Court File and Parties

COURT FILE NO.: FS-15-37-0000 DATE: 20160429 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

J.L.C. Applicant – and – K.L.C. Respondent

COUNSEL: D. Andrew Thomson, for the Applicant Unrepresented

HEARD: April 1, 2016

Decision on Uncontested Trial

J. Wilcox

[1] The Applicant wife’s family law Application was served personally on the Respondent husband on August 27, 2015. He has provided no responding documents, nor has he participated except for taking a MIP session on September 16, 2015. He was noted in default on December 18, 2015. There is a final order in place dated December 18, 2015 awarding the Applicant custody of the children subject to a police enforcement clause. An uncontested trial of the remaining issues was held on April 1, 2016. The Applicant sought a divorce, support and an unequal property division.

[2] The Applicant testified that the Certificate of Marriage filed and the Application were both accurate, there was no subsequent change in the information and there has been no effort to mislead the court.

[3] The parties cohabited from March, 2004, were married on June 7, 2008 and separated April 2, 2015.

[4] There are four children, all residing with the Applicant. They are:

1. D.C.P. born […], 1998, now 17 years old, in grade 12 and planning to attend college.
2. S.M.P. born […], 2001, now age 15 and in grade 9.
3. D.L.C. born […], 2005, now age 11 and in grade 5.
4. B.V.C. born […], 2010, now age 5 and in senior kindergarten.

[5] The two older children are the Applicant’s from a previous relationship, but the Respondent treated the children all the same, she said.

[6] The Respondent has paid no support since separation.

[7] S.M.P. alleged in May, 2015 that the Respondent had been sexually assaulting her. Therefore, he is facing criminal charges, is on bail, and is not allowed to communicate with the Applicant or the children.

[8] The Applicant’s income is from ODSP and from casual work at Canada Post. Her total income for 2015 is $25,840.00, not including the child care benefit.

[9] The Applicant stated that the Respondent has worked intermittently over the years but was not working at the time of separation. She did not know if he was working at the time of the hearing. He had done odd jobs for others and assisted a mechanic, but was not a qualified mechanic himself. His last job that she knew of was at M.[…] in South River, Ontario, which was run by T.F. and A.S,. A pay stub dated 18/11/11 indicates that A.S, paid the Respondent $17.00 per hour. At 40 hours per week, that multiples to a total income of $35,360.00 per year.

[10] The Applicant knew of no reason why the Respondent could not work. Although he faces criminal charges, he is out on bail.

[11] For the purpose of support, then, I will impute to the Respondent and income of $35,360.00 per year.

[12] Based on that, the Respondent shall pay child support of $839.00 per month for the four children, starting May 1, 2015. In addition, he shall pay to the Applicant a nominal $1.00 per month spousal support starting May 1, 2015.

[13] The Applicant’s evidence was that when she and the Respondent began their relationship in early 2004, he owned the matrimonial home which was subject to two mortgages and about to be lost to foreclosure. She caught up the payments to prevent its loss and subsequently made all the mortgage, property tax and utility payments. In 2011, the property was transferred into both the Applicant’s and Respondent’s names and re-mortgaged for $84,000.00. As of April 1, 2015, the day prior to separation, the balance owing on the mortgage was $82,552.30, and it was $82,157.20 as of January 1, 2016.

[14] A realtor’s opinion dated May 20, 2015 valued the property at $110,000.00.

[15] The equity at separation, not counting any allowance for the costs of sale, would have been about $27,447.70.

[16] However, the property is subject to a lien of an unspecified amount in favor of Legal Aid Ontario for the cost of legal services provided to the Respondent, apparently for his criminal case.

[17] The Applicant also alleged that the Respondent had more debts than she had realised when they got together, such that he filed for personal bankruptcy in about 2007.

[18] The Applicant’s evidence was that she paid for three quarters or more of the family’s expenses. A substantial amount of the Respondent’s income went to his drug and alcohol use. In addition, he withdrew money from the family’s accounts, leaving the family broke, so that the Applicant had to borrow money from her mother so that she and the children could get by. He also ran up the joint line of credit from $2,000 to over $10,000 without the Applicant seeing any benefit from that money. He has made no payments on the line. The Applicant has reason to suspect that the Respondent has taken money from the children’s piggy banks as well.

[19] The Applicant is not aware of any other valuable property that the Respondent owns, but for a truck.

[20] The Family Law Act s. 5(6) provides for the awarding of an unequal division of the net family property in the listed circumstances. In this case, the Applicant has little net family property. The major asset is the matrimonial home in which there is only modest equity. As the Respondent has not responded at all, including with a financial statement, the available information is incomplete. Therefore, there is no ability to calculate what the net family property equalization would be. I will assume that the net family properties are equal.

[21] However, it is clear that the Applicant has contributed disproportionately to the accumulation of the family property, principally the matrimonial home. The Respondent failed to disclose all the debts that he had brought in to or incurred early in the marriage, which led to his bankruptcy. He also failed to use much of his income for the benefit of the family, ran up the joint debts, and depleted the joint bank account, putting the burden of providing for the family largely on the Applicant.

[22] In the circumstances, I find it is appropriate to award the Applicant an unequal share of the net family property. This will be accomplished by transferring title of the matrimonial home to her. That provides her with the Respondent’s share of the equity, which only amounts to approximately $13,700.00. Practically speaking, it is realistic to expect that she will be responsible not only for the mortgage, but also for the Respondent’s Legal Aid Ontario lien, so the actual monetary benefit to her will be something less.

[23] The likelihood that the Applicant will never to see payment of the arrears occasioned by this order or of the ongoing support further justifies the transfer of the matrimonial home.

[24] The parties shall be divorced.

[25] The Respondent shall pay partial indemnity costs in this matter fixed at $2,274.70 inclusive of fees, disbursements and HST within 30 days of this order.

[26] In summary, an order shall go as follows:

1. This court orders that J.L.C. and K.L.C. who were married at South River, Ontario on June 7, 2008 be divorced and that the divorce take effect 31 days after the date of this order.
2. K.L.C. shall pay to the Applicant, J.L.C., the sum of $839.00 per month for the support of the children namely, D.C.P. born […], 1998; S.M.P. born […], 2001; D.L.C. born […], 2005 and B.V.C. born […], 2010 based upon an imputed annual income of $35,360.00 commencing May 1, 2015 in accordance with the Child Support Guidelines.
3. That the Respondent, K.L.C. pay to the Applicant, J.L.C. the sum of $1.00 per month for spousal support commencing May 1, 2015.
4. That upon the deletion of the Respondent, K.L.C. as owner of the lands described municipally as W.[…], South River, Ontario described as PIN 52057-0186(LT) being Parcel P.[...], North Section, Part Lot1, Concession 8, Machar, Part 2, PSR2288, District of P.[...] there will have been effected an equalization of Net Family Property.
5. That the Applicant, J.L.C. have exclusive possession of the lands and premises described municipally as W.[…], South River, Ontario described as PIN 52057-0186(LT) being Parcel P.[...], North Section, Part Lot 1, Concession 8, Machar, Part 2, PSR2288, District of P.[...].
6. That the Respondent, K.L.C., pay to the Applicant, J.L.C. the sum of $2,274.70 inclusive of fees, disbursements and HST for her costs which sum shall be collected by the Family Responsibility Office as support as having been incurred in the collection of support.
7. The lands and premises described as PIN #52057-0186(LT) being Parcel P.[...] North Section, Part 2, PSR2288 Part Lot 1, Concession 8, Machar, District of P.[...] be and is hereby vested in J.L.C. free and clear of any interest that K.L.C. may have in the said lands.
8. The Parcel Register for PIN #52057-0186(LT) in Land Registry Office No. 42 be amended by deleting “K.L.C.” from the owners’ name with respect to the subject lands and leaving the name J.L.C. as the sole owner.

J. A. S. Wilcox Released: April 29, 2016