COURT FILE NO.: FS-17-90027-00 DATE: 2019 03 04
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
SHAWN MORRIS, Applicant Self-Represented Applicant.
- and -
TINA NICOLAIDIS Respondent Heather Hansen for the Respondent
HEARD: December 31, 2018 at Brampton
REASONS FOR DECISION Emery J.
[1] Technically, the parties brought four motions for the court to hear on the last day of the year to cap six months of litigation activity. The applicant husband, Shawn Morris brought three motions returnable on July 25, September 25 and December 31, 2018 respectively. The applicant wife, Tina Nicolaidis brought one motion for the court to hear on December 31, 2018. Despite the intertwining of questions the court is asked to decide, the issues on these motions can be distilled down to the following:
- Is a further parenting order required under all of the circumstances?
- Is it appropriate to make a determination on what equalization payment Ms. Nicolaidis should pay to Mr. Morris on a final basis, or should he first receive the disclosure he seeks for equalization to be determined at a later time?
- Should Mr. Morris pay retroactive child support to Ms. Nicolaidis on the evidentiary record of this motion, and if so, in what amount?
[2] The parties were married on January 11, 2014. They separated on August 2, 2016 after approximately two and a half years of marriage.
[3] The parties have two children from the marriage. Makhai Raveal Morris was born on April 15, 2015 and will soon be four years old. Anaia Marie Nicolaidis-Morris was born on January 16, 2017 and is now two years old.
[4] Both parties are employed with interesting, unique and busy careers. Mr. Morris works as a WestJet customer service agent. He is also a firefighter in Toronto. Ms. Nicolaidis operates a dance studio, City Dance Corps. She holds one third of the shares in a corporation that owns City Dance Corps, along with her sister and brother in law who hold the balance of all issued shares equally.
Motions leading up to December 31
[5] Mr. Morris brought a motion on July 25, 2018 to seek an order granting joint or shared custody of the children to the parties with shared parenting time in regard to both children. Mr. Morris also asked for an equalization payment after obtaining full disclosure on all property and assets owned by Ms. Nicolaidis and himself. Mr. Morris has also asked for an order to decrease child support payments that he has been paying to Ms. Nicolaidis, as the children reside primarily with her.
[6] On August 21, 2018, Justice Bloom heard a contested request to adjourn this motion, as counsel for Ms. Nicolaidis was away. Mr. Morris would not consent to adjourn the motion to a mutually convenient date. Justice Bloom allowed the adjournment, ordering that the motion be split into two parts. He ordered that part of the motion about access issues be addressed on September 13, 2018. The balance of the motion was adjourned to December 31, 2018 as a long motion date.
[7] On September 13, 2018, Justice McSweeney made a temporary order on consent fixing the primary residence of the children with Ms. Nicolaidis, and an access schedule for Mr. Morris, pursuant the terms of Minutes of Settlement filed.
[8] On September 25, 2018, Mr. Morris brought a second motion concerning his right to information about the children and access related issues. He also asked for an order requiring Ms. Nicolaidis to provide the disclosure he required pursuant to a Form 20 he has served seeking information. Justice Bloom heard that submissions on that motion on October 16, 2018 and adjourned that part of the motion about disclosure to be heard as part of the long motion on December 31, 2018.
[9] The parties re-attended before Justice McSweeney on October 30, 2018 to make submissions on the interpretation of, and clarification to the order made on September 13, 2018 pursuant to the Minutes of Settlement filed that day.
[10] Mr. Morris brought a third motion that was returnable on December 31, 2018. In the notice of motion, Mr. Morris reiterated the orders he is asking the court to make. He also took that opportunity to describe the difficulties with Ms. Nicolaidis to find workable solutions for his access to the children under Justice McSweeney’s order.
[11] Ms. Nicolaidis also brought a motion returnable on December 31 to obtain a fixed timetable for Mr. Morris to exercise his access to the children, and for summary judgment on the equalization payment she is to pay Mr. Morris as she has the greater value of net family property.
[12] The parties agree that an order shall go, on consent, to sever the divorce claim from all other relief.
Should any change be made to the temporary order regarding parenting?
[13] The temporary order made by Justice McSweeney on September 13, 2018 provided for the children, Makhai and Anaia, shall reside primarily with Ms. Nicolaidis, while providing generous access time for their father according to the guidelines their parents agreed upon.
Position of Mr. Morris
[14] Mr. Morris seeks and order to replace the parenting provisions ordered by Justice McSweeney with a fixed access timetable set out in a draft separation agreement that he sent to Ms. Nicolaidis in December. He has attached the draft separation agreement containing this timetable as exhibit H to the affidavit he swore in support of his third motion returnable on December 31, 2018. Mr. Morris submits that the parties have encountered scheduling difficulties and conflict with each other when attempting to make and keep pick up and drop off arrangements for the children. He submits that this fixed schedule is necessary for the well-being of the children.
[15] Mr. Morris also seeks a final order granting joint custody of the two children to both parents. He argues that the power to make joint decisions would be in the best interest of the children. He addresses the argument he anticipates Ms. Nicolaidis will make, that joint custody is impractical because of the conflict between the parents, by stating that one parent cannot create problems regarding parenting and access time with the other parent, and then use that conflict as a basis to claim sole custody. He is seeking an access schedule that would give him access to both children for two weeks every month, and a parenting plan that enables input from each parent for bringing up both children.
Position of Ms. Nicolaidis
[16] Ms. Nicolaidis also seeks an order to fix a parenting schedule in the form of the timetable suggested in her motion materials, or alternatively, for the parties to live by the access schedule they agreed upon that was incorporated on consent into the order made by Justice McSweeney. Ms. Nicolaidis states that while there has been some confusion about interpreting the access schedule, the parties, and the children, require a fixed parenting schedule.
[17] Ms. Nicolaidis also submits that the issue of joint custody is best left for trial. She submits that the court should maintain the status quo until these issue can be determined at that time as stability is in the best interest of the children. Ms. Nicolaidis also states that there is no need for an immediate change of interim custody.
[18] Ms. Nicolaidis describes in her affidavits how she and Mr. Morris often disagree when it comes to parenting decisions. She states that joint custody would not be practical or realistic given the inability of the parties to communicate, and the high level of conflict between them.
[19] It should not surprise Mr. Morris to learn that Ms. Nicolaidis takes the position that she should continue to act as the primary parent for the children. She states that she can and will make decisions in their best interests, after consulting with, and keeping Mr. Morris informed.
Analysis
[20] The order made by Justice McSweeney on September 13, 2018, based on the Minutes of Settlement entered by the parties and filed with the court, set out the parenting arrangements for the parties to share with respect to both children until a final order is made for custody and access. The parties agreed conceptually to access guidelines that identified the following objectives:
d. Shawn will have 2 days of weekday access with the children every week, with 4 overnights in a 14-day cycle. Currently, only Makhai is having regular overnight access in accordance with this schedule. Anaia will commence regular overnight access in accordance with the same schedule on January 18, 2019. e. No more than 2 overnights will be consecutive. f. The remaining 2 overnight visits will occur on weekdays where Shawn already has the children in his care for daytime visits. g. The schedule will be arranged such that both parties have the benefit of at least one uninterrupted weekend in a 14-day cycle. For clarity, Shawn will not select his daytime visits on Saturdays or Sundays.
[21] The parties did not commit to a structured timetable with specific dates because the predominant feature they had to work around was the 24 hour shifts that Mr. Morris works as a firefighter 7 days a month. As those shifts were at one time subject to scheduling on a month-to-month basis, Mr. Morris and Ms. Nicolaidis built in flexibility to schedule the access time for Mr. Morris to determine his access to both children as his shift schedule for an upcoming month became known. This is why the parties agreed to paragraph 4 of the order made by Justice McSweeney, which reads as follows:
The exact access dates will be selected by the parties on a monthly basis, in accordance with the Applicant's work schedule. The Applicant will provide his proposal by the 15th of the month for the following month. The Respondent will have 10 days to provide her comments or changes to the schedule. In the event of a dispute, the Applicant's proposed schedule will prevail. This arrangement is in place to facilitate the applicant's shift schedule. If the Applicant's work schedule changes such that he no longer works shift work, the parties will immediately review the schedule with an aim to creating consistency wherever possible.
[22] The shifts that Mr. Morris now works as a firefighter are now fixed. As a result, the parties know the shifts he has to work on any given week. The fixed shifts allow the court to set a structured access schedule for Mr. Morris to have the children.
[23] The evidence Mr. Morris has filed sets out many concerns he expresses about the lack of cooperation between the parties in arranging for access, and with respect to decision making regarding one or both children under the current order. The motion he is now bringing is about whether the temporary award made by Justice McSweeney should be altered to introduce a fixed structure pending trial. It is not a review of past complaints about a timetable fixed by principles and promises, and should not be viewed as having that purpose.
[24] Ms. Nicolaidis also expresses an inability to agree with Mr. Morris on a monthly parenting schedule pursuant to the current order. After setting out evidence of the difficulties she says she has encountered with Mr. Morris about scheduling, she states at paragraph 38 that “our family desperately needs a fixed, consistent schedule. Shawn works seven 24 hour shifts per month. These shifts do not change month to month. There is no reason we cannot have a fixed, monthly schedule.” After attaching a proposed schedule that fixes specific days and time on a four week plan for this access, she states: “I believe this fixed schedule is in the children’s best interests.”
[25] Deference is generally given to temporary orders that provide appropriate parenting and financial arrangements during a family case until an ultimate disposition of those child related issues is made. This deference is paid to discourage continuous motions that are sometimes brought for strategic or substantive reasons. Motions to vary temporary orders having the potential to divert or distract the time and resources of the parties from the orderly conduct of the case.
[26] For this reason, the court has developed the principle that a temporary order that is not made on a “without prejudice” basis will not be easily changed, unless the moving party can establish on evidence that there has been a material change in circumstance, or on consent. As the court explained in Grant v. Turgeon, the purpose of an interim order is to provide a reasonably acceptable solution to a difficult problem until trial. This is the reason the status quo is often favoured by the court and preserved by an interim order: Coe v. Tope, 2014 ONSC 4002 (SCJ) and Kimpton v. Kimpton.
[27] The temporary order made by Justice McSweeney to establish the parenting arrangements for both children as between the parties was not made on a “without prejudice” basis. While parties agree that a fixed, consistent schedule is required for the access Mr. Morris has been given by Justice McSweeney’s order, they do not agree on the terms for that schedule.
[28] Mr. Morris seeks a progressive parenting schedule that would ultimately provide him with equal access to both children. The schedule he asks the court to order is set out in the draft separation agreement he sent to Ms. Nicolaidis in late 2018. This is a document that Ms. Nicolaidis has not signed, and there is no evidence she has ever agreed to sign. Ms. Nicolaidis has provided a draft schedule to Mr. Morris, and she has also attached to her motion materials. This schedule has been designed to reflect the conceptual guidelines for shared parenting between the parties set out in Justice McSweeney’s temporary order. The details of that fixed schedule differs from the progressive and permanent shared parenting schedule proposed by Mr. Morris.
[29] Mr. Morris as the moving party bears the evidentiary burden to show that the relief he seeks should be granted. He must also discharge the onus as the moving party to prove that an intervening event has occurred that would, and should result in a different order: Biddle v. Biddle.
[30] Each of the parties urges this court to make an order setting out a fixed schedule because the parties have encountered a mutual lack of cooperation since Justice McSweeney made the consent order on September 13, 2018. I am not in a position to make findings of fact on the conflicting affidavits filed on this motion, or to assess the credibility of the affiants on the written record. However, I was advised by the parties in submissions that the material change in circumstances they both rely upon is that they cannot agree to a floating schedule on a month-to-month basis. To one thing they can and do agree: the mechanism provided by paragraph 4 of Justice McSweeney’s order is not working.
[31] I consider this court to have the authority to fix an access schedule in these circumstances, not because the parties cannot agree, but because this court has the inherent jurisdiction to make any change to an existing order that would be in the best interest of the children. In Gordon v. Goertz, [1996] 2 SCR 27, the Supreme Court of Canada, in what was admittedly an appeal of a motion to change a final order, ruled that upon the moving party satisfying the court of a material change in circumstances effecting the child had occurred, a judge must embark on a fresh inquiry into what is in the best interest of a child, having regard to all of the relevant circumstances relating to the needs of that child and the ability of each parent to satisfy those needs. The focus is on the best interest of the child, not the interest and rights of the parents.
[32] It is therefore necessary for the court to find the balance between the agreement in the Minutes of Settlement that formed the basis to Justice McSweeney’s order and any variation to that order that would serve the best interest of the children. I am satisfied that the inability of the parties to cooperate with each other to arrange the access schedule for Mr. Morris to the children on a month-to-month basis will affect his relationship with them. This will in turn impact on the best interest of those children. The order I make must preserve the objectives for that access while at the same time remain conceptually consistent with the form and duration of access enshrined in the previous order.
[33] I consider it to be in the best interests of the children to vary the order made by Justice McSweeney on September 13, 2018, as amended on October 30, 2018 by deleting paragraph 4 that allowed for this uncertainty, and replacing it pending trial with the timetable proposed by Ms. Nicolaidis attached as Schedule A to these reasons. I have chosen this schedule over the progressive timetable proposed by Mr. Morris because the schedule proposed by Ms. Nicolaidis is conceptually consistent with the access guidelines the parties had agreed upon before Justice McSweeney. I find this would be the least disruptive timetable to all other aspects of the order made on September 13, 2018.
[34] I also prefer the timetable proposed by Ms. Nicolaidis because Mr. Morris has not provided evidence that satisfies this court that his schedule is in the best interest of each child having regard to their young ages.
[35] I further order that the drop off time for Makhai on days he is not in school will be 10:00 am.
Motion seeking a final order for shared custody
[36] It should already be apparent from my order that reset the schedule for Mr. Morris to exercise access to the children pending trial that I am not granting the final order requested for shared custody of the children. His motion for greater involvement with the children is motivated by his intent to acquire equal parenting time, as well as to have a meaningful role in the decision making process over important facets in the lives of his children.
[37] Even though Mr. Morris has not framed his motion as such, he is in essence bringing a motion for summary judgement under FLR 16. A motion for summary judgment engages the evidentiary burdens discussed in Hryniak v. Mauldin, 2014 SCC 7. These evidentiary burdens require the moving party to put all evidence before the court that he would have for trial to show there is no genuine issuing requiring a trial. If he met that threshold, it would then be up to the responding party to put her best foot forward to show on the evidence that there is a genuine issue requiring a trial after all.
[38] I am of the view that the evidence that Mr. Morris has put forward on the motion for shared custody does not meet that threshold. In fact, it proves the opposite, that the parties as the parents of the children cannot agree on arrangements for their care, and that they are in constant conflict.
[39] The courts have consistently held that a working model for communication and an established record of cooperation between parents is necessary before the court will consider awarding joint custody or any other form of joint parenting. The court of Appeal set this prerequisite out clearly in Kaplanis v. Kaplanis. Justice Weiler observed in Kaplanis that evidence of how the parties are able to set aside their differences and how an interim custody (or access) order has worked will be a relevant consideration for the trial judge. The reasons for judgment reviewed on appeal in Ladisa v. Ladisa illustrate how important current conduct and cooperation can be to the trier of fact at trial.
[40] A careful review of the facts on a complete record is essential to determine what parenting regime will serve the best interests of each child in this family. In Crocker v. Hooke, [2003] O.J. No. 1742, the court found that this objective is better served by an expedited trial where all issues surrounding proposed parenting arrangements can be explained, tested and the best choices made between them.
[41] The motion of Mr. Morris for a final order regarding shared custody or parenting is therefore dismissed.
Disclosure and/or Equalization
[42] I now turn to the motions relating to disclosure and equalization.
Position of Mr. Morris
[43] Mr. Morris is actually saying two things. He is asking for an equalization order, while at the same time seeking full disclosure on all property and assets owned separately and jointly by Ms. Nicolaidis and himself.
Position of Ms. Nicolaidis
[44] Ms. Nicolaidis seeks summary judgment requiring her to pay $30,685.89 to Mr. Morris as an equalization payment. She states that the court has all of the information it needs in order to make that order. She states that she has produced a net family property statement that provides the basis for this calculation, and that Mr. Morris has not provided any evidence to support his position on equalization. Ms. Nicolaidis states that there is no genuine issue requiring a trial.
[45] Ms. Nicolaidis states that if this issue goes to trial, she will be seeking an order under section 5(6) of the Family Law Act for an unequal division between the respective net family property values of the parties. She also states that, given the nature of the property she owns and the relative values, summary judgement to determine the amount of the equalization payment she will be ordered to pay Mr. Morris is a fair and just process for the court to make a determination on the merits, and is proportionate to those values.
Analysis
[46] An equalization payment cannot be made until all property owned solely or jointly by each party to a family law case has been identified, and the value of that property has been determined. In order for the value of property to be determined, there must be adequate disclosure in terms of the value of property, or the constituent elements of property that make up that value. This would include the value of shares in a privately held corporation.
[47] Mr. Morris is intent on obtaining proper disclosure about assets and their value owned by Ms. Nicolaidis on the date of separation. The focus of this disclosure is to obtain a proper valuation of her one-third interest in the corporation and business known as City Dance Corps. Rather than the small business that Ms. Nicolaidis portrays City Dance Corps to be, Mr. Morris is of the view it offers diverse services to an array of clients that make its’ revenues and share value greater than what Ms. Nicolaidis would have him believe. Mr. Morris described the business this way in his affidavit sworn on December 19, 2018:
City Dance Corps is one of the largest dance companies in the GTA and has multiple high-profile clients and over 100+ classes running a week over a dozen dance styles. AfroBallet, ballet, Bollywood, ballet bootcamp, breakdance, contemporary, dance hall, flexibility, heels, hip-hop, house, jazz, modern, Pilates, popping, power barre, waacking, tap, tango, bachata, salsa. Beginner aero, aerial, ballet, house, modern, tap, Private lessons, wedding choreography, bachelorette, birthday parties, corporate team building, entertainment, schools & groups Studio space for rehearsals, auditions, casting, photo and film shoots. It has over an 8,000 square foot location with 6 studios. Past clients include Drake, Katy Perry, Nelly Furtado, Adam Lambert, Cirque du Soleil, Mirvish Productions and many more. They also have a designer shoe collection called Stella Valentina Shoes. "Latin dance ladies get the shoes to perfect your dance moves I Stella Valentina is an exclusive to CDC Latin dance shoe collection designed by Tina Nico and Estelle Nico." Tab 26 Exhibit 1.
[48] The evidence shows that Mr. Morris served a Form 20: Request of Information on Ms. Nicolaidis on August 28, 2018. All 28 requests were to be answered within 30 days of service. Some have been answered. Of those items that remain in contention, I make the following rulings:
- Request number 3 for a business valuation of City Dance Corps as at the date of separation is granted, if requested by Mr. Morris in writing after the date these reasons are released. This will provide the parties with the opinion of an expert on the value of shares held by Ms. Nicolaidis in the corporation as of that date. Ms. Nicolaidis states that there has been no material growth of the business during the 2.5 years of the marriage. She states that she has provided Mr. Morris with financial statements for the business for the years 2014 to 2017. Of course, Ms. Nicolaidis is also at liberty to have the value of those shares determined as of the date of marriage to measure the increase in their value between the two points in time. Ms. Hansen properly concedes that her client has the obligation to provide valuation of the corporation or business in which Ms. Nicolaidis holds an interest. However, Ms. Hansen argues that the expense of obtaining valuation of the corporation is not proportionate to the value of the company based on review of the financial statements. Mr. Morris is not obliged to accept the representations that Ms. Nicolaidis has made about no material growth to the business, or to take the information given in financial statements at face value. This is particularly so if the financial statements are made on a “notice to reader” basis. If Ms. Nicolaidis is concerned about the expense of having a certified business valuator provide a valuation for her shares, she might have an opportunity to ask that she be indemnified for that expense if appropriate to claim costs at the end of the case. Mr. Morris is entitled to at least $30,000 as an equalization payment according to the submissions made by Ms. Hansen. Mr. Morris runs the risk of having the expense of the valuation set off against any equalization payment he may be awarded if he insists in writing that Ms. Nicolaidis arrange for this valuation, and then achieves less success than he expects.
- Request number 7 seeking details of any transactions or private invitations to teach workshops outside the studio environment, including at places across Ontario and outside Canada has been answered, and is subject to any evidence given at trial.
- On consent, request number 12 for Ms. Nicolaidis to produce a shareholders agreement to which she is a party that was in effect between 2014 and 2016 inclusive is granted. To the extent any shareholders agreement exists, Ms. Nicolaidis shall request a copy of any shareholder agreement from corporate counsel and will provide that copy once received.
- On consent, request number 13 for minutes of shareholders and directors minutes of City Dance Corporation as of the date of separation and as at December 31, 2018 shall be provided.
- On consent, and further to request number 14, the shareholder register and current listings of shareholders and the number of shares held by each shareholder of City Dance Corporation as of the date of separation and as of December 31, 2018 shall be provided.
- Request number 16 whether any valuation reports have been obtained from valuators conducted in the five years prior to the date of separation has been answered, and this request is denied.
- Request number 19, for the details of any employment contracts with senior management and other key employees other than the shareholders is denied. The employment contracts for Ms. Nicolaidis and those shareholders who are key employees, whether those employment contracts are written or unwritten, shall be produced with names and contact information redacted.
- Request number 20 has been answered, and is therefore denied.
- Request number 22 is denied. The request for key client contracts and related information is excessive in scope, and irrelevant. This request also seeks information that can be verified through financial information obtainable through other sources.
[49] All disclosure that is now ordered shall be produced by Ms. Nicolaidis on or before April 30, 2019 except for the valuation of her shares in City Dance Corps, which is dependent on Mr. Morris requiring that valuation in writing, in which case the valuation shall be delivered at least 90 days before any pre-trial conference in this case.
[50] The motion of Mr. Morris for an equalization payment and the motion of the Ms. Nicolaidis for an equalization payment are each dismissed. That part of the motion Mr. Morris brings in which he seeks further disclosure with respect to City Dance Corps is granted in accordance with the orders made in paragraphs 48 and 49 above.
Retroactive child support
[51] The parties separated on August 2, 2016. Ms. Nicolaidis provided for the children without meaningful assistance from Mr. Morris until June 2017, at which time he retained counsel. On the last day of each month since June 2017, Mr. Morris has voluntarily paid child support in the amount of $1,200 per month according to the Federal Child Support Guidelines.
[52] Ms. Nicolaidis asks for an order that Mr. Morris pay retroactive child support since the date of separation to June 2017 in the amount of $6,688.21. Mr. Morris takes the position in response that he owes only $5,506. Elsewhere, he asks for the court to reduce the support he was to pay.
[53] I consider this issue to be a matter for trial. The court will require evidence to decide on what date retroactive support, if any, should start, the change in income, if any, of Mr. Morris between August 2, 2016 and June 2017. There may also be evidence about any contribution Mr. Morris may have made in cash or kind towards the support of the children since the date of separation.
[54] That part of the motion brought by Ms. Nicolaidis is therefore dismissed.
Costs
[55] The parties are encouraged to resolve the issue of costs between them. If the involvement of the court is requested to award costs, the following terms shall apply:
- The requesting party shall file written submissions by March 11, 2019;
- The responding party shall then have until March 18, 2019 to file responding submissions;
- Written submissions shall consist of no more than three double spaced typewritten pages, not including any offer to settle or bill of costs.
[56] No submissions in reply shall be permitted without leave. All written submissions shall be filed and sent by fax or by email to my judicial assistant at 905-456-4835 or melanie.powers@ontario.ca.
Emery J.
Released: March 4, 2019