Court File and Parties

Court File No.: FS-14530-16 Date: 20160912 Superior Court of Justice - Ontario

Re: Carolyn Nora-Jean Jackson, Applicant And: Derek James Jackson, Respondent

Before: The Honourable Mr. R. Raikes

Counsel: G. McFadyen, for the Applicant M. Simpson, for the Respondent

Heard: September 8, 2016

Endorsement

[1] The parties married on June 13, 1998. They separated January 24, 2016 although they both continued to reside in the matrimonial home. The Respondent moved to the basement until he moved out of the matrimonial home on May 16, 2016. He now resides with his parents.

[2] The Applicant mother works part-time as a bookkeeper. She earned $15,259 in 2015. The Respondent father is employed by I.B.E.W. as an electrician. He earned $100,759 in 2015 less union dues of $3,892 which leaves gross income for child support purposes of $96,867.

[3] The parties are the parents of five daughters:

1. Becka Marie Jackson born April 6, 2000
2. Marley Adriana Jackson born November 18, 2003
3. Josie Isabella Jackson born November 18, 2003
4. Ella Julianne Jackson born November 23, 2005, and
5. Tessa Meredith Jackson born November 23, 2005.

[4] Becka is now 16 years old and attends high school. Marley and Josie are twins who will be 13 years old in November. They and their younger twin sisters, Ella and Tessa, attend an elementary school approximately 200 metres from the home of their paternal grandparents.

[5] All five girls are very active in sports and extra-curricular activities. They play competitive hockey. Mr. Jackson is a coach of Marley and Josie’s team. At my request, counsel consulted their clients and provided to me a schedule of the girls’ after school sports commitments as they are known at this point in time. I am advised that there will be a hockey meeting later this month which may result in a change to the playing schedule for some or all of the girls’ teams.

[6] The schedule provided shows the following: a. Mondays – the children have no commitments b. Tuesdays- Becka has work from 4 p.m. to 6:30 p.m., then hockey from 7 p.m. to 10 p.m., and Ella and Tessa have hockey from 8 p.m. to 9 p.m. c. Wednesdays- Josie and Marley have hockey from 8 p.m. to 9 p.m. d. Thursdays- Becka has hockey from 5:30 p.m. to 6:30 p.m., Ella and Tessa have hockey from 5:30 p.m. to 6:30 p.m., and Josie and Marley have hockey from 7 p.m. to 8 p.m. e. Fridays- Becka works from 3:30 p.m. to 7:30 p.m. f. Saturdays- Ella and Tessa have hockey from 3 p.m. to 4 p.m., and Josie and Marley have hockey from 4 p.m. to 5 p.m. g. Sundays- Becka works from 10 a.m. to noon and has hockey from 2:30 p.m. to 4 p.m.

[7] This schedule does not include travel time to games out of their home community, nor does it include tournaments which occur at various times through the hockey season.

[8] Some of the girls are also involved in school sports like volleyball and basketball when those teams are active.

[9] The children reside with the Applicant mother in the matrimonial home and have since the Respondent father moved out in May, 2016. The matrimonial home has four bedrooms upstairs. Becka has her own room. Josie and Marley share a bedroom as do Ella and Tessa.

[10] As mentioned, the Respondent father is presently living with his parents. The Applicant contends the grandparents’ home has three bedrooms. The Respondent indicates that it has four bedrooms. In any event, the Respondent wishes to either sell or be bought out of his interest in the matrimonial home so that he may acquire a new home that will have sufficient bedrooms for the girls to stay overnight.

[11] On separation, the parties worked together to ensure that the girls got to their summer activities such as soccer. The parties own two vehicles, one of which is a van that they use to transport the girls and their equipment. They switched vehicles as needed for the occasion. As a result, until July, 2016, the Respondent saw one or more of his children every day.

[12] The Applicant mother deposes that after he left the matrimonial home on May 16, 2016, the Respondent returned to the home unannounced multiple times to remove things. Their interactions became more conflicted until one day, he tried to lock her out of the house. Police were called to the matrimonial home in July, 2016 to deal with that incident.

[13] The Respondent disputes the Applicant’s version of the event which led to police being called, and contends that they were working together cooperatively to care for the children until the Applicant engaged legal counsel. She took money from their joint account to pay his retainer which in turn led to the Respondent’s decision to close the account. Suffice to say, the tension between them has ratcheted up over the summer.

[14] The issues before me are:

1. Appointment of the Office of the Children’s Lawyer to ascertain the wishes of the children (on consent)
2. Interim care and access
3. S. 7 expenses
4. Interim possession of the matrimonial home and contents/sale of the matrimonial home, and
5. Child support and ancillary relief.

Interim Care and Access

[15] The Applicant deposes that she has been the primary caregiver for the children since birth. She works only part-time because of that commitment. The Respondent works full-time including over-time. She deposes that the children do not wish to live with their dad and wish to continue to live with her. Moreover, she asserts that the accommodation available for the children at his parents’ home is inadequate for the five girls, the Respondent and his parents.

[16] The Respondent seeks to share parenting with the Applicant on an equal basis. He asks that the children split their time living with each parent as their respective schedules permit. He asserts that he has flexibility at work to start a little later in the morning to see the children off to school. He is finished work on Fridays at 11:30 a.m. and otherwise works steady days during the week. His parents’ home will allow the children exactly the same sleeping arrangements they have at home; viz. each set of twins will share a bedroom and Becka will have her own room.

[17] I agree with the parties that the Office of the Children’s Lawyer should be asked to provide a report as to the wishes of the children. I have signed the necessary order for that purpose.

[18] The interim care and access arrangements are determined by the best interests of the children.

[19] I am satisfied on the evidence before me that the parties should share the care of the children with primary residence with the Applicant mother. They have demonstrated an ability to coordinate and cooperate to ensure the children get to their activities. Both are involved, loving parents.

[20] In my view, primary residence should be with the Applicant mother for the following reasons:

1. She has been the primary caregiver for the girls since birth. That is not to say that the Respondent father has not also being a caregiver involved with the children. Rather, it simply recognizes that as between the two parties and the roles that both assumed within the marriage, the Applicant bore greater day-to-day responsibility for attending to the needs of the children;
2. The Applicant works part-time while the Respondent is employed full-time with the potential for over-time as needed;
3. The Respondent is presently residing with his parents in what he hopes is a temporary arrangement; and
4. The children have been residing principally with the Applicant since the Respondent moved out in May, 2016. They are in an environment that is comfortable and familiar to them which is best during this period of transition.

[21] In determining the care/access schedule below, I have considered the currently known hockey/work schedules for the girls. If that schedule changes, I expect the parties to adjust accordingly consistent with the spirit of the following: a. Becka shall reside in the Applicant’s care and shall have access with the Respondent as she wishes. Becka is 16 years old, going to school, working, playing hockey etc.. She is clearly a responsible and busy teen and is by all accounts able to work out with her father when they spend time together. b. As for Josie, Marley, Ella and Tessa, they will be in the Respondent’s care, i. on alternating weekends commencing September 16, 2016 from after school on Friday to the start of school on Monday; ii. Josie and Marley- from after school on Wednesdays until school starts on Thursday; iii. Ella and Tessa- from 5 p.m. to 9:30 p.m. [after hockey] on Tuesdays. c. If Mother’s Day falls on a weekend when the children are with the Respondent, they will nevertheless spend from 9 a.m. to 6 p.m. with the Applicant; d. Likewise, if Father’s Day falls on a weekend when the children are with the Applicant, they will nevertheless spend from 9 a.m. to 6 p.m. with the Respondent; e. Items d and e apply equally to the birthday of either parent if it falls on a weekend where the children are in the care of the other parent; f. For the Christmas holidays, the schedule will be suspended and the following will apply: a.) in even numbered years, the children will be with the Applicant on December 24 and 25, and with the Respondent on December 26 and 27; b.) in odd numbered years, the children will be with the Respondent on December 24 and 25, and with the Applicant on December 26 and 27; c.) the balance of the Christmas school break will be divided equally as the parties may agree; g. For school March Break, the schedule will be suspended and the parties will divide the days equally.

[22] Nothing in the above schedule should be construed as limiting or preventing the parties from agreeing to vary the schedule to meet their needs and those of the children.

[23] Both parties agreed at the hearing of the motion and I further order that:

1. Neither party will denigrate the other to the children or allow any third party to do so in the presence of the children; and
2. Neither party will discuss adult issues, including custody and access, support or equalization of net family property with the children.

[24] For greater certainty, I note that “not discussing adult issues” includes not allowing the children to see any papers pertaining to the issues in this case including but not limited to court papers and legal correspondence. The children are to be encouraged to have a positive relationship with the other parent.

Child Support

[25] Counsel for the Applicant mother provided a DivorceMate calculation based on the incomes of the parents above, five children and primary care to the Applicant. That calculation shows the Guideline child support payable by the Respondent to the Applicant is $2,422 per month based on his income at $96,867.

[26] Therefore, the Respondent shall pay to the Applicant the sum of $2,422 monthly commencing October 1, 2016 for child support for the children Becka Marie Jackson born April 6, 2000, Marley Adriana Jackson born November 18, 2003, Josie Isabella Jackson born November 18, 2003, Ella Julianne Jackson born November 23, 2005, and Tessa Meredith Jackson born November 23, 2005.

[27] As a consequence of the child support payable, the calculation provided shows no spousal support payable and the Applicant does not seek spousal support at this time.

[28] Since leaving the matrimonial home, the Respondent has been paying the mortgage which includes municipal taxes, property insurance, vehicle insurance for both vehicles and some of the other monthly expenses for the home in lieu of child support. He pegs the monthly expenses at approximately $1,900-2,100. Once he begins to pay child support in the amount specified above, the Applicant agrees that she will assume those expenses except for his vehicle insurance.

[29] The Respondent should therefore pay the household expenses that he has been paying until September 30, 2016 and, thereafter, he will pay child support of $2,422/month.

S. 7 Expenses

[30] At the motion, both parties advanced that s. 7 expenses should be proportionate to their respective incomes as is customary. I calculate their respective contribution to s. 7 expenses as 86% by the Respondent and 14% by the Applicant.

Possession of Home/Sale of Home

[31] The Applicant seeks an interim order for exclusive possession of the matrimonial home and its contents. She argues that this is the only home the children have known and is needed for their care. The Applicant also took the position that she expected to be entitled to a significant amount through equalization of the Respondent’s pension. She wants the opportunity to offset all or part of that entitlement against the Respondent’s interest in the matrimonial home. Her counsel indicated that she has not yet received a copy of the pension valuation although it was ordered some time ago.

[32] Counsel for the Respondent advised the court that a copy of the pension valuation statement was sent to the Applicant’s counsel in July, 2016. He advised the court that her share of the Respondent’s pension is $79,035.22. He agreed to provide a further copy of the valuation to Mr. McFadyen.

[33] Counsel for the Respondent also indicated that the parties have obtained an informal estimate of value of the matrimonial home from a RE/MAX agent who estimated the fair market value of the property at approximately $389,000. There is currently approximately $180,000 owing on the mortgage. Allowing for commission and closing costs, there would appear to be in the neighbourhood of $200,000 in equity to be divided between the parties. This was not disputed by the Applicant’s counsel.

[34] It is evident that the Applicant’s share of the Respondent’s pension is inadequate to fund the purchase of his interest in the matrimonial home even if he were willing to engage in that trade-off.

[35] The Applicant’s Financial Statement sworn July 28, 2016 estimates her yearly expenses at $86,532 which works out to $7,211 per month. The expenses that she has calculated include the mortgage, property insurance, utilities, some of which have been borne by the Respondent to date. Her stated income from all sources before payment of child support is only $1,914 per month. Even when child support is added to that figure, there is a significant monthly shortfall between cash coming in and cash going out. I am at a loss to understand how she proposes to carry this burden.

[36] The Respondent seeks an order requiring the Applicant to commit within 20 days to buy out his interest in the matrimonial home or, failing that, the property be listed for sale.

[37] I am prepared to give the parties a short window for that purpose – 45 days. It seems to me unfair to require that the Respondent bear the risk that the mortgage will go into default and his equity diminished. Likewise, it is unfair to the Respondent to deprive him of the opportunity to realize upon his equity to acquire new premises with suitable accommodation for the children when they are staying with him.

[38] If the parties cannot reach an agreement by which the Respondent’s interest in the matrimonial home is to be acquired by the Applicant within the next 45 days, then the property shall be listed for sale with a mutually agreed-upon realtor. If the parties cannot agree on the listing terms or realtor, they may return to court for directions; however, it should be noted that if it is shown that one party or the other is being unreasonable in this regard, he or she bears the risk that his or her ultimate proceeds from the sale will be diminished by a costs award.

[39] Pending disposition of the matrimonial home, the Respondent will not enter on the premises except for the purposes of picking up or dropping off the children, to exchange vehicles for transporting the children as needed or at the invitation of the Applicant. Simply put, the Applicant and children will have quiet possession of the matrimonial home during this interim period up to the date of sale.

[40] With respect to the contents of the matrimonial home, the Respondent advises that he has a drum set which belongs to him that is still in the matrimonial home. He attended at the property several times since May and took most of his personal belongings. There are other items that are jointly owned which he did not remove but would like. Counsel suggested and I agree that it makes sense for the parties to exchange lists of contents and try to work out a division and/or valuation.

[41] I see no need at this stage to make an order with respect to possession of contents given that the parties are represented by counsel and counsel have expressed a willingness to address this issue in the manner indicated and through discussion.

Ancillary Relief

[42] The parties also agreed to the following ancillary interim relief:

1. The Respondent shall designate the Applicant and children as beneficiaries of his health and fringe benefits; and
2. The Respondent shall designate the Applicant as the sole beneficiary of his life insurance policy or policies for so long as he is over obligated to pay support.

[43] The Applicant sought an order requiring the Respondent to designate her as the beneficiary of his pension plan. This is opposed as unnecessary. I decline to make the order requested, but in doing so, I am relying upon the good faith assurance made by the Respondent through his counsel that this designation is unnecessary; viz. he will not do anything concerning his pension that will prejudice the Applicant until equalization of net family property is resolved.

Conclusion

[44] In summary, I order that:

1. Leave is granted for this motion to proceed in advance of a case conference being held;
2. The parties will share care of the children Becka Marie Jackson born April 6, 2000, Marley Adriana Jackson born November 18, 2003, Josie Isabella Jackson born November 18, 2003, Ella Julianne Jackson born November 23, 2005, and Tessa Meredith Jackson born November 23, 2005 with primary residence of the children to be with the Applicant.
3. The Respondent shall have access/care of the children as follows: a. Becka shall reside with the Applicant and shall have access with the Respondent as she wishes. b. As for Josie, Marley, Ella and Tessa, they will be in the Respondent’s care, i. on alternating weekends commencing September 16, 2016 from after school on Friday to the start of school on Monday; ii. For Josie and Marley, from after school on Wednesdays until school starts on Thursday; iii. For Ella and Tessa, from 5 p.m. to 9:30 p.m. [after hockey] on Tuesdays. c. If Mother’s Day falls on a weekend when the children are with the Respondent, they will nevertheless spend from 9 a.m. to 6 p.m. with the Applicant; d. Likewise, if Father’s Day falls on a weekend when the children are with the Applicant, they will nevertheless spend from 9 a.m. to 6 p.m. with the Respondent; e. Items d and e apply equally to the birthday of either parent if it falls on a weekend where the children are in the care of the other parent; f. For the Christmas holidays, the schedule will be suspended and the following will apply: a.) in even numbered years, the children will be with the Applicant on December 24 and 25, and with the Respondent on December 26 and 27; b.) in odd numbered years, the children will be with the Respondent on December 24 and 25, and with the Applicant on December 26 and 27; c.) the balance of the Christmas school break will be divided equally as the parties may agree; g. For school March Break, the schedule will be suspended and the parties will divide the days equally.
4. Neither party will denigrate the other to the children or allow any third party to do so in the presence of the children.
5. Neither party will discuss adult issues, including custody and access, support or equalization of net family property with the children.
6. The Respondent shall pay to the Applicant the sum of $2,422 monthly commencing October 1, 2016 for child support for the children Becka Marie Jackson born April 6, 2000, Marley Adriana Jackson born November 18, 2003, Josie Isabella Jackson born November 18, 2003, Ella Julianne Jackson born November 23, 2005, and Tessa Meredith Jackson born November 23, 2005.
7. The Respondent shall pay the household expenses for the matrimonial home and vehicle insurance that he has been paying to September 30, 2016.
8. If the parties cannot reach an agreement by which the Respondent’s interest in the matrimonial home is to be acquired by the Applicant within the next 45 days, then the property shall be listed for sale with a mutually agreed-upon realtor. If the parties cannot agree on the listing terms or realtor, they may return to court for directions.
9. Pending disposition of the matrimonial home, the Respondent will not enter on the premises except for the purposes of picking up or dropping off the children, to exchange vehicles for transporting the children as needed or at the invitation of the Applicant.
10. The Respondent shall designate the Applicant and children as beneficiaries of his health and fringe benefits.
11. The Respondent shall designate the Applicant as the sole beneficiary of his life insurance policy or policies for so long as he is over obligated to pay support.
12. This matter is adjourned to a case conference to be scheduled by the Trial Coordinator.
13. If the parties cannot agree upon costs, they may make written submissions not to exceed 3 pages within 15 days.

“Original signed by Raikes, J.” The Honourable Justice R. Raikes Date: September 12, 2016