ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 34263/11

DATE: 2013-02-28

BETWEEN:

CHRISTOPHER ROBERT JARVIS
Applicant

– and –

DELISA JARVIS
Respondent

Jane Alexandra Connon, Counsel for the Applicant

Self-Represented

HEARD: November 19, 20, 22, 23, 26 & 28, 2012 and February 5, 6 & 21, 2013

REASONS FOR JUDGMENT

Gray J.

[1] This trial took nine days. Both parties have urged me to render a decision before the end of this month. Accordingly, my Reasons will be much shorter than they would have been otherwise.

[2] Upon completion of the evidence, it was agreed that both parties would file written submissions on an abridged timetable. I have considered the written submissions, and I have considered the evidence in coming to my conclusions. In the circumstances, however, it will not be possible for me to review the evidence in detail. I will review what I think are the most important facts that give rise to my conclusions.

[3] The most important issues are as follows:

(a) access to the children by the respondent;

(b) child support and s. 7 expenses;

(c) spousal support;

(d) purchase of the matrimonial home by the applicant;

(e) equalization.

[4] Other issues raised by one or both parties include whether the respondent should attend therapy; whether the children should attend counselling; whether the respondent is to be restricted from removing the children from the Province of Ontario; whether the respondent should be required to contribute to carrying costs for the house since she left the house; payment of the applicant’s legal fees incurred to deal with a private criminal complaint laid by the respondent; whether the applicant should be required to attend anger management counselling; and whether the applicant should be required to pay damages to the respondent.

[5] The parties lived together since April 2004, and were married on July 16, 2005. They have two children, Laura, born May 4, 2006, and Joseph, born November 14, 2007. The parties separated in May, 2011.

[6] The onset of the difficulties in the relationship commenced when the respondent’s sister came to live in Canada. From the applicant’s perspective, the respondent became less interested in the marriage, and she started to become less competent as a parent to the children. In part, from the applicant’s perspective, this stemmed from the level of interference by the respondent’s sister, and difficulties with the respondent’s sister’s son.

[7] For sometime after the separation, the parties lived under the same roof in the matrimonial home. After leaving the matrimonial home, the respondent lived in an apartment in Milton. She has now purchased a condominium, which is apparently closing at the end of February, 2013, and she paid a deposit of $18,000.

[8] While the parties were still living under the same roof, the situation became untenable. When the parties spoke to each other at all, they were not civil. At some point, the applicant’s mother came to stay for a short period.

[9] An incident occurred while the parties were living under the same roof, which the respondent alleged was an assault on her. The applicant wanted the respondent to get out of bed and look after the children. When she did not get out of bed fast enough, the applicant went into her bedroom and pulled her out of bed. There is some dispute as to whether the respondent was injured, and if so, to what extent. Photographs were tendered into evidence, which show bruises on the respondent’s arm, and a cut on her toe.

[10] I am satisfied that the respondent was injured as a result of this incident. However, the applicant has tended to downplay and minimize it, and the respondent has exaggerated it. Furthermore, the respondent has characterized the incident as evidence of spousal abuse. She has sought to involve the Children’s Aid Society, the police and others in what she now characterizes as an abusive situation, and she alleges that her son Joseph remains disturbed about the alleged abuse.

[11] I think the applicant, in frustration, pulled the respondent from her bed and she sustained, as a result, bruises on her arms and a cut toe. However, this single incident can hardly be labelled spousal abuse. Nor do I think it is likely that the parties’ son Joseph has become emotionally scarred by this incident, unless, as I suspect, the respondent has continued to plant the seed that what occurred was a serious assault and constitutes spousal abuse.

[12] Subsequently, the respondent laid a private criminal complaint, alleging that the applicant had physically assaulted her. Ultimately, the Crown elected not to proceed with the charge. In the meantime, the applicant incurred over $3,000 in legal expenses.

[13] Sometime after the incident occurred, the applicant advised the respondent that he would install, in the matrimonial home, video cameras so that activities of the parties could be recorded. He wanted this done so that he could be protected from further allegations of assault. He asked for the respondent’s consent to the cameras running only when both parties were in the home. The respondent refused to give any consent, and took the position that the cameras should not be running at all. In the result, the cameras ran 24 hours a day for several weeks, and recorded activities in all common areas of the home, excluding the parties’ own bedrooms and bathrooms.

[14] After reviewing the videotapes, the applicant became concerned about a number of incidents which were alleged to record improper parenting by the respondent. It was suggested that the children were left unattended for long periods, during which they got into mischief and had access to knives, at least one of which was used by one of the children and could have resulted in injury. It was suggested that there were long periods when the respondent was seen talking on her cell phone or doing other things when she should have been looking after the children.

[15] The parties had retained an assessor, Barbara Anderson, to prepare a report respecting custody and access. Ms. Anderson was in the process of finalizing her report, when it became necessary to determine whether excerpts from the videotapes should be given to her so that she could take them into account in writing her report. That issue became the subject of an interim motion, which I heard on January 12, 2012. I ordered that the relevant excerpts be provided to Ms. Anderson so that she could take them into account.

[16] Ms. Anderson’s report was issued on April 23, 2012, and she issued a letter on July 4, 2012, with some corrections. Ms. Anderson took into account the excerpts from the videotapes, which did show some occasions during which the children were left unattended and got into mischief, and occasions when the respondent was less than attentive to her children. In the final analysis, those videotapes did not make a great deal of difference in Ms. Anderson’s report. One issue that was contentious was whether one of the children was playing with a sharp butcher knife, or whether it was, as the respondent argued, a butter knife. Ms. Anderson concluded, after viewing the relevant videotape, that it was a sharp butcher knife. On my review of the videotape, I concur with Ms. Anderson.

[17] Ms. Anderson recommended that sole custody of the children should be with the applicant. She recommended that the applicant communicate to the respondent all pertinent information regarding the children, including the provision of copies of school reports, and medical and educational information. She recommended that the applicant seek input from the respondent regarding decisions for the children when necessary. She recommended that the children’s primary residence be with the applicant.

[18] Ms. Anderson recommended that access take place with the respondent on Mondays and Tuesdays overnight or one evening from after school until the following morning at school, and access on alternate weekends from 9:00 a.m. to 2:00 or 3:00 p.m. on both days. She recommended telephone access daily for both parents. She recommended that each parent have one week of vacation with the children each year and more on agreement. She recommended that major holidays be shared according to work schedules and family events, and that Mother’s Day and Father’s Day be spent with the appropriate parent. Of some significance, she recommended that the children should always be carefully supervised by both parents at all times and never left alone.

[19] Pursuant to an interim order of Hourigan J. dated May 17, 2012, the respondent has been prohibited from attending at the matrimonial home other than to pick up the children for access. She has been given access. She has access with the children every Monday and Tuesday from the end of school or the end of day camp until 7:30 p.m. She has also been given access every other weekend from Saturday at 10:00 a.m. until Sunday at 7:30 p.m. on condition that she keep the children overnight at her condominium in Milton and that she supervise the children at all times.

[20] Hourigan J. also ordered that the applicant be allowed to take the children to his parents’ cottage.

[21] There have been some incidents involving the children while in the care of each parent. On one occasions, Joseph fell off a bicycle while in the care of the respondent, and he broke his arm. On another occasion, he put his hand on the stove while in the respondent’s apartment, and he burned his hand. He was taken to hospital, and it is clear that the respondent tried to minimize the extent of the burn.

[22] On one occasion while Joseph was in the care of the applicant, he fell off his bicycle and suffered a bruise on his hip.

[23] A number of witnesses testified in addition to the parties themselves. It is unnecessary for me to review very much of that evidence.

[24] The parties retained experts who rendered opinions as to the value of the matrimonial home. The applicant’s expert valued the home at $546,500 as of April 27, 2012. He updated the appraisal on September 17, 2012, valuing the home at $555,000. The respondent’s expert valued the home at $608,000 as of September 6, 2012.

[25] Counsel for the applicant sought to attack the qualifications of the respondent’s expert, asserting that he is not a member in good standing of the Appraisal Institute of Canada. It was also submitted that the comparables used by the respondent’s expert were not valid, since they were farther away than the matrimonial home and had features not present in the matrimonial home.

[26] The applicant earned $89,859.10 in 2012. He is employed as an information technology project manager by Maritz Canada. The respondent is employed by Garda Security at the airport, and in 2011 earned $47,301. In 2012, she earned $42,677.10. While the respondent has a fixed schedule, she can adjust her actual work hours by trading shifts with other employees.

Discussion

[27] I will discuss the issues as follows:

(a) Custody

[28] At the outset of trial, the respondent advised me that she was no longer contesting custody. Temporary custody had been awarded to the applicant by Langdon J. on June 28, 2012. Towards the end of the trial, the respondent advised me that she was going to contest custody. She has since denied that she consented to any custodial order in favour of the applicant.

[29] As noted, I am satisfied that the respondent advised me that she was no longer contesting custody at the outset of trial. As a result, counsel for the applicant made strategic decisions about the conduct of the trial and what evidence to call. In my view, the applicant would be prejudiced if the respondent was entitled to now advance a claim for custody that she had abandoned at the outset of trial.

[30] For these reasons, I award custody of the children to the applicant. However, I order the applicant to consult the respondent on issues relating to religion, education and medical care. I require that he furnish her with all documents and any reasonable information in his possession regarding these subjects, and that he sign a consent to the respondent obtaining information from the relevant board of education and school, and medical practitioner regarding the children’s health.

(b) Access

[31] This is one of the most significant issues in the case. The applicant submits that the respondent’s access should be supervised, at least until she takes a parenting course. Furthermore, the applicant resists any overnight access during the week.

[32] Parents are not perfect people. Nevertheless, we rely on them to raise children. Unless there are safety issues, or other serious issues involving the welfare of children, in which case Children’s Aid Societies will become involved, we leave it to parents to raise children. In the case of parents who are separated, Parliament has made it clear that maximum contact with each parent is generally in the best interests of children.

[33] In this context, access to the non-custodial parent is generally to be unsupervised. Supervised access, particularly through an access centre, is a highly artificial way of providing contact with a non-custodial parent and, in my view, is to be saved for specific circumstances.

[34] In V.S.J. v. L.J.G. (2004), 2004 17126 (ON SC), 5 R.F.L. (6th) 319 (Ont. S.C.J.), Blishen J., at para. 138, stated, “Supervised access is seldom viewed as an indefinite order or long-term solution”, and referred to the reasons of Abella J.A. in M.(B.P.) v. M.(B.L.D.E.) (1992), 1992 8642 (ON CA), 42 R.F.L. (3d) 349 (Ont. C.A.), at para. 33:

The purpose of supervised access, far from being a permanent feature of a child’s life, is to provide ‘a temporary and time-limited measure designed to resolve a parental impasse over access. It should not be used... as a long-term remedy’.

See also Merkand v. Merkand, [2006] O.J. No. 528 (C.A.), at para. 3.

[35] I am not persuaded that an order for supervised access is necessary, or in the best interests of the children.

[36] The respondent’s parenting abilities are less than ideal. Her lack of attention to the children, as reflected in the videotapes, is very disturbing. The respondent was frank to acknowledge this during her evidence. She agreed that leaving the children unattended for long periods of time was unacceptable. Even though she took the position that the knife that was being played with by one of the children was a butter knife, she acknowledged that it was very dangerous to allow the children to have access to knives, and there could have been serious consequences.

[37] The respondent took the position in her evidence before me that her conduct as reflected in the videotapes was unusual, and flowed from her emotional state that arose primarily from her reaction to being videotaped. She asserted that she was depressed and upset because she felt she was being spied upon, and that her abilities as a parent were being attacked.

[38] I am not entirely willing to accept the respondent’s explanation for her behaviour as reflected in the videotapes. However, I accept that she has learned a hard lesson, and that the rampant inattention reflected in the tapes is unlikely to be repeated. Furthermore, she is now living in much smaller accommodation, and it is unlikely that the children could as easily be left wholly unattended as they were in the matrimonial home.

[39] I am less concerned about the accidents involving falling off a bicycle and burning a hand on the stove. Children cannot be protected from every eventuality, and they do suffer scrapes and falls. Indeed, Joseph fell off his bicycle while in the care of the applicant. These things happen. I am concerned that the respondent attempted to hide the burn on Joseph’s hand, but there is no doubt that the respondent was terrified that it would be used against her, as indeed it was.

[40] The respondent has had unsupervised access since May, 2012, almost nine months. I am not convinced that it is necessary to change this state of affairs at this point.

[41] The respondent should understand, however, that supervised access can be imposed if there is a change in circumstances. If evidence comes to light that the children are being neglected or harmed as a result of the access arrangements, supervised access may result.

[42] At this point, the respondent only has overnight access every other weekend, and has no overnight access during the week. At this point, I see no compelling need to change this arrangement, but the applicant should understand that more liberal access will be forthcoming in the near future, as it will be in the best interests of the children. While I am not prepared to fix a date when access should be expanded, and more overnight access should be in place, if the parties are unable to agree after a reasonable period of time, say six months to one year, the respondent can bring a motion to request increased access. As noted by the Court of Appeal in Merkand, supra, if the respondent takes appropriate steps, it can result in establishing a material change in circumstances.

[43] I order that if the parties cannot agree on access during Christmas, Easter and Thanksgiving, either party may apply to the Court on short notice. Mother’s Day and Father’s Day shall be spent with the appropriate parent depending on work schedules.

[44] Each parent shall have one week of vacation with the children each year. The applicant may take the children to his parents’ summer cottage for three weeks, and the respondent may arrange visits with the grandparents and she may have telephone access every other day. While not part of the order, the respondent should understand that contact with grandparents to arrange access visits is important, and it is not sufficient to simply show up or leave messages.

[45] The children shall be supervised in a child care setting or by the applicant’s mother during the summer and other school holidays if the parents are unable to take vacation time to care for them.

[46] I am not prepared to order a right of first refusal. If the access parent cannot be with the child during access visits, it is important that the child be in that parent’s “space” during access visits.

(c) Child Support and Section 7 Expenses

[47] It is clear that under the Guidelines, the respondent is required to pay child support. She must pay child support each year, based on her previous year’s income.

[48] The applicant requests that the respondent’s income be imputed at the level of her 2011 earnings. He asserts that the respondent has artificially decreased her earnings, in order to avoid paying the appropriate amount of child support.

[49] I do not agree with this submission. The respondent has not quit her job, and I do not see any particular advantage to her reducing her income by approximately $7,000 per year. I think it is more likely that her decrease in income has been as a result of some shuffling of her schedule to take account of her access periods.

[50] I order that Guideline support be paid based on the respondent’s previous year’s income. For 2013, that means she will pay child support based on her earnings of $42,677.10 in 2012. Thus, effective January 1, 2013, she shall pay child support in the amount of $624 per month. I will make no further retroactive order.

[51] Section 7 expenses shall be shared proportionately between the parties based on each party’s Line 150 income for the previous year. Each party shall provide to the other a copy of his or her income tax return within one week of filing, and a copy of his or her notice of assessment within one week of receipt.

(d) Spousal Support

[52] The respondent, in my view, cannot convincingly make a case for spousal support on any of the prevailing theories, namely, compensatory, non-compensatory, or contractual. She has been employed throughout most of the marriage, and I am not persuaded that she has suffered any detriment as a result of the marriage. She has her own income, and she is able to support herself.

[53] The respondent’s request for spousal support is dismissed.

(e) Equalization

[54] At all relevant times, the applicant has claimed an equalization payment from the respondent in the amount of $75,900. That was reflected on the applicant’s Net Family Property Statement, and through the trial was never disputed.

[55] In reply submissions, the respondent now asserts that from the equalization payment of $75,900, there should be deducted one-half of the equity in a property owned by the applicant at the date of marriage, on the basis of a constructive trust claim that the respondent now wishes to advance.

[56] At the outset of trial, the respondent requested that she be entitled to add the constructive trust claim. I denied that request. In my view, the claim that is now advanced by the respondent is an indirect way of challenging the ruling I made at the outset of trial. I reject that request.

[57] The respondent shall pay an equalization payment of $75,900 to the applicant, which shall be deducted from her share of the matrimonial home.

(f) Purchase of the Respondent’s Interest in the Matrimonial Home

[58] The main issue here is the value to be attributed to the matrimonial home. As noted earlier, both parties retained experts to provide opinions as to the appropriate value.

[59] Any opinion rendered by an appraiser is simply that – an opinion. The only accurate measure of value is what a willing purchaser is prepared to pay to a willing vendor. An opinion rendered by an expert is simply an estimate of what that might be, based on a number of factors, such as location, size of the lot, size and design of the home, features within the home, and the sale price of comparable properties. Disputes usually centre on comparability.

[60] In this case, both experts have focused on homes located fairly near the matrimonial home. Obviously, no property is likely to be identical in all respects to the matrimonial home, and each property looked at had some similarities and some differences as compared to the matrimonial home.

[61] I am not convinced that the lack of membership in the Appraisal Institute of Canada should lessen the value of Mr. Best’s opinion. He has a fair degree of experience in the field.

[62] There may be something in the criticism that Mr. Best looked at homes that were not as close to the matrimonial home, and had some features that the matrimonial home did not have. However, it is also true that the matrimonial home has some features that the comparables looked at by both experts do not have.

[63] In the final analysis, I think it is appropriate to estimate the value of the matrimonial home somewhere between the value estimated by the applicant’s expert, $555,000, and the value estimated by the respondent’s expert of $608,000. I think the figure of $575,000 is reasonable, and that is the figure I will use.

[64] I will do the final calculation of what the applicant owes the respondent after I have dealt with some other issues.

(g) Other Issues

[65] The applicant claims retroactive child support and s. 7 expenses of $2,450 in the case of child support, and $1,116.83 in the case of s. 7 expenses. Without doing the exact arithmetic, these amounts seem reasonable and I will allow them.

[66] The respondent requested that child support be reduced on the ground of undue hardship. This is a difficult case to make out, and I am not convinced that the respondent has done so. This request is rejected.

[67] The applicant requests orders preventing the respondent from removing the children from the Province of Ontario, and from applying for passports for the children for any country.

[68] I am not prepared to prevent the respondent from removing the children from the Province of Ontario. I think it is unlikely that she is going to abscond with the children. However, I require that she notify the applicant if she intends to take the children outside Ontario, and I require that she advise the applicant of the destination, the duration, and where they can be reached.

[69] I see no need for the respondent to apply for any passports for the children, and I order that she not do so. I direct, however, that the applicant furnish the children’s passports to the respondent if she is going to take the children outside Canada.

[70] The applicant requests that the respondent contribute $11,615.40 towards the household expenses and carrying costs from May, 2011 to January, 2013. Without doing the exact arithmetic, that amount seems reasonable, and I will order it.

[71] The respondent requests that the applicant attend an anger management counselling program and a “caring dads” program. I reject this request.

[72] The respondent requests damages from the applicant in the amount of $18,000. To the extent that this is based on the possibility that the respondent would lose her deposit on her new home, I reject this claim. The delays cannot be laid at the feet of the applicant alone. To the extent that her claim relates to any other conduct of the applicant, the claim has simply not been made out.

[73] The applicant requests that costs that have been awarded, in the amount of $11,087.50 be deducted from the amount owing to the respondent for her interest in the matrimonial home. That request is granted.

[74] The applicant requests costs of motions heard on July 12, June 28, and May 17, 2012. The costs of the July 12th and June 28th attendances were reserved to the trial judge. There was no express reservation of the matter heard on May 17, 2012.

[75] While the reservations of costs were not expressed to be in the cause, I am assuming that it was intended that the trial judge take account of the degree of success on the motions having regard to the overall result of the trial. In the two cases where costs were reserved, the result of the motions was clearly in the applicant’s favour, and they set the stage for what ultimately followed at the trial. The applicant should be entitled to a reasonable amount for costs for those two orders, and I will award $10,000.

[76] With respect to the order of Hourigan J. dated May 17, 2012, the motion judge did not expressly deal with costs, and it must be assumed that he awarded none.

[77] The applicant requests costs of a case conference conducted by Justice Murray and a settlement conference conducted by Justice Langdon. In each case, the judge fixed the costs and ordered them in the cause.

[78] There has been mixed success at the trial, and I am not prepared to award costs for those case conferences.

[79] The applicant requests the legal fees charged by the applicant’s criminal lawyer to defend the private criminal complaint.

[80] I am not prepared to find that the laying of the complaint was frivolous. The decision to not proceed was made by the Crown and not by the respondent. I am not prepared to award legal fees for the criminal complaint.

[81] The applicant requests that a notional real estate commission and HST of 2.5% be deducted from the value of the matrimonial home for the purpose of calculating what the applicant will owe the respondent. I see no justification for that request. One of the purposes of agreeing on one party purchasing the other party’s interest, rather than forcing a sale of the property, is to avoid real estate commission. I am not prepared to award this request.

Final Calculation

[82] The calculation of the final amount owing to the respondent by the applicant is as follows:

Value of the matrimonial home $575,000.00

Outstanding mortgage $152,190.77

Mortgage cancellation fees $ 3,980.00

Legal fees on transfer $ 838.80

Total $417,990.43

Divide by 2: $208.995.21

Less equalization payment owed by

respondent: $ 75,900.32

Less costs owed by respondent plus

interest: $ 11,087.50

Less costs of motions heard July 12

and June 28: $ 10,000.00

Less respondent’s share of household

expenses and carrying costs from May

2011 to January, 2013: $ 11,615.40

Less child support arrears: $ 3,450.00

Less s. 7 arrears: $ 1,116.83

Applicant pays respondent: $ 96,825.10

[83] In the result, upon the transfer of the respondent’s interest in the matrimonial home to the applicant, I order that the applicant pay, on the day of closing, the sum of $96,825.10. I order that the respondent deliver on closing all house keys, mailbox key, garage opener and any other accoutrements. Each party shall retain his or her own vehicle and other personal property in his or her possession.

[84] The parties shall sign all documentation required to effect the transfer of title.

[85] I will entertain written submissions with respect to costs, not to exceed 5 pages together with a bill of costs. Ms. Connon shall have 5 days and Ms. Jarvis an additional 5 days. Ms. Connon shall have 3 days to reply.

GRAY J.

Released: February 28, 2013

COURT FILE NO.: 34263/11

DATE: 2013-02-28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTOPHER ROBERT JARVIS
Applicant

– and –

DELISA JARVIS
Respondent

REASONS FOR JUDGMENT

GRAY J.

Released: February 28, 2013