Court File and Parties
Court File No.: 03787/17 Date: 2018-10-18 Ontario Superior Court of Justice
Between: Nicole Rhea Marie Forest, Applicant – and – John Paul Gabriel, Respondent
Counsel: M. Ducharme, for the Applicant Unrepresented, for the Respondent
Heard: September 21, 2018
Decision
Wilcox, J
[1] The Application was issued on May 17, 2017, and served on August 21, 2017, by leaving a copy with the respondent. The Amended Application was then issued on December 5, 2017 and served on December 20, 2017, again by leaving a copy with the respondent. There has been no response. Consequently, on January 24, 2018, an order was made allowing the applicant to proceed to an uncontested trial. That trial was held on September 21, 2018.
[2] In the amended application the relief claimed was: a. Divorce b. A restraining/non-harassment order c. An unequal division of the net family property in favour of the applicant d. That the applicant be granted exclusive possession of the matrimonial home or, alternatively, that the matrimonial home be sold, and the proceeds divided unequally e. That the respondent pay spousal support to the applicant, indexed annually to the rate of inflation f. That the respondent shall pay to the applicant child support arrears.
[3] The applicant’s request were reduced somewhat in the affidavit for uncontested trial, where she sought: a. Divorce b. An equalization of the net family property c. exclusive possession of the matrimonial home or, alternatively, the sale of the property d. An unequal division of the net family property in favour of the applicant e. Severance of title to the joint real and personal assets of the parties f. Child support and arrears of child support for the James Douglas Gabriel
[4] The evidence at trial consisted of: a. The applicant’s affidavit for uncontested trial dated September 12, 2018, with supporting exhibits; b. The applicant’s form 13.1 financial statement, sworn September 12, 2018; and c. The applicant’s net family property statement sworn September 21, 2018.
[5] The applicant’s evidence was, in summary, that the parties were married on April 27, 1996, that they separated in December, 2014, and that there is one child of the marriage, James Douglas Gabriel born September 4, 1998, now age 20. When the parties got together, the respondent was working. He was employed until 2008 when he left his employment because of alleged back problems. He remained on ODSP or long term disability until 2014. After separation, he returned to work in Sudbury, Ontario. This employment ended in January, 2016, when he was arrested for possession of child pornography, for which he was convicted and sentenced. Since his release, to the best of the applicant’s knowledge, the respondent is once again in receipt of ODSP, amounting to approximately $1,000.00 per month.
[6] The applicant deposed regarding the major assets and debts as follows.
[7] The matrimonial home was located in Haileybury, Ontario. The parties sold the home and divided the proceeds in September, 2016.
[8] During the relationship, the parties jointly purchased a triplex at 45 Amwell Street in Haileybury. That building was valued in September, 2016, at $130,000.00. There remains a mortgage payable on it. The balance remaining on the mortgage was approximately $122,000.00 at separation. The applicant has accessed this mortgage line of credit for use on the building since separation. If the building was to be sold, taking into account the mortgage, real estate agent’s fees and legal fees, there would be no equity.
[9] Since the separation, the applicant has remained in one of the apartments at 45 Amwell Street. She has received rent from the other two apartments in the building, but she has also had to pay expenses for the maintenance and upkeep of it, as well as the utilities, insurance, and property taxes. Without factoring in her own rent, the building operates at a loss.
[10] The respondent had a pension, apparently a defined contribution plan, the value of which in 2008, as of when the applicant has a statement for it, was $52,486.06.
[11] The ownership of a 2011 Artic Cat snowmobile is in the respondent’s name, but the applicant has been paying for it since it was purchased in 2012. It will be paid off by her in 2019.
[12] The applicant’s net family property statement produced net family property amounts of $12,722.00 for her and $58,908.00 for the respondent, resulting in him owing her an equalization payment of $23,093.00. However, at the hearing, it was realized that her debt for the Artic Cat snow machine inadvertently had been left out. Taking it into account reduced her net family property to $4,846.96 and increased the equalization payment owed by him to her to $27,030.52.
[13] The applicant’s counsel submitted that the applicant has no other financial information regarding the respondent and no idea if he can pay the equalization. The transfer of both the 45 Amwell Street property and the Artic Cat snowmobile to the applicant would still leave an equalization payment owing from the respondent to her, which the applicant had no expectation of recovering. Counsel had instructions to seek the transfer of these from the respondent to the applicant in full satisfaction of the equalization payment owed, pursuant to Family Law Act s. 9.
[14] There was no information in the affidavit for uncontested trial to support a claim for child support. (Counsel indicated that the child had taken a gap year after high school and was in the second year of a college program). In view of this and the lack of the respondent’s ability to contribute to the child’s support if he was on ODSP, which was the situation as far as the applicant knew, the claim for child support was withdrawn.
[15] In summary, I would make a final order as follows:
- The Divorce may proceed as uncontested.
- In full satisfaction of the respondent’s obligation to pay a net family property equalization to the applicant, a. The property municipally known as 45 Amwell Street, Haileybury, Ontario, shall be transferred from the names Nicole Rhea Marie Forest and John Paul Gabriel to the name of Nicole Rhea Marie Forest alone, and b. The ownership of the 2011 Artic Cat snowmobile shall be changed from John Paul Gabriel to the name of Nicole Rhea Marie Forest.
- The respondent shall pay to the applicant her costs of $8,249.00 inclusive of fees, disbursements and HST forthwith.