ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-5093-11
DATE: 2012-02-17

B E T W E E N:

TINA LYNN PENFOLD

Cheryl Siran , for the Applicant

Applicant

• and -

TIMOTHY HUGH EARL PENFOLD

Sarah Trach , for the Respondent

Respondent

HEARD: February 15, 2012, at Thunder Bay, Ontario

Mr. Justice J.F. McCartney

Decision on Motion

[ 1 ] The Application in this matter was commenced by Tina Lynn Penfold (the wife) on November 22, 2011. There are three motions pending before me today – the first dated February 1, 2012, the second dated February 7, 2012, and the third dated February 8, 2012. The first motion, made by the husband, Timothy Hugh Earl Penfold (the husband) asks for an order of shared parenthood of the child of the marriage, Noah Penfold born May 6, 2000 (presently 11 years old), interim child support to be determined, and an order that Noah not be removed from the city of Dryden. The second motion made by the wife asks for interim custody of Noah, child support for Noah, spousal support for the wife, and exclusive possession of the matrimonial home. The third motion by the husband, asks for sale of the jointly owned matrimonial home.

[ 2 ] The wife is 44 years old, the husband 37. They married August 8, 1998 and separated March 11, 2011 – a 13 year marriage. The wife had a child – Tanner Russell – born September 18, 1995 (presently 15 years old) who is not involved in this matter but who Noah grew up with as a brother.

Custody and Access

[ 3 ] As I mentioned earlier the husband asked for an order for shared parenthood in his motion, the wife asked for interim custody with access to the husband in her motion. Both these motions are premature. First, the Children’s Lawyer has been appointed to represent Noah, or at least report to the court on his situation, but has not yet had the opportunity to become involved. Second, the parties tell me the husband has a non-communication order outstanding against him vis-a-vis the wife concerning criminal proceedings which will have to be resolved so that direct communication can be made between the parties, and which will also determine the husband’s work schedule which will then determine what time he has available to be with Noah. Third, the wife, in her application, indicates that she is in a new relationship and intends to move with Noah to Niagara Falls. There is also a suggestion that the husband intends to move to Thunder Bay. So a mobility issue would appear to be the underlying issue to the custody/access/shared parenting issues and thus these issues should not be determined in isolation from the mobility issue even on an interim basis.

[ 4 ] Consequently, I do not intend to make any determination of custody issues at this time, and will only deal with the issue of where Noah will reside until the full Application herein in finalized.

[ 5 ] At the present time, both the husband and wife are working during the day, Monday through Friday, and even thought there is a suggestion the husband may be changing back to shift work, I can only deal with the present situation. Due to the enormous amount of conflicting evidence, and for the reasons I have already elicited, it is difficult to determine, even on a temporary basis, what is in Noah’s best interest. I am assured, however, that both parents are quite capable of tending to all of Noah’s needs, so I am inclined at this time to decide that Noah should reside on an alternating weekly basis with each of the husband and the wife, from Friday to Friday of each week.

Child Support

[ 6 ] Regarding the issue of child support, the parties indicated that on a shared basis, working with the parties combined income, they agree that the husband should be paying the wife $554 monthly, which seems to be the appropriate figure based on my decision of a shared residence.

Spousal Support

[ 7 ] This was a reasonably long marriage with the wife contributing to the economic well being of the family through her work, but the husband clearly being the major bread winner. On separation it appears the husband’s income was approaching three times that of the wife’s. Furthermore, the wife clearly is in need of support, at least until she has more of an the opportunity to work towards independence. Furthermore, the husband’s financial statement shows that with the flexibility of a large income, and with a little frugality, he can easily assist the wife by paying spousal support.

[ 8 ] The amount of spousal support the husband should be paying is, however, difficult to determine especially since the parties have fairly recently separated and various family debts are still being paid by both of them. However, looking at the Divorce Mate Tables, and taking debt payments into account, I am assessing interim spousal support at the present time of $800 monthly.

Exclusive Possession of the Matrimonial Home

[ 9 ] As was pointed out by counsel, the test to determine this issue is set out in s.24(3) of the Family Law Act which reads as follows:

Order for exclusive possession: criteria

(3) In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children. R.S.O. 1990, c. F.3, s. 24 (3) .

[ 10 ] In this instance, none of the above criteria seem to apply. The wife and child live in the matrimonial home, the husband has his own premises and shows no inclination to move into the matrimonial home or to remove the wife and child. Furthermore, the parties are now in agreement that the home is to be listed and sold. I can see no reason whatsoever to make an exclusive possession order.

Removal of Noah from Dryden Ontario

[ 11 ] The husband has asked that as part of this order that the wife be prevented from taking Noah from the town of Dryden. There was no evidence presented to me to indicate that the wife would attempt to remove Noah on a permanent basis from this area until the matter of mobility could be determined by the courts or an agreement arrived at between the parties. Consequently, this request is denied.

Sale of the Matrimonial Home

[ 12 ] Counsel have advised that the parties are now in agreement that the matrimonial home should be listed and sold, and have asked that this become a part of the order herein.

[ 13 ] In the result, then, an interim order is to go as follows:

1. The child Noah Penfold, born May 6, 2000 shall reside on an alternating weekly basis with each of his parents – from Friday to Friday of each week – commencing forthwith.

2. The husband shall pay child support to the wife for the support of Noah Penfold in the amount of $554 monthly commencing March1, 2012.

3. The husband shall pay spousal support to the wife in the amount of $800 monthly commencing March 1, 2012.

4. The wife’s request for exclusive possession of the matrimonial home is denied.

5. The husband’s request for an order for non-removal of the child Noah from the town of Dryden is denied.

6. The matrimonial home of the parties, municipally known as 272 Van Horne Avenue, Dryden, Ontario is to be listed for sale and sold.

Costs

[ 14 ] Since the result of the three motions herein are clearly mixed, no costs are awarded.

“Original signed by”

The Hon. Mr. Justice J.F. McCartney

Released: February 17, 2012

COURT FILE NO.: CV-5093-11
DATE: 2012-02-17

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: TINA LYNN PENFOLD Applicant - and – TIMOTHY HUGH EARL PENFOLD Respondent DECISION ON MOTION McCartney J.

Released: February 17, 2012

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