COURT FILE NO.: FS-20-15992 DATE: 20230519 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DEIRDRE BAKKER Applicant – and – JOHN ALBERT BAKKER Respondent
Counsel: Latoya Thompson, for the Applicant Absent
HEARD: In Writing
Reasons for Judgment
M. Kraft, J.
1The Applicant (“wife”) and the Respondent (“husband”) were married in New York on September 21, 2004. The wife sponsored the husband to come to Canada and he arrived in Canada in 2006.
2The parties separated on January 6, 2020.
3There are two children of the marriage, both boys, ages 17 and 15, both of whom live with the wife. The wife has another child from a previous relationship, who is not part of these proceedings.
4There is a long history of family violence by the husband toward the wife and children during this 16-year marriage.
5This uncontested trial is to determine the residency of the children, decision-making responsibility for the children, an order for no contact between the husband and the children, child support for the children based on an imputed income for the husband, both retroactive and ongoing, and equalization of net family property. The wife also seeks restraining orders against the husband under the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).
Issue to be Determined
6The issues to be determined at this uncontested trial are as follows:
a. What parenting orders should be made in relation to the children? b. What is the husband’s child support obligation, both monthly table child support and toward the children’s s.7 expenses? c. Does either party owe the other spousal support and if so, in what amount and for how long? d. Which party owes the other an equalization payment and in what amount? e. Should there be an order restraining the husband from having direct or indirect contact with the wife?
Litigation History
7On February 27, 2020, the wife issued the within Application seeking, among other things, sole decision-making responsibility with respect to the children; primary residence of the children; an order for supervised contact between the children and the husband; an order involving the Office of the Children’s Lawyer; child support; spousal support; an order dispensing with the husband’s consent to enable her to obtain government-issued documentation for the children and travel; equalization of net family property; and a restraining order.
8The wife tried to serve the husband with her pleadings over several months, but the husband evaded service. Ultimately, she brought a 14B motion seeking to serve him by way of a substituted method. As a result of the Covid-19 pandemic and the suspension of regular court operations, the wife’s 14B motion was not addressed until almost a year after it was filed.
9On July 30, 2021, O’Brien, J. granted an order for substituted service to enable the wife to serve the husband with the Application and all future court documents via the husband’s email address.
10On August 5, 2021, the wife served the husband with this Application, her sworn financial statement and her Form 35.1 Affidavit in Support of Parenting, via email.
11The husband failed to file any responding material or respond to the wife’s material.
12As a result, on February 2, 2022, the wife brought a second 14B motion seeking to note the husband in default so she could proceed with her claims by way of an uncontested trial. She also sought an order for disclosure, specifically to require the TD Bank located at 697 McCowan Road, Toronto ON, to disclose the date on which the husband opened his account, account # ending in 9218. The wife required this disclosure since she was seeking an equalization of the parties’ net family property. The wife was aware that as at the date of separation, the husband had a TD Bank account in his name which had a balance of $53,000. To determine whether the husband had this account on the date of marriage, so a net family property calculation could be determined, the wife sought information from TD Bank to provide the court with the evidence it may need to determine whether the husband had a date of marriage deduction. She also sought permission to file an affidavit in support of her claims that exceeded the 10-page limit prescribed under the Notice to Profession.
13On February 8, 2022, Papageorgiou, J., made an order directing the wife to serve the husband with her 14B motion and to bring a 14B third party production motion to be served upon the TD Bank. The balance of the wife’s motion was adjourned pending the return of the wife’s properly served motion.
14On July 16, 2022, the wife brought a further 14B motion, seeking the production needed from the TD Bank. Specifically, the wife sought an order for TD Bank to produce and supply her with a copy of the husband’s bank statement as at the date of marriage or, alternatively, a letter confirming the husband’s bank account balance as at the date of marriage or at the date the account was opening.
15On July 14, 2022, Papageorgiou, J. noted the husband in default and ordered this proceeding to be scheduled for an uncontested trial. The TD Bank located at 697 McCowan Road, Toronto ON, was also ordered to provide the wife with a balance statement for the account belonging to the husband, account number ending in 9218, as at September 21, 2004, and a statement indicating when the account was opened.
16This is the uncontested trial ordered to proceed by Papageorgiou, J. In support of this uncontested trial, the wife filed a Form 23C, Affidavit for Uncontested Trial, sworn on December 28, 2022; a Financial Statement, sworn on December 28, 2022, a supplementary affidavit, sworn on December 28, 2022; a CPIC Restraining Order Information Form; draft Orders; her 2019 and 2020 Notices of Assessment; and her 2021 Income Tax Return.
Issue One: What parenting orders should be made?
17The wife seeks sole decision-making responsibility for the parties’ two boys, that they continue to reside primarily with her and an order that husband’s parenting time, if any, be supervised and in accordance with the children’s wishes. She also seeks an order dispensing with the husband’s consent to enable her to obtain government-issued documentation for the children and to travel.
18Pursuant to s.16(1) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) (“DA”), the court is only to consider the children’s best interests in making a parenting order or a contact order. In considering the best interest factors, set out in s.16(3) of the DA, the court is to give primary consideration to the children’s physical, emotional and psychological safety, security and well-being: s.16(2).
19The best interest factors set out in s.16(3) of the DA include, but are not limited to the following:
a. The child’s needs, given the child’s age and stage of development; b. The nature and strength of the child’s relationship with each spouse; c. Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; d. The history of care of the child; e. The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; f. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; g. Any family violence and its impact, on among other things, i. The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and ii. The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the children.
20In terms of family violence and in considering the impact of such violence, s.16(4) states as follows:
Factors relating to family violence
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred; (b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (d) the physical, emotional and psychological harm or risk of harm to the child; (e) any compromise to the safety of the child or other family member; (f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and (h) any other relevant factor.
21The wife was the children’s primary caregiver during the parties’ 16-year marriage. She did not work outside of the home during the marriage and, as a result, she focused on looking after the children and the household. She managed all major decisions related to the children.
22The husband did not take an active role in the children’s day-to-day lives. He was mostly disinterested in the children, their school, or extra-curricular activities. He insisted that the children comply with his rigid rules, such as not speaking loudly, causing them to whisper, and not using any electronic devices.
23The wife describes the children’s lives during the marriage as unhappy, because of the family violence they experienced at the hands of the husband. She deposes that the husband emotionally, psychologically and physically abused the children and bore the brunt of his controlling and manipulative behaviour. The husband engaged in coercive and controlling behaviour and used force, anger and violence in the home on a regular basis. Many examples were provided by the wife of the husband’s abusive conduct toward her and the children.
24The husband left the home in February 2020 and neither the wife nor the children have had any contact with him since that date. The husband has made no effort to maintain a relationship with the children and the children, at ages 17 and 15, express no interest in having a relationship with him.
25The husband essentially moved forward with his life, having no regard for the children and no interest in having any communication with them. The children have experienced anxiety and distress because of the family violence they experienced. The husband has taken no steps to receive any treatment for his conduct nor has he attempted to take ownership for his behaviour. The children had expressed to the wife that they do not wish to re-establish a relationship with their father at this time. Given their ages, they will make most decisions that impact them. Their views and preferences have been easily expressed and should be given due weight by the court.
26The children are close with the wife’s family, including her four sisters and their cousins.
27Given the history of care of the children, the children’s expressed views and preferences and the impact of the family violence on the children, it is in their best interests that they continue to have their primary residence with the wife and that the wife have sole decision-making responsibility in relation to all major decisions that impact the children’s lives.
28If the children wish to have contact with the husband, they shall be free to do so. There shall be no order for parenting time, other than if such time is to occur, it shall be at the discretion of the children and supervised.
29The wife shall be given authority to obtain any government issued documentation for the children without the need for the husband’s consent, such as passports, birth certifications, social insurance numbers, driver’s licence, etc. The wife shall also be authorized to travel with the children without notifying the husband or obtaining his consent in advance.
Issue Two: What is the Husband’s Child Support Obligation?
30Pursuant to s.15.1 of the DA, the court may make an order requiring a spouse to pay for child support. In making a child support order, the court shall do so in accordance with the Federal Child Support Guidelines, SOR/97-175 (“CSG”) s.15.1(3) of DA.
31The wife seeks child support for the two children in accordance with the CSG.
32The husband has been employed in the security field since the parties were married. According to the wife, he has worked part-time as an employee of the Underground Garage for the last 10 years plus. As of 2020, the wife is aware that the husband worked 15 hours each week at a rate of $20 an hour. 1 In the past, the husband earned additional income working in the security field for cash. He did this to conceal his income, as the family lived in income-based housing.
33During the marriage, the wife was a stay-at-home parent. After the separation, the wife began receiving social assistance and went to school to complete her Personal Support Worker (“PSW”) diploma. She is presently seeking employment opportunities in this field.
34The wife is not certain as to whether the husband continues to work as a security guard with the Underground Garage, but his experience is in the security field. Based on his historical income earning ability of $20 an hour, the wife asks that income be imputed to the husband on this basis.
35The husband has not paid any support to the wife since separation.
36The wife asks the court to impute an income to the husband of $41,600 a year, which is the equivalent of her earning $20 an hour on a full-time basis, at the rate he was earning at the time of separation. The husband has worked in the security field since he arrived in Canada one year after the parties were married 18 years ago. He consistently earned above minimum wage. Given the number of years he worked in this field, he is capable of obtaining full-time employment at the rate of $20 an hour. On an income of $41,600, the husband is obliged to pay table child support to the wife for the two children of the marriage in the sum of $619 a month.
37The wife acknowledges, however, that according to a Job Website, Glassdoor, the average security guard earns a salary of $16 an hour. If the court is not prepared to impute the husband with an income which is equivalent to him earning $20 an hour full-time, she asks that an income of $33,280 be imputed to the husband, based on an hourly wage of $16 an hour. At this level of income, the husband’s table CSG obligation for two children would be $507 a month.
38The wife also sought an order fixing the arrears of child support at $20,427 for the period commencing March 2020 until November 2022, using the imputed annual income for the husband of $41,600, which is 33 months at the rate of $619 a month. Note that the wife’s materials for the uncontested trial were filed in December 2022. Given that the court is only now dealing with the uncontested trial and the wife’s claims, there is a total period of 37 months in arrears. Following the wife’s position, therefore, the child support arrears would be 37 months at a rate of $619, for a total sum of $22,903.
39The wife’s alternative argument is that the husband’s arrears be based on his table child support obligation using an income of $33,280, which would be 37 months at a rate of $507, for a total of $18,759.
The Law on Imputation of Income
40When determining whether to impute income to a payor, the court has regard to s.19 of the CSG, which allows the court to impute income to a spouse as it considers appropriate in the circumstances. The circumstances include intentional under-employment or unemployment.
41In Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.), at para. 23, Gilles, J.A. set out the questions a court should ask when considering whether a spouse is intentionally under-employed or unemployed:
a. Is the spouse intentionally under-employed or unemployed? b. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs? c. If no, what income is appropriately imputed in the circumstances?
42The court also clarified that “intentional” under-employment or unemployment does not require a specific intent to evade child support obligations. There is no requirement of bad faith: Drygala, at paras. 25-26, 29.
43“Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. To meet this legal obligation, a parent must earn what he or she is capable of earning”: Drygala, at para. 32.
44In terms of what income is appropriately imputed in the circumstances, the court cannot arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in the evidence: Drygala, at para. 33.
45The test for imputing income for child support purposes applies equally for spousal support purposes: Di Sabatino v. Di Sabatino, 2022 ONSC 383, para. 49, leave to appeal refused 2022 CarswellOnt 7089 (Div. Ct.).
46The wife has provided the court with information about the husband’s historical earnings. As a security guard, the husband has been able to earn an income based on an hourly rate of $20. In this manner, the wife has provided an explanation as to how she arrived at the annual income figure she seeks the husband to be imputed with. Full-time employment as a security guard, earning $20 an hour, is 40 hours a week, which amounts to $800. Assuming, a full year of 52 weeks, the husband’s income would calculate to be $41,600 a year.
47While the imputation of income is not an exact science, the amount to be imputed as to reference real evidence: Albanez v. Samuda, 2019 ONSC 3610. The wife also put forward an alternative position, that the husband be imputed with the average hourly wage of a security guard, as set out in Glassdoor, a job website. Given the husband’s historical ability to earn $20 an hour, I am not persuaded that income should be imputed to him based on a lower hourly wage.
48In McNeil v. Dunne, 2019 ONSC 6388 (S.C.J.), the Divisional Court reiterated that sometimes prior employment income is a rational and sufficient basis for quantifying imputed income. In Lawson v. Lawson, 2006 ONCA 26573, the Court of appeal found no error “in the trial judge basing the appellant’s imputed income on his average income for the three years prior to separation and found it was reasonable in the circumstances, para. 38.
49In reference to the third question in the analysis, namely what income to impute, the court has “wide discretion”: A.E v. A.E., 2021 ONSC 18880 (S.C.J.), para. 262 (2)(c). The Court considers the evidence, and when selecting a number, “must consider what is reasonable in the circumstances”, looking at, for example, “age, education, experience, skills and health of the parent”: Drygala v. Pauli, supra, paras. 44-45.
50The Court can consider historical earnings or prior employment income as a basis for imputing income: Drygala v. Pauli, supra, para. 46; Dunne v. McNeil (Div. Ct.), supra, para. 8; Lawson v. Lawson, supra, para. 38.
51When considering income imputation, the person asking to impute income does not need to “point to an available job or jobs that meet his qualifications and set out the remuneration”: McNeil v. Dunne, supra, paras. 71-73. The threshold is not this high, and “evidence of previous earnings alone can be sufficient to establish a rational basis that meets the test”: McNeil v. Dunne, supra, para. 74.
52Based on the evidence on record, I find that the husband should be imputed with annual income of $41,600. This corresponds to a table child support obligation of $619 a month for the two children of the marriage on an ongoing basis.
The Law on Retroactive Child Support
53In D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, the court looked at three scenarios where retroactive child support might be ordered, one of which, is where there has not already been a court order for the payment of child support. This is the situation in the case at bar.
54Bastarache J. found that s. 15.1 of the DA, does not expressly provide for retroactive support orders. In the context of a claim for child support where no previous order has been made or agreement reached between the parties for the payment of one parent to another for child support, this court has jurisdiction to award retroactive child support under s. 15.1 of the DA on a contextual reading of the statute. The court found that there is no restriction in the DA as to the date from which a court may order that an order of child support may take effect. In this respect, retroactive support for a child is actually compensation for what is legally owed. D.B.S., paras. 81-84.
55The majority in D.B.S. confirmed bedrock principles relating to the obligation of separated parents to pay child support. The amount of support payable under this obligation depends on their ability or their income according to the governing support regime that applies to them.
56Bastarache J. observed that the mere fact of parenting places a great responsibility upon parents. They are immediately responsible as guardians and providers upon the birth of a child. Bastarache J. further observed that the parent and child relationship is one that engages not only moral obligations, but also legal obligations; support is an obligation that arises automatically upon the birth of a child; D.B.S., at paras. 36-37.
57In D.B.S., the court set out the two steps to decide the issue of retroactive child support. The court must first determine whether a retroactive award should be made on the facts of the case. This determination, in my view, is a question about entitlement. The second step is to decide the amount of support that would adequately quantify the obligation of the payor to pay support during the intervening time. This step requires the court to determine the date from which retroactive child support should be payable, as the amount payable each month is fixed by the table amount according the CSGs for the payor’s income in each year of the retroactive period.
58There are several factors to consider in determining whether retroactive child support should be ordered. These factors are often referred to as the D.B.S. factors and can be summarized as follows:
a. Is there a reasonable excuse for why child support was not sought earlier? b. Did the payor parent engage in blameworthy conduct? c. What are the child’s circumstances? d. Will hardship be occasioned by a retroactive award?
59In this case, the wife issued the Application on February 27, 2020, just under two months after the separation. She then proceeded to try and serve the husband with her pleadings, but he evaded service. The wife then took steps to obtain a court order for substituted service. Regrettably, the Covid-19 pandemic caused a serious delay in the timeframe within which the court was dealing with motions in writing, which was the manner in which the wife brought her motion since service is a procedural issue. As soon as the substituted service order was granted, the wife immediately served the husband with her pleadings by email. Accordingly, the wife did not delay in seeking child support in any sense. The delay of time between the date her Application was issued and when the husband was served with the Application has as much to do with the husband’s conduct in evading service as it does with the occurrence of the Covid-19 pandemic. Either way, the why did not delay in her attempt to secure child support.
60The husband, in my view, did engage in blameworthy conduct. Although, the husband did nothing active to avoid his child support obligation, his conduct was blameworthy because he consciously chose to ignore his child support obligations: Put simply, a payor parent who knowingly avoids or diminishes his support obligation to his children should not be allowed to profit from such conduct: D.B.S., at para. 107. The husband knew when he left the home in February 2020, that the wife and children were entirely financial dependent on him. Notwithstanding this, he took no steps to provide any support for the family financially. He has had no contact with the wife or the children and essentially abandoned them.
61The present circumstances of the children are that they are in a more difficult financial situation than they were in at the time of separation. The wife is now in receipt of social assistance from Ontario Works and is working part time. However, the wife describes that she struggles to make ends meet, pay for the children’s mandatory uniforms for school and their transportation costs. There is no doubt, based on the evidence on record, that the children have undergone hardship since the separation.
62Since the husband chose not to respond to the wife’s Application or participate in these proceedings, the court has no evidence from the husband as to whether hardship would be occasioned by a retroactive child support award. The court, however, should attempt to craft the retroactive award in a way that minimizes hardship: D.B.S. at para. 116. While hardship for the payor parent is much less of a concern where it is the product of his own blameworthy conduct, it remains a strong one where this is not the case. In the case at bar, it is the husband’s own blameworthy conduct that has resulted in retroactive child support being owed by him.
63I find that this is an appropriate case where child support should be awarded retroactive to March 1, 2020, at the time of separation onward. Given that I have imputed an annual income of $41,600 to the husband, table child support for the two children for the period March 1, 2020, to and including April 31, 2023, is owing for 37 months, at the rate of $619 a month, fixed at $22,903. I order the husband to pay the retroactive child support at the rate of $100 a month starting May 1, 2023, until the arrears are paid.
Section 7 Expenses
64The children currently attend a Catholic School. Each year, the children require uniforms and black shoes to wear to school. Depending on the grants available to the wife, the total amount she receives varies. The uniform attire is mandatory for the children. In the past, the wife has struggled to purchase these items on her own, given that she only receives social assistance of $807.90 a month. She seeks an order requiring the husband to pay 50% of these items as a s.7 expense.
65Additionally, the wife seeks a contribution from the husband to contribute to the cost of transportation for the child. The wife does not own a car, nor does she drive. As a result, the children take public transportation to get to school. She currently spends $256.30 a month to obtain Presto passes for the children. 2 This is challenging for her financially given her monthly income from social assistance. The wife requires financial contribution from the husband to assist with the children’s transportation costs because this poses a barrier to them to get to school.
66Section 7 of the CSG provides the court with the authority to order a spouse to provide for an amount to cover all or any portion of a number of expenses, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation. The list of expenses which are categories of s.7 expenses including extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs: s.7(1)(d).
67I find that the cost of mandatory uniforms and transportation costs to enable the children to get to school, are reasonable and necessary and in the children’s best interests, particularly given the wife’s limited means and her inability to drive.
68In total, the wife seeks an order that her husband contribute $130.22 toward the children’s transportation costs and 50% of their uniforms and any other s.7 expenses. Accordingly, I order the husband to contribute $130.22 toward the child’s transportation costs each month, in addition to the table amount of child support, as well as the cost of 50% of the children’s uniform expenses.
Issue Three: Does Either Spouse owe the other Spousal Support
69This was a 16-year marriage, in which the wife did not work outside of the home. The husband was the sole breadwinner.
70S.15.2 of the DA provides the court with its jurisdiction to make a spousal support order, including lump sum or periodic sums, as the court things reasonable for the support of the other spouse.
71In making a spousal support order, the court is required to take into consideration the condition, means, needs and other circumstances of each spouse, including,
a. The length of time the spouses cohabited; b. The functions performed by each spouse during cohabitation; and c. Any order, agreement or arrangement relating to support of either spouse.
72The objectives of a spousal support order are set out in s.15.2(6) of the DA and should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
73Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications: s.15.3.
74The wife describes a marriage where the husband used his role as the breadwinner to financially control her and the children. During the marriage, the wife explains that she was unable to freely access any monies from the husband’s bank account and was entirely dependant on him financially. If she had to purchase any items for herself or the children, she would have to ask the husband and he often rejected her requests. The husband regularly monitored purchases and would then control any purchases made by determining who could access them. As a result, the wife explains that the children often lacked basic items they needed for school, such as uniforms and new shoes. The wife used the money she received from the children’s tax benefit to purchase additional items she and the children needed.
75When the parties first became married, the wife was a young, single parent of one child, not a child of this marriage but a previous relationship. Instead of providing a supporting and loving environment, the husband controlled and abused the wife and the children. The husband discouraged the wife from working outside of the home once they had their first child.
76The wife sacrificed her education and employment opportunity during the marriage when she took on the role of looking after the household and children. In doing so, the husband was free to advance in his career choices. Further given the family violence, she and the children experienced, the wife was fearful to work outside of the home and leave the children in the husband’s care.
77Now that the parties are separated, the wife has taken all steps necessary to become self-sufficient. In 2021, she earned a total income of $11,200. In 2020, her Line 15000 income was $15,752. In 2019, the wife earned zero income.
78The standard of living of the family has drastically declined since the separation because the husband has not supported the wife or children financially since he left in February 2020. The wife has had difficultly making ends meet. She currently receives $807.90 each month from social assistance benefits from Ontario Works.
79The wife recognizes that the DA prioritizes child support over spousal support. As a result, the wife seeks lump sum spousal support in the amount of $10,000 to be paid out of the husband’s savings account at TD Canada Trust which he accumulated during the marriage. She submits that lump sum spousal support is appropriate in this case because of the urgency of the family’s need and the fact that the husband has these savings available. On the present household income, the wife is unable to adequately support the children and herself without monthly child and some form of spousal support.
80In these circumstances, a lump sum spousal support award of $10,000 to be paid out of the husband’s TD bank account is appropriate.
Issue Four: Which Spouse owes the Other an Equalization Payment and in what sum?
81Pursuant to s.5(1) of the Family Law Act, R.S.O. 1990, c.F.3 (“FLA”) the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them. This is also known as the equalization payment (“EP”).
82The purpose of the EP is to recognize that childcare, household management and financial provisions are the joint responsibilities of the spouses and that inherent in the martial relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6): s.5(7) of the FLA.
83Net family property (“NFP”) means the value of all the property that a spouse owns on the valuation date, after deducting a spouse’s debts and other liabilities on the valuation date and after deducting the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, less a spouses debts and other liabilities, other than debts or liabilities related directly to the acquisition of significant improvement of a matrimonial home, calculated a of the date of marriage. In addition, if a spouse has excluded property as defined in s.4(2) of the FLA, that property would not form part of a spouse’s NFP, such as a gift or inheritance, other than a matrimonial home, that was received by a spouse from a third party after the date of marriage.
84The wife submits that until the date of separation, the parties did not accumulate any assets. However, the husband saved approximately $53,242.91 in a TD Bank account. 3 The wife seeks an order for equalization of this account, so the husband pays her an EP of $26,621.45.
85The husband opened this TD Bank account ending in 9218. Over the course of the marriage, the husband saved monies in this account. As at the date of separation, the balance in this account was $53,242.91.
86By contrast, on the date of separation, the wife had a Royal Bank chequing account, with a negative balance of -$486. The wife’s financial statement, sworn on December 29, 2020, shows that she has a zero NFP.
87Despite the order requiring the TD bank to produce the husband’s bank statements as at the date of separation or confirmation of the balance as at the date of marriage, the TD was not able to do so. On July 20, 2022, the TD bank wrote to the wife’s lawyer advising that the bank’s record retention is 7 years to date and, as a result, the bank was unable to provide a bank statement as of the date of September 21, 2004, and/or as of the date of the account opening. The letter confirms that the account ending in 9218 was opened beyond their 7-year retention period.
88The evidence on record is that the husband’s NFP was $53,242.91 and the wife’s NFP is zero. Accordingly, the EP owing by the husband to the wife is $26,621.45. The husband is ordered to pay the wife this EP.
Issue Five: Should a Restraining Order be made against the Husband?
89The wife seeks a restraining order against the husband so that he does not come within 500 meters of her residence, place of employment and the children’s school, except with the wife’s prior consent if it is for the purpose of having contact with the children.
90The authority for the court to make a restraining order is set out in s.35(1) of the CLRA which provides that the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. A restraining order is also available under the FLA under s.46(1).
91The test under both states is to determine whether the moving party “has reasonable grounds to fear for his or her safety or for the safety of any child in his or her custody”. The courts must exercise caution when granting a restraining order due to the nature of restraining orders limited the freedom of movement and communication of a party and the risks of criminal sanctions if breached: C.(D). v. C. (M.T.), 2015 ONCJ 242, at para. 64. The onus is upon the person requesting the restraining order, on a balance of probabilities to persuade the court that it is required; C.(D.) v. C. (M.T.), at para. 64.
92Given the history of family violence inflicted on the wife and children, I find that the wife has established that she has a reasonable fear for her safety and the safety of the children in her care, such that a restraining order against the husband shall be granted.
93The wife seeks an order restraining the husband from coming within 500 meters of her residence and the children’s school.
Disposition
94This court makes the following final order:
a. Pursuant to s.16(1), 16.1(1) and (4) of the Divorce Act, the applicant, Deirdre Bakker, shall have sole decision-making responsibility in connection with the major decisions that impact J., born August 27, 2005, and J., born September 8, 2007; b. Pursuant to s. 16(6) and 16.1(4) of the Divorce Act, the children shall reside primarily with the applicant. c. Pursuant to s. 16.1(4) and 16.1(5) of the Divorce Act, the applicant shall be permitted to apply and renew any and all government issued documentation for the children, including but not limited to passports, social insurance numbers, health cards, driver’s licence, birth certificates. d. Pursuant to s.16.1(5) of the Divorce Act, the applicant shall be permitted to travel with the children without the need for the respondent’s consent. e. Pursuant to s.16.5(5), (6) and (7) of the Divorce Act, the respondent shall only have contact with the children in accordance with the children’s wishes and on a supervised basis. f. Pursuant to s. 35 of the Children’s Law Reform Act, the respondent shall be restrained from coming within 500 meters of the applicant’s residence and the children’s school. g. Pursuant to s. 15.1(1), (3) of the Divorce Act, the respondent shall be imputed with an income of $41,600 a year. Commencing on May 1, 2023, and on the first day of each following month, the respondent shall pay the applicant child support for the two children of the marriage in the table amount of $619 a month. In addition, the respondent shall pay the applicant the sum of $128.15 per child for a total of $256.30 a month as his contribution toward the children’s transportation costs as a s.7 expense. The total monthly child support, therefore, owing by the respondent to the applicant is $875 a month ($619 table child support + $256.30 (50% of the transportation costs as a s.7 expense). h. Pursuant to s. 15.1(1) and (3) of the Divorce Act, the respondent shall pay 50% of the children’s additional s.7 expenses including the cost of uniforms and school shores within 15 days of being served with a copy of the invoice for these items by the applicant via email. i. Pursuant to s.15.1(1) of the Divorce Act, the respondent shall pay the applicant retroactive child support of $22,903 (calculated as $619 a month for 37 months from March 1, 2020, to and including April 30, 2023) at the rate of $100 a month starting May 1, 2023, and on the first day of each following month; j. Pursuant to s.4 of the Family Law Act, the respondent shall pay to the applicant an equalization payment in the sum of $26,621.45 in full satisfaction of any and all claims she may have against him for property division. k. Pursuant to s.15.2(1) of the Divorce Act, the respondent shall pay the applicant lump sum spousal support in the amount of $10,000 in full satisfaction of her spousal support claims. l. The payments referred to in (j) and (k) above shall be paid by the husband out of his TD Bank account, account number ending in #9812. The TD Bank shall be directed to make these payments to the wife from the husband’s account if the husband does not voluntarily make these payments to the wife within five days of being served with these Reasons. m. Unless the support order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. n. An SDO shall issue.
Released: May 19, 2023 M. Kraft, J.
Footnotes
Footnotes
- Exhibit “A” to the wife’s affidavit, sworn on December 22, 2020, is a letter from Kevin Griffiths, General Manager of The Underground Garage, dated January 25, 2020, confirming the husband’s hours and hourly wage.
- Attached as Exhibit “D” to the wife’s affidavit sworn on December 28, 2022, is a printout from the TTC evidencing that a monthly pass is $128.15 per person.
- Attached as Exhibit “E” to the wife’s affidavit, sworn on December 28, 2020, is a copy of the husband’s TD bank account statement for the account ending in #9218, showing a balance of $52,742.91 as at January 31, 2020.