Lachance v. Campbell, 2016 ONSC 6551
OSHAWA COURT FILE NO.: FC-15-1949
DATE: 20161020
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Julie Lachance, Applicant
and
Herman Campbell, Respondent
BEFORE: The Honourable Madam Justice Woodley
COUNSEL: Michael Tweyman, for the Moving Party/Applicant
Erika Kalichman, for the Responding Party/Applicant
HEARD: October 6, 2016
REASONS FOR decision re RULING ON MOTION
Overview
[1] There are two motions before me which are interconnected and relate to the current unrest in the matrimonial home.
[2] The Applicant and Respondent separated in September of 2015 following 14 years of cohabitation.
[3] Since separation the parties have continued to reside with their two children, ages 12 and 9, in the matrimonial home but on two separate levels. The Applicant mother resides in the upper part of the home and the Respondent father resides in the bottom part in a self-contained apartment. The parties’ children reside between them in an informal shared parenting arrangement.
[4] Prior to separation there had been no involvement with either the police or CAS with this family. However, following separation the Applicant has made complaints and allegations to the police on three occasions and CAS have been involved.
Issues
[5] The motions before me are as follows:
i. The Applicant mother moves for:
Interim exclusive possession of the matrimonial home located at 13 Ravenscroft, Ajax, Ontario and its contents;
a restraining order;
sole custody of the children;
specified access for the Respondent limited to Thursday after school or otherwise for 3 hours and Saturdays from 9 am to 7 pm together with summer access which access was moot by the date of the hearing;
requirement that both parents take the children to their medical and legal appointments during their time;
requirement that neither parent access funds allocated to Hillary from the car insurance company for their personal use (which was agreed upon and not argued before me);
that the Applicant schedule all medical and legal appointments on behalf of Hillary;
for retroactive child support from September 2015 in the amount of $2,582.00 based on imputed income of $200,000.00 and the Child Support Guidelines;
requirement that the Respondent obtain a life insurance policy with a face value of $300,000 and designate the Applicant as the irrevocable beneficiary pursuant to s. 34(1)(k) of the Family Law Act; and
an order for costs on a full indemnity basis.
b. The Respondent father moves for:
Equalization of all net family property (this was not argued);
An Order that the Applicant purchase the Respondent’s interest in the matrimonial home at a propose price;
Alternatively, an Order that the Respondent purchase the Applicant’s interest in the matrimonial home at a proposed price;
In the further alternative, an Order pursuant to the Partition Act that the former matrimonial home be immediately listed for sale;
An Order for costs on a full indemnity basis; and
Such further and other – which evolved into a request that the OCL be sought to be appointment to provide an assessment regarding the custody and access issues.
Facts
[6] The Applicant Julie Lachance (“Julie”) and the Respondent Herman Campbell (“Herman”) commenced cohabitation in 2001, married on August 29, 2004 and separated on September 29, 2015.
[7] The parties have two children together namely Hillary-Lise, age 12, and Claire, age 9.
[8] The parties jointly own their matrimonial home located in Ajax, Ontario.
[9] Following separation Herman moved into the basement of the matrimonial home which contains an apartment (“the apartment”) and Julie remained in the upper part of the house (“the house”). The parties have shared the matrimonial home since separation but have remained (for the most part) in their own separate areas.
[10] The children have remained in the house and despite any access schedule that may have been established have been at liberty to move between their parents’ living spaces (without going outside) by utilizing a “swinging door” in the basement of the home that is generally left unlocked and allows for free access between the house and the apartment.
[11] Prior to separation the parties did not have any involvement of either the police or CAS. Since separation Julie has called the police on three occasions being October 7, 2015, January 26, 2016 and June 28, 2016.
[12] Despite the concern and allegations raised by Julie no charges have been laid relating to the complaints. Further, on the first occasion (October 7, 2015) Julie called the police in the midst of an argument with Herman regarding the sale of the home. Julie reported that Herman had allegedly committed a serious crime against another woman. That woman when contacted denied to the police that any such crime had been committed. On the second occasion (January 26, 2016) Julie called the police because she heard Herman in her area of the home. When the police attended Julie advised the police that she obtained a promise from Herman to remain downstairs. On the third occasion (June 28, 2016) Julie contacted the police to report that Herman had blocked in her car, at a time when road work was being carried out on the street and Herman was parked on the road behind the driveway. Prior to calling the police Julie did not request that Herman move the car from the driveway.
[13] Julie claims that following the October 7, 2015 incident the children spent more time sleeping in her bed in part because of fear of what Herman would do.
[14] Julie further claims that Herman has entered her home on several occasions and has removed papers and personal documents from her home. Julie alleges that Herman has invaded her personal space and cannot be trusted in the home.
[15] Herman claims that Julie has exaggerated the conflict between them to assist her claim for exclusive possession. Herman notes that Julie originally suggested that the parties resolve their differences through the sale of the home but has since changed her position and has attempted to manipulate the facts to have him removed from the home.
[16] Herman claims that he has never committed any of the acts that Julie alleges. Herman points out that he has no criminal record, does not abuse drugs or alcohol, and has no history whatsoever of any violent or criminal behavior. Further, Herman claims there has never been any instance of abuse throughout his relationship with Julie.
[17] Herman is greatly concerned that Julie continues to make defamatory statements against him, seeks to invoke fear of him in their daughters (by involving them in the litigation including telephone calls to the police) and claims that the daughters now sleep with her due to their fear of their father.
[18] Both Julie and Herman raised concern about the mental health and well-being of their daughter Hillary-Lise who has suffered as a result of the estrangement between her parents. At the hearing of the motion I was advised that both parents have consented to have Hillary-Lise participate in counselling and I applaud their cooperation in this regard.
The Law and Analysis
Exclusive Possession/Sale of Home – Primary Residence and Custody Issues
[19] All motions dealing with the residence the care and the control of children must be determined on the basis of the best interest of the children.
[20] With respect to the claim for exclusive possession, s. 24(3) of the FLA provides for the criteria for determination of whether to make an order for exclusive possession. Pursuant to s. 24(3) the court is to consider,
a. The best interest of the children affected;
b. Any existing orders under Part 1 (family property) and any existing support orders;
c. The financial position of both spouses;
d. Any written agreement between the parties;
e. The availability of other suitable and affordable accommodation; and
f. Any violence committed by a spouse against the other spouse or children.
[21] In considering best interests of a child the court is to consider the possible disruptive effects on the child to move to other accommodation and the child’s views and preferences if they can be ascertained.
[22] The mere preference of a spouse to remain in the home does not justify an order for exclusive possession and a joint tenant has a prima facie right to partition and sale that is not to be lightly interfered with.
[23] In the present case both parents are caring, interested, and capable. Similar to Lauro v. Lauro [1998] O.J. No. 2780 (Ont Dist. Ct.) although there is tension in the home it is not necessarily due to the living arrangements. The children may be able to manage well under the existing living arrangements if the accommodations were separated and appropriate parenting schedules established. There is no evidence of negative effect to parties or children if exclusive possession refused and there are no grounds which would otherwise displace the rights of the Respondent joint tenant.
[24] Request for exclusive possession is denied as the Applicant has failed to satisfy the criteria enumerated under s. 24(3) of the FLA.
[25] Notwithstanding my refusal to grant either party exclusive possession, I am extremely concerned with the level of discord that exists in the home. However, it is my opinion that the discord has been in part “created” for the purpose of the litigation. Based upon my review of the affidavit material, including the full response made by Herman, it appears that the parties are unhappy with the current situation and strife and conflict has arisen.
[26] I am not willing to disrupt the status quo and to limit the father’s interaction with his children based on the evidence which was argued before me.
[27] It is time that the parties put the best interest of their minor children (Hillary-Lise and Claire) as their first priority and end the “battle” between them.
[28] While it is often the case that cases of conflict require orders for exclusive possession, such an order is not necessary at this time given the fact that a separate apartment exists in the home that is able to be locked off form the other part of the home such that the parties can each reside in their own apartment and home without fear that their privacy is being invaded by the other party.
[29] As for the Applicant’s request that she be granted primary care of the children, the material filed, although extensive, contains no grounds upon which I would order primary care to the Applicant.
[30] The Applicant and the Respondent are both able parents who love and care for their children. The Applicant may have more experience with the day to day care of the children but this does not mean that the Applicant is therefore entitled to primary residence. There is no evidence or allegation that the Respondent father cannot properly care for the children on his own.
[31] The children Hillary-Lise and Claire are now 12 and 9 years of age and share a close bond with both parents. Both parents equally share the right to custody and primary residence. The parties have consented to a request that the Office of the Children’s Lawyer complete an assessment. The request has just been finalized and no assessment has occurred to date.
[32] It is my opinion that the children’s best interests are served by preserving the current custody and shared parenting arrangement pending completion of the current school year. This preservation of the status quo will minimize the disruption to the children and maximize contact with both parents. Further, the delay may allow the OCL (if the request is accepted) to complete their assessment with the current parenting regime in place. In this manner the legal test as set out by the Ontario Court of Appeal in Berry v. Berry, 2011 ONCA 705 and Woodhouse v. Woodhouse (1916), 1996 902 (ON CA), 29 O.R. (3d) 417 (C.A.) focusing on maximizing contact with both parents and minimizing disruption to the children is satisfied.
[33] Given the current state of the custody and access arrangements which I would describe as flexible and geared in the best interest of the children I have no intention of interfering with the status quo during this school year. However, once the school year has ended it will be time for the sale of the matrimonial home. It is my opinion that this result properly balances the best interests of the children with the parties’ prima facie right to receive partition and sale of their jointly held property.
[34] In the interim period pending the sale of the home, however, it is apparent that the parties require assistance to establish boundaries between their living arrangements and their communication so that they may engage in respectful conduct, language and behavior with one another for the sake of their children.
Child Support
[35] I have reviewed the affidavits of the parties and the financial statements filed. I note that Herman is self-employed at a company owned 100% by him and claims income of $42,000. Julie is a T4 employee and reports income of $93,317.00.
[36] Julie seeks an order that I impute income to Herman well in excess of that claimed to have been earned by him.
[37] Section 19 of the Child Support Guidelines explicitly permits a court to impute income based on a failure to provide disclosure while under a legal obligation to disclose.
[29] The self-employed have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See: Meade v. Meade (2002) 2002 2806 (ON SC), 31 R.F.L. 5th 88 (SCJ).
[30] The onus rests upon the parent seeking to deduct expenses from income to provide meaningful supporting documentation in respect to those deductions, failing which an adverse inference may be drawn. See: Orser v. Grant, [2000] O.J. No. 1429 (S.C.J.).
[31] As the father is the sole shareholder of the business, s. 18 of the Child Support Guidelines gives the court discretion to attribute some or all of the pre-tax income of a corporation to the shareholder, director or officer personally or, in the alternative, to attribute an amount less than or equal to the pre-tax corporate income that is commensurate with the services that the parent provides to the corporation. Section 18 provides:
[32] Whenever s.18 comes into play the onus is on the shareholder, director or officer to show that corporate monies, whether retained earnings or pre-tax corporate income, are not available for support purposes: Nesbitt v. Nesbitt, 2001 MBCA 113, [2001] M.J. No. 291 (C.A.), paras. 19 & 21; Hausmann v. Klukas, 2009 BCCA 32, [2009] B.C.J. No. 121 (C.A.) 32, paras 51-61. The reasoning is due to the reality that the payor parent knows more about the business than the recipient, and is therefore in the best position to explain why some or all of the company’s pre-tax income is not available for support. Elder v. Dirstein 2012 ONSC 2852.
[33] In the present case, I find that it appropriate to impute income to Herman of that amount indicated on his corporate documents as “wages paid to shareholder” totaling $50,000.00 together with certain expenses relating to his vehicle for a total imputed income of $93,317.00.
[34] I have imputed income to Herman based on the financial documents filed on the motion. However, it is impossible to determine with any certainty as to the actual amount of income that should be imputed to Herman (above the $50,000 paid to shareholder) at this time. Further financial disclosure will need to be exchanged between the parties to establish a more accurate determination of Herman’s actual income for support purposes.
[35] For the purposes of this motion on the current and proposed custody and access arrangement, I find that it is appropriate to maintain the status quo such that each party continue to pay the expenses paid and shared by them to date and that no child support be payable at this time.
[36] As no child support has been ordered there shall be no ruling regarding Julie’s request that Herman obtain life insurance to secure the support obligation.
Determination of Issues: Terms of the Temporary Without Prejudice Order
[37] For the reasons detailed above, and following review of the extensive material filed and upon hearing the submissions of counsel I hereby Order on a temporary without prejudice basis as follows:
a. With respect to the relief requested by the Applicant:
The Applicant mother shall be granted exclusive possession of the top part of the matrimonial home and the Respondent father shall be granted exclusive possession of the bottom part (separate apartment) of the matrimonial home. The swinging doors which are located in the basement shall be secured and/or replaced so that no party may access either the basement apartment or the upstairs living area without use of a key. Both parties shall take immediate steps to change the locks on their separate living spaces and shall share equally in the cost to secure and/or replace the swinging basement doors to secure the separate residences.
The Applicant’s request for a restraining Order is denied. However, both parties shall limit their communication to issues regarding the health and welfare of their children including custody and access arrangements, medical and legal appointments, schooling and any other issues including the physical and mental health of the children and any other communication that is necessitated by this litigation. Both parties shall at all times respect each other’s private living space and shall not enter the living area of the other for any reason nor shall they allow any guest (including the Respondent’s two older children) to enter the living space of the other party. Both parties shall otherwise not harass or attempt to intimidate the other party.
The Applicant and Respondent shall share joint custody however, the Applicant mother shall be charged with the responsibility to make any major decisions relating to medical care of the children and shall be the party to schedule all medical and legal appointments. The Applicant mother shall be required to inform the Respondent father of all medical and legal appointments by email or otherwise in writing the day that such appointments are set.
On a temporary basis during the time period that the parties share exclusive possession of the matrimonial home the Applicant and Respondent shall share primary residence with the children as follows:
a. The children will sleep in the mother’s portion of the home in their respective bedrooms;
b. On Mondays, Tuesdays and Wednesdays, whoever gets home first cares for the children and when both parties are home the children will be with the Applicant on the first occurrence and the Respondent on the second occurrence, and alternating each time thereafter. The parties shall subscribe to Our Family Wizard and shall access the family calendar to ensure that the dates and times of the alternating access are recorded and shared without dispute;
c. On Thursday evenings the children are with the Respondent until 7 pm or such time at the Applicant returns home, whichever is later;
d. On Friday evenings the children are with the Applicant;
e. On Saturdays the children are with the Respondent from 9 am to 7 pm; and
f. On Sundays the children are with the Applicant.
The parties shall communicate via Our Family Wizard and shall cooperate with each other regarding their schedules and care of the children. In the event either parent is unable to care for the children on their scheduled date the other parent shall be provided the first right to care for the children.
Once the parties no longer share exclusive possession of the matrimonial home the access arrangements will require amendment and the parties shall seek to reach an agreement with respect to such access on or before June 1, 2016, failing which a motion can be brought to determine access arrangements for the period following the shared period of exclusive possession.
Both parents shall take the children to their medical and legal appointments during their access time (but shall not attend the appointment together unless they agree or are requested to attend by the professional);
Neither parent shall access funds allocated to Hillary from the car insurance company for their personal use;
The Applicant mother shall schedule all medical and legal appointments on behalf of Hillary and shall advise the Respondent father of the dates of such appointments in writing through Our Family Wizard the date that such appointments are made with the professional;
The issue of retroactive child support from September 2015 is reserved to the trial of this matter. During the period of the shared exclusive possession of the matrimonial home the Respondent father shall continue to contribute the sum of $1,710.75 per month to the household and related expenses. No child support shall be payable during the period of share exclusive possession based on the Respondent father’s income being imputed to $92,318.00;
The Respondent shall not be required to obtain a life insurance policy with a face value of $300,000 with the Applicant designated as the irrevocable beneficiary pursuant to s. 34(1)(k) of the Family Law Act;
Subject to any offers to settle which would otherwise affect the issue of costs, each party shall bear their own costs of the motion.
b. With respect to the relief requested by the Respondent:
The issue of equalization of all net family property was not argued at the motion and I make no ruling in this regard;
There shall be no Order that the Applicant purchase the Respondent’s interest in the matrimonial home;
There shall be no Order that the Respondent purchase the Applicant’s interest in the matrimonial home;
There shall be an Order pursuant to the Partition Act that the former matrimonial home be listed for sale on or before June 15, 2017, with a closing date no earlier than July 1, 2017;
Subject to any offers to settle which would affect costs, each party shall bear their own costs of the motion; and
This Court will request an assessment to be complete by the Office of the Children’s Lawyer and counsel shall cooperate in preparation of the Order for my signature.
[38] The Motion of the Applicant and the Motion of the Respondent are hereby disposed of in accordance with the terms noted above. If either of the parties has served an offer to settle that would affect costs, such party may serve and file costs submissions within 15 days of today’s date and the response shall be filed within 20 days of today’s date. Any reply shall be served and filed within 25 days of today’s date. No submissions shall exceed three pages (plus a bill of costs attached).
Justice S. J. Woodley
Released: October 20, 2016
CITATION: Lachance v. Campbell, 2015 ONSC 6551
OSHAWA COURT FILE NO.: FC-15-1949
DATE: 20161020
ONTARIO
SUPERIOR COURT OF JUSTICE
Julie Lachance
Applicant
and
Herman Campbell
Respondent
ENDORSEMENT
The Honourable Madam Justice S.J. Woodley
DATE RELEASED: October 20, 2016