SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-11-1649-00
DATE: 20130306

RE: NICOLE ROBERTA LOWRY

AND:

IAN ROBERT GEORGE LOWRY

BEFORE: THE HON. MADAM JUSTICE L.M. OLAH

COUNSEL:
Trevor B. Owen, for the Applicant

Shawna N. Downey, for the Respondent

HEARD: March 05 2013

ENDORSEMENT

Issues

[1] The applicant brings a motion that her name be added to the house/contents insurance policy. She seeks to have equal authority to authorize the insurance company to deal with the issues associated with the maintenance and cleaning / repair of the matrimonial home including the removal of items damaged by water or cleaning; and she seeks that costs associated with the cleaning, repair or destruction of household items be apportioned later by agreement or court order;

[2] In the event she is not granted exclusive possession of the Matrimonial home, she seeks interim child and spousal support.

[3] On the other hand, the respondent requests an order for exclusive possession of the matrimonial home as well as its contents until sold or transferred; an order granting the respondent access to the matrimonial to attend with a real estate appraiser to assess the value of the matrimonial home; an order to strike the second last sentence of paragraph 3 and the last sentence of paragraph 20 of the applicant’s affidavit.

Background

[4] The parties were married in June 26, 2010 and separated on November 1, 2011. There is one child of the marriage, born after the separation in March, 2012. In addition, the respondent has two children from a previous relationship for whom he pays $822 per month in child support, and, the applicant has two children from two previous relationships for one of whom she receives child support.

[5] The respondent entered into an agreement of purchase and sale to purchase the home located at 19 LaMonte Creek Drive, Wasaga Beach, shortly before the marriage but the purchase did not close until after the marriage. Prior to the purchase of the Wasaga Beach property, the respondent owned a property( not a matrimonial home) at the date of marriage and the net proceeds of sale in the amount of approximately $120,000 were applied to the down payment of the Wasaga Beach property.

[6] The respondent has had limited access to the matrimonial home since separation.

[7] On or about January 29, 2013, as a result of a sump pump failure, resulting water issues occurred at the Wasaga Beach property occupied by the Applicant, the children and four cats. The respondent was informed of the issues on January 31, 2013. The Insurer’s report dated February 12, 2013 indicates the loss occurred on January 30, 2013. Within 24 hours of being notified by the applicant, the insurance company attended at the matrimonial home and emergency services were completed on February 4, 2013. The respondent authorized the insurance adjuster and the insurance company to speak to the applicant and provided them with her telephone number so that they could directly arranged with her their attendance at the matrimonial home regarding the claim.

[8] The applicant has acknowledged communicating with the insurance company and all communication from the insurance company has been sent to both the applicant and the respondent.

[9] The applicant’s contents claim is in the process of being assessed in that there are many items that have been affected by the water damage. Unfortunately, the emergency and priority repairs/remediation may exhaust or exceed the maximum coverage allowed under the insurance policy; and, the insurance company continues to determine if it will cover the contents claim given the insufficiency of the policy funds.

Insurance Policy

[10] The applicant does not have an interest in the matrimonial home, other than rights to possession of the claim for equalization of net family property. Although notionally, should exclusive possession be granted to the applicant, there may be a contingent interest in the dealing with the insurer. However given the respondent’s obligations are to the lender, the home insurer and given the financial difficulties experienced by both the applicant and the respondent, I am not convinced that it would be appropriate to transfer the insurance or to give the applicant the authority to authorize insurance company to remove the household contents for cleaning or destruction, especially given the fact that the respondent has authorized the insurance companies to remediate to the maximum of the coverage.

[11] To authorize work outside the scope of the current insurance policy would result in excessive costs to both the applicant and the respondent. This is especially so, given that the value of the used contents stored in the basement of the matrimonial home will have to be included in the calculation of the Net family Property for equalization purposes.

[12] Further, given the inability of both parties to provide an estimate of the equalization payment, or even an estimate of the value of the damaged property, it would be premature to compel the remediation/destruction of the damaged furniture/personal property and assign responsibility for payment presently or in the future.

[13] Order to go: The respondent having agreed to remove the damaged contents himself, will do so, at his own expense, after the insurer has confirmed the extent of its obligation to remove/replace, and, after the Applicant has identified the damaged items to be removed.

[14] Order to go: The applicant’s claims in paragraph 1 about are dismissed.

Exclusive Possession of the Matrimonial Home

[15] With respect to the exclusive possession of the matrimonial home, there is no evidence of the children’s significant connection to the home. The Mother and children have been in possession of the property for 16 months, the duration of the marriage, and the Applicant has not addressed her mind to the possibility of a relocation. This is especially problematic, given the fact that her counsel advised the Court that the Applicant had received a retroactive lump sum of $7000 just 2 days ago for her Child tax credit benefits, enabling her to pay for first and last month’s rent and relocation.

[16] With respect to housing, the father, too, has acted in a problematic manner, in that, he removed the Applicant and the children as dependants with the Department of National Defense, such that he may prejudiced the Applicant’s opportunity to request PMQ housing for the Applicant and the children pending the determination of all outstanding issues between the parties.

[17] At this stage of the proceedings, neither party can really afford to pay an equalization payment given the Respondent’s extensive debts: Realty Tax Arrears ( 2+ years), Child Support Arrears ( Alberta), Visa debts, utility payment arrears. Although, the respondent opines that he may refinance all his debts, at this point, such suggestion is highly speculative.

[18] Nevertheless, neither party requested the sale of the matrimonial home nor, at this stage, neither party can establish that I have the jurisdiction to order a sale of the matrimonial home

[19] At Paragraph 24 the Family Law Act states as follows:

Regardless of the ownership of the matrimonial home and its contents, and despite section 19 (Spouse’s Right of Possession) the court may on application, by order,

(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;

(b) direct that one spouse be given exclusive possession of the matrimonial home, or part of it, for the period that the court directs and release other property that is a matrimonial from the application of this part.”

[20] Apparently the respondent’s temporary housing will end in August 2013

[21] Apparently, the applicant wishes to rent out the premises to a tenant, and/or operate a day care centre out of the home, and/or attend upgrading at Georgian College. Certainly, the first 2 options would put the Respondent owner at risk, as such actions would prejudice a possible sale; and, run him afoul of the Insurer’s and mortgagor’s requirements.

[22] In light of the fact that the Applicant is in receipt of sufficient funds to finance the first and last month’s rent and relocation costs; and, in light of the fact that at least one of the children attend school on a full-time basis, I make the following order:

(1) The Applicant shall deliver up exclusive possession to the husband of the matrimonial home and vacate same on or before May 5, 2013 – the sooner, the better.

(2) Within the week, after the insurer has identified exactly what is left to be replaced/destroyed by the insurer, and, after the Applicant has identified the objects she will retain, the respondent shall have access to the matrimonial home and its contents to remove/destroy the damaged personal property, at his expense.

(3) After the above removal/destruction and clean up, the respondent and real estate agent shall have access to the matrimonial home, on notice to the Applicant and her counsel, for the purpose of valuing of the property.

(4) Forthwith, the respondent shall make application to his commanding officer/DND, and on notice to the Applicant, to request PMQ quarters in Simcoe County to be made available for the Applicant and the children. If same are available, she is to forthwith notify the Respondent and his commanding Officer whether she will accept such PMQ or whether she will rent out other accommodations.

Child and Spousal support

[23] Order to go as follows:

(1) Upon the wife’s departure from the matrimonial home, on written notice to the respondent, the respondent is to pay child support based on his income of $61,675, for one child, the monthly sum of $561, commencing on the first day of the month subsequent to the Applicant’s vacating the matrimonial home.

(2) Upon the wife’s departure from the matrimonial home, on written notice to the respondent, the respondent is to pay spousal support, the monthly sum of $158, commencing on the first day of the month subsequent to the Applicant’s vacating the matrimonial home.

(3) As there is widely conflicting evidence, untested by examinations, the issue with respect to the respondent’s responsibility to pay child support for the Applicant’s 2 children, the respondent’s alleged step- children, is adjourned sine die, returnable on 7 days notice, after examinations on the issue.

(4) Support Deduction Order to issue.

Custody and Access

[24] The Applicant also sought custody of the child of the marriage, approximately 1 year old, whom she breast feeds. She intends to breast feed until age 2; however, she has commenced expressing the breast milk, such that the she can commence bottle feeding the child and commence weaning the child gradually off breast milk.

[25] Ultimately, the Applicant wishes to relocate to Alberta where her family supports are located. Also, the respondent’s early affidavits reciting the Applicants’ comments that she will be remarrying shortly, have not been rebutted, which underscores her intent to relocate.

[26] Nevertheless, there is little evidence, at this stage of the proceedings to properly address the best interests of the child. Accordingly, I adjourn this aspect of the Applicant’s motion, sine die, returnable on 14 days notice, after the examinations occur.

[27] As I have not addressed the issues of custody and access, and given the Mother’s stated wish to relocate, and yet, not disrupt the oldest child’s education, I order that neither party remove the child of the marriage from this jurisdiction pending further order of the court.

Costs

[28] Pursuant to Rule 24, the Respondent has been successful in obtaining possession of the matrimonial home, albeit within 60 days; access to the home for valuation purposes, and the insurance policy remains in his name. He was not successful with respect to child and spousal support. Having been successful on 2/3s of the issues, costs are fixed at $2700, inclusive of HST and disbursements and payable by the Applicant to the Respondent as a credit to either the Net Equalization owing by the respondent to the Applicant, or as a credit to any spousal support owing by the respondent to the Applicant.

L.M.Olah

DATE: March 6, 2013