P.H.D. v. M.L.D.

2007 BCSC 863 P.H.D. v. M.L.D. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: P.H.D. v. M.L.D., 2007 BCSC 863 Date: 20070614 Docket: E69872 Registry: Kelowna Between: P.H.D. Plaintiff And M.L.D. Defendant Before: The Honourable Mr. Justice Rogers Reasons for Judgment Counsel for the Plaintiff: W.T. Clarke Counsel for the Defendant: C.J. Butler Date and Place of Hearing: June 8, 2007 Kelowna, B.C. Introduction [1] In October 2006, the defendant filed an omnibus notice of motion seeking 20 items of relief. Those items included claims for retroactive and ongoing child and spousal support, early distribution of alleged family assets, sale of the family home with conduct to the defendant, and orders requiring the defendant to make further disclosure of his finances. Interim orders have since been made with respect to child support and the sale of the house. The defendant's claim for, among other things, spousal support was adjourned and has never been dealt with. These Reasons will finally provide the parties with interim answers to the defendant's long-delayed claims. [2] In addition to the defendant's motion, these Reasons will also deal with the plaintiff's motion, filed May 28, 2007, for orders for interim joint custody and guardianship of the party's three children, specified access, exclusive conduct of sale of the family home, relief from payment of tuition at the private school the children attend, and variation of basic child support. [3] It would be fair to say, as an initial observation, that this family litigation has been marked by a high degree of conflict and a profound lack of trust between the plaintiff father and defendant mother. Previous Orders [4] The court has made numerous interim orders. Most of those orders have not yet been entered. Counsel advise that the existing orders may be summarized as follows: - Made at a judicial case conference in November 2005: 1. Section 57 declaration 2. Mutual restraining with respect to assets 3. Children's primary residence with defendant 4. Plaintiff to pay mortgage on family home 5. Plaintiff to pay private school fees 6. Restrict mobility with children to Okanagan Valley, except with consent or seven days' notice if travel is for children's activities 7. Plaintiff to have specified access for that week only - Master's order, March 15, 2006: 1. Plaintiff to pay: (a) Child support - $1,276 (b) House mortgage - $960 (c) Private school fees - $630 2. Plaintiff to pay $1,400 for repairs to defendant vehicle 3. Plaintiff to have reasonable daytime access with children 4. Spousal support application adjourned. - Davies J. on August 1, 2006: 1. Defendant to have access four hours per day August 1st to August 11th 2. Section 15 report to be prepared at plaintiff's expense 3. Plaintiff not to access Web sites in children's presence - Master's order on October 3, 2006 1. Plaintiff to provide various financial disclosures 2. On the defendant's motion, the family home is to be listed for sale with joint conduct of sale 3. Defendant permitted to sell family van and provide accounting Trial [5] This matter has been set for trial several times. The fact that the defendant has gone through three previous counsel and is now on her fourth has not contributed to a timely disposition of the litigation. The case is now set for trial in Kelowna commencing December 3, 2007. At the start of the present hearing, I ordered that the trial date may not be adjourned or altered, except by order of a master or judge of this court. Discussion [6] These are Reasons for interim orders only. I do not propose to accept the parties' invitation to make general findings of credibility. To do so could embarrass the trial judge who, when this matter is tried, may hear much the same evidence but may wish to assess credibility somewhat differently than I would. For the same reason, I will not make findings of fact on various hotly disputed issues. Those issues include, for example, precisely how much income the plaintiff has or could make. [7] The parties' history is not complicated. The plaintiff and defendant are both 39 years old. They married in July 1990. They have three children: J, born December 28, 1998; G, born June 22, 2002; and D, born August 27, 2004. The plaintiff is a control system engineer. The defendant is a homemaker. The parties lived in Utah for a number of years, and in 2005, at the defendant's request, they moved from Utah to Kelowna. [8] In 1991, the parties purchased a house in West Bank near Kelowna. They rented the house to tenants while they lived in the United States. They moved into the house themselves when they came to Canada in 2005. The defendant and the children continued to live in the house after the parties separated in October 2005. The plaintiff rented a house on the opposite side of Kelowna. [9] The two older children are enrolled in a private school and the youngest attends preschool there. The total tuition cost is $591 per month. If the children stay at the private school and the youngest child goes to full-time preschool in 2007-8, their collective tuition will increase to $845 per month. [10] The focus of the plaintiff's motion is access with the children. The focus of the defendant's application is to obtain what she perceives to be a proper level of child and spousal support. [11] The plaintiff's income is a convenient place to begin an analysis of these claims. Plaintiff's Income [12] The plaintiff has enjoyed a relatively steady employment, formerly in Utah and, since 2005, in Kelowna, B.C. During the last few years of the family's life in Utah, the plaintiff's income appears to have been on the order of $100,000 USD. [13] For a period of approximately six months during the latter half of 2005, the plaintiff and defendant operated a closely held corporation called Entro Automation Inc. This was after the family had moved from Utah to B.C. Entro had a contract with a mining concern in Utah and received income from that contract. The services Entro provided to the mining company were performed by the plaintiff. Entro appears to have ceased operation as a going concern in late January 2006 when its contract with the mining company ended. Entro continued to receive payments well into the 2006 calendar year on account of work that it had done for the mining company. [14] According to the plaintiff's affidavits, his sole occupation from 2006 to the present has been as an employee of Metso Minerals Canada Inc. He has deposed that he receives an annual salary of $80,000 CAD. The plaintiff submitted into evidence a working copy of his 2006 income tax return showing his line 150 income at $86,556. In his submissions, the plaintiff's counsel advised that the plaintiff received a bonus in 2006 and that accounts for his income being in excess of the base level. [15] It would be fair to say that the defendant does not accept the plaintiff's evidence that his income is currently limited to $80,000 or $86,500 with bonus. The defendant's affidavits uniformly refer to the plaintiff as having earned $100,000 USD or more during the years that the family lived in Utah. She thinks that he still earns that much today. The defendant refers to Entro's gross income in 2005-6 and insists that every penny of that income was, in fact, income the plaintiff received himself. Accordingly, she says that even after the family moved to B.C. in 2005, the plaintiff's income was still well over $100,000 CAD. The defendant is adamant that the plaintiff is actually earning more than he says from his employment with Metso or that he is receiving income from some other source. She is convinced that his income in 2006 and 2007 is low to mid-$100,000. [16] The defendant is also convinced that the plaintiff has concealed his true financial circumstances from her and from the court. The defendant's affidavits are filled with accusations that the plaintiff has, for example, failed to disclose employment and banking records relating to his U.S. income. Those documents are now in evidence as exhibits to the defendant's affidavits. She obtained the documents with subpoenas issued under the U.S. legal process. It is not at all clear that the plaintiff actually had copies of these materials himself. Accordingly, on the face of this evidence alone, I cannot safely conclude that the plaintiff misconducted himself on disclosure issues. [17] The defendant's invective is not limited to accusations that the plaintiff has failed to disclose financial information. She has gone so far as to accuse him of fabricating information such as bank records (Defendant's Affidavit No. 4 at para. 5(b)) and says that he did so in order to deprive her and the children of a proper level of financial support. [18] The defendant has not offered convincing evidence to support these very serious allegations. Neither has the defendant offered any evidence to support her assertion that the plaintiff's current income is any different than the $80,000 or so that his employment contract with Metso stipulates. [19] On the evidence before me on these applications, the only conclusion I can reasonably come to is that the plaintiff's 2006 income was at least $86,500. Whether he made more than that in 2006 will be for the trial judge to determine. [20] Accordingly, and for the purpose of ruling on the present interim applications, I find that the plaintiff's 2006 income was $86,500 including bonus. It remains to be seen whether the plaintiff will receive a bonus for 2007. [21] The plaintiff's net income after statutory deductions is about $4,550 per month. The plaintiff has described his personal expenses in his Form 89. Those expenses appear to be reasonable. After paying his rent of $1,100, the current child support of $1,276, the family home mortgage of $960, and the children's tuition of $591, the plaintiff is left with something on the order of $600 per month. From that sum, he must buy groceries and the other necessities of life. Child Support [22] The table amount for basic child support for three children and a payor income of $86,500 is $1,651. The plaintiff will, therefore, pay basic child support of $1,651 commencing July 1, 2007. The plaintiff did not argue against that result. [23] I will deal with the plaintiff's claim for retroactive child support later. Spousal Support [24] The defendant did not graduate from high school. She has no post-secondary education. The defendant had some serious health issues in the 1990s which required surgery and a lengthy period of recuperation. The defendant maintains that she is wholly devoted to being a mother to the parties' three children. She has no time, according to her, for employment outside the home. The defendant demands spousal support of a minimum of $35,000 per year (Defendant's Affidavit No. 3 at para. 3). [25] On these facts, the defendant has made out a case for entitlement to spousal support. [26] The question then becomes whether the plaintiff has the means to pay it. If the defendant's estimation of the plaintiff's current income were supported by evidence, and if he were, in fact, earning substantially more than $100,000 per year, then it might be said that the plaintiff has the means to pay spousal support in addition to the other payments he makes. I am not, however, prepared to find on an interim basis that the plaintiff's income is any different than the evidence demonstrates, vis, $86,500 per year. At that income level, and if current payment orders are not changed, I am compelled to conclude that the plaintiff does not have the financial capacity to pay spousal support. [27] During the hearing, the plaintiff submitted that he would be content to pay spousal support if at the same time he were relieved of having to pay the house mortgage and private school tuition. That proposal meets the defendant's desire for the same result (Defendant Affidavit No. 3 at para. 3). [28] The issue of spousal support can, therefore, be easily resolved to the parties' mutual satisfaction. Those portions of the previous Master's orders requiring the plaintiff to pay the house mortgage and the tuition will be set aside and will be replaced with an order that the plaintiff pay the defendant spousal support. The Spousal Support Advisory Guidelines suggest that the range of spousal support for these parties lies between $1,000 and $1,350 per month. Even without reference to the Advisory Guidelines, I would have settled on spousal support of $1,200 per month, and that is the sum I order that the plaintiff pay to the defendant on an interim basis. Section 7 Expenses [29] Having resolved basic child support and spousal support, the court can turn to the parties' obligation to fund the children's special and extraordinary expenses. Private School [30] I have carefully reviewed the affidavits filed by the parties in this matter. I did not find any reference to the particular needs or qualities of the children that can only met by private schooling. Perhaps that is because, shortly after the separation and early in the litigation, the plaintiff agreed to pay the children's private school tuition. The parties' affidavits since then have concentrated on other aspects of their dispute - perhaps the parties simply considered payment of tuition a given and did not spend time on it as they later marshaled their evidence. [31] Nevertheless, the plaintiff says that the tuition payment is a considerable financial burden. His May 2007 motion specifically seeks an order that he be relieved of it. The corollary of granting that relief is that the children would have to enroll in a public school for the 2007-8 school year. The defendant did not respond to the plaintiff's plea, except by vigorously asserting that the plaintiff's income is higher than he says. [32] I am mindful that this is an interim application only. I am also aware that the trial is scheduled for December 3, 2007. It may be that the trial judge will hear convincing evidence that there is something about the children that could justify a need for them to attend a private school, and that the burden of their tuition on the family's resources is outweighed by some benefit they obtain in private school that they would not receive in the public school system. It is possible, therefore, that if I accede to the plaintiff's request now, my decision could be reversed in four or five months' time, and the children will have been put to unnecessary upset by moving from private to public to private school all in the space of a few months. [33] On the other hand, if tuition for the coming school year will be $845 per month, and if the plaintiff pays the proportion that his income bears to the defendant's spousal support income ($86,500 : $14,400 which equals 86 percent : 14 percent), he will be obliged to pay approximately $725 per month. That, coupled with $1,200 spousal support and $1,651 basic child support, totals approximately $3,575 per month. Those payments added to the plaintiff's rent of $1,100 and the plaintiff's total fixed expenses would exceed his net monthly income. Even if one accounts for the plaintiff's tax saving of, say, $300 to $400 per month (because the spousal support will not be taxable in his hands), the plaintiff will still have very little disposable income left. His lifestyle would be so marginal that it is unlikely that he could properly provide for his children's needs during access visits. [34] The defendant's side of the account looks no better. The direct and indirect support she has received so far totals approximately $2,870 ($1,276 child support, $960 mortgage and $591 tuition). She complains bitterly that she cannot make ends meet on that level of support. The orders I propose to make will bring her a total of $2,851 monthly ($1,651 child support and $1,200 spousal support). From that she must pay the mortgage. It is difficult to imagine how the defendant could also budget to pay her 14 percent share of the 2007-8 private school tuition, and that is so whether the tuition remains unchanged at $591 or whether it increases to $845. [35] In McLaughlin v. McLaughlin, [1998] B.C.J. No. 2514, Vancouver Registry No. CA023706, the Court of Appeal discussed the nature of special and extraordinary expenses under s. 7 of the Guidelines. At paras. 81 and 82, the court said: ...in deciding whether an expense, or the totality of expenses claimed on behalf of children under s. 7(1)(f) are extraordinary, the court should take into consideration the combined income of the parties, as well as the nature and amount of the individual expense, the nature and number of the activities, any special needs or talents of the children, and the overall cost of the activities. ...once an expense or expenses are found to be extraordinary it is necessary for the court to proceed to determine whether the expenses are necessary in relation to the children's best interests and reasonable, having regard to the means of the spouses and those of the child, and to the family's spending pattern prior to separation. [36] In my opinion, these parties' circumstances are such that for so long as the defendant remains unemployed, and for so long as they must maintain two households on the plaintiff's income alone, they simply cannot afford to pay $600 to $800 per month for private school tuition. I do not say that the tuition is an extravagance, nor do I say that the children do not benefit from attending private school - although I do not think that latter point has been shown on the evidence - but I am driven to conclude that to require the parties to continue to bear the tuition expense will doom them to penury. Under their present circumstances they simply cannot afford the expense of the private tuition. That expense is not, therefore, reasonable in relation to the means of these spouses as contemplated by s. 7(1) of the Child Support Guidelines and McLaughlin. It follows that the tuition for the 2007-8 school year is not an extraordinary expense under s. 7(1)(d) of the Child Support Guidelines. Neither party may require the other to contribute to it. Recreation [37] The defendant maintains that, prior to the separation, the cost of the children's recreational activities was thus: D - swimming lessons and competitions: $2,259 per year; D and J - piano lessons: $1,200 per year; J - karate lessons: $503 per year; J - Beavers: $115 per year; G - ballet: $400 per year; and D - band instrument rental: $410 per year. These expenses total a rounded $4,800 per year. [38] Those activities have well recognized benefits for children who participate in them. I am satisfied that they are extraordinary expenses under s. 7(1)(f) of the Guidelines. The parties shall be obliged to contribute to those expenses in the proportion that their incomes bear to one another. Commencing July 1, 2007, the defendant will provide the plaintiff with an estimate of the cost of those expenses, and the plaintiff will supply his pro-rata contribution to the defendant by July 10th. On the first of every month thereafter, the defendant will supply the plaintiff with copies of the invoices for the previous month's actual expenses together with an estimate of the coming month's expenses. On the 10th of that month, the plaintiff will supply the defendant with his pro-rata share of the estimated expenses less any overpayment or plus any shortfall from the previous month. Access [39] Since the separation, the defendant has exerted a high degree of control over the children's access with the plaintiff. She has taken to herself the authority to prepare the monthly access schedule. She has refused to allow the children to stay overnight with their father. Her reasons for not allowing overnight access are: 1. The plaintiff exposes the children to internet pornography; 2. Sometime in or around May 2006, the plaintiff engaged in inappropriate sexual behavior with the youngest child; and 3. The plaintiff has been physically violent with the defendant. [40] The plaintiff acknowledges that, on one occasion in 2001, a sexually explicit pop-up appeared on his computer screen while J, who was then 2 or 3 years old, was in the room. The pop-up was on the screen for only as long as it took for him to notice it and dismiss it. The plaintiff asserts that there have been and will be no other incidents of that nature. Other than making general accusations, the defendant has not adduced any evidence to support her suspicion that the children are at risk of exposure to sexually explicit information while they are in their father's care. [41] The plaintiff cooperated with an investigation into the alleged incident involving the youngest child. According to the affidavit evidence filed by both parties, the authorities did an exhaustive investigation of the defendant's complaint that the youngest daughter was frightened by a "hairy" or "scary" monster on one visit with her father. The investigation closed with no charges and no official follow up recommended. This incident was, of course, carefully considered by Dr. Elterman when he prepared his report for the court pursuant to s. 15 of the Family Relations Act. He concluded that the defendant's concerns about the plaintiff's behavior with the children are not based in reality. That, of course, begs the question: what motivated the defendant's complaint to the authorities about the plaintiff? That is a question with which the trial judge may have to wrestle. [42] The plaintiff maintains that the defendant is making a "mountain out of a molehill" with her allegations that he assaulted her around the time of the separation. He denies he committed any offence against the defendant. This application is not, of course, the proper venue in which to determine the truth of the defendant's allegation that the plaintiff assaulted her. It is, though, the proper venue in which to make an interim decision of whether the plaintiff poses any physical threat to the children. There is simply no evidence that he does. [43] Dr. Elterman prepared his report with a view to assisting the court on the difficult issue of custody, guardianship, primary residence and access. Dr. Elterman is a pre-eminent expert in his field. He recommends that the parties share joint custody and guardianship of the children, and he can see no reason that the children should not have the benefit of spending overnights with their father. Dr. Elterman's opinion should not be dismissed lightly. The defendant rejects Dr. Elterman's recommendations, but with the greatest of respect to the defendant, her objections are not well supported by evidence. The preponderance of the evidence demonstrates that the plaintiff is a good father. He poses no risk to the children. Keeping the children from spending more time with him is contrary to the children's best interests. [44] Given the defendant's inflexible attitude and her apparently inability to recognize that her distrust of the plaintiff is not founded on fact, I have concluded that it is necessary to remove the defendant's authority to dictate the children's access time with the plaintiff. That is to say, the children's best interests will not be served if their mother is permitted to continue to unreasonably restrict their time with their father. [45] Accordingly, there will be an order for specified interim access. Commencing June 15, 2007, the children will be with the plaintiff that weekend and on alternate weekends thereafter from their release from school on Fridays to 7 p.m. the following Sunday. The children will also be with their father from their release from school to 7 p.m. on the Monday immediately following a non-access weekend. The plaintiff will make his best effort to ensure that the children arrive at the defendant's home on time, but the defendant may not request police assistance or seek to vary this order if the plaintiff rarely and for reasons beyond his control is obliged to drop the children off some reasonable period later than the specified time. [46] The parties did not advise with whom the children would ordinarily be on the weekend commencing June 15th. It may be that this order will result in the children having two weekends in a row with their mother or their father. That will do them no harm, and the benefit of having certainty in their access schedule will outweigh any temporary negative consequences of this order. [47] The alternating weekend schedule will be suspended following the weekend immediately after the children's release from school for the summer and for so long as school is out of session. The parties will share the children's summer vacation equally. The parties will be entitled to one-week alternating blocks with the children, the first week being with the defendant and that week will commence on the first Monday following the children's release from school for the summer holiday. The plaintiff will have the following week commencing at 9 a.m. that Monday morning. The parties may wish to have the children during certain weeks of the summer in order to attend family reunions. The parties may accommodate the other's wishes in that regard. If there is a variation of the summer access schedule, it must be done by agreement in writing or further order of the court. [48] The parties will be specifically forbidden to relate any change in the access schedule to payment or financial accommodation made by one to the other. That is to say, neither party may demand financial consideration for a change and neither may offer money in return for more or less or different access times. [49] I will make no order for the sharing of Christmas, Easter, or Spring Break - the trial judge will no doubt be obliged to micro-manage those aspects of this family's lives when the case comes on for trial in December 2007. [50] When a child is in the care of either parent, that parent will ensure that the child is able to attend regularly scheduled extracurricular or planned social activities. Neither parent will plan such activities for the purpose of frustrating the other's time with the child. [51] The parties will permit and encourage telephone and e-mail contact between the children and their parents regardless of in whose care they happen to be. That contact may be as frequent as the children desire, but the distant parent may not insist on such frequency of contact as to undermine the children's enjoyment of time with, or the children's confidence in the abilities of, the parent caring for them. Mobility [52] The current order is that neither party may take the children outside the Okanagan Valley without first obtaining the consent of the other or upon giving the other at least seven days' notice if the travel is for extracurricular activities. [53] The parties' affidavits contain no evidence whatsoever that either parent poses a flight risk with the children. There is no purpose, therefore, in imposing a mobility restriction on the children's travel with either of their parents. Either party will be at liberty to travel with the children within Canada or the U.S. as may be convenient or desirable. The traveling parent must supply the other with an itinerary for the travel and must supply either a mobile or landline telephone number at which he or she may be reached in case of emergency. Guardianship and Custody [54] On the strength of the evidence before me concerning the parties' parenting abilities, I am satisfied that there should be an interim order for joint custody of the children and that, for the interim, the children's primary residence should be with the defendant. [55] The parties should share joint guardianship of the children on the Joyce model. The provisions of the guardianship order will be: a) The parties shall be joint guardians of the estate of the children; (b) In the event of the death of either party, the remaining parent will be the sole guardian of the children; (c) The parties shall advise each other of any occurrence of a significant nature affecting the children; (d) The parties shall discuss with one another any significant decisions which have to be made concerning the children, including significant decisions concerning the health (except emergency decisions), education, religious instruction and general welfare of the children; (e) The parties will have the obligation to discuss the foregoing issues with each other and each parent shall have the obligation to try to reach agreement on those major decisions; (f) In the event that the parents cannot reach agreement with respect to any major decision despite their best efforts, the parent providing the children's primary residence shall have the right to make such decision; (g) Either party shall have the right, under s. 32 of the Family Relations Act, to seek a review of any decision which that parent considers contrary to the best interests of the children; and (h) Each parent will have the right to obtain information concerning the children directly from third parties, including teachers, counsellors, medical professionals and third-party caregivers. Advance Distribution [56] The defendant has adduced evidence that the family's van needs about $2,500 in repairs to the heads of its engine. The van is a 1991 model vehicle and it is likely not much longer for this world. Be that as it may, it cannot be sensible to do as the defendant suggests and sink $20,000 to $25,000 cash into a new vehicle to replace the ailing van. That is because the parties cannot easily spare that much cash, and what cash they have now, they are likely to use to acquire housing when this litigation is concluded. It is more sensible to get the van back on the road by doing the needed repairs to it. The parties therefore will be at liberty to spend up to $2,500 of the money held in trust by the plaintiff's mother in order to complete the repairs necessary to make the van operable again. [57] The plaintiff has earlier asked for authority to sell the parties' BMW two-seat vehicle (Plaintiff's Affidavit No. 5 at para. 56). The plaintiff never pursued that request, but it seems a sensible one to grant at this stage of the parties' lives. A two-seat vehicle is an impractical vehicle for these parties given their three children and limited financial resources. The plaintiff has a pickup truck that is suitable for transporting the children when they are in his care. [58] Accordingly, there will be an order that the plaintiff will be at liberty to sell the BMW car. The plaintiff will provide the defendant with copies of the advertisement(s) or other marketing efforts he undertakes to sell the car, and with a copy of the transfer documents when the sale is complete. The net BMW sale proceeds will be deposited in trust with the plaintiff's solicitor. The parties may draw on those sale proceeds in amounts to which they may agree in writing or the court may authorize for the purpose of making necessary repairs, but not regular maintenance, on either of their remaining vehicles. That fund will otherwise be subject to whatever disposition the trial judge may order. Order for Sale [59] In October 2006, the defendant asked the court to make an order for sale of the family home. She stated that she could not afford to live there, that she wished to move away from Westbank and into Kelowna, and that since neither party would be able to buy the other out, the house would eventually have to be sold anyway. After receiving the order she sought, the defendant did not act on it. In May 2007, the plaintiff wished to get on with the sale and filed his motion for exclusive conduct of the sale. The defendant's response is striking. She said: ...his [i.e.: the plaintiff's] desire to have the family residence sold is a tactic to cause me further hardship and is reckless in view of the needs of the children... (Defendant's Affidavit No. 6 at para. 25) [60] It is unclear what, if anything, changed in the defendant's estimation of the situation between October 2006 and May 2007 to cause her to conclude that she and the children would suffer hardship if the house were sold as she requested. It may be that in October the defendant simply did not turn her mind to the consequences of selling the house (although that is difficult to imagine - she was, after all, receiving sound advice from good counsel at the time). It is more likely, I think, that her current response is simply a knee-jerk negative reaction to anything that the plaintiff might say, notwithstanding that his suggestion may be sensible or that it might echo something she advocated only a short time before. [61] I would have been inclined to award exclusive conduct to the plaintiff but for the fact that the defendant would find it very difficult to not denigrate the plaintiff to the children by putting blame on him for the house being listed for sale. [62] Instead, I will confirm that the house be sold and that the parties will have joint conduct of the sale with liberty to apply for directions. I will also order that the parties obtain an appraisal of the property and that the initial listing price shall be the appraised price plus 5 percent. The parties may access the funds held by the plaintiff's mother to pay for that appraisal. The defendant will not use her position as the home's occupant to frustrate or discourage a sale. More particularly, the defendant will undertake reasonable efforts to keep the house in good condition for showing to prospective purchasers, and she will accommodate reasonable requests to temporarily leave the house from time to time in order that it may be shown. The defendant will permit the listing agent to attend the home with a camera for the purpose of recording its appearance for listing and to record any changes in appearance that may occur. The agent will share those photographs with the parties upon request. [63] The defendant and the plaintiff will be specifically enjoined from making any comments to the children about the sale of the house other than that selling the house was a decision taken by both parents and was confirmed by the court, and that they both wish for the house to be sold so that they might acquire their own accommodation at some point in the future. Retroactive Payments [64] I regret that my disposition of this issue will not do the trial judge a favor. In my view, whether the plaintiff should be burdened with retroactive child or spousal support depends, in large part, upon his actual or imputed income since the separation. The defendant asserts that the plaintiff has concealed his true income - the plaintiff denies this and says that he has disclosed all. The truth of the parties' positions remains to be seen. It cannot, in my view, be properly decided until the parties have taken the stand, all of the relevant documents have been put to them, and they have been subjected to direct and cross-examination. Only then will the court be in a position to accurately assess the quality of their respective positions. It would be unfair to both parties for the court to try to determine this issue on the basis of affidavit evidence alone. Costs [65] The party who achieves substantial success in a family matter should recover costs from the other party. [66] The main thrust of the defendant's application was to obtain spousal support and to increase the plaintiff's income for the purpose of calculating child and spousal support. She succeeded in raising the plaintiff's income, but failed to achieve the result she desired - the plaintiff's income went from some $72,000 under the Master's order to $86,500 under this order, but not to $100,000 or more as the defendant contended. Child support increased along with the plaintiff's income, but it has to be said that the plaintiff in no way opposed either result. The defendant also succeeded in obtaining spousal support, but the overall effect of that achievement may be neutral for her since, as the defendant requested in her affidavit, the plaintiff need no longer pay the house mortgage and tuition. Again, the plaintiff was also content to pay spousal support so long as he was relieved from the mortgage and tuition payments. [67] The main thrust of the plaintiff's motion was to allow the children to have reasonable access with him. He achieved complete success in that regard. He also sought exclusive conduct of the house sale, but he did not succeed. Finally, he succeeded in his request to take the private school tuition out of the purview of s. 7 expenses. [68] In my view the parties' results were mixed. They each won and lost in roughly equal measure. The proper disposition of costs of these two motions is, therefore, that the parties bear their own costs. "P.J. Rogers, J." The Honourable Mr. Justice Rogers