SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-13-684

DATE: 2015/06/30

RE: HEATHER JOAN BUCKLAND, Applicant

AND

IAN HUNTER BUCKLAND, Respondent

BEFORE: Shelston J.

COUNSEL: Steven A. Fried, counsel for the Applicant

Jennifer C. Johnston, counsel for the Respondent

HEARD: June 25, 2015 (at Ottawa)

ENDORSEMENT

[1] The applicant brings a motion for a temporary order for the relief set out at Tab 1, Volume 2 of the Continuing Record. The respondent also brings a motion for a temporary order for the relief set out at Tab 3, Volume 2 of the Continuing Record.

[2] At the outset of the motion, the parties advised that they consent to the following order:

(1) an order that the respondent maintain the applicant and the minor child Emily Buckland, born May 18, 2000, as a beneficiary of his medical/dental/extended health plan of insurance as available through his employment;

(2) an order that the respondent provide a direction to his insurer through his employment to allow for the applicant to submit claims to the respondent’s insurer directly and to receive payment from the respondent’s insurer for claims for herself and Emily Buckland;

(3) an order that the respondent name the applicant as the irrevocable beneficiary of 50% of his life insurance policy available through his employment and that he name the applicant as the irrevocable beneficiary in trust for Emily of 50% of his life insurance policy available through his employment for so long as the applicant and/or the minor child of the marriage are entitled to be supported.

[3] Counsel advised the issues to be decided are as follows:

(1) Disclosure;

(2) Sharing of expenses related to the matrimonial home municipally known as 1360 Inge Crescent, Ottawa, Ontario;

(3) An order freezing the RESP account or restricting withdrawals so that they can only be made with the consent of both parties;

(4) An order that exclusive possession of the matrimonial home be awarded to the respondent effective 30 days from the date of the motion;

(5) Variation of child and spousal support; and

(6) Costs of this motion.

Background

[4] The parties were married to each other on March 17, 1995. There are two children of the marriage, namely Erin Kimberly Buckland, born October 29, 1995, and Emily Megan Buckland, born May 18, 2000. The parties separated on February 28, 2012, and the applicant has remained in exclusive possession of the matrimonial home since that time.

[5] The applicant commenced proceedings on March 26, 2013. The parties attended a case conference on June 28, 2013, at which time the parties consented to listing the matrimonial home for sale forthwith amongst other relief. The parties consented to a temporary order dated November 1, 2013, where they agreed to the following order:

(1) The respondent shall pay child support to the applicant in the amount of $1,483 per month for two children commencing October 1, 2013, based on the respondent’s income for 2012 being $105,510 and the applicant’s income being $6,877; and

(2) The respondent shall pay spousal support to the applicant in the sum of $1,438 per month commencing October 1, 2013, based on the respondent’s income for 2012 being $105,510 and the applicant’s income being $6,877.

[6] The parties attended a settlement conference on December 9, 2014, at which point they consented to an order that the matrimonial home be listed for sale immediately at a listing price of $600,000 and that any dispute issues relating to the sale of the matrimonial home are to be referred to the Master on three days’ notice and the net proceeds of sale to be held in trust.

Changes in Circumstances

[7] Erin moved out of the matrimonial home in June 2014 and lived with the respondent. In September 2014, she moved into a shared apartment as she was in the last year of her degree at Algonquin College. While at Algonquin College the respondent paid to Erin $550 a month towards her apartment and $450 a month towards her grocery expense for a total expense of $1,000 per month. Erin may attend Carleton University in the fall of 2015.

Disclosure

#1-Respondent’s Financial Institutions

[8] The respondent has agreed to write to the financial institutions set out in the applicant’s notice of motion to confirm whether or not the respondent was a client at the date of separation and for the balance of any account or investment at the time of separation. I make said order.

#2-Appraisal of Respondent’s Tools and Equipment

[9] The parties have agreed that the respondent may attend on or after July 15, 2015, at the matrimonial home to retrieve all of his tools and equipment related to his electrical business that existed as of the date of separation. If either party wishes to obtain an appraisal of said tools and equipment they are at liberty to do so. I make said order.

#3-Business Records

[10] Based on the evidence before me, the business records that existed remained in the matrimonial home which suffered a serious flood post separation. Further, I will not order that the respondent to provide a copy of the business records from 2006 to date as he indicates that he has no records in his possession and any records remained in the matrimonial home.

#4-Respondent’s Parents’ Estate

[11] The applicant seeks disclosure regarding the estate assets and liabilities of the respondent’s late father and mother who died in 2003 and 2007. The notary who handled the estate is located in Buckingham, Québec. The respondent has agreed and I so order that he will contact the said notary and request any and all information regarding his parents’ estate, including the assets and liabilities as well as the distribution of those assets and liabilities. The respondent to provide a copy of any such documentation to the applicant by July 30, 2015.

#5-Electrical License

[12] The applicant contends that the respondent is working as an electrician or has the ability to work as an electrician and therefore she is requesting proof as to the status of his electrician Master’s license. The respondent denies that he is working as an electrician and states that he no longer has such a license. The respondent agreed to contact the Electrical Safety Authority to receive written confirmation as to his current status of his electrician Master license and to provide same by July 30, 2015 to the applicant. I make said order.

#6-Proof of the Ownership of Lands Owned by the Respondent in the Province of Québec

[13] The applicant contends that the respondent had land in the province of Québec that was disposed of either before or during the marriage and seeks disclosure as to the disposition of the proceeds of sale. The respondent has agreed to contact the notary who acted on the sale of the Québec properties and to provide copies of any and all information in the notary’s file regarding the sale of said lands and the net proceeds of sale to the applicant. I so order and same to be provided by July 30, 2015.

Sharing Expenses of Matrimonial Home

[14] The applicant seeks an order that the parties equally share the expenses related to the matrimonial home. Whoever has exclusive possession of the matrimonial home, that party will be responsible for maintaining the matrimonial home such that that party shall be responsible to pay for all of the expenses in the matrimonial home, including but not limited to the following:

(a) Grass cutting and maintenance;

(b) Pool opening and repair expense;

(c) WETT inspection certificate;

(d) Water bacterial test;

(e) Septic system cleaning and repair if required;

(f) Furnace or geothermal heat pump repair or replacement; and

(g) Eavestrough cleaning and repair if required.

RESP Accounts for the Children

[15] As of the date of separation, the parties had an RESP account with Royal Mutual Funds in the amount of $71,513.07. The respondent has alleged that the applicant has misused said RESP account and is requesting an order freezing the account or restricting the withdrawals so that they can be made only with the consent of both parties. During the course of argument the applicant indicated that she would provide copies of all statements received after February 28, 2012. In her affidavit dated June 22, 2015, the applicant agreed that she would not disburse any funds from the remaining balance in the account without either the consent of the parties or court order. Consequently, I order that the RESP account Royal Mutual Funds #526942719 shall not be disbursed without the consent of the parties or court order.

Exclusive Possession of the Matrimonial Home

[16] The respondent has not resided in the matrimonial home since February 20, 2012. Since that time, the applicant has had de facto exclusive possession of the matrimonial home.

[17] The parties agreed on June 20, 2013 by order of Justice Métivier that the matrimonial home would be sold forthwith and again on December 9, 2014, they relisted the matrimonial home for sale at $600,000. The matrimonial home has not been sold. The applicant and Emily remain in exclusive possession of the home. It was recently listed for sale at $569,000.

[18] Problems have arisen during the applicant’s de facto exclusive possession of the matrimonial home including a flood in August, 2014, where the insurer denied coverage because of the applicant’s inaction allowing adjusters or contractors to enter the home. The applicant remedied the damages by spending approximately $31,000 and repaired the roof in the amount of an additional $10,000 during her possession of the matrimonial home. Further, the applicant refused to apply for a new house insurance policy and the matrimonial home went uninsured for a short period of time. The insurance is currently in the name of the respondent alone and at present the policy costs him approximately $6,000 per year.

[19] Further, the applicant has failed to pay the property taxes. More troubling is that the applicant has consistently made the sale difficult and that two listing agents have refused to renew the listing of agreement and have cancelled the listing during the listing period.

[20] Since the listing of the home the property has been listed with three different agents. The most recent agent, Jo-Anne Suitor, wrote an email to the parties on June 3, 2015, and indicated:

Dear Mr. and Mrs. Buckland,

It seems obvious based on the email exchanges and the history of previous realtors trying to sell and market your home that there are unresolved issues between you regarding the sale of your matrimonial home. As you can appreciate, unless we have motivated sellers that are both in agreement with the disposition of your property and who fully cooperate with our efforts to market and show the property, it makes our job impossible.

In these circumstances, we have no choice but to consider the agreement frustrated and of no further force and effect, effective immediately.

We will take steps today to remove the listing from MLS.

When you are both ready to sell we would be more than happy to work with you in a more harmonious manner.

Regards Jo-Anne

[21] The applicant has replied to this allegation by indicating that she will have the property relisted with a new agent and she is in the process of choosing a new agent from Paul Rushforth Realty. She expects Paul Rushforth Realty would provide the best service as their policy is that if they cannot sell the home within 120 days, they will buy the home for an agreed-upon price (92% of it) plus 6.5% commission subject to obtaining home inspection. Further she indicated the matrimonial home has been listed for years without a sale. She indicated she wants the home sold as soon as possible. Regarding the unpaid property taxes she indicated that should be dealt with at a trial and should not be the subject of a motion.

[22] Regardless of ownership of the matrimonial home and its contents, the court may on application, by order, direct one party will be given exclusive possession of the matrimonial home as set out in s. 24 of the Family Law Act, R.S.O. 1990, c. F.3. In determining whether not to make an order for exclusive possession, the court shall consider the following criteria set out at s. 24 (3) of the Family Law Act:

(a) The best interests of the children affected;

(b) The existing orders under part one 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.

[23] Pursuant to s. 24 (4) of the Family Law Act, in determining the best interests of a child, the court shall consider:

(a) The possible disruptive effects on the child of a move to other accommodations; and

(b) The child’s views and preferences if they can reasonably be ascertained.

[24] In this case, the applicant has had exclusive possession for over three years. The two children of the marriage resided in the matrimonial home until June 2014, when Emily moved out and went to live with the respondent. Since June 2014, the applicant and the youngest child Erin reside in the matrimonial home. The youngest child will be attending high school in the fall. Both parties agree that the matrimonial home shall be sold and the only issue for the court to decide is who shall remain in the matrimonial home until it is sold.

[25] The actions of the applicant have not been conducive to selling the matrimonial home such as not allowing the insurance adjusters to have access to the residence to deal with the flood damage. Both parties blame each other. On a motion, it is impossible for the court to determine which party is responsible for the property not selling as the email from Ms. Suitor was addressed to both parties and did not mention which party as being responsible for frustrating the contract.

[26] Consequently I have decided that the applicant shall remain in the matrimonial home until it is sold or until further order of this Court. Further, I order:

(a) Each party shall select a real estate agent to provide a market value assessment of the matrimonial home by July 15, 2015 which shall be provided to the other party by July 17, 2015;

(b) Said real estate agent shall have access to the matrimonial home to conduct the market value assessment before July 15, 2015;

(c) The parties shall select a listing agent and a price and if the parties cannot agree on the listing price and the price, said dispute can be referred to the Master;

(d) The parties shall sign the said listing agreement and cooperate fully with the listing agent;

(e) Any disagreement regarding the sale shall be referred to the Master as per the order of Justice Linhares De Sousa, dated December 9, 2014; and

(f) The applicant shall assume all expenses related to the matrimonial home, including, but not limited to: grass cutting and maintenance; pool opening and repair expense; WETT inspection certificate; water bacterial test; septic system cleaning and repair, if required; furnace or geothermal heat pump repair or replacement; and eavestrough cleaning and repair, if required. Any repairs over the amount of $500 are to be shared equally by the parties. Before any liability is attached, the liability must be disclosed, and the parties must investigate and consent. Such consent not to be unreasonably withheld.

Variation of Child and Spousal Support

[27] The parties agree that the child and spousal support shall be varied as a result of material changes in circumstances. At the time of the interim order of November 1, 2013, the respondent was earning $105,510 based on his 2012 income tax return. Clearly, there has been a material change in circumstances as the respondent earned $142,062.79 in 2014. As well, in 2013, there were two children entitled to support. Currently, only Emily is entitled to support but Erin’s status as a “child of the marriage” within the meaning of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) will have to be determined.

[28] The real issue is what is the income of the applicant? At the time of the order of Justice Lalonde, dated November 1, 2013, her annual income was $6,877. The respondent seeks an order to impute an annual income to the applicant of $22,000 based on her skills and arguing that she has a positive obligation to be employed and that she is not fulfilling her obligation.

[29] The applicant indicates that she worked part-time at the Ottawa Carleton District School Board as a supply teacher and the last time she worked was in June 2014, at the Elmdale Public school. She indicated the school was changed to a French immersion school and that she is not qualified to act as a teacher as her French literacy is not sufficient to meet the requirements of the position. She indicated that she has remained on the list for part-time or full-time employment and she has been applying and ready for teaching jobs. She has also written government exams and has applied to the federal government for positions, but to no avail. She hopes that in 2015-2016 the school year will be more lucrative for her. She does not agree that any income should be imputed to her. She has provided no evidence of any attempt to find employment other than at the school board or the federal government.

[30] The applicant’s income tax returns indicate the following incomes:

(a) 2009 $7,212

(b) 2010 $1,927

(c) 2011 $6,877

(d) 2012 $6,877

(e) 2013 no information

(f) 2014 $35,963.26 of which $7,539.24 was interest and other investment income and $12,695.02 was employment income. The balance was support.

[31] The applicant is not bilingual and is currently 52 years of age. When the interim order of Justice Lalonde was made on November 1, 2013, the order was made on consent and there was no issue of imputing income to the applicant at that time. However that was 19 months ago. She has not worked in any capacity since June 2014. The applicant has a duty to seek employment when she is healthy and there is no reason why she cannot work. When imputing an income on the basis on intentional under employment, a court must consider what is reasonable in the circumstances. What is reasonable is based on the applicant’s age; education; work experience; skills and health as set out in L. (N.) v. P. (B.) (2000), 2000 22516 (ON SC), 7 R.F.L. (5th) 335 (SCJ).

[32] I find that it is reasonable that a woman who is 52 years of age with no health issues and with a 15 year old daughter attending high school to be working in some type of employment. The respondent is asking to impute an additional $14,500 of income to her for a total income of $22,000. To earn that additional $14,500, the applicant would have to work 48 weeks earning approximately $302 a week or 52 weeks earning approximately $278 per week which she could accomplish working part time. I believe that $14,500 is a reasonable amount and I impute an additional $14,500 to the applicant’s total income of $7,500 for 2015 to total $22,000.

[33] As none of the Divorcemate calculations provided by counsel have the findings of fact that I have made, the parties are to provide me with Divorcemate calculations for child support for Emily and spousal support based on the findings of the parties’ incomes by July 17, 2015. Based on the Divorcemate documents once received, I will make my order regarding the quantum of child and spousal support.

Costs

[34] Once I had made my decision on support, I will provide directions regarding the timing of costs submissions.

Shelston J.

Released: June 30, 2015

ONTARIO
SUPERIOR COURT OF JUSTICE

RE: HEATHER JOAN BUCKLAND, Applicant

AND

IAN HUNTER BUCKLAND, Respondent

BEFORE: Shelston J.

COUNSEL: Steven A. Fried, counsel for the Applicant

Jennifer C. Johnston, counsel for the Respondent

ENDORSEMENT

Shelston J.

Released: June 30, 2015