COURT FILE NO.: FC-14-468
DATE: 20140902
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Denise Pauline Marie Copping, Applicant
AND
Andre Joseph George Copping, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: J. Dawn, Counsel for the Applicant
W. Smith, Counsel for the Respondent
HEARD: August 27, 2014
ENDORSEMENT
[1] The parties agreed to the following orders at the commencement of this motion and cross motion:
• The jointly owned property at 76 Saddle Crescent, Ottawa, ON shall be listed for sale. Any disagreement as to the terms of sale shall be referred to a master for determination. The net proceeds of sale after discharge of registered encumbrances and payment of real estate commission shall be held in trust pending further order of the court or written agreement of the parties.
• Ownership of the Versa motor vehicle shall be transferred by the respondent into the name of the applicant.
• The applicant shall maintain $200,000 of life insurance insuring her life in force and effect, designated to the respondent in trust for their children.
• The respondent shall maintain $250,000 of life insurance in force and effect designated to the applicant in trust for their children.
[2] The remaining issues for determination are temporary legal custody of the children, their residential arrangements with each parent, child support and section 7 expenses, and the commencement date of same. The respondent seeks to have the OCL appointed for Mitchell, soon to be 12 years of age. In addition, the applicant sought an award of spousal support and an order for exclusive possession of the jointly owned property at 1226 Notting Hill Avenue, Ottawa. Her alternative claim in relation to Notting Hill was that it should be ordered sold. The respondent agrees to that alternative.
Background Facts
[3] The parties were married for approximately 22 years, from August 10, 1991 to May 21, 2013. There are two children of the marriage. Kelsey is 18, and will attend the University of Ottawa in September. Mitchell is 11 going on 12 years and will be in Grade 6 this year. Both children reside with their mother at 76 Saddle Crescent. The family moved there from Notting Hill, where they had resided for at least 10 years, about 6 months before the respondent left the home on May 21, 2013. Notting Hill was rented to tenants, and remained so until June 2014. Both homes are located in proximity to Mitchell’s school. At present the respondent resides at Notting Hill.
[4] Both parties are employed outside the home. The applicant earns about $58,000 annually, working regular business hours. The respondent earns about $103,000 annually. His work is shift work. He works 4 days on, 12 hour shifts, followed by a number of days off. He also has overtime work on occasion. The mother submits that she was the primary parent to the children throughout their lives. She took maternity leave for each child and tailored her career choices to their needs. She maintains that even when the father was off work, he did not spend much time with the children. The father disagrees strongly with this allegation. He says he was the hands on primary parent during his days off.
[5] Since May 21, 2013 the children have both resided primarily with mother. She has kept a detailed calendar showing when the father exercised access to the children. The calendar’s accuracy was not challenged. It shows that the father has had limited contact with the children, usually visiting for a few hours only or joining them at one of their activities. He has not had much access with them on weekends or during holiday periods. The mother added up his visits and concluded he had the children with him not more than 20 per cent of the time.
[6] The father submits this limited contact was not by his choice. He says he has always wanted to have both children living with him during his days off but the mother has unreasonably refused. He did not produce any written communications between them or counsel that would support his having made that request until in a recent affidavit. There is no written communication showing the mother has refused access. She has declined overnight access based on his living accommodations from time to time.
[7] Following the separation the respondent received the rental income of $1,589 per month from Notting Hill and used it to pay the mortgage, taxes and insurance for Saddle Crescent. These expenses came to $2,182 per month. The respondent kept these payments up until the end of 2013. He also paid the utilities on Saddle Crescent from June through October 2013 in the total amount of $1,250.
[8] Commencing in 2014 the respondent continued to make the mortgage payments on Saddle Crescent, but not the municipal tax payments or anything for utilities. The payments made were $1,670 per month for four months, $1,580 of which was derived from the Notting Hill rental income.
[9] The applicant had given notice to the Notting Hill tenants to vacate as of June 1, 2014. The rental income ended then. The father commenced paying child support on June 1, 2014 in the monthly amount of $1,440. He does not dispute the applicant’s entitlement to spousal support but the parties disagree as to the appropriate amount to be paid.
[10] The applicant is claiming child and spousal support commencing effective June 1, 2013 and submits the combined arrears are $20,831. The respondent submits this issue is too complicated to be dealt with on the motion record and should be left for trial.
Temporary Custody and Access
[11] These rulings will relate to Mitchell. Kelsey is 18 years old. In my view the mother should have temporary legal custody of Mitchell. It is not necessary for me to resolve the dispute between the parents as to their historical involvement in Mitchell’s life to reach this determination. He has resided primarily with the mother since May 21, 2013 and she has exercised de facto decision making on his behalf. None of the evidence before me has persuaded me of a compelling reason to make a change to this now. The parties do not get along and do not communicate well. Temporary joint legal custody is not indicated.
[12] The temporary order shall also require the mother not to make any unnecessary changes to Mitchell’s school, medical or dental care providers, or in other major areas. Prior to making a change in a major area affecting Mitchell, she shall provide advance notice to the father and he shall be entitled to provide input to her, which she shall consider in her decision making process. The father is entitled to receive information directly from all third party service providers to his son, including schools and doctors. If required, the mother shall provide her written consent for this to happen. To avoid conflict between the parents the father shall make arrangements directly with Mitchell’s school so that he receives school reports and other communications directly from the school.
[13] Neither parent’s proposal for the father’s parenting time is satisfactory to the court. The mother proposes two evening visits each week and alternate weekends. The difficulty with her proposal is that it is not reflective of the reality of the father’s work schedule. The father proposes that the children live with him whenever he is off work. The difficulty with his proposal is that the days the children would spend with him would be changing not only week to week but cycle to cycle. His work schedule follows a similar pattern but moves forward on a rolling basis so that particular days of the week and weekends of the month he has off work are not the same. It lacks consistency. Nor am I persuaded that it is in Mitchell’s best interests to reside for half the time with his father, having regard to the fairly limited contact between them since May 2013. I find that the father did not make the efforts to see or be with his son that were open to him to make. He did not spend much weekend time with him and did not even propose any summer vacation time with Mitchell in either 2013 or 2014. The father’s submission that this is the mother’s doing rings hollow in the absence of any demonstration of specific written requests by himself or his counsel to this effect.
[14] The father’s shifts are for twelve hours commencing at either 6:30 AM or 6:30 PM. Doing my best to craft a predictable and consistent residential schedule for Mitchell in these circumstances I order as follows:
• The father shall have access every Tuesday. If the father is off work on Tuesday and Wednesday of a week, the access shall commence from after school Tuesday until the return to school Wednesday morning. If the father is on day shift on Tuesday and off work on Wednesday the access will take place from 7 PM Tuesday, when he shall pick Mitchell up at his mother’s home, until return to school the next morning. If the father is working day shifts on both Tuesday and Wednesday of the week, the visit shall commence from 7 PM until return to the mother’s home at 9 PM sharp. If the father is working nightshift on the Tuesday, he shall have Mitchell with him from after school until 6 PM when the mother shall pick him up from the father’s home.
• The father shall have access to Mitchell every Friday. If the father is off work on Friday and Saturday but works on Sunday morning he shall return Mitchell to his mother’s home at 9 PM sharp on Saturday. If he is off work Saturday and Sunday, or if he works night shift on Sunday, the mother shall pick up Mitchell at 6 PM Sunday from the father’s home. If the father works night shift on Friday the access shall commence from after school and the mother shall pick up Mitchell at 6 PM from the father’s home. If the father is on day shift Friday the access shall commence at 7 PM when he shall pick Mitchell up at his mother’s home. If the father also works day shift on the Saturday he shall return Mitchell to his mother’s home at 9 PM sharp on Friday. If the father works day shift Friday and works night shift Saturday or day shift Sunday, the mother shall pick up Mitchell from the father’s home at 6 PM or 9 PM on Saturday depending on the father’s shift.
[15] Despite these terms Mitchell shall not be with his father for more than three full weekends in one calendar month (full weekend defined as from Friday pick up until Sunday at 6 PM). In other words, the mother shall be entitled to at least one weekend in each month when Mitchell is with her from not later than 9 PM Friday for the duration of the weekend. In addition the father shall take Mitchell to his regularly scheduled activities during his access time with Mitchell.
[16] The father shall provide his work schedule to the mother immediately upon receipt and they shall both complete the schedule of access in accordance with the terms of this order and exchange their copies to ensure there is no misunderstanding between them.
[17] The father shall be entitled to additional vacation time with Mitchell. This shall include five days over the school Christmas/New year’s vacation to coincide with days he has off work.
Office of the Children’s lawyer
[18] At Mitchell’s age his voice should be heard by the court. In addition the court would benefit from having the input of the OCL as to the feasibility of the residential schedule ordered, the ability of the parents to implement it, and any recommendations it may offer to improve communication between the parents. For these reasons, the OCL is appointed.
Child Support and Section 7 expenses moving forward
[19] Child support for two children is payable by the respondent in the table amount for his 2013 income of $103,227 which is $1,455 per month.
[20] Kelsey’s post-secondary expenses shall be payable from the RESP account. If there is a shortfall after consideration of Kelsey’s own reasonable contributions to her education, it shall be paid by her parents in proportion to income.
[21] Any other section 7 expenses for either child shall be shared by the parents in proportion to income, provided they are reasonable and incurred with the consent of both parents given in advance and not to be unreasonably withheld.
Spousal support moving forward
[22] The applicant’s 2013 income was $57,835. The applicant is asking for $610 per month. She identifies the SSAG range as $0 at the low end, $228 at the mid-range and $610 at the high end of the range. Her calculations show that spousal support at the high end would allocate 58.3 per cent of the party’s net disposable income to herself and the children.
[23] The respondent says that the amount of spousal support should be in the vicinity of $384 to $400 per month and that this amount plus child support would provide the applicant and children with 59.7 per cent or 59.8 per cent of NDI.
[24] The respondent relies on Andrews v. Andrews, 1999 3781 (ON CA), [1999] O.J. No. 3578 (CA) (“Andrews”) as establishing an upper limit of 60 per cent of NDI for combined child and spousal support payments. He enters the RPP and RRSP tax deductions taken by each party into his DIVORCEmate calculations. The respondent submits that in this way he has accurately determined the parties’ shares of net disposable income, by which he calculates the amount of spousal support required to achieve the Andrews upper limit of 60 per cent of NDI. One cannot know if the respondent’s approach corresponds to that of the court in Andrews because the reported decision in Andrews does not reveal what deductions were or were not taken into account to determine net disposable income.
[25] The respondent’s DIVORCEmate calculations are also intended to provide the SSAG range for spousal support with child support in pay. However other than Canada Pension Plan contributions, for reasons of fairness the SSAG formula does not include mandatory RPP or voluntary RRSP deductions in determining individual net disposable income. The amount of these deductions may be considered by a judge in deciding where, in the range, spousal support ought to be fixed.
[26] Studies of Ontario Superior Court of Justice spousal support awards showing that at least one half of spousal support awards where child support is also in pay were in an amount to bring the recipient’s share of NDI into the 44.4% - 55.6% range in 2002/2003 and 48.6% - 57.5 % also did not deduct RPP or RRSP in the determination of NDI.[^1]
[27] The applicant omitted the deduction for the respondent’s professional dues from her SSAG calculation. Correcting for that the high end of the SSAG range is $576 per month. This is an amount the respondent can afford and the applicant needs, and provides the recipient with less than 60% of NDI.
[28] For these reasons I award spousal support of $576 per month commencing on February 1, 2014.
Commencement date for support payments
[29] I reject the respondent’s submission that the issue of support payable prior to June 1, 2014 should be left for trial. The parties separated on May 21, 2013. The policy of the law favours the early resolution of family law issues. To the extent that the record enables the court on a temporary motion to resolve some or all of these issues, even if subject to adjustment by a trial judge if necessary, the court should proceed to do so. This approach is clearly warranted here where the applicant has reduced her capital and increased her borrowings since separation.
[30] The applicant incurred section 7 expenses for both children to which the respondent has not contributed his full proportional share. I accept her evidence that the respondent’s proportional shortfall from separation to date amounts to $3,747.53. I have included Kelsey’s school trip in this amount since it was agreed to and a deposit was paid by the parents before they separated. The respondent shall pay the sum of $3,747.53 to the applicant forthwith.
[31] The application was issued February, 2014. That is a suitable time at which to commence the child and spousal support payments as determined by this temporary motion. It is a generally accepted commencement date. It does not engage considerations of retroactive support. The record shows that the respondent has paid $1,440 per month child support since June 1, 2014. Credit shall be given for those payments. In addition he shall be credited with payment of $3,520 representing the four months of mortgage payments he made in 2014 on Saddle Crescent less the applicant’s half of the rental income he directed to those payments.
[32] For these reasons I order the child and spousal support payments to commence effective February 1, 2014, with credit to be given to the respondent for the child support he has paid since June 1 and for the $3,520 noted above. If counsel cannot agree on the calculation of arrears I may be spoken to.
[33] The award requested by the applicant predating the issuance of the application is left for determination at trial or by settlement. It raises issues of retroactivity and combines issues of support and potential post separation accounting adjustments connected to their real property values that are in my view better left to the final determination of the case.
Notting Hill Avenue
[34] The applicant’s claim for exclusive possession of this property is dismissed. The property does not meet the definition of a matrimonial home under the Family Law Act. It was not occupied by the parties as a family residence at the date of separation, that is on May 21, 2013. The applicant argues that the date of separation is in issue. She wishes to make a case at trial that the separation should be found to have occurred during the time the parties still resided at Notting Hill because the respondent was already having a secret affair then and manipulated her into moving out of Notting Hill to regain exclusion of one quarter of an inheritance he traces into Notting Hill. If successful this would advantage him by $25,000 in the equalization process.
[35] The applicant did not provide any authority for her position with respect to the date of separation. The argument does not have sufficient merit to persuade me to postpone the sale of Notting Hill Avenue until trial. The property is jointly owned and since, in my view, exclusive possession of it cannot be ordered, it should be sold.
[36] Accordingly unless the parties have entered into a binding purchase and sale agreement between themselves with respect to Notting Hill Avenue within 30 days hereof, I order that it shall be listed for sale on the same terms as set out earlier with respect to the sale of Saddle Crescent.
Costs
[37] The parties are invited to agree on costs of the motion and cross motion. If they are unable to do so, they should make brief written submissions to me not to exceed two pages each plus attachments of bills of cost and offers to settle. The parties shall agree on the schedule for submissions provided they are completed no later than by October 17, 2014.
J. Mackinnon J.
Date: September 2, 2014
COURT FILE NO.: FC-14-468
DATE: 20140902
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Denise Pauline Marie Copping, Applicant
AND
Andre Joseph George Copping, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: J. Dawn, Counsel for the Applicant
W. Smith, Counsel for the Respondent
ENDORSEMENT
J. Mackinnon J.
Released: September 2, 2014
[^1]: “Magical Mystery Tour”: Seeking Consistency in Spousal Support Awards, V. Jennifer Mackinnon and E. Jane Murray, [22 C.F.L.Q.] p. 215, Thomson Carswell. “Let It Be”: Spousal Support Update, E. Jane Murray and V. Jennifer Mackinnon, presented at CCLA 15th Annual Institute of Family Law 2006, “Contemporary Issues in Family Law”.