RULING ON MOTIONS

[1] The respondent’s motion seeks the following relief:

(a) An order compelling the listing and sale of the jointly owned matrimonial home, municipally known as 511 Bur Oak Avenue, Markham Ontario;

(b) An order that the net proceeds of sale be divided equally subject to $200,000 being held in trust so as to satisfy outstanding financial claims in the proceeding, including the respondent’s claim for an unequal division of net family property;

(c) An order compelling disclosure by way of supporting documentation from the applicant in regard to his leave of absence from his employment and, specifically, for the production of any applications made for short-term or long-term disability, along with any written response to said application from the applicant’s employer and/or insurance carrier;

(d) An order for child support retroactive to the date of separation, being December 26, 2014;

(e) An order for leave for the respondent to file her answer and related court documentation;

(f) An order compelling the applicant to provide the respondent with the child’s passport, OHIP card, social insurance card and birth certificate;

(g) An order permitting the respondent to enroll the child of the marriage in a public school geographically located in the City of Toronto;

(h) An order providing that the child be picked up and dropped off by the applicant at the respondent’s residence in the City of Toronto for the purpose of access visits;

(i) An order compelling the applicant to attend for questioning;

(j) An order compelling the applicant to provide disclosure in accordance with the respondent’s request for information, dated April 20, 2015;

(k) An order requiring the applicant to pay the monthly mortgage and utilities on the matrimonial home pending sale if he acknowledges residing there on a full-time basis and otherwise, that each party pay 50% of the carrying costs of the property pending sale;

(l) An order restraining the applicant from attending at the child’s school during regularly scheduled classroom time with a view to removing the child from class/school; and,

(m) Costs on a full recovery basis.

Background

[2] Pursuant to my prior order of May 15, 2015, the applicant was to have the child on alternating weekends commencing Friday after school until the return to school on Monday morning, together with every Tuesday and Thursday from after school until 7:00 p.m., with the respondent to pick up the child at a specified location in Markham; in addition, the applicant was to have the child overnight from Thursday until Friday morning in the weeks preceding his non-access weekend.

[3] My order also provided that, absent any material change, this court could not foresee the need to alter the parenting time set out above.

[4] As both parties are schoolteachers, I also ordered the parties to share time with the child during the summer school vacation on a 3-2-2 rotation.

[5] Pursuant to the terms of a consent adjournment, dated July 15, 2015, the applicant was to bring the mortgage on the matrimonial home into good standing, maintain same and retire any arrears on the Enbridge and Hydro accounts, and continue to make ongoing monthly payments pending return of the motion. In addition, the child’s identification documents were to travel back and forth with the child based on the parenting schedule. Finally, a combined settlement conference/trial management conference was scheduled for October 13, 2015 at 10:30 a.m.

[6] It is also noted that on January 19, 2015, Justice Nelson requested the involvement of the Office of the Children’s Lawyer, a request that I repeated on January 28, 2015. That office has declined involvement in this matter.

Preliminary Matters

[7] The consent order of May 15, 2015 provided for both parties to attend questioning prior to the settlement conference. It also provided for the applicant to comply with the disclosure request by August 31, 2015 and for the respondent to file her previously served answer and supporting documentation by July 31, 2015. If not already filed, the respondent shall be at liberty do so by September 30, 2015. There is no need to address the other two issues again at this time in view of the prior order.

Issue Regarding Applicant’s Leave of Absence

[8] The respondent alleges that the applicant has not been working since approximately April, 2015 and that he is on leave until September, 2015. Her requests for medical information remain unanswered. In that the applicant is pursuing a claim for custody, the status of his health and its potential impact on the child is most relevant. Within thirty days of the release of this order, the applicant shall provide the respondent with all medical documentation supplied to his employer in support of his leave from work, including any applications made for either short-term or long-term disability, together with any responses received from either the employer and/or the insurer. In addition the applicant shall provide to the respondent a current letter from his treating physician commenting on the applicant’s ability to care for his child on either a full-time or part-time basis.

Issue of Child’s Identification

[9] Pending trial, the applicant shall retain the child’s birth certificate and social insurance card, and provide notarial copies of same to the respondent. The respondent shall retain the child’s OHIP card and passport and provide a notarial copy of the OHIP card to the applicant. In the event either party requires original documentation, a written explanation will be provided and, if justified, the original documentation shall be provided to the requesting party and returned immediately after use. Pending further court order, neither party shall remove the child from the Province of Ontario.

Issue of Sale of the Matrimonial Home

[10] The respondent has been residing at her father’s residence in Toronto since separation on or about December 26, 2014. The applicant apparently remained in possession of the matrimonial home since that time. Pursuant to the consent order of Justice Jarvis on May 15, 2015, the applicant was to bring the mortgage into good standing and maintain the mortgage with arrears, then owing, to be paid on or before July 17, 2015. By the same date, the applicant was also to retire any arrears owing on the Enbridge and Hydro accounts pertaining to the matrimonial home and to make ongoing monthly payments on these accounts pending return of the motion. The evidence provided by the applicant would appear to suggest that all accounts are now current, albeit not in compliance with the consent order.

[11] Since March 2015, respondent’s counsel has written to both the applicant’s counsel and to the applicant himself, while he was acting in person, requesting that the matrimonial home be listed for sale; neither counsel nor the applicant responded.

[12] The respondent also alleges that whenever the child is with the applicant, the applicant and child do not reside at the former matrimonial home but rather at the home of the paternal grandparents in Markham, Ontario. She bases this belief on information received from the child and by virtue of the Enbridge account having been disconnected in May, 2015 for non-payment of the account. In response, the applicant states that the paternal grandparents’ home is the centre of the child’s activity because the child meets his first cousins there each day after school. They are ages eleven, eight, twelve and eight years old, and are the most significant peers in the child’s life and have been since he was born. In responding to the respondent’s allegations, the applicant informs the court of the extra-curricular activities in which he and the child are involved, in addition to his discharging his parental responsibilities by feeding the child, helping him to learn to read, getting him dressed in the morning and other similar activities. It is noted, however, that the applicant appears to be somewhat evasive in addressing the issue of the child’s residence when in his care and control.

[13] The applicant resists the respondent’s request that the matrimonial home be sold. He states that his game plan is to preserve the home for the sake of the child who will be turning five years of age on the second day of school. If the home is listed for sale, he intends to submit an offer to purchase it. However, he indicates that he cannot now apply for a mortgage because, until trial, he will not know the custody and child support situation nor can he predict the quantum of an equalization payment because the respondent is requesting an unequal division of net family property. The respondent indicates that the home is worth in the vicinity of $465,000 and is subject to a mortgage of $90,000; the applicant submits the fair market value of the home to be $600,000. Neither party provided the court with a fair market analysis. The applicant is indebted in the approximate amount of $170,000 in line of credit and credit card debt which he states was incurred as a result of the respondent refusing to contribute to household expenses, other than the mortgage, or to any of the child’s extracurricular activities. In addition, he sustained investment losses. His credit-card payments (interest only) are about $3,000 to $4,000 per month and his net salary approximates $4,500 per month. It is the belief of the respondent that the applicant has a gambling addiction and that the joint debt which was accumulated by way of the joint line of credit secured against title to the matrimonial home was done so without her knowledge or consent.

[14] Silva v. Silva, 1990 CanLII 6718 (ON CA), 30 R.F.L. (3d) 117 (Ont. C.A.), is a leading decision on the issue of whether a jointly held matrimonial home should be sold prior to trial. Where substantial rights in relation to jointly owned property are likely to be jeopardized by an order for sale, the matter should be deferred until the issues are decided under the Family Law Act, R.S.O. 1990, c. F.3. However, if the sale will not prejudice either spouses claim with respect to the home under the Family Law Act, there is no reason to delay a sale. The issue is also canvassed in the Court of Appeal decision of Martin v. Martin, 1992 CanLII 7402 (ON CA), 38 R.F.L. (3d) 217 (Ont. C.A.), where Justice Osborne stated as follows:

Although there is clear jurisdiction under the Partition Act to order the sale of the parties' matrimonial home, I do not wish to be taken to have endorsed the wholesale issuance of these orders. In my view, an order directing the sale of a matrimonial home before trial should only be made in cases where, in all of the circumstances, such an order is appropriate. Orders for the sale of a matrimonial home made before the resolution of Family Law Act, 1986 issues (particularly the determination of the equalization payment) should not be made as a matter of course.

[15] Both parties recognize that the sale of the matrimonial home is imminent. As noted, the respondent has been seeking cooperation from the applicant to list the home for sale since March, 2015. The applicant has been silent in his response until recently when he indicated a desire to preserve the home for the sake of the child. However, he presents no evidence to the court that the child would be negatively impacted by a sale at this time. Whereas the court should avoid making credibility findings on competing affidavits at this stage of the proceeding, the applicant’s affidavit does not attempt to refute the respondent’s suggestion that when the child is with the applicant they reside with the paternal grandparents. Furthermore, it is the applicant who states that the centre of the child’s activity is the paternal grandparents’ home and not the matrimonial home. There is simply no evidence before the court that the child would be negatively impacted by a sale of the matrimonial home at this time or, conversely, that it is in the child’s best interests that the home be maintained.

[16] The applicant has also encountered considerable difficulty in making his monthly payments. The mortgage fell into arrears in March, 2015. Services from Enbridge were disconnected in May, 2015 for non-payment. By his own admission, his credit card payments leave him with little disposable income and he similarly finances the child’s extra-curricular activities by credit card.

[17] No information has been provided by either party regarding their pensions from employment but the court was advised that they are earning approximately the same income. It is presumed that any differences in pension values can be resolved at source.

[18] This court is mindful that currently the respondent’s answer, in which she seeks a sale of the matrimonial home, is not filed with the court. However, it was served upon the applicant on March 18, 2015 and, as such, the applicant is not taken by surprise by the requested relief. It is noted that this is an argument not raised by the applicant on the return of the motion.

[19] On the basis of the above analysis, this court finds it appropriate that the matrimonial home be sold and it is ordered that the matrimonial home municipally known as 511 Bur Oak Avenue, Markham, Ontario be listed for sale. The parties are to agree on a listing agent and accept the listing agent’s recommendation regarding the listing price. If the parties are unable to agree on a listing agent, then each party shall choose an agent and the two chosen agents shall choose an agent independent of themselves to list the property for sale. A listing agreement shall be entered into no later than September 25, 2015. The parties shall fully cooperate with the listing agent. Either party is at liberty to make the necessary arrangements to purchase the interest of the other party.

[20] Upon the sale of the matrimonial home, the net proceeds shall be divided equally, subject to the sum of $200,000 being held in trust by the real estate solicitor so as to satisfy outstanding financial claims in this proceeding including the respondent’s claim for an unequal division of net family property.

Issue of Household Expenses and Child Support

[21] The parties are in apparent agreement that the expenses for the mortgage, realty taxes and home insurance amounts to $1,310 per month. The parties are jointly responsible for these expenses. Unless the applicant, within five days from the release of this order, indicates that he is not residing in the matrimonial home, he shall be responsible for maintaining the monthly payments associated with the home including utilities. The final utility accounts shall be paid by the real estate solicitor from the applicant’s share of the net proceeds.

[22] In the event the applicant is not residing in the matrimonial home, each party shall pay for 50% of the carrying costs of the property pending sale including utilities. In this scenario, the final utility accounts shall be paid jointly.

[23] On the basis of an income of $97,100, the applicant would be required to pay child support of $857 per month. If he is residing in the matrimonial home, then the parties are in apparent agreement that he is effectively paying the sum of $655 on behalf of the respondent towards the expenses for the mortgage, realty taxes and home insurance. Accordingly, commencing September 1, 2015, and on the first day of the month until the completion of the sale of the home, the applicant shall pay to the respondent for the support of the child, the sum of $200 per month. A support deduction order shall issue. In the event the applicant is not residing in the matrimonial home, then the support for the child shall be $857 per month. I am assuming that counsel can cooperate sufficiently to have the proper support deduction order entered to reflect the reality of the situation. This order is without prejudice to both commencement and quantum of support.

Issue Regarding Child’s Schooling and Parenting Schedule

[24] The child completed junior kindergarten at Central Park Public School in June, 2015. He was in attendance at this school on separation. The applicant proposes that the child continue in this school for senior kindergarten. It is within the catchment area of the matrimonial home and in close proximity to the home of the paternal grandparents.

[25] The respondent proposes that the child attend school in Toronto. She indicates that the local school within the catchment area where she currently resides is William Burgess Public School. However, she also indicates that a much better school academically is located nearby, named Northlea Elementary School. It is apparently not within the catchment area of her residence. She indicates that if the child attends school in Toronto it will permit her to transport him to and from school and that she also has the assistance of her sister and father, as may be needed.

[26] The respondent sought similar relief in her motion, dated January 22, 2015; it was dismissed. In my ruling at 2015 ONSC 3142, I noted at paragraph 5 that “absent any material change and subject to any agreement reached by the parties without judicial intervention (however unlikely that may be) this court cannot foresee the need to alter the parenting time set out above”.

[27] The applicant argues that no change of circumstances has been suggested by the respondent. He states that her proposal that would alter the delivery and pickup of the child would significantly reduce the child’s time with him. He indicates that he teaches in Toronto and it would take him approximately thirty minutes to pick up the child for the midweek access. He would then be required to drive to Markham to spend some time with the child and to enable the child to continue his relationship with his cousins, aunts and paternal grandparents, and then he would have to drive the child back to her.

[28] The respondent argues that it would not be inconvenient for the applicant to pick up and drop off the child from a Toronto school. She maintains that it would be less time-consuming and disruptive for the child who currently must wake up an hour and a half earlier than otherwise needed because it takes her sister one hour to drive the child from Toronto to his Markham School.

[29] As noted in Grgurich v. Del Ben, 1997 CanLII 12390 (ON SC), (1997), 35 R.F.L. (4th) 33 at para. 8, “Interim orders are temporary orders which are intended to remain in effect until final disposition of the issues at trial. Interim orders should not be tinkered with or varied save in appropriate circumstances.” As noted in Greve v. Brighton, 2011 ONSC 4996, 2011 ONSC 4996, [2012] W.D.F.L. 506 at para 24, the court should only vary the interim order “… where the moving party has a demonstrated change in circumstances and, as a result of those changed circumstances, there are compelling reasons that the order should be varied to meet the children’s best interests.”

[30] Although the travel situation for the child is not ideal, it is, nevertheless, one which he has faced since my initial ruling on January 28, 2015, which I made pending release of my ruling on May 15, 2015. There is no material before me to suggest that the child has been negatively impacted. If the child was not progressing well, then certainly information from the school could have been provided to reflect this fact. The respondent was apparently able to receive information from the child’s school with respect to the applicant’s attendance at the child’s school and how the child’s academics would be negatively impacted if he was removed from the classroom by his father. One would therefore expect that if the child’s teacher had any other concerns regarding the child then this would have been communicated to the respondent for presentation to the court.

[31] Mr. Singer’s argument is that the respondent’s request for a change in schooling is res judicata and that my earlier decision pre-empts the respondent’s motion. I cannot agree with that argument. Issues pertaining to the child’s well-being are always open to scrutiny by the court to ensure that the child’s best interests remain the focus. In the proper case with a different set of facts presented to me, I would not hesitate to change the child’s school if I found there to be a material change of circumstances. In the absence of such facts, the child’s schooling will remain in place pending a further order of this court.

[32] A review of the competing affidavits, and of the arguments presented by counsel, suggests to me that it would be appropriate to tinker with the temporary order now in place. So as to reduce, to a degree, the child’s time in a car, I am changing the temporary order by removing the applicant’s access on Tuesday and Thursday after school and replacing it with every Wednesday with the applicant picking up the child from school and returning him to school on the Thursday morning. All other terms of my previous order remain in place including the child’s Thursday evening overnight visit with the applicant preceding the non-access weekend.

[33] In addition, the celebration of Thanksgiving is approaching. Absent written agreement between the parties, the alternating weekend parenting schedule will continue save and except that the parent having the child that weekend will have the choice of celebrating Thanksgiving on either Sunday or Monday, and the other parent will then have the child on the date not chosen to enable the child to celebrate with that parent and extended family members. Arrangements are to be made in writing by October 1, 2015. The parent receiving this extra day shall have the child from 10:00 a.m. until 7:30 p.m. and the parents shall coordinate driving on this one day by one being responsible for pickup and the other being responsible for drop off.

[34] With respect to the respondent’s concern that the applicant has been attending at the child’s school and taking him out of class, this issue might be moot if the applicant is returning to his teaching duties next week. In any event, his attendance at the child’s school shall be restricted to pick up or drop off, depending on the parenting schedule, other than for scheduled events in which all parents are invited to the school or by special arrangement approved by the school beforehand.

[35] This matter is to be given priority in the November 2015 trial sittings. If it is not reached, parenting time over the traditional Christmas school break as well as the Greek Orthodox celebration is to be divided equally. In the event that the parties are still unable to agree on a division of parenting time, any motion shall be accompanied by an offer to settle reflecting an equal sharing of time which shall take into consideration the manner in which these holidays were shared last year. The parties shall apprise their case management justice of this provision to enable leave to be given for this motion within the trial scheduling endorsement form.

[36] If the parties are unable to agree upon the costs of this motion, then the respondent’s submissions are to be received within twenty days of release of this ruling and the applicant’s to be filed twenty days thereafter. Submissions are limited to three pages, double-spaced, exclusive of a bill of costs and offer to settle. There will be no reply submissions.

[37] Mr. Singer is to arrange for the filing of the applicant’s affidavit, dated July 31, 2015, into the Continuing Record.

Justice Kaufman

Released: September 4, 2015

Kokaliaris v. Palantzas, 2015 ONSC 3142

Case Summary

RULING ON MOTIONS

Background

Preliminary Matters

Issue Regarding Applicant’s Leave of Absence

Issue of Child’s Identification

Issue of Sale of the Matrimonial Home

Issue of Household Expenses and Child Support

Issue Regarding Child’s Schooling and Parenting Schedule

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 2

Legislation 1