COURT FILE NO.: 4969/22
DATE: 2023-08-22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
STEPHANIE MARETT BOISVERT
Applicant
– and –
MATTHEW AARON MCDONALD
Respondent
Paul M. Paciocco, for the Applicant
HEARD: August 22, 2023
rasaiah
reasons on uncontested hearing
OVERVIEW
[1] This matter was set for uncontested hearing.
[2] The respondent did not attend.
[3] Various orders have been made in this case providing the respondent with opportunity to participate and requiring disclosure, all of which he did not take nor comply with.
[4] The parties were married so federal legislation applies to the issues of decision-making authority, parenting time and support. The issue of costs is subject to the Ontario provincial legislation.
[5] The applicant seeks the following final order:
The applicant, Stephanie Marett Boisver, and the respondent, Matthew Aaron McDonald, who were married at Las Vegas, Nevada on September 10, 2015, be divorced and that divorce take effect 31 days after the date of this order;
The court finds the annual income of the applicant for support purposes to be $58,122;
The court finds the annual income of the respondent for support purposes to be $70,720;
The respondent shall pay spousal support to the applicant in the amount of $1.00 per month commencing June 1, 2023, and continuing on the first day of each month that follows until a court orders otherwise;
The respondent based on determined annual income of $79,720, shall pay to the applicant for the support of the child, Charlotte Ryane McDonald, born April 30, 2016, child support in accordance with the Child Support Advisory Guidelines Table, in the amount of $661 per month commencing June 1, 2023, and continuing on the first day of each month that follows;
This court finds that the child’s annual current section 7 expenses are: YMCA membership $535; Rebel Gym Membership $875; childcare expense $4,000 and summer day camp expenses $1,260;
The respondent shall pay to the applicant $305 per month as the respondent’s 54.9% pro rata contribution to the child’s current section 7 expenses commencing June 1, 2023, and continuing on the first day of each month that follows;
The respondent shall pay to the applicant 54.9% of any further future section 7 expense for the child within 15 days of the applicant submitting the receipt for such expenses to the respondent;
Child support arrears owed by the respondent to the applicant for the period of November 1, 2021, to May 31, 2023, are herby fixed in the amount of $12,599. The respondent shall repay same to the applicant in the amount of $500 per month commencing June 1, 2023, and continuing on the first day of each month until the arrears are paid in full;
The respondent shall produce to the applicant a copy of his income tax return and Notice of Assessment by June 1st of each year commencing June 1, 2023;
The respondent shall designate the applicant as irrevocable beneficiary on any and all life insurance policies which the respondent may have and to provide the applicant proof of such designations and life insurance police particulars for each policy within 30 days of the date of this order;
The respondent shall name and maintain the applicant and child on any medical, dental, and extended healthcare plans available to him through his employment and to provide the applicant proof of such designations and coverage particulars within 30 days of the date of this order;
The respondent shall notify the applicant in writing of any changes in his employment and to provide her with proof of his income therefrom within 7 days of any such change;
The applicant shall have sole decision-making responsibility/authority for the child, Charlotte Ryane McDonald, born April 30, 2016, and the said child shall reside primarily with the applicant;
The applicant is hereby permitted to travel internationally with the child, Charlotte Ryane McDonald, without the written consent of the respondent;
The respondent shall have reasonable supervised parenting time with the child, Charlotte Ryane McDonald, born April 30, 2016, at the reasonable discretion of the applicant. Such discretion shall include frequency, location, duration, parameters of transportation, and any terms of supervision;
The respondent shall refrain from consuming alcohol and/or non-prescription medication for twenty-four (24) hours prior to or during his parenting time with the child, Charlotte Ryane McDonald, born April 30, 2016;
The respondent is hereby permitted to make inquiries and to be given information as to the health, education, religion, and welfare of the child from all third-party professionals who are involved with the child; and
Costs as determined by the court.
[6] The applicant filed an affidavit dated May 30, 2023, and one dated July 17, 2023, in support of her requests for relief.
[7] Service is in order. Based on my review of the record, and the respondent’s attendance before me at a case conference, he was aware of these proceedings. He has had an opportunity to participate. He has failed to do so. In accordance with the Family Law Rules, O. Reg. 114/99 (“Rules) I am satisfied that this application may proceed by way of uncontested hearing. The time for filing an answer and compliance with the order made have expired. The consequences as set out in paragraphs 1 to 4 of subrule 1(8.4) of the Rules, apply, with necessary changes, if a respondent does not serve and file and answer. The consequences are that the respondent is not entitled to any further notice of steps in the case (subject to subrule 25(13) (service of order)); the respondent is not entitled to participate in the case in any way; the court may deal with the case in the respondent’s absence; and a date may be set for an uncontested trial of the case, on request, pursuant to (r. 17 of the Rules).
[8] Given there is nothing filed by the respondent in this case, I have no reason on the record before me not to accept the evidence the applicant relies on regarding the background, the history of the proceedings, the parenting time, the decision-making responsibilities, income of the parties, s. 7 expenses, arrears, benefits, insurance, and for the request for divorce.
[9] As to decision-making responsibility, I have considered the best interests of the child and the applicable factors. I am satisfied it is in the best interests of the child that the applicant be awarded decision-making responsibility. The child is currently age 7 and has special needs, including but not limited to ADHD and anxiety diagnoses. She has been in the primary care of the applicant who has offered her a stable environment. The applicant has solely exercised the decision-making responsibility for some time. She is ready willing and able to provide for the needs, security, and well-being of the child. They have a close and loving relationship. Albeit on a supervised basis, the applicant is prepared to maintain and facilitate parenting time with the respondent, which she has done in the past. She has also maintained the child’s relationship with the respondent’s family members. Her plans for the care of the child cause me no concern. They offer the stability the child needs. It is clear to me that these parties are not able to co-operate and communicate effectively at this time. The respondent has been given an opportunity to respond to this claim and has chosen not to. On the record, he has had limited involvement with making decisions concerning the child.
[10] As to permission to travel with the child, is reasonable and in the best interests of the child, who will benefit physically, emotionally, psychologically, and socially from being able to travel with the applicant and given the lack of co-operation to date from the respondent, low level of his involvement with the child, and my satisfaction that the applicant has and will continue to act in the best interests of the child, I take no issue permitting her to do so without his consent.
[11] As to parenting time, including terms requested related to alcohol consumption, and non-prescribed drugs, the facts set out that there are concerns with respect to the respondent. Mental health is also raised as an issue. These concerns are outlined in the affidavit materials filed and are not insignificant, including but not limited to allegations of using drugs in front of the child, stating to the child that he wished the applicant was dead, and allegations of his refusal to take his prescribed medications for his illness. There further are allegations of the respondent having the opportunity for parenting time but not take them. The respondent has chosen not to respond, and the court has no information contradicting the applicant’s evidence. These concerns, do in my view, in the best interests of the child support the order being requested and a finding that at present, there are safety concerns and concerns for the well-being of the child.
[12] As to incomes, I am satisfied based on the information presented that the parties’ incomes should be imputed as requested. I accept that $58,122 is reflective of the applicant’s yearly income. I accept that the information based on the respondent’s past history and the information regarding his contract and his hourly rate being $34 per hour that his yearly income may be around $70,720. I have further considered the respondent’s failure to comply with a disclosure order and his obligations to make financial disclosure, against which I may draw an adverse inference. Given the changes in the respondent’s income since separation, and the lack of disclosure it is not unreasonable to order that he provide information with respect to changes thereto as requested.
[13] As to table child support, based on the aforesaid income, the table amount of support payable by the respondent is $661 per month for one child. That same amount would have been payable in 2021 and 2022 per the applicable Guidelines.
[14] As to s.7 expenses, YMCA membership $535; Rebel Gym Membership $875; child care expense $4,000 and summer day camp expenses $1,260, I find that based on the evidence filed, the child care expenses of $4,000 and $1,280 are child care expenses incurred as a result of employment for the applicant who has the primary parenting time obligation, and the gym membership expenses are reasonable and necessary extraordinary expenses that will benefit the child, enriching her with social activity. They are not significant amounts in comparison to the unit income as determined by me. Satisfactory documentation has been filed.
[15] As to spousal support, Spousal Support Advisory Guidelines have been considered by me and applied. The parties were married. They lived together since 2012. The applicant has had primary care of the child and her ability to be employed has to consider the child and available childcare. Accordingly in my view, entitlement is established based on the length of the relationship, the applicant having primary care of the child, and the history with respect to income including the disparity regarding same. Based on the aforesaid incomes and support obligations, the range for spousal support is $0 to $0 per month for an indefinite (unspecified) duration, subject to variation and possibly review with a minimum duration of 3 years and a maximum duration of 11 years from the date of separation. The applicant is asking for $1 per month. I am not prepared to order spousal support on the basis of the foregoing but am prepared to set out that future application is not prohibited and may be reviewed on later application of the applicant based on the foregoing. It is apparent that due to child support obligations presently, affect the quantum, and at some point, a without child support application may arise that may still be in the guidelines, a time frame over which I cannot speculate over at this time. In my view, it is not necessary to attach a notional $1 per month payment given the foregoing.
[16] As to proportionate share of s. 7 expenses, based on support payable and the aforesaid incomes, the respondent’s share of s. 7 expenses is $ 54.9%. His share of the specific s. 7 expenses identified above would accordingly amount to $305 per month. It is reasonable to expect that these expenses may change and providing a mechanism to address same is not an unreasonable request and I take no issue with it. It is reasonable to ask that the current expenses be paid as a monthly amount. I am satisfied there would be concern that the child would not be able to be cared for or enjoy her activities without requiring the monthly payment. The respondent has not paid support, any support, since 2021 and certainly has not been cooperative in providing disclosure to determine support, despite opportunity and court orders.
[17] As to health and dental benefits, s.6 of the Guidelines applies. If there is medical or dental insurance coverage available at a reasonable rate, the court may order it be acquired and/or continued as the case may be in making a child support order. The information currently is that the respondent works at Algoma Steel and these benefits are available to him.
[18] As for the applicant, the divorce will likely terminate her entitlement of which I have no information which I drew to counsel’s attention, following which she sought to abandon that request. Her main concern was with respect to the child.
[19] As to life insurance, security for payment of support is an issue the court has jurisdiction to consider. The information currently is that the respondent works, and these benefits are available to him per the contract filed. The child is young and in the event that something would happen to the respondent, it is in the best interests of the child to ensure that there is a fund in place for continued support. The same analogy applies with respect to spousal support for any contingent claims. It is best that the applicant as the parent with decision-making authority be named as trustee with respect to that portion of the policy related to securing child support.
[20] As to arrears of child support, I take no issue with the calculations submitted and based on the parenting time over that period of time. The amounts set out in the affidavit correctly reflect that support was payable at the rate of $661 per month for the period of the 19 months claimed for a total of $12,599. The rate of payment being requested appears to see that the arrears are paid within 2 years. I do not find this unreasonable based on the respondent’s determined income. At this time, I have nothing to suggest that this would not be inappropriate or something the respondent cannot manage. Considering the determined income, after payment of support amounts, and with taxes and deductions off of his gross income, his net disposable income is approximately $3,500 (Gross Income $5,893 less taxes and deductions of $1,427, less benefits and credits of $41, less $0 spousal support, less $661 child support and less $305 s.7 payment).
[21] As to continued financial disclosure, documents and change of employment, this is required by the law, and I take no issue with the request.
[22] As to third-party care provider information related to the child, the respondent is entitled to information in law, and I take no issue with the request.
[23] As to the divorce, I am satisfied that it may issue, all is in order with jurisdiction, grounds, service and a clearance certificate.
[24] As to costs, the applicant has been genuinely attempting to resolve these issues and provided the respondent with an opportunity to answer the application. The court provided opportunity for same as well. The respondent has failed to provide information and/or participate. The issues are important issues. The application although not complex, includes several issues that require resolution following the breakdown of the marriage. Given that the respondent has failed to answer, steps were required to be taken by the applicant to obtain relief via the court. He has failed to comply with disclosure orders. There was no other choice, I accept than to bring this matter to hearing. I find the hourly rate to correspond with year of call. I find however the bill of costs to be high and includes claims for costs at various steps at which such costs were not addressed at no fault of the court however accepting the obligation of the court and the fact that same may be claimed at a later date. It may well be that the respondent believed the motions were concluded and issues of costs were not being carried over. If the order does not include a claim for costs, I also noted that I had fixed costs related to a case conference in August of 2022 already and a motion in October of 2022. At various court dates, some orders were submitted for the court that did not claim costs and with no adjournment of the issue or any indication that the motions were not spent. Counsel indicates that they have contemplated these issues and suggests that after deducting same, costs would be approximately $20,000. I did not receive any offers to settle. I have to remain mindful as well of the order that I have made on this hearing and that the applicant was predominantly successful with all of her claims. Balancing all of the foregoing and all the factors, I do accept and agree that I should exercise my discretion to order costs but I am only prepared to do so in respect of the application and the uncontested hearing and in a reasonable amount that a person would expect to pay if they were unsuccessful in defending same, which I find would be, inclusive of HST, fees and disbursements to be 15,000.00. I am of the view, that spousal support by the guidelines is a minimal issue and I have not given it much weight as a full issue. Parenting time, decision-making responsibility and child support are the three main issues of this application in my view. I accept counsel’s submissions that out of these three issues, the issue that required the most focus was support. I accept his suggestion that 50% ought to be considered in relation to support payments.
[25] Order to go follows:
a. The applicant, Stephanie Marett Boisver, and the respondent, Matthew Aaron McDonald, who were married at Las Vegas, Nevada on September 10, 2015, shall be divorced and that divorce take effect 31 days after the date of this order;
b. The court finds the annual income of the applicant for determination of support to be $58,122;
c. The court finds the annual income of the respondent for determination of support to be $70,720;
d. This court finds that the range for spousal support is $0 to $0 per month for an indefinite (unspecified) duration, subject to variation and possibly review with a minimum duration of 3 years and a maximum duration of 11 years from the date of separation and as such, on this basis, a review of support in the future at the request of the applicant is not foreclosed on the basis that this is reflective of a with child support scenario;
e. The respondent based on income of $70,720 shall pay to the applicant for the support of the child, Charlotte Ryane McDonald, born April 30, 2016, table child support in the amount of $661 per month commencing June 1, 2023, and continuing on the first day of each month that follows;
f. This court finds that the child’s annual current section 7 expenses are: YMCA membership $535; Rebel Gym Membership $875; childcare expense $4,000 and summer day camp expenses $1,260 (per year respectively);
g. The respondent on income of $70,720 and the applicant having income of $58,122, shall pay to the applicant $305 per month as the respondent’s 54.9% pro rata contribution to the child’s current section 7 expenses set out herein above commencing June 1, 2023, and continuing on the first day of each month that follows;
h. The respondent shall pay to the applicant 54.9% such further future section 7 expenses for the child in accordance with the Federal Child Support Guidelines within 15 days of the applicant submitting the receipt for such expenses to the respondent;
i. Child support arrears for the child, Charlotte Ryane McDonald, born April 30, 2016, owed by the respondent to the applicant for the period of November 1, 2021, to and including May 31, 2023, are herby fixed in the amount of $12,599. The respondent shall repay same to the applicant in the amount of $500 per month commencing June 1, 2023, and continuing on the first day of each month until the arrears are paid in full;
j. The respondent shall produce to the applicant a copy of his income tax return and Notice of Assessment by June 1st of each year commencing June 1, 2023;
k. The respondent shall designate the applicant as irrevocable beneficiary on all life insurance policies which the respondent may have at this date for two purposes, one for purposes of securing any future spousal support that may become payable for which she will be named irrevocable beneficiary, and second for securing child support, for which portion she shall be named irrevocable beneficiary/Trustee in trust for the child. The respondent shall provide the applicant with proof of such designations and life insurance policy particulars for each policy within 30 days of the date of this order;
l. The respondent shall name and maintain the child, Charlotte Ryane McDonald, born April 30, 2016, on any medical, dental, and extended healthcare plans available to him through his employment and to provide the applicant proof of such designations and coverage particulars within 30 days of the date of this order;
m. The respondent shall notify the applicant in writing of any changes in his employment and to provide her with proof of his income therefrom within 7 days of any such change;
n. The applicant shall have sole decision-making responsibility for the child, Charlotte Ryane McDonald, born April 30, 2016, and the said child shall reside primarily with the applicant;
o. The applicant is hereby permitted to travel internationally with the child, Charlotte Ryane McDonald, without the written consent of the respondent;
p. The respondent shall have reasonable supervised parenting time with the child, Charlotte Ryane McDonald, born April 30, 2016, at the reasonable discretion of the applicant. Such discretion shall include frequency, location, duration, parameters of transportation, and any terms of supervision;
q. The respondent shall refrain from consuming alcohol and/or non-prescription medication for twenty-four (24) hours prior to or during his parenting time with the child, Charlotte Ryane McDonald, born April 30, 2016;
r. The respondent is hereby permitted to make inquiries and to be given information as to the health, education, religion, and welfare of the child from all third-party professionals who are involved with the child; and
s. The respondent shall pay costs to the applicant in the amount of $15,000.00.
t. This court finds that given the issues and steps required that 1/2 of the costs order set out herein was incurred in relation to support payments and as such, this 1/2 is subject to enforcement by the Director, Family Responsibility Office.
u. A copy of the Order shall be served on the respondent pursuant to the Family Law Rules and an affidavit of service thereafter shall be filed in respect of same.
Rasaiah J.
Released: August 22, 2023
COURT FILE NO.: 4969/22
DATE: 2023-08-22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
STEPHANIE MARETT BOISVERT
– and –
MATTHEW AARON MCDONALD
REASONS on uncontested hearing
Rasaiah J.
Released: August 22, 2023