SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO: 4271/11
DATE: 2012-10-25

RE: TINA LOUISE CARSON, Applicant

AND:

NEIL LAMONT CARSON, Respondent

BEFORE: MURRAY J.

COUNSEL:
Ann L. Stoner, Counsel for the Applicant
Nida Hussain, Counsel for the Respondent

HEARD: October 24, 2012

ENDORSEMENT

[ 1 ] The parties were married in July of 1987. They have lived separate and apart since July, 2011. The respondent left the matrimonial home in March, 2012. There are two children of the marriage, Courtney may Carson, born October 21, 1996 and Mackenzie Ann Carson born on May 16, 2001. Courtney is in grade 11 at Robert Bateman High School and Mackenzie is in grade 7 at Clarksdale Public School.

[ 2 ] In this motion, the respondent sought an order for immediate partition and sale of the matrimonial home municipally known as 3093 autumn Hill Crescent, Burlington. The applicant in her motion sought orders for exclusive possession of the matrimonial home, an order that the matrimonial home to be listed for sale no earlier than spring, 2013, and a restraining order against the respondent.

[ 3 ] There is no dispute between the parties that the applicant is to have exclusive possession of the matrimonial home pending sale. When this concession was made by the respondent at the outset of the hearing of the motion, the applicant indicated that she no longer required a restraining order.

[ 4 ] The respondent Neil Lamont Carson is in agreement that the house should be sold but he wishes the house to be listed for sale immediately. Both parties are in agreement that the house must be sold. The dispute relates to when the house should be put on the market.

[ 5 ] The parties are in agreement that the listing agent will be Barbara Beers and that the listing price will be established by Ms. Beers in accordance with prevailing market conditions. Both parties agree to co-operate with Ms. Beers with respect to the listing and the sale of the matrimonial home.

The Position of the Applicant

[ 6 ] The applicant wishes to defer listing the home until spring which will allow the two children to finish this current school year without being required to move from their current schools. In her affidavit material, the reasons for wishing to defer listing and sale of the matrimonial home are summarized in one sentence of her affidavit as follows: "The girls have had a very traumatic year as a result of the respondent's behaviour as set out in further detail below, and I don't want to have them leave their home which has given them some sense of security until the end of the coming school year."

[ 7 ] There is no evidence before this court that the children have special needs that are being met in their current school environment or that they are involved in any school-related extracurricular activities that ought not to be disrupted. Neither is there any evidence that the sale of the house will require the applicant to move out of the children’s current school district.

[ 8 ] The applicant concedes that she is experiencing financial difficulties, particularly given the carrying costs of the matrimonial home, according to her, have been to a large extent her burden for the last six months. Her annual income is approximately $29,000 per year.

The Position of the Respondent

[ 9 ] The respondent has recently sustained a reduction in pay with his employer. He is up to date in child support payments based on his current income of approximately $44,000.

[ 10 ] The respondent is currently renting one bedroom in a residential home. He has no facilities to be able to have his two daughters stay overnight or on weekends as there is no separate place for them to sleep. Also, his rotating schedule makes arranging access with his children difficult as does the distance between Guelph and Burlington.

[ 11 ] The respondent has made some payments towards expenses related to the matrimonial home.

[ 12 ] At the moment, neither party is willing or able to buy out the other’s interest in the matrimonial home, the principal asset.

[ 13 ] As of the date of separation, there was approximately $230,000 in equity in the matrimonial home. There is also joint indebtedness of approximately $46,000. Each party therefore will be entitled to a substantial payment when the home is sold.

[ 14 ] Since separation, the joint line of credit has increased significantly. He has excessive credit card debt as well.

[ 15 ] The respondent’s position is quite simply that he needs his share of the sale proceeds in order to staunch the flow of growing indebtedness and to be able to obtain accommodation which has a facility for his children to visit him on overnight access.

[ 16 ] It is the respondent's opinion that the applicant could arrange alternate accommodations near the children’s current schools including, perhaps on a temporary basis, living in her mother's house who lives alone close by in a three-bedroom home.

Analysis

[ 17 ] It is apparent that the respondent is in difficult financial circumstances, as is the applicant. The respondent understandably finds it difficult to pay rent, to continue making contributions to the matrimonial home and to provide child support at the same time. Proceeds from the sale of the matrimonial home would be of immediate assistance to him.

[ 18 ] It is also apparent to both parties that the house needs to be sold. Both parties want the house sold. As indicated above, it is merely a question of timing.

[ 19 ] Common sense says that moving out of the school district during the course of the school year may have disruptive effects on the children. Teachers, friends and routine all would be disrupted if a move out of the school district was to occur in mid-school year. On the other hand, it is in the childrens’ best interest to have overnight access with the father. In the current circumstances this is not practical.

[ 20 ] There is no evidence that the children will be adversely affected by the sale of the matrimonial home. Firstly, it is not clear that a move away from the school district would prevent Courtney and Mackenzie from completing the school year in their current schools even if travel arrangements had to be made to transport them from another school district back to their current schools. Secondly, there is no evidence that the applicant mother would be unable to arrange housing in the existing school district from the date of sale to the end of the school year either on a temporary or permanent basis if the house is sold before the end of the school year. Although one cannot assume that the applicant’s mother who lives alone in a three-bedroom house nearby the matrimonial home would welcome her daughter and two children for any period of time, one cannot assume that such arrangements would be out of the question either. Thirdly, there is no evidence that the children have any special needs or involved in any extracurricular or other school-related activities that require continuity in their current schools if one assumes that a move might require transfer to other schools in mid-term. Finally, there is no evidence that Courtney and Mackenzie would be adversely affected by such a move if it were necessary, although, as indicated above, I am prepared to assume that moving out of a school district during the course of a term will have some disruptive effects on the children.

[ 21 ] I am aware that there are cases which have maintained the right of a party to continue living in the matrimonial home until completion of the school year. For example, the case of Griffore v. Adsett , 2001 28207 (ON SC) , 18 RFL(5 th )63 , where a court determined that the best interests of the children would be to remain in the matrimonial home with their father until the children completed high school. There was evidence in that case that the father would be unable to afford alternate accommodation in the neighbourhood for the children. In addition, there was evidence that the children were involved in tutoring and there was evidence that one child’s academic performance would likely be adversely affected by a move. Finally, there was a marriage contract (the validity of which was disputed) which provided that in the event of separation, the applicant mother would vacate the premises.

[ 22 ] Other cases, for example, Coffey v. Coffey , [2007] O.J. No. 5139 , 163 A.C.W.S. (3d) 799 have been decided differently. In that case, the court decided in paragraph 29 as follows:

Although it might be preferable for the children to remain in the matrimonial home at this time the evidence falls short of establishing that a move from the home would cause them any harm beyond the usual disruption that can be anticipated whenever a family, for whatever reason, is required to move. I do not see that the current and continuing well being of the children depends, in any substantial way, on them remaining in the matrimonial home.

[ 23 ] I find this case is analogous to the case of Coffey v. Coffey. Like Justice Haines in Coffey , I do not see that the current and continuing well-being of the children depends in any substantial way on them remaining in the matrimonial home.

Disposition

[ 24 ] Therefore, there will be an order requiring the matrimonial home to be listed for sale immediately. This order does not preclude either party from making the necessary arrangements to purchase the other party’s interest.

[ 25 ] There will be an order that the listing agent will be Ms. Barbara Beers and that the listing price will be established by Ms. Beers in accordance with prevailing market conditions. Furthermore, both parties will co-operate with Ms. Beers with respect to the listing and the sale of the matrimonial home.

Costs

[ 26 ] Within 10 days of the date of this decision, the applicant may make brief written submissions with regard to costs if costs cannot be agreed upon. The respondent shall have a further 10 days within which to provide responding submissions.

MURRAY J.

Date: October 25, 2012