Court File and Parties
COURT FILE NO.: 3796/17 DATE: 20170529 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CHERYL CASWELL Applicant – and – DARRIN THOMSEN Respondent
COUNSEL: T. Ross, for the Applicant For Self
HEARD: May 26, 2017
Reasons for Decision on Uncontested Trial
RASAIAH J.
BACKGROUND
[1] The applicant is currently age 38. She is an office manager at Caswell Concrete Products in Sault Ste. Marie. She resides in Sault Ste. Marie.
[2] The respondent is currently age 39. He resides in Sault Ste. Marie.
[3] The parties became involved in a relationship and started to live together on or about September of 2013. They separated on February 19, 2016. They have one child together, namely Elizabeth Catherine Thomsen, born July 15, 2014 (“the child”). She is currently 2 years old.
[4] The applicant prepared and served an application dated March 7, 2017, claiming relief pertaining to custody, access, child support, health and dental coverage, life insurance and financial disclosure, which application was filed March 17, 2017 at Tab 1 of the Continuing Record, volume one (“C.R. Vol. 1”).
[5] The affidavit of service of Roger Cote, process server, sworn March 20, 2017, filed March 28, 2017 indicates that the respondent was served by special service, namely, a copy was left with him personally, on March 19, 2017 at 3:55 p.m. of:
(a) applicant’s application dated March 7, 2017; (b) applicant’s affidavit 35.1 dated March 7, 2017; (c) applicant’s financial statement sworn March 7, 2017; (d) table of contents; (e) MIPs notice; and (f) a blank answer, affidavit 35.1 and financial statement.
[6] The court file reflects that both the respondent and applicant attended the mandatory information program on April 18, 2017.
[7] The respondent, however, did not file any responding materials and did not contact either the applicant or applicant’s counsel.
[8] The time for filing an answer expired.
[9] The consequences as set out in paragraphs 1 to 4 of subrule 1(8.4) of the Family Law Rules, O. Reg. 114/99 (“Rules”) apply, with necessary changes, if a respondent does not serve and file and answer. The consequences are that, the respondent is not entitled to any further notice of steps in the case (subject to subrule 25(13) (service of order)); the respondent is not entitled to participate in the case in any way; the court may deal with the case in the respondent’s absence; and a date may be set for an uncontested trial of the case, on request, pursuant to rule 17.
[10] The applicant requested an uncontested trial. The uncontested trial was set and heard by me on May 26, 2017.
THE EVIDENCE
[11] At the hearing, the applicant testified, and in addition, relied on her Form 35.1, her financial statement sworn March 7, 2017, filed March 17, 2017; and her affidavit, sworn May 23, 2017, for uncontested trial; all of which was filed in the C.R. Vol. 1. Lastly, she filed a copy of the child’s birth certificate.
ANALYSIS
Paternity
[12] I considered paternity in accordance with section 8 of Children’s Law Reform Act, R.S.O. 1990, c.C12, as am. (“Children’s Law Reform Act”).
[13] The applicant testified that she and the respondent were residing together at the time of the child’s birth. While she did not know if she had the long form birth certificate, she believes the respondent certified the child as his and signed the paperwork for the birth certificate. In addition, he has not denied the child is his child. In fact, he has and continues to exercise access to the child and pay support for the child.
Custody and Access
[14] I considered the best interests of the children and section 24 of the Children’s Law Reform Act. I am satisfied that it is not contrary to the best interests of the child to make an order providing that the parties share joint custody of the child with the primary residence of the child to be with the applicant, and that the respondent have the suggested access.
[15] The applicant described a close and loving relationship between herself and the child.
[16] The applicant has been the primary caregiver of the child since her birth; she is the one that takes the child to all of her appointments and ensures that her every day needs are met; the child has not been out of her care for more than a few days; and the child is thriving in her care.
[17] The applicant is stable. She is employed and works full-time. She earns approximately $37,000 annually. She states that she plans to continue to live at the address set out in her form 35.1. The applicant’s mother, Angela Elizabeth Dunbar, age 65, lives with the applicant. There is no one else who resides in the home. She has been living there since October of 2016.
[18] The applicant plans to stay in Sault Ste. Marie and to continue to work full-time.
[19] The child is in daycare at the YMCA when she works.
[20] The child does not have any special needs.
[21] The applicant states that she is able and willing to provide the child with all the guidance, education, and the necessaries of life she needs.
[22] The applicant will have support from her mother in caring for the child. None of her mother’s children have ever been in the care of a children’s aid society. Her mother has not been found guilty of a criminal offence and is not currently facing criminal charges.
[23] In addition to her mother, in caring for the child, the applicant will have the support of her father Donald Caswell, Monique Lebel, and her brother John Caswell.
[24] The applicant stated that at no time has she ever engaged in violence or abuse against a spouse, the respondent, any member of her household or any child.
[25] While the applicant and the respondent do not really communicate because the applicant feels intimidated by the respondent, her position presented to the court, was that she is prepared to share joint custody and consult with the respondent. She is not seeking sole custody but asks for authority in making decisions if the parties cannot agree. This is reasonable based on the foregoing, and that she is the primary caregiver of the child.
[26] The applicant’s plan is for the child to continue to have regular contact with the respondent as may be ordered and she presented a reasonable parenting schedule for regular parenting time as well as holiday parenting time.
[27] The applicant did not express any concerns regarding the respondent’s care of the child.
[28] The respondent now resides with his current girlfriend and his girlfriend’s child in another home in Sault Ste. Marie on Dacey Road.
[29] The respondent is exercising access to the child on alternate weekends from Friday after daycare to Monday prior to daycare; and sometimes the respondent exercises access to the child midweek.
Change of Name of Child
[30] The applicant is seeking to change the name of the child to Elizabeth Catherine Caswell-Thomsen.
[31] I considered section 5 of the Change of Name Act, R.S.O. 1990, c. C.7 as am. (“Change of Name Act”).
[32] The applicant is seeking the change because she wants the child’s name to acknowledge both families, to honour both families.
[33] The applicant does not believe that changing the child’s name would have any adverse effect on the child. The child is young and does not yet even appreciate what her last name is. The applicant and the child are just now working on the child learning to spell her first name.
[34] The respondent has failed to respond to this application and it is unknown as to whether or not he consents to a name change.
[35] I received no evidence indicating that it would not be in the best interests of the child to undergo a change in her surname.
[36] On the basis of the above, I am prepared to grant that request.
Child Support:
Financial Circumstances of the Parties
[37] The applicant’s financial statement indicates that she currently earns $2,568 per month and her statement included the following attachments:
(a) pay stubs for pay period ending 1/28/2017 and 02/11/2017 from Caswell Concrete Products indicating $1,185.60 gross income for each pay; (b) 2016 T4 from Caswell Concrete Products, indicating box 14 income of $43,939; and (c) Canada Revenue Agency Printouts for 2013, 2014 and 2015 indicating line 150 income of $40,969, $30,233, and $49,740 respectively.
[38] The applicant has month expenses of $3,409.27 as set out in her financial statement. None of the expenses appear to be exorbitant.
[39] The applicant has an ownership interest in 128 Leo Avenue, Sault Ste. Marie and no debts per her financial statement.
[40] The respondent was paying support to the applicant for the child in the amount of $400 per month until April of 2017. He paid the support by way of e-transfer payments. In April of 2017, the respondent unilaterally changed the payment to $226 per month. The respondent stated that the change was based on his income but the applicant is unable to confirm the respondent’s claims because he did not provided her with any financial information or an explanation.
[41] The respondent has chosen not to respond to the application.
[42] In addition, the respondent has not provided any disclosure of his income.
[43] The applicant states that when she commenced her application, the respondent was an operations manager at Wacky Wings in Sault Ste. Marie. She believes a manager would receive at least $40,000 annually. Prior to Wacky Wings, he worked at North Side Toyota for approximately 1 year. Prior to North Side Toyota he was employed at Prouse Motors for approximately 9 years where he earned $60,000 annually. She is aware of this income information because they were living together and when they filed their tax returns together, she saw this information on his tax returns. At present, the applicant believes that the respondent may be working “under the table” installing flooring. She acknowledges the source of this information as hearsay.
[44] It is clear to me that the respondent has at least one source of income at present because he is paying the applicant some support for the child. The applicant has not communicated with the respondent regarding his income because of their poor relationship. She has not asked the respondent about his income and counsel submitted that it was hoped that through the court process, the respondent would have come forward and disclosed his income as required.
[45] The applicant, counsel submits, in an effort to be reasonable, is suggesting that the respondent is capable of earning $50,000 annually given the work history and income she is aware of. She further states that the respondent should be able to gain employment based on his years of experience in the automotive industry. He also has restaurant management experience.
[46] In terms of the respondent’s other financial circumstances, the applicant states that after the mortgage payments fell into arrears on their jointly owned residential property, the applicant states that the respondent declared bankruptcy. This occurred in 2017. On this basis, the applicant believes that the respondent would not have any significant amount of debts which would cause him hardship with respect to paying child support.
[47] I considered sections 3, 15, 16 and 19 of the Child Support Guidelines, O. Reg. 391/97 (“Guidelines”).
[48] Based on the history of the respondent’s employment and his lack of evidence suggesting inability to work or achieve the historically earned income level he earned, as set out above, I am satisfied income should be imputed to the respondent and in the amount of $50,000. This amount is reasonable based on the foregoing. Further, the respondent has failed to provide income information when under a legal obligation to do so.
Table Support
[49] Based on imputed income of $50,000, the monthly table support payable for one child based on the Guidelines is $450. For the months of April and May of 2017, the respondent paid $226 in each month. As such, I will be accounting for that in the ultimate order made as it was not suggested otherwise.
Section 7 Expenses
[50] The applicant would like the respondent to pay one half of the child’s Guidelines section 7 expenses. Those expenses are daycare, swimming and gymnastics. The child is currently in daycare Monday through Friday from 8:30 a.m. to 4:30 p.m. The daycare bills each party separately and each party pays their respective invoice directly to the daycare. She pays $371.78 monthly per her financial statement. The swimming is approximately $75 per 10 sessions. The respondent pays one half of this cost. The gymnastics is approximately $150 to $160 for a ten week course. The respondent pays one half of this cost.
[51] I am satisfied that these expenses are reasonable and necessary to incur in the best interests of the child. Further it is reasonable to infer that the respondent does not take issue with these expenses being such, because he voluntarily is paying one half of the cost of these expenses directly.
[52] The applicant while entitled to claim a higher percentage of contribution towards these expenses is content with sharing them equally and this arrangement she views as reasonable and the costs (and accordingly the needs of the child) are met with this arrangement without any issue. On this basis, I am content to order as she asks.
Health and Dental Coverage
[53] The applicant would like the respondent to ensure that the child is maintained on any extended health, medical and dental benefits that the respondent may have now or in the future. At present, she does not know if he has a plan on which the child can be placed.
[54] I agree that if he has such a plan or acquires such a plan that the child should be maintained as support for the child.
Life Insurance
[55] The applicant would like the respondent to name the child as beneficiary on any life insurance policies that he may own. However, she is not aware of any life insurance policies he has.
[56] I am not prepared to order what she is asking given section 34 of the Family Law Act, R.S.O. 1990, c. F.3, however, if he has a life insurance policy, I am prepared to make an order that the child be named as irrevocable beneficiary, and further, that in the event he obtains life insurance that he notify the applicant in respect of same.
Costs
[57] The applicant seeks $2,500 in costs based on a substantial indemnity basis.
[58] I considered Rule 24 of the Family Law Rules, O. Reg. 114/99 (“Rules”) and section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as am. (“Courts of Justice Act”).
[59] The parties separated February 19, 2016. The applicant attempted to negotiate a resolution of the issues arising from the breakdown of the parties’ relationship for 9 months after separation. She commenced her application because she was unable to reach resolution with the respondent.
[60] The respondent was served with the application and he chose not to respond, which resulted in this matter proceeding to an uncontested trial.
[61] An uncontested trial was necessary for the issues, namely, the issue of support and the issue of custody. The court is obliged to ensure that the interests of a child are met.
[62] The applicant was successful on most of the relief claimed.
[63] The rate charged by counsel, who has eleven years of experience, is $200 per hour. I find this is reasonable.
[64] The bill of cost submitted May 29, 2017 reflects time that in my view is reasonably and properly associated with the issues and steps in the proceeding, except for correspondence and telephone calls with previous counsel, which was not explained.
[65] Based on the above, I am satisfied that I should exercise my discretion to order costs, and balancing all of the above that a reasonable fair amount in all of the circumstances is $2,000.
[66] Further, I am satisfied that the majority of the costs incurred with respect to this matter were devoted to the issue of support and place that at 75%.
ORDER
[67] Based on all of the above, I hereby order:
The applicant and respondent shall have joint shared custody of the child Elizabeth Catherine Thomsen born July 13, 2014 (“the child”). The primary residence of the child shall be with the applicant.
The applicant shall consult with the respondent on any and all major decisions affecting the said child’s education, health and general welfare. All decisions regarding the child’s health, education and general welfare shall be made jointly and if a decision cannot be made between the parties, the applicant shall be permitted to make the decision.
The following shall be the parenting schedule for the child with the following terms and conditions: (a) The respondent shall have the care of the child on alternate weekends from Friday after daycare/school until Monday before daycare/school; (b) The respondent shall have the care of the child each Wednesday from after daycare/school until 7:00 p.m. (c) The parties shall divide the holidays and special events in the child’s life as follows: a. Commencing in 2017 and each odd numbered year thereafter, the respondent shall have the child on Christmas Eve from 3:00 p.m. until Christmas day at 2:00 p.m. The applicant shall have the child on Christmas Day at 2:00 p.m.; b. Commencing in 2018 and each even numbered year thereafter, the applicant shall have the child on Christmas Eve from 3:00 p.m. until Christmas Day at 2:00 p.m., the respondent shall have the child on Christmas Day at 2:00 p.m. until Boxing Day at 7:00 p.m. c. Commencing in 2017 and each odd numbered year thereafter the applicant shall have the child over the Easter weekend until Saturday at 7:00 p.m. The respondent shall have the child in his care on Saturday at 2:00 p.m. until Monday at 7:00 p.m. d. Commencing in 2018 and each even numbered year thereafter the respondent shall have the child over the Easter weekend from Thursday after school until Saturday at 7:00 p.m. The applicant shall have the child in her care on Saturday at 7:00 p.m. e. Commencing in 2017 and each odd numbered year thereafter the applicant shall have the child over the Thanksgiving weekend from Friday after school until Monday at 7:00 p.m. f. Commencing in 2018 and each even numbered year thereafter the respondent shall have the child over the Thanksgiving weekend from Friday after school until Monday at 7:00 p.m. g. Commencing in 2017 and each odd numbered year thereafter the applicant shall have the child for Halloween. h. Commencing in 2018 and each even numbered year thereafter the respondent shall have the child for Halloween from after school until 8:00 p.m. i. Access for Father’s Day for the respondent should it not fall on his weekend, shall be from Sunday at 10:00 a.m. until 7:00 p.m. j. Access for Mother’s Day for the applicant should it not fall on her weekend, shall be from Sunday at 10:00 a.m. until 7:00 p.m. k. Commencing in 2019 and each odd numbered year thereafter the applicant shall have the child for the March Break. l. Commencing in 2020 and each even numbered year thereafter the respondent shall have the child for the March Break from the release of school until the Monday morning before school. m. Once the child reaches school age, each year, the respondent shall have the child over the summer for two non-consecutive weeks in July and two non-consecutive weeks in August. Except that the respondent may not choose the week that includes the July 1st holiday each year or the week in August prior to school commencing. The respondent shall notify the applicant each year by April 1st in writing as to which weeks he would like to have the child in his care. If the respondent fails to do so, the applicant will provide the respondent with the weeks the he is to have the child in his care. Prior to the child reaching school age access shall continue as set out in subparagraphs 3 (a) and 3 (b) above. n. Except as otherwise set out in subparagraph 3 (c)(m) herein, the above holiday and special events access schedule shall supersede the access as set out in subparagraphs 3 (a) and 3 (b). (d) In the event that the child is involved in any extracurricular activities each party shall ensure that the child is present for the activity when the child is in his or her care. (e) The respondent shall have such further and other access as the parties may agree to in writing.
Commencing June 1, 2017 and on the first day of each month thereafter, the respondent, based on imputed income for 2016 of $50,000, shall pay child support to the applicant for the child, Elizabeth Thomsen, born July 15, 2014, in the amount of $450.00 per month.
For the period commencing April 1, 2017 and ending May 31, 2017, the respondent, based on imputed income for 2016 of $50,000, shall pay support to the applicant for the child, Elizabeth Thomsen, born July 15, 2014, the amount of $448.00.
Commencing in 2018, by June 1st each year, for so long as child support is payable for the child, the respondent shall provide to the applicant, a copy of his Tax Return including all attachments for the previous taxation year, and a copy of his Notice of Assessment for the previous taxation year. For so long as section 7 expenses are payable for the child, commencing in 2018, by June 1st each year, the applicant shall provide to the respondent, a copy of her Tax Return including all attachments for the previous taxation year, and a copy of her Notice of Assessment for the previous taxation year.
The respondent shall pay fifty percent of the cost of the child’s daycare, gymnastics and swimming expenses until further court order.
The respondent shall maintain the child as a beneficiary on any extended health, medical and dental benefits that he may now have or in the future acquire through his employment. If he currently has such coverage he shall advise the applicant and provide her with particulars and proof that the child is named on the plan within 14 days of this order. If he does not currently have such coverage, he shall advise the applicant within 10 days of receipt of such coverage and provide her with the particulars and proof that the child is named on the plan.
The respondent shall advise the applicant as to whether or not he currently has a life insurance policy (privately and/or through employment) within 14 days of the date of this order. If the respondent currently has a policy, he shall name the child as irrevocable beneficiary of same for so long as he is required to pay support for the child. If the respondent does not currently have a life insurance policy, and obtains one (privately and/or through employment) during the time is he still obligated to pay support for the child, he shall notify the applicant in writing within 10 days of such policy being obtained and provide her with the particulars. The applicant may thereafter, if the respondent does not agree to name the child as irrevocable beneficiary, apply to the court for a further order.
The applicant shall be permitted to change the child’s name to Elizabeth Catherine Caswell-Thomsen on her birth registration and the respondent’s consent to do so is hereby dispensed with.
The respondent shall pay to the applicant costs in the amount of $1,500 inclusive of HST and disbursements, representing fees and expenses arising in relation to application for support, payable to Tracy A. Ross in trust, on or before July 31, 2017.
The respondent shall pay the applicant costs in the amount of $500 inclusive of HST and disbursements, representing the costs related to the balance of the claims in the application, payable to Tracy A. Ross in trust, on or before July 31, 2017.
A copy of this order shall be served on the respondent by applicant’s counsel within 7 days of the date of this order, and an affidavit of service thereafter shall be prepared and filed in the continuing record.
Rasaiah J.
Released: May 29, 2017
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: CHERYL CASWELL - and – DARRIN THOMSEN REASONS FOR DECISION ON UNCONTESTED TRIAL Rasaiah J. Released: May 29, 2017