Court File and Parties
COURT FILE NO.: FS-12-00074595 DATE: 2017-07-11 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MAXWELL BEECH Applicant – and – RASHIDA ASIA ROUSE Respondent
Counsel: Self Represented, for the Applicant Areesha Zubair, for the Respondent
HEARD: June 5, 6, 8, 2017
Reasons for Judgment
VAN MELLE J.
1This family law proceeding was scheduled to be heard as an uncontested trial on June 5, 2017. There have been a number of issues with this proceeding. Maxwell Beech issued the application on March 29, 2012. On May 23, 2012 Justice Lemon granted a divorce along with corollary relief. Subsequently, and on consent, the corollary relief portion of Justice Lemon’s order was set aside. Amanda Borck, Mr. Beech’s wife, was added as a party and then subsequently allowed out of the action. Various orders for disclosure were made. Sporadic disclosure was in fact made but on November 27, 2015, Justice Snowie made a further order for disclosure against Maxwell Beech and in addition, stated at paragraph 4:
If the disclosure specified under item (2) and (3) above are not satisfied, the applicant’s pleading shall be automatically struck without further notice and the matter shall proceed as an unopposed trial.
Paragraph 2 specified:
The Applicant shall, within 30 days from November 27, 2015, provide the following disclosures:
- An up-to-date sworn financial statement with supporting documents for all figures;
- All personal and business income tax returns with all attachments and notices of assessments for 2014, 2013, 2012 for both;
- All bank accounts statements, including but not limited to the following:
- TD Canada Trust business account;
- TD Bank personal account;
- President Choice accounts; and
- Online Tangerine accounts;
- All credit card monthly statements for the last three years; and
- All income amounts and all income sources from 2012 up to the present.
Paragraph 3 stipulated:
The Respondent, Amanda Borck shall, within 30 days from November 27, 2015, also provide her personal and business income tax returns with all attachments and her notices of assessments from 2012 up to the present.
2On December 20, 2016, pursuant to an ex-parte motion, Justice Andre dismissed Maxwell Beech’s application and ordered that Ms. Rouse could proceed to an uncontested trial.
3At the commencement of trial, Maxwell Beech did in fact attend. After some discussion, it transpired that he had in fact complied for the most part with Justice Snowie’s order. Amanda Borck had also complied with Justice Snowie’s order.
4There are two issues with respect to Justice Snowie’s and Justice Andre’s orders. The first is that Justice Andre’s order does not comply with the requirements set out by the Court of Appeal in Kovachis v. Kovachis, 2013 ONCA 663. The second issue is that there remain some child related issues to be dealt with and normally pleadings are not struck in regard to those issues.
5In Kovachis, Laskin J.A. stated at paragraph 3:
Striking Kovachis’ pleadings was not warranted in light of the following four related considerations:
- The substantial disclosure Kovachis had already made;
- The failure of the motion judge to itemize what disclosure Kovachis had not provided;
- The absence of any evidence that Kovachis wilfully disobeyed any of the previous disclosure orders; and
- Proportionality, now a fundamental principle of all civil proceedings in Ontario.
6With input from counsel for Ms. Rouse, it was decided that we would proceed with the participation of Maxwell Beech. It was preferable to have Mr. Beech’s involvement, rather than make an order pursuant to an uncontested trial and then have Mr. Beech appeal or move to set the order aside. As well, once the trial commenced it became apparent that Ms. Rouse’s affidavit in support of an uncontested trial was not as fulsome as it might have been. I attribute no responsibility to Ms. Rouse’s counsel in this regard. Ms. Zubair acquitted herself impeccably throughout the litigation and trial.
7Court also adjourned for the afternoon of June 6 and for all of June 7 to permit Maxwell Beech an opportunity to find and produce some additional documentation.
8At trial, Ms. Rouse claimed spousal support, child support and dispensation with Mr. Beech’s consent to passport applications for the children, and Ms. Rouse’s ability to travel with them outside of Canada. There is already an order granting Ms. Rouse final custody of the children. Ms. Rouse sought as well an order that Mr. Beech stood in loco parentis to her two daughters from a previous relationship and support for her daughters flowing from that finding.
Background Facts
9Mr. Beech and Ms. Rouse are both 42 years of age. They met in church and were married April 28th, 2005. A certificate of divorce was issued on May 23rd, 2012.
10There are two biological children of the marriage, namely: Jirah Beech, born February 9, 2008, and Asia Adaiah, (“April”) Beech, born June 22, 2006.
11Jirah and April reside with Ms. Rouse who has sole custody of them pursuant to a final order of this court dated December 2, 2014.
12Ms. Rouse has two daughters from a previous relationship, Neteesha Serena Rouse, born May 20, 1993 and TeRhaya Isis Rouse, born February 6, 1996.
13Mr. Beech has two sons from previous relationships: Maxwell Immanuel Beech, born March 28, 2003 and Daniel Day Shaon Beech, born October 3, 2005.
14Neteesha and TeRhaya lived with their mother and Mr. Beech during the times the parties cohabited. Ms. Rouse claims that Mr. Beech stood as a parent towards these children. They currently reside with Ms. Rouse and extended family.
15Ms. Rouse enjoyed a close relationship with Immanuel, who appears to have resided for much of the time with her and Mr. Beech when they cohabited. Mr. Beech also has full-time care of his son Daniel. Neither party has paid the other child support for Neteesha, TeRhaya, Immanuel or Daniel. During the marriage, Mr. Beech was self-employed operating a business that sells and installs blinds.
16In 2013, Mr. Beech married Amanda Borck. They separated in November 2016.
Issues
(a) What access should Mr. Beech have to Jirah and April? (b) Should income be imputed to Mr. Beech and if so, how much? (c) How much should Mr. Beech pay for the support of Jirah and April? (d) Is Ms. Rouse entitled to retroactive child support? (e) Is Ms. Rouse entitled to a contribution from Mr. Beech to the payment of the children’s special and extraordinary expenses and, if so, in what amounts? (f) Is Ms. Rouse entitled to spousal support from Mr. Beech? (g) Did Mr. Beech stand in loco parentis to Neteesha and TeRhaya and does he have an obligation to pay retroactive and ongoing support for them?
Parties’ Relationship
17While the parties married in April of 2005 and had a final separation on September 3, 2011, they had a tumultuous relationship, which worked better when they were not under the same roof.
18The first separation occurred on June 29, 2006 when Ms. Rouse and the four children moved to Joan Drive. The parties moved back in together at Port Stewart on December 31, 2007. Ms. Rouse and the children moved out again in April 2009. She moved back into Port Stewart in June 2010 as a tenant and paid rent to Mr. Beech. She lived in the downstairs portion of the house and Mr. Beech lived upstairs. There was a locked door separating their quarters.
19By the end of 2010, Ms. Rouse had moved back into the master bedroom with Mr. Beech. She then moved into a smaller room in April 2011 and finally moved out of the house in September 2011. In all, their total period of cohabitation was approximately 3 years.
Lifestyle During the Marriage
20When cohabiting, the parties resided in rented premises. During the times that Ms. Rouse was not cohabiting with Mr. Beech, he did not give her any money toward her support or that of the children. Most of the time she was pursuing further education and was receiving Ontario Works or OSAP. There is some evidence that she applied for and received Ontario Works while she was cohabiting with Mr. Beech and he subsequently had to pay it back.
21The parties did not take any trips together or live anything other than an extremely modest lifestyle. During their marriage, they may have gone out for dinner and/or to a movie on two or three occasions.
Imputation of Income
22Ms. Rouse asks that income of $150,000 per year be imputed to Mr. Beech.
23Mr. Beech is self-employed and sells window coverings, namely shades and blinds to the public through a sole proprietorship called Max Blinds. Mr. Beech does not have good business records. It is difficult to determine how much money he actually earns.
24Mr. Beech testified that he has worked in his company for six years. When he started out, he did not have a lump sum of money to have a “cushion” to make the business successful. He testified that he has lived pay cheque to pay cheque, borrowing money to stay afloat. He testified that his sales to date in 2017 brought in $800 to $1,000 per week and that he actually earns $800 per week.
25He resides in a basement apartment with his 12 year old son Daniel who suffers from a disability.
26His Line 150 income for 2012 was $3,491; for 2013 $2,334 and for 2014 ($2,479). He has not filed income tax returns for 2015 and 2016.
27In his Financial Statement sworn March 2012, he deposed to an annual income of $24,084.
28While married to Amanda Borck, Mr. Beech was able to purchase a house. Amanda had $35,000 to $40,000 from the sale of a previous home. Her money was used for a down payment on the house. She could not take title in her name because she did not have a good credit rating. They got a private mortgage. The purchase price was $385,000. Mr. Beech borrowed $5,000 from his father and $6,000 from his sister, of which he has paid most back. The house was sold on September 30, 2016 for $625,000. Mr. Beech received $90,000. He paid off support arrears, a business debt for $33,000 and used the rest to pay off debt.
29The problem with Mr. Beech’s testimony is that his bank account statements show in 2012 for bank account number 6152185, $71,699.32 was deposited. For 2013, $96,541.23. For 2014, $114,788.65. Account 5023515 shows the following deposits: 2012, $157,054.99, 2013, $49,901.88, 2014, $61,039.93. It may be that a lot of these funds went to purchase materials for blinds, however, this is not evident from the bank records. The balances in these accounts are always low. However, there are large cash withdrawals from time to time. For example, December 14, 2012, there is a deposit of $5,900 and a cash withdrawal the same day of $5,000. Mr. Beech’s Income Tax summaries show Net Business Income for 2012 of $3,491. His Gross Sales are $29,000. His business expenses are shown as $10,835. His Cost of Goods Sold is $11,200. His calculation of business use of home expenses is $3,474.
30Exhibit 23 is a list of Maxwell’s Beech’s debt as of November 8, 2017[sic], which should be 2016. He shows his debt as being $75,515.85. It appears that this is the debt that was paid off from the $90,000 he received from the sale of the home he purchased with Amanda Borck. I asked Mr. Beech if he had to fill out a mortgage application form and if so, what income he would have used, however, he had no recollection as to whether or not this occurred. He said he just provided his Notices of Assessment. He would not have qualified for a mortgage based on his Notices of Assessment. He would have had to qualify for a mortgage of $340,000 which would require an income of at least $100,000. Amanda Borck’s income would have been taken into account. She testified that she earned $30,000 per year and some additional cash from a hair business. Ms. Borck testified as well that she and Mr. Beech separated over financial issues.
31As mentioned earlier, Mr. Beech testified that his 2017 income was approximately $800 per week. Taking into account that he pays minimal, if any, income tax, imputing an annual income to him of $65,000 makes sense.
Was Mr. Beech in loco parentis to Neteesha and TeRhaya?
32Neteesha and TeRhaya’s biological father and his extended family live in Montreal. The biological father has never been asked to pay support for Neteesha and TeRhaya. Although Neteesha and TeRhaya have seen their father over the years, they have no relationship with him. That, however, does not explain why he has never been asked to pay child support for them.
33Neteesha who is 24 years of age, graduated from high school in 2011. She attended Seneca at York for 2 semesters for journalism. Since then she has worked as a disc jockey, freelance model and watch repair specialist.
34TeRhaya is 21 years of age. She graduated from high school in 2014. She attended George Brown College for 3 or 4 months, then went to the Toronto Film School from April, 2015 to May 2017.
35Mr. Beech had, by all accounts, a close relationship with Neteesha and TeRhaya while he was with their mother. This relationship ended when he became involved with Amanda Borck. TeRhaya testified that she decided not to continue the relationship once Mr. Beech was with Ms. Borck. Neteesha testified that it was Mr. Beech who chose not to continue his relationship with her when he and Ms. Borck married.
36There is no evidence that other than providing for some of the household expenses during the time he was with their mother, that Mr. Beech provided any financial support to the girls. Mr. Beech did pay for some small expenses, such as prom and drivers’ licenses. He also purchased some items of clothing for Neteesha and TeRhaya. His two boys were also a part of the family dynamic. If I were to find that he stood in loco parentis to the boys, I would also have to find that Ms. Rouse stood in loco parentis to at least Immanuel if not Daniel. It is far more likely, that during the parties’ cohabitation, each was responsible for his or her own biological children. Although Mr. Beech has a good relationship with Neteesha and TeRhaya while he was with their mother, there is no evidence that he treated them as his own children. Mr. Beech does not owe retroactive or ongoing support for Neteesha or TeRhaya and he does not owe any portion of Section 7s for either child.
Child Support
37Currently Mr. Beech pays child support for Jirah and April pursuant to consent order dated October 5, 2012. He agreed to pay, on a without prejudice basis, child support of $298.30 per month commencing April 1, 2012. The quantum of child support correlates to an annual income of $19,500. Having found that Mr. Beech should be imputed income of $65,000, it is clear that he has been underpaying child support all these years. He should have been paying support at a much higher level than he has been. He should have been paying $966.00 per month for the two children. He must make up 5 years of retroactive support. He owes an additional $42,700. He must pay an extra $250 per month toward the arrears until he no longer has to pay support, at which time his ability to pay a higher monthly payment to retire this debt can be explored.
38Mr. Beech is to pay ongoing support to Jirah and April in the amount of $966 per month commencing August 1, 2017.
39Mr. Beech has to contribute 65% of legitimate section 7 expenses for Jirah and April. He is to be provided with information in advance of section 7 expenses being incurred.
Spousal Support
40Ms. Rouse has qualified in several educational fields. At the present time she works in the Time Shop for The Bay. She is qualified in watch repair. She also supervises various other employees. She earns approximately $35,000 per year. Ms. Rouse’s income for 2015 was $36,920 and for 2016 $34,292. She graduated from Seneca College in June 2013. In September, 2013 she started a business management course at Micro Skills in Brampton which was completed in April 2015. She started her training for the Time Shop at the end of 2014. She works at the Burlington location. She testified that she has been waiting for this litigation to resolve so that she can go back into her field which is broadcasting. She does not own a home and she does not own significant assets. Ms. Rouse’s financial statement sworn September 13, 2012 shows that her annual income was $14,468.40 in the form of child tax benefits. Her yearly expenses were $48,315.36 and that she had a student loan outstanding in the amount of $52,360 and owed the Region of Peel $19,198. Ms. Rouse’s financial statement sworn June 4, 2017 shows a total annual income of $39,285.12, exclusive of child support. She still has a student loan to OSAP in the amount of $28,038.33 and owes the Region of Peel $21,487.11.
41A compensatory spousal support claim is based either on the recipient’s economic loss or disadvantage as a result of the roles adopted during the marriage, or on the recipient’s conferral of an economic benefit on the payor without adequate compensation. Ms. Rouse says she was in charge of housekeeping duties and looking after her 4 children and Mr. Beech’s 2 children. Mr. Beech’s son, Immanuel, lived with the parties full time and Daniel visited on weekends. She describes her relationship with Mr. Beech as being traditional, meaning she was charged looking after the household and the children.
42The parties never had a joint bank account and indeed lived separate and apart during much of their married time. As well, when they did live under the same roof, Ms. Rouse would give Mr. Beech $600 or $700 per month by way of “rent”. If Ms. Rouse were entitled to support, it would be at the low end of the Spousal Support Advisory Guidelines.
43The Spousal Support Advisory Guidelines however, produce a range of 0 for spousal support using $65,000 income for Mr. Beech and $35,000 for Ms. Beech. I see no reason to depart from the Guidelines in this case.
Incidence of Custody as well as Access
44Ms. Rouse wishes to be able to get a passport for the children without Mr. Beech’s consent. I am satisfied that there are problems of communication between them and as such, an order will issue permitting her to apply for the children’s passport without Mr. Beech’s consent.
45I am also satisfied that an order should issue that Ms. Rouse may travel with the children, without the consent of Mr. Beech. If, however, she decides to travel with the children, she must provide Mr. Beech with an itinerary and a means through which he can contact the children when they are away.
46Mr. Beech has access to the children pursuant to my order of April 26, 2016. He has alternate weekend access from Friday afternoon until Monday morning. He is to pick up and drop off the children at their school. He is to pick the children up on Friday from their bus stop and drop them off Sunday at 8:30 p.m. He is to drop off the children at the McDonald’s across from Ms. Rouse’s home. As well, the parties are to equally share holidays.
47Mr. Beech asked this court to impose a far more flexible access regime. He wants to be able to take the children when he wants to see them. This was not agreeable to Ms. Rouse who wants to see the regular access continue with as little contact between her and Mr. Beech as possible. Mr. Beech says he is unable to continue to take the children on weekends as this is his prime time to be working, as he has to contact members of the public when they are not at work. He feels that his business will do far better if he does not have to take the children on weekends and instead could make arrangements directly with Ms. Rouse to see the children during the week. I am not going to change the present access schedule. If Mr. Beech cannot see the children during his regularly scheduled time, he is not entitled to any make-up time unless Ms. Rouse agrees. Ms. Rouse has to have some certainty regarding the children so that she too can organize her work schedule around the times that the children are with her.
48It is up to Mr. Beech to ensure that he continues to have a strong relationship with Jirah and April. He must make every effort to see them on a regular basis.
Orders
49The following Orders shall issue:
The Respondent may apply for or renew the passports for the children, Jirah Esme Beech born February 9, 2008 and Asia Adaiah Beech born June 22, 2006 without the consent of the Applicant.
The Respondent may travel with the children without the consent of the Applicant but she must provide him with an itinerary in advance.
Access to the children shall continue to be governed by the court order of April 26, 2016.
Commencing August 1, 2017 and on the first day of each month thereafter, the Applicant shall pay child support of $966 per month for Jirah and Asia based on his imputed income of $65,000 per annum.
The applicant shall pay retroactive child support for Jirah and Asia in the amount of $42,700. He shall pay $250 per month, in addition to the ongoing child support payments, toward the retroactive child support. When ongoing child support is no longer payable, the quantum of monthly payments toward the retroactive child support shall be reviewed with a view to increasing those payments.
Commencing August 1, 2017 the Applicant shall pay 65% of the children’s section 7 expenses. The Respondent shall forward the request before she incurs the cost and will provide the Applicant with receipts and the amount of the after-tax costs of those expenses.
Costs outstanding under previous orders remain outstanding.
50I will entertain written submissions on costs, not to exceed three pages double-spaced, along with a Costs Outline. The Respondent’s submissions are to be served and filed within 20 days, the Applicant has 20 days to serve and file a response.
Van Melle J. Released: July 11, 2017