ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: D 734/11
DATE: 2013-03-20
B E T W E E N:
ANTONIETTA LISA DE ANGELIS
R.A. Otto, for the Applicant
Applicant
- and -
DAVID ANTHONY ZANIN
R. DiGregorio, for the Respondent
Defendant
HEARD: February 4, 5, 5, 2013
REASONS FOR JUDGMENT
PARAYESKI, J.
[1] The parties were married on May 8th, 2004. Together, they have one child, Nicholas Anthony Zanin, who was born on June 8th, 2006. They separated on September 22nd, 2010, and lived apart in the matrimonial home until the respondent father left permanently in December of that year.
[2] To their considerable credit, the parties have been able to resolve a goodly number of the issues raised by the litigation between them. Complete resolution was not reached, however, and a trial ensued. I propose to address the issues requiring adjudication under broad headings.
CUSTODY
[3] The parties agree that the applicant shall have custody of the child of the marriage. There is no reason to interfere with that mutual decision.
[4] Under the rubric of custody, the respondent father asks for written notice regarding major decisions relating to Nicholas, including his education and medical care, et cetera. That request, phrased in that way, is most unusual. I am not prepared to order it, notwithstanding the apparent problem the parties have in communicating with one another even on issues having to do with their son.
ACCESS
[5] The parties agree on the basic notion of access, but not upon all of its details. They both recognize that access is crucial to their son having an ongoing relationship with his father, and both see cultivating that relationship as very important.
[6] At the risk of oversimplification, the mother’s expressed concerns regarding access may be listed as follows:
Drop-off after weekend access;
Pick-up and drop-off times mid-week;
Easter, March Break and summer access;
Where overnight access is to be exercised (at least initially); and
Notice regarding missed access.
[7] I shall address these concerns separately, using the same numbering system.
- The applicant mother prefers that Nicholas be dropped off by the respondent father at 8:00 p.m. on Sunday after weekend access (with adjustment for long weekends). The father wishes to drop Nicholas off at school on the first day of classes after weekend access. The mother feels that her proposal would be less disruptive to Nicholas, and that it would address her concerns over the father having to rush to accommodate drop-off at school and his getting to work out of town on a timely basis. The father says that he has sufficient flexibility in his work-time commitments to do what he proposes without difficulty. He does admit that he does not yet have enough seniority to dictate his work schedule, but does not anticipate a practical problem.
I see no real detriment to Nicholas flowing from the father’s proposal. I see, in that proposal, the benefit of an increase in meaningful time between the father and the son. Access means more than fun times. It also means hurried breakfasts and juggling time together. If the father is late for work, he will have to deal with the consequences thereof.
- The mother proposes mid-week access each Tuesday from 6:30 p.m. to 8:00 p.m. The father proposes that mid-week access take place on one of Tuesday, Wednesday or Thursday from 6:15 p.m. until drop-off at school the next day. Alternatively, the father proposes 6:15 to 8:30 p.m. on both of Tuesday and Thursday.
As I understand it, the mother’s proposal more or less mirrors the status quo, save that she wishes an earlier drop-off time to permit her to get Nicholas ready for bed on a timely basis. The father wishes to extend mid-week access to overnight or to effectively double his mid-week times if a overnight stay is not permitted.
I see the father’s proposal as going too far too quickly, especially in light of my ruling concerning increased weekend access. That said, an 8:30 p.m. drop-off mid-week is not too late. The mother’s attempt to claw back a few minutes mid-week from the status quo has more to do with her wish to be in control of access than it does with bedtime. She must learn that access has far more to do with Nicholas than it does with her. The same applies to her position on pick-up times for mid-week access.
There have been occasions when the father has been late in picking up Nicholas for mid-week access. The mother wishes to be at liberty to declare the father’s access “abandoned” in the event that he is more than 30 minutes late arriving to pick up Nicholas. Obviously, the mother and child should not have to wait around for the father to show up late. On the other hand, the father does work out of town, and cannot control factors such as traffic. Plainly, he should telephone when he is going to be late, and is obligated to explain his lateness to the son as well as to the mother. I make no order on this sub-issue.
Mid-week access will take place on Tuesday evenings from 6:15 to 8:30 p.m.
- With respect to Easter, the mother proposes access on Easter Saturday only from 9:00 a.m. to 10:00 p.m. The father proposes access from 10:00 a.m. on Good Friday to 10:00 p.m. on Easter Saturday. Given that Easter is now celebrated as a four day event, the father’s proposal is significantly more reasonable than that of the mother, and I order that his proposal be followed.
Similarly, the father’s proposals regarding Canada Day, Labour Day, Victoria Day, and the August civic holiday (the minutiae of which I will not spell out), are reasonable, and will be followed. Details are to be found in the father’s draft order, terms as exchanged and provided to me post-trial.
Regarding March break, the father suggests that there be an additional day during that time period from 9:00 a.m. to 10:00 p.m., unless one parent has planned a vacation away, with the mother’s potential March break vacation taking place in even numbered years and the father’s in odd numbered years, all with 30 days written notice.
The mother’s proposal is similar, save that does not address which parent’s vacation plans are to have priority. The father’s proposal is more reasonable and realistic, save that 60 days notice is fairer.
As for the summer holiday, during which the mother who works as a teacher is at home, the father proposes three weeks of access, with two weeks being consecutive. Further, he proposes that Nicholas be with the mother on the weekend between the consecutive weeks unless he and Nicholas are away on vacation. The father agrees to give written notice of his chosen weeks by May 1st of each year.
The mother resists consecutive weeks except, it appears, in cases of planned trips away, and wants to suspend otherwise scheduled access upon giving notice of her wish to have two exclusive non-consecutive weeks with Nicholas.
Given that the mother will be at home during the entire summer, the father’s proposal is more appropriate. That is the schedule that will be followed.
- When the father first left the matrimonial home, he appears to have delayed telling the mother where he was living. He acknowledged that his first apartment after leaving was not suitable for overnight access visits. Since then, he has rented a furnished apartment in a home near Nicholas’ school. Very reasonably, he is prepared to address the mother’s expressed concern regarding the suitability of the new apartment for such purposes by allowing her to visit it within 30 days to permit her to identify reasonable problems. He proposes that the parties then return to court if they cannot resolve any of those problems. The mother asks that overnight access be exercised at the home of the father’s parents or his sister until such time as she approves of his own residence, with such approval not to be unreasonably withheld.
The father’s proposal is vastly more accommodating than anything I would have ordered had he opposed the mother’s inspection of his home. Once again, she needs to learn that her desire to control the situation is not paramount. I am prepared to make the order that the father requests.
- Closely related to the issue on notice for late arrival concerning access is that of notice by the father should he not attend access. The mother wants 48 hours advance notice by telephone in the event that the father will not be exercising any scheduled access. The father addresses only mid-week access under this topic, and he asks that he be obliged to provide at least eight hours notice when access is to be rescheduled. The mother does not address rescheduling at all.
The father shall provide 24 hours notice by telephone of his not exercising any upcoming scheduled access. If he provides such notice, the access is to be rescheduled. If he provides less notice, no rescheduling is necessary.
[8] The parties seek an order that they may agree in writing to changes in the access schedule, or, of course, that they will be bound by further court order made on notice. I am prepared to make such order, but shall add that before returning to court on access issues, they shall be obliged to retain the services of a parenting coordinator with the expense being shared equally. That expense will likely be considerable, and hopefully it will give them pause before placing their own wants and needs before those of Nicholas.
EXTRAORDINARY EXPENSES
[9] The parties agree that extraordinary expenses are to be paid on a 60/40 basis, with the respondent father paying 60 percent. The mother calculates the current monthly figure payable by the father to be $369.00. He puts it at $200.00. Since the expenses are to be based upon timely disclosure of full particulars and documents (obviously including receipts), I simply do not understand the discrepancy. I propose not to fix the present monthly amount. The parties are educated people, and no doubt can do the necessary arithmetic. Annual adjustment for over or under payment is appropriate, as is notification to the Family Responsibility Office.
LIFE INSURANCE
[10] The mother requests a life insurance policy with at least $300,000 in payment to secure the father’s child support obligations. The father asks that the mother be obliged to maintain a similar policy on her life.
[11] While the father’s request is out of the ordinary inasmuch as it is usually the support payor who is obliged to carry life insurance, the rationale behind that request is compelling. In the event that the mother should die before the child no longer requires support, it is probable that he would live with the father full-time. Without the mother being insured, the full support obligation would rest on the father, just as that burden would rest upon the mother should the father die before his child support obligation ends. I see no manifest why reason life insurance should not be carried by both parents for so long as the child remains dependent. The amount suggested by the mother is reasonable.
CHATTELS
[12] There is in evidence an appraisal indicating that the jointly-owned chattels remaining in the matrimonial home is worth approximately $4,000. The mother proposes that she keep these chattels and effectively pay the father $4,000 by means of reducing his equalization payment obligation to that extent.
[13] The father is not satisfied with that. He argues that the $4,000 figure is far short of what it would cost him to replace one-half of the chattels when he eventually leaves his furnished apartment. He suggests physical division of these chattels, save for the child’s bedroom set, he proposes that the mother write up two lists of the remaining chattels, with him taking the items on the one such list of his choice.
[14] The father’s argument on replacement costs is ill-founded, mainly because it ignores the issue of betterment. The mother’s argument that her proposal will be less disruptive to Nicholas likely overestimates a six-year-old’s attachment to chattels in the matrimonial home.
[15] On balance, the father’s proposal shares the vicissitudes of depreciation and betterment between the parties, and I am prepared to order that it be followed.
MATRIMONIAL HOME
[16] The matrimonial home is owned jointly by the parties. It is subject to a mortgage. It is occupied by the applicant mother and Nicholas.
[17] The applicant wishes to purchase the respondent’s equity in the home, indemnify him in respect of his exposure to the mortgage, and remain there with Nicholas. The respondents’ current position is that he wants the home to be sold with the applicant being at liberty to purchase it on the open market.
[18] A preliminary issue arises with respect to whether the respondent can be compelled to sell his equity in the home to the applicant. I agree with the case law presented on behalf of the respondent that absent consent, such a sale cannot be compelled. Here, however, there is consent. On January 31, 2012, the parties consented to an order by McLaren, J. which, at paragraph 7 thereof, reads as follows: “The court orders that the applicant shall have the opportunity to acquire the respondent’s interest in the said matrimonial home.” The term is open-ended. It did not, for example, require the applicant to do anything with respect to the acquisition by a certain date. I do not interpret the terms to mean only that the applicant could purchase the home on the open market simply because she does not need a court order to do so. I agree that the order does not state a purchase price, but it is not unreasonable or unusual to impose a term requiring purchase at fair market value. Any other vagueness in the term of the order of McLaren, J. rests at the feet of both parties. They both consented to it.
[19] The respondent has taken no steps to set aside the order. He cannot now resile from that to which he has consented any more than he can choose to ignore any valid court order. The applicant may purchase the respondent’s share of the equity at fair market value.
[20] The next issue to be determined is what fair market value is. Both parties obtained written appraisals on the home, and both called the authors of those appraisals as expert witnesses.
[21] The respondent retained Robert J. Schinkel to appraise the home. He estimated market value as of June 20th, 2011 at $470,000.
[22] The respondent retained Dominic Mamone, who estimated “fair market value for matrimonial settlement” as of November 13th, 2012, at $553,000. The discrepancy, aside from the dates, is $83,000.
[23] Both appraisers are fully qualified and experienced. Deciding between the two has not been easy. However, I accept the value reached by Mr. Schinkel over that of Mr. Mamone. I do so for the following reasons. I am of the view that the comparable properties considered by Mr. Schinkel in reaching his conclusion are closer in terms of amenities than those used by Mr. Mamone. While I appreciate that Mr Mamone adjusted the values of the comparable properties he used to address meaningful differences between them and the matrimonial home, his adjustments were generic, rather than specific. For example, his adjustment for a fully furnished basement was a flat $10,000. He used that number because that figure is what he always uses as the appropriate adjustment for the presence or absence of that feature. His flat rate approach does not appear to take into consideration such things as neighborhood. It is not appropriate, in my view, to adjust for the presence of a fully furnished basement in an upscale Ancaster neighborhood at the same figure for such a basement in the home in Hamilton’s north end, for example.
[24] Having accepted Mr. Schenkel’s estimate of $470,000 as of June 20th, 2011, it is appropriate to adjust that number to the present. While he admitted that he had no estimate for the immediate neighborhood in which the matrimonial home is located, Mr. Schenkel testified that in his opinion houses worth less than $1,000,000 in Ancaster appreciated between 2011 and 2012 at the rate of 6.7 percent per annum. That is the best evidence at hand. As I have no equivalent figure for 2013, I shall use that same rate. 6.7 percent per annum times 21 months (July, 2011 to March, 2013) equals 11.725 percent. $470,000 times 11.725 percent equals $55,107.50, which I round down to $55,000. Based upon that simple calculation, I find the present value of the home to be $470,000 plus $55,000 or $525,000. The applicant shall be at liberty to acquire the respondent’s 50 percent interest in the equity of the home by paying him one-half of that figure less 50 percent of notional closing costs less the mortgage and the less the owed equalization payment. I see no reason to deviate from the usual practice of including an adjustment for notional closing costs, although the father did request that I do so.
[25] Of course, if the mother cannot or will not purchase the father’s interests on that basis, it should be listed for sale and the net proceeds divided equally. If the home is sold on the open market, there is nothing to prevent the mother from purchasing the property like any other interested person.
[26] I believe that I have addressed the meaningfully contentious issues raised at trial. Other differences between the draft order terms submitted by counsel at my request do not require adjudication as they are largely semantic.
[27] Order accordingly, with the mutually agreed upon order terms being included.
COSTS
[28] I pause to note that success at trial appears to have been divided. Of course, I make that observation without the benefit of having seen any offer or offers to settle. If the parties are unable to agree upon costs they may make brief written submissions in that regard. Each set of such submissions, if any, should be no more than three typewritten pages in length, not including a costs outline. Such submissions are to be forwarded to my attention at the John Sopinka Court House in Hamilton on or before May 15th, 2013.
PARAYESKI, J.
Released: March 20, 2013
COURT FILE NO.: D 734/11
DATE: 2013-03-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ANTONIETTA LISA DE ANGELIS
Applicant
- and –
DAVID ANTHONY ZANIN
Respondent
REASONS FOR JUDGMENT
PARYESKI, J.
Released: March 20, 2013