Manship v. Manship, 2019 ONSC 7535

Robert Adrian Manship v. Louise Katherine Manship

COURT FILE NO.: FC-18-2329

DATE: 2019/12/30

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Robert Adrian Manship, Applicant

AND

Louise Katherine Manship, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Russell Molot, Counsel for the Applicant

Fan MacKenzie, Counsel for the Respondent

HEARD: October 31, 2019

ENDORSEMENT

1The issues on this motion relate to interim parenting, interim child and spousal support, disclosure, the return of chattels, distribution of the proceeds of sale from the matrimonial home, and Ms. Manship’s request for leave to amend her pleadings to make a trust claim.

2The parties married on June 22, 1991. They separated on June 22 or 25, 2017. Mr. Manship commenced this Application on November 30, 2018.

3The parties have one child, R., now age 12. R. has resided in a week-on week-off schedule since December of 2017. There were minimal concerns with this arrangement until R. began to express concerns with Ms. Manship’s household, and a desire to have her voice heard. Mr. Manship states R. began to express these concerns in December of 2018. Ms. Manship states R. did not begin to express these concerns until the spring of 2019, when she began to pursue child and spousal support.

4Mr. Manship’s view is that R. is upset with Ms. Manship’s new partner being “inserted” into her life. In September of 2019, Mr. Manship arranged for R. to see a counsellor, Ms. Sandra LeBlanc. Mr. Manship arranged this counselling without notice to Ms. Manship, without consultation with Ms. Manship, and without Ms. Manship’s consent. Ms. Manship only became aware that R. was in counselling through Mr. Manship’s affidavit sworn on October 25, 2019.

5Mr. Manship states that R. has told her counsellor that she wants to be heard by her parents, does not like Ms. Manship’s boyfriend, and wants to spend more time with her father. Ms. Manship is concerned that R. has been influenced by her father to fear Ms. Manship’s boyfriend.

6Both parties seek an order that they have interim joint custody of R., although they disagree on the timesharing arrangement. Mr. Manship brought this motion seeking an order that R. primarily resides with him. At the hearing of the motion, he adjourned his request to change the timesharing status quo arrangement pending the determination of whether there should be a Voice of the Child Report or another mechanism for placing evidence of the child’s views and preferences before the court.

7The issues to be decided are:

1. Parenting:

a. Should there be an order for the child to see a counsellor agreed to by both parties?

b. Should the court order a Voice of the Child Report, or some other method to bring the child’s views and preferences before the court?

2. Temporary support:

a. What temporary child support is payable?

b. What temporary spousal support is payable?

c. When should temporary child and spousal support start, given Mr. Manship’s payment of expenses related to the matrimonial home?

3. What should happen to the proceeds of the sale of the matrimonial home when the home is sold?

4. Should an order be made for the return of chattels to Mr. Manship at this time?

5. Should an order be made requiring Mr. Manship to provide the disclosure requested by Ms. Manship?

6. Should leave be granted to permit Ms. Manship to amend her Answer to include a trust claim?

Issue #1a: Parenting: Should there be an order for the child to see a counsellor agreed to by both parties?

8I order that the child change counsellor’s as soon as possible to a counsellor agreed upon by both parties. I find that this is in the child’s best interests.

9The child has been seeing a counsellor, Ms. Sandra LeBlanc, since approximately September 2019. Mr. Manship arranged this counselling without Ms. Manship’s consent. Ms. Manship objects to Ms. LeBlanc continuing to provide counselling. Ms. Manship questions Ms. LeBlanc’s professionalism due to Ms. LeBlanc counselling the child without the consent of both parents. Ms. Manship also questions Ms. LeBlanc’s impartiality, given her interactions with Mr. Manship.

10Both parties agree that it is in the child’s best interests to have individual counselling, the purpose of which is to provide therapeutic assistance to R., rather than to be used as a tool in this litigation.

11The issue then is whether it is in the child’s best interests to require a change to her counsellor due to Ms. Manship’s concerns. R. has been seeing Ms. LeBlanc for several weeks. A change will be disruptive to R. and require her to develop a comfort level with a new person.

12It is, however, concerning that Mr. Manship arranged for Ms. LeBlanc to provide counselling without consulting with Ms. Manship or seeking her agreement. Although Mr. Manship submitted that he did consult with Ms. Manship on this counselling, Ms. Manship denies this. Mr. Manship has not provided any email evidence or Our Family Wizard communications that demonstrate he advised Ms. Manship that he was seeking counselling for the child, proposed Ms. LeBlanc as the counsellor, or invited Ms. Manship to provide names of other counsellors. I find that Mr. Manship did not consult with Ms. Manship before arrangement counselling with Ms. LaBlanc and that he did not notify Ms. Manship that R. was seeing Ms. LeBlanc for counselling until service of his affidavit sworn October 25, 2019.

13Mr. Manship’s failure to consult Ms. Manship is unfortunate as it undermines Ms. LeBlanc’s ability to assist the child. Mr. Manship’s exclusion of Ms. Manship raises serious concerns because Ms. Manship did not have the opportunity to provide information to Ms. LeBlanc, which may have been relevant to her approach. I am also concerned that Mr. Manship obtained copies of Ms. LeBlanc’s notes, how this came to be, and that this information was again not communicated to Ms. Manship until Mr. Manship included it in his affidavit. I agree that Ms. Manship has legitimate concerns regarding the parameters and purpose of Mr. Manship’s engagement of Ms. LeBlanc.

14Although I am reluctant to change the child’s counsellor at this time, I find that it is in the child’s best interest to do so. This change is unfortunate but necessary to ensure that the child receives counselling that is not unfairly influenced, manipulated, or contaminated by one parent’s narrative or design.

15It is in the best interests of the child to have a counsellor whose purpose is to provide therapeutic assistance to the child, and for this therapeutic assistance to be insulated from the court process. I order the parties to immediately retain a new counsellor for the child, to be agreed upon by both parties. If the parties are not able to agree on a new counsellor for the child, counsel may provide submissions to me, and I will determine the issue. Each party shall propose three possible counsellors, with point form reasons of no more than two pages in length in support of their choice of the counsellor.

Issue #1b: Parenting: Should the court order a Voice of the Child Report, or some other method to bring the child’s views and preferences before the court?

16The parties agree that the child’s views and preferences are one of the factors that a court should consider in determining her best interests. Mr. Manship seeks a Voice of the Child Report. He proposes that Ms. Valerie Morinville provide such a report. Ms. Manship opposes this because she takes the position that there should be a more robust investigation of the needs of the child and the ability of the parents to meet those needs.

17I find that there should be an order for evidence of the child’s views and preferences to be put before the court through a Voice of the Child Report. This report is to be provided by Ms. Valerie Morinville if she is agreeable to doing so. The process should include Ms. Morinville meeting with the child on at least two occasions, speaking to the child’s counsellor(s) and other third parties that the report writer deems appropriate, meeting with the parties to share the views and preferences of the child, and providing a report to the parties and to be filed with the court. The parties shall share the cost of this report equally.

18If the parties agree, the above process may expand to include Ms. Morinville having further sessions with the child, and either one or more of the parents, to assist the parents in responding to the needs of the child and the child’s “voice,” including concerning the parenting schedule, the parent's respective partners, and other parenting matters.

19If the parties do not agree to this expansion, either party may seek a further order from the court regarding whether such an expansion should occur, and how the costs of such should be shared.

20I do not find that there is a basis for ordering a custody and access assessment at this time. Neither party alleges that the other is not a capable parent, or that there are complex psychiatric matters in issue.

Issue #2a: Temporary Support: What temporary child support is payable?

21The parties agree that interim child support should be paid between them on a set-off basis, given their equal timesharing schedule. For this purpose, they agree that Ms. Manship’s annual income is $36,000 and to use $94,238 for Mr. Manship’s annual income. These incomes result in Ms. Manship paying interim child support to Mr. Manship at the table amount of $315 per month, and Mr. Manship paying interim child support to Ms. Manship at the table amount of $865 per month, for a net set-off payment of $550 per month.

22Mr. Manship’s income of $94,238 is based on his total income on line 150 of his personal tax return. Although Ms. Manship takes issue with this being Mr. Manship’s income, she has accepted it for the purpose of interim support. There is an issue regarding Mr. Manship’s income, which will need to be determined at trial. Ms. Manship is self-employed through a corporation in which he is the sole shareholder. The issue is whether Mr. Manship’s income for child support purposes should include his corporation’s pre-tax income. Mr. Manship argues that his income should not include all of his pre-tax corporate income because he needs to leave some income in the corporation (approximately $17,000 per year since separation), due to capital requirements.

Issue #2b: Temporary Support: What temporary spousal support is payable?

23Mr. Manship does not dispute that spousal support should be paid on an interim basis. The difference between the parties’ respective positions is whether interim spousal support should be based on the mid ($980 per month) or high ($1,377) range under the Spousal Support Advisory Guidelines. These ranges are based on Ms. Manship claiming the eligible dependent credit for the child, which is agreed upon by Mr. Manship. At the high range, the parties have approximately equal net disposable incomes, assuming Ms. Manship’s income is $36,000 per year and Mr. Manship’s income is $94,238 per year.

24I find that Mr. Manship should pay interim spousal support to Ms. Manship in the amount of $1,377 per month. I find that this is a fair amount of interim spousal support based on the following:

1. The child resides with both parents in an equal parenting schedule. It is in the best interests of the child for the child to have similar standards of living in both households; and

2. Interim child and spousal support are based on Mr. Manship’s line 150 income. This income is a conservative estimate of Mr. Manship’s income, given his higher pre-tax corporate income, his retained earnings have been increasing since separation, and further investigation is reasonable regarding whether expenses paid by the corporation provide Mr. Manship with some personal benefit.

Issue #2c: Temporary Support: When should temporary child and spousal support start, given Mr. Manship’s payment of expenses related to the matrimonial home?

25The parties are hopeful that the matrimonial home will be sold in December of 2019. To date, Mr. Manship has been contributing to some of the costs of the home. On an interim basis, I find that the interim child and spousal support shall be payable effective December 1, 2019. Also, as of December 1, 2019, each party shall pay 50% of the costs the matrimonial home until it is sold, including the monthly mortgage, property insurance, property taxes, and utility expenses that are needed to maintain the capital value of the property.

26The above orders are based on Ms. Manship advising that she is vacating the matrimonial home at the end of November 2019. If Ms. Manship had continued to reside in the matrimonial home, I would have required her to pay the utilities and other expenses related to her occupancy of the home.

27The issues of what household expenses Mr. Manship has contributed to since separation, and how these payments should be credited to his support obligations, will need to be determined at trial. These issues include what payments Mr. Manship has made (he states he deposited $1,600 per month into the bank account from which the mortgage is paid), what his obligation was to contribute to the household expenses, including property taxes that Ms. Manship states she paid, that Mr. Manship received some benefit for his payments on the mortgage to the extent that the balance of the principal owed was reduced, Mr. Manship’s obligation to pay past child and spousal support, and the obligation of both parties to contribute to s.7 expenses.

Issue #3: What should happen to the proceeds of the sale of the matrimonial home when the home is sold?

28Ms. Manship seeks one-half of the net proceeds from the sale of the matrimonial home be paid to her upon sale. At the hearing of the motion, Mr. Manship agreed to these proceeds being paid to her. It was common ground between the parties that Mr. Manship will owe Ms. Manship an equalization payment. There is no basis to hold Ms. Manship’s share of the proceeds in trust.

29Ms. Manship also seeks that Mr. Manship’s one-half of the net proceeds be paid to her, as an advance on equalization. Mr. Manship opposes this distribution.

30At this time, I am not prepared to order a further distribution of any portion of the proceeds of the sale of the matrimonial home. Although Ms. Manship argued that Mr. Manship’s best-case scenario was that he would owe her an equalization payment of approximately $230,000, which his portion of the proceeds of the sale of the matrimonial home would only partially satisfy, I decline to make this order for the following reasons:

1. At the hearing of the motion, the matrimonial home was not sold. There was some uncertainty that it would be sold in December of 2019, and what the net sale proceeds will be;

2. Ms. Manship’s net family property statement does not account for any notional tax liability payable on the disposition of Mr. Manship’s corporate assets. Mr. Manship only produced a valuation of this business in the week before the motion. Mr. Manship must provide evidence supporting any disposition costs that he claims on this corporate asset, but I find that it is fair to allow him further time to do so. I order Mr. Manship to advise of any disposition costs he claims concerning his corporate assets, along with supporting evidence, on or before January 31, 2020; and

3. Even if Ms. Manship may be entitled to a further equalization payment that exceeds Mr. Manship’s share of the proceeds from the sale of the matrimonial home, there is a potential issue as to whether Mr. Manship should be allowed to satisfy the equalization payment using other assets.

31Mr. Manship sought that a portion of his share of the sale proceeds, being $10,000 or $20,000, be paid out to him on the sale of the home. I do not find a basis to do so. After the payment to Ms. Manship of her one-half of the net sale proceeds, the remaining proceeds shall remain in trust pending further order or agreement of the parties.

Issue #4: Should an order be made for the return of chattels to Mr. Manship at this time?

32Mr. Manship seeks the immediate return of various chattels that he states remain in the matrimonial home. Ms. Manship disputes several items on Mr. Manship’s list. Ms. Manship also takes the position that Mr. Manship has already moved several significant items of value from the home and has refused to provide a list of the items he has taken.

33I am not prepared to deal with the disposition of chattels at this time. It appears that a significant source of disagreement between the parties stems from how items are described in their respective lists, and how these items compare with items which may have already been being removed by a party or otherwise disposed of.

34I urge the parties to attempt to resolve the issue of household contents cost-effectively. I order that both parties provide the other with a complete list, with supporting documents, for all chattels that they claim were in the home and which they state the other person received or removed, along with their position on how these chattels should be divided and/or valued. Each party shall provide their list to the other on or before January 31, 2020. Each party shall then respond to the other’s list, within two weeks, setting out which items they agree upon and, for any items to which they do not agree, their reasons, with any supporting documents, for their disagreement;

Issue #5: Should an order be made requiring Mr. Manship to provide the disclosure requested by Ms. Manship?

35Ms. Manship seeks further disclosure from Mr. Manship. Mr. Manship advised at the motion that he consents to all of the disclosure requests except for bank statements from his corporation.

36I find that there is a semblance of relevancy warranting the production of the bank statements from Mr. Manship’s corporation. There is an evidentiary basis before me that Mr. Manship receives some personal benefits from expenses paid by his corporation. These expenses include, for example, his cell phone. There are also some questions regarding corporate financial transactions that are relevant to the valuation of his corporation, including a debt that appears in Mr. Manship’s business valuation. Mr. Manship has also not argued, nor satisfied me that such disclosure would be unduly onerous.

Issue #6: Should leave be granted to permit Ms. Manship to amend her Answer to include a trust claim?

37Ms. Manship sought leave to amend her Answer to seek a trust interest in Mr. Manship’s business. I decline to grant her leave to do so at this time, for the following reasons:

1. Ms. Manship did not seek this relief in her notice of motion, served in advance of the motion. Mr. Manship did not have notice that Ms. Manship was seeking this relief;

2. This relief is premature. It was not clear how Ms. Manship seeks to amend her Answer, or if she will even do so. Her request for leave to amend her Answer appears to be in response to Mr. Manship’s pleadings that appear to assert an interest in Ms. Manship’s business, developed after separation. But at the motion, Mr. Manship’s counsel confirmed that he was not asserting a trust claim on Ms. Manship’s business. His position is that he wishes to know where the money came from that Ms. Manship used to start her business after separation, on the basis that this may form an asset she had an interest in at the date of separation, which should be included in the equalization calculation; and

3. There is insufficient evidence before me to deal with the issue of prejudice and costs if Ms. Manship is granted leave to amend her Answer at this point.

Disposition

38For the above reasons, I grant the following orders:

1. The parties shall have interim joint custody of R.;

2. Ms. LeBlanc shall immediately cease providing counselling to R. unless otherwise agreed by both parties;

3. The parties shall immediately retain a new counsellor for R., to be agreed upon by both parties. If the parties are not able to agree on a new counsellor for the child, counsel may provide submissions to me, and I will determine the issue. In this event, each party shall propose three possible counsellors, with point form reasons of no more than two pages in length in support of their choice of the counsellor;

4. Evidence of the child’s views and preferences shall be put before the Court through a Voice of the Child Report. Ms. Valerie Morinville shall provide this report if she is agreeable to doing so. The process should include Ms. Morinville meeting with the child on at least two occasions, speaking to the child’s counsellor(s) and other third parties that the report writer deems appropriate, meeting with the parties to share the views and preferences of the child, and providing a report to the parties and to be filed with the court. The parties shall share the cost of this report equally;

5. If the parties agree, the above process may expand to include Ms. Morinville having further sessions with the child, and either one or more of the parents, to assist the parents in responding to the needs of the child and the child’s “voice,” including concerning the parenting schedule, the parent's respective partners, and other parenting matters. If the parties do not agree to this expansion, either party may seek a further order from the court regarding whether such counselling should occur, and how the costs of such should be shared;

6. If Ms. Morinville is not available to provide the above services, or if the parties are not able to agree on expanding these services as provided above, counsel may provide brief submissions to me, including any alternate proposed service provider, and I will determine the issue;

7. Commencing December 1, 2019, and continuing on the first day of each subsequent month until further court order or agreement of the parties, Mr. Manship shall pay Ms. Manship interim child support for R. in the amount of $865 per month (based on his annual income of $94,238), and Ms. Manship shall pay interim child support to Mr. Manship for R. in the amount of $315 per month (based on her annual income of $36,000), for a net set-off payment by Mr. Manship to Ms. Manship of $550 per month;

8. Commencing December 1, 2019, and continuing on the first day of each subsequent month until further court order or agreement of the parties, Mr. Manship shall pay interim spousal support to Ms. Manship in the amount of $1,377 per month;

9. On an interim basis, commencing December 1, 2019, and continuing on the first day of each subsequent month until a further court order or agreement of the parties, the parties shall share equally any s.7 expenses incurred for the benefit of the child. This sharing of s.7 expenses is based on their net disposable incomes being approximately equal, assuming the incomes stated above and given the interim child and spousal support payments;

10. The interim child and spousal support orders herein are without prejudice to the issue of Mr. Manship’s income, and specifically the use of his corporate pre-tax income, as well as the issues of retroactive child and spousal support, including adjustments and credit for payments made towards expenses of the matrimonial home, and the parties’ respective obligations to contribute to s.7 expenses;

11. Commencing December 1, 2019, each party shall pay 50% of the costs the matrimonial home until it is sold, including the monthly mortgage payments, property insurance, property taxes, and utility expenses that are needed to maintain the capital value of the property;

12. Upon the sale of the matrimonial home, one-half of the net proceeds (after payment of the mortgage, other encumbrances, real estate fees and legal fees related to the sale) shall be paid to Ms. Manship. The remaining proceeds shall remain in trust pending further order or agreement of the parties;

13. Mr. Manship shall advise of any disposition costs he claims concerning his corporate assets, along with supporting evidence, on or before January 31, 2020;

14. Each party shall provide the other with a complete list, with supporting documents, for all chattels that each claim were in the home and which that party states the other person received or removed, along with their position on how these chattels should be divided and/or valued. Each party shall provide their list to the other on or before January 31, 2020. Each party shall then respond to the other’s list, within two weeks, setting out which items they agree upon and, for any items to which they do not agree, their reasons, with any supporting documents, for their disagreement;

15. The parties shall provide the following disclosure on or before January 31, 2020:

a. Mr. Manship shall provide disclosure from R & R Auto for the period from November 1, 2016, to present:

(i) Income tax returns;

(ii) Notices of assessment;

(iii) Financial statements that include a balance sheet, statement of income, statement of retained earnings, statement of cash flow, notes and schedules of costs of sales;

(iv) Copies of corporate bank statements for all bank accounts, credit cards, loans, lines of credit and investments;

(v) All supporting documents provided to Cynthia Runolfson for her valuation of the corporation;

b. Both parties shall provide copies of their personal bank statements for their bank accounts, RRSP accounts, credit cards, loans, and lines of credit; and

16. Ms. Manship’s request for leave to amend her Answer is denied at this time, without prejudice to her seeking leave in the future upon providing her proposed Amended Answer.

Costs

39If the parties are unable to agree on the costs of this motion, Ms. Manship may file submissions concerning costs on or before January 15, 2020. Mr. Manship may file submissions concerning costs on or before January 30, 2020. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.