ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CYNTHIA L. FINDLAY
Applicant
– and –
ASHBURN FINDLAY
Respondent
T. Ross, for the Applicant
T. Simpson, for the Respondent
HEARD: November 10, 2016
RASAIAH J.
REASONS ON MOTION
OVERVIEW
1The Respondent, Ashburn Findlay, brought a motion September 8, 2016, returnable September 15, 2016, which included a request for an order returning possession of the matrimonial home to him and other relief. It is located at Tab 7 of Volume One of the Continuing Record.
2Today he advised he was seeking an order granting/returning to him, exclusive possession of the matrimonial home, and an order to stop or reduce spousal support. I advised that I was not prepared today to hear the spousal support relief, and that given my last endorsement, my understanding was that the urgent issue to be decided today was the issue of the matrimonial home. I advised that I would only deal with the return of the home contemplated by the last endorsement and if there was time to address the spousal support we would do so. It was appropriate in my view to address the home first as the spousal support relief being requested would be affected potentially by the outcome of the motion regarding the matrimonial home.
3The Applicant, Cynthia Findlay, opposed the relief requested and is asking that it be dismissed.
BACKGROUND
4The parties were married for 27 years. They separated May 2, 2015. They have three children together, two of whom are adults and living independently and the third is deceased.
5Upon separation, the Applicant moved out of the matrimonial home. The Respondent remained in the home.
6The Applicant issued an application February 19, 2016 against the Respondent for spousal support, equalization, sale of family property, medical and dental coverage, an order requiring that the Respondent have his pension valued, an order that the Respondent maintain the matrimonial home in showing condition and make the home available for showings, and costs.
7The Respondent did not file an Answer, although served personally with the Application.
8The Applicant brought a motion returnable June 9, 2016 for financial information because the Respondent had not filed an Answer. He attended court that day and had the assistance of duty counsel. I made an order requiring him to file a financial statement and to obtain a value of his pension within a specified time period. This particular motion had been served by regular mail to the matrimonial home.
9Prior to the within motion the Applicant brought a second motion which is located at Tab 5 of Volume One of the Continuing Record which was returnable June 23, 2016. The affidavit of service indicates service by mail to the matrimonial home. In that motion, amongst other relief, the Applicant was seeking immediate exclusive possession of the matrimonial home. At this point in time the Respondent still had not filed an Answer or any other materials.
10The motion came before Justice Varpio on June 23, 2016. His endorsement indicates the following: Mr. Findlay did not answer the claim ergo, no need for service on him. Nonetheless, he was served. He did not appear ergo motion at tab five granted. Relief sought at paragraphs 1 through 8 granted. Cost of $600 payable by Respondent forth with.
11Justice Varpio made a subsequent spousal support order June 29, 2016 requiring the Respondent to pay $2,000 per month to the Applicant.
12The June 23, 2016 order was subsequently taken out. The order provided the following:
a. leave was granted to serve and file the motion materials prior to a case conference being conducted;
b. leave was granted to argue the within motion prior to a case conference being conducted;
c. leave was granted to proceed with the motion;
d. leave was granted for short service of the motion;
e. the matrimonial home located at 123 Kohler Avenue Sault Ste. Marie Ontario was to be listed for sale by August 1, 2016 for the list price of $200,000;
f. the Respondent was to sign all required documents required by the realtor to list the said property;
g. the Applicant would have immediate exclusive possession of the matrimonial home and the Respondent is to refrain from attending there without the Applicant’s expressed written permission or further order of the court.
h. the Respondent was to pay the sum of $1000 each month to the Applicant for the outstanding mortgage payments and with that money the Applicant was to be responsible for making the mortgage payments each month commencing July 1, 2016.
i. Costs of $600 payable by the Respondent.
13The Respondent did not comply with the Order I made June 9, 2016. A financial statement was ultimately filed on or about September 8, 2016. The pension valuation is still outstanding.
14The Respondent has now filed an answer October 28, 2016.
ISSUES AND ANALYSIS
15The Respondent argues that I could and should exercise my discretion to change the order of Justice Varpio dated June 23, 2016 because it was made without notice, or in the alternative, if I find it was made with notice, that the Respondent was not present when the order was made because the notice was inadequate or he was unable to for a reason satisfactory to the court to be present. He relies on Sub-rules 25(19)(d) and (e) of the Family Law Rules, O. Reg. 114/99, as. am. (“Rule” or “Rules”, accordingly)
16The Respondent takes issue with being served at the matrimonial home when the contents of the affidavit of the Applicant that was filed in support of the said motion indicates that he had abandoned the home. On this basis, with the Applicant asserting this, she and/or her counsel ought not to have served the motion in this fashion, and as such it does not constitute service with notice because of this fact.
17I do not give effect to the argument that the motion was not served with notice.
18I do not feel I need to address the argument that given that the Respondent had not filed an answer, according to the Rules, the Applicant was permitted to ask that the court deal with the motion in his absence. The fact of the matter is, in this particular case, the Applicant chose to serve the Respondent anyway. I am satisfied that she served the motion with notice and that she did so by regular mail to the matrimonial home in accordance with the rules and the Respondent had not provided any other address for service.
19There is an affidavit of service of Samantha Holmberg, legal assistant, June 13, 2016 indicating that the said motion was served that day by regular mail at 3:05 p.m., which service is permitted by and in accordance with the Rules.
20Was it inadequate notice based on the claim of the Applicant that the home was abandoned and she knew he was not living there? I have a difficult time with this argument in the face of the Respondent’s own affidavit material setting out that he was in fact living at the matrimonial home at the time even though he said that he was out of town June 23, 2016 with his girlfriend at a medical appointment and staying with her from time to time because of how she was feeling. Further, I am not satisfied that the Respondent has established that the Applicant attended the matrimonial home and removed the motion materials from the mail. Text messages filed seem to indicate that the Applicant encouraged the Respondent to participate in the proceeding and he was choosing not to. She chose to serve him with the motion, when she could have asked the court to deal with the matter in his absence for failure to file an Answer.
21Was it inadequate for any other reason? I am satisfied the answer is no. It was sent out in the mail ten days prior to the return date.
22Am I satisfied he was unable to be present for a satisfactory reason in all of his explanations as to what he said caused him to miss the date? He indicates that he was in Sudbury for a medical appointment concerning his girlfriend, who was diagnosed with terminal cancer. It is confirmed he was. So, yes, I am satisfied.
23Should I exercise my discretion to change the order as a result and give the Respondent exclusive possession of the matrimonial home? I am not satisfied on the evidence that I should change exclusive possession of the matrimonial home for the following reasons.
24The Respondent stated he was essentially homeless and suggested that after his expenses he was left with $200 a month, an insufficient amount to secure a residence and to feed himself.
25I am not satisfied based on the evidence filed that the Respondent is unable to financially secure a residence for himself and feed himself with the income and obligations he currently has.
26The Respondent asks me to accept that his monthly income is $8,660. I do not accept that it is. He has a history of working overtime, and in fact, his recent paystub filed today as an exhibit, demonstrates that he has earned overtime. His year to date income ending October 31, 2016 is $109,867.72. This averages over ten months to be $10,987 per month. There is no evidence that overtime is not available or that he will not continue to be offered it or that he cannot continue to work overtime. He made $115,986 in 2013, $118,520 in 2014, and $109,466 for 2015.
27The Respondent says he has $1200 month for debts he is responsible for. He has not seen a credit counsellor. He has not made an assignment in bankruptcy. He was contemplating bankruptcy but did not say why he has not proceeded with this and/or at the very least, sought credit counselling to determine if he could reconsolidate and reduce his debt to a manageable monthly payment.
28His expenses: the mortgage is approximately $1,226 per month now with taxes included; $120 per month for property insurance; vehicle expenses he indicated are approximately $1,037 per month; his spousal support is $2,000 per month; other debt as stated above is approximately $1,200 per month: Citi-financial; Easy-financial and Canadian Tire; plus he has source deductions he claims of approximately $2,400 per month using the paystub figures he requested that I consider. Based on the documents filed, I believe it to be closer to $3,000 annually. This amounts to $8,583. Against the monthly income, set out above, $2,404 is left for food and lodging and entertainment expenses. He claims approximately $480 for housing expenses (including meals outside of the home and laundry); $180 for cellphone, cable and internet, and $150 for clothing, hair and entertainment. This amounts to $790. This still leaves $1,614 to find lodging in Sault Ste. Marie for one person. If he needed his alcohol and tobacco expense of $150, there may still be enough, in my view, to find alternate accommodations in Sault Ste. Marie for one person. The Respondent did not file any evidence to satisfy me otherwise.
29Further, there is no evidence of any steps that the Respondent has taken to seek to reduce tax payable at source by his employer because he is or will be paying a spousal support order. If he proceeds with such steps, this could leave him with more disposable income monthly, given his tax bracket and the amount of the spousal support.
30Further, I accept that the material filed by both parties, and the history, despite the Respondent’s explanations for what happened and why, establishes that this is a situation where true concern exists for the preservation of one of the only two major assets the parties have an interest in, the other being the Respondent’s pension. His explanations relate to financial and emotional issues and caregiving responsibilities. While I appreciate his explanations, given his girlfriend’s affidavit concerning the state of her health and that her cancer is not curable, I am not satisfied that the Respondent is out of the situations he found himself during the times he has not met his financial obligations and/or the care of the house.
31I am also not satisfied that his affairs are in order as he claims. It appears from the documents filed by the Applicant that although the Respondent claims that he will pay his debts and meet his obligations, that there is a long standing history of inability to and/or failing to attend to paying his obligations. There are mid-2016 notices from creditors and the credit bureau filed. There are some from 2015. He has filed for bankruptcy already twice. The tax arrears stem from 2013. I appreciate that he claims he was going to have a plan to pay the tax arrears with a tax refund related to payment of spousal support, but the bottom line is that it accumulated long before that and was not taken care of once his plan to pay it did not come to fruition. There was a simple solution which the Applicant attended to, namely adding the taxes to the mortgage. Finally, he has not filed sufficient documents to satisfy me that his current debts he says are current are actually current.
32The Respondent’s attitude, that being said is encouraging and I hope that he in fact does seek to get his finances in order as he is stating he will. But again, the fact of the matter is that the history includes the power being shut off more than once at the matrimonial home, an unclean home, the property not being cared for, the City issuing a notice for outside home maintenance, other bills not being paid including significant tax arrears, garbage piled at the back door, the back door being left unlocked, no electricity or running water, rotten food in the fridge and infestation of flies and dirty dishes in the sink. Even today, he submitted that a bill with Reliance of $1,045 was the Applicant’s. From the document filed, the majority of the account arises from the time he had possession of the home.
33I am also not satisfied that the Respondent was truly living in the home. I understand his explanations, but the bottom line is that he stopped there from time to time or stayed there from time to time even based on his evidence. This is supported by his son’s affidavit and his son has been living there for some time. The Applicant herself found that most of his clothing and toiletries were gone and the bedroom seemingly not in use.
34The Applicant states that she is living in the home part-time and that the parties’ son lives there without paying rent. The Applicant is at the home daily and pays the bills for the home and her grandchild is with her and stays with her at the home during this time.
35The fact that the parties’ son is residing at the home should not be taken as a factor for my decision. The son is an adult and there is no reason why he could not live elsewhere.
36Further, the Applicant does not deny that she has other accommodations she could and does live at, but her objection is not predominantly related to needing to reside in the home. She in fact willingly left the Respondent to reside in the matrimonial home at separation. Her bigger issue is that she has very little assets and as stated, she wishes this one to be preserved and states it won’t be if the Respondent is permitted to return to the home. Right now, I am told that if the home sells for list price, there is approximately $18,000 in gross equity. There would have been approximately $11,000 more had the taxes been paid.
37Further, the house is listed for sale. It has been listed before and the Applicant says she has had to in the past attend before viewings to clean it and make it presentable when the Respondent was residing there. Also, since getting the June 23, 2016 Order, she has had to turn heat and lights back on and pay for that. She has had to clean the home and has done repairs to the house, including painting, puttying, buying dryer ventilation kit, putting in an alarm and fixing the dishwasher, all of which she has done on her own time and with her own money of up to $1,500.
38She wants the house preserved and sold because even though the Respondent has indicated that he wants to take over the home, which she would agree to, he has not done so to date and they have been separated since May 2, 2016. The Respondent indicated today that he is working on this with the assistance of a co-signor. If this is in fact the case, it appears the Applicant is open to this as a resolution and I would encourage the parties to explore this.
ORDER
39The Respondent’s claim for a change to Justice Varpio’s June 23, 2016 Order that exclusive possession of the matrimonial home be returned to him is dismissed.
40As I did not canvass a return date with counsel, the balance of the motion is adjourned to November 24, 2016 at 10:00 a.m. to set the next step, or as the presiding justice determines otherwise.
41The costs of today are associated with the argument of this issue are adjourned to the hearing of the balance of the motion, and counsel shall prepare and exchange in advance thereof bills of costs to submit to the court in respect of costs either party may be seeking, if any.
Rasaiah J.
Released: November 14, 2016
CITATION: Findlay v. Findlay, 2016 ONSC 7047
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CYNTHIA L. FINDLAY
- and –
ASHBURN FINDLAY
REASONS FOR motion
Rasaiah J.
Released: November 14, 2016