COURT FILE NO.: FC-19-555
DATE: 2019/11/01
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Diana Crockett, Applicant AND Thomas Crockett, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Matt Brown as Agent for A. Campbell, for the Applicant Michael Rappaport, for the Respondent
HEARD: October 29, 2019
ENDORSEMENT
[1] The respondent moves for an order to sell the jointly owned matrimonial home. The applicant opposes the sale until such time as the equalization of net family property, child and spousal support are resolved on a final basis. The applicant also seeks a temporary order for spousal support based on her financial need. She seeks child support from August 2013 to and including June 2015.
[2] I have concluded that the matrimonial home should be sold before trial and that the motion for temporary spousal support should be dismissed. Child support should be paid. My reasons follow.
[3] The parties separated in August 2013, following about seven years of marriage. The applicant has had sole occupation of the matrimonial home since then. The parties’ son lived with her until September 2019, although he completed high school in June 2015. He obtained employment and for some time paid rent to the applicant in an amount not known to the court.
[4] During the period of August 2013 to and including June 2015 the father should have paid child support in accordance with his total income and the Child Support Guidelines[^1]. I was not provided with his income figures for those years. Accordingly, I order him to produce his Notices of Assessment for 2013, 2014 and 2015 and to pay child support to the applicant in the table amount for that period.
[5] The respondent paid the carrying costs of the matrimonial home until August 2016, when the applicant took over. The mortgage and property insurance combine to cost $785.62 per month and are up to date. On her own income of $740.58 per month the applicant will not be able to keep these payments current. The property taxes are already $15, 220 in arrears.
[6] The applicant also has a $20,000 lien to Legal Aid Ontario registered against title.
[7] The applicant seeks temporary spousal support of $866 per month which is the high end of the Spousal Support Advisory Guidelines[^2]for her income and the applicant’s of $21, 098 per year. The applicant’s income is close to the $20,000 “floor” below which the SSAG generally does not advise payment of spousal support. After reviewing the respondent’s expenses and removing amounts included in error for property taxes and union dues which he does not have, and for alcohol and tobacco, I find he is just able to cover his own expenses.
[8] The applicant challenges the respondent’s income, asserts that he need not have retired when he did at age 64 and points out that he has not yet produced medical files to justify a reason for retiring. He has produced a copy of his decoded summary from the Alberta health plan showing all appointments and treatments for the past seven years, and copies of his prescription summaries for the past two years. None of this information was put before the court by the respondent. She may be able to develop a case that the respondent ought not to have retired when he did, but as the record is, I am not persuaded that I should impute income to him or that he has the present ability to pay spousal support.
[9] On her own, the applicant is not able to carry the matrimonial home. She has sought an award of exclusive possession on a final basis and may seek an order under the Family Law Act[^3] s. 9 transferring his interest in the home to her in satisfaction of the equalization payment he will owe her. In some circumstances these would be persuasive reasons not to grant an order for sale before trial.
[10] Here the parties Net Family Properties are not yet fully established. The value of the home is still in dispute. The respondent recently obtained an opinion of value from Royal Lepage Team Realty setting out $375,000 as the current market value. The appellant believes the value is between $272,000 to $325,000, but she does not have an appraisal. Based on his valuation and the numbers currently available for his pensions at the date of separation, noting that one value is from two years post separation and may be high, the equalization payment he may owe to the applicant may be expected in the vicinity of $105,510. If the matrimonial home is worth $375,000, the equity in it after real estate commissions, legal fees and discharging the mortgage, line of credit and arrears for property taxes, would be in the range of $248,000 or $124,000 each. If so, the court would not be expected to order the transfer of his interest to her in any event.
[11] Rather than postpone the sale of the home until final determination as asked by the applicant, the financial circumstances of both parties and the duration of her exclusive occupation of the house to date lead me to the opposite conclusion.
[12] Unless the parties can enter into a purchase and sale agreement between themselves within 45 days, I order the premises listed for sale at that time.
[13] The respondent did not establish why he should have exclusive control over the sale. Both parties should be involved in the choice of listing agent, list price and acceptance of and/or countering any offers received. A Master in Ottawa shall determine any disputes that arise with respect to the sale.
[14] From the sale proceeds shall be paid real estate commission, real estate legal fees and disbursements and the balances to discharge the mortgage, line of credit and property tax arrears. Any payment required to be made to lift the LAO lien shall be paid from the applicant’s one-half share of the net proceeds of sale, the balance of which shall then be released to her. Any accounting required from post separation payments made to the mortgage, taxes and insurance or use of the line of credit, is also referred to the Master to be completed prior to the release of funds to the applicant.
[15] The remaining net proceeds of sale shall be held in an interest-bearing account by the applicant’s lawyer, in trust and as security for payment of the equalization payment and any other amounts for child or spousal support that may be subsequently awarded to her.
[16] This order obviates the need to freeze the RRSP and LIF accounts of the respondent as asked by the applicant.
Other Issues
[17] The respondent shall maintain the applicant as a dependent beneficiary of his medical/dental coverage until further order of the court. The applicant may renew her request for life insurance coverage and for an accounting of the motor vehicle insurance proceeds paid to the respondent at a later date. The respondent shall forthwith produce the vehicle ownership and proof of any life insurance he has.
[18] The respondent is also ordered to provide the following disclosure:
i. A copy of his medical file as it pertains to his claim that he does not work due to medical reasons;
ii. The Respondent’s complete job search records from his alleged date of unemployment including his most current curriculum vitae, job applications submitted and records of any job interviews;
iii. Details of the $10,985.53 debt claimed on the Respondent’s Financial Statement; and
iv. An amended Financial Statement removing the date of separation values currently identified as “TBD” and inserting the required values.
[19] In so doing, he shall also correct the mechanical errors detailed at page 2 of TAB 13 (L) of the Continuing Record.
Trial Readiness
[20] Both parties will benefit from a speedy resolution of this case. There are many trial dates available during the May trial sittings. Counsel should complete the remaining disclosure required from both parties and proceed to a settlement conference. In the meantime, they may deliver a jointly prepared complete TSEF to me, and if it is satisfactory, I will sign it and have the case placed on the May trial list.
Costs
[21] If costs are sought and cannot be agreed to, the parties may submit written submissions, not to exceed three pages plus Bill of Costs to me on a schedule they agree to, but not later than December 6, 2019.
J. Mackinnon J.
Date: November 1, 2019
COURT FILE NO.: FC-19-555
DATE: 2019/11/01
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Diana Crockett, Applicant AND Thomas Crockett, Respondent
BEFORE: J. Mackinnon J.
COUNSEL: Matt Brown as Agent for A. Campbell, for the Applicant Michael Rappaport, for the Respondent
ENDORSEMENT
J. Mackinnon J.
Released: November 1, 2019
[^1]: Child Support Guidelines, O.Reg. 391/97 as am. [^2]: Spousal Support Advisory Guidelines, prepared for the Department of Justice Canada, July 2008, http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html [^3]: Family Law Act, R.S.O. 1990, c.F.3, as am