ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-13-2377
DATE: 2014/07/18
BETWEEN:
Karen Recoskie
Applicant
– and –
Paul Paton
Respondent
Wade L. Smith, for the Applicant
E. Jane Murray, for the Respondent
HEARD: July 17, 2014
DECISION ON MOTION
PHILLIPS J.
[1] The parties were married on June 4, 2004 and separated on May 31, 2010. There is one child of the marriage: Cole Paton, born October 16, 2007. There are three issues before the court at this time:
(i) The applicant asserts that the respondent should be required to recommence child-support payments.
(ii) The respondent argues that there has been a material change in circumstances such that there should be an increase in the amount of access as between he and Cole.
(iii) The respondent pleads under the Partitions Act that this Court order the sale of the matrimonial home. The applicant resists such an order on the basis that it would prejudice her claim for exclusive possession under the Family Law Act and would also unfairly affect the parties’ equalization of net family property.
Background Facts:
[2] When the parties first separated, their son was two and a half years old. At that time, the parties agreed that it was in Cole’s best interest to have his primary residence with the applicant. The current access schedule as between the respondent and his son runs from Sunday at 5:00 p.m. to Tuesday at 5:00 p.m. Cole is now six years old and attends school each weekday. The respondent complains that while this arrangement may have been appropriate when first devised, the present result is that he and Cole spend very little time together. He asserts that the child’s aging and school enrollment constitute material changes in circumstance warranting variation in the access arrangement notwithstanding that this is a pretrial motion.
[3] The parties endeavored to work out a child support regimen on their own from the outset. In the beginning, the respondent paid the mutually agreeable amount of $1,000 per month to the applicant. Thereafter, in July 2012, he unilaterally reduced the payment to $406 per month. Finally, apparently coming to the view that he had overpaid, he stopped paying any child support whatsoever in April 2014.
[4] There is considerable disagreement with respect to the respondent’s income. He is a small businessman who owns two restaurants. He has filed documents in the record indicating his annual income is not much over $12,000 per annum. In fact, according to the accounts he has filed, his restaurants mostly lose money and he carries significant debts. The applicant, not unreasonably, has a different view about his financial situation. She points out that since separation the respondent has been on almost 30 separate vacations, including multiple cruises. She also cannot help but notice that he drives a Hummer, a notorious gas guzzling behemoth which is among the most expensive vehicles one sees on the road. The applicant is in the process of securing an independent appraisal of the respondent’s businesses.
[5] The parties are set to have a trial of all of their issues in January 2015.
Issue One: Payment of Child Support
[6] It is encouraging to hear that the respondent stepped up and agreed at the beginning to pay child support. I am impressed that the parties came to an agreement as to quantum. For present purposes, the amount is immaterial - what counts is that they could work together toward coming to a mutual understanding about providing for Cole. It is not so encouraging to hear that the respondent later unilaterally reduced his obligation from the amount he had originally agreed to. It is downright distressing to learn that he thereafter chose to stop paying child support altogether.
[7] I am troubled by the arbitrariness inherent in the manner the respondent has conducted himself in discharging his responsibility to financially support his son. He seems to hold the view that he alone can dictate when he will pay support and at what rate. Indeed, the two sums that were paid ($1,000 and $460) appear to have been pulled from thin air. The decision to stop paying anything altogether was similarly subjective.
[8] I infer from the fact that the respondent recently chose to pay $460 per month that he can afford such an amount. There has been no meaningful change in his income since the time he selected that sum. Child support is a right of the child. It should not be arbitrarily changed or summarily waived. As an interim order on a without prejudice basis to either party, I direct that the respondent recommence paying child support in the amount of $460 per month starting August 1, 2014.
Issue Two: Change in the Access Schedule
[9] I have some sympathy for the respondent on this issue. I agree that the fact that Cole spends his weekdays in school has a considerable impact on the time available for father and son to foster their relationship. I note that section 16(10) of the Divorce Act directs that a child should have as much contact with each spouse as is consistent with the best interests of the child.
[10] In my view, to determine the best interests of the child in this context I must weigh the benefit of increased contact between father and son against the risk that any change to the access arrangement will be only temporary and thus problematically unsettling.
[11] It is a well-established principle that the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the child’s best interests (see: Grant v. Turgeon 2000 22565 (ON SC), [2000] O.J. No.970 at para 15). The rationale for this general rule is that when it comes to children, and access in respect of them, stability is preferred.
[12] I find that when a trial is on the near horizon, as here, it is best to leave the status quo in place and let the trial judge decide whether to change it after hearing a full body of evidence. To change things now when a trial judge may soon change them again creates an untenable risk of unnecessary instability.
[13] It is far from certain that a trial judge would decide to change this status quo in the manner requested by the respondent. If, for instance, the respondent is found to have been less than candid with respect to his financial disclosure, he may be found to have demonstrated an inability to act in his child’s best interests. A similar finding could ensue from his unilateral decision to cease paying child support touched upon above. Either such finding could bear on the issue of appropriate access. There is thus a real risk that the trial judge will simply undo any changes made at this time. In my view, acting in the face of that risk is not acting in the best interests of this child. The access arrangement currently in place will remain unchanged.
Issue Three: Sale of the Matrimonial Home
[14] The respondent moves under the Partition Act for sale of the matrimonial home. He asserts that he urgently needs his capital out of the home because he is financing significant debt.
[15] For her part, the applicant resists any such sale on the bases that:
• she wants to keep the house as it is the only primary home that Cole has ever known;
• that the issue of her exclusive possession of the home remains to be decided at trial;
• that she hopes to buy the husband’s interest in the home with her proceeds from equalization, a process currently complicated by her position that he has been less than forthcoming about the value of his business, as well as dispute about applicable offsets, including possible child support arrears;
• that the respondent does not in fact have an immediate need for the money.
[16] The Family Law Act “should be the statute of first resort in matrimonial disputes” (see: Silva v. Silva (1990) 1990 6718 (ON CA), 1 O.R. (3d) 436 (Ont. C.A.). That case also stands for the proposition that where substantial rights in relation to jointly owned matrimonial property are likely to be jeopardized by an order for partition and sale, an application under the Partition Act should be deferred until the matter is decided under the Family Law Act. The bottom line is that an order for sale must not impair the resisting spouses right to a trial of a substantial property issue (see: Binkley v. Binkley (1988) 1988 8717 (ON CA), 14 R.F.L. (3d) 336 (C.A.)). Accordingly, I find that the central question here is whether the applicant has a prima facie claim for exclusive possession of the matrimonial home that requires a trial.
[17] In determining whether to make an order for exclusive possession, section 24 of the Family Law Act directs that a court consider factors including the best interests of the child, determined in consideration of the possible disruptive effects on the child of a move to other accommodation as well as the financial position of both spouses and the availability of other suitable and affordable accommodation.
[18] I cannot agree with the respondent’s position that the applicant has no prima facie claim for exclusive possession of the matrimonial home. I consider that a significant status quo has built up over the four years since separation with Cole living in the matrimonial home as his primary residence throughout. Indeed, that house has been his primary home for his whole life. In my view, in light of that significant amount of time living in primarily one place, disruptive effects on the child arising out of a move are at least “possible”. Indeed, they are likely.
[19] I am told that the applicant hopes to permanently retain the matrimonial home by buying out the respondent when the couple’s net family property is equalized. This result strikes me as entirely in Cole’s best interests. While residential moves are often an unavoidable consequence of divorce, if they can be avoided they should be when such a move would possibly have disruptive effect on a child. The problem is that this couple is nowhere near in a position to equalize their net family property. They remain disagreed with respect to several key issues - not the least of which being the value of the respondent’s business as well as his income, which will of course affect whether there are any child support arrears. In this case, a fair resolution of the equalization issues will require a trial.
[20] I have not been persuaded that the respondent’s financial position requires urgent access to the capital in the matrimonial home. While I take him at his word that he is financing considerable consumer debt, in my view his management of those debts can be accomplished through means other than sale of the home at this time. It is hard to take seriously an assertion of financial distress from someone who has taken nearly 30 vacation trips over the past four years.
[21] Adding all this up, I find that:
(a) the resisting spouse, the applicant, wants the house to continue to make a primary home there for the child now in her primary custody;
(b) there is a legitimate claim for exclusive possession which remains to be decided at trial;
(c) the applicant hopes to be able to purchase the respondent’s interest in the matrimonial home from the proceeds of equalization of net family property. In this case, determination of net family property will involve assessment of credibility as well as findings as between potentially conflicting evidence (the respondent’s position against that of a business evaluator). It may also involve considerations of child support arrears. As such, the net family property landscape here will only be known after a trial;
(d) the respondent’s position of an immediate need for the funds in question is not compelling;
(e) it is now late July - the matter will proceed to trial within six months.
[22] I conclude that the respondent has failed to satisfy the onus upon him for the Partitions Act to prevail over the operation of the Family Law Act. The issue with respect to disposition of this matrimonial home is adjourned to the trial judge to be decided on the trial. The application on this motion for sale of the home is therefore denied.
[23] I did not hear the parties with respect to costs. Given that I have essentially deferred the central issues to the trial judge, I am inclined to leave costs in the cause.
Justice Kevin Phillips
Released: July 18, 2014
COURT FILE NO.: FC-13-2377
DATE: 2014/07/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Karen Recoskie
Applicant
– and –
Paul Paton
Respondent
DECISION ON MOTION
PHILLIPS J.
Released: July 18, 2014