Cullen v. Veregin, 2015 ONSC 7463

CITATION: Cullen v. Veregin, 2015 ONSC 7463

KINGSTON COURT FILE NO.: 405/12

DATE: 2015/11/30

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Kyril Joseph Graydon Cullen

Self-represented

Applicant

• and -

Katherine Diane Veregin

Self-represented

Respondent

HEARD AT KINGSTON: November 23, 24 & 25, 2015

REASONS FOR JUDGMENT

MADAM JUSTICE B. R. WARKENTIN

1The parties to this proceeding began cohabitating in approximately March 2004 after the birth of their daughter in January 2004. In March 2005 they had another child (a son). The parties separated with no prospect of reconciliation on May 4, 2012.

2Between March 2004 and May 4, 2012, the parties separated at least three times. The longest continuous time they cohabited was their final period of cohabitation which lasted approximately 3.5 years. After one of their separations in 2007 they were parties to a Family Court proceeding in Barrie where at least one temporary order was made regarding the primary care of and access to the children.

3This application was commenced by Mr. Cullen in August 2012. The parties have been before the court on numerous occasions in this proceeding prior to this trial. They were both represented by counsel until recently and the Office of the Children’s Lawyer was involved in representing the children and conducting the requisite inquiries.

4On September 15, 2015 on consent, the parties entered into a final order before Justice C. Robertson regarding custody, access and child support. That Final Order is not altered by the issues before me and therefore remains in full force and effect.

5The children are in the sole custody of Ms. Veregin with limited access to Mr. Cullen. Mr. Cullen pays child support on behalf of the children to Ms. Veregin. Mr. Cullen is currently employed in the Canadian Armed Forces earning between $70,000.00 and $80,000.00 per annum and Ms. Veregin is presently unemployed.

6The parties’ children are now 11 and 10 years old.

7The trial before me dealt with issues regarding spousal support, the proceeds of sale of the parties’ jointly owned family home, various furnishings that were purchased during their cohabitation and certain other jointly held assets.

8At the commencement of trial, the Respondent Ms. Veregin consented to an order restraining her from contacting Mr. Cullen’s employers directly or indirectly. Mr. Cullen also seeks to have that order extended to his wife, Cynthia Cullen’s employment.

Relationship of the Parties

9The parties have had a tumultuous relationship throughout the time that they have known each other, pre-dating the birth of their daughter in 2004 and their cohabitation. The police and the Children’s Aid Society were involved regarding their disputes on a number of occasions and on more than one occasion, Mr. Cullen was charged with assault. Most charges were either withdrawn or not proven beyond a reasonable doubt; however, Mr. Cullen was convicted of an assault on the parties’ son that occurred prior to their separation.

10Mr. Cullen has since married and his new partner is also employed.

11The parties’ jointly owned home was sold on July 10, 2015. From the time of their separation in May 2012 until it was sold Ms. Veregin remained in the jointly owned home with the children. Mr. Cullen paid 100% of the household expenses, being the mortgage, insurance, taxes and utilities until January 2013. During this period, Mr. Cullen paid no child or spousal support.

12From February 1, 2013 until it was sold, the parties each paid 50% of the household expenses and Mr. Cullen paid child support to Ms. Veregin in accordance with the child support guidelines including s. 7 expenses (Temporary Order of Madam Justice Trousdale, dated January 2, 2013).

13On March 28, 2014 and March 4, 2015, the parties appeared in court to obtain the Court’s assistance in the manner in which the sale of their jointly owned home would proceed, including the completion of necessary repairs and division of proceeds of sale.

14The effect of the Court Orders in March 2014 and 2015 was that Mr. Cullen was provided with the authority to take the necessary steps to hire the contractors for repairs to the home prior to sale, to pay for those repairs up front, to list the home and to accept or reject any offers.

15Ms. Veregin was required to cooperate with the contractors in completing the necessary repairs, to keep the home ready and available for showing by the listing agent and to vacate the home upon its’ sale and to sign all necessary documentation to complete the sale.

16Part of Mr. Cullen’s motion in March 2014 was to have the chattels he claimed to have purchased, being the furnishings in the home, returned to him on the sale of the home. This motion was dismissed with the right provided to Mr. Cullen to renew that relief at trial. This is set out at paragraph 19 of the Temporary Order of March 28, 2014. Mr. Cullen did renew this claim at trial.

17Another part of the March 2014 Order required Mr. Cullen to pay temporary spousal support to Ms. Veregin in the amount of $775.00 per month, provided the home had sold prior to December 31, 2014. If the home had not yet sold by December 31, 2014, Ms. Veregin was required to renew her application for spousal support.

18The repairs to the home were not completed until February 2015 and the home was finally listed for sale in April or May 2015. Mr. Cullen accepted an offer on the home in the amount of $227,000.00 with a closing date of June 30, 2015. The closing was delayed until July 10, 2015 because of two liens on the property, one from Legal Aid Ontario regarding Ms. Veregin’s Legal Aid Certificate and the second from one of Ms. Veregin’s former lawyers who had obtained a judgment against Ms. Veregin for unpaid legal fees.

19Without the two liens, the net equity in the home after paying the outstanding mortgage, real estate commission and the usual closing costs was approximately $12,000.00. The two liens were lifted to permit the sale to close after negotiations between Mr. Cullen’s then counsel and the lien holders. The amounts paid to lift the liens were $4,500.00 to Legal Aid lien and $3,500.00 to one of Ms. Veregin’s former lawyers for unpaid legal fees.

20The remaining equity in the home of approximately $4,000.00 was paid to Mr. Cullen’s lawyer for the negotiation of the lifting of these liens and to the additional closing costs incurred as a result of these liens. As a result, there was no equity in the home to cover the renovation/repair costs of approximately $6,500.00 incurred by Mr. Cullen in February 2015.

Mr. Cullen’s Claims

21Mr. Cullen is seeking the following:

a) A credit of $6,000 for overpayment of child support. It was Mr. Cullen’s position that by paying 100% of the household expenses on the jointly owned home between the parties’ separation in May 2012 through January 2013, he had overpaid child support by $6,000.00 when comparing the amount he should have paid for child support according to the Child Support Guidelines.

b) A credit of $19,000.00 as pre-paid spousal support. Mr. Cullen argued that this total was arrived at by calculating the 50% of the household expenses he paid on the jointly owned home from February 2013 to the date of sale in early July 2015. It was Mr. Cullen’s position that he should receive a credit for this amount toward any future spousal support he might be required to pay.

c) Reimbursement from Ms. Veregin for 50% of the costs of renovations/repairs to the jointly held home that he prepaid. He is claiming that the amount still owing to him by Ms. Veregin is $2,100.00. Mr. Cullen has been deducting $287.50 per month from Ms. Veregin’s child support for her contribution to these expenses for the past four months, based upon his interpretation of the Temporary Order of March 28, 2014.

d) A declaration that Mr. Cullen is the owner of the chattels that were purchased during the parties’ cohabitation. It is Mr. Cullen’s position that because these items were paid for by him, they belong to him. He seeks payment by Ms. Veregin in the amount of $6,000.00 that he calculates is the current value of household furnishings he purchased when the parties were cohabiting and retained by Ms. Veregin. Mr. Cullen does not want the items returned to him.

e) Payment of $6,000.00 by Ms. Veregin to him for one half of what would have been the equity in the jointly owned home but for the liens registered against Ms. Veregin for legal fees and the expense incurred to lift those liens.

f) The balance of money remaining in the parties’ joint bank account, in the approximate amount of $425.00 shall be paid to him and the account closed.

g) There is also the sum of $1,200.00 in costs that were ordered to be paid by Ms. Veregin to Mr. Cullen after one of their motions which remains outstanding.

h) Mr. Cullen also seeks the right to make submissions on costs of this proceeding.

Ms. Veregin’s Claims

22Ms. Veregin is seeking the following:

a) That the Court should dismiss all of Mr. Cullen’s claims for overpayment of child support and a credit for future spousal support.

b) No further deductions from child support by Mr. Cullen for her share of the cost of the repairs/renovations to the jointly owned home and an order that she is not obligated to contribute further to those expenses.

c) That the chattels Ms. Veregin retained after the sale of the home remain with her because they are furnishings that were purchased for the family during their cohabitation and are currently needed by her and used by the children.

d) If the Court finds that the chattels belong to Mr. Cullen, then she will return them to him rather than pay the price he is seeking.

e) Spousal support in the amount of $775.00 for a period of four years to permit her to seek further education and better employment opportunities.

f) That she not be required to reimburse Mr. Cullen for what would have been his equity in the jointly owned home because she was not provided any input into the sale of the home or the negotiations with her former counsel regarding unpaid legal fees.

g) The proceeds of the joint bank account shall be divided equally between the parties and the account closed.

Analysis and Conclusion

23I will first deal with Mr. Cullen’s claim to receive credit for payments he made to the jointly owned property after the parties’ separation until the property was sold as overpayment for child support and a credit for future spousal support.

24When the parties separated in May 2012, Mr. Cullen left the home and Ms. Veregin remained in the home with the children. Mr. Cullen was earning in the range of $70,000.00 through his employment with the Canadian military and Ms. Veregin was a stay at home mother with no income.

25Mr. Cullen had been the sole supporter of the family during their cohabitation and during the periods that they had separated during their nine year relationship.

26Shortly after their separation, Mr. Cullen was charged with and eventually convicted of assault on the parties’ son regarding an incident that pre-dated their separation. His access to the children has been limited since the parties’ separation.

27Mr. Cullen continued to pay the household expenses without paying spousal or child support after separation until February 2013 when he was ordered to pay child support and both parties were responsible for 50% of the household expenses until the property was sold.

28The home was in need of significant repair in order to make it saleable and to ensure the sale price was greater than the outstanding debt associated with the home. Prior to separation, the parties had been in the midst of interior renovation projects that included the kitchen and a bathroom. There were other repairs that were necessary to better market the home.

29The parties had been together for a period of approximately 9 years prior to their separation however, during that 9 year period they had separated at least three times, each time for a number of months to a year.

30I do not accept Mr. Cullen’s position regarding the payment of household expenses after the parties’ separation. He had an interest in ensuring the household expenses were paid in order to protect his equity in the home and to protect his own credit rating. Mr. Cullen did not want to sell the home until the repairs/renovations were completed and undertook to ensure they were.

31Mr. Cullen was the one who hired the contractor. He testified that he was unable to afford to pay the cost of the contractor until late 2014 and that it was primarily this reason that the repairs were delayed. Ms. Veregin did not want the repairs to begin before the Christmas season because of her family Christmas plans in the home. She agreed that they would begin early in 2015 and that is what occurred.

32The jointly owned home was the logical place for them to reside until it was ready for sale. Based upon the evidence before me at trial, I do not find that either party deliberately delayed the sale. However, had the repairs/renovations been completed earlier, the home could have been sold earlier and the expenses related to maintaining it would have been eliminated.

33In light of these findings, Mr. Cullen’s claims for reimbursement in the form of an over payment of child support and pre-paid spousal support in proportion to the amount he paid to maintain the home after separation are denied.

34Mr. Cullen’s claim for reimbursement for the balance of half of the cost of the renovations is granted. The parties consented to an order in March 2014 where Mr. Cullen agreed to cover the cost of the repairs up front with Ms. Veregin’s share of the repairs to be paid from her share of the proceeds of sale of the home. Because of the liens registered against the home for Ms. Veregin’s legal fees, there was no equity from which to pay her share.

35The consent order considered this possibility and the parties agreed that Mr. Cullen was entitled to deduct up to 20% of his child support payment until Ms. Veregin’s share of the renovation costs is paid. Subject to the remaining orders in these Reasons regarding the means by which the cost of her share of the renovations are recovered by Mr. Cullen, I do not intend to interfere with an order that was made by the parties, who were both represented at the time and who entered into this arrangement on consent. Mr. Cullen is therefore entitled to the sum of $2,100.00 being the balance of the money owed by Ms. Veregin for her share of the cost of the renovations to the home.

36The next claim by Mr. Cullen for a declaration that he is the owner of the chattels and that Ms. Veregin should reimburse him for these in the amount of $6,000.00 is denied. Mr. Cullen produced a list of the chattels he claims belong to him and Ms. Veregin agreed that the items on the list remain in her possession.

37Mr. Cullen argued that because he paid for these items he is the owner of them. Ms. Veregin argued that they were purchased by the family for the family and therefore they are owned by them both. She also argued that the children use these items and to return them to Mr. Cullen would deprive the children.

38Mr. Cullen does not want the items returned; instead he seeks payment of what he has determined as their current value. The evidence produced showed these items were purchased between 2007 and 2012 for a total retail price of approximately $10,000.00. There was no independent valuation of these items. The amount of $6,000.00 is Mr. Cullen’s assessment of their value.

39I do not find that these items belong to Mr. Cullen. They were purchased from Mr. Cullen’s salary during a time he was living with Ms. Veregin as a family unit. They were purchased for and used by the family, not for Mr. Cullen. Therefore these items are jointly owned.

40I also do not accept the value provided by Mr. Cullen for these chattels. The proper valuation is what these items would receive if sold at auction. Most of the items in this list of chattels consist of household furnishings such as sofas, chairs and beds, as well as household appliances. There was no evidence about their condition except that they are used by the family and that includes two young children.

41Because I find they are joint assets, that the value assigned to these items has not been supported, that they are being used by Ms. Veregin and the children and because Mr. Cullen does not want these items returned to him, I do not accept this claim by Mr. Cullen.

42With respect to the equity in the jointly owned home, I do accept that but for the liens against the property for Ms. Veregin’s legal fees, there would not have been the additional costs incurred to lift the liens and there would have been approximately $6,000.00 available to Mr. Cullen for his equity in the home.

43I agree with Mr. Cullen that he should be entitled to his share of the equity to which he would have received had it not been for the liens against the property and the excess expense required by his counsel to lift those liens in order to complete the sale of the property. Subject to the remaining orders I will make in these reasons, Mr. Cullen is entitled to the sum of $6,000.00 for one-half the equity in the jointly owned home.

44Mr. Cullen shall be entitled the entire proceeds remaining in the parties’ joint bank account at BMO, number 3977-094, Branch Transit number 24762 and this amount, being approximately $425.00 shall be a partial payment of Ms. Veregin’s share of the renovation costs, leaving a balance owing by her for those in the amount of $1,625.00.

45On or before December 24, 2015, both parties shall sign the necessary paperwork at the Bank of Montreal to close this account and transfer the balance to Mr. Cullen.

46By addressing Mr. Cullen’s claims in this fashion, I have also dealt with all of Ms. Veregin’s claims with the exception of her claim for spousal support.

47Ms. Veregin did not produce a financial statement prior to trial. Nonetheless, the fact that she remains unemployed was not seriously contested. Mr. Cullen argued that income should be imputed to Ms. Veregin at minimum wage for a person working full time. He estimated this would provide Ms. Veregin with an income of approximately $23,000.00 and that in light of the length of their cohabitation as well as the support he has provided to her to date by paying for the household expenses, that no further support is owed by him.

48The evidence at trial was that for most if not all the parties’ cohabitation, Ms. Veregin was a stay at home mother. Her education and experience would enable her to obtain employment in the retail sector or some other low paying employment.

49She did make some very modest attempts to obtain employment after the parties separated, however, that employment did not last.

50I find that Ms. Veregin is entitled to spousal support for a limited period of time based upon the length of the parties’ cohabitation, even considering the periods they had separated during that 9 year span.

Final Orders

51Mr. Cullen shall pay spousal support to Ms. Veregin in the amount of $775.00 per month for a period of two years commencing December 1, 2015 at which time Mr. Cullen’s obligation to pay spousal support shall cease.

52The spousal support payments made pursuant to this order shall be taxable to Ms. Veregin and tax deductible to Mr. Cullen.

53Ms. Veregin shall pay Mr. Cullen the sum of $318.00 per month for reimbursement of the monies in the amount of $7,625.00 owed to him (the remaining amount owing for Ms. Veregin’s share of the home renovations and the amount of equity in the home to which Mr. Cullen would have been entitled but for the liens) for a period of two years commencing December 1, 2015 by Ms. Veregin until the amount owed by her to him is paid in full.

54To avoid unnecessary further disputes between the parties, Mr. Cullen may deduct $318.00 per month from Ms. Veregin’s spousal support for the two year period. If this order has not been withdrawn from the Family Responsibility Office, then the amount collected by the FRO shall be $457.00 per month.

55No further deductions shall be made from Ms. Veregin’s child support.

56I also order that Ms. Veregin is restrained from communicating either directly or indirectly with either Mr. Cullen’s employer or anyone at his workplace and from communicating either directly or indirectly with either Mrs. Cynthia Cullen’s employer or anyone at her workplace.

Costs

If either of the parties made an offer to settle that was still valid at the commencement of trial and that was greater than the award I have provided to them, they may make submissions on costs in writing to me, not exceeding 3 pages in writing together with copies of any relevant offers to settle.