SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-11-72453-00
DATE: 20120413
RE: Cynthia Leonora Lee-Broomes v. Granville Sylvester Broomes
BEFORE: Fragomeni J.
COUNSEL:
Mr. S.M. Fehrle, for the Applicant
Ms. Subuola Awoleri, for the Respondent
HEARD: April 3, 2012
E N D O R S E M E N T
[ 1 ] Temporary Order to issue as follows:
On consent, the respondent/father shall pay child support to the applicant mother for the child, Ryan Sylvester Broomes born […], 1991 in the Table amount of $712.80 based on the father’s current stated annual income of $78,487.76 commencing April 1, 2012. This is without prejudice to any claims for retroactive support;
Support Deduction Order to issue;
On consent, the Peel Children’s Aid Society is authorized and directed to release to both the applicant, Cynthia Leonora Lee-Broomes, and the respondent, Granville Sylvester Broomes, and their counsel a letter and/or report explaining the availability of foster children to be placed in the care of Cynthia Leonora Lee-Broomes, whether a foster parent can request for a child to be placed in her care, how long a foster parent can be without any foster child in care and the issue of the CAS kinship program and how it affects the availability of foster care placements in Peel Region, the reasons therefore, and related issues;
The issues relating to entitlement and quantum of spousal support is adjourned to April 27, 2012;
That the respondent father shall pay to the applicant mother the following amount for his share of the s. 7 expenses relating to the child’s attendance at Sheridan College: $1,968;
The matrimonial home situated at R[…] Court, Brampton, Ontario […] shall be listed for sale on the following terms:
(a) The home shall be listed for sale no later than April 15, 2012;
(b) The parties shall accept the first reasonable offer made on the home within 3% of the listing price;
(c) The closing date shall be approximately 60 days from the date of acceptance of the offer, if at all possible;
(d) The net proceeds of sale shall be paid into Court pending further order of this Court or written agreement of the parties;
(e) In the event that the father does not comply with the sale terms as set out herein and co-operate with the listing agent, the mother may return this matter to court for directions and seek, if necessary, that the consent and signature of the father be dispensed with with respect to the listing, sale and completion of the transaction to sell the home and, again if necessary, the mother may seek an order for exclusive possession of the home pending its sale.
- The parties shall file written submissions on costs within 10 days.
Issue: Post-Secondary Expenses at Sheridan College
[ 2 ] Ryan’s expenses at Sheridan College for the 2011/2012 school year are as follows:
Tuition - $3,000
Books - $ 450
Bus Travel - $1,236
Total - $4,686
This amount equals $390 per month.
[ 3 ] The husband does not take issue with the amounts set out, however, his position is that he should not be required to pay toward these expenses. The husband argues that the child should be contributing to these expenses. Ryan should be working to earn money to assist in paying for his school expenses. Ryan did not work in 2011 so his income in 2011 was nil. Ryan is now 20 and ought to be able to work in the summers to assist in paying for his education.
[ 4 ] Ryan did not receive a loan or a grant for the 2011/2012 school term. During that time, and before the mother’s income just recently was reduced to nil, the parties combined income was about $150,000. The mother argues that Ryan would not qualify for government assistance and more importantly he should not have to go into debt when his parents can assist him.
[ 5 ] Counsel for the wife filed for my review the decision in Roth v. Roth , 2010 ONSC 2532 , [2010] O.J. No. 1934, a decision of my brother Justice L. Ricchetti. Justice Ricchetti conducts a useful and informative review of the jurisprudence relating to a child’s contribution to post-secondary expenses. At para 16 Justice Ricchetti sets out the following:
16 The following principles can be ascertained when dealing with post secondary expenses of a child of the marriage:
a) Generally, post secondary education is considered a necessary expense in the best interests of the children. Certainly, there was no argument to the contrary in this case.
b) The reasonableness of the expense considers the means of the spouses or former spouses and the means of the child.
c) Children have an obligation to make a reasonable contribution to their own post-secondary education or training. This does not mean that all of a child's income should necessarily be applied to the costs of the child's further education. The court should consider whether the child should be entitled to some personal benefit from the fruits of his or her labours.
d) Grants, scholarships and bursaries are generally treated as a reduction of the education expense as they involve a net transfer of resources to the child without any obligation of repayment.
e) A student loan is not a "benefit", within the meaning of section 7(3) of the Guidelines that must be automatically taken into account in determining the amount to be ordered in respect of s. 7 expenses. A student loan may constitute , in whole or in part, a "contribution ... from the child" to post-secondary education expenses within the meaning of section 7(2) of the Guidelines and thereby exclude or reduce the need for any parental contribution. This turns on the reasonableness of taking account of any such loans in the circumstances of the case.
f) In determining the amount of an expense or the contribution thereto under section 7 of the Federal Child Support Guidelines , the guiding principle is that, once the court has determined the appropriate amount of contribution by the spouses or former spouses, the spouses or former spouses should share the expense in proportion to their respective incomes after deducting any contribution from the child, or other liable parent. (see Lewi, at para. 157).
[ 6 ] Ryan resides at home with his mother full time while he is at school at Sheridan College.
[ 7 ] At this time, the mother has no foster children in her care due to recent changes in the foster care system. The parties have consented to an order that the Peel CAS provide further information about these changes. The issue of spousal support has been adjourned to April 27, pending receipt of that information as it will be very relevant on an ongoing basis with respect to the issue of spousal support and the parties’ respective contribution to Ryan’s school expenses at Sheridan.
[ 8 ] For the 2011/2012 school year, however, both parties were employed. The wife’s income for 2011 was $72,983.42. For 2012 she earned $1,811.02 as of March 2012.
[ 9 ] Therefore with respect to the 2011/2012 school, I am satisfied that the total cost of $4,686 be allocated as follows:
To the wife - $1,968
To the husband - $1,968
To Ryan - $750
[ 10 ] On a go forward basis, this issue will have to be re-visited depending on the outcome of the motion relating to spousal support.
Re: Sale of the Matrimonial Home
[ 11 ] Following the separation in July 1995, the husband, according to the wife, refused to leave the matrimonial home, he refused to consent to the wife listing the property for sale, and he would not agree to purchase her interest in the home.
[ 12 ] The wife has made numerous and continuous requests to have the home sold but to no avail. The wife wished to have her equity.
[ 13 ] In her Affidavit sworn March 7, 2012, the wife sets out the following history with respect to the home at paras 23 to 33:
Since our separation, I have made continuous requests for the listing of our matrimonial home, in order that I may realize my equity in same.
In or about 1998, Granville became very ill with sarcoidosis. Given his illness, I did not force the issue of the sale, waiting for Granville to get back on his feet. Once Granville recovered and returned to work full-time, I made further requests that he either purchase my interest in the home, or sell the property. Granville refused both options.
In 2003, I required a larger home to house the foster children. At that time, I had three children, including Ryan, who required their own rooms. I had to purchase a 5-bedroom property to house my son, and the foster children in my care.
I requested that Granville pay me my equity from the matrimonial home, to permit me to purchase the new home.
Granville refused to sell the home or purchase my interest, but he agreed to permit me to take out a line of credit to provide me with funds to purchase the property.
I obtained a line of credit with TD Canada Trust in the principal amount of $96,000.00 and applied this towards my new home, namely my current address of 6 Florette Place, Brampton, Ontario, L7A 3G5, which I purchased on May 20, 2004. I then had to make a monthly payment of $400.00 per month to pay the interest on this line of credit, notwithstanding the fact that my equity remained in the matrimonial home.
In or about 2005, Granville advised me that he required funds from the matrimonial home to pay debts, and to purchase necessary items to improve and repair the home. Granville specifically advised me of his intent to purchase a new furnace, and to make a number of repairs to the property. A further line of credit of $117,000.00 was taken out with Citifinancial in favour of Granville on May 27, 2009, to assist him in repairing and renovating the home, and purchasing a new furnace.
Notwithstanding his promises to me, Granville paid off only his personal debts with the funds he received from Citifinancial. He did not replace the furnace, nor repair the home, as he had indicated.
Granville moved his adult granddaughter from a prior relationship into the matrimonial home with him.
On April 15, 2011, I received notice that Granville had not been paying the property taxes on the matrimonial home. TD Canada Trust then added the outstanding taxes of approximately $12,000.00 onto my line of credit with that bank, increasing my monthly line of credit payments to $460.00.
In the fall of 2011, I received notice from Citifinancial that the mortgage/line of credit was not being paid on a regular basis by Granville, and the home would be subject to a power of sale by Citifinancial. Granville advised my counsel that he had rectified the situation, and there was no longer an issue with regard to the encumbrance. Contrary to Granville’s statement, in February 2012, I was once again contacted by Citifinancial and advised that the mortgage/line of credit had continued to fall into arrears.
[ 14 ] The wife wants the home sold so both lines of credit can be paid off. She will then be able to open her day care business. The wife is the sole owner on Title and sees no reason why the home should not be sold.
[ 15 ] The net proceeds will be paid into court and the trial judge can then deal with all of the related issues such as occupation rent, contributions to the home, equalization of assets. These are all property issues that will properly be dealt with at trial.
[ 16 ] The husband opposes the sale. He sets out his reasons for doing so in his Affidavit sworn March 26, 2012 at paragraphs 20 to 36. I will not repeat those paragraphs in these reasons. It is clear to me that upon a review of his statements, the matters relating to property are best left for the trial judge. The Affidavits of the parties are conflicting in many areas.
[ 17 ] I am satisfied that the house should be sold. I agree with the wife’s position that the husband has not advanced a realistic position why the house should not be sold. The wife filed a comparable real estate listing showing that a comparable house could sell for $329,000. This would permit payment of the existing lines of credit on the home, with the net proceeds being paid into Court.
[ 18 ] There is considerable conflict in the Affidavits filed by the parties relating to issues surrounding the matrimonial home. In my view those issues can only be resolved at trial.
[ 19 ] Although the husband seeks an order that he be able to buy out the wife’s interest in the home, firstly it is not clear on this evidentiary record what that interest is and whether he would be able to afford it. Again those issues relating to what the equalization numbers are, if any, are trial issues. The wife also argues that with respect to the issue of equalization, the husband will be faced with a limitation defence. The wife submits the husband’s claim is statute barred. Again this is a trial issue.
Fragomeni J.
DATE: April 13, 2012