Court File and Parties

CITATION: Kursiss v. Kursiss, 2017 ONSC 4785

COURT FILE NO.: FD769/16

DATE: August 10, 2017

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Carrie Lynn Kursiss, applicant

AND: Jeffery Norman Kursiss, respondent

BEFORE: MITROW J.

COUNSEL: Robert A. Haas for the applicant

Jeffery Norman Kursiss not appearing

HEARD: April 20, 2017

ENDORSEMENT

INTRODUCTION

[1] The applicant brings a motion for summary judgment. The respondent did not defend this motion, nor did he appear.

[2] The applicant seeks a final order awarding custody of the child to her. In relation to access, the applicant submits that the respondent should not have access currently, but that such an order should be without prejudice to any further claims by the respondent to access; it is also the applicant’s position that the respondent should meet certain conditions for access to resume.

[3] The applicant seeks a final order for child support and asks that income be imputed to the respondent.

[4] The applicant, in her application, requested an equalization of the parties’ net family properties; however, she is no longer pursuing property claims and requests that the property claims be dismissed.

[5] The applicant also seeks a divorce and has filed an affidavit for divorce. She requests a severance of the claim for divorce from other claims. The certificate of marriage is appended to the affidavit for divorce; the clearance certificate is filed.

LITIGATION HISTORY

[6] The parties began to cohabit in September 2007; they were married April 8, 2011 and separated in early August 2013.

[7] There is one child of the marriage, Trent, age 9.

[8] The applicant deposes that in August 2013 she commenced an application, while self-represented, and obtained an order for interim custody of the child. The applicant attaches a copy of an endorsement of Templeton J. dated August 28, 2013 verifying same. That endorsement also orders the respondent to pay child support in the amount of $762 per month starting September 1, 2013, based on an income of $85,000. The endorsement also indicated that the respondent was not present, although served. This endorsement was made at a case conference and the matter was adjourned to a settlement conference.

[9] The applicant deposes that soon thereafter she acquiesced to the respondent’s request to rescind this order. The applicant submits, in her factum, that the application was dismissed.

[10] The current proceeding was commenced by the applicant on June 24, 2016. Although the respondent did have counsel initially, having filed a motion, affidavit material, a certificate of financial disclosure and a financial statement, the continuing record contains no answer filed by the respondent.

[11] On December 14, 2016, on motion made by the respondent’s counsel, the court made an order removing the respondent’s counsel as solicitor of record.

[12] The applicant’s motion for summary judgment initially was returnable on April 5, 2017 and was served on the respondent; he failed to attend on that date. The motion was adjourned to April 20, 2017.

[13] In support of her motion for summary judgment, and in addition to the affidavit for divorce, the applicant relied on a brief affidavit sworn March 23, 2017, updating the court as to three previous affidavits (sworn June 9, 2016, August 18, 2016 and August 31, 2016) filed by the applicant; the applicant was relying also on those affidavits in support of her motion.

[14] An issue was raised by the court as to the material that constitutes the evidentiary record for the summary judgment motion. Although the respondent had failed to file any material in response to the applicant’s motion for summary judgment, the respondent had filed a lengthy 200-paragraph affidavit sworn August 5, 2016 in response to the applicant’s affidavit sworn June 9, 2016, while he was represented by counsel. In fact, the affidavits referred to above, filed by the parties, were in support of their respective motions for various interim relief, including interim custody and interim child support. The parties’ affidavits dealt extensively with custody and access issues.

[15] The evidentiary record discloses that no interim orders were made in relation to custody, access or child support, with the exception that on August 31, 2016 interim orders were made permitting the child to attend Sir John A. MacDonald Public School (as requested by the applicant), and for the involvement of the Children’s Lawyer, who subsequently declined to accept the case.

[16] Despite the applicant’s submission to the contrary, I find that it is appropriate to consider the respondent’s affidavit filed, as it had responded specifically to the applicant’s affidavit, on which the applicant was relying, in part, in support of her motion for summary judgment. The fact that the respondent filed no material after the motion was served, and failed to attend on this motion, is not a reason in these circumstances to ignore his previously filed affidavit.

[17] Accordingly, the evidentiary record for the applicant’s summary judgment motion includes the parties’ affidavits discussed above, their respective financial statements and the affidavit sworn August 25, 2016 from a legal assistant (employed by the applicant’s lawyer) that contains extracts from police records and from records prepared by the Children's Aid Society of London and Middlesex (the “Society”). Those records had been produced pursuant to an order dated July 20, 2016.

[18] The fact that the applicant chose to proceed via a motion for summary judgment is understandable and appropriate. On March 14, 2017, Henderson J., at a settlement conference, placed this case on the September 2017 trial list and set a trial management conference date. Further, the respondent was ordered, within 21 days, to file his tax returns and notices of assessment for 2015 and 2016, proof of current employment and evidence that he has completed the Changing Ways program.

[19] That order was without prejudice to the applicant’s right to bring a motion for summary judgment.

[20] The respondent failed to attend at the settlement conference and filed no settlement conference brief. He was ordered to pay $850 in costs, which remain unpaid.

[21] The respondent has not complied with the order in relation to financial disclosure and the respondent has failed to provide evidence that he completed the Changing Ways program.

TEST ON A MOTION FOR SUMMARY JUDGMENT

[22] A motion for summary judgment may be brought after a respondent has served an answer, or after the time for serving an answer has expired: r. 16(1).

[23] A final order shall be made if there is no genuine issue requiring a trial: r. 16(6).

[24] The court’s expanded powers on a motion for summary judgment include the following in r. 16(6.1):

16(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[25] In Hryniak v. Mauldin, 2014 SCC 7, the court described the following circumstances where there will be no genuine issue requiring a trial:

[49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[26] On the evidentiary record, I find that it is possible to reach a fair and just determination on the merits without the necessity of a trial. There are no material facts in dispute and there is no genuine issue requiring a trial. I take into account the respondent’s failure to participate in the settlement conference, his failure to comply with the recent order for productions, including financial disclosure, his failure to appear on the summary judgment motion and his failure to file material subsequent to the service of the summary judgment motion.

DIVORCE

[27] It is unnecessary to sever the granting of the divorce from other claims. A divorce is granted on the basis that the parties have lived separate and apart since August 2013. The orders made below in relation to custody, access and child support proceed as corollary relief pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1].

CUSTODY AND ACCESS

[28] While the parties’ affidavit material conflicts on many points, and each party accuses the other of inappropriate conduct towards the other, and towards the child, I focus first on the facts not in dispute.

[29] Prior to separation, the evidence satisfies me that the applicant was the parent primarily responsible for the child. Since separation, the applicant has been the child’s primary caregiver. The parties were able to implement, for a number of years, an access schedule. After the apparent short-lived interim custody order was made in August 2013, the parties dealt with each other in implementing an access schedule in favour of the respondent. The parties do differ on the extent of the respondent’s access – it was the respondent’s evidence that the child spent time with him ranging from 32% – 41%.

[30] It was the applicant’s evidence that the respondent’s time with the child comprised 27% of the time, increasing to 35% starting sometime in October 2015.

[31] Unfortunately, numerous conflicts developed between the parties. The applicant deposed that the respondent was, at times, physically abusive to the child. The applicant complained also about the respondent’s verbal abuse and the extent of his alcohol consumption.

[32] Both parties reported numerous conflicts at access exchanges. The Society became involved and there were police attendances.

[33] Matters reached a critical point following an incident on May 12, 2016, following which the respondent was charged with assaulting the child; the respondent was released on conditions that prohibited the respondent from communicating directly, or indirectly, with the child or the applicant.

[34] When the summary judgment motion was heard, it was the applicant’s evidence that the respondent’s trial was scheduled for June 2017 and that the respondent had not seen the child since his arrest. This evidence is undisputed.

[35] Notwithstanding the conflict in the affidavits, I find the applicant’s evidence as to the respondent’s abusive behaviour, and alcohol consumption, far more persuasive than the respondent’s bald denials.

[36] There is some corroboration of the applicant’s evidence from the Society and police records. The Society had verified risk of physical harm by the respondent against the child, which was confirmed by letter from the Society to the applicant dated November 12, 2015.

[37] With respect to the incident leading to the assault charge, in a letter to the applicant dated June 9, 2016, the Society was able to confirm child protection concerns related to the respondent’s “physical harm of Trent.”

[38] In relation to the assault charge incident, the Society conducted a joint investigation with London police. The child was interviewed. The child was photographed to document his injuries.

[39] The incident on May 12, 2016 was precipitated because of difficulties encountered by the applicant in having the child delivered to her, by the respondent, at the agreed-upon neutral location. Following several unsuccessful attempts to pick up the child, the applicant contacted the police, who attended at the respondent’s residence.

[40] As part of his propensity to deny everything, the respondent deposed, in relation to the May 12, 2016 incident, that he did not drink any alcohol while the child was in his care that day. He also claims not to have seen any bruises on the child that night.

[41] However, the police records from the investigating officer indicate that at 8:40 p.m., the investigating officer, and another officer, attended at the respondent’s residence. They could see a pair of “adult feet laying on the couch.” The child was at home. There was no response to the loud knocks.

[42] The officers observed the child hitting his father’s face in an attempt to wake him up, with no response. At that point, the officers’ assumption was that the respondent was in some medical distress, or possibly deceased.

[43] The investigating officer then was successful in waking the respondent, observing that the respondent’s speech was “incredibly slurred.” The respondent admitted to drinking alcohol; an empty case of beer was observed by the couch and 4 empty 40 ounce bottles of vodka were observed on the kitchen counter. The respondent’s state was described as an “extreme level of intoxication.” Consequently, the applicant was contacted to attend and pick up the child.

[44] The respondent fails to address the information disclosed in the police and Society records. I draw an adverse inference against the respondent for his failure to do so. The respondent’s description of this incident merits little weight. It is not believable.

[45] The respondent did enroll in the Caring Dads program at Changing Ways, as confirmed in a letter to the respondent dated May 9, 2016 from Changing Ways, this letter being dated several days prior to the incident leading to the assault charge.

[46] The evidence supports the finding, which I make, that it is in the child’s best interests for the applicant to have sole custody.

[47] However, it is also in the child’s best interests to have a relationship with the respondent. The child had enjoyed a regular ongoing access schedule with the respondent. The respondent will need to address issues relating to his alcohol consumption and the protection concerns identified by the Society in relation to the respondent’s conduct towards the child.

[48] At this time, the result of the respondent’s trial on the assault charge is unknown. Depending on the result, that may be a further factor to consider in structuring an access schedule that meets the child’s best interests.

[49] The order below sets out a process to reinstate the respondent’s access to the child.

CHILD SUPPORT

[50] The respondent’s evidence is that he was employed by Comstock Canada in the summer of 1997 and from 1998 until 2012 when Comstock closed their London office. The respondent deposes that he received a severance package that was worth “around” $23,000 after taxes.

[51] The respondent deposes that he started working at Kel-Gor in Sarnia, in December 2012. Although the applicant’s evidence is that the respondent was terminated from this employment, the respondent’s evidence is that he did not lose his job, but rather was laid off “because of lack of work and the seasonal work had ended.” He denies receiving any severance package. The respondent’s evidence is corroborated by a record of employment from Kel-Gor dated April 28, 2014. The reason for issuing the record of employment is stated as “Shortage of Work / End of contract or season.” The expected date of recall is shown as “unknown.”

[52] The respondent’s line 150 income, based on the incomplete tax disclosure that he did provide for 2013-2015, is as follows (rounded):

2013 $75,697

2014 $46,962

2015 $60,209

[53] The source of the above tax information is:

2013 - notice of assessment and T4

2014 - 2014 tax return summary and T4s

2015 - 2015 tax return summary and T4s

[54] The respondent deposes that he worked as a planner at Comstock and Kel-Gor; that when he was laid off from Kel-Gor in April 2014, the plan was for Kel-Gor to call him back to work in September for a possible project with Shell Chemical. The respondent deposes that, in early October, he suffered a “serious sprain” to his ankle that required two months to heal. Although the respondent did not hear back from Kel-Gor, he deposes that he decided to look for work nearby to avoid the travel. He deposes that from January the following year that he “followed up on some leads, but nothing local, or with reasonable pay.”

[55] Although in 2013 the respondent’s line 150 income was from employment, that was not the case for 2014 or 2015. In 2014, the respondent had employment income of $19,592, and the balance of his income was divided, almost equally, between Employment Insurance and RRSPs. In 2015, other than receiving $1,542 from Employment Insurance, the balance of the respondent’s income was from RRSPs.

[56] The Federal Child Support Guidelines, SOR/97-175 impose consequences, including allowing the court to draw an adverse inference against a party and to impute income, where a party fails to provide the necessary financial disclosure or fails to comply with an order for disclosure:

Failure to comply

22 (1) Where a spouse fails to comply with section 21, the other spouse may apply

(a) to have the application for a child support order set down for a hearing, or move for judgment; or

(b) for an order requiring the spouse who failed to comply to provide the court, as well as the other spouse or order assignee, as the case may be, with the required documents.

Adverse inference

23 Where the court proceeds to a hearing on the basis of an application under paragraph 22(1)(a), the court may draw an adverse inference against the spouse who failed to comply and impute income to that spouse in such amount as it considers appropriate.

Failure to comply with court order

24 Where a spouse fails to comply with an order issued on the basis of an application under paragraph 22(1)(b), the court may

(a) strike out any of the spouse’s pleadings;

(b) make a contempt order against the spouse;

(c) proceed to a hearing, in the course of which it may draw an adverse inference against the spouse and impute income to that spouse in such amount as it considers appropriate; and

(d) award costs in favour of the other spouse up to an amount that fully compensates the other spouse for all costs incurred in the proceedings.

[57] In the present case, although the respondent has provided some tax disclosure for 2015, he has not, as ordered, provided his 2015 notice of assessment, nor has he provided, as ordered, his tax return and notice of assessment for 2016 and he has not provided proof of current employment.

[58] The respondent has failed to provide any evidence as to the extent of his job searches. The respondent has a good employment record. His reasons to limit his job search to the local area are not persuasive. I draw an adverse inference against the respondent for his failure to comply with the disclosure order.

[59] The applicant’s evidence is that following separation, she requested payment of child support on multiple occasions, but the respondent refused, although he did pay for the child’s after-school program and a portion of the child’s camp fees.

[60] In her request for court order (Ex. #A), the applicant seeks to impute the sum of $60,200 income to the respondent.

[61] However, the applicant is content that the child support should start effective October 1, 2015 (see Ex. A). This is most reasonable, as the evidence supports a finding that the date of effective notice of the applicant’s claim for child support was shortly after the parties separated in August 2013: see S.(D.B.) v. G.(S.R.), 2006 SCC 37 at paras. 118-122 in relation to “effective notice.”

[62] For 2015, the respondent’s child support payment should be based on his reported income of $60,209. Although almost all of that income is from RRSPs, presumptively it still forms part of the respondent’s line 150 income for child support and the respondent has provided no evidence as to why the RRSP income should not be included: see Fraser v. Fraser, 2013 ONCA 715 (Ont. C.A.), paras. 94-107.

[63] In relation to imputation of income, the following is stated in Lawson v. Lawson, 2006 CanLII 26573 (ON CA), 2006 CarswellOnt 4789 (Ont. C.A.) at para. 36:

36 Section 19(1)(a) of the Federal Child Support Guidelines permits a court to impute income to a spouse who is intentionally underemployed. Intentional underemployment occurs when a payor chooses to earn less than he or she is capable of earning. There is no need to find a specific intent to evade child support obligations before income can be imputed on the basis of intentional underemployment. When imputing income based on intentional underemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are the age, education, experience, skills and health of the payor, as well as the payor's past earning history and the amount of income the payor could earn if he or she worked to capacity. See Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (C.A.).

[64] In the case at bar, I impute $60,000 annual income to the respondent commencing January 2016. At that point the respondent would have had over a year-and-a-half to find employment. Considering also the respondent’s good work history, the lack of any health issue and the circumstances discussed above that justify drawing an adverse inference against the respondent, I find that $60,000 is a reasonable amount to impute to the respondent. The respondent, according to the incomplete disclosure that he has made, last worked in 2013, and the income being imputed to the respondent is approximately $15,000 less than his 2013 employment income.

COSTS

[65] The applicant filed a bill of costs totalling $16,812.16 all-inclusive, of which fees comprised $14,170. The applicant seeks costs in the amount of $12,500 all-inclusive with a request that 20% - 25% be allocated to child support.

[66] No offers were served. I have considered the factors in r. 24(11). The time spent, disbursements and hourly rate, generally, are reasonable. The respondent’s conduct, including his failure to attend at the settlement conference and his failure to comply with the disclosure order, is unreasonable. I take into account that the $1,500 and $850 interim costs orders were less than the amounts claimed on the bill of costs that related to matters covered by those costs orders.

[67] While acknowledging that the amount claimed for costs is less than the bill of costs, the overriding principle is fixing the costs of an unsuccessful party is reasonableness.

[68] I fix costs at $10,000 all-inclusive. This costs order includes the $1,500 costs award, but does not include the $850 costs order which remains payable. The order below allocates some of the costs as a support order.

ORDER

[69] I make the following final divorce order:

1. A decree of divorce is granted.

2. The applicant shall have sole custody of the child.

3. The respondent shall have reasonable access to the child, as agreed by the parties, and subject to the following conditions:

(a) the access shall be supervised, if requested by the applicant, for a reasonable period of time, with the supervision to occur at Merrymount Family Support and Crisis Centre, or the access may be supervised by a person agreed to by both parties;

(b) if supervised access does occur, the parties shall implement a schedule of access, after a reasonable period of time, that gradually changes to unsupervised access;

(c) the access cannot contravene, and is subject to, any order made under the Criminal Code.

4. If there is any disagreement regarding access which the parties are unable to resolve through mediation, or otherwise, then this order is without prejudice to the right of either party to commence a court proceeding to resolve any outstanding access issues.

5. As a condition of exercising access, the respondent:

(a) shall complete a hair follicle test through DriverCheck testing for the use of alcohol, subject to the following:

(i) the test shall include the hair length required to test three months of alcohol use;

(ii) quantitative results will be provided; and

(iii) the respondent shall execute releases to permit the distribution of copies of the testing to the applicant and applicant’s counsel; and

(b) shall provide proof that he has successfully completed the Caring Dads program through Changing ways.

6. The respondent shall pay child support to the applicant for the child, Trent, pursuant to s. 3(1)(a) of the Federal Child Support Guidelines as follows:

(a) commencing October 1, 2015, the amount of $548 per month, based on an annual income of $60,200; and

(b) commencing January 1, 2016, the amount of $546 per month, based on an annual income of $60,000.

7. All arears of child support payable pursuant to paragraph 6 that are outstanding as at August 31, 2017 shall be paid at the rate of $400 per month, commencing September 1, 2017, until paid in full.

8. Subject to paragraph 9, the respondent shall pay to the applicant his proportionate contribution to the child’s s. 7 expenses, based on the applicant’s income of $71,300 and the respondent’s income of $60,000. The respondent shall make payment to the applicant of his share of these expenses within 14 days of receipt of written proof of the expenses from the applicant.

9. If the child’s s. 7 expenses are expected to exceed $3,000 in any calendar year, then the respondent is not liable to contribute to any portion of the expense that exceeds $3,000 unless the applicant has provided the respondent with advance notice of same and full details and has obtained the respondent’s consent, which shall not be unreasonably withheld. If a dispute arises under this paragraph as to the respondent’s obligation to contribute to the child’s s. 7 expenses, then either party may commence a court proceeding, but only after the parties have made reasonable efforts to resolve the matter through negotiation and/or mediation.

10. The respondent shall maintain the child as beneficiary on any extended health, dental, prescription drug, eyewear and other benefits available to him through his employment for so long as the child remains a child of the marriage within the meaning of the Divorce Act and is eligible for coverage.

11. The respondent shall designate the applicant as irrevocable beneficiary on any group life insurance benefits available to the respondent from his employer, in an amount equal to the lesser of the total life insurance coverage available to the respondent, and $100,000, for so long as the child remains a child of the marriage within the meaning of the Divorce Act. This paragraph is without prejudice to the applicant’s right to bring a motion to change if the applicant seeks life insurance coverage greater than $100,000.

12. Within 30 days of the date of this order, the respondent shall, in writing, provide to the applicant full details of all employer group benefits and life insurance available to the respondent, and the respondent shall provide to the applicant, in writing, details as to any changes in employer group benefits or life insurance within 30 days of such change. Pursuant to the obligation for disclosure under this paragraph, the respondent shall include written verification from his employer confirming that the insurance beneficiary designation has been made in compliance with this order.

13. On a presentation of a copy of this order, the respondent is entitled to receive any information, or copies of records, relating to the child’s health care or education, including from the child’s physician, dentist, any other health care provider, counsellor, teacher and school principal.

14. This order in relation to custody, access and child support is made pursuant to the Divorce Act.

15. The respondent shall pay to the applicant forthwith her costs of this proceeding fixed in the amount of $10,000 inclusive of HST and assessable disbursements, but this costs order does not include the $850 in costs that the respondent was ordered to pay pursuant to the order of Henderson J. dated March 14, 2017. In relation to the $10,000 costs order, the sum of $2,500 is enforceable by the Director as a support order pursuant to the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31.

16. All other claims, including any property claims, made by either party are dismissed.

17. For as long as child support is to be paid, the payor and recipient, if applicable, shall provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, and the income disclosure to be provided shall be the documents listed in s. 25(1)(a), (b) and (c) of the Federal Child Support Guidelines.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: August 10, 2017