CITATION: Hobbs v. Topping, 2016 ONSC 2132
COURT FILE NO.: FD1047/14
DATE: April 5, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Christina Hobbs (sometimes known as Christina Rice)
Lisa M. Walters for the applicant
Applicant
- and -
Jeffrey Topping
No one appearing
Respondent
HEARD: November 27, 2015
MITROW J.
INTRODUCTION
[1] This was an uncontested trial. The relief sought by the applicant included claims in relation to custody, access, child support, equalization payment and an order in relation to the balance of the proceeds from the sale of the matrimonial home.
[2] The parties were married to each other in October 2011. They began living together in March 2008 and the parties separated on August 30, 2012.
[3] There is one child of the marriage, Finley Maddox Topping, born September 29, 2009 (referred to as “Finley” or as “the child”).
[4] Although the respondent was properly served with the application, the respondent failed to file an answer. The respondent did serve an answer and financial statement in December 2015 but those documents were never filed. A copy of the respondent’s financial statement was included in the evidence filed by the applicant during the trial.
[5] The parties were divorced pursuant to a divorce order dated January 6, 2015. The divorce order did not include any orders for corollary relief.
[6] The respondent failed to attend the settlement conference and failed to file a settlement conference brief. The applicant gave evidence that the respondent was aware of the settlement conference because he was present in court when the settlement conference date was set at the case conference; further, he sent a text message to the applicant on the day of the settlement conference indicating that he was not going to attend.
[7] The matter then proceeded on November 27, 2015 as an uncontested trial. The evidence consisted of an affidavit filed by the applicant and the applicant’s oral testimony and exhibits filed at the trial.
[8] As discussed below, the applicant was remarried in 2015. Her surname is now Hobbs. The applicant’s name in the title of proceedings has never been formally amended. Accordingly, the order below amends the title of the proceeding to show the applicant’s name as “Christina Hobbs (sometimes known as Christina Rice).”
CUSTODY AND ACCESS
[9] In relation to the issues of custody and access, this case is representative of the challenges that a court is faced with in deciding what is in a child’s best interests when one of the parents, in this case the respondent father, participates in the court process only sporadically, and then the case proceeds to trial on an uncontested basis.
[10] In the present case, the clinical investigator, Ms. Freund-Bell, recommended joint custody and further recommended that the current equal-parenting regime should remain in place. The clinical investigator’s report is appended to an affidavit sworn April 15, 2015.
[11] The applicant disagrees with the recommendations. Although the applicant did not file a dispute to the Children’s Lawyer’s report, the applicant explains that on April 14, 2015 the parties were both present at a case conference. On the following day, there was a disclosure meeting, at which both of the parties were present. Following the disclosure meeting, it is the applicant’s evidence that there was a “very lengthy” settlement meeting whereby the applicant’s lawyer provided the respondent with minutes of settlement and an offer. The applicant indicates that she did not file a formal objection to the Children’s Lawyer’s report because she believed that the matter would settle after the settlement meeting.
[12] It is unfortunate that, having participated in the Children’s Lawyer’s investigation and having attended the case conference, that the respondent thereafter failed to participate any further in this litigation.
[13] The respondent’s failure to participate, of course, is not the fault of, nor the responsibility of, the applicant. Accordingly, this case falls to be decided on an evidentiary record that unfortunately contains no evidence from, or involvement of, the respondent subsequent to the case conference.
[14] The applicant seeks sole custody and does not wish to have the equal-parenting schedule continued.
[15] I accept the evidence of the applicant as to the historical background regarding the child’s care.
[16] The child was just under three years of age when the parties separated at the end of August 2012. The parties cohabited for a total of a little less than four-and-a-half years.
[17] As a result of a previous relationship, the applicant has an older child, Riley, born in September 2004, who lives with the applicant. It was the applicant’s evidence that she had a good relationship with Riley’s father; the applicant explained that Riley sees his father three out of four weekends and at other times during the week, as arranged by Riley’s parents.
[18] At the time that the applicant and respondent separated, they had been living together in the jointly-owned matrimonial home located in Strathroy. After the parties separated, the respondent began seeing the child two to three weekends per month, depending on his work schedule. The respondent is employed as a construction foreman. At times, if the respondent was finished work early enough, he would come by and “see the kids” (meaning Finley and Riley), as explained by the applicant.
[19] While they were cohabiting, the applicant described the respondent’s regular work schedule as leaving at 6:00 a.m. in the morning in order to start work at 7:00 a.m., and “usually” getting home between 6:00 p.m. to 8:00 p.m. The work schedule would vary depending on the winter months and, as explained later in these reasons, the respondent also had periods of layoff during the winter months.
[20] For the period of approximately eight weeks, from February 2013 to April 2013, it was the applicant’s testimony that the regular schedule was interrupted somewhat because the respondent was working out of town; however, it was the applicant’s evidence that during this approximate eight-week period that the respondent did see the child for half of the weekends. After the respondent returned from working out of town, the schedule reverted to the respondent seeing the child two out of three weekends per month and at times during the week.
[21] Also noteworthy is that on separation, while the applicant remained in the matrimonial home in Strathroy, the respondent resided in Strathroy at the residence of the applicant’s mother (the maternal grandmother ). At that time, the applicant was working shift work and on occasion the applicant would drop both children off at her mother’s residence at about 6:00 p.m. The applicant’s mother would look after the children and the respondent would see both children when he returned home from work for an hour or two, prior to the children’s bedtime.
[22] At the end of June 2013, the entire arrangement changed because the applicant, after losing her employment in May 2013, attended culinary school in Australia. The applicant testified that she was gone from June 30, 2013 and returned on or about December 3, 2013. The applicant did not explain why she had to travel that far to attend culinary school.
[23] The applicant testified that while she was in Australia, both children remained in Strathroy and that the applicant’s mother took over the primary caregiving role for both children. The respondent then moved into the matrimonial home that the applicant had vacated when she left for Australia. Prior to leaving for Australia, it was the applicant’s testimony that she had organized Finley’s appointment for dental care and to see a medical specialist. During this time, the respondent’s access was described by the applicant as consisting of no set schedule; he would see the child if he came home early from work. Presumably this was in relation to week-day access. Unfortunately, there is a dearth of evidence as to how much time the respondent actually spent with the child while the applicant was in Australia.
[24] While she was away, the applicant spoke to Finley “every day,” usually using “facetime.”
[25] However, it is clear is that during the applicant’s absence that the respondent did not assume the primary care of Finley and, instead, that role was fulfilled by the maternal grandmother.
[26] On the applicant’s return from Australia, the parties implemented a shared-parenting arrangement described by the applicant as a “two-three-two” schedule. In week one, on Monday and Tuesday, the child was with the applicant, then Wednesday, Thursday and Friday with the respondent, and Saturday and Sunday with the applicant; for week two, the same “two-three-two” schedule applied, except that when the child would have been in the applicant’s care, the child instead was in the respondent’s care and vice versa.
[27] It was the applicant’s evidence that this new schedule was to be implemented only on a trial basis for approximately a month. According to the applicant, the child was not adjusting well to the schedule, but the respondent refused to change it.
[28] A significant concern was in relation to Finley’s anxiety levels – in her testimony, the applicant described noting a “huge” change in his anxiety. Before that, the applicant described Finley as a child who was carefree and who never worried.
[29] The applicant testified that Finley “always worried” about how much time he had left in relation to the parenting schedule; the applicant also described Finley as “sleep deprived,” and that the applicant struggled to get him back on his schedule during the three day stretch that he was with her. The applicant described Finley as being age six, that he was a “worrywart,” and that he “worries about everything.”
[30] The applicant testified that the parenting schedule was too much “back and forth” and that there was no consistency; previously Finley had been on a regular schedule with a set bed time.
[31] When the applicant presented these various concerns to the respondent, it was her evidence, which I accept, that the respondent insisted on maintaining a schedule where the child would spend equal time with each parent.
[32] The applicant did say that the respondent presented only one other option, a week about. However, the applicant felt that this option was not workable for Finley. She raised a concern in her testimony that Finley and Riley, who are “brothers,” had their relationship adversely affected by the shared-parenting schedule. It was the applicant’s evidence that, prior to the equal-parenting time, that both Finley and Riley were on a schedule where they spent a consistent amount of time with each other. For example, Finley would be aware as to when he would be seeing Riley.
[33] In relation to Finley being “sleep-deprived,” the applicant described her observations of Finley when he returned as being “tired” and “moody.” The applicant also described Finley arguing with his brother more than usual, which the applicant attributed to Finley being exhausted.
[34] Throughout the shared-parenting schedule, the applicant continued to be responsible for all of Finley’s doctors’ appointments. The applicant described that during six years the respondent had attended only one medical appointment, that being a recent appointment with Finley’s specialist in relation to his asthma. The applicant stated that she keeps the respondent advised as to Finley’s medical appointments, either via electronic means or by talking to the respondent.
[35] The applicant testified further that Finley’s behaviours, soon after the implementation of the shared-parenting, led to an increase in his tantrums, including waking up in the middle of the night, screaming and having nightmares.
[36] As a result of her concerns regarding Finley’s behaviour, in particular his anxiety level, the applicant arranged for Finley to see Dr. Michelle Gilpin, a child psychologist, who was referred to the applicant by her family physician.
[37] It was the applicant’s recollection that Dr. Gilpin first saw Finley in May 2014.
[38] The applicant testified that initially Finley was seen monthly by Dr. Gilpin for “about five months.” However, the Children’s Lawyer’s report contains a summary of information provided by Dr. Gilpin to the clinical investigator on March 23, 2015; as at that time Dr. Gilpin reported having met with Finley only four times: April 14 and 29, 2014; and January 8 and 21, 2015.
[39] In relation to 2015, the applicant testified that Finley had seen Dr. Gilpin in May, July and October; however, the applicant could not recall whether Finley had seen Dr. Gilpin on other occasions at the beginning of that year.
[40] It is not possible to resolve the apparent conflict between the applicant’s evidence and the Children’s Lawyer’s report as to how frequently Dr. Gilpin saw Finley in 2014. On this issue, the Children’s Lawyer’s report is hearsay. There is mention in the Children’s Lawyer’s report that Dr. Gilpin did write a letter, on request from the applicant, and that a copy of this letter was given to the Children’s Lawyer. Unfortunately, this letter was not shared with the court, nor was any written report from Dr. Gilpin filed with the court.
[41] However, there are some conclusions that can be made regarding Dr. Gilpin’s involvement. It is clear from the applicant’s evidence that the referral was in part for Finley’s anxiety-related issues. On this point, the Children’s Lawyer’s report states that the goal of the sessions with Dr. Gilpin was to find ways for Finley to express his feelings; to some extent, this corroborates the applicant’s evidence as to the reason for the referral.
[42] The applicant testified that the frequency of visits was determined by Dr. Gilpin, and this is corroborated in part by the Children’s Lawyer’s report stating that Dr. Gilpin did not consider an ongoing counselling relationship as being necessary.
[43] The applicant testified that the respondent initially had an appointment with Dr. Gilpin but that he failed to attend the appointment. This is corroborated in the Children’s Lawyer’s report, with an indication that the appointment for Dr. Gilpin to meet with both Finley and the respondent had been scheduled for May 8, 2014. I find that the respondent’s failure to meet with Dr. Gilpin was ill-advised and not child-focused. On the respondent’s part, this was an indication of a dismissive attitude towards the applicant’s attempts to engage professional counselling for Finley to assist him in coping with the presenting behaviours observed by the applicant.
[44] There is also evidence from the applicant, which I accept, in relation to the difficulties that the applicant had, at times, in communicating with the respondent; the respondent had a habit of being non-responsive to the applicant’s messages. The applicant testified that recently there were more telephone calls, rather than electronic communication; the applicant described the respondent as being “up and down,” on one occasion being friendly and on another occasion hanging up on the applicant.
[45] After returning from Australia, the applicant eventually moved to London, where she resides now with her mother and her two children, Finley and Riley.
[46] Further, the applicant is self-employed and works from her home during the day while the children are in school. Accordingly, the applicant is available at all times to take Finley to school and to care for him when he comes home from school.
[47] The applicant remarried in the latter part of February 2015. Her husband lives in Australia. She testified that the immigration process has been started for her husband to “move over here.” The plan is for her husband to share time between “here” and Australia as he has two children, who were ages eight and thirteen at the time of trial. The applicant denies having any plan to move to Australia.
[48] During the summer of 2015, the applicant travelled with her children to Australia. The applicant seeks an order allowing her to travel with Finley to Australia, annually, and to dispense with the respondent’s consent to travel and his signature for any passport application or passport renewal. While the respondent did eventually sign the necessary documents to permit Finley to travel, there was evidence from the applicant that this process took longer than necessary given the respondent’s initial lack of cooperation.
[49] The respondent resides in Strathroy with his parents at his parents’ home.
[50] Finley attends a French immersion school in London. It was the applicant’s evidence that the bus ride from school to the respondent’s parents’ residence in Strathroy takes about 90 minutes one way.
[51] Therefore, on the days when Finley finishes school and goes to the respondent’s residence as part of the current schedule, he would take the bus to Strathroy. The applicant explained that the respondent’s father is on disability and uses a wheelchair; the respondent’s mother works evenings from 4:00 p.m. to 10:00 p.m.
[52] The applicant also raised as an issue that the respondent had refused to sign a necessary authorization regarding busing for Finley, with the result that for a period of time the respondent’s parents had to do the driving because Finley could not use the school bus to go to Strathroy.
[53] I have considered the Children’s Lawyer’s report, including the recommendation for joint custody and continuation of equal-parenting time.
[54] I find, based on the evidence, that the applicant throughout, including prior to separation, has been the child’s primary caregiver. She has directed and arranged all aspects of Finley’s care, including extracurricular activities, and medical and dental appointments, including seeing Dr. Gilpin. The applicant had continued to do this while the equal-parenting time has been in effect.
[55] I find that the respondent is not available for the child at all times during the weekdays when the child is scheduled to be with him, given his work schedule, and that this requires the respondent to rely on his parents. The respondent at times has been uncommunicative with, and non-responsive to, the applicant in relation to matters affecting Finley.
[56] Considering all of the evidence, I find that it is in Finley’s best interests that the applicant have sole custody.
[57] Clearly, however, the respondent has been an important part of the child’s life. It is in Finley’s best interests that the respondent should be consulted on all major decisions affecting Finley, that he have the right to full disclosure regarding any medical and education matters, and that Finley’s principal place of residence shall remain in Middlesex County except on written consent or court order. The foregoing is reflected in the final order below.
[58] A final order for corollary relief can be made pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1], as the parties are divorced. In addition to the principle requiring the court only to consider what is in the child’s best interests (s. 16(8)), the Divorce Act contains what has been described as the “maximum contact principle” in s. 16(10):
16(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[59] While the Children’s Lawyer’s report is helpful, I am not persuaded that it is in the child’s best interests for the child to be in the respondent’s care for 50 percent of the time.
[60] It is undeniable that the respondent’s work schedule makes him unavailable to care for the child for periods of time while the child is scheduled to be in his care. Further, it is clear that the applicant, who is self-employed, is available for Finley at all times. I take into account the evidence that usually from mid-December until about the second week of March, that the respondent historically was not working and in receipt of employment insurance benefits. Accordingly, the child’s time with the respondent should be increased during times when the respondent is not working or has reduced work hours during winter months.
[61] I find that the parenting schedule should minimize the frequency of Finley moving “back and forth,” in particular during the school year. A schedule which promotes time that Finley can be together with his half-brother, Riley, is also a factor to consider. A regular routine, with regular bedtimes, is in Finley’s best interests. Further, a schedule which minimizes potential bus travel between Strathroy and London is in Finley’s best interests.
[62] In relation to the evidence regarding Finley’s anxiety issues, and related behaviour, I accept the applicant’s evidence as to the symptoms displayed by Finley. Although the Children’s Lawyer’s report speculated that the symptoms could be related to the applicant’s being away in Australia, there is no evidence to corroborate that assumption. Finley did not display anxiety-related behaviour prior to the current schedule. While it appears that the severity of Finley’s symptoms has abated, given that Dr. Gilpin has not implemented a regular schedule of visits, I am satisfied on the evidence that the current schedule has affected Finley negatively.
[63] I find that a regular schedule that incorporates Finley spending three out of four weekends with the respondent, plus some midweek access, is in Finley’s best interests. During the winter months, the access should be increased somewhat, by including a midweek overnight to reflect the fact that the respondent is either not working or has a reduced work schedule.
[64] The access schedule, as detailed in the order below, also incorporates portions of the order requested by the applicant in her affidavit evidence. It is noteworthy that, in her oral testimony, the applicant agreed to the child being with the respondent for three out of four weekends. The order below gives effect to the maximum contact principle in a manner that meets the child’s best interests.
CHILD SUPPORT
A. Table Amounts of Child Support
[65] The table amount of child support payable by the respondent shall start September 1, 2012, on the basis that the parties separated at the end of August 2012. I find that the respondent failed to make timely and necessary financial disclosure; after the applicant started this court case, she had to obtain orders compelling the respondent to make financial disclosure, and this included an order requiring the respondent’s employer to disclose the respondent’s income. Even though the parties separated in August 2012, it was not until December 2014 that the respondent finally served a financial statement. Even then the respondent filed no income tax returns for 2012 or 2013; he provided only his T4 slips (which the respondent’s employer had previously provided). Taking into account this blameworthy conduct, it appropriate to order child support retroactive to September 1, 2012.
[66] The following table shows the incomes of both parties from 2012 onwards, including the table amounts of child support and the difference in the child support amounts:
| Year | Respondent Father Income | Respondent Father Table Amount | Applicant Mother Income | Applicant Mother Table Amount | Net Table Set-Off |
|---|---|---|---|---|---|
| 2012 | $55,300 | $501 | N/A | N/A | N/A |
| 2013 | $71,700 | $654 | $29,100* | $227 | $427 |
| 2014 | $71,300 | $650 | $32,000* | $254 | $396 |
| 2015 | $71,300 | $650 | $45,200 | $408 | $242 |
| 2016 | $71,300 | $650 | $45,200 | $408 | $242 |
*To calculate the applicant’s table amounts, these incomes were reduced by deducting the $1,200 taxable UCCB, resulting in adjusted incomes of $27,900 and $30,800 for 2013 and 2014, respectively: see Guidelines Schedule III, s. 3(b).
[67] The following is noted with respect to the above table: a) all incomes are rounded to the nearest $100; b) for the period starting December 1, 2013, when the shared-parenting started, until April 1, 2016, child support is calculated on the basis of the table amount set-off pursuant to s. 9 (a) of the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”); the applicant did not lead any evidence so as to allow the court to apply s. 9(b) and (c) of the Guidelines; c) for 2014, the respondent’s employment income was taken from his financial statement sworn December 10, 2014; this income was also used for 2015 and 2016 as the respondent failed to provide any further financial disclosure; d) for 2015, the applicant disclosed a ten month year-to-date net business income of $37,663, and that amount was pro-rated to an annualized amount of $45,200 which also was used for the applicant’s 2016 income; e) although the respondent does not owe child support for 2011, it is noteworthy that his line 150 income from his 2011 notice of reassessment was $76,076; hence, other than 2012, the respondent had a regular pattern of earning over $70,000 annually.
[68] The respondent was ordered to pay interim child support pursuant to an order dated December 5, 2014 in the amount of $426 per month. The calculation of child support payable by the respondent as set out in the order below includes the period covered by the interim order because all the income amounts are now known; any amounts paid pursuant to the interim order shall be credited towards the final order.
[69] Effective April 1, 2016, the new parenting schedule takes effect and, accordingly, the provisions of s. 9 are no longer applicable; hence the child support is based on the respondent’s table amount pursuant to s. 3(1) (a) of the Guidelines from that date forward.
[70] It is noted that during the trial the applicant took the position that she was not claiming child support for the period July 1, 2013 to November 30, 2013 while she was in Australia. The order below reflects that request.
B. Section 7 Expenses
[71] The applicant seeks an order requiring the respondent to pay for some s. 7 expenses incurred by the applicant during 2015. The details of these expenses are set out in the applicant’s affidavit sworn November 20, 2015 at Ex. J. The expenses total $867.42. A number of the expenses relate to hockey and lacrosse. I disallow all of those expenses on the basis that they are not “extraordinary” within the meaning of s. 7(1) (f) of the Guidelines. The expenses that are proper s. 7 expenses relate to costs incurred for the child to see the psychologist and the dentist. Those expenses total $219.74. Based on the incomes of the parties for 2015, $71,300 for the respondent and $45,200 for the applicant, the respondent’s proportionate share of s. 7 expenses is 61% (rounded). Therefore, the respondent shall pay $134 (rounded) towards s. 7 expenses for 2015.
[72] As to ongoing s. 7 expenses, there was no evidence as to the expected amount of such expenses. I decline to make an order that simply requires the respondent to pay his “proportionate share of s. 7 expenses,” because that constitutes an open-ended order with no control as to how high the expenses can go. The order below does include a requirement of the respondent to share in s. 7 expenses but with the annual s. 7 expenses being limited to $1,500, unless agreed to by the parties or ordered by the court.
C. Other Matters in Relation to Child Support
[73] The order below also deals with the respondent’s obligation to maintain the child as a beneficiary of various group insurance medical plans and also to provide some life insurance benefits.
[74] The applicant requested an order requiring the respondent to purchase life insurance and to name the applicant as the beneficiary for the purpose of securing child support. I am not prepared to make an order that requires the respondent to purchase life insurance. There was no evidence led as to the respondent’s insurability or whether he had any health issues that may cause life insurance to be expensive or unattainable for him. The respondent’s financial statement discloses no life insurance. I am prepared to order the respondent to name the applicant as beneficiary of life insurance in respect of any policy he may have available to him from time to time through his employer.
MATRIMONIAL HOME SALE PROCEEDS
[75] When the sale of the jointly-owned matrimonial home closed in July 2015, the outstanding writ of execution against the respondent in the amount of $2,562 filed by the Family Responsibility Office was paid from the sale proceeds. This represented arrears for unpaid child support owing at that time by the respondent. However, the effect was that the applicant paid 50% of the arrears. Accordingly, the respondent has to pay the sum of $1,281 (50% x $2,562) to the applicant as an adjustment.
[76] Currently the sum of $8,828.88 remains in trust and is held by the solicitor who handled the sale of the matrimonial home. The respondent’s 50% share of the sale proceeds is $4,414.44.
[77] However, in addition to the sum of $1,281 owing by the respondent as an adjustment in relation to the writ of execution, I find that the respondent owes the applicant the further amounts as shown below and as explained by the applicant in her affidavit and exhibits appended thereto. I have not allowed the applicant’s claim for $1,311.73, representing 50% of alleged household expenses from January 1, 2015 to August 2015. These expenses are listed in Ex. N attached to the applicant’s affidavit; however, it is quite impossible to correlate each expense to the few receipts that are attached, some of them being illegible due to poor quality.
[78] Any outstanding amount due to the respondent from the matrimonial home sale proceeds has been allocated to the outstanding interim costs orders:
| Description | Amount |
|---|---|
| a) arrears adjustment in relation to writ of seizure and sale: | $1,281.00 |
| b) balance of respondent’s share of matrimonial home expenses for January and February 2014, secured by a promissory note signed by the respondent: | $662.58 |
| c) respondent’s 50% share of the matrimonial home repairs from date of separation to December 31, 2014: | $451.11 |
| Total owing by respondent: | $2,394.69 |
| Respondent’s share of matrimonial home sale proceeds: | $4,414.44 |
| Balance of the respondent’s share of the matrimonial home sale proceeds remaining after deducting (a) to (c) above: | $2,019.75 |
| Credit this amount to money owing by the respondent pursuant to interim costs orders dated December 5, 2014 ($1,500), with the balance to be credited in partial satisfaction of the order dated August 31, 2015 requiring the respondent to pay $1,200 in costs: | ($2,019.75) |
| Balance of sale proceeds owing to the respondent : | $0.00 |
[79] The order below requires the entire matrimonial home sale proceeds to be paid out to the applicant.
PROPERTY ISSUES
[80] The parties were married less than one year. During the trial, and having regard to the additional evidence that would have been required to be provided later for the court to be in a position to determine each party’s net family property, the applicant elected to abandon her claim for equalization of net family properties.
[81] The applicant sought an order requiring the respondent to return to her the engagement ring. I am not prepared to make that order. There was insufficient evidence justifying such an order. In their respective financial statements, both parties included the value of the engagement ring (and wedding band) in their net family property and then they both indicated that they did not have possession of the engagement ring (and the wedding band).
[82] There was no specific evidence given at trial by the applicant regarding the engagement ring. Finally, no claim for the return of the engagement was pleaded by the applicant in her application.
COSTS
[83] The applicant seeks $15,000 in costs all inclusive. Subsequent to the completion of the uncontested trial, applicant’s counsel forwarded two offers to settle made by the applicant. I did not review the offers to settle until after all other issues had been decided.
[84] The applicant achieved substantive success and is presumptively entitled to costs.
[85] The first offer to settle was dated November 25, 2014 and dealt with all outstanding issues. The second offer to settle was dated June 4, 2015 and dealt only with custody and access issues. I have reviewed both offers to settle. Neither offer engages the provision for automatic cost consequences in r. 18(14) because neither offer complies with paragraph 5 of r. 18(14). However, I can still take the offers into account pursuant to r. 18(16).
[86] Both offers to settle were genuine and reasonable attempts made to resolve issues in this case. Although both offers proposed joint custody, each offer provided for less access than was ordered.
[87] The bill of costs and time dockets were filed as exhibits. The bill of costs indicated total fees and disbursements of a little over $32,600 on a full indemnity basis and a little over $26,100 for a “substantial indemnity rate (80%).”
[88] The rates for the lawyers who worked on the file ranged up to $275 per hour. I find that the lawyers’ rates were reasonable.
[89] In examining the other factors in r. 24(11), the case was of importance to the applicant. There was no complexity or difficult issue in this case. Although the respondent acted reasonably in cooperating with the Children’s Lawyer so that a report could be prepared, I also find that aspects of the respondent’s conduct were unreasonable and as it relates to his lack of financial disclosure, failures to comply with orders for disclosure and failure to file a settlement conference brief and attend the settlement conference.
[90] The respondent’s conduct also caused the applicant to expend legal fees in bringing motions for disclosure and for interim support as the respondent had not voluntarily paid any child support. Financial disclosure in family law is a most basic obligation; it is automatic and should not require production orders: Roberts v. Roberts, 2015 ONCA 450 (C.A.) at paras 11-13. The respondent’s failure to pay child support until ordered to do so is unreasonable conduct.
[91] In relation to the time expended and the total fees, I find that those were excessive given the fact that this matter was dealt with as an uncontested trial. I take into account that the applicant abandoned her claim for an equalization payment.
[92] I also take into account that there were three costs awards already made against the respondent on an interim basis (awards of $450, $1,500 and $1,200).
[93] When a court is required to assess costs, the overriding principle is reasonableness. I find that a reasonable amount of costs for the respondent to pay is $8,000 inclusive of disbursements and HST.
ORDER
[94] For the reasons set out above, I make the following final order:
The applicant shall have sole custody of the child, Finley.
Prior to making any major decisions in relation to the child’s health, education and welfare, the applicant first shall consult with the respondent, and shall take into account any recommendations made by the respondent.
The respondent’s regular access schedule to Finley is as follows:
a) from Friday after school (or at 4:00 p.m. if there is no school) until Monday morning school time (or 10:00 a.m. if there is no school) three out of four weekends; the schedule of weekends is to be agreed to by the parties, and failing agreement, during every four week cycle, the child shall be with the respondent on the first, second and fourth weekends;
b) if a Monday statutory holiday falls on the respondent’s weekend, then access is extended to school time on Tuesday (or 10:00 a.m. if there is no school);
c) the respondent shall have access one weekday each week from after school (or at 4:00 p.m. if there is no school) until 7:30 p.m. (to be extended to 8:00 p.m. effective September 2016) on a day to be agreed to by the parties or, failing agreement, every Wednesday;
d) the respondent is also at liberty to attend any of the child’s extracurricular sports activities and the applicant shall provide the respondent with a schedule of same including all practices;
e) as part of the regular schedule set out above, any pick-up and return of the child may be delegated by the respondent to either of his parents if the respondent is working at the time scheduled for pick-up and/or drop-off;
f) for all weekends during the period starting with the first Friday in December and up to and including the weekend starting the second Friday in March, when the child is scheduled to be in the respondent’s care on a weekend during that period, then the respondent’s weekend with the child is extended to school time on Tuesday (or 10:00 a.m. if there is no school) provided that the respondent is not working and is available to care for the child; and
g) the respondent shall have such further and other access as may be agreed to by the parties.
- The following provisions apply irrespective of the regular access schedule and override the regular access schedule:
a) on Family Day, the child shall always be with the respondent from 10:00 a.m. to 7:00 p.m. in even-numbered years, and with the applicant from 10:00 a.m. to 7:00 p.m. in odd-numbered years;
b) for the Easter weekend, the child shall always be with the respondent from 7:00 p.m. Saturday to 7:00 p.m. Sunday in odd-numbered years, and with the applicant from 7:00 p.m. Saturday to 7:00 p.m. Sunday in even-numbered years;
c) for Sunday of the Thanksgiving weekend, the child shall always be with the respondent from 10:00 a.m. to 7:00 p.m. in odd-numbered years and the child shall always be with the applicant from 10:00 a.m. to 7:00 p.m. in even-numbered years;
d) during Christmas each year, the child shall be with the respondent from December 24 at noon to December 26 at noon in odd-numbered years and with the applicant in even-numbered years;
e) for New Year’s Eve, the child shall be with the respondent from December 31 at 5:00 p.m. to January 1 at noon in even-numbered years and with the applicant in odd-numbered years;
f) the child shall spend equal time with each party each year on Hallowe’en;
g) for Father’s Day, if the child is not otherwise scheduled to be with the respondent, then the child shall be with the respondent from Saturday at 5:00 p.m. until Sunday at 5:00 p.m.;
h) for Mother’s Day, if the child is not otherwise scheduled to be with the applicant, then the child shall be with the applicant from Saturday at 5:00 p.m. until Sunday at 5:00 p.m.;
i) each year on the child’s birthday, the party who has the child with him or her according to the regular schedule, shall make arrangements with the other party to ensure that the child spends at least four hours with the other party if the child’s birthday falls on a non-school day, and at least two hours with the other party if the child’s birthday falls on a school day;
j) during March break each year, the regular access schedule shall continue, but if either party wishes to take the child for a vacation during March break, then he or she may do so by advising the other party in writing by no later than February 1st of that year; the respondent may exercise this right in even-numbered years and the applicant may exercise this right in odd-numbered years;
k) during the school summer vacation, each party shall have up to three weeks summer vacation with the child, the weeks may be taken individually or consecutively; each party shall provide written notice to the other by May 1st of each year as to his or her vacation weeks; if there is a conflict between the schedules and the parties cannot resolve the conflict, then the respondent’s vacation plans shall take precedence in even-numbered years and the applicant’s vacation plans shall take precedence in odd-numbered years;
l) if either party is going to be away with the child during his or her vacation, then that party shall give the other party a detailed written itinerary at least 30 days prior to the planned vacation, including details as to any flight carrier and flight times, accommodation, including address and telephone numbers and details as to how to contact that party during the trip;
m) the applicant shall be at liberty to travel with the child to Australia for up to three weeks once per calendar year during the applicant’s vacation time;
n) both parties are permitted to travel anywhere in Canada with the child for a vacation without the consent of the other;
o) if the respondent wishes to travel with the child for a vacation outside of Canada, the respondent shall first obtain the applicant’s written consent, which consent shall not be unreasonably withheld, and the applicant shall provide to the respondent the child’s passport and any other necessary documentation to facilitate the trip, and the respondent shall return the passport and documentation immediately after the vacation; and
p) the applicant is at liberty to travel with the child outside of Canada without obtaining the written permission of the respondent and, further, the applicant is at liberty to obtain a passport for the child, or renewal of a passport for the child, without the signature and consent of the respondent.
On a presentation of a copy of this order, the respondent shall be entitled to request, and to receive, any information, documents and reports, from the child’s physician, dentist, any other healthcare provider, teacher, school principal and any other school board official. The respondent’s right to receive information and records relating to the child includes, without limiting the generality of the foregoing, the right to receive copies of the child’s medical reports, hospital records and the child’s Ontario School Record.
The child’s principal place of residence shall not be changed to a location outside of Middlesex County in the Province of Ontario except on the written consent of both parties, or order of the court.
The respondent shall pay to the applicant child support for the child, Riley, as follows:
a) on the 1st day of each month for the period September 1, 2012 to December 1, 2012 inclusive, the sum of $501 per month based on the respondent’s income of $55,300 pursuant to s. 3(1) (a) of the Federal Child Support Guidelines (“Guidelines”);
b) on the 1st day of each month for the period January 1, 2013 to June 1, 2013 inclusive, the sum of $654 per month based on the respondent’s income of $71,700 pursuant to s. 3(1) (a) of the Guidelines;
c) on December 1, 2013, the sum of $427 based on the applicant’s income of $27,900 and the respondent’s income of $71,700 pursuant to 9 of the Guidelines;
d) on the 1st day of each month for the period January 1, 2014 to December 1, 2014 inclusive, the sum of $396 per month based on the applicant’s income of $30,800 and the respondent’s income of $71,300 pursuant to s. 9 of the Guidelines;
e) on the 1st day of each month for the period January 1, 2015 to March 1, 2016 inclusive, the sum of $242 per month based on the applicant’s income of $45,200 and the respondent’s income of $71,300 pursuant to s. 9 of the Guidelines; and
f) commencing April 1, 2016 and on the 1st day of each month thereafter, the sum of $650 based on the respondent’s income of $71,300 pursuant to s. 3(1) (a) of the Guidelines.
The order dated December 5, 2014, requiring the respondent to pay interim child support to the applicant in the amount of $426 per month commencing December 1, 2014, is vacated in its entirety; however, all amounts paid by the respondent pursuant to the interim order shall be credited towards the respondent’s obligation to pay child support as contained in this final order.
The respondent shall pay to the applicant forthwith the sum of $134 for the child’s s. 7 expenses for 2015.
The respondent shall pay to the applicant his proportionate share of ongoing s. 7 expenses for the child, subject to the following:
a) the respondent’s proportionate share is 61% based on his income of $71,300 and the respondent’s income of $45,200;
b) the respondent shall not be liable for any portion of s. 7 expenses that exceed $1,500 (except as provided in subparagraph d) below) in any calendar year, unless the respondent has consented to same, such consent not to be unreasonably withheld, or a court orders the respondent to pay the expense;
c) the respondent shall pay his share of any s. 7 expense within 30 days after receiving from the applicant a copy of the receipt verifying the expense; and
d) if the s. 7 expense for the child relates to a medical expense that is covered by the respondent’s group insurance plan through his employer, then the amount that is covered by the plan shall not be included in calculating the $1,500 maximum annual expense set out in subparagraph b).
The respondent shall maintain the child as beneficiary of all drug, dental, health and hospitalization plans available to the respondent through his employer for so long as the respondent is required to pay child support in accordance with this order. Within 30 days from the date of this order, the respondent shall provide to the applicant a pamphlet or other information from his employer confirming the expenses that are covered for the child through the respondent’s employer group insurance.
In relation to any medical expenses for the child, the respondent shall promptly submit to his employer all the child’s medical expenses that are covered by the respondent’s plan and, as soon as the respondent receives reimbursement from the employer, then the respondent forthwith shall provide that reimbursement to the applicant, if the applicant has paid the expense.
If the respondent has life insurance available to him through his employer, then the respondent shall name the applicant as irrevocable beneficiary of such life insurance in the amount of $100,000. If the maximum amount of life insurance available to the respondent through his employer is less than $100,000, then the respondent shall name the applicant as irrevocable beneficiary for an amount equal to the maximum amount available. Within 30 days from the date of this order, the respondent shall provide to the applicant evidence from his employer as to the availability of life insurance, and if life insurance is available, then the respondent shall provide a letter from his employer confirming that the respondent has named the applicant as irrevocable beneficiary in accordance with this order. The respondent’s obligation to comply with this paragraph shall continue for as long as he is required to pay child support and after the respondent is no longer required to pay child support, then the applicant shall sign whatever documentation is necessary in order to allow the respondent to change the beneficiary designation.
The Director of the Family Responsibility Office, forthwith, shall calculate the child support arrears owing by the respondent as a result of this order, and the arrears owing by the respondent shall be paid forthwith.
The sum of $8,828.88 held in trust from the sale of the jointly-owned matrimonial home, shall be paid forthwith to the applicant, or as she may in writing otherwise direct.
All provisions in this order relating to custody, access and child support are made pursuant to the Divorce Act.
On June 1st of each year commencing 2016, each party shall provide to the other a copy of his or her T1 general income tax return together with all slips and schedules, and notice of assessment (together with notice of reassessment, if any) for the immediately preceding calendar year and, in addition, each party shall also provide to the other all other financial disclosure required pursuant to s. 21(1) of the Federal Child Support Guidelines. The applicant’s obligation to provide financial disclosure is required only if the applicant in any calendar year has claimed s. 7 expenses for the child.
There shall be no equalization payment payable by either party to the other.
The respondent shall pay to the applicant forthwith her costs of this application fixed in the amount of $8,000 inclusive of assessable disbursements and HST. This is in addition to all interim orders requiring the respondent to pay costs. In relation to this final costs order, the sum of $4,000 shall constitute a support order within the meaning of the Family Responsibility and Support Arrears Enforcement Act, 1996.
The applicant’s name in the title of this proceeding is amended to “Christina Hobbs (sometimes known as Christina Rice).”
The applicant shall ensure that the respondent is served personally with the reasons for judgment and a signed and issued copy of this final order within 30 days of the date of this order and the applicant shall file proof of service in the continuing record.
“Justice Victor Mitrow”
Justice Victor Mitrow
Released: April 5, 2016
CITATION: Hobbs v. Topping, 2016 ONSC 2132
COURT FILE NO.: FD1047/14
DATE: April 5, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Christina Hobbs (sometimes known as Christina Rice)
Applicant
- and -
Jeffrey Topping
Respondent
REASONS FOR JUDGMENT
MITROW J.
Released: April 5, 2016