2013 ONSC 659, 2013 ONSC 659

CITATION : Kennedy-Lillie v. Lillie, 2013 ONSC 659 COURT FILE NO.: 2502/12 DATE: 2013-01-28 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Charmaine Kennedy-Lillie, Applicant AND: Graeme Francis Lillie, Respondent BEFORE: Justice E.

Gareau COUNSEL: Heather-Ann Mendes, Counsel, for the Applicant HEARD: January 21, 2013 ENDORSEMENT [ 1 ] This matter came before the court on January 21, 2013 as an uncontested hearing. [ 2 ] The name Graeme Francis Lillie was paged and he did not appear at the hearing scheduled for 2:00 p.m. [ 3 ] The matter was previously before Ellies, J. on August 16, 2012, at which time he granted an order for substituted service on the respondent by service by pre-paid ordinary mail to the respondent’s brother, Kevin George Lillie’s post office box located at P.O.

Box 6174, Fort Saint John, British Columbia, V1J 4H7. [ 4 ] Service of the originating documents including the application, financial statement, affidavit in support of claim, motion, affidavit of the applicant and a copy of the aforementioned order was completed pursuant to the aforementioned order as appears from the affidavit of Diane Simpson, sworn on August 20, 2012. [ 5 ] No responding documents have been filed by the respondent. A case conference took place on November 2, 2012. Mr. Lillie did not appear at the case conference.

An order was made on November 2, 2012 permitting the applicant to amend her notice of application dated May 24, 2012 to claim an unequal division of net family property.

It was also ordered that the amended notice of application be served substitutionally on the respondent in the same manner as set out in the order of Ellies, J. granted on August 16, 2012. [ 6 ] The respondent received notice of the amended application and of the date of January 21, 2013 at 2:00 p.m. for an uncontested trial by letter dated November 7, 2012 from the applicant’s solicitor attached as Exhibit “C” to the affidavit of Charmaine Kennedy-Lillie sworn on January 15, 2013. [ 7 ] The respondent has not responded in any way to these proceedings nor has he contacted the applicant since these proceedings were commenced on May 24, 2012. [ 8 ] The court has reviewed the documents in the continuing record and also had the benefit of viva voce evidence from the applicant, Charmaine Kennedy-Lillie.

The applicant and the respondent commenced a common law relationship in 1989, were married on May 9, 1992 and separated on May 26, 2011. The respondent is employed as a geological engineering technician and at the time of separation was employed in British Columbia, while the applicant remained in Sault Ste. Marie, Ontario. When the respondent left the matrimonial home on May 26, 2011 to return to British Columbia, he took all his personal possessions with him, including his winter clothing.

The applicant indicated in her evidence that on June 15, 2011 the respondent telephoned her and told her that “he was done with her” and was remaining in British Columbia. The respondent has in fact not returned back to Sault Ste. Marie, Ontario and the applicant has had no contact with the respondent since that telephone call on June 15, 2011. [ 9 ] As a result of their relationship, the parties are the parents of two children, namely, Karl Kennedy-Lillie born July 21, 1995 and Kohle Kennedy-Lillie born December 18, 2003. Karl attends St. Basil’s Secondary School as a full-time student.

Kohle is in Grade 4 and attends Anna McCrea Public School. Both children have special needs. Karl has autistic spectrum disability and does not cope well with stress. Kohle has a learning disability and has difficulty reading. [ 10 ] The respondent has not had any contact with Karl or Kohle since separation and has made no attempts to contact them.

This has been difficult for both children, especially the oldest Karl, who has been frustrated by his unsuccessful attempts to contact his father. [ 11 ] Both Karl and Kohle currently reside with their mother in the matrimonial home located at 179 Country Club Place, Sault Ste. Marie, Ontario. The respondent has been placed under extreme financial difficulty by the separation. The matrimonial home is subject to power of sale proceedings by the Royal Bank of Canada and the applicant expects that she and the children will be required to vacate the home by February 1, 2013.

The applicant has been left to pay a Capital One credit card in the amount of $7,600.00 which was incurred for business expenses of the respondent for which he has been reimbursed. There is also $4,000.00 owing to GMAC lease on a leased vehicle which has been returned and a small Visa amount of $686.00 owing to the Royal Bank of Canada. The applicant’s financial difficulties have been compounded by the fact that the respondent last provided funds for her and the children on July 15, 2011 and her recent loss of employment.

[ 12 ] At the time of their marriage, the applicant was a nursing student, having completed her first year of studies. The applicant gave up her nursing career to enter the work force which enabled the respondent to complete his education and graduate as a geological engineering technician. The applicant believes the respondent to be still fully employed with Airborne Geophysics and her evidence was that the respondent’s gross income is likely in the $100,000.00 per year range.

The applicant bases that estimate on seeing the respondent’s 2008 income tax return which disclosed a gross employment income of $96,000.00 to $97,000.00 for the respondent. While the parties resided in Sault Ste. Marie, Ontario, the applicant wife was a homemaker within the home caring for the children of the marriage. In the final year, the parties resided together the applicant returned to work at Sutherland Global Services but the applicant was forced to end that employment as her son Karl was not doing well at school and was having difficulty adjusting to his mother working outside of the home.

After the parties separated, the applicant had no option but to return to work and held part-time jobs at Pino’s I.G.A., Leon’s Furniture and at Simard’s Foot Clinic. In April, 2012, the applicant began full-time employment at Leon’s Furniture. This employment ended in early January, 2013 and the applicant is presently without employment or income. The applicant estimates that her 2012 gross income was approximately $19,000.00. [ 13 ] Presently, the applicant is not employed and is without income.

On the evidence before the court, it is reasonable to conclude that the respondent has a gross annual income of $100,000.00 and that is the amount I fix the respondent’s annual income to be for the purpose of child support and spousal support. The Ontario Child Support Guideline tables indicate that the respondent should be paying a base amount of $1,416.00 per month for the support of Karl Kennedy-Lillie born July 21, 1995 and Kohle Kennedy-Lillie born December 18, 2003. The applicant has made a claim for extraordinary expenses for Karl and Kohle under

Section 7 of the Child Support Guidelines. Both children require orthodontic work. Entered as Exhibit 1 in the hearing was a treatment plan for Kohle from Cambrian Dental Care indicating an estimated cost for treatment of $6,500.00. Entered as Exhibit 1 in the hearing was a treatment plan for Karl from Cambrian Dental Care indicating an estimated cost for treatment of $6,123.89.

It was the evidence of the applicant that a minimum of $225.00 per month was required for treatments to commenced, which to date the applicant has been unable to afford. [ 14 ] The applicant testified that for a time, both Karl and Kohle were in tutoring and that both boys could benefit from tutoring due to their particular difficulties at school. Karl, for a time, had attended Kumon Math and Reading Centers at a cost of $180.00 per month and the Ignite Program at a cost of $500.00 per month.

Similarly, Kohle attended the Kumon Program at a cost of $180.00 per month and the Ignite Program at a cost of $500.00 per month. From the evidence, it appears that some tutoring is essential for both children, especially Kohle who is reading at a Junior Kindergarten level although he is in Grade 4. [ 15 ] Apart from the aforementioned

Section 7 expenses, Kohle plays football in the spring at a cost of $380.00 and Karl plays football at St. Basil’s Secondary School at a cost of $200.00 for his jersey. Karl was taking drum lessons at a cost of $225.00 for six weeks, but that was discontinued as was swimming lessons at $160.00 for a six-week session. [ 16 ] As to the

Section 7 expenses, I am not of the view that the football, drum lessons or swimming lessons are “extraordinary” in nature given the level of child support that the respondent should be paying based on his gross annual income. If the proper amount of child support is paid, the expenses for football, swimming lessons and drum lessons can be paid from the ongoing monthly child support. [ 17 ] On the evidence before me, I am satisfied that the orthodontic expense is extraordinary, reasonable and necessary for both Karl and Kohle.

Similarly, I am also satisfied that both children should have some tutoring, although it may not be possible for them to have all the tutoring available due to the financial circumstances of the parties. In my view, each child should have the Kumon tutoring available to them at a cost of $180.00 per month for each child. [ 18 ] As to the claim for equalization of net family property, the major asset of the parties appears to be the matrimonial home located at 179 Country Club Place, Sault Ste. Marie, Ontario.

According to the evidence of the applicant, the home is listed for sale and is in the process of being taken over by the bank if it does not sell by February 1, 2013. It appears on the evidence that the home has a value of $239,900.00 with two mortgages registered on title totalling $220,000.00. There is a Visa to RBC of $686.00 and a debt to Capital One of $7,600.00. All of these debts would have to be paid from the sale of the matrimonial home, if there is sufficient equity.

Apart from the furnishings and chattels at the matrimonial home, there appears, on the evidence, to be no other significant assets of the parties. [ 19 ] There are monies held in trust for the child Karl, which he can access on his 18 th birthday. It is reasonable that the applicant be in control of these funds given the fact that she is the sole custodial parent of Karl and given the respondent’s disinterest in his children as evidenced by his conduct since the parties separated. [ 20 ] The applicant has made a claim for spousal support.

She is requesting the court make an order in the amount of $2,000.00 monthly. The applicant is presently unemployed and has no employment income coming into the household. The parties have been together in a relationship of over 20 years. The applicant gave up her own pursuit of a nursing career to work which allowed the respondent to be educated. Filed as Exhibit 3 on the hearing of this matter was a Divorce Mate Spousal Support Advisory Guideline calculation based on the applicant having no income; the respondent having an annual gross income of $100,000.00 and paying $1,416.00 per month in base child support.

That calculation provides for a low point of $1,168.00, a mid point of $1,395.00 and a high point of $1,625.00. There is a difficulty in departing from a guideline amount given the fact that the financial statement in the continuing record is not current, having been sworn on May 23, 2012 and the fact that many of the respondent’s expenses are unknown if she has to vacate the matrimonial home and carries out her plans to relocate from Sault Ste. Marie, Ontario to Edmonton, Alberta with Karl and Kohle.

In my view, the proper amount of spousal support on the evidence before me is the amount of $1,625.00 per month, which is the high end which is appropriate given the length of the marriage, the career that the applicant gave up to enable the respondent to complete his own education and the many moves the applicant made during the relationship to enable the respondent to advance his career. [ 21 ] Accordingly, there shall be the following final order:

(

a) the applicant shall have custody of Karl Kennedy-Lillie born July 21, 1995 and Kohle Kennedy-Lillie born December 18, 2003; (

b) the Sault Ste. Marie Police Services, the Ontario Provincial Police, the Royal Canadian Mounted Police and any other police force called upon shall enforce the provisions of this custody order and shall locate, apprehend and deliver the children to the applicant, if necessary, to enforce the provisions of this custody order; (

c) the respondent shall pay to the applicant child support for Karl Kennedy-Lillie born July 21, 1995 and Kohle Kennedy-Lillie born December 18, 2003 in the amount of $1,416.00 per month based on the respondent’s gross annual income of $100,000.00. the child support payments shall commence on June 1, 2012; (

d) the respondent shall pay to the applicant as

Section 7 expenses for the children, the sum of $12,623.89 for orthodontic expenses which is to be paid by the respondent to the applicant in the amount of $500.00 per month commencing February 1, 2013 until paid; (

e) the respondent shall pay to the applicant as

Section 7 expenses for the children, the tutoring costs of $180.00 per month for each child for a total of $360.00 per month commencing February 1, 2013; (

f) the respondent shall pay to the applicant spousal support in the amount of $1,625.00 per month commencing June 1, 2012; (

g) the respondent shall cover the applicant and the children Karl and Kohle on all extended health care coverage available to him through his employment for so long as the coverage is available to him as an incident of his employment; (

h) the respondent shall name the applicant as to sole, irrevocable beneficiary of all life insurance held by him; (

i) the applicant shall retain any net proceeds from the sale of the matrimonial home located at 179 Country Club Place after payment of the mortgages registered on title, real estate commissions and costs of disposition; (

j) the applicant shall retain the contents of the matrimonial home located at 179 Country Club Place, Sault Ste. Marie, Ontario free from any interest or claim by the respondent; (

k) the applicant shall be the sole signatory and shall control the trust funds held on behalf of the child, Karl Kennedy-Lillie, born July 21, 1995. [ 22 ] The applicant has made a claim for costs and through her counsel has requested costs of these proceedings in the amount of $5,000.00. No bill of costs has been provided to the court.

In the circumstances, a reasonable amount for costs is $3,500.00 and there shall be an order that the respondent pay to the applicant costs in the amount of $3,500.00 inclusive of disbursements and HST with these costs payable forthwith. [ 23 ] As to the commencement date of the support, the application was commenced on May 24, 2012. There was no evidence before the court of any formal requests for support being made before that date and therefore, it is appropriate that any ongoing support commence June 1, 2012 with the exception of the

Section 7 expenses which are to be paid from this point forward and are therefore to commence February 1, 2013. Justice E. Gareau Date: January 28, 2013