How Not to Behave After Separation

A recent decision from the Ontario court provides a useful lesson on how not to behave when you’ve decided to separate from your spouse.

In this case, the couple separated in 2006 after 20 years of marriage.  Both were unemployed at the time but had previously held jobs in the computer industry.  They decided to live under the same roof for almost a year, until the husband moved out in August of 2007 while the wife and children were away during the long weekend.  At that point, their children were aged 12, 18 and 19.

The husband did not give the wife any advanced warning – and with the assistance of several friends – he removed a significant amount of furniture and other items from the home they shared.  These items included a dining room set, the master bedroom set, two leather sofas, two coffee tables, a mirror over the fireplace, lamps, a mirror from the washroom, at least two television sets (including the 40-inch one from the family room), the patio furniture, the snow blower, and various kitchen appliances. He also removed the family photos and videos, as well as certain keepsakes belonging to the wife which included a quilt made by her mother who had passed away. The husband’s explanation for removing the last item was that ‘he liked the quilt very much’ and thought it would be ‘safer with him’.

Additionally, the husband broke into a locked closet in the master bedroom that the wife had been occupying alone since the separation, and removed all her financial documents, including bank account records and paperwork relating to properties in Greece that belonged to her extended family.

The wife and children returned from their long weekend away to find their house half empty and it was only after the court issued an initial emergency order that the father eventually returned some, but not all, of the family mementos.

The husband persisted in keeping certain school certificates, birth certificates and some personal possessions belonging to his wife’s deceased mother.  However, the wife applied to the court to have these items returned, as part of a broader application for various relief that included an equalization payment, the division of the net proceeds of the sale of the home, and the determination of who was responsible for paying alleged debts and child support.

The court was decisive.  It ordered the husband to immediately return all family videotapes, birth certificates, school records, and photographs of the deceased mother – and of course the quilt as well.  Since the husband had the opportunity to remove the furniture items he wanted from the matrimonial home, and because the wife did not ask for them back, the court assumed he had whatever personal possessions and household items that were of importance to him, so the court made no further order in that regard.

Turning next to the determination of how child support would be allocated among the parents, the court was equally critical of the husband’s lacklustre attempts at finding employment.  The court wrote:

Mr. Clark provided minimal evidence of the efforts he is taking to obtain employment. He has registered with an employment office in Gatineau and has received five leads. When he has pursued these inquiries – all relating to positions in Quebec – he has been asked if he speaks French. He does not speak French well enough to work in the language, but says he is willing to learn the language. Considering his age and his child support obligations, I do not consider it reasonable for Mr. Clark to focus his employment search only in Gatineau in environments where French, quite understandably, would have to be spoken and it could take Mr. Clark years to become functionally bilingual. Mr. Clark provided no evidence as to why he is not exploring the Ottawa and Eastern Ontario job market. Mr. Clark appears content to collect employment insurance for the time being.

The court noted that the husband was under a legal obligation to obtain suitable alternative employment so that he could contribute to the support of his children and he was to keep the wife informed of his efforts in that regard.  It was not the wife’s responsibility to constantly ask him if there have been any changes.

After considering his education and prospects for employment, the court gave the husband a deadline: if by a specified date the husband’s income from all sources was less than $50,000, the court would nonetheless assume that he was earning that same amount and would calculate child support accordingly.  In other words, the husband would be liable to pay child support based on the assumption that he was earning $50,000, even if he was earning less.

Additionally, in a later proceeding as part of determining the liability of the cost for bringing the matter to court, the court found that the husband’s removal of the wife’s personal possessions should never have occurred, and that he should have returned them without her having to obtain a court order.  After taking all factors into account, the court ordered to pay $5,000 in costs to the wife.