Arndt v. Arndt, CITATION : 2016 ONSC 3273

COURT FILE NO.: D25027/15

DATE: 2016-05-18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jennifer Lynn Arndt, Applicant AND: Joshua Emil Arndt, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: James D. Almas for the Applicant; Respondent self-represented

HEARD: May 17, 2016 at Welland

Endorsement

[1] The parties were together for 15 years, including several years of marriage. They separated in February 2015 and sold the matrimonial home. The proceeds of the sale, about $74,000, are held in trust. The Respondent is paying child support based on an annual income of $115,000. The parties have two boys, who will soon be 8 and 5.

[2] The Applicant wife moves for temporary spousal support and temporary custody or in the alternative primary residence. She also seeks a contribution to extraordinary expenses. The Respondent moves for custody, or in the alternative equal residence. He also moves for release of part of the proceeds from the matrimonial home on the basis that it is really his father’s money.

[3] The parties lived in Toronto in 2013 when they moved to Welland. What happened is that the Applicant went to visit her parents for a week. She refused to move back home to Toronto and the Respondent felt obliged to move to Welland to keep the family together. I do not propose to go over the various intervening circumstances with respect to their respective employment, as they are only relevant to retroactive child support, which I do not propose to resolve at this stage. Suffice it to say that commuting to Toronto became intolerable and the marriage and to a certain extent the Respondent’s physical health broke down. His health is reasonable now, but he has to watch out for kidney problems.

[4] The Respondent has now got a job in Toronto as a web designer in which he makes a salary of $115,000 a year and he can work from a remote location, so he can move to Niagara. The children live with their mother and see their father three weekends out of four. The parties have agreed to week about residence over the summer. The father is of the view that the children’s best interest would be to live with him in Toronto. His point is arguable, but at this point it is outweighed in my view by the desirability of avoiding temporary changes in residence for the children. However the parties got there, the status quo from the children’s point of view is residence and school in Welland.

[5] The father’s alternate position is that he will come to live in Niagara and should have equal time with the children. The mother’s position is that if the father moves to Niagara, he should get alternate weekends, some midweek access and shared statutory and school holidays; as long as he stays in Toronto, three out of four weekends is more practical. The father, understandably, takes the position that there is little point in moving to Niagara for alternate weekends.

[6] The mother has been driving the children to Toronto for their access visits. This suggests to me that she is not opposed to the children having a relationship with their father. On the other hand, the separation and the employment circumstances have severely reduced the father’s time with the children, which is unfortunate.

[7] It is clear to me that these children have two good parents. Each parent is prepared to teach the children to respect the other parent. In the circumstances, provided the father can move to Niagara, I see no benefit to their spending more time with one parent than the other.

[8] In the particular circumstances of this case I think the following order is the closest I can get to achieving the least bad temporary result:

a. The parties will have joint custody of the children;

b. From now until the end of the school year, the children’s primary residence will be with their mother; the father will have access three weekends out of four on the current schedule; during summer break the children will live with each parent week about, as already agreed;

c. If the father takes possession of a residence in Niagara before school resumes, the children will continue to live week about with each parent; if he has not, the three weekends in four regime will re-commence with the school term;

d. If the father takes possession of a residence in Niagara after the beginning of school term and before November 1, 2016, week about residence will resume from the first week of the month that follows his taking possession.

e. If the father has not taken possession of a residence in Niagara by November 1, 2016, week about access will only resume during summer breaks;

f. The children may spend additional time with either parent as agreed by the parties;

g. The father may move to vary child support when week about residence (other than summer break residence) begins.

Proceeds of the matrimonial home

[9] It is not contested that the respondent got $42,000 from his father in two payments before separation. One of these payments was put onto a line of credit. Improvements were made to the matrimonial home with a view to selling it. When the sale was completed the Respondent expected to repay his father. As the proceeds are in trust, he has not been able to do that. He says that the $42,000 is not his or the parties’: it is his father’s.

[10] I am naturally suspicious of undocumented intergenerational transfers. I think that they are usually intended as gifts to the couple. In the present case, however, the circumstances convince me otherwise. The Respondent’s father lives on a disability pension. The $42,000 is essentially all the money he has. I doubt whether he would have made such a transfer as a gift or without strings. The Respondent considers this to be trust money. It may not be trust money legally, because the Respondent mixed it with his own money. But I am satisfied that it is owed to the father and was never beneficially part of the family assets or joint assets. The only available evidence on the father’s intention comes from the Respondent. The Applicant does not claim to have contradictory evidence other than the circumstantial evidence of what happened to the money, which is before me. The Respondent’s father, given his disability, may or may not be able to add anything. The Respondent’s mother has not been married to his father for decades, so she will not have anything to add. I respectfully disagree with the Applicant’s submission that there is a genuine issue for trial. I order that $42,000 be released from the trust and paid to the order of Witholt Arndt.

Spousal support

[11] This was a 15 year relationship during which the wife worked part time and took care of the children. She is undoubtedly entitled to spousal support and there is no good reason why she should wait for trial, although she may have to wait until then for a precise reckoning of the ongoing amount and its duration. Given the availability of proceeds of sale of the matrimonial home and her own obvious need, I do not see why she should have to wait for retroactive spousal support. After the $42,000 is paid out, about $32,000 remains in trust, of which half belongs to the Applicant. Based on the Applicant’s income of $18,795, the Spousal Support Advisory Guidelines call for support in a range from $913 to $1,813 a month, with $1,339 in the middle of the range. I fix retroactive spousal support at $1,000 a month, in total $16,000 and order the Respondent to pay that forthwith. The trustee, then, is directed to pay $42,000 to Witholt Arndt and $32,000 to the Applicant, for which the Respondent will be given credit for $16,000 worth of spousal support. If some amount remains, it may be given to the parties in equal shares.

[12] As far as ongoing spousal support is concerned, I think that as of today the Applicant, who is in her late ‘30’s, has had enough time, and the children are old enough, that she should be working full time. She makes $18,425 a year working two days a week in the family business. I think her father could find more hours for her. Or she could decide to start up her own business as she has contemplated. I impute income to her in the amount of $40,000 a year. I do not have Spousal Support Advisory Guideline figures for that amount. I fix ongoing spousal support on a temporary basis, without prejudice to the determination at trial, in the amount of $750 a month.

Extraordinary expenses

[13] Before separation the parties enrolled their children in a private pre-school, which the boys will both outgrow at some point soon. The Applicant’s parents paid half the monthly tuition and the Respondent paid the rest. He has continued to do so. The parents no longer want to pay half. The Respondent says that he cannot afford $1,300 a month. I agree with him. This was never an expense that was necessary or affordable for this family. It was only affordable with the grandparents’ contribution. If they do not wish to contribute the children will have to change schools, as they will at some point soon in any event.

[14] As to other extraordinary expenses, it is too soon to say what they will be in the next few months. I think the parties should share the expenses in proportion to their respective income and imputed income, 75% Respondent to 25% Applicant. As custodial parents they should only be required to contribute to expenses to which they agree, or which a court rules are necessary and affordable.

Communication between the parties

[15] The Applicant wants me to order that communication take place by use of a paid app called OurFamilyWizard. I do not think that it is necessary at this point. The Respondent has made regrettable remarks in communication between the parties. I accept that he regrets this and will not repeat it. He knows that it is not in his own interest to make such comments. The comments, even when obscene, struck me as offensive but not in the spirit of attempting domination or control. He did not strike me as that sort of person. But he is advised to exercise restraint.

[16] I do not propose to ask a second time for intervention by the Office of the Children’s Lawyer. They have already declined the invitation.

Summary of orders

[17] In addition to the orders set out in paragraph 8 a. to g., which are temporary orders, I make the following temporary orders:

a. Commencing June 1, 2016 the Respondent shall pay child support for the two children of the marriage at a rate of $1,599 per month, and 75% of extraordinary expenses incurred by the parties with each other’s consent; private school tuition is not included in this order.

b. The Respondent shall pay spousal support to the Applicant at a rate of $750 a month commencing June 1, 2016, without prejudice to determination of duration and amount of spousal support at trial.

c. A support deduction order will issue concerning the orders in paragraphs 15 a. and b.

[18] I also make the following final orders:

a. The Respondent shall pay the Applicant retroactive spousal support of $16,000 forthwith.

b. The trustee of those proceeds is directed to pay $42,000 to Witholt Arndt and $32,000 to the Applicant. Of the amount paid to the Applicant, $16,000 is on account of spousal support owed by the Respondent to the Applicant. If any amount remains, it shall be given in equal shares to the Applicant and the Respondent.

[19] Each party had some success. I doubt whether this is a case for costs.

J.A. Ramsay J.

Date: 2016-05-18