Charlotte Anne Slack v. William John Slack, 2016 ONSC 946

Charlotte Anne Slack v. William John Slack, 2016 ONSC 946

CITATION: Charlotte Anne Slack v. William John Slack, 2016 ONSC 946

COURT FILE NO.: D14084/13

DATE: 2016-Feb-18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Charlotte Anne Slack

Applicant

– and –

William John Slack

Respondent

Matthew J. Lambert, for the Applicant

Andrea S. Clark, for the Respondent

HEARD: October 14, 15, 16 and 20, 2015 and January 14 and 15, 2016

Justice J. C. Kent

REASONS FOR JUDGMENT

INTRODUCTION

1The parties, Charlotte Anne Slack (Charlotte) and William John Slack (Bill) began living together in April 1999. They purchased a farm as joint owners on 30 November 2001 and married on 10 August 2002. They planned to carry on a cattle raising enterprise on their farm. Charlotte testified that she created their business plan. She would do administrative duties as well as what farm work she was able to do. Bill would do what he could when he was home on weekends from his full-time work as a truck driver. Bill and his family, apparently, came to feel that Charlotte was unwilling or unable to keep up her end of the enterprise. She carried on.

2In 2005, however, she was mauled by a cow. The extent of her injuries are shown in photographs which may be found at Exhibit 1, Tab 23. The mauling made her very wary of the cattle and she obtained an off-farm full-time job. She took maternity leave from that position in order to give birth to their child, Rachel Marjorie Virginia Slack on 20 July 2011. Charlotte’s off-farm job paid well, $18.00 per hour, but was seasonal. During a lay-off in early 2013, she and Bill separated on 12 February 2013. She has not worked since.

3The break-up of the marriage gave rise to multiple issues. To their credit, Bill and Charlotte have been able to resolve some of the issues before coming to court and more issues at the outset of the trial. During the course of submissions, their counsel were able to place some issues before the court in a manner that enabled the court to deliver brief oral reasons and make certain orders.

ISSUES ALREADY DETERMINED AND ORDERS MADE

A. Divorce

4On 15 January 2016, the court heard brief submissions from counsel and delivered brief oral reasons for granting a divorce judgment.

B. Custody, Access and Child Support

5On 15 October 2015, counsel advised the court that they parties had entered into Minutes of Settlement and the court made an order pursuant to the Minutes of Settlement.

6On 15 January 2016, counsel made submissions as to the extent of child support arrears pursuant to the temporary and ongoing orders. The court gave brief oral reasons for fixing the amount of child support arrears at $567.00 and ordered that those arrears be paid by the Bill to Charlotte.

C. Equalization Payment

7On 15 January 2016, counsel made their submissions concerning a calculation of the Net Family Property of the parties. During and upon completion of those submissions, the court was able to make findings that resulted in a determination of the equalization payment required. The court then ordered Bill to pay to Charlotte an equalization payment in the amount of $11,142.30; not taking into consideration the division of the proceeds from the proposed disposition of the jointly owned property of the parties located 192008 Thirteenth Line East, Garafraxa, Grand Valley, Ontario.

ISSUES REMAINING TO BE DETERMINED

i) Disposition of the jointly owned property of the parties and the division of the net proceeds obtained;

ii) Occupancy rent and carrying costs for the jointly owned property of the parties; and

iii) Spousal Support.

(i) Disposition of the jointly owned property of the parties

8As indicated above, the jointly owned farm was purchased by Bill and Charlotte on 30 November 2001, after they had lived together approximately 2.5 years.

9The evidence of two real estate agents who testified contains no substantial conflict. Offers on the property in the past approached $700,000.00 and it would appear that if the property were listed for sale for an amount just under $700,000.00, there is every reason to believe it would sell.

10As this court understands the situation, the parties have agreed that upon this court releasing its judgment, Bill is to be provided with a brief period of time in which to make an offer to acquire Charlotte’s interest in the property and, if he does not do so, the property is to be listed for sale. An order will go, therefore, unless the parties otherwise agree, that the property is to be listed for sale with Cindy Zettel and Wayne Baguley through the Real Estate Brokerage with whom they are both employed at a listing price of $699,000.00. This order is effective 30 days after the release of this judgment in order to allow Bill an opportunity to acquire Charlotte’s interest.

11The parties are in substantial disagreement as to the division of the proceeds from the sale of the property. Bill paid the lion’s share of the down payment when the parties purchased the property jointly. He owned a previous home that he had purchased with an inheritance and he, therefore, had significant funds of his own to enable the completion of the transaction. Charlotte’s contribution was from brief employment income and borrowed funds. Counsel for Bill argues that the role that Charlotte had in the farming enterprise and the initial purchase of the farm is significantly disproportionate to the windfall that she will receive if the net proceeds of the disposition of the property are divided equally. Counsel further submits that the courts should keep in mind that 95 acres of the property is farmland and that should constitute a basis for calculating an uneven distribution of the net proceeds. She argues that an equal distribution is unconscionable.

12Counsel for Charlotte reminds the court of the presumption contained in Section 14 of the Family Law Act. He also argues that any variation permitted pursuant to Section 5(6) of the Family Law Act may only be made if the court is of the opinion that equalizing the amounts would be unconscionable. Subsection 6 basically addresses various equitable considerations. One of the considerations refers to the amount a spouse would receive as being “disproportionately large in relation to a period of cohabitation that is less than 5 years” (Subsection 6, paragraph e). This does not apply in the circumstances.

13Bill and Charlotte cohabitated for 13 years and were married for a period of 10 years.

14The Court of Appeal in this Province has repeatedly stressed that the test for unconscionability is a high one. In Symmons v. Symmons, [2012] ONCA 747, paragraph 36, the Court stated:

“This court has stressed that the threshold of unconscionability under s. 5(6) is exceptionally high. A party seeking an unequal division must show that an equal division of net family property would “shock the conscience of the court”: Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 47. In this case, the equalization of net family property does not come close to meeting this standard”

15Similarly in Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at paragraph 47, the Court of Appeal stated:

“In this regard, the threshold of “unconscionability” under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court”: see Merklinger v. Merklinger (1992), 1992 CanLII 7539 (ON SC), 11 O.R. (3d) 233.

16While an equal division may seem unfair to Bill, that is not the test. There is nothing unconscionable about an equal division of the proceeds after a 13 year relationship and over 11 years of joint ownership. For the above reasons, an order will go, therefore, that upon the completion of the sale of the property at 192008 13th Line East, Garafraxa, Grand Valley, Ontario, the net proceeds will be divided equally between Bill and Charlotte.

(ii) Occupancy Rent and Carrying Costs of the Jointly Owned Property

17It is common ground as between Bill and Charlotte that Bill has been residing at the jointly owned property since separation in February, 2012. He has paid all expenses connected with the property for almost 3 years.

18Charlotte would ordinarily be entitled to some occupational rent from Bill because she is a joint owner of the property. Wayne Baguley, testified that in his experience as a Real Estate Agent, the rental for the house alone would amount to $1600 to $2000 per month. Taking the low end of that range, the entitlement to occupation rent over the 3 year period could be as high $24,000.00 but one must bear in mind that Bill has been making accelerated payments on the mortgage half of which have gone to Charlotte’s benefit. His counsel argues that his credit for so doing is in the neighbourhood of $10,000.00 leaving, arguably, some amount to Charlotte’s credit if there were to be an accounting.

19Nevertheless, all of the foregoing figures are somewhat arbitrary and it appears that this is a case where a set-off order is more appropriate than an order to pay occupancy rent. For this reason, there will be no order in favour of either Bill or Charlotte on this issue.

(iii) Spousal Support

20Charlotte is now 44 years of age. During their period of cohabitation, Bill was always the primary breadwinner.

21Rachel is now in school and, with some further education and/or retraining, it is reasonable to assume that Charlotte will be returning to the work force sooner rather than later. In addition, it appears that Charlotte may be in a re-partnering situation. She lives with Mike Renault as of August, 2014. Mike is employed full time, earning $72,000.00 per year. Charlotte is expected to pay one-half of the rent in the accommodation that the parties share as well her share of the utilities and a contribution towards groceries. She and Mike have no written cohabitation agreement.

22To make a time limited order in these circumstances would be inappropriate.

23Charlotte will, when the jointly owned property is sold, have a significant “nest egg” of capital. In the normal course, one would expect that within the next 12 to 18 months, she will have re-trained and have secured full-time employment. There is, however, no basis at this point in time to suggest that she is not entitled to continuing spousal support.

24The interim order for spousal support required Bill to pay support to Charlotte fixed in the amount of $450.00 per month. She now seeks to have that spousal support increased to $1,000.00 per month which is only marginally more than the low end of the range supported by the calculation found at Tab 5 of the applicant’s Brief of Authorities.

25When one takes into consideration that the interim order has continued for over 2.5 years; that the current living arrangement that Charlotte and Mike Renault have, together with the influx of capital that Charlotte can legitimately anticipate, a reduction from the range seems appropriate. Ongoing spousal support is, therefore, ordered to be paid at $750.00 per month, effective 1 March 2016, until an anticipated review. Order accordingly.

COSTS

26Counsel indicated that offers have been made that could bear on costs. If they are unable to agree on entitlement and/or quantum, an appointment to argue the issue(s) may be obtained from the Trial Coordinator at Brantford.

Kent, J.