Metcalfe v. Metcalfe, 2015 ONSC 1002
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LYNNE CATHERINE METCALFE
Applicant
– and –
GLENN DOUGLAS METCALFE
Respondent
Self-represented.
Self-represented.
HEARD: January 14, 15, 16, 2015
R. D. GORDON, R.S.J.
Overview
1Mr. and Mrs. Metcalfe separated on March 25, 2013 after a marriage of almost 22 years. This trial was held to determine whether a divorce should issue and to determine the financial issues arising out of their separation.
Background Facts
2The parties met in May of 1990 and began living together in November of that same year. They married on July 20, 1991 and initially made their home in Etobicoke. In 1995, Mr. Metcalfe became involved in a business known as Walters Music and the parties moved to London where he was to manage one of their stores.
3Not long after their arrival in London, they began a family, adopting Thomas Robert Metcalfe, born August 1, 1995, Kevin Douglas Metcalfe, born June 25, 1996 and Amy Louise Jacqueline Metcalfe, born March 7, 1998.
4Mrs. Metcalfe, who had worked as a paralegal, became a stay at home mom after Thomas’s arrival until returning to the work force in 2008.
5Together the parties purchased the matrimonial home at 720 Butler Avenue in London. It continues to be held in their joint names.
6On March 25, 2013, the parties separated. Mr. Metcalfe left the home and after various attempts to resolve the issues between them, this application was brought.
7The children are now 19, 18 and 16 years of age. The two boys attend Western University. Amy is in grade 11. Unfortunately, their relationship with their father has soured and he has had virtually no contact with them in the last year. Although much of the pleadings are dedicated to the issues of custody and access, the parties concede that, on a practical basis, the children’s age precludes me from making any effective order for either custody or access. I note, however, that this family lived together and loved one another for many years before separation. If the children can be coaxed into some form of counselling that would allow for the renewal of their relationship with Mr. Metcalfe, there would be much to be gained. Unfortunately, it is beyond my power to force them to do so.
8As with many separations, there is much unresolved anger between the parties. Mrs. Metcalfe feels that she and the children were abandoned and that Mr. Metcalfe has failed to meet his financial obligations towards the family. Mr. Metcalfe feels that Mrs. Metcalfe has alienated the children from him, maintained unreasonable financial demands and has put him on the edge of financial ruin. Not surprisingly, neither of them is able to bring any objective analysis to the situation and as a consequence, they have been unable to agree on almost anything. The following issues have been identified as requiring my decision:
What monthly child support Mr. Metcalfe should be paying for the children, both retrospectively and prospectively.
What additional contribution Mr. Metcalfe should be making towards expenses incurred for the children, both retrospectively and prospectively.
Whether Mr. Metcalfe should be paying spousal support, and if so, to what extent.
Whether there is an equalization payment due from one party to the other, and if so, the amount.
Whether Mrs. Metcalfe should be paying occupation rent with respect to the matrimonial home.
9My decision with respect to each issue is set out below.
Analysis
Divorce
10Both parties agree that it is appropriate for an order of divorce to issue. The requisite period of separation has passed. I am satisfied that there is no reasonable prospect of reconciliation. It is ordered that the parties are divorced, to become final in 31 days.
Monthly Child Support
11Although Mr. Metcalfe has been paying monthly child support for the three children, he took the position at trial that the children, through their conduct, have unilaterally repudiated their relationship with him so as to disentitle them to further child support.
12Section 15.1 of the Divorce Act provides that a court may order a spouse to pay support for any or all children of the marriage. Section 2(1) of the Divorce Act defines a child of the marriage as a child of two spouses or former spouses, who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.
13The initial issue in this case is whether the children remain under the charge of Mr. Metcalfe or whether they have withdrawn from his charge so as to disentitle them to further support.
14As I have mentioned, Mr. Metcalfe’s relationship with his children is virtually non-existent. For many months following separation he made regular and ongoing overtures towards the children. In the face of their almost total disregard, he continued to express his love for them and his willingness to do almost anything to rekindle their relationship. His efforts were to no avail.
15It is obvious to me that the children have been put in the middle of the conflict between the parties. It is equally obvious that they have been placed there by their mother. It is clear from the few texts they have sent their father that the children have been privy to correspondence and court documents exchanged by the parties. It is clear that Mrs. Metcalfe has discussed the separation with the children and has laid all of the blame for the separation and for the financial issues surrounding the separation, squarely upon Mr. Metcalfe’s shoulders. The following text exchanges between Mr. Metcalfe and his children are informative:
June 4, 2013
Mr. Metcalfe: Hi Kev. I love you. How are you doing?
Kevin: If you loved me you would pay the extra expenses and child support. Do you not think mom talks to me? Don’t bother messaging back.
And on another occasion:
Mr. Metcalfe: Kevin, can we talk? You want this Kev?
Kevin: I am not talking to you you dense motherfucker. When will you get that through your thick skull. Leave mom out of this. This has nothing to do with her, this is my decision not to talk to you. Good bye. Do not respond.
Mr. Metcalfe: Hey Thomas. How’s everything there? You guys ok? I miss you. Love Dad.
Thomas: Please just fuck off. We all need space right now. You decided to leave and now your not paying for anything…
Mr. Metcalfe: Hi Amy. I love you. Would you like to talk?
Amy: No I told you no, now please leave me and my family alone.
16The following excerpt from an e-mail sent to Mr. Metcalfe by Mrs. Metcalfe on January 15, 2014 is also informative: “You are on drugs and so fucking stupid.”
17These are but a brief sampling of the messages and correspondence filed as evidence at trial. Eventually, Mr. Metcalfe sent a letter to each of the children indicating that he would await contact from them on their terms. He has not heard from any of them for close to a year.
18Although the children have professed, in some messages, that the choice to stop contact with him was theirs, I am skeptical. The children’s reaction to this separation is far more than what might reasonably be expected. Mrs. Metcalfe has done absolutely nothing to encourage their relationship with their father and I have little doubt that she has made obvious to them her absolute distain for and anger towards him. This is not to say that she has actively and deliberately alienated the children from their father. My sense is that she does not understand that her role as a parent is to genuinely encourage the relationship between the children and their father and to be proactive in ensuring that it is maintained. She seems to have no appreciation that her role as a mother is not served by sharing her views of Mr. Metcalfe’s conduct with the children. It is not served by discussing with them her views of the insufficiency of the financial contribution he makes to them. It is certainly not served by sharing court documentation with them and making him the object of her derision.
19It follows that although it may be obvious that the children have repudiated their relationship with their father, I am not satisfied it is their fault. They are young and impressionable and have been influenced significantly by their mother’s words and actions. In these circumstances, although it may seem unfair to Mr. Metcalfe to continue to be responsible for their support, it seems more unfair to deny them support due to actions for which they may not be entirely responsible.
20Accordingly, it is my view that Mr. Metcalfe’s support obligation towards the children continues notwithstanding their repudiation of the relationship.
21Mr. Metcalfe began paying regular monthly child support in July of 2013. He paid $1,480 per month from then through April of 2014 when he reduced his payment to $1,300, which he continued to pay through to July, 2014. He then reduced his payment further to $815 for August and has continued to pay that same amount since.
22For the months of April, May and June of 2013 the parties had an informal arrangement by which Mr. Metcalfe made no payments on account of child support but did make certain payments on behalf of the family and from which the children benefited directly. At a minimum, he made mortgage payments totalling $3,274.18, property taxes of $402, and household expenses of $681.11 for a total of $4,357.29. In the first months following a separation such informal arrangements are to be encouraged. They allow the parties and the children a short period of time to adjust to new living arrangements; they allow the parties an opportunity to seek legal advice; and they allow the parties an opportunity to address, at least on a preliminary basis, the emotional anguish they are suffering. As long as those arrangements reflect a genuine and reasonable effort to provide support for the children, it is my view that they should not be subject to a retrospective support analysis. In this case, Mr. Metcalfe’s payment of expenses for the home in April, May and June of 2013 was a genuine and reasonable effort to support his children, and I decline to award further child support for those months.
23For the ensuing months, the total amount paid by him was $22,775.
24What he should have paid is calculated by determining his income and applying the child support guidelines. Mrs. Metcalfe was of the view that his income as reported on line 150 of his income tax return is not accurate as it does not account for personal expenses paid by the company and his 20% share of business profits left in the company. She estimates his total to be about $72,000.
25Mr. Metcalfe was of the view that his child support obligation should be determined based upon his line 150 income. Although there may be some benefit to having the car provided by his employer, he pointed out that the car was used by the Applicant following separation until January of 2014, and so the benefit was hers, not his. With respect to the income of the company he points out that he has no entitlement to those monies, does not direct what dividends are to be paid, and in any event the company has gone out of business and has never had the funds with which to pay any such money.
26In my view it is appropriate to include in Mr. Metcalfe’s income the sum of $3,000 per year for his personal expenses paid by the business. This is the amount identified by Marcus & Associates in its report on Mr. Metcalfe’s income as appropriate and does not include the benefit attributable to the car itself. I am not satisfied that he received other benefits or income from the business and I am not satisfied that he was entitled to demand any share of the profits of the business or that the business would have been in a position to make payment had he that right.
27Accordingly, it is appropriate that his support obligation be based upon income of $69,883 per year for 2013 and 2014. For income of this amount, and three children, the guideline amount of support is 1,353.72 per month. For the 18 months that support was payable, the total is 24,366.96. The difference of $1,591.96 represents an underpayment by Mr. Metcalfe.
28For 2015 the situation is somewhat different. Mr. Metcalfe’s business has recently succumbed to market pressures and closed its doors. He no longer has a salary. As of the date of trial he was no longer working. Some months ago he started a real estate course that he hopes to complete and that will allow him to pursue a career as a real estate agent. However, for the time being he has no income.
29Mrs. Metcalfe asks that I impute income to him. She argued that he is able bodied and capable of work and that he ought to have foreseen the closure of his business and started looking for other work long ago.
30Although I agree that he is able bodied and capable of work, I do not agree that he ought to have simply abandoned his business to look for other employment. His decision to stay with the business was reasonable having regard to the personal guarantee he had offered for some of its indebtedness and his loyalty to his business associate. However, I will impute to him a small amount of income to reflect his likely entitlement to employment insurance benefits. I would expect that he is entitled to the maximum amount of benefits, equal to $524 per week or $27,248 per year. Based upon that income, his child support obligation for three children is $548.82 per month beginning on January 1, 2015.
Section 7 Expenses
31Section 7 of the Child Support Guidelines provides that a court may require a parent to make payment to cover all or any portion of certain expenses taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents and those of the child and to the spending pattern of the parents in respect of a child during cohabitation. Included are extraordinary expenses for extracurricular activities.
32To meet the definition of “extraordinary expenses” for extracurricular activities, the party requesting the order (in this case Mrs. Metcalfe) must establish one of two things: (1) That the expenses claimed exceed those that she can reasonably cover taking into account her income and the amount she received for support under the guidelines; or (2) Where (1) is not applicable, that the expense is extraordinary taking into account: (i) the amount of the expense in relation to her income, including the amount she receives for child support under the guidelines; (ii) the nature and number of the extracurricular activities; (iii) any special needs and talents of the child; (iv) the overall costs of the programs and activities; and (v) any other similar factors that the court considers relevant.
33In support of her claim, the Applicant tendered exhibits cataloguing expenses she has incurred for the children since separation for such things as cheerleading, medicals, tutoring, driving lessons, car insurance, cell phones and post-secondary expenses. She says Mr. Metcalfe’s unpaid portion of these expenses is $19,210.82. However, she testified at trial that she was seeking only an undetermined contribution towards his share of the expenses related to car insurance, driving lessons and licence, cell phones and gym memberships, and was not asking that he contribute to university tuition costs as they would be covered by student loans. She did ask that he pay his full contribution to cheerleading expenses, medical expenses, tutoring, high school expenses and university application fees.
34Mr. Metcalfe’s position with respect to these expenses is threefold. First, he says that some of the expense claims made are inflated because they include costs that should properly be allocated to the Applicant personally (for example, his full share of a hotel room for Amy, but in which the Applicant also stayed); second, many of the expenses are not necessary and therefore do not meet the definition in section 7 of the Child Support Guidelines; and third, that many of the expenses are not reasonable having regard to the family’s means and circumstances.
35A marital separation is always unsettling for the children and most parents make every effort to ensure that the children’s day to day life is not significantly upset in the process. They try to ensure that the children have the same home and the same amenities and continue to participate in the same activities. In most instances this is quite difficult to do because of the economic reality of a separation, namely, that two households must now run on what one household ran on. In situations where the family was in difficult financial circumstances before separation, it can be almost impossible to maintain all of the children’s amenities and activities post separation. This is one of those occasions.
36As will be explained in more detail below, this family’s financial situation was dire. They lived well above the standard dictated by their incomes, and notwithstanding generous contributions from their parents, had accumulated unsecured debt of almost $100,000. They were borrowing to meet their lifestyle when they had just one household to maintain. After their separation, of course, things would only get worse.
37A practical and reasonable analysis of the situation ought to have led the parties to conclude that some of the children’s expenses could simply not be maintained. Mr. Metcalfe came to this sensible conclusion after a time. Mrs. Metcalfe does not yet seem to grasp the gravity of the situation, or perhaps in recognition of this, has limited her claim against Mr. Metcalfe.
38In my view, expenses incurred for car insurance for Thomas, cell phones for the children, and gym memberships were not necessary in relation to the children’s best interests and were not reasonable given the financial circumstances of the parties. The expenses relating to the high school cheer team and high school activities do not meet the definition of extraordinary expenses for extracurricular activities as they are amounts that Mrs. Metcalfe could reasonably be expected to cover given her income and the amount of monthly child support paid by Mr. Metcalfe.
39The cheerleading expenses, medical expenses, tutoring and university application costs are expenses which properly fall under section 7 and to which Mr. Metcalfe ought to have contributed his proportionate share. I am prepared to require contribution to those expenses as claimed but with a discount to reflect that Mrs. Metcalfe enjoyed a personal benefit from some of the expenses claimed and to reflect some of the minor bookkeeping issues raised by Mr. Metcalfe. I conclude that Mr. Metcalfe owes to Mrs. Metcalfe on account of unpaid section 7 expenses the sum $3,884.31.
Spousal Support
40Mrs. Metcalfe seeks spousal support. She bases her claim primarily on compensatory principles. She says that her employment income today is only $2,000 more than she was making when she stopped work to raise the children, and had she not done so she would have been earning far in excess of that amount now.
41That may well be so; and although I may agree that foregone career opportunities and time away from the work force may properly ground a claim for spousal support, those are only two of the considerations that go into the decision. I must also consider that her earnings, at $59,000 per year (as stated in her sworn financial statement), are not significantly less than what Mr. Metcalfe has been earning and that when his payment of child support is factored in, her net disposable income far exceeds his. On consideration of these additional factors there is no basis for a retroactive award of spousal support and, given Mr. Metcalfe’s current lack of employment income, no basis for the payment of spousal support on an ongoing basis.
Equalization of Net Family Properties
42The parties presented a myriad of arguments concerning the calculation of their net family properties. I would resolve those issues in the following fashion.
43The Matrimonial Home The home is jointly owned. It was appraised about one year following separation at $336,000. Mr. Metcalfe is content to use this value in the equalization calculation. Mrs. Metcalfe says it should be reduced by 3% to reflect the increase in value since separation and that it should also be reduced to reflect the costs of repairs that would be required for its sale.
44There is no credible evidence before me that the real estate market increased by 3% between the date of separation and the date of the appraisal.
45The appraisal was specifically done on an “as is” basis and contemplates most of the deficiencies alleged by the Applicant. One exception is the cost of repair to the pool, which was specifically excluded from the appraisal and which has been estimated at $5,650.00. Another exception is for the cost to repair damage caused by a flood in September of 2014 which amounts to $5,099.69. Both amounts must be spent to put the house in the condition contemplated by the appraisal. However, the costs would be shared equally between the parties as joint owners and have no effect on the ultimate equalization payment. The Applicant also alleged that the Respondent was responsible for and should pay the costs of higher interest rates being assessed on the mortgage and line of credit. The evidence does not support that allegation.
46Household Furnishings, etc. The parties provided no credible valuations for any of the personal property owned by them with the exception of the musical instruments, which Mr. Metcalfe valued and which values I can accept given his extensive background in related retail sales. However, many of the instruments he identified belong to the children or his company and should not be included in the calculation of the parties’ net family properties. When I exclude those items, the musical equipment remaining in the care of Mrs. Metcalfe is valued at $2,015 and is to be included in her net family property.
472006 Nissan Altima Mr. Metcalfe provided a valuation of this asset and argued that because it is registered in Mrs. Metcalfe’s name it must be included in her net family property. However, the evidence was clear that this vehicle was a gift to Thomas and was held in Mrs. Metcalfe’s name to facilitate insurance coverage. In the circumstances I consider it to be owned by Thomas and not to be included in the net family property calculations.
48Bank Accounts The parties had three joint accounts on separation: TD account #534328 in the amount of $237.85, BMO account #40465 in the amount of $1,031.74, and BMO account #8064 in the amount of $1,326.55. The best evidence before me is that following separation those accounts were left for use by Mrs. Metcalfe and were not drawn upon by Mr. Metcalfe or used for his benefit. Accordingly, they are to be included in Mrs. Metcalfe’s net family property.
49It was agreed that Mr. Metcalfe’s TD account #1605 was in the amount of $800.
50Mr. Metcalfe’s TD account #5350 contained $15,000 at the date of separation. He claims this was a gift from his parents. Mrs. Metcalfe contends that it was money paid to him from his company. The best evidence is that it was a gift as stated by Mr. Metcalfe. Clearly, his company was not in a position to pay him $15,000 in the months leading up to the separation and there is no other credible source for the funds. As a gift, it will have no impact on Mr. Metcalfe’s net family property calculation.
51Pensions, etc. Mrs. Metcalfe had a pension of $7,572.17 as of December 31, 2012. There is no evidence of its value on the date of separation and no manner by which that value can be ascertained by me. There was also no evidence led of an appropriate discount to reflect future tax consequences of its use. On the evidence before me it must be listed as an asset of the Applicant and valued at $7,572.17.
52Mr. Metcalfe acknowledges that he has a retirement savings plan with CI Investments with a value of $1,319.90 on the date of separation. There was no evidence led of an appropriate discount to reflect future tax consequences of its use. Accordingly, it is to be included in his net family property at its full value.
53The parties acknowledge an RESP with a value of $1,745. Both are shown as owners. It is likely to be used for one or more of the children, however, to the extent they are owners of the plan, they are equal owners and its inclusion in the net family property calculation will have no impact on the amount due from one to the other.
54The parties agreed that Mr. Metcalfe’s life insurance has a cash surrender value of $1,912.80 and Mrs. Metcalfe’s life insurance has a cash surrender value of $1,933.09.
55Mr. Metcalfe’s Business Interests A business valuation was done to establish the value of Mr. Metcalfe’s 20% interest in Walters Music (Bramalea) Inc. The value at date of separation was found to be between $10,080 and $11,200. Mrs. Metcalfe says this should be increased to reflect the value of cash deals that are done and online PayPal sales that are unreported. In my view, the evidence is not sufficient to establish that such deals, if indeed they go unreported, are significant enough or regular enough to warrant an increase in the value of the company or Mr. Metcalfe’s interest in it.
56In addition to his shareholdings, Mr. Metcalfe has a shareholder’s loan owing to him. He says the amount was $2,500 at separation. Mrs. Metcalfe says it was much more. The best evidence is that of Mr. Metcalfe who was actively involved in the business and its finances and who would have knowledge of the amounts loaned and repaid.
57Taking the mid-point of the valuation ($10,640) and the shareholder loan of $2,500, Mr. Metcalfe’s interest in the company on separation was $13,140.
58Contingent Liabilities Mr. Metcalfe alleges a contingent liability with respect to personal guarantees he signed on behalf of his company. He has not yet been asked to make payment and the evidence provided at trial was not sufficient to determine that payment is likely to be requested. All other liabilities are agreed upon and are reflected in the net family property statements filed by the parties.
59Assets at Marriage Mrs. Metcalfe’s sworn financial information discloses assets at the date of marriage valued at $17,000. There was no significant evidence to contradict this information and accordingly, I accept it as accurate.
60Having made these finding, I have incorporated them, along with other agreed upon valuations from the parties’ net family property statements, on the schedule attached. My conclusion is that Mrs. Metcalfe owes to Mr. Metcalfe an equalization payment of $6,218.64.
Occupation Rent and/or Contribution to Household Payments during Separation
61The Applicant has paid most all of the expenses related to the matrimonial home since July of 2013. However, she has resided there to the exclusion of the Respondent, and so has had the benefit of the use of the home. In addition, she has had her mother residing with her, apparently without charge. Mrs. Metcalfe asks that I order Mr. Metcalfe to pay one half of the various expenses incurred by her, amounting to $22,368.62.
62Mr. Metcalfe, for his part, seeks occupation rent from the Applicant and says that a comparable dwelling rents for $1,700 per month. One half of that amount for 21 months amounts to $17,858.
63Given that Mr. Metcalfe is a fifty percent owner of the home, it is reasonable that he be responsible for fifty percent of certain costs associated with it. In particular, it is appropriate that he be responsible for one half of the mortgage payments, one half of the realty taxes, one half of the home insurance costs and one half of the cost of any capital improvements to the home. The allocation of these expenses to him is appropriate because he benefits from their payment to the same extent as Mrs. Metcalfe. However, expenses related to the day to day use and enjoyment of the home should be attributed to Mrs. Metcalfe as she enjoys the benefit of the day to day use of the home. Accordingly, charges such as water, electricity, and pool maintenance should all be her responsibility alone.
64It is my view that Mr. Metcalfe ought to contribute one half of: (1) the mortgage payments from July 2013 through December 2014, totalling $9,882; (2) property taxes for this same period totalling $1,861.25; and (3) home insurance for this same period of time in the amount of $422.86. The total is $10,491.11.
65In Griffiths v. Zambosco, 2001 CanLII 24097 (ON CA), [2001] 54 O.R. (3d) 397, the Ontario Court of Appeal recognized five factors for consideration in determining whether occupation rent should be ordered. The first is the timing of the claim for occupation rent. In this respect I note that Mr. Metcalfe included his claim from the outset of this litigation but made no claim that it be assessed retrospectively. The second is the duration of the occupancy. Mrs. Metcalfe has been in possession of the home for 21 months. The third is the inability of the non-resident spouse to realize on the equity in the property. In this regard, almost all of the parties’ net worth is tied up in the matrimonial home and Mr. Metcalfe has been unable to access his share of that equity. The fourth is any reasonable credits to be set off against occupation rent. As I noted above, there are credits of $10,491.11 to set off against any occupation rent, being Mr. Metcalfe’s fifty percent share of costs associated with maintaining the home’s value. The fifth is any other competing claims in the litigation. In my view there are no other completing claims in the litigation which impact the decision.
66On consideration of these factors, it is appropriate that occupation rent be assessed. I accept the evidence given by Mr. Metcalfe that comparable properties rent for between $1,700 and $2,300 per month, inclusive of utilities. Although I have limited evidence with respect to the cost of utilities for this property there is one invoice at Tab 48 of Volume 1 of the Applicant’s documents showing hydro and water costs for one month between the middle of May and the middle of June 2014, totalling $356.74. On consideration of all of the evidence I find that the property would rent for the gross amount of $1,700 per month, or $1,350 net of utility payments. Mr. Metcalfe would be entitled to one half of this amount each month, or $675 for 15 months (from the inception of the application in November of 2013 to and including December of 2014) for a total of $10,125.
67Once these amounts are offset against one another, the net adjustment is $366.11 in favour of the Applicant.
Other Adjustments to the Amounts Owing Between the Parties
68After separation, Mrs. Metcalfe withdrew $7,000 from the joint line of credit secured against the house. The effect was to reduce Mr. Metcalfe’s equity in the house by $3,500. It is appropriate that she pay him that amount as compensation.
69Mrs. Metcalfe paid for repairs to the home that resulted from storm damage. These repairs were required to return the house to the condition it was in when the appraisal was done. It is appropriate that he pay one half of those repairs to Mrs. Metcalfe. The account was $5,099.69 and one half is $2,549.84.
70When these two amounts are set off against one another, the net adjustment is $950.16 in favour of Mr. Metcalfe.
Conclusion
71Beginning on January 1, 2015 and on the first of each and every month thereafter, the Respondent shall pay to the Applicant, for the support of the children Thomas Robert Metcalfe, born August 1, 1995, Kevin Douglas Metcalfe, born June 25, 1996 and Amy Louise Jacqueline Metcalfe, born March 7, 1998, the sum of $548.82 reflecting the Respondent’s imputed income of $27,248 per year. In the event the Respondent obtains employment he shall forthwith advise the Applicant, provide her with proof of income and immediately thereafter begin paying guideline child support based on his new income.
72Currently, the combined income of the parties is $86,248. The Applicant’s share of this total is 68.4 percent and the Respondent’s is 31.6 percent. They shall share section 7 expenses for the children in accordance with these percentages effective January 1, 2015.
73I have prepared the attached Schedule “B” which summarizes the various payments I have determined to be due between the parties. When they are all accounted for, a net payment of $1,326.62 is due from Mrs. Metcalfe to Mr. Metcalfe.
74The matrimonial home shall be sold. The mortgage and secured line of credit shall be paid from the proceeds of sale, along with the real estate commission and any required legal fees. Whatever remains of the sale proceeds shall be divided equally between the parties. From the Applicant’s share of the proceeds, the Respondent shall be paid $1,326.62. If the parties are unable to agree on the terms of the listing or sale, either of them may bring a motion before this court to have the terms of listing and sale determined.
75If either party wishes to advance a claim for costs, and the issue cannot be agreed upon, written submissions may be made to me, not to exceed four pages in length plus attachments each. The Applicant’s submissions shall be served and filed within 30 days. The Respondent’s submissions shall be served and filed within 45 days.
Epilogue
76I have not made any order with respect to personal property such as furniture, jewellery, art work, sports and hobby equipment and electronics because the parties did not provide sufficient evidence to allow for a valuation of most of these items. The parties are encouraged to reach a fair division of these assets.
77As I explained to the parties during the trial, my ability to order the transfer of property in matrimonial proceedings is very limited and is not warranted on the facts before me. However, in an effort to assist the parties should they wish to implement the terms of this decision in the context of a transfer of the matrimonial home to the Applicant, I would offer the following comments.
78If the parties were to agree that the Applicant be given the opportunity to acquire the home, the following would be required:
The Value of the home would be $336,000, less the costs of repairs to the pool which have been established at $5,560, which equals $330,440.
From $330,440 would be deducted the current balance of the mortgage and line of credit (to be refinanced by the Applicant).
One-half of the difference between $330,440 and the payout of the mortgage and line of credit would have to be paid to the Respondent, along with a further $1,326.62.
I have allocated to Mrs. Metcalfe the value of certain musical equipment that remains in her possession. Presumably, Mr. Metcalfe might consider receiving that musical equipment as part payment of the amounts due.
R. D. GORDON, R.S.J.
Released: February 13, 2015
CITATION: Metcalfe v. Metcalfe, 2015 ONSC 1002
COURT FILE NO.: FD1603-13
DATE: 20150213
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LYNNE CATHERINE METCALFE
Applicant
– and –
GLENN DOUGLAS METCALFE
Respondent
REASONS FOR JUDGMENT
R. D. GORDON, R.S.J.
Released: February 13, 2015
SCHEDULE “A”
NET FAMILY PROPERTY CALCULATIONS
Asset or Liability Husband Wife
Matrimonial Home $168,000 $168,000
Musical Instruments $2,015
Bank Accounts $800 $2,596.14
Pension $7,572.17
RSP $1,319.90
RESP $872.50 $872.50
Life Insurance $1,912.80 $1,933.09
Business $13,140
Other $4,816.93
Mortgage/LOC ($123,844.70) ($123,844.70)
Various debts ($66,089.97) ($28,779.66)
Assets at Date of Marriage ($17,000.00)
$927.46 $13,364.54
Mr. Metcalfe’s NFP is $927.46. Ms. Metcalfe’s NFP is $13,364.54. The resulting equalization payment from Ms. Metcalfe to Mr. Metcalfe is $6,218.54.
SCHEDULE “B”
Item Owing to Applicant Owing to Respondent
Retrospective Child Support $1,591.96
Retrospective s. 7 $3,884.31
Equalization Payment $6,218.54
Occupation rent vs expenses $366.11
Other $950.16
Total $5,842.38 $7,168.70
The Respondent is owed a net payment of $1,326.32 from the Applicant.
