SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: FD1970/11

DATE: February 1, 2013

RE: Douglas Robb Newton, applicant

AND:

Leeanna Dawne Newton, respondent

BEFORE: S.K. CAMPBELL J.

COUNSEL:
Michael R. Nyhof for the applicant

William Doran for the respondent

HEARD: January 30, 2013

ENDORSEMENT

INTRODUCTION

[1] There are four issues to be determined, as set out in the order of McDermid J. dated January 23, 2013. They are:

a) the nature of the children’s permissible contact with the 5 goats and 2 sheep and where those animals shall be kept;

b) the sale or transfer of the matrimonial home and related terms;

c) interim or interim interim child support; and

d) interim police enforcement of custody and access.

BACKGROUND

[2] The parties were married September 7, 2005. They began living separate and apart on or about October 1, 2009. There have been times since their separation where they have resided together under the same roof in the matrimonial home on Edinborough Line in Dutton.

[3] The parties have two children: Mikyle Thomas Newton, born September 25, 2005; and, Aydin Robb Newton, born November 22, 2007. The parties resolved the issue of interim custody on consent. Those arrangements are set out in McDermid J.’s order.

CHILDREN’S CONTACT WITH ANIMALS

[4] The children are boys, aged 7 and 5. They lived at the former matrimonial home, which is a hobby farm, prior to separation. It also appears from the materials that the children have spent a substantial amount of time at this home since separation. That includes times when their parents both resided there and times when only their father resided there.

[5] The respondent is concerned about the children being allowed to come in contact with the sheep and goats currently kept at the farm. She expresses concerns for their safety and health and suggests that the animals be penned adjacent to a barn some distance from the home.

[6] The applicant says that the boys are not exposed to the animals in an unsafe way. To pen them in a manner proposed by the respondent would be unnecessary, inconvenient and expensive.

[7] In coming to the arrangement for custody, the parties acknowledged their disagreement with the children’s contact with the animals and determined that the court should decide the issue. The housing of the animals and proximity of a pond is now raised by the respondent in her position with respect to the sale of the home. She states these concerns predated the parties’ separation.

[8] The applicant has in law an obligation to secure the animals for the protection of the public. The protection of his children should be and likely is a concern to him as well. However, to ensure there is no issue about the applicant’s obligation and concerns, I order that the animals kept on the farm be secured in an enclosure secure enough to prevent the animals from coming into contact with the children. Further, the children shall not be allowed contact with the animals in the enclosure unless they are supervised by a person over the age of 18 years. They are not to enter the pen or have access to the adjoining pond without adult supervision. The enclosure shall be sufficiently secured to prevent the children from entering it without the assistance of an adult.

[9] This may require the applicant to construct a more extensive perimeter or fencing than currently exists. Until that perimeter is constructed, the children shall not be outside the house without adult supervision.

SALE OF THE MATRIMONIAL HOME

[10] The parties have both expressed an interest in disposing of the house at various points in this proceeding. The applicant now says he wants to purchase the property and has the support of his bank.

[11] The respondent opposes the applicant buying the home, partly out of concern for the children’s safety but primarily because she does not believe the applicant has the ability to complete the transaction. Additionally, she argues an equalization payment may be owed by the applicant to her and the proceeds of sale will be needed to satisfy that debt. It is noted that neither has produced sufficient information to calculate the amount of any equalization payment owing.

[12] If the applicant is able to purchase the home at the same price as the current proposed third party purchasers, it will benefit both the applicant and respondent. There will be no commission payable and the transaction will close more quickly, i.e. there will be no requirement to sell a home or meet other conditions. The only potential issue is financing.

[13] The applicant’s offer to purchase, as set out in his materials, is not to be considered on the same footing as the offer to purchase from the Coles. Their offer to purchase is attached as Ex. 1 to the affidavit of the respondent sworn January 28, 2013.

[14] However, I will adjourn the motion for sale of the home to February 8, 2013. In the interim, the applicant may submit an offer to purchase the property. The court on the 8th can consider whether the applicant’s offer should be accepted. It is obvious that his offer and supporting materials will have to demonstrate to the court that he has the ability to complete the transaction. His proposal cannot be based on half values. The applicant should not be treated any differently than the other purchaser on the open market. That is, the full purchase price will have to be paid and the balance remaining, after payment of closing costs and encumbrances, retained in trust.

CHILD SUPPORT

[15] The parties have not completed disclosure of all information necessary to determine the issue of child support. That is in part as a result of the matter proceeding before all income information slips are available. The applicant proposes he pay support in the amount of $156 per month. This is based on a shared custody arrangement with the applicant’s income being fixed at approximately $67,000 and the respondent’s income being fixed at approximately $56,000. The applicant’s income is based on his projected income for the year. The respondent’s income is based on what the applicant submits would be her income if she worked 40 hours a week for 49 weeks of the year. That would require me to impute to the respondent a substantially higher income than she earned in 2012. I am not prepared to do that at this time.

[16] Therefore, there will be an interim interim order that the applicant pay to the respondent for the support of the children the sum of $417 per month. This is based on a shared custody set off, with the respondent having an income of approximately $40,000 and the applicant having an income of approximately $67,000. That is the income the applicant projects he will have and the respondent’s estimated actual income for 2012.

[17] Payments shall commence February 1, 2013 and the issue of retroactivity or adjustment based on either party’s income is reserved to the trial judge.

INTERIM POLICE ENFORCEMENT OF CUSTODY AND ACCESS

[18] The custody order has only been in place since January 23, 2013. There is no doubt some issue as to the parties failing to honour the arrangements they made prior to such arrangements being included in a court order. In my view, it would be inappropriate to make an order with respect to police enforcement unless and until there is a demonstrated issue with respect to either party following the court order. That is, the court order should have some salutary effect on both parties. Therefore, that issue is adjourned sine die returnable on three days’ notice.

[19] In my view, success on the aspects of the motion that I have dealt with has been divided. On that basis, neither party should be entitled to their costs. Cost of the issue with respect to the sale of the home shall be reserved to the motions judge dealing with that matter.

“Justice Scott K. Campbell”

Justice Scott K. Campbell

Date: February 1, 2013