2010 ONSC 2407, 2010 ONSC 2407

CITATION : Desimone v. Desimone, 2010 ONSC 2407 COURT FILE NO.: 11458/09 DATE: 2010/04/27 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) JILL DESIMONE ) ) ) Steven L. Nagy, for the Applicant ) Applicant ) ) - and - ) ) ) ETTORE DESIMONE ) ) ) Self-represented ) Respondent ) ) ) ) HEARD: April 20 & 21, 2010 TUCKER J. ENDORSEMENT BACKGROUND [ 1 ] The applicant and respondent dated for four years prior to their marriage on September 15, 1990. They had two children, Dakoda now 17 years of age and Justice now 13 years of age, prior to separation on August 31, 1999.

Their third child Sthone was born on December 20, 1999 and is currently 10 years old. [ 2 ] After separation, court proceedings led to an interim order of Justice Caputo, on consent, on August 17, 2000 which gave custody to the applicant with access to the respondent on a regular basis. The access was exercised without issue for many years. The custody of the children is not in dispute. The respondent agrees with the applicant having custody of all three children on a final basis. [ 3 ] The parties resided in Sault Ste. Marie during their marriage and after their separation.

In 2008 the respondent moved to Sudbury where his new wife resided and the applicant moved to Niagara Falls. Firstly, issues about the costs of access led the

respondent to seek legal advice. Then the applicant brought a motion to vary access and the amount of child support paid in response, which led to this trial. [ 4 ] The respondent had paid child support pursuant to the Justice Caputo order “faithfully”, as he put it in his testimony, since 2000. He paid $685.00 per month for his children based upon an agreed income at the time of the order of $36,166.00.

He also paid spousal support of $350.00 per month for his wife from the time of the order until October of 2009. [ 5 ] The consent order issued by Justice Caputo provided among other things that the parties were to exchange T4’s, income tax returns, and notices of assessment by May 31 of each year and also to advise the other party of any 10% or more increase of their income within two weeks of such increase. Neither party complied with this paragraph in the order at all.

The information was not requested, nor provided, until these proceedings were brought. [ 6 ] By 2009 the applicant earned $16,341.00 which together with her $3,150.00 spousal support gave her an income of $19,491.00. The respondent’s income in the interim had risen to $68,753.00 in the same year, and was $70,605.00 in 2008. ISSUES [ 7 ] The issues are as follows: 1. What access should the respondent enjoy with his children and how should the costs of access be borne? 2. What child support is payable by the respondent currently? 3. What arrears are owing, if any, by the respondent for child support? 4.

Is there any outstanding equalization payment owing by either party? [ 8 ] Prior to addressing these issues, I note that the following orders are on consent: 1. The applicant shall have custody of the three children of the marriage. 2. The applicant shall ensure that the respondent receives school, medical, and dental records of the children on a regular basis by providing her written authorization to such release. 3. The respondent shall maintain the children on his medical and dental benefits from his place of work. 4.

The respondent shall provide evidence of child support insurance (Family Sure 2000) to the applicant on a yearly basis. 5. The parties shall exchange income tax returns, notices of assessment and any reassessments by May 31 st in each year commencing this year. 6. There shall be a s.7 order to go whereby the extraordinary expenses of the children will be shared on a pro rata basis. 7. The respondent shall have access to the children on 48 hours notice if he is visiting Niagara, and the applicant shall have access to the children on 48 hours notice if she is visiting Sudbury.

ACCESS/COST OF ACCESS [ 9 ] The respondent seeks six weeks in the summer, every March break, and Christmas from December 26 until the Saturday before the children return to school. The applicant would prefer that the respondent have five weeks of access so that she could enjoy four weeks with the boys in the summer enjoying activities such as camping. [ 10 ] I find that the applicant made the choice to move to Niagara. It is further than Sault Ste. Marie from Sudbury by at least one and a half hours. Accommodation should have occurred on both sides to ensure that the children had access to both parents.

Instead it appears that the applicant allowed access in Niagara Falls, but never tried to assist in access by meeting halfway in Barrie or travelling to Sudbury. Accordingly, I find that the cost of access visits must be borne in part by the applicant. I note in arriving at a quantum for such access expenses, I take into account the relative incomes of the parties, the existing distance that was in place for a short period of time when the respondent moved to Sudbury, the expenses claimed by the respondent in having access, and the number of planned access visits. [ 11 ] First, I will determine access.

The applicant is willing to allow greater access than the respondent is able to exercise given the expense of such access and his available personal time for work. The only discrepancy or point of contention is that of the summer. [ 12 ] Given the distance that must be travelled by the respondent, the loss of his every other weekend visits due to the move by the applicant to Niagara Falls, and his close relationship with the children, I find it is in the best interest of the children to have six weeks with their father each summer.

This should commence immediately following school end and continue until the Saturday at 6:00 p.m. of the last weekend of the six weeks. The extended period of time shall allow the applicant her “share” of enjoyment of the summer with the kids while allowing the respondent adequate time to foster his relationship with them. By having such blocks of time, the travel costs are reduced as well.

[ 13 ] Accordingly, on consent, I grant Mr. Desimone access to the children every March break from after school until Sunday at 6:00 p.m. In addition, also on consent, I grant the respondent access every Christmas from December 26 th until the Saturday at 6:00 p.m. prior to the children’s return to school. Not on consent, I grant access to the respondent every summer from the end of school for six weeks returning at 6:00 p.m. on the last Saturday of the access period. Communication concerning access should at all times be between the parties via email and not through the children.

It is the parents’ responsibility to deal with access issues, not the children’s. [ 14 ] In terms of cost of access, as noted, the applicant should be responsible for some costs. Although she has no car and she has been suspended from driving due to her medical condition, she chose to move five and a half hours away from the respondent. Her fiancé has a car and a busy

schedule involving his mother and his work, but the court cannot find that it would be impossible for them to meet the respondent in Barrie or to on occasion make the trip to Sudbury. I find, therefore, that they chose not to do so and, as such, must contribute to the expenses of the respondent’s travel costs. The respondent says gas alone is $125.00 and that he has to rent a car as his is not reliable for the trip. In addition, in the past he has spent money on motels and food. Given the access ordered here, the motel I find is no longer necessary.

The travel would have been at least three to four hours in any event due to Mr. Desimone’s choice to move to Sudbury. Accordingly, there should be some, but not all, reimbursement of the respondent’s costs. For the six trips a year he will be making I would allow $100.00 per trip contribution to his travel expenses or $600.00 per year. Any additional trips will be at the respondent’s own expense. [ 15 ] In terms of past expenditures, the respondent is claiming some $6,789.78 for gifts, clothing, gas, lodging, entertainment, and food spent on access visits.

The gifts, clothing, and entertainment would be solely the respondent’s choice and should be at his expense. The lodging and gas should be partially reimbursed. Since October Mr. Desimone has received a credit of $180.00 per month toward travelling against his child support obligation, or $1,260.00. This amounts to $180.00 a trip for the seven trips he has made.

Accordingly, I find that the amount of $1,260.00 which has been paid shall be the amount the respondent receives in total for expenses claimed to date. [ 16 ] Further expenses being $600.00 per year shall result in a credit of $50.00 a month against ongoing child support. ONGOING CHILD SUPPORT [ 17 ] This brings me to ongoing child support. The 2009 income of the respondent was $68,753.00. Accordingly, the child support payable for his three children is $1,338.00, and I do so find, which will be less $50.00 per month for access, or $1,288.00 per month from May 1, 2010 and each month thereafter.

ARREARS [ 18 ] The next issue is arrears. [ 19 ] At the time of the original support order made on consent, it was agreed that the respondent’s income for child support was $36,166.00 resulting in an order for $685.00 per month. There was also spousal support in the amount of $350.00.

The respondent made those payments until October 2009 when a consent order was entered into and spousal support was stopped. [ 20 ] The respondent’s income from the date of the original order has increased as follows: 2002 $42,937.00 2003 $41,638.00 2004 $43,148.00 2005 $44,880.00 2006 $49,942.00 2007 $50,653.00 2008 $70,605.00 2009 $68,753.00 [ 21 ] Given the payments made, the unpaid child support based on those income amounts was as follows: 2002 $ 1,812.00 2003 $ 1,476.00 2004 $ 1,860.00 2005 $ 2,304.00 2006 $ 3,588.00 2007 $ 3.756.00 2008 $ 8,208.00

2009 $ 7,836.00 (up to September) $30,840.00 [ 22 ] The applicant provided spousal support advisory guideline calculations which would indicate that for at least 2006 and 2007 no spousal support would have been payable, but in 2008 spousal support would have been $831.00 a month. The respondent paid spousal support. The applicant began to reside with her fiancé in January 2008. [ 23 ] The applicant argues that the respondent had a positive obligation to advise her of his increasing income.

The respondent argues that the applicant failed to comply with the provisions of the 2000 order as well, and that it would be unfair to put the burden of almost ten years of child support on his shoulders. [ 24 ] I recognize that the respondent will suffer some hardship by finding arrears of child support. I note that with his new wife’s income his total household income is over $120,000.00 per year. I question how the respondent believed his child support obligation should not increase with his income almost doubling. [ 25 ] The applicant should have made inquiries.

The respondent should have divulged his income. Child support belongs to the children. They should have received the benefit of the respondent’s increased income over the past years. The action was commenced in April 2009. It appears equitable to the court that the parties should equally bear responsibility for the “arrears” issue arising. Accordingly, I set the arrears at $15,420.00 being one half of the total arrears of $30,840.00. The applicant asked that the payments be paid by $500.00 per month in addition to regular child support. The respondent suggested $100.00 per month.

I recognize the respondent is just now adjusting to the increased child support, but 12 years is too long to repay his debt to his children. The children will be grown. Payments of $300.00 per month will retire the debt in just over four years which is adequate. EQUALIZATION [ 26 ] The parties separated in 1999. It is now 2010. Although evidence was led as to the assumption of some matrimonial debt by the husband and an approximately $3,000.00 pension of the husband which the wife claims, I will not make an equalization order 11 years after the fact based on faded evidence. The amount claimed is nominal at best.

Net family property statements cannot be recreated after 11 years to point to one asset and one debt without an accounting of all assets and debts that the parties may have had at that time. Accordingly, that claim is dismissed. COSTS [ 27 ] If the parties are unable to agree upon costs, I may be spoken to. ___________________________ Tucker, J. Released: April 27, 2010 CITATION : Desimone v. Desimone, 2010 ONSC 2407 COURT FILE NO.: 11458/09 DATE: 2010/04/27

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: JILL DESIMONE Applicant - and – ETTORE DESIMONE Respondent ENDORSEMENT Tucker, J. Released: April 27, 2010