SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Stacy Silver v. Robert Clow
Kingston Court File Number: 381/13
Neutral Citation Number: 2014 ONSC 3864
BEFORE: Mr. Justice D. Belch
COUNSEL:
Mr. S. Zap, for the Applicant
Mr. B. Bien for the Respondent
HEARD: June 16, 2014
ENDORSEMENT
[1] Both Stacy Silver, (Applicant) and Robert Clow, (Respondent) request interim relief by way of a Temporary Order.
[2] They are the parents of 4 children, aged 17, 15, 13 and 7. They separated August 1, 2012 following a relationship of 16 years.
Income
[3] The Applicant is in receipt of Ontario Works plus a modest income earned as a playground supervisor with the Limestone District School Board and together the two approximate $14,000.00 annually.
[4] The Respondent earns $58,000.00 annually with CINTAS.
Background
[5] The Respondent has occupied the jointly owned matrimonial home since separation and claims to have made improvements to the home, to have paid the mortgage, Visa, and assumed other debt from the relationship. However, in the 18 months of separation has not paid child or spousal support nor has he paid occupational rent.
Custody and Access
[6] The Applicant seeks joint custody, primary residence with her, subject to supervised access by the Respondent, supervised because of an assault committed by the Respondent upon their 15 year old child.
[7] The Respondent requests joint or shared custody and rejects the notion of supervised access and claims he will never strike any child again saying he was under stress when he struck their 15 years old son. In addition the Respondent requests his mother be allowed to care for their children when the children are with him but for some reason he is unable to stay with them. The Applicant rejects this arrangement stating as she is a stay at home mother the Respondent should return the children to her if he is not available to care for them. Further, the Respondent submits he should be allowed to pick up the children after school at 4:30 p.m. rather than the present 5:30 p.m. and wants to deliver the children directly to school in the morning from his house rather than delivering the children to the home of the Applicant mother.
Child Support
[8] The Applicant is seeking full guideline support including retroactive child support to the date of separation; August 1, 2012 although during the motion restricted this to May 28, 2014, without prejudice to be paid to August 1, 2012 at trial.
[9] The Respondent offers to pay partial guideline support at the rate of $620.00 monthly given he pays the CIBC line of credit of $783.00 monthly; Visa $660.00 monthly; the mortgage $1186.25 monthly, hydro of $120.00 monthly, and home insurance of $162.09. In addition, he claims he has the children 50% of the time or at least 40%. The Applicant disputes both the 50% and 40% suggestion submitting at most the children might be in his care only 35% of the time.
Spousal Support
[10] At present the Applicant makes no claim not because she would not be entitled but on the understanding there is only enough income to pay child support.
Occupational Rent
[11] The Applicant claims occupational rent which the Respondent denies or disputes. There was no evidence presented on which an amount could be calculated by the Court.
[12] The Applicant wants the matrimonial home listed until sold with the proceeds to be accounted for in calculating an equalization payment.
Matrimonial Home
[13] The Respondent wants to purchase the Applicant’s interest in the matrimonial home.
[14] Both parties accept a valuation of $230,000.00 for the matrimonial home.
[15] There is no agreement upon whether the Respondent made improvements to the home, what debts he paid, or whose debts they were.
Analysis and Conclusion
The Children
[16] Generally, absent compelling circumstances courts will maintain the status quo pending trial. This court will follow that principal to the extent possible, however, the parties did not always agree upon the status quo.
[17] With respect to the 2 oldest children, they are approaching an age where they will make their own choices. This is not the case for the 2 youngest and the Court will accept the positions of both parties and appoint the OCL as counsel for the children. In addition the timelines on consent are extended a further 120 days.
[18] Given the Respondent’s access is currently supervised by the Family and Children's Services of Frontenac, Lennox and Addington, this supervision to continue until Family and Children's Services of Frontenac, Lennox and Addington deems it unnecessary.
[19] Pending trial or further Order of this Court, the children will reside with the Respondent
On alternate weekends from Friday at 4:30 p.m. until Sunday at 5:00 p.m.;
On a week on / week off basis as follows on his weeks:
a. Monday 4:30 p.m. until Tuesday at 8:15 a.m.
b. Tuesday 4:30 p.m. until Wednesday at 8:15 a.m.
c. Wednesday 4:30 p.m. until Thursday at 8:15 a.m.
d. Thursday 4:30 p.m. until Friday at 8:15 a.m.
[20] At all other times the children shall reside with their mother, the Applicant.
[21] The 15 year old to decide on his own whether to reside with father in view of the assault.
[22] For the summer of 2014 the above arrangements to be suspended for the period of 3 weeks, when the Respondent has his summer holidays and for those 3 weeks the children will reside with the Respondent.
[23] If the Respondent is unable to care for the children during his allotted time, the children to be returned to the Applicant’s care.
[24] The Court rejects the Respondent’s request to deliver the children to school directly from his house assuming the children will need to obtain a change of clothing at the Applicant’s house. This is balanced by allowing the Respondent to pick the children up at 4:30 p.m. rather than 5:30 p.m.
The Matrimonial Home
[25] The Respondent to have 45 days to purchase the Applicant’s interest in the matrimonial home based upon a purchase price of $230,000.00 subject to an accounting agreed to by the parties taking into account improvements, shared expenses of taxes, mortgage, Visa, home insurance and occupational rent. This list is not meant to be exhaustive and may address equalization as well as contents, pensions, etc.
[26] Should the Respondent not exercise this option to purchase within 45 days, the matrimonial home is to be listed until sold, the Respondent to have exclusive possession with responsibility to pay existing household debts subject to an accounting within the equalization process.
[27] If the Respondent exercises his option to purchase the home, he is ordered to pay full guideline support for the children based upon his income of $58,000.00 which for 4 children is $1332.00 monthly commencing August 1, 2014.
[28] In the event the house does not sell, the Court exercises its discretion to order an amount less than guideline on a hardship basis which will $750.00 monthly commencing August 1, 2014 until the house sells.
Other Issues
[29] Retroactive child support and occupational rent are to be decided as trial issues unless agreed to in the house purchase agreement.
[30] There is no Order for cost of this motion as each side has enjoyed some success.
Summary
[31] In Summary, a temporary order to issue on the following basis:
OCL appointed;
Timelines extended 120 days;
Pending trial no custody Order but residence periods defined;
Respondent’s residence time supervised by Family and Children's Services of Frontenac, Lennox and Addington;
No spousal support at this time;
Respondent has 45 days to purchase Applicant’s interest in the matrimonial home failing which it is to be listed until sold;
Respondent to pay child support commencing August 1, 2014 in the amount of $1332.00 if he purchases the matrimonial home, or in the amount of $750.00 if he does not or while the house remains unsold to another, however, Respondent to pay the expenses as described in paragraph 25;
Retroactive child support and occupational rent are trial issues;
No costs.
Date: June 20, 2014 Mr. Justice D. Belch