Court File and Parties

COURT FILE NO.: 3108/14 DATE: 2018-11-16 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TAMMI WARICK Applicant – and – TIMOTHY WARICK Respondent

Counsel: Self-represented (for Applicant) (Respondent did not attend)

HEARD: November 13, 2018

GAREAU J.

Reasons for Order

[1] This matter proceeded to trial before me on November 13, 2018. The applicant, Tammi Warick, now known as Tammi Belsito, appeared at the trial without counsel. The respondent, Timothy Warick, did not attend at the trial, although his name was paged. Earlier in the day the respondent appeared at the continuation of a trial management conference before Varpio J. The trial was to commence at 1:30 pm. The respondent was advised of that fact by the trial coordinator, Marc Baril, by email forwarded to the respondent on November 13, 2018 at 10:39 am (Exhibit 1). The respondent replied by email dated November 13, 2018 at 11:02 am advising that he would not be in attendance at the trial (Exhibit 7). The trial proceeded in the absence of the respondent, Timothy Warick.

[2] The applicant testified at the trial in this matter. The applicant identified custody, access, support and the equalization of net family property as the issues to be adjudicated by the court. The applicant also made a request for a restraining order against the respondent but this was not claimed in the notice of application issued on July 18, 2014 and no evidence was led by the applicant with respect to this claim. Given this I am not inclined to make a restraining order.

Custody and Access

[3] The evidence of the applicant was that the parties began residing together in early 1991 and were married on August 30, 2003. The parties separated on May 4, 2014 and have lived separate and apart since that date.

[4] As a result of their relationship, the parties are the biological parents of two children, namely, Sydney Alicia Belsito-Warick, born December 9, 2000, and Jasmine Emily Warick, born January 8, 2005. As indicated in the trial record (Tab 9) shortly after separation on August 1, 2014, there was a temporary order which provided that the applicant have custody of Sydney and Jasmine. The said order provided that the respondent have reasonable access on reasonable notice, with all access arrangements to be made directly with the applicant. Although not in the trial record, there was a subsequent order granted on August 15, 2015 by Varpio J. made on consent that provided for a joint custody arrangement with the children residing with the applicant and the respondent having reasonable access on reasonable notice. It was the evidence of the applicant that after that order was made in 2016, the respondent spent the year in Costa Rica, with his only contact with the children being by social media. Obviously the parties have not effectively operated under a joint custody regime and the de facto situation has been that Sydney and Jasmine have resided primarily with their mother who has had the responsibility for their care and wellbeing.

[5] It was the evidence of the applicant that Sydney and Jasmine have resided with her on a full-time basis since separation. The evidence of the applicant was that Mr. Warick has not had ongoing, set access to Sydney and Jasmine and that his access has been sporadic at best. The applicant testified that the last time the respondent had face to face contact with Sydney was in September 2017, and with Jasmine it was in August 2016. The children keep in contact with their father through social media. It was the evidence of the applicant that both Sydney and Jasmine wish to continue to have contact with their father but on their terms.

[6] Sydney is almost 18 years of age and at that age she can certainly decide for herself where she is going to live and what type of contact she is to have with her father. Jasmine is 13 years of age and her preferences and wishes should carry some weight at that age.

[7] The only arrangement that Sydney and Jasmine has known is one where they have lived primarily with their mother. On the evidence before me it appears that this arrangement is in their best interest and accordingly the applicant is awarded custody of Sydney and Jasmine. The children’s wishes as to access with their father should be respected given their ages. Accordingly, the respondent shall have reasonable access on reasonable notice in accordance with the wishes of the children.

Child Support

[8] The temporary order granted on August 1, 2014 provides for guideline child support payable by the respondent to the applicant in the amount of $1,500 per month based on the respondent’s 2013 income of $111,829. The respondent was also ordered to pay 82% of section 7 extraordinary expenses identified as horseback riding lessons, dancing lessons and orthodontics. This arrangement was varied by a temporary order granted on consent on August 25, 2015. This order provided for child support of $743.00 per month based on an “estimated income” of $50,000 for 2015 of the respondent. This order also provided that the parties pay 50% of the children’s extracurricular activities, identified as horseback riding and dance lessons.

[9] The applicant takes the position that the income of the respondent should be imputed to $100,000 yearly for the purpose of setting guideline child support. The most recent financial statement filed by the respondent is sworn on May 9, 2016 (Exhibit 3). The income section of the financial statement has not been completed, however, at paragraph 4 on page 2, the respondent states that his income from the last year was $65,588.60. A 2016 comparative tax summary for Mr. Warick, entered as Exhibit 4, indicates that his gross income from 2012 to 2016 inclusive was as follows:

• 2012: $103,094.00
• 2013: $111,830.00
• 2014: $114,346.00
• 2015: $ 57,654.00
• 2016: $ 63,975.00

[10] It was the evidence of the applicant that the respondent retired from the Ontario Public Service in 2018. The applicant does not know what the respondent is presently receiving in retirement pension income from the Ontario Public Service. Exhibit 2, Tab 17, is a letter dated June 1, 2018 from OPSEU Pension Trust that indicates that Mr. Warick has three options related to his pension. First, he can start receiving a pension benefit at age 65 of $276.11 monthly. Second, he can receive an immediate reduced pension of $227.89 monthly which would be further reduced to $170.27 monthly as of March 1, 2026. Third, he can transfer his pension benefits into a new pension plan by way of a lump sum payment. The applicant does not know which one of the aforementioned options the respondent has exercised. Assuming Mr. Warick opted for an immediate reduced pension he would receive $2,734.68 annually according to the information contained at Exhibit 2, Tab 17. The applicant testified that in addition to this pension income the respondent receives $65,588.60 annually as an earnings loss benefit from Veteran Affairs Canada.

[11] In her evidence the applicant identified a third source of income for the respondent as lump sum disability benefits he may receive from Veteran Affairs Canada on an annual basis. These are lump sum disability awards in addition to all other funds received by Mr. Warick. Exhibit 2, Tab 37, sets out particulars of the 2014 disability award received by Mr. Warick from Veteran Affairs Canada. In 2014 Mr. Warick received a lump sum disability award of $76,674.55 (Exhibit 2, Tab 40). In 2016 Mr. Warick received a lump disability award of $46,556.79 (Exhibit 2, Tab 41). The average of these three awards total $61,162.13. Ms. Belsito indicated in her evidence that she has no knowledge if Mr. Warick received similar awards in 2017 or 2018 or the amounts of such lump sum disability payments if in fact they are received by Mr. Warick.

[12] The court has definite evidence of income of $65,588.60 annually for Mr. Warick for earnings loss benefits received from Veteran Affairs Canada. It is reasonable to assume that Mr. Warick has additional income from his OPSEU pension, which I place at $2,734.68 based on Mr. Warick receiving a reduced immediate pension.

[13] With respect to the lump sum disability benefits and the amount that should be attributed to the respondent, there is no evidence of any amounts having been received since 2016. Having said that, the past history indicates that Mr. Warick has received annual awards by way of lump sum disability benefits. On the evidence before me it is reasonable to attribute some amount to Mr. Warick as income from this source and I attribute the sum of $11,676.72 as income to Mr. Warick by way of annual lump sum disability payments. In my view, this is a modest amount given what Mr. Warick has received in the past and balances this against the uncertainty of what he may receive in the future.

[14] In conclusion, I impute income to the respondent in the amount of $80,000 annually for the purpose of guideline child support pursuant to the Child Support Guidelines. This calculation is made up as follows:

• Earnings loss benefits: $65,588.60
• OPSEU Pension: $2,734.68
• Lump sum disability benefit: $11,676.72
• Total: $80,000.00

[15] On the evidence before me it is easy to find that both Sydney and Jasmine are entitled to receive child support. In June 2018, Sydney graduated from grade 12. She is currently taking three on-line university courses through Athabasca University. Sydney intends on attending at Algoma University in September 2018. Sydney’s study of interest is mathematics and she intends on pursuing a PhD in that discipline. Jasmine is in grade 8 at Our Lady of Lourdes Catholic Elementary School. Both Sydney and Jasmine reside with their mother and are pursuing their education in a responsible and appropriate manner. Both children are entitled to child support. On a gross income of $80,000 per year, the respondent is to pay the applicant child support for Sydney Alicia Belsito-Warick, born December 9, 2000, and Jasmine Emily Warick, born January 8, 2005, in the amount of $1,211.00 per month, commencing December 1, 2018.

[16] Sydney and Jasmine no longer have dance lessons or horseback riding which attracted a section 7 calculation from the respondent in the past. Having said that, it was the evidence of the applicant that the children have ongoing expenses for eyeglasses and dental care that are not covered through benefits received by the applicant from the Ontario Government. The applicant suggests that these expenses be paid equally by her and Mr. Warick. This is not unreasonable and is in fact advantageous to Mr. Warick given the fact that Ms. Belsito’s income is in the range of $56,000 annually. Filed as Exhibit 7 are various receipts for past payments paid by the applicant for dental, prescription and eyeglass coverage out of pocket for Sydney and Jasmine. These receipts justify the applicant’s request that the respondent contribute the sum of $800.00 for 2017 and 2018 as his 50% contribution for those years. There shall be an order that the respondent pay to the applicant the sum of $800.00 representing 50% of these expenses incurred in 2017 and 2018. Commencing January 1, 2019, the respondent shall pay to the applicant 50% of all prescription, dental and eyeglass expenses for Sydney and Jasmine not covered by the Ontario Government programs and which must be paid out of pocket by the applicant.

Spousal Support

[17] In the application issued on July 18, 2014, the applicant made a claim for spousal support. In her evidence at trial the applicant indicated that she is only seeking spousal support for the year 2014 based on the disparity of income between herself and Mr. Warick during that year. There was no motion brought for interim spousal support by the applicant. The notice of assessment for the applicant for 2014 indicates that her gross income for that year was $33,643.00 (Trial Record, Tab 6). The comparative tax summary (Exhibit 4) for 2014 for the respondent indicates that he had a total income of $114,346.00 comprised of employment earnings of $73,348.00 and an RRSP that was liquidated in the amount of $40,998. In her evidence the applicant indicated that the respondent liquidated this asset after separation and that it was a onetime non-reoccurring event. The applicant will receive the benefit of the RRSP in the respondent’s name in the equalization of net family property. Given the fact that there was no request for interim spousal support and that there is five months of support involved for 2014 from the time the application was commenced to the end of the year, I am not inclined to make an award for spousal support for 2014. The applicant indicated in her evidence that she is not seeking an order for ongoing spousal support.

Equalization of Net Family Property

[18] The applicant prepared a net family property statement dated October 11, 2018 (Trial Record, Tab 7). Based on that statement the respondent would owe the applicant an equalization payment of $53,933.45. The respondent did not file a net family property statement. The court does have evidence as to what the respondent claims his asset and debt situation were at the time of separation by way of his financial statement sworn on May 9, 2016, entered as Exhibit 3.

[19] The support for the amounts set out in the applicant’s net family property statement are documents in a brief entered as Exhibit 5. A review of the documents in that brief and the evidence given by the applicant at trial satisfies me that the proper calculation of the net family property positions of the parties is as follows:

Applicant - Tammy Belsito

Assets

• Matrimonial home: $195,000.00
• Household furniture: $5,000.00
• 1991 Toyota 4 x 4: $450.00
• Firearms sold: $1,627.25
• RRSP, account 3098: $2,072.00
• Total Assets: $204,149.25

Debts

• Mortgage on matrimonial home: $92,253.27
• American Express credit card: $1,000.00
• Total Debts: $93,253.27

Net Family Property: $110,895.98

Respondent – Timothy Warick

Assets

• 19-foot War Eagle boat: $20,000.00
• 90-horse power Mercury boat motor: $10,000.00
• Joint chequing account: $17,830.75
• RRSP: $40,405.39
• RRSP: $60,423.00
• RRSP: $2,900.00
• TFSA: $700.00
• Shares BCE: $32.00
• Total Assets: $111,885.75

Debts

• Lifelong Learning Plan: $20,000.00
• Total Debts: $20,000.00

Net Family Property: $91,885.75

[20] The amounts included in the calculation are supported by the documents contained in Exhibit 5 (document brief on equalization) and the amounts listed in the financial statement of the respondent sworn on May 9, 2016, entered as Exhibit 3. The calculation of the equalization of net family property is based on the applicant retaining the matrimonial home at 67 Central Creek Drive, Sault Ste. Marie, Ontario, and assuming responsibility for the mortgage registered against the home. The order granted on August 1, 2014 provides at paragraph 6 that “The respondent will transfer his interest in the matrimonial home located at 67 Central Creek Drive, Sault Ste. Marie, Ontario to the applicant, free of all encumbrances. The applicant will pay the cost of the preparation and registration of the transfer.” The applicant testified that this transfer, although ordered, never took place and that she still wants the matrimonial home.

[21] On the basis of the calculation at paragraph 19, the applicant Tammi Belsito owes an equalization payment to Timothy Warick in the amount of $9,505.11.

[22] The aforementioned equalization payment will be satisfied by way of set-off against costs payable by the respondent in this action. There shall be no order of costs in this action. It was the evidence of the applicant that she is obligated to repay the Ontario Legal Aid Plan the approximate sum of $13,000 for legal expenses that she has incurred in connection with this action. Undoubtedly there would have been an order for costs made in favour of the applicant in this action given the attitude taken by the respondent and his refusal to provide requested court ordered and relevant ongoing financial disclosure in this matter. Costs to the applicant are to be offset by any equalization payment that the applicant owes to the respondent.

Conclusion and Order Made

[23] For the reasons set out in the aforementioned paragraphs, there shall be a final order as follows:

(a) The applicant shall have sole custody of Sydney Alicia Belsito-Warick, born December 9, 2000, and Jasmine Emily Warick, born January 8, 2005; (b) The respondent shall have reasonable access to Sydney and Jasmine on reasonable notice to the applicant and in accordance with the wishes of Sydney and Jasmine; (c) The respondent shall pay to the applicant the sum of $1,211.00 per month for child support for Sydney Alicia Belsito-Warick, born December 9, 2000, and Jasmine Emily Warick, born January 8, 2005, commencing December 1, 2018, and based on the respondent having an imputed income of $80,000 annually; (d) Commencing January 1, 2019, the respondent shall pay 50% of the prescription, eye care and dental expenses for Sydney Belsito-Warick and Jasmine Warick not covered by any Ontario health care program; (e) The respondent shall pay to the applicant the sum of $800.00 for 50% of the prescription, eye care and dental expenses incurred by the applicant in 2017 and 2018 for Sydney and Jasmine not covered by any Ontario health care program; (f) The applicant’s claim for spousal support for 2014 is dismissed; (g) The matrimonial home located at 67 Central Creek Drive, Sault Ste. Marie, Ontario legally described as PCL 3-2 Sec IM527, Pt Lt 3 PL IM527, Korah, Part 4, IR9297, Sault Ste. Marie PIN Number 315960019 is to be vested in the name of the applicant Tammi Belsito. The applicant shall be solely responsible for the payment owing on the mortgage registered against the said home in favour of Tangerine Mortgage with a current balance of $92,253.27 and shall indemnify and save the respondent harmless with respect to the payment of the said mortgage. The applicant shall use her best efforts to have the name of the respondent released from the mortgage in favour of Tangerine Mortgage with respect to the property at 67 Central Creek Drive, Sault Ste. Marie, Ontario; (h) There shall be no equalization payment owing by either party to the other and no further division of property between them; (i) All other claims in the notice of application shall be dismissed. All claims in the answer dated May 1, 2015 shall be dismissed; (j) There shall be no costs of this proceeding; (k) This final order is able to be taken out by the applicant without the approval of the respondent.

Gareau J. Released: November 16, 2018