COURT FILE NO.: FC-11-111

DATE: 20130307

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Tracy Kim Holden
Applicant

– and –

Paul Joseph Gagne
Respondent

Rodney B. Cross, for the Applicant
Self Represented

HEARD: October 1, 2, 3, 4, 5, and 9, 2012

AMENDED REASONS FOR JUDGMENT

This is an Amendment to the Reasons for Judgment originally released March 7, 2013. The Amendment occurs in the Style of Cause by removing “Her Majesty the Queen” and in the name of the Defendant in the Citation. Also the Schedule “A” referred to in para. 114 is attached.

Mr. Justice Timothy Minnema

REASONS FOR JUDGMENT

[1] This was a trial where the applicant wife was seeking equalization and ownership of property, exclusive possession of the matrimonial home, child support, and damages for spousal assault as well as a restraining order. The respondent husband was seeking equalization and sale of property and spousal support. The husband represented himself at trial.

Issues

[2] After the summary of background facts below, the issues raised by the parties were examined using the following outline:

Issue One: Property Orders

Equalization Payment
Determination of Disputed Valuation Date
Assets on Valuation Date
Bedrock Kennels and Trades Ltd.
3904 March Road
Gore Street
Brock Street
Miscellaneous Property
Summary – Assets
Debts on Valuation Date
Date of Marriage Deductions
Post-Separation Facts
Costa Rica
Septic System
Brock Street – Unequal Division – s. 5(6)
Dividends
Equalization Payment
Powers of the Court
Vesting Orders
Exclusive Possession
Sale of Assets
Right to Dividends
Summary – Property Orders

Issue Two: Spousal Support Claimed by the Respondent

Issue Three: Child Support Sought by the Applicant

Issue Four: Damages for Assault Claimed by the Applicant.

Limitation Period
Facts
Law
Analysis

Issue Five: Restraining Order Claimed by the Applicant.

Background Facts

[3] Prior to the marriage between Mr. Gagne and Ms. Holden, Mr. Gagne had been cohabiting with his previous common-law partner Delphi McIvor on a farm at 3904 March Road, in Carp, Ontario. Mr. Gagne described the property as a “dump” when he moved in around 1986 and indicated that he worked hard on fixing it up. He is a handy-man and a painter. The property was registered in Ms. McIvor’s name but Mr. Gagne had a fifty-two percent interest that she held in trust for him pursuant to their Cohabitation Agreement.

[4] Mr. Gagne and Ms. McIvor separated, and around 1988 the applicant Ms. Holden began living on the property with Mr. Gagne. Mr. Gagne and Ms. Holden worked for a post-office sorting and delivering mail by vehicle to rural routes. In addition they opened a business boarding dogs on the March Road property in 1990.

[5] They married on July 31, 1990.

[6] Following Mr. Gagne’s settlement with Ms. McIvor, the legal ownership of the March Road property was transferred into the names of both the parties in this application as joint tenants in 1991.

[7] On October 17, 1991, the parties incorporated a company called Bedrock Kennels and Trades Ltd. with Mr. Gagne as the Director and President. Although no share registry was produced, there was no dispute that Mr. Gagne and Ms. Holden were and are equal shareholders.

[8] On November 14, 1991, their only child together, Katie May Gagne, was born.

[9] Shortly afterwards, on December 31, 1991, Mr. Gagne resigned as Director and President of Bedrock Kennels and Trades Ltd. and Ms. Holden took over those positions.

[10] The parties continued doing their mail routes, developed the kennel business, and raised their young child. It is not clear when, but sometime after the year 2000 they discontinued working for the post-office.

[11] Regarding Bedrock Kennels and Trades Ltd., the corporate name reflects the two aspects of business. For the first five years up until about 1995 the parties ran the kennels together, with Mr. Gagne taking on less of a role as time went on. By 1996 the day-to-day operations became Ms. Holden’s sole responsibility. Ms. Holden was loath to admit Mr. Gagne’s role; initially in chief, she asserted that he was never involved with the kennels. However, later in cross-examination she conceded that he was involved up until 1995. It was also clear that Mr. Gagne continued to be involved indirectly after 1995 maintaining and improving the facilities, namely the kennels and grounds. He was proud of this and indicated that it was, and still is, the best business of its kind in the Ottawa area both in terms of the facilities and the services offered.

[12] The second aspect of the corporation was the ‘Trades’ part, reflecting Mr. Gagne’s work away from the kennel operation. While the kennel was a modest but successful and steady source of revenue, Mr. Gagne’s success working in the ‘Trades’ was less clear. There was little evidence regarding the revenue generated by the parties or the company between 1996 and 2007. Generally, Ms. Holden claims that over this time she solidified her management and complete control over the kennel operation, and was finding that Mr. Gagne was doing little to contribute the household revenue. Mr. Gagne claims that he kept the premises in tip-top shape, making these kennels a premium operation, as well as doing odd jobs. He described the property including the home, land, kennels, and outbuildings including one residential rental unit, as the ‘empire’ he created.

[13] Ms. Holden was in charge of the family finances and had the associated stresses. For the most part she operated all the home and company finances out of the bank account of Bedrock Kennels and Trades Ltd. As for Mr. Gagne he would bill most of his expenses both business and personal to his credit cards and Ms. Holden would pay these out of the Bedrock Kennels bank account.

[14] Ms. Holden indicated that there was trouble in the marriage right from the start with respect to Mr. Gagne being abusive to her. She said that he slapped her on their wedding night because he thought she was looking at another man. She started divorce proceeding in 1999 prior to which she and Katie spent some time in a women’s shelter. Interim court orders were obtained, including an order granting her interim exclusive possession of the matrimonial home. Subsequently the parties reconciled and the application was withdrawn. Ms. Holden stated that Mr. Gagne “head butted” her in 2001 during an altercation.

[15] In 2003, Mr. Gagne was charged for three counts of assault on Ms. Holden pursuant to the Criminal Code, R.S.C. 1985, c.C-46, alleged to have occurred over a sixteen day period in May and June of that year. Ms. Holden in her evidence was not sure what happened with these charges, as there was no trial and she did not have proof of any conviction. Mr. Gagne admitted that he pled guilty with respect to the assault that occurred on May 30, 2003. The parties had been arguing about money previously, Mr. Gagne grabbed Ms. Holden by the throat and banged her head against the refrigerator four or five times, and she defended herself by scratching his face causing him to bleed. Mr. Gagne reasoned that this was not reflected on his criminal record because he obtained an absolute discharge.

[16] In February of 2007 the parties purchased a rental property at 33-37 Gore Street in Perth, Ontario, as joint tenants. It was in bad shape, had a number of rental units, and the idea was for Mr. Gagne to renovate the property. A mortgage was put on the matrimonial home as part of the financing. Another house was purchased on Brock Street in Perth in May of 2007. Mr. Gagne located a company to finance that purchase but it was necessary that the Brock Street property and mortgage be put in Ms. Holden’s sole name.

[17] Ms. Holden indicated that both properties were part of Mr. Gagne’s ‘Perth Project’. She said she had no hands-on involvement with either property until recently when the tenants in the Brock Street house moved out. She indicated that these properties were purchased for Mr. Gagne to fix up and move into so that he could “move on”. As a slight variation, she also suggested that this project was supposed to be for one year after which it would be sold and Mr. Gagne would “move on.” She said the reason she bought the second property in Perth, namely the house on Brock Street, was because she wanted Mr. Gagne out of her hair, although it is noted that he was already committed to Gore Street at that time. Despite her assertions about wanting him to move on, there was no evidence of any discussions about separation when these properties were acquired.

[18] As noted, the location of the matrimonial home, March Road, is in Carp, Ontario, which is roughly a half hour’s drive west from central Ottawa. The town of Perth is approximately a one hour drive hour south of Carp. Mr. Gagne was not home often during the spring and summer in 2007, staying in different apartments while working on both properties.

[19] Ms. Holden indicated that she advised Mr. Gagne in September 2007 that she wanted to separate. She maintains that this is the date of separation for equalization purposes pursuant to the Family Law Act, R.S.O. 1990, c.F.3. She said that by September of 2007 she was at her “wit’s end” as Mr. Gagne was overspending and because he was charged with harassment regarding a tenant. However, she still paid his credit cards through the company after that date, and as well as represented him on the harassment charges before the landlord/tenant tribunal.

[20] Shortly after telling Mr. Gagne in September 2007 that she wanted to separate, Ms. Holden advised Mr. Gagne at a Tim Horton’s on November 28, 2007 that she was seeing a Mr. Allen Sloan. Mr. Sloan was present for this announcement. This was very upsetting for Mr. Gagne. When Ms. Holden and Mr. Sloan left the coffee shop, Mr. Gagne followed them and banged his car into the one that they were driving. He was charged with dangerous driving and criminal harassment. On March 25, 2008, he pled guilty to the latter charge, and received a suspended sentence and 18 months of probation.

... (continues verbatim through all paragraphs)

Mr. Justice Timothy Minnema

Released: 2013/03/07

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

TRACY KIM HOLDEN

Applicant

– and –

PAUL JOSEPH GAGNE

Respondent

REASONS FOR JUDGMENT

Mr. Justice Timothy Minnema

Released: 2013/03/07