Oster v. Oster, 2014 ONSC 7183

COURT FILE NO.: FS 13/14

DATE: 2014-12-11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lindsey Edith Oster

AND:

Jeremy Oster

BEFORE: Justice J. S. Fregeau

COUNSEL: Mr. Stead, counsel for the Applicant

Ms. Simone, counsel for the Respondent

HEARD: December 9, 2014 Fort Frances, Ontario

Endorsement on motionS

Nature of the Motions

1The parties have agreed that they will have temporary joint custody of the children of the marriage. They have also agreed to defer the issue of temporary child support.

2There are two motions before the court. The Respondent, Jeremy Oster (the “father”) has brought a motion requesting an order requiring that he and the Applicant, Lindsey Oster (the “mother”) share care and control of the children on an equal, four day on/four day off rotation. The mother has brought a motion requesting an order for temporary spousal support retroactive to the issuance date of the Application and temporary exclusive possession of the matrimonial home and contents.

Background

3The mother and father were married on July 31, 2004 and separated on May 8, 2013. The parties are the parents of two children, Jordyn Oster, born December 25, 2006, now almost 8 years old and Camron Oster, born December 15, 2009, now 5 years old.

4At the time of separation, the father vacated the matrimonial home and moved into his parents’ home where he has resided to date. The mother has remained in the matrimonial home with the children.

5The father is an OPP officer stationed in Fort Frances. He works shift work on a four on/four off schedule. The mother is an employee of the Canada Border Services Agency in Fort Frances. The mother works shift work, apparently also on a four on/four off schedule, although this is not clear from her affidavit evidence.

6Since separation in May 2013, the residency and care and control of the children has been divided between the parties such that the mother has them in her care for five nights of an eight day rotation and the father has the children for three nights. The father picks up the children after he wakes up following his last night shift and has them in his care until the afternoon of his fourth day off. The children are otherwise in the care of the mother. Essentially what the father is asking for is to have the children remain in his care overnight on the last day off of each rotation.

7The father deposes that the present division of care and control of the children was imposed by the mother and that he has, since separation, abided by it. At the same time, the father deposes that he has, since separation, continually requested an equal division of care and control of the children and offered practical solutions to the mother’s expressed concerns about such an equal division of care and control.

8These solutions include the father seeking, and apparently being granted, accommodation from his employer allowing him to start work later on the first day shift of his rotation. Thus, if the children were with the father for the additional overnight he requests, the children would be able to awake at their usual time and get on the school bus as on all other school days.

9The mother denies that the father has continually sought, or been interested in, equally shared care and control of the children. The mother deposes that the present arrangement has been in place for 18 months, that the children are used to it and that it works well. The mother deposes that the father has sought an equal division of care and control of the children only since her application was issued in May of 2014 and only to avoid paying “full” child support pursuant to the Child Support Guidelines.

10The mother deposes that the father has not, either before or after separation, sought to maximize his time with the children by taking time off for special events or accepting extra time with the children when it has been offered to him by the mother. The mother submits that this supports her suggestion that the father’s current desire for equally shared care and control of the children is financially motivated.

11The father has filed two financial statements in the Continuing Record, one dated June 3, 2014 and the other dated August 26, 2014. Both depose his current income to be $90,621.00/yr. The father’s June 3, 2014 financial statement includes his 2010, 2011 and 2013 CRA Notices of Assessment and his 2012 T4 slip. These documents confirm his income over these years to have been:

2010 $109,577.00

2011 $115,470.00

2012 $119,537.00

2013 $102,788.00

12The June 3, 2014 financial statement also includes a pay stub for the father from May 2014. The “Pay End Date” on this stub is redacted for some reason. The “Advice Date” on the stub is May 22, 2014. I will assume this is the end of the pay period. The father’s year to date gross income on this pay stub is $46,430.00. This would result in gross income for 2014 of approximately $119,000.00. Based as it is on a May 2014 pay stub, this is not a satisfactory approximation of current income for support purposes.

13The father submits that his income, for the purposes of support calculations, is $90,621.00/yr, as set out in his financial statements. The father offers no explanation as to why his current income is so much less than his income over the past several years. This motion was argued in December 2014. No current pay stub with December 2014 year to date income was provided to the court.

14The father was previously a member of the OPP Emergency Response Team. Presumably this would have resulted in additional income. The mother deposes that he resigned from this position in January 2013. Any resultant loss of income would be reflected on his 2013 Notice of Assessment which shows his total income for 2013 to be $102,788.00.

15The mother has filed one financial statement in the Continuing Record. It is dated April 25, 2014. In this financial statement, the mother deposes her current income to be $67,764.00/yr. The mother’s income in the recent past, pursuant to CRA Notices of Assessment attached to her financial statement, has been as follows:

2010 $44,322.00

2011 $39,046.00

2012 $54,784.00

16The mother has not provided her 2013 Income Tax Return or Notice of Assessment. She has attached a December 31, 2013 pay statement. This statement confirms her basic pay to have been $66,564 in 2013.

17For the purposes of this motion, I find the father’s income to be $102,788.00/yr, being his 2013 total income. I find the mother’s income to be $67,764.00/yr, as set out in her financial statement.

18The father chose to vacate the matrimonial home on separation. The mother has remained in the matrimonial home with the children. She has expressed an interest in purchasing the husband’s interest in the home as part of an equalization of property. The father is not opposed to this. The father has not sought a sale of the home nor has he attended at the home except to pick up or drop of the children.

19The mother submits that she wants an order for temporary exclusive possession of the home to maintain a level of comfort and security for her and the children. The father resists the mother’s request. He submits that there has never been any threat to the security of the mother or children in relation to their possession of the home. He deposes that he simply does not want to relinquish his legal possessory rights to the home. In oral submissions, the father’s counsel indicated that the father was concerned about the potential stigma attached to the mother having a court order for exclusive possession, given that he is a police officer in a small town.

Discussion

Division of Care and Control of the Children

20The existing division of care and control of the children has been in place for approximately 18 months. The mother’s evidence is that she was the primary caregiver to the children both before and after separation. This is not disputed by the husband. The existing division of care and control has the children primarily resident in the matrimonial home, and in the care of the mother, for five out of each eight nights. There is no evidence before me to suggest that the present arrangement has not been consistent with the children’s best interests.

21The present division of care and control also provides the father with significant meaningful time with the children, as his periods of care and control fall on his days off. The father simply submits that he wants more time with the children and that this is in their best interests. He was unable to explain why altering the established status quo as to care and control of the children is more consistent with their best interests than simply leaving things as they are.

22I am satisfied that the mother was the primary caregiver to these children prior to separation and that she has maintained that role in the period of time since separation. She and the children have remained in the matrimonial home. To the credit of both parents, the children’s lives have been disrupted as little as possible by the separation. The father has moved out of the home while still maintaining a strong relationship with the children by way of the present arrangement.

23I am not persuaded that altering the present arrangement, even in the minimal way requested by the father, would be in the children’s best interests. The children are young. There is no evidence to suggest that they have not done as well as possible within the present division of care and control. These children have benefitted from the stability and continuity of the existing division of care and control. I am satisfied that it is in their best interests that it continues.

24A temporary order shall issue granting the parties joint custody of the children of the marriage. The children shall reside with the mother and be in her primary care and control for five out of eight nights of the parties work rotation. The children shall reside with the father and be in his primary care and control for three out of eight nights of the rotation.

Spousal Support

25The parties were married for nine years and had two children. The evidence confirms that the mother interrupted her employment as a result of her parenting role. There is an income disparity between the parties based on what I have found their incomes to be on this motion. However, that present income disparity is not significant. It must also be taken into consideration that the mother is entitled to guideline child support of approximately $1,450.00/mth based on the father’s income and the division of care and control of the children as ordered herein. The mother is also in occupation of the jointly owned matrimonial home.

26At the respective income levels as found herein, the Spousal Support Advisory Guidelines suggest a range of spousal support of between 0$/mth and $168/mth. Given all circumstances, I decline to award the mother temporary spousal support. The mother’s claim in this regard is dismissed.

Temporary Exclusive Possession of the Matrimonial Home

27The Family Law Act (R.S.O. 1990, c.F.3, as am.), section 24(3) requires a court to take the following factors into consideration in determining whether to make an order for exclusive possession:

a) the best interest of the children affected;

b) any existing orders under Part 1 (Family Property) and any existing support orders;

c) the financial position of both spouses;

d) any written agreement between the parties;

e) the availability of other suitable and affordable accommodation; and

f) any violence committed by a spouse against the other spouse or the children.

28I find that none of these factors are applicable in the case before me. The matrimonial home is jointly owned by the parties. The father voluntarily vacated the matrimonial home immediately upon separation. The mother and children have continued to reside in the home since separation with no attempt by the father to have the home sold. There is no evidence that the father has disturbed their possession of the home by attending at and entering the home unannounced. The evidence is to the contrary – the father only attends at the home to either pick up or drop off the children. It appears as if the father is content to allow the mother a reasonable period of time to determine if she is able to purchase his interest in the home.

29There is no basis for granting the mother an order for temporary exclusive possession of the matrimonial home. That claim is dismissed.

30A temporary order shall issue pursuant to the terms of this endorsement. In regard to the costs of this motion, I am of the opinion that success is more or less equally divided. If the parties cannot agree on the issue of costs, they may make written submissions on the issue. The submissions shall not exceed five pages exclusive of the respective Bills of Costs. The mother’s costs submissions shall be filed within 14 days of the release of these reasons; the father’s within seven days thereafter.