Court File and Parties
CITATION: Anderson v. Anderson, 2017 ONSC 4888
COURT FILE NO.: 683-16 (Guelph File)
DATE: 2017 08 24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: PATRICIA LEE ANDERSON, Applicant
AND:
ROBERT ALLEN ANDERSON, Respondent
BEFORE: Justice McSweeney
COUNSEL: Self-Represented Applicant
No one appearing for the Respondent
HEARD: August 14, 2017
ENDORSEMENT
[1] This was an uncontested trial. By an order dated May 9, 2017, Justice Miller had set this matter down for an uncontested trial and at that time granted temporary sole custody of two children to the Applicant, Patricia Lee Anderson (“the Applicant”). The Applicant represented herself.
Service of the Application:
[2] As a preliminary matter, it was necessary to determine whether the Respondent Husband/Father, Robert Anderson (“the Respondent”), had been served with the Application and Affidavit of Service (“the Application”). A review of the file indicates that an Affidavit of Service sworn on September 15, 2016 shows that the Respondent was served with the Application on September 12, 2016. He did not file an answer. I am satisfied that the Respondent received the Application as he attended a case conference in 2016 after the Application was filed. That Application lists all the relief being sought today. I am further satisfied that the Respondent knows about today’s trial date as the court mailed Justice Miller’s order to him.
[3] Further, the Applicant testified that she spoke to the Respondent after they both received the Miller J. order in the mail from the court. At that time, he told her he “might or might not” attend. The Applicant has not heard from the Respondent since, nor has she been contacted by a lawyer or anyone else on his behalf. The Respondent has been paged twice this morning and has not appeared.
[4] I am therefore satisfied that the Respondent has notice of this trial date and of what will be determined at trial, and has chosen not to attend. The trial proceeded in his absence.
Overview of the Parties’ Relationship:
[5] The Application reveals that the Applicant and Respondent commenced a common law relationship in 1995 and had their first child, Alexis Anderson, that year. They were estranged in 2003 and reconciled in 2007. They cohabited from 2007 until 2016. They separated on a final basis on August 18th, 2016. On July 13, 2012, during the period of cohabitation, they got married. They have three children together.
Claims Withdrawn:
[6] At outset of trial, the Applicant withdrew her claims relating to spousal support, equalization of net family property and other relief. The claims withdrawn were those pleaded at paras. 4, 5, 8, 11, 12, and 13 (pages 4 and 5) of her Form 8 Application, which was signed on September 9, 2016. These claims were withdrawn on a without prejudice basis, and may be re-asserted by the Applicant in the future.
[7] The Applicant testified on her own behalf. She did so in a forthright manner, and was straightforward in acknowledging the limits of the information she had about the questions posed to her by the court. I accept her evidence.
[8] Having read the Applicant’s materials, including her affidavit, and hearing her viva voce testimony, I make the following findings:
Custody and Access:
[9] The Applicant and Respondent have three children together: their elder daughter, Alexis Anderson, born in 1995, is not the subject of the Application. Their two minor children are: a son, Kaden Anderson, born on August 27, 2008; and a daughter, Maxine Anderson, born on December 16, 2009 (collectively “the children”).
[10] Both children are doing well. They are healthy, happy and involved in activities together including Scouts, as well as various sporting activities such as soccer, swimming and gymnastics. They each struggle to some extent with school, specifically math, and the Applicant works with the school and the children to support them in this regard.
[11] The children live with their mother at 63 Summit Ridge Drive, Guelph. Their maternal grandmother, Dianne Hood, lives in an apartment in the basement of the home. Ms. Hood is an active part of the children’s lives, and attended trial with the Applicant to show her support for her daughter and grandchildren. The Applicant’s sister is also involved in the children’s lives and provides some childcare support when the Applicant is working.
[12] The Applicant has been the children’s primary caregiver since birth. I have no concerns about the Applicant’s ability to care for the children.
[13] The Applicant testified that the Respondent was an involved parent when the children were very young. However, she described that he has had little involvement in their care since 2008-2009, when he was injured and began to have significant health and pain management problems.
[14] The Respondent has not been involved in the children’s care since separation. The Applicant testified that he has dropped by the house on a few occasions in the year since separation. Each time, he stayed for a few minutes, said “I love you” to the children and then left. Around Easter 2017, he contacted the Applicant asking to see the children, and she arranged to bring the children to the park to show their dad their new bikes. He did not show up and the children were very disappointed.
[15] If the children are to have access with their father in future, the Applicant testified that she would require more information about whether he still has drug dependency and addiction behaviours which he has had in the past, and which have had negative impacts on herself and the children.
[16] The evidence supports that it is in the best interests of the children that an order be made granting the Applicant sole custody of the children, with access to the Respondent to be determined by the Applicant. The children shall reside with the Applicant.
Child Support:
[17] I find that the children were children of the marriage at the time the application was filed, and therefore are entitled to child support. The Applicant testified that the Respondent has paid no child support since separation. The Applicant seeks table support, plus a contribution to section 7 expenses proportionate to each parent’s income.
[18] The Applicant makes $35,000 per year as a part-time employee at Guelph General Hospital, where she works as a secretary. She has maintained this employment for 10 years. She does not have benefits with this position.
[19] In order to calculate the quantum of child support payable by the Respondent, I must determine the Respondent’s income for support purposes. Despite his obligation to do so, he has not filed a sworn financial statement.
[20] The Applicant testified that the Respondent is a licensed millwright. In 2015, he earned $70,000 while employed at TC Industries. In 2016, his position with TC Industries ended after approximately 20 years, and he received a severance package. The Applicant had no details of that severance package. The Respondent told the Applicant that he has worked different jobs since then, and was to start a new job at Paperworks in Kitchener in May 2017.
[21] On the basis of the evidence regarding the Respondent’s skills and workforce/income history, I impute income to the Respondent in the amount of $70,000 per year. I am using the figure of $70,000 because that is the last known income of the Respondent, and the Applicant’s evidence is that he currently appears to be working at his trade in the same industry.
[22] According to the Federal Child Support Guidelines (for the Province of Ontario), the child support payable by the Respondent for two children, based on an imputed income of $70,000 per year, is $1,037 per month.
[23] The Applicant seeks retroactive child support. I have considered the factors in S. (D.B.) v. G. (S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231, to determine an appropriate commencement date. The parties separated on August 18, 2016 and the Applicant filed her claim in early September 2016, less than a month later. As stated, the Applicant has not received any support from the Respondent since separation. She moved quickly to start her application.
[24] In the circumstances, I find that child support is payable retroactive to the date of separation, being August 18, 2016.
Section 7 Expenses:
[25] The Applicant testified that she pays $100 per week for the care of her children. She also pays a total of $800 per year for both to be involved in Scouts, an activity which both enjoy and benefit from socially and physically. I find that these expenditures are reasonable for a family of the Applicant and Respondent’s means. These expenses cannot reasonably be met with the table support contributions from Respondent, and are appropriately considered s. 7 expenses.
[26] The total cost of s. 7 expenses per month is $6,000 per year, or $500 per month. The breakdown of this expense is as follows: $800 per year for Scouts plus $5,200 per year for child care ($100/week x 52 weeks).
[27] I find on the evidence that these expenses will be needed for a further three academic years, until both children age out of the Scouts program, and until they no longer need childcare at home when mother is working. The Respondent is directed to contribute to the above expenses up to and including the month of June, 2020.
[28] Given the incomes of the Applicant and Respondent as I have determined them, the s. 7 expenses will be shared proportionately on a $35,000:$70,000 (1:2) basis. The Applicant will be responsible for 33.3% and the Respondent for 66.6% of the expenses. The Respondent’s monthly contribution to s. 7 expenses is therefore $333.00 per month.
Life Insurance and Benefits:
[29] The Applicant testified that the Respondent has a State Farm life insurance policy in which the children are named as beneficiaries. The Applicant is currently paying the monthly premiums of approximately $33.00 to keep it in good standing. The Applicant asks that the Respondent maintain the policy and that he designate the children as irrevocable beneficiaries to secure payment of his child support obligations. I therefore order that the Respondent pays the premiums, keeps the policy in good standing, and names the parties’ two younger children as irrevocable beneficiaries. The Respondent shall provide the Applicant with proof that he has made arrangements to assume the responsibility for the monthly payments and has designated the children as irrevocable beneficiaries. He shall provide proof of this to her by no later than September 30th, 2017. Thereafter, I order that the Respondent provides the Applicant with proof once each year, on the anniversary of this Order, showing that he continues to maintain the policy in good standing and that the children continue to be beneficiaries.
[30] Further, the Applicant does not have health or dental benefits at her job and needs benefits for the children. She asks that the Respondent be required to list the children on any employment benefits which he now has, or may have in future, and that he provide information to the Applicant about the policy number and a copy of any benefits booklet, so that she may make claims on their behalf. I so order.
House at 63 Summit Ridge Drive, Guelph:
[31] The Applicant testified that she and her mother own the home jointly. They purchased the home together in or around 2007, during a long period of their relationship when the parties were estranged. In 2007, the parties reconciled and lived in the upper part of the home until 2016 when they separated. During the time when the Respondent lived in the home, the Respondent and Applicant each paid one quarter of the mortgage and living expenses for the house. Ms. Hood paid one half of the mortgage and living expenses for the house.
[32] The Applicant seeks an order for exclusive possession of the home and exclusive possession of the contents of the home. She testified that the Respondent has already removed all items from the home which were his. She seeks an order that all possessions remaining in the home are hers, and I so order.
[33] The Applicant also asks that the court rule that any interest the Respondent may have in the home should be transferred to the Applicant, in order to secure payment of the Respondent’s child support obligations.
[34] In considering this request, I reiterate that the Applicant has not filed an answer in this proceeding. He has asserted no claim or interest in the property at 63 Summit Ridge Drive. The evidence is that the Respondent is not on title to the home. In these circumstances, I cannot determine on the evidence whether the Respondent currently has any interest in the home at all. If he does not, then there is no interest for the court to transfer. For these reasons, I am not able to make the order of transfer of Respondent’s legal interest in home as requested.
[35] To be clear, the Respondent has not, to date, filed an answer or asserted any legal interest or entitlement in the home. If he were to do so in the future, it would at that point be open to the court to consider offsetting any arrears of child support against any interest in the home which the Respondent might ultimately be determined to have.
Costs:
[36] The Applicant was self-represented. She is entitled to her costs of this Application. She testified to the expenses of obtaining legal assistance in the total amount of $5,000, as well as $15.00 for disbursements (mailing) and missing a full day of work to attend the uncontested trial, a loss of $184.00 at $23.00 per hour for 8 hours.
[37] Costs fixed in the amount of $5,199.00 payable by the Respondent to the Applicant. Recovery of this amount is to be enforced by the Family Responsibility Office.
Disposition
[38] I therefore order as follows:
The Applicant, Patricia Lee Anderson, is granted sole custody of Kaden Anderson born August 27, 2008 and Maxine Anderson born December 16, 2009; (collectively “the children”). The children shall reside with the Applicant, Patricia Lee Anderson.
Any access to the children by the Respondent, Robert Allen Anderson, shall be at the discretion of the Applicant, Patricia Lee Anderson.
Consent by the Respondent, Robert Allen Anderson, to any documentation which is needed for the children is hereby dispensed with. In particular, the consent of the Respondent, Robert Allen Anderson, shall not be required in order for the Applicant, Patricia Lee Anderson, to obtain a passport for the children, to register them in school, or to make any other arrangements whatsoever relating to the children.
The Applicant may travel within Canada and internationally with the children without restriction and without the consent of the Respondent, Robert Allen Anderson, whose consent to travel is hereby dispensed with.
The Respondent, Robert Allen Anderson, shall pay child support to the Applicant, Patricia Lee Anderson, for the two children in the amount of $1,037.00 each month, as long as they remain children of the marriage, in accordance with the Federal Child Support Guidelines (for the Province of Ontario). Support shall commence on August 18, 2016.
The Respondent, Robert Allen Anderson, shall pay $333.00 per month to the Applicant, Patricia Lee Anderson, as his proportionate share of s. 7 expenditures for the children, commencing August 18, 2016. This s. 7 contribution shall end on June 30, 2020, unless otherwise agreed by the parties or ordered by the court.
The Applicant, Patricia Lee Anderson, shall have exclusive possession and ownership of the property and current contents of 63 Summit Ridge Drive, Guelph, Ontario.
The Respondent, Robert Allen Anderson, is directed to maintain his current State Farm Life Insurance policy and to designate the children as irrevocable beneficiaries under the policy. The Respondent, Robert Allen Anderson, shall provide the Applicant, Patricia Lee Anderson, with proof that he has made arrangements to assume the responsibility for the monthly payments and has designated the children as irrevocable beneficiaries by no later than September 30th, 2017. The Respondent, Robert Allen Anderson, is further ordered to provide the Applicant, Patricia Lee Anderson, with proof once each year, on the anniversary of this Order, showing that the Respondent, Robert Allen Anderson, continues to maintain the policy in good standing and that the children continue to be beneficiaries.
The Respondent, Robert Allen Anderson, is ordered to list the children on any health and dental or other benefits he may have through his employment and to provide to the Applicant, Patricia Lee Anderson, the policy number and benefits booklet related to those benefits so that she may make claims on their behalf.
The Respondent, Robert Allen Anderson, shall pay costs of this proceeding to the Applicant, Patricia Lee Anderson, in the amount of $5,199.00, to be enforced by the Family Responsibility Office.
A Support Deduction Order shall issue and all amounts payable under this order shall be enforced by the Family Responsibility Office.
The Applicant, Patricia Lee Anderson, shall have prejudgement and post judgment interest in accordance with the Courts of Justice Act.
A copy of this order may be served on the Respondent, Robert Allen Anderson, by ordinary mail to his last known address at:
31 Kenwood Crescent, Guelph, ON., N1H 6E4.
McSweeney J.
Date: August 24, 2017
CITATION: Anderson v. Anderson, 2017 ONSC 4888
COURT FILE NO.: 683-16 (Guelph File)
DATE: 2017 08 24
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: PATRICIA LEE ANDERSON, Applicant
AND:
ROBERT ALLEN ANDERSON, Respondent
BEFORE: McSweeney, J.
ENDORSEMENT
McSweeney, J.
DATE: August 24, 2017