Court File and Parties

COURT FILE NO.: 8274-19 DATE: 2022-04-27 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lindsay Paula Priddle, Applicant AND: Jason Wade Priddle, Respondent

BEFORE: Regional Senior Justice B. G. Thomas

COUNSEL: Aaron B. R. Drury, Counsel for the Applicant George F. McFadyen, Counsel for the Respondent

HEARD: April 22, 2022.

Endorsement

[1] There are three motions before the Court brought by the applicant mother. The number of motions reflect the changes over time, as the circumstances and issues of the parties evolved, until the matters finally came before me for argument. The first of the motions was originally returnable in 2020.

[2] In addition, there are cross-motions by the respondent father.

[3] The issues to be decided by me, on an interim basis, are the following:

1. The ongoing parenting scheme for the children, Jaxon Paul Priddle (born March 7, 2005, “Jaxon”) and Monroe Paige Priddle (born November 7, 2013, “Monroe”).
2. The quantum of ongoing child support and the commencement date of any order.
3. The entitlement and potential quantum of any spousal support for the applicant.
4. Issues related to the mortgage on the matrimonial home.
5. The apportionment of s. 7 expenses and the preservation of any historic claims or credits.

Background

[4] The applicant is 40 years of age, and the respondent is 41. They began cohabitating in January 2004 and married on June 9, 2006, and subsequently separated on a final basis on November 21, 2018.

[5] The parties have two children, namely Jaxon Paul Priddle (born March 7, 2005, “Jaxon”) and Monroe Paige Priddle (born November 7, 2013, “Monroe”). Jaxon attends St. Patrick’s High School and Monroe attends Sacred Heart Catholic School.

[6] When the parties separated in November, 2018, the parties had put in place a parenting arrangement. That parenting arrangement was incorporated into an agreement they created that the parties signed in February, 2019.

[7] That agreement reads as follows:

This letter is to state that as of November 21, 2018 we, Jason Priddle & Lindsay Priddle, have officially separated. We have been living in the matrimonial home but, because we are heading through with mediation, we are choosing to live separately and continue raising the children together. We both believe this will be the best living situation during this time. Lindsay will move out of the matrimonial home by April 1, 2019 – this is to confirm that this will not affect our assets, custody, parenting decisions, etc during the stages of separation/divorce. Jason will take over all costs of running the matrimonial home (887 Cathcart Blvd.) and Lindsays [ sic ] name will stay on the ownership until a decision is made to sell or Jason decides to purchase and remain in the home.

During this time, the children will share their time between both homes accordingly to this agreed schedule attached. [Emphasis in original.]

Any decisions and exceptional costs for the children will be made jointly.

[8] The applicant is self-employed as a hair stylist. The respondent is a Sarnia Police constable. There are no court orders which consider any of the issues before me.

Parenting Time

[9] The contact times for the children, which were established in November, 2018, became the status quo and established a 60/40 split of parenting time in favour of the applicant. This continued until March 1, 2022 when Jaxon, now 17, decided he wanted to spend equal time between his two parents. The parties agreed and that has become the new status quo for Jaxon, who is clearly of the age to determine his own residence as between the two of them.

[10] The respondent now requests an order that Monroe adopt the same schedule so that the siblings are together and there is a 50/50 sharing of contact. The respondent argues that the siblings have a close relationship, that the respondent lives close to Monroe’s school and the matrimonial home, and that the maximum contact principle should be applied to this issue.

[11] The applicant resists this change in Monroe’s status quo, and for the reasons set out below, I agree.

[12] Jaxon is 17. He has his own car. He has a girlfriend. He plays Junior “B” hockey and counsel for the respondent tells me he is destined for Major “A” hockey, which leaves little time for anything else.

[13] Monroe is 8 and in elementary school. She will continue to be with her brother during the substantial overlapping periods of contact.

[14] Counsel for the applicant points me to the considerations of s. 16 of the Divorce Act. While considering the best interests of Monroe, and the direction given by the Divorce Act. It is important to remember that this is an interim order.

[15] Admittedly, the record before me is not as full as it would be at trial, but despite that, I am concerned that the respondent is attempting to impose his will on the applicant. I believe his inability to communicate with the applicant, on issues that have developed, has not benefitted the children. The communications, which form part of the applicant’s material, appear to bear that out.

[16] These concerns find their way in the considerations of s. 16(3) (c), (d) and (i) of the Divorce Act.

[17] Counsel for the respondent draws my attention to the decision of Justice Newton in Balke v. O’Connor, 2017 ONSC 2491, where shared parenting was ordered on an interim basis. Paragraph 13 and 14 of Balke are set out below:

[13] I also accept the following excerpts from Madill v. Madill, 2014 ONSC 7227 as accurate statements of the law:

[31] In interim custody and access cases, the status quo is ordinarily maintained until trial unless there is material evidence that the best interests of the children require a change: see Grant v. Turgeon (2000), 5 R.F.L. (5th) 326 (Ont. S.C.); Kimpton v. Kimpton, 2002 CarswellOnt 5030; and Easton v. McAvoy, 2005 ONCJ 319.

[32] The Court must consider the best interests of the children, including their needs and circumstances – with regard to the applicable factors listed in s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended.

[14] And, I accept these statements from Batsinda v. Batsinda, 2013 ONSC 7869 as accurate statements of the law:

[28] In determining the issue of whether the status quo respecting decision-making and timesharing should be changed in the context of a motion for temporary relief, it is important to maintain a focus on what is meant by the status quo. The courts have clarified that the phrase status quo with respect to timesharing does not refer to a situation unreasonably created by one party after separation to create a tactical advantage in the litigation. (Irwin v. Irwin (1986), 3 R.F.L. (3d) 403 (H.C.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (S.C.J.); Horton v. Marsh, 2008 Carswell NS 371 (S.C.)) I agree with this proposition. This court has held in many cases that the status quo that is relevant on temporary custody and access motions is that which existed prior to the separation between the parties. (See, for example Howard v. Howard (1999), 1 R.F.L. (5th) 375 (S.C.J.)). In my view, for the purposes of applying the principles set out in Papp v. Papp regarding the strength of the evidence required to disrupt the status quo arrangement, the status quo that is relevant is that which existed just prior to the parties separation, except in circumstances where there is clear and unequivocal evidence that the parties agreed to a different decision-making and residence arrangement following the separation. A status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party, does not fall within the principles established in Papp v. Papp. [Emphasis added]

[18] It is clear that the order of shared parenting in that case, had much to do with the status quo that Justice Newton found to be the pre-separation routine. There was no post-separation agreement creating a different decision-making and residence arrangement.

[19] The circumstances in Balke are not those before me. Here, there is a status quo which developed over more than three years and was directed by the agreement created and signed by the parties.

[20] Finally, as a police officer, the respondent works a “continental shift”. There is a week in that rotation where he must work nights. The respondent offers his mother as available to sleep at his home during that week. Counsel for the respondent points to the fact that Jaxon is 17 and will be there at any time when the paternal grandmother may have to be absent. I do not believe this proposal is fair to either of the siblings.

[21] Therefore, for the above reasons, the arrangements for the child, Monroe, on an interim basis, will remain as presently structured, a status quo established and one that seemingly has allowed Monroe to thrive.

Child Support

[22] The respondent has been paying $450 per month for child support, based on the agreement of the parties and the 60/40 parenting split. His income as a police officer, for child support purposes, is $108,947. The applicant is a self-employed hair stylist. Her income is much in dispute. Her documentation appears to suggest an annual income of $44,000. It has become clear that this is understated by at least the amount of her “tip” income, and her materials suggest that imputation of income to $66,000 would be conceded for this interim argument.

[23] The respondent points to the fact that she owns her own business and that her stated expenses are twice her income on a monthly basis. It is argued that $80,000 would be needed on an annual basis to break even. The respondent maintains that if I were to consider her price list for services, her working hours and her lifestyle, all disclosed by social media posts, I should have no issue with imputing her income in excess of $100,000 per year.

[24] Providing fuel to the respondent’s argument is the recognition that prior to separation, while operating a now defunct business, the applicant had unreported income of $650,000 over a three year period. An audit disclosing this amount and a subsequent re-assessment forced the applicant into bankruptcy. As a result, the respondent suggests the reported income of the applicant is not to be trusted.

[25] The applicant maintains the unreported income was an accounting issue and that the respondent had the benefit of that income while they were living together, and he needed her to support him. The applicant argues that she was saddled with that debt, and the inequities that created, should be reflected in the ongoing orders.

[26] The imputation of income, for the most part, becomes a triable issue unless, on an interim basis, the evidence is clear. That is not the case here. However, on a go forward basis, I believe it is fair and consistent with the record, as I have it, to impute income to the respondent of $70,000 per year.

[27] I chose to start the child support order on March 1, 2022 when the parenting circumstances of Jaxon changed. The issues of retroactive child support and credits for amounts paid are preserved until trial.

[28] The child support payable for Jaxon from the respondent to the applicant will be determined by an offset of the incomes as I have determined them.

[29] I have considered the terms of s. 9 of the Federal Child Support Guidelines, particularly the criteria raised by s. 9(a), (b) & (c). I have considered the discrepancies in income. The respondent will pay to the applicant for the interim support of Monroe, the Table amount of support on a monthly basis.

[30] I find that the Table amounts for support are $1,580 for the respondent and $654 for the applicant. I believe the applicant has been bearing the majority of the financial burden for this child. I acknowledge the broad discretion I have to analyze the resources and needs of both parents and the children, thus ensuring the child support ordered fits the needs of the children, and that each parent contributes fairly to allow for a similar standard of living as the child transitions from place to place. (Contino v. Leonelli-Contino, 2005 SCC 63, para. 68; Loscerbo v. Loscerbo, 2010 MBCA 1, paras. 25 and 26).

[31] On the basis of the contact configuration that I have ordered, the respondent will pay $926 per month to the applicant commencing March 1, 2022.

Spousal Support

[32] The applicant argues that she is entitled to compensatory support based on the incomes as I have found them. Her entitlement, it is argued, comes from the years when she assisted in supporting the family, including the respondent, while he was a special constable with a much lower salary. It is argued that the length of the relationship, her bankruptcy, and the accumulation of debt as a result, have placed her in a position where spousal support must be paid at some level.

[33] Entitlement cannot be determined by me on this record. As well, I take into account the terms of the child support order above. The applicant may renew her claim at trial. There will be no interim spousal support order.

The Mortgage

[34] When the applicant declared bankruptcy, the respondent negotiated with her Trustee and purchased her interest in the matrimonial home for $45,000. Title is now in his name alone. Unfortunately, the applicant is still a named mortgagor.

[35] The respondent maintains that he cannot obtain fresh mortgage financing unless there is a final order in this divorce. The applicant, understandably, has refused to sign a new mortgage on the home. The respondent complicated his situation when he went so far as to forge the applicant’s signature on a renewal application. He was charged criminally, but the charge was withdrawn after he entered a diversion program. This, no doubt, assisted him in preserving his policing employment.

[36] The applicant asks me to order that the respondent have her name removed from the mortgage within 30 days, or alternatively, order the home be sold. She claims the respondent has been unjustly enriched by her bankruptcy. Counsel maintains that, on an interim order, pursuant to s. 9 of the Family Law Act, I have the jurisdiction to make the order sought. I am not convinced.

[37] Potentially, if the respondent cannot obtain new financing, the bank will move to sell the home and the issue will be determined.

[38] The claim for interim relief related to the mortgage on 887 Cathcart Boulevard, Sarnia, is dismissed.

Section 7 Expenses

[39] The s. 7 expenses will be divided and paid proportionally determined by the incomes as I have found them to be. This part of the order will take effect as of March 1, 2022, consistent with the child support order. The parties will provide receipts to confirm the amount of the expenses. Claims for retroactive s. 7 expenses and credits are preserved for trial.

Costs

[40] If the parties cannot agree on this issue, I will receive their written submissions within 30 days of the release of this endorsement. The submissions are limited to five pages each, not including a bill of costs. The parties should be aware that I consider there being a viable argument that success was mixed.

Regional Senior Justice B. G. Thomas Date: April 27, 2022.