OSHAWA COURT FILE NO.: FC-19-1372
DATE: 20200914
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Diane Gibson
Applicant
– and –
John Charles Gibson
Respondent
Patricia Swerhone, for the Applicant
Joshua J. Gleiberman, for the Respondent
HEARD: September 10, 2020
REASONS FOR DECISION
CHARNEY J.:
Introduction
[1] The applicant brings this motion for an interim distribution of the proceeds of sale of the matrimonial home. The house sale closed on August 27, 2020, and the net proceeds of sale - $567,554 - are being held in trust by the real estate lawyer.
[2] The applicant also seeks the following additional relief:
(a) The applicant’s request for information dated July 7, 2020 will be completed in its entirety within 5 days.
(b) An order for the disclosure of the address of her son, Thomas Gibson, d.o.b. May 20, 2003.
(c) An order severing the divorce from the corollary relief and that the divorce proceed on an uncontested basis.
[3] The respondent brought a cross-motion seeking the following relief:
(a) An order that the applicant reattend for questioning and answer all refusals.
(b) An order that the applicant pay the respondent’s costs for such questioning including the costs of transcripts and the respondent’s lawyer’s fees at the hourly rate of $350.00 per hour.
(c) An order that the applicant pay child support in the amount of $795.00 per month based on an annual income of $85,000 per year.
(d) An order that the proceeds of the sale of the matrimonial home be held in trust as security for the applicant’s obligation to pay child support.
(e) An order adjourning the applicant’s motion and barring the applicant from bringing further motions until she has complied with this order.
[4] The day before the hearing date of this motion, the respondent discovered that none of his supporting material (Notice of Motion and Affidavits) had been accepted for filing by the court office because they did not comply with the practice directions regarding the filing of court documents. In particular, they exceeded the page limit because the respondent wanted to file the 150 page transcript of the questioning of the applicant.
[5] Since the court did not have his motion material, the respondent requested an adjournment on the grounds that it would be unfair to hear the applicant’s motion without also being able to hear the respondent’s motion and consider the respondent’s supporting material. The respondent took the position that the issues raised in the motion and cross-motion were intertwined, and could not be addressed separately.
[6] After hearing brief argument on the adjournment issue, I advised the parties that the court would hear the applicant’s motion on the merits, and after hearing all submissions from both sides, I would decide which, if any, parts of the motion could be decided, or which, if any, parts of the motion would be adjourned pending the respondent’s cross-motion.
Facts
[7] The parties were married September 11, 1993 and separated on December 21, 2018. They have three children, ages 23, 21, and 17. The two older children are no longer dependants, the younger child is going into grade 12. The younger child resides with the respondent.
[8] The parties were joint owners of the matrimonial home. Pursuant to a consent order made by Hughes J. at a settlement conference on March 6, 2020, the house was listed for sale on May 25, 2020 and sold on May 29, 2020 for $870,000. The sale closed on August 27, 2020, and the net proceeds of sale - $567,554 - are held in trust by the parties’ real estate lawyer.
[9] The parties have exchanged Net Family Property Statements and agree that the respondent will owe the applicant money for the equalization of net family property, although there is a slight disagreement on the amount due. The applicant claims that the respondent will owe her an equalization payment of $95,544, the respondent claims that his equalization payment will only be $84,378.
Analysis
Interim Distribution of Net Proceeds of Sale
[10] The applicant requests that $400,000 from the net proceeds of sale of the matrimonial home be released, to be divided equally between the parties. This would leave approximately $167,554 in trust to cover any outstanding equalization or any post-separation reconciliation, including retroactive child support.
[11] The applicant argues that she needs the funds in order to pay her expenses, which include rent, legal expenses to pursue her claims under the Family Law Act, R.S.O. 1990, c. F.3 (FLA), and $794 per month child support for the youngest son. She has a claim for spousal support, but no spousal support is being paid by the respondent.
[12] The respondent has refused to consent to the release of any funds, and takes the position that they should be held in trust pending the resolution of all issues at trial. The respondent opposes the interim distribution for two reasons.
[13] Firstly, the respondent argues, the applicant should not be permitted to use her own money to retain a lawyer because she is too litigious. Counsel for the respondent explained that he wanted to file the entire 150 page transcript of the questioning of the applicant so that the court could see for itself how “combative” she is. She should not be given her share of the proceeds of sale if she is going to use the funds to retain a lawyer, he argues, because she will waste it on vexatious litigation that will increase the legal costs to both parties. For her own good she should be starved of resources so that she will abandon her claims and accept the position of the respondent or be forced to pursue her claims without legal representation.
[14] Having heard that argument, I will only say that if either party is being “combative” and wasting their resources on vexatious litigation, it is not the applicant.
[15] The applicant is entitled to use her money as she sees fit, including retaining counsel to pursue a claim for spousal support after a 25-year marriage. Everyone is entitled to seek the advice of a lawyer: Wood v. Schaeffer, 2013 SCC 71, at para. 104; Justice for Children and Youth v. J.G., 2020 ONSC 4716 at paras. 42 and 73. Contrary to the respondent’s assertion, legal representation will generally reduce vexatious litigation, since the lawyer will provide their client with a realistic assessment of the merits of their case, their legal rights and duties and their obligation to comply with court orders.
[16] The respondent also takes the position that his cross-motion for an order that the proceeds of sale of the matrimonial home be held in trust as security for the applicant’s obligation to pay child support must be heard together with the applicant’s motion for an order for interim distribution of the proceeds.
[17] I would not give affect to this argument. As indicated, the respondent’s cross-motion is not before me, but even if he could succeed on this motion for security (on which I offer no opinion) there remain sufficient funds in the trust account to cover any security that might be ordered.
[18] The youngest son is now 17 years of age, and is going into grade 12. Assuming that he will also enrol full time in a 3 year post-secondary education program, the respondent’s child support obligations are unlikely to extend beyond 4 more years. At her current income, the applicant’s child support payments would be $795 per month, and the applicant’s future child support obligations are unlikely to exceed a total of $40,000.
[19] The applicant is seeking the distribution of $400,000 from the funds in trust, which would still leave $167,554 remaining in the trust fund. In addition, by his own admission, the respondent owes the applicant at least $84,000 as an NFP equalization payment. There is clearly more than enough in trust, or that can be set off against what the respondent will owe to the applicant, to cover any security that might be ordered against the applicant.
[20] In my view, the conclusion of Finlayson J.A. in Silva v. Silva (C.A.), 1990 CanLII 6718, 1 OR (3d) 436 (ON CA), is directly applicable to this case:
I can think of no reason why the husband should hold the house hostage until his claim has been adjudicated. The wife needs the money now and I do not think that his concern about collecting a subsequent award, in the circumstances of the case, amounts to prejudice within the meaning of the case law.
[21] One final observation. While the respondent presented two arguments in court, correspondence between counsel strongly suggests that the respondent’s position was nothing more than an attempt to retaliate against the applicant for seeking the sale of the matrimonial home.
[22] Following the sale of the matrimonial home, counsel for the applicant wrote to counsel for the respondent to inquire whether the respondent would agree to a distribution of the net proceeds of sale. Counsel for the respondent responded on July 3, 2020:
With respect to the funds, I had made it abundantly clear to you in several correspondence dating back as far as November 2019 that if your client were to force a sale of the home, which in essence she has, then all proceeds of the sale will be held in trust…
[23] This response was petty and vindictive. It can also be described as “combative”.
Request for Information
[24] The applicant alleges that she has made several requests for information that have gone unanswered by the respondent, the latest being a Request for Information dated July 7, 2020. This request sets out the following requests for information:
(a) Substantiating documentation of all values asserted in the respondent’s Financial Statement, including two savings accounts and a mutual fund.
(b) Full particulars and relevant tracing of specified excluded property in the Financial Statement.
(c) Verification of income for support purposes from all sources of income and benefits including employment, self-employment and rental income and any employment benefits from WSIB, STD/LTD, EI, CERB or “private benefits”.
(d) All records of employment issued from the date of separation to the present.
(e) 2019 Tax documentation including T1 General and Notice of Assessment
(f) Verification of all rental income for 2019 and 2020 for the 22 Shale Drive, Ajax.
[25] The applicant takes the position that the respondent has not provided these documents or information, or his answers and documents are incomplete.
[26] The respondent argues that he has provided all the documents and information that he has, but many of the documents and information requested do not exist, and he has advised the applicant of this. He also argues that some of the information requested is nothing more than a fishing expedition and not relevant to issues in this case.
[27] I agree with the respondent that it would be unfair and inefficient to consider this aspect of the applicant’s motion without the respondent’s affidavit and supporting material. Accordingly, I will adjourn this portion of the applicant’s motion.
[28] I would add that it would be helpful if the applicant could list with some specificity the documents or information she alleges are missing, so that the respondent could list with equal specificity what his position is with regard to each document or information requested.
[29] I would also add that the applicant was unable to articulate why she requires all the respondent’s employment records from the date of separation (category (d) above), or what those records might include. The applicant is entitled to verification of employment and other income from all sources (category (c) above), but it is unclear to me what additional documents, if any, are being requested in category (d), or how they might be relevant to the issues in this case.
Disclosure of the youngest son’s address
[30] As indicated above, the youngest son, Thomas, lives with the respondent. They vacated the matrimonial home on August 27, 2020, and the applicant does not know where they are residing. The applicant alleges that when she asked her youngest son for his address, he informed her that his father instructed him that he is not permitted to tell his mother what his address is. She argues that, as his mother, she is entitled to know where he lives, and the respondent has no right to “instruct” Thomas not to tell his mother his address.
[31] The respondent denies ever instructing Thomas that he is not permitted to tell his mother his address. He argues that Thomas is now 17 years of age, and pursuant to s. 65 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, (CLRA) Thomas has the right to live where he wants and may refuse to tell his mother where he lives.
[32] Section 65 of the CLRA provides:
Nothing in this Part abrogates the right of a child of sixteen or more years of age to withdraw from parental control.
[33] This provision codifies the common law right of a child over 16 years of age to withdraw from parental control: R.G. v. K.G., 2017 ONCA 108 at paras. 43 – 44:
Historically, this meant that the child had the right to withdraw from parental control and the court would not force the child to return to a custodial parent, but would allow the child to live where he or she chose.
[34] Thomas has not, however, withdrawn from parental control. He continues to live with his father.
[35] The Court retains authority over a child even after age sixteen. Section 18(2) of the CLRA provides that its custody and access provisions apply to a child while the child is a minor, that is under the age of eighteen, so long as the child has not withdrawn from parental control: S.G.B. v. S.J.L., 2010 ONSC 3717 at para. 25; B. (N.M.) v. K. (P.P.), 2019 ONSC 726, at para. 239.
[36] Since Thomas has not withdrawn from parental control, s. 20(5) of the CLRA applies. That provision provides that an access parent has “the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.”
[37] I agree with the applicant that, until such time as Thomas is an adult or withdraws from parental control, she is entitled to know his address as an incident of “information as to the health, education and welfare of the child”. I have been provided with no reason why the applicant should not be provided with this information.
An order severing the divorce from the corollary relief
[38] The applicant also requests an order severing the divorce from the corollary relief and that the divorce proceed on an uncontested basis. She notes that both her Application dated September 2019, and the respondent’s answer dated October 2019, requested such an order.
[39] The respondent takes the position that the court should not sever the divorce from the corollary relief because there is not yet a court order or formal agreement that the applicant will pay child support. While he acknowledges that the applicant has informally agreed to pay child support of $795.00 per month, he alleges that she has not been consistent with these payments. He relies on s. 11(1)(b) of the Divorce Act, which provides:
11 (1) In a divorce proceeding, it is the duty of the court
(b) to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made;
[40] This matter is scheduled to return for a Settlement Conference on October 8, 2020. Now that the applicant has been given an interim distribution of the proceeds of sale of the matrimonial home, I am hopeful that formal arrangements for child support can be addressed, and the applicant can raise the request to sever the divorce from the corollary relief at that conference.
Conclusion:
[41] This Court Orders:
a) The net proceeds of the sale of the matrimonial home, namely 22 Shale Drive, Ajax, Ontario, shall be divided such that each of the applicant, Diane Gibson, and the respondent, John Charles Gibson, shall receive an immediate payment of $200,000.00 from the balance of $567,554.67 held in trust by Mark Armstrong of McGibbon, Bastedo, Armstrong and Armstrong, Barristers and Solicitors. Mark Armstrong is directed to make this payment.
b) The remaining $167,544.67 held in trust will remain in trust until the agreement of the parties or further order of the court.
c) The applicant’s motion for an order that her Request for Information dated July 7, 2020 be completed is adjourned to a date to be set by the parties through the Trial Coordinator’s office or, in the discretion of the judge holding the next Settlement Conference scheduled for October 8, 2020, may be considered at that conference.
d) The respondent, John Gibson, shall immediately provide the applicant’s counsel with the residential address of the child, Thomas Gibson, d.o.b. May 20, 2003.
e) The applicant’s motion for an order severing the divorce from the corollary relief is adjourned to the Settlement Conference scheduled for October 8, 2020.
f) The respondent’s motions that are not moot by virtue of these orders (questioning and child support) are adjourned to a date to be set by the parties through the Trial Coordinator’s office or, in the discretion of the judge holding the next Settlement Conference scheduled for October 8, 2020, may be considered at that conference.
[42] If the parties are not able to agree on costs, the applicant may file costs submission of no more than 3 pages, plus costs outline and any offers to settle, within 20 days of the release of this decision, and the respondent may file responding submissions on the same terms within a further 15 days.
Justice R.E. Charney
Released: September 14, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Diane Gibson
Applicant
– and –
John Charles Gibson
Respondent
REASONS FOR DECISION
Justice R.E. Charney
Released: September 14, 2020