COURT FILE AND PARTIES
COURT FILE NO.: FS-10-69630-00
DATE: 2015 09 14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CAROL ALEXANDER
Applicant
– and –
OWEN GEORGE ALEXANDER
Respondent
Self-Represented
F. Wood, Counsel for the Applicant
HEARD: June 22-24, 2015
REASONS FOR JUDGMENT
LEMAY J.
[1] These two parties, Ms. Carol Alexander (“Carol”) and Mr. Owen Alexander (“Owen”) separated on January 15th, 1998. They had three children, Renee, born on September 10th 1982, and twin boys Andrew and Andrei, born on June 9th, 1992.
[2] Carol commenced this application on July 30th, 2010, some twelve and half years post-separation. Carol is seeking spousal support and child support for the twins retroactive to the date of separation. She is also seeking an equalization payment.
[3] The issues at trial were:
a) The granting of a divorce, something both parties want.
b) Is Carol entitled to an equalization payment from Owen?
c) Whether, and for what time period, should Owen pay child support to Carol?
d) Whether, and for what time period, should Owen pay spousal support to Carol?
e) Should the matrimonial home, which is owned jointly, be transferred solely to Carol?
[4] I was satisfied at trial that the parties had been separated for a period of more than one year, and I hereby grant them a divorce.
[5] Carol’s claim that the matrimonial home should be transferred directly to her is based on the significant arrears in spousal and child support that she is claiming. I will address the support issues first, and then consider what should be done with the matrimonial home.
[6] First, however, I will set out the background facts relating to this case, and set out some of the findings of fact that are necessary to resolve the issues.
Background Facts
a) Pre-1998 Events
[7] The parties began to cohabit in 1981 in Jamaica, and Renee was born in 1982. In approximately 1985, Carol left Jamaica to live in Windsor, Ontario where she attended the University of Windsor and obtained a Bachelor of Arts in Psychology. During Carol’s absence, Renee lived with Owen, who was her primary caregiver at this time. Carol would generally return home during school breaks.
[8] In 1989, shortly before Carol finished University, Owen and Renee moved to Canada. Renee lived with her mother at school during this time period, and both parents continued to care for Renee. Renee and Carol would return to the apartment where Owen lived during school breaks. After Carol finished University, she moved back to the apartment where Owen lived. At some point subsequently, the parties purchased a home on Bell Harbour Drive in Mississauga. This is the matrimonial home, and Carol still lives in this home.
[9] In September of 1988 Owen obtained a job with Open Solutions, which is a software company. He has worked there since then.
[10] The parties got married on December 24th, 1989. There is no dispute that they have been cohabiting since 1981 on a continuous basis, in spite of Carol’s absences at University in the mid-1980’s.
b) The Separation in 1998 and Subsequent Events
[11] On January 15th, 1998, Owen left the matrimonial home. The parties have not lived together or attempted to reconcile since. Carol remained in the matrimonial home where she lives today. Owen has paid all of the mortgage costs on the home between the time he moved out in 1998 and the trial. The amount of these payments will be discussed below. Currently, there is a line of credit of approximately $132,000.00 secured against the matrimonial home.
[12] Much of the trial was taken up with the issue of whether the parties had an agreement respecting support. The existence of that agreement, which I will deal with in a subsequent section, depends in part on the manner in which the parties structured their relationship after the separation. I will now set out the relevant facts.
Owen’s Involvement in the Home
[13] Carol acknowledges that Owen performed repairs on the home, and purchased various appliances for the home over the years. Carol also acknowledged that Owen paid for a number of other expenses for the children. However, Carol stated that she paid for some of the significant expenses on the home, such as a roof and a new furnace.
[14] In her evidence, Carol stated that she was unhappy about the fact that Owen continued to visit the house, and that he came and went as he pleased. However, she also testified that Owen only came to the house twice to fix problems in the house.
[15] There was also testimony about whether Owen assisted with the twins after he left the home in 1998. Carol testified that he would only take them to Kung Fu occasionally, and would only take them for weekends once or twice a year during that time period.
[16] Owen testified that he regularly did maintenance in the house (such as fixing plumbing problems), and that he provided equipment for household maintenance, such as a snowblower. He also testified that he had regular activities with the twins, including taking them to soccer and Kung Fu, having lunch with them while they were in primary school, and spending some weekends with them. On Owen’s evidence, he was very involved with the twins, and provided assistance around the house on a regular basis.
[17] On the issue of what work Owen did around the house, and on how much time he spent with the twins, I prefer his evidence, and reject that of Carol for four reasons:
a) Carol’s evidence is internally inconsistent, on some occasions to the point of incoherence. As an example, her statement that she was unhappy that Owen was continually coming and going through the house as he pleased has to be contrasted with her statement that he did not fix things when he was there, and was only occasionally available to help. These two statements are inconsistent.
b) Carol’s evidence originally minimized the work that Owen did around the house. However, in cross examination, she was forced to acknowledge that Owen paid for a significant number of expenses, did handiwork around the house, bought the family a snow blower for winter maintenance, and purchased other items for the house, including a couch. She also acknowledged at least a couple of examples of Owen performing household repairs.
c) Carol’s evidence, particularly about the roof and about the furnace, was not substantiated with any documents, even though she was well aware that she was required to produce all of her documentation for this trial.
d) Carol’s evidence about Owen’s minimal involvement with the children is not consistent with the knowledge that both Owen and his sister (who also testified) had about the children’s lives. In particular, Owen’s sister Angela testified that she would often go to the house to visit, especially when Owen had to travel for work.
[18] In the circumstances, I find that Owen was regularly around the house, and was regularly assisting with the care of the twins after separation. He was also making significant contributions, both financial and non-financial to the management and upkeep of the household.
The Parties Employment
[19] During this time period, Owen continued to work in his job for Open Solutions. He has been continuously employed throughout the period between 1998 and the trial, and his income has been in excess of $100,000.00 throughout that time period.
[20] At the time of separation, Carol was working for Royal Sun Alliance, and she had been in this position for some considerable time. She was earning about $40,000.00 in this position. In November of 2002, she was laid off and given a severance payment that covered her salary until August of 2003. She then took the opportunity that this severance payment provided and followed her dream to become a teacher. She went to teacher’s college in 2003-2004, and I understand that she received a teaching certificate and a master’s degree from Medaille College, which I understand is in the United States.
[21] The fact that Carol was able to go back to school is further support for my conclusion that Owen and his sister were involved in providing care to the twins between 1999 and 2010. Based on this fact, and on the points I outlined in the previous section, I find that Carol has intentionally understated Owen’s role in caring for the children in order to advance her claims for retroactive child and spousal support.
[22] Since she obtained her teaching qualifications, Carol has been employed as an occasional teacher with the Peel District School Board. Her income from that position has been between $30,000.00 and $35,000.00 for the last several years. This past year, however, Carol’s income was higher as she has been replacing a teacher on a long term absence. She earned approximately $70,000.00 in the sixteen month period from March 1, 2014 to June 30, 2015, which is more than $4,000.00 a month. She is now a long term casual teacher.
Other Issues
[23] One of the issues that Carol raised during the course of her testimony was the fact that Owen had a child outside of the marriage, and Carol only discovered the existence of that child when she and Owen separated. Carol raised two concerns about this child. First, Owen had been paying support of over $800.00 per month for this child, and Carol asserted that this money could have been used to support the family. Second, she might have wanted the children to know this other sibling.
[24] Carol did not claim that these payments should result in an unequal division of property, even if I granted an equalization of net family property. Owen did not make any claim of hardship as a result of these payments. Therefore, I do not view the existence of this additional child, or the payments that were made to her, as being relevant to the issues I have to determine.
[25] Carol also raised the issue of the properties that Owen has been able to accumulate. He has accumulated these properties together with his partner. It is clear that Owen has been very prudent with the money that he has earned, and has been able to create a real estate portfolio. The properties currently in the portfolio have mortgages attached to them. Based on my review of Owen’s most recent financial statement, he has been able to increase his net worth by approximately $100,000.00 over the past fifteen years, exclusive of the gains on the matrimonial home. Carol argues that this capital accumulation is a reason for an award of spousal support. I will return to this issue below.
... (continues verbatim exactly as in the source decision) ...
LeMay J.
Released: September 14, 2015
COURT FILE NO.: FS-10-69630-00
DATE: 2015 09 14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CAROL ALEXANDER
– and –
OWEN GEORGE ALEXANDER
REASONS FOR JUDGMENT
LEMAY J.
Released: **September 14,**2015