ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 246/11(Kingston)
DATE: February 22, 2013
BETWEEN:
JULIE ELIZABETH GRASSIE
Mark S. LaFrance, for the Applicant
Applicant
- and -
MATTHEW ALEXANDER GRASSIE
Matthew A. Giesinger, for the Respondent
Respondent
HEARD: October 1, 2, 3, 4, 5, 22, 23, 24, 25, 26, 2012
Trousdale, J.
REASONS FOR JUDGMENT
[1] This was a trial on the issues arising out of the separation of the Applicant wife (“Ms. Grassie”) and the Respondent husband (“Mr. Grassie”) concerning divorce, custody, access, retroactive and ongoing spousal and child support, including the children’s special and extraordinary expenses, ongoing medical and dental coverage, life insurance coverage, equalization of net family property, occupation rent, and prejudgment interest and costs.
[2] At the opening of the trial of this matter, Mr. Grassie brought a motion to amend his pleadings which was granted in part.
BACKGROUND
[3] Mr. Grassie and Ms. Grassie commenced cohabitation in June, 1996 in Petawawa, Ontario.
[4] They were married on September 20, 1997.
[5] They separated on September 22, 2009 after a marriage of 12 years.
[6] There are two children born of their marriage, namely two daughters, who are now age 12 and age 6.
[7] At the date of trial Mr. Grassie was 39 years of age and Ms. Grassie was 38 years old.
[8] Mr. Grassie was a member of the Reserves in the Canadian Forces out of high school. He became a full time member of the Canadian Forces in Petawawa in September, 1995. Shortly after moving to Petawawa, Ms. Grassie was employed full time as a travel agent other than during her maternity leave for the birth of the parties’ first child. The parties resided in Petawawa, Ontario until July, 2002 when Mr. Grassie retired from the Canadian Forces.
[9] In July, 2002, the parties and their daughter moved to the home of Ms. Grassie’s parents in Ennismore, Ontario which is near Peterborough, Ontario. Ms. Grassie wanted to return to live close to her parents.
[10] Mr. Grassie obtained a position as a firefighter with Toronto Fire Service. He attended training at the Toronto Fire Academy for five months. During the training, Mr. Grassie resided with a friend in Oshawa during the week and returned to the home of Ms. Grassie’s parents on the weekends.
[11] Mr. Grassie continued from that time to the present time to work for Toronto Fire Service.
[12] During the marriage, Ms. Grassie worked as a travel agent, a medical clerk, and a personal support worker. She took a maternity leave with the birth of each of the two children. She attended night and/or full-time school during three periods during the marriage to obtain training as a travel consultant, a ward clerk and subsequently as a personal support worker.
[13] The parties resided with Ms. Grassie’s parents until March, 2004 when the parties purchased their matrimonial home located in Peterborough, Ontario. While the parties resided with Ms. Grassie’s parents, most of their expenses were covered by Ms. Grassie’s parents.
[14] On September 22, 2009, Mr. Grassie moved out of the matrimonial home. Ms. Grassie and the two children continued to reside in the matrimonial home. As Mr. Grassie works 24 hour shifts on 8 days each month, he continued to provide childcare when Ms. Grassie was at work. If Mr. Grassie were working, Ms. Grassie’s mother continued to provide child care as she had done in the past.
[15] On March 24, 2010, the parties, without the benefit of legal advice, signed a Separation Agreement which was witnessed. A further Separation Agreement was signed and witnessed on March 31, 2010.
[16] In April, 2010, Ms. Grassie and the two children moved to Kingston, Ontario with the knowledge of Mr. Grassie, as Ms. Grassie wanted the emotional support and assistance of her sister and family who reside in Amherstview nearby Kingston. A move of this nature had been contemplated in the Separation Agreement signed by the parties. Ms. Grassie’s parents moved to Amherstview more recently after the retirement of Ms. Grassie’s father.
[17] The matrimonial home was listed for sale on May 5, 2010 and remained vacant until the closing of the sale on October 8, 2010. The balance of the net proceeds of sale of the home in the sum of $8,608.06 is being held in trust.
[18] Mr. Grassie has the children with him two back-to-back weekends per month in accordance with his work schedule. He also generally has the children with him for one half of holiday periods. Since April, 2010, the parties have exchanged the children at a mall just off Highway 401 at Belleville, Ontario.
ISSUES
[19] The issues before me are as follows:
(1) Divorce;
(2) Custody and access issues;
(3) Equalization of net family property;
(4) Child support, including retroactive child support and Section 7 expenses;
(5) Spousal support, including retroactive spousal support;
(6) Life insurance coverage,
(7) Whether Ms. Grassie should pay occupation rent and whether there should be other adjustments claimed by each party;
(8) Whether private emails by Ms. Grassie should be removed from the Continuing Record; and
(9) Prejudgment interest and costs.
ANALYSIS
DIVORCE
[20] I am satisfied on the evidence before me that a divorce should be granted on the grounds of marriage breakdown, with the divorce to take effect 31 days after the date of the divorce order.
CUSTODY AND ACCESS
[21] Both Counsel advised me at the opening of this trial that the parties agree that there should be an Order for joint custody of the two children with the children to have their primary residence with Ms. Grassie. It was also agreed that Mr. Grassie shall have reasonable, liberal and generous access to the children
[22] Counsel for Ms. Grassie urged the Court in his submissions at the end of trial that even if an order for joint custody is made, Ms. Grassie should have the right to make any decision regarding the children in the event of an impasse between the parties as to what decision should be made. Counsel also submitted that the Court, in its exercise of its parens patriae jurisdiction, might determine that on the evidence heard at this trial, there was so much animosity between the parties that it is in the best interests of the children that joint custody not be ordered even though the parties had agreed to an order for joint custody.
[23] Counsel for Mr. Grassie argued in his closing submissions that Ms. Grassie was trying to obtain an order for sole custody through the back door and that this should not be permitted. Counsel argued that Mr. Grassie would have presented his case differently if he had known that there was no agreement on this issue.
[24] I heard the evidence at trial on the basis that custody was not in issue and that the parties were both in agreement that they would have joint custody of the children with the primary residence of the children to be with Ms. Grassie. I find that it would not be equitable to permit Ms. Grassie to make claims at the close of trial which were contrary to the agreement expressed to the Court at the opening of trial, except in exceptional circumstances, such as detrimental conduct by a parent occurring after the start of the trial, or significant facts unknown at the opening of trial coming to light during the trial. In the case at bar, I do not find that there are exceptional circumstances to justify allowing Ms. Grassie to request a different order than the one she requested and advised was on consent at the opening of trial. I further find on the evidence before me that there is no necessity for the Court to exercise its parens patriae jurisdiction in this case.
[25] In accordance with the prior agreement of the parties, both in their Separation Agreement and at the opening of trial, there shall be an order that the parties shall have joint custody of the two children of the marriage with the primary residence of the children to be with Ms. Grassie. On consent of the parties, there shall be an order that Mr. Grassie shall have reasonable, liberal and generous access to the children as hereinafter set out.
[26] Mr. Grassie receives his schedule for the next year in November of each year. Mr. Grassie shall provide to Ms. Grassie a copy of his annual schedule within 14 days after he receives it. Mr. Grassie’s weekend access shall be arranged for the weekends he is not working from Friday to Sunday at the usual times that the parties have been exchanging the children, and shall include holiday Mondays, holiday Fridays and Professional Development days attached to Mr. Grassie’s weekends. In addition, subject to the parties mutually agreeing to different arrangements in writing, Mr. Grassie shall have the children with him as follows:
(a) one half of the summer school vacation in each year with the dates to be arranged by the parties by May 1 of each year;
(b) one half of the March Break in each year or the whole of March Break in every alternate year if the parties mutually agree, having regard to the parties’ work schedules;
(c) Christmas Eve Day and Christmas Day until 2:00 p.m. in every second year, and Christmas Day from 2:00 p.m. and Boxing Day in every alternating year, and for one half of the balance of the school Christmas vacation in every year, having regard to the parties’ work schedules;
(d) at such other times as the parties mutually agree.
[27] There shall be an order that each party shall ensure that the children have regular generous telephone contact, email access and text access with the other parent when the children are not in the care of that parent.
[28] An order shall be made that Mr. Grassie and Ms. Grassie shall complete travel consent documents required for either party to take a reasonable vacation with the children outside Canada. The parent who is travelling with the children shall provide to the other parent an itinerary of the intended trip including destination, date of arrival, date of return and details as to how the travelling parent and children may be contacted during the vacation.
[29] Mr. Grassie argues that Ms. Grassie does not keep him fully informed regarding the children’s health and dental and extracurricular activities. This is disputed by Ms. Grassie who states that she keeps Mr. Grassie advised by email or texts. Although Mr. Grassie ‘s evidence is that Ms. Grassie did not consult him prior to the older child starting orthodontic work, on the evidence before me, I find that he was advised, and that he failed to respond in a timely and meaningful manner.
[30] On the evidence before me, I find that Ms. Grassie does keep Mr. Grassie advised regarding the children’s health and dental matters, although very occasionally the information regarding appointments has not been provided in as timely a manner as it should have been. I find that Mr. Grassie denied seeing certain documents before trial, such as the recommended treatment report of the orthodontist, even though the report had been attached to Ms. Grassie’s affidavit sworn July 11, 2012. Mr. Grassie testified that he does not like reading paperwork. Mr. Grassie, however, has an obligation to keep himself informed regarding the children by reading the information provided to him by Ms. Grassie. There shall be an order that Ms. Grassie shall keep Mr. Grassie fully informed regarding the health, dental, education, religion, extracurricular activities, and general well-being of the children in a timely manner.
[31] There shall also be an order that Ms. Grassie shall consult with Mr. Grassie prior to making any major decisions regarding the health, dental, education, religion and general well-being of the children. Mr. Grassie shall respond in a timely manner, and the parties shall try to agree on such issues, with such agreement not to be unreasonably withheld.
[32] I find on the evidence that both parties have on occasion spoken negatively of the other (or Mr. Grassie’s partner) to or in front of the children. This is not in the best interests of the children. Accordingly, there shall be an order that neither party shall denigrate the other or the other’s partner or other family members directly to the children, nor in the hearing of the children, nor in anything that is available for the children to read by letter, text or email or otherwise, nor shall they permit anyone else to do so.
[33] Since April, 2010 the exchanges have been taking place at a mall just off Highway 401 at Belleville, Ontario. Mr. Grassie requests an order that the exchanges take place just off Highway 401 at Trenton, Ontario as this is a more equal division of the drive between Amherstview, Ontario where Ms. Grassie lives and Peterborough, Ontario where Mr. Grassie lives. He also wishes the change so that he can go inside the Tim Horton’s at the Trenton location in the event that Ms. Grassie is delayed. He acknowledged in cross-examination that there is a comfort stop at the Belleville exchange location, although it is across the street. Mr. Grassie argues that the exchange at Trenton is only 15.6 kilometers further for Ms. Grassie to travel. Ms. Grassie submits that there is no need to change the present exchange location. She did not however provide any evidence that an exchange at Trenton would involve her doing more than half of the driving.
[34] Where Ms. Grassie chose to move the children away from Peterborough where they had resided and their father continues to reside, I find that Ms. Grassie should be responsible for half of the driving for exchanges of the children. I find that unless the parties otherwise mutually agree in writing, the exchange of the children shall henceforward take place just off the 401 in Trenton, Ontario at the Tim Horton’s as this is a more equal division of the driving between the parties.
[35] There shall be an order that Mr. Grassie’s common law spouse or Mr. Grassie’s father or such other person as the parties mutually agree shall be permitted to do the exchange if Mr. Grassie is not available or able to do so, or if he has just come off a 24 hour shift and is too tired to do so. Similarly, Ms. Grassie’s sister or one or other of her parents, or such other person as the parties mutually agree shall be permitted to do the exchange if Ms. Grassie is not available or able to do the exchange. All adult parties at the exchanges, including the parties, shall be respectful and civil to each other at the exchanges.
(continued verbatim text of the judgment through paragraph [208], exactly as in the HTML source)
February 22, 2013 ________________________
Trousdale, J.
COURT FILE NO.: 246/11
(Kingston)
DATE: February 22, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JULIE ELIZABETH GRASSIE
Applicant
- and –
MATTHEW ALEXANDER GRASSIE
Respondent
REASONS FOR JUDGMENT
Trousdale, J.
Released: February 22, 2013