Barbieri v. Vistoli

CITATION: Barbieri v. Vistoli, 2019 ONSC 6385

                                                                   COURT FILE NO.: FS-18-4347

DATE: 20191104

SUPERIOR COURT OF JUSTICE - ONTARIO

RE:                 Antonio Conorado Barbieri

                       AND:

                       Karin Joanne Vistoli

BEFORE:      J.T. Akbarali J.

COUNSEL:   John P. Schuman and Katelyn Bell for the Applicant

                      L.A. Silverberg for the Respondent 

HEARD:        October 24, 2019

ENDORSEMENT

Overview

[1]               The parties to this matrimonial litigation married on October 21, 2012. They separated on October 31, 2017, according to the respondent wife, or on January 1, 2018, according to the applicant husband.

[2]               At the time the parties’ married, the applicant wife had two young sons from her first marriage. SL was born in August 2005, and LD was born in December 2007. Together the parties had a daughter, LI, born August 2012.

[3]               Each party brings a long motion. In his Notice of Motion, the husband seeks an order for expanded parenting time with LI, the listing and sale of the parties’ jointly owned matrimonial home on Lynnhaven Road, Toronto, the listing and sale of the parties’ jointly owned cottage[1] in Tiny, Ontario, a declaration that the wife has no beneficial or equitable interest in a corporation known as TCB Homes LLC, an an order prohibiting the wife from seeking further relief before the court until she complies with her obligation to pay a costs order and provides disclosure, and costs. 

[4]               The wife’s notice of motion seeks an order for temporary custody of SL, LD and LI, a temporary order for child support in the amount of $3,500 monthly, an order for temporary exclusive possession of the matrimonial home, an order dispensing with the husband’s signature on the documentation required to renew the current mortgage on the matrimonial home with Haventree Bank subject to certain conditions, an order requiring the husband to pay 50% of the monthly mortgage payments in addition to child support and s. 7 expenses until trial, and costs.

The Wife’s Request for an Adjournment

[5]               At the outset of the hearing, the wife sought an adjournment of the property-related issues. The evidence establishes that the mortgage on the matrimonial home on Lynnhaven is in default, and the mortgagee has issued a Notice of Sale and commenced proceedings to take possession and sell the property. The wife was served with the proceedings and delivered a Notice of Intent to Defend. The wife’s counsel advises that he has been instructed not to defend the proceeding further, and that the wife does not intend to file a Statement of Defence. The husband’s counsel advises that the husband has only recently been properly served, such that the mortgagee cannot yet proceed to the next steps in the action. However, the husband does not intend to defend the proceeding. The parties have placed the Statement of Claim and the wife’s Notice of Intent to Defend in the record before me. The rest of the information I received about the status of the enforcement of the mortgagee’s remedies was not evidence, but merely submissions of counsel.

[6]               In support of her request for an adjournment, the wife delivered an affidavit in which she deposes that she has secured a commitment to refinance another property she owns, which will close in November 2019. She states that she can use the proceeds of this refinancing to pay the mortgage arrears. She sought to adjourn the property portion of the motion until after her refinancing closed and the mortgage on Lynnhaven was brought back into good standing.

[7]               The husband resisted the adjournment. He noted that, according to the wife’s answers at questioning, her monthly income, which she states was $5,536.25 in 2017, has gone down.  The mortgage payments on the matrimonial home alone are $3,437 monthly. In addition, if the wife refinances her other property, she will have obligations to pay that mortgage. The parties have obligations with respect to a line of credit on the cottage. SL and LD attend private schools. In addition, the wife has the normal expenses of daily living. The husband states she cannot afford to maintain the mortgages.

[8]               The wife’s plan is that the husband should pay his share of the housing expenses and child support of $3,500 monthly; with his support she states her obligations will be affordable. However, the husband argues that he has no income, and he has no realistic ability to earn an income.  He states that his lack of ability to earn an income was caused by the wife, who fired him from a position with her company, and who is interfering with his ability to operate his business, TCB Homes. The wife disputes the husband’s characterization of events.

[9]               The husband argues that because the parties cannot afford the house, they are better off to sell it themselves, rather than allowing the mortgagee to do it, because they can maximize the value they will receive.

[10]           At the hearing of the motion I declined to grant the adjournment with reasons to follow. These are those reasons.

[11]           I did not grant the adjournment because doing so would have served no purpose. The wife’s plans to bring the mortgage in good standing are in evidence. The issue about what to do with the house must be determined on the merits, but the analysis of what to do with the house is not dependent on closing the wife’s refinancing. I must evaluate the merits of the parties’ positions on the property questions to determine what to do.  I am in as good a position to do that now as I would be after the closing of the refinancing of the wife’s other property.

The Issues for Determination

[12]           The following issues must be determined on this motion:

a.       Should an order be made granting the husband more parenting time with LI, and if so, on what schedule?

b.      Should an order be made granting the wife temporary sole custody of SL, LD, and LI?

c.       Should an order be made for child support? This requires considering the husband’s income and determining how many children child support should be paid for.

d.      Should the parties’ matrimonial home on Lynnhaven and/or the cottage in Tiny, Ontario be ordered sold? 

e.       If the matrimonial home and/or the cottage is sold, what should happen to the proceeds of sale?

f.       If the matrimonial home is not ordered sold, should I order that the husband’s signature is not required to renew the mortgage?

g.      If the matrimonial home is not ordered sold, should I order the husband to contribute 50% of the maintenance costs of the home?

[13]           As I have already noted, the husband’s Notice of Motion sought an order declaring that the wife has no equitable interest in TCB Homes LLC, which is the corporate entity through which the husband has operated a business flipping homes in Arizona. This is a request for final relief.

[14]           In her materials, the wife also claims a legal interest in TCB Homes. In oral submissions, her counsel clarified that she seeks no more than 50% of the corporation based on her claim to an equitable or legal interest in it. Given that she was not seeking an interest of more than 50%, the husband stated that it was not necessary to deal with his request for declaratory relief, since, in his view, without the wife asserting a greater than 50% ownership interest in TCB, there should be no impediment to an order equally distributing the proceeds of sale of the matrimonial home or the cottage, if either or both are ordered sold. Accordingly, I will not address the question of the wife’s equitable ownership of the company, which is, in any event, a triable issue. 

[15]           Nor did the husband pursue his relief for an order that the wife not be entitled to further relief from the court. The costs order that was unpaid appears to have now been satisfied. In their materials, each party claimed the other has failed to meet their disclosure obligations, however, the issue was not raised before me, so I do not address it in these reasons.

[16]           Similarly, although the wife sought an order for exclusive possession of the matrimonial home in her notice of motion, she made no written or oral submissions on the argument, which appears to have been abandoned. I thus do not consider that issue in these reasons either.

[17]           I turn now to the analysis of the live issues on the motion.

Parenting Time

OCL Referral

[18]           At the hearing of the motion, the parties advised me that, in the past, two referrals had been made to the Office of the Children’s Lawyer. A referral was made seeking a Voice of the Child Report at a time when LI was not yet seven. Not surprisingly, that request was refused, since Voice of the Child Reports are only available where the children are at least seven years of age. A second referral for a s. 112 report was also refused. 

[19]           With the consent of the parties, I made a further referral to the Office of the Children’s Lawyer to seek a Voice of the Child Report, now that LI is seven years old. If the referral is accepted, the report may be of assistance to a court making final determinations related to parenting. However, on this motion for temporary relief, I am without such assistance.

The Parties’ Positions on Parenting Time

[20]           As a result of a motion heard in October 2018, the husband currently has parenting time with LI once during the week and overnight parenting time once per month. The husband seeks an order that he shall be entitled to have parenting time with LI overnight on Tuesdays and Thursdays after school until drop off at school the next morning, and on alternating weekends from Friday after school until Sunday at 5 p.m.

[21]           The wife argues that the husband’s parenting time was dealt with on a temporary basis by Paisley J. at the motion heard in October 2018. She expresses concern that the husband seeks parenting time only with LI; she is worried about the impact of what she characterizes as the husband’s abandonment of SL and LD, and their feelings if the husband spends time with LI only. However, the husband points out that the wife acknowledged during questioning that whatever the past relationship between him and SL and LD (a matter very much in dispute between the parties), SL and LD have no relationship with the husband now.  

[22]           The wife also states that the father sleeps with LI, and she is concerned that this is not appropriate. For his part, the father denies sleeping with LI regularly. He states she has her own bed. On occasion, he has, on LI’s request, laid down with her while she falls asleep and has drifted  to sleep himself. 

 

The Legal Framework

[23]           Where, as here, the parties are married, orders for custody and access may be made under s. 16 of the Divorce Act, R.S.C. 1985, c. 3, 2nd Supp. Subsection (1) provides the court with jurisdiction to make an order respecting custody of or the access to any or all children of the marriage. Subsection (2) provides for interim orders of custody or access. 

[24]           By subsection (8), the court is directed to consider “only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child” when making an order for custody or access. 

[25]           Subsection (9) prohibits the court from considering the past conduct of any person unless it is relevant to the ability of that person to act as a parent of a child.

[26]           Subsection (10) codifies the principle of maximum contact. It requires the court to “give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact”.

[27]           Section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, sets out a framework for determinations of custody and access.  Although not the applicable statutory provision in this case, s. 24(2) is instructive because it assists in identifying factors relevant to the children’s needs and circumstances. It provides that an application for custody of, or access to, a child shall be determined on the basis of the best interests of the child, and describes factors that must be considered in determining the child’s best interests:

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person for custody of or access to the child to act as a parent; and;

(h) any familial relationship between the child and each person who is a party to the application. 

[28]           Before turning to an analysis of these factors, I must address the existing order. As I noted above, the wife argues that temporary parenting was already addressed by Paisley J. in October 2018. She states there has been no material change since that time, and the order should not be revisited.

What is the Effect of Paisley J.’s Order Regarding Parenting Time?

[29]           In October 2018, the husband brought a motion seeking unsupervised overnight parenting time with LI. At that time, he had not exercised any overnight parenting time with LI since separation.

[30]           Paisley J. noted that there is a dispute between the parties as to whether the husband stands in the place of a parent towards SL and LD. He also noted that the wife made allegations that the husband uses or sells illicit drugs. The husband acknowledged minor use of recreational drugs and stated the wife uses drugs recreationally as well. Paisley J. noted that the wife’s allegations were supported by inadmissible evidence, and that there was no evidence relating her allegations of drug use to the husband’s ability to parent. 

[31]           At the motion before Paisley J. the wife’s position was that she was willing to increase access gradually to include overnight access, and that daytime access should include SL and LD if they wished.

[32]           Paisley J. noted that the husband resided with his mother and that the husband was proposing overnight access in her home. Paisley J. expressed concern that the husband’s mother would find overnight access difficult, as she was 81 years old and required the use of oxygen. 

[33]           Paisley J. held that he was “unable to make a decision on the evidence before [him] that should bind the parties until trial”. However, he was satisfied that overnight access should not be denied. On a temporary basis he ordered that the husband may have access with LI “on at least one weekend overnight per month”. He also noted that the parties had agreed to other mid-week access. He stated “[t]he parties are encouraged to share reasonable and generous access”.

[34]           Paisley J.’s reasons reflect his own view that, at the time he heard the motion, he did not have adequate evidence to make a parenting order that should last until trial. The reasons contemplate a further interim order being made before trial. I note that there is no suggestion that trial is imminent; accordingly, the result of the motion before me will impact parenting arrangements for a meaningful period of time.

[35]           I also note that Paisley J. was very concerned with the effect of the husband’s overnight parenting time on the husband’s mother given her age and health. The evidence before me discloses that the husband’s mother died last spring. Accordingly, the concern that appears to have prompted Paisley J. to limit the husband’s overnight parenting time no longer exists. Given Paisley J.’s reasons, I am not convinced that a material change would be necessary to reconsider interim parenting time, but if it were, in my view, the death of the husband’s mother would be such a material change. It is thus appropriate to consider the husband’s request for more parenting time with LI.

What parenting time order is in the children’s best interests?

[36]           In my view, the husband’s request for expanded parenting time with LI should be granted, because it is in her best interest. I reach this conclusion for the reasons that follow.

[37]           I am satisfied on the evidence that LI has a close and loving relationship with the husband. I accept that the husband was an involved parent in LI’s life prior to the parties’ separation. In my view, his current parenting time with LI is inadequate, and inconsistent with the principle of maximum contact set out in s. 16(10) of the Divorce Act. LI has been deprived of having her father involved in a significant way in her life since the parties’ separation. 

[38]           Although there is no evidence of LI’s views and preferences, I accept the husband’s evidence that LI does not want her visits with her father to end.

[39]           I accept that the husband has an appropriate plan for LI. He lives close to her school, and he can ensure that she gets to and from school at the appropriate time. 

[40]           I also accept that the husband has the ability and willingness to provide LI with guidance and education, and the necessaries of life, and he has the ability to act as a parent. I do not accept the wife’s criticisms of the husband’s parenting abilities for the reasons I set out below.

[41]           The wife complains that the husband often returns LI late, and that provides LI with no structure, allowing her to sleep when she wants and eat what she wants. The husband states that he is late sometimes, because it is hard to get LI to go home after her brief visits with him. He also states that he feeds her properly and that he can follow a routine. In my view, the wife’s criticisms reflect her inappropriately attempting to exercise control over the husband’s parenting. Additionally, her criticisms show she does not recognize the effect of the husband’s inadequate time with LI on his parenting. When the husband has LI only one overnight a month, on a weekend, it is not hard to understand why she may be up later than the wife would allow. Once the husband’s parenting time is more frequent, he will follow a more structured routine. Both he and LI will adjust to the security that will come with more regular time together, and the husband will be able to adopt a more structured approach to parenting.

[42]           The wife notes the husband’s evidence that he will have to find a new place to live, because his mother’s house, in which he now lives, was willed to his nephews, who intend to occupy it in June 2020. In my view, this is not a reason to conclude that the husband’s plan to care for LI is not adequate. He will need to relocate in the future. He will have to make appropriate plans to do so. But June is still months away and there is no reason to deprive LI of more contact with her father because he has to move next year.

[43]           At the same time, I accept that LI has a close and loving relationship with the wife, and with SL and LD. However, the parenting plan proposed by the husband will not threaten those relationships. 

[44]           The wife raises concern about how SL and LD will feel if the husband takes LI for parenting time, but not them. This concern is consistent with her argument, which I deal with in my analysis of support, that the husband stood in the place of a parent to SL and LD. She argues in favour of a more cautious approach that limits LI’s time with the husband because it may be hurtful to SL or LD to see LI spend time with the husband.

[45]           The wife has adduced no evidence to support that LI spending time with the husband will be detrimental to SL or LD. I appreciate that the OCL has thus far declined to get involved, but the wife has not adduced any evidence to suggest that she has observed any adverse impact on SL or LD when LI spends time alone with the husband now. To the contrary, in her questioning she stated that SL and LD currently have no relationship with the husband. The husband’s evidence makes clear that he has continued to see SL and LD since separation, and he continues to drive them places or assist the wife with their care when needed.  He states that when SL and LD have been asked if they want to join him for dinner, they decline. The evidence does not support a conclusion that either or both SL and LD will suffer if LI’s time with the husband increases.

[46]           SL and LD continue to see their biological father, albeit not often. However, they have some experience with spending time apart from LI as a result of their visits with their biological father, and LI’s visits with the husband. I have no basis to conclude that LI’s relationship with SL and LD will suffer if she spends more time with the husband.

[47]           In my view, LI’s right to spend time with the husband is her stand-alone right, and absent clear and compelling evidence of harm to SL or LD, there is no reason to deny her the time with the husband on speculation that it may be hurtful to SL or LD.

[48]           I am also very concerned that if LI’s time with the husband does not increase, her relationship with him could suffer long-term damage. This is particularly so in view of the wife’s apparent willingness to minimize the husband’s role in LI’s life. For example, in text messages from the wife to the husband that are in evidence, she states:

a.       “She better be home by 730 as the court appointed or I’m cutting off your visitation too…wait see what will happen tonight.. Fucken police squad will come to get her”.

b.      “Don’t worry u will see her less and less  I will make sure of it.!!”

c.       “Go look at yourself and your parenting skills .. loser!!”

[49]           The quotes above are examples of the wife’s disrespectful communication with the husband and her apparently deliberate refusal to facilitate and support LI’s relationship with the husband.

[50]           I am concerned that without a significant increase in the husband’s parenting time, the wife’s efforts to marginalize the husband in LI’s life will succeed.

[51]           I note too that the affidavit evidence that was before Paisley J. included allegations of drug use by each party, and the wife’s allegation that the husband was selling drugs. I share Paisley J.’s concerns about the admissibility of the private investigator’s letter provided by the wife. I am also concerned about the credibility and reliability of the private investigator’s letter. In any case, I note that neither party dwelled on each other’s drug use in the motion before me, and the wife’s affidavit makes reference to the husband’s “past drug use’. I thus conclude that substance abuse is not a current concern of either party, and I do not factor it into my decision-making as a result.

[52]           The increased parenting time sought by the husband is in LI’s best interests to ensure she has the opportunity to enjoy the love and support of her father and build and maintain a strong, healthy relationship with him.

Custody

[53]           The wife seeks an order for temporary sole custody of SL, LD, and LI.

[54]           Very little was said at the motion about the order for custody of SL or LD. In fact, the wife has an order for sole custody of SL and LD arising out of her separation from SL and LD’s biological father. In my view, she seeks an order for custody of SL and LD in this proceeding to bolster her claim that the husband stands in the place of a parent to SL and LD.

[55]           As will be apparent when I turn to my analysis on support, I conclude that whether the husband stands (or stood) in the place of a parent to SL and LD is a triable issue. I see no reason to make an order for custody of SL and LD at this juncture and I decline to do so.

[56]           In terms of whether a custody order should be granted in respect of LI, I have already reviewed much of the relevant evidence in my analysis of the factors relevant to parenting time. While it is apparent that the parties are not communicating well, I am most concerned by the abusive and disrespectful communication from the wife to the husband. I am not prepared to grant the wife an order for temporary sole custody of LI based on her choice to communicate with the husband in this manner.

[57]           I also note that despite the failures of communication between the parties, there have not been any motions before the court seeking to resolve impasses over decisions to be made for LI. Nor are there any major decisions anticipated.

[58]           Moreover, as I noted above, I am very concerned about the wife’s apparent efforts to minimize the role of the husband in LI’s life. An order for sole custody will provide her with more opportunity to sideline the husband. 

[59]           By marginalizing the husband in LI’s life, the wife is not acting in LI’s best interests. Failing to facilitate a relationship between the child and her other parent is a factor that is relevant when making determinations of custody: Reeves v. Reeves, [2001] O.J. No. 308 (S.C.), at para. 38Leggatt v. Leggatt2015 ONSC 4502 (CanLII), at paras. 90-96.

[60]           It is not necessary for me to make any order for custody at all. In my view, no order for temporary custody of LI ought to be granted.

Child Support

[61]           The wife seeks an order for monthly table child support for three children in the amount of $3,500 monthly. It is clear that as LI’s father, the husband has an obligation to support her. The resolution of the child support question requires me to consider the husband’s income, and whether support should be paid for one child or, as the wife argues, three.

The Husband’s Income

[62]            The wife seeks to impute income to the husband in the amount of $234,500. This amount is based on an August 23, 2016 letter written on TCB Homes’ letterhead, in which the husband confirms that the company had estimated revenue of $550,000 USD and gross profit of approximately $350,000 USD in 2016. The wife claims half of that gross profit for herself, based on her claim to half ownership of the company. As a result, she states that half that amount, which she converts to $234,500 CAD, is the husband’s income on which he should pay support.

[63]           The husband disputes that he can earn an income anywhere near the level claimed by the wife, and states that he cannot operate TCB Homes’ business any longer due to the wife’s actions.

[64]           The evidence in the record establishes that TCB Homes currently owns two properties, but the husband states he cannot sell them for profit and buy new properties to flip, because every time there is money in TCB’s bank account, the wife takes it, or takes a lot of it. The evidence establishes that the wife has helped herself to funds from TCB’s bank account on at least two occasions. The husband says those funds were required to fund TCB’s expenses. The wife states she was entitled to take the funds because she claims ownership of the company. 

[65]           The parties disagree about how the wife has signing authority on the company bank account. The husband states she obtained wrongly, while the wife states she is entitled to it and she has always had it. 

[66]           I heard a motion in this file in November 2018 in which, among other things, the husband sought an order that the wife cause the lis pendens that she had registered against TCB’s Arizona properties to be removed from title. At the same time, I was also dealing with funds from the sale of an Arizona property that were held in escrow in Arizona. The wife sought an order that those funds be released to the parties equally. For the reasons set out in my endorsement I ordered the lis pendens be removed, I declined to make a preservation order and I ordered that the escrow funds be released to TCB: Barbieri v. Vistoli2018 ONSC 7256. I noted in my endorsement that the property issues have a “significant impact on the [husband’s] ability to earn income”, which in turn affected his ability to pay child support or obtain accommodation, which, in view of Paisley J.’s reasons, was relevant to his parenting time with the child. Clearly, I was concerned that the husband’s ability to earn income from TCB be restored.

[67]           Unfortunately, by removing funds from the company unilaterally, the wife continues to impair the husband’s ability to earn income. In effect, he cannot operate the business. She does not appreciate the circumstances she has engineered: by impeding the husband’s ability to earn income, she has played a significant role in generating the financial crisis this family faces. Her solution is that the husband should pay support based on an imputed income that he cannot earn.

[68]           Moreover, even if she is a half-owner of TCB (a claim that has not yet been determined), that does not give her the right to take half the funds of TCB. The corporation has its own legal identity; its bank account is not the same thing as a bank account jointly owned directly by the parties. The wife is ignoring that TCB may have financial obligations or require its funds to operate its business.

[69]           The wife suggests that the husband ought to begin flipping properties through a new corporation, but according to the husband’s evidence, he has no capital to buy property other than the property held by TCB, which he cannot sell for fear the wife will scoop the proceeds. The wife does not allege with any specificity or air of reality that the husband has hidden assets. The idea that the husband can launch a business flipping properties with no capital is unrealistic.

[70]           The wife states that the husband’s earning history includes working at CRA, working as a realtor, working as a currency trader, and working as a qualified mechanic. She states that he worked in sales and administration positions, including at her company. 

[71]           The husband states that since he last worked as a mechanic in 1991, cars have changed radically; he is no longer qualified to do that job. He agrees he worked as a currency trader, but states that he lost money doing it, and in any event, one can’t trade currency without currency to trade, and he has none. He states that he gave up his real estate licence in 2010. He also alleges that the wife fired him from his position with her company; the wife claims that he quit.

[72]           The husband is 49 years old. He states that he has looked for work as an Uber Eats driver, but that he would make only $3 per delivery, which is not enough. He states that he attempted to register as an Uber driver, but his car is too old and was not accepted. 

[73]           The question for me is what the husband’s income for support purposes is.

[74]           When determining whether to impute income to a payor, the court has regard to s. 19 of the Federal Child Support Guidelines, SOR/97-175, which allows the court to impute income to a spouse as it considers appropriate in the circumstances. The circumstances include intentional under-employment or unemployment. 

[75]           In Drygala v. Pauli(2002) 2002 CanLII 41868 (ON CA)61 O.R. (3d) 711 (C.A.), at para. 23, Gillese J.A. set out the questions a court should ask when considering whether a spouse is intentionally under-employed or unemployed:

a.       Is the spouse intentionally under-employed or unemployed?

b.      If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?

c.       If no, what income is appropriately imputed in the circumstances?

[76]           The court also clarified that “intentional” under-employment or unemployment does not require a specific intent to evade child support obligations. There is no requirement of bad faith: Drygala, paras. 25-26, 29

[77]           “Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning”: Drygala, para. 32

[78]           In my view, the husband is intentionally unemployed in the sense described by the court in Drygala. He is not earning what he is capable of earning, despite his obligation to support his child(ren). The unemployment is not required by virtue of his reasonable educational needs.

[79]           The question then becomes what income is appropriately imputed in the circumstances. In determining quantum, the court cannot arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in the evidence: Drygala, para. 44.

[80]           In my view, it is not appropriate to impute $234,500 in income to the husband, especially in view of the wife’s conduct, which has sabotaged his ability to earn income. 

[81]           The husband’s 2018 income tax return discloses net income of $7,139.55 after deductions from gross business income of $25,000. As I understand it, that income relates to TCB, which is now not operating. 

[82]           The husband can earn income from an administrative or sales position like the one he held with the wife’s company. He deposes he earned about $40,000 per year at the wife’s company. In my view, he ought to be able to earn at least that amount in a sales or administrative position. Accordingly, for the purposes of temporary spousal support, I impute an annual income of $40,000 to the husband. However, at trial, the husband’s income may be found to be greater or less than this amount. It is thus appropriate that the parties’ claims to any retroactive child support adjustments be preserved.

Does the husband stand in the place of a parent to SL and LD?

[83]           The wife seeks child support for three children, arguing that the husband stands (or stood, during the marriage) in the place of a parent to SL and LD. The husband disputes this.

[84]           The evidence the parties have filed on the issue is far from complete. The wife notes that SL and LD were very young when the parties married. The boys have limited contact with their biological father, and she states they viewed the husband as a father figure. She includes in her affidavit photographs of the family during the marriage looking happy, and a letter from the husband to the wife from early in the marriage, when the wife was pregnant with LI, in which he expresses his intention to make his relationship with her, and SL and LD, even stronger in the future. 

[85]           The husband states that, whatever the relationship that he had with SL and LD during the marriage, he does not currently stand in the place of a parent. He acknowledges that the Supreme Court of Canada held in Chartier v. Chartier1999 CanLII 707 (SCC)[1999] 1 S.C.R. 242 that the court should look at the relationship between the step-parent and the children during the marriage, because to allow a step-parent to unilaterally withdraw from a parent-child relationship is unacceptable: para. 32. However, he states that Chartier does not address the situation where the breakdown of the parent-child relationship is mutual, or where the child withdraws from the relationship. In such cases, he argues a child can lose standing as a child of the marriage: Ollinger v. Ollinger2006 SKQB 433 (CanLII). He states that in this case, SL and LD have rejected him.

[86]            In my view, this is a triable issue. The wife’s evidence does not discharge her burden of proof to demonstrate that the husband stood in the place of a parent to SL and LD, as opposed to being kind and affectionate to them because they were his partner’s children. Moreover, the record on this motion is not sufficient for me to draw any conclusions as to how any withdrawal from whatever relationship SL and LD had with the husband came about, and whether that should impact on their current status as children of the marriage, assuming they ever were.

[87]           This issue must be determined on a full record at trial. I thus make no order for child support for SL and LD at this time. The wife’s claim to retroactive support for SL and LD is preserved.

[88]           As a result, the husband’s obligation, on a temporary without prejudice basis, is to pay table child support for one child based on an annual income of $40,000. By my calculations, this results in table support of $359 per month.

[89]           The wife also asks for an order that the husband pay his proportionate share of s. 7 expenses. He is of course obliged to do so. However, to determine his proportionate share requires an examination of the wife’s income. In her Divorcemate calculations, she uses income of $66,435 annually for herself. This corresponds to her 2017 monthly income, which she states on questioning has now gone down. At the motion, there was not much focus on the wife’s income, nor on evidence that would allow me to assess it. I note that the husband raises significant questions about whether the wife’s income is higher than she suggests it is. He points to:

a.       the fact that the wife recently bought a Jaguar, but she denied having done so until confronted on questioning with the paperwork, at which time she stated that it was in her name but she didn’t really own it; her friend does.

b.      the wife’s vacations down south, including at a time when the mortgagee was taking active steps to realize its interest in the matrimonial home.

c.       the fact that both SL and LD are enrolled in private schools. The wife states that one of the children requires the private school due to his special needs, and she receives a medical credit that in effect pays for it. Even if so, that does not explain how the other child’s private school tuition is affordable.

d.      the fact that the wife has maintained three nannies. The wife states that is an exaggeration, and that at least one nanny was only an occasional babysitter. She also states that she has discharged all the nannies because she can no longer afford them. However, she states she did so by the end of September 2019, but the husband deposes that he returned LI to the care of one of the nannies in mid-October 2019.

[90]           I am not in a position, on this record, to assess the wife’s income. The husband raises serious questions that require answers before any assessment can properly be made of how much the wife is earning.

[91]           Accordingly, while in principle the husband is responsible for his proportionate share of s. 7 expenses, I have no basis to conclude what the appropriate proportionate sharing of those expenses is, and so I make no order in that regard. To the extent that these issues cannot be resolved between the parties and must be litigated, retroactive claims for contribution to s. 7 expenses are preserved.

Sale of the Properties

[92]           The husband seeks an order for sale of the parties’ two jointly owned properties: the matrimonial home on Lynnhaven and the parties’ cottage in Tiny, Ontario. The wife resists the sale of the properties.

[93]           The wife argues that the husband is not entitled to force the sale of the properties under the Family Law Act, R.S.O. 1990, c. F.3, because the provisions of the Family Law Act dealing with sale are only engaged where ownership of a property is in issue. In this case, there is no dispute that the properties are jointly owned.

[94]           The wife argues that the husband would thus be limited to seeking sale before trial based on the Partition Act, R.S.O. 1990, c. P.4. However, she argues that he has not pleaded the Partition ActShe relies on the Court of Appeal decision in Martin v. Martin, (1992) 1992 CanLII 7402 (ON CA)8 O.R. (3d) 41 (C.A.) to argue that the failure to plead the Partition Act is fatal to his claim.

[95]           The husband has pleaded the Partition Act in his Amended Notice of Motion. The wife states this is insufficient, but I disagree. In Mignella v. Federico2012 ONSC 5696 (CanLII), at para. 21, Price J. noted that the party seeking sale had not pleaded the Partition Act in either his Notice of Motion or his Application; by doing so Price J. implied that pleading the statute in either document would have been sufficient. I agree with this approach.

[96]           The point of pleading a statute is to alert the other party of the basis for the relief one seeks. Here, it comes as no surprise to the wife that the husband seeks sale of the properties. She is not prejudiced by the fact that the statute is pleaded in the Amended Notice of Motion as opposed to in the Application. To defeat the husband’s claim to sale on the basis that he pleaded the statute in the wrong document would be to elevate form over substance and would, in my view, be inconsistent with the primary objective contained in r. 2 of the Family Law Rules O. Reg. 114/99. It would force the husband to seek to amend his Application to plead the Partition Act and then renew his motion for sale, which in turn would cause the parties to incur additional costs and force further court attendances, all in waste of parties’ and the court’s resources. 

[97]           A joint owner of a property has a prima facie right to have the property sold. However, when the property is a matrimonial home, one owner’s right to sell it is subject to any competing right of the other owner under the Family Law Act that would be defeated if the property were sold: Mignella, para. 23Goldman v. Kudeyla2011 ONSC 2718 (CanLII), at para. 17.

[98]           As McGee J. noted in Goldman at para. 19, there have been many cases where the court has denied interim motions for sale. In each, there were compelling circumstances favouring the party resisting the sale, such as the availability of trial in a short period of time, prejudice to the resisting party’s right to an equalization payment, or the need to preserve the residence for a vulnerable spouse or child.

[99]           McGee J. also noted that orders for the sale of the home should not be made as a matter of course. She wrote, at para. 20:

One must always be mindful of the whole of the proceeding and the need to move forward as fairly and expeditiously as possible. At the same time, determinations must have a starting point. The sale of the matrimonial home is often the most appropriate catalyst to effect the equal division of family assets and establish post separation parenting patterns.

[100]       In this case, I have already noted that the wife has not pursued a claim for exclusive possession of the matrimonial home. There is no claim that the matrimonial home or cottage needs to be preserved to meet the needs of a vulnerable child or party. 

[101]       The wife argues that the equalization payment is in question. I note that she has recently amended her claim to add a claim for damages arising out of what she states is the history of the husband having deprived her of her share of the income from TCB.

[102]       As I noted earlier in my discussion about the wife’s request for an adjournment, the husband raises concerns about the wife’s ability to afford the mortgage on the matrimonial home, the debt on the cottage, and the new mortgage she proposes to place on her solely-owned property to bring the mortgage on the matrimonial home into good standing. The wife’s financial plan was that these obligations would be affordable if the husband paid half the carrying costs of the matrimonial home and paid her support in the amount of $3,500 monthly.

[103]       It is apparent that, based on my conclusions of the husband’s income, he cannot contribute to the maintenance of these expenses in the amount sought by the wife, or pay support in the amount sought by the wife. Given the wife’s claimed income of approximately $66,000 (which, she stated on questioning, has gone down), these properties are not affordable. The conclusion that the parties cannot afford the expenses associated with these properties is supported by the significant arrears that have accumulated in the expenses related to the properties.

[104]       In my view, although the eventual separation of the parties’ assets is in question, the matrimonial home and the cottage must be sold. The parties cannot maintain these properties. It is preferable that the parties attempt to sell them before the mortgagee proceeds to do so. I thus direct that the matrimonial home and the cottage in Tiny, Ontario be immediately listed for sale. In my assessment, the sale of the properties will be the catalyst that McGee J. described in her reasons to effect the equal division of family assets.

[105]       However, at this juncture I am not prepared to direct the equal release of the net proceeds of sale. First, there is no motion before me for the release of proceeds. Second, it is premature to attempt to determine the question, as there is no evidence before the court as to the net proceeds of the sale of the homes. Moreover, in addition to equalizing the parties’ net family properties[2], the wife has a claim for damages. The husband has not grappled with her damages claim in this motion. Nor has he considered how the claim for damages should impact the release of proceeds, if it should impact the release of proceeds at all. The answer to that may depend, in part, on the sale price obtained for the homes. In addition, I have no evidence as to any other appropriate adjustments that may be required to be made from the proceeds of sale.

[106]       Accordingly, while I order the immediate listing and sale of the matrimonial home and cottage property, I direct that the net proceeds of sale be held in trust pending the agreement of the parties or further order of the court. The issue with respect to division of proceeds may be brought before the court at an appropriate time and on appropriate evidence.

[107]       In view of my conclusion that the properties must be sold, it is not necessary for me to deal with the wife’s request that the husband pay 50% of the costs of maintaining the matrimonial home or that the husband’s consent to renew the mortgage be dispensed with.

Costs

[108]       The parties agreed that if one of them were entirely successful on this motion, costs in the amount of $19,000 all inclusive would be the appropriate award.

[109]       In my view, the husband is the successful party on this motion. He has obtained the parenting order he sought. He successfully resisted the wife’s claim to table child support for three children based on an income of $234,500; he has instead been ordered to pay table child support for one child based on an income of $40,000. He has succeeded in defeating the wife’s claim for an order for temporary sole custody of LI. He has succeeded in obtaining orders for the sale of the Lynnhaven property and the cottage property. The only thing he has not obtained is an order with respect to what shall happen with the proceeds of sale, which is a matter to be addressed at a later time, and which, in any event, did not form part of the relief sought in his Amended Notice of Motion.

[110]       As a result, based on the parties’ agreement and my assessment of the results of this motion, the wife shall pay the husband $19,000 in costs, all inclusive, within thirty days.

Summary

[111]       In conclusion, I make the following orders:

a.       On a temporary basis, the husband shall be entitled to parenting time with LI as follows:

       i.      Every Tuesday from pick up after school until drop off at school on Wednesday morning;

       ii.      Every Thursday from pick up after school until drop off at school on Friday morning;

       iii.      On alternating weekends from pick up at school on Friday until drop off to the wife’s residence on Sunday at 5 p.m.

b.      The alternating weekend visits shall commence on the second Friday after the release of these reasons.

c.       On a temporary, without prejudice basis, commencing December 1, 2019, the husband shall pay monthly table child support in the amount of $359 for one child based on an income of $40,000. Retroactive claims, including claims for child support for SL and LD, are preserved.

d.      Retroactive and ongoing claims to contributions to s. 7 expenses are preserved.

e.       The parties’ matrimonial home on Lynnhaven shall be listed for sale immediately.

f.       The parties’ cottage in Tiny, Ontario shall be listed for sale immediately.

g.      The net proceeds of sale of the matrimonial home shall be held in trust pending the parties’ agreement or further order of the court.

h.      The net proceeds of sale of the cottage in Tiny, Ontario shall be held in trust pending the parties’ agreement or further order of the court.

i.        The wife shall pay to the husband costs of this motion in the amount of $19,000 all inclusive within thirty days.

[112]       I dismiss the wife’s requests for (i) an order for temporary sole custody of SL, LD and LI, (ii) an order that the husband contribute 50% of the maintenance costs of the matrimonial home, and, (iii) an order that the husband’s consent to renew the mortgage on the matrimonial home be dispensed with. 

 

 

J.T. Akbarali J.

 

Date: November 04, 2019

[1] The husband states that the cottage is a matrimonial home. The wife disagrees. I will refer to it as a cottage in these reasons but am not deciding its status as a matrimonial home.

[2] I am not in a position on this motion to conclude which of the parties will owe an equalization payment to the other.


© John P. Schuman 2012-2019