COURT FILE NO.: 17-277 DATE: 20190114
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JANET ERIN HUBLEY Applicant – and – JOSEPH REDMOND FITZPATRICK Respondent
Counsel: Philip A. Burger, for the Applicant Self-represented
HEARD: December 11, 13 and 14, 2018
REASONS FOR DECISION
AUDET J.
[1] The issues for the purpose of this trial were all financial and included the following:
- Child support obligations and parental contributions to the children’s special and extraordinary expenses (retroactive to September 2013);
- Spousal support (retroactive to September 2013);
- Equalization of the parties’ Net Family Property;
- Breach of contract (related to an alleged agreement to share the Canada Child Tax Benefits) and;
- Sale of the matrimonial home, including exclusive possession thereof post-trial; occupational rent and other post-separation adjustments.
Background Facts
[2] The parties began living together in April 1996, married on March 20, 1998 and separated on September 3, 2013. They have two children together; Emma who is presently 19 and Rachael who is presently 17 (they were 14 and 12 respectively at the time of the parties’ separation). The Respondent, Joseph Fitzpatrick (hereinafter “Mr. Fitzpatrick”), also has a daughter from a previous relationship, Courtney, who was 19 at the time of the parties’ separation. Until 2007, Courtney shared her time equally between her parents and lived with the parties every other week. In 2007, she decided to live primarily with her mother. She is now 24 years old and lives independently.
[3] At the time of their separation, the parties lived in their matrimonial home located at 4056 Stage Coach Road, in Osgoode, Ontario; a home they owned jointly. On or about October 14, 2013, the Applicant, Ms. Hubley (hereinafter “Ms. Hubley”), moved out of the matrimonial home. Mr. Fitzpatrick remained in the matrimonial home and has had exclusive possession of it since the parties’ separation. Emma and Rachael spent their time equally with each parent on a week about basis until Emma completed her high school (June 2017) and chose to live primarily with her mother. Rachael continues to this day to share her time with each parent on a week about basis.
[4] Despite Ms. Hubley’s lower income, no child or spousal support was ever paid by Mr. Fitzpatrick until a temporary order was made in June 2017 ordering Mr. Fitzpatrick to pay $30 per month. This was later increased to $307 per month (on a without prejudice basis) by order of Hurley J. made on November 23, 2017. Ms. Hubley filed her Application in February 2017, almost three years after the parties separated. She did so primarily to force the sale of the matrimonial home, resolve property issues, and force Mr. Fitzpatrick to contribute to the children’s ongoing expenses. Mr. Fitzpatrick defended the Application seeking child support (including a contribution to child support allegedly paid by him to Courtney’s mother for Courtney’s benefit since the parties’ separation), an equalization of the parties’ Net Family Property, exclusive possession of the home and its contents, and a contribution from Ms. Hubley to the parties’ family debts incurred during the parties’ marriage and allegedly assumed by him alone since the separation.
[5] On September 6, 2018, Ms. Hubley filed an Amended Application by way of which she sought an unequal division of the parties’ Net Family Property, damages for breach of contract (related to an alleged agreement to share the Canada Child Tax Benefits for the children), exclusive possession of the matrimonial home post-trial, and authority to proceed to its sale without the need to obtain Mr. Fitzpatrick’s consent. Mr. Fitzpatrick did not file an Amended Answer. During the course of the trial, Ms. Hubley abandoned her claim for an unequal division of the Net Family Property.
[6] A number of disclosure orders were made during this court action requiring the parties to provide financial disclosure. As Mr. Fitzpatrick was in breach of his obligations pursuant to these orders, Ms. Hubley was granted permission to bring a motion to strike his pleadings. That motion was heard on September 20, 2018, and was denied. However, Summers J. who heard the motion made a further order requiring Mr. Fitzpatrick to provide all outstanding disclosure by October 19, 2018 and ordered him to pay costs in the amount of $2,500 within 30 days. This was in addition to prior orders requiring Mr. Fitzpatrick to pay costs in the amount of $1,000 (Order of Hurley J. dated November 23, 2017) and in the amount of $250 (Order of Shelston J. dated June 15, 2018, costs payable within 30 days of settlement or trial decision).
[7] Mr. Fitzpatrick did not pay the cost awards made against him, and by the time the trial was heard had not provided all of the financial disclosure he was ordered to provide.
The Parties’ Financial Circumstances Post-Separation
[8] All of the issues to be determined by this court are financial in nature. Mr. Fitzpatrick’s position throughout this trial was that he was left with the burden of paying all of the parties’ joint debts and financial obligations after Ms. Hubley “walked away from her family”, leaving him in a state of significant financial hardship which nearly caused his bankruptcy. Since this allegation forms the basis of most of Mr. Fitzpatrick’s defences to the financial claims advanced by Ms. Hubley, and since the parties’ respective financial circumstances and arrangements post-separation are relevant to most of the issues to be decided in this case, it is important to relate them at length at this point in my decision.
[9] At the time of the parties’ separation (in September 2013), Ms. Hubley was employed on a full-time basis as an administrative assistant by the Canadian Lumber Standards Accreditation Board (“CLSAB”), earning $43,306 per annum, and Mr. Fitzpatrick was employed by the Canadian Automobile Association of North & East Ontario (“CAA”) as a tow-truck driver, earning $54,078 per annum. The parties lived a modest life. They jointly owned the matrimonial home located in Osgoode, a small rural community in the larger Ottawa Region. The parties purchased their home in 1999 for $95,000 and used a $32,000 inheritance received from Ms. Hubley’s aunt a few years prior to pay the down payment, legal fees, land transfer taxes and other transfer costs. By the date of the parties’ separation, the home was assessed by a home appraiser by the name of Mr. Joel Beauregard to have a fair market value of approximately $220,000 and had been re-mortgaged a few times to pay off family debts. In September 2013, the mortgage stood at approximately $152,000. The parties also had a joint Scotia Bank Line of Credit with a balance of $7,970.43 and a joint Scotia Bank Visa with a balance of $19,737.70. Each party had one credit card in their sole name with a balance owing of approximately $5,000 each.
[10] At the time of separation, Mr. Fitzpatrick alleges that the parties had agreed that the matrimonial home would be transferred to him in his sole name, so long as he assumed the joint mortgage, line of credit and Visa card in full. Ms. Hubley alleges that she was prepared to allow Mr. Fitzpatrick to remain in the matrimonial home, so long as he assumed the monthly payments on the parties’ joint debts, and that ultimately he would buy her out. I find as a fact, based on the evidence before me, that it was never Ms. Hubley’s intention to waive her entitlement to her share of the equity in the home. Even if she had, such agreement was never confirmed by an enforceable domestic contract based on proper disclosure of the home’s fair market value. In addition, it would be surprising for Ms. Hubley to waive her entitlement to the most important asset this family owned, and in which she invested her entire inheritance. I find that Ms. Hubley was always agreeable to transfer the matrimonial home to Mr. Fitzpatrick, so long as he assumed the joint debts and bought her out by paying her fair share of the equity in the home.
[11] In any event, what was clearly agreed to between the parties was that Mr. Fitzpatrick could continue to have exclusive possession of the home so long as he assumed all of its costs, including the monthly mortgage and minimum monthly payments towards the parties’ joint debts. Mr. Fitzpatrick did not lead any evidence as to what were his monthly housing costs at the time of the parties’ separation, or what were the minimum payments owing on the two joint debts. However, according to the only financial statement he ever filed throughout the course of this proceeding sworn on May 12, 2017, the payments toward the mortgage, property taxes and home insurance totalled $1,040.95 per month. He also had to install a new furnace shortly after the parties separated, which was rented on a monthly basis until he was able to buy out the lease in February 2016 with the financial help of his aunt (as will be further explained below).
[12] When she left the matrimonial home in October 2013, Ms. Hubley was able to find a three-season cottage in Manotick belonging to one of her friends, which was fully furnished and which cost her $1,000 per month in rent. There was no television in the cottage, no internet and no proper heating for the winter time. Initially, this was only to be a temporary accommodation for her and the children while the parties worked out the terms of their separation and divided the contents of their home. As it turned out, Ms. Hubley was forced to stay in that cottage with the children through the winter which resulted in significant heating costs. Ms. Hubley testified to the hardship this caused her and the girls, which included significant water damage when the pipes burst out due to lack of heating in the cottage.
[13] In July 2014, Ms. Hubley moved into another home in Osgoode which she rented for $1,000 per month as well and where she stayed for one year until she relocated in a townhome in Barrhaven in the summer of 2015, at a monthly rent of $1,500. It would have been possible for Ms. Hubley to purchase this townhome, however, due to her still being an owner of the matrimonial home (and liable under the joint mortgage and debts), she was unable to buy it. Ms. Hubley testified at trial that she deployed significant efforts at that time to try and convince Mr. Fitzpatrick to either buy her out or sell the home, to no avail.
[14] In addition to being unsuccessful in getting Mr. Fitzpatrick to deal with the matrimonial home so she could buy her own, Ms. Hubley was also unsuccessful in her efforts to get her fair share of its contents. As of the date of this trial, five years after the parties’ separation, the entire content of the matrimonial home remains in the sole possession of Mr. Fitzpatrick, with the exception of some personal belongings that Ms. Hubley was able to take with her. As a result, when Ms. Hubley moved into her townhome in Barrhaven, she was forced to re-furnish an entire home. She testified that some of her friends generously gave her some of their used furniture and other household contents but that she had to spend quite a bit of money to re-equip herself with many other necessary items, which she bought used.
[15] In addition to this, Ms. Hubley was forced to buy herself another car as Mr. Fitzpatrick refused to transfer to her the vehicle that she was using at the time of the parties’ separation. Such transfer was necessary for Ms. Hubley to be able to complete necessary repairs which the garage would not undertake since the vehicle was not registered in her name. Despite Ms. Hubley’s best efforts, Mr. Fitzpatrick refused to sign the car over to her and she ultimately returned the car to him, and borrowed money from her father to buy another one.
[16] It was Mr. Fitzpatrick’s evidence that from September 2013 to the end of 2015, the financial burden of the home and joint debts was such that he had been unable to pay the minimum payments on the two joint debts, which both went into collection, and that he was at risk of losing the home. While the evidence makes it clear that Mr. Fitzpatrick made all of the monthly mortgage, tax and home insurance payments since the date of separation, Ms. Hubley’s evidence (which was not contradicted by Mr. Fitzpatrick in his testimony) confirms that he only made minimal payments towards the parties’ joint debts over the course of the two years that followed the separation (less than $1,000 in total). Therefore, to say that he suffered extreme financial hardship as a result of having to assume the parties’ joint debts since separation is grossly inaccurate. The fact is that he did not assume those debts. By January 2016, collection agencies on behalf of the Scotiabank were threatening to force the sale of the home in order to get paid.
[17] On or about that time, Mr. Fitzpatrick’s sought the financial assistance of his elderly aunt, Jean Fitzpatrick (“aunt Jean”). Aunt Jean and her late husband are Mr. Fitzpatrick’s aunt and uncle. Jean and her husband never had children. Throughout the parties’ marriage, they treated Ms. Hubley, Mr. Fitzpatrick, Emma and Rachael as their own children and grandchildren, giving them very generous gifts which included money and two vehicles. On February 23, 2016, as a result of the predicament Mr. Fitzpatrick was finding himself in, and to ensure that he would not lose his home, aunt Jean paid off the parties’ joint line of credit and credit card (the amount negotiated with the collection agencies was $27,331.72 for both), as well as Mr. Fitzpatrick’s own credit card ($4,600), and purchased the furnace by paying off the balance owing on the lease. Therefore, as of February 23, 2016, Mr. Fitzpatrick had no significant debts other than the joint mortgage.
[18] As stated before, from the date of the parties’ separation, they shared their time with the girls equally. Despite earning more than Ms. Hubley, Mr. Fitzpatrick did not pay any child support until this court action was commenced and temporary orders were made. While Ms. Hubley always understood that the parties earned roughly the same (her annual income had steadily increased since 2013), it was revealed in the context of this litigation that for the years 2014, 2015 and 2016, Mr. Fitzpatrick earned significantly more than he used to during the years prior to the parties’ separation. While Mr. Fitzpatrick had always earned in the range of $52,000 per year before the separation, his income during the following years was as follows (this is based on the parties’ T4 slips for all relevant years, as neither party has filed their income tax returns or notices of assessment – with few exceptions – during the course of this trial):
- 2013: $54,078
- 2014: $69,873
- 2015: $66,137
- 2016: $67,833
- 2017: $53,901
[19] Ms. Hubley’s income during the years following the parties’ separation was as follows:
- 2013: $43,306
- 2014: $44,351
- 2015: $45,792
- 2016: $47,164
- 2017: $52,095
[20] Prior to the parties’ separation, it was Ms. Hubley who was always responsible to prepare and file the parties’ income tax returns. She testified that she always carefully considered how available tax credits and benefits (including the then Canada Child Tax Benefit) would be allocated to each parent to insure the highest possible return for the family. For reasons that need not be explored here, the parties did not file their tax returns for the years 2013, 2014, 2015 and 2016 when they were due in April of each year. When Ms. Hubley set out to file all of her tax returns in the spring of 2016, and since there was no indication that Mr. Fitzpatrick had any intention to do the same any time soon, she offered Mr. Fitzpatrick to claim all benefits and credits available for the two children on her own tax returns for all those years, in exchange of which she would pay him 50% upon receipt.
[21] This was clearly agreed to by Mr. Fitzpatrick, and emails exchanged between them from June 2016 to December 2017 make it abundantly clear that Mr. Fitzpatrick expected his 50% share to be paid to him immediately upon receipt. The evidence also confirms that the amount of $8,838.50 was transferred from Ms. Hubley’s bank account to Mr. Fitzpatrick’s bank account between June 2016 and May 2018, representing his 50% share of the benefits received by Ms. Hubley. Despite this agreement, when Mr. Fitzpatrick finally filed his 2013-2017 tax returns in the spring of 2018, he claimed all of the credits and benefits available to him as a shared custodial parent, and as per CRA policies. This resulted in Mr. Fitzpatrick receiving a significant retroactive lump sum from CRA in the summer of 2018, and in Ms. Hubley being re-assessed for all those taxation years. She now owes $11,577.38 as a result of Mr. Fitzpatrick’s actions.
[22] Despite acknowledging that he has received 50% of the benefits paid to him by Ms. Hubley throughout 2016 to 2018, that he has been paid a significant retroactive payment from CRA in the summer of 2018 (he did not disclose how much), and that he is obligated to reimburse Ms. Hubley the benefits she paid to him during those years, to date, Mr. Fitzpatrick has not done so. The lump sum received by him from CRA was used to pay for other things.
[23] In addition to the above, Mr. Fitzpatrick has consistently refused to contribute to the costs of the children’s extracurricular activities since the date of separation, claiming the family could no longer afford those. As a result, Ms. Hubley assumed 100% of those costs since 2013. Despite Emma’s decision to live primarily with her mother since June 2017, Mr. Fitzpatrick’s position has remained that he could not pay child support because to do so would cause him undue hardship.
[24] I find, as a fact, that Mr. Fitzpatrick was in a better financial position than Ms. Hubley in the years following the parties’ separation, based on the following: he earned between $10,000 to $20,000 more per year than Ms. Hubley (from 2014 to and including 2016); his housing costs were roughly equal to Ms. Hubley’s (in 2016 they were less); he did not have to spend money refurnishing a home and he was not required to buy another car or to relocate three times; he did not assume the joint debts he had agreed to assume and they were ultimately paid off by his aunt, along with his own credit card balance and his new furnace (thus, he did not assume any more debts than Ms. Hubley); he was paid the 50% tax benefits available for the children throughout those years, twice, resulting in a significant debt owing by Ms. Hubley, and Ms. Hubley was left to assume all of the children’s special and extraordinary expenses, as well as a greater share of those expenses that parents in shared custody arrangements would usually be expected to share between them (back-to-school supplies, winter clothing etc.). Yet, despite her very modest financial means, Ms. Hubley made it work. Mr. Fitzpatrick was in no deeper financial distress than Ms. Hubley throughout those years, and I do not accept that Mr. Fitzpatrick should be relieved of any of his financial obligations towards Ms. Hubley on account of any alleged financial hardship.
[25] Ms. Hubley is currently residing in her own home, which she was able to purchase through a private loan from a friend/relative, as well as an institutional mortgage. She has not re-partnered. Mr. Fitzpatrick has not re-partnered either and he continues to reside in the matrimonial home.
Analysis
[26] It is against this backdrop that I will now consider each of the parties’ claims.
Imputation of Income
[27] In order to assess the issues of child and spousal support, I must address the mother’s request that a higher income be imputed on Mr. Fitzpatrick from 2017. The relevant part of s. 19 of the Federal Child Support Guidelines, S.O.R./97-175, as am. ["Guidelines"] is as follows:
- Imputing income. — (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,
(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse…
[28] The Court of Appeal in Drygala v. Pauli (2002), 61 O.R. (3d) 711 (Ont. C.A.), at para. 23 set out a three-part test for determining whether income should be imputed on the basis of intentional under-employment or unemployment as follows:
- Is the spouse intentionally under-employed or unemployed?
- If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
- If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?
[29] A spouse is intentionally under-employed if he or she chooses to earn less than he or she is capable of earning having regard to all of the circumstances (Drygala, at para. 28). There is no requirement that the under-employment or unemployment be undertaken in bad faith or with the intention of avoiding support payments (Drygala, at paras. 29-36). The onus is on the party seeking to impute income to establish an evidentiary basis that the other party is intentionally under-employed or unemployed (Homsi v. Zaya (2009), 2009 ONCA 322, 65 R.F.L. (6th) 17 (Ont. C.A.), at para. 28).
[30] Mr. Fitzpatrick’s Notices of Assessment for the years 2007 to 2013 show that he earned the following employment income during the six years preceding the parties’ separation:
- 2007: $51,960
- 2008: $56,678
- 2009: $56,289
- 2010: $46,332
- 2011: $49,875
- 2012: $49,918
- 2013: $54,078
[31] As can be seen above, in 2014, 2015 and 2016, his employment income was significantly higher. Mr. Fitzpatrick’s employment has not changed. Throughout the parties’ marriage to this day, he has been employed by the CAA as a tow-truck driver. His compensation package has not changed either (although hourly and service rates may have). He is paid an hourly rate, plus an additional “per service” fixed amount for each service call he makes, being guaranteed a minimum number of hours and calls per day, five days per week. He can avail himself of a lot of overtime hours, if he so wishes, which is what he did during the years 2014 to 2016.
[32] Mr. Fitzpatrick was ordered on several occasions to provide the details of his income earned during those years for Ms. Hubley to be able to assess what the extra compensation was attributable to (i.e. overtime or simply more calls received during regular work hours due to weather conditions, changes in work conditions, etc.). Ms. Hubley argues that the drop in Mr. Fitzpatrick’s income beginning in 2017 may also be attributable to Mr. Fitzpatrick choosing to work less hours while the work is available to him. Mr. Fitzpatrick did not provide the disclosure he was ordered to produce to verify those allegations.
[33] While the court is tempted to impute an income to Mr. Fitzpatrick based on his failure to disclose, the burden is on Ms. Hubley to establish an evidentiary basis that the other party is intentionally under-employed or unemployed. I find that the testimony provided by Mr. Fitzpatrick, which on this point I accept, confirms that he worked substantially more hours during 2014, 2015 and 2016 in an attempt to pay down the parties’ joint debts, as well as his own personal debts. While he was clearly unsuccessful at doing so, I accept that the important increase in his income for those three years was the result of his working overtime. This is supported by his lengthy history of earnings during the marriage which was always in the range of $47,000 to $56,000, and by the fact that by 2017, once all of his debts were repaid by his aunt, he returned to a yearly income which was consistent with what he had earned before the parties’ separation.
[34] I also accept Mr. Fitzpatrick’s testimony to the effect that he has suffered important health issues over the past two years which have made it difficult for him to continue to work a significant amount of overtime as he did during the three years before that.
Child Support
Retroactive child support
[35] Ms. Hubley’s Application was filed in April 2017. Ms. Hubley’s claim for retroactive child support, therefore, covers the period of October 2013 (when the parties physically separated) to March 2017 (three and a half years).
[36] In DBS v. SRG, 2006 SCC 37, the Supreme Court identified four factors that must be considered before making a retroactive child support award:
- reasonable excuse as to why support was not sought earlier;
- conduct of the payor;
- circumstances of the children; and
- hardship occasioned by the retroactive award.
[37] Ms. Hubley explained why she did not seek child support after the parties’ separation as follows. As stated above, Mr. Fitzpatrick has a child, Courtney, from a previous relationship. When the parties began to live together, Mr. Fitzpatrick had Courtney in his care every other week. Initially, Mr. Fitzpatrick paid $200 per month to Courtney’s mother, Ruth, but later got it reduced to $75 per month on account of the fact that he was assuming more of her expenses and doing most of the driving to and from her mother’s home and Courtney’s activities. Ms. Hubley explained that Mr. Fitzpatrick has always resisted paying child support for Courtney, which required the involvement of the Family Responsibility Office, and that Ruth had to “go to court” to even get him to agree to the $75 per month. As a result, when Courtney decided to live primarily with her mother in 2007 (six years before the parties separated), Ruth did not seek to adjust the child support Mr. Fitzpatrick was paying to her, not wanting to engage in another legal fight; and Mr. Fitzpatrick never paid any more than that (if at all). Courtney was a young teenager at the time.
[38] As a result, Ms. Hubley was well aware that it would be very difficult for her to get Mr. Fitzpatrick to pay child support for the girls as that court action would be required (in light of the history of this case, she was absolutely right). Given that she had no ability to pay for a lawyer at the time and that she was under the impression that the parties’ income were not that different (she knew that Mr. Fitzpatrick earned in the range of $52,000, and her own income was in the range of $43,000), she took no action in that regard. In addition, she assumed that Mr. Fitzpatrick would do the same as he had for Courtney, and that at the very least, he would pay his half of the girls’ expenses and extracurricular activities. It did not turn out to be the case. However, given Ms. Hubley’s difficult housing situation, her financial resources were required elsewhere and it took her several years before she decided to hire a lawyer to initiate court action.
[39] Mr. Fitzpatrick made the decision to work overtime to pay down his debts. Having been through the legal process of assessing his child support obligations for Courtney, I find that he was well aware of his obligation to pay child support even in the context of a shared custody arrangement. When he earned substantially more income during the years 2014 to 2016, he knew that this would lead to some child support being payable to Ms. Hubley. Yet, he did not alert her to that fact.
[40] As stated above, Mr. Fitzpatrick has always felt that since Ms. Hubley “abandoned her family” and that he was “left having to assume the parties’ joint debts”, which in his view left him in a state of financial hardship, he was excused from having to pay child support, contributing to his children’s expenses or in any other way behaving reasonably with regards to all matters affecting Ms. Hubley’s financial well-being (refusal to transfer the car to her, refusal to share the household contents, refusal to contribute to the children’s special and extraordinary expenses). His testimony in that regard could not have been clearer. As a result, why would he disclose his higher income to her?
[41] I find that Ms. Hubley had a reasonable excuse for failing to claim child support earlier. I find that Mr. Fitzpatrick engaged in blameworthy conduct by not disclosing his higher income earlier (he only did so when required in the context of this court action), and that he privileged his own financial interests (paying down his debts so as to enable him to keep his home) over those of his children. While I accept that Mr. Fitzpatrick’s efforts to hold on to his home were motivated in part by his desire to keep it for the girls, he completely disregarded the impact that his decisions (home, car, household content, special and extraordinary expenses) had on the children’s well-being while in their mother’s care. This, added to the fact that Mr. Fitzpatrick eagerly received his 50% share of all tax benefits available to the parties for the children while knowing that he was then earning much more than Ms. Hubley, only to have it clawed back from Ms. Hubley afterwards, further adds to his blameworthy conduct.
[42] While the payment of a retroactive award may cause some financial hardship on Mr. Fitzpatrick, I find that it is no greater than the financial hardship suffered by Ms. Hubley, and the children while in her care, during the years that followed the parties’ separation.
[43] While no formal request was made for the payment of basic child support until October 20, 2016 (at which time Ms. Hubley’s counsel wrote a letter to Mr. Fitzpatrick seeking his disclosure to establish child support obligations), many and ongoing requests were made by Ms. Hubley to Mr. Fitzpatrick for financial contributions to the children’s day-to-day, special and extraordinary expenses, most of which fell on deaf ears. For all those reasons, I find that Ms. Hubley is entitled to retroactive child support from November 1, 2013 to present (since Ms. Hubley only left the matrimonial home in the middle of October); it being acknowledged that any support after April 2017 is not “retroactive.”
[44] In light of the parties’ shared custodial (equal-time sharing) arrangement up to and including June 2017, I find that Ms. Hubley is entitled to basic child support based on the “set-off method”, being the difference between the parties’ respective table amount for two children based on their respective income during each of the years 2013 to June 2017. While the evidence presented by the parties in this case did not specifically address all factors set out in s. 9 of the Guidelines, so as to allow me to conduct a detailed analysis as set out by the Supreme Court of Canada in Contino v. Leonelli-Contino, 2005 SCC 63, I find that the overall evidence before me supports the conclusion that the set-off amount provides a reasonable and appropriate amount of support to the children in both homes.
[45] As of the end of June 2017, Emma started to live primarily with her mother. Mr. Fitzpatrick takes the position that she has “unilaterally withdrawn from parental control” and that as a result, no child support is payable for her since that date.
[46] The uncontested evidence before me is that Emma applied to be admitted into the nursing program at the University of Ottawa in September 2017, and that she was admitted into the program conditionally (unconditional acceptance was to be confirmed upon receipt of her grade 12 marks). She found out at her graduation that she had not been accepted because her marks in biology and chemistry were not high enough. She decided to retake those two grade 12 courses in January 2018 to increase her marks and re-apply at the University for the September 2018 admission.
[47] At the time, Emma had just turned 18 (in June) and was working part-time at a veterinary clinic. She worked mostly Saturdays as well as some evenings during the school weeks, and additional hours during the summer when she was called upon to replace employees going on vacation. No documentary evidence was provided confirming the income earned by Emma in 2017 and 2018. However, her mother testified that she earned somewhere in the range of $500 per month, net, which would represent part-time work at minimum wages. In the fall of 2017, she went on a six week trip to Vancouver to visit her boyfriend’s father with him. She used the money earned while working during that summer to pay for some of her personal expenses and for her trip to Vancouver. Come January 2018, she re-took her biology and chemistry classes while continuing to work part-time. She successfully completed these courses and was accepted in the nursing program at the University of Ottawa, where she began her studies in September 2018 as a full-time student. She continues to work at the veterinary clinic on a part-time basis, and to live with her mother full time.
[48] I find that Emma never ceased to be a child of the marriage, including from June 2017 to September 2018, and that she continued to be under the charge of her parents throughout that time. While she was not engaged in a full-time post-secondary program of education during that time, she continued to reside primarily with her mother (her taking a vacation to go to Vancouver does not change this fact), did what she could to gain acceptance to the nursing program come September 2018, and while waiting to be accepted in the program of her choice, never earned enough money to withdraw from her parents’ charge or obtain the necessaries of life with her own means. As a result, she never ceased to be a “child of the marriage” for whom child support was payable. Now that she is a full-time university student, she continues to be entitled to her parents’ financial support.
[49] Rachael is in grade 12 and, as stated before, continues to spend every other week with each parent. Based on the above, child support was payable by Mr. Fitzpatrick to Ms. Hubley as follows:
| Year | Period of time | Parenting arrangements | Father’s income | Table amount payable | Mother’s income | Table amount payable | Monthly Set-off payable by father | Total owing |
|---|---|---|---|---|---|---|---|---|
| 2013 | Nov. to Dec. | Equal time sharing for both children | $54,078 | $803 | $43,306 | $635 | $168 | $336 |
| 2014 | Equal time sharing for both children | $69,873 | $1035 | $44,351 | $653 | $382 | $4,584 | |
| 2015 | Equal time sharing for both children | $66,137 | $983 | $45,792 | $677 | $306 | $3,672 | |
| 2016 | Equal time sharing for both children | $67,833 | $1,008 | $47,164 | $700 | $308 | $3,696 | |
| 2017 | Jan. to June | Equal time sharing for both children | $53,901 | $800 | $52,095 | $774 | $26 | $156 |
| 2017 | July to Dec. | Emma in her mother’s primary care; equal time sharing for Rachael | $53,901 | $800 (for 2 children) | $52,095 | $470 (for one child) | $330 | $1,980 |
| 2018 | Emma in her mother’s primary care; equal time sharing for Rachael | $53,901 (estimated based on 2017) | $800 (for 2 children) | $52,095 (estimated based on 2017) | $470 (for one child) | $330 | $3,960 |
[50] I therefore find that Mr. Fitzpatrick is liable to pay a total of $18,384 to Ms. Hubley on account of retroactive child support from November 1, 2013 to and including December 31, 2018.
[51] Mr. Fitzpatrick seeks the reimbursement of one half of the child support paid by him to Courtney’s mother since the date of the parties’ separation, and for the benefit of Courtney. By Mr. Fitzpatrick’s account, and although no evidence to that effect was adduced by him, he has paid a grand total of $1,575 in child support for Courtney from October 2013 to present. Mr. Fitzpatrick’s claim is denied. It is Mr. Fitzpatrick who is legally obligated to pay child support for Courtney (by court order), not Ms. Hubley.
Past special and extraordinary expenses
[52] Ms. Hubley seeks a contribution from Mr. Fitzpatrick towards the special and extraordinary expenses she incurred since the date of the parties’ separation for the two children. Most of these expenses relate to the girls’ ringette, a sport in which they were both actively engaged long before the parties’ separation. The only other expense claimed by Ms. Hubley for the girls is their registration cost for softball in the summer of 2014 and 2015.
[53] Mr. Fitzpatrick refused to contribute to those expenses based on his alleged financial hardship and the fact that this family could no longer afford it. Yet, throughout the years, Mr. Fitzpatrick continued to take the girls to their games and practices every other week, and he enjoyed cheering them on as they played against other teams. Because Ms. Hubley was left having to pay for those expenses on her own, she made significant efforts to obtain registration fee reductions from the Ringette Association due to the difficult financial circumstances of this family. This resulted in lower fees being charged to the girls during some years. I find that the cost of the girls’ ringette was reasonable in light of the parties’ financial resources.
[54] Further, I find that the girls were always involved in many extracurricular activities before the parties’ separation, just like Courtney was (and Mr. Fitzpatrick had always paid his 50% share of those costs at the time). They took swimming lessons until they could swim on their own; they played basketball, flag football and softball; they participated in church groups, 4H Club and Cadets and took cheerleading and dancing lessons. More importantly, both girls started playing ringette early on (in this they followed their older sister Courtney), with Emma joining a competitive league in 2012. Both parents were very engaged in these sports, making sure that one parent was present with the girls all the time.
[55] I find no reason to excuse Mr. Fitzpatrick from his obligation to pay his proportionate share of those expenses. Ms. Hubley was able to pay 100% of them on her own despite a much lower income than Mr. Fitzpatrick, and equally difficult financial circumstances. Therefore, Mr. Fitzpatrick is hereby ordered to pay $2,308.70, representing his proportionate share of the following special and extraordinary expenses assumed by Ms. Hubley from the date of separation to present:
| Year | Child | Expense | Total Cost | Father’s % share | Father’s $ share |
|---|---|---|---|---|---|
| 2013-2014 | Emma | CORA Ringette Registration and power skating fees | $435 | 55% | $239.25 |
| 2013-2014 | Emma | Junior A Team fees | $400 | 55% | $220 |
| 2013 | Emma | Hotel fee for Ajax ringette tournament | $353.92 | 55% | $194.65 |
| 2013-2014 | Rachael | MDRA ringette registration fee | $465 | 55% | $255.75 |
| 2014-2015 | Emma | CORA ringette registration and power skating fees | $391.70 | 61% | $238.94 |
| 2014-2015 | Emma | Junior A team fees | $400 | 61% | $244 |
| 2014-2015 | Emma | Junior A team fees | $150 | 61% | $91.50 |
| 2014 | Rachael | Hotel fee for Laval ringette tournament | $184.94 | 61% | $112.81 |
| 2014 | Emma | Hotel fee for Guelph ringette tournament | $407.41 | 61% | $248.52 |
| 2014 | Emma & Rachael | ROMSA Softball registration fee | $180 | 61% | $109.80 |
| 2015 | Emma & Rachael | ROMSA Softball registration fee | $180 | 59% | $106.20 |
| 2015 | Emma | Hotel fee for Richmond Hill ringette tournament | $419.12 | 59% | $247.28 |
Payment of child support arrears
[56] The total owing by Mr. Fitzpatrick to Ms. Hubley on account of child support arrears is $20,692.70. Any payment of child support received by the FRO pursuant to the June and November 2017 temporary orders shall be applied towards outstanding child support arrears and reduce its amount accordingly.
[57] Mr. Fitzpatrick continues to have Rachael in his care every second week and therefore needs to maintain a proper home for her. As a result, it would not be in Rachael’s best interests for arrears of child support to be enforced in a way that would leave Mr. Fitzpatrick with only 50% of his net income (as allowed by support enforcement legislation). Therefore, an order shall issue that Mr. Fitzpatrick’s child support arrears shall be repaid at the rate of $200 per month, subject to variation upon the occurrence of a material change in circumstances.
Ongoing child support
[58] The parties’ 2018 income is not yet confirmed. For the time being, their respective child support obligations beginning on January 1, 2019, will be based on their 2017 income, with Mr. Fitzpatrick paying $800 per month for two children (Emma and Rachael) based on his income of $53,901, and with Ms. Hubley paying $470 per month for one child (Rachael) based on her income of $52,095. When these two amounts are set-off against each other, the result is that Mr. Fitzpatrick owes Ms. Hubley monthly child support in the amount of $330, and this shall be the only payment enforced by the Family Responsibility Office on account of ongoing child support.
[59] The parties shall both contribute to the children’s special and extraordinary expenses with each party assuming 50% of the expense. Based on the evidence before me, Emma’s post-secondary education costs have been assumed by her with scholarships, student loans and her own financial resources. Given that Emma is working part-time, that the full Table amount of child support is being paid for her, and in light of her parents’ modest means, there is a heightened obligation on her part to work as many hours as possible (at least during the summer time and holidays) to ensure that the vast majority of her tuition and school supplies continue to be paid by her own resources.
[60] The parties’ child support obligations shall be adjusted yearly, by the end of June each year and beginning in June 2019. Child support is payable each year based on the income earned by the parties that same year, with retroactive adjustments (if any) for the previous year being assessed in June of each year at the time of the yearly review.
Spousal Support
[61] Ms. Hubley is clearly entitled to spousal support, both on a compensatory and non-compensatory basis. However, for as long as the parties’ incomes remain at their current level, and in light of Mr. Fitzpatrick’s ongoing child support obligations, he has no ability to pay spousal support.
[62] Ms. Hubley completed a Bachelor’s Degree in Didactique des langues secondes (BA in Second Language Teaching) on or about 1995. While attending university full-time, she began working for CAA on a part-time basis; first as a call taker in emergency road service, then as a dispatcher, and later as a supervisor in the road service department. Mr. Fitzpatrick was already working for CAA as a tow-truck driver at that time and this is how the parties met.
[63] In 1996, Ms. Hubley began working full-time for CAA as a supervisor, earning an income just above minimum wages. The parties moved in together in 1996. At that time, Mr. Fitzpatrick owned a townhome in Bells Corners. The parties lived in that home until April 1999, and then moved in their current matrimonial home. In the fall of 1997, Ms. Hubley decided to pursue a Legal Assistant’s Degree at Algonquin College while working part-time. However, she was unable to complete the program. She explains that during that time, Mr. Fitzpatrick and her had care of Courtney every other week and she was often called upon by both Mr. Fitzpatrick and his ex-wife to care for Courtney when she was sick, when there was no school, or before and after school, since both her parents worked full-time.
[64] This is in part why she withdrew from the program and eventually took on a job as a full-time receptionist with Kaydee Motors, a car dealership. After Emma was born in June 1999, she was offered the position of Information Technology Manager with the Dilawri Group of Dealerships. She was responsible for managing their websites and maintaining their networks, computers and software. This position allowed her to work mainly from home, although she still had to visit each dealerships from time to time, but could tailor those visits around her child care obligations (and even take the children with her if needed). In this new position, Ms. Hubley was able to continue to work throughout her maternity leave, but on part-time hours although being paid for a full-time position. After she returned from her maternity leave, Ms. Hubley continued to work in that position under the same arrangement.
[65] When Rachael was born in 2001, Ms. Hubley did not take a maternity leave and she continued to work from home as she had done after Emma’s birth. This allowed Mr. Fitzpatrick to take a paternity leave during which he spent more time at home and earned extra money working on a part-time basis for a garage down the road from the parties’ home. Except for this brief period of time when Mr. Fitzpatrick was more present in the home, I find that Ms. Hubley was primarily responsible for the care of the children, maintaining the home, preparing the meals and attending to the vast majority of the children’s day-to-day needs, including attending doctors’ and other health related appointments and extracurricular activities with them. She tailored her work obligations around her child care obligations, remaining available to them at all times in light of Mr. Fitzpatrick’s shift work and less flexible work hours which often required him to work irregular and overtime hours.
[66] Ms. Hubley testified that after she completed her Bachelor’s degree in Second Language Teaching, she had always intended to complete her Teachers’ Degree to become a teacher. However, as a result of her parental and household responsibilities and the family’s financial needs (the parties could not afford for Ms. Hubley to take a year off work to complete her teacher’s degree), she was never able to return to school to complete her education as a teacher and remained in a low paying job which could accommodate her family responsibilities. Because Ms. Hubley worked from home, the children never needed to attend daycare, which the parties could not afford.
[67] In November 2010, while the children were then in school full-time, Ms. Hubley applied for and obtained a new job at the Canadian Lumber Standards Accreditation Board, where she still works to this day. Initially, she was hired as an administrative assistant earning in the range of $32,000. However, she demonstrated much potential and her employer quickly increased her work responsibilities, which resulted in regular and significant increases in her income over the past eight years. By 2017, she was earning almost as much as Mr. Fitzpatrick ($52,095).
[68] Based on the above, there is no doubt in my view that Ms. Hubley is entitled to compensatory spousal support. She gave priority to the needs of her family, took on primary responsibility for the parties’ two young children and, as a result, forfeited her plans to become a teacher. She maintained a low paying but flexible home-based job for many years, which allowed Mr. Fitzpatrick to maximize his income as a tow-truck driver.
[69] Finding entitlement to spousal support on the part of Ms. Hubley does not end the analysis, however. In light of the parties’ current income, the range of spousal support suggested by the SSAG given the parties’ respective child support obligations is zero (low, mid and high range) for most years since the date of separation, with the exception of the years 2014, 2015 and 2016 during which the high range (only) would have generated a relatively low amount (from $180 to $251 per month before taxes).
[70] Based on the above, and although I find clear entitlement to compensatory spousal support on the part of Ms. Hubley, I find that Mr. Fitzpatrick does not presently have the ability to pay spousal support.
Breach of Contract (Alleged Agreement to Share the Canada Child Tax Benefits)
[71] I have already explained the circumstances which led Ms. Hubley to be re-assessed by the CRA for over $11,000 as a result of her claiming all credits and benefits available to the parties for the children. Mr. Fitzpatrick acknowledges that he owes Ms. Hubley $8,838.50, representing the amount of tax benefits he received from Ms. Hubley on that account, and consents to an order requiring him to repay those benefits to her. I therefore so order.
Equalization of the Parties’ Net Family Property
[72] As stated before, the parties lived a modest lifestyle and as a result, the only property to be divided at the valuation date was the joint home, household contents, vehicles, personal belongings and debts. The parties did not have any savings or pension plan. Attached as Schedule “A” is a Net Family Property Statement highlighting the parties’ debts and assets at the date of their marriage and separation, as I found them to be.
Value of the matrimonial home
[73] The home was appraised professionally by Joel Beauregard on June 6, 2017. It was his opinion that the estimated market value of the home as of September 2013 was $220,000. I have no expert evidence as to the home’s current market value, although a MPAC assessment produced by Ms. Hubley attributes a $269,000 value to the home as of March 31, 2018. I cannot rely on the MPAC assessment as evidence of the home’s current fair market value, particularly since both parties confirmed in their testimony that the home is currently in poor condition.
[74] Mr. Fitzpatrick did not adduce any evidence with respect to the current value of the home, although in testimony and in his sworn financial statement, he submitted that the home was worth $180,000 at the date of separation as well as today. He alluded to some assessment that would have been done by the bank for refinancing purposes, but given that he failed to produce this assessment, his evidence on the subject was deemed inadmissible.
[75] The best evidence I have before me is Mr. Beauregard’s appraisal which confirms a date of separation value of $220,000. Mr. Fitzpatrick testified that during the past five years while he had exclusive possession of the matrimonial home, he has been financially unable to maintain it. As a result, and by the parties’ own account, it is now in a state of disrepair. It is doubtful, based on the evidence before me that the property has increased in value since the date of the parties’ separation.
[76] I have not been provided with any evidence confirming the present fair market value of the home. Even if I had, and its present value was different than its date of separation value, I am of the view that it is appropriate to use the date of separation value both for the purpose of the equalization of the parties’ Net Family Property as well as to quantify Ms. Hubley’s current interest therein. This is because, as will be seen below, I have dismissed Ms. Hubley’s claim for occupational rent as well as Mr. Fitzpatrick’s claim for the reimbursement of mortgage and household expenses he has assumed on his own since the date of separation.
[77] For these reasons, I attribute a date of separation and present value of $220,000 to the matrimonial home.
Debts
[78] The date of separation value of the parties’ joint debts was not disputed. In his financial statement, Mr. Fitzpatrick indicates that he owed $2,910.74 to CRA for the 2013 taxation year. This is confirmed by his 2013 Notice of Assessment. Ms. Hubley argues that since he only filed his 2013 in 2017, this debt did not exist at the time of the parties’ separation. I disagree. The tax debt existed at the time of separation although it was only assessed and confirmed years later. Since the parties separated in September 2013, the debt for the entire year must be reduced to reflect its value as of that date, and I have assessed it to be $1,940.49 ($2,910.74 divided by 12 months times 8 months – to August 2013).
[79] In his financial statement, Mr. Fitzpatrick indicates that he owed the following additional debts at the date of separation:
- $438.89 owing to an unidentified dentist;
- $1,000 owing to “Hydro”
[80] Although ordered to do so on several occasions, he did not provide documentary evidence of those debts, and as a result, I am not allowing those deductions.
Gifts and other property
[81] Mr. Fitzpatrick indicates that the 2009 KIA Magentis, the aluminium boat and trailer, as well as two utility trailers, worth a total of $9,250, were gifts that should be excluded from his Net Family Property value. No evidence was adduced in that regard, and for that reason, this exclusion is refused.
[82] Mr. Fitzpatrick indicates that he owed “other property” at the time of the parties’ marriage valued at $42,250. No evidence was adduced in that regard and that deduction is refused.
Furniture, household contents and vehicles
[83] As stated earlier, at the time of the parties’ separation, the entire content of the matrimonial home was retained by Mr. Fitzpatrick. Ms. Hubley, in her testimony, indicated that she did not want to spent money she did not have to hire an appraiser who would have been able to confirm the value of the household contents and vehicles. As a result, and as is so often the case, both parties have adduced lists of household contents and other belongings highlighting their best assessment of what those items were worth. The court cannot rely on those lists as evidence of the value of these items.
[84] The purchase value of household contents is generally much higher than their fair market value years later. Therefore, the party retaining possession of household contents obtains a significant financial advantage as he/she does not have to spend hard-earned money to refurnish an entire home post-separation, while the party who is denied his/her fair share of the contents suffers a significant financial disadvantage by having to buy everything new. This is exactly what happened here.
[85] While I cannot come to any conclusion with regards to the value of the household contents, vehicles and other belongings based on the evidence before me, I am not prepared to allow Mr. Fitzpatrick to walk away with this important financial advantage, leaving Ms. Hubley at a significant financial disadvantage. Ordering the parties to sell everything at this point and to share the net profits equally would be ludicrous and only cause them both further financial hardship.
[86] At the time of trial, Ms. Hubley was only seeking compensation for the items that she itemized in the list included as Schedule “B”. The values set out in that list are Ms. Hubley’s estimates. Mr. Fitzpatrick has disputed all of these values, arguing that these items are either broken, no longer working and/or worth much less. Mr. Fitzpatrick also argued that Ms. Hubley’s diamond rings, which form part of the parties’ family property, are worth thousands of dollars. Although he was offered an opportunity to obtain an appraisal of their value at his own cost, he did not do so. Ms. Hubley did not provide evidence as to the value of those rings. Ms. Hubley’s diamond rings are therefore added to the list of items included as Schedule “B” (they may already be included under the item “Jewellery”).
[87] With regards to the parties’ household contents, I find that the following process is fair to both parties and I make the following order:
- Within 15 days, the parties shall meet in order to divide between them the items listed in Schedule “B” (which shall include Ms. Hubley’s diamond rings as one item). Each party shall have another adult present with them for the purpose of this process, to act as their witness and peace keeper. Emma cannot act as a witness.
- Each party shall, in turn, chose one of the items listed in Schedule “B” for him or her to keep, with Ms. Hubley having first choice.
- Once all of the items have been divided between the parties, Ms. Hubley shall be given access to the matrimonial home within 5 days thereafter in order to retrieve her chosen items. Should one of those items be a vehicle, Mr. Fitzpatrick shall provide her with the registration, duly signed by him confirming its transfer to Ms. Hubley., as well as any other necessary documents to effect their prompt transfer.
- If Mr. Fitzpatrick fails to return any of the items chosen by Ms. Hubley, he shall become liable to pay her the value allocated to the item as per Schedule “B” (“today’s value”).
- Motions may be brought to my attention on 7 days’ notice if there are any difficulties in implementing this part of my order.
Equalization payment
[88] In accordance with the Net Family Property Statement enclosed as Schedule “A”, Ms. Hubley owes an equalization payment in the amount of $862.76 to Mr. Fitzpatrick. As joint owners of the matrimonial home, each party is presumably entitled to 50% of its equity as well.
Value of the Home, Occupational Rent, Joint Debts and Post-Separation Adjustments
[89] I found, as a fact, that Ms. Hubley was always prepared to transfer her interest in the matrimonial home to Mr. Fitzpatrick, provided that he was able to assume the parties’ joint debts and buy out her 50% share, based on its fair market value on the date of separation. As a result of this understanding, both parties took various steps. Ms. Hubley stopped paying any expenses related to the home and treated it as Mr. Fitzpatrick’s property. Mr. Fitzpatrick took various steps to put himself in a position to keep the home. Among other things, he replaced the furnace; he assumed 100% of the mortgage payments, municipal taxes, home insurance and utilities; when unable to repay the parties’ joint debts, he sought financial assistance from his aunt to pay them off.
[90] The parties’ respective claims with regards to post-separation adjustments, occupational rent, the treatment of the parties’ joint debts, and the transfer of the matrimonial home (or sale thereof) must be assessed in light of those findings.
[91] Mr. Fitzpatrick wishes to keep the home and has claimed exclusive possession thereof post-trial. In his view, the fair market value of the home at the date of separation was equal to the total of the outstanding mortgage and joint debts. Alternatively, and if the matrimonial home is to be sold, he takes the position that Ms. Hubley should be liable to pay him 50% of all expenses assumed by him from the date of separation to present (mortgage, insurance, taxes, utilities and the cost of the new furnace), which would reduce her 50% interest in the home to nil. In addition, he takes the position that the money given to him by his aunt Jean was a loan to him, which he now owes her, and that Ms. Hubley’s interest in the home must be reduced to account for this outstanding debt. In the further alternative, he states that the money was given to him only, to allow him to remain in the home, and not to the parties jointly. As a result, Ms. Hubley ought not to benefit from this gift made to him post-separation.
[92] Ms. Hubley takes the position that the current fair market value of the matrimonial home should be fixed at $220,000. She also takes the position that the money paid by aunt Jean to pay off the parties’ joint debts was a gift to both parties, and as such, must now benefit both parties by increasing their respective interests in the home. She seeks an order confirming that the value of her 50% interest in the home is its fair market value minus the current outstanding mortgage (now at $139,572), divided by two, and seeks occupational rent from the date of separation to present in the amount of $42,470. This figure represents 50% of the monthly rent ($1,370) that this house would yield if it was rented out, as assessed by Mr. Beauregard in a Residential Appraisal Report prepared for Ms. Hubley and produced on May 26, 2018.
[93] An excellent summary of the factors to consider in the context of claims for occupation rent can be found in Casey v. Casey, 2013 SKCA 70 at para. 48:
48 From the jurisprudence the following principles may be drawn regarding the awarding of occupational rent on a matrimonial home:
- Occupational rent is a remedy which may be utilized to obtain justice and equity in appropriate circumstances.
- The remedy is exceptional and should be used cautiously.
- The following factors, where relevant, are appropriately considered:
- The conduct of both spouses, including failure to pay support, the circumstances under which the non-occupying spouse left the home, and if and when the non-occupying spouse moved for a sale of the home (Peltier at paras. 16-17; Wilgosh at paras. 99 and 109; Good at para. 90).
- Where the children are residing and who is supporting them (Good at para. 90; Peltier at paras. 16-17; Wilgosh at para. 108).
- If and when a demand for occupational rent was made (Wilgosh at paras. 100 and 106, Good at para. 90, and Peltier at para. 16).
- Financial difficulty experienced by the non-occupying spouse caused by being deprived of the equity in the home (Peltier at paras. 16-17; Wilgosh at para. 106).
- Who is paying for the expenses associated with the home. This includes who is paying the mortgage and other upkeep expenses (maintenance, insurance, taxes, etc.). If there is no mortgage, occupational rent may be needed to equalize accommodation expenses (Good at para. 90; Peltier at paras. 16-17; Wilgosh at paras. 105-106 and 108).
- Whether the occupying spouse has increased or decreased the selling value of the property (Peltier at paras. 16-17).
- Any other competing claims in the litigation that may offset an award of occupational rent (Wilgosh at para. 108; Good at para. 92).
- The remedy is a discretionary one requiring the balancing of the relevant factors to determine whether occupational rent is reasonable in the totality of the circumstances of the case.
[94] In Griffiths v. Zambosco, [2001] O.J. No. 2096 (CA), the Court noted at para. 49:
49 Since Griffiths and Sloan owned the matrimonial home jointly, and since Griffiths occupied it for over six years after he and Sloan separated, the trial judge clearly had jurisdiction to order Griffiths to pay occupation rent if it was reasonable and equitable to do so. See Irrsack v. Irrsack (1979), 27 O.R. (2d) 478 (C.A.). The relevant factors to be considered when occupation rent is in issue will vary from case to case. However, in a family law context some factors are consistently taken into account. They include:
- The timing of the claim for occupation rent;
- The duration of the occupancy;
- The inability of the non-resident spouse to realize on her equity in the property;
- Any reasonable credits to be set off against occupation rent;
- Any other competing claims in the litigation.
[95] In considering these factors, I find that Ms. Hubley is not entitled to occupational rent. Ms. Hubley only claimed occupational rent for the first time years after the parties’ separation, when she filed her court Application (in April 2017). For the past five years, Mr. Fitzpatrick assumed all expenses related to the home, including the mortgage, taxes, home insurance and the cost of a new furnace (among other things). As stated above, it was the parties’ clear intention that the home would be transferred to Mr. Fitzpatrick, and as a result they acted accordingly. While support was not paid by Mr. Fitzpatrick during those years, it will now become payable retroactively by virtue of this order.
[96] In addition, Ms. Hubley’s share of the equity in the home was not so significant that being deprived of same since 2013 caused her financial hardship. Had Ms. Hubley taken steps shortly following the separation to force the sale of the home, my conclusions may have been different. However, the equity left to be shared by the parties after the payment of disposition costs arising from its sale would have been even less. Both parties had similar housing costs throughout those years, and I previously found that the fair market value of the home had likely not increased throughout those years (it may even have decreased). I find that an award of occupational rent would not be reasonable in the totality of the circumstances of this case.
[97] Similarly, I see absolutely no reason why Ms. Hubley should be required to pay for any of the expenses related to the upkeep of the home while Mr. Fitzpatrick was in exclusive possession of it, particularly since Ms. Hubley’s claim for occupational rent has been denied.
[98] With regards to the repayment of the parties’ joint debts by aunt Jean post-separation, I find that it was a gift intended to benefit solely Mr. Fitzpatrick, and to allow him to keep the home. In Chao v. Chao, 2017 ONCA 701, our Court of Appeal considered whether or not money advances made by the husband’s parents were to be considered gifts or loans. It stated at para. 54:
54 Here the motion judge considered factors listed as relevant in a number of cases concerning monies advanced by parents. These include the following factors identified in the context of a loan vs. gift analysis in Locke v. Locke, 2000 BCSC 1300, [2000] B.C.J. No. 1850 (B.C. S.C.) at para. 21, and Kuo v. Chu, 2008 BCSC 504 (B.C. S.C.) at para. 78, aff'd 2009 BCCA 405, 97 B.C.L.R. (4th) 203 (B.C. C.A.), at para. 9:
- whether there [are] any contemporaneous documents evidencing a loan;
- whether the manner for repayment is specified;
- whether there is security held for the loan;
- whether there are advances to one child and not others, or advances of unequal amounts to various children;
- whether there has been any demand for payment before the separation of the parties;
- whether there has been any partial repayment; and
- whether there was any expectation, or likelihood, of repayment.
See also Barber v. Magee, 2017 ONCA 558 (Ont. C.A.), at para. 4.
[99] Mr. Fitzpatrick did not adduce any documents in evidence that would support the existence of a loan. There was no indication as to when these monies were to be repaid, if at all, and Mr. Fitzpatrick made no payment towards this alleged debt since these monies were advanced. There is no evidence suggesting that aunt Jean is expecting any repayment. Ms. Hubley claims that Mr. Fitzpatrick’s failure to call his aunt as a witness to confirm the existence of a loan, or in the alternative, of a gift to him only, should prompt me to draw an adverse inference against Mr. Fitzpatrick. However, I note that Ms. Hubley did not call her either to support her position that the payment was a gift to both parties.
[100] Aunt Jean is an elderly widow who currently resides in a retirement home. I accept Mr. Fitzpatrick’s testimony to the effect that she is suffering from several medical conditions that required him to care for her extensively and provide her with significant support over the past two years. She is clearly not well. Given her age and her current state of health, it is not surprising that neither party, both of whom are very fond of aunt Jean, has deemed it appropriate to compel her to appear as a witness in this trial.
[101] Based on the evidence before me, I find that the money advanced to Mr. Fitzpatrick to repay the parties’ joint debts, as well as his own personal debts (his Visa and furnace loan) were gifts intended to allow Mr. Fitzpatrick to keep the home. This generous gift is consistent with other generous gifts made by aunt Jean and her husband to this family in the past, with no expectation of repayment. This gift was made in the context of the parties’ informal understanding that Mr. Fitzpatrick would be able to keep the home so long as he was able to assume all expenses related to it, as well as the outstanding joint debts. I find that this gift was intended to benefit Mr. Fitzpatrick only, and not the parties jointly.
[102] Based on all of the above, I find that Ms. Hubley’s interest in the matrimonial home should be fixed at an amount representing her 50% share of the equity in the matrimonial home as it stood on the date of the parties’ separation, and calculated as follows:
- Fair market value of the home: $220,000.00
- Outstanding mortgage: $152,000.00
- Outstanding joint debts: $27,697.14
- Total equity: $40,302.86
- Ms. Hubley’s 50% share: $20,151.43
[103] This is an equitable result because it takes into consideration the following facts, among others:
- Mr. Fitzpatrick has been solely responsible for the payment of all costs related to the home since the date of the parties’ separation, including the cost of replacing the furnace;
- The value of the home has not increased since the date of separation; if anything, its value has likely gone down. Ms. Hubley should not be penalized for this, particularly since her claim for occupational rent has been dismissed;
- Both parties had comparable housing costs during the year following their separation;
- The monetary gifts received from aunt Jean were meant to benefit Mr. Fitzpatrick only;
- Mr. Fitzpatrick should reap the benefit of the reduction in the outstanding mortgage which was achieved as a result of his assuming 100% of the mortgage payments for the past five years.
[104] Ms. Hubley seeks an order forcing the sale of the home so as to allow her to realize her interest in that asset. She also seeks various orders allowing for a smooth and expeditious sale of the home, based on her concerns that Mr. Fitzpatrick will not cooperate in selling the home. Among others, she seeks exclusive possession of the property to get it ready for sale as well as sole authority to sign any documents related to the sale, including the listing agreement and a potential agreement of purchase and sale.
[105] Mr. Fitzpatrick, on the other end, wishes to keep the home and to have it transferred into his sole name.
[106] Pursuant to s. 9 of the Family Law Act, the court can only transfer title of a property from one spouse to the other to the extent that it is necessary to satisfy an obligation imposed by the order. In this case, I cannot compel Ms. Hubley to transfer her interest in the matrimonial home to Mr. Fitzpatrick, as she is the one to whom money is owed pursuant to this order, the details of which are as follows:
- Mr. F.’s 50% equity in the home: $20,151.43
- Reimbursement of CRA benefits paid: $8,838.50
- (Minus) equalization payment owing by Ms. Hubley: ($862.76)
- Owing by Mr. Fitzpatrick to Ms. Hubley: $28,127.17
[107] This is in addition to the three cost awards made against Mr. Fitzpatrick in favour of Ms. Hubley in the context of this proceeding, which remain outstanding (a total of $3,750), as well as child support arrears owing by Mr. Fitzpatrick to Ms. Hubley.
[108] I agree that it is very unlikely, based on the evidence before me, that Mr. Fitzpatrick will cooperate with the sale of the matrimonial home. He has been very uncooperative in all matters pertaining to the parties’ financial affairs since the parties’ separation (transfer of the vehicle, division of household contents, payment of the children’s expenses, CRA benefits and failure to provide disclosure as ordered by the court).
[109] Based on the above, an order shall issue as follows:
- Mr. Fitzpatrick shall relocate out of the matrimonial home on or before March 17, 2019, at which time, Ms. Hubley shall have exclusive possession of the property for the purpose of preparing it and listing it for sale.
- The matrimonial home shall be put up for sale within 30 days after exclusive possession is given to Ms. Hubley, in accordance with the following directions.
- The parties shall jointly retain the services of a real estate agent to sale the property. Ms. Hubley shall provide Mr. Fitzpatrick with the names and contact information of three real estate agents within 10 days after being granted exclusive possession of the home, and Mr. Fitzpatrick shall confirm in writing and within 5 days thereafter which of the three agents proposed he wishes to retain.
- The parties shall sign the listing agreement with that agent within 10 days thereafter.
- In the event that Mr. Fitzpatrick fails to confirm his choice of agent within the timeline set out in para. 3 above, or to sign the listing agreement in accordance with para. 4 above, Ms. Hubley shall have sole authority to do so.
- The property shall be listed for sale at the listing price recommended by the parties’ real estate agent.
- The parties shall accept any offer presented as long as the purchase price offered is within a 5% range of the asking price. In the event that Mr. Fitzpatrick refuses to accept an offer that is within that range within 24 hours of the offer being made, Ms. Hubley shall have sole authority to accept the offer and to sign the agreement of purchase and sale and transfer documents.
- Once Mr. Fitzpatrick has granted exclusive possession of the home to Ms. Hubley, and until the home is sold, each party shall assume 50% of the mortgage, municipal taxes and home insurance payments, as well as the costs of heating the property until its sale. Should one party fail to pay his or her 50% share of those costs thus forcing the other to assume more than his or her 50% share, that party shall be repaid from the net proceeds from the sale of the home and in priority before the amounts set out below are paid to either party.
- From the net proceeds of the sale of the matrimonial home, the sum of $31,877.17 shall be paid to Ms. Hubley, which is calculated as follows: a. Mr. H’s 50% equity in the home: $20,151.43 b. Reimbursement of CRA benefits paid: $8,838.50 c. Costs awards previously made in this proceeding: $3,750.00 d. (Minus) equalization payment owing by Ms. Hubley: ($862.76) e. For a total of : $31,877.17
- The balance of the net proceeds from the sale of the home shall be paid to Mr. Fitzpatrick.
- Should there be difficulties in the implementation of this order, I can be spoken to.
[110] In her testimony and closing arguments, Ms. Hubley confirmed on several occasions that she would be prepared to consent to the transfer of the home to Mr. Fitzpatrick if he was able to buy her out. While I do not have jurisdiction to make that order in the present circumstances, I encourage Ms. Hubley to consent to the transfer of the home in Mr. Fitzpatrick’s sole name should he be able to come up with the funds to pay $31,877.17 to her, as detailed above, before March 17, 2019.
Costs
[111] I will accept written submissions should the parties be unable to agree on costs. Ms. Hubley will have 20 days from the date of this decision to provide her submissions and Mr. Fitzpatrick will have 20 days thereafter to do the same. Ms. Hubley will be allowed a brief reply if deemed necessary, which shall be provided within 10 days from receipt of Mr. Fitzpatrick’s submissions.
Madam Justice Julie Audet
Released: January 11, 2019
ONTARIO Court File Number Superior Court of Justice, Family Court FC-17-277 (Name of Court) at 160 Elgin Street, Ottawa, Ontario Form 13B: Net Family Property Statement (Court office address)
SCHEDULE “A” TO JUSTICE AUDET’S DECISION
Applicant(s) Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any). Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any). Joseph Redmond Fitzpatrick
Respondent(s) Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any). Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any). Janet Erin Hubley
My name is (full legal name) The valuation date for the following material is (date) September 3, 2013 The date of marriage is (date) March 20, 1998
(Complete the tables by filling in the columns for both parties, showing your assets, debts, etc. and those of your spouse)
Table 1: Value Of Assets Owned on Valuation Date (List in the order of the categories in the financial statement)
PART 4(a): LAND
| Nature & Type of Ownership (State percentage interest) | Address of Property | APPLICANT | RESPONDENT |
|---|---|---|---|
| Matrimonial Home | 4056 Stagecoach Road, Osgoode, Ontario | $110,000.00 | $110,000.00 |
| 15. Totals: Value of Land | $110,000.00 | $110,000.00 |
PART 4(b): GENERAL HOUSEHOLD ITEMS AND VEHICLES
| Item | Description | APPLICANT | RESPONDENT |
|---|---|---|---|
| Household goods | To be divided in species. | ||
| & furniture | |||
| Cars, boats, | |||
| vehicles | |||
| Jewellery, art, | |||
| electronics, tools, | |||
| sports & hobby, | |||
| equipment | |||
| Other special | |||
| items | |||
| 16. Totals: Value of General Household Items and Vehicles | $0.00 | $0.00 |
PART 4(c): BANK ACCOUNTS AND SAVINGS, SECURITIES AND PENSIONS
| Category (Savings, Checking, GIC, RRSP, Pensions, etc.) | Institution | Account Number | APPLICANT | RESPONDENT |
|---|---|---|---|---|
| 17. Totals: Value of Accounts And Savings | $0.00 | $0.00 |
PART 4(d): LIFE AND DISABILITY INSURANCE
| Company, Type & Policy No. | Owner | Beneficiary | Face Amount ($) | APPLICANT | RESPONDENT |
|---|---|---|---|---|---|
| 18. Totals: Cash Surrender Value Of Insurance Policies | $0.00 | $0.00 |
PART 4(e): BUSINESS INTERESTS
| Name of Firm or Company | Interests | APPLICANT | RESPONDENT |
|---|---|---|---|
| 19. Totals: Value Of Business Interests | $0.00 | $0.00 |
PART 4(f): MONEY OWED TO YOU
| Details | APPLICANT | RESPONDENT |
|---|---|---|
| 20. Totals: Money Owed To You | $0.00 | $0.00 |
PART 4(g): OTHER PROPERTY
| Category | Details | APPLICANT | RESPONDENT |
|---|---|---|---|
| 21. Totals: Value Of Other Property | $0.00 | $0.00 |
| 22. VALUE OF PROPERTY OWNED ON THE VALUATION DATE, (TOTAL 1) (Add: items [15] to [21]) | $110,000.00 | $110,000.00 |
|---|
Table 2: Value Of Debts and Liabilities on Valuation Date
PART 5: DEBTS AND OTHER LIABILITIES
| Category | Details | APPLICANT | RESPONDENT |
|---|---|---|---|
| Mortgage | First Line (joint) | $76,000.00 | $76,000.00 |
| Line of credit | Scotiabank (joint) | $3,985.22 | $3,985.22 |
| Credit cards | Scotiabank Value Visa (joint) | $9,863.35 | $9,863.35 |
| Scotiabank Scene Visa (sole) | $5,068.09 | ||
| Canadian Tire Mastercard (sole) | $4,853.11 | ||
| Tax arrears | For the year 2013 | $1,940.49 | |
| 23. Totals: Debts And Other Liabilities, (TOTAL 2) | $94,916.66 | $96,642.17 |
Table 3: Net value on date of marriage of property (other than a matrimonial home) after deducting debts or other liabilities on date of marriage (other than those relating directly to the purchase or significant improvement of a matrimonial home)
PART 6: PROPERTY, DEBTS AND OTHER LIABILITIES ON DATE OF MARRIAGE
| Category and Details | APPLICANT | RESPONDENT |
|---|---|---|
| Land (exclude matrimonial home owned on the date of marriage, unless sold before date of separation). | ||
| General household items and vehicles | ||
| Bank accounts and savings | ||
| Life and disability insurance | ||
| Business interests | ||
| Money owed to you | ||
| Other property | ||
| 3(a) TOTAL OF PROPERTY ITEMS | $0.00 | $0.00 |
| Debts and other liabilities (Specify) | ||
| 3(b) TOTAL OF DEBTS ITEMS | $0.00 | $0.00 |
| 24. NET VALUE OF PROPERTY OWNED ON DATE OF MARRIAGE, (NET TOTAL 3) | $0.00 | $0.00 |
Table 4: PART 7: VALUE OF PROPERTY EXCLUDED UNDER SUBS. 4(2) OF “FAMILY LAW ACT”
| Item | APPLICANT | RESPONDENT |
|---|---|---|
| Gift or inheritance from third person | ||
| Income from property expressly excluded by donor/testator | ||
| Damages and settlements for personal injuries, etc. | ||
| Life insurance proceeds | ||
| Traced property | ||
| Excluded property by spousal agreement | ||
| Other Excluded Property | ||
| 26. TOTALS: VALUE OF EXCLUDED PROPERTY, (TOTAL 4) | $0.00 | $0.00 |
| TOTAL 2: Debts and Other Liabilities (item 23) | $94,916.66 | $96,642.17 |
|---|---|---|
| TOTAL 3: Value of Property Owned on the Date of Marriage (item 24) | $0.00 | $0.00 |
| TOTAL 4: Value of Excluded Property (item 26) | $0.00 | $0.00 |
| TOTAL 5: (TOTAL 2 + TOTAL 3 + TOTAL 4) | $94,916.66 | $96,642.17 |
| APPLICANT | RESPONDENT | |
|---|---|---|
| TOTAL 1: Value of Property Owned on Valuation Date (item 22) | $110,000.00 | $110,000.00 |
| TOTAL 5: (from above) | $94,916.66 | $96,642.17 |
| TOTAL 6: NET FAMILY PROPERTY (Subtract: TOTAL 1 minus TOTAL 5) | $15,083.34 | $13,357.83 |
EQUALIZATION PAYMENTS
| Applicant Pays Respondent | Respondent Pays Applicant | |
|---|---|---|
| $862.76 | $0.00 |
Signature Date of signature
SCHEDULE “B”
HUBLEY FITZPATRICK ASSETS VALUED AT MORE THAN $200
Household Goods & Furniture
| NOT IN MY POSSESSION | Date of Marriage | Valuation Date | Today |
|---|---|---|---|
| Fridge | $ - | $ 300.00 | $ 240.00 |
| Stove | $ - | $ 300.00 | $ 240.00 |
| dining table & chairs | $ - | $ 400.00 | $ 340.00 |
| books shelves (3) | $ - | $ 250.00 | $ 200.00 |
| king pillowtop mattress | $ - | $ 800.00 | $ 625.00 |
| storage shelves | $ - | $ 250.00 | $ 200.00 |
| washing machine | $ - | $ 300.00 | $ 230.00 |
| dryer | $ - | $ 300.00 | $ 230.00 |
| dishes and silverware | $ - | $ 200.00 | $ 200.00 |
| fine china (2 sets) | $ - | $ 3,000.00 | $ 3,000.00 |
| snow blower | $ - | $ 300.00 | $ 250.00 |
| patio table and chair sets (2) | $ - | $ 300.00 | $ 210.00 |
| utility shed | $ - | $ 250.00 | $ 200.00 |
| engine hoist | $ - | $ 300.00 | $ 275.00 |
| tool chest | $ - | $ 300.00 | $ 250.00 |
| Christmas tree and decorations | $ - | $ 350.00 | $ 280.00 |
| antique hutch | $ - | $ 200.00 | $ 200.00 |
| central A/C unit | $ - | $ 1,000.00 | $ 750.00 |
| TOTAL | $ - | $ 9,100.00 | $ 7,920.00 |
| My share at 50% (post marriage) | $ - | $ 4,550.00 | $ 3,960.00 |
Cars, boats and vehicles
| VALUE | NOT IN MY POSSESSION | Date of Marriage | Valuation Date | Today |
|---|---|---|---|---|
| 1998 Volvo S70 | $ - | $ 1,500.00 | $ 1,000.00 | |
| 1997 Honda Civic | $ - | $ 2,000.00 | $ 1,300.00 | |
| 1998 GMC Safari | $ - | $ 1,000.00 | $ 600.00 | |
| 1993 Suzuki Swift | $ - | $ 500.00 | $ 300.00 | |
| 1992 Chevrolet Sprint | $ - | $ 500.00 | $ 300.00 | |
| 1989 Toyota 4 Runner | $ - | $ 400.00 | $ 250.00 | |
| 1992 Isuzu Trooper | $ - | $ 500.00 | $ 350.00 | |
| fiberglass canoe | $ - | $ 300.00 | $ 230.00 | |
| aluminum boat | $ - | $ 500.00 | $ 375.00 | |
| boat trailer | $ - | $ 400.00 | $ 275.00 | |
| 4 kayaks | $ - | $ 1,200.00 | $ 1,100.00 | |
| Coleman Sea Pine tent trailer and contents | $ - | $ 4,000.00 | $ 2,300.00 | |
| Glendette 34’ park model trailer and contents | $ - | $ 6,000.00 | $ 4,800.00 | |
| utility trailer | $ - | $ 400.00 | $ 375.00 | |
| utility trailer | $ - | $ 300.00 | $ 225.00 | |
| lawn tractor and trailer | $ - | $ 800.00 | $ 575.00 | |
| TOTAL | $ - | $ 20,300.00 | $ 14,355.00 | |
| My share at 50% (post marriage) | $ - | $ 10,150.00 | $ 7,177.50 |
Jewelry, art, electronics, tools, sports & hobby equipment
| VALUE | ITEMS IN MY POSSESSION | Date of Marriage | Valuation Date | Today |
|---|---|---|---|---|
| Jewelry | $1,900.00 | $ 2,300.00 | $ 2,000.00 | |
| TOTAL | $ 1,900.00 | $ 2,300.00 | $ 2,000.00 | |
| I own 100% (prior to marriage) | $ 400.00 | $ 2,300.00 | $ 2,000.00 | |
| My share at 50% (post marriage) | $ - | $ - | $ - | |
| MY TOTAL VALUE: | $ 400.00 | $ 2,300.00 | $ 2,000.00 |
| VALUE | NOT IN MY POSSESSION | Date of Marriage | Valuation Date | Today |
|---|---|---|---|---|
| Paul Rupert framed print | $ - | $ 750.00 | $ 750.00 | |
| Paul Rupert framed print | $ - | $ 500.00 | $ 500.00 | |
| air compressor | $ - | $ 500.00 | $ 380.00 | |
| tools | $ - | $ 750.00 | $ 730.00 | |
| 42” TV | $ - | $ 250.00 | $ 175.00 | |
| Wii system & games | $ - | $ 300.00 | $ 200.00 | |
| camping equipment | $ - | $ 500.00 | $ 380.00 | |
| downhill skis | $ - | $ 400.00 | $ 275.00 | |
| fishing gear | $ - | $ 200.00 | $ 200.00 | |
| exercise equipment | $ - | $ 300.00 | $ 225.00 | |
| bicycles | $ - | $ 400.00 | $ 250.00 | |
| Hammond organ | $ - | $ 400.00 | $ 300.00 | |
| cross country skis | $ - | $ 400.00 | $ 275.00 | |
| TOTAL | $ - | $ 5,650.00 | $4,640.00 | |
| My share at 50% (post marriage) | $ - | $ 2,825.00 | $2,320.00 |
COURT FILE NO.: 17-277 DATE: 20190114 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JANET ERIN HUBLEY Applicant – and – JOSEPH REDMOND FITZPATRICK Respondent REASONS FOR Decision Audet J. Released: January 14, 2019