COURT FILE NO.: FS-18-92346-00
DATE: 2019 10 28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Bibi S. Singh
Ritika Narang, for the Applicant
Applicant
- and -
Vishwadeep Singh
No one appearing for the Respondent
Respondent
HEARD: March 25, 2019
REASONS FOR JUDGMENT
Kumaranayake J.
[1] These are my Reasons for Judgement for the uncontested trial, heard on March 25, 2019.
[2] By an Application issued on May 30, 2018, the Applicant requested various relief, including: divorce; sole custody; child support; contribution to section 7 expenses; spousal support; exclusive possession of the matrimonial home and its contents; equalization of net family properties with an unequal distribution; freezing of assets; sale of family property; the ability to obtain and renew the child’s passport without the Respondent’s consent or signature; non-removal of the child from the Peel area; requiring the Respondent to obtain a life insurance policy to secure child and spousal support obligations; contribution to the child’s RESP; a non-depletion order; and sale of the matrimonial home.
[3] The Respondent was not present at trial. He was served with the Application on June 2, 2018. He did not respond to the Application.
[4] A case conference was held on October 16, 2018. On that date, Seppi J. noted the Respondent in default, granted leave for motions to proceed, and granted leave for the Applicant to proceed with an uncontested trial. There have been no motions since the case conference.
Background
[5] The Applicant and the Respondent met when the Applicant was 16 years old.
[6] The Applicant and Respondent were married on August 1, 1998. They separated in or about May 28, 2016. The Applicant was born on September 24, 1974 and is currently 45 years old. She was 42 years old when the parties separated. The Respondent was born on March 18, 1975. He is currently 44 years old. He was 41 years old when the parties separated. Both parties have worked throughout their 18-year marriage and both have continued to work since their separation.
[7] The Applicant and the Respondent have one child of the marriage: Aaron Arjun Singh, born on November 1, 2003. He is currently 15 years old. He was 13 years old when his parents separated.
[8] The only evidence presented during this trial was that of the Applicant. The Respondent was paged at the commencement of the trial, but he did not respond.
Summary of Applicant’s Evidence
[9] Since separation, the parties and the child have lived in the matrimonial home. The Respondent lives in the basement. The three of them do not share meals. The Applicant indicated that when the child is with her, she prepares his meals and when the child is with the Respondent, he prepares the child’s meals. The Applicant described the living environment as very tense and uncomfortable for her and the child. She has minimal interaction with the Respondent.
[10] Her evidence was that during the marriage, she was a housewife and worked outside of the home. She also testified that when the child was younger, the Respondent would get the child ready for junior kindergarten and the paternal aunt would pick him up.
[11] From the time the child was 11 to 13 years old, he spent limited time with the Respondent as the Respondent was not around a lot. I infer from her evidence that this was because the Respondent worked shifts. She stated that she always “kept the father in the loop” on matters relating to the child.
[12] The Applicant’s evidence was that now, the child spends approximately one hour after school with the Respondent after he has finished his homework. On weekends, the Respondent does not see the child that much as the Respondent sleeps in due to his shift work.
[13] Both the Applicant and the Respondent have travelled alone with the child. The Respondent and child travelled to New York from March 8 to 11, 2019 and there were no problems. She advised that the child spent March Break with her. She also stated that she has been able to take the child to Jamaica – the Respondent paid for the trip.
[14] She also testified that there has been violence in their relationship. On one occasion, approximately one month prior to this hearing, she contacted the police. The Applicant testified that the Respondent had wanted to speak to her and kept sending text messages about whether the child had showered or not. Her evidence was that she told the Respondent to ask the child as the child was 15 years old. The Respondent continued to send text messages, to which the Applicant did not respond. She locked herself in her room. The Respondent started banging and kicking at her door and eventually she came out of her room. The child also tried to intervene, but the Respondent told him to stay out of it. There were no injuries. The Applicant indicated that the police took a report from the parties and the child, but she did not have the police report for this incident. She was told that the report could not be filed as a domestic violence as she had waited two days to contact the police.
[15] Her evidence was that the first time she was physically assaulted by the Respondent was when she was 16 years old. She said he strangled her in a phone booth. As a result, the Respondent had to do community service and they were not allowed to see each other.
[16] The Applicant stated that she and the Respondent resumed their relationship when she was 19 years old and she described him as a different person. They got married when she was 23 years old. Their son was born when she was 29 years old.
[17] The Applicant indicated that throughout the relationship, they argued and there was a bit of hitting and pushing by the Respondent. She stated that after the birth of their son, there were incidents where he hit her. She described one incident that occurred when the child was approximately 5 years old. The Applicant did not want the Respondent to leave the house as she suspected he was going to see another woman. She wanted him to stay so she could talk with him but he threw a beer bottle at her. The Applicant stated that the child still remembers this incident.
[18] The Applicant stated that there were other incidents where the Respondent would push her. He grabbed her hand, leaving a hand print. He has pushed her against the wall and put his hands to her neck.
Custody
[19] In the Application, the Applicant requests sole custody. However, in her evidence, she initially indicated that she wanted joint custody with the Respondent. She indicated that the Respondent has made statements to her that she will not get custody of the child. Her evidence was that she is not allowed to take the child anywhere without the Respondent’s permission and that the Respondent will send text messages to find out where they are.
[20] When asked about the parties’ ability to make joint decisions, the Applicant stated that when they do make joint decisions, the Respondent must have the final say. She wants to have the final say in decisions for and about the child. She stated that she did not want to cut the Respondent out of the child’s life and that she wants them to have a relationship. She indicated that she and the Respondent do not communicate very well.
[21] The Applicant also stated that she does what she needs to do, and that the child follows the Applicant’s decisions. The Applicant has more interaction with the child’s school as the Respondent works shifts. She attends the parent-teacher interviews. If the child is ill, she takes him to the doctor and gets the prescription filled.
Matrimonial Home
[22] The Applicant and the Respondent purchased the matrimonial home, located at 32 Benmore Crescent, Brampton, on February 22, 2007. The purchase price was $372,066.16. According to the mortgage registered at that time of purchase, there was a mortgage registered against the property in the amount of $347,727.44. Both parties are registered on title as joint tenants.
[23] The Applicant did not provide any evidence as to how the matrimonial home was financed or their respective financial contribution to the purchase of the matrimonial home.
[24] In her financial statement, dated May 24, 2018, the Applicant estimated that the value of the matrimonial home at separation was $350,000, and $400,000 as of the date of her financial statement. At trial, she estimated that the current value of the home was $600,000 to $700,000 but was unable to advise what she based that figure on. Her evidence was that the current mortgage on the matrimonial home is $226,000.
[25] The Applicant’s evidence was that the combined expense of the mortgage, property tax, utilities, home insurance and car insurance is approximately $4,500 per month. Payment comes out of the Respondent’s account. The Applicant contributes $1,000 biweekly to these expenses, which is approximately $2,000 per month.
[26] The Applicant indicated that she did not think the Respondent would cooperate with the sale of the home. She stated that he has made statements that he wants to keep the home for their son.
[27] The Applicant’s evidence was that prior to purchasing the matrimonial home, the parties lived in two other properties which the parties purchased together. The Applicant and the Respondent were on title for both properties.
Applicant’s Employment and Income
[28] The Applicant currently works for Milkman and has been an employee there for 11 years. She started as a customer service representative, earning $33,000. At the time of the trial, she stated that she earned $55,000 and held the position of general manager of sales.
[29] The Applicant testified that she has always been employed during the marriage, except for when she was on maternity leave in 2003 to 2004, after the child was born.
Respondent’s Employment and Assets
[30] As the Respondent did not respond to the Application, despite being served on June 2, 2018, there is no direct evidence from him. The Applicant gave evidence about her knowledge of his employment.
[31] Since 2001, the Respondent has worked for Apotex. He started as a quality assurance worker. His income in 2001 was $45,000. By the time the parties purchased the matrimonial home in 2007, the Respondent was a manager of quality assurance, earning $68,000 per year.
[32] The Applicant had knowledge of the Respondent’s income as they filed their taxes together and kept all their tax documents together. However, since separation, the Applicant indicated that they have kept their documents separate. The Applicant produced a partial copy of the Respondent’s 2015 Notice of Assessment which showed the Respondent’s income to be $93,837 (Exhibit 3). She indicated that she does not have access to any subsequent Notices of Assessment. She believes the Respondent’s income would have increased since 2015, but she is not certain. She has no access to any subsequent Notices of Assessment and requests that the Respondent’s income be imputed to $93,837.
[33] The Applicant also stated that the Respondent has an RRSP, savings account and pension through Apotex, but she could not provide any details with respect to these items. As the Respondent has not responded to this Application, he has not provided any financial disclosure in this matter.
Child Support and Section 7 Expenses
[34] The Applicant seeks child support in the amount of $855 per month pursuant to the Federal Child Support Guidelines. She also seeks an order that the Respondent pay 63% of the child’s special and extraordinary expenses.
[35] In her evidence, the Applicant did not identify any current section 7 or extraordinary expenses for the child. The child was not currently involved in any extracurricular activities. He had a tutor but that service was without a charge so there was no expense.
[36] The Applicant also stated that both parties have benefits through their respective employment.
Spousal Support
[37] The Applicant seeks spousal support in the amount of $200 per month, retroactive to the date of separation. In her evidence, the Applicant indicated that she has primarily cared for the child, had to give up her aspirations of becoming a dental hygienist, and that her current career has not advanced. The Applicant provided no supporting evidence for these assertions. She also stated that had the Respondent been more involved with the child when the child was young, she would have advanced more in her career.
Request for Divorce
[38] The Applicant stated that she wanted a divorce and that there was no possibility of reconciliation.
[39] The marriage certificate was not filed as part of the evidence during this trial. The divorce shall be severed from the corollary issues and the Applicant may seek a divorce on an uncontested basis.
DISCUSSION
[40] As stated above, the marriage certificate was not filed in this trial. Therefore, the divorce shall be severed from the corollary relief and the Applicant may proceed with the divorce on an uncontested basis.
[41] Pursuant to s. 16(8) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), I must make a custody order that is consistent with the child’s best interests. In my view, given the parties strained relationship and communication difficulties, joint custody is not appropriate. The child has been in the middle of the tension between his parents. I accept the Applicant’s evidence that she has been the primary caregiver. I also accept her evidence that she will encourage and promote access between the child and the Respondent.
[42] As the Respondent has not responded to the Application, there is no direct evidence from him about his income. The only evidence of the Respondent’s income is the 2015 partial Notice of Assessment. I accept this evidence and impute his income to $93,837.
[43] Pursuant to the Federal Child Support Guidelines, the Applicant is entitled to child support in the amount of $861 per month, commencing November 1, 2019. Currently, there are no section 7 expenses. However, this does not mean that there will not be in the future. Section 7 expenses shall be shared between the parties – the Applicant shall be responsible for 40% and the Respondent shall be responsible for 60%.
[44] I find that the Applicant is entitled to spousal support based on her needs. This is an 18-year marriage. Although the Applicant has contributed to the monthly expenses, it is the Respondent who has been paying the greater share. The Applicant needs this support in order to manage. The Applicant has not demonstrated that she is entitled to spousal support on a compensatory basis. She has not established that she gave up opportunities to advance her career. The Applicant is therefore entitled to spousal support in the amount of $200 per month, commencing November 1, 2019.
[45] Section 12 of the Federal Child Support Guidelines permits the court to require security for child support. I find that this is an appropriate order in this case given the lack of evidence of the specifics of the Respondent’s assets and debts. The Applicant does not know if the Respondent has life insurance. Therefore, the Respondent is required to have life insurance in the amount of $500,000 to secure future child support.
[46] The Applicant seeks exclusive possession of the matrimonial home and an order for the sale of the home. The parties and the child cannot continue to live in the same house, and the home needs to be sold. I accept the Applicant’s evidence that the Respondent is unlikely to want to sell the home and that his cooperation may be difficult to obtain. I have therefore set out below the terms to be followed for the sale of the matrimonial home. I accept the Applicant’s evidence that the Respondent is unlikely to want to sell the home and that his cooperation may be difficult to obtain.
[47] Section 24 of the Family Law Act, R.S.O. 1990, c. F.3 governs exclusive possession of the matrimonial home. Subsection 24(3) sets out the criteria that I must consider, which includes: the best interests of the child; the financial position of both spouses; the availability of other suitable and affordable accommodation; and any violence committed by a spouse against another. I am not satisfied that the Applicant has met the test for exclusive possession.
[48] There is very little evidence before me about the financial position of the Respondent. There is no evidence about the availability of other suitable and affordable accommodation. While the Applicant gave evidence about violence in the relationship, including police involvement approximately one month prior to the hearing, she did not tender any corroborative evidence in the form of a police report. The parties have lived separate and apart in the home since their separation. The evidence of the Applicant does not indicate that either party has any intention to remove the child from the home. The parties have been preserving the status quo since their separation.
[49] The Applicant requests that she receive the proceeds of the sale of the matrimonial home in satisfaction of equalization. She is seeking an unequal distribution. There is inadequate evidence before me to determine equalization as there are no specifics about the Respondent’s assets and debts at the date of marriage and separation. Further, the Applicant is unable to explain how she arrived at her estimate that the matrimonial home is currently worth $600,000 to $700,000 or why it increased from $350,000 at the date of separation to $400,000 as of the date of her financial statement.
[50] If the Applicant wishes to pursue equalization, then she may do so by filing an affidavit with better evidence within 30 days.
[51] The Applicant also seeks an Order that the Respondent contribute $200 towards the child’s RESP. However, her evidence was that she has never asked the Respondent to contribute to this. Further, she stated that the Respondent has told her that he has been making his own arrangements to set monies aside for the child. Without better information, I am not inclined to grant the Applicant’s request.
COSTS
[52] The Applicant requests costs in the amount of $5,000. It was also requested that costs be collected by the Family Responsibility Office. As directed, counsel submitted a Bill of Costs following the hearing.
[53] I have reviewed the Bill of Costs and the factors set out in Rule 24 of the Family Law Rules. The Applicant was not entirely successful. The matter was not complex. With respect to legal fees, I find that 18 hours for trial preparation is excessive and therefore I reduce the amount claimed to $4,000, inclusive of HST and disbursements.
Order
[54] Taking into consideration the evidence of the Applicant and the submissions of her counsel, I make the following Final Order:
(1) The child, Aaron Arjun Singh (born November 1, 2003), is a child of the marriage within the meaning of the Divorce Act.
(2) The Applicant and the Respondent are parents of the child, Aaron Arjun Singh (born November 1, 2003), within the meaning of the Family Law Act and the Children’s Law Reform Act.
(3) The divorce is severed from the corollary relief and the Applicant may seek a divorce on an uncontested basis.
(4) The Applicant shall have sole custody of the child, Aaron Arjun Singh (born November 1, 2003), and his primary residence shall be with the Applicant.
(5) The Respondent shall have access to the child, Aaron Arjun Singh (born November 1, 2003), in the discretion of the Applicant, taking into consideration the wishes of the child.
(6) The Respondent shall not remove the child from the Province of Ontario without the prior written consent of the Applicant and/or further court order.
(7) The Applicant may apply for and/or renew the child’s passport or other travel documents without the consent or signature of the Respondent.
(8) The Applicant may travel with the child, both within and outside of Canada, without the consent of the Respondent. If the Applicant intends to travel outside of Canada with the child, then the Applicant shall provide the Respondent with the particulars of the itinerary, accommodation and contact number, at least ten days in advance of the date of departure.
(9) The Applicant and the Respondent shall promptly inform the other party, in writing, of any change in her/his contact information (i.e. address, telephone number, email address).
(10) The Respondent shall pay child support to the Applicant for the child Aaron Arjun Singh (born November 1, 2003) in the amount of $861 per month, in accordance with the Table amount under the Child Support Guideline based on the Respondent’s imputed income of $93,837, commencing November 1, 2019 and payable on the first day of each month that follows.
(11) The Applicant and Respondent shall share section 7 expenses, with the Applicant responsible for 40% and the Respondent responsible for 60%, effective November 1, 2019.
(12) The Respondent shall pay spousal support in the amount of $200, per month, commencing on November 1, 2019 and continuing on the first day of each month that follows until a court orders otherwise, based on the Respondent’s imputed income of $93,837 and the Applicant’s income of $55,000.
(13) Unless the support order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director of the Family Responsibility Office and the amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
(14) A support deduction order shall be issued.
(15) Commencing on June 1, 2020, the Respondent shall, on June 1 of each year, provide the Applicant with his Notice of Assessment for the past year in order to calculate the child support receivable in accordance with the Federal Child Support Guidelines.
(16) The Respondent shall maintain and/or obtain a life insurance policy or policies in the amount of $500,000 and shall designate the Applicant as an irrevocable beneficiary in trust for the child and herself for such policy or policies to secure his child and spousal support obligations. In the event that the Respondent fails to do so, this obligation shall be a first charge on his estate.
(17) The Respondent shall keep the child and the Applicant covered under his medical coverage.
(18) The matrimonial home, 32 Benmore Crescent, Brampton, shall be sold upon the following conditions:
a. The consent and signature of the Respondent to list or sell the matrimonial home is dispensed with;
b. The home shall be listed for sale through a realtor selected by the Applicant within 30 days of this Order;
c. The Applicant shall execute a Listing Agreement with the realtor at a price suggested by the Applicant within seven business days of this Order;
d. The parties shall cooperate in the showing and sale of the home;
e. The Applicant shall solely determine whether to accept an offer presented or the terms of the offer; and
f. The Applicant shall use the real estate lawyer of her choice for the sale of the home and upon closing, this real estate lawyer shall have his or her fees, closing costs and usual adjustments paid from the proceeds of the sale.
(19) The net proceeds of the matrimonial home shall be shared equally between the Applicant and the Respondent.
(20) The Peel Regional Police, Sheriff Officers and any other law enforcement agencies are instructed and authorized to enforce this Order, if required.
(21) If the Applicant wishes to pursue equalization, then she shall file an affidavit with better evidence within 30 days of this Order.
(22) Costs are fixed in the amount of $4,000, of which $2,000 is related to support and is enforceable as support by the Director of Family Responsibility.
(23) Post-judgment interest is payable on the amounts owing under this Order at the rate of 3% per year
Kumaranayake J.
Released: October 28, 2019
COURT FILE NO.: FS-18-92346-00
DATE: 2019 10 28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Bibi S. Singh
Applicant
- and -
Vishwadeep Singh
Respondent
REASONS FOR JUDGMENT
Kumaranayake J.
Released: October 28, 2019