Court File and Parties
COURT FILE NO.: FS-19-11633 DATE: 2021-08-11 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SARAH TERESA HUNNIFORD, Applicant AND: JUSTIN DARRELL HUNNIFORD, Respondent
BEFORE: Tranquilli J.
COUNSEL: Peter Eberlie, for the Applicant Daniel Dominitz, for the Respondent
HEARD: July 30, 2021 via Zoom
ENDORSEMENT
[1] The applicant and respondent married October 16, 2015. They are the parents of three young children, ages 5, 3 and 18 months. The parties separated on April 6, 2019, before the birth of their youngest child.
[2] The respondent works full-time in welding and pipefitting. He travels for work and was regularly away from home, working remotely, for extended periods of time. He uses a travel trailer for accommodation while away at work. The applicant works from the matrimonial home as a claims adjudicator.
[3] They jointly own the matrimonial home, a 50-acre farm property in Lakeside, Ontario. The respondent briefly remained in the home following the separation in April 2019. He then left the home for an extended period later in 2019 and 2020 for work and did not return until about November 2020. He then lived in his travel trailer, parked on the property.
[4] The parties have a high conflict relationship, with each accusing the other of aggressive and abusive behaviour. The court is in no position on this record of competing and unhelpfully voluminous and argumentative affidavits to determine which party bears responsibility for their difficulties. It is abundantly clear their conflict has escalated in recent months to a concerning degree.
[5] On April 30, 2021, the applicant and respondent had a heated argument in the matrimonial home about parenting issues. There are competing versions of what happened next. The respondent agrees he became frustrated with the applicant and swept a number of items from a landing and threw them down the stairs. The applicant called 911. The respondent left the property before the police arrived and did not respond to their efforts to address the complaint.
[6] The respondent returned to the home on several occasions over the next few weeks. The parties argued over ownership of personal property and the respondent twice changed the locks to the home while the applicant was away with the children. On June 12, 2021, the applicant called police again for assistance to prevent the respondent from removing more items from the property. When the police arrived, the respondent showed them photographs of scratches to his body caused by the applicant during an argument over one year earlier. Police arrested the applicant and charged her with assault. For reasons that are unclear, police understood the respondent lived in the matrimonial home. The applicant’s release conditions therefore require that she not reside in the matrimonial home. She and the three children are living in temporary accommodation and the respondent is in possession of the home.
The Motions
[7] The applicant moves for interim exclusive possession of the matrimonial home, to be reviewed in three months, along with interim parenting orders granting her sole decision-making and supervised parenting time to the respondent because of his alcohol consumption. Finally, she seeks interim orders child support, proportionate contribution to s. 7 expenses and spousal support based upon grossed up or imputed income to the respondent.
[8] The respondent moves for immediate sale of the matrimonial home on terms that would give the applicant a right of first refusal on any offer. He dismisses the applicant’s concerns about his alcohol consumption and seeks parenting time on an unsupervised basis. He submits it is premature to make any interim order regarding decision-making. He claims there is no basis for imputation of income. He pays child support at the appropriate table amount. He submits that spousal support is not properly the subject of this motion and that she would only be entitled to an extremely modest amount.
1. Interim Exclusive Possession vs. Sale of the Matrimonial Home
[9] The applicant seeks interim exclusive possession of the matrimonial home. It is the children’s home and they attend daycare nearby. They have been forced to live in temporary housing as a result of the applicant’s assault charge. The applicant works from a home office. The nature of her employment requires that her home office be approved by the employer. She wants an opportunity to purchase the respondent’s interest in the home and therefore proposes that interim possession be reviewed in three months. If the respondent pays appropriate child and spousal support, she is more likely to be in a position to obtain financing to purchase the home.
[10] The respondent seeks an order requiring sale of the home, on terms that the applicant has the opportunity to match an offer. He submits they cannot afford to keep the property and that the applicant has already had enough time to plan to purchase the home. He has been living in his trailer since separation and needs the funds from a sale to arrange for new housing. He thinks the market is strong and that they could receive a good price, given what other properties in the area have sold for.
[11] His affidavit materials indicate he is willing to work with the Crown to amend the applicant’s release conditions so that she and the children could return to the matrimonial home pending the sale. However, on the morning of this motion, the applicant counsel learned from her defence counsel that the respondent did not consent to the applicant and children returning to the matrimonial home.
[12] I have considered the numerous principles a court should consider on a claim to sell the jointly held matrimonial home: Dhaliwal v Dhaliwal, 2020 ONSC 3971. I am mindful of the respondent’s concerns about their ability to keep up with the housing expenses and whether the applicant has a reasonable prospect of being able to purchase the home. However, the applicant has persuaded me that an order for sale of the matrimonial home should not be made at this interim stage. The parties are still to resolve property, equalization and support issues. This is the young children’s home; their daycare is nearby, and the applicant works from the home. The applicant was essentially in sole possession of the home since separation. It is in the children’s best interests that they be able to return to their home with their mother and have an opportunity to stabilize their lives and routines after the last several weeks of disruption. A decision on the sale should be postponed and reviewed in three months so the applicant can have a reasonable opportunity to determine whether she can make a viable proposal to purchase the property once interim support is addressed and financial disclosure and valuations are complete.
[13] The respondent changed the locks on the matrimonial home in May 2021. The applicant had to arrange for a locksmith attend the home, only for locks to be damaged or removed again. The applicant seeks full reimbursement of her expenses in having a locksmith attend at the matrimonial home to replace the locks and for the expenses of changing the locks again once she resumes possession. I do not accept there is any rational basis for the respondent to have changed the locks and the applicant is entitled to be reimbursed for these expenses.
2. Imputation or “Gross Up” of Income
[14] The applicant claims child and spousal support based on imputed or grossed up income of $266,952. She arrives at this figure by adding back business expenses that he claimed on his tax return, as well as his non-taxable benefits, such as a generous “live out” allowance that he receives when working away from home and a gas allowance. He uses his travel trailer for work in order to save the live out allowance. The applicant notes the respondent historically earned significant income from several sources, including full time employment and self-employment. In 2018, his line 150 income was $236,641. He is still to produce his 2020 income tax return. The respondent initially submitted his actual income for 2020 is $137,492; however, on the motion, he then advised that his income for child support purposes could be adjusted to $150,000. He maintains that the allowances and business expenses should not be added back for the purposes of determining interim support.
[15] There are troubling and unexplained discrepancies in the respondent’s reports as to his income. In February 2021, his previous counsel reported the respondent had earned total income of $201,717.93 from various sources in 2020. By the time of this motion, his income was inexplicably reduced to $137,492; however, he was then willing to concede income of $150,000 for the purposes of calculating child support.
[16] I must exercise my discretion to impute income on a rational basis. A court may consider evidence of a spouse’s prior income: King v. King, 2016 ONSC 5264 at para. 9. Taking all the circumstances into account, I accept that the applicant has put forward a rational basis for imputing or grossing up the respondent’s annual income in the amount of $266,952 on an interim, without prejudice basis. There is perhaps an argument that not all of the live out allowance should be considered as income; however, the respondent did not make any proposal other than that none of his extra allowances should be included as income. He has not provided receipts to demonstrate his use of the allowance for accommodation. It would be my expectation that the calculation of his income can be reviewed and adjusted as necessary once the respondent has completed his financial disclosure, including production of his 2020 income tax return.
3. Child Support
[17] The three children are in their mother’s primary care. They are entitled to interim s. 3 child support in the monthly amount of $4,405 as sought by the applicant and based upon the respondent’s income of $266,952.
[18] The children have substantial daycare expenses, at approximately $2,340 per month. The respondent should be contributing his proportionate share of those expenses.
4. Spousal Support
[19] The respondent raised a procedural objection to the applicant’s claim for interim spousal support, as it was not specifically sought in her notice of motion. The applicant acknowledged this oversight; however, submitted her affidavit materials clearly outlined her claim for support and that the respondent was on notice of this issue as he addressed her entitlement in in his affidavits. I am satisfied the respondent is not prejudiced by the procedural flaw.
[20] On interim support applications, the court does not embark on an in-depth analysis of the parties’ circumstances, which is better left to trial. The court achieves rough justice at best. The interim support context is an ideal situation for use of the SSAG to calculate support. More precise calculations can be made at trial or on completion of financial disclosure: King, supra at paras. 11-12.
[21] The applicant returned to work from her third maternity leave in April 2021. She then took a two-week unpaid caregiver leave to look after their youngest child following an injury at the daycare. Her 2020 income of $29,729 is comprised of employment insurance benefits from her maternity leave and limited employment income. She is unable to pay expenses and has relied on the respondent to pay the housing costs, although she has learned they are in arrears on property taxes and she had to negotiate a payment plan for hydro arrears. There is prima facie entitlement to interim spousal support based upon her needs.
[22] An interim order will go requiring the respondent to pay monthly spousal support in the amount of $1,311, (being the mid-range of $489 - $1,311 - $2299), based upon the parties’ respective incomes of $266,952 and $29,729.
5. Parenting Orders
[23] The respondent submits it is premature to address the issue of decision-making in respect of the children. I disagree. It is evident from the record that these parties are unable to communicate with one another in a responsible and child-focused manner. It is disheartening to review the extensive conflict that has been paraded in front of their children.
[24] The respondent’s employment regularly takes him away from the children for extended periods of time and the applicant is the one responsible for day-to-day decisions regarding the children. He does not challenge the evidence that he stayed away from the home and did not see the children for many months between 2019 and 2020. Recently, it was the applicant who took the youngest child for urgent medical treatment and the applicant who took an unpaid leave from work to care for him.
[25] In all these circumstances, it therefore makes practical sense for the applicant to have interim sole decision-making in respect of the three children. It will be for the parties or the court to determine a more detailed parenting plan that is in the best interests of the children on a final basis; however, on an interim basis, I think it reasonable for the applicant to have sole decision-making in order to reduce opportunities for conflict and given the realities of respondent’s work demands.
[26] The respondent initially sought alternating weekend overnight parenting time on this motion. However, at the hearing the parties eventually appeared to agree to carry on the father’s parenting time in accordance with the informal schedule they have used to date: Wednesdays between 4:00 pm and 7:00 pm and alternating weekends, on Fridays between 5:00 pm and 7:00 pm and on Saturdays and Sundays from 10:00 am to 7:00 pm. The material issue is whether his parenting time should be supervised.
[27] The applicant submits the respondent’s parenting time should be supervised due to his insistence on drinking alcohol while the children are in his care. His parenting time has always occurred in the matrimonial home or on the property and she has been nearby. Her affidavit materials outline numerous occasions where the respondent consumed alcohol during parenting time and where he has driven away after drinking. She included photographs of empty beer cans left behind in the matrimonial home or around the property. In 2019 he was stopped in a Ride program. He had to install an interlock device on his truck to resolve the charges.
[28] The respondent claims he does not drink to excess. He does not believe that having a beer or two while the children are with him is a problem.
[29] The court is not in a position to weigh the competing evidence as to how much alcohol the respondent consumes while the children are in his care. I acknowledge the photographs of the empty cans is open to challenge. However, the respondent expressly acknowledges that he does drink during parenting time and states he does not see a problem with it. The court is concerned that he is minimizing this issue. I agree with the applicant’s concern that the respondent should be sober and able to respond to any urgent situations that may arise while the children are in his care. The respondent’s plan is also vague, in that he does not propose where the parenting time will occur. Supervised parenting time for a period of three months is reasonable so that there are assurances as to the children’s safety and well-being. Parenting time may take place at a supervised access centre, if chosen by the respondent; however, parenting time in the community with a mutually agreed upon supervisor is also acceptable.
Orders
[30] Interim without prejudice orders shall therefore go as follows:
The applicant shall have sole decision-making responsibility for the children, Ava, Ariana and Austin.
The applicant shall have interim exclusive possession of the matrimonial home and its contents located at 196265 – 19th Line, Lakeside, Ontario, subject to review three months after the date of this order.
The respondent’s motion for sale of the matrimonial home is dismissed without prejudice to bringing another motion for sale no earlier than three months from the date of this order.
The respondent shall have supervised parenting time with the children for a period of three months from the date of this order. The respondent’s parenting time may take place at a supervised access facility or in the community with a mutually agreed upon supervisor.
The respondent’s supervised parenting time shall take place on the following schedule and terms which shall continue until further order of this court or agreement between the parties:
a. Wednesdays from 4:00 pm to 7:00 pm.;
b. Alternating weekends for a total period of that weekend of Friday from 5:00 pm to 7:00 pm and Saturdays and Sundays from 10:00 am to 7:00 pm, with the children returning to the matrimonial home each night.
c. If the respondent is unavailable to care for the children during his scheduled parenting time, the applicant shall have the right of first refusal to care for the children.
d. The respondent shall not consume any alcohol or drugs 24 hours before or during his scheduled parenting time with the children.
- The respondent shall provide the following financial disclosure forthwith:
a. 2020 Income Tax Return with all slips and schedules
b. 2020 Notice of Assessment and any Notices of Reassessment
c. All paystubs and self-employment invoices from all sources in 2021 to date; and
d. All details of his live-out allowances, per diem payments, gas allowances/gas cards, cash projects and all other benefits or sources of income
Commencing May 1, 2021 and on the first of every month thereafter, the respondent shall pay to the applicant monthly child support for the three children of the marriage, fixed in the amount of $4,405 and based upon his imputed 2020 annual income of $266,952.
Commencing May 1, 2021 and on the first day of every month thereafter, the respondent shall pay to the applicant his proportionate share of section 7 expenses for the three children of the marriage, based upon the applicant’s 2020 income of $29,729.48 and the respondent’s imputed 2020 income of $266,952.
Commencing May 1, 2021 and on the first day of every month thereafter, the respondent shall pay to the applicant spousal support in the amount of $1,311.
The respondent shall maintain life insurance on his life to secure his support obligations to the applicant and the children and will maintain the applicant as irrevocable beneficiary in any pension plan until further order of the court and shall provide proof of the policy’s validity and the applicant’s irrevocable beneficiary status within 60 days of the order.
The respondent shall reimburse the applicant in full for her costs to have a locksmith attend the matrimonial home to replace the locks in May 2021 and upon her assuming interim exclusive possession of the matrimonial home.
[31] I encourage the parties to resolve the matter of costs on these motions. If they cannot resolve the issue, the applicant is to serve and file her cost submissions by August 31, 2021 and the respondent is to serve and file his cost submissions by September 9, 2021. No reply may be served without leave of the court. Cost submissions, excluding a bill of costs, are limited to three pages, double-spaced with standard formatting. Costs are deemed settled on September 10, 2021 if the court has received no submissions.
Justice K. Tranquilli
Date: August 11, 2021