COURT FILE NO.: FS-23-0151-00

DATE: 2024-09-18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jennifer Carroll v. Peter Carroll

HEARD: July 11, 2024

BEFORE: Nieckarz J.

COUNSEL: L. Tocheri, for the Applicant

Self rep, for the Respondent

E N D O R S E M E N T

Overview:

[1] Ms. Tocheri and the Applicant, Jennifer Carroll appearing by Zoom for this uncontested hearing.

[2] Ms. Carroll seeks an order for the following relief:

a. A divorce;

b. Sole decision-making for the children of the marriage, namely Joshua Peter Carroll (DOB December 17, 2014) and Joanie-Lee Katherine Carroll, born November 8, 2018;

c. Shared parenting on an alternating weekly schedule;

d. Child support for the children, ongoing and retroactive to August 1, 2022, and other ancillary relief;

e. The sale of the jointly owned matrimonial home;

f. Ownership and possession of various personal property items and payment by the Respondent (Mr. Carroll) to equalize the value of these items; and

g. Payment of jointly owned debts, including a line of credit and personal loan to Ms. Carroll’s parents.

[3] Mr. Carroll was served with the Application materials on August 4, 2023. The parties attended a case conference before Fitzpatrick J., on December 4, 2023. An order for ongoing child support was made on that date. Justice Fitzpatrick ordered Mr. Carroll to serve and file his responding materials no later than January 29, 2024, failing which the Applicant could move for an order for an uncontested hearing.

[4] On March 28, 2024, Ms. Carroll obtained an order from Wojciechowski, J., noting Mr. Carroll in default and allowing her to obtain a date for an uncontested hearing.

[5] Neither Ms. Carroll nor her lawyer have had any communication from Mr. Carroll with respect to this proceeding since the order of Wojciechowski J., was made. It is appropriate to proceed with this matter on an uncontested basis.

DISCUSSION:

Divorce

[6] The parties were married on September 28, 2013, and separated with no reasonable prospect of reconciliation on July 12, 2022. I am satisfied that a divorce order should issue.

Parenting

[7] The parties attended mediation through Mediation North. They agreed to the terms of a parenting plan, which has never been incorporated into an order or separation agreement. The plan was reflected in the July 17th, 2022, mediation report.

[8] The parties agreed upon shared parenting time with the children. Ms. Carroll deposes that the children are doing well, and the schedule that has been in place for the past two years is based for everyone. An order shall issue accordingly.

[9] With respect to decision-making, the report reflects that the parties have agreed to make important decisions affecting the children together. Ms. Carroll’s Affidavit for Uncontested Trial, sworn July 4, 2024, states that “[f]or the most part, the Respondent and I can communicate well”. Ms. Carroll further explains that initially she was seeking joint decision-making, but Mr. Carroll’s failure to file the required materials and participate in this proceeding has caused her to change her mind. She indicates that there are decisions that arise from time to time and although the parties communicate, she is concerned about Mr. Carroll’s ability to have cooperative discussions, as he can get off track.

[10] At the uncontested hearing Ms. Carroll testified that her preference is sole decision-making. She explained that often when she raises issues with Mr. Carroll, he either just agrees by saying “ok”, or does not reply at all. She confirmed there is no conflict, but that it is Mr. Carroll’s lack of engagement that is concerning for her.

[11] I note that in the Application Ms. Carroll claimed joint decision-making, or sole decision-making in the alternative. I see no reason to change the joint decision-making arrangement the parties agreed upon at mediation. The parties are sharing parenting of the children and the matter is not high conflict. They are both actively involved in the lives of the children, and while Mr. Carroll may often be content to defer to Ms. Carroll’s decisions, this does not mean that he is content not to have any decision-making responsibility. The pleadings, which initially claim joint decision-making, with sole plead as alternate relief, may not have alerted him to Ms. Carroll’s intention to pursue the latter.

[12] Having said this, I understand Ms. Carroll is concerned about what may happen if Mr. Carroll fails to respond. If he fails to respond in a timely manner, then it will be appropriate for Ms. Carroll to make the decision.

Support:

[13] On December 4th, 2023, Justice Fitzpatrick ordered Mr. Carroll to pay child support in the amount of $578 per month commencing December 1, 2023, based on an estimated annual income for Mr. Carroll of $104,000, an estimated annual income for Ms. Carroll of $62,000, the shared parenting arrangements, and the Federal Child Support Guidelines.

[14] The endorsement of Fitzpatrick J., reflected that no support had been paid prior to the date of the order. The parties separated in July 2022.

[15] While this application was not commenced until 2023, Ms. Carroll states that Mr. Carroll was aware that child support was a live issue because of the mediation they participated in, in July 2022. The mediation could not be completed because Mr. Carroll did not want to pay child support. She claims child support for the period of August 1, 2022, to December 1, 2022 based on the 2022 incomes. of the parties. She seeks support in the amount of $578 per month for five months ($2,890).

[16] In addition, Ms. Carroll seeks retroactive child support for the period of January 1, 2023, to November 1, 2023. Ms. Carroll’s income was slightly reduced in 2023 to $55,865. She has no information as to Mr. Carroll’s income. Therefore, I agree that it is appropriate to impute income based on his 2022 income of $104,273. Ms. Carroll is content to use the higher income for herself for 2023 as opposed to her actual income and seeks only the $578 per month for the period prior to the date of the order, or $6,358.

[17] Ms. Carroll also advises that nothing has been paid towards the child support ordered to commence as of December 1, 2023. Arrears of $4,624 accumulated under that order. I find that the total retroactive and arrears of support as at July 31, 2024 is $13,872. Ms. Carroll is agreeable to this being paid at the rate of $200 per month commencing August 15th, 2024, and continuing on the 15th day of each month thereafter. This is more than fair.

[18] With respect to ongoing child support commencing August 1, 2024, Ms. Carroll’s 2023 income results in an obligation for her to pay child support in the amount of $852 per month, and Mr. Carroll’s 2022 income results in him having an obligation to pay support in the amount of $1,523, for a set-off amount payable by Mr. Carroll of $671 per month, subject to annual review once income disclosure is provided.

[19] Based on the known incomes of the parties, there shall also be an order for payment by each of them of the children’s s. 7 expenses, with Mr. Carroll paying 65% of the expenses and Ms. Carroll paying 35%.

Property Issues:

[20] Ms. Carroll moved out of the matrimonial home following the separation and has been living with her parents. Mr. Carroll has been living in the matrimonial home and changed the locks in August 2022. His lack of participation in this process has made it impossible to resolve the financial issues without a court order.

[21] The matrimonial home is jointly owned. It was appraised by a certified residential appraiser on July 12, 2022, at $650,000.

[22] Mr. Carroll has continued to pay all expenses for the home. Ms. Carroll is not seeking occupational rent but is seeking to have the home sold and the net sale proceeds divided equally subject to any adjustments required by this endorsement.

[23] I agree that the home must be sold. Mr. Carroll cannot expect to live in the home indefinitely without any accounting to Ms. Carroll for her equity. There is approximately $450,000 worth of equity in the home. It is unfair to expect her to continue to have to live at her parents’ home while he has the full benefit of the matrimonial home. The listing for sale of the home shall be delayed 30 days to give Mr. Carroll an opportunity to make an offer (if he wishes and is able) to purchase Ms. Carroll’s interest on mutually agreeable terms. If the parties cannot agree, the home must be sold.

[24] Ms. Carroll also wishes to have some of the contents of the home. She says that there are multiple heirlooms remaining in the home that came from her family. She wants some of the kitchen items and children’s items, as well as recreational and home décor items. She seeks to have joint contents divided equally and any items that belong to her returned to her. The latter could be difficult if the parties do not agree as to what “belongs” to her. For clarity, items that Ms. Carroll brought into the relationship shall be removed by her. Items that were gifted to her alone (i.e. for birthday) shall be removed by her. Items gifted to the children or both parties (i.e. Christmas gifts to the parties even if from Ms. Carroll’s family) shall be divided.

[25] The 2010 Nissan Xterra is in the possession of Ms. Carroll but owned by Mr. Carroll. If he wants the vehicle, he shall notify Ms. Carroll through her lawyer and pay to her one-half the current fair market value of the vehicle within 30 days of this order. If he does not want the vehicle, it shall be sold, and the net sale proceeds divided equally.

[26] There are a number of items that are in Mr. Carroll’s possession, but Ms. Carroll seeks an equalization payment for. This includes a utility trailer, boat, quad, dirt bikes, skid steer and sled. Ms. Carroll says that these items were valued by the parties at $28,500. She seeks payment of $14,250. In light of Ms. Carroll’s evidence that the parties had previously agreed that these are reasonable market values for these items as of separation (as opposed to replacement cost), I have no reason to believe that there are other assets of Ms. Carroll or debts of Mr. Carroll that make this order unfair. An order shall issue accordingly.

[27] Mr. Carroll has a pension, but Ms. Carroll is waiving any entitlement to an equalization of the value of it. From her financial statement it would appear that Ms. Carroll has a small pension. Mr. Carroll has made no claim.

[28] With respect to debts:

a. The line of credit of the parties had a balance owing of $13,190 as of July 4, 2022. Ms. Carroll seeks to have the line of credit paid jointly. This is reasonable. I do not know who has made the payments since separation, but each party shall be responsible for one-half of the date of separation balance, or $6,595. To the extent that there is any balance owing on the date of sale of the home, it shall be paid out of the net sale proceeds, with any adjustments that need to be made between the parties to ensure they pay their one-half share of $6,595 to come from their share of the net sale proceeds.

b. Ms. Carroll seeks an order requiring Mr. Carroll to pay one-half the amount of $9,000 owing to her parents. This debt initially concerned me. There is no documentation for this debt. There is no indication that Mr. Carroll was aware of it. Ms. Carroll’s mother, Katherine Sylvester testified. Ms. Carroll has paid $1,000 towards the debt since separation, leaving a balance of $8,000. The debt was incurred to help the parties pay childcare expenses. I am satisfied that the debt is appropriate. Each party shall be responsible for payment of $4,500. Similar to the line of credit, the debt shall be paid to Katherine Sylvester in full upon the sale of the home, and the parties can reconcile as between each other from their share of the net sale proceeds to ensure they each pay their $4,500 share.

Costs:

[29] Ms. Carroll seeks costs of this proceeding in the amount of $2,000, in addition to the $500 ordered on March 28th, 2024, that remains unpaid. In total, $2,500 is sought. This amount is reasonable given that the proceeding was necessitated by Mr. Carroll’s lack of willingness to continue with the mediation and resolve the financial issues outside of court. Mr. Carroll’s lack of participation in this proceeding so that it could be resolved without the need for further steps have also unnecessarily increased costs. For simplicity, the costs ordered in the March 28th order shall be set aside and the total amount of $2,500 is ordered payable by Mr. Carroll from his share of the net sale proceeds of the home.

Conclusion

[30] A final order shall issue as signed by me. A divorce order shall also issue.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

DATE: September 18, 2024

COURT FILE NO.: FS-23-151-00

DATE: 2024-09-18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jennifer Carroll v. Peter Carroll

BEFORE: Nieckarz J.

COUNSEL: L. Tocheri, for the Applicant

Self rep, for the Respondent

ENDORSEMENT

Nieckarz J.

DATE: September 18, 2024