Byrne v. Byrne, 2016 ONSC 2315

Court File and Parties

COURT FILE NO.: 12-96-01 DATE: 2016-May-31

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Denise Jean Byrne Applicant – and – Jeffrey James Byrne Respondent

Counsel: Birkin J. Culp, for the Applicant Paul D. Amey, for the Respondent

HEARD: September 22, 23, 24, 25, 28, 29, 30, October 1, 19, 20, 21, 22 and 23, 2015

The Honourable Justice R. John Harper

Issues

1This is a motion to change brought by the Respondent Jeffrey James Byrne (“Jeffrey”) seeking to change the order of Justice Arrell dated June 13, 2012.

a. Jeffrey seeks sole custody of the children and if such an order was made, child support to be paid to him. b. He also seeks an order to terminate spousal support. c. He seeks an order that Denise Jean Byrne (“Denise”) pay to him the s. 7 extraordinary expenses that he paid on behalf of the children. d. Jeffrey claimed that adjustments should be made to the payout of the matrimonial home. He claimed that Denise should be required to pay to him one half of the carrying costs of the matrimonial home for the period from when she moved out on June 1, 2012 until the closing date of the sale of the home of February 15, 2013. e. They also seek a determination by me of whether the spousal support should be characterized as compensatory or needs based. f. Denise seeks an order that Jeffrey’s motions to change and other requested relief be dismissed.

2As of June 2012, Jeffrey had access to the children: Isaac, now 13 and Alyssa, now 10. This access included alternating weekends and time during the week.

3Jeffrey did not bring his motion to change the custody of the children until May 2014. He now claims that custody of the children should be given to him largely due to the fact that he claims that the Applicant (Denise) is cohabiting with a Shane Deschamp (“Shane”). Jeffrey claims that Shane is a biker with Hell’s Angels affiliations. He also claims that Denise and Shane subject the children to wild parties where the adults take all sorts of illicit drugs.

4In addition to his claim for a change in the custody, Jeffrey claims that Denise has been cohabiting with Shane since shortly after the consent order was entered into in June 2012. Jeffrey issued his motion to change spousal support on April 2013. This motion included a request to terminate the spousal support that had only been agreed to 10 months earlier. Jeffrey also claims that Denise was under-employed and income should be imputed to her.

Background

5Jeffrey and Denise started to cohabit in 2000. They were married in 2001 and they separated on October 15, 2011. Jeffrey remained in the matrimonial home even after Denise moved out with the children on June 1, 2012. At that time, the parties settled all of their issues by minutes of settlement and their agreement was put into the court order of June 13, 2012.

6At the date of the court order, Jeffrey’s income was set by agreement of the parties to be $100,000. The support payments ordered were based on that amount of income. Jeffrey continued to live in the former matrimonial home until it was sold on February 15, 2013. Jeffrey claims that he reduced the principal on the mortgage on the former matrimonial home and he should receive an adjustment for that. Denise received the total proceeds of the sale of the parties’ cottage. She was also to receive some of the proceeds of the home sale, however, that issue was never settled and it was allowed to continue subsequent to the June 13, 2012 order.

7Jeffrey and Denise had two children of their marriage, namely Alyssa Byrne born July 18, 2005 (age 10) and Isaac Byrne, born November 13, 2002 (age 13).

8The June 13, 2012 order provided for Jeffrey and Denise to have joint custody of the children with the primary residence of the children being with their mother, Denise. Their father, Jeffrey, was to have access that included in week one, alternating weekends from Friday after school and Monday overnight until Tuesday. In week two, access included Tuesday overnights. That order was varied on November 4, 2013. Jeffrey’s time with the children was reduced by eliminating the mid-week access on Tuesdays to Fridays from after school until 6 pm. That access schedule has been in effect since November 2013. The joint custody regime has been in place since June 1, 2012.

The Circumstances at the Court Order of June 13, 2012

9In order to determine if there has been a material change in the circumstances as claimed by Jeffrey, the court must look at what the circumstances were at the time of the order. An understanding of the relevant circumstances relating to the components of the order sought to be changed is an essential element in making a determination of whether there has been a material change in those circumstances (Pustai v. Pustai, 2014 ONCA 422, 47 R.F.L. (7th) 56).

10The analysis that is necessary involves reviewing evidence relevant to the issues presently before the court, not with the goal of re-hearing the matter, but with a view to understanding the base line from which to measure any changes. In addition the court must determine if any changes were reasonably contemplated at the time of the order. This is especially significant when the parties’ agreement formed the basis of the court order with no agreed statement of facts that could be relied on as the factual foundation from which to make a comparison. This type of analysis is also necessary when the agreement of the parties avoids a contested hearing at which a judge makes findings of fact that will form the factual foundation from which a comparison can be made.

The Relevant Facts Leading to the Court Order of June 13, 2012

Jeffrey’s Background

11At the time of the June 2012 order, Jeffrey was 45 years of age. He grew up in Brantford. He obtained a high school education. After high school he was an apprentice in the area of marble tiling for five years. He then worked at Bell City Foundry in Brantford. The latter company became Jeffrey’s family’s company. Jeffrey’s mother remarried to a Richard Kostic who owned Bell City Foundry. Jeffrey would work there in the summer months during school. He also lived with his mother and step-father at this time.

12Jeffrey advanced in his work at the foundry. He has been there for approximately 20 years and went from night shift manager to being the plant general manager by 2012. He agreed to have his income set in June 2012 at $100,000.

Denise’s Background

13Denise was 38 in June of 2012. She did not complete high school and left school without completing grade 10. She started working on a dairy farm when she was 15 years old. She went to Mohawk College in order to upgrade her education. She has not completed her high school equivalency.

14Denise has had various labor-related jobs. She worked for a brief period of time at a retirement home. She then worked at a chicken-processing plant. When that plant closed she obtained employment at Atlas Hydraulics. She started there at the bottom and worked up to being a Health and Safety Coordinator. She left Atlas in 2006 to work at Bell City Foundry. According to Denise, Jeffrey’s mother, Rhonda, was having difficulties with the Ministry of Labor and she wanted Denise to help her out with health and safety issues. In order to take the day job at Bell City Foundry, Denise testified that she was allowed to work from 9 am until 3 pm so that she could be available for her children. She would also incur day care costs. Denise’s evidence was that she was promised a bonus in order to help with the day care costs. However she never received any bonus. While she worked at Bell City, she earned approximately $18.90 per hour. She worked approximately 32 hours per week. Her annual income was $27,000.00 per annum.

15Denise left Bell City in and around the time of separation. She felt that it was too difficult to continue working there with Jeffrey also being the plant manager. After Bell City she obtained a job as a waitress at a golf club and other nominal paying jobs. At the time of this trial she was working for Shane’s father in what she described as a “storage wars” type of business. Shane’s father would buy things from storage lockers and flea markets and she would assist in refinishing the items for resale. She now earns less than $15,000 per annum.

Parenting During the Marriage

16Denise testified that she performed the majority of the day to day parenting of the children. She breast fed the children during the one year of parental leave she took from work after the birth of each child. I find that Denise also took the children to most of their activities and professional appointments. She conceded that Jeffrey helped out with the children when he could but he was often called out to work as plant manager; he also helped his mother and his sister with jobs around their houses. I accept Denise’s evidence in this regard. I find that Jeffrey and his mother, who also testified, slanted their evidence in a way that minimized Denise’s role as a parent while at the same time inflated Jeffrey’s role.

17Jeffrey testified that “we were both primary care givers but she was mainly.” With respect to managing the household he stated “it was somewhat traditional in the sense that Denise may have done a little more.” I find that Denise’s testimony relating to the parenting was fair to Jeffrey. She did not overreach or minimize him as a parent in the same manner that Jeffrey did. I accept that Jeffrey’s role as plant manager required him to spend hours at the plant that went well beyond his stated work hours. That was the nature of the role he played. In addition, this was his family’s business that meant a lot to Jeffrey, his mother and sister.

18I accept Denise’s testimony that in addition to his duties at work, Jeffrey would often be called to both his mother’s and his sister’s homes to help them with things around their house. None of these findings are in any way a criticism of Jeffrey. These findings are a reflection of the reality of their parenting lives during the marriage.

19It is often very difficult for a judge to make a determination of the time, nature and quality of parenting during the marriage. I find that both parents were involved parents. Denise spent more time with the children when they were infants. She also took them to the majority of activities and their medical and other professional appointments. She was also the one who primarily was involved in the children’s schooling and school activities. She was the primary care giver. This fact is reflected in the parties’ own agreement after separation. The agreement provided for a continuation of their shared parenting and allowed for the primary residence to be with their mother, Denise. The residency schedule was changed at the case conference during this proceeding. According to Jeffrey, the judge felt that it was in the best interests of the children to reduce his access by eliminating Monday nights; especially during a time when Jeffrey was building his present home and living in a mobile unit on his property.

20I find that the role that Denise played in both primarily caring for the children and working at the same time contributed significantly to Jeffrey’s ability to advance as he did within his mother’s company. At the same time Denise limited her career opportunities to at least a health and safety coordinator.

The Parental Family Influence

21I find that Jeffrey; his mother, Rhonda, and his sister, Marusha, were extremely close. However, their closeness manifested at the trial in such a manner that they banded together in order to assist Jeffrey in achieving his goals in this litigation. I find that the evidence of Jeffrey’s mother, Rhonda, was often slanted in a way to cast a negative light on Denise. Rhonda was an advocate for her son as opposed to a relator of facts that would assist the court.

22Some examples at the trial of their conduct and evidence that allow me to draw the inference that Jeffrey, Rhonda and Marusha were an advocacy team as opposed to mere familial supporters of Jeffrey are as follows:

a. Almost every day of this trial, Jeffrey, his mother and his sister sat together in the body of the courtroom. They started out all taking notes on note pads that each of them brought to the courtroom. The manner in which they took notes, very emotively, became a distraction to the hearing and the giving of evidence. I cautioned them at one point in the trial and I told them that it was not only a distraction, but it was also unnecessary for all three of them to take such detailed notes of the testimony. Counsel for Jeffrey also had the assistance of a junior who sat at counsel table each day and took notes on a laptop of all of the testimony. I find that the note taking incident was an example of conduct that went beyond Jeffrey having a supportive family. Taken together with other evidence, this was an example of a whole family lining up against the mother, Denise. b. There were other examples of Jeffrey’s family acting in a manner that reflected an attitude of her (Denise) against us. When Denise was going through the process of separation, the Children’s Aid Society wanted to set up an appointment to speak with Denise. She attempted to do this at work. Jeffrey and his sister, Marusha, were present. Jeffrey did not want Denise to call CAS to set up the appointment and his sister, Marusha, insisted that Denise not use her cell phone to do that on company time. When Denise persisted, Jeffrey demanded that Marusha “write her up.” c. Marusha was in court almost daily and yet she did not testify. However, she did spend hours creating detailed spread sheets of the financial disclosure of Denise. These spread sheets were audit like in their review. The material was presented in such a manner that it was clear that the “advocacy team” (Rhonda, Marusha and Jeffrey) were attempting to confront Denise with the theory they were advancing that Denise was hiding and diverting money. I will expand on this later in these reasons.

The Alleged Changed Circumstances

Parenting - Office of the Children’s Lawyer Section 112 Investigation Report

23Juliet Hylton-Campbell conducted a s. 112 Office of the Children’s Lawyer (“OCL”) investigation. She was assigned to the case on February 11, 2014. She completed her investigation and conducted a disclosure meeting with the parties on July 11, 2014. Following the issuance of the report Jeffrey filed a dispute with the OCL wherein he questioned a number of the factual assumptions. He took the position that any recommendations made should be given little or no weight.

24I qualified Ms. Hylton-Campbell as an expert in custody and access assessments and investigations. She has extensive education and experience. She has a degree in Psychology and one in Social Services. She obtained her Master of Social Work (“MSW”) in 2004 and she is presently working on her PHD degree. As a placement for her MSW she worked with children as a clinician with the Catholic Charities. Her work experience included working for Family and Children’s Services of Niagara from 2001. She received training both as a child protection worker and as a supervisor. She has interviewed many children in her capacity as a child protection worker. From 2007 to 2014 she was a supervisor at FACS Niagara. She has been doing OCL investigations since 2012 on a part time basis and became full time in this role since 2014.

25I found Ms. Hylton-Campbell to be a straightforward and helpful witness. She testified that she did make some factual errors in her report. She corrected them once they were brought to her attention in Jeffrey’s dispute. She gave the corrections to her supervisor at the OCL and it was decided that none of the actual errors were material to any of the findings and the ultimate recommendations. I agree with that conclusion. The errors related to such things as the place of birth of Denise and other such details that did not affect the outcome of the investigation.

26The most significant part of Ms. Hylton-Campbell’s testimony is that the children expressed to her their wishes that she found to be reasonable. In essence, neither child wants any major changes to the schedule of access that has taken place since 2012 with a slight amendment of one less overnight during the week subsequent to the order of June 13, 2012. The child, Isaac, would like to spend more time with his father but at the child’s request and the child, Alyssa, wants the access schedule to remain the same.

27One of the concerns expressed by Ms. Hylton-Campbell was that both parents would speak to the children about adult issues. Both parents accused the other of doing this and each denied that they did. Whether by inadvertence, by the children just being within ear shot, or by one of the parents or their extended family purposely involving the children, the children did pick up on negative discussions about the other parent. Ms. Hylton-Campbell noted in her report that that was one of the major concerns. Children being subjected to adult conflict and a negative environment about the other parent causes them harm.

28Ms. Hylton-Campbell stated that she felt that Jeffrey was not free flowing with his information. He would not elaborate on things or give a full explanation. She gave the example of her decision not to interview his new girlfriend because he represented that she did not have a relationship with the children and that it may be some time in the future when they got together. As it turned out, by the time of trial they were engaged to be married.

29Another example of his being vague was with respect to an issue as to whether or not the police had to remove some guns that were in his possession. Denise claimed that they did as a result of concerns with respect to Jeffrey’s state of mind. Jeffrey simply told Ms. Hylton-Campbell: “that is not the way it happened.” He did not elaborate in any way.

30The most significant change that Jeffrey claimed was the fact that Shane Deschamp was living with Denise. He alleged that Shane was a biker and had affiliations with the Hell’s Angels. He also claimed that Denise and Shane exposed the children to wild parties where the adults would use alcohol to excess and take illicit drugs such as cocaine. Jeffrey never witnessed any of the above alleged activities. He made these claims almost completely on what he was told by others. Denise’s estranged brother, Danny Ratti and her estranged former friend and sister-in-law, Madonna Ratti, were the main sources of information that Jeffrey took as reality. He advanced his motion to change custody largely on the basis of what they related to him. Given the other conflicts between Jeffrey and Denise, Jeffrey was a very willing recipient of the negative information advanced by Madonna and Danny.

Core of Jeffrey’s Custody is Based on Information from Madonna Ratti

31Madonna Ratti testified that she had known Denise for about 35 years. She stated that they used to be very close but have not been for about two years. There were other times that her relationship with Denise had a period of interruption when Denise and Madonna did not speak to each other. However, they reconciled for other periods of time.

32Madonna was not close with Jeffrey when Jeffrey and Denise lived together. She only had a casual but friendly relationship with him. It was not until after Jeffrey and Denise separated that Madonna approached Jeffrey in or around March of 2012.

33Madonna painted a picture of Denise’s family upbringing that was filled with a father who had problems with alcohol and a mother who was violent. She gave a number of examples of Denise’s family life as she was growing up. The examples were seemingly advanced in an effort to demonstrate that Denise’s family background would inevitably produce children that had major issues. She stated that Denise was a “wild child.” She stated that Denise had a foul mouth and swearing was just second nature to her. However, Madonna married Denise’s brother Danny in 1990. They separated in 1998. Their separation was not an amicable one. Madonna stated that Danny had alcohol and drug issues.

34Madonna was very quick to testify to any negative aspects of her former friend Denise. She stated that she continued to talk to Denise almost daily after Jeffrey and Denise separated. However, according to Madonna, when Shane came around in or about December 2012, Madonna started to see Denise less.

35Despite seeing each other less, Madonna claimed that Denise told her that Shane would use cocaine and that he had a criminal record. According to Madonna, Denise told her that members of Shane’s family were members in good standing of the Hell’s Angels and that Shane was on the fast track to becoming a member. Madonna also alleged that Denise showed her pictures of her at the Hell’s Angels’ Club House.

36In February and March 2013, Shane’s mother became ill and was dying of cancer. Denise spent a lot of time helping out his mother. This evidence seemed to be advanced as an example of Shane and Denise cohabiting.

37When Denise’s brother Kenny died, Madonna alleged that many Hell’s Angels attended the funeral home and some attended Denise’s home afterward. Madonna claimed that Denise told her that Shane’s brother was among the mourners and that he came back to their home and attempted to use cocaine. According to Madonna, Denise told her that she kicked Shane’s brother out and would not let him use cocaine.

38Madonna did not stop at characterizing Denise as someone who was exposing her children to biker gangs, drugs and wild parties. She also testified about “extravagant expenditures” made by Denise. This line of questions and answers demonstrated more about Madonna’s desire to paint a negative picture of Denise that related to most of the claims being advanced by Jeffrey. She gave evidence that suggested that Denise was living a life that was above her means. Madonna gave several examples of what she characterized as Denise’s extravagance. She claimed that she got some Botox injections. She also pointed out that Denise even got tattoos and that she purchased boxing equipment. She stated further that Shane and Denise purchased expensive Doberman dogs. According to Madonna, Denise told her they cost $2,000. Madonna also stated that Denise bought leather clothes for her biking and special cleaners for the chrome on her bike.

39I find that Madonna was not a credible witness. She had not seen either Denise or the children since April 2013. The vast majority of her allegations about the Hell’s Angels and drugs were conversations that she allegedly had with Denise. She never witnessed drug use. She never witnessed any Hell’s Angels’ involvement. She never saw Denise inappropriately parent her children. I do not give Madonna’s evidence any weight. Her testimony represented a former friend who had an on and off relationship with Denise. When the relationship was on it was close and when it was off it was hostile. Her testimony reflected that hostility. I do not believe that Denise would confide in Madonna with such incriminating stories of Hell’s Angels, drugs and wild parties. Their relationship was never that close since they were little girls. I find that Madonna’s evidence was largely snippets of truths that were woven into a fanciful story that was adopted by Jeffrey as if it were true.

40Denise denied any involvement with drugs and the Hell’s Angels. Shane denied any involvement with drugs and the Hell’s Angels. Jeffrey did not come to court initially to vary custody. His motion to change was to ask the court to terminate spousal support because he had surveillance evidence that Denise was cohabiting with another man. He only brought the variation relative to custody when Madonna came to him with the stories of drugs, wild parties and the Hell’s Angels.

41Denise and her brother Danny, Madonna’s former husband, also had a major falling out after the death of their other brother Kenny. He was angry about his sister Denise selling what he characterized as the family cottage in or about 2012. He admitted that he was an alcoholic. However, he stated that he has now recovered and that he has been driving a truck for the last seven years. He stated that he attended his brother Kenny’s funeral in April 2014. He personally observed between 20 and 30 Hell’s Angels bikers in attendance.

42In cross examination, Danny admitted that his brother Kenny was very popular in the community. He also stated that Kenny owned and drove a very nice Harley Davidson motor cycle and that he had died in a motor vehicle accident. He stated that there must have been about 500 to 600 people who attended the funeral home. Danny testified that there were others who rode bikes to the funeral home.

43I also find that Danny’s evidence was not helpful to any of the material issues relative to the best interests of the children. His testimony only confirmed that his brother Kenny was a well-liked person who was well known in the community of people who loved to ride motor cycles. He confirmed that some Hell’s Angels attended the funeral home as well as many others who also rode motor cycles. I find that his testimony was just another piece in a puzzle that Jeffrey tried, but failed, to put together.

Denise and Shane’s Relationship

Alleged Biker Gang Affiliation

44Neither Denise nor Shane has any criminal record. Shane had a conviction in 1998 for dangerous driving. Both Shane and Denise ride motor cycles extensively but they deny that either of them are involved in any motor cycle gang. Jeffrey also rides a motor cycle. He denies being a member of any biker gang.

45Shane and Denise deny using drugs of any sort and state that they use alcohol socially. Shane has worked as a transport truck driver for many years. Presently, his work involves operating heavy equipment such as bulldozers and excavators. According to Denise, many motor cycle enthusiasts showed up at her bother Kenny’s funeral in April 2014. Some wore biker gear. Kenny was an avid biker and he died in a motor cycle accident. Anyone who showed up wearing biker gear did so out of respect for her brother Kenny.

46Denise also stated that there may have been five or six individuals who wore biker gear at the funeral home that reflected the Hell’s Angels markings. She stated that she did not know any of them. Denise stated that she led the funeral procession of her brother on her motor cycle. There was a long line of others in the procession who also rode their motor bikes. She stated that there may have been 20 Hell’s Angels in the procession. However, her testimony is that she did not know any of them and that she has never had any contact with any Hell’s Angels.

47Denise testified that she did attend a number of events such as barbeques put on by a Brantford Motor Cycle club called the Iron Hawgs. She stated that she is not a member of that club. Denise and Shane would ride with them around the lake and to events such as Friday the 13th rides to Port Dover. I find that there is no evidence of any biker involvement with Shane and Denise that in any way would impact negatively on the best interests of the children.

Alleged Wild Parties

48Jeffrey gave two examples of what he characterized as situations where the children were being exposed to wild parties and drugs. Both examples stem from information he received from others. He was not present. He acquired this information from either Madonna Ratti or her former husband Danny.

49Madonna testified that Denise told her that after one of the evening visits at the funeral home for their brother Kenny, one of Shane’s brothers came to her home and was about to use cocaine. According to Madonna, Denise told her that she would not allow this and told the brother to leave. I find this testimony of Madonna yet another example of her overreaching in an effort to attempt to hurt her former friend. Even if that story were to be true, it only demonstrated that Denise would not allow cocaine to be used in her home.

Shane Deschamp’s Birthday Party – April 2013

50This is a further episode that was related by Jeffrey and Madonna as an example of Denise and Shane exposing the children to biker gangs, wild parties and drugs. I find that this event was a normal family outdoor birthday party that was distorted by Jeffrey and Madonna into something that was harmful to children. There is no credible evidence that anything harmful occurred that day.

51Denise testified that she had a party that she set up outdoors. She converted the bottom part of their barn so that the food and beverages were located there. There were approximately 20 to 30 people present. Of the people present five were children, including her own. She stated that the children all had fun playing outside with each other and, at times, helping her. No police were called, no biker gangs were present. There were a few attendees who rode their bikes there. She also stated that she had a porta-potty because they were on a septic system and they did not want to overload the system.

52Some of the men, including Shane, went into the corn field when they had to go to the washroom. The story that was related by Madonna and her daughter Jenny was that Shane was seen with some sort of “yellow substance” that he took with him into the corn fields. The insinuation in this testimony was that some type of illegal drug was used by Shane. Shane testified that he never had any yellow substance in his hands and he did, on a couple of occasions use the corn field to relieve himself.

53Once again, Jeffrey advanced this evidence to demonstrate that his children are exposed to harm or risk of harm. I find that all the evidence relating to biker gangs, drugs and wild parties are allegations derived from witnesses that have no credibility. The allegations and insinuations do not even rise to the level of reasonable grounds to suspect that the children were exposed to harm. This is confirmed in that no one ever reported any of these alleged concerns to the Children’s Aid Society to be investigated. There was no evidence of police involvement of any kind, whether biker or drug related.

High Conflict Issue

54As this litigation proceeded, so did the escalation in the conflict between Denise and Jeffrey. There were a number of concerning incidents that demonstrated how this parenting scheme that was agreed to by the parties in June 2012, one in which they would share parental decision making through joint custody, turned into more of a scheme of disjointed custody.

55I will not go into all of the incidents that were laboriously related in the evidence. They all had similar attributes. They all contained communication between the parents and sometimes involving the children that escalated in lobbing grenades full of explosive phrases that belittled and denigrated the other as a parent. Often the children were caught up in this explosive communication. Neither Denise nor Jeffrey is without culpability with respect to some of the incidents. Both must end this for the sake of the children.

The Cottage Fishing Incident

56Denise filed, as exhibits, photos that were taken by her children while they were with their father, Jeffrey fishing at a cottage. One was a photo of the child Isaac with a bloody nose. He stated that he and his sister, Ally, had a fight and he got a bloody nose and his father did nothing about it.

57Another photo that the children sent to their mother was of blood in the toilet bowl. It was represented by the children that Ally bled into the toilet bowl and their father would not even come up from the lake and that he continued fishing.

58Denise made a number of inquiries as Jeffrey was initially refusing to take the child to see a doctor. Eventually, Jeffrey took the child to see a doctor. She ended up having an infection and was put on antibiotics.

Isaac Misses Summer School

59It was agreed between the parents that Isaac needed to attend summer school. The flurry of text messages between the parents that were filed as exhibits were very disturbing. They demonstrated how parents who cannot put their negative feelings for the other parent aside in order to meet the needs of the children can spiral out of control so that the wrong thing happens.

60The result of the hurling of insults between Denise and Jeffrey was that the insults became the message; leaving the start time for the course and on whose access time it would occur unresolved. The end result was that Isaac was not enrolled in the course.

Other Incidents Too Many to Detail

61The parties spent hours of testimony describing how Jeffrey inappropriately punished Isaac by “smacking him on the butt” through to Jeffrey not making nutritious lunches. More photos were taken of the alleged un-nutritious lunches. Jeffrey denied that he would even pack the lunches as depicted in the photos.

62Jeffrey was also critical of Denise in the manner in which she handled the issue of the children getting head lice at school.

63Jeffrey claimed that despite both parties agreeing to submit to hair follicle testing, Denise dyed her hair before submitting to the drug test. He asserted that she was attempting to beat the test. However, Denise denied doing this. She asserted that she always dyed her hair. Her children confirmed this fact when the OCL simply asked them if her mother dyed her hair. They confirmed that she always did. There is no way the children could have known the context of the question being one in which it was in any way testing whether her mother had attempted to beat a drug test.

Recognition of Poor Communication

64At some point Jeffrey and Denise set up a “family meeting at Tim Horton’s.” in order to talk about any concerns the children had and concerns that had been going on in one home or the other. One of the main concerns expressed by the children at that meeting was their dislike of being placed in the middle between both parents.

65According to Denise, Isaac was upset after the meeting as he did not feel that it accomplished anything. Both children did not feel that their father would change and felt that he would keep putting them in the middle. Denise stated that she was simply trying to avoid any further conflict.

66The child, Isaac, has been seeing a counsellor. He had been bullied at school and this had a negative impact on him. His problems are exacerbated by the parental conflict. The children simply want and deserve parents that will not compete with each other or denigrate the other. The dynamics of distrust and the inability to communicate that has evolved between Denise and Jeffrey has been fueled by this litigation. Unfounded allegations of biker gangs and drugs have caused such a polarization that joint custody has simply not been workable. I agree with the OCL investigator. The children need stability and a feeling that there is going to be consistency in their lives. They need a life that allows them to enjoy and love the other parent. They have a strong wish not to change the access scheme. I find that wish to be reasonable under the circumstances.

67It is in the best interests of the children to continue the existing access regime. I dismiss Jeffrey’s motion to change in that regard. In my view the joint custody scheme is at risk of not being able to continue. Denise stated that she is willing to leave things as they are. Although I have concerns given the evidence presented at this trial, I am hesitant to make a change at this point. These children need both parents. If the parents move forward without allowing their negative feelings for each other to intrude upon their parenting duties and obligations, the sharing of major decision making can continue. However, the recent history of action breeding reaction cannot continue.

68I find that, although both parents reacted to the other during many of the incidents in a manner that was not in their children’s best interests, Jeffrey was the instigator of many of the actions that Denise reacted poorly to. He is the one who made unfounded allegations that dragged this family into this heightened conflict and litigation. He relied on witnesses who were clearly adverse to Denise. They had an ax to grind and he simply ran with their information without any hesitancy. I find that Jeffrey went to great lengths to “get” Denise. He retained and paid for two different private investigators to conduct surveillance on her in order to gain financially by terminating support. At no time did he make any effort to simply talk to Denise about her living arrangements.

69I also find that Jeffrey often drove by Denise’s residence. He denied that he was stalking her. He claimed that he was merely taking routes that took him by her home after getting gas for his car. I do not need to find that he was stalking her. Suffice it to say that he did appear often in the vicinity of Denise’s home. Taken together with the fact that he had others putting her under surveillance and the fact that both Denise and Shane observed strange cars parked around the home, Denise reasonably felt that Jeffrey was stalking her. This was another part of Jeffrey causing an action and Denise reacting to it. I accept Denise and Shane’s testimony that they often heard the distinct sound of Jeffrey’s motor cycle with a special loud racing motor in it that was extremely rare.

70Despite my finding that Jeffrey was the catalyst to the heightened conflict, Denise clearly stated in her evidence that she did not want any changes to the custody order. She stated that she wanted the conflict to end and that the children be allowed to have a happy and healthy life that included maximum involvement with their father. I agree with this stated wish. However, my agreement comes with a caution that any repeat of incidents similar to those described earlier will result in the necessity of changing the custody regime.

The Spousal Support Issue

Cohabitation of Shane and Denise

71Shane is 37 years old. He has three boys from a previous relationship aged 12, 11 and 7. His children are with him alternating weekends. He states that he is close with his children and that they have a great relationship with Denise’s children.

72According to Shane he started to have a relationship with Denise sometime in November of 2012. They did not cohabit until after Denise’s brother Kenny died in or about April 2014. Prior to April 2014, Shane stated that he was in a relationship with Denise but he lived at his mother and father’s home in Waterford, Ontario. Sometimes he would stay at Denise’s overnight. He stated that he worked on wind turbine assembly in the Chatham/Kent area. He traveled a lot and often stayed in Chatham for work. He filed receipts for hotels in order to corroborate that he stayed in these hotels during the times that the surveillance reports located either his truck or other vehicle parked at Denise’s home. I accept Denise and Shane’s evidence with respect to the time period that they cohabited.

73When confronted with the surveillance reports that were commissioned by Jeffrey, Shane stated that he would often leave either a vehicle or a truck at Denise’s home to give the impression that there was someone else staying at the residence. He stated that he did that for safety and security reasons. According to both Denise and Shane, Denise’s home was relatively secluded and they both had observed unknown vehicles around the property. In addition, they both observed strange things that made them feel like someone was following or stalking them. I have already stated my findings relative to the reasonableness of Denise and Shane’s perception of stalking and the need for some form of security.

74A lot of time and money went into Jeffrey’s effort to get evidence that would give him the potential of bringing the issue of spousal support back to court. This endeavor on the part of Jeffrey started only a few months after the final order was issued in June 2012. Even if Jeffrey had demonstrated on the balance of probabilities that Shane and Denise were cohabiting that would not have automatically terminated support. I find that Jeffrey did not meet the onus of establishing cohabitation between Shane and Denise prior to April 2014. Even if they had I have noted earlier in these reasons that Denise was entitled to support based on both compensatory and needs based models of support. Cohabitation with another person would not, of itself terminate her support. The order of June 2012 provided that cohabitation with another person may constitute a material change in circumstances that would allow the court to consider the continuation of support.

Issue of Spousal Support

75Denise states that her support was compensatory despite the fact that there was no definition of this in the minutes of settlement or court order. She states that the compensatory element was based on the fact that she carried the excess burden during the marriage by working full time, primarily caring for the children and managing the household.

The Law and Analysis: Retrospective Determination of the Classification of Support Previously Ordered

76In Gray v. Rizzi, 2016 ONCA 152 [2016] W.D.F.L. 2128, Justice Brown reviewed the considerations that must guide a court when dealing with a motion to change spousal support pursuant to the Divorce Act, R.S.C. 1985, c. 3. The relevant part of section 17 reads:

17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) a support order or any provision thereof on application by either or both former spouses; … (4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

77The court hearing the motion to change must be aware of the facts that ground the order that is sought to be changed (Pustai v. Pustai, 2014 ONCA 422, supra). However a motion to change is not a review of the final order. The Court of Appeal in Gray v. Rizzi, 2016 ONCA 152 stated:

The Supreme Court of Canada’s clear direction in Willick v. Willick, [1994] 3 S.C.R. 670, that an application for a variation order is not an appeal of the original order: p. 687. As Sopinka J. stated at pp. 687-688:

[I]n a variation proceeding, it must be assumed that, at the time it was made, the original child support order or the previous variation order accurately assessed the needs of the children having regard to the means of the parents. As such, the correctness of the previous order must not be reviewed during the variation proceeding. The previous order will not be departed from lightly and will only be varied if the requirements under s. 17(4) of the Divorce Act are properly satisfied.

78If the final order cannot be reviewed at the time of the variation proceedings, how is it possible for a judge hearing the variation proceeding to make a determination as to the characterization of the support that was ordered at the time of the final order?

79In the Gray v. Rizzi, 2016 ONCA 152 case, the Court of Appeal found that:

Since the trial judge erred in principle both in finding that events pre-dating the Final Order constituted material changes in circumstances for the purposes of s. 17 and in conducting a review of the correctness of the Final Order, her decision is not entitled to deference.

80However, in this case, the parties are asking this court to use events that pre-dated the final order to make a determination of the characterization of the spousal support since there was no such characterization at the time of the agreement and court order in June 2012. When the parties and the courts do not make a characterization of the nature of spousal support, a retrospective analysis is difficult. Even though a retrospective review of the pre-order facts will not change the order, such a determination will have a direct impact on whether or not a variation of the spousal support should be made despite a finding of material change in the circumstances. The parties have agreed that cohabitation with another person can be considered to be a material change in the circumstances. In this case, I have found that Denise and Shane started to cohabit on April 27, 2014. They concede that fact. That cohabitation was interrupted from December 2014 to June 2015 when Shane moved in with his father due to illness. Shane has cohabited with Denise since June 2015.

81In Gray v. Gray, 2014 ONCA 659 [2014] W.D.F.L. 4191, the Ontario Court of Appeal dealt with a similar issue. The judge hearing the motion to change considered whether the support order that was made approximately 10 years earlier was compensatory. The motions judge held that it was not. The Court of Appeal found the motions judge erred in that finding. Lauwers J.A. stated commencing at para 37:

[37]I would also disagree with the motion judge’s conclusion, at para.66, that Ms. Gray is not entitled to spousal support on a compensatory basis. His reasoning is simply conclusory. His statement, at para. 80, that the marriage was anything but “traditional” does not offer any analysis of the economic consequences of the marriage or its breakdown, as the Supreme Court intended in Moge v. Moge, [1992] 3 S.C.R. 813 at paras. 41- 42.

38The purpose of compensatory support is to share the economic advantages and disadvantages that accrued because of the marriage and its subsequent breakdown. In Moge v. Moge, [1992] 3 S.C.R. 813, at p. 861, para. 70, the Supreme Court explained the principle behind the compensatory model of support as follows:

Today, though more and more women are working outside the home, such employment continues to play a secondary role and sacrifices continue to be made for the sake of domestic considerations. These sacrifices often impair the ability of the partner who makes them (usually the wife) to maximize her earning potential because she may tend to forego educational and career advancement opportunities. These same sacrifices may also enhance the earning potential of the other spouse (usually the husband) who, because his wife is tending to such matters, is free to pursue economic goals.

39The evidence in this case supports an entitlement to compensatory support. The appellant was employed as a flight attendant at the time of marriage. The parties had four children between 1981 and 1990. Ms. Gray gave evidence that her employment as a flight attendant functioned well for her family because she would only get paid for the hours she worked. She enjoyed her work and felt it offered the best benefits to the family as well as time at home. This meant that she could arrange her schedule to accommodate childcare responsibilities. Both parties acknowledge that she planned her schedule to fly on weekends, when Mr. Gray was available for child care. In addition, she took frequent unpaid leaves of absence, some related to giving birth, and others to have time off at home.

40At the time of separation, the children were 15, 13, 8 and 5 years old. Ms. Gray had custody of the children, while Mr. Gray had access one evening a week and every other weekend. Post separation, Ms. Gray was unable to return to work for health reasons. However, it is clear that she undertook the bulk of the responsibilities relating to the children. Her labour on the home front during these years enabled Mr. Gray to pursue his career without undue concern for the day-to-day realities of child rearing. During this time, Mr. Gray’s income increased substantially.

41As noted, the trial judge’s reasons are conclusory. He does not appear to account fully for the factors set out above. On the evidence, her career choices and her work schedule were taken to further family needs. An award of compensatory support is warranted based on the responsibilities undertaken by both parties during the marriage, and post-separation.

82I stated earlier in these reasons that I found that Denise performed the bulk of the child care and household management. Her efforts in this regard allowed her husband to advance his career within the family business. In addition, Denise has been the primary care giver of the children since the parties separated. This has also impacted her ability to advance any further in the area of employment she had achieved by the time of separation. The separation contributed to her loss of employment in Jeffrey’s family business. She found reasonable employment after her employment at Bell City was terminated. However, this employment was at the lower paying end of service industry jobs. Denise’s support is partly compensatory and partly needs based.

Financial Circumstances at the Time of the Final Order Compared to the Present

Imputing Income

83Denise had been working at Bell City Foundry. At the time of separation she was earning approximately $32.00 per hour as a health and safety coordinator or $27,000 per annum.

84Jeffrey agreed to set his income as plant manager of Bell City Foundry, at the time of the order of June 2012, at $100,000.

85Although it was reasonable for Denise to work at a number of jobs in the service industry immediately after separation, I find that she is presently underemployed. She is now working for Shane’s father refinishing items of furniture that Mr. Deschamp picks up, refinishes and sells. Her income is nominal (approximately $13,000 per annum). That is well below what she could earn as a health and safety coordinator. There is no evidence that she has made any efforts to secure employment in the field in which she can maximize her income. Under the circumstances I impute income to Denise to the level at which she was earning at the date of separation. Her income at that time was approximately $27,000 per annum. Therefore, there is no change in the circumstances of Denise relative to her income then and her income now.

86With respect to Jeffrey, he states that business has been bad for Bell City Foundry since separation. He called his mother Rhonda as a witness to corroborate this fact. Rhonda testified that she had to reduce his income after separation from $100,000 to $80,000 due to a downturn in the family business operations. She admitted that soon after she reduced Jeffrey’s income she lent him $20,000.

87In cross examination by counsel for Denise, Rhonda admitted that instead of supporting her assertion that the business took a downturn for 2013 and 2014, the financial statements of the company showed the exact opposite. The gross income was up and the expenses were down. Gross sales increased by 8.06% and costs were down by $100,000. The company’s gross margin was up by over $200,000. By 2014 the company’s retained earnings had increased by 7.5%. The total assets of the company had increased by over $270,000 to $1,256,000. Approximately $536,000 of the assets was cash. Rhonda had to concede in cross examination that every metric or measure of the economic health of the company showed a company that was on the upturn and not the downturn as she originally suggested.

88Rhonda indicated that she was the “boss of the business and answerable to no one.” This may be true within the operation of the company but not in this courtroom. I find that she has no credibility. Her testimony was essentially an effort to shade the truth in order to reduce her son’s obligations to his family.

89I find that Jeffrey is underemployed. There is no valid reason for his income to be lower than the $100,000 it was at the time of the order. I impute his income to be $100,000. I find that there is no change in the circumstances with respect to Jeffrey’s ability to pay, his condition, means and other circumstances.

90Jeffrey attempted to argue that Denise had unaccounted for cash or diverted funds. As indicated earlier in these reasons there was a massive effort by the “family team” to establish this fact. The forensic type of audit conducted by Jeffrey’s sister, Marusha started out alleging there was approximately $27,000 in unaccounted for cash. After Denise was extensively cross examined on this mass of minutia, that figure was revised to approximately $3,500 in unaccounted for cash between 2014 and 2015.

When did Shane and Denise Cohabit?

91Denise’s counsel submitted that the cohabitation or second partnering is only relevant when the cohabitation is for three years or longer. He further argues that that is the requirement in order to be considered a spouse for support purposes. I do not agree. The parties indicated that cohabitation with another person may be considered a material change in circumstances. There was no provision with respect to length of cohabitation. In my view any period of cohabitation may be a consideration for material change. It is only one consideration. The issue becomes what is the meaning of cohabitation.

92In Rosseter v. Rosseter, 2013 ONSC 7779 [2014] W.D.F.L. 673, Ellies J. reviewed some of the considerations in order to determine if parties were cohabiting commencing at para 9:

9By virtue of this definition, separation and cohabitation are opposites: spouses who are not cohabiting are separated. Perhaps that is the reason why the word “separate” is not defined in the Act. The verb “cohabit” is defined in s. 1 of the Act as meaning:

To live together in a conjugal relationship, whether within or outside marriage.

10There is no distinction to be made between the noun, “cohabitation”, in s. 4 and the verb defined in s. 1: Pope v. Pope (1999), 42 O.R. (3d) 514 (Ont. C.A.); [1999] O.J. No. 242 (Ont. C.A.) at para. 32.

11In order to determine if spouses were separated at a point in time, therefore, it is necessary to determine if they were cohabiting. This is done by examining the nature of the relationship between the parties, having regard to the presence or absence of various circumstances that normally exist where a couple cohabit. A great many of the cases that have considered the meaning of cohabitation are ones in which spousal support, as opposed to equalization, was at issue. Nonetheless, they are relevant because s. 29 of the Act defines “spouse” for support purposes as including either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years.

12Amongst the most frequently cited cases on the characteristics of cohabitation are the decisions in Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.); [1980] O.J. No. 1904 (Ont. Dist. Ct.), a support case, and in Oswell v. Oswell (1990), 74 O.R. (2d) 15 (Ont. H.C.); [1990] O.J. No. 1117 (Ont. H.C.), an equalization case. In Molodwich, Kurisko J. reviewed a number of cases and set out a categorized list of questions that might be answered in determining whether a couple is cohabiting: at para. 16 (O.J.). In Oswell, Weiler J. (as she then was) identified a number of indicia for couples who are not: at p. 3 (O.J.). In addition to these cases, I have been referred to a decision of the Pension Appeals Board from New Brunswick, namely: Betts v. Shannon, 2001 LNCPEN 4, which also contains a helpful list of the attributes of parties who are cohabiting: at para. 8. In the analysis that follows, I will refer to many of the characteristics of cohabitation considered in these decisions, as well as in certain other cases to which I will refer specifically.

In Oswell v. Oswell (1990), 74 O.R. (2d) 15 (Ont. H.C.), Justice Weiler outlined some of the indicia to consider when spouses have separated and therefore not cohabiting as follows:

Various indicia are set out in several cases under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), which contains similar phraseology, to assist a court in determining when spouses who occupy the same premises are living separate and apart.

(1) There must be a physical separation. Often this is indicated by the spouses occupying separate bedrooms: Dupere v. Dupere (1974), 9 N.B.R. (2d) 554 (N.B. S.C.) [affd (1974), 10 N.B.R. (2d) 148 (C.A.)]; Cooper v. Cooper (1972), 10 R.F.L. 184 (Ont. H.C.J.). Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart: Dupere, supra. (2) There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium: Dupere, supra; or of repudiating the marital relationship: Mayberry v. Mayberry, [1971] 2 O.R. 378 (Ont. C.A.). (3) The absence of sexual relations is not conclusive but is a factor to be considered: Dupere, supra; Cooper, supra; Mayberry, supra. (4) Other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern: Cooper, supra; Mayberry, supra; McKenna v. McKenna (1974), 19 R.F.L. 357 (N.S. S.C.); Vogel v. Vogel (1988), 18 R.F.L. (3d) 445 (Ont. H.C.J.). (5) Although the performance of household tasks is also a factor, help may be hired for these tasks and greater weight should be given to those matters which are peculiar to the husband and wife relationship outlined above: McKenna, supra.

93The case law illustrates that there are many criteria and indicia that a court will look to when determining whether parties are cohabiting. None of the lists of indicia are comprehensive and no single indicator is a priority over the others. Some of the indicia are as follows:

a. Where did the parties reside? Did they represent to others they resided at the same home? Some examples being: i. Canada Revenue ii. Canada Post iii. Ministry of Transport iv. Employers v. Banks b. Did the parties socialize together both inside and outside of their home? c. Did they celebrate special occasions together? d. Did they have their clothing and other personal items in the same home? e. Did they have sexual relations? f. Did they share household chores? g. Did they integrate their finances?

94In this case, I find that Shane and Denise started a relationship in November 2012. That is when they met and started to date. That relationship grew over time and Shane started to spend more time at Denise’s home. However, he retained his own residence and most often, as a trucker he was not residing in his own residence and was on the road most of the time. He was either on long hauls or working on wind turbines in the Chatham/Kent area. I accept the evidence of both Shane and Denise that in 2013, Shane often left a vehicle, either a truck or other vehicle, on Denise’s property in order to give the impression that someone else was there. I accept the evidence of both Denise and Shane that there was reasonable cause to suspect that someone was watching Denise’s home. That suspicion was grounded in reality as Jeffrey retained the services of two private investigators to conduct surveillance on Denise.

95I find that Denise and Shane started to cohabit just after Denise’s brother Kenny died at the end of April 2014.

The Impact of Shane Cohabiting with Denise

96The mere fact that someone re-partners with another person does not of itself allow for termination of spousal support.

97In Wegler v. Wegler, 2012 ONSC 5982 [2012] O.J. No. 5129, commencing at para 90 Justice Sanderson provided the following review:

Effect of Re-partnering

90Section 14.7 of the SSAGs reads as follows:

The Recipient's Remarriage or Re-Partnering

The remarriage or re-partnering of the support recipient does have an effect on spousal support under the current law, but how much and when and why are less certain. There is little consensus in the decided cases. Remarriage does not mean automatic termination of spousal support, but support is often reduced or suspended or sometimes even terminated. Compensatory support is often treated differently from non-compensatory support. Much depends upon the standard of living in the recipient’s new household. The length of the first marriage seems to make a difference, consistent with concepts of merger over time. The age of the recipient spouse also influences outcomes.

In particular fact situations, usually at the extremes of these sorts of factors, we can predict outcomes. For example, after a short-to-medium first marriage, where the recipient spouse is younger and the support is non-compensatory and for transitional purposes, remarriage by the recipient is likely to result in termination of support. At the other extreme, where spousal support is being paid to an older spouse after a long traditional marriage, remarriage is unlikely to terminate spousal support, although the amount may be reduced.

An ability to predict in some cases, however, is not sufficient to underpin a formula for adjustment to the new spouse’s or partner’s income. Ideally, a formula would provide a means of incorporating some amount of gross income from the new spouse or partner, to reduce the income disparity under either formula. Any such incorporation could increase with each year of the new marriage or relationship. Where the recipient remarries or re-partners with someone who has a similar or higher income than the previous spouse, eventually — faster or slower, depending upon the formula adopted — spousal support would be extinguished. Where the recipient remarries or re-partners with a lower income spouse, support might continue under such a formula until the maximum durational limit, unless terminated earlier.

We have been unable to construct a formula with sufficient consensus or flexibility to adjust to these situations, despite considerable feedback that a formula would be desirable. In this final version, we still have to leave the issues surrounding the recipient’s remarriage or re-partnering to individual case-by-case negotiation and decision making.

[Emphasis added.]

91In Balazsy v. Balazsy, 2009 ONSC 55303, Turnbull J. wrote at para 51: "I have also considered the SSAG in rendering judgment. I concur with Mr. MacLeod that their assistance is somewhat limited by the fact each of the parties has found a new partner with whom to co-habit."

92In Kelly v. Kelly, 2007 BCSC 227, Barrow J. wrote:

2Since the original order, Ms. Kelly has remarried and Mr. Kelly has enjoyed a substantial increase in income. In broad terms, it is these developments that give rise to these applications.

49The effect of re-marriage on needs based spousal support will, it seems to me, generally be more significant than in the case of compensatory or contractually based support. [Emphasis added.] Support based on compensatory considerations may still be payable if the receiving spouse remarries. Re-marriage does not compensate the receiving spouse for that which was foregone during an earlier marriage. To that extent and for that reason, its effect on spousal support may not be significant. Needs based support, however, rests on what McLachlin J. termed the ”basic social obligation model of marriage” (Bracklow, at para. 25). The social obligation model of marriage has, as one of its central tenants, the notion that where a former spouse has a demonstrated need the “primary responsibility falls on the former spouse to provide for his or her ex-partner, rather than on the government” (Bracklow, at para. 23). It follows in my view that when a spouse with a demonstrated need remarries, the social obligation model casts the burden of meeting that need on the new spouse. The burden does not shift in its entirety at the moment of remarriage but it begins to. The longer the subsequent marriage, the greater the obligation of the new spouse for the needs of his or her partner.

52Some comment on the Guidelines is in order…

53As to the notion that Mr. Kelly’s increased income should result in an increase in support, the Guidelines do not dictate such a result. While the authors of the Guidelines found it possible to provide assistance in situations where the recipient spouse’s income increases or the payor’s income deceases, they were able to offer only limited guidance on the effect of increases in the payor’s income and the effect of remarriage. In that regard, they wrote that circumstances “such as post-separation increases in the payor’s income, re-partnering, remarriage and second families” are best left to a discretionary, case-by-case determination (Guidelines, c. 10). They reached this conclusion, in part, because the state of the law renders formulaic determinations of quantum impossible. [Emphasis added.]

98Jeffrey’s counsel submits that the Wegler case should be distinguished as the wife in that case took on the responsible for all of the child care and household duties and the husband was completely free to pursue employment out of the home. I do not agree that it is an all or nothing proposition. A substantial lead role in child care and household management can lead to compensatory support. However, that is only one consideration. In this case, I find that Denise carried the excess burden as she was not only responsible for the primary childcare and household management, she also worked. She took little time off for maternity leave for both children and was in my view still primarily caring for the children during their infancy. I have found that when she returned to work while Jeffrey participated in parenting, Denise took on the major share of the childcare and household management in addition to working. Her ability to work was also limited by the separation and the manner in which she was shut out of the family business. She has no RRSPs or pension. She has no life insurance or health benefits. She also had the greater role in dealing with the challenges that her children presented after separation. This further inhibited her ability to advance a career.

99Denise took her son Isaac to counselling when he was seriously impacted by bullying at school from March to July 2014. In addition, she worked with Isaac, his teacher and the principal at the school in order help her son deal with his emotional issues. Partly as a result of the efforts of Denise, Isaac transformed from a child who thought the whole school hated him to a child who received three awards for outstanding class participation and good behavior.

100Shane has support obligations to his children from his previous relationship. He pays $600 per month for his three children based on the Child Support Guidelines. His 2014 income showed a gross income of $62,551. With respect to his contributions while living with Denise, he only contributes to groceries in the approximate amount of $100 every week or every two weeks at times. He also contributes to meals outside the home and to some of the children’s clothing. In addition he contributes to holiday outings with the family. According to both Shane and Denise, Shane has his own bills and other expenses.

101Shane was seriously ill for a period of time. He is diagnosed with fibromyalgia. He is on a medication regimen for this disorder. He stated that it was difficult for him to even get out of bed for an extensive period of time. He stopped residing at Denise’s and moved in with his father. He did not want to be a burden on Denise and her children. He stayed at Denise’s home from April 2014 to December 2014. He went to live with his father in December 2014. Although he was still in a relationship with Denise, he did not move back into her home until June 2015.

102At the time he met Denise, in or about November 2012, he was a trucker. He worked at Pelton Transport and was on the road a lot. His log books detail his travels and corroborates his testimony. After he left Pelton Transport, he went to work at Wind Turbines. His invoices and receipts for hotels corroborate his testimony that he stayed mostly at hotels in the Chatham area during much of 2013.

103As stated above, Shane does not contribute a specific amount per month toward his living expenses at Denise’s home. He purchases groceries from time to time and pays for other expenses at his choosing. I find that his contribution to his living expenses in Denise’s home to be on the low side. Nevertheless, given his financial situation any contribution he could make would not result in a material change to the circumstances of Denise. In addition, Denise is entitled to support that is partly compensatory. As such, any further contribution by Shane to the living expenses of Denise would not have an impact on her entitlement to compensatory spousal support.

104At the time of this trial, Jeffrey was engaged to Valerie Hassim. She works for Great West Life in London, Ontario. She states that she is now cohabiting with Jeffrey. She moved into the home that Jeffrey owned in July 2014. She states that she contributed to the home financially by putting in $58,000. The title to the home is now in joint names. Jeffrey and Valerie remortgaged that home and made considerable improvements. They have an outdoor pool and landscaped yard. She contributes $1,700 per month to the living costs. She has a 15 year old daughter from a previous marriage who sees her father alternating weekends. The child’s primary residence is with her mother.

105Given my findings relative to the condition, means and other circumstances of the parties, I find that there is no material change in the circumstances that would necessitate any change to the spousal support order.

106For the reasons set out above, I dismiss Jeffrey’s motion to change with respect to spousal and child support.

Property Adjustment

107Jeffrey wants credit for his reducing the principal amount of the mortgage on the matrimonial home as he made the payments from June 1, 2012 until the home was sold on February 8, 2013. On June 1, 2012 the mortgage was $401,273. The discharge statement on February 8, 2013 showed a balance owing on the mortgage of $309,000.

108I agree with the outline of the legal considerations for the determination of whether or not reimbursement of matrimonial home expenses should be made in Higgins v. Higgins, 2001 ONSC 28223 [2001] O.J. No. 3011 (S.C.), at paras. 49, 50:

Request for reimbursement is one side of the coin and on the other side of the coin is occupation rent that ought to have been paid. A balance is normally sought. The following are relevant factors to consider:

a. The conduct of the non-occupying spouse…; b. Conduct of the occupying spouse…; c. Delay in making the claim; d. Extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home; e. Whether the non-occupying spouse moved for the sale of the home…; f. Whether the occupying spouse [aid the mortgage and other carrying costs of the home; g. Whether the children resided with the occupying spouse..; h. Whether the occupying spouse has increased the selling value of the property; i. Ouster is not required, as once was thought in some early decisions.

109In this case, Denise had the children primarily with her after separation. Jeffrey lived in the matrimonial home. He alone got the full benefit of living in that home. Denise had to rent alternate accommodation for her and the children. She did not have access to her equity until the property was sold. She did, however, receive all of the proceeds of the sale of the cottage. This resulted in her receiving $50,000 subject to adjustment when the matrimonial home sold. Jeffrey did not pay any occupation rent. Under the circumstances of this case, I do not feel that Jeffrey is entitled to any compensation for the payments he made on the mortgage for the period of time in question.

Section 7 Expenses

110Denise did not advance a claim for retroactive section 7 contribution.

111The agreement and court order of June 2012 provided that Jeffrey would pay 50% of the section 7 expenses to Denise. This was despite the income disparity of Jeffrey earning $100,000 and Denise earning $27,000. The order does not state that Denise is to pay 50% of the extraordinary expenses to Jeffrey.

112Jeffrey claims that he should be compensated for the payments that he made and that he characterizes as extraordinary expenses. One of the largest expenses that Jeffrey claims is for horseback riding and related expenses. Jeffrey admitted in his evidence that he did not inform Denise about the horseback riding before the child was signed up. He also admitted that he had no proof that he actually paid for the lessons as opposed to his sister Marusha. I find that this expense does not qualify as an extraordinary expense as contemplated by s. 7. Most importantly, this expense falls outside of what was agreed to by the parties. The parties agreed to a much lower ratio (50%) of compensation for extraordinary expenses than s. 7 directs. Given the incomes of Jeffrey at $100,000 and Denise at $27,000, the ratio that Denise is to be compensated should be approximately 73% of the total qualifying expense. I can only infer that the fact that the ratio of compensation was set so low for Jeffrey is that the compensation for a qualifying s. 7 expense was agreed to flow one way, from Jeffrey to Denise.

113Under the circumstances I find that since the compensation was to flow from Jeffrey to Denise, Jeffrey cannot be compensated for an expense that he unilaterally incurs. He provided no proof that the expense was necessary, in the child’s best interest and reasonable having regard to the finances of the parties and their pattern of spending during marriage.

114I dismiss Jeffrey’s claim for compensation for any expenses that he characterizes as extraordinary. I make no change to the agreement and court order relative to ongoing s. 7 expenses.

Costs

115If the parties are unable to resolve the issue of costs, brief written submissions are to be delivered to my chambers in Brantford, within 30 days of the release of this decision. No submission may exceed three pages, exclusive of a bill of costs and outline.

Harper, J.