McGarry v. Chevrier, 2016 ONSC 7286

Court File No.: 20874-14 Date: 2016-11-23 Ontario Superior Court of Justice

Between: Christine Lynn McGarry, Applicant – and – Alain Dennis Joseph Chevrier, Respondent

Counsel: T. Farkouh Martin, for the Applicant

Heard: October 28, 2016

Before: Rasaiah J.

REASONS FOR DECISION

OVERVIEW

[1] The Applicant is Christine Lynn McGarry.

[2] The Application claims:

1. An Order that the Applicant shall have custody of the children, Ryann Liane Chevrier, born March 24, 2009 and Graham James Marcel Chevrier, born February 29, 2012.
2. An Order that the Respondent shall pay to the Applicant, child support for the children, Ryann Liane Chevrier, born March 24, 2009 and Graham James Marcel Chevrier, born February 29, 2012, in accordance with his gross annual income and in accordance with the Federal Child Support Guidelines, SOR/97-175, as am. (“Guidelines”) retroactive to the date of separation.
3. An Order that the Respondent shall pay his share of the children’s special and extraordinary expenses on a pro-rata basis.
4. An Order that the Respondent shall have access to the children, Ryann Liane Chevrier, born March 24, 2009 and Graham James Marcel Chevrier, born February 29, 2012, on dates and times to be determined.
5. An Order that the Respondent refrain from consuming any alcohol and/or non-prescription drugs 12 hours prior to and during any periods of access with the children.
6. An Order that the Respondent shall attend and complete random hair follicle drug and alcohol testing on dates to be determined by the applicant.
7. An Order that the Respondent shall pay one-half of the joint line of credit in favour of the Royal Bank of Canada in the amount of $50,000.00, which amount shall be paid within thirty (30) days.
8. An Order restraining the Respondent from depleting any family property under his control and requiring him to preserve all such property until further order of this Court.
9. An Order for the equalization of all net family property pursuant to section 5 of the Family Law Act, R.S.O. 1990 c. F. 3, as am. (“Family Law Act”).
10. An Order that the Respondent shall maintain in force for the benefit of the applicant and the children, a plan of health insurance for extended health care benefits including dental coverage and other coverages as available through his employment.
11. An Order that the Respondent designate the Applicant and the children of the marriage, as irrevocable beneficiaries of his life insurance policy or policies pursuant to section 34(i) of the Family Law Act.
12. Costs on a substantial indemnity basis plus HST.
13. Such further and other relief as this Honourable Court deems just.

[3] The Application came before me for uncontested trial on October 28, 2016. In addition, the Applicant filed an affidavit for uncontested trial on which she relied located at Tab 36 of Volume 4 of the Continuing Record, and an affidavit filed subsequent to the hearing, which I granted leave to file, which contained documents on which she was relying on the issue of equalization that inadvertently counsel had left at her office. In addition various exhibits were filed during the course of the said hearing.

[4] The Respondent is Alain Dennis Joseph Chevrier and he did not participate in the trial.

[5] On September 8, 2016, the Honourable Mr. Justice R. Tremblay ordered that the Respondent’s Answer be struck; that the Respondent shall not be permitted to participate in the case in any way, and that an uncontested trial be scheduled.

BACKGROUND

[6] The parties were married June 16, 2007 and separated February 21, 2014. The parties were divorced by Order of Justice Koke dated October 13, 2015.

[7] There are two children of the marriage, namely Ryann Liane Chevrier, born March 24, 2009, currently age 7 and Graham James Marcel Chevrier, born February 29, 2012, currently age 4 (“children”). Both children live in Sudbury, Ontario with the Applicant. Both children have been in her primary care since the date of separation.

INTERIM ORDER

[8] Justice Koke made an interim order September 4, 2015, ordering that:

1. The applicant shall have custody of the children, Ryann Liane Chevrier, born March 24, 2009 and Graham James Marcel, born February 29, 2012.
2. The respondent shall have supervised access with the children, Ryann Liane Chevrier, born March 24, 2009 and Graham James Marcel Chevrier, born February 29, 2012, to be supervised by Liane Chevrier, or another mutually agreed upon third party as follows: (a) Every second weekend from Friday after school/daycare to Sunday at 7:00 p.m. commencing on September 4, 2015; (b) Additional access as agreed to by the parties on mutually agreed upon dates and times, including during the holidays.
3. The Respondent shall refrain from consuming any alcohol and/or non-prescription drugs twelve hours prior to and during any periods of access with the children.
4. The Respondent shall refrain from hunting with the children during any periods of access with the children.
5. The Respondent shall disclose the address at which he will be residing with the children when the children are in his care.
6. The Respondent shall provide the Applicant with his work schedule as it becomes available.
7. The children shall be returned to the Applicant where the Respondent is unavailable for a period of at least eight (8) hours or longer to care for the children. The Applicant also is to provide the Respondent with access if she is unable to care for the children for eight (8) hours or longer.
8. Commencing on September 1, 2015 and continuing on the first day of each month thereafter, the Respondent shall provide the Applicant with child support for the support of the children, Ryanne Liane Chevrier, born March 24, 2009 and Graham James Marcel Chevrier, born February 29, 2012 in the amount of $742.00 a month based on the Respondent’s imputed income of $49,920.00 and the Federal Child Support Guidelines.
9. The Respondent shall pay his proportionate share being, twenty-eight (28) percent of the children’s special and extraordinary expenses, including but not limited to hockey enrolment fees, medical expenses and child care expenses.
10. The Respondent shall provide a complete copy of his termination letter from Sudbury Integrated Nickel Operations (Glencore) within thirty (30) days.
11. The Respondent shall provide a complete copy of his arbitration settlement from Sudbury Integrated Nickel Operations (Glencore) within 30 (30) days.
12. The Respondent shall provide a complete copy of his discharge papers from the Camillus Centre in Elliot Lake, Ontario within thirty (30) days.
13. The Respondent shall provide proof of attendance in aftercare program(s) since his discharge from the Camillus Centre in Elliot Lake within thirty (30) days.
14. The Respondent shall provide a summary of benefits received, duration of benefits and nature of illness from Great West Life within thirty (30) days.
15. The Respondent shall provide a copy of his employee file from Sudbury Integrated Nickel Operations (Glencore) within thirty (30) days.
16. The Respondent shall provide confirmation of any prescribed pain medication, sleeping medication from January 1, 2012 to present from the Respondent’s family physician being Dr. Desmarais or any other medical professional within thirty (30) days.
17. The Respondent shall provide copies of the notes and records of his counsellor, Allan Chislett from January 1, 2012 to present within thirty (30) days.
18. The Respondent shall provide copies of the notes and records of his counsellor, Dan Keaney within thirty (30) days.
19. The Respondent shall provide copies of any and all drug and alcohol tests completed by Lillian Chevrier, Sudbury Integrated Nickel Operations (Glencore) or any other agency from January 1, 201 to present within thirty (30) days.
20. The Respondent shall provide copies of the notes and records of Rock Haven from October 1, 2014 to present within thirty (30) days.
21. The Respondent shall provide confirmation from the Greater Sudbury Police Service or the Ontario Provincial Police of any criminal record, including CPIC information and/or occurrence reports that have been filed, as well as any charges pending and will execute any required authorization forms to obtain the necessary disclosure within thirty (30) days.
22. The Respondent shall complete an updated Financial Statement, together with confirmation of all sources of income for 2014 and 2015; as well as, confirmation of the income of his spouse, Jodie Messier for the purpose of determining the Respondent’s claim for spousal support within thirty (30) days.
23. The Divorce shall be severed from the corollary issues.
24. The Applicant has fifteen (15) days to file her submissions on costs, following which the Respondent will have fifteen (15) days to reply.
25. This Order is without prejudice for either of the parties to bring a further Motion on the same issues following the investigation and release of a report from the Office of the Children’s Lawyer.
26. Unless this order is withdrawn from the Director’s Office, at the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
27. For as long as child support is paid, the payor and recipient, if applicable must provide updated disclosure to the other party each year, within thirty (3) days of the anniversary of this order, in accordance with section 24.1 of the Federal Child Support Guidelines.

[9] The Respondent applied for leave to appeal the September 4, 2015 Order of Justice Koke which was denied by the Divisional Court December 1, 2015.

CUSTODY AND ACCESS

[10] The Applicant has continued to have custody, and the Respondent, the access as set out in Justice Koke’s September 4, 2015 Order.

[11] The Respondent was arrested October 2, 2015 and charged with refusing to provide a breath sample to police. The Respondent had been out consuming alcohol. This was during a period he had the children in his care for an access weekend. This charge is scheduled for trial in December of 2016.

[12] The Applicant states that the Respondent has not complied with any of the recommendations regarding his dependency issues. She relies on what he has told her, namely that he is not in treatment or counselling.

[13] Pursuant to the Order of Justice R.D. Cornell dated July 9, 2015 requesting that the Office of the Children’s Lawyer provide services in this proceeding for the children, a report was completed. The report was prepared by Jill Anderson, clinician. The report was completed April 12, 2016 and filed on this hearing. Jill Anderson was not called as a witness. The report details the investigation of facts by Jill Anderson. The report outlines substance abuse issues concerning the Respondent and that he was not in any treatment or counselling any longer. The report outlines the willingness of the paternal grandparents to supervise access at that time, and they continue to do so to this date. The Applicant trusts the paternal grandparents will ensure that the children are safe when they are with the Respondent for access.

[14] The recommendations in Jill Anderson’s report are:

Custody: (a) The Applicant, Ms. McGarry shall have full custody of Ryann and Graham.

Access: (a) The access schedule for the Respondent, Mr. Chevrier should be structured and consistent. Mr. Chevrier should have access every other weekend from Friday after school until Sunday night at 7:00 p.m. The access at this time should be supervised by an appropriate thirty party such as the paternal grandparents. Mr. Chevrier shall not consume alcohol during his access with Ryann and Graham or twelve hours prior to exercising access. The risk to the children due to Mr. Chevrier’s substance misuse should be mitigated therefore his access to Ryann and Graham will be supervised. (b) The supervisors of access must be aware of the situation and committed to not allowing Mr. Chevrier’s access with Ryann or Graham if he has been or will be consuming substances. The supervisors of Mr. Chevrier’s access will notify Ms. McGarry if Mr. Chevrier was/is using substances and Ms. McGarry will pick up Ryann and Graham immediately.

Holidays: (a) Shall be shared equally among the parents. Given that Ms. McGarry and Mr. Chevrier do not live in the same community, access with Mr. Chevrier shall occur on Professional Development days. Ms. McGarry and Mr. Chevrier will have to come to a fair access schedule for holidays and summer months however during these times, Mr. Chevrier’s access should be supervised.

Health Care: (a) Mr. Chevrier will have access to Ryann and Graham’s physicians/specialists. Mr. Chevrier will have access to these caregivers so that he can call them direct and obtain the information that he needs, ask questions and get any updates. Ms. McGarry will provide Mr. Chevrier with contact information of any care provider for the children. (b) Ms. McGarry will consult with Mr. Chevrier on any significant/major decisions with respect to Ryann and Graham’s medical needs.

Education: (a) Mr. Chevrier will have direct access to Ryann and Graham’s teachers/schools and visit the schools during parent/teacher nights and speak to school officials directly. Mr. Chevrier can call the schools and find out when activities are occurring and how Ryann and Graham are doing.

Counselling: (a) Mr. Chevrier will participate in counselling and services regarding his substance abuse issues and shall follow all recommendations of his counsellors/service providers. (b) Mr. Chevrier shall participate in personal counselling to address things from the past that are unresolved and to address his ongoing self-destructive behaviour.

Telephone Access: (a) During access at both homes, Ryann and Graham should be encouraged to call the other parent. Ryann and Graham can initiate the call if this works better for the parents. (b) The phone conversations between the parents and the children should be positive and child focused.

Communication: (a) All communication between Ms. McGarry and Mr. Chevrier should be appropriate and child focused. There should be no aggression at any time. (b) If Ms. McGarry and Mr. Chevrier cannot communicate directly, they may try using a log book, a neutral and appropriate third party or Our Family Wizard or Two Homes program.

Other: (a) Anything related to these proceedings as well as negative or demeaning comments about the other parent should not be shared with Ryann and Graham.

[15] The Applicant is seeking and she is consenting to an order in accordance with the recommendations and asking that there be an equal division of holidays as set out in her affidavit sworn October 20, 2016.

[16] The Applicant states that the children have a very close and loving bond with the Respondent and provided that when his access is supervised by the paternal grandparents, Lillian and Robert Chevrier or another mutually agreed upon third party, the risk of harm to the children is reduced. At this point, Lillian and Robert Chevrier are the only mutually agreed upon third parties the Applicant is content with. At one point, the Respondent’s sister was considered but due to the suggestion that she minimizes and/or does not accept that her brother the Respondent has a substance abuse issue, she has not been used or agreed upon as an appropriate supervisor. This is supported by the report of the Office of the Children’s lawyer.

[17] The Applicant and the Respondent do not really communicate, and if and when they do, it is by email. The Applicant has a difficult time getting the Respondent to reply to her communications. This difficulty is noted in the Children’s Lawyer Report by Jill Anderson.

[18] The children have been in the Applicant’s primary care since separation. She has met and continues to meet all of their needs. There was no evidence filed that suggests otherwise. She is assessed by me as being very genuine in wanting to continue and foster the children’s relationship with the Respondent and to keep him informed and involved in their care. Unfortunately, he has chosen not to go beyond exercising his access. The Applicant states that just prior to the hearing, a period of two weeks had passed and she and the children had not heard from the Respondent and in the interests of the children she reached out to call him by telephone for them.

[19] Based on all of the evidence filed, and the above, on which I rely, I find it is in the best interests of the children to remain in the full custody of the Applicant based on the condition, needs, means and circumstances of the children.

[20] I am further satisfied that access ought to remain supervised at this time as requested based on the evidence and that Lillian and Robert Chevrier are appropriate supervisors. The Applicant asks for an additional provision that when the children are to be in or on any kind of vehicle that the paternal grandparents are directly supervising and present for such activities. While the charges that are outstanding against the Respondent are allegations at this point, given the history as outlined in the Children’s Lawyer’s Report and these allegations, I am satisfied that it is in the best interests of the children to grant this request for their safety and well-being.

[21] I am also satisfied that the access that is being suggested is consistent with the best interests of the children given the evidence. The suggested access seems to reflect what is currently being exercised.

[22] I am not satisfied that I should require the Respondent to attend counselling given the highly unlikelihood that he will attend given the evidence of the Applicant. It is my hope that the Respondent will however participate in counselling and services regarding his substance abuse issues and follow all recommendations of his counsellors/service providers, and further that he will participate in personal counselling to address unresolved issues.

[23] As for future communication between the parties, the Applicant is open to other methods than what she is using now, but again, I do not believe based on her evidence that any communication programs would help at this point. At present, the Respondent often does not reply to the Applicant’s emails and/or texts. She often has to contact the Respondent’s mother for information. I see no benefit to making an order for the parties to use communication programs in this case.

[24] I am satisfied given the facts of this case and in particular substance abuse issues that the Respondent be prohibited from having the children with him hunting.

[25] I am satisfied that it is important that the Applicant be kept advised as to where the children will be spending their time with Applicant when they are in his care and if any health issue arises when the children are in the Respondent’s care.

[26] I am satisfied that the Respondent keep the Applicant apprised of his work schedule as it becomes available to determine if he is available to have the children during his parenting time and to discuss, if need be, how the children will be cared for while he is at work.

[27] I am satisfied, and do not find the request to be unreasonable, namely, that if the Respondent is unable to care for the children for a period of eight hours or longer that the children should be returned to the Applicant and that when the Applicant is unable to care for the children for a period of eight hours she should offer the care of the children to the Respondent.

HAIR FOLLICLE TESTING AND PROHIBITION RE CONSUMPTION

[28] The Applicant seeks an Order that that the Respondent attend and complete random hair follicle drug and alcohol testing and that such results be disclosed to the Applicant or to the court if required, and that this be a condition before there is an Order made varying the Order that the Respondent have unsupervised access with the children.

[29] I am not satisfied based on no evidence being filed to the contrary that given the current research and the results of the Mother Risk inquiry that hair follicle testing is reliable. As such, I will not be ordering it. Further, if and when the Respondent seeks to vary the access, the Applicant may raise that issue then. Safety concerns in this case can be met for the children by a provision for supervision.

[30] I am satisfied however based on the evidence that an order is necessary in the best interests and the safety of the children outlining that the Respondent not consume alcohol and/or non-prescription drugs twelve hours before and during the time frames that the children are with him.

CHILD SUPPORT

Ongoing Support

[31] The Applicant is employed full-time as a labour relations and wellness specialist at Glencore in Sudbury.

[32] The Respondent to the best of the Applicant’s knowledge is employed at Flynn Canada Ltd. in Capreol, Ontario. The Applicant obtained this information from the Respondent’s mother Lillian Chevrier. She has no other information. She does not know what he earns or how many hours he works, other than she was told by the Respondent that he works every day.

[33] During an examination for discovery August 13, 2015, the Respondent stated that he works 20 to 40 hours a week and is paid $24 an hour. In the September 4, 2015 order, income was imputed to the Respondent at $49,920. At that time, the Respondent was working at Northern Corrugated Siding.

[34] At the examination for discovery, the Respondent stated that he can do any kind of construction work.

[35] The Respondent has failed to disclose his income and financial circumstances despite orders made requiring him to do so. In addition to the orders regarding financial disclosure made by Justice Koke set out above, I made an order June 30, 2016 requiring the Respondent to provide confirmation of his earnings from all sources and a copy of his income tax return and notice of assessment for 2015. He did not comply.

[36] I find that setting the Respondent’s income for the purposes of ongoing support on the amount as assessed by Justice Koke to be reasonable based on all of the above available information.

[37] On the issue of special expenses, with the Respondent having the said imputed income and the Applicant having income in 2015 of $132,347.53, the Respondent’s share of special and extraordinary expenses going forward is 27% pursuant to pro rata sharing. The Applicant asks that it be left at 28%. The Guidelines provide authority to order an amount to cover all or any portion of the expenses. I am satisfied to order 28% on the basis that it is not an unreasonable request, acknowledging that the expenses claimed are reasonable and necessary in the best interests of the children and reasonable given the parties means and spending pattern prior to the hearing and the Respondent has not disclosed his income. I am also satisfied that given all of the expenses and the costs of caring for the children and the table amount payable, that the expenses exceed those that the Applicant can reasonably cover. This is in my view in part due to the Respondent’s failure to pay Guideline support since separation and to pay his share of the joint line of credit.

[38] As far as financial disclosure is concerned, I find to be reasonable, the Applicant’s request for an order requiring the Respondent to notify her of any change in the Respondent’s employment situation within seven days of same, and to provide that such notice include the name, address, and telephone number of his employer, and his hours of work, and his income, including salary and/or hourly rate. In addition, there should be a yearly exchange of income tax returns and notices of assessment, commencing June 30, 2017.

Retroactive Child Support

[39] The Applicant’s claim was issued August 21, 2014 and asks for support retroactive to the date of separation, February 21, 2014.

[40] The Applicant evidence on this issue is:

(a) In 2014, the Respondent earned income of $80,852.00. Based on the guidelines, he ought to have paid child support from March 1, 2014 to December 1, 2014 in the amount of $1,183.00 a month. Therefore, she claims that the Respondent owes $11,830.00 in child support arrears for the aforesaid period. He did not pay her any support during this time period, save and except contribution to section 7 expenses, namely childcare and extracurricular expenses. (b) Notwithstanding the above, the Applicant does not seek child support for the months during which the Respondent was unemployed and in the addictions treatment program, namely June, July, August and September 2014. As such, she calculates the amount for 2014 would be $7,098.00 ($1,183 per month x 6 months). (c) In 2015, the Respondent received an arbitration settlement from his former employer in the amount of $30,000.00. Based on the payment of $30,000.00 and the Respondent’s earnings of $49,920.00 as imputed by Koke J., the Respondent’s income for 2015, the Applicant claims is $79,920.00. On such income the Respondent ought to have paid child support in the amount of $1,171.00 a month from January 1, 2015 to December 1, 2015. A copy of the arbitration Minutes of Settlement which were signed by the Respondent and Glencore the Respondent’s former employer on March 26, 2015 was filed. (d) The Respondent has paid child support of $742.00 a month from September 1, 2015 to present pursuant to the Order of Koke J., dated September 4, 2015. She calculates that based on $1,171.00 a month owing from January 1, 2015 to August 1, 2015, is $9,368.00 and the difference of $429.00 a month owing on what he paid and ought to have paid from September 1, 2015 to December 1, 2015, amounts to a further $1,716.00. (e) Therefore, the total amount owing to the Applicant for child support arrears for the period from March 1, 2014 to December 1, 2015 is $18,182.00 ($7,098.00 plus $9,368.00 plus $1,716.00).

[41] I accept the submissions of the Applicant based on the Guidelines and the evidence filed. Her claims are within the established principles for retroactive support in terms of the date from which she may be awarded same, the needs of the children, and the obligations the Respondent had to pay support for the children during this time. The Respondent has known what the Applicant has been seeking for some time, namely, since the service date of the application, which was within six months of the separation date. Also in making my Order, I have considered that the Respondent has failed to provide financial disclosure despite the Orders made in respect of same. I know of no hardship that would be caused to the Respondent in being required to pay this amount, and from the evidence which I accept, it appears that he is currently working and living with his two parents, who are both employed.

[42] With respect to the mathematical calculations and amounts, based on the evidence, in respect of what the Applicant is claiming, I find based on the Guidelines, that they are correct and that up to and as of December 31, 2015, the Respondent owes $18,182.00 in child support.

[43] In respect of section 7 expenses, in her sworn Affidavit of November 4, 2016, the Applicant provides confirmation of the expenses that she has incurred for the children, namely, Ryann Liane Chevrier, born March 24, 2009 and Graham James Marcel Chevrier, born February 29, 2012 from December 1, 2015 to October 18, 2016 that the Respondent has not contributed to.

[44] The expenses that the Applicant seeks payment from the Respondent on a pro-rata basis are the children’s childcare expenses and extracurricular activities. The amount that the Applicant seeks is the Respondent’s proportionate share, 28%, being $953.94. I am satisfied this amount should be ordered payable on the same basis as I set out above for ongoing and future section 7 expenses.

LIFE INSURANCE

[45] The Applicant, pursuant to section 34 of the Family Law Act, had been seeking an order requiring the Respondent to designate the Applicant as an irrevocable beneficiary of his policy of life insurance. At the time the Application was commenced the Respondent was employed by Glencore and had a policy of life insurance through his employer. The Respondent however was subsequently terminated from his employment with Glencore.

[46] It is unknown if he currently has a policy of life insurance. The Applicant seeks an order that should the Respondent obtain a policy of life insurance in the future that he designate the Applicant as the irrevocable beneficiary.

[47] I am satisfied that given the ages of the children, this is a situation to make an order in respect of any current policy of life insurance the Respondent may have or future policies he may have through employment, however, given that this order will be for the benefit of the children and their support, the Applicant will be named in trust for the children and the requirement will be for so long as the children are entitled to support.

HEALTH AND DENTAL INSURANCE COVERAGE

[48] With respect to the claim outlined at paragraph 10 of the Application, the Applicant submits that upon the Respondent’s termination from his employer, Glencore, the Respondent no longer has extended health care benefits. However, in the future should the Respondent obtain employment which provides a plan of health insurance for extended health care benefits, including dental coverage and other coverage; the Applicant seeks an Order that the Respondent name the children as dependants on his extended health and dental coverage and provide confirmation of such a designation to the Applicant.

[49] Pursuant to section 6 of the Guidelines, I agree that where coverage is available, in support of the children, the Respondent should acquire it and maintain it for the children.

RBC JOINT LINE OF CREDIT

[50] With respect to the claim outlined at paragraph 7 of the Application, the Applicant submits that on the date of separation, being February 21, 2014 the parties had a joint line of credit in favour of the Royal Bank of Canada account no. 80691462-001. The Applicant has continued to make payments on this joint line of credit and has indicated that she will continue to do so until the balance is paid in full. As such, she is not pursuing an order requiring the Respondent to pay it.

[51] In the equalization of net family property, the Applicant has included the entire value of the line of credit as a debt that she will pay and this debt has been taken into consideration in the calculation of the equalization payment that the Applicant owes the Respondent. Given this and her indication to willingly maintain this debt, it is just and prudent in my view to order that she continue to be solely responsible for this debt and that she take steps to have the Respondent removed from this debt. Further, if she is unable to, in the event the Respondent is called upon to pay any of this debt as a result, from the date of the order, that the issue is one that can be determined by the court if necessary.

EQUALIZATION AND DIVISION OF PROPERTY

[52] The parties’ real property was disposed of shortly after the separation. The Applicant submits that the parties have each retained as their own, their personal investment and bank accounts. There is no further property to divide.

[53] The Applicant concedes that she owes the Respondent an equalization payment.

[54] Two Net Family Property Statements were filed.

[55] The Applicant filed an additional affidavit sworn November 4, 2016, and at the hearing, other documents to support some of the amounts set out in the said net family property statements which I considered.

[56] The two real properties the parties owned were sold and the Applicant advises that the net proceeds were divided equally, namely $63,655.98 and $47,340.79 respectively, as set out by the sale trust statements filed.

[57] The Applicant advised that household contents were divided equally.

[58] Regarding the 2007 Ford Escape, 2008 Honda ATV and the 2014 GMC Sierra, for the vehicles, the Applicant used google to come up with her values and further the purchase documents in respect of the Respondent’s vehicle. Having regard for the purchase document for the GMC filed, and her evidence, I accept those figures as reasonable.

[59] The Boat was sold early after separation and there was a shortfall that neither party paid that she is aware of because the loan was closed. The Applicant could not remember the shortfall but had documentation regarding the loan that was repaid with the proceeds for the sale. The loan was at $27,391.89 at the date of separation. Given the sale and the closing of the loan, the value of the boat was equated by me to the loan for equalization purposes.

[60] The Applicant had no appraisal for the tools. She suggested a value of $5,000.00. She described the tools, the fact that they were high quality (Dewalt) and in good condition, and the amount she was suggesting was a conservative amount based on what he had. I accept this evidence and that it is not unreasonable given what she described.

[61] The jewellery she did not have an appraisal for. This was another conservative amount that she arrived at. She did however testify that they had been appraised at $6,000.00. She testified that she did not know if her jewellery could be sold for this amount. Given her own evidence of what it had been appraised at, I am not satisfied that the figure of $1,000.00 ought to be used for her jewellery and the appraised value ought to be used.

[62] The Applicant filed supporting documentation for savings, securities and pensions, as well as an estimate of tax rate. I am satisfied and accept those figures as accurate.

[63] On the date of separation, the parties had a joint line of credit in favour of the Royal Bank of Canada. The Respondent initially agreed to maintain the payments on the joint line of credit; however, he failed to make the necessary payments and the payments were bounced seven times between March 2015 and July 2015. As the debt was sent to collections, the Applicant has maintained the payments since September 2015. The balance on the line of credit on the date of separation was $49,995.10.

[64] On the date of separation, the Home Buyers Plans repayable balances were for the Applicant $14,668 and for the Respondent $14,664.

[65] The Respondent’s vehicle loan was $43,577.53 on the date of separation.

[66] The Applicant gave evidence that each party had approximately $1,000 in general household items (apartment items) and she had a Honda CRV worth approximately $3,000, jewellery, $9,145.55 in the bank, $6,000 in bonds, $554.71 in an RRSP and $16,963.33 in another RRSP. I accept all of her evidence except for the bonds. The evidence filed indicated that the Applicant received as a gift a bond of $100 per year from 1982 to 2014 each Christmas. At the date of marriage, she said they were worth $6,000. During the marriage, the gift value would have been $700.

[67] I was not made aware of any other assets or liabilities that may or may not have affected equalization, save and except a joint RESP for the benefit of the children that the Applicant continues to contribute to and is content to keep and continue to hold as a joint asset with the Respondent. Part of the funds include the Applicant’s Canada Savings Bonds that were gifted to her by her grandmother. This asset was not included in the equalization given the foregoing.

[68] Based on my calculation of Net Family Property Statement, a copy of which is attached as Schedule “A” to my reasons, the Applicant will owe the Respondent an equalization payment of $9,823.47.

SET-OFF OF CHILD SUPPPORT AND COSTS AGAINST EQUALIZATION

[69] In the case at bar, the Applicant owes an equalization payment to the Respondent and she seeks to set-off against that debt, the child support arrears owed to her and court cost owed to her.

[70] The equalization owed is $11,323.47.

[71] On this issue the Applicant has established that there are three outstanding unpaid cost orders in the total amount of $5,828.11:

(i) Order of the Honourable Mr. Justice J.C. Kent, dated March 14, 2016 in the amount of $4,517.36; (ii) my Order, dated June 30, 2016 in the amount of $310.75; (iii) Order of the Honourable Mr. Justice R.Y. Tremblay, dated September 8, 2016 in the amount of $1,000.00.

[72] I am satisfied it is appropriate to set-off the cost orders, which are debts owed to the Applicant personally, against equalization. After doing this, there remains owing on equalization $5,495.36 ($11,323.47- $5,828.11).

[73] The retroactive child support is $18,182.

[74] I am mindful of the position that child support is the right of the child in terms of the set-off claimed. In this case however, the award will be compensation to the Applicant for the expenses she has already incurred. Further, equalization is closely connected to the breakdown of the marriage. As such, I find it is an equitable manner of dealing with the issues of the child support arrears owed to the Applicant and the debt owed to the Respondent: Starr v. Starr 2008 CarswellOnt 11318 (ONSC).

[75] After setting-off the remaining $5,495.36 owing to the Respondent, there remains $12,868.64 ($18,182 - $5,495.36) in child support arrears and zero owing for equalization.

PREJUDGMENT INTEREST

[76] With respect to the issue of prejudgment interest, the Applicant submits that the applicable prejudgment rate is 0.8%, the rate in effect during the fourth quarter of 2016 when the Affidavit for the Uncontested Trial was filed. The Applicant is seeking prejudgment interest from October 1st, 2016, the date upon which the Applicant served and filed her motion.

[77] Having regard for section 126 of the Courts of Justice Act, R.S.O. 1990 c. C.43, as am., I am prepared to order same on the outstanding child support arrears.

COSTS

[78] On the issue of costs, the Applicant seeks $3,899.39, representing costs on a full indemnity basis from the date when her affidavit for uncontested trial was prepared to the date of completion of the submissions. The total amount of costs is $3,145.00 (plus HST in the amount of $408.85). The Applicant also seeks disbursements, inclusive of HST in the amount of $345.54. A copy of the Bill of Costs was provided.

[79] I am satisfied that I should exercise my discretion to order costs in this case and do so in accordance with Rule 24 of the Family Law Rules, O. Reg. 114/99, as am. on a full indemnity basis. The costs were properly incurred on the steps in and related to the proceeding. The hourly rate for counsel and disbursements incurred are reasonable. Although an uncontested hearing, in addition to the issue of costs, there were six overall issues with sub-issues within those issues that were required to be addressed with proper evidence and submissions. The issues were important to resolve as set out by the facts above, especially those involving and touching the best interests of the children. The Respondent further has not cooperated and/or complied with more than one disclosure order made that may have reduced the time and documents required to be taken and used for this proceeding. His behaviour has been unreasonable. Finally, the Respondent chose to stop participating in the proceeding. The issues required a hearing given the foregoing.

[80] The Applicant did not provide a breakdown of the costs associated with each issue. However the main issues, excluding costs, are categorized as custody, access with related sub-issues issues, child support, health coverage, life insurance designation, and equalization. I relate health coverage and life insurance to the support and maintenance of the children issue. In my view, of these issues, three of the issues were heftier issues, namely access issues, child support issues and equalization of relatively equal work. As such, I relate one third of the costs as legal fees and expenses arising in relation to support and maintenance, namely, $1,299.80.

ORDER

[81] Based on all of the above, I order on a final basis that:

1. The Applicant shall have sole custody of the children, Ryann Liane Chevrier, born March 24, 2009 and Graham James Marcel Chevrier, born February 29, 2012.
2. The Respondent’s income for child support purposes is imputed at $49,920.
3. The Respondent, commencing December 1, 2016 and on the first day of each month thereafter, based on imputed income of $49,920 shall pay to the Applicant, table child support for the children, Ryann Liane Chevrier, born March 24, 2009 and Graham James Marcel Chevrier, born February 29, 2012, in the amount of $742 per month.
4. For the period commencing the date of separation, namely, March 1, 2014 to December 1, 2015, on account of table child support, the Respondent, after set-offs, shall pay to the Applicant the sum of $12,686.64.
5. The Respondent, based on imputed income of $49,920 and the Applicant’s income of $132,347.53, shall pay 28% of the special and extraordinary expenses for the children Ryann Liane Chevrier, born March 24, 2009 and Graham James Marcel Chevrier, born February 29, 2012, as reported by the Applicant to the Family Responsibility Office, which reports shall include true copies of official receipts, for the following items: a. Child care incurred as a result of the Applicant’s employment, illness, disability, or education or training for employment including summer day camp expenses; b. Health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses. c. Extracurricular activities, which currently include gymnastics, soccer, music lessons, and hockey.
6. For the period commencing the date of separation, namely March 1, 2014 to December 1, 2015, on account of special and extraordinary expenses, the Respondent shall pay to the Applicant, the sum of $953.94.
7. The Respondent shall pay pre-judgment interest to the Applicant on the sums of $953.94 and $12,686.64 for the period commencing October 1, 2016 to the date of this order at the rate of 0.8% per annum.
8. The Respondent shall notify the Applicant in writing of any change in his employment situation within 7 days of same, and shall include in that notice the name, address, and telephone number of his employer, his status, his hours of work, and his income, including salary and/or hourly rate.
9. Commencing in 2017, by June 30 each year, the parties shall provide each other with a copy of his or her respective income tax return and notice of assessment for the previous taxation year.
10. The Respondent shall have supervised parenting time with the children, Ryann Liane Chevrier, born March 24, 2009 and Graham James Marcel Chevrier, born February 29, 2012, as follows.

Regular and Holiday Parenting Schedule (a) Every second weekend from Friday after school/daycare to Sunday at 7:00 p.m. commencing of September 4, 2015, which shall be extended as the parties agree to in writing, if the parenting time falls on P.A. days; (b) Christmas Day, from noon to such time and date as the parties agree to in writing, each year. (c) One half of the Christmas holiday period on mutually agreed upon dates and times that the parties agree to in writing. (d) Four non-consecutive weeks of summer vacation to occur in the months of July and August that the parties agree to in writing with the exception that the Applicant mother is to have the children in her care every Labour Day weekend commencing at noon on the Friday of the Labour Day weekend. The Respondent shall advise the Applicant on or before May 30th each year of the weeks he would like to have his summer vacation parenting time. (e) If the Respondent is not already scheduled to have the children, he shall have the children Father’s Day each year commencing at 10:00 a.m. noting that the Applicant will have the children, if she does not already have the children, Mother’s Day each year commencing at 10:00 a.m. (f) One half of the Easter holiday period each year with the first half commencing Thursday after school to Saturday noon and the second half commencing Saturday at noon to Monday at noon as the parties agree in writing. (g) Additional parenting time as the parties agree in writing.

Terms of Supervision (a) Any and all of the Respondent’s parenting time shall be supervised by the paternal grandparents, Lillian and Robert Chevrier. The Applicant shall provide the paternal grandparents with a true copy of this Order. (b) When the children are to be in or on any kind of vehicle or water vessel, the paternal grandparents shall be present at all times for such activities. One or both of the paternal grandparents shall be present when the Respondent is transporting the children in a vehicle or on the water. (c) The Respondent shall not consume alcohol or non-prescription drugs during his access with the children or twelve hours prior to exercising access. (d) The supervisors of access must be committed to stop the Respondent’s access with the children if he has been or will be consuming alcohol and/or drugs not prescribed for his use. The supervisors of the Respondent’s access shall notify the Applicant if the Respondent was/is using alcohol and/or or drugs not prescribed for his use, and the Applicant shall pick up the children immediately. (e) If any health issue arises concerning the children while in the care of the Respondent, the Applicant shall be notified immediately.

Health Care: (a) The Respondent will have access to the children’s physicians/specialists and health care providers. The Respondent will have access to these caregivers in that he can call them directly and/or obtain information that he needs about the children, ask any questions he has concerning the children’s health and/or get any updates. The Applicant will provide the Respondent with the contact information of any health care provider for the children. (b) The Applicant will consult with the Respondent on any significant/major decisions with respect to the children’s medical needs.

Education: The Respondent will have direct access to the children’s teachers/schools and may visit the school(s) during parent/teacher nights and speak to school officials directly regarding any issues concerning the children’s education (how they are doing) and school activities.

Telephone Access: (a) During their time at both homes, the children shall be encouraged to call the other parent and assisted in making calls. The children can initiate the call if this works better for the parties. (b) The phone conversations between the parties and the children should be positive and child focused at all times.

11. Communication: (a) All communication between the parties shall be appropriate and child focused. There shall be no aggression at any time. Anything related to these proceedings as well as negative or demeaning comments about the other parent shall not be communicated to the children or communicated in their presence.

12. The Respondent shall refrain from consuming any alcohol and/or non-prescription drugs twelve hours prior to and during any periods of access with the said children.

13. The Respondent shall refrain from hunting with the children during any parenting time he is exercising with the children.

14. The Respondent shall disclose the address at which he will be residing with the children when the children are in his care.

15. The Respondent keep the Applicant apprised of his work schedule as it becomes available.

16. If the Respondent is unable to care for the children for a period of eight hours or longer the children shall be returned to the Applicant and if the Applicant is unable to care for the children for a period of eight hours or longer she shall offer the care of the children to the Respondent.

17. On account of equalization of all net family property pursuant to section 5 of the Family Law Act¸ after set-offs, the Applicant shall pay to the Respondent the sum of $0 (zero dollars).

18. Given that the Applicant has claimed the full amount of the RBC joint line of credit for purposes of determining equalization, the Applicant shall be solely responsible for the Royal Bank of Canada joint line of credit, account no. 80691462-001 and shall undertake all reasonable efforts to have the Respondent removed from liability in respect of this debt.

19. In the event from the date of this Order, that the Respondent pays directly or pays by way of execution or garnishment, any of the said joint line of credit in favour of the Royal Bank of Canada that the Applicant agreed to be responsible for and pay and is here-from responsible to pay in accordance with the above paragraph, the Respondent may apply to the Court within the applicable limitation period, for resolution of that issue, if the parties are not able to resolve it themselves.

20. Except as otherwise set out in this Order, there shall be no further division of property or payments to either party on account of equalization and division of property, and each party shall retain that property that is presently in their respective possession free and clear of any claim or interest of the other.

21. For so long as support is payable for the said children, the Respondent shall maintain for the benefit of the children, any medical and/or dental insurance coverage that is available to him through his present or future employment, as and when they are available to him through his said employment. For each employment, within 15 days, he shall notify the Applicant when such coverage is available, the particulars of the available coverage, and proof that he has enrolled the children for the coverage. He will cooperate in providing, executing and submitting all required documents for any eligible claims the Applicant seeks to submit on behalf of the children in a timely manner. The Applicant will be responsible for completing the documents required for the claims and attaching the required receipts and/or estimates.

22. Unless otherwise provided by further order, for so long as support is payable for one or both of the children, the Respondent shall designate solely, as beneficiary irrevocably, the Applicant, with the designation to be “Christine Lynn McGarry in trust for the children, Ryann Liane Chevrier, born March 24, 2009 and Graham James Marcel Chevrier, born February 29, 2012, for any and all policy/policies of life insurance that are available to him through his present or future employment, as and when such policy/policies are available to him through his said employment. For each employment, he shall within 15 days notify the Applicant when such coverage is available, the particulars of the available coverage, and proof that he has designated the Applicant for the coverage as required by this Order.

23. For costs, namely legal fees and other expenses arising in relation to seeking support, the Respondent shall pay to the Applicant the sum of $1,299.80 inclusive of H.S.T.

24. For costs on the balance of the issues, the Respondent shall pay to the Applicant the sum of $2,599.59 inclusive of H.S.T.

25. The balance of the claims are hereby dismissed.

Rasaiah J.

Released: November 23, 2016