SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 49401-14
DATE: 2015Sept18

RE: Jane Marie Koehler, Applicant

AND:

Glenn Edward Koehler, Respondent

BEFORE: The Honourable Mr. R.J. Harper

COUNSEL: Glenda McLeod, Counsel for the Applicant

Richard Noll, Counsel for the Respondent

HEARD: August 13, 2015

ENDORSEMENT

[1] Issues

• Temporary Spousal Support, ongoing and retroactive;

• Temporary child support, ongoing and retroactive;

• Whether to order the sale of the matrimonial home located at 66 Greengable Way, Kitchener, Ontario;

• Whether the Respondent is entitled to exclusive possession of the matrimonial home on a temporary and or further time period within a final order;

• Whether the father’s claim for exclusive possession should prevent the sale of the matrimonial home at this stage of the proceedings; and

• Should the Applicant be restrained from selling the cottage at this interim stage.

Background

[2] The Applicant, Jane Koehler (Jane) and the Respondent Glenn Koehler (Glenn) were married on May 28, 1998. Jane claims that they separated on June 6, 2013 and Glenn claims they separated on April 30, 2012. I accept the evidence of Jane that, although the parties had a tumultuous relationship from at least June of 2012, they attempted counseling until the end of May 2013. The fact that they were attending counselling for that period allows me to conclude that until the first of June, there was a reasonable prospect of reconciliation. The evidence of the Respondent that he suspected that Jane was having an affair only went to the tumult that the parties underwent during that period. Jane denied this in her affidavits. I find that there was a reasonable chance of reconciliation and that the parties separated on June 1, 2013.

[3] Jane and Glenn had three children of their marriage: Emily, who is presently 22 years old and attending the University of Waterloo; Nicole, who is presently 20 years old and is attending the University of Waterloo and John, who is in grade 10. The parties agree that they have shared custody of the child John. At this point in time, the older two children reside primarily with Glenn.

[4] During the marriage, Jane only worked part time as a nurse. She made the following income from 2011:

2011 - $22,329;

2012 - $26,185;

2013 - $34,493 and

2014 - $48,552 ($57,286 including using some of her capital)

[5] Jane was under contract with Wilfred Laurier for a one your period for 2014-2015. This expired July 31, 2015. She is now returning to her part time position.

[6] Glenn works in the high tech industry. He received a substantial severance package from his previous employment in 2012. He was ordered to make disclosure of this severance package. At this time, that issue is also not before me. Glenn is presently employed and earns approximately $225,000 per annum.

The Present Parenting Residency Scheme

[7] Jane attached a letter signed by the two eldest daughters that stated that they would like to spend more time with their mother, once she has more suitable accommodation. She presently is living in cooperative housing that is not suitable for having three children for extended stays.

[8] The oldest children, therefore, are living primarily with their father. The youngest child shares time with the mother and the father on an equal basis.

CHILD SUPPORT CALCULATIONS

[9] The interim child support is based on income of the father set at $225,000 per annum and income of the mother set at $25,000 per annum.

[10] Spousal Support based on the “with children” formula.

SUPPORT ISSUES

[11] At the outset of the motion, I advised counsel that I was concerned with the state of the evidence, at this point in time, relative to a number of issues.

a. Retro-activity of spousal and child support.

There is a conflict in the evidence relative to the amounts of money that the Respondent paid on a gratuitous basis thus far. In addition, the residency scheme of the children and any set offs due to the scheme from time to time need to be clarified.

b. Support relative to the two older children, given the fact that they are both at university and primarily living with the Respondent and both over 18. The lack of evidence relative to the children’s part time income, their expenses, any loans they may have, and the distribution of funds relative to the children’s RESPs.

c. Both counsel agree that questioning must go ahead in order to get a more accurate picture of the above issues.

[12] As a result I will only deal with retroactivity from the date at which this motion. Any order will be without prejudice to the rights of either party to seek a start date for support different from this temporary order.

The Law and Analysis

[13] The starting point is s. 15.2 of the Divorce Act. It reads as follows:

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

(4) 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.

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

(6) 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.

[14] Justice Heeney in Necomb stated:

“Need” is a relative concept, and is assessed based upon the standard of living that the parties were accustomed to during the marriage: see Gardner v. Gardner, 2008 ABQB 527, [2008] A.J. No. 954 (Q.B.) at para. 30 and authorities referred to therein. An interim spousal support award is not intended merely to “stop the bleeding” pending trial, as Ms. Oliver, for the Husband, submitted. In Haney v. Haney, [2005] O.J. No. 2329 (S.C.J.), Smith J. put it this way, at paras. 50 – 51:

The purpose of an interim support award is to allow a dependant to maintain a reasonable lifestyle pending trial. Recently, however, there has been a movement towards a more generous level of interim support. A dependant is no longer expected to live modestly until trial. (See: Lebovic v. Lebovic 2001 28183 (ON SC), (2001), 15 R.F.L. (5th) 115.)

To allow one spouse to live a lifestyle considerably better than the other for several months pending trial makes little sense particularly in cases on (sic) long term marriages. To properly address the objectives of the Divorce Act set out above, albeit on an interim basis, there must be a reasonable or fair balance achieved.

The Application of the Law to this Evidence in this Case

[15] In summary, I make the following findings:

the Respondent’s income is $225,000 per annum;

the Applicant’s income is $25,000 per annum;

the child John shares residency equally between the parents; and

the children, Emily and Nicole, at this time, primarily reside with the Respondent.

[16] The issue of extraordinary expenses and case amount of support for the two older children is adjourned and may be brought back to the court on proper evidence or if any of the children’s residence changes from what is set out above.

[17] Given my findings the SAGG with child support formula provides the following:

low spousal support in the amount of $3,464;

mid-range support of $3,967; and

high range of $4,467.

[18] Child support is in the amount of $1,307 for all of the above scenarios.

[19] In my view the Respondent should pay child support in the amount of $1,307 per month commencing from the commencement of this Application, November 1, 2014.

[20] The Respondent shall pay spousal support from the same date as above in the sum of $3,464 per month.

SALE OF THE MATRIMONIAL HOME

[21] The father and the two older children have lived in the matrimonial home since separation. Jane left the matrimonial home and has been residing in cooperative housing that is far below the standard that she is used to. She has brought a motion for the sale of the matrimonial home which is held in the joint names of Glenn and Jane.

[22] Jane argues that she is prima facie entitled to a sale of the home.

[23] Glenn brought a claim and motion for exclusive possession of the matrimonial home and he asserts that if a sale is granted that would eliminate his valid claim for exclusive possession.

THE LAW AND ANALYSIS

Exclusive Possession

[24] Section 24(1) of the Family Law Act, R.S.O. 1990, c. F.3 provides that regardless of ownership of a matrimonial home and despite section 19 (which deals with a spouse's right of possession), a court may, by order, direct that one spouse be given exclusive possession of the matrimonial home and direct that the contents of the matrimonial home, or any part of them, remain in the home for the use of the spouse given possession. Section 24(2) provides that these orders may be made on a temporary or interim basis.

Section 24(3) sets out what the court must consider for an order for exclusive possession:

Order for exclusive possession: criteria

In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) 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. R.S.O. 1990, c. F.3, s. 24 (3).

Best interests of child

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 accommodation; and

(b) the child’s views and preferences, if they can reasonably be ascertained. R.S.O. 1990, c. F.3, s. 24 (4).

Sale of the Matrimonial Home

Sections 2 and 3 of the Partition Act, R.S.O. c. P.4 provide as follows:

Who may be compelled to make partition or sale

2. All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only. R.S.O. 1990, c. P.4, s. 2.

Who may bring action or make application for partition

3. (1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested. R.S.O. 1990, c. P.4, s. 3 (1).

[25] In Batler v. Batler (1988), 1988 4726 (ON SC), 18 R.F.L. (3d) 211 (Ont. H.C.), Granger J. held that a joint tenant has a prima facie right to sale prior to trial. This right exists unless the other joint tenant has made claims that would be prejudiced if the property were sold.

Granger J. held that a joint tenant was entitled to apply for partition and sale under the Partition Act, and Rule 20 of the Rules of Civil Procedure (which at that time was the rule that permitted summary judgment on all or part of a family claim). Granger J. stated that in order to successfully resist an application for sale, the responding party should have an order for interim exclusive possession, or be able to show that the claims he/she intends to put forward at trial will be prejudiced by an immediate sale.

[26] The Court of Appeal addressed this issue further in Silva v. Silva (1990), 1990 5400 (BC CA), 30 R.F.L. (3d) 117, 75 D.L.R. (4th), 1 O.R. (3d) 436 (C.A.); and Martin v. Martin (1990), 1990 12225 (ON SC), 31 R.F.L. (3d) 210 (Ont. Ct. Gen. Div.), aff’d at (1991), 1991 12830 (ON SCDC), 34 R.F.L. (3d) 173 (Ont. Div. Ct.), rev’d in part at (1992), 1992 7402 (ON CA), 38 R.F.L. (3d) 217 (Ont. C.A.). The Court recognized that a joint owner has a prima facie right to partition and sale; however, as stated by the Court in Silva at para. 23:

... where substantial rights in relation to jointly owned property are likely to be jeopardized by an order for partition and sale, an application under the Partition Act should be deferred until the matter is decided under the F.L.A. Putting it more broadly, an application under s. 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the F.L.A.

[27] In Martin, the Ontario Court of Appeal confirmed that the sale of the matrimonial home prior to trial should not be made as a matter of course at para. 26:

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. See Binkley v. Binkley (1988), 1988 8717 (ON CA), 14 R.F.L. (3d) 336 (Ont. C.A.). In addition, spousal rights of possession (s. 19) and any order for interim exclusive possession should be taken into account.

[28] In the case before me, Glenn did not provide any evidence of the wishes of the children. He argued that it was in the best interest of the children to remain in the matrimonial home simply due to the fact that they have always lived there. The children are now 23 and 20. They both attend University. There is no evidence that they have special needs or evidence that this home is so tied into their activities and friends that it would be in their best interests to remain in that home. In considering the best interests of the children, I must, not may consider their views and preferences where they can be reasonably ascertained. That evidence was not put before me.

[29] In my view, under the circumstances of this case, Glenn has no reasonable chance of obtaining an order for exclusive possession of the matrimonial home at trial. I dismiss his motion for an order for interim exclusive possession of the home. Jane should be allowed to get her equity out of the home as soon as possible. She is living in accommodations that are far below the standard that she is used to and far below the accommodations of Glenn.

[30] There shall be an order for the sale of the matrimonial home located at 66 Greengable Way, Kitchener, Ontario. Glenn expressed his desire to buy Jane out of her interest in the home.

He has not made any offers to do so. I order the listing of the sale of the property to be delayed for a period of 30 days in order to allow Glenn to purchase Jane’s interest. If no agreement is reached in that time, the home shall be immediately listed for sale.

Released: September 18, 2015 _________________________

Harper, J.