Court File and Parties

COURT FILE NO.: FS-12-582 DATE: July 25, 2018

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

SEAN PATRICK KELLY Applicant John Mastorakos, for the Applicant

- and -

TAMMY MARIE YANTHA Respondent Self-Represented Respondent

HEARD: March 28, 2018

REASONS FOR DECISION

James, J.

1This is a summary judgment motion brought by the applicant for the relief sought in the Notice of Motion at Volume 2, Tab 1 of the Continuing Record including parenting arrangements, child support and reimbursement for expenses incurred in relation to the matrimonial home.

2The parties have two children, Liam who is 18 years old and Taylor, who is 16 years old. The applicant seeks an order for joint custody with such access as may be mutually agreed to and as requested by the children.

3The parties are in their early 50s. They were married in 1997. They separated in 2012 but continued to reside together in the matrimonial home for a period of time thereafter.

4Throughout the marriage the applicant worked as an on-air radio host in Belleville. The respondent was a lawyer serving the Barry’s Bay area, which was where both parties were from and where they resided as a family.

5The respondent suffered from recurring bouts of depression and related mental health issues that necessitated a period of hospitalization in 2012.

6In 2013 the applicant relocated to Belleville to be closer to his work.

7By consent order dated November 12, 2013 the children moved to Belleville to live with the applicant on a trial basis with frequent weekend access visits in Barry’s Bay. No child support was payable for six months. The parties agreed that the initial six month trial period would continue beyond six months unless changed by court order or their mutual agreement. This change in parenting arrangements was consistent with the recommendations of the Office of the Children’s Lawyer (OCL).

8The respondent continued to occupy the matrimonial home after the children moved to Belleville. In November 2013 she agreed to buy the interest of the applicant within 60 days or list the property for sale. The respondent also agreed to make the mortgage payments and to pay property-related expenses in the interim.

9The property eventually sold on April 30, 2015. After expenses, the net equity of about $56,000 was divided between the parties. The equity attributable to the respondent went entirely to Canada Revenue Agency. Since the matrimonial home was sold, the respondent has resided at her father’s home.

10In or about 2015 the respondent ceased practicing law.

11The OCL made a follow up visit with the children in Belleville in November, 2015 and reported that the children were content with the parenting arrangements and had successfully settled into their new lives in Belleville.

12The respondent makes numerous allegations against the applicant including that he was abusive towards her, the move to Belleville was intended to be temporary only, he does not adequately support the children, he is abusive towards Liam, he actively works against contact between the respondent and the children, he has permitted the children to form negative peer connections and he has not involved the respondent in decision-making for the children.

13The respondent did not pay child support following the temporary trial period of 6 months when the children initially moved to Belleville. The applicant claims $2,788.98 for child support during the second half of 2014 based on the respondent’s reported income of $31,866.78. The respondent says the applicant never brought a motion to compel her to pay child support and ought to be treated as having waived his entitlement to claim for it. This submission overlooks the consideration that child support is the right of the child and cannot be waived by a parent unless there is cogent evidence to support such a decision. At the same time there are limitations on the right to claim retroactive payments extending back for years.

14The respondent’s tax return summaries (not notices of assessment) show that her line 150 income in 2014 was $31,866.78 and $5,083 in 2015. In his notice of motion, the applicant seeks retroactive and ongoing child support calculated from July, 2014. Although he was granted leave to bring a motion for temporary child support in September, 2014, the applicant did not do so. He says he asked her to start paying child support in June, 2015 but does not say why he has not taken any steps to enforce payment since then. In these circumstances and on this evidentiary record, I am not prepared to make an order granting retroactive child support on a summary judgment basis for 2014 and 2015. In addition, it may be that the applicant accepts that the respondent has not earned any income of significance for the last three years (2016, 2017 and 2018) but at the same time, there does not appear to have been any income disclosure by the respondent for these years and the respondent should be required to do so.

15While the respondent is opposed to the applicant’s motion, she does not present a viable alternative plan. On the issue of who should provide primary parenting, the respondent has not presented specific facts showing there is a genuine issue for trial. The evidence suggests that the respondent does not have suitable accommodation of her own and there is no evidence that her father, with whom she resides, supports a plan to bring the children to live at his home in Barry’s Bay. There is no evidence that the respondent has employment or an income or is equipped to properly support, maintain, or provide for the children. Liam, now 18, is old enough to decide where he is going to live and at age 16, Taylor is quickly approaching the same position. They have resided in Belleville since 2013. While, as the respondent claims, there may have been rough patches in the applicant’s parenting efforts, family life is not perfect and there is no persuasive reason to disturb the status quo. The respondent says she requires joint custodial rights and the applicant does not deny this. As for access, it seems to me that this should be determined primarily by the children’s wishes. As the parent with primary parenting responsibility, the applicant should be responsive to any requests by the children to spend time in Barry’s Bay and take reasonable steps to facilitate their travel between Belleville and Barry’s Bay. I do not agree with the respondent that access should be specifically delineated beyond what the applicant has requested in the notice of motion.

16I am satisfied that the applicant is entitled to the reimbursement for house expenses he paid while the respondent was living in the matrimonial home after the applicant and the children moved to Belleville. Pursuant to the order of Justice Minnema, the respondent was obliged to pay house expenses on an interim basis commencing immediately but she did not do so. The applicant has provided evidence that he paid $4,541.69 on account of insurance premiums and realty taxes that ought to have been paid by the respondent.

17The respondent says that since the issue of reimbursement for house expenses was not raised at the time of closing, the applicant is foreclosed from claiming compensation of $4,541.69 paid by him during the respondent’s occupancy. I do not agree. According to the Funds Summary at ex. B of the respondent’s affidavit, there were no funds available from which the applicant could seek reimbursement when the house was sold because of a claim by C.R.A. against the respondent’s share of the equity. It would take more persuasive evidence to justify a conclusion that the applicant had waived his right to reimbursement. In addition, it is worth noting that the applicant has not claimed a contribution from the respondent for the mortgagee’s charges of $7,148.01 arising when the mortgage went into default during the respondent’s occupancy.

18The applicant requests that the respondent be required to designate him as the irrevocable beneficiary of the respondent’s Sun Life insurance policy in trust for the children. The respondent says she designated the children as beneficiaries with a family member as trustee until they become adults. The identity of the family member was not disclosed nor was any evidence of the terms of the trust provided. The face amount of the policy is $200,000. According to the Sun Life document at ex. D of the respondent’s affidavit, the monthly payment is $108.63 and the “average monthly payment” made from 2014 to 2017 was $0. The policy is projected to end due to insufficient fund value in approximately 8 years. In these circumstances it appears to me that the applicant should be the beneficiary of the policy so long as the children are dependents.

Disposition

19I am satisfied that there is no genuine issue requiring a trial on the following items and the applicant is entitled to an order as follows:

a) The parties are granted joint custody of Liam and Taylor. The children shall reside primarily with the applicant. The respondent shall have access every second weekend or in accordance with the children’s wishes. The applicant shall take all reasonable steps to facilitate the respondent’s access. b) The respondent owes the applicant $2,788.98 for child support which accrued in 2014. c) The respondent shall provide the applicant with her notices of assessment for 2015, 2016 and 2017 within 90 days. If the respondent has not filed tax returns for 2016 and 2017, the respondent shall provide to the applicant reasonable evidence of all sources of income, including disability payments or governmental assistance. d) The respondent shall provide her tax return and notice of assessment to the applicant on or before June 30 each year commencing with her 2018 tax return so long as the children are dependents. e) The respondent owes the applicant $4,541.69 as reimbursement for his contribution towards insurance premiums and realty taxes. f) The respondent shall appoint the applicant as the beneficiary of Sun Life Policy No. 40348288 to hold and administer the proceeds in trust for Liam and Taylor so long as either of them is a dependent. The respondent shall provide evidence of the appointment within 30 days and annually thereafter. g) The applicant may request a divorce on an uncontested basis. h) This order shall be treated as a final order except that either party may request a case conference within 60 days to address the applicant’s child support claim for the period 2015 to 2017. If no case conference is requested within the said 60 day period, the child support payable by the respondent for the said period shall be set at $0. i) All other claims by the applicant and the respondent are dismissed.

20On the issue of costs, the applicant may deliver his cost submissions and a bill of costs within 30 days for the application, including this motion, and the respondent shall have 20 days to respond.