ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12-0129
DATE: 2013-02-08
B E T W E E N:
Christopher McBride
Samantha A. Filipovic, for the Applicant
Applicant
- and -
Linda McBride a.k.a. Linda Grenier
Chris Arnone, for the Respondent
Respondent
HEARD: February 7 , 2013,
at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Decision On Motion
[1] Each of the parties brings a motion.
[2] During the hearing of the motions, most of the issues were resolved by agreement, or came close to resolution with the final details to be determined by the court. The major issue left unresolved was whether the court should grant a custody order with respect to the parties’ son who will turn 17 years of age in March.
[3] The parties were married on August 5, 1989. They separated on March 11, 2011. There are two children of the marriage, namely, Ashley Lynne McBride, born July 22, 1994, and Brent Christopher McBride, born March 2, 1996.
[4] Mr. McBride continues to reside in the matrimonial home. Ms. Grenier resides with Mr. McBride’s brother with whom she has established a relationship.
[5] The children resided equally with the parties from May 2011 until August 25, 2011. After that date they resided with Mr. McBride.
[6] In September 2012, Ashley entered Cambrian College in Sudbury Ontario in the first year of an Early Childhood Education Program. Her academic year has been financed in part by student loans totalling $8,686.00 and grants of $3,861.00. The balance of the funding has been from an RESP and by way of financial contributions from Mr. McBride and Ms. Grenier. There are significant issues as to what the costs of Ashley’s post-secondary education have been and what contributions have been made by Mr. McBride and Ms. Grenier. There is also uncertainty from the evidence as to where Ashley will reside when she completes her 2012-2013 school year in or about May. Mr. McBride takes the position that she will return to live with him in Terrace Bay until she goes back to school in September. Ms. Grenier deposes that Ashley has said she intends to remain in residence at Cambrian College during the summer until school resumes in September.
[7] Brent continues to reside with Mr. McBride. Accordingly to the Form 35.1 Affidavit in Support of Claim for Custody or Access filed by each party, Brent suffers from Asperger’s syndrome, which is on the spectrum of autism, and from attention deficit hyperactivity disorder. He requires an individual education plan. He is under the care of Dr. Derbyshire, a paediatric neurologist. He has a support worker. Mr. McBride uses the services of Wesway for respite care of Brent.
[8] Brent does not have extensive access with his mother and does not visit overnights. Mr. McBride deposes that because of Brent’s special needs, Brent cannot handle the turmoil that Mr. McBride says exists because of the relationship between Ms. Grenier and Mr. McBride’s brother. Mr. McBride deposes that Brent thrives on structure and stability. Mr. McBride states that the fall-out from Ms. Grenier’s relationship with Brent’s uncle has been too difficult for Brent to deal with. Mr. McBride deposes that the parties are unable to communicate and therefore joint custody is not practicable.
[9] Ms. Grenier deposes that Brent is controlled by Mr. McBride. She states that Mr. McBride does not allow Brent to remove his games and other items at the matrimonial home that give him comfort. She says this creates tension for Brent and prohibits him from freely attending her home. She disputes Mr. McBride’s allegations that Brent needs other parties to make decisions for him. She says she has a good relationship with Ashley and Brent, despite Mr. McBride’s attempts to ensure that she is not part of their lives.
[10] Ms. Grenier submits that the status quo of two years, with no custody order in place, should be preserved. She submits that there are no pressing decisions to be made for Brent. She submits that there is no medical evidence before the court to support the need for a custody order for a 17 year old child.
[11] Counsel for Ms. Grenier refers me to Sharpe v. Sharpe and Rother [1974] CarswellOnt 95 (S.C.) where Zuber J. stated, at para 2:
“Under the Divorce Act, R.S.C. 1970, c. D-8, in theory at least, courts can deal with custody until the children are 18. In practice, it is recognized that there is no point in making custody orders because they will simply make their own choice and obviously courts cannot supervise those custody orders in the case of older children, with any real degree of effectiveness.”
[12] The parties agree that for the purposes of this motion, I should deem Ms. Grenier’s income to be $70,347.00 and Ms. McBride’s income to be $55,000.00. These assumptions will be made, without prejudice to the position of either party to present better evidence on incomes related to the issues of ongoing and retroactive support, including Section 7 Guideline expenses. It is also without prejudice to credits each may be entitled to claim for past payments made to one another, or to third parties, benefitting the other or the children, or to Ashley. These assumptions are also without prejudice to a determination as to what Ashley’s contributions to her post-secondary expenses should be, if any.
[13] Guideline support for an income of $70,347.00 is $1,042.00 for two children and $647.00 for one child. Mr. McBride submits that Ms. Grenier should pay him support of $647.00 for Brent, plus one third of $395.00 ($1042.00 – $647.00), namely $132.00, for the costs of keeping a home for Ashley while Ashley is at school. The total sum he requests is $779.00 ($647.00 + $132.00)
[14] Ms. Grenier submits she should pay $647.00 to Mr. McBride and $395.00 directly to Ashley (Ms. Grenier has been paying this amount to Ashley over the past several months). Ms. Grenier submits that Mr. McBride should pay $200.00 to $250.00 to Ashley while she is at school.
[15] I have determined that Ms. Grenier should pay $647.00 per month to Mr. McBride for the support of Brent. In the event that Ashley returns to live with Mr. McBride after the completion of her school year, that amount will increase to $1,042.00, commencing on the first day of the month following the month that Ashley returns to reside with Mr. McBride.
[16] I have also decided that Ms. Grenier should pay $395.00 per month, directly to Ashley, to be credited against any contributions to her post-secondary expenses that are eventually determined to have been payable by Ms. Grenier for the 2012-2012 academic year. These payments will be for February, March, April and May of 2013.
[17] If after completion of her school year, Ashley remains in Sudbury and either party believes that support should be paid to or for Ashley, a motion may be brought.
[18] Support for Ashley, if she returns to school, in September or earlier, will have to be determined on further motion or at trial.
[19] I make no order for Ms. Grenier to pay support to Mr. McBride, at this time, for keeping a home for Ashley. There is contradictory evidence before me as to whether Ashley will, in fact, return to reside this year with Mr. McBride. If she does, the support of $1,042.00 referred to above will be payable. This determination is without prejudice to Mr. McBride seeking retroactive support for the expense of keeping a home for Ashley in Terrace Bay while she is at school in Sudbury.
[20] Lastly on the issue of support, Mr. McBride shall pay $308.00 per month directly to Ashley for the months of February, March, April and May, to be credited against any contributions to Ashley’s post-secondary expenses that are eventually determined to have been payable by him for the 2012-2013 academic year. This amount has been determined by taking his income as a percentage of the parties’ combined incomes, multiplied by Ms. Grenier’s contribution of $395.00 per month ($55,000.00/$70,347 x $395 = $308).
[21] Mr. McBride seeks contributions by Ms. Grenier to an orthodontic bill of $1,491.80, rendered November 14, 2012 by Dr. Albus for Ashley. Ms. Grenier states that the bill remains outstanding because Dr. Albus sent it to the wrong insurer. She states that the bill has now been sent to the correct insurer.
[22] An order shall go that Ms. Grenier shall be diligent in procuring reimbursement of the orthodontic costs from her extended health benefits insurer, keeping Mr. McBride apprised of the insurer’s decision. To the extent that the orthodontic costs are not reimbursed, the parties shall pay that amount in proportion to their respective deemed incomes of $70,347.00 and $55,000.00, namely 56% by Ms. Grenier and 44% by Mr. McBride.
[23] Each party shall maintain coverage for the children under their respective extended health benefits available through their employment.
[24] Each party shall name the children as beneficiaries under their life insurance policies, to a minimum of $125,000.00 per child, naming the other party as trustee. Each party shall provide proof that this coverage and the beneficiary and trustee designations are in place. If, because Ashley is 18, a trustee cannot be named for her under the terms of the policy, no trustee need be appointed for her.
[25] Mr. McBride shall have exclusive possession of the matrimonial home located at 39 Kenogami Road, Terrace Bay and shall be solely responsible for payment of the mortgage, taxes, and utilities related to the matrimonial home.
[26] The jointly owned rental property at 41 Kenogami Road, Terrace Bay, shall be sold on the following terms:
a) The property shall be listed for sale within 30 days with a mutually agreed upon real estate agent at a mutually agreed upon price.
b) If the parties are unable to agree on a sale price, they will obtain the opinion of a real estate agent. Failing agreement on this opinion, they shall, at their joint expense, obtain an appraisal by a certified residential real estate appraiser, and the property shall be listed at that appraised value.
c) The parties shall accept the highest purchase price with the best conditions
d) Each party shall have the right to purchase the property in competition with other buyers
e) The net proceeds of sale shall remain in trust with the solicitor conducting the sale, pending order of the court or consent of the parties
f) If the parties are unable to agree on the terms of sale, either may apply to the court for directions
g) Pending sale of the property, Ms. Grenier shall be solely responsible for payment of mortgage, taxes and utilities related to the property and shall be entitled to receive the rental income.
[27] The contents of the matrimonial home as of the date of separation shall be appraised by a mutually agreed upon appraiser. The costs of the appraisal shall be shared equally, in the first instance, by the parties, subject to final determination of the costs by the trial judge.
[28] Finally, with respect to Brent, I am not satisfied that an order of custody is required. Brent will be 17 years of age next month. I accept the comments of Zuber J. in Sharpe v. Sharpe about the practical difficulties of an order for custody when a child is Brent’s age.
[29] The parties agree that Brent should be allowed to choose when and for how long he should visit with Ms. Grenier. There has been no formal custody order in place during the past two years following the parties’ separation. There is no evidence that Brent’s best interests have in any way been adversely affected by the fact that there has been no custody order.
[30] There is no evidence that his best interests will be enhanced by a custody order. There is no evidence of decisions that, at least in the interim, need to be made for him. I accept Mr. McBride’s submission that Ms. Grenier’s relationship with Mr. McBride’s brother has been difficult for Brent to deal with and that Brent requires structure and stability. That, however, does not mean that a formal custody order is required.
[31] A custody order may have ramifications on Brent’s view of his relationship with his mother and his father that I am unable to foresee at this time. I do not want to make a difficult situation for him worse by an order that has unintended consequences.
[32] The parties request an opportunity to make submissions as to the costs of this motion. If they are unable to agree on costs, they shall make arrangements with the Trial Co-ordinator within the next 10 days to set a date to speak to the issue.
The Hon. Mr. Justice D. C. Shaw
Released: February 8, 2013
COURT FILE NO.: FS-12-0129
DATE: 2013-02-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Christopher McBride
Applicant
- and –
Linda McBride a.k.a. Linda Grenier
Respondent
DECISION ON MOTION
Shaw J.
Released: February 8, 2013
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