CITATION: Anslow v. Anslow, 2017 ONSC 7518
COURT FILE NO.: FC-17-90
DATE: 2017/12/19
COURT OF ONTARIO
SUPERIOR COURT OF JUSTICE, FAMILY COURT
RE: JoAnne Anslow, Applicant
AND:
Joel Anslow, Respondent
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Richard P. Bowles, for the Applicant
Aaron Heard, for the Respondent
HEARD: December 14, 2017
ENDORSEMENT
[1] This is a motion for temporary custody, access, child support and spousal support. It takes place in the context of an application for divorce and corollary relief commenced on January 16th, 2017. There was a case conference on March 24th, 2017. This is the first motion for interim relief.
The Issues
[2] The parties were married on December 31st, 1994 and have been separated since May 29th, 2016. They have four children aged, 22, 19, 12 and 9. The present motion relates only to the two minor children.
[3] For purposes of this motion, the respondent does not oppose an order for exclusive possession of the matrimonial home and he agrees there should be a support regime. There is disagreement concerning the incomes of the parties and whether or not the respondent father should have overnight access.
[4] There is considerable conflict in the affidavit evidence. On a motion for interim relief, it is neither possible nor desirable for the court to make detailed findings of fact. What is required at this point is a stable parenting framework which will operate in the best interests of the children and an interim support regime based on the available evidence. Interim support should be sufficient to meet the needs of the family and maintain their basic lifestyle if it is possible to do so.[^1]
Background
[5] The respondent is a self employed hairdresser and operates a Salon in Manotick. During most of the marriage the applicant worked in the home taking care of the family and helped out in the business in various ways which may have included the bookkeeping. She has no formal education. In recent years the applicant qualified as a real estate agent but to date she has not been able to make that profitable. At the moment she asserts that she is unable to afford the "desk fees" and other expenses necessary to utilize her licence and when she did attempt work as an agent, she operated at a loss which resulted in a debt to the brokerage.
[6] The applicant maintains that her only income for this year other than the child tax credit and GST rebate will approximate $8,000.00. This is derived from dog walking and house cleaning and rent paid by a boarder.
[7] During the marriage, the parties had invested in commercial real estate and at the time of separation they jointly owned three commercial properties. They had considerable debt. Much of the debt was secured by mortgages in favour of the applicant's sister. Since separation, two of the properties have been sold and mortgages and other debts have been retired or reduced. The remaining property is the building in which the respondent's salon is located. There are property taxes owing and I am advised that power of sale proceedings have just been commenced by the mortgagee. There is significant equity in the building and in the past year there has also been income generated by commercial tenants. The only other property is the matrimonial home which is mortgage free except for a modest line of credit secured against the property and held by the TD Bank.
[8] The applicant deposes that the respondent has significant alcohol and substance abuse problems and asserts that he was physically and mentally abusive. The respondent denies this and in turn asserts that in the latter part of the relationship, the applicant spent most days partying and drinking with friends and incurring debt which was not supportable. For purposes of this motion, it is neither necessary nor possible to resolve the significant factual disputes.
[9] Since separation, the respondent has been paying many or all of the expenses at the matrimonial home. According to his affidavit, this includes the mortgage, utilities, insurance, internet, cell phones for the children and $1,000.00 for groceries. He attests that the expenses have been between $3,000.00 and $3,500.00 per month. It should be noted that all four children live with the mother in the matrimonial home but one of the older children is working. There is also a boarder.
[10] The challenge on this motion is to ascertain the income of the respondent. He concedes that the net income shown on his tax returns is not an appropriate number to use. He suggests that for purposes of the motion, the court should use his declared gross business income of $48,675.00 per year and his gross rental income of $20,400.00 and estimates that his 2017 income will therefore be $69,075.00.
[11] Needless to say the applicant believes this to be an understatement. If these were truly the gross income figures, then of course there would be some legitimate business expenses that could be deducted even for support purposes but the respondent's sworn financial statements show expenses of more than $75,000.00 per year. As the hair salon is a business that lends itself to cash transactions (particularly because until recent years the respondent did not accept credit cards) even without considering tips, it is suggested that his real income must be more than $100,000.00 which is the number I am asked to impute.
[12] Since separation, the applicant has been living in the matrimonial home with the four children. Because of the allegations of alcoholism, marijuana use and domestic violence against the respondent, there was an investigation by the Children's Aid Society. The respondent has been exercising access to the children for two hours on Sunday afternoons. The parties disagree as to why this is. The applicant asserts it is because the children and the Society have been concerned about overnight access if the respondent is drinking and suggests that the respondent has not asked for more access. The respondent claims he was not in a position to exercise more access until August because he had nowhere suitable to live but he now has an apartment. He wishes to have the children with him on the days when he is not working (Sunday, Monday and Tuesday).
[13] Apparently the respondent was sleeping at the salon but he has now obtained an apartment within walking distance of the salon and the matrimonial home. In fact he is close enough that the children can visit him whenever they wish.
Analysis and Decision
[14] The status quo is that the children are continuing to live in the matrimonial home with the applicant. The evidence is that she has had the primary care and control of the children. This has continued since separation.
[15] As noted above, the respondent has had limited access. There is no persuasive evidence that the respondent is a danger to the children particularly if he abstains from consumption of alcohol or drugs when the children are in his care. On the other hand, there is no convincing evidence that it is in the best interests of the children to spend overnights during the week with the respondent particularly during the school year. In any event I am of the view that increased access should be phased in and evaluated before it is expanded.
[16] It would also be preferable to know the wishes and preferences of the children. At the case conference, Justice Sheard contemplated the possibility of an order requesting involvement of the Office of the Children's Lawyer. No motion has been brought for such an order but I would support it. Alternatively, a "voice of the children" report would be helpful.
[17] It is not necessary to make a custody order as such on an interim basis. These children are not infants. It will be sufficient to provide that the applicant shall have the primary care and control of the children and will be empowered to continue attending to their educational and medical needs until a final order is made.
[18] I see no reason why the respondent may not have additional access time with the children and overnight access on Saturday or Sunday subject to the wishes of the children and approval of the CAS. It is not necessary for the overnight to take place every week. The success of the overnight access may be reviewed in three months.
[19] With regard to support and the income of the respondent, I was not provided with evidence about the respondent's reputation as a hair dresser, what he charges, what hours he works (though I was told he works 4 days per week), how many chairs he has, what salon services he provides and how many customers he has. There was no evidence that he employs other stylists or rents out chairs and the affidavits do not suggest that he has employees or subcontractors. It is of course the responsibility of the respondent to substantiate his income and this will have to be done with greater precision before the matter can be finally resolved. As it is admitted the tax returns do not accurately describe the respondent's income and as the number he suggests for his income cannot be correct, the court is left without the benefit of precise income figures.
[20] If I used only the admitted minimum income for each of the parties and applied the guidelines, it would generate numbers that are inadequate to support the family. The table amount of child support for two children based on an income of $69,075.00 per year is $1,052.00 per month. The mid range of the SSAG using the "with two children formula" and assuming the applicant's income is $8,000.00 is $370.00 per month and the high end of the range is $554.00 per month. The respondent recognizes this will be inadequate for the costs of operating the matrimonial home and proposes to pay $750.00 in spousal support. The applicant asks me to impute income of $100,000.00 per year and to order the table amount of child support ($1,471.00) and spousal support of $983.00 per month which is the mid point of the 3.
[21] Support based on the higher imputed numbers is actually less than the amount the respondent says he has been contributing to the expenses of the matrimonial home and as the spousal support will be taxable (and deductible), support at the level proposed by the applicant will still entail financial hardship for the wife and children.
[22] Given the demonstrated level of need, the amounts that have been paid to date and the failure of the respondent to provide precise evidence of income, I am imputing the income at the level proposed by the applicant. Support will therefore be at the level proposed commencing January 1st, 2018. This is without prejudice to retroactive adjustment by the trial judge should that be appropriate.
[23] Because the respondent has been paying expenses at the home, it is not appropriate to make a retroactive support order on an interim basis.
Conclusion and Order
[24] There will be a temporary order that the applicant continues to have primary care and control of the children and may make decisions in connection with education and medical care if the parties cannot agree.
[25] On consent there will be a temporary order granting the applicant exclusive possession of the matrimonial home. The applicant will make good faith efforts to have the utility accounts transferred into her name.
[26] The respondent shall be entitled to reasonable access as agreed between the parties in accordance with the wishes of the children and any recommendations from the Children's Aid Society. The access shall include at least 6 hours every Sunday and subject to objection by the CAS shall include one overnight visit every second Saturday. There may also be an overnight between Christmas and New Years.
[27] The respondent may not consume alcohol, marijuana or non prescription drugs during access visits or in the four hours preceding the visit.
[28] The access schedule may be reviewed in three months if the parties are not able to agree on expansion of access at that time.
[29] If the parties agree they may request appointment of the Office of the Children's Lawyer by a motion in writing. If they cannot agree, either party may bring a motion seeking such an appointment or appointing a qualified person to complete a "voice of the children" report.
[30] The respondent shall pay temporary child support in the amount of $1,471.00 per month based on the table amount for two children and an assumed income of $100,000.00 per year. The respondent will also pay spousal support in the amount of $983.00 per month which is the mid point of the SSAG. The support will commence on January 1st, 2018 and will continue until further order or agreement.
[31] The parties shall make best efforts to complete all outstanding financial disclosure by the end of January, 2018. If the parties intend to conduct questioning as previously ordered by Justice Sheard, they are to do so by the end of April, 2018.
[32] Counsel may make written submissions regarding costs. The applicant shall make submissions by January 15th, 2018 and the respondent may make submissions by January 30th, 2018. Written submissions are not to exceed three pages each.
Mr. Justice Calum MacLeod
Date: December 19, 2017
CITATION: Anslow v. Anslow, 2017 ONSC 7518
COURT FILE NO.: FC-17-90
DATE: 2017/12/19
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: JoAnne Anslow, Applicant
AND:
Joel Anslow, Respondent
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Richard P. Bowles, for the Applicant
Aaron Heard, for the Respondent
endorsement
Mr. Justice Calum MacLeod
Released: December 19, 2017
[^1]: See for example Damaschin-Zamfirescu v. Damiaschin-Zamrirescu, 2012 ONSC 6689,