CITATION: Shouldice v. Shouldice, 2016 ONSC 1481
COURT FILE NO.: FC-13-2819
DATE: 20160303
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lisa Shouldice, Applicant
AND
Robert Roland Shouldice, Respondent
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Wade L. Smith, counsel for the Plaintiff
Carol J. Craig, counsel for the Respondent
HEARD: February 26, 2016
ENDORSEMENT
[1] The Applicant seeks to strike the Respondent’s pleadings because of his failure to comply with the court ordered support for her and their three children. That order was made by Justice Labrosse on November 14, 2014. In the alternative, she seeks an order granting her possession of a jointly held income property known municipally as 6916 Gallagher Road, North Gower, Ontario, and permitting her to retain all income from that property until the final resolution of this matter. In the alternative, she seeks an order that any tenant pay the rent from any unit directly to her.
[2] The Respondent seeks to reduce his support obligations to zero as he claims a present inability to work. In the alternative, he seeks a suspension of the enforcement of the support orders. He also seeks to enforce the recommendations of Nadine R. Crawley in her report dated February 6, 2016 with respect to his access to the three children of the marriage.
[3] The matter was referred to me pursuant to the Coordinated Case Management Program for High Conflict Custody and Access cases. I held a first case conference with the parties and their counsel on November 12, 2015. I made a number of orders on that date and set the matter down for trial during the sittings in May 2016.
[4] At the outset of the motion, the parties agreed to implement the recommendations contained in Ms. Crawley’s report and an interim order was signed to that effect.
[5] This left the issue of ongoing support to be resolved. I find that the evidence in support of the Respondent’s inability to work to be unreliable. It comes in the form of a short letter from Stacey Thompson, a Nurse Practitioner from the Merrickville Community Health Centre, date stamped February 12, 2016. I am not satisfied that Ms. Thompson has the expertise to make a diagnosis of depression and total disability. There is little information in her letter to support her diagnosis.
[6] This latest report of disabling depression must be viewed with some skepticism. It was not reported at the November case conference, even though Ms. Thompson’s note indicates that Mr. Shouldice was seen shortly thereafter. What’s more, this disabling depression was not reported to Ms. Crawley when she met Mr. Shouldice on November 20, 2015, and again on January 11, 2016.
[7] At the November case conference, the Respondent failed to disclose that he had withdrawn $110,000 from the parties’ joint line of credit from the Laurentian Bank in September of 2015 even though he was claiming an inability to pay support. He has not accounted for these funds other than to say that he has paid debts. Nothing was set aside for his wife and children, even though these funds were taken from a joint line of credit that had previously been paid from the proceeds of sale of the other jointly-held properties. He has failed to repay the funds in question and he claims that there is already a default judgment registered against him by the Laurentian Bank.
[8] When the parties attended at an earlier case conference before Justice Labrosse on November 14, 2014, The Respondent was in arrears for both child and spousal support. Two weeks later, he guaranteed a mortgage in favor of his new partner’s mother, Jo-Ann White, for the purchase of a $500,000 five-bedroom home. In his mortgage application for that property dated November 28, 2014, Mr. Shouldice claimed to have a gross income of $185,000 and a net worth of $1,363,148. He claimed cash savings of $15,000. While he had previously disclosed that he had guaranteed two mortgages for Jo-Ann White, he did not produce the mortgage application until recently.
[9] In addition to the matrimonial home, the parties owned three other properties. Two of these have been sold. The remaining property on Gallagher Road is a three unit rental property. The Respondent lives in one with his new partner. The Applicant believes that she could generate $2,750.00 in rental income from that property. She proposes to take over control of this property and receive the income.
[10] The Applicant maintains that Ms. White owns a duplex where the Respondent and his new family can reside. In the alternative, she suggests that the Respondent and his new family can live in the large home he helped his future mother-in-law acquire. This is where the equipment from his plumbing business is stored. In the further alternative, she submits that he can live in other rented accommodation since the Respondent claims to be receiving generous financial support from his father and future mother-in- law. At the very least, the Applicant asks that the rent from the remaining unit at Gallagher Road be redirected to her.
[11] The Respondent and his new partner, Patricia White, live in one of units with their 8 month old son. Ms. White is 4 ½ months pregnant. She also has another son, Tyler, with whom she shares custody along with the boy’s father. The Respondent claims he has taken over one of the units to accommodate his expanding family and to allow him overnight access with the three children of the marriage.
[12] The Respondent says that the duplex owned by Ms. White is inhabitable and is otherwise too small. He says that moving in with Jo-Ann White is not possible since she and her partner want to create a separate unit for her partner’s parents. As for the remaining unit on Gallagher Road, the Respondent claims that it could no longer be rented out since previous tenants left it bug-infested and that he has allowed his new brother-in-law, Nicholas White, to live there rent-free for one year in exchange for making the necessary renovations. Somehow, without any income, Mr. Shouldice has been able to maintain the mortgage on the Gallagher Road property.
[13] In short, Mr. Shouldice has been able to assist his new in-laws, has taken steps to shut down his business, defaulted on the line of credit and foreclosed the Applicant’s access to possible solutions. He has no proposal to pay support for this wife and children other than suggest that income be imputed with Mrs. Shouldice. Justice Labrosse previously rejected his attempt to impute income to Mrs. Shouldice on November 2014.
[14] The Respondent claims that he has no choice but to seek bankruptcy protection for his plumbing business. Mr. Shouldice says he will then seek employment as a plumber once he is well again. Most of the debts are personal ones. It is unclear how a corporate bankruptcy will be of any assistance.
[15] The Respondent has a court-ordered responsibility to support his wife and three children and he has not obeyed that order. The only source of any potential income is the three unit rental property jointly held by the parties. He has reduced that to zero. I am not satisfied on the evidence before me that Mr. Shouldice is totally incapable of working and that child and spousal support should be varied at this time especially in view of trial that is scheduled to commence within the next three months. Moreover, I am not satisfied that the Respondent and his new family cannot get accommodation elsewhere, either at Ms. White’s duplex property or in the five bedroom home he helped her mother purchase.
[16] The only issue relates to my jurisdiction to order the relief requested. The Applicant’s counsel relies on the broad powers found in Section 34 of the Family Law Act, R.S.O. 1990, c. F.3 [“FLA”] with respect to orders for support. Although the Applicant seeks relief under both the Divorce Act and the FLA in her Application, the provisions of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) apply with regard to orders for child and spousal support. The Family Law Rules, O. Reg. 114/99 apply in either case.
[17] Rule 1(8) of the Family Law Rules provides:
If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including …
[18] I am satisfied that section 1(8) of the Family Law Rules confers a broad discretion on the Court when a court order is not being obeyed. In this case, the Applicant’s request is more practical than seeking a striking of the Respondent’s pleadings. In exercising this discretion, I note that the Court has the power to appoint a receiver of property under section 101 of the Courts Justice Act, R.S.O. 1990, c. C.43, and the order I propose to make has the same effect.
[19] For these reasons, I grant the relief requested and I appoint the Applicant to manage the property at 6916 Gallagher Road and to receive the income therefrom. In making such an order, the Applicant must report any net income received from the property to the Family Responsibility Office and a final accounting can be made at trial. The Respondent and his new partner are to vacate these premises no later than April 1, 2016.
[20] The parties are to make their brief cost submissions within 20 days of the release of this Endorsement.
Mr. Justice Robert N. Beaudoin
Date: March 3, 2016
CITATION: Shouldice v. Shouldice, 2016 ONSC 1481
COURT FILE NO.: FC-13-2819
DATE: 20160303
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Lisa Shouldice, Applicant
AND
Robert Roland Shouldice, Respondent
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Wade L. Smith, counsel for the Plaintiff
Carol J. Craig, counsel for the Respondent
HEARD: February 26, 2016
ENDORSEMENT
Beaudoin J.
Released: March 3, 2016