Court File and Parties

COURT FILE NO.: FC-16-2418 DATE: 2018/01/30

ONTARIO SUPERIOR COURT OF JUSTICE (FAMILY BRANCH)

RE: Yonna Demers, Applicant -and- John Gilles Demers, Respondent

BEFORE: Madam Justice D. Summers

COUNSEL: Meagan LePage, for the Applicant Respondent is self-represented

HEARD: September 14, 2017

ENDORSEMENT

Nature of the Proceedings

[1] There are two motions before the court. The first is a motion by the Respondent, John Demers, to vary the interim consent Order of Justice Roger dated January 9, 2017. In addition to increasing his access time with the children, Mr. Demers also seeks an order that the children remain in their current school catchment area.

[2] The second matter to be determined is a cross-motion by the Applicant, Yonna Demers. She seeks an order for interim sole custody, primary residence, new and additional access terms to specify a Christmas holiday schedule and to establish transportation responsibilities for access on non-school days. Ms. Demers also seeks an order imputing income to Mr. Demers for increased child support as well as an order for the sale of the matrimonial home and other procedural relief.

The Issues

[3] Mr. Demers’ motion raises the following issues:

1. Has there been a change in circumstance that would warrant a variation in the regular access schedule ordered by Justice Roger?

2. Should Ms. Demers be restricted from moving the children outside of their current school catchment area?

[4] Ms. Demers’ cross-motion raises the following issues:

3. Is it in the children’s best interests that Ms. Demers be awarded interim sole custody?

4. Is it in the children’s best interests to order additional interim access terms to:

(i) specify transportation responsibilities on non-school days; and

(ii) establish a Christmas holiday schedule?

5. Should income be imputed to Mr. Demers under s. 19 of the Child Support Guidelines for purposes of increased child support?

6. Should Ms. Demers be named as the irrevocable beneficiary of Mr. Demers’ life insurance policy as security for his child support obligation?

7. Is this a case to order a pre-trial sale of the matrimonial home?

8. Is there additional disclosure required from Mr. Demers?

9. Should Ms. Demers be permitted to amend her pleadings?

Background

[5] The parties met in Indonesia in 1997 and married in 1999. Mr. Demers states that they moved to Canada in 1999 whereas Ms. Demers says that it was in 2003. Nothing turns on this date. They separated on May 6, 2016.

[6] The Demers have two children: Liam, who is presently 13 years of age (d.o.b. March 22, 2004); and Jordan, who is 6 years of age (d.o.b. June 6, 2011). Since separation, the boys have lived with their mother and paternal aunt in North Gower, Ontario. They each attend school in a nearby community. Liam is in grade 8 and Jordan is in grade 1.

[7] Prior to November, 2015, Mr. Demers worked for GeoDigital as a project manager earning between $55,000.00 and $58,000.00 a year. His 2016 Notice of Assessment confirms income of $21,124.00. He has yet to provide a copy of his full income tax return for 2016, therefore, the specifics of his income sources for that year remain unknown. Not long before the return of this motion, Mr. Demers found work with a pool company at $15.00 per hour.

[8] Ms. Demers has a high school education from Indonesia. She works at Costco earning $13.50 per hour, averaging 25 hours a week with additional hours available during the holiday season. Her Notice of Assessment confirms total income of $12,839.00 in 2016. Her 2017 paystub for the period ending September 3, 2017 confirmed year to date income of $11,850.00.

[9] Ms. Demers describes her husband as controlling, demeaning and aggressive. She tells of many instances of verbal and physical abuse between the years 2000 and 2016. Mr. Demers admits his anger and the verbal abuse that permeated the marriage but acknowledges only two instances of physical aggression. The abuse escalated over time with the final incident occurring the night before they separated. Mr. Demers was arrested but not charged. Upon his release from custody, he returned to the home and told his wife to get out. She left with the children and has since lived with Mr. Demers’ sister in North Gower, Ontario.

[10] Mr. Demers argues that he too was the victim of abuse in the relationship. He states that he was frequently subjected to “the silent treatment” by Ms. Demers and her unwillingness to discuss matters of importance to him. Such behaviour, he says, is abuse.

[11] The family has a history with the Ottawa Children’s Aid Society (“CAS”). The Society’s involvement began in February, 2016 when a community professional reported a concern that domestic abuse may be occurring in the home. A subsequent report was received by the CAS from the police after Mr. Demers attended the children’s school on June 23, 2016 and threatened to kill himself. Mr. Demers’ apparent grief quickly turned to anger and he began swearing at Ms. Demers. Other parents and members of the school staff witnessed his behaviour. Ms. Demers claims that he was drunk.

[12] The CAS investigation found that the children had been exposed to domestic violence and were at risk of emotional harm. For a time, the Society facilitated access between Mr. Demers and the children. The counselling that was recommended for the family included counselling for Liam to address the abusive and controlling behaviours that he had witnessed by his father. It was also recommended to Mr. Demers that he seek addiction counselling and continue in the partner assault program known as New Directions.

[13] The CAS closed their file in November, 2016. By then, the parties had been separated for 6 months, this action had been commenced by Ms. Demers and the Society was satisfied that reconciliation was unlikely. In addition, Ms. Demers had taken the necessary steps to protect the children and had engaged the appropriate community services for them.

Mr. Demers’ Motion

Issue #1: Has there been a change in circumstance since Justice Roger’s Order that would warrant a variation in the regular access schedule?

[14] Mr. Demers seeks to vary the terms of access incorporated into the interim consent Order of Justice Roger dated January 9, 2017. The Order provides for access between Mr. Demers and the children every second weekend from Friday after school until Monday morning and again on Tuesday after school until Wednesday morning during the intervening weeks. Pick up and drop off is to be done at the school. The order was made on consent and stated to be without prejudice.

[15] Mr. Demers now asks that the schedule be changed to start Thursday after school and continue until Tuesday morning in alternate weeks. During the school summer break, he proposes a further extension of time to have access commence Thursday evening after dinner and continue until Tuesday evening after dinner in alternate weeks. This proposal would require Ms. Demers to transport the children to Mr. Demers’ home on Thursday evening and he, in turn, would be responsible for returning the children to her on Tuesday evening.

(i) The Children’s View and Preferences?

[16] Mr. Demers argues for a variation of Justice Roger’s Order on the basis that the boys are asking to spend more time with him. In particular, he says they complain that the time is too long between their access weekends and their next overnight stay. Mr. Demers states that he too finds the time apart to be long. In support of his position, he submits an email from Liam dated September 4, 2017 stating, among other things, that he wants to spend more time with his father.

[17] In addition to arguing that Mr. Demers is not consistent in exercising the access he currently has, Ms. Demers does not agree that the children want to spend more time with their father or that it would be in their best interests. She believes that Liam was pressured by his father to write the September 4, 2017 email and that it does not reflect the vocabulary and writing style of her son. In turn, Ms. Demers relies on the August 21, 2017 letter from Liam’s counsellor that he gave her permission to write. The counsellor states that Liam talked to her about feeling like he was in the middle of the conflict between his parents. He also said that, at times, he felt he was being pressured by his father to live with him.

[18] In my view, Liam’s email can be seen in one of two ways. It is either an indication of his wishes or it is a sign that he continues to experience pressure from his father to spend more time with him. The date of Ms. Demers’ Affidavit (August 31st) in relation to Liam’s email (September 4th), lends weight to the conclusion that the email was written as a response and at his father’s request. Considering Liam’s comments to his counsellor and the fact that he gave his permission to her to write the letter that she did, I find that, on the balance of probabilities, Liam’s email was not written of his free will.

(ii) Academic Assistance

[19] In addition to arguing that it would be consistent with the boys’ wishes to spend more time with him, Mr. Demers states that he is the parent with more to offer them academically. He argues that their best interests would be served by having more mid-week time with him that would, in turn, allow him to assist with their homework and other school related activities.

[20] Ms. Demers points to the success that the boys are enjoying in school as proof that they are doing well in her care and that the parenting schedule should not be changed at this time.

[21] The evidence does not suggest that the boys are in need of additional academic help. On the contrary, the evidence indicates that both boys appear to have adjusted reasonably well to their new schools and routines since separation. Liam’s report card is strong. Jordan, according to Mr. Demers, is also doing well in school subject to his teacher’s comment that he appears to be struggling somewhat emotionally. Mr. Demers believes that any struggles Jordan may be having likely stem from the fact that his parents are living apart. Aside from Mr. Demers’ statement that both boys have expressed a wish to spend more time with him, there is little, if any, evidence to suggest that a change in the interim parenting schedule is required to meet their best interests.

(iii) Addiction Counselling

[22] Ms. Demers expresses concern with the lack of evidence offered by Mr. Demers that he has received addiction counselling for alcohol abuse as recommended by the CAS. She states that Mr. Demers struggled with alcohol abuse throughout their marriage and she believes that he continues to do so. She claims that his misuse of alcohol impacts his parenting.

[23] Mr. Demers responds that he sought the advice of his family doctor and submits a letter from his physician dated September 11, 2017. The doctor states only that he saw and assessed Mr. Demers for alcohol abuse and management of PTSD. The letter falls short of confirming treatment for alcohol addiction.

[24] Before a custody and access order can be varied, section 17(5) of the Divorce Act requires that the court must be satisfied that a change in the condition, means, needs or other circumstances of the child has occurred since the last order was made. The burden of proof rests with the moving party and proof is required on the balance of probabilities.

[25] On the evidence before me and for the reasons given, I am not satisfied that there has been a change in the condition, means, needs or other circumstance of either or both children since Justice Roger’s Order. Without such a change, a variation cannot be granted, therefore, Mr. Demers’ claim for this relief is dismissed.

Issue #2: Should Ms. Demers be restricted from moving the children outside of their current school catchment area?

[26] Mr. Demers seeks an order prohibiting Ms. Demers from moving the boys outside of their current school catchment area even though he does not live in that area and Ms. Demers states that she does not wish to continue living there. Mr. Demers argues that Liam is doing very well in his new school and he worries that moving again may compromise his son’s ability to establish long term friendships. In this regard, Mr. Demers relies again on Liam’s email of September 4, 2017 wherein he also states his wish to remain in his current school.

[27] Ms. Demers resists being restricted to the school catchment area. She wishes to move back to the Ottawa area to be closer to her work but until the matrimonial home is sold she cannot make definitive plans. She must first be in a position to assess the affordability of her housing options.

[28] Mr. Demers’ request to keep the boys in their current school catchment area might be more persuasive, if indeed, that was where they had always gone to school. That, however, is not the case. The matrimonial home is in Barrhaven. That is where the boys went to school and formed friendships prior to separation. It was Mr. Demers’ refusal to move out of the home and allow Ms. Demers and the boys to remain there that caused their move to North Gower in the first place and forced them to change schools. For Mr. Demers to now argue that the children must stay where they are in the interests of stability and building long term friendships seems more than a bit disingenuous.

[29] I do not find it practical or necessary at this point in time to require Ms. Demers to keep the boys in the current school zone and I decline to make that order. While the possibility of changing schools again may be less than optimal for the boys, Liam may well be attending a new school in September, 2018 in any event as he moves into Grade 9. Moreover, placing a geographical restriction on Ms. Demers right now could complicate her ability to secure affordable housing for herself and the boys. Such a result would not be consistent with the children’s best interests.

Ms. Demers Cross–Motion

Issue #3: Is an interim order of sole custody to Ms. Demers in the children’s best interests?

[30] Ms. Demers seeks an interim order for sole custody. She argues that it is impossible for her to make decisions jointly with Mr. Demers.

[31] It is Ms. Demers’ evidence that he continues to be controlling and verbally abusive. She describes his communications as demeaning and bullying and insists that he is unable to put the best interests of the children ahead of his anger toward her. As proof, Ms. Demers references past communications and provides emails that she received from Mr. Demers as recently as May and August, 2017. By any measure, these emails cannot be seen as civil or respectful of her as a parent or a person.

[32] The report prepared by New Directions after Mr. Demers completed the program in the fall of 2016, confirms that he acknowledged his abuse of Ms. Demers but further notes his propensity to blame her for his behaviour. Put another way, Mr. Demers admitted certain abuse but downplayed it as justified by Ms. Demers’ actions such as giving him “the silent treatment”. The author of the report concluded that Mr. Demers demonstrated accountability for his behaviour but that accountability was undercut by his readiness to see Ms. Demers as the cause of his behaviour. That tendency made it difficult for the author to determine Mr. Demers’ future ability to have respectful conversations with Ms. Demers as they parent their children.

[33] The emails sent by Mr. Demers to Ms. Demers this past summer cast doubt on his ability to communicate with her in any manner that is akin to respectful. He repeatedly referred to her as passive aggressive and as sick and needing help. He called her abusive and said she was hurting the children by refusing to communicate with him in the direct manner that he demanded. This is not the type or tone of communication that one might expect from someone who claims that he can make decisions jointly with the other parent and who claims to now understand that spousal abuse is wrong.

[34] Mr. Demers opposes the claim for sole custody and states that he would never consider seeking it for himself. He views sole custody as a disservice to children and contrary to their best interests.

[35] Mr. Demers believes that Ms. Demers has orchestrated defacto sole custody for herself by refusing to compromise or collaborate on child-related issues in the face of what he sees as his efforts to establish a courteous dialogue. As proof, he offers an email that he sent to Ms. Demers on May 5, 2017 in which he describes, at some length, the teachings of the New Directions program about spousal abuse. He asks her to work with him to establish respectful and constructive communication yet, in the same email, he repeatedly accuses her of abusing him and thus the children by refusing to discuss the issues that are important to him. Not surprisingly, Ms. Demers did not respond to this email. This failure to respond, he concludes, is proof that Ms. Demers is the one impeding respectful communication.

[36] I do not interpret the evidence before me in a way that would lend weight to the allegation that Ms. Demers has orchestrated defacto sole custody. On the contrary, it appears to me that it is Mr. Demers who is unwilling or perhaps unable to communicate with Ms. Demers in a manner that would suggest cooperative decision making is possible.

[37] Much of the evidence presented in this motion focused on the conflict between the parties, past and present. The physical conflict subsided with the separation but the verbal conflict continues. Mr. Demers blames Ms. Demers for their dysfunction and does not see his contribution to the situation. I find the evidence belies that conclusion.

[38] The Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 1625, (para.11) stated that an award of joint custody requires more than wishful thinking for improvement in the ability of the parties to communicate. For joint custody to be considered, there must be some evidence before the court that the parents are able to communicate effectively in the interests of their children. No such persuasive evidence was presented here.

[39] The sole test in a custody determination is the best interests of the children. (See Divorce Act, s. 16(8)). Of concern to this court is the fact that the children have been and still appear to be exposed to much of the conflict between their parents. To the extent that an order of sole custody to Ms. Demers may act to insulate the children from even a modicum of conflict between now and the time of trial, I find it to be in their best interests and I make that order. The order is, of course, without prejudice to the trial judge who will have the benefit of more fulsome and tested evidence.

Issue #4: Are additional interim access terms required to specify transportation responsibilities and to establish a Christmas holiday schedule in the children’s best interests?

(i) Transportation

[40] Ms. Demers points to the need for additional interim access terms between now and trial that were not addressed when this matter was before Justice Roger. Specifically, there is an issue between the parties regarding transportation on non-school days. Ms. Demers asks that transportation responsibility be shared and proposes that she will do the pick-up from Mr. Demers’ home when his access ends on a non-school day but she must do so no later than 8:00 a.m. to accommodate her work schedule. In turn, Mr. Demers would be responsible for pick-up from her house at 4:00 p.m. when his access starts on a non-school day. To minimize their interactions, each party would be expected to remain in the driveway when at the home of the other.

[41] Mr. Demers did not address Ms. Demers’ proposal in any manner that was helpful to the court. He stated his opposition to the concept of “pick-ups” by alleging that they are damaging to the children. Instead, he says he favours “drop-offs” because they indicate that the drop-off parent approves of the receiving parent. According to Mr. Demers, there is parenting literature for separated spouses that supports such a conclusion but he does not name his source. The only other response from Mr. Demers on this issue was this. He says simply that if his motion to vary access is successful, transportation on non-school days will be a non-issue as most PD days and statutory holidays fall on Fridays or Mondays and the children will be with him anyway.

[42] The evidence around the access difficulties experienced to date indicates a need for additional detail. In my view, Ms. Demers’ proposal for pick-up and drop-off on non-school days is practical and I make that order.

(ii) Christmas

[43] Ms. Demers seeks to establish a Christmas access schedule that overrides the regular day-to-day schedule. She proposed that the children be with their father from noon on December 24th until noon on Christmas Day in odd numbered years, and with her from noon on Christmas Day until noon on Boxing Day. In even numbered years, the schedule would then reverse with the children in her care from noon on December 24th to noon on Christmas Day and with Mr. Demers from noon on Christmas Day until noon on Boxing Day. Mr. Demers did not argue this issue and I grant the order sought by Ms. Demers. It provides for an equal sharing of these special days and there is no evidence to indicate that doing so would be anything other than consistent with the best interests of the children.

Issue #5: Should income be imputed to Mr. Demers under s. 19 of the Child Support Guidelines for purposes of increased child support?

[44] Ms. Demers asks the court to impute income of $30,000.00 to Mr. Demers alleging that he has been intentionally unemployed or under-employed since separation.

[45] Mr. Demers currently pays child support in the amount of $277.00 per month under the terms of Justice Roger’s Order. This amount was based on an estimated income of $18,000.00 for 2016, however, the total turned out to be somewhat higher at $21,124.00. The difference, states Mr. Demers, is attributable to the RRSP’s that he cashed to help pay day-to-day expenses. He did not offer any documentary proof of this and has yet to produce a copy of his 2016 Income Tax Return. Ms. Demers’ motion did not include a claim for a retroactive child support adjustment, however, the matter can be addressed at trial if the parties cannot resolve the amount owing following disclosure.

[46] Ms. Demers relies on s. 19(1)(a) of the Child Support Guidelines to impute income to Mr. Demers. That section allows the court to impute income to a spouse in such amount as it considers appropriate in the circumstances including the spouse being intentionally under-employed or unemployed unless either is required by the needs of a child of the marriage, or any child under the age of majority, or by the reasonable educational or health needs of the spouse.

[47] In Drygala v. Pauli, 2002 41868 (ON CA), 2002 CarswellOnt 3228 (paras 31 and 32), the Ontario Court of Appeal said that imputing income is one way that the court gives effect to the joint and ongoing obligation of parents to support their children. To meet this obligation, the parties must earn what they are capable of earning or be found to be intentionally under-employed.

[48] The court in Drygala (para 23) set out the following three questions to be answered when considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of the payor’s reasonable education or health needs, the needs of a child of the marriage, or any child under the age of majority?

3. If the answer to #2 is no, what amount of income is appropriately imputed in the circumstances?

[49] I turn to these questions now.

#1. Is Mr. Demers intentionally under-employed or unemployed?

[50] Mr. Demers holds a diploma from the Southern Alberta Institute of Technology in surveying and mapping technology and has significant work experience. Before losing his job at GeoDigital in the fall of 2015, he was earning between $55,000.00 and $58,000.00 per year. Ms. Demers states that he also has a degree from Carleton University but Mr. Demers denies this. His current job with a pool company is the first since separation and was obtained shortly before the return of the motion. He earns $15.00 per hour and will only have part-time hours until spring.

[51] At the Case Conference on January 9, 2017, Justice Roger ordered Mr. Demers to produce copies of his job applications within 30 days. Mr. Demers did not comply with the Order nor did he offer this court any explanation for his failure to do so.

[52] In addition to not providing evidence of past efforts to find employment, Mr. Demers also failed to advise of any plan or ongoing effort to obtain more remunerative employment.

[53] Mr. Demers does not dispute the evidence presented regarding his past income or employment. In fact, he portrays himself as having considerable competence and ability. Considering the historical evidence of earnings in tandem with his failure to demonstrate any effort to find employment other than his current position, leads me to conclude that Mr. Demers is intentionally under-employed. Intention to evade child support is not needed to support a finding of intentional under-employment. (See Drygala v. Pauli).

#2. Is the intentional under-employment or unemployment required by virtue of the payor’s reasonable educational or health needs, the needs of a child of the marriage or any child under the age of majority?

[54] The answer to this question is no. The children live primarily with their mother and Mr. Demers did not lead any evidence to indicate that he fell within the health or education exceptions. Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. (See Drygala v. Pauli).

#3. If the answer to #2 is no, what income is appropriately imputed in the circumstances?

[55] Considering Mr. Demers’ education, past employment and past income, I regard the request to impute income of $30,000.00 is not unreasonable. Indeed, in oral argument, Mr. Demers did not resist having income of $30,000.00 imputed to him and said the amount “seems fair”. However, he then asked that the increased child support payment not take effect until March, 2018. He explained that his job with the pool company would not provide him with much work until spring.

[56] It is difficult to accept Mr. Demers’ request to delay payment of increased child support as reasonable when he failed to produce evidence of his efforts, if any, to obtain employment after separation that might be seen as commensurate with his education and experience. The parties have two children to support. Ms. Demers is doing her part whereas the only evidence of employment led by Mr. Demers was of a job obtained just shortly before the motion was heard that would not start in earnest until spring. He said nothing about efforts to find employment between the date of separation and the motion or any ongoing efforts to find more remunerative employment in the future.

[57] For the reasons given, I order Mr. Demers to pay child support to Ms. Demers for Liam and Jordan in the amount of $438.00 for October and November, 2017. This amount is based on the Child Support Guidelines, the 2011 tables and annual income of $30,000.00. Effective December 1, 2017, the child support payable shall increase to $459.00 per month in accordance with the November, 2017 tables. Child support shall be paid on the first day of each month.

Issue #6: Is Ms. Demers to be named as the irrevocable beneficiary of Mr. Demers’ life insurance policy as security for his child support obligation?

[58] Ms. Demers asks that she be named the irrevocable beneficiary of Mr. Demers’ life insurance policy as security for his child support obligation. The only evidence produced of a beneficiary designation by Mr. Demers is a copy of an insurance application that he made in 1999 to obtain life insurance coverage. That application requested that Ms. Demers be named as the beneficiary but no current proof of coverage or beneficiary designation has been provided in this litigation. In response to Ms. Demers’ request that she now be designated as the sole irrevocable beneficiary, he states only that this is the first time he has been asked to do so. I, therefore, order that Mr. Demers designate Ms. Demers as the sole irrevocable beneficiary of his life insurance and within 21 days, he shall provide proof that the designation has been made by the insurance company.

Issue #7: Is this a case for the pre-trial of the matrimonial home?

[59] Ms. Demers was representing herself when she commenced this Application and she did not specifically plead the sale of the matrimonial home under the Partition Act, R.S.O, 1990, c. P.4. Moreover, her current motion does not plead the Partition Act, but her Factum does reference the Act as authority for the relief sought. It is, nevertheless, clear from the record that the sale of the home has been an issue in this litigation from the outset. It was considered at the Case Conference on January 9, 2017 when Mr. Demers indicated his wish to purchase Ms. Demers interest in the home. Justice Roger’s Order gave him until April 28, 2017 to provide proof of financing but he could not do so.

[60] In my view, Mr. Demers will not be prejudiced by the court deciding the issue of sale on this motion and I order that the Application is amended to include a claim for the sale of the matrimonial home under the Partition Act. Without a claim under the appropriate legislation, the court may refuse to grant the order. (See Mignella v. Federico, 2012 ONSC 5696).

[61] Ms. Demers argues that she needs to realize her equity in the matrimonial home in order to pay debts and to secure alternate housing for herself and the boys. Her current accommodation with her sister-in-law was intended to be temporary yet they have been there for over a year and a half now and four of them share three bedrooms. On the other hand, Mr. Demers continues to live in the three bedroom matrimonial home and from time to time, he rents out rooms to help pay the bills.

[62] Mr. Demers’ evidence indicates his resistance to the sale of the house. At first, he said that he opposed the sale until Ms. Demers could tell him where she intended to move with the boys once she was able to do so. He said that he needed this information in order to know where he too should move following the sale of the house. Most recently, Mr. Demers requested that he be granted more time to determine if he could get the necessary financing to buy the house now that he had employment. Other than stating his current wages of $15.00 an hour, Mr. Demers did not provide any corroborating evidence of employment such as a letter from his employer or a pay stub. It is also difficult to imagine that he would now qualify for the level of borrowing needed on the basis of his recent employment.

[63] In submissions, Mr. Demers put forth yet a third position regarding the sale of the house. He stated that if Ms. Demers remains in the North Gower/Richmond school catchment area with the boys as he argues they should, the house should be sold. If, however, they do not stay there, he says that it would be in the best interests of the children if Ms. Demers kept the house. This option seems to align somewhat with an adjunct request made by Ms. Demers for an opportunity to purchase Mr. Demers’ interest in the property if she can qualify for financing before a third party offer to purchase has been accepted. In other words, she wants to list the property as soon as possible with a right of first refusal. The court, however, has no authority to provide for a right of first refusal when ordering the sale of a matrimonial home. (See Martin v. Martin, 1992 7402 (ON CA), 1992 CarswellOnt 226 (C.A.)).

[64] Authority for the pre-trial sale of the matrimonial home is found under the Partition Act insofar as it provides a joint owner of property with a prima facie right to realize his or her interest through a sale. Section 2 states that all joint tenants and tenants in common may be compelled to make sale of the land, or any part thereof. Section 3 provides that any person interested in land in Ontario may bring an action or make an application for the sale of such land under the directions of the court if such sale is considered to be more advantageous to the parties. The right to a sale prior to trial is not, however, absolute and should not be allowed if there is likely prejudice to the substantial rights of the other joint owner under the Family Law Act. In such cases, an application under the Partition Act should be deferred until the matter is decided at trial (See Silva v. Silva, 1990 6718 (ON CA), 1990 CarswellOnt 319, (C.A.)).

[65] In this case, Mr. Demers has not established that he will suffer any prejudice if the matrimonial home is sold prior to trial. He does not have an order for exclusive possession nor has he demonstrated a case for one. To the extent that an equalization payment is owed, the available evidence indicates that it will be small and in favour of Ms. Demers. Moreover, this is not a situation where a trial date is near or even available within a short period of time. For these reasons, I find that Ms. Demers’ right to realize her joint interest in the matrimonial home prevails and order that the property be listed for sale with a real estate agent.

[66] Ms. Demers asks the court to fix certain terms of the sale. In particular, she seeks to have the house listed at $292,000.00 as recommended by the agent who valued the property. Mr. Demers agrees with this list price. Ms. Demers also asks that she be authorized to list the home without Mr. Demers’ signature if they cannot agree on who the listing agent will be within 20 days and that Mr. Demers’ consent be dispensed with on any offer of $289,000.00 or higher, if he does not accept. Finally, she asks that $20,000.00 be released to each of them from the net proceeds of sale with the balance to be kept in trust pending agreement or further court order. Based on the evidence before me, I see no prejudice to the release of funds as requested. I am not, however, prepared at this stage of the proceedings to dispense with Mr. Demers’ consent to the listing agreement or the terms of sale. If these details cannot be resolved cooperatively between the parties as and when required, I may be spoken to as provided below.

Issue #8: Is additional disclosure required from Mr. Demers?

[67] Ms. Demers seeks production of Mr Demers’ full Income Tax Returns for 2014, 2015 and 2016. She also states that there was a period of time when he contributed to a 401K in the United States and she seeks copies of these statements. Mr. Demers did not address these requests, however, there is no question that the disclosure sought is relevant to the issues between the parties and should have been provided a long time ago. I reiterate what has been said by many courts already. Each party has a positive obligation to make full and frank financial disclosure to the other. The responsibility to do so is independent of a disclosure request from the other party and compliance should not require a court order.

Issue #9: Should Ms. Demers be permitted to amend her pleadings?

[68] Finally, Ms. Demers seeks leave to amend her pleadings to claim occupation rent. Mr. Demers did not oppose this request or address it in any manner. Rule 11(3) of the Family Law Rules states that the court shall give permission to amend a pleading unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate. No such extenuating circumstances exist here and leave is granted to Ms. Demers to amend her application, as proposed. Mr. Demers shall have 30 days following service of the amended Application to serve his amended Answer.

Conclusion

[69] For the reasons given, I make the following order:

1. Mr. Demers’ motion is dismissed.

2. Ms. Demers shall have interim sole custody of the children, Liam Neill Demers, born March 22, 2004, and Jordan Armand Demers, born June 6, 2011.

3. Mr. Demers shall pick up the children from Ms. Demers’ home at 4:00 p.m. when his parenting time commences on a non-school day, unless otherwise agreed and Ms. Demers shall pick up the children from Mr. Demers’ home at 8:00 a.m. when his parenting time ends on a non-school day, unless otherwise agreed.

4. The children shall be with Mr. Demers from noon on December 24th until noon on Christmas Day and with Ms. Demers from noon on Christmas Day until noon on Boxing Day in odd-numbered years. In even-numbered years, the children shall be with Ms. Demers from noon on December 24th until noon on Christmas Day and with Mr. Demers from noon on Christmas Day until noon on Boxing Day. This Christmas schedule shall over-ride the regular access schedule.

5. Income of $30,000.00 is imputed to Mr. Demers. Based on this income, he shall pay Ms. Demers interim child support in the amount of $438.00 for October and November, 2017. Effective December 1, 2017 and on the first day of each month thereafter, Mr. Demers shall pay interim child support of $459.00 per month.

6. Mr. Demers shall immediately designate Ms. Demers as the sole irrevocable beneficiary of the full face value payable under his life insurance policy or policies. Within 21 days of this Order, he shall provide her with proof that the designation(s) have been made by the insurance company.

7. The matrimonial home shall be listed for sale at $292,000.00 within 30 days unless otherwise agreed. For so long as Mr. Demers remains in possession of the home, he shall cooperate with all requests for showings and ensure that the house is clean and presentable.

8. If the parties cannot agree on a listing agent within 20 days of this Order or if they cannot agree to accept any reasonable offer to purchase, either party may bring a motion before me, on short notice, if necessary. The motion is to be scheduled through the trial coordinators office and heard at 9:00 a.m. The motion shall not exceed 30 minutes in duration.

9. Within 30 days, Mr. Demers shall provide Ms. Demers with copies of his complete Income Tax Returns for 2014, 2015 and 2016, as filed with CRA. Before May 30th, 2018, the parties shall exchange complete copies of their 2017 Income Tax Returns. Notices of Assessment shall be exchanged upon receipt.

10. Ms. Demers has leave to amend her Application to plead occupation rent. Following service of the amended Application, Mr. Demers shall have 30 days to serve and file his amended Answer.

[70] The parties are encouraged to resolve the issue of costs. If they cannot do so, Ms. Demers shall provide the court with her costs submissions within 15 days. Mr. Demers shall then have 10 days to provide his costs submissions and Ms. Demers will have a further 5 day right of reply. Submissions shall not exceed 2 pages in length exclusive of Bills of Costs and Offers to Settle.

Madam Justice D. Summers

Date: January 30, 2018

COURT FILE NO.: FC-16-2418 DATE: 2018/01/30

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Yonna Demers, Applicant -and- John Gilles Demers, Respondent

BEFORE: Justice Darlene Summers

COUNSEL: Meagan LePage, for the Applicant Respondent is self-represented

ENDORSEMENT

SUMMERS J.

Released: January 30, 2018