Court File and Parties

COURT FILE NO.: FS-17-421342 DATE: 20190429 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Marion Davies Applicant – and – Paul Cummings Respondent

Counsel: Denise Badley, for the Applicant Not Appearing

HEARD: April 26, 2019

C. Gilmore, J.

Judgment on Uncontested Trial

Overview and Litigation Background

[1] The respondent was served with the Application in this matter on December 15, 2017 by email. By way of court order dated February 7, 2018 the irregular service of the Application was accepted as personal service by the court. The applicant claims a divorce, equalization of net family property and costs.

[2] The first Case Conference was held on May 11, 2018. The respondent was served with the Case Conference brief on March 22, 2018. By May 11, 2018 the respondent had not served or filed an Answer, Financial Statement or Case Conference brief. However, the respondent attended the May 11, 2018 Case Conference. He did not have counsel. The conference judge directed the respondent to the Family Law Information Centre and the court’s website for information and explained the importance of responding to the case.

[3] The Case Conference judge ordered the respondent to serve and file his Answer, Financial Statement and Case Conference brief by June 11, 2018 with a continuation of the Case Conference scheduled for June 15, 2018. The parties were permitted to serve documents by email.

[4] The respondent appeared at the June 15, 2018 Case Conference. He was ordered to produce statements for his locked in retirement plan for the date of marriage and the date of separation, proof of his OSAP and Capital One credit card debt for the date of separation and a copy of his bank statement for the date of separation. A Settlement Conference was scheduled for September 17, 2018.

[5] The respondent did not appear at the September 17, 2018 Settlement Conference and filed no material. According to the applicant, he told her he was “finished” with court. The applicant’s counsel called him from court and was told that he did not plan to attend the Settlement Conference. A one day trial was fixed for November 26, 2018. A copy of the endorsement was ordered to be sent to the respondent by email.

[6] On November 22, 2018 the applicant brought a 14B motion on notice requesting an adjournment of the trial due to a death in her counsel’s family. The respondent was served with the request and consented to the adjournment. The court ordered that a Trial Management Conference take place no later than January 31, 2019.

[7] A Case Conference was held on February 1, 2019. The respondent attended by telephone. The parties consented to the divorce being severed from the corollary relief. The respondent indicated he would like to consult with counsel on the equalization issue. A Trial Management Conference was scheduled for February 27, 2019. The respondent was permitted to participate by telephone and was encouraged to file an Offer to Settle prior to the Trial Management Conference date.

[8] On February 27, 2019 the respondent did not call in. The court made several attempts to reach him by telephone but without success. Given the inclement weather on that date, the court afforded the respondent a further chance to appear on March 20, 2019. The respondent was ordered to pay costs to the applicant of $375 prior to March 20, 2019.

[9] The respondent did not attend by telephone on March 20, 2019 despite being provided with the call in number by the court office. The applicant’s counsel confirmed that she sent the respondent a copy of the February 27, 2019 endorsement. The respondent had not paid the costs as ordered. The court ordered that the matter proceed to an Uncontested Trial on April 26, 2019 and the respondent was to be sent a copy of the endorsement. The respondent was ordered to pay further costs to the applicant of $375.

[10] It is clear that the respondent has no interest in participating in this proceeding. He did not appear on April 26, 2019. He was paged outside of the court at 10:20 a.m. on that date, without any response. Ms. Badley, counsel for the applicant, confirmed that she sent the respondent a copy of the March 20, 2019 endorsement by both email and regular mail. She also confirmed that she had received an unsigned Answer, a sworn financial statement and one piece of disclosure from the respondent. The respondent’s Answer and financial statement were not filed with the court but were provided in the applicant’s Trial Record. The costs ordered on February 27 and March 20, 2019 have not been paid. The matter therefore proceeded in the respondent’s absence on April 26, 2019.

The Applicant’s Evidence and Claims

[11] The parties were married on November 23, 2008 and separated on August 23, 2017. The parties have no children. The applicant makes no claim for spousal support. As such, the parties’ incomes are not in issue in this trial, although both parties are employed.

[12] The parties lived in rental accommodation during the marriage. The respondent left the home after separation. The applicant is not certain where he currently resides.

[13] The applicant provided a net family property statement and gave evidence to support her position that she is owed an equalization payment of $51,108.38. On the valuation date the applicant owned a car, some furniture and a bank account with a small amount of cash. Her total assets were $4,227.44. On the valuation date, the applicant had credit card debt, personal loans and an OSAP loan totalling $34,207.61. She owned no property or had no debts on the date of marriage. The applicant provided a document brief which confirmed her debts on the date of separation.

[14] As the respondent is in default, the applicant gave evidence concerning his assets and debts as well. The applicant referred to the respondent’s financial statement sworn June 11, 2018. The applicant agreed that on the valuation date the respondent owned a 2001 Honda Civic worth $1,500 and a bank account with $157.28. She did not agree that the respondent had student loans or credit card debt totalling $12,000 on the date of marriage or on the date of separation. She is aware that he incurred a student loan but that was in September 2017 after the date of separation. The respondent had no property or debts on date of marriage and no debts on the valuation date as he had gone bankrupt the year prior to separation.

[15] The major asset of the parties’ marriage was the respondent’s pension. The respondent did not include this asset in his sworn financial statement. The respondent is aware of the pension as the statements continued to come to her home post separation. The sole piece of disclosure provided by the respondent in this case is a statement from TD Bank dated May 16, 2018. The statement indicates that it was prepared for the respondent and refers to a locked in RSP account number 7035530 with a balance of $100,559.48. The applicant’s evidence was that during the marriage, the respondent withdrew the pension and invested it in a mutual fund. Her evidence was that this statement reflected the locked in pension invested as a mutual fund and she asked the court to rely on the document as proof of the value of the pension.

[16] The applicant’s evidence was that this pension related to a period when the respondent worked as a Special Constable at Queen’s Park. He commenced this employment about a year prior to the date of their cohabitation in January 2004. While the respondent was ordered to produce a copy of his pension statement for the date of marriage, he failed to do so.

[17] The applicant testified that about four months prior to separation the parties discussed ways in which to manage their debt. The respondent had gone bankrupt and they decided that the respondent’s credit card debt from his post bankruptcy Capital One card of $600 would be transferred to the applicant’s lower interest card credit card. The applicant’s evidence was that they agreed that the respondent would pay this off by making payments to the applicant’s credit card. The respondent not only failed to make the payments but the applicant discovered that the charges to the Capital One card relatedly solely to the purchase of dinners and drinks enjoyed by the respondent and the woman with whom he was having an affair during the marriage. The applicant has therefore included the $600 as a debt owed to her in her net family property statement.

Analysis and Ruling

[18] The applicant was a credible and organized witness. She provided documents for her positions on equalization and reasonable explanations where documents were not available. I accept her evidence that the respondent’s pension was the most significant asset of their relationship and marriage and I further accept that its value on the date of separation was $100,559.

[19] I accept the applicant’s testimony that due to his bankruptcy in the year prior to separation, the respondent had no debts for equalization purposes.

[20] There is really only one issue left to determine; whether the respondent is entitled to any pre-marriage deduction for his pension.

[21] According to the applicant, the respondent began his work at Queen’s Park in 2002. The parties began to cohabit in January 2004. Given that this was a government pension, there is no reason why entitlement for equalization purposes would not start on the date of cohabitation. This would mean a potential deduction of one to a maximum of two years of pre-cohabitation pension accumulation. The respondent has failed to provide any further information about this asset other than the May 2016 statement. The court is not in a position to “guess” as to what any pre-marriage or cohabitation deduction would be. Therefore, no deduction will be afforded to the respondent.

[22] The pension funds are in a locked in fund. Therefore, the only way to for the applicant to receive her share is by way of a rollover to a similar locked in RSP account. The equalization payment is calculated assuming that there is no disposition cost. If I am wrong, the applicant would receive the after tax amount from the RSP. A reasonable disposition cost would be 20% in this case.

Final Orders

[23] Given all of the above I make the following final orders:

[24] The respondent shall pay to the applicant forthwith the sum of $51,108.38 in full satisfaction of the equalization payment owed by him to the applicant. This payment assumes that the payment will be made by way of direct rollover from the respondent’s TD account for locked in RSP 7035530 to a locked in RSP for the applicant such that no tax implications are triggered for either party.

[25] The respondent is hereby ordered to forthwith sign such documents and as may be required by TD to effect the rollover.

[26] In the event that the respondent fails to cooperate with this order, this order shall be sufficient authority for TD to complete the rollover from the respondent to the applicant without the consent of the respondent.

[27] The respondent shall pay to the applicant the sum of $600 representing payment for the debts she incurred on her Capital One Mastercard for him. This payment is due within 30 days of this order.

[28] The respondent shall pay to the applicant costs of $4,400 inclusive of disbursements and HST for this trial. The respondent also owes total costs of $750 from the February 27 and March 20, 2019 conferences and shall pay those costs forthwith.

[29] The parties are hereby divorced.

[30] A copy of this judgment shall be sent to the respondent by email and by regular mail.

C. Gilmore, J. Released: April 29, 2019