Court File and Parties
COURT FILE NO.: FC-19-740 DATE: January 16, 2020 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Julie Margo Carol Treitz -and- Lee Barry Todd
BEFORE: Justice P. MacEachern
COUNSEL: Collin Fletcher
HEARD: January 16, 2020
Endorsement
This is an uncontested trial.
Ms. Treitz filed this Application on May 24, 2019. The Application includes a claim for a Divorce.
Ms. Treitz had Mr. Todd served with her Application on May 23, 2019. Mr. Todd has not filed an Answer and is in default.
The parties were married on June 5, 2010. They separated on July 1, 2017. They have two children, N.R.K., born [redacted], and A.M.L.T., born [redacted].
The parties executed a Separation Agreement on April 12, 2018. The agreement provides for the children to primarily reside with Ms. Treitz, for the parties to have joint custody, and for Mr. Todd to have weekend access.
Parenting
Ms. Treitz seeks sole custody. Given the evidence before me, in particular, related to Mr. Todd’s recent conduct and the children’s needs, as set out in Ms. Treitz’s affidavit sworn October 25, 2019, I find that it is in the best interests of the children to be in the sole custody of Ms. Treitz and to continue to primarily reside with her.
For the same reasons, I also find that it is in the children’s best interests for Mr. Todd to have access to the children, on the terms proposed by Ms. Treitz. I have adjusted the proposed wording, as set out below, from the wording used in Ms. Treitz’s draft order to clarify the wording.
In making these findings on parenting, I have also taken into consideration the terms of the parties’ Separation Agreement dated April 12, 2018.
Child Support
The parties’ Separation Agreement, dated April 12, 2018, includes provisions concerning child support, although no child support is payable under the Agreement because Mr. Todd was, at that time, a recipient of Ontario Works.
The Separation Agreement has not been filed with the court under s.35 of the Family Law Act and therefore is not enforceable as an order. This means that I am not varying a previous child support order, but making a new order for child support under s.15.1 of the Divorce Act.
Ms. Treitz seeks an order for child support based on Mr. Todd’s income being determined to be $50,000 per year. I find that Mr. Todd’s income for child support purposes is $50,000 per year based on the following: a. Ms. Treitz’s evidence that Mr. Todd is currently employed for Promus Ottawa as a carpenter; b. Ms. Treitz’s knowledge that Mr. Todd’s income, before separation, was approximately $50,000 per year; c. Mr. Todd had notice of Ms. Treitz’s position was that his income was approximately $50,000 per year, as this is included in her Application served on him. He chose not to respond to the Application, or to provide evidence that his income was not $50,000 per year; d. I have not placed any weight on Ms. Treitz’s reference to salary information for carpenters in the Ottawa area, obtained from a website. This is hearsay and not sufficiently reliable to be admitted; e. I have taken into consideration Ms. Treitz‘s evidence in her affidavit sworn January 8, 2020, that Mr. Todd recently told her that he is “not working much” and has not submitted his hours to his employer. I am not prepared to attribute lower income to him on this basis. Mr. Todd has not provided proof of his income despite being on notice that Ms. Treitz’s position was that his income was approximately $50,000 per year, and there are many possible reasons, given his occupation, why his income and work hours may fluctuate on a seasonal basis.
Ms. Treitz seeks contribution to section 7 expenses. She has provided an updated financial statement sworn January 16, 2020. Based on this evidence, as well as her income tax notices of assessment for 2016, 2017 and 2018, filed, I find that Ms. Treitz’s income for child support purposes is $94,471 per year.
Ms. Treitz seeks contribution to the following section 7 expenses: a. Child care totalling $1,075 per year (Rideau Hill Campground for both children ($200), five weeks of camp for A. totalling $875); b. Camps totalling $365 per year ($200 for A.’s dance camp, $165 for N.’s hockey camp); c. Hockey enrollment fees totalling $1,809 per year ($809 for N., $1,000 for A.).
I find the above expenses are reasonable and necessary for the children and qualify as section 7 expenses.
Ms. Treitz has provided me with child support calculations that calculate Mr. Todd’s monthly contribution to these expenses, taking into consideration the tax deductions available for the child care expenses. I have revised these calculations. The calculations provided included $400 for the Rideau Hill Campground costs. The evidence before me, (page 6 of Ms. Treitz’s affidavit sworn October 28, 2019) states that this cost was $200 total – which I find means $200 for both children, not $400. A copy of the support calculations, with this adjustment, is attached. Based on these calculations, I order Mr. Todd to pay $81 per month towards the above expenses, as set out below.
Mr. Todd shall also contribute to any additional special and extraordinary expenses incurred for the benefit of the children under section 7 of the Federal Child Support Guidelines in proportion to the parties’ respective incomes. Mr. Todd’s current share of such expenses is 35% based on his income being $50,000 per year and Ms. Treitz’s income being $94,471 per year.
Ms. Treitz did not seek, in her Application, an order for child support retroactive to the date of her Application, and therefore, I have not made such an order. The child support order therefore commences June 1, 2019.
Ms. Treitz’s evidence is that Mr. Todd paid $500 in child support in 2019. This amount shall be credited to Mr. Todd’s child support obligation, as set out below.
Life Insurance
Ms. Treitz seeks an order that Mr. Todd maintain life insurance to secure his child support obligation. The Separation Agreement dated April 12, 2018, already provides that Mr. Todd is required to maintain life insurance to secure his child support obligation, with coverage of $100,000.
There was some discussion at the hearing regarding whether an order requiring Mr. Todd to maintain life insurance to secure child support was needed, given the terms of the Separation Agreement. On reflection, given Mr. Todd’s life insurance obligation under the Separation Agreement flows from his child support obligation, that I am making a new order for child support under s.15.1 of the Divorce Act, and the paramountcy of federal legislation, I am of the view that Mr. Todd’s obligation to maintain life insurance should be incorporated into the child support order, made herein, under s.15.1 of the Divorce Act.
Accordingly, given the life insurance terms of the Separation Agreement (which Mr. Todd agreed to although he was on Ontario Works at the time), and that he is now working, I find that it is appropriate to make an order requiring Mr. Todd to secure his child support obligation with terms that mirror those in the Separation Agreement, on the condition that, if Mr. Todd does not currently have such a life insurance coverage on his life, he shall obtain a new policy providing for such coverage, if available to Mr. Todd at a reasonable cost.
Divorce
- Ms. Treitz seeks a divorce. The Marriage Certificate, affidavit in support of a divorce, and Clearance Certificate are in the file. Given the order made today, I am satisfied that reasonable arrangements are in place for the support of the children. Accordingly, a Divorce Order will issue that includes the corollary relief provisions set out herein. Counsel shall provide me with a draft Divorce Order for this purpose, for my signature, within two weeks from the release of this endorsement.
Disposition
- Given my reasons above, I make the following orders: a. A final Divorce Order shall issue with the following corollary relief included: i. Ms. Treitz shall have sole custody of the children, N.R.K., born [redacted]; and A.M.L.T., born [redacted]; ii. The children, N.R.K., born [redacted]; and A.M.L.T., born [redacted], shall primarily reside with Ms. Treitz. iii. Subject to Ms. Treitz’s discretion, to be exercised in accordance with the children’s best interests, Mr. Todd shall have access to the children, N.R.K., born [redacted]; and A.M.L.T., born [redacted], as follows: 1. Alternate Saturdays from 10:00 a.m. to 3:00 p.m. or such other time as arranged by Ms. Treitz; and 2. If Ms. Treitz agrees to Mr. Todd having overnight access, such access to be supervised by Barry Todd or Cindy Todd; 3. Such other access as agreed to by Ms. Treitz; iv. Commencing on June 1, 2019, and continuing on the first day of each subsequent month until varied, 1. Mr. Todd shall pay child support to Ms. Treitz for the benefit of the children, N.R.K., born [redacted]; and A.M.L.T., born [redacted], of $755 per month. This is the table amount for two children based on Mr. Todd’s income being determined to be $50,000 per year. 2. Also, Mr. Todd shall pay Ms. Treitz $85 per month as his proportionate contribution to the following section 7 expenses: a. Child care of $1,075 per year b. Camps of $365 per year; c. Hockey enrollment fees of $1,809 per year; v. Mr. Todd shall be credited with $500 towards the amounts owed under this order for his payments towards child support in December of 2019. vi. Mr. Todd shall pay 35% of any additional special and extraordinary expenses incurred for the benefit of the children that meet the requirements of s.7 of the Federal Child Support Guidelines. Mr. Todd’s 35% share is based on his proportionate share of the parties’ respective incomes, based on his income being $50,000 per year and Ms. Treitz’s income being $94,471 per year. vii. Mr. Todd shall secure his child support obligation with life insurance on terms that mirror the terms set out in the parties’ Separation Agreement, on the condition that, if Mr. Todd does not currently have such life insurance coverage on his life, he shall obtain a new policy providing for such coverage, if available to Mr. Todd at a reasonable cost. b. Counsel shall provide me with a draft Divorce Order incorporating the above terms, for my signature, within two weeks from the release of this endorsement. c. Ms. Treitz shall serve this endorsement on Mr. Todd, forthwith.
Costs
Ms. Treitz seeks full indemnity of her costs, totalling $5,284.06.
I have considered the factors under Rule 24 of the Family Law Rules. Mr. Todd has acted unreasonably in not responding to this matter, and by not providing his current income information. I do not find, however, that his conduct is such that warrants full indemnity of Ms. Treitz’s costs. Ms. Treitz has not provided me with any offers to settle that would warrant full indemnity costs from the date of the offer, and her original Application included some relief not pursued today. Ms. Treitz is the successful party and is therefore presumptively entitled to costs. Taking into consideration all of these factors, I find that an order requiring Mr. Todd to pay Ms. Treitz her costs fixed at $3,700 is fair, reasonable, and proportional. Of this amount, I find that the sum of $1,000 in costs was incurred for child support and is enforceable as child support by the Family Responsibility Office.
Dated: January 16, 2020
Justice P. MacEachern
COURT FILE NO.: FC-19-740 DATE: January 16, 2020 ONTARIO SUPERIOR COURT OF JUSTICE RE: Julie Margo Carol Treitz -and- Lee Barry Todd BEFORE: Justice P. MacEachern COUNSEL: Collin Fletcher HEARD: January 16, 2020 ENDORSEMENT Justice P. MacEachern