SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-13-2390
DATE: 2014/06/25
RE: David Neilipovitz, Applicant
AND
Michelle Neilipovitz, Respondent
BEFORE: Justice Timothy Minnema
COUNSEL:
Adriana Doyle, for the Applicant
Pam MacEachern, for the Respondent
HEARD: May 16, 2014
ENDORSEMENT
[1] This was a motion and cross-motion for a number of heads of interim family law relief. After summarizing the basic facts and issues I will deal with each request one by one. As a general statement of the law on these motions, I note the following passage from Brown v. Brown (1999), 1999 15074 (ON SC), 45 O.R. (3d) 308 (Ont. S.C.J.), at para. 34:
Interim orders are meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will get a full airing at trial. Of necessity, interim orders are susceptible to error - the same evidence is simply not available at that stage as at trial. Interim orders are makeshift solutions until the correct answer is discovered at trial.
Basic Facts
[2] The parties married in 1994. They have three children aged 13, 10 and 7. They separated on either May 23, 2013, per the father, or on July 1, 2013, per the mother. The father is a medical doctor at the Ottawa Hospital, with a number of roles including being Head of the Department of Critical Care Medicine. He makes a significant income. The mother has training as a teacher, but has not worked much in that role since 2000. Recently she has been doing supply teaching, and has a plan to gain full employment over time. She had been managing the father’s professional undertakings, including working as his billing agent.
[3] What the voluminous affidavit evidence establishes at this stage is that the mother was the primary caregiver of the children during the marriage while the father was an involved parent. When the father became the Head of Critical Care in 2011, he had more administrative work and less clinical work, and had more control over his schedule. He has taken advantage of that since separation, making himself more available for the children, approaching equal time. Since separation both parties have remained in the matrimonial home, which is jointly owned.
Issues/Positions
[4] The parties have agreed on interim joint custody and on life insurance. Their agreement shall be incorporated into the issued order. The father advises that he is no longer seeking interim exclusive possession of the matrimonial home. The other issues and positions are as follows:
Access to and residence of the children is still an issue. The father seeks a week-on week-off schedule with a mid-week dinner for the parent who does not have the children. The mother seeks primary residence to her and specified access to the father, every other weekend from Friday after school until Monday morning and every Thursday overnight.
The father is seeking a custody/access assessment. The wife does not oppose, unless it will delay the interim order.
The mother is seeking interim child and spousal support. The father does not oppose, although they cannot agree on the amounts.
The mother wants the home sold so that she can get at her share of the equity, and use it to obtain another residence. The father wants to buy the mother’s interest in the home.
Custody/Access
[5] The father relied on my previous decision in Button v. Konienczny, 2012 ONSC 5613, 2012 CarswellOnt 12353. I had examined a line of cases and found, as I find here, that the test on an interim custody and access motion is that the status quo is ordinarily to be maintained until trial unless there is material evidence that the children’s best interest demands an immediate change.
[6] The status quo before separation regarding the three year old child in that case had been shared parenting. For the five months after separation until the interim motion was heard on its merits, the child resided primarily with the mother with access to the father under a ‘without prejudice’ order. I found that those five months did not create a new status quo, particularly given the difficulties counsel encountered having the matter heard earlier and the nature of the court order. The Button case has been judicially considered once, in Lemieux v. Mercer, [2012]O.J. No. 5979 (S.C.J.). It was distinguished on the facts, as the court there found that the pre-separation status quo was not shared parenting.
[7] Here there is evidence of a new reality regarding the father’s day-to-day involvement that has been in place for about a year. The mother, however, contends that the father’s increased time with the children is an attempt to “re-write history.” She relies on Rofail v. Naguib, 2012 ONSC 931, where the court noted at para. 34 that the father’s “increased involvement with the children has only occurred since the separation, and is, in my view, designed to manipulate long standing parental roles because of the separation.” Unlike here, that decision was made less than four months after the parties separated. I do not see it as standing for a general proposition that all efforts by a parent to get more involved in his or her children’s lives after separation must be viewed with suspicion. Separation changes many things. Here the mother is seeking expanded employment outside of the home. The children are all in school and obviously getting older. The parents are going to live in separate homes and that the children will have to adjust. In those circumstances, the father changing his attitude to the parenting role by becoming more involved does not appear to me to be manipulation. To the contrary, he appears to be making a conscious and sincere effort to achieve a positive outcome for the children in response to the significant upheaval from the marriage breakdown.
[8] To go back now to the status quo that existed approximately a year ago would not be in the children’s best interests in my view. They can only benefit from the father’s efforts to maintain and strengthen the security of their relationship with him. There is nothing in the evidence that establishes that his increased time has harmed the children’s strong relationship with their mother, or that there is any such risk. As long as conflict is kept to a minimum, the children benefit from having both parents very involved in their lives.
[9] Whether it is called a ‘new’ status quo since separation or a determination on material evidence that the children’s best interest requires a change from the pre-separation status quo, I find that on an interim basis an equal sharing of time is appropriate. This can be most easily achieved, per the only such proposal before me, by an alternating weekly schedule with a mid-week evening to the non-residential parent, along with liberal telephone access and unlimited contact at all extracurricular activities. I order accordingly. This will maximize the children’s relationships with both parents pending a full determination at trial as to what final arrangement is best for them. I also order that over the summer each party shall have two full weeks back to back uninterrupted, without the mid-week evening visit, or as they otherwise agree.
Custody and Access Assessment
[10] Interim custody and access having been dealt with, the mother does not oppose the father’s request for a custody and access assessment. Order to go as requested in paragraph 4 of the father’s Notice of Motion. I expect that, with experienced counsel assisting them, the parties will be able to agree on who will do the assessment and on how it will be paid. If not, either can bring a motion to the court for directions.
Support
[11] As noted, the father does not dispute paying interim spousal and child support. Both parties relied on the Spousal Support Advisory Guidelines (“SSAG”). However, they differed on which income figures to use and which SSAG range or calculation to apply.
Father’s Income
[12] The father provided a ‘Preliminary Income Report and Valuation’ by S.R. (Steve) Pittman dated April 22, 2014. Mr. Pittman gave a weighted average of the father’s income over the past four years of $670,554. I find that this is the number to be used for the support calculations.
[13] I note that the mother’s position in her factum was that a lack of disclosure and a failure to take into account an annual stipend meant that the father’s income was closer to $800,000 per year. At the hearing, however, her position was that she was prepared to accept the weighted averages from the Report. Still, she urged me to find that the actual income was considerably higher. She argued that $400,000 came from dividends and would receive favourable tax treatment that had not been properly considered. However, Mr. Pittman did consider dividends. I am not able to determine based on argument that he did so improperly, or that a higher income number needs to be used. I am taking a cautious approach here. The dividend argument is one for trial, in my view. If the mother is correct, adjustments can be made at that time. As noted in Jesse v. Jesse, 2010 ONSC 861, at para. 64:
Temporary motions for child support are notoriously difficult where adequate income information is not available and judges are always told to adopt a cautious approach to income in these circumstances: Billings v. Billings (2004), 2004 CarswellOnt 295 (Ont. S.C.J.). In Walsh v. Walsh (2004), 2004 36110 (ON CA), 69 O.R. (3d) 577, 46 R.F.L. (5th) 455 (Ont. C.A.), Laskin J.A. emphasized the better position of a trial judge who can benefit from a full review of the merits and correct past support.
Mother’s Income
[14] The mother is a teacher but she has not worked full-time for over 14 years. She is now getting work as a supply teacher. She estimates that she will earn $15,000 this year. I find that this is the amount to be used for the interim support calculations. This is despite the father asking that $30,000 income be imputed to her. Generally, the Child Support Guidelines are used to assess the imputation of income for the purposes of both child and spousal support: Murray v. Murray (2003), 2003 64299 (ON SC), 66 O.R. (3d) 540, rev'd on other grounds 2005 30422 (ON CA), [2005] O.J. No. 3563 (Ont. C.A.); Thompson v. Thompson, 2013 ONSC 5500, [2013] O.J. No. 4001 (S.C.J.). Pursuant to subsection 19(1)(a) of those Guidelines, I am not satisfied on the evidence that the mother is intentionally underemployed. Further, per the test in Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.), I find that there is no rational basis on the evidence to support the number the father has put forward.
SSAG and CSG Calculations
[15] The court cannot be expected to do counsel’s SSAG calculations for them (Cassidy v. McNeil, 2010 ONCA 218, [2010] O.J. No. 1158 (Ont. C.A.) at para. 61). However, the SSAG calculations provided to me do not reflect the income findings I have made above. I have therefore, for expediency, included my own calculations attached as Schedule “A”.
Child Support and s. 7
[16] The parties were content to use set-off table amounts for child support. Per Schedule “A”, the father shall pay child support of $9,897 per month. The parties shall share section 7 expenses apportioned 83% to the father and 17% to the mother. A party incurring an s. 7 expense shall first obtain written consent from the other party, such consent not to be unreasonably withheld.
Spousal Support
[17] As the father does not contest paying interim spousal support, there is no issue as to entitlement. As to the amount, both parties relied on SSAG calculations. The mother sought the mid-range. The father argued that he should pay at the low range capped at 50% of the parties’ net disposable income.
[18] I have assessed the SSAG calculations in Schedule “A” in light of subsection 15.2(4)of the Divorce Act, taking into consideration what is known about the condition, means, needs and other circumstances of both spouses as summarized above. The length of time the parties have cohabited is also a factor I have considered.
[19] In my view, as the parties will be in a shared custody arrangement until trial, an equal sharing of their net disposable income per the SSAG calculations is an appropriate, fair, and reasonably acceptable interim solution. Factors such as the strength of the compensatory claim, the recipient’s needs, self-sufficiency incentives, work incentives for the payor, and the property division, can be better considered after trial and adjustments made at that time. Order to go that spousal support shall be paid by the father in the amount of $8,357 per month per Schedule “A”.
Exclusive Possession/Interim Sale of the Home
[20] As noted the mother wants the house sold so she can move on, and the father opposes. He wants to buy out her interest. She has indicated to him that she is prepared to sell. He has obtained a formal appraisal, but they cannot agree on a price.
[21] The mother’s request is being made under s. 3(1) of the Partition Act, R.S.O. 1990, c. P.4. The general rule is that a joint owner has a prima facie right to partition and sale, although the court can refuse the request where it finds malicious, vexatious, or oppressive conduct: Latcham v. Latcham, 2002 44960 (ON CA), [2002] O.J. No. 2126 (Ont. C.A.) at para. 2. Added to that general rule is the proviso that in ongoing family law cases the order should not be made where it is shown that it would prejudice either spouse under the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”): Silva v. Silva, 1990 6718 (ON CA), [1990] O.J. No. 2183 (Ont. C.A.), 5th last para.; Ames v. Bond, [1992] O.J. No. 3614 (Ont. C.A.), at para. 2. Practical issues can also be considered, such as how close the matter is to trial (Punit v. Punit, [2014]¸O.J. No. 1532 (Ont. C.A.) at para. 22), and a party’s needs for and ability to get at the funds before trial (Silva, supra, 4th last para.; Punit, supra, at para. 22).
[22] There is no general discretion under the Family Law Act to redistribute property or alter ownership unless it is to satisfy an equalization payment: Buttar v. Buttar, 2013 ONCA 517, [2013] O.J. No. 3725 (Ont. C.A.) at para. 53. The father, not the mother, will owe an equalization payment here. As such there would be no prejudice to the father under Part 1 of the FLA if the home were sold.
[23] Prejudice might be found if a sale would defeat a meritorious claim for exclusive possession of the home. While the father did seek exclusive possession in his application and initially on this motion, he advised at the hearing that he was not pursuing it.
[24] The main disagreement regarding the sale of the home, as argued, was really one of price. While they indicated that they are close, the parties cannot agree on a number at this time. In my view there is no rationale for delaying a sale to see if they will somehow resolve that issue between now and trial. The mother needs an opportunity to access to her equity to obtain alternate accommodation. As noted in Silva, supra, “I can think of no reason why the husband should hold the house hostage until his claim has been adjudicated.”
[25] Order to go as requested by the mother in para. 1-g of her Notice of Motion. If the parties cannot agree on the mechanics of the sale or on the disposition of the net proceeds, they can bring a motion to the court for directions.
Decision
[26] Orders made as indicated above. The monthly support orders shall commence July 1, 2014, and are without prejudice to the mother’s claim for retroactive support back to the date of separation.
[27] Success on these motions is clearly divided. If either party has made an offer to settle that they feel meets the test under Rule 18 then I will accept brief written submissions on costs within 10 days, otherwise, no costs.
Minnema J.
Date: June 25, 2014
COURT FILE NO.: FC-13-2390
DATE: 2014/06/25
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: David Neilipovitz, Applicant
AND
Michelle Neilipovitz, Respondent
BEFORE: Justice Timothy Minnema
COUNSEL: Adriana Doyle, for the Applicant
Pam MacEachern, for the Respondent
ENDORSEMENT
MINNEMA J.
Released: June 25, 2014