COURT FILE NO.: FC-12-1089-00
DATE: 20130118

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Glenn Edward Currie, Applicant
AND:
Rachel Currie, Respondent

BEFORE: The Honourable Mr. Justice McCarthy

COUNSEL:
Kim Kieller, for the Applicant
John Craig, for the Respondent

HEARD: January 17, 2013

ENDORSEMENT

[1] The Applicant moves for an order that the child of the marriage, Gwyneth Islay Currie, born September 9, 2001, reside equally with both parties on a “week about basis”.

[2] The Respondent brings a cross motion for an order that the primary residence of the child be with the mother and that the father be entitled to access only. The Respondent further seeks an order for temporary child support in the amount of $1,608 monthly and spousal support in the amount of $5,000 monthly. The Respondent also seeks an order for payment of $25,000 for interim fees and disbursements pursuant to Rule 24 (12).

[3] The parties were able to arrive at an agreement on the remaining issues of life insurance policies, group benefits and for a psycho-educational assessment for the child.

[4] There are presently no orders pertaining to support, custody or access.

The Applicant’s Position – Parenting Arrangements

[5] The Applicant contends that the principle of maximum contact with each parent should translate into equal parenting time. This should result in the court ordering a shared care parenting arrangement with “week about” residence.

[6] The Applicant argues that the Respondent is attempting to create a status quo with her present refusal to allow for extended visits or any overnight access with him. The Applicant points out that there is not one iota of evidence which could persuade this court that the father is not a good and caring parent, fully capable of discharging his duties. He maintains a comfortable household. He has tested clean for alcohol abuse. He is prepared to adjust his self-employed work schedule to his week about obligations. He enjoys a good and healthy relationship with his daughter. He has a son from a previous relationship who enjoys spending time with Gwyneth. He has never agreed to the present situation but rather, from the outset, sought joint care and control of the child. The Applicant stresses that the Respondent’s opposition to a shared parenting plan stems from her own life experience and does not take into account the best interests of the child.

The Respondent’s Position Regarding Parenting

[7] The Respondent opposes the joint care and “week about” proposal. She claims that she has always been the primary care giver to the child, that the Applicant’s history suggests that he has a problem with alcohol, that he has put his social life before his family life and that his work demands, which have historically demanded a great deal of his time, will continue to serve as an impediment to his parenting abilities. Finally, and most critically, the Respondent states that the child has expressed resistance and demonstrated anxiety at the prospect of extended and overnight visits with the Applicant.

Analysis

[8] I am unable to accept the evidence of the Respondent mother that the child is demonstrating such a degree of anxiety that it should stand in the way of maximum contact with the Applicant. There was no corroborating independent evidence of this. I did not receive any evidence from a counsellor, teacher, physician or assessor. Even if there is some anxiety being experienced by the child, it is understandable in light of the uncertainty of the domestic situation, the fact that the separation is still a fresh event (nine months ago) and given that changes in routine are understandably a matter of anxiety for many eleven year old children.

[9] In my view, the parenting history during the marriage merits some consideration. However, the manner in which the couple conducted their affairs at the time reflected the reality on the ground. That reality has changed. There are now two separate households in the child’s world. Both are headed by parents who have presumptively equal entitlement to custody of the child (see section 20 of the Children’s Law Reform Act).

[10] I do not think that it is appropriate that the present parenting arrangements, such as they are, should be entrenched in any way. They are ad hoc at best. They deprive the Applicant of quality, sustained time with the child. They are not a reflection of the child’s new reality. They do not accord with the maximum contact principle. I am satisfied that the Applicant will work his business demands and schedule around any parenting obligations that come to him out of shared care arrangement. There is no professional or objective opinion before me that suggests that the child’s best interests are to be found in the quite limited access arrangement being put forward by the mother. There is nothing about the past conduct of the Applicant father which would weigh against the principle of maximum contact. The psychological assessment to come may shed some light on the anxiety allegedly being exhibited by the child. Any parenting arrangement order will be temporary only and will be subject to variation in light of the findings of the assessor. In the meantime, I am of the view that the child’s present situation is entirely amenable to a joint parenting arrangement with a week about schedule. I find such an arrangement to be in the best interest of the child as it would promote maximum contact with each parent.

[11] Accordingly, there shall be a week about parenting arrangement on a temporary basis which will be subject to review upon receipt of the psychological assessment or until there is a material change in circumstances. The week about schedule shall commence on Friday January 25, 2013 with the Applicant entitled to care and custody beginning at 4pm. The exchange and pick up is to take place at the child’s school if it is a school day; if not, the exchange shall take place at the residence of the person having completed the exercise of care and control that week. In either event the exchange is to take place on each successive Friday at 4pm.

[12] I am satisfied that the child would benefit from further counselling. The parties shall consult with the child’s family doctor and obtain a recommendation from him or her for the name of a local counsellor to provide this service. The cost of counselling services shall be split equally between the parties.

The Respondent’s Position Regarding Support

[13] The Respondent contends that the Applicant has understated his income on his Financial Statement and that child and spousal support should be based upon an income of $196,561. This is based on the opinion of Ben Vieira CA, whose brief report dated July 17, 2012 was made Exhibit “A” to the Respondent’s affidavit dated January 11, 2013. Mr. Vieira would include in income an amount of $7,500 for the Applicant’s use of the company vehicle and a further $3,600 for his entitlement to group medical benefits, neither of which are taxable in his hands. In addition, he would add in a portion of the Applicant’s interest in the retained earnings of the two businesses, Glenn Currie Towing Inc. (GCT) and Alex Currie Motors Limited (ACML), the latter being an entity in which the Applicant is a minority shareholder.

The Applicant’s Position Regarding Support

[14] The Applicant contends that he has listed the draw and the bonus he received from GCT to arrive at the income declared on his financial statement ($99,996.00). There is no other income. He argues that retained earnings in a company, especially one in which he is a minority shareholder (ACML), do not translate into income unless distributed. There has been no such distribution during the period of the marriage or separation. Moreover, the value of the Applicant’s interest in ACML can be properly taken into account in the Net Family Property schedule. Nor is it appropriate to include retained earnings of GCT since the company requires a fund of money out of which to operate and remain bonded.

[15] The Applicant is critical of the report of Vieira. There is no expert certification accompanying the report. Vieira is not a certified business evaluator. The author of the report was unable to state with any certainty where the dividends paid in 2009 came from. While accepting the bonus acknowledged by the Applicant in his financial statement to arrive at his income as declared, Vieira then seeks to add a portion of the net profits of GCT, in effect double counting GCT net income. Mr. Vieira did not have the benefit of office expenses or journal reports available to him when completing his report. His approach is not reliable: he asserts that the T4 income in 2011 and 2009 was lower than reasonable but does not explain why.

Analysis

[16] I am prepared to accept that the use of the company vehicle and the medical benefits should form part of the Applicant’s income for the purpose of establishing income at this relatively early juncture. These are real benefits which are being received tax free. They should be included in income.

[17] I am unable to find that the other items suggested by Mr. Vieira should be included in income at this stage. In the absence of a business valuation or some evidence that the corporate entities are arbitrarily withholding corporate profits, I am of the view that reasonably undistributed corporate profits remain in the nature of capital which would need to be accounted for in the Applicant’s net family property statement. They should not be items of income. Further and better evidence may lead to an alternative determination at a later date. For now, the Applicant’s income for the purposes of child and family support is found to be $110,096.00 annually.

Payment of Expenses: Rule 24 (12)

[18] The Respondent seeks an order for payment of $25,000 to cover part or all of the expenses of carrying on the case, including lawyer’s fees. She points to the obvious disparity in the parties’ income (her declared income is $18,000). She argues that fairness demands a levelling of the playing field. Since there is obviously going to be an equalization payment, any such payment can be treated as an advance on and as a credit against, that equalization. It is suggested that a proper business evaluation might cost in the neighbourhood of $20,000.

[19] The Applicant opposes the relief sought and argues that the Respondent has failed to set out in any detail the expenses that she has incurred or will incur going forward. He relies on the case of Stuart v. Stuart, 2001 28261.

[20] I agree with the Respondent that payment of expenses is warranted. The rule speaks of fees and disbursements. It is obvious that the Respondent, represented as she is by competent and experienced counsel, has and will incur lawyer’s fees. The matter promises to be sufficiently complex and expensive. There is a prima facie entitlement to an equalization payment. It is not unreasonable to assume that the Respondent will need to retain a business evaluator to assess the value of the two businesses in which the Applicant has an interest. I adopt the reasoning found in the case of MacKinnon v MacKinnon, 2004 8945 (ON SC), [2004] O.J. No. 2297, 7 R.F.L. (6th) 121 (Ont. S.C.J.) that, through the equalization process, the parties share in the value of an asset. Accordingly, they should share in the cost of the valuation of that asset, except in unusual circumstances. The Applicant shall therefore make a payment to the Respondent in the amount of $25,000 within ninety days of the date of this order.

Disposition

[21] For the above reasons, this court orders that the parties are entitled to equal and shared care and control of the child of the marriage, Gwyneth Islay Currie and shall, commencing on Friday January 25, 2013 adhere to the week about regime described in detail above. That schedule is subject to such variation and alteration as the parties may agree to from time to time.

[22] This court finds that the income of the Applicant for the purpose of temporary support only is $110,096 and orders that child and spousal support be paid based on that figure from the date of separation (March 12, 2012).

[23] This court orders that the Applicant pay the Respondent the amount of $25,000 for expenses under Rule 24 (12), within ninety days.

[24] The parties indicated that they should be able to agree on the figures for child and spousal support once the Applicant’s income was determined. The issue of costs of the motion remains to be determined. In light of the divided success of the parties on the motion, that issue may be moot. In the event that the parties are unable to agree on the quantum of support or entitlement to costs, the parties shall serve and file written submissions on those issues within fifteen days of this order. In the alternative, they may agree on a date and arrange through the trial coordinator at Barrie to appear before me again to make those further submissions.

McCARTHY J.

Date: January 18, 2013