BACKGROUND
The Applicant Mother and the Respondent Father were married in 2001 and separated in 2022. The parties had two children, with only one remaining a dependent at the time of trial. After the parties’ house burned down in 2019, the Respondent Father stopped working and did not resume employment until after the separation. The parties had started their own business together and founded an escape room. The business closed down during the COVID-19 pandemic and was never re-opened.
Before they closed down, the business was granted a $60,000 pandemic loan from the government. In 2022, the Respondent Father was arrested for assault and uttering threats agaisnt the Applicant Mother and his daughter. He pled guilty and was removed from the matrimonial home and subject to a no-contact order wherein he could not return to the house. The Applicant Mother sought unequal division of net family properties, and to impute income to the Respondent Father for the purposes of child and spousal support. The Respondent Father in turn claimed occupation rent.
ISSUES
- Should there be an unequal division of net family properties?
- Was the pandemic loan a “family loan” such that it should be apportioned equally between the parties for the purposes of equalization?
- Should the Respondent Father be granted occupation rent even though he was removed from the home due to his own criminal activity?
- What income, if any, should be imputed to the Respondent Father for the purposes of child and spousal support?
ANALYSIS
Unequal Division of Net Family Properties
Regarding the Applicant Mother’s claim for unequal division of net family properties, the Court ruled that she did not advance enough evidence to show that it would be unconscionable should equalization occur. There was no evidence that the Respondent Father had recklessly or irresponsibly incurred family debts, nor that he had gambling issues. The Applicant mother’s argument that the insurance funds received after the house had burned down “had to have gone somewhere” was not sufficient. Nor was pointing to a handful of gaming and electronic equipment the Respondent Father owned as proof that he recklessly used said insurance funds.
The Pandemic Loan as a “Family Debt”
Regarding the pandemic CERB loan that was still outstanding- it was the business that applied for the loan rather than either of the parties’ individually. The Court looked to the fact that the Applicant Mother ran the business while the Respondent Father was the only worker there during the pandemic to determine the debt was a “family debt”. Both had made contributions to the business, and both hopes that the business would eventually become successful. The debt could not be meaningfully assigned to one or the other party alone.
Partition and Sale of the Matrimonial Home and Occupation Rent
The Court ordered that the matrimonial home be sold as the parties could not agree to a buy-out settlement, nor is there is a legal mechanism to force either party to agree to the like.
The Court also denied the Respondent Father’s claim for occupation rent. Though he was excluded from the matrimonial home, it was not done unjustly. Rather, the Respondent Father was the author of his own misfortune, as it was his criminal actions, to which he pled guilty, that were the reason he was removed from the home. Further, it would not achieve fairness between the parties to order occupation rent, given that the Respondent Father did not make child support payments nor contribute to the carrying costs of the home after he was removed from it.
Imputation of Income and Support
The Court imputed minimum wage to the Respondent Father for the period where he was subject to judicial interim release. He had not provided evidence that he could not find such work due to his release conditions during the three years post-release where he was unemployed. The Court accepted that the job he obtained after at $52,000 per year represent his full-earning capacity and declined to impute income thereafter. The total retroactive child support owing for one child would then be paid out of the Respondent Father’s share of the proceeds of sale of the matrimonial home.
It was also determined that the Applicant Mother was entitled to compensatory spousal support given her primary caregiving role for the children during their early lives. However, given the large amount of child support payable by the Respondent Father, the court ordered that he could not afford to also pay spousal support.
CONCLUSION
The Court ordered there would be $13,212 in retroactive child support and $479 per month in ongoing child support for the remaining dependent child of the marriage. Further, there would be no spousal support payable by the Respondent Father, despite the Applicant Mother’s entitlement. The matrimonial home was also to be listed for sale within 30 days of the Court Order.