Court File and Parties
Barrie Court File No.: FC-15-952-00
Superior Court of Justice - Ontario
Re: Sharda Deonarine, Applicant
And: Kumar Deonarine, Respondent
Before: THE HONOURABLE MR. JUSTICE G.M. MULLIGAN
Counsel: H. Goodman, for the Applicant Respondent, Self-Represented
Heard: May 29, 30, 31 and June 1, 2017
Endorsement
Introduction
1This matter proceeded by way of a four day trial and was completed on June 1, 2017 during the trial sittings. At the conclusion of trial, for written reasons provided to the parties, I granted judgment with respect to certain issues as between the parties. Other issues were reserved. This judgment therefore deals with remaining issues.
2Sharda Deonarine (Sharda) commenced an application against Kumar Deonarine (Kumar) October 1, 2015 after the breakdown of their marriage. The parties were married June 30, 2007 and separated June 3, 2015 approximately eight years later. They have a child Kailey (date of birth October 1, 2013). Kailey is now four years of age.
3At the time of separation the parties had a matrimonial home. Sharda moved out of the matrimonial home on June 3, 2015 with Kailey. Kumar remained alone in the matrimonial home for several months until it was sold. The parties agreed to an interim distribution of some of the funds, the balance of funds are held in trust. The parties have agreed on an equalization as between them.
4Both parties gave evidence at trial and were subject to cross-examination. In addition, Mr. Roy Reid provided evidence and was cross-examined with respect to his OCL report which was previously prepared and provided to the parties.
5For reasons given at the conclusion of the trial, sole custody of Kailey was given to Sharda with access to Kumar as specified therein. The issues left to be determined can be summarized as follows.
Access arrangements surrounding school break, summer vacation and other family events.
Child support.
Child support arrears.
Section 7 expenses.
Spousal support.
Retroactive spousal support.
House carrying costs (mortgage, insurance, etcetera) claimed by Kumar during the exclusive occupation by Kumar until sale.
Occupation rent claimed by Sharda during the period of exclusive occupation by Kumar.
Contribution to previous day care expenses claimed by Sharda against Kumar.
Life insurance.
Parent in charge of medical decisions.
Mobility.
Litigation History
6It is not necessary to review each and every attendance by these parties in court over the years leading up to this trial. Many such appearances dealt with access and custody related issues. However the endorsement of Justice Wildman of April 7, 2016 dealing with child support and spousal support is of significance. The parties separated in June of 2015, but there was no voluntary spousal or child support paid by Kumar. Sharda brought a motion for interim support. Justice Wildman made a comprehensive endorsement after reviewing the affidavits filed by the parties. Justice Wildman found that Sharda’s income was limited to child tax benefits but used the figure of $12,000 per year as mother’s income for purpose of the motion. Sharda did not work outside of the home after their child was born, her previous employment was as a law clerk. As Justice Wildman noted “it would also not be in keeping with the arrangement prior to separation where Sharda was not working outside the home”.
7Justice Wildman found that Kumar’s income for 2014 was $85,545. His income for 2015 was $80,955.60 which comprised of employment income plus disability income. Justice Wildman found that there was no explanation why he did not return to his employment for the period January to March 2016 and therefore fixed his income at $80,000 for the purposes of the interim motion.
8Based on imputed income of $80,000 to Kumar and $12,000 to Sharda, Justice Wildman ordered guideline support for the child of $724 per month and spousal support of $1,176 per month commencing April 1, 2016. As Justice Wildman noted “given the age of the child, the significant compensatory component in this case, and the fact that $12,000 is imputed rather than actual income from Sharda, I am satisfied that support slightly in excess of the midrange is appropriate on a temporary basis”.
Sharda’s Residence
9At the time of trial both parties were living separately within Peel Region. At the time of the marriage breakdown, they were residing together in Bradford in York Region. After separation Sharda moved to Scarborough to reside with her mother. Thereafter she moved back to Peel re-partnered and resides in a residence with her partner. Her daughter has her own bedroom. The parties now live in the same region so the previous stresses of long commutes to Scarborough for access purposes have been significantly reduced.
Kumar’s Income
10Kumar’s income has fluctuated over the years but he has maintained employment with the same employer. His income reached a peak of $85,545 in 2014. His evidence was that he earned bonuses and was involved in a special project requiring some travel.
11His actual employment income in 2015 from employment was $57,438 from January to August. He then entered into a period of disability and received short-term disability benefits through his employer’s insurer.
12In 2016 his income from employment was $67,264 for the period March 1 to December 31. As Justice Wildman noted, there was an absence of evidence about why he did not return to employment at the end of period for which he received disability benefits. There was no explanation for this at trial. Kumar did not file a doctor’s report or provide any evidentiary basis why he could not return to employment with his employer at the beginning of 2016.
13I am satisfied that the imputed income of $80,000 as established by Justice Wildman remained a fair and reasonable determination of his income for child and spousal support purposes for the period in question.
14In 2017 Kumar earned $20,333 for the period of January to March 31 from his employer. Multiplied by 4 this extrapolates to an income of $81,332. This figure does not take into account bonuses, if any, that Kumar may be entitled to from his employer for the 2017 calendar year of employment.
Sharda’s Income
15Sharda was employed as a law clerk during the currency of the marriage but she dropped out of the work force when their child, Kailey, was born. She was a stay-at-home mom thereafter. I’m satisfied that this was a mutual decision entered into between Sharda and Kumar during the currency of their marriage.
16After separation, Sharda maintained the bulk of child care responsibilities for a child who was still at home. In 2016, Sharda placed Kailey in daycare and seeks a contribution from Kumar for the expense that she incurred. There was no discussion or consultation about this. There was no evidence on the record that Sharda made serious efforts to find any employment or that daycare was necessary to further her economic opportunities. I, therefore, decline to award Sharda any amount for Kumar’s contribution to these prior daycare expenses.
Child Support
17Kumar has been paying child support pursuant to the order of Justice Wildman in the amount of $724 a month commencing April 1, 2016. There are two items unresolved: the first is ongoing child support based on Kumar’s 2017 income. Based on an imputed income of $81,332 for 2017, I fix child support in accordance with the Child Support Guidelines in the amount of $733 per month commencing January 1, 2017.
Child Support Arrears
18No child support was paid from the time of separation in June of 2015 until the Interim Order of Justice Wildman on April 7, 2016, a period of nine months. Based on Kumar’s imputed income of $80,000, I find that there are arrears of child support owing for nine months at $724 per month for a total of $6,516. These arrears are payable at the rate of $150 per month until paid in full.
Spousal Support
19Sharda has been in receipt of spousal support in the amount of $1,176 since the order of Wildman J. on April 1, 2016. In reviewing all factors and noting that there was a significant compensatory aspect to the case, Justice Wildman set support “slightly in excess of the midrange”. I’m satisfied that Kumar’s income for 2017 is calculated to be $81,332. I am satisfied that Sharda’s income should be imputed at $23,000 per annum commencing September 1, 2017 to coincide with her child’s enrolment in school. The Spousal Support Advisory Guidelines (SSAG) attached as “Schedule 1” suggest that these incomes show a low of $403, a mid of $678 and a high of $1,058 with a duration between five years and seventeen years. I am satisfied that monthly spousal support in the amount of $800 per month commencing September 1, 2017 for a duration of eight years from date of separation to June 1, 2023 is appropriate under the circumstances. I make that determination for the following reasons. Sharda left the workforce and was a stay at home mother after the birth of their child. She took on a disproportionate share of child raising issues. Kumar was travelling in connection with his employment and was not overly involved in child care activities when he was home. Sharda left the workforce where she was employed as a law clerk and did not further advance her career. During the currency of the marriage, she looked after most of the medical and dental related appointments for their child.
20In my view, ongoing spousal support until 2023 will give Sharda an opportunity to retrain, if necessary, to re-enter the workforce and to rebuild her income to a level where she will achieve self-sufficiency. Her previous education as a law clerk and her current age, 36, inform me that self-sufficiency is an achievable goal for her.
Spousal Arrears
21Sharda seeks spousal arrears from the date of separation June 3, 2015 until the Interim Order of Justice Wildman of April 7, 2016. During this period of time she first lived with her mother and then re-partnered and moved to a home in Peel Region. Kumar remained in the matrimonial home until it was sold making all payments for mortgage, taxes and related costs without any contribution from Sharda. Those expenses were paid and the home has been sold, both parties have benefitted from the equity in the home and the equalization agreement that they have entered into. I therefore decline to award retroactive spousal support. Unlike child support, which has to be paid from the date of separation, based on the needs of the child, a retroactive spousal support is discretionary and should not be ordered where it causes hardship see Bremer v. Bremer, 2005 3938, 13 RFL (6th) 89 Ont. C.A.
Section 7 Expenses
22In accordance with the DivorceMate scenario attached as “Schedule 2”, I am satisfied that Kumar should be attributing 68.8 percent of s. 7 expenses to Sharda. By imputing income to Sharda, there falls upon her an obligation to find employment but it is fully expected that she will incur child care expenses as she re-enters the workforce. I order that Kumar should pay 68.8 percent of ongoing s. 7 expenses including child care and related educational expenses.
Occupation Rent/Mortgage Expense Reimbursement
23Upon separation, Sharda moved out of the matrimonial property on June 3, 2015. Kumar continued to reside there until the property was sold. He made all mortgage and related expense payments without contribution from Sharda. He was not making any spousal support payments to Sharda during this period and I have declined to award her retroactive spousal support for that period.
24I am satisfied that award of occupation rent is a discretionary issue. As Ducharme J. stated in Malesh v. Malesh, [2008] O.J. No. 2207 at para 43:
Orders for occupation rent are not routinely granted. I would go further: occupation rent should only be granted in exceptional circumstances. The court’s reluctance to make such orders is all the greater, I believe, when the spouse who remains in possession maintains the home adequately, thereby preserving and maintaining its fair market value. Moreover, the expenses of maintaining the home are frequently presumed to offset any potential occupation rent.
25Both parties benefited by Kumar residing in the residence and maintaining all payments while it was on the market. He did so without contribution from Sharda. At the same time he was not making any spousal payments to her. He resided there alone and did not incur separate rental costs. In my view this is not one of those exceptional cases warranting payment of occupational rent to Sharda nor does this call for her to contribute to the payments made by him to carry the house. Both parties benefitted by having the house occupied until it was sold.
Medical Decision Making
26Kumar acknowledged that custody ought to be granted to Sharda but insisted that medical decision making be made by him. It is clear that both parties have a close and loving relationship with their daughter. Kailey had a medical emergency which required hospitalization and both parties were involved. On a different occasion, Kumar took his daughter to a walk-in clinic, but did not inform Sharda of this event. I am satisfied on the record before me that Sharda has attended to all necessary medical needs of her daughter. I see no reason to remove her medical responsibilities for her daughter from the order granting her custody. However, she should keep Kumar informed of all medical visits and issues on a timely basis. There is nothing preventing Kumar from taking his daughter to a walk-in medical clinic in the event that she needs some form of emergency treatment while she is in his care for access periods. However, he should promptly notify Sharda of these events, so that she can participate in any decision-making and follow-ups that may be required.
Expanded Access Visits
27My order after trial on June 1, 2017, dealt with expanded access for Kumar. However, it did not deal with discreet events, such as Christmas, March Break, and holidays. Sharda provided a draft order with a view to providing expanded access to Kumar, as more particularly described in para. 8 of that draft order attached as “Schedule 3”. I accept that proposal as fair and reasonable under the circumstances, and would incorporate para. 8(a) through (i) into this judgment.
28In addition, Kailey shall spend Diwali with her father in even-numbered years and with her mother in odd-numbered years.
Vacation Travel
29Commencing in 2019, Kailey shall be allowed to travel with either parent for the purpose of vacation with the consent of the other parent. A vacationing parent should provide the other parent with 30 days’ notice, an itinerary and a phone number where the child can be reached. The non-travelling parent will sign any travel documents to make travel outside of Canada possible for Kailey.
30In the event that the parties are unable to adhere to the access schedule set out herein, I would encourage them to show flexibility by reaching an agreement, either by direct communication or with the assistance of a mediator. It is in the best interests of Kailey that the parents make adjustments from time to time as needed to best suit the needs of their daughter.
Life Insurance
31Sharda requested life insurance in her opening statement, however, this issue was not addressed in closing statements. No evidence was given at trial as to Mr. Deonarine’s insurability or the cost of life insurance for him. I decline to order life insurance, however, it is in the best interest of their child that life insurance be in place for her benefit. Kumar is strongly encouraged to obtain appropriate life insurance.
Mobility
32Neither party shall move more than 60 kilometres from their current residence without consent from the other party or a court order.
Costs
33The applicant, Sharda Deonarine, has achieved substantial success at this trial. If the parties cannot agree on costs, I will receive written submissions from the applicant within 20 days of the release of this decision. The respondent, Kumar Deonarine, will then have a further 10 days to reply. Submissions should be sent in care of my judicial assistant at Barrie.
Draft Order
34Because Kumar is self-represented, approval as to form and content of the draft order is not required. However, before submitting the draft order for signature, the applicant is required to serve a copy of the draft order on Kumar Deonarine by regular mail, seven days before seeking to have the order issued and entered.
35Support deduction order to issue.
MULLIGAN J.
Date: October 27, 2017
Schedule 1
Schedule 2
Schedule 3