Court File and Parties

COURT FILE NO.: FS-20-16339 DATE: 20210303 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: VICTORIA BACH Applicant – and – ANDRE BACH Respondent

Counsel: Amanda Taerk, for the Applicant No one appearing for the Respondent

HEARD: March 1, 2021

M. D. FAIETA j.

Reasons for Decision

Introduction

[1] The parties separated on January 1, 2019 and this Application was commenced on April 3, 2020.

[2] By Order of Justice Kelly dated December 21, 2020 and the Order of Justice Hood dated January 4, 2021, an uncontested trial was heard on March 1, 2021. The aforementioned Order of Justice Kelly granted the Applicant leave to amend her Application.

[3] An Amended Application was filed with the Court on March 1, 2021. The Applicant now also seeks an order to vest the jointly owned matrimonial home in her sole ownership.

[4] The following relief is claimed in the Amended Application:

(a) A divorce;

(b) An Order the Applicant shall have interim and final sole custody of the children namely Vitali Andre Bach born May 28, 2014 and Roman Andre Bach born February 11, 2017;

(c) An Order that the Respondent shall have access to the children namely Vitali Andre Bach born May 28, 2014 and Roman Andre Bach born February 11, 2017 on a fully supervised basis until agreement between the parties, or further order of the court.

(d) An Order that the Respondent shall pay child support to the Applicant for the benefit of the two children namely Vitali Andre Bach born May 28, 2014 and Roman Andre Bach born February 11, 2017 in accordance with the Child Support Guidelines and on the basis of the Respondent’s income once it has been disclosed, retroactive to January 1, 2019.

(e) An Order that the Respondent shall not be permitted to remove the children from this jurisdiction without the written consent of the Applicant or order of this court;

(f) An Order that the Applicant shall be permitted to travel with the children outside of Ontario without the consent of the Respondent but on notice to him, including a detailed travel itinerary and contact telephone number;

(g) An Order that the requirement that the Respondent shall sign the children’s government documents and renewal of same shall be dispensed with;

(h) An Order for an unequal division of the parties’ net family property in favour of the Applicant;

(i) An Order vesting title to the matrimonial home located at 6 Harbourview Crescent Etobicoke, Ontario M8V 4A7 in the Applicant sole name;

(j) An Order permitting the Applicant to remortgage the home located at 6 Harbourview Crescent Etobicoke, Ontario M8V 4A7 and transfer the mortgage in her name alone;

(k) An Order that the Applicant shall repay the following debts: a) Scotiabank Line of Credit Account # ending in 019; and, b) RBC Line of Credit Account # ending in 42-001; and

(l) Costs of this proceeding on a full recovery basis.

[5] The Applicant did not file any affidavit evidence. She chose to testify orally. There were no other witnesses.

Background

[6] The Applicant is 36 years old. She has a university degree in advertising. The Applicant earns $80,000 per year as a graphics designer. The Respondent is 39 years old. The Applicant states that the Respondent has always worked as a marketing manager. There is no evidence that the Respondent is currently employed.

[7] The parties met in 2001. The parties were married on August 8, 2011 in Ontario. They have two children: Vitali, age 6 ½ and Roman, age 4. Vitali attends elementary school and Roman attends a daycare. Both Children live with the Applicant in the matrimonial home.

[8] The Respondent has a history of mental illness. In 2006, the Respondent lost his job and was hospitalized for one or two weeks. He suffered from paranoid thoughts. Upon being released from hospital, his condition returned to normal. In the Fall of 2016, the Respondent started an Executive MBA at the Rotman School of Business. He began to exhibit paranoid thoughts. He was hospitalized for one week. In 2018 the Respondent completed his MBA program although he had started using cocaine to cope with the pressure of his MBA program and responsibilities as a marketing manager. After he completed his MBA, the Respondent went to India to “get clean”. Upon returning he purchased a Porsche automobile and “destroyed it” following several collisions within a few months. In the summer of 2018, the parties went to New York City with some friends to celebrate a birthday. The Respondent drank heavily at a house party. At some point, the Respondent grabbed the Applicant by her throat and then chased her with a knife. He found her in a bedroom and told her that he was going to kill her. He then attempted to cut himself. The Respondent left the house and did not return until the following day before their return to Toronto. The Respondent stayed with his parents for a few months and saw the children under either his parents’ supervision or the Applicant’s supervision.

[9] In December 2018, the Applicant, the children and her mother went on a vacation to Cuba. It appears that by this time the Respondent had resumed living with the Applicant. The Respondent called her several times and told her that she was cheating on him. The Applicant asked the Respondent’s parents to check on him. The Respondent was hospitalized for about one week. When the Applicant returned home from Cuba, she found the Respondent in their home with a person unknown to her and a quantity of drugs on the table. The Applicant called the police. The police noted that the Respondent was a joint owner of the house and that the Respondent was not subject to a restraining order. Nevertheless, the police persuaded the Respondent to allow them to escort him to his parents’ home. The Respondent then moved into his parents’ home. The parties have lived separate and apart since January 1, 2019.

[10] The Respondent was hired by Rogers Communications Inc in November 2019 but by February 2020 was no longer working for that employer.

[11] On April 9, 2020 this court issued a temporary restraining order. Amongst other things, it prevented the father from communicating with the Applicant and the children. This order was preceded by an episode where the Respondent had entered the Applicant’s bedroom one evening after he climbed onto the second floor of the deck of their townhouse. The Respondent remained at the matrimonial home and on the following smoke filled the home after he had fallen asleep and left a pot on the stove. At the suggestion of the police, the Applicant sought and obtained a Form 2 Order under section 16 of the Mental Health Act from a Justice of the Peace. The Respondent was brought to a hospital and released the same day. The Applicant did not allow the Respondent to return into the matrimonial home.

[12] She states that the Respondent has visited her home on a few occasions despite the restraining order. On April 25, 2020, the Respondent entered into an undertaking not to have contact with the Applicant or be within 200 metres of the matrimonial home. On May 16, 2020, the Respondent was charged with disobeying a court order and harassment contrary to the Criminal Code. He was released with conditions that included a no contact order with the Applicant and the Children. The Applicant has not seen the Respondent since April 2020.

[13] The Applicant believes that the Respondent has been homeless and living on the streets since mid-2020. Since that time, the Applicant has received multiple invoices for ambulance services provided to the Respondent. She paid some of these invoices. The Applicant states that the Respondent was admitted to CAMH after being found on the subway tracks at the Bay subway station.

[14] The Children continue to visit the Respondent’s parents at their home.

Analysis

[15] In an uncontested trial, the trial judge is not compelled to accept the Applicant’s evidence at face value, but rather is required to probe the credibility and reliability of the Applicant’s evidence in order to ensure a just result: Manchanda v. Theti, 2021 ONCA 127 (C.A), paras. 11-14.

Issue #1: Parenting Order

[16] Section 16.1 of the recently amended Divorce Act governs parenting time and decision-making responsibility. Under s. 16 of the Divorce Act, only the best interests of the child inform the terms of a parenting order.

16(1) Best interests of child The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

16(2) Primary consideration When considering the factors referred to in subsection (3), the court shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

16(3) Factors to be considered In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child's needs, given the child's age and stage of development, such as the child's need for stability;

(b) the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;

(c) each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;

(d) the history of care of the child;

(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

(f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child's care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

16(4) Factors relating to family violence In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

16(5) Past conduct In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

16(6) Maximum parenting time In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

[17] I am satisfied on the evidence that the children’s physical, emotional and psychological safety, security and well-being is served by granting the parenting order sought by the Applicant. Specifically:

(1) The Applicant shall have sole decision-making in respect of each of the Children;

(2) The Respondent shall have parenting time with each child of the Children on a supervised basis and at times and locations solely determined by the Applicant unless the parties otherwise agree or further order of this court;

(3) The Respondent shall not remove the Children from Ontario without the prior written consent of the Applicant or order of this court;

(4) The Applicant shall be permitted to travel with the Children outside of Ontario without the consent of the Respondent however the Applicant shall provide notice of such travel to the Respondent by mail or email, including a detailed travel itinerary and contact telephone number; and

(5) Any requirement that the Respondent shall sign the Children’s government issued documents and renewals of same shall be dispensed with.

Issue #2: Child Support

[18] The Applicant seeks an Order that the Respondent shall pay child support to the Applicant for the benefit of the children “on the basis of the Respondent’s income once it has been disclosed, retroactive to January 1, 2019”.

[19] There is no order requiring the Respondent to pay child support. The Respondent has never paid child support although he paid ½ of the monthly mortgage payment on the matrimonial home as well as a Scotiabank Line of Credit for a period of time.

[20] Both children attend daycare at a cost of $1,173/month. Vitaly attends after-school daycare only when he attends school in person which is not currently the case. Before the COVID-19 pandemic commenced, both children attended Russian classes on Saturdays at a cost of $400 per month.

[21] There is no evidence that the Applicant is employed or earns income. In fact, it appears that the Applicant is in the custody and/or care of the Centre for Addiction and Mental Health.

[22] There is no basis in law to grant the undefined child support order requested. I adjourn the trial in respect of the claim for child support in order to provide the Applicant with an opportunity at a later date to advance that claim on better evidence.

Issue #3 – Unequal Division of Property

[23] The Applicant seeks an Order for an unequal division of the parties’ net family property in favor of the Applicant. While the Applicant has filed a Financial Statement, she has not filed a Net Family Property Statement as required by Rule 13(14) of the Family Law Rules. There is no evidence as to parties’ net family property.

[24] In Serra v. Serra, 2009 ONCA 105, the Ontario Court of Appeal stated at para. 37:

The steps to be taken when s. 5(6) is engaged are well-established. The court must first ascertain the net family property of each spouse, by determining and valuing the property each owned on the valuation date (subject to the deductions and exemptions set out in s. 4). Next, the court applies s. 5(1) and determines the equalization payment. Finally — and before making an order under s. 5(1) — the court must decide whether the equalization of net family properties would be unconscionable under s. 5(6), having regard to the factors listed in paragraphs 5(6)(a) through (h)

[25] The Applicant submits that she has not delivered a Net Family Property Statement because the Respondent did not deliver a Financial Statement. Even without the Respondent’s Financial Statement, the Applicant must make best efforts to complete a Net Family Property Statement in order to complete the steps required to determine an equalization payment before this court turns to assessing whether such equalization payment would be unconscionable.

[26] I adjourn the trial in respect of the Applicant’s claim for an unequal division of the parties’ net family property until the Applicant has filed a Net Family Property Statement and an affidavit that provides evidence to support her claim for an unequal division of property.

Issue #4: Vesting Order

[27] The Applicant seeks an order vesting the ownership of the matrimonial home solely in her name.

[28] She submits that the Respondent incurred about $125,000 for tuition and related costs of completing his MBA. These costs were financed by two jointly held lines of credit: (1) an RBC line of credit with an outstanding balance of $91,804.16, and (2) $25,000 from a Scotiabank line of credit that has a current balance of $125,334.00.

[29] The matrimonial home is a townhouse in Toronto that is jointly owned by the parties. The Applicant rents the basement of the matrimonial home for $1,000 per month. The Applicant states that it matrimonial home has a fair market value of $800,000. She did not obtain an appraisal because she cannot afford to do so. The Applicant does not have the expertise to offer an opinion of real estate values and the value that she has provided for the matrimonial home is doubtful. I do not accept her evidence on this point.

[30] The Applicant states that the matrimonial home has the following encumbrances:

(a) a mortgage with a balance of $447,687;

(b) a Scotiabank line of credit described earlier;

[31] Deducting these debts from the estimated value of the matrimonial home, as well as 5% for notional real estate disposition costs of $40,000, the Applicant submits that the total equity in the matrimonial home is $186,979.00. She proposes that her share of the equity from the home, when accounting for the $25,000 used by the Respondent from the Scotiabank line of credit for his MBA program, is $118,489 and that the Applicant’s share of the equity is $68,489.

[32] The Applicant proposes to solely assume the two lines of credit and the mortgage once the matrimonial home is vested solely in her name.

[33] The applicable principles are as follows:

1. Separating spouses are not entitled to receive a division of property under the Family Law Act. In Thibodeau v. Thibodeau, 2011 ONCA 110, para. 37, the Ontario Court of Appeal stated at para. 37:

Unlike its predecessor — the Family Law Reform Act, R.S.O. 1980, c. 152, which featured a division of property scheme — Ontario's Family Law Act adopted an equalization payment regime. Separating spouses are not entitled to receive a division of property. Rather, they are entitled (generally speaking) to receive one-half of the value of the property accumulated during the marriage. An equalization payment is the chosen legislative default position

2. Similarly, in X v. Y, 2016 ONSC 545, Justice Trimble stated at para. 294:

… absent an order under s. 9(1) (d) or 34(1) (c) of the Family Law Act vesting property in one spouse to secure an equalization payment or for payment of child or spousal support respectively, the Family Law Act equalizes property by a financial transfer, not a property transfer.

3. A vesting order under the Family Law Act is not a substantive order but rather an enforcement order that is granted in the discretion of the Court. In Lynch v Segal, [2006] O.J. No. 5014, the Ontario Court of Appeal stated that:

27 In Ontario, the court's broad general power to grant a vesting order is found in section 100 of the Courts of Justice Act. In the specific context of family law claims, sections 9(1)(d)(i) and 34(1)(c) of the Family Law Act confer an equally broad power to grant a vesting order on an application for equalization of net family property or support, respectively.2 Vesting orders are discretionary and have their origins in the court's equitable jurisdiction …

31 The rationale for the vesting power, therefore, is to permit the court to direct the parties to deal with property in accordance with the judgment of the court. The jurisdiction is quite elastic. Nothing in the language of either section 100 of the Courts of Justice Act or section 34(1)(c) of the Family Law Act operates to constrain the flexible discretionary nature of the power.

32 I do not think any useful purpose is served by attempting to categorize the types of circumstances in which a vesting order may issue in family law proceedings. The court has a broad discretion, and whether such an order will or will not be granted will depend upon the circumstances of the particular case. I agree with the appellants that the onus is on the person seeking such an order to establish that it is appropriate. As a vesting order — in the family law context, at least — is in the nature of an enforcement order, the court will need to be satisfied (as the trial judge was here) that the previous conduct of the person obliged to pay, and his or her reasonably anticipated future behaviour, indicate that the payment order will not likely be complied with in the absence of more intrusive provisions: see Kennedy v. Sinclair (2001), 2001 28208 (ON SC), 18 R.F.L. (5th) 91 (Ont. S.C.J.), affirmed (2003), 2003 57393 (ON CA), 42 R.F.L. (5th) 46 (Ont. C.A.). Thus, the spouse seeking the vesting order will have already established a payment liability on the part of the other spouse and the amount of that liability, and will need to persuade the court that the vesting order is necessary to ensure compliance with the obligation.

33 In addition, the court should be satisfied that there is some reasonable relationship between the value of the asset to be transferred and the amount of the targeted spouse's liability and, of course, that the interests of any competing execution creditors or encumbrancers with eligible claims against the specific property in question are not an impediment to the granting of a vesting order. However, I would not go so far as to say — as argued by the appellants — that the onus to satisfy the court on these matters is at all times on the person seeking the order. I shall return to these issues later in these reasons.

[34] There is no authority to order a division of property as requested by the Applicant. While a vesting order might be available, neither an equalization payment nor a child support order is outstanding. Accordingly, leaving aside the other considerations, there is no need for a vesting order as there is no order to enforce. I adjourn the trial of the Applicant’s claim for a vesting order.

Conclusions

[35] Accordingly, I make the following final Orders pursuant to the Divorce Act that:

(1) The Applicant shall have sole decision-making in respect of each of the children namely Vitali Andre Bach born May 28, 2014 and Roman Andre Bach born February 11, 2017;

(2) The Respondent shall have parenting time with each child of the children namely Vitali Andre Bach born May 28, 2014 and Roman Andre Bach born February 11, 2017 on a supervised basis at times and locations in the sole discretion of the Applicant unless the parties otherwise agree or this court orders otherwise;

(3) The Respondent shall not remove the children namely Vitali Andre Bach born May 28, 2014 and Roman Andre Bach born February 11, 2017 from Ontario without the prior written consent of the Applicant or order of this court;

(4) The Applicant shall be permitted to travel with the children namely Vitali Andre Bach born May 28, 2014 and Roman Andre Bach born February 11, 2017 outside of Ontario without the consent of the Respondent however the Applicant shall provide notice of such travel to the Respondent by mail or email, including a detailed travel itinerary and contact telephone number; and

(5) Any requirement that the Respondent shall sign the government issued documents and renewals of such documents in respect of the children namely Vitali Andre Bach born May 28, 2014 and Roman Andre Bach born February 11, 2017 shall be dispensed with.

[36] The trial of the Applicant’s claim for child support, an unequal division of property and a vesting Order is adjourned to a date to be determined by the Trial Coordinator to a date that is at least thirty days following the Applicant’s delivery of a Net Family Property Statement, an appraisal of the fair market value of the matrimonial home, an affidavit that particularizes and explains the justification for the Applicant’s claim for an unequal division of net family property, an affidavit that explains the justification for the vesting order and a Factum. The Applicant’s claim for $10,000 in costs is adjourned as well.

[37] The Applicant shall submit a draft order for review by the Court prior to it being issued and entered.

Mr. Justice M. D. Faieta

Released: March 3, 2021