Lachance v. Campbell, 2017 ONSC 5094
CITATION: Lachance v. Campbell, 2017 ONSC 5094
COURT FILE NO.: FC-15-1949
DATE: 20170829
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Julie Lachance
Applicant
– and –
Herman Campbell
Respondent
Philip Viater for the Applicant
Herman Campbell in person
HEARD: August 17, 2017
RULING ON OMNIBUS MOTIONS
Boswell J.
I. OVERVIEW
The Basics
[1] The parties began to cohabit in 2001. Things were good. They married a few years later and had two daughters. Later, things began to sour. Now they’re bleak.
[2] A separation occurred in late September 2015. Mr. Campbell moved to a basement apartment at the family home while Ms. Lachance and the children stayed upstairs. That arrangement continues to this day.
[3] Litigation began on November 18, 2015. On the surface this case does not appear to be all that complicated. The care of the children, the disposition of the family home and the assessment of the value of Mr. Campbell’s business are the live issues. But, to be blunt, the parties have made a complete hash-up of things because of their hard feelings for each other. They are well on their way to squandering the family’s net worth and destroying the lives of their children.
[4] They have been unable to agree on the conditions for the sale of their home and have missed the peak of the market. Mr. Campbell has engaged in behaviour designed to, and having the effect of, aggravating and inflaming Ms. Lachance. He has, moreover, been playing games with the disclosure of relevant documentation. At the same time, Ms. Lachance has engaged the children in the conflict with Mr. Campbell. She has taken them into her confidence in relation to her feelings about their father and about the litigation. She has contacted the police and the CAS repeatedly in an attempt to gain leverage in these proceedings. Everyone is miserable; especially the children, one of whom has made a serious attempt at suicide at age 13. The parties argued with one another over her bed in the emergency room of the hospital.
[5] There have been a number of case conferences and a settlement conference, as well as a lengthy motion before Justice Woodley that led to a substantial ruling released by her on November 7, 2016. That ruling dealt with claims for exclusive possession of the matrimonial home, the sale of the home, a restraining order, custody, access, the children’s medical care and child support.
The Relief Sought
[6] The fight carries on despite the judicial involvement to date. Each of the parties moves for relief, much of which involves the same claims that were before Justice Woodley. The complete list of relief sought by each of the parties is set out on Appendix “A”.
[7] In brief, Ms. Lachance wants a comprehensive order for disclosure, an order for exclusive possession of the matrimonial home, an order deferring the sale of the home until the summer of 2018, an order suspending Mr. Campbell’s access to the children, an order imputing income to him of $300,000 per year, an order that he pay for a $100,000 business and income valuation and a restraining order.
[8] Mr. Lachance, again in brief, wants the matrimonial home immediately sold, an order that the children reside at his mother’s home, a shared custody order, disclosure and a restraining order.
[9] I have divided this ruling into four sections, which group the live issues under the following headings: child care; financial; disclosure; and restraining orders. Before I begin tackling the outstanding issues, I will comment briefly on the status quo.
The Status Quo
[10] The status quo is based on the November 2016 order of Justice Woodley.
[11] The parties continue to share the matrimonial home. Ms. Lachance has exclusive possession of the upper part of the home, while Mr. Campbell has exclusive possession of the basement apartment.
[12] The parties share joint custody of the children, but they sleep every night in their bedrooms in the upper part of the home. Ms. Lachance has sole responsibility for any major decisions with respect to the medical care of the children. The children are Hillary-Lise, age 13, and Claire, age 10.
[13] According to the order, whichever party is home from work first on a Monday, Tuesday or Wednesday is to care for the children. On Thursday evenings, the children are expressly to be with Mr. Campbell until 7 p.m. and Friday evenings they are to be with Ms. Lachance. On Saturdays the children are to spend from 9 a.m. to 7 p.m. with Mr. Campbell. They are to spend Sundays with Ms. Lachance.
[14] The parties disagree about what access has actually been occurring. Ms. Lachance deposes that Mr. Campbell has had the children in his care only 8% of the time. She says he has been exercising access as follows:
• On Mondays, Thursdays and alternate Wednesdays, he visits with Claire from about 6 p.m. to 7 p.m.; and,
• One day each weekend, either Saturday or Sunday, he visits with both girls from 9 a.m. to 7 p.m.
[15] Mr. Campbell, on the other hand, deposes that he has “without fail adhered to the letter of the access order”.
II. CHILD CARE ISSUES
The Children are at Risk
[16] I accept that each of the parties loves their children and that each has been, and continues to be involved in the lives of the children.
[17] Having said that, neither parent has a whole lot of credibility with the court. Both are unduly fixated by the litigation and their unhappy feelings about the other. Neither has any real appreciation of their individual contributions to the toxic home environment and the damage being inflicted on the children. Each blames the other.
[18] Mr. Campbell has not been entirely forthcoming with disclosure and, in my view, has been evasive about his actual income. He has also been caught on videotape entering the upper area of the matrimonial home, when subject to a court order that he not do so. He has demonstrated a clear lack of respect for court orders.
[19] Ms. Lachance, for her part, has engaged the children in an entirely inappropriate and, frankly, cruel way, in this litigation. I am now the second judge who has reached the conclusion that she has manufactured crises – and made spurious reports to the police – in order to gain leverage in these proceedings.
[20] The children are at risk. Their mental health and emotional security have been put at risk by their parents. Neither parent is particularly well-suited to taking on the role of primary caregiver to these vulnerable girls at this point in time. That said, a decision must be made to alter the status quo which is undeniably harmful.
[21] In making my decision, I have relied heavily on the independent and, I believe, objective evidence of third parties who have interacted with the family. The following is a brief summary of that evidence:
(a) A letter dated September 19, 2016 from a Durham Region CAS social worker who met with Hillary on September 14, 2016. She indicated that it was very apparent that Hillary was suffering serious traumatic distress due to the ongoing conflict between her parents. Hillary reported suicidal ideation. Counselling for Hillary was recommended, but has never happened;
(b) A letter from Dr. Danayan of Danforth Pediatrics dated June 29, 2017. Dr. Danayan has been a treating physician to both Claire and Hillary. He wrote that over the preceding six months he saw a significant deterioration in the emotional well-being of Claire manifested as sleep disturbance, new onset bedwetting, poor school performance and inattention that corresponded with the high conflict between her parents. In relation to Hillary, he wrote that she was significantly more unstable and depressed than Claire and would need to start pharmacologic therapy for depression. Moreover, she required individual counselling;
(c) A Discharge Summary from the Rouge Valley Health System authored by an attending psychiatrist, Dr. Gagarin, and dated July 31, 2017. Dr. Gagarin attended on Hillary in the emergency room and noted that she had attempted suicide by overdosing on zopliclone – a medication prescribed to her mother. The day before the suicide attempt she had attended in the ER of Lakeridge Hospital with thoughts of self-cutting. The day of the attempt she spent with her father, who reported an unremarkable day. In the ER she expressed desire to have a break from the stressful situation at home. She slept better while in the hospital than she did at home; and,
(d) A letter dated August 2, 2017 authored by the Durham Region CAS informing the parties that they had received a report from Dr. Danayan that the living environment in the parties’ home was harmful to Hillary. The CAS recommended that the parties come to an agreement about separating their residences. They have not done so, though apparently Ms. Lachance has taken the girls to stay temporarily with some family in Quebec.
[22] On July 14, 2017, Hillary wrote a letter, at the request of the CAS, setting out her feelings. I am always a little dubious about these types of letters. The CAS was engaged by Ms. Lachance and my sense is that Ms. Lachance was likely present at the meeting when the idea of the letter came up. The possibility of tainting is obvious.
[23] Nevertheless, for what it is worth, Hillary indicated that she wants to move out of the family home. She said it was stressful there and did not feel like home. She indicated that she doesn’t think her dad is the nicest person and she and her sister have to live with abuse. She noted that she wanted to live with her mom and visit with her dad.
[24] I am not a mental health expert. But as an average person, sitting in a chair reading Hillary’s letter, I have to wonder why this child, obviously distressed due to the conflict between her parents, was asked to create this document. A document that immediately appeared in an affidavit. I would have thought it obvious that distancing Hillary from the conflict would have been the better path to follow. Whether this “letter” was the idea of a CAS worker or Ms. Lachance is an unknown. Either way, it was inexcusable. It would be one thing if Hillary were asked to express her feelings in the context of a confidential counselling session with a professional therapist. But what happened here was that she was unwittingly conscripted to prepare the equivalent of an affidavit for use in the litigation between her parents at a time when she has expressed clearly her desperation to be sheltered from their conflict.
[25] There are other gobsmacking features to the evidentiary record. At paragraph 115 of a 63 page affidavit sworn July 17, 2017, Ms. Lachance says, “I was diligent in ensuring that Hillary attends counselling based on the tremendous amount of stress she is subjected to and more so after she heard explicit details of the Respondent sexually assaulting a woman.” There are a number of concerns I have about this statement. First, Hillary has not attended counselling to my knowledge. Second, there is no evidence of a sexual assault. Ms. Lachance contacted the police to allege that Mr. Campbell had sexually assaulted a woman. The woman advised the police, who investigated, that any activity she engaged in with Mr. Campbell was consensual. Finally, and most concerning, this allegation and its “explicit details” came to Hillary’s attention via her mother.
Temporary Custody
[26] While I have serious concerns about the suitability of either party to parent the children, on balance I believe it in their best interests, for the time being at least, to remain in their care. It is absolutely necessary, however, that the parties physically separate and that clear lines be drawn between them in an effort to reduce the children’s exposure to conflict.
[27] It is vitally important that the status quo be modified. It is not possible for both parties to continue to live in the matrimonial home, even with separate, exclusive areas.
[28] I am awarding temporary custody of the children to Ms. Lachance, not because I think she is a better parent than Mr. Campbell, but because she is the one who has been doing the bulk of the parenting since the separation. At one point she actually offered Mr. Campbell an opportunity to try a week-about schedule of parenting and he said he could not do it, partly due to his work obligations and partly due to his accommodations. In my view, he is not logistically able to care for the children on a full-time or near full-time basis.
Temporary Access
[29] I will fix Mr. Campbell’s access, on a temporary basis, as every Thursday evening from after school (or 4 p.m. if the children are not in school) until 8:00 p.m. as well as every second weekend from Friday after school (or 4:00 p.m. if they are not in school) to Sunday evenings at 8:00 p.m. Weekends will be extended by one day if there is a P.A. day or other school holiday on a Friday or Monday.
[30] The temporary order for custody includes the right of Ms. Lachance to make decisions respecting the health care – including mental health – of the children.
Exclusive Possession of the Home
[31] I am granting Ms. Lachance exclusive possession of the home. I am doing so based on the following considerations:
(a) One of the parties must move out, for the reasons I have set out above;
(b) Mr. Campbell has readily available, alternative accommodation at his mother’s residence; and,
(c) I have awarded temporary custody of the children to Ms. Lachance. It makes more sense that Mr. Campbell move than that Ms. Lachance and the children try to find alternative accommodation.
[32] The exclusive possession order comes into effect one week from the date of this order. To be patently clear, Mr. Campbell must vacate the home on or before September 5, 2017 at 5:00 p.m.
[33] Mr. Campbell’s daughter, MacKenzie, resides with him in the basement apartment of the matrimonial home. There is no evidence in the record before me that suggests MacKenzie has any role to play in the conflict between the parties. Moreover, the evidence suggests she has a close relationship with Claire and Hillary. For these reasons, the exclusive possession order does not apply to her. She may continue to occupy the basement apartment of the matrimonial home until further court order. Mr. Campbell may not, however, visit MacKenzie at the basement apartment in view of the exclusive possession order granted today. They will have to spend time together elsewhere.
III. FINANCIAL ISSUES
The Sale of the Home
[34] Justice Woodley ordered the matrimonial home sold. It has not been. There have been issues with getting it listed. The evidence before me suggests that Mr. Campbell has been an impediment. I do not accept that it is necessary, nor even sensible, to require a co-brokerage.
[35] For the parties to move forward, the home must be sold. I am not persuaded that the sale should be delayed another year as proposed by Ms. Lachance. The home is to be listed for sale forthwith and sold at the earliest reasonable opportunity.
[36] Ms. Lachance will have carriage of the sale. That means she can choose the listing agent. The price is to be fixed after consultation with the agent. Ms. Lachance may sign all listing documents on behalf of both her and Mr. Campbell. A copy of any signed listing documents is to be provided forthwith to Mr. Campbell.
[37] Any offers made on the home must include a provision that they are open for acceptance for at least 72 hours. Mr. Campbell is to be provided, forthwith, with any offer that is made. Both parties must execute any agreement of purchase and sale. If there is a disagreement between them about whether to accept an offer, either party may apply to the court for directions on short notice.
[38] When the home is sold, the net proceeds of sale, after payment of legal fees, real estate commissions, the usual adjustments made on closing and any sums required to remove any encumbrances from the home, will be held in trust pending further court order or agreement between the parties.
[39] Ms. Lachance, having exclusive possession, will be responsible for the carrying costs of the home from and after September 1, 2017.
An Interim Disbursement
[40] Notwithstanding the general provision that the sale proceeds be retained in trust, the sum of $100,000 will be made available to Ms. Lachance, from the sale proceeds, to cover the cost of an evaluation of Mr. Campbell’s business – Adease Media Research Services Inc. – and an assessment of Mr. Campbell’s income from that business.
[41] The liability for the cost of the valuations – in other words whether payment comes from Ms. Lachance’s share of the sale proceeds or Mr. Campbell’s share – will be determined by the court at a later stage in these proceedings. I will make the implicit explicit. Ms. Lachance at present intends to retain Price Waterhouse Cooper to perform the valuations at a cost of $100,000. She may ultimately find that the cost comes out of her own pocket. Or it may come out of Mr. Campbell’s pocket. Or the cost may be shared. She will want to take this uncertainty of liability into account when assessing whether $100,000 is a reasonable sum to pay to evaluate Adease.
Child Support
[42] Ms. Lachance asked Woodley J. to impute $200,000 in annual income to Mr. Campbell. She declined, though she did impute income of $93,317.00 to him.
[43] Ms. Lachance asks me to impute $300,000 in annual income to Mr. Campbell. Her counsel conceded in submissions that there is no meaningfully different evidence about Mr. Campbell’s income before the court now, as compared to what was before Woodley J. In the result, I have no rational basis that would support a variation of the income imputed by Woodley J.
[44] Temporary Guideline child support for Hillary and Claire will be fixed at $1,334 per month payable by Mr. Campbell to Ms. Lachance commencing September 1, 2017.
[45] If there are any s. 7 expenses incurred by either party, they are to be shared equally on a temporary basis.
Spousal Support
[46] Once child support is taken into account, the parties’ incomes are such that, in my view, no spousal support ought to be payable on a temporary basis.
The Volvo
[47] I am not entirely sure what the status of the Volvo is. I am not persuaded that, on an interim basis, I should make any order transferring it from one person to another. This is a matter best left, in my view, to a final disposition.
IV. DISCLOSURE
[48] Substantial disclosure is sought. Substantial disclosure has been provided. Counsel to Ms. Lachance was not able to tell me whether what has been provided – much of it very recently – is the entirety of what was sought.
[49] I am not inclined to make a specific order for production of documents that may well have already been disclosed.
[50] Most of what was sought has to do, ultimately, with the valuation of Mr. Campbell’s business and his income. In my view, the most efficient means of dealing with any outstanding disclosure issues is to wait until a valuator is retained. The valuator may provide a list of documentation needed to complete her or his work. If production of the necessary documents has not already been made, then at least the request for a production order will be focussed.
[51] In the meantime, Mr. Campbell provided a short list of disclosure requested, all of which appears reasonable to me. Ms. Lachance is to provide to Mr. Campbell, within 30 days, the following:
(a) Copies of her tax returns and Notices of Assessment for tax years 2014-2016;
(b) Evidence establishing the value of any stocks, options, insurance or pension interests as at the date of marriage and date of separation;
(c) Evidence of the value of any property held in Quebec;
(d) Copies of any applications for credit made in the past three years; and,
(e) Copies of her monthly credit card and bank statements from and after January 1, 2015.
V. RESTRAINING ORDERS
[52] Both parties are restrained, on a temporary basis, from annoying or harassing the other.
[53] Mr. Campbell is restrained, on a temporary basis and until further order of the court or agreement, from selling, transferring or disposing in any way, his shares in Adease. Subject to the day-to-day operating needs of the business, he is to preserve the assets of Adease.
VI. MISCELLANEOUS
[54] The following requests for relief are dismissed:
(a) The request for an order for police enforcement of any aspect of this order; and,
(b) The request for an order dispensing with Mr. Campbell’s consent to obtain passports or other documents for the children.
[55] In terms of the issue of costs, I am not inclined to award any. Success has been divided somewhat on the motion. Though Ms. Lachance appears to be the “winner” in many respects, the custody and exclusive possession orders were made largely out of necessity. The necessity arose as a result of the poor conduct on the part of both parties. Much of the relief sought on this motion was already dealt with by Woodley J. In my view this motion would have been largely unnecessary were it not for the ill-advised behaviour of both parties. There will be no costs.
Boswell J.
Released: August 29, 2017
APPENDIX “A”
Relief Sought by Ms. Lachance
Disclosure of a lengthy list of documents within 15 days, failing which the striking of Mr. Campbell’s pleadings;
An order that Mr. Campbell pay for a valuation of his business and income by Price Waterhouse Cooper LLP;
A restraining order against Mr. Campbell;
Exclusive possession of the matrimonial home;
An order authorizing Ms. Lachance to make decisions about the children’s mental health care without Mr. Campbell’s consent;
The suspension of Mr. Campbell’s access to the children, or alternatively an order fixing supervised access;
An order dispensing with Mr. Campbell’s consent to any application for child-related documentation, such as passports and health cards;
An order that the sale of the matrimonial home, ordered by Woodley J., be deferred to July 2018;
An order that Ms. Lachance have carriage of the sale and that Mr. Campbell’s consent to any step in the sale proceeding be dispensed with;
An order authorizing Ms. Lachance to execute any closing documentation on behalf of both her and Mr. Campbell;
An order that Mr. Campbell pay for 50% of the upkeep of the home pending its sale;
Imputation of $300,000 in income to Mr. Campbell;
Child and spousal support fixed on an income of $300,000;
A preservation order;
Interim disbursements of $100,000; and,
Police enforcement of the orders for access and exclusive possession.
Relief Sought by Mr. Campbell
A restraining order against Ms. Lachance;
Immediate sale of the matrimonial home;
An order for co-brokerage of the sale;
An order that the sale proceeds of the home be divided equally between the parties;
An order that the children reside with Mr. Campbell’s mother until the parties locate separate residences;
An order that Ms. Lachance permit Mr. Campbell to purchase the 2017 Volvo XC90;
Joint custody of the children, with their residences to alternate between the homes of the parties on a week-about basis;
Disclosure.