Court File and Parties
Court File No.: FC-16-2356 Date: 2018/09/07 Superior Court of Justice - Ontario
Re: Julia Smoak-Huszar, Applicant -and- Tomi Huszar, Respondent
Before: Justice P. MacEachern
Counsel: Michael Wonham, for the Applicant Ross Stewart, for the Respondent
Heard: September 4, 2018
Endorsement
Overview
[1] This is a motion and cross-motion with respect to interim spousal support, the interim parenting schedule, and where the youngest child will attend school.
[2] For the reasons set out below, I dismiss the Respondent’s motion to suspend or terminate the interim without prejudice spousal support payable under the consent Order of April 4, 2018, adjourn the review of interim spousal support provided under that Order sine die, provide for the return to the interim alternating week-on week-off schedule that has been in place for the children since at least 2017, and Order that the parties request a cross boundary transfer so that the youngest child will attend Trillium Public School if accepted, and if not accepted, Fallingbrook Elementary.
Background
[3] The parties were married on September 10, 1994. They separated on September 20, 2015. They were married 21 years.
[4] There are two children of the marriage, ages nine and eleven.
[5] This Application was commenced on November 2, 2016. In her Application, the Applicant seeks a divorce, spousal support, child support, joint custody of the children or, in the alternative, an order for sole custody, an order that the children reside equally with both parties or, in the alternative, that their primary residence be with the Applicant, and an equalization of the parties’ net family property.
[6] In the Respondent’s Answer, he seeks joint custody of the children, with an equal week-on week-off schedule, that child support be paid based on a set-off formula and the sale of the matrimonial home.
[7] A case conference was held on January 25, 2017. At the case conference, on the consent of the parties, Master Fortier granted a without prejudice Order which provided for the parties to have joint custody of the children, with equal timesharing on a week-on week-off basis. The Respondent was required to pay monthly child support in the amount of $893 per month (based on a set-off calculation), and to pay the Applicant, who remained in the matrimonial home, $600 per month to be applied towards the mortgage. The Order specifically provided that either party may bring a motion: the Applicant with respect to interim spousal support and the Respondent with respect to listing the sale of the matrimonial home.
[8] The Applicant served a Notice of Motion returnable on September 12, 2017 seeking an interim Order for the youngest child, Juliana, to attend Dunning Foubert Elementary School and for a long motion to be scheduled to address the issues of the Juliana’s school, interim spousal support, and sale of the matrimonial home. This motion was precipitated when the Respondent enrolled Juliana, without the Applicant’s consent, in a new school located in the school district of his new home, Avalon Public School. The Applicant’s motion was adjourned sine die, apparently after the parties were able to agree that Juliana would continue to attend Dunning Foubert Elementary School.
[9] A long motion was then scheduled for January 30, 2018. The Respondent filed a motion returnable on January 30, 2018 seeking the sale of the matrimonial home. The Applicant filed a cross-motion seeking interim child and spousal support and for 50% of the net proceeds of sale of the matrimonial home to be paid out to her upon the sale. This motion was also adjourned.
[10] On April 4, 2018, on the consent of the parties, Justice Phillips granted an Order providing for various terms. This included provisions for the matrimonial home to be listed for sale, with each party to receive the sum of $15,000 from the proceeds of sale after paying the mortgage and expenses of sale, and the balance to be held in trust pending the parties’ direction. The Order directed the parties to attempt to resolve, following the sale of the matrimonial home, the issue of equalization and division of the net proceeds. In addition, the Order provided:
“5. On an interim, without prejudice basis, commencing February 1, 2018, the Respondent shall pay to the Applicant monthly spousal support payments in the amount of $886.
The Applicant shall provide to the Respondent a list detailing all jobs applied for, interviews attended and/or educational re-training undertaken during the preceding calendar year. Thereafter, the Applicant shall serve an updated list detailing the same items on a monthly basis during the time period that interim spousal support remains payable.
On or after August 1, 2018, the issue of the Respondent’s obligation to make interim spousal support payments to the Applicant shall be reviewed. This review shall not be presumptive of any material change in circumstances.”
[11] The interim spousal support amount of $886 per month was the Spousal Support Advisory Guidelines calculation for mid-range spousal support based on the Applicant’s projected income for 2018 being $25,480 and the Respondent’s 2015 income of $84,751, taking into consideration the child support that was also being paid.
[12] Despite the various agreements to complete disclosure and attempt to resolve the issue of the equalization payment, the parties have not yet finalized the property issues and the equalization payment, which the parties agree is owed by the Respondent to the Applicant, has not yet been paid.
[13] This matter is not yet scheduled on the trial list, nor has a settlement conference taken place.
[14] After the parties’ separation, the Applicant remained in the matrimonial home until it was sold on June 29, 2018. The net proceeds of sale are limited to approximately $5,500 due to an unexpected shortfall. These proceeds remain in trust. Neither party received the $15,000 payment from the proceeds envisioned by the April 4, 2018 Order.
Parties’ Motions Heard September 4, 2018
[15] The motions before me on September 4, 2018 are the Respondent’s Notice of Motion dated June 8, 2018 and the Applicant’s Notice of Cross-Motion dated August 27, 2018.
[16] In his motion, the Respondent seeks:
a. That pursuant to paragraph 7 of the April 4, 2018 Order, the Respondent’s obligation to make interim without prejudice monthly spousal support payments to the Applicant be reviewed;
b. A declaration that the Applicant has, without reasonable justification or excuse, failed to provide the provisions of paragraph 6 of the April 4, 2018 Order, namely that she has failed to provide to the Respondent a list detailing all jobs applied for, interviews attended and/or educational retraining undertaken in the preceding calendar year. Further, the Applicant has also, without reasonable excuse or justification, failed to provide any monthly updates to that list;
c. An Order that paragraph 5 of the April 4, 2018 Order be varied by suspending the Respondent’s obligation to make interim, monthly without prejudice spousal support payments to the Applicant in the amount of $886 for so long as she remains non-compliant with the provisions of paragraph 6 of the Order of Justice Phillips. In the alternative, an Order terminating the obligation of the Respondent to make interim monthly without prejudice spousal support payments to the Applicant; and
d. An Order that the primary place of residence of the children shall be the residence of the Respondent.
[17] Based on the Respondent’s affidavit sworn in support of his motion on June 8, 2018, it appears that the relief requested with respect to the primary place of residence of the children is solely targeted at the place of residence for school purposes rather than being a request to change the alternating week-on week-off schedule. This was confirmed by the Respondent’s counsel at the hearing of the motion.
[18] The Respondent’s affidavit sworn August 29, 2018 also suggests that he is seeking sole custody of the children. At the outset of the motion, the Respondent’s counsel advised that this was in error and should not have been contained in the affidavit, as he is not seeking sole custody on this motion.
[19] The Applicant opposes the Respondent’s motion, and filed her own cross-motion, dated August 27, 2018, seeking an Order that the children continue to attend school at Trillium Public School. The Applicant also sought the Respondent’s consent, which was agreed upon at the motion, to obtain statements for the line of credit on the matrimonial home.
Spousal Support
[20] The Applicant’s claim for spousal support is based on both compensatory and non-compensatory principles. The Applicant’s states that she had to forgo employment during the marriage due to the family moving for the Respondent’s career, including an original move from the U.S. to Canada, and then living overseas, at three different postings, for a seven year period due to the Respondent’s career in international development. At the time of separation, the Applicant had not been working outside of the home for a number of years and had no income. The Applicant began working at Farm Boy in October of 2016. In 2017, the Applicant’s income was approximately $17,500. In her affidavit sworn January 25, 2018, the Applicant estimated that her income in 2018 would be $25,480, based on minimum wage for 35 hours per week, for 52 weeks of the year.
[21] In his Answer, the Respondent asserts that the Applicant is not entitled to any spousal support, even though his income is approximately $85,000 per year, and that the Applicant has a long standing pattern of avoiding employment, such that she has, for a number of years, been voluntarily unemployed or underemployed.
[22] In his affidavit sworn June 8, 2018, the Respondent states that the Applicant has significant job skills she is not utilizing, that she holds a Bachelor of Science degree, and that she had numerous job opportunities when they were posted overseas that she did not pursue. The Respondent argues that the Applicant is capable of earning more than minimum wage jobs, and has an obligation to make additional efforts to seek and maintain employment but is refusing to do so. The Respondent takes the position that interim spousal support should be suspended while the Applicant is non-complaint with the April 4, 2018 Order or, in the alternative, spousal support should be terminated on the basis that the Applicant has failed to take reasonable steps to provide for her own financial needs since separation.
[23] Neither party provided an up-to-date sworn financial statement nor confirmation of their current income for the year to date. The Respondent’s only financial statement filed in the Continuing Record is his financial statement sworn December 22, 2016 which reports that his 2015 income was $84,751. The Applicant has filed two financial statements in the Continuing Record, one dated October 26, 2016 and a second dated January 15, 2018. Neither party has complied with their obligation pursuant to [Rule 13(12) of the Family Law Rules] [1] to provide updated financial statements. This is problematic given that the Respondent’s motion seeks a review of spousal support.
[24] I am troubled that, given this is the Respondent’s motion on interim support, he has failed to provide any up-to-date information with respect to his income subsequent to the financial statement that he swore on December 22, 2016. The most recent information I have for the Respondent’s income is from 2015. The Respondent’s position is that his ability to pay spousal support is immaterial to the issues before me, and that regardless of his income, spousal support should be suspended or terminated because the Applicant has failed to take additional steps to seek or find higher paying employment, which he states should be construed as a breach of the April 4, 2018 Order.
[25] I do not agree. The April 4, 2018 Order requires the Applicant to provide reports of her job search and retraining efforts to the Respondent. I find that she has done so, by way of her counsel’s letter dated May 2, 2018 and her affidavits filed on this motion. The Applicant’s evidence is that she has not applied for other jobs, has not attended any interviews and has not attended any retraining. She does state that she has spoken to her current employer about a possible promotion, and is hopeful to be offered a promotion in the near future.
[26] Even if the Applicant had failed to provide the required information, I would not suspend or terminate her interim spousal support in the face of an Order that does not specify that this as the consequence of her failing to provide the required information.
[27] Essentially, the Respondent asserts that interim spousal support should be suspended because he does not like the information the Applicant has provided. He argues that the reporting requirements under the April 4, 2018 Order, when coupled with the review clause, imposes a clear duty on the Applicant to take steps to become, in his words, “financially self-sufficient”, and that in failing to take steps to do so, she is in breach of the Order and the interim without prejudice spousal support should be suspended until the Applicant provides proof that she is taking steps to become self-sufficient.
[28] I reject this interpretation of the April 4, 2018 Order. If the parties intended interim spousal support to be suspended or terminated if the Applicant failed to take immediate steps to earn additional income, they should have specified this in the April 4, 2018 Order. They did not. I also find that it would have been very unusual for the Applicant, in the circumstances that appear to exist in this matter, to agree to such consequences, given this is interim without prejudice support, not a final support order; the duration of the parties’ marriage; the three years during the marriage that the Respondent admits the Applicant was out of the workforce due to childcare responsibilities (he takes issue with child care being the reason for a longer interruption in her career); the number of overseas postings that took place during the marriage due to the Respondent’s career, which would have had at least some impact on the Applicant’s career development; and the Applicant’s need for support and the Respondent’s ability to pay.
[29] The April 4, 2018 Order does provide for a review of the interim without prejudice spousal support after August 1, 2018. The Respondent has asked for this review. I was prepared to conduct this review on this motion, and make an order for interim spousal support in accordance with the law that applies to claims for interim relief, which is to hold the parties over to trial where there can be a full examination of the issues on oral evidence.
[30] When I raised the matter of reviewing spousal support, counsel for both parties requested that I not do so on the record before me, given that neither party had provided up to date income information and apparently there have been recent changes in the Respondent’s income, which were previously undisclosed. Accordingly, I will not make an order with respect to interim spousal support. But I also decline to grant the Respondent’s request to suspend or terminate the interim spousal support – the consequence, therefore, is that the Order of April 4, 2018 requiring the Respondent to pay interim without prejudice spousal support to the Applicant of $886 per month, remains in place.
Parenting Schedule
[31] The next issue on this motion is the children’s residential schedule. This is perhaps a non-issue because both of the parties are in agreement that the children should continue on an alternating week-on week-off schedule. In addition, the Respondent’s motion does not seek to change the schedule nor does the Applicant’s cross-motion. This issue only arises because there was a disruption in the schedule in the summer of 2018, due to the Applicant being unable to obtain replacement housing after the sale of the matrimonial home on June 29, 2018, particularly given that it turned out there were no proceeds from the matrimonial home that could be shared between the parties due to the unexpected shortfall. Given this, the children have been with the Respondent for July and August of 2018.
[32] The Respondent takes the position that there should be a gradual reintegration of the children back into the alternating week-on week-off schedule. The Respondent proposes that the children be in the care of the Applicant from 10:00 a.m. to 5:00 p.m. on Saturday and Sunday, September 15 and 16, 2018; on September 24, 2018 from 4:00 p.m. to 7:00 p.m.; on the weekend of September 29, 2018 from Saturday at 10:00 a.m. to Sunday at 5:00 p.m.; and for the alternating week-on week-off schedule to begin October 7, 2018.
[33] The Applicant seeks an earlier return to the alternating week-on week-off schedule. She is moving into her new accommodations on September 15, 2018. The Applicant proposes to have the children in her care on the weekend of September 8/9, 2018 (on September 8 and 9, 2018, from 10:00 a.m. to 8:00 p.m. on each day); the weekend of September 15, 2018 from 10:00 a.m. on September 15 to 5:00 p.m. on September 16; and for the alternating week-on week-off schedule to be in place effective September 23, 2018.
[34] It is common ground between the parties that the children’s best interests are served by being in an alternating week-on week-off schedule. This is the schedule has been in place since at least January 2017.
[35] The Respondent takes issue with some of the events that occurred this summer. He argues that the Applicant should have been able to plan for alternate accommodations earlier than September 15, 2018, and also complains that the Applicant did not communicate with him or the children during the summer of 2018 regarding her whereabouts or plans.
[36] The Applicant states that the children were with the Respondent in Edmonton for the first two weeks of July under their previously arranged holiday schedule, and that after their return, she requested access but this was denied by the Respondent.
[37] Again, neither party has actually specified in their Notice of Motion that they seek a change in the parenting schedule set out in the January 25, 2017 Order, which provides for the children to reside with the parties on an equal week-on week-off basis. Neither party asserts that the alternating week-on week-off schedule is not in the children’s best interests. The January 25, 2017 Order remains in place. There is no evidence before me which supports changing this Order, except for the Applicant’s agreement, given her proposal, for there to be a brief adjustment due to the change in her living accommodations necessitated by the sale of the matrimonial home.
[38] The issue is the best interests of the children. The children are ages 9 and 11. The Applicant does not have alternate accommodations for the children to stay with her overnight or on the alternating week-on week-off schedule until September 15, 2018, which is when she moves into her new residence. On the evidence before me, I am satisfied that a period of graduated reintegration as proposed by the Respondent is not required nor in the children’s best interests. I find the Applicant’s proposal to be a reasonable one, particularly in light of what the status quo has been for timesharing of the children. Accordingly, I grant an interim Order that the children be in the Applicant’s care as follows:
a. On the weekend of September 8/9, 2018 - on September 8 and 9, 2018, from 10:00 a.m. to 8:00 p.m. on each day,
b. On the weekend of September 15, 2018 from 10:00 a.m. on September 15 to 5:00 p.m. on September 16, and
c. For the alternating weeks effective September 23, 2018.
[39] On an interim basis, I Order that the parenting schedule for the children, effective September 23, 2018, shall continue on the alternating week-on week-off schedule. As set out in the January 25, 2017 Order, any additional time sharing, including statutory holidays, school holidays, and birthdays to take place on a schedule to be agreed to between the parties.
Juliana’s School
[40] The third issue between the parties on this motion is the issue of Juliana’s school. The parties have interim without prejudice joint custody of the children pursuant to the January 25, 2017 Order. Despite this joint custody, the Respondent enrolled Juliana in a new school, Fallingbrook Elementary, without the Applicant’s consent. Fallingbrook is located in the Respondent’s school district.
[41] The older child is able to continue to attend his previous school, being Trillium Public School, given that he is enrolled in a French program, which allowed him to continue in that school. Juliana is in an English program and so the same option does not apply to her.
[42] The Applicant wants Juliana to also attend Trillium Public School so that both children can attend the same school and so that they can be transported to and from school together. She states that she attempted to address the issue of Juliana’s school with the Respondent in May of 2018, through correspondence from her counsel, to which the Respondent did not respond.
[43] The Respondent states that Juliana cannot attend Trillium Public School because neither parent lives in that school district. He states that he enrolled Juliana in Fallingbrook Elementary when he was unable to communicate with the Applicant this summer. He states that it is in Juliana’s best interests to attend Fallingbrook Elementary because she will be able to walk to and from school to his residence, and would not need before or after school care because he is often at home, as is the 16-year-old daughter of his new partner, and either of them can provide care if needed. He also states that the Court should consider that Juliana began her school at Fallingbrook Elementary on September 4, 2018 (the same day as the motion was heard) and changing her school to Trillium Public School, which would require a cross border transfer which may not be accepted by the school board, would be needlessly disruptive to her.
[44] The Respondent’s arguments are similar to the position he put forward in September of 2017 when he also sought to change Juliana’s school to Fallingbrook Elementary. The parties ultimately reached an agreement at that time for Juliana to continue in her previous school. It is apparent that the Respondent has wanted to change Juliana’s school for some time, and this weakens his argument with respect to the supposed benefits of Fallingbrook Elementary.
[45] The issue is what school Juliana should attend, based on her best interests. Based on all of the evidence before me, I find that it is Juliana’s best interest to attend, if possible, Trillium Public School, being the same school that her older brother attends. The parties are in agreement that Trillium Public School is the best school for the oldest child and so I am finding, on an interim basis and in the absence of other evidence to the contrary, that this similarly applies to Juliana. The fact that Juliana is not in the French program does not change this finding. Nor does the fact that Juliana has started her year at Fallingbrook and, if the transfer is accepted, will need to change schools.
[46] Given the above, I Order that both parties shall immediately apply for a cross boundary transfer for Juliana to attend Trillium Public School and to complete all required documents in order for her to do so. If this transfer is accepted, Juliana shall attend Trillium Public School along with her older brother. If the cross border transfer is not accepted, Juliana shall attend Fallingbrook Elementary. Pending the determination of the request for the cross boundary transfer, Juliana shall continue to attend Fallingbrook Elementary.
[47] With respect to Juliana’s primary residence for school purposes, I Order that this be identified as either the Applicant’s or the Respondent’s residence, depending on what is required to place Juliana in the best position to have the request for a cross boundary transfer accepted or, failing the acceptance of the transfer, her primary residence for school purposes only shall be the Respondent’s.
[48] The Respondent states that the oldest child’s primary residence for school purposes only must remain his residence so that the child can continue at Trillium Public School. Presumably, the Respondent has already notified the school board of this, and I see no reason to change this.
Costs
[49] Both parties sought their costs of this motion. If the parties are unable to agree on the issue of costs, the Applicant may serve and file submissions with respect to costs on or before September 21, 2018. The Respondent may serve and file his submissions with respect to costs on or before September 28, 2018. Cost submissions of both parties shall be no longer than three pages in length, plus any offers to settle and bills of costs, and shall comply with [Rule 4 of the Rules of Civil Procedure] [2].
Orders
[50] Therefore, I Order the following:
a. On consent, the Respondent shall provide his consent to allow the Applicant to obtain the statements for the line of credit on the matrimonial home;
b. The Respondent’s motion to suspend or terminate the interim without prejudice spousal support payable by him to the Applicant pursuant to the Order of Justice Phillips dated April 4, 2018 is dismissed;
c. On consent, the Respondent’s motion to review spousal support pursuant to the Order of Justice Phillips dated April 4, 2018 is adjourned sine die;
d. On an interim basis, the children shall be in the Applicant’s care as follows:
i. On the weekend of September 8/9, 2018 - on September 8 and 9, 2018, from 10:00 a.m. to 8:00 p.m. on each day,
ii. On the weekend of September 15, 2018 from 10:00 a.m. on September 15 to 5:00 p.m. on September 16, and
iii. For the alternating weeks effective September 23, 2018.
e. On an interim basis, effective September 23, 2018, the parenting scheduled for the children shall continue on the alternating week-on week-off schedule, with any additional time sharing, including statutory holidays, school holidays, and birthdays to take place on a schedule to be agreed to between the parties;
f. Both parties shall immediately apply for a cross boundary transfer for Juliana to attend Trillium Public School and to complete all required documents in order for her to do so. If this transfer is accepted, on an interim basis Juliana shall attend Trillium Public School along with her older brother. If the cross border transfer is not accepted, on an interim basis Juliana shall attend Fallingbrook Elementary. Pending the determination of the request for the cross boundary transfer, Juliana shall continue to attend Fallingbrook Elementary;
g. On an interim basis, Juliana’s primary residence for school purposes only shall be identified as either the Applicant’s or the Respondent’s residence, depending on what is required to place Juliana in the best position to have the request for the cross boundary transfer accepted or, failing the acceptance of the transfer, her primary residence for school purposes only shall be the Respondent’s; and
h. If the parties are unable to agree on the issue of costs, the Applicant may serve and file submissions with respect to costs on or before September 21, 2018. The Respondent may serve and file his submissions with respect to costs on or before September 28, 2018. Cost submissions of both parties shall be no longer than three pages in length, plus any offers to settle in bills of costs, and shall comply with Rule 4 of the Rules of Civil Procedure.
Justice P. MacEachern Date: September 7, 2018
Footnotes
[1] Family Law Rules, O. Reg. 114/99, as am. [2] Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as amended