Court File and Parties
COURT FILE NO.: FS–15–401888 DATE: 20181031 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
KAY VALLEY Applicant – and – JUSTIN HAY Respondent
Counsel: Kay Valley, on her own behalf Kevin Power, for the Respondent [1] Karen Lindsay-Skynner, on behalf of the minor children SHV and CHV
HEARD: October 15 – 19th, 2018
P.J. Monahan J.
1Kay Valley and Justin Hay separated in January 2014 after being married for 13 ½ years. They have two daughters who are now aged 16 and 14. Despite numerous court appearances, four attempted mediations, and the involvement of many educational and mental health professionals over the past 4 ½ years, they remain far apart on most of the significant issues arising from the breakdown of their marriage, other than the fact that they both seek a divorce. The intense ongoing conflict between the parties has taken a significant toll on their two daughters, who have suffered socially, emotionally and academically through being drawn into disputes between their parents.
2The principal matters in dispute are custody and access, child support, spousal support, and claims respecting property and equalization. Ironically, although the parties continue to harbor a residual bitterness over the circumstances surrounding the breakdown of their marriage, the legal issues that arise in this proceeding are not terribly complicated and can be resolved in a relatively straightforward manner.
3With respect to custody and access, and subject to the exception noted below respecting enrolment at Forest Heights High School in Kitchener, I find that it is not necessary to make a custody order with respect to SHV, who is now 16 years old. It is expected that SHV will reside with Ms. Valley and will have extensive access with Mr. Hay, but those arrangements are dependent upon SHV’s current views and preferences, as expressed through her counsel at trial. To the extent that SHV’s views and preferences change in the future, the parties should adjust her living arrangements accordingly. Similarly, although SHV should have access to counselling and therapy, it will be up to her to determine the extent to which she wishes to take up such services.
4CHV is just 14 years old and, accordingly, it is appropriate and necessary to make a custody order in her case. Nevertheless, given her age, her views and preferences have been given significant weight in coming to an appropriate determination with respect to custody and access. The parties will have joint custody of CHV. She will reside during the week with Ms. Valley and with Mr. Hay every weekend from Friday after school until Sunday at 6 PM. The parties will consult with one another about important decisions about CHV’s welfare, prior to those decisions being made. However in the event of any disagreement, Ms. Valley’s decision will prevail with respect to education and Mr. Hay’s decision will prevail with respect to major non-emergency healthcare.
5The parties agree that SHV and CHV will continue to attend Forest Heights High School in Kitchener. Given the numerous changes in their schooling arrangements over the past few years, it is important that these girls have an assurance of stability in this regard to provide them with a fair opportunity to succeed academically. Accordingly, neither girl’s school is to be changed without the written consent of both parties, provided in advance of any proposed change, or a court order.
6Mr. Hay acknowledges that he is required to pay table child support for both SHV and CHV. Based on his income, which I determine to be $125,000, he will pay monthly child support of $1777. He will also fund 70% of the children’s s. 7 expenses, provided that he is consulted and agrees in advance to the expense in question.
7In my view, Ms. Valley has established an entitlement to spousal support on compensatory grounds. Based on her income, which I determine to be $38,376 per year, and the fact that both children currently reside with her, she is entitled to monthly spousal support of $844. I do not fix a termination date for Ms. Valley’s spousal support, subject to a material change in circumstances in accordance with the criteria under the Divorce Act. [2]
8I decline to make any order with respect to retroactive child or spousal support.
9Finally, I find that Mr. Hay would otherwise be entitled to an equalization payment as well as reimbursement for certain post-separation payments he has made. However, he is not seeking any such payment from Ms. Valley and, instead, would set off his entitlement in this regard against any claim Ms. Valley may have for retroactive spousal support. Accordingly, I make no order with respect to equalization or property.
Background Facts
10Ms. Valley and Mr. Hay met in the early 1990s and began cohabiting sometime in 1992 or 1993. [3] They were married on September 16, 2000, when they were both 33 years of age.
11When the parties met in the early 1990s, they were both working as professional actors. In 1995 they worked together to produce, direct, and act in a successful production of a Shakespearean play. Ms. Valley also secured acting roles in various television shows and commercials. Mr. Hay acknowledged that during this period Ms. Valley’s acting career was proving more successful than his own.
12By the late 1990’s, Mr. Hay was transitioning out of the acting field and beginning to work as an information technology (IT) consultant and professional. In 1999, he was offered a position as an IT consultant in Vancouver, British Columbia. The parties agreed to relocate there to enable Mr. Hay to take up the position. Ms. Valley was able to find acting work in British Columbia, as well as securing a position as a consultant at an art gallery in Vancouver.
13In late 2000, Mr. Hay learned of a job opportunity in New York City. The parties were married in September 2000, and moved to New York where Mr. Hay began working. However neither party was happy there and, in March 2001, they decided to move back to Toronto.
14Over the next number of years, Mr. Hay secured a variety of consulting positions in the IT field, including a position with Industry Canada which required him to commute back and forth between Ottawa and Toronto for about a year. In 2005 he obtained a consulting position with IBM, based in their office in Dublin, Ireland. This position involved extensive international travel, although Mr. Hay also frequently had the opportunity to work remotely from home in Toronto.
15In the meantime, their two daughters were born, SHV in August 2002, and CHV in August 2004. Given Mr. Hay’s work and travel commitments, Ms. Valley was the primary caregiver for their two daughters. During this period, the parties purchased a home at 29 Main Street in the ‘Beaches’ area of Toronto.
16Sometime in late 2007, even though the girls were still quite young, Ms. Valley started White Glove Cleaners, a residential and commercial cleaning business using eco-friendly products. The business was so successful that in late 2008, Ms. Valley renamed it as Zero Point Inc. (“Zero Point”) and expanded the operation into a retailer and supplier of eco-friendly products and services. Zero Point offered eco-friendly paints, stains and other similar products, repaired furniture, and undertook specialized renovation and design work. The business operated out of a 1500 square-foot showroom on Queen St. East, had 2 to 3 full-time employees, and also had a team of contractors who could be engaged by clients to undertake renovation work. Mr. Hay did not have any role in the day-to-day operation of Zero Point.
17By late 2012, Zero Point was so successful that its annual revenues were approximately $370,000, and Ms. Valley and a business partner were looking at acquiring another business and expanding to four locations. In 2013 Ms. Valley relocated the Zero Point operation to a second-floor location on Kingston Road, and moved much of the business equipment and products into storage at their house at 29 Main St. in Toronto. In addition to her expansion plans, Ms. Valley intended to renovate the main floor of their Main St. home so that it could function as Zero Point’s showroom.
i. The parties’ separation and its immediate aftermath
18On January 20, 2014, the parties agreed to separate. However, instead of living in separate accommodations, they decided that they would both continue to reside in the matrimonial home on Main Street. Ms. Valley wanted to move forward with her plan to renovate the main floor of the home to use it as a showroom for Zero Point. She began discussing with Mr. Hay the possibility of purchasing his interest in the home. Over the next year the parties were unable to come to an agreement on the terms for any such buyout of Mr. Hay’s interest in the home. In the meantime, the tension and conflict in the house was increasing, and their daughters were also regularly being drawn into the conflict between the parents.
19Within a few months of agreeing to separate, the parties decided that Mr. Hay would primarily reside on the third floor of the matrimonial home, while Ms. Valley would primarily live on the main floor. The children had bedrooms on the second floor and had the run of the house. For reasons that are not entirely clear, at some point Mr. Hay decided to put a lock on the door to his area on the third floor, which prompted Ms. Valley to lock the door leading into her area on the main floor.
20Ms. Valley had become involved in a relationship with an Iain Greenson. Mr. Hay suspected that Mr. Greenson had moved into Ms. Valley’s locked premises on the main floor, to which he took exception. Ms. Valley also wanted to engage Mr. Greenson in doing the renovations she believed necessary to enable her to begin operating the Zero Point business out of the main floor of the house, but Mr. Hay objected to Mr. Greenson doing work on the home. This set the stage for further conflict and acrimony.
21On October 19, 2014, Mr. Hay arrived home to find Mr. Greenson doing some renovation work on the exterior of the home at 29 Main St. He called the police to have Mr. Greenson removed. The police attended and Mr. Greenson left. Approximately one month later, Mr. Hay made a similar call to have Mr. Greenson removed from the property.
22I am not in a position, nor is it my mandate, to make a determination as to whether it was appropriate or necessary for Mr. Hay to get the police involved in this way. I would, however, make the simple and obvious observation that this police involvement only further fuelled the growing tensions and conflicts between Mr. Hay and Ms. Valley.
23In the meantime, the children were being thrust into the middle of this escalating conflict on an almost daily basis. The stress manifested itself through academic difficulties that the girls began experiencing. For example, in September 2014, SHV began grade 7 at a new school. Within a week, she began expressing anxiety about attending school and could not sleep at night. She was pulled out of school after the first week of class at her new school and began receiving counselling for anxiety and sleep problems. However, Mr. Hay and Ms. Valley could not agree on if or where SHV should resume attending school. They attempted mediation on the issue but this was unsuccessful. It was not until November 2014 that the parties could agree on a new school for SHV, and she resumed grade 7 after having missed approximately the first two months of the academic year.
ii. The events of April 2015
24The parties’ decision to continue residing in the matrimonial home at 29 Main St. eventually led to a watershed moment which poisoned the parties’ relationship and set in motion a downward spiral from which they are still struggling to escape.
25By early April 2015, Mr. Hay had become concerned about the possibility of mental health problems and/or drug use on the part of Mr. Greenson. [4] He decided to call Mr. Greenson’s wife (from whom Greenson was separated at the time), and ask her about mental health issues and potential drug use on the part of Mr. Greenson.
26Within a few hours of having called Mr. Greenson’s wife on April 6, 2015, Mr. Hay began receiving angry telephone calls from Mr. Greenson, which he declined to answer. He also received a threatening email from Mr. Greenson which, amongst other things, called Mr. Hay “a coward”, informed Mr. Hay that Mr. Greenson was “a man”, and stating that “you’re now going to deal with that man”.
27Mr. Hay was also confronted on the afternoon of April 6, 2015 by Ms. Valley. He refused to speak to her and locked himself in his office on the third floor of their home. Ms. Valley began taking the hinges off of the third-floor office door, at which point Mr. Hay called the police. The police arrived but, after speaking with the parties, left without laying any charges.
28Predictably, this incident further escalated the conflict between the parties. On April 8, 2015, Ms. Valley commenced the present Application, seeking (amongst other things) immediate temporary exclusive possession of the matrimonial home as well as a Temporary Restraining Order against Mr. Hay due to “continuing harassing behaviour”, particularly his various calls to the police. Mr. Hay receive notice of the Application late on April 9, 2015 and he instructed his counsel to attend the hearing of the motion, which had been scheduled on an urgent basis for the following day.
29On April 10, 2015, Kiteley J. adjourned Ms. Valley’s motion to April 21, 2015 in order to permit the parties to file more comprehensive materials. In her Endorsement, Kiteley J. noted that, upon being told that the motion was being adjourned to April 21, Ms. Valley had indicated that she intended to take the children and leave the matrimonial home. Kiteley J.’s endorsement urged the applicant “not to act precipitously.”
30Mr. Hay chose not to attend the court hearing and waited for Ms. Valley at home in his third floor office. Ms. Valley had apparently lost her keys while travelling on the TTC and was quite upset by the time she arrived home. Mr. Hay came downstairs to unlock the door and let her in. While doing so, he was filming her on his cell phone. Ms. Valley grabbed the cell phone and threw it away, smashing the phone. Mr. Hay retreated to his third floor office and locked the door. Ms. Valley began taking the hinges off the office door, as she had done four days earlier, at which point Mr. Hay once again called the police.
31When the police arrived some minutes later, there was some sort of physical contact between the parties as they went downstairs to meet the police, but the exact nature of this contact is disputed. The police eventually made their way into the home and, after some sort of interaction with Ms. Valley, she was handcuffed and transported to the police station, where she was charged with mischief (wilful damage to a cell phone) and forcible entry to the third floor of 29 Main St. The associated undertaking to appear (the “Undertaking”) prohibited Ms. Valley from communicating with Mr. Hay, prohibited her from going to the matrimonial home except to gather her belongings with police presence, and prohibited her from being within 500 metres of any place where Mr. Hay worked, resided or was known to be.
32Having been barred from the matrimonial home and without a place to live, Ms. Valley moved on a temporary basis to her business premises on Kingston Road. Furthermore, because she was prohibited from attending at 29 Main Street, she no longer had access to the business equipment, materials and records which she had stored there. This effectively prevented her from continuing to operate the Zero Point business.
33On April 21, 2015, Ms. Valley’s Application came back before Kiteley J., who noted that, as a result of the restrictions in the Undertaking, those portions of Ms. Valley’s motion seeking immediate possession of the matrimonial home and custody of their two children were now moot. Kiteley J. did make a temporary order for spousal support in favour of Ms. Valley in the amount of $1000 per month for the next three months, pending proper financial disclosure from Ms. Valley. Kiteley J. also awarded temporary custody of SHV and CHV to Mr. Hay, set out a schedule for access by Ms. Valley, and granted Mr. Hay temporary exclusive possession of the matrimonial home with authority to sell the home without Ms. Valley’s approval.
iii. The sale of the matrimonial home and the loss of Zero Point
34Having been given authority to sell the matrimonial home on April 21, 2015, Mr. Hay wasted no time in moving forward. Within a day he had entered into a listing agreement with a real estate agent. On April 28, 2015, Mr. Hay’s counsel informed Ms. Valley that the house had been listed for sale and that she needed to make arrangements to remove her property stored there as soon as possible. The challenge was that Ms. Valley had limited ability to attend at the matrimonial home as a result of the Undertaking. She was able to arrange a moving company to pick up some of her property on the afternoon of May 3, 2015. However, her request to have the movers return to pick up additional items on the evening of May 3, 2015 was refused by Mr. Hay.
35On May 12, 2015, Mr. Hay moved all of Ms. Valley’s property out of the home and into storage. On May 27, 2015 his counsel wrote to Ms. Valley, informing her that her property had been moved into storage, but noted that Mr. Hay had only paid for the first month of storage (i.e. until June 12, 2015). Mr. Hay sought to be reimbursed the $2000 paid for the moving and storage, and also instructed Ms. Valley to contact the storage company directly to make further arrangements as to whether she wished to continue to store the materials there or move them elsewhere.
36It turns out that Ms. Valley never retrieved the items from storage, although the reasons for this are not entirely clear. In any event, Ms. Valley’s property was stored until the end of August 2015, when it was disposed of by the storage company. This effectively ended the possibility of Ms. Valley resuming the operation of Zero Point.
37In the meantime, Mr. Hay entered into an agreement to sell the house on June 3, 2015 at a price of $840,000. The transaction closed at the end of August 2015, with the entire proceeds being used to discharge various liabilities for which the parties were responsible.
iv. Continued conflict and involvement of the Children’s Lawyer
38Over the summer of 2015 the parties made little progress in resolving the various matters in dispute. The temporary order of $1000 per month spousal support for Ms. Valley was extended for an additional two months in order to permit Ms. Valley to provide required financial disclosure. However when she failed to comply with the disclosure order by October 2015, the temporary spousal support came to an end.
39The parties were able to agree that the Children’s Lawyer (the “OCL”) should be asked to provide legal representation for SHV and CHV. In the referral to the OCL, Kiteley J. expressed the view that there had been considerable conflict involving the children, who were then 11 and 13 years old, and that they would benefit by having a lawyer who could express their wishes and preferences. Subsequently, the OCL agreed to provide legal representation to the girls, and appointed Ms. Karen Lindsay-Skynner as counsel and Ms. Jacqueline Iafrate as clinical agent.
40Meanwhile, both SHV and CHV were experiencing significant emotional, academic and social difficulties. SHV continued to suffer from anxiety and sleep problems, and was frequently absent from school. CHV was experiencing similar problems. CHV was extremely shy and had a great deal of difficulty in communicating with other students in her class. Although she was then in grade 6, CHV frequently asked to attend her older sister’s grade 8 class. As this was not permitted by the school, CHV frequently stayed home or else was excused from class and permitted to sit in the school’s resource room where she could read and study on her own. CHV failed to complete the grade 6 year satisfactorily but was moved on to grade 7 anyway.
41During this period, the parties attempted to arrange various counselling services to assist the girls with the difficulties they were experiencing. The Children’s Aid Society had also become involved with the family as a result of the four calls that had been made to the police by Mr. Hay in late 2014 and early 2015. However the counselling that has been provided appears to have had limited success for a variety of reasons, including the fact that the parents have often been at odds as to what type of counselling would be most appropriate. These disputes between the parents have often led to an abrupt termination or change in the counselling arrangements, thereby making it extremely difficult for SHV and CHV to develop trust and confidence in their counsellors.
42The girls’ living arrangements changed in the spring of 2016. On April 20, 2016, Mr. Hay had surgery to remove a benign tumor from his brain. As a result, a new arrangement evolved whereby the children would have lunch and dinner at Mr. Hay’s home but would sleep most nights at Ms. Valley’s. The parties also agreed on a summer 2016 schedule, whereby the girls would spend the month of July with Mr. Hay and the month of August with Ms. Valley.
v. The move to Kitchener
43In the late spring or early summer of 2016, Ms. Valley decided to move to Kitchener. She had been caring for her ailing mother, who had moved in with her in the fall of 2015, and decided that she could find more suitable and less expensive accommodation in Kitchener. As a result, the girls spent the month of August 2016 with Ms. Valley in Kitchener. However, it was agreed that Ms. Valley would return the girls to Mr. Hay in time for them to begin school in Toronto on September 5, 2016.
44In the last week of August 2016, Mr. Hay suffered a seizure as a result of treatment he had been receiving following his April 2016 surgery. Although Ms. Valley returned the girls to Toronto on September 5, 2016 as promised, Mr. Hay found that he was not able to properly care for them. After approximately a week, he contacted Ms. Valley and requested that she come and pick up the girls and take them back to Kitchener. Following further discussions between the parties, it was agreed that the girls would be enrolled in public school in Kitchener and would reside there with Ms. Valley for the 2016-2017 academic year. Mr. Hay also agreed to begin paying child support to Ms. Valley of $2000 per month.
45Although Ms. Valley initially registered the girls in a public school in Kitchener, by the end of September she decided that their academic needs would be better served if they were enrolled in private school. She felt that the class sizes were smaller and that the girls would receive more individualized attention. She proceeded to register them in private school and informed Mr. Hay of her decision. He objected but she indicated that she was not seeking any additional financial contribution from him for the cost of private school, since her mother was providing financial assistance of approximately $3000 per month, sufficient to cover her living costs. She proposed to utilize the $2000 per month child support that Mr. Hay had agreed to provide in order to fund the private school tuition for the two girls.
vi. Subsequent developments
46Both girls have continued to reside with Ms. Valley in Kitchener since September 2016. For approximately a year after his August 2016 seizure, Mr. Hay was not permitted to drive an automobile. As a result, he was not able to travel to Kitchener and was dependent on Ms. Valley bringing the girls to Toronto so that he could have access with them. He indicates that this resulted in very limited access, as Ms. Valley only brought the girls to Toronto infrequently.
47Mr. Hay’s driving privileges were restored in the summer of 2017 and since that time he has driven the Kitchener on most weekends to pick up the girls and bring them back to Toronto for weekend visits. He returns them to Kitchener on Sunday evenings, where they reside with Ms. Valley during the week. These arrangements appear to have been working well and without incident for the last year or so. Mr. Hay has also continued to pay child support, increasing the monthly amount to $2100 in February 2017 and to $2200 in December 2017.
48Unfortunately both girls have continued to experience significant academic, social and emotional difficulties over the past two years. CHV was moved to a different private school in the fall of 2017 but this does not appear to have resolved her challenges and difficulties. Throughout both the 2016 – 2017 and the 2017 – 2018 academic years, both girls have been frequently absent from school and/or have spent significant amounts of time sitting in the library at their respective schools reading and studying on their own. In fact, SHV did not attend class for approximately five months during the most recent academic year and, as a result, was only able to complete two of her grade 10 credits.
49In September 2018, both girls were enrolled at yet another school in Kitchener, Forest Heights High School. SHV is in grade 11 and CHV is in grade 9. Reports thus far are positive. Both girls are attending class, appear to be making friends, and are getting involved in school activities. Both parents support their continued enrolment at Forest Heights.
Issues
50Although the factual background recounted above may be complicated and remains the subject of considerable dispute, the legal issues that require resolution are in fact quite straightforward. The principal issues that arise are as follows:
a. what custody and access arrangements should be made with respect to SHV and CHV? b. Assuming the girls continue to reside with Ms. Valley, what amount of table child support and contribution to s. 7 expenses should be paid by Mr. Hay? c. Is Ms. Valley entitled to spousal support? d. If Ms. Valley is so entitled, what amount and duration of spousal support should she receive? e. Should an order for retroactive spousal support be made? f. Does either party have an equalization or property claim against the other?
Custody and Access
51Both parties are agreed that SHV and CHV should continue to reside with Ms. Valley, and that Mr. Hay should have access visits with the girls on most weekends. Where they differ is on the nature of any custody and access order that should be made in respect of the girls.
52Ms. Valley seeks sole custody of both SHV in CHV. She argues that she and the girls are extremely stressed by the uncertainty and impermanence that has characterized their lives over the last number of years. She believes that the best way to address this stress and uncertainty is for her to have full and final custody of both girls. She indicates that she is prepared to continue to provide liberal access to Mr. Hay, consistent with the arrangements that have evolved over the last year.
53In contrast, Mr. Hay argues that there should be no order of custody with respect to SHV. She is now 16 years old and is capable of making her own decisions. Mr. Hay seeks an order for joint custody of CHV. He maintains that both parties should be required to consult one another about important decisions about CHV’s welfare. However in the event of any disagreement, Mr. Hay proposes that Ms. Valley’s decision will prevail with respect to education, and his decision will prevail with respect to major non-emergency healthcare.
54As noted above, SHV and CHV were represented during this proceeding by their own counsel provided through the OCL. In addition, Ms. Iafrate, the clinical agent retained by the OCL, testified with respect to the girls’ views and preferences.
55Ms. Iafrate has been a clinical agent for the OCL for 12 years and has over 22 years’ experience working with families and children. Shortly after being retained in February 2016, Ms. Iafrate held intake sessions with both parents. She then met with each girl separately on a total of eight occasions (four times in 2016, twice in 2017, and twice in 2018). Apart from one exception, all of these meetings have been in person. Her last meetings with each of the girls were in early October 2018, just prior to the commencement of this trial. Disclosure meetings with both parents were held in May 2016 and June 2018.
56I found Ms. Iafrate to be highly competent and credible. She has devoted a considerable amount of time to this file and, in my view, has diligently and carefully attempted to ascertain the views and preferences of SHV and CHV. In my view, her evidence on these issues is entitled to significant weight.
57Ms. Iafrate testified that since her involvement in this file since early 2016, SHV has always maintained her view and preference that she wished to reside with her mother, and she has wanted her mother to make all decisions necessary for her welfare. In the early meetings, SHV was extremely angry with her father and at certain points did not wish to see him. Over time, her position has evolved to include parenting time with her father every second or third weekend or more frequently at her discretion. She would like some flexibility. She is satisfied with the way her parents have been sharing the holidays, more or less equally. Even if there is no custody order made with respect to her, she will likely ask her mother to assist her with making decisions. Her current view is that she is happy with the status quo with respect to parenting time and does not believe that a custody order is necessary.
58Ms. Iafrate noted that SHV presents as mature for her age. Nevertheless Ms. Iafrate has some concerns about SHV’s maturity and the degree to which her views are independent from those of her mother.
59Ms. Iafrate testified that CHV’s views and preferences have changed significantly over time. In Ms. Iafrate’s early meetings in 2016, CHV was torn between her parents, indicating that she wanted to reside with both her mother and father preferably on a week about schedule, with a Wednesday dinner visit or overnight as she wished to have time with the parent that did not have her in their care that week. Her position changed over time such that she currently would like to reside with her mother during the week and spend her weekends with her father. In the summer she would like to spend equal time with each parent. She would like her mother to make decisions for her. Ms. Iafrate also expressed concerns about CHV’s independence, noting that she is strongly influenced by both her mother and her older sister.
60Ms. Iafrate noted that the girls have had significant ongoing issues with respect to social anxiety and school avoidance. She is concerned over the fact that since March 2016, SHV has attended four different schools and CHV has attended five different schools. These disruptions have contributed to their anxieties with their peers and academically. She believes that stability and consistency are highly desirable and necessary to assist the girls in overcoming these challenges moving forward.
61Turning to the testimony of Ms. Valley and Mr. Hay, it is clear that, despite the conflicts between them, they each care deeply about their daughters and are devoted to their daughters’ welfare. Ms. Valley is extremely close to both girls and has been their primary caregiver through most of their lives. She drives them to and from school on a daily basis and is involved in all aspects of their lives. She is a devoted mother and wants nothing but the best for both of her daughters.
62Mr. Hay’s access to the girls was somewhat limited following their move to Kitchener in September 2016, since he was not able to drive as a result of the seizure suffered in August 2016. However in the summer of 2017 he regained his driving privileges and since then has devoted himself to travelling back and forth to Kitchener on most weekends. Recently he has participated with the girls in some acting workshops where they were able to perform in front of a group of adults. This was a significant step forward for both girls. Overall, Mr. Hay appears to have succeeded in reestablishing a positive and loving relationship with both his daughters.
63As Kristjanson J. noted recently in her Trial Management Conference Endorsement in Henderson v. Winsa, 2018 ONSC 3378, courts in Ontario often find it appropriate not to make a custody order for a 16-year-old. This is because “as a practical matter, older children will make their own residential choices.” [6] I also note that generally the law presumes that a 16-year-old is capable of consenting on his or her own to healthcare, including therapy, and a parent cannot force medical treatment where a capable 16-year-old does not agree. [7]
64Taking into account the evidence of Ms. Iafrate and both of the parties, I find that it is in SHV’s best interests that no custody order be made for her. She has reached the age where she is able to competently make her own decisions as to where she wishes to live, and those wishes should be honoured. She has expressed the firm desire to continue residing with her mother and to see her father most weekends. This arrangement appears satisfactory to both parents. In the event that SHV’s views and preferences were to change, I see no reason why the parents ought not to adjust the arrangements accordingly.
65The only exception I would make in this regard applies to SHV’s choices regarding her high school. As noted above, SHV has experienced significant school avoidance issues over the past number of years, expressing anxiety over attending school and forming positive social relationships with her classmates. I am particularly concerned over the fact that she was only able to complete two of the required credits for grade 10 during this past academic year. She is now in her final two years of high school, which will be critical in terms of her opportunity to pursue postsecondary studies.
66She enrolled at yet another high school this past September. Although she appears to be progressing well thus far, I am concerned that in the event difficulties arise she and/or Ms. Valley may form the opinion that another change in high school would somehow provide a solution. Indeed, in her testimony Ms. Valley indicated that she has discussed with SHV the possibility of moving either to Stratford, Ontario, or to a farm at some unspecified location, following the conclusion of this trial.
67In her testimony, Ms. Iafrate expressed the opinion that SHV’s school anxiety issues have been exacerbated by the frequent changes in her high school over the past number of years. These changes have not only limited her academic performance, but they have also impacted her ability to form positive peer relationships. In Ms. Iafrate’s view, stability and continuity will be essential if she is to overcome these difficulties and perform to the best of her abilities over her final two years of high school. In short, it is clear that any further change in her high school would be contrary to her best interests.
68I accept Ms. Iafrate’s opinion on this issue, and therefore order that SHV will continue to attend Forest Heights in Kitchener unless both parties agree in advance that her school may be changed, or in the event of a court order to the contrary. In my view this will ensure that any further changes in her high school will only be implemented if such a change is carefully considered and found to be appropriate and in her best interest.
69Turning to CHV, she is 14 years old and thus her views and preferences should weigh heavily in terms of any applicable custody or access arrangements. She wishes to maintain the status quo, namely, living with her mother during the week and visiting her father on weekends. Both Mr. Hay and Ms. Valley are in agreement that this arrangement has been working well and should continue.
70Although CHV has been gaining in maturity, I accept Ms. Iafrate’s evidence that she is not yet in a position to make decisions for herself independently. Moreover, both Ms. Valley and Mr. Hay agree that a custody order should be made for CHV, although they differ on the nature of the order that would be appropriate in the circumstances. I therefore find that it is in CHV’s best interest to make a custody order in her case.
71I am encouraged by the fact that over the past year the parties appear to have been working more cooperatively with regards to CHV. On this basis, subject to the exceptions noted below, I am of the view that an order for joint custody would be appropriate in CHV’s case. This order for joint custody will proceed on the basis that CHV will reside with her mother during the week, and reside with her father every weekend from Friday after school until Sunday at 6 PM. All holiday time will be shared equally between the parties. Ms. Valley and Mr. Hay will consult with each other about important decisions about CHV’s welfare prior to any such decisions being made and, subject to an order to the contrary, will only implement such decisions with the agreement of both parties.
72I have already discussed the importance of continuity and stability in schooling for SHV, and these comments apply equally if not more so to CHV. Although CHV has been maturing, she continues to experience stress and anxiety. Indeed, Ms. Valley described a recent incident in which she had dug her fingernails into her arm and caused bleeding. As a result of this incident, Ms. Valley has arranged an appointment for CHV in early November with a mental health service provider in Kitchener.
73In light of these ongoing difficulties, it is obviously essential that CHV have continuity in her schooling, and it would not be in her interest for her to have a further change in school. Therefore, subject to a court order to the contrary, CHV will continue to attend Forest Heights unless both parties agree in writing in advance to a change of school.
74Although the parties have made some progress over the past year in working cooperatively, Ms. Valley and Mr. Hay continue to experience a great deal of difficulty in coming to a voluntary resolution on matters involving their daughters. These difficulties have been particularly evident in relation to decisions regarding the girls’ schooling as well as nonemergency healthcare, including their counselling and therapy. While I am hopeful that the parties will learn to cooperate and work together in these areas, I am not confident that they will be able to do so.
75Further uncertainty and/or conflict between the parents on these issues would be manifestly contrary to CHV’s best interests. I therefore find that it is necessary and appropriate to provide a process for resolving any future conflicts over CHV’s education and/or nonemergency healthcare. If, after having consulted with one another about important decisions about CHV’s welfare the parties are unable to agree, Ms. Valley’s decision will prevail with respect to education (subject to CHV’s continued attendance at Forest Heights as discussed above), and Mr. Hay’s decision will prevail with respect to nonemergency healthcare. I am hopeful that this will provide a degree of certainty and stability which is in CHV’s best interest and which, hopefully, will assist her in overcoming the many challenges she has faced as a result of the breakdown of her parents’ marriage.
Child Support
76Mr. Hay acknowledges that he is obliged to pay child support for SHV and CHV. The only issue is the quantum of table support and the appropriate sharing of s. 7 expenses. Resolution of these issues requires a determination of the parties’ respective incomes for child support purposes.
i. Mr. Hay’s income
77Mr. Hay’s most recent employment was as an IT consultant with the LCBO, where he was engaged as an independent contractor through his professional corporation, Hay & Associates Inc. (“H & A”), incorporated October 31, 2015. However, his contract with the LCBO was terminated on March 31, 2018. He has been unemployed since then but has been actively looking for work. During his period of unemployment over the past six months, Mr. Hay has earned nominal income through his participation in various acting workshops as well as royalties from reading and recording audiobooks. Prior to his engagement with the LCBO, he worked as an employee for a number of different corporations and earned T4 income.
78Mr. Hay filed his personal income tax returns and notices of assessment for the past six years, as well as the financial statements for H & A for the fiscal years ending July 31, 2016 and July 31, 2017. He testified that the H & A financial statements for the year ending July 31, 2018 are not yet available. He did not file an expert income report.
79Mr. Hay’s employment income in the three years 2012 to 2014 did not vary significantly, and averaged approximately $190,000 per year. However since the incorporation of H & A in October 2015, his Line 150 income on his personal income tax returns has decreased, to $177,581 in the year ending December 31, 2015, $156,353 in 2016, and $134,336 in 2017.
80Mr. Hay acknowledged that his Line 150 income for the 2016 and 2017 income tax years reflected only the dividends paid to him by H & A and thus was not a fair representation of his total income for either tax year. In this regard, I note that for the year ending July 31, 2016, H & A had total revenues of $133,518 and business expenses of approximately $30,000 (apart from amounts paid to Mr. Hay). Since H & A had only been incorporated on October 31, 2015, the revenues and expenses for the corporation’s 2016 year were earned or incurred over a nine-month period, rather than a full year. An annualized basis, H & A’s revenue for this period was approximately $177,000, the same amount Mr. Hay earned in the 2015 tax year. In the year ending July 31, 2017, H & A’s total revenues were $213,385, and its expenses were approximately $20,000 (apart from payments on account of salaries and wages.)
81In the absence of an expert report analysing the revenues and expenses of H & A, it is difficult to make an accurate determination of Mr. Hay’s income for child support purposes. Nevertheless, Mr. Hay acknowledged that the total revenues for H & A in both 2016 and 2017 reflected the amounts he billed to the LCBO for services. Even acknowledging that he is entitled as an independent contractor to deduct legitimate business expenses, his total income for the past two years appears to be comparable to the amount he earned in 2015, namely, $177,581. I therefore find that his income for child support purposes for the years 2015 to 2017 was $177,000.
82As noted above, Mr. Hay’s engagement with the LCBO was terminated on March 31, 2018. Since he was an independent contractor, he did not receive any severance payment and has not been earning any significant employment income since that time. He provided a list of his job search efforts over the past six months. It is evident from this list as well as his viva voce testimony that he has been making diligent efforts to secure employment. There appear to be available positions for which he is qualified and he is hopeful of securing employment in the near future. However based on the interviews and feedback he has received, he expects to be earning substantially less than previously, somewhere in the range of $110,000 to $130,000 per year.
83Mr. Hay has extensive experience as an IT professional. He is 51 years old. Based on his own current expectations, I find that he is capable of earning an income of $125,000 per year, and would impute this income to him for child support purposes as of November 1, 2018.
ii. Ms. Valley’s income
84Turning to Ms. Valley’s income, in the years immediately prior to the parties’ separation, Ms. Valley had been earning income through Zero Point. For example in the year ending December 31, 2012, Zero Point had a gross income of $369,237, expenses of $224,423, for a net income before taxes of $144,814. However over the next two years, Zero Point’s gross and net income declined. In the year ending December 31, 2013, Zero Point had gross income of $101,379, expenses of $134,326, for a net loss of $32,947. In the year ending December 31, 2014, total income declined further to $32,677, expenses were $65,239, for a net loss of $32,562.
85As discussed above, Ms. Valley was unable to continue operating Zero Point after her removal from the matrimonial home on April 10, 2015. The business supplies and equipment she had stored at 29 Main St. were put into storage by Mr. Hay in May 2015. Although she was informed of the fact that her business property had been moved into storage, she did not retrieve it and it was disposed of by the end of August 2015. Ms. Valley testified that she made efforts to contact the storage company about her property, but her testimony on this issue was vague and it is difficult to determine precisely what efforts she made. In any event, Zero Point ceased to operate as of April 10, 2015.
86On April 21, 2015, Kiteley J. made an interim order for spousal support in favour of Ms. Valley in the amount of $1000 per month. This was a temporary order in effect for three months only, and was subject to Ms. Valley providing proper financial disclosure. When Ms. Valley failed to provide the required disclosure within the initial three months, Kiteley J. extended the temporary spousal support for an additional two months. However, Ms. Valley did not provide the disclosure required by Kiteley J. and, accordingly, the spousal support payments ceased in October 2015.
87In the course of this proceeding, Ms. Valley has filed a number of disclosure statements and other documents describing various sources of income since 2015. However the disclosure is incomplete and in most cases is not supported by documentation. This makes it difficult to arrive at a reliable determination of her actual income over the past three years.
88In her oral testimony, Ms. Valley stated that her mother began supporting her financially from September 2015 onward, when they began residing together in her apartment on Woodbine Ave. in Toronto. This continued after the move to Kitchener in the summer of 2016, until her mother unfortunately passed away October 17, 2017. Ms. Valley indicated that her mother was paying her household expenses, in the range of $2000-$3000 per month. This is consistent with her April 21, 2017 financial statement filed in this proceeding, which states that her mother was contributing approximately $3000 per month toward the household expenses. It was on this basis that she decided to send her two daughters to private school in Kitchener in September 2016. Because her living expenses were being funded either by her mother or from other sources of income, she was able to utilize the $2000 per month child support payment received from Mr. Hay to pay her daughters’ private school tuition.
89Ms. Valley’s financial statements and other disclosure also indicate that between November 2015 and March 2016, she earned approximately $11,800 from a position with the Canadian Imperial Bank of Commerce. In 2017 she was receiving income from the Ontario Student Assistance Program (OSAP) of approximately $1500 per month, while in 2018 she was receiving social assistance income of approximately $1000 per month, as well as the child tax benefit of approximately $1100 per month. However the dates upon which these latter payments commenced, and the specific basis upon which they have been paid, have not been specified.
90In May 2018, Ms. Valley secured temporary employment through an employment agency in Kitchener. The precise nature of her position was not clearly described, Ms. Valley indicates that she was earning approximately $2580 per month. This position came to an end in August 2018.
91Ms. Valley has recently secured employment with Toyota Boshoku Inc. in Elmira, Ontario, and she will commence work on October 22, 2018. Ms. Valley was unclear as to the exact work she will be performing, although she expects to be paid approximately $18.50 per hour and to work a 40 hour week. This would equate to an annualized salary of $38,480.
92Therefore, although I am not able to determine Ms. Valley’s income dating back to 2015, I find her income for support purposes as of October 22, 2018 is $38,480. This is the amount that she is actually earning or, alternatively, is currently capable of earning.
iii. Quantum of child support
93Based on these respective incomes, I find that Mr. Hay is liable to pay table child support in the amount of $1777 per month. He is also required to contribute 70% of any s. 7 expenses reasonably incurred in respect of SHV or CHV. This includes the cost of counselling and therapy which should be made available to both girls. In particular, in light of the recent incident in which CHV caused damage to her arm, it is evident that she continues to experience considerable stress and anxiety and would benefit from counselling. CHV has been reluctant to actively engage with counsellors in the past and it will require consultation with CHV and careful attention to her views and preferences in finding appropriate counselling services. I expect the parties to work diligently and cooperatively towards this goal.
Spousal Support: Entitlement
94Ms. Valley claims an entitlement to spousal support. She argues that she was significantly disadvantaged financially as a result of the marriage. She has earned very little income since the parties separated, and her standard of living is far below that enjoyed by the parties during the marriage, or by Mr. Hay currently.
95Mr. Hay disputes Ms. Valley’s entitlement to spousal support. He argues that at the time of separation, Ms. Valley was operating her own business which was earning significant income. He argues that Ms. Valley stopped operating her business intentionally and that she was and remains capable of earning a substantial income.
96Section 15.2 of the Divorce Act indicates that, in making an order for spousal support the court shall take into consideration the “condition, means, needs and other circumstances of each spouse”, which includes the length of time the spouses cohabited, as well as the functions performed by each spouse during cohabitation. Moreover, a spousal support order should recognize any economic advantages or disadvantages to the spouses arising from the marriage or its break down, apportion between the spouses any financial consequences arising from the care of the children, and relieve any economic hardship arising from the breakdown of the marriage. [8]
97As the Supreme Court of Canada held in Bracklow v. Bracklow, [1999] 1 S.C.R. 420 ("Bracklow"), there are a number of distinct grounds supporting an entitlement to spousal support. This includes the compensatory theory of support, which permits the court to examine whether spouses have “foregone opportunities to develop the ability to support themselves because of the marriage, or have been rendered less able to support themselves by adverse effects of the marriage or the marriage breakdown.” [10]
98In this case, it is evident that Ms. Valley did forgo career opportunities during the marriage and that this has significantly impacted her ability to support herself following the breakdown of the marriage. During the early years of their cohabitation, Ms. Valley was developing a successful acting career in Toronto. As Mr. Hay himself acknowledges, her career at this point was considerably more successful than his own. In spite of that fact, Ms. Valley agreed to relocate to British Colombia in 1999 to permit Mr. Hay to take up an IT job opportunity there. While Ms. Valley was able to obtain some acting work in British Columbia, she also began working for an art gallery. The following year the parties moved to New York City to permit Mr. Hay to pursue yet another job opportunity. It does not appear that Ms. Valley was able to work while the parties were living in New York City. In 2001, they moved back to Toronto and, shortly thereafter, SHV was born. Ms. Valley withdrew entirely from the workforce for at least the next five years to care on a full-time basis for SHV and, subsequently, CHV, who was born in 2004.
99The fact that Ms. Valley was the primary caregiver for their two daughters permitted Mr. Hay to take up job opportunities that involved extensive travel. This included the position with Industry Canada which required him to commute back and forth between Ottawa and Toronto for approximately a year. In addition, his position with IBM was based in Dublin, Ireland and required frequent international travel. He was only able to pursue these opportunities because Ms. Valley was at home taking care of their two daughters.
100It is true that beginning in 2007, Ms. Valley started her own cleaning business, which subsequently evolved into Zero Point. By the time of the parties’ separation, Zero Point had enjoyed a fair measure of success and Ms. Valley had ambitious plans for future expansion. But by January 2014, Zero Point remained a fairly modest operation, as evidenced by the fact that Ms. Valley had moved much of the business equipment and supplies into their home at 29 Main St. Zero Point’s revenues appear to have declined significantly in 2013, and it operated at a loss during that year.
101In my view, therefore, Ms. Valley has a clear entitlement to spousal support on compensatory grounds. Moreover, given the fact that the parties cohabited for 21 years, and Ms. Valley was 46 years old at the time of their separation, her age combined with their years of cohabitation exceed the “rule of 65". I would therefore not fix a termination date for spousal support, subject to a material change in circumstances in accordance with the Divorce Act.
Spousal Support: Quantum
102I have earlier determined Mr. Hay’s annual income for support purposes to be $125,000, while Ms. Valley’s income is $38,480. The Spousal Support Advisory Guidelines (SSAG) suggest a range of spousal support from a low of $273 to a high of $1417 per month for an indefinite duration, with a midrange of $844 per month. During this proceeding, Ms. Valley tabled a monthly budget dated October 9, 2018, which indicated that her monthly expenses exceeded her income by approximately $747 per month. However this budget appeared to contain a number of significant errors, including the fact that she claimed the expense of $700 per month for car maintenance, which she acknowledged to be a one-time only expense rather than an ongoing monthly cost. In addition her budget indicated that she is spending over $1200 per month on gas. However, on cross-examination, she conceded that this number was incorrect. Moreover she did not provide any documentation or other evidence to support the expenses claimed in her budget.
103I accept that Ms. Valley is currently struggling to make ends meet and that she and her daughters live very modestly. Nevertheless, I am not in a position on the record before me to accurately determine her actual needs. I therefore decline to order spousal support at the high-end of the range and would, instead, order monthly support at the midrange of $844 per month. As noted above, I would not fix a termination date for spousal support, subject to a material change in circumstances.
Retroactive Spousal Support
104Ms. Valley seeks an order for spousal support retroactive to the breakdown of the marriage on January 20, 2014. She argues that she has been in severe financial difficulties and struggling to survive financially since the breakdown of the marriage.
105As the Supreme Court of Canada held in Kerr v. Baranow, 2011 SCC 10 , [2011] 1 S.C.R. 269 ("Kerr"), where the court is asked to order support for a period before the date of the order, it is appropriate to take a flexible and “holistic” view of each matter on its own merits. Relevant considerations include the conduct of the payor, the circumstances of the spouse seeking support, and any hardship occasioned by the award. The focus of concern about conduct should be on conduct broadly relevant to the support obligation, for example, failure to make appropriate disclosure. [12]
106It should also be noted that a party who wishes to advance a claim for child or spousal support for a period predating the date when proceedings were commenced must specifically include a claim for retroactive relief in their pleading. [13] Ms. Valley commenced this proceeding with her application dated April 8, 2015. It did not include a claim for retroactive spousal support. Moreover, until April 10, 2015, Mr. Hay continue to pay the parties’ living expenses, and Ms. Valley withdrew approximately $16,000 from the parties’ joint bank account to fund her living expenses. In short, I see no basis for making an order for retroactive spousal support prior to April 8, 2015.
107Kiteley J. made an order for spousal support in the amount of $1000 per month on April 21, 2015. However, as discussed above, this order was expressly limited to a period of three months, given the fact that Ms. Valley had not at that time provided any financial disclosure. Kiteley J. subsequently extended the spousal support order for a further two months in order to give Ms. Valley appropriate time to provide the necessary disclosure. However Ms. Valley failed to do so and the spousal support ceased in September 2015.
108I accept that Ms. Valley has attempted in good faith to provide disclosure of her financial circumstances. Nevertheless, her disclosure remains fragmentary and incomplete. For example, it appears that her mother was providing her with support of approximately $3000 per month beginning in September 2015 and continuing until the time of her mother’s passing in October 2017. However, Ms. Valley has not provided any bank records or other documentation that would permit the court to ascertain the actual amount of support she received during this period.
109Ms. Valley also acknowledges that she has received various other sources of income over the years, including support from OSAP as well as social assistance. Again, however, no supporting documentation has been provided. Ms. Valley maintains that she has signed various releases which will enable Mr. Hay to make inquiries regarding her financial circumstances over the past few years. But the fact that she has executed these releases does not relieve her from the obligation to provide appropriate disclosure of her financial circumstances.
110It would appear that until recently, Ms. Valley was able to provide for her and her mother’s financial needs without additional support from Mr. Hay. She decided to unroll her daughters in private school in September 2016 at a cost of approximately $2000 per month on an after-tax basis. The girls were both enrolled in private school for the 2017-18 academic year.
111I would also note that following Ms. Valley’s departure from the matrimonial home on April 10, 2015, Mr. Hay assumed responsibility for paying a variety of liabilities of the parties. These post-separation payments are described in the next section, and they total approximately $38,000. Mr. Hay is also entitled to a modest equalization payment of approximately $5500, as described below. Mr. Hay is not seeking reimbursement from Ms. Valley for these payments but, rather, seeks to set off those payments against any liability he may have for retroactive spousal support. This further reinforces the appropriateness of not ordering any retroactive spousal support in the particular circumstances of this case.
Property and Equalization
112The parties each filed a number of Net Family Property statements in the course of this litigation. While they are broadly similar, they differ in certain material respects. I describe these differences below and indicate how I have resolved and/or reconciled them.
113First, Ms. Valley claims that Mr. Hay sold the matrimonial home on 29 Main St. for significantly less than its fair market value. Ms. Valley claims that the home is worth $1.2 million rather than the $840,000 it was sold for in June 2015. The basis for this assertion seems to be that while they owned the home, the parties had received valuations from financial institutions and certain real estate agents suggesting that the home was worth somewhat more than $840,000. She seeks to recover from Mr. Hay 50% of the difference between what she believes the home was worth and what it was actually sold for.
114I see no merit to this claim. Mr. Hay was authorized by Kiteley J. to sell the property without the approval of Ms. Valley. He listed the property with a licensed real estate agent that had earlier been discussed with Ms. Valley, and the property was sold to an arm’s-length buyer. Regardless of estimates provided by financial institutions and/or real estate agents, the actual fair market value of a property is the price that would be paid by a willing purchaser to a willing buyer in a voluntary transaction. This is precisely what occurred in June 2015, with the house selling at a price of $840,000. Mr. Hay has valued the matrimonial home at the date of separation (i.e. January 20, 2014) at $800,000. Given the sale price, this is clearly a reasonable estimate; in any event, Mr. Hay has split the property’s value equally between the parties for net family property purposes. Thus there is no basis for Ms. Valley’s claim that she is owed an equalization payment with respect to the sale of the parties’ matrimonial home.
115A second area of dispute is with respect to the value of the Zero Point business owned by Ms. Valley at the date of separation. Ms. Valley claims that the business had no value. However, she does acknowledge that there was approximately $20,000 of Zero Point equipment stored in the basement and main floor of 29 Main St. at the time of the parties’ separation. Although she recognizes that this equipment should be included for purposes of the net family property calculation, she also argues that Mr. Hay should be required to reimburse her for its value because he disposed of it without her permission.
116Mr. Hay takes a different position. He notes that in her financial statement sworn November 29, 2017, Ms. Valley stated that the value of her business equipment was $200,000. He asserts that given Ms. Valley’s failure to provide proper financial disclosure, an adverse inference should be drawn with respect to the value of the Zero Point business equipment. He attributes a value of $100,000 to the equipment, which he argues should be included in the calculation of Ms. Valley’s property on the valuation date. Further, he denies any liability for having put the equipment into storage, since this was necessary in order to effect the sale of the house. Mr. Hay informed Ms. Valley of the location where her property had been stored, and she was provided with an opportunity to retrieve it.
117Although Ms. Valley provided limited disclosure with respect to the value of the Zero Point business, she did produce the corporate income tax return for Zero Point for the year ending December 31, 2013. This document indicates that on that date the business equipment of the Corporation had a value of $21,202, and the total retained earnings of the corporation at year-end was $66,497. This calculation was prepared on behalf of Ms. Valley in May 2015 and submitted to the Canada Revenue Agency at that time. In my view, this represents a fair estimate of the value of the Zero Point business, prepared by or on behalf of Ms. Valley. I therefore find that the Zero Point business owned by Ms. Valley had a value of $66,497 on the valuation date.
118Ms. Valley argues that Mr. Hay should be responsible for reimbursing her for the value of the Zero Point business equipment because he moved it into storage without her permission and it was subsequently sold. I would not accept this argument. It was clearly necessary for Mr. Hay to remove the business equipment from the matrimonial home in order to permit the property to be sold. Ms. Valley was provided an opportunity in early May 2015 to arrange for movers to attend at the home and remove her property. Although some property was retrieved by her on May 3, 2015, it appears that most of her business equipment remained at the matrimonial home.
119There was some urgency to effecting the sale of the home, since Mr. Hay was facing financial challenges in covering the property’s carrying costs. Moreover he wanted to utilize the proceeds from the sale to reduce the parties’ various other liabilities. It was precisely for this reason that he was given authority by Kiteley J. on April 21, 2015 to proceed unilaterally to list and sell the property. After moving the property into storage, Mr. Hay provided Ms. Valley with the contact information of the storage company so that she could either continue to store it there or move it to another location. In her testimony, Ms. Valley stated that she attempted to contact the storage company, but she provided no details as to when this had occurred, what discussions might have taken place, or why she was not able to arrange for continued storage of her property. In short, it is unclear whether Ms. Valley made any reasonable efforts to retrieve her property. In the circumstances, I see no basis for holding Mr. Hay responsible for the value of her business equipment.
120There were a number of other differences in the parties’ net family property statements, which should be resolved as follows:
a. Ms. Valley has included the value of a condominium on Scadding Avenue owned by Mr. Hay. However this condominium was purchased after the parties’ separation and thus should not be included in Mr. Hay’s family property on the valuation date; b. Ms. Valley has included a value for certain investments held by Hay & Associates Inc. However, as discussed above, this Corporation was not created until October 2015, which is after the valuation date. Accordingly, these investments should not be included in determining Mr. Hay’s property on the valuation date.
121In the result, I find that Ms. Valley’s net family property on the valuation date was $65,871.59, and Mr. Hay’s net family property on that date was $54,846.14. This results in an equalization payment from Ms. Valley to Mr. Hay of $5512.72.
122In addition, following the parties’ separation, Mr. Hay assumed responsibility for certain debts and liabilities of the parties. He made the following payments on account of these liabilities:
National Leasing payment – $6675 on October 2, 2015 Blue Chip Leasing payment – $9189 on October 2, 2015 Telus cell phone payment – $1297 in September 2015 Hilton Grand Vacation timeshare buyout – $20,799 in May 2017
123These post-separation payments total $37,960, for which Mr. Hay is entitled to be reimbursed by Ms. Valley.
124Thus, taking into account both the equalization payment as well as these post-separation adjustments, Mr. Hay is entitled to a payment of $43,472.72 from Ms. Valley.
125However, Mr. Hay is not seeking actual reimbursement for this amount owing. Instead, he asks that this amount be set off against any entitlement by Ms. Valley to retroactive spousal support. As discussed above, I have taken this into account in my determination that no retroactive spousal support should be ordered in this case.
Disposition
126A final order will issue as follows:
a. Kay Valley and Justin Jay are divorced, effective 31 days after the issuance of this order; b. no custody order will be made with respect to SHV. Her current preference is to reside with Ms. Valley and have regular weekend visits with Mr. Hay, but if her views and preferences change in the future, these arrangements should be adjusted accordingly. SHV will also determine the extent to which she wishes to participate in counselling and/or therapy; c. the parties’ will have joint custody of CHV and will consult with each other with respect to important decisions about CHV’s welfare prior to any such decisions being made; d. CHV will reside with Ms. Valley during the week and with Mr. Hay on weekends from Friday after school until Sunday at 6 PM. All holiday time will be shared equally between the parties; e. SHV and CHV will continue to attend Forest Heights High School, subject to both parties’ agreement in writing in advance to any change in the girls’ high school, or subject to a court order to the contrary; f. subject to paragraph (e) above, and subject to the requirement in paragraph (c) above to consult in advance of any major decision regarding CHV’s welfare, if the parties are unable to reach agreement on a major decision regarding CHV, Ms. Valley’s decision will prevail with respect to education and Mr. Hay’s decision will prevail with respect to nonemergency healthcare; g. Each of Ms. Valley and Mr. Hay may make inquiries and be given information by SHV’s and CHV’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors, and others involved in their care. The intent of this provision is to provide each of Ms. Valley and Mr. Hay with access to any information or documentation to which a parent of a child would otherwise have a right of access. If, for whatever reason, this order is not itself sufficient to accomplish this purpose, the parties will cooperate and execute any further authorization or consents that may be required; h. With respect to parenting arrangements for SHV and CHV, the parties further agree as follows: i. Both parties will use Our Family Wizard for communication; ii. Both parties will provide each other with their email addresses, current addresses and a phone number or numbers where they can be reached; iii. Neither party will object to the other’s plans with the children during their respective parenting time, and will respect each other’s ability to care for the children appropriately; iv. Neither party will disparage the other to the children; v. Both parties may attend extracurricular activities and scheduled school events regardless of the schedule; vi. The children’s health cards will travel with the children between the parties’ homes; i. effective November 1, 2018, Mr. Hay will pay table child support of $1777 per month to Ms. Valley for the benefit of SHV and CHV, based on his income of $125,000 and Ms. Valley’s income of $38,480; j. Mr. Hay will pay 70% of the s. 7 expenses of SHV and CHV, and Ms. Valley will pay 30%, provided that both parties agree to the expense in advance (or the expense is approved by one of the parties in accordance with paragraph (f) above) and proper documentation of the expense incurred is provided to both parties; k. effective November 1, 2018, Mr. Hay will pay spousal support of $844 per month. There is no fixed termination date for this spousal support, subject to a material change in circumstances in accordance with the Divorce Act; l. a support deduction order will issue in respect of these child and spousal support payments; m. there will be no order for retroactive child or spousal support; n. although Mr. Hay would otherwise be entitled to a payment of $43,472.72 on account of equalization of net family property, along with post-separation adjustments, he has waived his claim to such payment. Accordingly, there will be no order in respect of equalization or property; o. Mr. Hay is authorized to sell the parties’ interest in the Hilton Grand Vacation timeshare without Ms. Valley’s consent and, in that regard, may execute all documents in connection with the offering for sale, sale, or closing of any transaction regarding the timeshare without the approval or signature of Ms. Valley, provided that the net proceeds from such disposition after payment of expenses will be divided equally between the parties.
127The parties shall file cost submissions of up to three pages each (not including offers to settle or Bills of Costs) within 21 days of the release of these reasons.
P. J. Monahan J.
Released: October 31, 2018
COURT FILE NO.: FS–15–401888 DATE: 20181031 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
KAY VALLEY Applicant – and – JUSTIN HAY Respondent
REASONS FOR JUDGMENT P. J. Monahan J.
Released: October 31, 2018
1Kevin Power was acting on a limited retainer and participated only during the opening statements. Mr. Hay otherwise acted on his own behalf for the trial itself.
2R.S.C. 1985, c. 3 (2nd Supp.), (the “Divorce Act”).
3During the trial, the parties seemed to have different accounts as to the date upon which they began cohabiting; Ms. Valley testified that they began cohabiting in 1990, whereas Mr. Hay stated that they began cohabiting in late 1993. However, in her Application dated April 8, 2015, Ms. Valley stated that the parties began living together in 1992 while Mr. Hay, in his Answer dated May 5, 2015, stated that the parties began cohabiting on or about May 1, 1993. I therefore assume that the parties began cohabiting sometime in either 1992 or 1993.
4I make no finding with respect to these concerns. They are noted simply in order to provide context to the events which followed.
52018 ONSC 3378 at paragraphs 26 to 29.
6L. (N.) v. M. (R. R.), 2016 ONCA 915 at paragraph 36. See also Supple v. Cashman, 2014 ONSC 3581 at paragraph 17.
7See generally the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A.
8Divorce Act, s. 15.2 (6).
9Bracklow v. Bracklow, [1999] 1 S.C.R. 420 ("Bracklow").
10Bracklow at paragraph 39.
11Kerr v. Baranow, 2011 SCC 10 , [2011] 1 S.C.R. 269 ("Kerr"), at paragraphs 205 to 212.
12Kerr at paragraph 212; D.B.S. v. S.R.G., 2006 SCC 37 , [2006] 2 S.C.R. 231 ("D.B.S.”) at paragraph 106.
13Thompson v. Thompson, 2013 ONSC 5500, at paragraph 77.