Court File and Parties

COURT FILE NO.: FC-19-232 DATE: 2020/10/27

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Lindsay Coleman Applicant

– and –

Jeff Irving Respondent

COUNSEL: Deborah Bennett for the Applicant Self-Represented for the Respondent

HEARD: October 7, 2020

Endorsement

shelston, j.

Overview

[1] The applicant (“mother”) and the respondent (“father”) married each other on October 13, 2012. There are two children of the marriage, namely, Easton, five years of age and Cole, two years of age. The parties separated on August 13, 2018.

[2] The mother seeks the following relief:

a) an order striking from the father’s unsworn affidavit dated June 5, 2020, any reference to settlement discussions;

b) an order that the mother is granted leave to amend her application;

c) an order that the father be found in contempt of court of the order of Justice Parfett dated August 16, 2019;

d) an order that the father should provide the financial disclosure as required by the Family Law Rules within two weeks of this order;

e) an order that the real estate lawyer holding the funds in trust from the sale of the matrimonial home, namely 27 Carlisle St., Aston, Ontario (in the amount of $78,000) shall release the amount of $60,000 (or other amount as deemed appropriate by the Court) to the mother within two days of this order, as an advance on equalization payment owing to her from the father;

f) an order that the father shall pay to the mother interim spousal support in the amount of $1370 (or other amount as deemed appropriate by the court) per month, commencing immediately, on the first day of every month, with the issue of arrears to remain outstanding;

g) an order that the father shall pay to the mother interim child support in the amount of $1418, with $1171 to table child support, $69 to daycare fees (special and extraordinary expenses as per Divorcemate print out) and the remainder ($178) towards child support arrears;

h) an order that the child Easton be enrolled at the “before school” and “after school” programs at the Jackson Trails Early Learning Center during the school year and in the Jackson Trails Daycare program throughout the summer months, until further order of this Honourable Court or an agreement in writing, signed by the parties;

i) an order that the child, Cole, shall be enrolled in the daycare program at the Jackson Trails Early Learning Center until he is enrolled in school and, when he attends school, he shall be enrolled in the same programs as his older brother as per paragraph above;

j) an order that the current residency agreement of week on-week off (Monday to Monday) shall continue with the addition that the parent who does not have the child in his/her care, shall have two video calls per week with the children;

k) in the alternative, an order that the mother be granted sole decision-making in relation to school and daycare related matters;

l) an order that the father shall pay costs of this motion on a full indemnity basis; and

m) such further and other relief as this Honourable Court deems just.

Litigation History

[3] Proceedings were commenced on February 8, 2019.

Case Conference

[4] The parties attended a case conference on August 16, 2019, where with the consent of the parties, Justice Parfett granted the following order:

a) appointed the Office of the Children’s Lawyer;

b) ordered the disclosure of the Children’s Aid Society of Ottawa and the Ottawa Police Services file with respect to both parents and the children;

c) ordered the Ministry of Community and Social Services to provide disclosure to counsel for the applicant in relation to the care provided by a specific daycare provider;

d) ordered the father to pay to the mother child support of $1418 per month commencing September 1, 2019;

e) ordered the father to pay 75% of special and extraordinary expenses on a without prejudice basis; and

f) reserved the costs in the cause and fixed the amount at $1000.

Mother’s Urgent Motion

[5] On April 22, 2020, the mother brought a motion seeking urgent relief, seeking, inter alia, the following:

a) a declaration that the financial issues faced by the mother be deemed to be a situation of urgency and hardship;

b) an order that all of the funds from the sale of the matrimonial home be released to the mother as an advance on equalization payment;

c) an order that the father be found in contempt of the order of Justice Parfett dated August 16, 2019;

d) an order that the father pay to the mother the funds which the court ordered him to pay directly to the daycare;

e) an order that the father pay to the mother interim spousal support in the amount of $1370 per month commencing May 1, 2020; and

f) an order that the father pay to the mother costs the amount of $5,000 for the motion.

[6] On June 8, 2020, Master Kaufman found that the mother’s financial situation was not urgent. Further, he refused to order an advance of any amount owing on equalization payment because he was unable to determine based on the materials before him that there was an equalization payment that exceeded $5,564.48. The Master ordered that the father pay his share of the daycare fees for the period of August 2019 to February 2020 -15% within the next 15 days.

Consent Matters

[7] During the motion, the parties consented to the following relief:

a) a temporary order that the parties shall have the shared residency of the children, Easton and Cole, on a week on-week off (Monday to Monday) basis;

b) a temporary order that the parent who does not have the children in his/her care, shall have two video calls per week with the children;

c) a temporary order that the children be enrolled at the “before school” and “after school” programs at the Jackson Trails Early Learning Center. The parties agreed to make a joint decision regarding the continuing enrollment at Jackson Trails during the summer months when they make the decision on enrolling in a summer camp;

d) an order that the mother shall receive the sum of $5,575 representing the agreed-upon amount filed by the father in his unsworn net family property statement. This sum is to be withdrawn from the father’s share of the net proceeds of sale to be accounted for by the trial judge; and

e) an order that the mother receive the sum of $4,940, representing the father’s share of the daycare expenses, to be withdrawn from the father’s share of the net proceeds of sale of the matrimonial home, also to be accounted for by the trial judge.

Withdrawn claim for relief

[8] The mother sought to have struck from the father’s unsworn affidavit dated June 5, 2020, settlement discussions that are allegedly included in the affidavit. At the motion, she did not pursue this relief.

[9] The mother sought an order that the father provide financial disclosure as required by the Family Law Rules. At the motion, the mother did not pursue this relief.

[10] The mother sought an order that the father was in contempt of a court order for failing to pay 75% of the daycare expense directly to the daycare provider. As a result of the consent that the father’s share of the daycare expenses be paid out of his portion of the monies in trust, the mother withdrew this claim for relief.

Disputed Issues

[11] The parties do not agree on the following issues:

a) the quantum of child support;

b) the mother’s request for temporary spousal support;

c) the mother’s request for an advance on the equalization payment from the proceeds of sale of the matrimonial home; and

d) costs.

Factual Background

[12] The mother is 33 years of age and works as a teller with the Royal Bank of Canada. The mother has been working close to 40 hours per week but in April 2020, her hours were involuntary reduced by her employer to 20 hours per week. In July 2020, she returned to full time hours. She anticipates her annual income in 2020 be approximately $27,000. Her previous income stream is as follows:

a) 2018 - income $25,296;

b) 2019 - income $35,539.

[13] The father is 35 years of age and works as a paramedic. The father anticipates that his 2020 income will be around his 2019 income, if not slightly lower as a result of reduced overtime. His previous income stream is as follows:

a) 2017 - income of $109,223;

b) 2018 - income of $65,660.36; and

c) 2019 - income of $108,977.56

Table Child Support and Spousal Support

[14] Since December 2019, the father has been paying $1418 per month as child support. The mother submits that the child support should remain at that amount and if there is an overpayment, the overpayment can be used as a credit to any arrears of support. The father opposes this position and requests that the support be set in the amount of $1171 per month.

[15] The father concedes that the mother is entitled to spousal support but seeks to input an income to her of $45,000 per year. The mother submits that she is working full time at the Royal Bank of Canada and that because of the reduction of her hours in 2020, she anticipates that she will earn $27,000.

[16] The father agrees that he will earn $108,977 in 2020, being the same as 2019.

[17] This is a motion for temporary support. The trial judge may readjust the support at trial. I will not input an income to the mother because she is currently working at the bank on a full-time basis. I find that based on the involuntary reduction in the mother’s hours from April through June 2020, she will not earn the same as 2019. I find that the sum of $30,000 is a fair and reasonable income to attribute to the mother in 2020 to determine the appropriate amount of temporary spousal support.

[18] After the motion, I received two Divorcemate calculations from counsel for the mother approved by the father, using two different incomes for the mother, being $30,000 or $35,000 per year. I have calculated the table child support and spousal support based on the Divorcemate calculation with the mother’s income of $30,000 a year.

[19] Based on the children being in a shared parenting arrangement, the father earning $108,977, the mother earning $30,000, the father paying child support of $1,581.00, the mother paying $540.00 per month, the net set off amount payable by the father to the mother is $1041 per month. I reject the mother’s submission that the support should stay at $1,418 per month. The child support should be based on the most current income. I order the father to pay to the mother $1,041 per month commencing September 1, 2020.

[20] With respect to the daycare expenses, based on the facts set out in paragraph 19, the father should pay 68% and the mother 32% of the daycare costs effective September 1, 2020.

[21] On the issue of spousal support and based on the facts as set out in paragraph 19 and 20 with the father paying child support of $1,041 per month and 68 %of the daycare costs, the range of spousal support is as follows:

a) $805, leaving the father with 52% and the mother with 48% of the net disposable income;

b) $1,172 leaving the father with 50% and the mother with 50% of the net disposable income;

c) $1,593 leaving the father with 47% and the mother with 53% of the net disposable income;

[22] I find it is fair and reasonable that where the children are in a shared parenting arrangement, both parents should have approximately the same net disposable income. Consequently, I order the father to pay to the mother, monthly spousal support of $1,172.00 per month, commencing September 1, 2020. This will result in both parents having similar net disposable incomes.

Release of the Funds in Trust

[23] The matrimonial home sold in January 2019 and the net funds of $78,046.02 are currently being held by Michael Abrams of the law firm of Kelly Santini.

[24] The mother seeks the payment of $60,000 or an alternate sum from the monies being held in trust as an advance on the equalization payment. The mother argues that as one of the joint owners of the matrimonial home, she has an entitlement to half of the net proceeds of sale which amounts to $39,000, plus according to her calculations, the father will owe her, at least, an equalization payment of $21,000 for a total of $60,000.

[25] The mother indicates that she has been accumulating debt as a result of the delay in receiving table child support from the father, the mother assuming all daycare expenses up until January 2020, the delay in the father paying his arrears of daycare from August 2019 to January 2020 and the reduction in income this summer resulting in her having approximately $47,000 of debt.

[26] Michael Coleman, the maternal grandfather of the children, provided an affidavit with supporting documentation where he indicates that he has lent his daughter $21,530 over the past two years as well as bought her $2,059.61 of parts for her car. He indicates that the money is not a gift but that it is interest-free and it is intended to be paid back when she receives the financial settlement from her husband.

[27] The father has filed an unsworn net family property statement which indicates that he owes the mother $5,575.48 as an equalization payment. This calculation is based on each party receiving 50% of the net proceeds of sale of the home. However, the net family property statement filed by the father does not include a valuation of his OMERS pension.

[28] Upon a review of the factual history regarding the valuation of the father’s pension, both parties blame each other for the delay. However, the pension is owned by the father and it is his responsibility to obtain the valuation. The father should have received his OMERS Family Law value by now.

[29] The mother challenges the valuation of certain items contained in the father’s unsworn net family property statement including a lawn tractor, a registered educational savings plan and the value of the father’s car on the date of marriage. The mother has retained an actuary, Mr. Martel, to provide an estimate of the father’s pension based on the information that she has available. Mr. Martel has estimated Family Law value to be $130,000.

[30] The mother submits that based on the estimated value of the father’s pension at $130,000 and deducting the value of a lawn tractor, the registered educational savings plan and the value of the father’s car on the date of marriage, the equalization payment owed by the father to her is $67,058.39. She is requesting that the sum of $60,000 be paid to her which would leave approximately $18,000 in trust to cover any claims, including a dispute regarding repairs made to the matrimonial home before sale.

[31] The father submits that the mother should share in the cost of repairs that were needed for the matrimonial home before its sale, the amount of which being $16,996.02. In addition to that amount, the father is claiming $11,300 in postseparation expenses that he paid with respect to the matrimonial home until its sale.

[32] The father agrees that the mother is to receive $5,575.48 from his share of the net proceeds of sale of the matrimonial home as a credit to any equalization payment owed by him. The mother does not accept that calculation.

[33] In Zagdansjki v Zagdanski 2001 27981 (ON SC), 55 O.R. (3d) 6, Lane, J. found that an advance against an equalization payment is within the jurisdiction of the court and may be made in appropriate cases. In Zagdanski, the court found that there was no realistic chance that an advance of half of the anticipated minimum equalization payment would exceed the ultimate payment due from the husband to the wife. In that case, the husband had been dilatory in providing disclosure for over a decade and the wife had a reasonable need for an advance of the funds to enable her to carry on the litigation against the husband. Specifically, the court stated in paragraphs 37, 38 and 39 the following factors for a court to consider in exercising its jurisdiction as follows:

37. In my view, these authorities are a complete answer to the submission that this court cannot make an order for an advance payment of equalization when justice requires it. The cases cited earlier show that such a power has been felt to be necessary to do justice in many cases decided in our court. Nothing in the Family Law Act explicitly rules out such orders, and the jurisdiction of a superior court can be divested only by express words and not by "mere implication": R. v. Osborn, 1968 384 (ON CA), [1969] 1 O.R. 152, [1969] 4 C.C.C. 185 (C.A.) at pp. 156-57 O.R., p. 190 C.C.C.

38. The Act creates a right in the spouse with the lesser NFP to a payment and grants the court specific authority by s. 7(1) to "determine any matter respecting the spouses' entitlement". While s. 9(1) does not refer specifically to interim orders, neither does it rule them out. If the authority in s. 7(1) is for any reason (other than a specific statutory limitation) not broad enough, the court has an inherent jurisdiction on which to rely in making the order which justice requires. There is therefore no need to seek authority in Rule 20, which, as noted earlier, is problematic at best.

39. Having determined that there is jurisdiction to award an advance against equalization in a proper case, I turn to the question of whether this is such a case. Such a case will have certain characteristics of which the following seem reasonable, based on the cases cited above and what I hope is common sense:

-- there will be little or no realistic chance that the amount of the contemplated advance will exceed the ultimate equalization amount;

-- there will, therefore, be some considerable degree of certainty about the right to, and likely minimum amount of, an equalization payment;

-- there will be need, not necessarily in the sense of poverty, but a reasonable requirement for funds in advance of the final resolution of the equalization issue, including funds to enable the continued prosecution or defence of the action;

-- there may be other circumstances such that fairness requires some relief for the applicant; frequently, but not necessarily, there will have been delay in the action, deliberate or otherwise, prejudicing the applicant by, for example, running up the cost.

[34] At this point in the litigation, the valuation of the husband’s pension has not been provided. It is a significant asset. This matter is going to be tried in January/February 2021.

[35] Pursuant to section 10.1(3) of the Family Law Act, R.S.O. 1990, c. F.3, as am, the court has the jurisdiction to provide for the immediate transfer of a lump sum of the pension plan to affect an order under section 9 or 10 of the family Law act. Section 10.1(4) of the Family Law Act provides the following:

(4) In determining whether to order the immediate transfer of a lump sum out of the pension plan and in determining the amount to be transferred, the court may consider the following matters and such other matters as the court considers appropriate:

1. The nature of the assets available to each spouse at the time of the hearing.

2. The proportion of a spouse’s net family property that consists of the imputed value, for family law purposes, of his or her interest in the pension plan.

3. The liquidity of the lump sum in the hands of the spouse to whom it would be transferred.

4. Any contingent tax liabilities in respect of the lump sum that would be transferred.

5. The resources available to each spouse to meet his or her needs in retirement and the desirability of maintaining those resources.

[36] I find that the calculation of the net family property equalization payment cannot be calculated because the OMERS pension valuation is not available and there are disputes over the valuation of certain assets. Secondly, even if the OMERS statement was available, it would be inappropriate for a judge on the motion to determine both the equalization calculation and the methodology of payment. These decisions are best left to the trial judge to be able to determine the net family property of each party, the equalization payment, the father’s claim against the mother for her share of the repairs to the matrimonial home and postseparation adjustments and the methodology of the payment of an amount owing.

[37] The father has agreed that the mother shall be entitled to receive $5,575.48 from the father’s share of the net proceeds of sale to be credited towards any equalization payment and the sum of $4,940.63, representing the father’s share of his daycare responsibility from August 2019 to January 2020. These two amounts total $10,516.11.

[38] The mother argues that she is entitled, in any event, to $39,000, representing her half share of the net proceeds of sale as a joint owner. She is prepared to concede on a without prejudice basis that if the father is successful, the mother may owe the father $14,148 to be deducted from her net share of the proceeds of sale representing half of the repairs and carrying costs postseparation. If the sum of $14,148 was retained in trust as security of possible payment by the mother to the father for these two claims, the net result is that the mother would be entitled to the balance of approximately $24,852.

[39] However, there still remains the issue of costs for the litigation including a trial which could easily exceed $25,000. If the father is successful, he is presumptively entitled to costs which would be recoverable against the mother’s net proceeds of sale of the matrimonial home. The same result would be available if the mother is successful.

[40] If this matter goes to trial, a cost award of $25,000 to the successful party is possible and funds must be available for the successful party to be paid those costs. With funds remaining in trust, any cost award could be paid from the proceeds in trust.

[41] Consequently, I am not prepared to release to the mother any of the funds held in trust save and except for the sum of $10,516.11, which the parties have consented to be released to the mother.

Costs

[42] I order the mother to provide her costs submissions, not to exceed three pages, plus a detailed bill of costs no later than November 6, 2020. I order the father to provide his costs submissions, not to exceed three pages, plus a detailed bill of costs no later than November 18, 2020.

Released: October 27, 2020

COURT FILE NO.: FC-19-232 DATE: 2020/10/27

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Lindsay Coleman Applicant

– and –

Jeff Irving Respondent

ENDORSEMENT

Shelston J.

Released: October 27, 2020