder Bay, Ontario.
The Respondent shall pay costs to the Applicant in the amount of $1,500.00 and disbursements in the amount of $100.00 plus HST.
[17] If anything further is required to give effect to this order, counsel may speak to the trial coordinator to arrange a further appearance.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: March 3, 2016
CITATION: T.A.G. v. A.T.G., 2016 ONSC 1547
COURT FILE NO.: FS-15-0049
DATE: 2016-03-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
T.A.G.,
Applicant
- and -
A.T.G.,
Respondent
REASONS FOR JUDGMENT
Newton J.
Released: March 3, 2016
/mls