COURT FILE NO.: FS-19-95205
DATE: 2024-06-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kavita Ramsarup
Applicant
- and -
Alfaz Mohammed Inshan
Respondent
Counsel:
Linda Starova, for the Applicant
Alfaz Mohammed Inshan, Self Represent
HEARD: June 17, 2024
JUDGMENT
[1] This matter proceeds as an uncontested trial in which the Applicant Mother seeks sole decision-making responsibility for the two children of the marriage, Ava (age 11) and Tristan (age 9), control over parenting time and guardianship of the children’s documents, the ability to travel without the consent of the Respondent Father, a restraining Order against the Father, an Order for child support retroactive to July 1, 2023, and a vesting Order allowing the Mother to retain her 1% interest in the matrimonial home free and clear from any claims for equalization made by the Father. The Mother also seeks a divorce.
Background
[2] The parties married on October 10, 2008, and separated on June 1, 2015. The Mother states in her affidavit that on December of 2013, her father assisted her financially with the purchase of the matrimonial home, located at 114 Dumfries Avenue, in Brampton, Ontario. The Mother provides a copy of the parcel abstract confirming that she and her father own the property as tenants in common, with her father owning a 99% share, and the Mother owning a 1% share in the property. The property was purchased for $347,000.
[3] The Father was charged with assaulting the Mother on February 19, 2016, and again on April 4, 2020. Both of these charges resulted in a conditional discharge and probation order. More recently, the Father was charged on June 9, 2023, with mischief over $5,000. There are conditions attached to the Father’s bail including that he cannot communicate with the Mother or be within 200 m of the matrimonial home, the Mother’s places of employment, or anywhere the Mother is known to live, work, or be.
[4] The Father has not filed an Answer to the Mother’s Application. He did attend a case conference on November 1, 2019, following which Fragomeni J. set a timetable, but the Father has not participated in the litigation since that time. Tzimas J. granted an Order on May 16, 2023, permitting the Mother to set the matter down for an uncontested trial.
[5] The Mother provides three affidavits in support of the relief that she is seeking, dated April 2, 2023, April 17, 2024, and June 5, 2024.
Sole Decision-Making Responsibility and Parenting Time
[6] The Mother provides affidavit evidence that she has been caregiver for the children since December 2013. She currently resides with the children in the matrimonial home.
[7] The Father has not exercised overnight parenting time with the children since the date of separation. The children are to remain living with the Mother, who will have sole decision-making responsibility for the children. The Father may communicate with the children through their iPad devices to make arrangements for parenting time, which shall be at the discretion of the Mother. When exercising parenting time, the Father is to pick up and drop off the children at the end of Darnock Court, in Brampton, Ontario, which intersects with the Dumfries Avenue where the matrimonial home is located.
Child Support – Imputing Income
[8] The Mother provides affidavit evidence that the Father has never provided the financial disclosure ordered to be produced by him pursuant to the November 1, 2019, Order of Fragomeni J. The Mother’s indicates that the Father used to work as a general labourer and forklift operator when they lived together, earning between $40,000 and $50,000 per year. The Mother also indicates in her affidavit that the Father does not have a disability that would impact his ability to work. She accordingly asks that his income be imputed to be $45,000.
[9] The Father’s income is imputed to be $45,000 per year. Commencing July 1, 2023, the Father will pay $674.00 per month in child support payments pursuant to the Federal Child Support Guidelines on an ongoing basis, with a total retroactive payment owed of $8,088 as of July 1, 2024.
Section 7 Expenses
[10] The Mother provides a copy of her 2023 Notice of Assessment confirming that her total gross income in 2023 was $78,816. The Mother indicates in her affidavit that the children have extraordinary expenses of Kuman math and reading at $290 per month, and before and after school care at $520 per month. The children are also involved in extra-curricular activities. The Mother therefore asks that the Father pay 36% of all s.7 expenses based on his imputed income of $45,000.
[11] Since the Father’s income has been imputed by me to be $45,000, it is reasonable that he pay 36% of the children’s s.7 expenses, including pre or after school daycare, tutoring, and one sport or activity per child, commencing July 1, 2023. The Father shall also contribute his proportionate share towards the children’s post-secondary education costs, which are not otherwise covered by each child’s government loans, scholarships and bursaries, RESP funds or personal savings.
Vesting Order for the Matrimonial Home
[12] The Mother’s affidavit indicates that as of the date of separation in June 2015, approximately eighteen months after the purchase of the home for $347,000, there was approximately $300,000 remaining on the mortgage for the home. The Mother also provides evidence that as of April 17, 2024, the balance owing on the mortgage is $281,300. The Mother provides a real estate appraisal dated December 18, 2023, which appraises the value of matrimonial home at $890,000. The equity in the home is therefore presently $608,700, of which the Mother’s share at 1% equals $6,087. The Mother indicates that she has been paying for the carrying costs and the upkeep of the matrimonial home since the date of separation.
[13] Using an imputed income of $45,000 per year, the Father owes the Mother child support totaling $64,704 as of July 1, 2023. The Mother states in her affidavit that the Father has provided some sporadic payments for the children over the past nine years, which total $23,636. If credit is given to the Father for these support payments, there remains a total of $41,068 in child support arrears owed to by the Father to the Mother up to July 1, 2023. It is also recognized that the Father has not historically contributed to the children’s s.7 expenses.
[14] Given the quantum of child support arrears owed by the Father to the Mother, and the Mother’s limited equity in the matrimonial home, it is reasonable that the Mother’s 1% interest in the matrimonial home shall vest in her absolutely pursuant to section 9(1)(d)(i) of the Family Law Act.
[15] The Mother provides affidavit evidence that she has limited assets, including a 2013 Mazda currently assessed at $6,000, and household furniture assessed at $1,700. Given the quantum of child support arrears owed by the Father to the Mother, neither the Mother nor the Father shall owe an equalization payment to the other.
Restraining Order
[16] The Father is not to communicate directly or indirectly with the Mother. The Father is not to come within 200 metres of any place he knows the Mother to be, including:
a) 114 Dumfries Ave., Brampton, Ontario, L6Z 2X3 (primary residence of the Mother and the children);
b) 27 Squirrel tail Way, Brampton, Ontario, L6R 1X4 (primary residence of the Mother’s parents);
c) Alladina Dental – 143 Queen Street East, Brampton, Ontario, L6W 2B1 (the Mother’s workplace); and
d) North Lake Dentistry – 10215 Kennedy Road N., Brampton, Ontario, L6Z 0C5 (the Mother’s second workplace).
[17] Notwithstanding paragraph [12], the Father is permitted to pick up and drop off the children at the end of Darnock Ct. as set out in paragraph [7].
Management of RESP Accounts
[18] The Mother provides affidavit evidence that the parties set up joint RESP accounts for each child when they were born, but that she has been the sole party contributing to both of the accounts. The Applicant indicates in her affidavit that she believes that the Father will not cooperate and sign off on the funds held in these accounts to be used towards the children’s post-secondary education. She indicates that this concern is amplified given the Restraining Order in place.
[19] The Mother shall be solely responsible for managing the children’s RESP accounts, but is not permitted to withdraw any funds from the accounts until such time as the children are attending post-secondary education. Any requirement for the Father’s signature on these accounts shall be dispensed with. I make this decision for the following reasons:
a) The Mother has been the sole contributor into the accounts;
b) The children reside full-time with the Mother; and
c) There is a Restraining Order in place preventing the Father from communicating with the Mother.
Guardianship of Travel Documents and Government Papers
[20] The Mother is to maintain possession and control of the children’s travel documents and government papers. The Mother is not required to obtain consent from the Father prior to travelling with the children outside of the province or the country.
Divorce
[21] The divorce is severed from the corollary issues. The Mother shall be at liberty to file an Application for divorce from the Father to proceed on an uncontested basis.
Costs
[22] The Mother provides a Bill of Costs seeking $16,000 for the action on a substantial indemnity basis. Except for one court attendance in 2019, the Father has not participated in this litigation, nor has he made reasonable efforts to pay child support, or to resolve the issues in dispute between the parties. The Mother had no choice but to push the matter forward into a trial format. The hourly rate claimed by counsel is not excessive. Under the circumstances I find that $16,000 is a reasonable amount for the Father to pay for the cost of the Mother’s litigation to ensure she has proper financial support for her children.
Orders
[23] Orders to go as attached to this Judgment.
Wilkinson J.
Released: June 19, 2024
COURT FILE NO.: FS-19-95205
DATE: 2024-06-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kavita Ramsarup
Applicant
- and –
Alfaz Mohammed Inshan
Respondent
JUDGMENT
Wilkinson J.
Released: June 19, 2024