Airhardt v. Airhardt

CITATION: 2018 ONSC 3671

COURT FILE NO.: 65/16

DATE: 2018-06-13

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Sara Jane Airhardt, Applicant

AND: Christopher Robert Airhardt, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: J. Leigh Daboll for the Applicant; Respondent in person

HEARD: June 12, 2018 at Welland

ENDORSEMENT

[1] The parties married in 2005 and separated in 2016. The Applicant was pregnant at the time of the marriage. The Respondent raised the child as his own. They had three more children. The Applicant seeks sole custody of the children and child support. The Respondent seeks joint custody and shared residence. He also asks for a divorce.

[2] In 2015 the Respondent earned $60,000 a year as a welder. In 2016 he was laid off. He declined one offer of employment. He went on EI. Then he went on welfare. In February of 2018 the Respondent moved out of his mother’s residence. He lost his entitlement to welfare. He now stays with his father and sleeps in the living room. He says that there are no jobs for welders in Niagara at the moment. I do not believe that. He concedes that there are jobs in Hamilton, but he cannot commute there because he has lost his driver’s licence for a drinking/driving conviction. That would not, of course, stop him from taking an apartment in Hamilton and working there. He could always visit the peninsula on the bus.

[3] From separation in February of 2016 until February 2018 the couple shared time with the children more or less evenly. When the Respondent moved out of his mother’s house he went from place to place before settling with his father. He has not exercised access to the children since. The oldest daughter does not want a relationship with him at the moment. She is unhappy about some developments that have taken place since separation.

[4] In the circumstances I have no real choice but to give sole custody to the Applicant with access to the Respondent in the Applicant’s discretion. I believe that she will encourage access once the Respondent settles into a job and a suitable residence. For now, the Respondent is simply not in a position to exercise much access. If that changes, he can ask the court to vary this order.

[5] I have documentary evidence of the Respondent’s income in 2016 and 2017. Child support should be based on the table amounts according to the Respondent’s income for the relevant year. I do not propose to give him a discount for shared residence given the Applicant’s negligible income during the transition from married to single life and the fact that the Respondent shared to some extent in the child tax credit. With respect to ongoing child support, the Applicant suggests that I impute $40,000 annual income to the Respondent. That strikes me as quite fair to the Respondent. It is not much more than he made in 2017. It is just not acceptable for a 35-year-old healthy father with a welding ticket to say, “I would support my children if only I could.” A person in such a position is expected to do what is necessary.

[6] The parties have sold the matrimonial home. Proceeds of about $32,000 are held in trust. Half of that represents the Applicant’s share of the property. The Respondent owes the Applicant at least the other half in retroactive child support, arrears of child support that have accrued under the temporary order of Maddalena J. dated January 5, 2017, and any cost order that may be imposed.

[7] I do not propose to order contribution to s.7 expenses. The Applicant has not identified any such expenses. Music and gymnastics are not extraordinary expenses. If they were, this family could not afford them and does not need them.

[8] I make the following final orders:

a. A divorce is granted effective 31 days hence.

b. I declare that the Respondent stood in the place of a parent to Alivia Jane Airhardt born July 14, 2005.

c. The Applicant shall have custody of the children with access to the Respondent in the Applicant’s discretion. In the case of Alivia, access also requires the consent of the child. The Respondent is responsible for transportation.

d. The Respondent shall pay child support to the Applicant for the said Alivia Jane Airhardt, and for Zoe Lynn Airhardt born July 15, 2007, Ryle Ann Airhardt born November 15, 2008 and Jax Christopher Robert Airhardt born March 3, 2012 at the following rates:

i. From March 1, 2016 to December 31, 2016 at the rate of $913 a month based on an annual income of $39,300.

ii. From January 1, 2017 to November 30, 2017 at the rate of $873 a month based on an annual income of $37,059.

iii. From December 1, 2017 to December 31, 2017 at a rate of $915 a month based on an annual income of $37,059.

iv. Commencing January 1, 2018 at a rate of $975 a month based on an imputed annual income of $40,000.

e. A support deduction order will issue.

f. I declare that as of February 1, 2018 only the Applicant is entitled to claim the Canadian Child Tax Benefit with respect to the children.

g. The Respondent shall disclose his income tax return and notice of assessment to the Applicant every year by June 1 for the previous taxation year.

h. The proceeds of sale of the matrimonial home shall be released to the Applicant forthwith. Of the amount in trust, half is attributed to the Applicant’s share of the property. The rest will be attributed to costs and child support once my decision on costs in this case is known.

i. The parties may submit written submissions as to costs not exceeding three pages in length, to which may be added a bill of costs and any offers to settle, within seven days.

j. The Applicant’s claim for spousal support is withdrawn. All other requests for relief by either party are dismissed.

J.A. Ramsay J.

Date: 2018-06-13