COURT FILE NO.: FS-21-151
DATE: April 15, 2024
SUPERIOR COURT OF JUSTICE – ONTARIO (North Bay)
BETWEEN: TERRI-LYNN MITCHELL, Applicant
AND:
LEE MITCHELL, Respondent (noted in default February 24, 2023)
BEFORE: Justice J.S. Richard
COUNSEL: Adam Lake as agent for Madison Z. Eggert, for the Applicant Lee Mitchell, for the Respondent
UNCONTESTED TRIAL
Overview
[1] Mr. Mitchell was noted in default on February 24, 2023, at which time the court ordered:
a. The Respondent is not entitled to any further notice of steps in this case, except as provided by subrule 15(13);
b. The Respondent is not entitled to participate in this proceeding in any way;
c. The Court may deal with this proceeding in the Respondent’s absence; (...)
[2] An uncontested trial for this matter commenced on November 21, 2023. Despite having attended court on more than one occasion, and despite being invited to do so both orally and in writing, Mr. Mitchell never brought a motion to set aside the Order of February 24, 2023, and it still stands.
[3] Thus, Mr. Mitchell has no standing to request the reliefs he is now seeking at the resumption of this uncontested trial. Mrs. Mitchell’s trial record has been complete for months, and she is entitled to finality and the relief she is seeking. Specifically, she seeks an order for spousal support and for equalization.
Procedural History
[4] Mrs. Mitchell brought her Application on August 31, 2021. The Court made an order for substituted service on December 7, 2021.
[5] A case conference was held on July 6, 2022. Mr. Mitchell did not participate, and he did not file any materials. A cost order of $400 was made against him, which was to be paid by August 6, 2022.
[6] On August 5, 2022, the court made a temporary order for spousal support in the amount of $8,303.00 per month based on Mr. Mitchell’s estimated income of $268,000, and Mrs. Mitchell’s income of $35,568. Mr. Mitchell was ordered to pay an additional $450 in costs.
[7] On February 24, 2023, the court noted Mr. Mitchell in default, and ordered, as indicated above, that he be barred from participating in the proceedings pursuant to Rule 1(7) and Rule 1(8.4) of the Family Law Rules. Mr. Mitchell was served with a copy of the order, and a week or so after, he contacted Mrs. Mitchell’s lawyer. Surprisingly, he continued to ignore the law and the Family Law Rules and still filed nothing with the court.
[8] On September 1, 2023, a trial management conference was held, and Mr. Mitchell participated. Yet, he still did not file a single document with the court.
[9] Still having not filed any responding materials, and still having not brought a motion to set aside the default order of February 24, 2023, an uncontested trial was set for November 21, 2023.
[10] At the uncontested trial of November 21, 2023, the Respondent attended with counsel, but filed no materials. The following was endorsed:
The Applicant’s file is complete, with the exception of having financial information from the Respondent.
I accept that the Applicant is in serious financial difficulty at this time due to the Respondent’s lack of participation. The evidence before the court is that the parties cohabitated for 25 years. They were married for approximately [1]4. They had two children, who are now adults, and the Respondent was the breadwinner for the family, earning well over $200,000 per year during the last few years of marriage. At the time of separation, he was earning $268,567 per year, while the Applicant was earning $5,000. The Applicant has since managed to increase her income to approximately $50,000 per year, but she continues to single-handedly finance the couple’s jointly owned home, which has a mortgage, including all repairs, and she is struggling financially. According to the evidence before the court, she has had to file a consumer proposal.
I accept without any doubt or hesitation that the Applicant is entitled to both compensatory and non-compensatory spousal support, that it should be on the high end of the SSAGs, and that there is a dire and urgent need for it. I do not accept the Respondent’s excuses and complete disregard for the law, the family law rules of court, and the court’s wasted time. He could have at least filed an affidavit with evidence supporting his adjournment request, but he did not do so. He could have at least given notice to bring a motion to have the noting of default set aside, but he did not do so. Yet, he has the audacity to ask for a case conference, a step that was completed two years ago. All the while, the Applicant has been struggling, and continues to struggle, to survive and make ends meet. Even if she were able to survive, the law entitles her to much more than survival. That is crystal clear in the law.
Not only is there a court order disallowing the Respondent from participating, there are cost awards, at least one that I can see, that continue to be outstanding against the Respondent, and based on Rule 1(8), this even further disallows him from participating.
At this time, there is more than sufficient evidence to make the following temporary order, and the balance of this uncontested trial will be adjourned, and I do so reluctantly only because the Applicant is entitled to get proper equalization, and without the Respondent’s information and participation, this is difficult to do.
Thus, I make the following temporary order:
The Respondent shall pay the Applicant a monthly amount of spousal support in the amount of $10,545 per month, commencing on December 1, 2023, and on the first of every month thereafter;
The Respondent shall file responding materials, and perfect his Certificate of Financial Disclosure, within 30 days;
The Respondent shall have his two pensions valued immediately;
The balance of this uncontested trial, namely on the issues of retroactive spousal support, final ongoing spousal support, and equalization, is adjourned;
Costs for today shall be set in the amount of $4,000, which is half of the amount sought for today, without prejudice to the total costs that may be requested when this uncontested trial resumes, and this $4,000 shall be paid by the Respondent to the Applicant within 30 days;
The Respondent shall not communicate with the Applicant directly or indirectly (except through counsel), and shall not come within 100 metres of the Applicant except to attend court.
Rule 13 requests may, and should be made, within 60 days.
The balance of this uncontested trial is adjourned to a date to be set at the assignment court date of December 22, 2023, at 9am via Zoom.
(emphasis added)
[11] On December 18, 2023, Mr. Mitchell finally filed a Form 13.1, but did not attach income tax returns. He filed his Form 13A: Certificate of Financial Disclosure on April 9, 2024, which did not contain much information that was helpful to the court. Mr. Michell also filed an affidavit dated April 2, 2024.
[12] No motion to set aside the default order was brought. The costs awards of July 6, 2022, August 5, 2022, and November 21, 2023, all remain unpaid.
[13] On April 15, 2024, the uncontested trial resumed.
Background
[14] The parties began cohabitating in or around May 1994. They were married in 2005, and they separated in 2018. The parties have two children who are now 26 and 28, and therefore not part of these proceedings.
[15] Throughout the relationship, Mr. Mitchell was the breadwinner and Mrs. Mitchell was the homemaker. She was not employed and stayed home to raise the children. She has no post-secondary education or training. According to Mrs. Mitchell’s affidavit evidence, Mr. Mitchell did not want her to work, though she did work as a Customer Service Representative for TD Canada Trust Bank between 2000 and 2010. Mrs. Mitchell now works at Dollarama.
[16] Mrs. Mitchell’s earning pattern since separation is as follows:
2019: $ 5,110.92
2020: $21,564.84
2021: $18,512.92
2022: $50,095.00
[17] Mr. Mitchell has been employed by Redpath Mining since 1995, which required him to work out of town. He began working abroad in 2012, and he has been residing almost exclusively in Indonesia since separation.
[18] Mrs. Mitchell deposes that she found some of Mr. Mitchell’s income tax returns, and submitted evidence relating to Mr. Mitchell’s income prior to separation:
2016: $245,661.10
2017: $240,027.88
2018: $268,567.54
[19] According to Mr. Mitchell’s Certificate of Financial Disclosure, which was filed 6 days ago, in 2022, he earned $278,259.22.
[20] Despite the most basic of family law principles stemming not only from legislation, but also from the Family Law Rules, Mr. Mitchell has not filed copies of his income tax returns with the court for the 2018, 2019, 2020, and 2021 tax years.
[21] Mr. Mitchell has not filed his income tax returns for 2023, and stated that he is currently only receiving CPP as he no longer works.
[22] Although Mr. Mitchell’s Certificate of Financial Disclosure included some pages from Notices of Assessment for the 2018, 2019, 2020, and 2021 tax years, none of these included any income information, and only included the amounts he owed the government in unpaid taxes, which is unhelpful to the court for calculating support owed. It at least allows the court to draw an inference, however, that he earned a very high income in those years. As of December 27, 2023, he owed the federal government $464,574.01 in unpaid taxes.
[23] In an affidavit dated April 2, 2023, without any supporting documentation, Mr. Mitchell deposes that his income since separation is as follows:
2019: $261,440
2020: $264,110
2021: $259,938
[24] Despite these extraordinarily high incomes, Mr. Mitchell claims in his sworn Form 13.1 that he receives $0.00 per month in income, and that he has a net worth of $34,000, less a debt of $395,836.44 that he owes to the federal government and a TD Credit account.
[25] In his affidavit of April 2, 2024, Mr. Mitchell deposes that he is no longer employed due to a debilitating injury, explaining that “at this time” he is not sure if he will be able to continue his employment with Redpath Mining, or if he will even be offered the same employment.
[26] Despite the court’s two temporary orders for spousal support, as of today’s date, Mrs. Mitchell has only received two payments of $292.81, which were facilitated by the Family Responsibility Office.
[27] Mrs. Mitchell has been residing in the matrimonial home, but with Mr. Mitchell still on title, she has been unable to borrow against the home, or to sell the home, to try to improve her financial situation. Mr. Mitchell stopped making any deposits to the parties’ joint bank account in 2019. Even without any spousal support, she continued to pay for the mortgage, property insurance, utilities, and other expenses, including a car loan. This eventually led her to file a consumer proposal for $144,184 of debt.
[28] Although Mr. Mitchell failed to include them in his Form 13.1, he did confirm with the court that he has two pensions, but has provided no other information other than to confirm that family law valuations have been requested. According to records produced in Mrs. Mitchell’s trial record, Mr. Mitchell’s pension was worth $143,211 at the date of separation, and he has another pension from Redpath Mining for which he provides no information.
[29] The matrimonial home was appraised at $295,000 in August 2023. At the date of separation, it had a mortgage of approximately $26,000 outstanding, and a line of credit secured against it in the amount of approximately $46,600.
Issues
[30] The issues before the court are as follows:
a) Is the Respondent entitled to participate in this uncontested trial?
b) Is there sufficient evidence before the court to order spousal support on a final basis? And if so, what should be the quantum?
c) Is there sufficient evidence to make an order for equalization?
d) Is there sufficient evidence before the court to order the sale of the matrimonial home, or transfer Mr. Mitchell’s interest to Mrs. Mitchell?
Analysis
a) Is the Respondent entitled to participate in this uncontested trial?
[31] No.
[32] As mentioned above, Mr. Mitchell did not participate in any of the required steps, and he was noted in default on February 24, 2023, at which time this court ordered:
- The Respondent is hereby noted in default, pursuant to Rule 1(7) of the Family Law Rules, and shall be subject to the consequences of Rule 1(8.4) of the Family Law Rules as follows:
a. The Respondent is not entitled to any further notice of steps in this case, except as provided by subrule 25(13);
b. The Respondent is not entitled to participate in this proceeding in any way;
c. The Court may deal with this proceeding in the Respondent's absence; and
d. A date may be set for an uncontested trial of this proceeding.
[33] The Respondent had over 13 months to bring a motion to set aside the default judgment, yet did not do so, even if this was specifically mentioned in the court’s endorsement of November 21, 2023, when the uncontested trial was adjourned to give him a final opportunity to bring the motion and file responding materials. No motions were ever brought, and his financial disclosure continues to be largely deficient.
[34] In addition, cost awards made throughout these proceedings against Mr. Mitchell continue to be outstanding further disallowing him from any relief pursuant to Rule 1(8), as was already highlighted in the court’s endorsement of November 21, 2023.
[35] In preparation for the uncontested trial, Mr. Mitchell filed an affidavit, in which he claims undue hardship, stating he receives no income, and has been living paycheque to paycheque for some time. Yet, he fails to provide any supporting documentation of substance. In this affidavit, moreover, he requests a reduction in spousal support, that arrears be expunged, and that the matrimonial home and all family property be sold to assist with his debts.
[36] Mr. Mitchell failed to bring a motion to set aside the default order of February 24, 2023, and therefore has no standing to participate, and certainly no standing to make requests or claims to the court.
b. Is there sufficient evidence before the court to order spousal support on a final basis? And if so, what should be the quantum
[37] This court accepts without any doubt or hesitation that Mrs. Mitchell is entitled to both compensatory and non-compensatory spousal support, that it should be on the high end of the Spousal Support Advisory Guidelines given the 24 years of cohabitation, the roles assumed during the relationship, the income of the spouses, Mrs. Mitchell’s age (almost 55), and the severe financial hardship she has experienced as a result of the breakdown of the marriage.
[38] Further, based on high-end Spousal Support Advisory Guidelines, with Mrs. Mitchell’s 2022 income of $50,095.00, and Mr. Mitchell’s 2022 income of $278,259.22, being the only reliable and credible evidence before the court, this court finds that Mrs. Mitchell is entitled to $9,127.00 per month in on-going spousal support.
[39] With respect to arrears, the following is owed by Mr. Mitchell:
YEAR
Mr. Mitchell’s income
Mrs. Mitchell’s income
High-end SSAG monthly
Total
2019
$261,440
$5,110.92
$10,413
$124,956
2020
$264,110
$21,564.84
$9,907
$118,884
2021
$259,938
$18,512.92
$9,848
$118,176
Total for 2019-2021
$362,016
[40] Mrs. Mitchell’s 2018 income was not provided to the court. She admits that Mr. Mitchell did contribute approximately $12,000 to $15,000 following separation in 2018.
[41] Based on the above, Mr. Mitchell owes at the very least $362,016 of arrears in spousal support.
c. Is there sufficient evidence to make an order for equalization?
[42] Yes.
[43] According to an appraisal report dated August 25, 2023, the jointly owned matrimonial home has a fair market value of $295,000. It had an outstanding mortgage of approximately $24,000 owing on it in March 2022, and a TD Home Equity line of credit with a balance of approximately $46,600 (as of January 2021) secured against it. The home requires repairs, including a new well, which is expected to cost $8,000.
[44] At the date of separation, Mrs. Mitchell had $103,881,52 and $1,525.73 in RSP, on which she has been relying as income since separation. Discounted at 20%, these would have an estimated value of approximately $84,000 for the purposes of equalization calculation. At separation, Mrs. Mitchell had a 2007 Dodge Ram worth about $15,000, and a diamond ring worth about $3,000. Her credit card debt stood at about $16,000. Her Net Family Property value, therefore, is about $200,000, less the consumer proposal debt she had to pay.
[45] Mr. Mitchell provided no information except to confirm that he has two pensions. In his Form 13.1, he claims to own no assets of any value, and only refers to tools, and other personal items that may have been left at the matrimonial home. He also claims that he has absolutely no savings. Based on documents found by Mrs. Mitchell, one of his pensions was worth about $143,000 at separation.
[46] It is inconceivable that Mr. Mitchell is being forthcoming and honest about his financial situation given his income pattern, the very low cost of living in Indonesia, and the fact that Mrs. Mitchell has been carrying the couple’s debts. Mr. Mitchell is simply not credible, and it is very likely that he is hiding assets, either abroad or in Canada, from Mrs. Mitchell and the court.
[47] Mrs. Mitchell is at least entitled to half of his pensions, and Mr. Mitchell owes her half of the debt she has been paying.
d. Is there sufficient evidence before the court to order the sale of the matrimonial home? Or to transfer Mr. Mitchell’s interest to Mr.
[48] Yes.
[49] Mr. Mitchell owes Mrs. Mitchell about $362,000 in spousal support arrears. His interest in the matrimonial home is worth somewhere around $110,000. His interest in the matrimonial home can at least consist of a partial payment on this debt to Mrs. Mitchell pursuant to s. 34(1) of the Family Law Act.
Order
[50] Mrs. Mitchell’s Trial Record was impressively complete, and based on the information before the court, Mr. Mitchell is very likely trying to deceive the court. Nonetheless, despite Mr. Mitchell’s lack of participation and marked lack of credibility, this court has sufficient evidence to make the following final order:
- The temporary spousal support orders of August 5, 2022, and November 21, 2023, are vacated and replaced with the following final order:
a. The Respondent, Lee Mitchell, shall pay spousal support to the Applicant, Terri-Lynn Mitchell, in the amount of $9,127.00 per month, on the first of every month, based the Spousal Support Advisory Guidelines and their 2022 respective incomes of $278,259.22 and $50,095.00, commencing January 1, 2022, reviewable only on a material change in circumstances;
b. Spousal support arrears shall be set at $360,000.00, less $110,000.00 to account for the transfer of the Respondent’s transfer of his interest in the matrimonial home to the Applicant pursuant to paragraph 2, herein.
- Lee Mitchell’s interest in the matrimonial home, municipally known as 41 Besserer Road, in North Bay, Ontario, bearing PIN 49127-0093, shall be transferred to Terri-Lynn Mitchell as follows:
a. The property municipally known as 41 Besserer Road, in North Bay, Ontario, bearing PIN 49127-0093, shall vest solely and entirely in the name of Terri-Lynn Mitchell, immediately;
b. Land Registry documents required on behalf of Lee Mitchell to effect a transfer of his interest shall be dispensed with and this order shall constitute full authority to effect the transfer of his interest to Terri-Lynn Mitchell;
c. Terri-Lynn Mitchell shall be responsible for costs associated with the transfer.
Terri-Lynn Mitchell shall be entitled to one-half of Lee Mitchell’s pension with the Carpenter’s Union, and documents required on behalf of Lee Mitchell to effect a 50% transfer to Terri-Lynn Mitchell be dispensed with and this order shall constitute full authority to effect the said transfer;
Terri-Lynn Mitchell shall be entitled to one-half of Lee Mitchell’s Redpath pension or retirement fund received through or from his employment with Redpath Mining, and documents required on behalf of Lee Mitchell to effect a transfer of 50% to Terri-Lynn Mitchell be dispensed with and this order shall constitute full authority to effect the said transfer;
Terri-Lynn Mitchell shall be entitled to one-half of the value of Lee Mitchell’s investments, securities and bank accounts on the date of separation, less any justified marital debt he may have paid since separation;
The Applicant, Terri-Lynn Mitchell, shall be able to rely upon Rule 26 of the Family Law Rules to enforce this order;
The Respondent, Lee Mitchell, shall provide a copy of the valuation reports relating to his pensions to the Applicant, Terri-Lynn Mitchell, within 10 days of receipt;
The Respondent, Lee Mitchell, shall serve and file an updated and accurate Financial Statement Form 13.1, with supporting documentation, within 30 days of receiving his pension valuations;
Except for the written communication required by this order, the Respondent, Lee Mitchell, shall not communicate with the Applicant, Terri-Lynn Mitchell, directly or indirectly, and shall not come within 100 metres of Terri-Lynn Michell, except to attend court;
The Respondent, Lee Mitchell, shall pay costs to the Applicant, Terri-Lynn Mitchell, in the amount of $15,000.00 for these proceedings, including the $4,000 cost order of November 21, 2023, already made. This cost award ($4,000.00+ $11,000.00) shall be payable within 12 months.
Justice J.S. Richard