ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: D-18,770-09
DATE: 2013-06-03
BETWEEN:
Helen Dunne
Applicant
– and –
Sylvain Courchesne
Respondent
C. McInnis, for the Plaintiff
R. Guy, for the Respondent
HEARD: May 22, 23 and 24, 2013
REASONS FOR JUDGMENT
R.D. Gordon J.:
Overview
[1] The trial of this action was held to determine several issues arising from the parties’ marriage and unhappy separation. At the centre of the dispute, and an innocent victim of the parties’ complete inability to communicate, is their seven year old child, Kaneesha.
Background
[2] Ms. Dunne is a thirty year old woman who came to Canada from Ireland in September of 2004. The purpose of her visit was to meet Mr. Courchesne with whom she had had a brief online courtship. The meeting went well. By October 14, 2004 they were living together and just under a year later Kaneesha was born. They married on September 5, 2008.
[3] Mr. Courchesne is thirty-five years of age and has a grade 12 education which he acquired despite a learning disability. From an early age he worked in restaurants and eventually he determined that cooking would be his career. Although he attended a culinary arts program at Cambrian College he was unable to pass the written exams and did not receive his diploma. However, between his work experience and what he learned at college he has maintained regular employment, albeit with a number of different employers.
[4] Ms. Dunne was educated in Ireland in hotel management and was working in that capacity when she departed for Canada. She initially planned to stay for only a few weeks but when her relationship with Mr. Courchesne blossomed she obtained a visitor’s visa, which she renewed on three occasions. In April of 2007 she was granted permanent residency in Canada thanks in part to a three year sponsorship agreement signed by Mr. Courchesne.
[5] While on a visitor’s visa Ms. Dunne was ineligible to work in Canada. Once she was granted permanent residency she was eligible to work but did not, as she had Kaneesha to care for and had become pregnant with her new partner’s child.
[6] Mr. Courchesne has two children from a previous relationship: Charitee, who is now 14, and Jasmine who is now 12. For a time beginning in the summer of 2005, Mr. Courchesne had week about shared custody of these two children and Ms. Dunne looked after them while he was at work.
[7] Mr. Courchesne’s employment income has always been modest, seldom exceeding $30,000 per year. However, with the assistance of both parties’ parents, they began to acquire real estate and eventually came to own three properties: the matrimonial home located at 367 Kilpatrick Street in Sudbury; a triplex rental unit located at 474 Montague Avenue in Sudbury; and a single residential rental home located at 204 Dufferin Street in Sudbury. The rental properties generated a profit which assisted the parties with their living expenses. All three properties have either maintained their value or increased significantly in value since acquisition.
[8] In early 2009 Mr. Courchesne began work as a cook on the railway. This work took him out of town for ten days at a time and although the regular pay was modest, there was significant overtime available which boosted his income considerably. In early June of 2009, Ms. Dunne, along with Kaneesha, Charitee and Jasmine, travelled to Ireland to visit her parents. Apparently, she had become unhappy in the relationship and was using the time in Ireland to speak to her parents and decide what she wanted to do. Mr. Courchesne, for his part, was blissfully unaware that anything was awry.
[9] There are divergent views of how Mr. Courchesne came to be aware of the problems in his marriage, but not much turns on that. It is agreed that on or about June 5, 2009 Ms. Dunne sent him an e-mail explaining that although she would be returning to Canada, she did not anticipate continuing in the marriage. Mr. Courchesne was distraught. He had a couple of drinks. He made a late night telephone call to Ms. Dunne in Ireland during which he allegedly said things that made her fearful of him.
[10] In early July she returned to Canada with the children. By then, Mr. Courchesne had moved out of the home and left her in charge of the rental properties. Due to her concern with Mr. Courchesne’s comments when they last spoke, and concerns about his alcohol and drug consumption, she would not allow him access to Kaneesha unless it was supervised through the supervised access centre. This he attended diligently until eventually, by temporary order of this court, he was granted weekend access to their daughter provided it was exercised at his parents’ home under their supervision. Unfortunately, Mr. Courchesne did not always comply strictly with the terms of that order and when this became apparent to Ms. Dunne, she denied him access. Disagreements ensued concerning pick up and drop off of the child. Eventually, Mr. Courchesne became frustrated and simply stopped visiting. He has not seen Kaneesha in two years.
[11] There has been no temporary order requiring Mr. Courchesne to pay child or spousal support but Ms. Dunne has been retaining all of the rental income since separation. She was unable to pay all of the taxes on the properties with the result that approximately $10,000 in tax arrears have accumulated.
[12] Against this backdrop counsel identified the following issues for my determination:
Custody of Kaneesha.
Access to Kaneesha.
The amount of child support to be paid, both ongoing and retrospectively, along with contribution to section 7 expenses.
Whether and to what extent Mr. Courchesne should pay spousal support.
The valuation of certain assets and the required payment to equalize the parties’ net family properties.
The manner in which the sale of the real property is to take place.
The manner in which the sale proceeds are to be distributed.
Whether and to what extent any payments due by Mr. Courchesne should be offset by rental profits retained by Ms. Dunne.
Whether Mr. Courchesne is required to sign passport documentation for Kaneesha.
I will consider each issue in turn.
Custody of Kaneesha
[13] Although this was cited as an issue for trial, counsel for Mr. Courchesne rightly conceded that it did not merit much time or argument. Kaneesha has been in her mother’s care since birth, and in her exclusive care for the last two years. There was no evidence before me to suggest that Kaneesha’s needs are not being met. Even if this was a situation where Mr. Courchesne had been actively and regularly involved in his daughter’s life, the parties’ current inability to communicate with one another on even the most mundane of matters would preclude a joint custody order.
[14] Accordingly, it is ordered that Ms. Dunne have sole custody of Kaneesha.
Access to Kaneesha
[15] Mr. Courchesne wants to resume access to his daughter, and Ms. Dunne has agreed it should happen. Both have also agreed that access increase gradually over time so that Kaneesha becomes comfortable with her father once again. What the parties cannot agree upon is the extent and duration of supervision of the access.
[16] Ms. Dunne has suggested that Mr. Courchesne’s access must be supervised at all times due to his irrational behaviour on separation, his difficulty controlling his anger, and his over- consumption of alcohol and drugs. She also points to his willingness to disregard the existing access order as a reason to place limitations on his care of their daughter. In her view, he simply cannot be trusted.
[17] Mr. Courchesne agrees that supervision is appropriate for a short time, but only to allow Kaneesha to become more comfortable with him. He denies having anger issues, alcohol dependency or drug use issues that would affect his ability to care for his daughter. He acknowledged that it was improper for him to have disregarded the provisions of the court order and he promised to abide strictly by any conditions placed on his access.
[18] Even if I were to accept that Mr. Courchesne threatened Ms. Dunne and Kaneesha during the telephone conversation in June of 2009, the circumstances under which the utterances were made (under the influence of alcohol, while distraught by the separation, and under the belief that Ms. Dunne had been having an affair with is best friend) coupled with almost four years of violent free conduct, lead me to conclude that his behaviour on that occasion is no longer of much probative value.
[19] Although there was evidence that Mr. Courchesne does drink to excess on occasion, there was also evidence that when he has care of Charitee and Jasmine he does not drink. Certainly there has been no concern with his access to them for the last several years. There was no evidence that he consumed alcohol or drugs at any time when had the care of Kaneesha pursuant to the temporary order of this court. In all, the evidence falls far short of satisfying me he has an alcohol or drug dependency problem that would warrant supervision of his access.
[20] Mr. Courchesne admitted to becoming angry from time to time and that he has, on occasion, had difficulty controlling his anger. There was evidence from Mr. Putman that when drinking, Mr. Courchesne’s anger can more easily get out of control. Again, there was no evidence that he has ever been angry towards his children or lost his temper with them. If he is prohibited from drinking while having the care of Kaneesha the risk is reduced even further. In all, I do not see Mr. Courchesne’s anger as a reason to require long term supervision of access.
[21] With respect to his failure to comply with the court order, Mr. Courchesne recognizes that it was wrong. Although he has not always been forthright in admitting his wrongdoing, I am satisfied that he understands the need to comply with court orders and will make his best efforts to comply in the future. I might add, however, that in the grand scheme of things, his breaches of the terms of the order were not outrageous. When his parents were unable to supervise his access, he arranged for his sister to do so, but did not advise Ms. Dunne. When driving Kaneesha back from access he often stopped at a friend’s home for an hour or so during which time Kaneesha would play with his friend’s daughter. There was no suggestion that Kaneesha was put at risk by the non-compliance. If these parents had the ability to communicate on even the most rudimentary level these would not present as significant issues. If these parents had even an iota of trust left between them, issues such as these would not take on such epic proportions.
[22] In all, the evidence does not satisfy me that long term supervision of Mr. Courchesne’s access is required. However, I do not discount Ms. Dunne’s concerns entirely, and for all concerned it is important that she have confidence in the care Mr. Courchesne is able to provide Kaneesha.
[23] The parties are generally agreed that access is to take place every third weekend and it is ordered accordingly. For the first three access weekends, it shall be exercised at the Sudbury Supervised Access Centre on Saturday from 1:00 pm to 4:00 pm, and on Sunday from 10:00 am to 1:00 pm. Any fees of the Supervised Access Center are to be shared equally between the parties.
[24] For the next three access weekends, it shall be exercised on an unsupervised basis from 1:00 pm to 4:00 pm on Saturday and from 10:00 am to 1:00 pm on Sunday, with pick up and drop off at the Supervised Access Centre. Again, any fees of the Supervised Access Centre are to be shared equally between the parties.
[25] For the next three access weekends, it shall be exercised on an unsupervised basis from Saturday morning 10:00 am to Sunday at 3:00 pm provided, however, that overnight is spent at the paternal grandparents and that at least one of them, or another adult approved by Ms. Dunne, be present in the residence overnight.
[26] Thereafter, access shall be exercised on an unsupervised basis from Friday at 7:00 pm to Sunday at 5:00 pm. Pick up and drop off shall be at a public location in Sudbury agreed upon by the parties, or failing agreement, at the Supervised Access Centre, with any fees of the Access Centre being shared equally by the parties.
[27] In addition, once access has begun, Ms. Dunne shall have Kaneesha available every Monday and Thursday evening between 7:00 and 7:30 to receive a telephone call or skype call from Mr. Courchesne.
[28] Mr. Courchesne shall provide his address and telephone number to Ms. Dunne, and if during any access period Kaneesha will be staying overnight anywhere else, he shall provide details of where and how she may be reached.
[29] Unfortunately I did not receive submissions on holidays, so I will indicate what parameters would be reasonable and leave the particulars to be agreed upon between the parties. Regardless of where the weekend access falls, it is appropriate that Mother’s Day be spent in the care of Ms. Dunne and Father’s Day in the care of Mr. Courchesne and weekend access should be re-allocated to accommodate this. Beginning in the summer of 2014, it would be appropriate for Mr. Courchesne to have one week of access in the summer, and in subsequent years two weeks of access in the summer, on not less than three months’ notice to Ms. Dunne. Beginning in 2014 it is appropriate that Mr. Courchesne have access for one half of the Christmas holidays.
[30] Mr. Courchesne shall not consume alcohol or any illicit drug of any nature for the 12 hours preceding access and during access.
[31] I have involved the Sudbury Access Centre without direct evidence of their hours of operation. In the event the times I have provided are outside the hours of operation of the Access Centre, I would anticipate counsel providing an order for issuance that encompasses appropriate changes.
Child Support
[32] The parties separated in early July 2009. Ms. Dunne issued this application in October of 2009 seeking, among other things, child support. There has been no order made requiring the payment of child support and no domestic agreement signed in that regard. Mr. Courchesne says there was an agreement that Ms. Dunne would retain the rental profits on account of his support obligations and it would be unfair to make him now pay child support from the date of separation. He suggests that Ms. Dunne be allowed to retain all of the rental profits without accounting to him for his half, and that he not be required to pay support on a retrospective basis.
[33] I am not satisfied there was an agreement as alleged by Mr. Courchesne. He may have believed that his support obligation was being satisfied in this fashion, but Ms. Dunne did not agree to it. However, it may well be that the rental profits were, in fact, sufficient to offset his child support obligations. That determination requires a consideration of his income and what the rental profits were.
[34] Ms. Dunne’s position is that income ought to be imputed to Mr. Courchesne at the rate of $35,500 and child support be assessed according to the guidelines in the amount of $308 per month beginning the month following separation. Assuming, without deciding, that this is an appropriate imputation of income, it is my view that Mr. Courchesne’s share of the rental profits retained by Ms. Dunne is sufficient to offset his child support obligation. I make that determination based upon my calculation of rental profits outlined below.
[35] Rental profit is a function of two things: firstly, the gross rents received, and secondly the expenses incurred. Ms. Dunne has provided monthly profit and loss statements for the two rental properties, but they are inadequate in several respects. To begin with, there are no receipts for the expenses incurred. Although certain costs, such as mortgages and insurance are fixed and easily verifiable, many are not. For example, many of the expenses for Greater Sudbury Utilities (GSU – for hydro and water charges) are in rounded amounts and shown monthly, when in fact the bill is sent bi-monthly and is unlikely to be in the rounded amounts indicated. Repair and maintenance expenses are not verified by receipts. The Montague Street budget for 2012 does not include figures for November and December. The Montague Street budgets for 2010 appear to be incorrect as the monthly figures for May through August have been imported from other years. Furthermore, in 2010 and subsequent years the total annual expenses were well in excess of the 2009 expenses – 35% more in 2010, 31% in 2011 and 28% in 2012 - with no acceptable explanation or rationale for the increase. All of this leads me to believe that the expense portions of the statements provided by Ms. Dunne are not reliable.
[36] However, I do accept her evidence and testimony concerning the gross rents received. It is not unusual for there to be tenant turnover from time to time and she was able to give particulars of when tenants moved out and how long it took to rent the units again.
[37] For 2008 and 2009, income statements for the rental properties were prepared by an accounting service. Expenses claimed included maintenance and repairs, “soft costs” and vehicle expense of over $1,000 per year for the properties. In 2008 total expenses were $19,333 and in 2009, $20,285. I was provided with no good evidence of why expenses would have increased so dramatically in the ensuing years. Although I accept that there were certain maintenance and upkeep costs incurred, they would, on average, have been covered by the expense categories noted above. In my view, a more accurate way of determining the rental profits each year is to deduct from the reported rent receipts the expenses incurred in 2009 increased annually by 2% to cover reasonable increases in the expenses listed. The attached Schedule “A” contains a calculation of the annual rental profit on this basis and in the last column indicates what Mr. Courchesne’s one half interest in these amounts would be.
[38] Based upon these calculations, it is clear Mr. Courchesne’s child support obligations were satisfied by virtue of the rental profits retained by Ms. Dunne even if his income was imputed at the rate of $35,500 per year.
[39] On a go-forward basis, Ms. Dunne requests that child support be payable at the rate of $308 per month based on imputed income of $35,500 per annum. The evidence established that in November of 2012 Mr. Courchesne had steady, full-time employment at a nursing home at which he earned about $17 per hour and worked 40 hours per week. This translates to annual income of about $35,500. He left this employment voluntarily and subsequently took a job at a different nursing home where he now earns $11 per hour. There was no adequate explanation given of why he left his first employment and why he did not return there. In my view, the evidence is sufficient to establish that he is earning at less than his capacity and is in fact capable of earning $35,500 per year. Accordingly, I agree with the Applicant that it is appropriate to assess child support at the rate of $308 per month beginning June 1, 2013, and on the first of each month thereafter.
[40] Ms. Dunne has also asked for an order that extraordinary expenses incurred with respect to Kaneesha be shared equally between her and Mr. Courchesne. Based upon his imputed income and her employment income, such is appropriate and it is ordered accordingly. Those costs will include daycare costs of $80 per week during the school year and $115 per week during the summer months.
Spousal Support
[41] Ms. Dunne seeks spousal support for the one year period following separation and asks that income be imputed to Mr. Courchesne of $50,000 for that time. Applying the Spousal Support Advisory Guidelines, and attributing to Ms. Dunne income of $6,572, it was submitted that spousal support of $605 per month be ordered for a one year total of $7,260.
[42] Mr. Courchesne reiterated the position that his share of the rental proceeds is sufficient to offset any obligation to pay spousal support in the one year period following separation.
[43] I agree with Mr. Courchesne. Schedule “A” indicates that his share of the rental profits since separation amounted to $26,760. His child support obligation, even if assessed retrospectively at $308 per month would amount to $14,168. The difference is more than sufficient to offset his spousal support obligation.
[44] Accordingly, there shall be no order for the payment of spousal support.
Valuation of Assets and Equalization Payment
[45] The most significant assets owned by the parties are the three pieces of real estate which I have already referred to. It has been agreed that all three properties be sold and the proceeds of sale distributed as follows: First, to the reasonable costs of sale; secondly, to retire the outstanding mortgages registered against title to the properties; thirdly, to repay sums borrowed from the parties’ parents, namely, $30,000 to Mr. Courchesne’s parents and $91,750 to Ms. Dunne’s parents. There is a disagreement as to how the property tax arrears are to be paid, and that is dealt with below. Anything left after these amounts are all paid is to be divided equally between the parties.
[46] Aside from the real estate, the only assets to be dealt with are the contents of the home, bank accounts held by the parties, and the vehicle which was retained by Mr. Courchesne.
[47] With respect to contents, the parties disagree on what items each of them received. Each has put together a list of items kept by each party and have attributed values to those assets. There is substantial disagreement as to who actually got what and the values placed on the items are completely without evidentiary justification. Neither party provided any independent proof of what was left in the home or taken. Neither party is a qualified appraiser. Neither of them gave any evidence as to how they arrived at the values tendered. Each party bears the onus of establishing on a balance of probabilities what contents existed, what contents they retained and the value of those items. Neither has met that onus. It follows that neither is entitled to an order which includes any amount for contents in the equalization calculation.
[48] With respect to bank accounts, it is agreed that Ms. Dunne had $1,283 in the bank on separation. Although the Respondent had $2,592 in his bank account on June 5, there were withdrawals for taxes, gas and utilities totalling $1,360 within the next three days and I am satisfied these would be for bills incurred prior to June 5. Accordingly, I will attribute to Mr. Courchesne a bank account balance of $1,232.
[49] The vehicle was purchased by Mr. Courchesne prior to the date of marriage. The money for the purchase came from the refinancing of one of the properties. I was not provided evidence of what its value was at the date of marriage, nor the amount by which the associated debt had been reduced. There seems to be agreement that the vehicle was worth $4,500 on separation and the associated debt will be paid out when the mortgage is retired on sale of the property. In these circumstances, it is appropriate that the asset be included in Mr. Courchesne’s net family property at a value of $4,500.
[50] Accordingly, aside from the division of the proceeds of sale, an equalization payment is due from Mr. Courchesne to Ms. Dunne of $2,225.
Process For Sale of the Property
[51] Ms. Dunne asks for an order that she control the sale proceedings and that she be entitled to sign all documents on behalf of Mr. Courchesne. In support of her request she cites the parties’ inability to communicate, Mr. Courchesne’s refusal to cooperate in the release of information pertaining to the properties, and his residing out of town. I do not see any of these as adequate grounds to exclude him from the sale process.
[52] Mr. Courchesne is not a wealthy man and he stands to receive several thousand dollars once the properties are sold. In addition, his parents are owed money from the sales, which I am sure he wishes to see repaid. Clearly he has significant incentive to cooperate in the sale of the properties. To that end, he need not have any direct contact with Ms. Dunne and may deal with an agreed upon real estate agent and lawyer relative to the sale. Electronic communication will alleviate the delays that might otherwise be expected from his living in Wasaga Beach. With the assistance of counsel the parties should have little difficulty agreeing to a listing agent and price. If difficulties do arise, either party may address the matter before me by way of motion on notice.
Distribution of Proceeds of Sale
[53] Tax arrears of approximately $10,000 accumulated on the properties during Ms. Dunne’s stewardship of them. Her position is that the failure of Mr. Courchesne to pay support rendered her unable to pay all of the bills and she elected to forego payment of the taxes in order to keep other bills current and put food on the table.
[54] Although normally these arrears ought to be paid from Ms. Dunne’s share of the sale proceeds, given that Mr. Courchesne will share in the not inconsiderable increase in value to the properties and has thereby benefited from her administration of the rental properties since separation, I am inclined to order that the tax arrears be paid from the proceeds of sale before such proceeds are apportioned to the parties.
Offets of Amounts Due by Mr. Courchesne
[55] As I have determined that Mr. Courchesne does not owe any arrears of child or spousal support, there shall be no offset of such amounts against his share of the sale proceeds of the properties. However, it is ordered that the equalization payment of $2,225 due from Mr. Courchesne be paid to Ms. Dunne from his share of the sale proceeds.
Passport for Kaneesha
[56] Mr. Courchesne has refused to sign the documentation necessary to have a passport issued for Kaneesha citing his concern that Ms. Dunne will leave the country with her and not return. Aside from the fact that Ms. Dunne is from Ireland and has immediate family still living there, there is no evidence to suggest that she will leave. She has full time employment in Sudbury and is now involved in a permanent relationship from which another child has been born. She testified that although she intends to travel to Ireland with Kaneesha from time to time, she has no intention of removing her from Canada on a permanent basis.
[57] In these circumstances, it is ordered that Mr. Courchesne sign such papers as may be required to have a passport issued for Kaneesha and that the passport be kept in the possession of Ms. Dunne. To safeguard any concerns Mr. Courchesne may have, it is ordered that Ms. Dunne not change Kaneesha’s residence from the City of Greater Sudbury or take Kaneesha outside the Province of Ontario without first giving Mr. Courchese at least 90 days written notice of her intention to do so.
Conclusion
[58] An Order is to issue on the terms I have printed in bold throughout this judgment. In the event the parties are unable to agree on costs, they may make written submissions to me within 45 days, not to exceed six pages in length each.
The Honourable Mr. Justice Robbie D. Gordon
Released: June 3, 2013
SCHEDULE “A”
CALCULATION OF RENTAL PROFITS
YEAR GROSS RENTS EXPENSES PROFIT ONE HALF OF
PROFIT
2009 $19,525 $10,143 $ 9,383 $ 4,692
(July – Dec)
2010 $31,650 $20,691 $10,959 $ 5,480
2011 $33,500 $21,105 $12,395 $ 6,198
2012 $36,225 $21,527 $14,698 $ 7,349
2013 $13,400 $ 7,319 $ 6,081 $ 3,041
(Jan-Apr) $26,760
COURT FILE NO.: D-18,770-09
DATE: 2013-06-03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Helen Dunne
Applicant
– and –
Sylvain Courchesne
Respondent
REASONS FOR JUDGMENT
R.D. Gordon J.
Released: June 3, 2013