Court File and Parties
COURT FILE NO.: 301/20 DATE: 2022/02/24
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Stephanie Michelle Niessen, Applicant – and – Kevin John Niessen, Respondent
COUNSEL: M. VanderSpek, for the Applicant L. Angle, for the Respondent
HEARD: January 18-19, 2022
THE HONOURABLE JUSTICE J. R. HENDERSON
DECISION ON MOTION
INTRODUCTION
1This is my decision on the interlocutory motions brought by both parties regarding parenting, support, and property issues. The motions were heard together over the course of two days.
2The applicant and the respondent were married on March 27, 2010, and separated on August 23, 2019. They have three children who are currently seven, five, and four years of age.
3Both parties enjoy parenting time with the children. There is a temporary order, dated February 18, 2021, made on consent, that provides for a two-week cycle for parenting time using a 2-2-3 rotation in the first week and a 2-3-2 rotation in the second week. This results in the applicant having approximately eight days of parenting time and the respondent having approximately six days of parenting time in each two-week cycle.
4Starting in approximately 2014, the applicant left full-time employment and remained at home to care for the children. It was the intention of the parties that the applicant would return to the workforce when the youngest child commenced attending full-time school. In 2020 the applicant retrained to become a yoga instructor. She is now working part-time as a yoga instructor, and she is taking further training that will allow her to become a Pilates instructor.
5At all relevant times the respondent worked full-time as a self-employed house builder, operating his business through a corporation known as Northshore Homes Ltd. (“Northshore”). He also operates a sole proprietorship through which he provides project management services, primarily for Northshore.
6The parties resided in their matrimonial home on Vine Street, St. Catharines, until their separation. Prior to their separation the parties had entered into an agreement to purchase a property at 3922 23rd Street, Vineland (“23rd Street”). The intention of the parties was to tear down the existing house on 23rd Street and construct a new upscale matrimonial home on the property.
7The parties separated from one another in August 2019 at approximately the same time as they sold their matrimonial home on Vine Street. The proceeds of the sale of the matrimonial home were used to close the purchase of 23rd Street a few days after they had separated. The parties took ownership of 23rd Street in their joint names.
8The applicant has never resided at 23rd Street. After the purchase closed in late August 2019, the respondent took possession of 23rd Street while the applicant and the children continued to live at the former matrimonial home as tenants of the new owners. Over approximately the next year the respondent constructed a new home on 23rd Street, as planned, the cost of which was funded primarily through a construction mortgage registered against the property.
9At present the respondent continues to reside in the newly built house on 23rd Street. His fiancée now lives there as well. Ownership of 23rd Street remains in the joint names of the applicant and the respondent. The applicant has relocated to rental accommodations in St. Catharines.
THE ISSUES
10In summary, the motions before the court deal with the topics of parenting time, decision-making responsibility, the children’s school, child support, spousal support, the 23rd Street property, and disclosure by the respondent.
11The specific issues that are before this court are as follows:
The respondent requests a change to the temporary order to provide the parties with equal parenting time with the children. He requests that the children spend alternate weeks with each of the parties. The applicant asks that the temporary order remain unchanged.
The applicant requests an order that provides the applicant with sole decision-making responsibility for the children. The respondent requests that the applicant and the respondent continue to have joint decision-making responsibility.
The applicant requests an order that the respondent not consume any alcohol or non-prescription drugs during, or within 12 hours prior to, his parenting time with the children. There is no real dispute about this request.
The respondent requests that the children be enrolled at Twenty Valley School in Vineland, whereas the applicant requests that the children continue to be enrolled at Prince Philip School in St. Catharines.
For support purposes, the applicant asks the court to impute or attribute income to the respondent in the amount of $150,000 per year. The respondent’s position is that his income for the purposes of support is $79,000 per year.
For support purposes, the respondent asks the court to impute income to the applicant in the amount of $35,000 per year. The applicant submits that her actual income from part-time employment is currently approximately $7,000 per year, and she asks that this figure be used as her income for support purposes.
Depending upon my findings on the above-mentioned income issues, the applicant requests an order that the respondent pay temporary child support to her in accordance with the Federal Child Support Guidelines.
Similarly, the applicant requests an order that the respondent pay temporary spousal support to her in an amount to be determined.
As a joint owner of 23rd Street, the applicant requests an order under the Partition Act for partition and sale of 23rd Street, with the net proceeds of the sale to be held in trust pending a trial or settlement. The respondent submits that he has a claim for unjust enrichment and that he will be entitled to a constructive trust with respect to the applicant’s interest in 23rd Street. He requests that partition and sale be deferred until his claim for a constructive trust has been adjudicated.
The respondent requests an order that the claim for divorce be severed from the balance of the application so that the divorce may proceed on an uncontested basis. The applicant does not dispute this request.
The applicant requests an order that the respondent provide further documentary disclosure, as set out in a lengthy list contained in the applicant’s notice of motion. The respondent submits that he has already provided much of the requested disclosure, and he takes issue with a few of the items that are requested.
PARENTING ISSUES
12The respondent submits that parenting time should be equally shared between the parties. He asks this court to change the temporary order to provide for parenting time on a week about basis. The applicant requests that the temporary order continue without change.
13As a general rule, a court will not change an existing temporary parenting order unless there is a compelling reason to do so. The existing temporary order, even if it is modestly flawed, will usually remain in effect until the entire matter can be fully canvassed at trial. This general rule has been confirmed in many court decisions, including M.D. v. N.J., 2016 ONSC 5990, at paras. 24-25, Kimpton v. Kimpton, at para. 2, Shotton v. Switzer, 2014 ONSC 566, at para. 15, and Papp v. Papp, [1969] O.J. No. 1460, [1970] 1 O.R. 331 (Ont.C.A.).
14As discussed in the above-mentioned decisions, the overriding principle with respect to custody, access, and parenting time is the best interests of the children. In most cases, it is not in the best interests of the children to change an existing parenting status quo prior to trial. The disruption caused by moving the children from one parenting regime to another will require a period of adjustment and will likely cause some instability for the children. Thus, there must be a good reason for any change.
15The court’s reluctance to change a temporary order is reinforced by the fact that any change to the status quo at an interlocutory stage will be based solely upon affidavit evidence. If a temporary change is made, it is likely that a further change will be made again at trial after a court has heard all of the evidence and observed the parties and their witnesses.
16As Laskin J.A. wrote in Papp at para. 32, “It may be taken as a working rule that evidence to warrant an order for interim custody must more cogently support disturbance of the de facto situation than evidence to support an order for custody after trial on the merits.”
17In the present case, the respondent submits that there is a compelling reason to change the existing order. He submits that the current parenting time arrangement includes frequent transitions between the two households which cause unnecessary disruptions for the children and conflict between the parties. Thus, the respondent submits that it would be in the children’s best interests to reduce the number of transitions by changing the temporary order to a week about regime.
18I acknowledge that a parenting time regime with fewer transitions may ultimately be appropriate. However, at present there is no evidence that the children are troubled by the frequent pickups and drop offs. In fact, it may not be in the best interests of the youngest children to be away from their mother or father for a week at a time. Further, although there is evidence of friction between the parties, there is no evidence that the friction is related to the transitions.
19For all of these reasons, I decline to make any changes to the existing temporary order with respect to parenting time.
20In his notice of motion, the respondent also requests a court order that the children be enrolled at Twenty Valley School in Vineland. The respondent states that the parties agreed, prior to their separation, that they would move to Vineland and that the children would attend Twenty Valley School. Now that the respondent has moved to Vineland, the respondent wants to pursue that agreement.
21In my view, the respondent’s request for an order that requires the children to change schools is not reasonable, and it is not in the children’s best interests. All of the children have attended Prince Philip School in St. Catharines since they started attending school. Prince Philip School is close to the party’s former matrimonial home, and close to the applicant’s current residence. There is no evidence to suggest that any of the children have any issue with attending Prince Philip School.
22As discussed above, the court should not facilitate unnecessary disruptions in the lives of the children, particularly at the interim stage of the proceedings. In my view, a continuation of the status quo regarding schooling is in the children’s best interests.
23The fact that the parties may have agreed that the children would attend Twenty Valley School at a time when the parties had intended to move together to Vineland is not a significant factor in the present circumstances.
24For clarity, I will make an order that the children will continue to be enrolled at Prince Philip School.
25In her notice of motion, the applicant requests an order that gives the applicant sole decision-making responsibility for the children. At present, there is no order with respect to decision-making responsibility, and therefore by default the applicant and the respondent are joint decision-makers for the children.
26In support of her request, the applicant submits that the respondent has engaged in conduct that is offensive, derogatory, and insulting toward her. She has provided, as evidence of same, a number of text messages in which the respondent has referred to her using words such as “lunatic” and “bitch”.
27I acknowledge that the text exchanges between the applicant and respondent show that the respondent has been verbally antagonistic toward the applicant, and that generally the applicant has not responded in kind. However, despite the friction, I find that the applicant and the respondent have been able to communicate and make reasonable joint decisions about the children. There are many text exchanges in which the parties were able to discuss, and resolve, issues such as school supplies, medications, and transitions.
28The only significant area of disagreement with respect to the children has been the dispute about which school the children should attend. Even with that issue, the parties did not act in a manner that upset the children; rather, they put the issue before the court.
29The applicant also submits that she has concerns about the respondent’s mental health and emotional stability. She refers to an incident that occurred in December 2021 in which the respondent dropped off the children after he had apparently been consuming alcohol. On or around the same day the applicant received messages from the respondent’s fiancée in which the applicant was informed that the respondent had been bullying his fiancée and verbally abusing her. I accept that this evidence suggests that the respondent has not always behaved properly, but I will not make a finding at this stage that he has mental health issues.
30Overall, I accept that communications between the parties have not always been smooth, but I find that they have been able to jointly make decisions for the children to date. There is no compelling need to change this arrangement prior to the issue being fully vetted at trial. Therefore, I will allow the existing arrangement to continue. For clarity, I will order that the applicant and the respondent shall have joint decision-making responsibility with respect to the children.
31Finally, because of the December 2021 incident, the applicant requests an order that would prohibit the respondent from consuming alcohol or being under the influence of alcohol during his parenting time. The respondent denies that he has an alcohol problem, but he agrees that such an order is appropriate if it is a mutual order. I am prepared to make that mutual order.
32Therefore, I will order that both of the parties are prohibited from consuming alcohol or non-prescription drugs during, and 12 hours prior to, their parenting time with the children.
THE APPLICANT’S INCOME
33At present, the applicant earns approximately $120-$140 per week as a part-time yoga instructor. Annualized, this equates to income of approximately $7,000 per year. The applicant submits that this figure should be used as her income for support purposes.
34The respondent submits that the applicant is intentionally under-employed and that, pursuant to s.19 of the Guidelines, the court should impute a greater income to her for support purposes. He submits that the applicant is trained as a personal support worker (“PSW”) and that she could generate an income in the range of $35,000 per year in that field. In the alternative, he submits that the applicant could work full-time at minimum wage and earn approximately $30,000 per year.
35For the purposes of this interlocutory motion there is no issue as to the applicant’s entitlement to spousal support.
36I find that the applicant’s ability to earn an income has been limited because of the applicant’s role in the marriage. The applicant obtained a diploma in personal support work in approximately 2009 and worked as a PSW until 2012. In 2013 and 2014 she worked as a sales associate and then as a waitress. In 2014 she left regular employment for a period of approximately six years in order to be a full-time stay-at-home mother to three very young children. I find that this gap in her employment continues to affect her ability to obtain full-time employment and restricts the income that she can now earn.
37Further, I accept that the applicant has had some back problems that she attributes to her work as a PSW, and as a result she does not wish to resume a career as a PSW. I note that she stopped working as a PSW, in part because of back problems, approximately two years prior to the birth of her first child.
38I also acknowledge that the applicant’s ability to re-enter the workforce on a full-time basis has been delayed by the fact that she required re-training in order to acquire new skills. I further accept that the COVID-19 pandemic has limited employment opportunities in the fields in which the applicant may be qualified to work.
39In the case of Driscoll v. Driscoll, [2009] O.J. No. 5056, at para. 14, Lemon J. listed some of the principles that apply to interim spousal support orders. In particular, Lemon J. stated, and I accept, that at the interim stage, the applicant’s needs and the respondent’s ability to pay “assume greater significance”. On interim support applications the court achieves “rough justice at best” for the parties; the court should “not embark on an in-depth analysis of all of the parties’ circumstances” as that is better left to trial. The need to achieve economic self-sufficiency is often of less significance at the interim stage.
40Considering these principles, I find that, at this interim stage, the applicant faces some hurdles in her attempt to return to the workforce; that the applicant has provided credible reasons for not returning to work as a PSW; and that the path the applicant has chosen for a return to the workforce appears to be a reasonable one.
41Accordingly, I will use the applicant’s actual income for the purposes of the child and spousal support calculations in this decision. I find that the applicant’s current income for support purposes is $7,000 per year.
THE RESPONDENT’S INCOME
42The respondent’s taxable income as shown at line 150 of his income tax returns was (in round numbers) $36,000 for 2017, $68,000 for 2018, and $15,000 for 2019.
43In his financial statement sworn September 25, 2020, the respondent deposes that his annual income is $64,551, including employment income, investment income, and income from a shareholder loan. In that same financial statement, he deposes that his total annual expenses are $110,694.
44In his financial statement sworn July 7, 2021, the respondent deposes that his annual income is $69,600, and that his total annual expenses are $101,094.
45The applicant’s position is that, pursuant to s.18 and s.19 of the Guidelines, the court should impute income to the applicant in the range of $150,000 per year for support purposes. She submits that the respondent’s corporation, Northshore, pays some of his personal expenses and that the respondent receives substantial financial benefits from Northshore that are not declared in his income tax returns. Further, she submits that the respondent has not kept proper records with respect to his corporate and personal funds, and consequently the income that he has declared for tax purposes is not accurate.
46Earlier in these proceedings the respondent retained Colin Cook (“Cook”), a chartered accountant and certified business valuator, to review the respondent’s business records and to provide an opinion as to the respondent’s income for support purposes. It should be noted that Cook was selected when respondent’s counsel provided applicant’s counsel with a list of three possible business valuators and applicant’s counsel selected Cook’s name from that list.
47In his report, dated October 7, 2021, Cook indicated that he reviewed the respondent’s personal tax returns, the corporate tax returns for Northshore, the financial statements for Northshore, and the general ledgers of Northshore. Cook then performed calculations in which he adjusted the respondent’s declared income by including personal expenses that were paid by Northshore and corporate expenses that provided a personal benefit to the respondent. Cook concluded that the respondent’s income for support purposes was $16,000 in 2019 and $79,000 in 2020. The respondent relies upon Cook’s calculations.
48There were some delays in the receipt of Cook’s report, and consequently the applicant retained Vince Dong (“Dong”), a chartered accountant, to provide an opinion with respect to the respondent’s income. In his report, dated September 29, 2021, Dong raised several concerns regarding the respondent’s declared income.
49It should be noted that Dong did not have access to all of the business records of Northshore, that Dong did not see Cook’s report prior to finalizing his own report, and that Dong formed his opinion by reviewing the year-end financial statements of Northshore for the 2018, 2019 and 2020 fiscal years.
50In summary, Dong stated that he was puzzled because Northshore had received a net influx of cash in the approximate amount of $248,000 in 2019 and he was unable to determine the source of that cash. He also observed that there appeared to be a net outflow of cash from Northshore to the respondent of approximately $188,000 in 2020 through the shareholder loan account.
51In the conclusion of his report, Dong stated that he believed that the respondent’s annual income was likely in excess of $150,000, but he required further information and documentation before he could make an accurate determination as to the respondent’s income for support purposes. I accept that Dong has raised several legitimate concerns about the respondent’s finances that must be addressed before these issues can be finalized.
52In addition to the concerns raised by Dong, there are two other complications in the analysis of the respondent’s income; first, the respondent’s credibility is an issue that complicates Cook’s analysis, and second, the respondent has refused to disclose certain documents, including the general ledgers, to applicant’s counsel or to Dong.
53Regarding the respondent’s credibility, I accept that he has a history of dishonest behaviour. He has a criminal record for at least two offences that involve dishonesty. Moreover, he admitted that he fraudulently applied for and received a CERB benefit in the applicant’s name in the amount of $10,000. The applicant only became aware of this fraud when she was asked to repay the CERB benefit to the federal government. I note that the respondent has since repaid this amount.
54This credibility issue may affect the validity of Cook’s report because Cook relied, in part, on the respondent’s explanations for some of the entries that are shown in the Northshore records. If the respondent has not been honest about these entries, then Cook’s reliance on the respondent’s explanations could erode the foundation of his analysis.
55Similarly, the respondent’s failure to disclose the general ledgers to the applicant has limited Dong’s ability to provide a proper critique of Cook’s report. It is difficult for the court to truly assess what might be disclosed in the general ledgers, both pro and con, if the applicant’s expert is not permitted to review same.
56All of these issues will be fully explored by way of further disclosure, possible further expert reports, and viva voce evidence at the trial. At best, at this stage of the proceedings, the court only has a broad view of the respondent’s income, and some sense of the concerns that arise with respect to the assessment of the respondent's true income.
57As previously discussed, the purpose of an interim support order is to provide a form of rough justice. The court cannot, and should not, engage in an in-depth analysis of the parties’ circumstances at this interim stage.
58For these reasons, I find that the best approach is to use the best available evidence at this stage. I find that Cook’s report is by far the better and more complete analysis of the respondent’s income. Dong’s report is incomplete, through no fault of his own, because Dong did not have access to all of the pertinent records, and because he was unaware of the respondent’s explanations for some of the entries.
59Unlike Dong, Cook was able to thoroughly review the respondent’s records including the financial statements of Northshore, Northshore’s corporate tax returns, and the general ledgers of the business. Also, I note that, in his report, Cook identified the contentious shareholder loan account as a source of funds for the respondent. Therefore, I find that Cook’s report is the best evidence available at this stage.
60Accordingly, relying on Cook’s report, I find that the respondent’s current income is $79,000 per year for the purposes of the child and spousal support calculations in this decision.
CHILD SUPPORT
61Child support is payable by the respondent pursuant to the Guidelines. Therefore, I order that the respondent pay temporary child support to the applicant for the three children in the amount of $1,565 per month commencing February 1, 2022, based on his current income of $79,000 per year, without prejudice as to retroactivity and quantum.
SPOUSAL SUPPORT
62The parties will have parenting time with the children in a shared parenting arrangement, as discussed above. Using the Spousal Support Advisory Guidelines, I find that mid-range spousal support is payable by the respondent to the applicant.
63Therefore, I order that the respondent pay temporary spousal support to the applicant in the amount of $716 per month commencing February 1, 2022, without prejudice as to retroactivity and quantum.
DIVORCE CLAIM
64As requested, I hereby order that the claim for divorce be severed from the other relief claimed in this action. The divorce may be dealt with by way of an over-the-counter motion.
PARTITION AND SALE
65The applicant and the respondent are joint owners of 23rd Street. The proceeds of the sale of the matrimonial home were used to purchase 23rd Street, but 23rd Street has never been their matrimonial home.
66The respondent funded the construction of a house on 23rd Street after the separation and he continues to reside in that house. The applicant has never lived on the property and makes no use of the property.
6723rd Street is currently encumbered by a first mortgage of about $160,000 and a second mortgage of about $480,000. The second mortgage is also secured against a property known as 4040 Victoria Avenue, Vineland, which is a property that is jointly owned by the respondent and his parents.
68The two mortgages on 23rd Street require interest-only payments of approximately $5,255 per month, which the respondent has been paying. The principal amounts of the mortgages are not being reduced by the monthly payments.
69As an owner of the property, the applicant has a prima facie right to partition and sale of the property. The court will enforce that right unless there is sufficient reason for the court to refuse to do so. See the cases of Latcham v. Latcham, [2002] O.J. No. 2126 (Ont.C.A.), at para. 2, and Silva v. Bettencourt, at para. 4.
70The onus is on the party resisting partition and sale, the respondent in this case, to show that there is malicious, vexatious, or oppressive conduct that constitutes sufficient reason for the court to exercise its discretion to refuse a request for partition and sale. See Latcham at para. 2, and Silva v. Silva, [1990] O.J. No. 2183 (Ont.C.A.).
71It has been held that if an interim order for the sale of a property would prejudice one party’s right to assert a claim at trial, such prejudice may constitute oppression that would justify the refusal of a request for partition and sale at the interim stage. The test is whether there is a genuine issue for trial. See the cases of Binkley v. Binkley, Lall v. Lall, 2012 ONSC 5166, at para. 49, and Steele v. Doucet, 2019 ONSC 544, at para. 36.
72In the present case the respondent is making a claim for unjust enrichment based on his allegation that he has increased the value of the property by constructing a house on the property. Consequently, he claims a constructive trust against the applicant’s interest in the property. The value of this constructive trust claim has not yet been ascertained or agreed upon. The respondent submits that his right to make a constructive trust claim at trial would be prejudiced if the property was sold at this interim stage.
73The respondent’s position is that he would like to have his constructive trust claim valued, either by agreement or at trial, and then he would like to have an opportunity to buy out the applicant’s interest in the property. If the property is sold at this stage, the respondent submits that he would lose the opportunity to make an offer to purchase the applicant’s interest.
74The applicant’s position is that she gets no benefit out of her investment in 23rd Street at this point. She therefore wishes to liquidate her interest in the property so that she can use her investment as she sees fit. The applicant submits that the property should be sold now, and the proceeds held in trust until a trial or until the matter is resolved.
75The applicant further submits, correctly, that the respondent does not have a right to compel the applicant to sell her interest to him. However, I find that, as a practical matter, issues that arise out of joint ownership of property are often settled by one party purchasing the interest of the other.
76Both parties agree that the issues of unjust enrichment, constructive trust, and the values of their respective interests will need to be fully canvassed by way of further disclosure, and/or questioning. That is, it is not possible for a court to accurately determine the value of each parties’ interest in 23rd Street on the evidence that is available at this stage. These are genuine issues for trial.
77I find that the respondent has met his onus of showing that the sale of the property would prejudice his right to assert a claim at trial. If I order the sale of the property at this point the respondent’s constructive trust claim against the property will be extinguished prior to trial. His claim will be limited to a monetary claim against the sale proceeds. Further, he will lose his present residence, and he will not have access to the funds from the sale to purchase a new residence. This constitutes prejudice to the respondent.
78Because I have a discretion to grant or refuse the request, I must also consider any prejudice to the applicant. I acknowledge that the applicant has an interest in the property and that she could make good use of the funds from the sale to purchase a residence for herself. However, even if 23rd Street was sold, the proceeds will be held in trust until the trial and the applicant will not have access to them. The only real prejudice to the applicant if a sale is not ordered is that her investment will remain in the form of an interest in 23rd Street, rather than in cash in a savings account. In either case, she would not have access to the funds until trial or until the matter was resolved.
79In these circumstances, I find that the prejudice to the respondent is more significant than the prejudice to the applicant, and that it fulfils the test set out in Latcham. Therefore, it is appropriate to defer the request for partition and sale. For these reasons, I find that the applicant’s request for partition and sale should be dismissed.
80In coming to this decision, I adopt the statement made by Bloom J. in Steele at para. 36, as follows: “It is unreasonable and unfair to order sale, when the just allocation of proceeds must await a determination of beneficial interests of the parties. Those interests may derive in this case from financial contribution or the operation of doctrines of resulting and constructive trust….”
81I wish to add that the respondent will not be permitted to reside indefinitely at 23rd Street without addressing the applicant’s interest in the property. I expect that the respondent will provide further disclosure, including all documents that support his constructive trust claim, and all documents with respect to the expenses and the mortgages that relate to the property. At some point the parties may wish to return to court by way of a further interlocutory motion to deal with partition and sale. Thus, the dismissal of the applicant’s request for partition and sale today is without prejudice to either party bringing a further motion for similar relief in the future.
DISCLOSURE REQUEST
82The applicant requests disclosure of a long list of documents and information from the respondent. Respondent’s counsel agrees that many of these requests are valid, but submits that some of the requests have already been fulfilled, and that in some instances the respondent has made requests from third parties for documents, but has not yet received same.
83In light of these circumstances, I will not specifically deal with the items that the respondent says have already been provided or have been requested from third parties. I assume that any concerns about those items will be resolved between counsel. However, if there continue to be any issues with respect to any disclosure request that I do not address in this decision, the applicant is at liberty to bring a further motion for disclosure no earlier than 60 days from the date of this decision.
84In the present decision I will address the three contentious requests for disclosure.
85First, the applicant requests disclosure of the general ledgers of Northshore, as these are required by her expert for the purpose of assessing the respondent’s income. In my view, this is a valid request. The respondent’s expert, Cook, reviewed the general ledgers in preparing his report, and I have already indicated that Dong’s report was deficient because he did not have access to these records. It is appropriate that Dong have access to these records so that he can properly analyse the issue and critique Cook’s report.
86Therefore, it is ordered that the general ledgers of Northshore from January 2019 to date shall be produced by the respondent to the applicant within 30 days.
87Second, the applicant requests a fresh financial statement from the respondent that includes “all pending purchases by the respondent personally or by any company owned by the respondent”. I find that the respondent in these circumstances is required to inform the applicant of any pending purchases of property, although he need not provide that information by way of a sworn financial statement.
88Therefore, I order that the respondent shall forthwith inform the applicant in writing as to all pending purchases of real property or interests in real property by himself personally or through any interest he may have in any business entity, and the respondent shall keep the applicant fully informed of any change in circumstances regarding same.
89Third, the applicant requests that the respondent provide certified appraisals of four separate properties, namely 4040 Victoria Avenue, Vineland, (as of date of separation), Solera Place, St. Catharines, (as of date of separation), 20 Lafayette Drive, St. Catharines, (as of date of marriage), and 37 Prince Philip Drive, St. Catharines (as of date of marriage).
90The respondent resists these requests because it will be expensive for him to pay for certified appraisals of these properties, and because he has already provided some documentation regarding the values of these properties. He relies upon the proportionality principle.
91Regarding Lafayette Drive and Prince Philip Drive, I note that respondent claims that he owned these properties as of the date of marriage. He claims deductions in his NFP calculation of the values of these properties, in the amount of $165,000 and $199,000 respectively.
92The onus is on the respondent to prove the value of these properties as of the date of marriage. The respondent has produced opinions of value with respect to both of these properties, but those opinions of value are each only one-page in length, and they have been prepared by a real estate agent, not an appraiser. This is not sufficient.
93Therefore, it is ordered that the respondent shall provide certified appraisals of 20 Lafayette Drive and 37 Prince Philip Drive as of the date of marriage, such appraisals to be provided within 120 days.
94Regarding 4040 Victoria Avenue, the respondent had an interest in this property as of the date of separation, and he continues to have an interest in this property. The onus is on the respondent to prove the value of his interest. The respondent has provided a letter from Meridian Credit Union as to the value of this property, and a written opinion of value.
95In my view, these two short documents do not fulfil the respondent’s onus. The letter from Meridian Credit Union consists of one sentence that provides a value for the property. There is no information as to whether an appraisal was conducted by a certified appraiser. There are no details as to the nature of any appraisal. The letter itself is signed by a financial services advisor, not an appraiser. Further, the opinion of value is a two-page letter from a real estate agent, not a certified appraiser, and it contains very few details.
96Accordingly, it is hereby ordered that the respondent shall provide a certified appraisal of his interest in 4040 Victoria Avenue, Vineland, as of the date of separation, such appraisal to be provided within 120 days.
97Regarding Solera Place, the property appears to be comprised of several pieces of vacant land. The respondent has already provided a certified appraisal of this property that purports to value the property if it were to be developed as a townhouse development. It appears that the appraisal was prepared by a certified appraiser, and it appears that the certified appraiser has considered the appropriate factors.
98This appraisal of Solera Place, dated June 3, 2019, may fulfil the respondent’s onus to provide an appraisal as of the date of separation. However, the copy of the appraisal that has been provided is deficient on its face.
99The most obvious deficiency is that the complete appraisal has not been provided. The copy that is before the court is 12 pages in length, but on page 1 of the appraisal the author refers to items that are contained on pages 24, 25, and 30. Therefore, the full document has not been produced.
100Also, there were several assumptions made by the appraiser with respect to the need for draft plan approval and for a surveyor’s certificate, but the appraiser has not provided an opinion, at least in the portion of the appraisal that has been produced, as to whether these items have been obtained, or could reasonably be obtained.
101Therefore, with respect to Solera Place, I order that the respondent produce a complete copy of the appraisal, dated June 3, 2019, within the next 30 days. If the respondent does not comply with this order, or if the complete appraisal appears to be insufficient, the applicant may bring a further motion for a certified appraisal of Solera Place no earlier than 60 days from the date of this decision.
CONCLUSION
102In summary, it is ordered that:
The respondent’s motion to change the existing temporary order with respect to parenting time is dismissed.
The children will continue to be enrolled at Prince Philip School.
The applicant and the respondent shall have joint decision-making responsibility with respect to the children.
Both of the parties are prohibited from consuming alcohol or non-prescription drugs during, and 12 hours prior to, their parenting time with the children.
The respondent shall pay temporary child support to the applicant for the three children in the amount of $1,565 per month commencing February 1, 2022, based on his current income of $79,000 per year, without prejudice as to retroactivity and quantum.
The respondent shall pay temporary spousal support to the applicant in the amount of $716 per month commencing February 1, 2022, without prejudice as to retroactivity and quantum.
The claim for divorce is severed from the other relief claimed in this action, and the divorce may be dealt with by way of an over-the-counter motion.
The applicant’s motion for partition and sale regarding 23rd Street is dismissed.
The respondent shall provide further disclosure in accordance with the reasons set out herein.
103If either party wishes to make submissions regarding costs, I direct that the party seeking relief shall deliver written submissions, no longer than five pages, to the trial coordinator at St. Catharines on or before April 20, 2022, with responding submissions to be delivered within 10 days thereafter. If no submissions are received within this timeframe, the parties will be deemed to have settled all costs issues as between themselves.
J. R. Henderson J.
RELEASED: February 24, 2022