COURT FILE NO.: D 20583-13 CORRECTED DECISION RELEASE DATE: 20160712 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Tracy Dawn Lacombe Applicant – and – Bernard Joseph Lacombe Respondent
Counsel: Liisa Parisé, for the Applicant Bernard Joseph Lacombe, unrepresented
HEARD: July 4, 2016
Corrected Reasons for Judgment
In the second sentence of Paragraph [10] the word “spousal” is changed to “child”. The corrected sentence reads as follows: On an imputed income of $100,000 annually, and pursuant to the Guidelines, the monthly child support for the two daughters was $1,416.
DEL FRATE J.
[1] At the trial management conference held before Gauthier J. on June 1, 2016, the respondent sought an adjournment based on medical reasons. The adjournment was denied.
[2] A similar request was made through the trial coordinator’s office on June 30, 2016. Attached to the request was the report of Dr. Sandhu dated June 20, 2016, in which he indicates that the respondent suffers from significant vertigo. He has advised him to “avoid driving until his symptoms improve.”
[3] There is no mention of his inability to attend court because of the dizziness. If driving were the only concern, the respondent could have made arrangements to have someone else drive him to the trial. The trial proceeded.
[4] Then, on July 5, 2016, at five minutes passed midnight, the trial coordinator’s office received a fax from Hogden, Mayhew and Hill, signed by one Rossana Fusco indicating that the respondent had been at the emergency department since 6:40 that morning with heart and chest pain and was having difficulties breathing. That fax was delivered to my office later that afternoon. It is not clear who this person is. I can only assume that she may be employed by the law firm that previously represented the respondent.
[5] I am not certain why the fax was sent at such a late date and for what purpose since by then, the evidence had been heard.
[6] At the hearing, the applicant sought the following relief:
a. Child support; b. A declaration that the applicant is the beneficial owner of the vendor take back mortgage on the property situated at 4731 Ford Drive, Chelmsford, Ontario P0M 1L0, also known as “Go Mini property”; c. A declaration that the applicant is the beneficial owner of RRSP #4358-159-146-518; d. A declaration that the sum of $10,000 held in Ms. Parisé’s trust account be paid out to the applicant to indemnify Harold Waltenbury and Lisa Waltenbury being the purchasers of the matrimonial home situated at 1242 Main Street East in Val Caron, Ontario; e. An order striking the relief sought by the respondent in his answer. f. Costs.
Facts
[7] The parties married on July 7, 1990, and separated on July 15, 2012. They had three children from this union and two being Amanda and Ashley, were still dependant at the time of separation. The third child, Ryan, was independant.
Support
[8] The applicant, and the two dependent daughters, being Ashley and Amanda Lacombe, testified that following the separation, the two daughters continued to reside in the matrimonial home with their mother. Both were dependants for a six-month period. Amanda was still in school and Ashley was still residing at home even though she was not in school and not working.
[9] The respondent was self-employed as a contractor building and repairing homes. In the years prior to separation, his income varied from $100,000 to $180,000. In 2011, his declared net income was $89,012. There may have been undeclared income as well. For the purposes of this discussion, I am asked to impute the sum of $100,000 as the respondent’s annual salary.
[10] The applicant is seeking child support for the period of June 2012 to January 2013, being six months. On an imputed income of $100,000 annually, and pursuant to the Guidelines, the monthly child support for the two daughters was $1,416. For six months, the total is $8,496.
[11] I find that the two daughters were dependants from the period of June 2012 to January 2013. I also find that the evidence discloses that the respondent continues to work “under the table” and is not declaring his actual income. Further, he is very involved in bodybuilding. Were he incapacitated as he wishes the court to accept, one would think that he would be unable to continue his training and his involvement in body building shows.
[12] Also, he is advertising his company business in Barrie. If he were not capable of working, why is he advertising for work? He is also having his mother partake in what may be described as improper activities by having a bank account in her name. Yet, sizeable amounts are transacted by the respondent and not the mother.
[13] I conclude and find that the sum of $100,000 annual income is a reasonable amount to be imputed to the respondent.
[14] Accordingly, the respondent is to pay retroactive child support in the sum of $8,496.
Beneficial Ownership of the Go Mini Mortgage
[15] Prior to separation, the parties purchased the Go Mini property situated at 4731 Ford Drive in Chelmsford, Ontario. The property was registered in the names of the respondent and their son, Ryan Lacombe. Ryan, however, testified that the property was intended to be owned by his mother and his father and his name was registered purely for tax purposes. That evidence is confirmed by the applicant.
[16] In December 2010 and prior to the separation, the Go Mini property was transferred to a Ron Belanger and a Ron Bruneau. Ron Belanger is still owner of the property. The respondent and Ryan took back a mortgage for $170,000.
[17] At the time of the sale in 12-10-2010, a loan amortization schedule was prepared. It has been entered as Exhibit #6.
[18] Ron Belanger testified that he has continued to make the payments pursuant to the amortization schedule and that as of June 10, 2016, the outstanding amount is $65,148.95.
[19] Ryan testified that although he was collecting and receiving these payments until recently, he forwarded the amounts to the respondent, even though the property was purchased for the benefits of his parents.
[20] Following the separation, the applicant has not received any of the payments made on the mortgage. However, the respondent has received $104,851.05.
[21] In theory, both parties ought to receive the same amount. The applicant is prepared to accept what remains outstanding on the mortgage being $65,148.95.
[22] I accept the evidence of Ryan Lacombe and that of the applicant that she was to be the beneficial owner of the mortgage. I declare that the applicant is the beneficial owner of the mortgage and that the respondent has no right, title or interest in the mortgage as of July 1, 2016. I further order and direct the Land Titles Registrar to amend the abstract of title on this mortgage to reflect the declaratory relief to the name of the applicant being Tracy Dawn Chaumont as she is presently known. Accordingly, all payments are to be made to her.
[23] Should the parties require further assistance in the registration of this relief, an appointment may be made to address the issues before myself.
Official Owner of the RRSP
[24] In 2010, the parties decided to borrow on a line of credit and that those funds be placed in a RRSP. The RRSP was jointly held, however, $50 monthly payments commencing in September 2013, have been made by the applicant. The payments prior to that date were made through the joint bank accounts held by the parties. I conclude that the respondent has no equity in this account and as a result, there is a declaration that this account should be reflected solely in the name of the applicant.
Funds Held in the Parisé Trust Account
[25] At the time of the sale of the matrimonial home, the offer included that the appliances were to remain in the home. The day before the close of the transaction, the respondent attended at the home and removed all of the appliances worth approximately $8,900. The purchasers, Gerald Waltenbury and Lise Waltenbury were to be indemnified at some point and $10,000 was set aside in Ms. Parisé’s trust account, to permit the transaction to be completed.
[26] The applicant has undertaken to indemnify the Waltenburys from these trust funds. She has also undertaken to use the remainder of the funds to indemnify the court orders totalling $1,000 made by Justice Hennessy on May 15, 2014, and by Justice Gauthier on November 27, 2014.
[27] Order to issue that funds held in trust by the Parisé law firm be paid out to the applicant to indemnify the purchasers of the matrimonial home and to aid the outstanding court orders.
Respondent’s Claim
[28] Since the respondent did not attend, no evidence was called. Accordingly, the relief claimed in his response is dismissed. Even if evidence had been called on his behalf, in all probability I would have dismissed his relief in view of the evidence heard.
Costs
[29] The applicant has been successful in advancing her case, and in the dismissal of the respondent’s relief.
[30] It is clear from the history in this file and from some of the comments made by the respondent that his entire purpose was to destroy the applicant financially. There did not appear to be any cooperation whatsoever. He did not attend on numerous occasions and if he had, he was forced to do so. There is evidence of improper and deliberate dishonest conduct on his part. This type of conduct cannot be condoned.
[31] Although the applicant is seeking full recovery, I cannot agree to it. However, the substantial indemnity rate is appropriate as a deterrent not only to the respondent but to other litigants who take an unreasonable approach in the conduct of their litigation. Costs are awarded in the sum of $14,724.13 plus HST of $1,914.14 for a total of $16,638.27. Further, the disbursements of $3,992.74 plus the HST on the disbursements of $458.48 are awarded. Accordingly, the total costs order is $21,089.49
[32] Order to issue as per Reasons.
The Honourable Mr. Justice Robert G.S. Del Frate