Court File and Parties
Yochim v. Yochim, CITATION: 2017 ONSC 6908 COURT FILE NO.: D25067/15 DATE: 2017-11-20 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Tammy Lee Yochim, Applicant AND: Stephen Anthony Yochim, Respondent
BEFORE: Mr Justice Ramsay
COUNSEL: Fay Ann Guilbeault for Applicant Thomas G. Hanrahan for Respondent
HEARD: November 16 and 17, 2017 at Welland
Endorsement
[1] The parties married in 1997. The Applicant moved out of the matrimonial home on May 1, 2013. From the beginning they have cooperated in raising the children of the marriage. They need help with a few money issues.
Equalization
[2] The parties do not agree on the date of separation. The Applicant says that the parties separated in October 2012. The Respondent says that they separated when the Applicant moved out on May 1, 2013. The difference affects how I treat money advanced to the Respondent on the joint line of credit between those two dates.
[3] The Applicant testified that she made the decision to separate permanently in October 2012. She moved into the basement of the matrimonial home while getting ready for life in a separate residence. From that point on the parties essentially lived separately, cooperating only in the raising of the children, which they still do today.
[4] She testified that in the spring of 2013 the Respondent presented her with an unfamiliar document which was an application for a joint line of credit in the amount of $240,000 to be secured against the matrimonial home. She sought advice from the bank manager and her lawyer and as a result agreed only to a $200,000 joint debt. The document was executed in mid-April 2013. It is clear from the documentary evidence that the Applicant knew that she was signing a loan renewal on which about $200,000 had already been advanced, and that the loan was secured against the jointly-owned matrimonial home.
[5] The Respondent testified that this was a renewal of the existing mortgage and home equity line of credit, which had been in place for several years. The documentary evidence bears him out. The parties had had $240,000 worth of credit for some time. The bank put a mortgage on the property in the amount of $300,000 to secure that loan.
[6] The Respondent testified that the parties began sleeping separately in October 2012, but not with such a set arrangement as the Applicant said. They went to marriage counselling in December 2012 but it was not successful. He says that he did not know that they were beyond reconciliation until shortly before May 1, 2013 when movers called to confirm the date and the Applicant then confirmed to him that she was moving out.
[7] I accept that separation can be the unilateral decision of one party. I suppose it often is. But when one party does not communicate that decision to anyone else either by word or action, it can be doubted that the separation actually took place. Going to marriage counselling (as opposed to other forms of counselling) is not consistent with a final decision to separate. More inconsistent is the renewal of the mortgage on the matrimonial home. People tend to do that before they separate, not after they separate. Finally the Applicant has not been consistent in her statements as to the separation date. Her net family property statement, filed in 2015, puts the valuation date at February 28, 2013.
[8] I find the Respondent’s version of events more consistent with the documentary evidence and the probabilities of the situation. I find on the preponderance of the evidence that the date of separation was May 1, 2013. Generally speaking I prefer the Respondent’s evidence to the Applicant’s where they disagree about events connected with the separation and the line of credit.
[9] The Respondent made a number of withdrawals from the line of credit between October 1, 2012 and May 1, 2013. Many of them consolidated other family debt at the lower rate of the secured loan. Others were for family expenses, including a used Buick bought for the use of both parties a few months before the Applicant moved out. That Buick, although registered to the Applicant, remained with the Respondent after separation. It is properly claimed as an asset on his side of the sheet for the purposes of equalization. I find that the parties have equal responsibility for the line of credit as between them, except for one item. That item is a $20,000 advance for an RRSP for the Respondent. As between the parties, the Applicant should not be responsible for that debt.
[10] In view of these findings, I accept the Respondent’s calculation of net family property. It does not matter what amount is given for the value of the matrimonial home, as any amounts will cancel each other out. The parties do not agree on the value of the matrimonial home so I shall order it to be partitioned and sold.
[11] I order the Applicant to pay the Respondent $21,802 by way of equalization of net family property.
Retroactive Child Support
[12] The parties have two children, a daughter who turned 18 in September 2017 and who attends university in Waterloo and a son who turned 12 in 2017. The children lived with each parent week about, staying overnight at the other parent’s on Wednesdays. The son still follows this pattern and the daughter will continue this pattern in the four summer months.
[13] No child support has been paid to date. The parties agree that child support should be based on the offset under s.9 of the Child Support Guidelines, according to their respective incomes. Child support should be payable for two children from May 1, 2013 to September 30, 2017, and for one child thereafter. The Applicant would like child support for two children in the four summer months.
[14] They do not agree on what figures should be used in assigning income. The Applicant calculates that she is owed about $16,000 in retroactive child support based on her figures for the parties’ respective incomes. She has included RRSP income in the Respondent’s income but not in her own.
[15] The parties both had good jobs, but lost them due to corporate restructuring. While making the transition to new jobs and new living arrangements, they both resorted to RRSP funds that they had. In the circumstances of the present case, the RRSPs were part of the employment income available to the parties to run their households and take care of the children. Essentially they were used to maintain their respective incomes as far as possible. I think that I should use the parties’ line 150 income to calculate child support for these past years.
[16] Using this approach, the Respondent puts retroactive child support for two children at $965 in his favour June 2013 to December 31, 2016. I agree with his calculations, but I think the period should start on May 1, 2013, with the result that the Applicant owes him $1,168 for this period, as set out in the table:
| Year | A.’s line 150 | R.’s line 150 | A.’s obligation/mo. | R.’s obligation/mo. | Offset/mo. (R. – A.) | Total offset for period |
|---|---|---|---|---|---|---|
| 2013 (from May 1) | 75,591 | 61,276 | 1113 | 910 | -203 | -1624 |
| 2014 | 72,347 | 81,455 | 1070 | 1190 | 120 | 1440 |
| 2015 | 75,277 | 79,367 | 1081 | 1164 | 83 | 996 |
| 2016 | 54,842 | 44,135 | 814 | 649 | -165 | -1980 |
| Total offset | -1168 |
Ongoing Child Support
[17] The parties’ incomes are not known for 2017. The Respondent will likely claim no income because of the expenses involved in the start-up of his new business. Nevertheless he must have some money coming in. I think it reasonable to impute to him for 2017 an amount equal to the Applicant’s 2017 income. The result is that no on-going child support is payable by either party in the short term.
[18] The parties will be ordered to exchange financial information every year, so that child support for future years can be set.
[19] I do not propose to impute income to the Respondent beyond what I have done. I think his efforts to establish himself in a new business are reasonable. I would not be surprised to see him earning more money fairly soon, and paying child support.
Extraordinary Expenses
[20] Neither party is asking for retroactive extraordinary expenses. Neither have the parties identified any such expenses for Jake anticipated in the near future. He is no longer in day care and I do not consider hockey necessary. There is no word of him needing braces. If he ever does, the parties should expect to contribute in proportion to their incomes.
[21] Paige is in university. The parties have paid her tuition with RESP’s and she has applied for OSAP. I think it reasonable to expect her parents to pay her tuition in proportion to their incomes for four years and to keep her in room and board over the summer, and for her to arrange the rest of what she needs through employment and OSAP. There is no need for an order for one parent to pay the other at this point.
Rental Income
[22] The Applicant has not pressed her claim for a share of the rent on the two rental properties jointly owned by the parties. I think that is wise given the offsetting expenses that have been documented.
[23] Similarly, I think that the occupation rent owed by the Respondent for his exclusive interim possession of the matrimonial home is offset by the mortgage, taxes and upkeep, which he has paid by himself.
Orders
[24] I make the following orders:
a. I declare that the parties separated on May 1, 2013 and order the Applicant to pay $21,802 to the Respondent to equalize the parties’ net family property.
b. I order the Applicant to pay to the Respondent $1,168 forthwith as retroactive child support for Paige Emily Yochim born September 15, 1999 and Jake William David Yochim born June 10, 2005 based on the offset between their respective incomes for the period from May 1, 2013 to December 31, 2016, under s.9 of the Child Support Guidelines.
c. I order the parties to exchange income tax returns, notices of assessment including any notices of re-assessment and supporting documents every year by June 30 for the previous taxation year, commencing June 30, 2017.
d. The parties, who were married on May 21, 1997 at Welland, are divorced effective 31 days hence.
e. The claims for spousal support are withdrawn.
f. The matrimonial home shall be partitioned and sold forthwith and the proceeds shall be held in trust pending an order of this court or the consent of both parties as to distribution.
g. The proceeds of sale of the jointly-owned properties at 154 and 158 Thorold Road, Welland ($54,973) shall be distributed as follows: $5685 to the Applicant and $49,288 to the Respondent, which represents equal division of the proceeds followed by deduction of the equalization payment in subparagraph (a) from the Applicant’s share and its addition to the Respondent’s share. The Applicant’s obligation to pay equalization shall thereupon be considered fulfilled.
h. The proceeds of sale of the property owned solely by the Respondent at 156 Thorold Road, Welland ($31,301) may be released to him.
i. The Applicant and the Respondent shall have joint custody of Jake William David Yochim, who shall continue to reside with each of them week about, with Wednesday access continuing as before, and equal sharing of holidays.
j. Day to day decisions shall be made by the parent having possession of the child for the time being. Major decisions shall be made by both parents together after consultation.
k. Each parent shall insure his or her own life for not less than $50,000 naming each child beneficiary as long as that child is a child of the marriage within the meaning of the Divorce Act.
l. Each parent shall maintain the children as beneficiary of any dental or medical insurance that is available from his or her employer.
m. All other claims are dismissed.
n. The parties may make written submissions to costs not exceeding 3 pages in length, to which may be appended a bill of costs and any offers to settle. The Respondent may do so within 7 days. The Applicant may respond within 7 days thereafter.
J.A. Ramsay J. Date: 2017-11-20