SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 525/12
DATE: 2014/08/20
RE: F.A.T., Applicant
AND
R.E., Respondent
AND
M.F.T., Added Party
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Mary-Jo Maur, for the Respondent
No one else appearing
HEARD: July 25, 2014
ENDORSEMENT
Issue
[1] This was a motion by the respondent wife R.E. for summary judgment on custody, access, and related claims. She was also seeking final orders for a sale of the matrimonial home, receipt of half the net proceeds, and for lump sum child and spousal support to be satisfied from applicant husband F.A.T.’s net proceeds from the sale.
Preliminary Issue: Service
[2] As neither the husband nor his father, the added party, attended on this hearing or filed any materials, I first reviewed the question of whether they were properly served.
[3] Both those parties were represented by the same counsel until September 11, 2013. On the motion granting that counsel’s request to be removed as their solicitor of record, the address for service for both the husband and his father was identified in the style of cause as D[…] Road, Kingston, which is the former matrimonial home. That was also their personal address when they first filed their pleadings.
[4] Regular service may be carried out at the address for service shown on the latest document filed by the person to be served: see Rule 6(5) of the Family Court Rules, O.Reg. 114/99, as amended (“the Rules”). If a person’s address for service changes, the party shall immediately serve notice of the change on the other parties and file it (Rule 6(6)). No such notice was filed in this proceeding.
[5] On September 25, 2013, an order was made that service by the wife on the added party shall be at that same D[…] Road address. This is in keeping with the operation of the above noted sub-rules.
[6] On March 3, 2014, an order was made on the consent of the husband that he may beserved via email at [ email address ]
[7] Since March 10, 2014, the husband’s new address has been shown on his court documents as R[…] Ave., Guelph, Ontario.
[8] Per the affidavit of service for this motion, both the husband and added party were served at their last known addresses indicated above, namely the applicant at his Guelph address, and the added party at the D[…] Road address. Further, the husband was also alerted to this motion in the materials served on him by email at the above noted email address on July 3, 2014 related to a separate motion.
[9] Given the above, I find that service was properly affected on the applicant husband and the added party for this motion.
Custody and Access
Background Facts
[10] The parties were married on July 11, 2006 in Kuwait, and separated on September 3, 2012, in Kingston, Ontario. The wife is a citizen of Kuwait, and the husband a citizen of Syria. They are both highly educated. The husband has a Ph.D. degree and is an associate professor in the computer science department at the University of Guelph. The wife is a Ph.D. candidate at Queen’s University. They had moved to Canada in September of 2007 because the husband had been accepted into Queen’s. They have two children together, L.A.T. born […], 2008, and D.A.T., […], 2012. The children are Canadian citizens. The wife was the primary caregiver for the children and managed the home.
[11] Following the separation, the husband brought an urgent motion that included a request for an order that the wife not remove the children from the County of Frontenac and that the children’s passports be surrendered to the court. A without prejudice order along those lines was made on September 6, 2012, and it also granted the husband parenting time with the children, unsupervised. That order was continued on September 12, 2012. The husband’s access following that order was every Saturday and Sunday for six hours and on Tuesdays for three hours. In the summer of 2013, the husband was charged with assault, sexual assault, and forcible confinement of the wife, and of threatening her. These charges related to incidents that occurred prior to the separation. Following the charges the husband’s access was ordered to be supervised at the Supervised Access Centre. Initially the visits were weekly, but when he obtained employment in Guelph shortly afterwards in the fall of 2013, they went to every other weekend and then, at his request, every third weekend. When they occurred, the visits went well.
[12] On June 19, 2014, the husband was convicted on all four criminal charges. His sentencing is expected to happen in September of 2014.
[13] Since the convictions, the husband appears to have withdrawn from this process. He did not attend at the two motions before the court regarding passports and travel, which were the very issues that triggered his bringing the initial urgent motion. He did not appear on this motion although served. He also did not attend his subsequent access visit at the Supervised Access Centre and did not call to cancel or make other arrangements. That agency has therefore put his visits on hold.
Law and Analysis
[14] The tests for custody and access are found in section 16 the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), as amended. As a brief overview, I am to take into consideration only the best interests of the children as determined by reference to their conditions, means, needs and other circumstances (subsection 16(8)). Past conduct is not to be considered unless relevant to a person’s ability to act as a parent (subsection 16(9)). The children should have as much contact with each spouse as is consistent with their best interests (subsection 16(10)).
[15] Summary judgment is governed by Rule 16. Per 16(1), a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defense presented in the case. Rule 16(6) reads “If there is no genuine issue requiring a trial of a claim or defense, the court shall make a final order accordingly.”
[16] In this case, the wife, in her amended answer, claimed custody of the children, with access to the husband in the children’s best interests. Her motion dovetailed with that request, seeking that the access be supervised and also asking for specific orders regarding passports and travel, which I find are incidents of custody. With the evidence that the wife was the primary caregiver of the children, and given that the husband has only been having limited supervised access for over a year now and even that is on hold, I find that there is no genuine issue requiring a trial as to whether custody should be granted to the mother. Further, there is no need for a trial regarding access or with respect to the related orders sought. The hope is that the father re-surfaces and works on re-establishing his relationship with the children.
Lump Sum Child and Spousal Support/Setting Aside the Transfer of the Matrimonial Home
Background Facts
[17] The wife’s amended answer seeks equalization, and on the motion she indicated that the only asset of note was the matrimonial home. She sought a number of orders related to it.
[18] The home was purchased on January 31, 2011, after marriage but before separation, in the husband’s name alone. The full purchase price of approximately $225,000 came from the husband’s father, the added third party, who in turn received a mortgage for the same amount.
[19] On July 25, 2012, less than six weeks before the date of separation, the home was transferred to the husband’s father for nominal consideration and the mortgage discharged. The wife claims that she was coerced into consenting to that transfer and that the lawyer who did the transaction, who has since been disbarred, denied her the right and opportunity to seek and obtain independent legal advice. After the separation she left the home with the children to go to a shelter.
[20] In her amended answer the wife sought a declaration that the husband’s father holds title of the home in trust for the parties jointly. She also sought, presumably in the alternative, an order setting aside the transfer of the home to the husband’s father. Her request was to have the property sold and the net proceeds divided equally between her and the husband.
[21] On the summary judgment motion the wife was no longer seeking a trust against the husband’s father. She still sought to have the transfer from the husband to his father set aside. She still sought to have the home sold, with an added request that title be vested in her name alone to affect the sale. While she still sought to have the net proceeds divided equally between her and the husband, she also sought lump sum awards of spousal and child support such that she would obtain the husband’s share as well, namely all of the net proceeds.
[22] The request for lump sum support was not pled by the wife in her answer. On the motion the basis for that claim was her belief that as a result of the recent criminal convictions the husband “may go to jail”, that it was “fairly likely he will lose his job”, and that as a permanent resident but a Syrian citizen he could be deported. There was no evidence on how likely any of those events are to occur. Despite the father’s lack of attendance on access, the current support orders were being paid.
Law and Analysis
[23] As set out above, summary judgment may be granted if there is no genuine issue requiring a trial “on all or part of any claim made or any defence presented in the case”. As noted, lump sum child and spousal support were not specifically pled.
[24] Generally, lump sum child support is awarded where there is evidence that the payor parent will not honour a periodic support order or has avoided his financial responsibilities for his children. While there have been some difficulties with disclosure, in my view there is still an issue for trial here. It was conceded that the husband has been paying the interim child support as ordered.
[25] He has also paid the interim spousal support order. Lump sum spousal support can be ordered for any number of reasons, risk of non-payment only being one: see Davis v. Crawford, 2011 ONCA 294, [2011] O.J. No. 1719 (Ont.C.A.). Another reason could be if the court sees the benefit of terminating ongoing contact and ties between spouses, particularly where, as here, there has been domestic violence. However, in this case there may still be ongoing ties relating to the father’s access and the paying of child support.
[26] More critically, however, I find that before lump sum support can be ordered there must be some determination, based on the evidence, that sufficient capital is available to satisfy the award. The wife maintains that if I make the orders she is requesting, capital will be available. Her thought process is that the transfer from the husband to his father should be set aside. The house would then be in the name of the husband. It is likely still worth approximately the same as its purchase price. As the matrimonial home it is not excluded property, even though a gift. As the only marital asset, by operation of Part 1 of the Family Law Act, R.S.O. 1990, c. F.3, as amended (“FLA”), half of its value is owed to her as an equalization payment. It can therefore be sold with the husband’s own half share being available to satisfy her lump sum support claims
[27] I am inclined to agree with a number of these propositions. I find that there is no genuine issue that the wife’s consent to the transfer of the home to the husband’s father was improperly obtained. It therefore follows that, per s. 23(d) of the FLA, the transaction should be set aside. I also agree that the matrimonial home was a gift but still subject to equalization. However, what is not clear to me, and is critical to the final orders that I am being asked to make including the wife’s equalization claim, is whether that gift was one with any monetary value.
[28] In setting aside the transfer to the husband’s father, the question arises as to whether the discharge of his mortgage, being part and parcel of that same transaction, would also need to be set aside. It is not apparent to me why the husband’s father would lose the money he put into the matrimonial home when he clearly intended to secure those funds by way of a mortgage, or how the spouses themselves could reasonably expect to own the home unencumbered. When the house was purchased and the mortgage registered, it was a gift that had no net value as a matrimonial asset. In my view there is an obvious triable issue here as to whether a reinstatement of the mortgage to the husband’s father should be, in the wording of s. 23(d), one of “the conditions that the court considers appropriate” when setting aside the transfer to him of the matrimonial home.
[29] To summarize then, I find that there are genuine issues for trial as to whether lump sum child support and spousal support have been properly pled, and as to whether such orders would be appropriate dispositions in this case in any event. There is also a genuine issue as to whether it would be appropriate for the court to accede to the wife’s request to set aside the transfer from the husband to his father but leave the mortgage discharge intact. The husband’s father losing his investment and the spouses receiving the corresponding windfall does not appear to be a reasonable or appropriate result intended by the parties or the legislation.
[30] Given these concerns, I would not grant summary judgment in the wife’s favour on those requests.
Decision
[31] For the reasons stated above, the motion for summary judgment is granted in part. Final orders to go as requested in the wife’s Notice of Motion at paragraphs 4, 9, 10, and 11.
[32] The wife seeks to sever the divorce from the corollary relief. The husband has not opposed and has himself sought a divorce in his application. Order to go for that relief as set out in paragraph 12 of the Notice of Motion.
[33] The order requested at paragraph 13 of the Notice of Motion regarding service on the father by email is granted. It dovetails with the previous order made on consent.
[34] The balance of the motion is dismissed.
[35] Even though the husband has not responded on this motion, the partial judgment relates to steps taken in the entire proceeding. Costs submissions to be received in writing. They are to be brief. The wife shall serve hers on the husband and added party and file them within 15 days. The husband and added party shall have 15 days after being served to in turn serve and file their submissions. The wife shall have a right of reply to be served and filed within 10 days of her receiving the later of the husband’s or third party’s submissions.
Mr. Justice Timothy Minnema
Date: August 20, 2014
COURT FILE NO.: 525/12
DATE: 2014/08/20
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: F.A.T., Applicant
AND
R.E., Respondent
AND
M.F.T., Added Party
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Mary-Jo Maur, for the Respondent
No one else appearing
Endorsement
Mr. Justice Timothy Minnema
Released: August 20, 2014