In a recent Superior Court of Justice case dealing with access, the court had to decide how long the children would spend with each parent, whether the matrimonial home could be sold, and what kind of child support and spousal support the parties would receive.

What Happened?

The parties were married in 2008 and separated in 2015. In July 2017, a judge ruled that the parties would have joint custody of the two children of the marriage and that their time-sharing schedule would have to accommodate special events. At that time, the parties chose not to make the schedule final.

The wife was seeking a temporary order setting out the residence times for both parents as well as retroactive and ongoing child support and section 7 expenses. The husband was seeking an order for different residence times, and orders dealing with child support and spousal support. He also asked for the partition and sale of the matrimonial home that was owned by both of them, and for occupation rent.

The wife and husband were in serious conflict. While they were together and for a period after separation, they lived in the same house and co-parented equally. They both had full-time jobs. Following the separation, the wife limited the husband’s time with the children without reason. She made false allegations against the husband (which had been either recanted or dismissed) and the court found that her credibility to be diminished, which is important for arguing her point.

The Decision

Residence

The wife argued that the husband does not live in a desirable area and does not want the kids to spend much time there. The court found that the wife’s refusal to sell the matrimonial home the former couple jointly own impeded the husband’s ability to find a better place.

Both children have special needs. The investigator from the Office of the Children’s Lawyer was of the opinion that seeing their father more often would be beneficial to them. The husband’s lawyer argued that the actions of the wife rose to the level of parental alienation. The court disagreed but did acknowledge that the wife was deliberately limiting the children’s time with their father and that she did not understand how important the husband was to the children.

The court ordered that the children should spend 3 days a week with the father, as opposed to the current one night, in accordance with his work as a security guard.

Partition and Sale of the Matrimonial Home

The couple owned a large home which wife had been living in for two years while the husband rented a small apartment. The wife wanted to stay in the home because it was close to the kids’ school and to her parents. She eventually wanted to buy the husband out once they had determined the equalization payment following the trial.

The court found that partitioning and selling the home would not be malicious, vexatious or oppressive to the wife, and would not prejudice her claims under the Family Law Act. (which is the test to meet to show that the sale of the matrimonial home prior to trial should not occur).

As a result, the court ordered that the home be partitioned and sold, concluding that that with her salary and the proceeds from the sale, the wife would be able to find other suitable housing.

Occupation Rent

Due to the fact that the wife had been living in the jointly owned home, the court held that the wife had to pay the husband $1,000 a month beginning on July 1, 2017.

This number was calculated by looking at how much rent the house could get if it was rented to a third party.

Child Support

The court ordered that the husband pay retroactive child support of the amount of $21,600 which is in accordance with the Child Support Guidelines. This amount would be deducted from the proceeds of the sale of the matrimonial home.

The court further held that going forward, the husband would pay $500 a month in child support. The wife was a school teacher and earned approximately $95,000 a year, while he earned approximately $48,000. Although she earned more than he did, it was not substantially more, and once their home was sold, their living situations would not differ greatly. The children live primarily with the wife and because this was a situation of shared custody, the court was of the opinion that the husband still had a child support obligation, albeit a reduced one.

Section 7 Expenses

The court did not order the husband to pay for the retroactive section 7 expenses.

Such expenses are any that go beyond basic care. This includes extracurricular activities, additional costs for private school, tutoring lessons, etc.

In this case, the court found that the wife had incurred these costs without discussing them with the husband, and therefore the husband should not be responsible for expenses that were incurred without his consent. Going forward, the former couple is to pay for the expenses proportionate to their income. The wife will pay 67% of the expenses and the husband will pay 33%.

Spousal Support

The court found that the husband was not entitled to spousal support. His earnings and capacity to earn money was not affected by the separation. He will not need spousal support as he can support himself. The fact that the wife made more money was not enough for an entitlement.

What We Learned

Child support, spousal support, the sale of the jointly own matrimonial home, and a residence schedule will all be entirely dependent on the circumstances of each case.

Courts have the ability to use guidelines, such as the Child Support Guidelines and alter the amount of child support ordered based on the circumstances of the case. This case is a reflection of how the law treats each case independently and how the parties behaviour throughout the course of the case can have an impact on the orders that are made.

At Borden Family Law, we have been helping clients with their family law needs for over 17 years. In this time we have seen it all. We have the experience and knowledge necessary to help you through any separation or custody issues you may be facing. Call us at 905-597-6090, or contact us online. Ask about our bundled services and flat fees.