Court File and Parties
COURT FILE NO.: FC-19-0081-00
DATE: 20200204
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Alexandra M. Crawford Applicant
– and –
Antonio Bermeo Respondent #1
David M. Winnitoy, Counsel for the Applicant
Self Represented
– and –
Mary Bermeo Respondent #2
Self-Represented
HEARD: January 30, 2020
RULING ON MOTION
Jain, J.
Introduction
[1] This matter came before me by way of the applicant’s motion dated January 20, 2019 and her amended motion dated January 30, 2020 requesting a final order noting the Respondent in default and other relief on the issues of parenting (custody/access), child support (retroactive and ongoing) and division of the proceeds of sale of a jointly owned home.
Preliminary Issues
[2] The person listed as “respondent #2” is the respondent’s wife (Ms. Bermeo) from a previous marriage and she is the mother of two of the respondent father’s children. Ms. Bermeo and the respondent have a court file in Oshawa file no. FC-09-1361-02. As a result of that matter in Oshawa, there is a final order dated December 2, 2019 of Rowsell J. that impacts the financial issues before this court. Specifically, paragraph 8 orders that the “respondent’s portion of the sale proceeds of the property municipally known as 133 Long Street, Bradford Ontario shall be held in trust, and no proceeds shall be paid to the respondent from the said sale until the debt owed by the respondent to [Ms. Bermeo]” are paid in full. The “debt” referred to in the order is the respondent’s “arrears of table child support, past s. 7 expenses, spousal support, unpaid equalization and unpaid costs” and they were fixed at $148,000.00. The property referred to above is the jointly owned residence of the applicant and respondent in the Barrie matter.
[3] The applicant has scheduled a motion in Oshawa that will be heard on February 6, 2020. Part of the relief sought in that motion is to stay the December 2, 2019 order and to add Ms. Bermeo as a respondent in the Barrie proceedings. The applicant further seeks to designate Barrie as having the jurisdiction to hear both proceedings as the key issue in dispute in both proceedings is how the respondent’s portion of the net sale proceeds from the sale of the above mentioned property are to be distributed as between the applicant (Ms. Crawford) and Ms. Bermeo.
[4] The respondent requested an adjournment of the applicant’s entire motion before this court. Respondent #2 (Ms. Bermeo) also requested an adjournment of part of the motion, specifically the relief set out in #1, 2, 3 and 16 of the applicant’s amended notice of motion. Pursuant to the reasons set out in my endorsement of January 30, 2020, the respondent’s request for an adjournment was denied. Pursuant to additional reasons set out in that same endorsement, Ms. Bermeo’s request for an adjournment was partially granted. Pursuant to my endorsement of January 30, 2020, the motion proceeded with respect to the relief set out in #4-17 of the applicants amended notice of motion.
Decision
[5] On consent, pursuant to my endorsement of January 30, 2020, there shall be a final order granting the relief set out in #5, 8, 9, 10, 11, 12, 16 (a) and (b) and 16 (c) (i) (ii) (iii) (vi) (viii) (ix) and (x) of the amended motion dated January 30, 2020. Number 10 shall only be amended to add the words “for the purpose of vacation.” I reserved my decision regarding #6, 7, 13, 14, 15 and 16 (c) (iv) (v) (vii) and 17.
[6] For the reasons set out below, the relief set out in #6, 7 and 16 (c) (vii) and 17 of the applicant’s amended motion are granted in part. The relief set out in #13, 14, 15 and 16 (c) (iv) (v) are granted in whole.
Analysis
[7] The applicant and respondent have participated in three conferences on February 26, 2019, April 5, 2019 and September 16, 2019. Graham J. made multiple orders on those court dates extending the respondent’s time to file his materials and despite this, the respondent has not filed an Answer, Form 35.1, or up to date Financial Statement. The respondent has ignored the orders and has not complied with the Family Law Rules, (Rules). As a result, the respondent was in default, and pursuant to the Rules the court has the authority to make “any order that it considers necessary for a just determination of the matter.”[^1]
[8] Although the applicant’s motion was filed “without notice” to the respondent, the respondent attended court and was permitted to make submissions. The court does not accept the respondent’s explanation for why he has failed to comply with the previous orders and the Rules. The court is not granting the respondent a further extension of time to do things that he should have done months ago. It is an exercise in futility to continue making orders or extending timelines to which the respondent has no intention of complying. From the materials filed, and the submissions made, it is clear to the court that the respondent continues to be either quite indifferent or overwhelmed in terms of his participation in this matter. Either way, the applicant and children need to have some final resolution of all the issues.
Access:
[9] The applicant and respondent began a common law relationship in November 2012 and separated on October 3, 2018. There are two children as a result of their relationship, namely: Violet Bermeo born June 9, 2013 (Violet) and Robert Bermeo born December 16, 2015 (Robert). Violet is currently 6 years old and Robert is 4 years old. The children have been residing primarily with the applicant since the separation. The respondent was charged with assault against the applicant, however, this was resolved by way of the respondent entering a peace bond.
[10] Although the respondent consented to a final order regarding custody, he did not consent to a final order regarding access. Currently, according to an order of Graham J., dated February 26, 2019, the respondent was only permitted supervised day visits with the children. As a result of the respondent’s default, the applicant sought a final order that the supervised visits continue as she said that it was in the best interests of the children. The court found it disturbing that the respondent has been inconsistent with respect to exercising access to the children. However, utmost caution must be used by the court when making orders regarding parenting issues, as they are “to be decided based only on the best interests of the children” and “the participation of both parents is generally required.”[^2]
[11] The respondent made submissions on this issue and stated in court that now that the criminal charges have been dealt with, he wishes to have a more normalized schedule of access (that includes overnights when he has appropriate accommodations). He further stated that he wishes to terminate the need for supervision (he is only exercising supervised access with the children). After argument concluded on the motion, the applicant advised the court through counsel that she would agree to an expansion of the access visits. Specifically, she agreed to them being longer in duration and she would terminate the need for supervision. The respondent did not object, however, he indicated that because there was a peace bond in place, he was not allowed to contact the applicant directly. For these reasons, the court is making a temporary order that the respondent’s access to the children shall be as follows:
a. The respondent’s access to Violet and Robert will occur on alternate weekends on either a Saturday or Sunday commencing Saturday February 8 or Sunday February 9, 2020 from 10 am to 4 pm in the Town of Bradford or the Town of Newmarket (or such other location agreed upon in writing). Such access shall be unsupervised and subject to review. The access visit shall be arranged in writing (email) between the parties by the preceding Wednesday at 7 pm. If this type of email contact is a violation of the peace bond, then so long as the peace bond in in place, the parties shall use the applicant’s mother as in intermediary to arrange the access. In the event that the applicant or respondent cancels the access visit after the preceding Wednesday than a make-up visit shall be arranged
b. The respondent shall have telephone access with the children each night between 6:00 and 6:30 pm for a maximum of 10 minutes. The respondent shall initiate the telephone call between those hours by calling the applicant mother’s cell phone.
[12] The issue of the respondent and children’s final access and holiday schedule shall be adjourned to the Settlement Conference already scheduled February 19, 2020 at 9:30 am (unless adjourned). If the respondent fails to serve and file anything with respect to this issue on or by February 19, 2020, the above temporary order for access shall become final, (unless the parties are able to negotiate different terms of settlement and file same by way of a consent 14B Motion).
Child Support:
[13] With respect to items 13, 14, 15 as set out in the applicant’s amended Notice of Motion, the applicant is seeking an order: for child support pursuant to the Provincial Child Support Guidelines based upon the respondent’s income of $133,259 less union dues of $4217.00, in the amount of $1,827 per month commencing November 1, 2018; an order that the respondent contribute 53% towards the children’s s. 7 daycare expenses proportionate to the parties incomes pursuant to s. 7; an order for retroactive child support from November 1, 2018 to the date of hearing.
[14] Pursuant to a temporary without prejudice order of Graham J. dated April 5, 2019, the respondent is only paying the applicant child support of $300.00 per month and he is making no contribution to s. 7’s. Graham J. made this order based on the submissions made by the respondent at a Settlement Conference that he could not consent to pay the applicant child support. The respondent advised the court the Family Responsibility Office (FRO) was already garnishing one-half of his net pay for his first spouse and their children. Out of an abundance of caution and concern regarding the impact a child support order may have on the respondent’s first spouse and children i.e. the “first-family first” principle, Graham J. appropriately ordered the respondent pay a “modest” child support amount on a “without prejudice” basis. He further endorsed that the final amount of child support and the division of the house sale proceeds would have to be “determined by a court at a motion or trial rather than at a conference” (emphasis added). He further warned the parties that “at a motion or a trial the amount payable for child support could be less or greater.”[^3]
[15] The final consent order of Rowsell J. dated December 2, 2019 orders the respondent to pay Ms. Bermeo base child support and s. 7 expenses for their two children in the amount of $1975.00 ($1,827.00 plus $148.00 for s. 7’s) as well as Mr. Bermeo’s spousal support in the amount of $828.00 totalling $2,803.00 per month. There was no reduction to the child support in consideration of the respondent’s obligation to pay support for the two younger children he has with the applicant.
[16] The Court of Appeal has emphasized that a payors obligations towards second families must be considered in context, i.e. the “first-family-first” principle is not absolute.[^4] When considering the context of this situation, the court does not think that the intention of the “first-family-first” was to treat the respondent’s children in the second relationship so unequally to the children of his first marriage. Although the respondent’s obligations to his younger children with the applicant may affect support for the first family, the court finds that he still has an equal obligation to both sets of children and he is obligated to support the children in accordance with the Child Support Guidelines and the Family Law Act.[^5]
[17] With respect to the motion before this court, the respondent stated that he does not consent to the applicant’s request for retroactive or ongoing child support and contribution to s. 7’s in accordance with the Child Support Guidelines. The respondent repeated his submissions that he cannot afford to pay child support to the applicant because of his existing obligations to the children and spouse of his first relationship (Ms. Bermeo and her two children). He referred and relied upon the temporary (without prejudice) endorsement and order of Graham J. dated April 5, 2019 which he says supported an “undue hardship” claim.
[18] The argument of “undue hardship” is used as a common defence by payors. Counsel for the applicant, Mr. Winnitoy attempted to provide the court with all the necessary information it required to make a properly informed decision if the respondent advanced a claim of undue hardship. However, he correctly submitted that it is the payor that is responsible to advance this claim and properly plead it as a defence.[^6] In this case, the respondent has filed nothing except a financial statement from almost one year ago.[^7] The court appreciates all the work that counsel did in terms of providing the court with various Divorce Mate calculations and SOL tests using the limited information that he had. However, since the respondent never filed an Answer and never provided a shred of evidence in support of an “undue hardship” claim, the court is disinclined to order reduced child support when the respondent has failed to properly plead the defence.[^8]
[19] The court accepts the applicant’s submission that none of the required elements of an “undue hardship” claim have been established by the respondent at this time. This court is not going to treat the children from the applicant and respondent any differently than the children from the respondent’s first marriage. Therefore, there will be a final order that the respondent pay the applicant child support in the amount of $1,827.00 per month in accordance with the Guidelines retroactive to the date of November 1, 2018.[^9] There shall further be an order that the respondent contribute 53% towards the children’s s. 7 daycare expenses.
[20] The court is cognizant that the respondent’s financial position and lack of agreement regarding the child support issues may mean he could have difficulty complying with the order. If in the future the respondent falls into arrears on the child support payments, he may bring a Motion to Change the ongoing child support obligation and any arrears that may have accrued after this order. At that time, he can advance his “undue hardship” claim along with all the evidence needed to support it. Even if the defence is pled and if the respondent meets the high threshold standard of an undue hardship analysis, the court would then have to apply the SOL test and be satisfied that his standard of living is below that of the recipient/s. The respondent will need to add Ms. Bermeo as a party (or bring a Motion to Change the December 2, 2019 Order as well) so the SOL calculations can be completed in both situations. Until then, the Family Responsibility Office will have to deal with collecting and enforcing both support Orders in accordance with their mandate.
Division of the sale proceeds from the jointly owned home:
[21] With respect to items 16 (c) (iv) (v) and (vii) as set out in the applicant’s amended Notice of Motion, the applicant is seeking an order that upon the sale of the applicant and respondent’s jointly owned residence: the applicant and respondent should receive the proceeds as set out in their trust agreement; and the applicant to receive full reimbursement for payments she made on the joint RBC loan.
[22] The applicant and respondent entered into a trust agreement on November 20, 2014 in order to protect their respective contributions to the purchase of their home municipally known as 133 Long Street, Bradford Ontario. In the event of the sale of the property, the agreement specified that should the property be sold, each party would be entitled to receive what they had contributed to the purchase prior to any further division (i.e. the applicant would receive $92,163.53 and the respondent would receive $20,000.00).[^10]
[23] The respondent stated that he now objects to the applicant receiving the amount of $92,163.53. He acknowledged he signed the trust agreement and he did not dispute its validity. He further acknowledged that he owed the applicant this money in his financial statement dated February 20, 2019. The only reason the respondent gave for his objection was that as a result of him supporting the applicant throughout their relationship, he had incurred debts. He felt it was unfair for her to receive this money. The respondent further disagrees with the applicant receiving any reimbursement for her payments on their joint RBC loan. Again, he gave no reasons for this position except that this was a joint debt and he had taken on a lot of debt coming out of the relationship.
[24] The court does not accept the respondent’s objections to the payouts as set out in the trust agreement. He has filed nothing in this matter that would concern the court with giving effect to the terms of the trust agreement. The respondent’s unhappiness with the relationship and separation is not a reason to deny the applicant her relief on this issue. There shall be an order granting the applicant her relief requested in items 16 (c) (iv) (v).
[25] The applicant claimed that she made payments on the RBC loan totalling $13,664.26 after the separation. She alleged that it was the respondent who ran up the debt, so he should be completely responsible for the payments she made on it. However, the court is not satisfied to grant the applicant the entire amount she has claimed with respect to the payments. The RBC loan was taken out in both parties’ names; therefore, the applicant and the respondent were jointly responsible for this loan. Any payments she made on this loan were on behalf of and for the benefit of both her and the respondent. Therefore, there shall be an order granting the applicant half the amount that she claimed. The applicant shall receive $6,832.13 from the respondent’s share of the proceeds.
Costs:
[26] Item 17 in the applicant’s Amended Notice of Motion refers to the applicant’s claim for costs. The applicant seeks an order that the respondent pay her costs in this proceeding in the amount of $25,665.45 on a substantial indemnity basis. Pursuant to r. 24, the applicant was successful on the motion and she is entitled to costs. The applicant’s counsel has submitted a Bill of Costs.[^11]
[27] The respondent objected to any cost award. He gave no other submissions on this issue except that he can’t afford them. The court finds that despite the delays caused by the respondent’s failure to file the required documents, he did display some reasonable behaviour during the motion by consenting in court to many of the claims in the applicant’s motion (especially the parenting pieces). This reasonable behaviour deserves to be recognized.
[28] The applicant’s behavior was reasonable throughout this action as well. She did not bring a default motion against the respondent earlier even though she was entitled to. The applicant was awarded $1,000.00 in costs on September 19, 2020. It is unclear to the court whether this was accounted for in the applicant’s claim for costs.
[29] The court found the applicant counsel’s presentation was effective and the materials filed were thoughtful and balanced. The costs sought were fair and reasonable, especially given the hours spent and rates charged for a lawyer with Mr. Winnitoy’s experience. However, some of the key issues in dispute were parenting issues, and they were resolved for the most part on consent as set out above. The court therefore finds that a fair and reasonable award of costs is $20,000.00 inclusive of disbursements and HST. These costs shall be payable to the applicant by the respondent from his share of the net sale proceeds of the common law residence. However, if the sale proceeds are insufficient to satisfy this order, the costs shall be added to the respondent’s child support arrears and collected as child support.
Jain, J
Released: February 4, 2020
[^1]: Family Law Rules, O Reg 114/99, r. 1 (8) and 1 (8.1) [^2]: Burke v. Poitras, 2018 ONCA 1025 [^3]: Endorsement of Graham J. April 5, 2019 [^4]: Fisher v. Fisher, 2008 ONCA 11 at para. 39-40 [^5]: FLA s. 33 (11) [^6]: Malleye v. Brereton 2007 ONCJ 216 [^7]: Respondent’s Financial Statement dated February 20, 2019 [^8]: Smart v. Smart, 2013 ONSC 6196 at para 68; Masnyk v. Wolff, 2014 ONSC 1854 and Caverley v. Stanley 2015 ONSC 647 at para. 81 [^9]: Applicant’s affidavit dated January 20, 2020, para. 16, exhibit “D” Letter dated November 21, 2018 addressed to the respondent from the applicant’s prior counsel requesting child support [^10]: Applicant’s affidavit dated January 20, 2020, para. 10-15, exhibit “B” copy of the trust agreement dated November 20, 2014 [^11]: Affidavit of applicant dated January 20, 2020, Exhibit QQ showing that full indemnity would be $28,845.25; substantial indemnity was $24,699.28; and partial indemnity was $20,553.31.