COURT FILE NO.: 106/16

DATE: 2017-08-03

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Y.C., Applicant AND Q. K.T., Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Hilary F.E. Warder, for the Applicant John F. Black, for the Respondent Carolyn Shelly, for the Office of the Children’s Lawyer

HEARD: July 21, 2017

ENDORSEMENT

Introduction

[1] This decision deals with four motions for a numerous heads of interim family law relief. After summarizing the basic facts and issues I will deal with each request one by one.

Basic Facts and Procedural History

[2] The applicant/mother/wife Y.C. and the respondent/father/husband Q.K.T. were married for 19 years and separated in the fall of 2015. There are three children of the marriage, Q.T. (female age 17), J.T. (male age 14), and I.T. (male age 7). Both before and after separation the husband worked long hours at a restaurant owned by him and wife as equal partners. The wife worked there over a decade ago helping out. Since separation the wife has remained in the matrimonial home with the children and not worked. The husband only took Sundays off during the marriage, but since separation has taken Mondays off as well to be available for access.

[3] The application was brought in March 2016, and at a case conference a few months later consent orders were made requesting the Office of the Children’s Lawyer (“OCL”) and for disclosure. The first motion was brought by the wife in July 2016 seeking spousal support, child support, section 7 expenses, life insurance, and disclosure. It was adjourned on agreed terms that included ongoing child and spousal support payments. The wife brought a second motion in November 2016 for custody and access. The husband then cross-moved for joint custody and for a sale of the matrimonial home. All motions were set for a hearing in April 2017, but adjourned to a full-day in June at the request of the OCL and on consent of the parties. The wife then brought a motion, her third, to relocate with the children. The parties and the OCL agreed to adjourn everything one last time so that the OCL clinician could observe each parent with the children. As a result, the legal proceedings are already over a year old and the parties have yet to attend at a settlement conference.

Issues/General Positions

[4] There is an agreement on life insurance. Order to go on consent as requested in paragraph 4 of the Notice of Motion at Tab 13. Some of the disclosure ordered on June 20, 2017 is still outstanding. On consent the parties shall complete that disclosure by September 1, 2017. Further, on consent leave is granted for questioning. As to the other issues and positions they are as follows:

1. Interim custody is still an issue. The wife seeks sole custody. The husband seeks joint custody. The OCL supports the husband’s position
2. On the interim parenting plans, the main issue remains the mother’s proposal to move to the Greater Toronto area with the children. If that does not occur the parties have substantially agreed on a schedule.
3. The wife seeks interim and retroactive child support and section 7 expenses. The husband is not opposed, but there are issues over (1) his income, (2) whether income should be imputed to the wife (for the section 7 calculations), and (3) whether piano lessons are a proper section 7 expense.
4. The wife seeks interim and retroactive spousal support beyond what the husband is currently paying. Although not referred to in her Notice of Motion, she has also requested a lump sum provision for retraining.
5. The husband wants the home sold. The wife is opposed unless she is allowed to relocate.

Custody

[5] As the parties were married, interim custody and access is governed by the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) as amended, and in particular section 16(2). Subsection 16(8) indicates that in making an order I am to only take into account the best interests of the children as determined by reference to the conditions, means, needs and other circumstances of each child. Per subsection 16(10), I am to give effect to the principle that the children should have as much contact with each spouse as is consistent with their best interests. Factors for me to consider regarding best interests include those referred to in the Children’s Law Reform Act, R.S.O. 1990, c.C.12 at subsection 24(2): see MacIntosh v. MacIntosh, [2007] O.J. No. 5695 (S.C.J.) at paragraphs 64 to 67.

[6] The wife seeks sole interim custody on the basis that she has been the primary caregiver and has made appropriate decisions on behalf of the children both before and after separation. She also maintains that there is no evidence of historical cooperation between the parents. The husband’s position is that the wife has taken it upon herself to limit his parenting role, including unilaterally changing dentists, cancelling his access, and not keeping him advised of activities. He also maintains that she is critical of him in front of the children. The wife asserts to the contrary that the husband has never taken a sincere interest in parenting.

[7] Both parties present evidence to support their positions. However, I also have the benefit of two affidavits from Sandra Kapasky the clinical agent for the OCL regarding the children’s views and preferences and her investigation and observations relating to custody and access. The parents were content to postpone the hearing to wait for this evidence. The affidavits support the husband’s view that the wife has limited his parenting role and that her assertions related to an inability to cooperate are overstated. The OCL supports interim joint custody on the basis that there is reason to believe that the importance of the husband’s involvement in the children’s lives will be diminished, both practically and in the children’s eyes, if the wife were given sole custody.

[8] The wife herself relies on Patterson v. Patterson, 2006 CanLii 53701 (ON SCJ) a trial decision of Justice McLaren who fully canvassed the applicable law which includes the proposition that joint custody may indeed be appropriate when there is a risk that the objecting parent will try to marginalize and limit the other parent’s involvement with the children (paragraph 11). While the facts in that case did not support such a finding (paragraph 24(ii)), the facts and independent evidence in this case clearly does. Order to go for temporary joint custody.

The Wife’s Proposed Move

Positions/Additional Facts

[9] The oldest child has applied for and been accepted at a college in Toronto. It is unclear whether she has applied for residence. She would prefer that her mother and siblings move with her, and there is a possibility that she may defer her plans for post-secondary education if that is not allowed. As noted the mother’s current plan is for her and the two younger children to move with the oldest. She gives three reasons. First, she wants to keep the children together. Both parents are Asian and she indicates in her affidavit “[i]n my experience, it is common for Asian families to move together during their children’s higher education.” She says that she and the children are very close. Indeed, the younger two children seem unconcerned about where they live as long as it is with their mother. The second reason is that the wife is thinking about re-education for herself and says she wants to both obtain her certificate as an advanced piano teacher (a two year course; she already has a teaching certificate) and to take a two year Flight Services course in Toronto. She adds that she would have a better opportunity to find employment in Toronto versus Kingston after her education. The third reason she puts forward is that she believes that the family in total (including the husband) would obtain a net financial benefit if she and the children lived together in Toronto, and she has made a chart of comparative calculations. She adds that the husband’s present access can be maintained despite the distance.

[10] The father’s view is that the move would further erode his relationships with the children. He adds that there may be advantages to the oldest child learning to be independent and socializing with classmates rather than being involved in household chores or helping to look after the youngest child.

[11] The OCL has not taken a position. On one hand it notes that given the already diminished role of the father in the children’s lives there is reason to be concerned that the relocation would further enhance the older children’s estrangement and would damage what remains of the relationship between the father and the youngest child. Indeed, while the older children do go for some access, mention was made that the middle male child at age 14 would likely no longer attend if it meant also having to travel. The youngest child while still having regular access is exhibiting some nervous type behaviours in school, and the family doctor feels the root cause is a “global environmental issue”. Part of that may be the wife’s unflattering views of the father as a parent which appear to have been adopted at least in part by the two oldest children. Despite these serious concerns the OCL notes, on the other hand, that if the relocation is not permitted the blame for separating the family (ie. the oldest going to college on her own) would likely fall on the husband. This could cause the very same estrangement from the older children and possible damage to what remains of his relationship with the youngest child.

Law on Interim Relocation

[12] The parties agree with the following statement of law set out in Plumley v. Plumley, 1999 CanLii 13990 (ON SC) at paragraph 7:

[7] It appears to me that the following factors are or ought to be important in deciding the mobility issue on an interim basis:

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.

2. There can be compelling circumstances that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.

3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at a trial.

[13] In addressing that test, and in particular whether there is a genuine issue for trial regarding mobility, the relevant law is set out in paragraphs 49 and 50 of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27:

49. The law can be summarized as follows:

50. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.

51. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

52. The focus is on the best interests of the child, not the interests and rights of the parents.

53. More particularly the judge should consider, inter alia:

(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

(c) the desirability of maximizing contact between the child and both parents;

(d) the views of the child;

(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

(f) disruption to the child of a change in custody;

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

50. In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

Analysis

[14] The first difficult part of this inquiry is not knowing whether the mother’s plan is even possible. In fairness to her, there are a number of ‘what-ifs’. She indicates that she does not have the funds to pay tuition or to rent an apartment until it is known that she is permitted to move, and even then she seeks financial orders requiring the husband to contribute to or cover the costs. As a result her plan lacks particulars. While the oldest child has been accepted into her course and the father has indicated that those costs will be covered, whether she will actually go might turn on whether the wife’s plan prevails or whether she gets accepted into residence. Much therefore is unknown. As acknowledged by the wife’s solicitor, it might already be too late for the child this September. This is not the father’s fault. Setting up a child for post-secondary education in another city is a planning project at the best of times. Further, whether an off-campus rental for four people can be found at this late stage is unknown. As a result, which schools the younger children would attend is also unknown.

[15] I did have some questions about the wife’s assertion that Asian families move together to follow their children’s higher education. I queried how that would work if the family were intact and one or both parents had non-transferrable employment or, like here, had a family business to run. I also queried how it would work if the three children were closer in age but all wanted to pursue university and college in different cities at the same time. I indicated that this was not something on which I could take judicial notice. I note that the wife has not worked in close to two years despite having a certificate to teach piano (more on that below), and there is no evidence that an advanced teaching certificate would make a difference. It is not clear whether the wife is hoping to do one or two full-time education courses at the same time. Regardless, she indicated that she was currently unable to work full-time as it would result in leaving the children at home. She failed to explain how a full-time education program would be easier. Per her chart the advanced piano course is available in Kingston but she has not enrolled to date. The totality of her re-education position is that she wants to pursue it in Toronto as part of a permanent move.

[16] I asked about the disruption of moving the two younger children from their father, paternal relatives, sports, and community. I was advised by the OCL that this was less a concern than in most cases. Although they go to school, see their grandparents, and participate in activities, those social groups are not as central to the children as their family unit, meaning siblings and mother. The OCL described it as an “insular” family, which explains why the younger children’s views and preferences related to the move are somewhat ambivalent. The wife preferred to describe the family unit, with the exception of the father, as “very close”.

[17] The reason for the move is only to be considered in the exceptional case where it is relevant to meet the needs of the children. The wife argues that she needs to be re-educated to work, and that both the educational possibilities and work opportunities are better in Toronto. She will then be able to assist financially with the long term goal of self-sufficiency. At this stage it would appear that there is a genuine issue as to whether that characterization is correct. In particular, she does not need to move to Toronto to start the music program. While at first glance her multiple language skills might assist her finding employment in the Flight Services industry, this has to be considered in the context of her adversity to any job that would take her away from the children for any length of time.

[18] Given the OCL’s obvious struggle with what is best to maintain the relationship with the father, and given the desirability of continuing that relationship and maximizing contact, in my view that there is a genuine issue for trial as to whether this move would be in the children’s best interests. This is particularly so when the relationships at this stage are tenuous and the father appears to be doing all that he can to support them. To allow a move without certainty about the plan in view of the damage it may cause would not be an appropriate interim order. The motion at Tab 23 is dismissed.

Parenting Plan

[19] The parties substantially agreed on the parenting schedule proposed by the OCL with two exceptions. One was the end time for Sunday access. The OCL already dealt with this by proposing a make-up adjustment on Mondays and I find that is reasonable. The other main issue or exception had to do with the start time of the husband’s Sunday access. There had been an informal agreement since separation that it commences at 12:30 p.m. so that the wife could take the children to her church in the mornings. She wanted that to continue. Because of his work the husband’s access is already limited, but he does not work on Sundays. He was seeking to expand his access to start at 10:00 a.m. He argued that not having the full day limited the type of activities he could do with the children, such as take them to the Toronto Zoo, Science Centre, and Lego Land. The OCL was concerned that if there was a change to the Sunday morning start time the children would blame the father and therefore leaving the status quo would eliminate that conflict. I raised a possible compromise of having the access start at 10:00 a.m. only every other weekend. The OCL indicated its support, and there was no opposition from the parents. Therefore the parenting schedule shall be as set out in Part 5 paragraphs 1 and 2 of the OCL’s Factum incorporating that change.

Support

Additional Facts

[20] As an overview of the context of the support issues, as noted the family restaurant business is owned by the parties as equal partners. The husband also has a fifty percent interest in another restaurant with his brother. Lastly he had a small percentage ownership in a manicure business that was divested soon after separation. The wife has not worked since separation.

[21] Regarding the family business, before separation it appears both parties received an equal share of the profits. However, after separation the husband retained all the profits and the wife received nothing. The husband has only declared his half of the net partnership income on his tax returns. After discussion the parties have agreed that for the purposes of this motion all the net income from the business will be attributed to the husband, and any grossing up or tax issues that may arise will be left for settlement or trial.

[22] The separation occurred around the end of August 2015. The wife remained in the matrimonial home which does not have a mortgage. The husband paid the taxes and utilities as well as her car insurance. He did not pay any support. The temporary consent support order ($2,000 a month child, $1,000 a month spousal) commenced 10 months later on July 1, 2017. Prior to that the wife withdrew $13,750 out of the business account which the parties agreed is to be treated as credit on support payments and not as partnership income to the wife. The husband continued to pay the taxes on the home except the final installment for this year due the end of June 2017. He stopped paying the utilities in February of 2017. A few weeks before this hearing he stopped paying the telephone and cable, although very foolishly involved the police to retrieve the cable box.

[23] The wife made no further unilateral withdrawals from the business account prior to the temporary order. However, in June of this year she withdrew a further $8,700.

Law re Determining Income

[24] Generally, the Federal Child Support Guidelines (“CSGs”) are used to determine income for the purposes of both child and spousal support: Murray v. Murray (2003), 2003 CanLII 64299 (ON SC), 66 O.R. (3d) 540, rev'd on other grounds 2005 CanLII 30422 (ON CA), [2005] O.J. No. 3563 (Ont. C.A.); Thompson v. Thompson, 2013 ONSC 5500, [2013] O.J. No. 4001 (S.C.J.). This includes assessing a request for imputation of income.

Husband’s Income

[25] The husband’s income in 2015 per his Income Tax Return was $33,975 from the family restaurant business, $33,132 from the business with his brother, and $2,791 from the manicure business. There was also investment income of $599 bringing the total to $70,497. Given the agreement noted above, adding the wife’s income from the family business ($33,975) brings the total to $104,472.

[26] The wife argued that the tips claimed as income for 2015 of $12,368 are under-reported and that $116,603 would be “… a reasonable and conservative estimate of his income … with his tips grossed up by 100% for Income Tax Purposes.” I was not asked to take judicial notice that income from gratuities are universally under-reported. Regardless, I note the following. For 2015, the tips declared appear to be about 6.4 percent of the gross sales. The restaurant has another employee or employees (salaries/wages are identified as about $45,000) and there is no evidence on any tip sharing arrangement. There is no evidence on whether a percentage of sales might be from take-out orders where tips could be lower or less likely. In summary, there is no evidence to provide a rational basis for imputing the amount requested by the applicant for alleged under-reporting or “diversion” of gratuity income (see CSG section 19(1)(d) and the test in Drygala v. Pauli, 2002 CanLII 41868 (ON CA)). I am taking a cautious approach here. The tips argument is one for trial in my view. If the wife is correct, adjustments can be made at that time on a full review of the merits.

[27] For 2016 and going forward, the husband claims that his total income has dropped. As noted, he no longer works on Mondays. However, in looking at his tax returns, the major change to his net income appears to have little to do with the family business. His share of its income is only down about $2,500 from 2015, the main reason being that he declares a smaller percentage of his gross income for gratuities which is suspicious and unexplained. I would therefore use the same income for the family business that he declared in 2015, the difference being relatively minor in any event. Including the wife’s portion the total again is $67,950. The biggest change to his income is actually found in the business the husband owns in equal partnership with his brother. There appears to be a more than $20,000 increase in salaries for 2016 which corresponds to a roughly $10,000 decrease in his share of the profits, down to $23,390. This change can be explored in the questioning, but on the evidence before me adding those figures and including declared investment income of $103, the husband’s income in 2016 was $91,443.

Wife’s Income

[28] The circumstances of the wife’s work history, skills and experience are touched on above and set out in the materials. She has worked in the restaurant a long time ago but is able to teach music lessons although she has not. The husband is asking that income be imputed to her, if not at full-time hours then at least part-time. As noted the wife strongly resists any suggestion that she work full-time as she feels she has to be available for the children. I am satisfied on the evidence that the wife is intentionally unemployed pursuant to CSG subsection 19(1)(a). She feels that she can go to school full-time, maybe even take two full-time courses, yet for the two years since separation she has not worked at teaching piano or attempted re-entry into the food services industry. She has taken no steps to retrain, and the recent investigations along those lines conveniently dovetail with a proposed move to Toronto.

[29] An unusual issue arises in this file related to piano lessons and section 7 expenses. The husband agreed during the course of the hearing that he will pay all the section 7 expenses as claimed except for the piano lessons. He argued those are not reasonable or necessary given that the wife can teach. The wife’s position is that an outside instructor is necessary as the children benefit from an arms-length teacher. This is somewhat inconsistent with her ‘very close family’ argument. She also argues that it is what they did when the family was intact. However separations often require different approaches. Not only is the evidence regarding serious efforts to find work lacking, there are actually children in her own home whom she could teach piano. There is a rational basis (per the test in Drygala v. Pauli) for imputing some income to the wife on those grounds. Having said that, on the limited evidence before me, there is no rational basis to support the numbers that the husband has put forward. In my view, as an interim order, the most expedient and fair way to deal with this set of facts is to not impute income to the wife, but rather to find that piano lessons are not a reasonable and necessary section 7 expense.

Child Support and Section 7 Expenses

[30] Interim child support is governed by section 15.1(2) of the Divorce Act. Section 15.1(3) directs that the order shall be in accordance with the CSGs. With the income of the husband established and the wife having primary care, child support in this case is a rather simple exercise of applying the table amounts.

[31] The law with respect to entitlement to retroactive child support is set out in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37. As a summary, support is the right of the child (paragraphs 60 and 104) and requires flexibility. On the other hand, the payor parent should have the benefit of predictability, and a degree of certainty in managing his/her affairs (para. 74). Delay in seeking support is a factor that gives courts the opportunity to examine the balance between those two noted principles to determine the most appropriate course of action on the facts (para. 104). The general rule is that child support should commence effective the date notice is given that it is being sought (para. 118), as this allows for a fair balance between certainty and flexibility (para. 122). Factors that should be considered, none of which are decisive, are the reasons why the support was not sought earlier, the conduct of the payor parent, the circumstances (past and present) of the child or children, and the potential hardship of the payor parent flowing from a retroactive award (paragraphs 100 to 116).

[32] On an interim basis retroactive support is generally only awarded to the date of the application given that it provides clear evidence of notice, and given the expeditious nature of the hearing and the fact that evidence related to pre-application events is usually limited, inadequate, and/or disputed and difficult to assess. In this case, however, the wife and children have immediate need and time was spent by both parties in fixing the amounts to be adjusted pre-application. There was little protest by the respondent regarding the child support claims. I am prepared to make a retroactive order.

[33] Per the tables the husband shall pay child support from September 1, 2015 to December 31, 2015 in the amount of $1,915 per month on an income of $104,472 for a total of $9,575. From January 1, 2016 until June 30, 2016, the respondent shall pay child support in the amount of $1,710 per month on an income of $91,443 for a total of $10,260. That combined total of $19,835 less the $13,750 the wife took from the business account leaves arrears of $6,085 as of June 30, 2016 which shall be payable immediately. Ongoing interim child support commencing July 1, 2016 shall also be $1,710 per month until further order. Although this does not need to be part of the formal order, I note that as the temporary order was $2,000 per month, the adjustment through the Family Responsibility Office should result in a credit to the husband of $290 per month over thirteen months of overpayments, or roughly $3,770.

[34] As noted the husband agreed to the CSG section 7 expenses as claimed except for the piano lessons. Order to go that he shall pay the amounts in Exhibit “A” to the wife’s affidavit dated March 31, 2017, excluding all amounts for music lessons but including the amounts for music exams and festivals, without apportioning. The husband shall pay the ongoing section 7 expenses on an interim basis without apportioning.

Spousal Support

[35] The interim spousal support requests were brought pursuant to the Divorce Act with reference to the Spousal Support Advisory Guidelines (“SSAGs” or “Guidelines”). Regarding the former, the jurisdiction to make an interim order is found in s. 15.2(2). I am directed to assess spousal support having regard to the factors in s. 15.2(4) and the objectives set out at 15.2(6).

[36] Even on an interim motion a prima facie case for entitlement to spousal support must be established. I find the test has been met both on a needs basis and on a compensatory basis. The husband was not disputing entitlement.

[37] Both parties relied on SSAG calculations generated by the Divorcemate software. As noted in the Guidelines themselves at para. 5.3, the SSAGs provide quick and easily calculated numbers incorporating many of the basic support criteria such as incomes, children, ages, and the length of the relationship, and are therefore an ideal tool to assist the court in arriving at temporary orders while more precise adjustments can be made at trial. Attached as Schedules “A” (2015) and “B” (2016) are the SSAG calculations based on the income findings made above.

[38] The parties disagreed on retroactivity and which range or calculation to apply. Regarding the appropriate range, the wife argued that in addition to the high-SSAG calculation the husband should also be paying all of the expenses required to maintain her in the matrimonial home (ie. taxes, hydro, utilities, etc.) and her car insurance. In my view both the CSG and SSAG calculations already address the living expenses of wife and children, and there is no general expectation for such an award over and above the tables and ranges.

[39] I have considered a number of factors in deciding where the spousal support should fall along or beyond the ranges. Per the Schedules, the range for 2015 is $842 (low) to $1,290 (high) and the range for 2016 is $448 (low) to $855 (high). As to the factors that might indicate a higher range, this is a longer term marriage with the wife having a compensatory claim. She has primary care of the children. At this point, however, it is not clear to me whether the she will be undertaking retraining or education in the immediate future; that commitment or plan seemed tied to a relocation only and she has not pursued it locally to date. None of these factors are compelling circumstances for an award above the SSAG formula ranges, which are intended to cover the majority of cases. For factors that may gravitate toward the lower range, there will be property divided, the wife lives in the matrimonial home mortgage free, and the interim order has the husband paying 100 percent of the section 7 expenses which might still include post-secondary expenses for the oldest child. I have reviewed the Financial Statements of both parties. The wife indicates high needs and expenses, although a number of those expenses are already included in the section 7 order made above. The husband’s needs are very modest. He lives with his parents although contributes financially, and his income surpasses his expenses at this time.

[40] I have assessed the SSAG calculations taking into consideration what is known about the condition, means, needs and other circumstances of both spouses as summarized above. In my view the high-SSAG figure should be used for the interim order given those factors and in particular the husband’s enhanced ability to pay in light of his modest living conditions juxtaposed to the needs of the wife. The ongoing support as of September 1, 2017 shall therefore be $855 per month as set out in the Divorcemate calculation for 2016 being Schedule “B”.

[41] Regarding the wife’s retroactive spousal support request, the relevant considerations per Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, are similar to those applied in the context of child support as set out above. The husband opposes any claim or adjustment and, unlike my decision regarding retroactive child support, I agree. A significant accounting exercise is likely required including further submissions on tax implications, and it is important to note that any resulting adjustment would appear to favour the husband in any event. He paid the home and car insurance expenses after separation which the wife’s counsel estimated to be worth about $930 per month. He did so for 4 months in 2015 when the high-SSAG number was a tax deductible $1,290 per month. In the first half of 2016 he continued to pay the roughly $930 expenses each month when the high-SSAG number was only $855 per month tax deductible. Then in July 2016 he began paying $1,000 per month spousal support per the temporary order, more than the high-SSAG range for that year, and on top of that he still continued paying all the expenses until he stopped in series of steps in 2017. In summary, once his payments towards the home expenses and car insurance are properly credited, he will have overpaid spousal support to date. A precise retroactive calculation that the wife is seeking would likely result in a support holiday for him and therefore cause immediate hardship for her. I therefore decline to make a retroactive order at this time, and would add that the wife has also taken $8,700 from the business account since the temporary order which will have to be accounted for in the final disposition.

[42] Given that the wife’s view is that husband has underpaid support and given that there are allegations that she has involved the children in approaching the husband for money, in particular for piano lessons, I feel compelled to reiterate the sum of the evidence and above findings. It appears the husband did not meet his section 7 expenses obligations in a timely way. Although he cites a lack of receipts and a failure to involve him in decisions, his failure to pay created unnecessary financial stresses for the wife. That has now been addressed on consent in the above order. However, it appears on the evidence before me that the husband has met and likely gone beyond his obligations under the law for support in totality (child and spousal) at this point in time. The children should not be left with the impression that their father has failed to support them.

[43] Given the timing, the husband shall also pay the balance of the property taxes for 2017 which he can claim as a credit in the final disposition. Other than that, going forward the home expenses including the taxes as well as the wife’s car insurance are her responsibility.

Exclusive Possession/Interim Sale of the Home

[44] As noted the husband wants the matrimonial home sold and the wife opposes. His request is pursuant to s. 3(1) of the Partition Act, R.S.O. 1990, c. P.4. The general rule is that a joint owner has a prima facie right to partition and sale, although the court can refuse where it finds malicious, vexatious, or oppressive conduct: Latcham v. Latcham, 2002 CanLII 44960 (ON CA), [2002] O.J. No. 2126 (Ont. C.A.) at para. 2. Added to that general rule is the proviso that in ongoing family law cases the order should not be made where it is shown that it would prejudice either spouse under the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”): Silva v. Silva, 1990 CanLII 6718 (ON CA), [1990] O.J. No. 2183 (Ont. C.A.), 5th last para.; Ames v. Bond, [1992] O.J. No. 3614 (Ont. C.A.), at para. 2. Practical issues can also be considered, such as how close the matter is to trial (Punit v. Punit, [2014] O.J. No. 1532 (Ont. C.A.) at para. 22), and a party’s needs for and ability to get at the funds before trial (Silva, supra, 4th last para.; Punit, supra, at para. 22).

[45] There is no general discretion under the FLA to redistribute property or alter ownership unless it is to satisfy an equalization payment: Buttar v. Buttar, 2013 ONCA 517, [2013] O.J. No. 3725 (Ont. C.A.) at para. 53. The wife has made out a prima facie case that the husband will owe her an equalization payment and she could therefore be prejudiced if the home were sold. Although not pursued in these motions, she has also pled exclusive possession of the matrimonial home which remains the principal residence of all three children. Looking at the asset portion of the husband’s Financial Statement it is not clear to me that he needs his portion of his equity now to secure adequate accommodation away from his parents. The request at paragraph 4 of the Notice of Motion at Tab 17 for an interim sale of the home is dismissed.

Decision

[46] Orders to go as set out above. At the request of the OCL and not opposed by the parties, the parents are restrained from communicating the contents of this decision and/or discussing it with the children in any way until after the OCL counsel and/or its clinician have first advised in writing they have done so.

[47] The application is adjourned to a settlement conference to be set by the trial coordinator.

[48] The success on these motions appears to be divided. However, if the parties still wish to address me on costs I will accept brief written submissions within twenty days. They are also permitted to make a two page reply within five days after receiving the other party’s submissions.

Mr. Justice Timothy Minnema

Date: August 3, 2017

CITATION: 2017 ONSC 4719 COURT FILE NO.: 106/16 DATE: 2017-08-02

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Y.C., Applicant AND Q. K.T., Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: Hilary F.E. Warder, for the Applicant John F. Black, for the Respondent Carolyn Shelly, for the Office of the Children’s Lawyer

ENDORSEMENT

Mr. Justice Timothy Minnema

Released: August 3, 2017