Taccone v. Taccone, 2023 ONSC 1646

COURT FILE NO.: FS-15-23 DATE: 2023 03 10

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Edward Taccone Applicant – and – Heather Ann Taccone Respondent

Self-Represented Self-Represented

HEARD: January 19-20, 2023

MILLER J.

1The Applicant Edward Taccone commenced an Application February 19, 2015 in which he sought a divorce, child support and equalization, as well as custody of the children of the marriage. He sought to impute income to the Respondent.

2The Applicant also made a claim against the Respondent’s parents who co-owned the matrimonial home with the parties. This claim was resolved when the property was sold in 2016 and the Respondent’s parents are no longer part of this litigation. $20,000 of the proceeds of sale of the matrimonial home was used to pay the parties’ joint line of credit. Each of the parties received $25,000 from the proceeds of sale of the matrimonial home, and an additional $50,000 remains in trust to be dispersed in accordance with my decision on this trial.

3The Respondent Heather Taccone filed an Answer March 23, 2015 in which she agreed with the Applicant’s claim for divorce. She additionally sought an order for joint custody of the children, child support and s. 7 expenses and spousal support as well as equalization.

4The parties arrived at Final Minutes of Settlement which was made into a Final Order by Mandhane J. January 10, 2022. This order addresses parenting and decision-making for the parties’ two children born in 2007 and 2009. The parties have joint decision-making and the children’s primary residence is with the Respondent.

5At a Trial Management Conference March 30, 2022 Lemon J. endorsed that “The issues for trial are equalization, spousal support and child support back to 2014.” At a trial management conference November 18, 2022 Van Melle J. noted that the issues for trial also included post-separation adjustments.

6The parties, both self-represented at trial, confirmed that the issues for trial are equalization, spousal support and child support back to July 2014, and post-separation adjustments.

Background

7The parties married August 11, 2001 and separated April 1, 2014. They have two children born in 2007 and in 2009. They continued to reside together in the matrimonial home until July 2014. Until he left the family residence, Mr. Taccone, who was the principal wage-earner, continued to pay the household expenses.

8Since separation the children’s primary residence has been with the Respondent. From 2018 to 2021 the children spent the summer school holidays (July and August) on a week about basis with each parent.

9During the COVID-19 pandemic restrictions the children spent time with each parent on a week about basis from April 2020 to September 2021.

10A temporary Order made December 11, 2015 on consent by Donohue J. required the Applicant to pay monthly child support in the amount of $800 commencing January 1, 2016. This order was made without prejudice.

11A further temporary Order was made on consent May 14, 2018 by Wein J. requiring the Applicant to pay Guideline child support commencing June 1, 2018 in accordance with his 2017 Line 150 income. This order also provided that summers would be shared and that during the school year, Mr. Taccone’s parenting time would be alternate weekends, and each Wednesday after school to Friday before school or through to weekend parenting time on the alternate weeks.

12On March 18, 2019 Gray J. ordered that the monthly child support amount payable pursuant to the order made by Wein J, May 14, 2018 was $932.40.

13On November 18, 2019 Trimble J. made a temporary order that the Applicant pay child support beginning June 1, 2019 at $480 per month.

Divorce

14Both parties claimed a divorce. Their Marriage Certificate shows that they were married August 11, 2001. A Clearance Certificate was provided. I am satisfied on the evidence before me that the parties have been separated for at least one year with no prospect for reconciliation.

15The parties shall be divorced, to take effect 30 days from the date of this order.

Imputation of Income to Mr. Taccone

16Mrs. Taccone submits that income should be imputed to Mr. Taccone. She submits that he is intentionally underemployed.

17The evidence is that in 2014 Mr. Taccone earned $58,627; in 2015 $59,627; in 2016 $59,719 and in 2017 $61,163. During this time Mr. Taccone was branch manager at a company called Fastening House. In April of 2018 Mr. Taccone left this employment and began working at Hope Bay Campground, located in South Bruce near Wiarton. This trailer park is owned and operated by his current partner.

18In 2018 Mr. Taccone earned $31,923.

19Mr. Taccone testified that he had not been happy at Fastening House. He left the job as they were about to sell the building he worked in. Although he could have continued to work for Fastening House he would no longer have been a branch manager and would have had to work in Vaughan, a significant commute, at the home office.

20Mr. Taccone began working at Hope Bay in April 2018, where he does maintenance, works in the campground store and does some towing for the trailer park. Mr. Taccone testified that in this employment he has the flexibility to have parenting time with the parties’ children every other Wednesday through Sunday. In the result, however, his salary is lower. As well, it is a seasonal position at which he works about nine months each year. He does not work the other three months although he will occasionally check on the property and do snowplowing there. His salary is spread out over 12 months.

21In 2019 Mr. Taccone earned $31,254.

22In 2020 Mr. Taccone’s Line 150 income was $177,906 of which $149,830 was a death benefit he received when his brother died.

23In 2021 Mr. Taccone earned $26,000 which he described as his base salary. He testified that he expects to earn the same amount in 2022.

24Mr. Taccone testified that while working at the campground he lives with his partner and pays no rent. He lives with his parents when not at the campground and when parenting the parties’ children. He does not pay rent to his parents.

25Mr. Taccone testified that at a previous attendance at court he agreed to pay child support in accordance with the Federal Child Support Guidelines based on a salary of $32,000 although he does not earn that much annually. He agreed that free accommodation is a benefit of his job that might be worth the difference between his base salary of $26,000 and the $32,000 figure.

Imputation of Income to Mrs. Taccone

26Mr. Taccone takes the position that Mrs. Taccone is intentionally underemployed. He submits that income should be imputed to her but only if income is imputed to him.

27Mrs. Taccone stayed home to look after the children when they were young. She testified that she began driving a school bus one year before separation when Mr. Taccone told her that she had to pay for the groceries for herself and the children. She made $11 per hour for four hours per day on schooldays.

28After separation Mrs. Taccone continued this work as it allowed her the flexibility to care for the children when they were not in school. Mrs. Taccone testified that having only a high school education and being out of the workforce for seven years she could only get a job which would barely cover the cost of daycare required if she worked fulltime. Now Mrs. Taccone earns $20.25 per hour for four hours a day five days a week. She gets paid for snow days but not PD days or statutory holidays.

29Mrs. Taccone testified that during the pandemic restrictions she made more money by doing extra shifts and then qualifying for EI over the summer months when she is not driving.

30Mrs. Taccone testified that the parties’ oldest child is autistic with high support needs. She cannot be left alone for more than an hour and needs a consistent schedule. Mrs. Taccone testified that she needs to be home with the child when there is no school. She agreed that these parenting duties also fall on Mr. Taccone during his parenting time.

31This child is not independent enough to live independently and they expect she will be economically dependent on her parents as an adult. Their younger child has ADD and also requires structure.

Decision on Imputation of Income

32I find that both parties are intentionally underemployed. Each of them could be earning significantly more income. The jobs they each have chosen to maintain, however, allows each of them to provide the consistency and structure for both children, but in particular the eldest child, during their respective parenting times. I find that the decision taken by each parent in these circumstances is child-focussed and in the best interests of these children. I decline to impute income to either parent on the basis of intentional underemployment.

33I find that Mr. Taccone receives accommodation benefit from his job which means that he has more disposable income which merits imputing income to him at a minimum of $32,000 per year for support purposes. This imputation of income applies from 2018 forward. For any year Mr. Taccone earns more than $32,000 he shall pay Guideline child support based on his Line 150 income.

Child Support 2014-present

34I find that the children’s primary residence was with Mrs. Taccone from separation to the present except for the period April 2020 through September 2021 when the children were spending equal time with each parent.

35I have considered Mr. Taccone’s submission that from 2018 because of summer parenting time being equal that his parenting time exceed 40% for 2018, 2019, 2020 and 2021. For 2022 and going forward according to the Final Order made January 10, 2022 summer parenting time is no different than during the school year.

36If the 40% threshold is exceeded, then the court may order Guideline child support to be paid on a set-off basis.

37In Froom v. Froom, 2005 ONCA 3362, [2005] O.J. No. 507 the Court of Appeal indicated at paragraph 2, “there is no universally accepted method of deciding the 40% threshold, rigid calculations are not necessarily appropriate.”

38However, in L.L. v. M.C., 2013 ONSC 1801 the Court indicated at paragraph 31:

While there is debate over the best method for calculating access time, according to the late Professor McLeod in the Annual Review of Family Law, the issue is not as unclear as the majority in Froom asserted (McLeod and Mamo, Annual Review of Family Law, 2010 (Toronto: Carswell, 2010) at 294)). In commenting on Froom the review states, “[w]ith respect, the overwhelming weight of authority in Ontario and the other provinces supports calculating the 40% threshold on an hourly basis.” This approach is applied by the court in Rockefeller v. Rockefeller, 2005 ONSC 14325, [2005] O.J. No. 1736 (S.C.)

39Further, at paragraph 37, the Court indicated “In order to reach the 40% threshold set out in section 9 of the Federal Child Support Guidelines a parent must spend a minimum of 3,504 hours with a child over the course of a year.” And at paragraph 38, “Time spent at school or daycare should not be excluded from the time attributed to the primary residential parent.”

40For the period April 2020 through September 2021 I find that the children spent equal time with each parent and Guideline child support should be paid on a set-off basis.

41Except for that period, the parties abided by the parenting schedule set out in the May 14, 2018 order until January 2022. The May 14, 2018 order provided that summers would be shared and that during the school year, Mr. Taccone’s parenting time would be alternate weekends, and each Wednesday after school to Friday before school or through to weekend parenting time on the alternate weeks.

42Applying an hourly framework to that schedule, to be most precise, and following the principal that time spent at school or daycare should not be excluded from the time attributed to the primary residential parent, I find that Mr. Taccone’s parenting time in the years 2018, 2019, 2020 and 2021 did not come close to the 3,504 hours necessary to meet the 40% threshold.

43For 2018, 2019 and January to March 2020, I find that Mr. Taccone has not shown that his parenting time met the 40% threshold.

44For 2021 beginning September through December when the parties went back to the parenting schedule set out in the May 14, 2018 order, I find that Mr. Taccone has not shown that his parenting time met the 40% threshold.

45For 2014, based on his income of $58,627, Mr. Taccone should have paid Guideline child support for two children at $893 per month for the months August through December for a total of $4,465.

46For 2015, based on his income of $59,719, Mr. Taccone should have paid Guideline child support for two children at $910 per month for the months January through December for a total of $10,920.

47For 2016, based on his income of $59,702, Mr. Taccone should have paid Guideline child support for two children at $910 per month for the months January through December for a total of $10,920. During this period he paid, in accordance with the without prejudice order made by Donohue J. December 11, 2015, $800 per month. He therefore owes $1,320 for 2016.

48For 2017, based on his income of $61,163, Mr. Taccone should have paid Guideline child support for two children at $932 per month for the months August through December for a total of $11,184. During this period he paid, in accordance with the without prejudice order made by Donohue J. December 11, 2015, $800 per month. He therefore owes $1,584 for 2017.

49For 2018, based on his imputed income of $32,000, Mr. Taccone should have paid Guideline child support for two children at $488 per month for the months January through December for a total of $5,856. During this period he paid, in accordance with the without prejudice order made by Donohue J. December 11, 2015, $800 per month. He therefore overpaid $3,744 for 2018.

50For 2019, based on his imputed income of $32,000, Mr. Taccone should have paid Guideline child support for two children at $488 per month for the months January through December for a total of $5,856. For January, February and March 2019 he paid, in accordance with the without prejudice order made by Donohue J. December 11, 2015, $800 per month. For April and May 2019 he paid $932.40 per month in accordance with the order made March 18, 2019 by Gray J. From June through December 2019 he paid $480 in accordance with the order made on November 18, 2019 by Trimble J. Mr. Taccone therefore overpaid $1,768.80 in 2019.

51For 2020, based on his income of $177,906, Mr. Taccone should have paid Guideline child support for two children at $2,412 per month for the months January through March for a total of $7,236. For the months April through December 2020, Mrs. Taccone having earned $28,839, Mr. Taccone should have paid set off support at ($2,412-$442) $1,970 per month for a total of $17,730. He paid $480 per month for twelve months in accordance with the order made on November 18, 2019 by Trimble J. He owes $19,206 for 2020.

52For 2021, based on his imputed income of $32,000, and Mrs. Taccone’s income of $32,317 Mr. Taccone should have received set-off support for the months January through August of ($493-$488) $5 per month for a total of $40. Mr. Taccone should have paid Guideline child support for two children at $488 per month for the months September through December for a total of $1,952. He paid $480 per month for 12 months in accordance with the order made on November 18, 2019 by Trimble J. He overpaid $3,848 in 2021.

53For 2022, based on his imputed income of $32,000, Mr. Taccone should have paid Guideline child support for two children at $488 per month for the months January through December for a total of $5,856. He paid $480 in accordance with the order made on November 18, 2019 by Trimble J. He owes $96 for 2022.

54For 2023, based on his imputed income of $32,000, Mr. Taccone is ordered to pay Guideline child support $488 per month. For January through March he paid $480 in accordance with the order made on November 18, 2019 by Trimble J. so he owes $24 for 2023 up to and including March 2023.

55The total child support owed by Mr. Taccone to date is $28,254.20.

Extraordinary Expenses

56Mr. Taccone produced a number of dental bills for the children. He testified that Mrs. Taccone could take the children to SMILE which has government funded dental care but she will not, so he takes the children to his own dentist and pays the costs. He gave up dental benefits when he left his employment at Fastening House.

57Mr. Taccone submitted a benefit statement for dental care for the children on May 10, 2014. The bill was $169 and the benefit plan paid $135.20. He seeks half the remaining $33.80 from Mrs. Taccone.

58Mr. Taccone submitted a benefit statement for dental care for the children on January 9, 2016. The bill was $233 and the benefit plan paid $186.40. He seeks half the remaining $46.60 from Mrs. Taccone.

59Mr. Taccone submitted a benefit statement for dental care for the children on October 29, 2016. The bill was $244 and the benefit plan paid $195.20. He seeks half the remaining $48.80 from Mrs. Taccone.

60Mr. Taccone submitted a bill for dental care for the children on September 11, 2021. At this point he had no dental benefits. The bill was $308. He seeks half that amount from Mrs. Taccone.

61Mr. Taccone submitted a bill for orthodontics for one child showing payments in 2021 and 2022 totalling $6,200. He seeks half that amount from Mrs. Taccone.

62Mr. Taccone agreed that he never asked Mrs. Taccone to contribute any of the dental costs for the children and he did not consult with her about the orthodontics. Mrs. Taccone does not dispute that the children needed the dental care, but submits that she should not have to pay when she was not consulted and the work could have been done at less expense.

63For extraordinary expenses Mr. Taccone had an obligation to request payment as the expenses were incurred. He did not. Further, he failed to consult with Mrs. Taccone in advance of incurring the orthodontic expense. I find that Mrs. Taccone does not owe anything to Mr. Taccone for extraordinary expenses to date. Going forward, based on Mr. Taccone’s imputed income of $32,000 and Mrs. Taccone’s income that is roughly the same, each party is responsible for contributing 50% of the cost of the children’s extraordinary expenses agreed upon in advance.

Spousal Support 2014-2022

64Mrs. Taccone claims spousal support from the date of separation. I find that she has proven entitlement on a compensatory basis.

65The evidence establishes that Mrs Taccone’s Line 150 income was, in 2014 $10,237; 2015 $10,082; 2016 $11,024; 2017 $12,064; 2018 $17,484; 2019 $15,891; 2020 $28,839; 2021 $32,317 and in 2022 $29,216. Applying the Spousal Support Advisory Guidelines, taking into account Mr. Taccone’s child support obligations year to year there is no spousal support payable.

66For the year 2002 when Mr. Taccone’s Line 150 income was unusually high due to the death benefit he received, I find that was a unique event and that the death benefit should not be added to income for the purposes of calculating spousal support.

Equalization

67As indicated above, the matrimonial home was sold in 2016 and the Respondent’s parents are no longer part of this litigation. Mr. and Mrs Taccone together received a total of $120,000 from the proceeds of sale of the matrimonial home, of which $50,000 remains in trust to be dispersed in accordance with my decision on this trial.

68For value of assets owned at the date of separation, each party is allocated $60,000 for his and her equal shares of the matrimonial home. I have no other evidence of the value of each party’s interest in the matrimonial home at the date of separation except for what was received from the proceeds when it sold in 2016.

69Also owned by Mr. Taccone at the date of separation was a 1996 Toyota Forerunner vehicle which Mrs. Taccone accepts $800 as its date of separation value; and a 2011 GMC Terrain vehicle which Mrs. Taccone accepts $18,600 as its date of separation value. He also took a lawn tractor which I find had a date of separation value of $1,000.

70In liquid assets, I find that Mr. Taccone had, at date of separation, $20.98 in his ScotiaBank Savings Account; $11.14 was his share of the ScotiaBank Joint Savings Account; and $479.30 in his President’s Choice Account. Mr. Taccone’s share of an account the parties shared with Mrs. Taccone’s parents to pay the mortgage was $350.37. The cash value of Mr. Taccone’s life Insurance policy was $3,910.84.

71The total value of assets owned by Mr. Taccone as at the date of separation was $85,172.63.

72The total value of assets owned by Mrs. Taccone as at the date of separation, including her $60,000 share of the proceeds of sale of the matrimonial home; her $11.14 share of the ScotiaBank Joint Savings Account; and her $350.37 share of the account the parties shared with Mrs. Taccone’s parents to pay the mortgage was $60,361.51.

73For debts and liabilities, I accept the documentation presented by the parties during the trial showing what those debts and liabilities were closest to the date of separation as the best evidence available.

74I find that Mr. Taccone had a Home Depot credit card debt of $1,640.54; a Capital One Credit card debt of $2,145; a Brick credit card debt of $412.27; a TD Auto Finance debt of $23,413.26 and $10,000 as his share of the parties’ joint Line of Credit. I find that Mr. Taccone had debts and liabilities totalling $37,611.07 as at the date of separation.

75I find that Mrs. Taccone had a Capital One credit card debt of $1,984.26 and $10,000 as her share of the parties’ joint Line of Credit for a total of $11,984.26 of debts and liabilities as at the date of separation. Mrs. Taccone also claimed a $200-$250 loan to her parents but this was not documented and I cannot reliably find that it existed as at the date of separation.

76Mr. Taccone gave evidence about a Wasaga Beach property he owned as at the date of marriage, but it emerged in evidence that the parties had cohabited there before marriage and continued to reside there together after marriage until it was sold in February 2002. The proceeds of sale from that property were used to purchase the matrimonial home the parties owned on the date of separation. I find therefore that Mr. Taccone may not claim the Wasaga Beach property as a date of marriage asset.

77I find that Mr. Taccone’s Net Family Property was therefore ($85,172.63 - $37,611.07) $47,561.56 and Mrs. Taccone’s Net Family property was ($60,361.51-$11,984.26) $48,377.25. I find therefore that equalization is owed by Mrs. Taccone to Mr. Taccone in the amount of $407.85.

78I note that Mr. Taccone introduced into evidence during the trial a CRA notice dated August 18, 2014 indicating that taxes were owed by Equipment & Tool Connection Inc. for the tax years 2009, 2010, 2011 and 2012. This is a corporation which I understand from the parties’ evidence at trial, was no longer operating as at the date of separation. The corporation therefore had no date of separation value and the CRA debt was not personal to Mr. Taccone. I therefore have not included it in the equalization calculations.

Post-separation Adjustments

79Mr. Taccone claims as post-separation adjustments $2,017 in GMC Terrain car payments and $324 for car insurance for the period July – Oct/Nov 2014 when that vehicle, owned by Mr. Taccone, was in Mrs. Taccone’s possession. He also claims repayment for Mrs. Taccone’s life insurance premiums from April 1, 2014 to date and for an $80 parking fine incurred by Mrs. Taccone when she had possession of the GMC Terrain vehicle. Mr. Taccone also seeks repayment of interest-only payments he made on the parties’ joint Line of Credit post-separation.

80It is not disputed that the GMC Terrain vehicle was the family vehicle until Mr. Taccone left the matrimonial home in July 2014. It was not disputed that Mr. Taccone agreed to let Mrs. Taccone continue to use it for herself and the children and that they had a verbal agreement that he would continue to pay the car loan and she would pay the insurance and maintenance. Mrs. Taccone was not able to make the insurance payments and so Mr. Taccone re-possessed the vehicle in November 2014.

81While I accept that Mrs. Taccone did not meet the terms of the oral agreement when she failed to make the car insurance payments, I accept that she was financially unable to do so while putting support of the children first. I accept her evidence that she did not reneg on the agreement but asked Mr. Taccone for more time to come up with the funds to pay the insurance as agreed. Mr. Taccone was not prepared to wait any longer and so re-possessed the vehicle. I find that Mrs. Taccone was bound by the agreement to pay the car insurance for the period of time she used it, and so must repay to Mr. Taccone the $324 in car insurance fees. I do not find that she owes him anything for the car loan payments made by him, as he agreed to do, during that period.

82Mr. Taccone also claims, from April 1 2014 to the present, at $11 per month, the premiums he has paid to maintain a Co-operators life insurance policy in Mrs. Taccone’s name. The beneficiaries are the children. Both parties have such life insurance policies and to date Mr. Taccone has paid to maintain Mrs. Taccone’s life insurance policy in good standing. While there is no requirement that Mrs. Taccone maintain such a life insurance policy, particularly as she has no child support obligation, I find that it is reasonable that Mr. Taccone be repaid the cost of premiums from April 1, 2014 to date.

83The total owing from Mrs. Taccone to Mr. Taccone for life insurance premiums from April 1, 2014 to March 1, 2023 is $1,188. I find however, that there is no obligation on either party to continue to maintain Mrs. Taccone’s life insurance policy. The life insurance policy may be discontinued or either party may pay the premiums from April 1, 2023 forward. However, if Mr. Taccone chooses to pay the premiums on Mrs. Taccone’s life insurance after the date of this decision, he is not entitled to be repaid by Mrs. Taccone.

84Mrs. Taccone does not dispute that she incurred the $80 parking fine while the GMC Terrrain vehicle was in her possession post-separation, and I find that she owes Mr. Taccone $80 in repayment of the fine, which he had to pay to renew the licence for the vehicle.

85Mr. Taccone seeks repayment of half of the parties’ joint Line of Credit interest payments from April 2014 until the loan was paid out in December 2016. Mr. Taccone produced the Line of Credit statements showing that $4,828.62 in interest-only payments were made in the period April 2014 to December 2016 to keep the loan in good standing.

86I find that Mrs. Taccone owes Mr. Taccone half of these payments totalling $2,414.31.

87The total post-separation adjustments owing from Mrs. Taccone to Mr. Taccone amounts to $4,006.31.

Conclusion

88The total child support owed by Mr. Taccone to date is $28,254.20. There are no extraordinary expenses owed by Mrs. Taccone. There is no spousal support payable by Mr. Taccone. Equalization is owed by Mrs. Taccone to Mr. Taccone in the amount of $407.85. Post-separation adjustments owing from Mrs. Taccone to Mr. Taccone amount to $4,006.31.

89The total owing by Mr. Taccone to Mrs. Taccone is therefore $23,840.04.

Orders

90The parties shall be divorced, to take effect 30 days from the date of this order.

91Each party is responsible for contributing 50% of the cost of the children’s extraordinary expenses agreed upon in advance.

92Mr. Taccone is ordered to pay Guideline child support $488 per month beginning April 1, 2023.

93The parties shall exchange their Notices of Assessment by June 1 each year beginning June 1, 2023.

94The monies held in trust by Nanda and Associates shall be paid out to Mr. and Mrs. Taccone as follows: Mrs. Taccone shall be paid 50% of the monies held in trust. Mrs. Taccone shall be paid, additionally, $23,840.04 from Mr. Taccone’s 50% share, and the remainder shall be paid to Mr. Taccone.

MILLER J.

Released: March 10, 2023