Rogers v. Rogers, CITATION: 2018 ONSC 2381

COURT FILE NO.: D25934/17

DATE: 2018-04-13

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Jessica Chiara Rogers, Applicant

AND: Steven Alexander Rogers, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: Christopher Young for the Applicant; Stanleigh Palka for the Respondent

HEARD: April 12, 2018 at Welland

ENDORSEMENT

[1] The parties married in 2008 and separated in 2015. On July 26, 2017, Carpenter-Gunn J. made a final order on consent that the parties have joint custody of the two children of the marriage. She also ordered on consent that the time sharing schedule would accommodate special events and extended family functions. The parties did not choose to make the schedule final at that time.

[2] The Applicant now asks for a temporary order setting out the residence times of both parents, retroactive and ongoing child support and s.7 expenses. The Respondent asks for a temporary order setting out different residence times, and orders with respect to child support and spousal support that would flow therefrom. He also asks for partition and sale of the jointly owned matrimonial home and occupation rent. Finally, he asks for an order for production of some documents for trial.

Residence

[3] The parties have been in serious conflict. The OCL investigator thought that sole custody in the Applicant would be advisable. That is not possible for my purposes, because a final order has been made in this proceeding. The circumstances that would permit setting aside an order are not present. I cannot consider a change of circumstances, if there were any, in the same proceeding, as opposed to a motion to vary. Accordingly I have to try to come to the best result within the context of joint custody. That is not to say that I would have departed from joint custody if I had had the choice.

[4] While they were together, and for six months after separation when they remained under the same roof, the parties co-parented the children more or less equally. Both maintained full time employment at the same time. After separation, the Applicant unilaterally limited the time spent by the children with the Respondent. The Applicant characterizes the status quo as a working understanding mediated through a local lawyer. The correspondence in the material, however, makes it obvious that this lawyer was the Applicant’s lawyer, not a mediator. The Applicant was intransigent and the Respondent took what access he could get. The Applicant resorted to making false allegations against the Applicant which have since been either recanted by the Applicant or dismissed by FACS. By now the Applicant’s credibility is seriously diminished.

[5] I note that the Applicant also disputed the Respondent’s suitability because of the allegedly undesirable neighbourhood he lived in. She does not seem to recognize the incongruity in making that argument while depriving the Respondent of the use of his share of their expensive and unencumbered matrimonial home. It could have been sold long ago. The proceeds would have allowed both parties to buy suitable residences.

[6] The children have special needs. Based on the investigator’s observations, I find her conclusion credible that the parties both deal with the children responsibly and effectively.

[7] I would not go as far as Mr Palka suggested and say that this is a case of parental alienation. It is patent to me, however, that the Applicant has no use for the Respondent as a parent and that she does not understand how important he is to these young boys. She has deliberately minimized his time with them.

[8] The Applicant is a school teacher. The Respondent works security at the Casino and has varying shifts. His long shifts result in one to four days off in a row most weeks, and more than four days off occasionally. These parents are well positioned to take appropriate care of the children.

[9] I agree with the clinical investigator that one overnight a week, the status quo, is not enough. There is no reason why these boys should not spend multiple overnights with their father. He lives in a modest but decent two bedroom apartment with ample room and has been observed by an independent clinician to get on well with the boys and to deal effectively with their special needs. It is in their best interest to maximize the time they can spend with both parents. The Respondent as father is a valuable resource not only for them, but for the Applicant and the family as a whole. This resource should not be wasted. I do not think that this change would upset the boys. The Applicant is not entitled to impose a restrictive status quo on the Respondent and then maintain that it should not be departed from.

[10] The Applicant submits that the basic provision for the children’s residence with the Respondent should be one overnight a week. The OCL and the Respondent submit that three days a week or more with the Respondent should be the basis upon which residence is established. The Respondent’s plan reflects what was going on before separation. It is designed to give priority to children in the Respondent’s use of his time off. It leaves the children with the Applicant most of the time. It is in the best interest of the children.

[11] Accordingly I order that the children reside with the Respondent three days a week, on the terms requested at paragraph 35 of the Respondent’s factum. I reproduce the Respondent’s wording in Schedule 1 of this endorsement. If necessary, the parties may agree on a different wording for the order if one can be found that better expresses my intention. I can also be spoken to on this question, but the author of an unreasonable position will run the risk of costs.

Partition and sale of the matrimonial home

[12] The parties jointly own a big house in an expensive neighbourhood. The only debt secured against it is a $23,000 line of credit. The cost of carrying the house, then, is limited. The Applicant has been living there for two years while the Respondent has had to rent a modest apartment.

[13] The Applicant wants to stay in the matrimonial home because it is near the children’s school and her parents. She wants to buy out the Respondent once equalization is determined. And she wants exclusive possession until trial. She and the Respondent have not agreed on the value of the house.

[14] From what I can see on the materials, there is little prospect that the Respondent will owe the Applicant much, if anything on equalization. In the meantime it is not in the children’s best interest to see their parents living in such disparate circumstances. With a down payment of at least $200,000 and a salary of $95,000 the Applicant will not have trouble finding a suitable, if not ideal, residence. The circumstances do not meet the relatively narrow case in which partition and sale can be refused. Partition would not be malicious, vexatious or oppressive and will not prejudice the Applicant’s claims under the Family Law Act. See Silva v. Silva, 1990 6718 (ON CA), [1990] O.J. No. 2183 (CA) and Latcham v. Latcham, 2002 44960 (ON CA), [2002] O.J. No. 2126 (CA). I order that the residence be partitioned and sold forthwith.

Occupation rent

[15] Occupation rent is commonly set off by the contribution of the occupying party to the upkeep of the residence. In this case, however, that contribution is limited to taxes and routine maintenance. There should be some time allowed for the Applicant to adjust to the new reality of separate living, but surely a year is plenty. On the evidence, the value of the property is such that it might reasonably attract a monthly rent in the range of three or four thousand dollars. Dividing that by two and taking into account the Respondent’s responsibility for half the upkeep I shall order the Applicant to pay the Respondent $1,000 a month occupation rent commencing July 1, 2017.

Retroactive child support

[16] The Applicant asks for retroactive child support of $21,600. The children have been in her principal care since separation. The amount requested is the table amount from the Child Support Guidelines for the relevant period. I order the Respondent to pay retroactive child support fixed at $21,600. The amount is due upon sale of the matrimonial home and shall be deducted from the Respondent’s share of the proceeds.

Retroactive section 7 expenses

[17] The Applicant asked for contribution to a number of expenses incurred by her since separation. When it was pointed out that she has provided no receipts or documentation, she asked that the question be reserved to trial. I can, however, deal with the request without regard to proof of payment.

[18] Some of the expenses listed at paragraph 28 of the Applicant’s affidavit of July 4, 2017, such as winter boots, school activities and Halloween costumes, are obviously not extraordinary expenses on their face. Others could qualify but all were undertaken by the Applicant unilaterally. In a joint custody regime, both parents have a say in what is and is not necessary and affordable. The Respondent is not responsible for expenses that were undertaken without his consent.

[19] I dismiss the claim for retroactive section 7 expenses. The parties shall share future extraordinary expenses in proportion to their incomes. At the moment, that proportion is 67% for the Applicant and 33% for the Respondent. Extraordinary expenses are restricted to those expenses covered by s.7 of the Guidelines which have been incurred by either parent with the consent of the other.

Ongoing child support

[20] The residence regime has the children with the Respondent a little more than 40% of the time. Accordingly I have to consider the effect of section 9 of the Child Support Guidelines. Mr Palka submits that I should order the Applicant to pay child support of $635 a month based on the set off between her obligation for two children based on income of $95,000 a year ($1,362/month) and the Respondent’s corresponding obligation based on his $48,000 a year ($727/month). That is the correct set off, but I think the remaining two factors listed in s.9 are of greater importance in the present circumstances. The Applicant earns more than the Respondent, but not astronomically so. Once the matrimonial home is sold the two households will not have greatly differing standards of living. This is not a case of split custody. It is shared custody, and the Applicant still has principal residence and principal responsibility for both children. I do not think it apt in these circumstances that the principal custodian should pay child support to the secondary custodian. Taking into account the increased cost of shared custody, in this case to the Respondent, and the means of both parties, I think that the Respondent’s child support obligation should be reduced, but not much and certainly not to the point of a negative number. I order him to pay $500 a month in child support.

Spousal support

[21] The Respondent has not demonstrated an entitlement to temporary spousal support. His earnings and capacity to earn income were not affected by the marriage or its breakdown. He does not need spousal support because he is able to support himself. The fact that the Applicant earns more than he does is not enough by itself to entitle him to spousal support. The request for spousal support is dismissed.

Production

[22] It is not contested that the Respondent is entitled to disclosure with respect to a corporation of which the Applicant is a director and any family trusts of which she may be a beneficiary. The Applicant is ordered to make the production requested at paragraph 67, clauses 1 to 5, of the Respondent’s factum.

Orders

[23] I make the following temporary orders.

a. The children of the marriage shall reside with the Respondent an average three days a week, on the terms set out in Appendix 1 or such other terms as may be agreed to reflect the intention of Appendix 1. These terms are in addition to the final order of Carpenter-Gunn J. of June 26, 2017 and shall be read in conjunction with that order.

b. The Respondent shall pay child support to the Applicant for Lucas Joseph Rogers born October 31, 2009 and Nicolas Alexander Rogers born June 4, 2012 at a rate of $500 per month commencing April 1, 2018, based on an annual income of $48,000 a year and reduced under s.9 of the Guidelines on account of shared custody. A support deduction order will issue.

c. The parties shall share future extraordinary expenses, 67% by the Applicant and 33% by the Respondent. “Extraordinary expenses” means expenses contemplated by s.7 of the Guidelines incurred by either parent after the date of this order with the consent of the other.

d. The Respondent’s request for interim spousal support is dismissed.

[24] I make the following final orders.

a. The Respondent shall pay retroactive child support to the Applicant fixed at $21,600 upon sale of the matrimonial home.

b. The Applicant shall pay to the Respondent occupation rent for the matrimonial home at a rate of $1,000 a month commencing July 1, 2017. Amounts accruing before April 1, 2018 are payable upon sale of the matrimonial home. Amounts accruing on or after April 1, 2018 are payable monthly as they accrue.

c. The matrimonial home at 7847 Cathedral Drive, Niagara Falls ON shall be partitioned and sold forthwith. The proceeds shall be held in trust. After deducting taxes, expenses of the sale and debts secured against the property and adjustment for retroactive child support owing by the Respondent and occupation rent owing by the Applicant, the proceeds shall be distributed equally between the parties.

d. The Applicant’s motion for retroactive section 7 expenses is dismissed.

e. The Applicant is ordered to produce within 30 days the information and documents listed in Schedule 2.

f. The parties may make written submissions to costs not exceeding three pages, to which may be appended a bill of costs and any offer to settle. The Respondent’s materials are due within 7 days of release of this endorsement. The Applicant’s are due within 7 days thereafter.

J.A. Ramsay J.

Date: 2018-04-13

Appendix 1

When the Respondent only has one day off work at a time the children shall be in his care

i. From 8:30 am to one hour before the start of his next shift on the following day when he starts work at 1:00 pm or later; otherwise from 3:00 pm to 7:00 pm on days that the children have school and the Respondent has a morning shift the following day that commences at 5:00 am or later; and

ii. From 9:00 am to 7:30 pm on days when the children do not have school.

When the Respondent has two to four consecutive days off work in a row, the children will be in his care overnight for the number of days that he has off work.

When the Respondent has more than four days off work in a row, he will have the children in his care overnight for the first four days but no more.

Appendix 2

1. Clarification of the Applicant’s role as director of the corporation and whether she receives compensation therefor;
2. A copy of the shareholders agreement for the corporation;
3. Copies of the corporation’s financial statements for the last three years;
4. Particulars of any property owned by the corporation; and
5. Particulars of any family trusts of which the Applicant is a beneficiary and if, any, the related trust agreements or equivalent documents.