COURT FILE NO.: FC-17-341

DATE: 2022/07/25

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KIMBERLEY WALL Applicant

– and –

COLIN WALL Respondent

Self-represented

Self-represented

HEARD: April 11, 12, 13 and 14, 2022

GIBSON J.

REASONS FOR JUDGMENT

Overview

[1] This difficult family law trial involved two self-represented parties who have had a very high-conflict relationship. They were awash in high emotion and mutual hostility during the trial.

[2] The unfortunate and undeniable reality is that, notwithstanding my best efforts as trial judge to assist the parties with understanding the procedural and evidentiary requirements of a trial, neither party was fully capable of presenting a coherent or comprehensive case. There were significant issues of credibility on the part of both parties, but neither possessed the forensic skills necessary to conduct an effective cross-examination.

[3] Notwithstanding the efforts of the TMC judge to assist them, who observed that this case “is not even close to being trial ready,” the parties were listed for trial without coherent pleadings, with no real sense of what they were asking for, the legal basis for their positions, what evidence was required to substantiate what they wanted, or how to present it. No proper trial record or document brief had been prepared. The TMC judge observed that “it’s a mess and the only way to proceed is either by intense case management or by simply dumping the matter on a trial judge to wade through.” The latter is what happened.

[4] Family law trials in Ontario are not conducted on an inquisitorial model. In our adversarial model of trial, the trial judge must remain impartial, and cannot unduly assist the parties with their arguments regarding substantive issues. Judges have an obligation to assist self-represented parties with the procedural and evidentiary aspects of a trial, and that was done in this instance. But it is a delicate balance. There is only so much that can properly be done regarding substantive issues. As I repeatedly had to explain to the parties in this trial, judges are judges, not advocates for the parties. It is not up to the judge to stitch together evidence and argument to substantiate the desired outcomes of the litigants. There is only so much that can properly be done. The Family Law Rules and the appropriate ambit of judicial intervention and engagement are not infinitely elastic. This was highly frustrating in this case. But abandoning the appropriate discipline and rigour in the conduct of trials can only lead into quicksand, and will not ultimately do even-handed justice to litigants and risks undermining the administration of justice.

[5] The evidence of the Applicant in this case largely consisted of a document dump of email correspondence and some financial records. It is not incumbent upon or appropriate for trial judges to wade through piles of documents to try to construct some coherent evidentiary foundation for the loosely framed claims of the litigants, or to construct a remedy when the litigants are not able to articulate with any precision what they want or why, in law, it should be ordered.

[6] For example, the Applicant did not really understand the concept of equalization of Net Family Property, or how to calculate this. She did not present any evidence or calculations in this regard. Even less did she understand the legal basis for a claim for unequal division. In this circumstance, it was not possible to make any findings or orders regarding equalization. It would be a distortion of the judicial role to attempt to do so.

[7] The Respondent presented very little evidence.

[8] In this circumstance, I have done the best that I can to assist the parties to present their case within the bounds of judicial propriety. However, where the evidence is simply insufficient to make findings or orders with regard to particular issues, I am unable to do so.

Issues

[9] The Applicant made claims for a wide variety of issues in her handwritten Amended Application dated February 12, 2020, which was further amended August 13, 2020. Some of these pertained to decision-making responsibility and parenting time concerning the child of the marriage, Liam Colin Patrick Wall, born June 13, 2009. Liam has been diagnosed with autism, and experiences various challenges in the social and school environments.

[10] The parties engaged in extensive litigation in the Ontario Court of Justice regarding Liam over several years. The issues of custody and access (as they were then called) were resolved by the final order of Breithaupt Smith J. dated March 9, 2020, prior to this trial. The remaining issues were largely financial.

[11] The issues before the Court on this trial were:

1. Exclusive possession of the parties’ matrimonial home at 265 Charlotta Street, Baden, Ontario, N3A 4M8;
2. Spousal support;
3. S.7 and extraordinary expenses in relation to Liam;
4. Arrears of child support for the period May 2017 to May 2018;
5. A claim for the household operating costs from April 25, 2017, to March 1, 2020; and,
6. An unequal division of Net Family Property.

Summary of Facts

[12] There were two witnesses at trial, the Applicant and the Respondent.

[13] The parties were married in 2008 and separated in 2016. They had a high-conflict relationship. The Applicant indicated that the Waterloo Region Police Service had been called to attend at their home more than 25 times.

[14] Liam resides with the Applicant mother, and attends school in Baden.

[15] The mortgage payment regarding the parties’ jointly owned matrimonial home at 265 Charlotta Street in Baden went into default after the Respondent ceased contributing towards the mortgage payments in February 2017. The Respondent did not assist with meeting the financial obligations associated with running the home after separation. Through strenuous efforts over the following few years, the Applicant was able to secure additional financing and narrowly avoid eviction in 2020. The mortgage is currently renewed until 2024. The Applicant expressed much bitterness towards the Respondent concerning his lack of financial engagement with the mortgage issues.

[16] The parties are joint tenants. The Respondent wishes to sell the property. The Applicant is not currently willing to cooperate in this, because of her desire to have Liam continue to live in a small-town environment such as Baden. The parties dispute the need for an assessor to value the home. Pursuant to the Order of Piccioli J. dated September 9, 2020 made on consent, and the Order of Gordon J. dated October 13, 2020 amending the amount of refinancing, the Applicant was able to refinance the home. Absent some agreement between the parties, it appears that the issue of sale of the property may need to be resolved by a motion for partition and sale under the Partition Act, which was not pleaded in this instance. (The Applicant makes a claim in her amended Application for exclusive possession of the matrimonial home, but not one regarding the ownership of the home or appropriate financial adjustments, which of course are different legal concepts). Whether the home should be sold, and the appropriate allocation of proceeds of sale having regard to their respective contributions concerning the property over the years which was the focus of much of the Applicant’s concern during this trial, would be addressed in that context.

[17] The Respondent is currently residing elsewhere with one of his friends. He currently works at Globe Stamping for an hourly wage of $20. He says his financial prospects are dim. The Respondent acknowledged that he is in substantial arrears with FRO regarding his child support payments. He submitted that his income is insufficient to make any payment of spousal support, and contested that there should be any obligation, but did not substantiate why.

Assessment

[18] The Respondent was not a credible witness. He was evasive and disingenuous in his answers on cross-examination concerning his RRSP amount of $38,008.71, whether he has a work-related pension plan, and what cash advances he took on a line of credit. He repeatedly, and unconvincingly, answered that he could not recall financial details, in an evident attempt to insulate himself from accountability. Unfortunately, the Applicant lacked sufficient skill in cross-examination to effectively challenge his evidence in this regard, or to clearly establish what the facts were.

[19] It is evident that, given the long history of dispute between the parties, and the potential for an escalation of family violence, and having regard to the best interests of Liam, the Applicant should have exclusive possession of the matrimonial home pursuant to s.24 of the Family Law Act pending resolution of the issue of its potential sale, and the respective allocation of proceeds of sale.

[20] The parties are both of modest income at present. Given this, it is appropriate that they should equally share the s.7 extraordinary expenses regarding Liam.

[21] Despite my encouragement to be specific and detailed about what they wanted and why, the final submissions of both parties were brief and rudimentary.

[22] The Applicant advanced many bare assertions without evidentiary support. Some of the documents both parties sought to adduce in evidence could not be admitted as they had not been provided to the other party prior to trial.

[23] Ultimately, an Applicant bears the onus to substantiate their position. It is not incumbent upon a trial judge, nor is it appropriate, for the judge to “fill in the blanks” to remedy deficient, or even absent, submissions by parties as to what remedies they should seek, the legal basis for them, or what evidence is required to substantiate them.

[24] Trial judges cannot make findings of fact in an evidentiary vacuum, or without even rudimentary submissions as to why certain orders are justified. In this trial, this was unfortunately the case regarding the Applicant’s claims for an unequal division of net family property, spousal support, and arrears of child support for the period May 2017 to May 2018.

Order

[25] The Court Orders that:

1. The Applicant shall have exclusive possession of the parties’ matrimonial home at 265 Charlotta Street, Baden, Ontario, N3A 4M8; and,
2. The parties shall share 50/50 the s.7 and reasonable extraordinary expenses concerning the child Liam Wall, born June 13, 2009. The Applicant is to provide the Respondent with reasonable notice in advance of any proposed expenditure.

Costs

[26] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant at mona.goodwin@ontario.ca and to Kitchener.SCJJA@ontario.ca. The Applicant may have 14 days from the release of this decision to provide her submissions, with a copy to the Respondent; the Respondent a further 14 days to respond; and the Applicant a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received any response or reply submissions within the specified timeframes after the Applicant’s initial submissions, I will consider that the parties do not wish to make any further submissions, and will decide on the basis of the material that I have received.

M. Gibson, J.

Date: July 25, 2022

COURT FILE NO.: FC-17-341 DATE: 2022/07/25

ONTARIO SUPERIOR COURT OF JUSTICE

KIMBERLEY WALL – and – COLIN WALL

REASONS FOR JUDGMENT Gibson, J.

Released: July 25, 2022