Court File and Parties

COURT FILE NO.: FS-17-0105-02 DATE: 2024-02-05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Niemi Himes Self-represented Applicant

- and -

Kingsley Chukwu Self-represented Respondent

HEARD: via ZOOM at Thunder Bay, January 26, 2024 Madam Justice H. M Pierce

Reasons on Motions

Introduction

[1] The parties are self-represented and therefore the motions filed by each party, supporting affidavits and relief sought are not necessarily in accordance with the applicable law and Family Law Rules. Some of the foundational documents have not been filed on Caselines.

[2] At the argument of the motions, the parties supplemented their affidavit evidence with oral submissions that bordered on giving evidence. Neither party has moved for an order for decision-making for the children. Justice Newton made a temporary order for Mr. Chukwu’s parenting time while he was subject to a no-contact order made in the Ontario Court. The matter has not been revisited since then. Thus, there is no order for parenting time governing the current circumstances.

[3] Mr. Chukwu moves for the following orders:

1. Relocation of the parties’ two children to Thunder Bay.
2. Credit for mortgage payments he made in lieu of child support.
3. Repayment of car loan made to Ms. Himes.
4. Repayment of collateral loan payments made by him to Fairstone Financial.

[4] Ms. Himes moves for the following orders:

1. Assessment of child support arrears for the years 2021 – 2023.
2. Fixing child support arrears for the years 2021 – 2023 in the amount of $24,136, (crediting him for a $750 payment made in December 2023), giving Mr. Chukwu credit for 50% of the mortgage payments he made on the family home, in lieu of child support.
3. On-going monthly child support of $1,533 commencing January 1, 2024, based on Mr. Chukwu’s 2023 income.
4. A one-time order for extraordinary expenses to purchase furniture and pay moving expenses for the children.

Relocation of the Children

[5] The parties had an intermittent relationship since October 2006. They are the parents of two children, Angelo Robert Chukwu born May 6, 2010, and Samuel Uchenna Chukwu born May 24, 2014. The family lived in Thunder Bay when the parents separated in 2021.

[6] In February 2021, Mr. Chukwu moved to Brampton, Ontario where he currently lives with family. Until recently, the children remained in the jointly owned family home in Thunder Bay, in the care of Ms. Himes. Mr. Chukwu secured employment with the Toronto Transit Commission. He returned periodically to Thunder Bay to spend time with the children. He recently purchased Ms. Himes’ interest in the family home. He stated that he intends to find employment in Thunder Bay and return to live here.

[7] Ms. Himes served notice to Mr. Chukwu that she intended to move the children to southern Ontario as she has been able to secure employment based in Hamilton. She is seeking housing in the Thorold area. The mother and children have now relocated to the Hamilton area and the children are attending school there. The children have seen their father recently.

There can be no doubt that both parents love their children and want what’s best for them. Mr. Chukwu feels estranged from them currently. He objects to the relocation of the children, which he claims is not in their best interest. He cites the disruption to their school year, their friendships and sporting activities, as well as the cost of living in Hamilton, and the crime rate.

[8] In answer to the court’s question, Mr. Chukwu indicated that the children are presently located 1 hour and 45 minutes from his residence by car, whereas if the children returned to Thunder Bay, they would be 14 hours away by car.

[9] Respectfully, I do not accept Mr. Chukwu’s submission that it is the children’s best interests that the children be returned to Thunder Bay. Although no order has been made for decision-making, a de facto parenting regime began when Mr. Chukwu moved to southern Ontario in February 2021, leaving the children in Ms. Himes’ primary care for nearly three years. By default, she became the primary decision-maker and primary caregiver. Mr. Chukwu acquiesced to that arrangement that he set in motion by moving to Brampton. He did not respond to her notice of intention to relocate the children in the time prescribed.

[10] Ms. Himes has the prospect of better employment in Hamilton, which will undoubtedly improve the children’s financial stability. Mr. Chukwu’s plan is, at this stage, hypothetical: he has no employment in Thunder Bay (although he does have sole ownership of the family home). By contrast, he has remunerative employment with Toronto Transit. His contribution to child support will assist with the children’s housing and other expenses.

[11] For these reasons, Mr. Chukwu’s motion to relocate the children is dismissed.

On-Going Child Support

[12] Mr. Chukwu consents to an order for on-going child support in the amount of $1,533 per month for the parties’ two children, commencing January 1, 2024, based on his income of $105,033.05 for 2022. An order will issue accordingly. Mr. Chukwu is also ordered to disclose his income tax filing for 2023 on or before June 1, 2024, and annually thereafter, and to adjust child support on July 1 of each year.

Moving Expenses

[13] As s. 7 of the Child Support Guidelines does not contain any provision for moving expenses or furniture purchases for the children, Ms. Himes’ claim for this relief is dismissed. Support Deduction Order to issue.

Child Support Arrears

[14] Ms. Himes claims child support arrears of $24,136 for the years 2021 – 2023, giving Mr. Chukwu credit for payment of one-half the mortgage payments he made on the jointly-owned family home, and giving him credit for monthly “top-up” payments he made from time to time, as well as $750 paid in December 2023. Mr. Chukwu purchased Ms. Himes’ half-interest in the home on January 19, 2024, and secured his own mortgage.

[15] Ms. Himes claims the mortgage payments were $605 bi-weekly; Mr. Chukwu says they were $612 bi-weekly until April 2023 and $711 from May 2023 until the transfer of the home to Mr. Chukwu.

[16] Ms. Himes contends that she attempted to pay her share of the mortgage, but Mr. Chukwu returned her payments, arguing that his payments toward the mortgage were in lieu of child support and that he should be credited with the full amount paid. She does not agree.

[17] Mr. Chukwu argues that he had to pay a full mortgage for a home that he couldn’t live in and therefore should get full credit towards his child support obligation. There is no claim for occupation rent. He submits that Ms. Himes should be responsible for payment of the costs of occupation, including utilities and insurance.

[18] Ms. Himes counters that she paid groceries, daycare, and utilities, for which she makes no claim for reimbursement. She submits that she also paid debts and that their funds were mixed. Mr. Chukwu disputes that their funds were intertwined.

[19] Mr. Chukwu, as joint owner of the home, was notionally liable for payment of half the mortgage, and Ms. Himes the other half. He gained in the increased equity in the home from paying down the mortgage, although the exact amount is not in evidence. Thus, it is not unfair that he be credited with half the mortgage payments. Because the credit is based on the actual amount paid toward the mortgage rather than the reduction of the principal paid down, he is getting an enhanced credit, even based on 50%.

[20] I accept that Ms. Himes paid costs of occupation, as well as using her funds for daycare, groceries, utilities, insurance and related expenses.

[21] Each party filed calculations based on their respective positions. In some instances, there is no documentary evidence to establish exact amounts paid. Where there are differences in the parties’ calculations, I have adopted the figures that are supported by documentary evidence and used the actual income proven for each year. I accept Mr. Chukwu’s evidence as to the amount of mortgage paid, including the increase in those amounts.

[22] I calculate child support arrears as follows:

Child Support Arrears for February – December 2021

Mr. Chukwu’s income (T-4s) was $78,032. Table amount child support for 2 children as per the Child Support Guidelines: $1,182 per month. x 11 months = $13,002. Credit for ½ mortgage paid for 11 months @ $1,224 per month or $13,464 per year divided by half equals $6,732. Credit for “top-up” payments of $200 per month x 11 months equals $2,200 per year. Net child support owed for 2021 equals $4,070

Child Support Arrears for 2022

Mr. Chukwu’s income (notice of assessment) was $105,033. Table amount child support: $1,533 per month x 12 months = $18,396. Credit for ½ mortgage payment paid at $1,224 per month x 12 months equals $14,688 per year divided by half equals $7,344. Credit for “top up” payments of $200 per month x 12 months equals $2,400. Net child support owed for 2022 equals $8,652.

Child Support Arrears for 2023

Although Mr. Chukwu has not yet filed his income tax, he assumes that his income will be comparable to last year since his employment is the same. I agree. Therefore, I assume Mr. Chukwu’s income at $105,033. Table amount child support: $1,533 per month x 12 months = $18,396. Credit for mortgage payments of $1,224 monthly for 4 months equals $4,896 divided by half equals $2,448. Credit for mortgage payments of $1,422 per month from May to December (8 months) equals $11,376 divided by two equals $5,688. Credit for “top up” payments of $400 for January and February and a further $750 in December. Net child support owed for 2023 equals $9,110.

Total Child Support Arrears

Total child support arrears owed from date of separation to December 31, 2023 equals $21,832.

Car Loan

[23] Ms. Himes concedes that, after their separation, Mr. Chukwu loaned her $7,500 for the purchase of a car, located a car in Toronto and drove it to Thunder Bay for her. He claims that she owes him $7,500 for the unpaid loan plus $1,500 for repairs.

[24] Ms. Himes disputes that she owes him for repairs, indicating that she borrowed money from her mother to cover repairs. Mr. Chukwu acknowledged in his submissions that Ms. Himes borrowed money from her mother for repairs.

[25] Ms. Himes is ordered to repay Mr. Chukwu the sum of $7,500 on account of the car loan. This sum may be repaid once she receives her interest in the family home from Mr. Chukwu. As Mr. Chukwu agreed that Ms. Himes borrowed to pay for car repairs, his claim for repayment of $1,500 is dismissed.

Collateral Loan Payments Made to Fairstone Financial

[26] Mr. Chukwu indicates that in May 2017, when the parties first separated, he took a collateral loan of $25,000 from Fairstone Financial. He submits that Ms. Himes owes him $13,479 plus interest from proceeds of the loan used to pay her credit cards and other debts.

[27] Ms. Himes submits that the Fairstone loan was paid in full when they were still living together.

[28] I note that Mr. Chukwu’s affidavit refers to the parties’ first separation in 2017. He also refers to their final separation in 2021 when he left the home and moved to Brampton.

[29] I accept Ms. Himes’ position that the Fairstone balance was paid when they were still together. Mr. Chukwu’s claim for reimbursement is therefore dismissed.

[30] Orders will issue accordingly.

“original signed by” The Hon. Madam Justice H.M. Pierce

Released: February 5, 2024

COURT FILE NO.: FS-17-0105-02 DATE: 2024-02-05 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Niemi Himes Applicant - and – Kingsley Chukwu Respondent REASONS ON MOTIONS Pierce J. Released: February 5, 2024