COURT FILE NO.: 28/19
DATE: 2022-01-28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tiffany Leigh D’Amico
Applicant
– and –
Anthony D’Amico
Respondent
Marlene J. VanderSpek
Heather Geertsma
HEARD: September 13,14,15,16,17, October 20, 2021
The honourable justice m. j. donohue
REASONS FOR JUDGMENT
ISSUES
[1] This matrimonial trial began with a number of issues, both child related and property related. In the course of the trial a number of issues were resolved. The remaining matters for the court to decide are as follows:
(a) For the purposes of the Net Family Property calculations, what values are to be attributed to the Honda Accord motor vehicle and to household contents?
(b) Should the respondent husband be ordered to pay his share of the children’s hot lunches as a s. 7 extraordinary expenses?
(c) Should the respondent husband’s consent be required, or waived, when the applicant wife wishes to travel internationally with the children?
(d) Should the applicant wife be permitted to move the children’s residence from Grimsby to anywhere within the regions of Niagara or Hamilton-Wentworth?
(e) On what date should the matrimonial home be listed for sale?
(f) What other orders are required to finalize this application?
(g) Is a claim for occupation rent by the respondent husband appropriate?
(h) Should an unequal division of Net Family Property be ordered on the sale of the jointly owned matrimonial home to deny the respondent husband his share of the post-separation increase in value?
OVERVIEW
[2] The parties began dating and cohabiting in 2005. They married in 2009 when living in Toronto. They purchased their first home together in Stoney Creek and had two sons. The boys were born in 2013 and 2015. The couple wanted to raise the children in the town of Grimsby, so they sold the home in Stoney Creek and purchased the current matrimonial home in 2015.
[3] The respondent husband commuted to Toronto for work in a government office. The applicant wife worked as a teacher with the Hamilton board of education. The applicant wife described a number of physical assaults during the course of their relationship.
[4] The applicant wife discovered that the respondent husband had been unfaithful in late 2016. They agreed to separate in March 2017. In April 2017, the respondent obtained an apartment in Toronto.
[5] In 2018 the applicant wife was in a relationship with Mr. Houle. He moved into the matrimonial home with her in November 2018.
[6] This application was commenced in January 2019. The application was further amended in August 2021.
NET FAMILY PROPERTY CALCULATIONS
[7] The disputed line items were a Honda Accord motor vehicle and household contents.
Honda Accord
[8] The applicant values the Honda Accord at $5,160. The respondent values it at $6,025.
[9] Neither party provided persuasive evidence as to the value they chose or why the other’s value was not correct. I am forced to find the middle ground of $5,593 as the value of the asset.
[10] The vehicle was registered in the name of the respondent husband but was left in the possession of the applicant wife on separation.
[11] From March 2017 until December 2020, the applicant wife and her boyfriend had the use of the vehicle. It became expensive to repair and so the applicant wife purchased another vehicle.
[12] The applicant wife’s boyfriend proposed that he clean the vehicle up and sell it, by listing it initially for $4,200. The applicant proposed to split the sale proceeds with the respondent.
[13] The respondent husband, as registered owner, refused to take the vehicle back and refused to allow the sale.
[14] The vehicle, parked in a public area, was towed by the city and so both parties lost any potential value on resale.
[15] The applicant wife originally considered the vehicle to be her asset and listed it as such on her first net family property statement. After the respondent husband refused to allow the sale, the wife submitted that it be listed as the respondent husband’s asset.
[16] The respondent husband states that the vehicle is an asset of the applicant wife as it was left in her possession. She was able to use the vehicle for nearly four years.
[17] Nonetheless, when the respondent husband refused to allow the vehicle to be sold, he was asserting his ownership rights such that he prevented any potential realization on the sale of the asset to either or both parties.
[18] For this reason, I find I must divide the value of the asset equally between the parties; $2,796.50 is ascribed to each party.
Household Contents
[19] In April 2017, the respondent husband moved to an apartment. He took with him a sofa/loveseat set with end tables, a television, some tools and some plates/ glasses/towels and linens.
[20] The balance of the household contents were left in the possession of the applicant wife. She offered later that if he wanted anything further he could take things, but he did not do so. His concern was only the monetary value associated with the things.
[21] For the net family property calculations the applicant wife’s position is that the contents were “divided” but she provided no evidence as to what the respective fair market values would have been.
[22] The respondent husband made a detailed listing of what he took from the home and what was left with the applicant wife. He then provided evidence of what they had paid for the items; a total of $16,065.70 for items left with the applicant wife and $1,100 for items he took.
[23] I accept the evidence of the respondent husband that the bulk of the household goods remained with the applicant wife and that they had some value for the purposes of the net family property calculations.
[24] As stated by the court in Rebiere v Rebiere 2015 ONSC 1324 para 14;
It is not always necessary to call expert evidence to prove values for minor assets: see Da Costa v Da Costa [1972] O.R. No. 384 (Ont. C.A.) at para 37. Where there is a failure to produce proof of the value of assets, the court can estimate values, perhaps arriving at harsh choices or simply ascribing no value: see of Earle v Earle, [1997] O.J. 1308 (Gen Div – Fam. Ct.).
[25] The respondent husband urged the court to use the purchase price as a “starting point”.
[26] The applicant wife testified briefly about the items and mentioned that the dining set was stained and marked by the two little boys.
[27] Accordingly, a “garage sale” value on their respective contents is the appropriate approach, by ascribing 1/3 of the purchase price value.
[28] The applicant wife’s household goods would then be a value of $5,354.70 and the respondent husband’s household goods would be $366.63.
Summary of Net Family Property Calculations
[29] The joint values for the matrimonial home and mortgage calculations are outstanding, pending its sale this year. The balance of the figures are as agreed between the parties:
Assets: Applicant Respondent
Matrimonial Home (JOINT ASSET) as determined by the market
Honda Accord $ 2,796.50 $ 2,796.50
Household Goods $ 366.63 $ 5,354.70
Truck $ 43,275.00
Subtotal $ 8,151.20 $ 46,438.13
Bank Accounts $81,971.99 $116,792.74
Insurance $ 2,930.12
Total Assets $90,123.19 $166,160.00
Debts:
Mortgage on Matrimonial Home(JOINT) as determined at the time of the sale
Joint Line of Credit $25,982.89 $ 25,982.89
Amex $ 834.64
Visa $ 3,988.08
Total Debts $25,982.89 $ 30,805.61
Date of Marriage Net Property; $ 21,870.00
Total Deductions $25,982.89 $ 52,675.61
Total Assets $90,123.19 $166,160.99
Net Family Property $64,140.03 $113,485.38
Potential Equalization Payment Payable by the Respondent husband is $24,672.68.
[30] On their respective calculations, the applicant wife considered that the respondent husband owed her $29,736.43 and the respondent husband considered that he owed her $16,671.08.
[31] I have found that the potential equalization payment to be $24,672.68. This hardly justified the trial time and the time on submissions that was required.
[32] The larger contentious issue is how to divide the net value of the matrimonial home on its sale; i.e. would it be unjust to divide the proceeds of sale equally between the parties? This is discussed below.
SECTION 7 EXPENSES
[33] By the end of trial, the parties had agreed that the total s. 7 claim was $3,193.81, however the respondent husband disputed his share of the children’s hot lunches of $814.25.
[34] He disputed the lunches on the basis that there is case law that found hot lunches not to be an extraordinary expense.
[35] The evidence before me is that the father benefited by these hot lunches as they followed his overnight parenting time. It saved him the cost and inconvenience of preparing the boys’ lunches that day. Furthermore, the applicant wife testified that the respondent husband wanted the hot lunches arranged. There is no contrary evidence.
[36] I find that the respondent husband consented to and benefited from the expense. Accordingly, I order the respondent husband to pay his share of the hot lunches and order the full amount of s. 7 expenses of $3,193.81 to be payable.
REQUIREMENT/WAIVER OF TRAVEL CONSENT
[37] The applicant wife asked the court to order as follows:
The respondent’s consent for the applicant to travel internationally with the children shall be dispensed with. However, the applicant shall provide the respondent with particulars of where she is travelling with the children at least ten (10) days prior to the intended travel date.
[38] In the course of the trial the respondent consented to the applicant having sole decision-making authority over the children. I take this to mean that she is to be trusted to make wise decisions in the children’s best interest. There is no evidence that the applicant would take the children to unsafe locations nor jeopardize the children in her travel choices.
[39] The parenting schedule has been set to ensure adequate parenting time with the father.
[40] There is a wealth of evidence in this trial of the poor communications which the parties have had. The respondent husband has been shown to have acted inappropriately and capriciously by refusing to allow the Honda’s sale, by attempting to unilaterally change one child’s Holy Communion ceremony, and by ignoring court orders on parenting time.
[41] In these circumstances, and to reduce the level of conflict involving the children, I accept that the waiver of his consent to international travel is appropriate. I order the wording as set out above by the applicant wife.
CHILDREN’S RESIDENCE
[42] The applicant wife consents to sell the matrimonial home as requested by the respondent husband. She is unsure where she will secure a new home. She seeks an expansive order that the children’s residence be permitted within the Regional Municipality of Niagara or the Hamilton-Wentworth Region.
[43] The respondent husband seeks a restrictive order that the children’s residence remain in the town of Grimsby, or in the alternative within 15 kilometres from Grimsby.
[44] The applicant has not yet looked for another residence to purchase. She works for the Hamilton District School Board.
[45] The respondent husband still works in Toronto and rents a house in Grimsby. I understand that he is concerned that opening the possibility of such a large geographical area could impact on his parenting time and his ability to participate in their extra-curricular activities. In light of the high conflict over parenting time, this is a valid concern.
[46] In a number of respects this request is premature. The applicant wife has not yet begun her search for a new residence.
[47] I note that the parties had previously lived in Stoney Creek and recognize that the respondent husband has a commute to Toronto when he is not working remotely. Since separation the respondent husband lived for a time with his girlfriend in Stoney Creek while still maintaining contact with his children.
[48] The applicant wife wishes to remain in the general area of Grimsby. She believes that it is in the children’s best interests. It is uncertain where she will be able to locate her next residence, particularly in light of the current real estate market. The court and the respondent husband must grant her some increased flexibility in this regard. A reasonable range of 50 kilometers would still preserve the respondent husband’s parenting time and involvement with his children.
[49] Accordingly, I accept the wording of an order as proposed by the respondent husband that the children’s residence will not be moved beyond 50 kilometres from the town of Grimsby, unless the respondent consents or there is a further court order.
[50] The respondent husband further sought an order that the children's school not be changed.
[51] The applicant wife has been granted sole decision-making authority and will choose a school in the best interests of the children. The respondent husband wishes the matrimonial home sold and it is uncertain where the next residence will be. The school may necessarily have to change depending on where the applicant wife is able to secure a new home.
[52] Accordingly, I deny the respondent husband’s request to not change the children’s school.
LISTING THE MATRIMONIAL HOME FOR SALE
[53] The applicant wife requests an order for exclusive possession of the matrimonial home to allow the children to complete their school year.
[54] The respondent husband consents to her remaining in the home to complete the children’s school year.
[55] The applicant wife consents to the respondent husband’s request to have the jointly held matrimonial home listed for sale but proposes that it not be listed for sale until June 30, 2022.
[56] The respondent husband proposes that the home be listed by March 1, 2022 with a closing date to be no earlier than June 30, 2022.
[57] The applicant wife has now had possession of the home for nearly five years. She agreed that she intended to move the children to their new home during the summer vacation months. It makes sense therefore to list the home earlier, such that both parties have the advantage of the spring market for other purchasers who would also be seeking to move their children during the summer vacation.
[58] Accordingly, I order the house to be listed as of March 1, 2022, with a closing date no earlier than June 30, 2022, unless both parties consent.
OTHER ORDERS
[59] Counsel for each party came to agreements on a number of matters and provided draft orders.
[60] The orders provided do not make it clear if there is consent on some matters, or require different wording, or if submissions are required. On a number of orders requested I heard no evidence.
[61] I refer to the applicant wife’s draft order at paragraphs 13, 14, 15, 17, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 41, 44, and 45.
[62] I also refer to the respondent husband’s draft order at paragraphs 21, 22, 23, 24, 25, 26, 27, 28, 30, 31, and 33.
[63] If the parties are unable to agree on the wording of these additional orders they may contact the trial coordinator to arrange a 9:00 a.m. conference call with myself to determine what is required. This is to be arranged sometime before February 28, 2022.
DISPOSITION OF SALE PROCEEDS ON SALE OF MATRIMONIAL HOME
[64] The respondent husband seeks an order for occupation rent for roughly five years less the carrying costs which the applicant wife has paid for mortgage, taxes and insurance.
[65] The applicant wife asks the court to deny the claim for occupation rent and further to make an order for an unequal division of net family property, on the basis that an equal division of the proceeds of sale would be unconscionable.
[66] Specifically, the applicant seeks an order that the increase in value of the property from November 2017 not be shared with the respondent.
Evidence Relevant to Disposition of Sale Proceeds
Settlement Discussions
[67] In the summer and fall of 2017 there had been negotiations between counsel and a settlement agreement to settle all issues had been drafted but not signed.
[68] It is not clear to the court the extent of the settlement discussions which had been concluded or whether they had been concluded.
[69] Part of the discussions had been to allow the applicant wife to purchase the respondent husband’s interest in the matrimonial home, based on an appraised value of the property being $683,000. The appraisal had been obtained by the applicant.
[70] The matter did not resolve because, as the applicant testified, the respondent wanted more money for the property. The respondent also decided that he wanted equal parenting of the children.
[71] Thereafter, in negotiations the respondent husband continued to seek shared parenting and made a number of proposals for the applicant wife to buy out his property interest, if she agreed to shared parenting.
Carrying Costs
[72] Since May 2017 the applicant wife has paid the mortgage, taxes and insurance on the joint property.
[73] From May 1, 2017 to December 1, 2021 is a period of 56 months, which I use for illustrative purposes in this matter.
[74] The mortgage of $1,569/month totals $87,864 for that period. The applicant wife paid taxes as follows:
2017 $3,142
2018 $5,555
2019 $6,267
2020 $6,362
2021 $6,362
Total $27,250
[75] The insurance payments were $95/month which totals $5,320 for that period. The applicant wife provided evidence of a roof repair which she paid in the amount of $452.
[76] The total carrying costs were therefore $120,886 for the 56 month period.
Child Support
[77] But for a modest shortfall which was corrected at trial, the respondent husband has paid guideline child support for the 56 month time period as follows:
2017 (8 months) x $1,197 = $ 9,576
2018 $1,258 = $15,096
2019 $1,260 = $15,120
2020 $1,266 = $15,192
2021 $1,266 = $15,192
Total $70,176
Other Rental Accommodation
[78] During the time that the applicant wife has occupied the home, the respondent husband has paid for rental accommodation in Toronto and later for a condo in Grimsby of approximately $1,650 per month.
[79] For the 56 month period this is approximately $92,400.
[80] I state approximately because his financial statement of September 2, 2021 and his trial evidence was that he had purchased a property on Main Street West, Grimsby, and was paying mortgage and taxes of $1,916/month.
[81] This was proven to be false as the registered owner of Main Street West confirmed that the respondent was a “tenant”.
[82] I conclude for my analysis that the rent he is currently paying for this house is at least $1,650 as he had previously stated.
Home Equity Line of Credit
[83] The respondent husband also serviced the interest on the joint line of credit. In 2017 this was $160/month and the respondent testified that it is currently $220/month.
[84] Using the mid-point of $190/month for the 56 month period I find that the respondent husband paid out approximately $10,640. I note that in the resolution at trial the parties worked out what the applicant owed him on these payments. The amount however speaks to some carrying costs which the respondent husband took on during the period.
Appraised Value of the Matrimonial Home
[85] The applicant wife’s appraisal in 2017 was a value of $683,000. Subsequent appraisals prepared by each party showed a steady rise in value such that the 2021 appraisal found a value of $1,060,000.
[86] This is an increase in appraised value of $377,000 or approximately 47 percent.
Reduction in Mortgage Debt
[87] The payments made by the applicant wife reduced the mortgage debt from $328,165 in 2017 to $288,979 in 2021.
[88] This reduction of about $8,708/annum for a total of $39,186 is approximately 12 percent over the 56 month time period.
Financial Means
[89] For most of this time frame the applicant wife has been the higher wage earner:
Year Applicant Wife Respondent Husband
2017 $ 66,496 $79,042
2018 $ 98,953 $83,192
2019 $104,652 $83,305
2020 $102,551 $83,734
[90] Since the fall of 2019, roughly three years, the applicant wife’s boyfriend has resided in the home although he has not paid rent. He earns approximately $60,000/annum.
Potential Rental of the Matrimonial Home
[91] The respondent husband produced expert evidence as to what the property would currently rent for. His evidence was that, looking at comparables, it would rent for a range of $3,000 to $3,200/month.
[92] The applicant wife submitted that this evidence not be relied upon because the expert had not physically viewed the property. He had however viewed the property in 2015. There is no evidence that the property had deteriorated in some way in the meantime. I am satisfied that his evidence, based on comparables, was sufficiently reliable.
[93] I am prepared to accept that in 2021 the potential rental value of the property was the mid range of $3,100/month.
[94] I have no evidence of what potential rent was in prior years. In light of the property values rising 47 percent, I feel obliged to consider that rentals were much higher in 2021 than they would have been in 2017.
[95] If rentals rose roughly 10 percent each year, as property values have risen, the rental potential would be approximately as follows:
2017 $2,100 x 8 months = $16,800
2018 $2,310 x 12 months = $27,720
2019 $2,510 x 12 months = $30,492
2020 $2,795 x 12 months = $33,540
2021 $3,074 x 12 months = $36,888
Total $145,440
Analysis of Occupation Rent and Carrying Costs
[96] Occupation rent, as claimed by the respondent husband, is an equitable remedy and up to the discretion of the court.
[97] The potential occupation rent claim of $145,440 divided by two comes to $72,720.
[98] This would have to be set off by the carrying costs of $120,886 divided by two of $60,443.
[99] The modest net claim of $12,277 must be viewed in light of all the circumstances as follows:
• the respondent wanted his children to continue to attend the same nearby school;
• the respondent acquiesced in the applicant wife continuing to reside in the home, not bringing a motion for partition and sale until just prior to the initial trial date;
• the respondent made a number of proposals to allow the applicant wife to purchase his interest and remain in the home, which encouraged her to stay;
• the carrying costs are nearly as much as potential occupation rent;
• there would be additional expenses and losses involved in renting a property which would lessen the potential rental profit.
[100] In these circumstances, in my discretion, I deny the respondent husband his net claim of $12,277 in occupation rent.
[101] The applicant wife had submitted that there be no consideration for the occupation rent claim of the husband. I consider this unreasonable in light of the following:
• the applicant wife was seeking exclusive possession during this time;
• the respondent husband has not had his equity in the home in the meantime;
• the applicant wife had a comfortable income and was receiving proper child support from the respondent husband during this time;
• a consideration of the potential occupation rent claim is material to the applicant wife’s submission that because she paid the carrying costs that she should get an unequal division of the post-separation increase in value of the property.
Claim for Unequal Division of Net Family Property
Submissions of the Applicant Wife on Unconscionability
[102] The applicant wife seeks an unequal division of net family property pursuant to s. 5(6) of the Family Law Act, R.S.O. 1990, c. F.3
[103] The unequal division sought is specifically the increase in value of the matrimonial home since November 2017 to be denied to the respondent husband. She submits that it is an unjust result for the respondent husband to share in the post-separation increase in value of the property, on the basis that
(a) he did not contribute to the carrying costs;
(b) his behaviour has been unconscionable.
(A) Analysis of the Unequal Division Based on Carrying Costs
[104] The applicant wife submitted that as she paid the carrying costs without contribution from the respondent husband that he should not benefit from the “windfall” of the remarkable increase in the property’s value.
[105] In light of my finding that the potential occupation rent would exceed her carrying costs this submission is not persuasive.
[106] The applicant wife sought exclusive possession all this time and the respondent husband has not had his equity from the property. Had it been sold earlier, the respondent husband could have invested elsewhere and benefited from the rise in market prices.
[107] His acquiescence in her remaining in the home must not be used against him in this manner.
[108] The applicant wife has not suffered by remaining in the home while the market increased.
[109] There is no evidence that she did anything more to increase or enhance the value of the property other than to pay the regular carrying costs. There were no renovations or additions that “improved” the property. It was simply market forces that increased the value.
[110] The applicant wife has had the benefit of living in the matrimonial home for nearly five years and should be responsible for the carrying costs associated with it up to the time of sale.
[111] I find no basis for an unequal division based on the respondent wife paying the carrying costs of the matrimonial home.
(B) Submissions on Unconscionable Behaviour
[112] The applicant wife submits a number of examples to show that the respondent husband has demonstrated unconscionable behaviour to justify an unequal division as follows:
• that he resiled on an agreement in 2017 to transfer his interest in the matrimonial home;
• that he refused to return the children during the pandemic and a motion had to be brought before Henderson J. on November 23, 2020;
• that he only accepted the applicant wife’s offer to settle regarding sole decision-making and parenting time four days into trial;
• that he tried to influence their eight year old son to tell the Voice of the Child assessor that the child wanted to spend more time with his father;
• that he improperly used the offer to sell his interest in the matrimonial home as a bargaining chip to obtain a shared parenting order;
• that he attempted to throw a cement slab at the applicant’s car and thereby exposed the children to violence and conflict;
• that he overheld the children contrary to court orders on four occasions in 2021, which necessitated involving the police for the children’s return;
• that he physically and verbally attacked the children’s grandfather in the presence of the children;
• that he took one of the children to see a new dental surgeon without informing the applicant wife who had interim sole custody;
• that he complained to the school board regarding the after school caregiver, which was very distressing to the latter;
• that he tried to move the date for their child’s first Holy Communion without informing the applicant wife;
• that he lied to the court by testifying that he obtained a mortgage, bought a Grimsby house, and had a tenant, when actually he himself was a tenant in the house;
• that he wrote foul, aggressive texts and messages to the applicant wife.
Details of the Behaviour
Settlement Discussions
[113] As noted above, a draft settlement agreement had been prepared to settle all issues but that the respondent husband wanted more for the matrimonial home than proposed by the applicant wife. He also changed his position to shared parenting of the children.
Pandemic Overholding
[114] At the motion, Henderson J. considered that the respondent husband had acted inappropriately and ordered costs against him of $8,096.
Late Resolution of Parenting Issues
[115] It was after two and a half days of the applicant wife’s testifying in-chief that the respondent husband accepted the parenting provisions of the applicant wife’s offer. These were based on the OCL’s recommendations of February 2020.
Voice of the Child Report
[116] The report of September 5, 2021 concludes as follows:
C’s” [child’s] statements appeared to be his own through much of both of his interviews but there is some concern that his statements about equal time sharing have been influenced by his father. “C” spoke of his father telling him to advise this clinician that equal time is best and that his father expressed disappointment when he shared that he had told this clinician that he wanted more time with his mother.
[117] As the parenting issues had settled, the court did not hear any evidence from the father on this issue as to what he may have discussed with the child.
Bargaining with Offers to Sell his Interest If Shared Parenting
[118] The applicant wife points to the respondent husband’s text of April 30, 2021 as evidence of his “unconscionable, threatening behaviour” as follows:
And to think in 2017 you could have had the house at 630 buyout. In December 2019 you could have had the buyout at 730. Then even at the July 2020 settlement conference you could have had it for like 750 buyout. All I have been asking is for one more day a week, Thursday’s,[sic] based on my most recent parenting plan which would equal a proper shared parenting plan that is great for the boys. We are literally off by only one day a week based on our proposals and you’re refusing that. I would really like you to think about all of this and the impact if this goes to trial. House gets listed and sold if it goes to trial. I’ve offered a dozen times to meet and discuss settlement. My lawyer asked your lawyer several times and she doesn’t even respond. So at this stage there is only one questions [sic] I have: are you willing to discuss settlement and do a shared parenting plan based on my proposal?[Emphasis in the original]
Violence with A Cement Slab
[119] In July 2018, the respondent husband attended to pick up the children for his parenting time. The applicant wife demanded of the respondent husband as to where the parenting time would be spent. He refused to tell her where he would be taking the children on his time. The applicant wife then refused to open her car so he could not get the car seats.
[120] The respondent husband responded by picking up a cement slab and threatening to smash her car, if she did not provide the car seats. This occurred in the presence of the children.
Overholding Requiring Police Assistance
[121] On four occasions in 2021 the respondent husband did not return the children as scheduled in accordance with court orders.
[122] The applicant wife had to call police to speak to the respondent husband to enforce the parenting times.
Attack on the Children’s Grandfather
[123] In September 2019 the applicant wife decided to suspend the respondent husband’s Wednesday night parenting time. She arranged for the children’s grandfather to pick up the children from school and take them to a park.
[124] When they returned home the respondent husband was there wanting to take the children for his parenting time. The exchange between the two men was on videotape.
[125] The two men exchanged angry, foul words. The video showed them tussling over the possession of a child’s backpack. The grandfather fell down. The respondent offered a hand to help him up several times. The grandfather spurned his help and swore at the respondent husband. The children observed all of the exchange and were crying.
[126] Later that month the respondent husband’s Wednesday night parenting time was court ordered to continue.
Other Behaviour
[127] It is clear on the evidence that the respondent husband took one child to a new dental surgeon and tried to rearrange one child’s first Holy Communion. He did so behind the respondent wife’s back, without discussion.
[128] He reported the daycare provider to the school board and upset her. Again, as the parenting issues resolved mid-trial, the court did not hear evidence as to his explanation of such behaviour.
[129] His foul and angry texts were in evidence. He accused the applicant wife of being a “bad mother” for keeping the children from him.
[130] It is also clear on the evidence that the respondent husband lied to this court about owning a house, rather than renting the house. At best, he had an arrangement with the current owner to buy the house in the future.
The Law
[131] Section 5(6) of the Family Law Act, R.S.O. 1990, c. F.3 states:
The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,
(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;
(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;
(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;
(d) a spouse’s intentional or reckless depletion of his or her net family property;
(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;
(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;
(g) a written agreement between the spouses that is not a domestic contract; or
(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.[emphasis added]
[132] In Serra v Serra, 2009 ONCA 105, at paras. 47-48, the Ontario Court of Appeal made the following comments about the threshold required to justify an unequal division of net family property:
47 In this regard, the threshold of “unconscionability” under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court”: [Citations omitted.]
48 I note, for example, the following comments of Backhouse J. in LeVan, and of Jennings J. in Merklinger:
LeVan, at para. 258:
“Unconscionability” is a much more difficult test to meet than “fairness” and as a result, the courts have only minimal discretion to order anything other than an equal division of family property. Unconscionable conduct has been defined as, among other things, conduct that is harsh and shocking to the conscience, repugnant to anyone’s sense of justice, or shocking to the conscience of the court. (Citations omitted.)
Merklinger, at para 54:
Section 5(6) of the Family Law Act, 1986 permits me to order an unequal allocation of value if to do otherwise would be unconscionable. The legislature deliberately chose to strictly define the severity of the result of the application of s. 5(1) which must pertain before there can be any judicial intervention. The result must be more than hardship, more than unfair, more than inequitable. There are not too many words left in common parlance that can be used to describe a result more severe than unconscionable. (Emphasis added.)
Analysis of the Unequal Division Based on Unconscionable Behaviour
The 2017 Settlement Agreement
[133] Although an agreement had been drafted, the evidence is not at all clear that there was a final agreement between the parties; rather, it was still in negotiations.
[134] There is also an unfairness in making this claim so many years later.
[135] Although the applicant wife claimed in her reply of May 2019 that the respondent husband was unjustly enriched by her paying the carrying costs of the property, this was in response to his claim for occupation rent. The claim for the unequal division by denying him the post-separation share of the property is in her amended application filed August 10, 2021. This is four years after the settlement discussions on which she relies.
[136] Had she given him notice of this claim following the settlement discussions he could have promptly brought a motion for partition and sale early on and obtained equity to invest elsewhere. Instead, he acquiesced in her and the children remaining in the home as she requested. Even when he did bring the motion in November 2020 for partition and sale, the applicant wife opposed the motion as she was seeking exclusive possession for a further period of time.
[137] Even had there been a proposed agreement for the respondent husband to sell his interest for a set price in 2017, I would not find it equitable to order a claim for unequal division to be brought so many years later.
Bargaining with Offers to Sell his Interest
[138] There is no question that these two parties have been in a tug of war over the parenting issues.
[139] In the respondent husband’s text, as cited by the applicant wife, I consider that he is correctly stating the law, that if the matter goes to trial the house is listed for sale. This is what is happening here.
[140] The applicant wife said he was “threatening”. Stating that a joint asset will be sold at trial is not a threat. It is simply advising that he planned to exercise his rights under the law.
[141] The Ontario Court of Appeal in Buttar v. Buttar, 2013 ONCA 517, 116 O.R. (3d) 481, at para. 64 stated, “This court has jealously guarded the rights of joint owners to the best price for jointly owned property.” The court, at para 63, cited Granger J. in Batler v. Batler (1989), 1988 CanLII 4726 (ON SC), 67 O.R. (2d) 355 (H.C.J.), at p. 356 as follows:
A joint tenant is entitled to the highest price for his or her interest which may be more than the appraised value of the property. In today’s real estate market, the appraised value of the property may not reflect the fair market value. The true test of the fair market value is to sell the property in an open market. Unless the parties agree to a transfer of the property at an agreed price, the property should be listed for sale and sold, to ensure that fair market value is obtained.
[142] I find that his offers to sell his interest in the home were a reasonable and fair negotiating tool to “sweeten” his proposals of shared parenting.
[143] The applicant wife submitted that the respondent husband “refused to resolve the property issues and constantly lorded the outstanding parenting issues over the Applicant’s head”.
[144] In light of his right to a fair market price on the property and the applicant wife seeking exclusive possession, it was in fact the applicant wife who was not resolving the property issues.
Overholding Children on Parenting Time
[145] The respondent husband’s inappropriate behaviour in 2020 was already sanctioned by the court order of costs against him.
[146] His defiance of parenting time orders in 2021 requiring police assistance is relevant to parenting issues and potential contempt proceedings which would have their own sanctions. It is bad behaviour but not repugnant behaviour.
Violent Behaviour in the Children’s Presence
[147] I do not find that the respondent husband attacked the children’s grandfather. I consider the two men behaved inappropriately in front of the children but nothing more.
[148] I do accept that the threat of using the cement slab on the car was a violent and frightening action to do in front of children. Such actions are certainly relevant to the parenting issues. It is aggressive, angry behaviour by one parent to another. They are, sadly, common in matrimonial litigation.
[149] I do not find the incident to be relevant to the issue of unequal division of property. It is bad behaviour but is not shocking to the court in the circumstances as described.
Influencing the Voice of the Child
[150] Voice of the Child assessors from the OCL’s office are well familiar with the efforts of many parents who seek to influence a child’s wishes. It is improper. It is common bad behaviour. It does not shock the court.
Late Resolution of Parenting Issues
[151] All the evidence supports that the respondent husband sincerely wished to have equal parenting with his two sons and so he took the matter to trial.
[152] His late acceptance of the applicant wife’s offer to settle these issues is relevant to costs but I fail to see how his actions in insisting the matter be tried can be considered unconscionable behaviour.
[153] The other actions by the respondent husband taking action without informing the respondent wife was improper in the face of her interim custodial order. His rude texts about exchanges and parenting time with the children are highly inappropriate and set bad examples for his children. However, this was a fight over parenting issues and so this bad behaviour does not shock the court.
The Request for Unequal Division
[154] The evidence before the court was, unfortunately, not particularly distinguishable from what is commonly seen in matrimonial trials.
[155] The applicant wife has attempted to use bad character evidence regarding the high conflict parenting dispute to change the equalizing of net family property. Her approach was to characterize the respondent husband as despicable.
[156] There is evidence that he behaved properly at times;
• he agreed to move out after they had discussions about separating and did so within a month;
• he acquiesced in the applicant wife residing in the matrimonial home as she requested;
• he has remained fully employed and paid appropriate child support;
• he paid the interest on the home equity loan;
• he did not push to have an early sale of the jointly owned matrimonial home.
[157] As noted above, I am satisfied that his desire to have a greater parental role in his children’s lives was sincere.
[158] In the course of this litigation, when the applicant wife sought to reduce or limit his parenting time, the court has increased it.
[159] In February 2020 the OCL concluded that “it was evident” that the children enjoyed spending time with their father and increased parenting time was recommended.
[160] Overall, the bad behaviour as described, although inappropriate and capricious, does not pass the exceptionally high threshold of “unconscionability”.
Conduct Unrelated to the Handling of Property
[161] The Court of Appeal in Serra v Serra discussed “fault-based conduct on the part of a spouse” as being one of the bases for relief under s. 5(6). The cases however relate the fault-based conduct to the handling of the property or “economic misconduct”. This is not surprising as the enumerated circumstances listed under s. 5(6) all relate to property.
[162] The court was not provided with any precedent where conduct, unrelated to the handling of property, resulted in an unequal division. An early decision of this court, Snell v. Snell, [1987] O. J. No. 1296 concluded that the only type of conduct that would make an equalization unconscionable is economic misconduct; at page 3 Justice Carter wrote:
It is clear that the only type of conduct that the Court may consider in making an order which provides other than direct equalization is economic misconduct which would make equalizing the net family properties unconscionable. Such economic misconduct must be found within the parameters of Section 5(6) of the Family Law Act. As Jeffery S. Leon and Katherine L. Higgenson comment in an article on "The Developing Concept of Net Family Property" in the Canadian Family Law Quarterly, Volume I p. 250 at p. 260:
The factors considered by the Court in determining whether an equalization payment would be unconscionable should relate exclusively to economic conduct. The property provisions of the [Family Law] Act should not be used to punish the traditional types of marital misconduct. Such conduct has been eliminated under the Divorce Act, 1985 as a relevant factor in determining support. Such conduct is of only limited significance under the support provisions of the [Family Law] Act. In a similar manner, such conduct may no longer be an appropriate consideration in determining property issues on a marriage breakdown.
[163] The applicant wife’s request for unequal division of the post-separation value of the matrimonial home is not warranted on the evidence and is accordingly denied.
[164] Furthermore, I am not satisfied that it is permitted or allowed pursuant to s. 5(6) when the fault-based conduct is unrelated to the property under discussion.
Conclusion on Division of Net Family Property
[165] Accordingly, the equalization payment is to be as stated above. The net proceeds on the sale of the jointly owned matrimonial home are to be divided equally.
COSTS
[166] The parties have until February 28 to advise the court their position with respect to the other orders requested. I will provide a timetable for submissions if I am so advised.
[167] If the parties are unable to resolve costs, the applicant wife may file written submissions on costs by March 15, 2022. The respondent husband may file responding written submissions by March 30 2022. Submissions are not to exceed three pages, plus costs outlines, case law, and any applicable offers. If required, the applicant wife may file reply submissions seven days thereafter.
[168] Such written submissions are to be forwarded to my chambers in St. Catharines at 59 Church Street, St. Catharines, L2R 7N8 or may be emailed to my assistant at St.Catharines.SCJJA@ontario.ca.
[169] Failing receipt of costs submissions, within 60 days of this judgment, the issue of costs will be considered settled and the file closed.
M. J. Donohue J.
Released: January 28, 2022
COURT FILE NO.: 28/19
DATE: 2022-01-28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tiffany Leigh D’Amico
Applicant
– and –
Anthony D’Amico
Respondent
REASONS FOR JUDGMENT
M. J. Donohue J.
Released: January 28, 2022