Court File and Parties

COURT FILE NO.: FC-15-1997 DATE: 2016/08/15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: LISA ANNE PEDERSON, Applicant -and- KEVIN MICHAEL COLLETTE, Respondent

Counsel: Self-represented (for the Applicant) No one appearing for the Respondent

HEARD: March 29 and April 28, 2016

Reasons for Decision

CORTHORN J.

[1] This application follows the breakdown of a marriage in 2014. The parties have a child together and the respondent adopted the applicant's child from a previous relationship. The issues to be determined on the application include divorce, custody, access, child support, spousal support, equalization, and various related issues.

[2] The respondent did not deliver an answer, was noted in default, and did not participate in the trial of the application. The matter proceeded before me as an uncontested trial. The trial commenced on March 29 and continued on April 28, 2016. An additional document was filed thereafter by the applicant to provide up-to-date information with respect to the proceeds from the sale of the matrimonial home on May 2, 2016 ("the Proceeds").

[3] The interim orders made in this matter were as follows:

• Sept. 22, 2015 A temporary restraining order was made by Justice Phillips, prohibiting the respondent from contacting or communicating directly or indirectly with the applicant. This temporary order remained in effect until October 27, 2015;
• Oct. 12, 2015 Pursuant to the endorsement of Justice Sheard, made on the consent of the parties, terms were set to facilitate the sale of the matrimonial home and the temporary restraining order was continued until December 4, 2015;
• Dec. 4, 2015 At a case conference, Master MacLeod (as he then was) made an order which included terms providing that the applicant would continue to exercise care and control of the children, granting the respondent an extension of time within which to file his answer and financial statement (filing the latter document was mandatory regardless of whether the respondent chose to file an answer), and dealing with access visits and travel for the children in the short term. The Master referred to the restraining order and I interpret his order as continuing the restraining order; and
• Mar. 29, 2016 At the conclusion of the first segment of the uncontested trial, I made a temporary order providing that the applicant would have sole custody of the children, providing for child support to be paid in the amount of $966 per month (based on imputed income of $65,000 for the respondent), making child support payable retroactive to May 1, 2015, and continuing the terms of the restraining order.

[4] As I indicated at the conclusion of the uncontested trial on April 28, 2016, a number of the terms of the temporary orders are to be incorporated in the final order in this matter. The terms of the March 29, 2016 temporary order with respect to custody and child support are incorporated in the final order. The terms of the April 28, 2016 temporary order with respect to the passports for and travel with the children are also incorporated into the final order.

[5] The time allotted for the uncontested trial on March 29, 2016 was 30 minutes. It was clear that the trial could not be completed in that amount of time. As a result the temporary order described above was made and the trial was adjourned April 28, 2016.

[6] The applicant testified on both March 29 and April 28, 2016. The evidence relied upon by the applicant also includes the following documents:

• Sept. 15, 2015 Affidavit in support of claim for custody or access;
• Sept. 15, 2015 Financial statement (property and support claims);
• Mar. 15, 2016 Affidavit for divorce;
• Mar. 15, 2016 Affidavit for uncontested trial;
• Apr. 22, 2016 Affidavit for uncontested trial;
• Apr. 22, 2016 Net family property statement; and
• May 2, 2016 Trust ledger from the office of Langevin, Morris, Smith with respect to the proceeds of sale from the matrimonial home.

Background Information

[7] The applicant is the mother of Dylan Lloyd Pederson (born on September 11, 2003 - "Dylan") and Nathan Anthony Collette (born on October 27, 2007- "Nathan"). The applicant and respondent began living together in September 2004. They were married on August 8, 2009 and separated on March 16, 2014.

[8] Dylan is the applicant's child from a previous relationship. During the term of the marriage, the respondent adopted Dylan.

a) Employment and Education

[9] From September 2004, when the parties were married, until the fall of 2006 the applicant remained at home with Dylan. She then began to work on a part-time basis in the restaurant industry. She worked as a bartender but for only a very limited number of hours per week- for example as little as three hours per week. The applicant continued to work on a part-time basis until the fall of 2007 when Nathan was born.

[10] In the latter part of the previous decade, the applicant decided to pursue a career in recreation management. In 2010, she secured a job as a recreation programmer with Extendicare, a long-term care service provider, working at long-term care facilities. The applicant started with part-time employment and progressed to full-time employment. When working full-time, her salary ranged from $35,000 to $40,000 per year.

[11] Approximately 3.5 years ago, the applicant returned to school, attending the Algonquin College program in Recreation Therapy. At times, the applicant attended school on a full-time basis and worked part-time. Alternatively, as she has most recently, the applicant worked on a full-time basis and attended school part-time. As of the spring of 2016, the applicant was working on a full-time basis for Extendicare at the New Orchard Lodge and on a very limited part-time basis for the City of Ottawa.

[12] The applicant requires two credits to obtain her Recreation Therapy Diploma. She anticipates that she will complete her diploma prior to the end of 2016. The applicant understands that the diploma will position her to apply for and secure management-level positions in recreation therapy. The applicant's income is currently in the range of $20 to $30 per hour, depending on the location of her position (urban setting or smaller centre) and whether the position is at or below the management level. Her income is expected to remain at that level for the foreseeable future.

[13] As of the spring 2016, the applicant had begun a new relationship. She was making plans to move to Renfrew with the two children and to live with her new partner.

[14] The applicant had amassed a small pension entitlement (less than $5,000) while working for Extendicare. With her move to the Renfrew area, she has given up her position with Extendicare and will not be amassing any further pension entitlement from that position.

[15] The applicant describes the respondent as estranged from the boys. When the respondent was most recently involved in the lives of the boys it was problematic for them, including at school. It was the applicant's evidence that the boys were very much looking forward to their move and to the opportunity to start fresh in a new school without the spectre of the respondent in the picture. Having been granted sole custody of the boys on an interim basis, the applicant was able to make that move in the early spring of 2016.

[16] The respondent is a self-employed contractor, primarily in the field of drywall. During the marriage, the applicant was involved in the preparation of the income tax returns for the respondent. As a result, she has some familiarity with and understanding of the respondent's sources of income and the amount of his income on an annual basis.

[17] The respondent did not file a financial statement as he was mandated to do by the order of Master MacLeod (as he then was). The most recent evidence that the applicant has of the respondent's employment is in the form of a text message from a particular contractor with whom the respondent worked in 2015. On the basis of the contents of that message and her prior knowledge of the respondent's income, et cetera, the applicant estimates that the respondent's income is in the range of $61,000 to $65,000. It was the applicant's evidence that much of the respondent's work was on a cash basis. As a result, the applicant's historical reported income did not necessarily accurately reflect his actual income.

b) Matrimonial Home

[18] The matrimonial home was located at 124 Robert Lee Drive in Carp, Ontario. The parties began to live in the home as of September 2004. The home was purchased in May 2009, a few months prior to the date of marriage. The down payment was made with funds provided by the respondent and by the applicant's parents. The respondent's mother was required to co-sign the mortgage. The home was purchased from the applicant's parents for a purchase price of $315,000.

[19] The monetary contribution from the applicant's parents to the parties was to 'gift' $65,000 towards the purchase price. At the time it was agreed that if the parties sold the home within five years of the date of purchase they would repay the $65,000 to the applicant's parents. Following the separation, it was agreed between the parties and the applicant's parents that the parties would repay $20,000 of the amount gifted. As of the date of trial that amount had not been repaid. The applicant requests that an order be made requiring $20,000 to be repaid to her parents from the proceeds from the sale of the matrimonial home.

[20] It was not until 2010, when she began to work on a full-time basis, that the applicant was able to contribute to the expenses incurred to maintain the matrimonial home. Prior to then, the expenses in that regard were paid entirely by the respondent. Once the applicant began to work, the expenses were shared between the parties on a 70/30 or 60/40 basis with the respondent paying the greater share of the expenses.

[21] Subsequent to March 2014, when the parties separated, the applicant continued to live in the matrimonial home with the two children. She paid the expenses related to the home without any contribution whatsoever from the respondent.

[22] The applicant was, at the same time, paying down debt in the parties' joint names. She struggled to make ends meet. As a result, as of the date of sale of the matrimonial home there were arrears of property taxes to be paid ($6,319.52).

[23] The applicant estimated that the expenses which she paid towards maintaining the matrimonial home for the four months from November 2015 through February 2016 totalled approximately $9,175. She provided receipts and other documents to support that figure. From a close examination of the figure and supporting documents, it was clear that the figure was high; it included payments made towards the jointly held MasterCard.

[24] For a period of 26 months, from the date of separation (March 2014) to the spring of 2016 (May 2016), the applicant was solely responsible for the expenses associated with the matrimonial home. The property taxes are estimated to be in the amount of $3,000 per year. The home insurance is estimated at a cost of $2,700 per year. The regular monthly expenses are, based on the documentary record of payments made, as follows: $30 for the alarm system; $80 for the telephone; $100 for natural gas; $200 for water; and $300 for electricity.

[25] On the basis of the figures set out above, I find that the expenses associated with the matrimonial home for the 26 months between the date of separation and the date of sale total an amount between $25,000 and $30,000. The latter figure is the total based on the specific amounts set out above. If it is assumed that the monthly and annual expenses increased slightly from March 2014 to the spring of 2016, then the total expenses paid by the applicant would be less than $30,000. On that basis, I arrived at the estimate of $25,000 as the figure at the lower end of the range.

c) Joint and Other Debts

[26] The applicant explained that she has, since the date of separation, been addressing debt accumulated on a MasterCard in the parties' joint names and incurred by the parties jointly with respect to the purchase of a truck which was placed in the respondent's name. With respect to the latter, the applicant incurred legal fees to retain counsel to represent her after the truck was re-possessed and the lender pursued the applicant for payment of the balance owing on the truck. The applicant did not provide a figure for the legal fees incurred in that regard.

[27] The balance owing on the MasterCard as of the date of sale of the matrimonial home was $22,425.35. My interim order dated April 2016 provided for that amount to be paid from the proceeds of sale of the matrimonial home. That interim order also provided for the balance owing for the truck - $2,696.61 - to be paid from the proceeds from the sale of the matrimonial home.

Analysis

a) Division of Net Family Property

[28] The net family property statement filed by the applicant in April 2016 indicates that the only asset the parties had and from which an equalization payment can be made is the matrimonial home. With the exception of a couple of pieces of furniture in the house, the majority of the furnishings were owned by the applicant's parents.

[29] There is no evidence as to the period of time over which the applicant amassed her pension entitlement valued at approximately $5,000. As a result, I am unable to determine what portion, if any, of the pension entitlement was accumulated subsequent to the date of separation. Given the lack of evidence in that regard, the applicant's decision to leave the position in which she accumulated the pension entitlement, and the relatively small amount of that entitlement, I have not considered the pension entitlement in dealing with the issue of equalization payment. It is also possible that the respondent, who has not filed any financial statement or net family property statement, has assets of a similar value to balance against the $5,000 or some portion of that amount.

[30] The May 2, 2016 trust ledger filed following the sale of the matrimonial home identifies that the proceeds were paid out as follows:

Item	Funds In	Funds Out
Received from purchasers	$ 360,477.74
Real estate commission		$ 13,661.95
Balance of charge on property		$ 261,022.46
Registration fee		$ 149.44
Property tax arrears		$ 6,319.52
MasterCard settlement		$ 22,425.35
Balance owing on truck		$ 2,696.61
Real estate solicitor for sale		$ 1,610.29
Lisa Ann Pederson (interim order)		$ 5,000.00

[31] Proceeds remaining in trust $ 47,592.12. In principle, the parties are entitled to share equally in the proceeds of sale of the matrimonial home. I made an interim order providing that the applicant was entitled to $5,000 from the proceeds specifically because she was moving with the boys from the matrimonial home and required funds to assist in making that transition. When that amount is added back in to the net proceeds, to be divided is a total of $52,592.12.

[32] I accept the applicant's evidence as to the intentions of the parties and the agreement reached with the applicant's parents to repay them $20,000 of the $65,000 gift made at the time of purchase of the matrimonial home. That repayment is dealt with in my order below. With that payment to be made, $32,592.12 remains from the Proceeds to be distributed to the parties.

[33] If the balance remaining of $32,592.12 is divided equally between the parties, they would each be entitled to receive $16,296.06 from the. However, an equal division of the Proceeds does not take into consideration the expenses incurred by the applicant to maintain the matrimonial home from the date of separation to the date of sale. The respondent was equally responsible for but chose not to make any contribution towards those expenses.

[34] The applicant has paid between $25,000 and $30,000 to maintain the matrimonial home since the date of separation. She is entitled to be reimbursed by the respondent for his share of that amount. On that basis, the applicant is entitled to be reimbursed an amount between $12,500 and $15,000 from the respondent's share of the Proceeds. I use the mid-point of that range - $13,750.

[35] The applicant is entitled to be reimbursed by the respondent for $13,750 towards the expenses incurred to maintain the matrimonial home subsequent to the date of separation. That amount is to be paid from the respondent's 50 per cent share of the Proceeds. With that amount paid to the applicant, the balance remaining in the respondent's share of the Proceeds is $2,546.06.

[36] In all of the circumstances I find that the applicant is also entitled to be paid the balance from the respondent's share of the Proceeds. I make that finding for a number of reasons, including the following. The respondent did not take any responsibility with respect to the joint debts incurred. It was left entirely to the applicant to negotiate with MasterCard and with RBC. The latter negotiations related to a truck of which the respondent had sole use. The applicant incurred legal expenses in resolving the dispute with respect to the unpaid balance on the loan for the truck. In addition, the amounts paid with respect to property taxes, hydro, et cetera, were greater than they otherwise would have been but for the separation and the failure of the respondent to take responsibility and pay his share of the amounts owing.

[37] In summary, I find that it is reasonable to make an inequitable division of the Proceeds (i.e. the net family property) and award an additional $2,546.06 to the applicant. She therefore receives a total of $18,842.12 from the Proceeds. The respondent's share as allocated to him - prior to applying any portion of his share towards reimbursement of the applicant - is $13,750 (as calculated in paragraph 34 above). As a percentage the applicant shall receive 58 per cent of the net family property and the respondent shall receive 42 per cent of same.

b) Child Support

[38] Based on the applicant's evidence, I imputed an annual income of $65,000 per year to the respondent for 2015 for the purpose of determining the amount of child support payable on an interim basis. There was no new evidence as of the end of April, when the uncontested trial continued, to cause me to alter my finding in that regard. The applicant had second-hand information with respect to the respondent's ability to work. However, I do not find that evidence reliable and therefore do not consider it in determining the amount of child support payable.

[39] For the purpose of the final order at this time, I impute an income of $65,000 per year to the respondent. The child support payable for two children based on that annual income is $966 per month.

c) Spousal Support

[40] The applicant requests that an order be made for a lump sum amount to be paid in spousal support. She acknowledges that once she completes her Recreation Therapy diploma and secures full-time employment she will be where she otherwise would have been in her career.

[41] Although a lump sum payment of spousal support is not typical, there is jurisdiction to order one. The applicant requests an order for payment of a lump sum of $20,000. I find the lump sum amount requested to be reasonable on a compensatory basis taking into account the duration of the marriage and the circumstances of the parties during the marriage.

[42] I also find that it is appropriate to make a lump sum award for spousal support in the circumstances of this case. A lump sum is appropriate for a number of reasons, including the following:

• The respondent does not have a good track record of making periodic payments;
• The respondent's employment is not stable;
• The respondent's income is not predictable, considering that he works for cash and may not be fully reporting all income earned; and
• The respondent's prospects for employment over the long term are uncertain.

[43] The applicant's demeanour when testifying and the overall substance of her evidence make it clear that she has approached this matter fairly, attempted to secure as much of the financial information as is available to her in the circumstances, and that her focus is ensuring that she is in a position from this point forward to personally look after her children. For understandable reasons, the applicant is not confident that the respondent will make a meaningful contribution - financial or otherwise - to the lives of the boys. The applicant's desire as expressed to the Court is to put this application and her marriage to the respondent behind her and the two boys to the extent possible.

[44] I appreciate that the applicant is approaching this matter in a practical manner and has the best interests of her children in mind. I am of the view that it would not be reasonable to deprive her of her entitlement to spousal support. I recognize that the applicant may ultimately choose not to enforce the spousal support payment (i.e. because it will not come from the proceeds of sale of the matrimonial home). However, I am providing for same and it shall remain open to the applicant to enforce the order in due course should it become apparent to her that there is a reasonable chance of recovery.

d) Restraining Order

[45] As noted in the background information above, in September 2015 a restraining order was made. That order was continued as of late October 2015 and, based on my interpretation of the December 2015 order of Master MacLeod (as he then was) was continued. My interim order dated April 2016 provided that all interim orders, including the restraining order of Justice Phillips, were continued.

[46] The issue to be determined is whether the restraining order is to be continued at this time. The evidence upon which Justice Phillips and others relied in making and continuing the restraining order in the latter part of 2015 is set out in the applicant's affidavit sworn on September 22, 2015. In that affidavit, she describes behaviour on the part of the respondent up to and including late August 2015, on which she relied in support of her request for a restraining order.

[47] In particular, the applicant described an incident in late August 2015 where the respondent made a particularly threatening phone call, resulting in the applicant calling the police. The applicant's evidence is that it was at the recommendation of the police at that time that she brought the motion for a restraining order.

[48] The evidence of the applicant's concerns with respect to the respondent's behaviour since August 2015 is set out in the other affidavits listed at paragraph 5 of these Reasons. That evidence includes the following:

• The applicant is concerned about the respondent's continuing abuse of drugs and alcohol and the impact that abuse will have on the children.
• The respondent does not have a driver's licence, having lost it because of one or more convictions on the charge of driving under the influence.

[49] The affidavit evidence of the applicant is that the respondent has not had any involvement with the boys since the fall of 2015. There is no evidence of the respondent continuing to attempt to contact the applicant or to interfere in her or the boys' lives. The applicant's evidence is to the effect that both the respondent and his mother, with whom the boys were once relatively close, have made no effort to communicate with the boys and have essentially dropped out of the boys' lives.

[50] In summary, the evidence as to the respondent's behaviour since the fall of 2015, when the restraining order was first made, does not support the continuation of the restraining order at this time. It remains open to the applicant to bring a motion for a restraining order in the future in the event of concerning behaviour on the part of the respondent. The restraining order is not continued at this time.

Disposition

[51] For the reasons set out above and as previously given with respect to the interim orders made in this matter, I make a final order as follows:

1. Lisa Anne Pederson and Kevin Michael Collette, who were married at Almonte on August 8, 2009, are divorced and this divorce order shall take effect 31 days after the date of this order.
2. The applicant shall have sole custody of Dylan Lloyd Pederson (born on September 11, 2003) and Nathan Anthony Collette (born on October 27, 2007).
3. The respondent shall have access visits with Dylan Lloyd Pederson and Nathan Anthony Collette entirely at the discretion of the applicant.
4. The respondent shall pay the amount of $966 per month, in child support for Dylan Lloyd Pederson and Nathan Anthony Collette, based on income of $65,000 imputed to the respondent for 2015 and in accordance with the Federal Child Support Guidelines.
5. The payment of child support in the amount of $966 per month shall be retroactive to May 1, 2015.
6. The respondent shall pay his pro-rata share of section 7 expenses for Dylan Lloyd Pederson and Nathan Anthony Collette and said payments shall a) be retroactive to May 1, 2015, and b) continue from the date of this order forward.
7. The proceeds from the sale of the matrimonial home shall be paid as follows: a) $20,000 to the applicant's parents jointly; and b) $32,592.12 to the applicant (with that amount including the $5,000.00 paid to her pursuant to my interim order dated April 28, 2016).
8. The respondent shall pay to the applicant $20,000 by way of a lump sum payment in spousal support in full satisfaction of the applicant's entitlement to spousal support to and including the calendar year 2016. This payment is independent of the payment to be made to the applicant from the proceeds of sale of the matrimonial home.
9. The support and expense provisions shall be enforceable by the Family Responsibility Office, with a support deduction order to be issued.
10. Unless the support deduction order is withdrawn from the Family Responsibility Office, the amounts payable pursuant to this order shall be enforced by the Director and amounts owing shall be paid to the Director, who shall pay them to the person to whom they are owed.
11. The applicant shall be permitted to apply for or renew the passports of each of Dylan Lloyd Pederson and Nathan Anthony Collette without the consent of the respondent.
12. The applicant shall be permitted to travel outside Canada with Dylan Lloyd Pederson and Nathan Anthony Collette without the consent of the respondent.
13. The restraining order of Justice Phillips dated September 22, 2015 is terminated without prejudice to the rights of the applicant to pursue a restraining order in the future.

[52] The applicant's evidence with respect to the life that she has made and is continuing to make for her boys makes it clear that the applicant is setting an admirable example for her children: this despite the lack of any contribution from the respondent and his problematic behaviour.

[53] It was remarkable that at no point in the proceeding did the applicant demonstrate any animosity towards the respondent. She has for a number of years been picking up the pieces that he left behind for her. She has done so at significant personal financial expense. Yet the applicant's focus has been and clearly remains on meeting the tasks at hand and moving forward to create an increasingly positive environment for her children.

[54] As I did at the conclusion of the trial, I commend the applicant for her diligence and attitude in the pursuit of a good quality of life with and for her children.

Madam Justice Sylvia Corthorn Released: August 15, 2016

COURT FILE NO.: FC-15-1997 DATE: 2016/08/15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: LISA ANNE PEDERSON, Applicant -and- KEVIN MICHAEL COLLETTE, Respondent

**REASONS FOR DECISION** Madam Justice Sylvia Corthorn Released: August 15, 2016