Parks v. Gordon, 2016 ONSC 817

Superior Court of Justice

Citation: Parks v. Gordon, 2016 ONSC 817 Court File No.: FS-11-72343-00 Date: 2016-02-01

Between: Elaine Rosealee Parks (Applicant)

• and - Glenford Gordon (Respondent)

Heard: February 1, 2016

Counsel: Self-represented, for the Applicant Self-represented, for the Respondent

Endorsement

Van Melle, J.

1The applicant, Elaine Parks, brought an Application in June 2011 for a divorce, custody of five children and support for the children. The respondent, Glenford Gordon, did not respond to the Application and Ms. Parks obtained a default judgment from Justice Skarika. Justice Skarika granted the divorce, gave Ms. Parks custody of Andre Christopher Gordon, born May 26, 1999, Tyrrell Jaleel Gordon, born December 29, 2000 and Keshawana Kadejha Gordon, born August 6, 2002.

2Justice Skarika also ordered Mr. Gordon to pay monthly support for the five children of the marriage in the amount of $2,272 per month commencing January 1, 2013, based on an imputed income of $89,748. Mr. Gordon was also ordered to pay retroactive child support from July 2011 to December 2012 in the amount of $31,000 payable forthwith and costs of $3,000.00.

3When Mr. Gordon learned of the order, he moved promptly to set it aside. Justice Skarika held:

Upon reviewing material and submissions of Counsel, Maslic v. Maslic 2012 ONSC 6271, Ont. SCJ is applicable. The three criteria outlined in paragraph 39 have been met – the respondent moved quickly to set aside the default judgment, a reasonable explanation was provided for the default and there is an arguable case on the merits regarding child custody. Accordingly, the second paragraph 1 of my final judgment will be set aside. [The first paragraph 1 granted the divorce.] On an interim, without prejudice basis, the applicant Elaine Parks is to have custody of Andre Gordon, Tyrrell Gordon, Keshawana Gordon, Venetta Gordon with the respondent to have reasonable access. Kionna Gordon has moved out and is no longer a child of the marriage. The remainder of the order dated December 17, 2012 should remain intact as the moving party has not established facts to support the conclusion that there is an arguable case on the merits and the respondent accordingly fails to meet criteria 3 of paragraph 39 of the Maslic and Maslic case. Costs awarded to the applicant fixed at $1,000.00 to be paid forthwith.

4After the setting aside of the paragraph dealing with custody, Mr. Gordon filed an Answer claiming joint custody; an order that he pay support for 3 children in accordance with his income; equalization and an order that he have an interest in property located at 33 Game Creek Crescent.

5Regarding the property claims Mr. Gordon advised that he was not pursuing those and in any event he declared bankruptcy in 2013 or 2014 so even if he were successful in his property claims, any amounts would have to be paid to his Trustee in Bankruptcy.

6Ms. Parks is agreeable to Mr. Gordon having joint custody of the children. He has been an involved father, taking them to their activities and seeing them almost daily.

7Mr. Gordon asks today that he be refunded the retroactive amount awarded to Ms. Parks by Justice Skarika. He was under the impression that the whole of Justice Skarika’s Judgment had been set aside, not just the portion dealing with custody. I explained to Mr. Gordon that Justice Skarika specifically held that the portions of the Judgment dealing with support were to remain in effect. Thus the retroactive support award of $31,000.00 remains in place. Mr. Gordon submitted that he had made many payments on behalf of the children including utility payments while he shared Ms. Parks residence (it does not appear that the parties had in fact reconciled and thus Ms. Parks date of separation of 2002 appears to be accurate). While I believe that Mr. Gordon may have made payments toward these accounts, I also accept that he did not pay child support before July 2011 despite a long standing separation. Therefore it is likely that had Mr. Gordon been in a position to challenge that portion of Justice Skarika’s Judgment he would not have been successful. As well, any amounts paid would have been considered by Justice Skarika on the motion to set aside the default Judgment.

8Mr. Gordon brought his Notices of Assessment today and they are Exhibit 1 to this trial. His income has been as follows:

2012 $107,409 2013 $111,623 2014 $ 62,375 2015 $ 86,227

9It is arguable that as of August 27, 2013 the support should have been for four children and not five. But based on Mr. Gordon’s 2013 income the payment would have been $2412 which is more than Mr. Gordon was paying in any event.

10Mr. Gordon testified that in 2009 and in 2015 he was out of the workforce for 5 to 6 weeks on an unpaid basis, either due to sickness or to go to Jamaica to care for sick relatives. He said that he leaves on February 3, 2016 and will be away for another 5 weeks or so, unpaid, to care for his sick aunt in Jamaica.

11The parties are agreed that Andre will live with his father as soon as his father returns from Jamaica. In that regard Mr. Gordon wants support from Ms. Parks for Andre.

12Ms. Parks asks for ongoing support for Veneeta who is in school in Montreal, but retains a home with her mother; Tyrrell and Keshawana.

13Ms. Parks is employed as a Registered Nurse at Brampton Civic Hospital and earns $95,607. She has two part time jobs as well. Ms. Parks has had the primary responsibility for the children for all these years and has worked hard to support them. In assessing support for Andre I find that this is one of those very rare cases where only her income from her main job should be considered. Normally in a situation of shared custody, the Child Support Guidelines mandate a set-off. However, where as in this case, Ms. Parks has borne the brunt of the financial responsibility it seems to me to make more sense to calculate support for three children and divide that amount accordingly.

14An Order will issue as follows:

1. The parties will have joint custody of the children of the marriage;
2. Mr. Gordon will pay support for three children, Venetta, Tyrrell and Keshawana in the amount of $1,625 per month based on his projected income of $86,000 commencing February 1, 2016;
3. Ms. Parks will pay support for Andre in the amount of $592 per month. based on her income of $95,607 from her employment at Brampton Civic Hospital commencing April 1, 2016 as long as Andre is physically residing with his father at that time. (This amount has been calculated using the amount of support for three children and dividing by three);
4. Support Deduction Order to issue;
5. Mr. Gordon’s motion to set aside the retroactive support award and for reimbursement of the lump sum is dismissed;
6. Neither party will pay to the other any sum of money on account of equalization;
7. The Family Responsibility Office is directed to enforce the payment of the retroactive lump sum award of Justice Skarika’s Judgment if it is not doing so already;
8. The parties will exchange Income Tax Returns and Notices of Assessment by June 15 in each year so that child support can be recalculated if necessary. If Mr. Gordon takes unpaid leave in the year he will be attributed income to him for that period of time.

15No order as to costs.

Van Melle, J.