COURT FILE NO.: 87/12
DATE: 2015-07-09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Gordon Lloyd Jackson
Applicant
– and –
Karen Joy Jackson
Respondent
James Battin, Counsel for the Applicant
Robert F. MacLeod, Counsel for the Respondent
HEARD: June 8 & 9, 2015
REASONS FOR DECISION
THE HONOURABLE MR. JUSTICE D.J. GORDON
[1] The parties were able to resolve parenting issues. A trial was required to address spousal support and property claims. An evidentiary shortfall and significant non-disclosure by the applicant resulted in complications on what should have been straightforward matters.
Background
[2] Gordon Jackson and Karen Jackson first married in 1984 and divorced in 1990. Subsequently, each remarried. Mr. Jackson has a daughter, now 19 years of age. He has no contact with her. Ms. Jackson has two daughters, now 21 and 17 years of age. The older daughter lives with her father, the youngest with Ms. Jackson, in a co-operative parenting regime.
[3] The parties reconnected in 2002 and commenced cohabitation that year. They married again on December 7, 2005. Brandon and Nicole Jackson were born December 14, 2005. Separation occurred on January 1, 2012.
[4] Mr. Jackson is 53 years of age. He was previously employed in the trucking industry but was injured in 1991. He is presently unemployed. Mr. Jackson resides in a rooming house in Simcoe.
[5] Ms. Jackson is 48 years of age. She is a certified management accountant, providing bookkeeping and accounting services to small business owners since 1988.
[6] The children have primarily resided with Ms. Jackson since separation, spending time regularly with Mr. Jackson.
Litigation
[7] Mr. Jackson commenced this proceeding by application issued June 27, 2012. He claimed custody of the children, child and spousal support, equalization of net family properties and related relief.
[8] Ms. Jackson’s answer is dated July 20, 2012. She opposed many of the claims of Mr. Jackson and made claims of her own for a divorce, custody of the children, child support, an unequal division of net family properties and related relief.
[9] On September 5, 2012, Pazaratz J. granted a consent order. On a without prejudice basis, the children were to reside primarily with their mother and have access with their father on alternate weekends at a minimum. The Order also requested the office of the Children’s Lawyer to be involved in the case.
[10] Subsequently, the O.C.L. conducted an investigation and submitted a report pursuant to section 112, Courts of Justice Act. In her report dated May 21, 2013, the clinical investigator provided a helpful summary of the investigation and made a number of recommendations. The primary recommendations were for sole custody in favour of Ms. Jackson with regular access to Mr. Jackson on alternate weekends and a sharing of summer and holidays. A number of secondary recommendations were presented regarding the parenting plan. As the parties have essentially accepted the O.C.L. recommendations, a review of the investigation is not necessary.
[11] On December 19, 2013, Broad J. granted an order modifying the access regime and directing Ms. Jackson to pay spousal support to Mr. Jackson in the monthly amount of $415, commencing December 1, 2013. At the present time, Ms. Jackson is paying $465 monthly, the extra $50 being applied to an unknown account for arrears.
Issues
[12] Counsel reported the following issues at the commencement of the trial as requiring determination:
(i) access to the children by Mr. Jackson;
(ii) spousal support; and
(iii) property.
Decision and Analysis
(i) Children
[13] Despite the conflict between the parties, the parenting regime since separation has been relatively successful. They accept the recommendations of the O.C.L., as previously mentioned. At the present time, however, Mr. Jackson resides in a rooming house in Simcoe and, in result, overnight access is not appropriate.
[14] Following separation, Mr. Jackson resided in the cottage at Long Point. Subsequently, he moved to the residence of his mother in Pickering. He returned to Simcoe following her death in 2014. Alternate weekend access, along with additional time, modified when he lived in Pickering, has occurred since separation and until his move to a rooming house.
[15] Mr. Jackson did not indicate what his plan is in terms of his residence. He does seek an access order as recommended, but says he should have time with the children from 9:00 a.m. to 7:00 p.m. on those weekends, not overnight. He did not formulate a plan for summer or holidays, saying he is working on it and wants as much time as possible.
[16] Ms. Jackson is supportive of Mr. Jackson’s access with the children. Although there have been occasions, she said, when she had to encourage or force the children to go with their father, Ms. Jackson reports the children as enjoying their time with him. Her only concern, at present, is with Mr. Jackson’s residence. She wants certainty in terms of appropriate accommodation for future overnight access.
[17] I understand the parties to essentially be in agreement as to the ongoing access regime. Hopefully, Mr. Jackson will obtain better residential accommodations so that the access can be regularized. Until that occurs, access will not be overnight and, indeed, may become problematic as the children will not be spending time in a rooming house.
[18] In my view, the access order should be generic so that it can be addressed by the parties, or on a motion to change by Mr. Jackson, when he secures a proper residence.
[19] In result, a final order is granted regarding parenting as follows:
(a) sole custody to Ms. Jackson;
(b) reasonable access to Mr. Jackson as arranged between the parties;
(c) the parties shall refrain from exposing the children to adult issues and conflict; and
(d) Mr. Jackson shall have direct access to educational, dental and medical information regarding the children.
[20] By way of comment, it is expected the current access regime will continue until Mr. Jackson obtains a proper residence. As the custodial parent, Ms. Jackson has the decision-making authority. Accordingly, if there are disputes in future, the onus will be on Mr. Jackson in pursuing a motion to change or other relief.
(ii) Non-disclosure and Credibility
[21] No complaint was presented concerning disclosure by Ms. Jackson. Nor was there any serious challenge regarding her credibility. Rather, Mr. Battin focused on Ms. Jackson’s position on the issues and her evidence pertaining to same.
[22] The situation with Mr. Jackson was significantly different. In cross-examination by Mr. MacLeod, non-disclosure, and hence credibility, became of great concern. Mr. Jackson failed to comply with the rules for disclosure, declining to produce numerous documents, including:
(i) the second appraisal report of the cottage;
(ii) debt on the date of marriage;
(iii) income during marriage and after separation;
(iv) O.D.S.P. application and ruling;
(v) Ontario Works assistance and reason discontinued;
(vi) C.P.P. disability application and ruling, or even whether applied for;
(vii) his mother’s estate and anticipated inheritance, listing for sale of her residence and dispute with his sister;
(viii) the cash advance from his mother or her estate;
(ix) the vehicle purchased with that advance; and
(x) his bank account and amount remaining from that advance.
[23] None of the information concerning these items is reported in his financial statement, sworn May 14, 2015.
[24] Mr. Battin would have instructed his client on the necessity of complete disclosure. Clearly, Mr. Jackson did not even inform his own lawyer about these matters, disclosing only what he wanted others to see.
[25] Disclosure is mandatory. It is one of the pillars in our court system. Failure to disclose relevant documents and information pertaining to the issues in the case raises a serious concern regarding the reliability and credibility of the evidence presented by Mr. Jackson. It also invites an adverse inference that, at the very least, the documents would not have assisted him in advancing his claims.
(iii) Spousal Support
[26] Mr. Jackson seeks a spousal support award of $429 monthly, being the mid-point on the Spousal Support Advisory Guidelines on income imputed to Ms. Jackson of $46,624 (her Line 150 income in 2014 was $39,611) and Mr. Jackson’s income of $2,432.
[27] The basis for the claim is said to be Mr. Jackson’s inability to seek and maintain employment and, hence, his need for non-compensatory support.
[28] The relevant factors and objectives of a spousal support order are set out in section 15.2, Divorce Act, namely:
(4) FACTORS – In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
(6) OBJECTIVES OF SPOUSAL SUPPORT ORDER – An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[29] The onus of establishing entitlement to spousal support is on Mr. Jackson. Marriage, in itself, does not create entitlement. Nor does a disparity in income. While all objectives in section 15.2 must be taken into account, a claim for non-compensatory support involves consideration of economic hardship and promotion of self-sufficiency. See: Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813; and Bracklow v. Bracklow, [1991] 1 S.C.R. 420.
[30] The parties cohabited for approximately ten years. Both were involved in providing child care. Ms. Jackson’s evidence as to providing 75 per cent of child care was not challenged. She also contributed almost all of the financial resources for the family. Ms. Jackson has considerable debt, both during the relationship and since separation. Mr. Jackson does not report any debt at the present time.
[31] As previously mentioned, the primary focus on this issue is with the ability of Mr. Jackson to work and produce income.
[32] Mr. Jackson sustained a back injury in 1991. Little information was presented regarding the event causing the injury or for medical treatment. He also has a partial rotator cuff in his left shoulder. No evidence was tendered as to the cause, the only reference being a diagnosis in 2013. Mr. Jackson reports using Tylenol #3 for pain relief as needed. He has declined other prescription medication and does not pursue therapy treatment for the injuries.
[33] Dr. Shariff testified. He has been Mr. Jackson’s physician since 1985. Dr. Shariff identified the injuries and spoke of Mr. Jackson’s complaint of chronic lower back pain along with pain in both shoulders. He was not qualified to provide opinion evidence as to the impact of Mr. Jackson’s injuries pertaining to employment.
[34] Prior to 1991, Mr. Jackson was employed as a tow truck driver in Toronto and Ajax. It is unknown what employment, if any, he had in the following five years. From August 1996 to July 2012, Mr. Jackson delivered pizzas for several restaurants in Oshawa, Barrie and Simcoe. The latter two municipalities relate to the period of cohabitation.
[35] Mr. Jackson reported consistently working part time, normally 20 to 30 hours weekly, and earning minimum wage. He was paid in cash. Mr. Jackson did not mention receiving gratuities. He did not explain why he stopped working six months after separation save to say his pain level had increased.
[36] Mr. Jackson referred to debt at the start of cohabitation in 2002, but he did not disclose or quantify the amount. He acknowledged Ms. Jackson’s recommendation to make an assignment in bankruptcy to eliminate the debt but such was never pursued. Ms. Jackson said Mr. Jackson refused to obtain an “official” job with a T4 to avoid garnishment by creditors. Mr. Jackson denied that allegation; however, it appears he only pursued cash paying employment and never reported such income on his tax returns. Ms. Jackson’s evidence on this point is preferred. Mr. Jackson made no attempt to seek other employment during cohabitation.
[37] At some point after separation, Mr. Jackson was receiving assistance from Ontario Works. It was discontinued for “several reasons”, he said. No disclosure was provided save for a 2014 statement of benefits for $2,431.60.
[38] At the start of the relationship in 2002, Mr. Jackson was receiving income from ODSP. He withdrew in 2003. After separation, Mr. Jackson re-applied to ODSP. His claim was denied. Mr. Jackson said ODSP officials do not “give exact reasons” for their decision. His claim may be under appeal. Mr. Jackson did not provide any ODSP documents at trial. He made no mention of applying for CPP disability.
[39] The only medical evidence presented was from the family physician. There is no dispute Mr. Jackson suffered from some sort of back injury. Such are relatively common in the general population. Most people with back problems are able to maintain employment.
[40] Mr. Jackson’s inability to work due to pain is based solely on his subjective complaint. In the circumstances, objective medical opinion evidence is required. Such was not presented.
[41] The failure to disclose documents from Ontario Works, ODSP and CPP, as well as medical records, leads to an adverse inference. Not only would the documents not assist Mr. Jackson in his claim, I conclude the benefits were denied because Mr. Jackson was able to work.
[42] Mr. Jackson’s evidence was not persuasive. There was no corroboration of his assertion he cannot work. On this evidence, I find he can seek and obtain employment but, rather, he simply has chosen not to work. Mr. Jackson made no effort during cohabitation to obtain an “official” job. He also declined to pursue re-training.
[43] Ability to work is confirmed by other evidence of Mr. Jackson. He made no complaint as to limitations in providing child care. Mr. Jackson provided significant detail regarding the work he did in maintaining and repairing the family residence and cottage. Such activities included cutting grass, painting, repairs to windows and the water pump and carrying wood.
[44] I conclude Mr. Jackson deliberately chose to be underemployed during cohabitation and similarly unemployed after separation.
[45] Income, therefore, must be imputed to Mr. Jackson. Mr. MacLeod suggests such ought be at least $17,500 so that any spousal support award would be offset by a child support obligation. Mr. Jackson has made no financial contribution for the children, placing his own needs in priority to them. I would impute income to him in the minimal amount of $25,000. Pursuing re-training, as he should have, would increase that amount.
[46] The inheritance also is relevant to the claim. Mr. Jackson chose to avoid disclosure, perhaps not expecting Ms. Jackson might have some knowledge of his late mother’s financial circumstances.
[47] In cross-examination, Mr. Jackson acknowledged that he and his sister, Deborah Wray, are the only beneficiaries. The house is listed for sale at $549,000. Mr. Jackson received an advance of $10,000. He purchased a vehicle and has some money in a bank account. None of this information was provided in Mr. Jackson’s financial statement.
[48] Ms. Wray was called as a witness by Mr. MacLeod. She is the estate trustee. Ms. Wray expects the house will sell at $600,000 and says the estate liabilities are approximately $150,000. The estate distribution, she said, will occur once the house sells. Mr. Jackson will receive his one-half.
[49] Mr. Jackson has challenged his sister regarding mother’s finances and money paid to her when she was acting as mother’s attorney. Lawyers are involved in that dispute. Nevertheless, Ms. Wray says a partial distribution of the estate can be made after the house sells.
[50] Clearly, Mr. Jackson has a significant inheritance that will soon be received.
[51] Mr. Battin submits Mr. Jackson’s financial circumstances did not change from 2002 to 2012. I agree; however, as Mr. MacLeod argues, Mr. Jackson’s predicament was self-inflicted.
[52] In all of the circumstances, I am not persuaded Mr. Jackson has established an entitlement to spousal support. On this evidence, I conclude he can be employed and support himself. I also conclude he can and should be paying child support. Ms. Jackson does not pursue that claim at present.
[53] In result, Mr. Jackson’s claim for spousal support is dismissed.
[54] Ms. Jackson did not formally seek an order for re-payment of spousal support. I was not made aware of the evidence tendered on the motion or of the reasons of the motions’ judge for the temporary order granted December 19, 2013. Given the evidence at trial, likely not available on the motion, Mr. Jackson was never entitled to spousal support. There is a strong argument favouring repayment. At the very least, it may be a factor on the property issues.
[55] In any event, the temporary order granted December 19, 2013 is terminated as of June 9, 2015 and any arrears that may be owing are expunged. A support deduction order shall issue.
(iv) Child Support
[56] In her answer, Ms. Jackson sought an order for child support. She did not pursue the claim at trial. Mr. MacLeod made reference to the reality of the situation, given Mr. Jackson’s reluctance to seek employment.
[57] Child support, however, is the right of the child. An order could be granted, including retroactivity, based on imputed income. It may be more appropriate to consider the claim within the property issues. Given Mr. Jackson’s pending inheritance, I expect he will voluntarily provide future child support; failing which a motion to change would be appropriate.
[58] At the very least, Mr. Jackson shall immediately inform Ms. Jackson on obtaining employment, including a cash paying job, and shall provide income and other disclosure annually as required by the Child Support Guidelines. I so order.
(v) Property
[59] There are two issues pertaining to the property claims:
(a) calculation of net family properties; and
(b) whether there ought be an equalization or unequal division;
(i) Calculation of Net Family Properties
[60] Most of the asset and debt values are agreed to by the parties. I will only address the items in dispute.
(a) Household Contents
[61] Both parties brought furniture and other items into the relationship and, similarly, left with such assets. Ms. Jackson’s asset value on both occasions for this category would be higher than that of Mr. Jackson.
[62] There is a small, virtually de minimus, dispute. Mr. Jackson says Ms. Jackson’s household content value increased during cohabitation, particularly regarding items acquired in that period. Some furniture is for the children and should not be included.
[63] Regardless, no evidence was presented as to values or even inventory. A determination, therefore, is impossible. I am not prepared to grant an award based on speculation or subjective value assessment. Accordingly, the value of assets for both parties shall be the same on the date of marriage and valuation date.
(b) Former Family Residence
[64] At the commencement of cohabitation, the parties resided in a residence in Barrie, owned by Ms. Jackson. In June 2006, six months after the date of marriage, the residence was sold. The family moved to Simcoe. Another residence was then acquired by Ms. Jackson.
[65] The dispute is with the value of the Barrie residence on the date of marriage. The property sold for $166,000, the value used by Ms. Jackson. On behalf of Mr. Jackson, Mr. Battin says the sale expense, real estate commission and legal fees, ought be deducted. Such were estimated to be $10,000, but without knowing the actual expense, the value advanced was $160,000.
[66] There was no evidence as to the intention of the parties on the date of marriage and, hence, I am not persuaded the sale expense ought be deducted. Value was established by the subsequent sale. Accordingly, I find that value to be $166,000.
(c) Cottage
[67] Ms. Jackson owns a cottage property at Long Point, inheriting same following the death of her father in 1995.
[68] The dispute is with the value on the date of marriage and on the valuation date.
[69] There were four professional appraisals of the property. Only two reports were addressed in detail at trial.
[70] Mr. Jackson obtained two appraisal reports. He chose not to disclose one of the reports, contrary to the Family Law Rules. This leads to an adverse inference the undisclosed report would not assist in advancing his position. It also unnecessarily complicates the analysis of the evidence tendered.
[71] Ms. Jackson obtained one appraisal report. In April 2014, she applied to the Royal Bank to refinance the existing mortgage. ABW Appraisal Service provided the bank with a report indicating the property value to be $290,000. Ms. Jackson requested a copy of the report. The bank declined to do so, correspondence dated June 3, 2014 stating it was contrary to their policy.
[72] A third party records motion would have successfully compelled the Royal Bank to provide the report. Such a motion was not pursued. In result, the value referred to cannot be relied on in determining this issue.
[73] The two authors of the appraisal reports presented in evidence testified. Brenda Cooper was called as a witness on behalf of Mr. Jackson, Milan Lemaich for Ms. Jackson. Both were qualified to provide opinion evidence on the basis of their education, training and experience.
[74] Ms. Cooper reported the cottage property value to be $390,000 on the date of marriage and $546,000 on the valuation date. Mr. Lemaich indicated the value to be $325,000 and $350,000 on the respective dates.
[75] While the evidence of Ms. Cooper and Mr. Lemaich was helpful, the practical difficulty in considering their opinions is the lack of a detailed analysis of their appraisal process. Experts owe a duty to explain their investigation and analysis, not just provide a conclusion. Compounding the dilemma was that Ms. Cooper, despite testifying in other cases, neglected to bring her working notes to court and thus was unable to respond to many questions in cross-examination.
[76] The primary method in determining property value is to consider its features and conditions and relate such to comparable sales. Long Point is a unique yet small geographic area with at least two different development zones, namely Woodstock Avenue and Beach Avenue. The latter is a more upscale area with larger lots, particularly on the waterfront. Comparison of the subject property to those on Beach Avenue requires considerable adjustments and, in my view, presents a difficult and inappropriate comparison.
[77] Few property sales were identified in the relevant time periods. In relying on such sales, the appraiser must conduct an inspection to form an opinion. A drive by viewing or telephone inquiry is not sufficient. Such may be appropriate for mortgage purposes but it does not meet the standard required for opinion evidence in court. At best, both appraisers only provided an estimate, not an opinion. The evidence was less than satisfactory.
[78] Only one realistic comparable sale was identified by both Ms. Cooper and Mr. Lemaich with respect to the value at the date of marriage, namely 129 Woodstock Avenue. This property sold on the multiple listing market in August of 2004 for $350,000. The cottage size is said to be similar but the lot is much longer.
[79] On the limited information provided by the appraisers it appears the subject property would have had a lesser value than the comparable property. Hence, I conclude Mr. Lemaich’s valuation at $325,000 in 2005 is likely more accurate. It may even be at the higher range.
[80] The valuation date evidence is more difficult to analyze. There were several multiple listing sales on Woodstock Avenue. Yet, Ms. Cooper relied only on private sales, including several on Beach Avenue. She did not provide a satisfactory answer as to why private sales were considered. Without her notes, Ms. Cooper was unable to say multiple listing sales were considered.
[81] The property known as 39 Woodstock Avenue sold in August 2011 for $375,000. On the evidence presented, I conclude it was the best comparable. Mr. Lemaich reported this property to be somewhat better and, therefore, considers or estimates the value of the subject property in 2012 to have been $350,000.
[82] Ms. Cooper acknowledged 39 Woodstock Avenue to be a good comparable but declined to re-consider her opinion of value at $560,000. When confronted with such evidence, the expert must re-assess the opinion previously advanced. Simply responding to the challenge by saying “I wouldn’t hang my hat on $375” does not meet the standard required for opinion evidence.
[83] Mr. Lemaich also referred to the sale of 37 Woodstock Avenue in July 2013 for $395,000. This sale was outside the time frame but is indicative of the direction property values were taking.
[84] I am not persuaded with the accuracy of the estimate of value provided by either appraiser. On the evidence presented, I conclude the cottage property had a value of $375,000.
(d) Calculations
[85] Having regard to the aforementioned findings and the remaining agreed upon values, the following is a calculation of the net family properties:
Applicant Respondent
- Assets Owned on Valuation Date
Matrimonial home – Simcoe $200,000.00
Cottage – Long Point $375,000.00
Household items $ 3,000.00 $ 10,000.00
Jewellery $ 1,000.00
Vehicles $ 8,900.00
Bank account $ 451.25 $ 521.25
RRSP $ 39,571.39
TOTAL: $ 3,451.25 $634,992.64
- Debt and Liabilities on Valuation Date
Mortgage – Simcoe $138,578.04
Mortgage – Long Point $ 68,742.90
Line of credit – CIBC $ 4,605.48
Credit cards - Capital One $ 4,755.48
MBNA $ 1,660.21
CIBC $ 20,716.14
TD $ 5,133.02
CRA – 2011 income tax $ 4,853.73
RRSP – notional tax $ 7,914.28
TOTAL: $ 0.00 $256,959.28
- Assets Owned on Date of Marriage
Family residence – Barrie $166,000.00
Cottage – Long Point $325,000.00
Household items $ 3,000.00 $ 10,000.00
Vehicles $ 20,000.00
RRSP and savings $ 47,486.88
Jewellery $ 1,000.00
TOTAL: $ 3,000.00 $569,486.88
- Debt and Liabilities on Date of Marriage
Mortgage – Barrie $ 91,630.06
Mortgage – Long Point $ 80,858.94
Line of credit – CIBC $ 8,368.82
Credit cards - Capital One $ 4,726.08
Citibank $ 16,130.38
TD $ 5,596.45
CIBC $ 10,570.25
Vehicle Loans - Ford Escort $ 5,876.45
- Ford Windstar $ 16,466.24
RRSP – notional tax $ 9,497.38
TOTAL: $ 0.00 $249,721.05
- Net Value of Property on Date of
Marriage $ 3,000.00 $319,756.83
Net Family Property $ 451.25 $ 58,267.53
Equalization – Respondent pays Applicant $ 28,908.14
(ii) Unequal Division
[86] Equalization of net family properties is the presumptive rule under section 5(1), Family Law Act. That would require Ms. Jackson to pay Mr. Jackson $28,908.14. It is of some interest that the increase in Ms. Jackson’s net value is the result in the inflationary increase in the inherited cottage property.
[87] Ms. Jackson seeks an order for an unequal division pursuant to section 5(6). It provides
VARIATION OF SHARE – The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,
(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;
(b) the fact that debts or other liabilities claimed in reduction of spouses’ net family property were incurred recklessly or in bad faith;
(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;
(d) a spouse’s intentional or reckless depletion of his or her net family property;
(e) the fact that the amount a spouse would otherwise receive under section (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;
(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;
(g) a written agreement between the spouses that is not a domestic contract; or
(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.
[88] Section 5(7) is also relevant to the discussion. It provides:
PURPOSE – The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).
[89] Section 5(6) engages equitable considerations in situations where it is determined an equalization would be “unconscionable”. This threshold is said to be exceptionally high, one that is met only when the circumstances “shock the conscience of the court”. While such may pertain to fault based conduct, the target of the statutory provision is with the “unconscionable result” of equalization. If the threshold is achieved, the court should determine what is “just, fair and reasonable”. See: Sera v. Sera, 2009 ONCA 105.
[90] Counsel referred to several trial decisions involving the application of the principles enunciated by the Court of Appeal in Sera. While helpful, the analysis focuses on these principles as they pertain to the facts. Each case is different.
[91] Mr. MacLeod relies on section 5(6) (f) and (h). There is merit in the position articulated for the following reasons.
[92] Mr. Jackson made no financial contribution to the acquisition, maintenance or improvement of the properties. He provided some manual labour in upkeep. Mr. Jackson did not financially assist in the support of the family. He was not productive during the marriage, refusing to pursue meaningful employment or job re-training. He leaves the marriage with no debt, the likelihood of employment or other source of income and a pending inheritance.
[93] Ms. Jackson, on the other hand, contributed all of the financial resources to obtain and maintain the properties and for the family expenses. The cottage was an inheritance from her late father.
[94] Ms. Jackson had considerable debt, both in 2002 and in 2012. Yet her income was needed to support the children of this marriage and the children of her prior marriage. The needs of the children are a priority. In meeting those needs, and as a result of Mr. Jackson’s lack of productivity, Ms. Jackson has been unable to improve her financial circumstances. But for the increase in the cottage value, her net worth declined during the marriage.
[95] Mr. Battin correctly points out that nothing really changed between 2002 and 2012. He says Ms. Jackson knew of Mr. Jackson’s financial circumstances at the commencement of cohabitation and, hence, it would not be unfair to equalize the increase in the cottage value.
[96] With respect, that argument would ignore section 5(7) and the “joint responsibilities of the spouses” and the “equal contribution, whether financial or otherwise, by the spouses”. Mr. Jackson chose to be underemployed and unemployed. He relied on cash paying jobs to avoid creditors. Mr. Jackson could have been productive and should have contributed to the needs of the family. Instead, he was content to allow Ms. Jackson to carry the burden alone.
[97] Mr. Jackson’s refusal to provide disclosure also warrants consideration. He comes to court seeking relief. But only on his terms. Mr. Jackson attempted to prevent relevant evidence being considered. His conduct in this regard cannot be condoned.
[98] Mr. Jackson has received spousal support pursuant to a temporary order. Such an award would not have been granted on a full evidentiary record. He should have obtained employment and paid child support since separation. He refused. Given this pattern, it is unlikely Mr. Jackson will contribute to the support of the children in the future.
[99] In the circumstances, I conclude the threshold in section 5(6) has been met. Equalization would be an unconscionable result. Indeed, any payment to Mr. Jackson would shock the conscience of the court. Equity must favour Ms. Jackson and the children. A payment to Mr. Jackson would cause significant prejudice to the financial circumstances, now and in the future, of Brandon and Nicole.
[100] Accordingly, an unequal division is appropriate and I order there be no payment to Mr. Jackson.
Summary
[101] A final order is granted on the terms herein. As well, the divorce is severed and may proceed by uncontested affidavit evidence in the usual manner. If the parties are unable to resolve the issue of costs, counsel shall deliver brief written submissions to my chambers in Cayuga within 30 days of the release of these reasons.
D.J. Gordon J.
Released: July 9, 2015
COURT FILE NO.: 87/12
DATE: 2015-07-09
BETWEEN:
Gordon Lloyd Jackson
Applicant
– and –
Karen Joy Jackson
Respondents
REASONS FOR DECISION
D.J. Gordon J.
Released: July 9, 2015