Court File and Parties
Ontario Court of Justice
Between:
Linda Di Cesare Applicant
— And —
Luigi Turco Respondent
Before: Justice P. J. Jones
Heard on: June 10, 12, 13, 2013; October 28, 31, 2013; November 18, 2013; January 13, 2014; February 26, 28, 2014; April 22, 23, 2014; July 3, 2014; August 7, 2014 and September 18, 2014.
Reasons for Judgment released on: November 13, 2014
Counsel:
- Mr. Peter A. Grunwald, for the Applicant
- Mr. Philip P. Healey, for the Respondent
JONES, P. J. J.:
Overview and Findings of Fact
1Linda Di Cesare (the mother) commenced an application under the Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended, on June 21, 2011 for sole custody of the child Sofia Vincenza Turco (Sofia), born August 16, 2010, subject to reasonable access to the respondent, Luigi Turco (the father), for child support pursuant to the child support guidelines, section 7 expenses, and costs. The father made a cross claim for custody, child support, (guideline and section seven expenses) and costs.
2This is my decision.
The Facts
3The facts in this case are not complicated.
4The parties are the biological parents of Sofia who is now four years of age. The applicant is 43 years of age. She is employed as a teacher/librarian with the Toronto School Board with a specialty in media and literacy. She has been teaching for 18 years and holds a Masters of Education from Brock University. She is single and Sofia is her only child.
5The respondent is 50 years old, single, and Sofia is his only child. The respondent was born in Italy and came to Canada as a visitor when he was 24 years of age; he subsequently became a Canadian citizen. He does not appear to have a post-secondary education. He worked in construction until he suffered a work related injury to his back (he is currently in receipt of a pension from the compensation board as he has been deemed medically unfit to return to work.) He testified that after his injury, his aunt and uncle helped him buy his first house in 1996, as he "couldn't work any longer", and as he "wanted to do something" to make some money. He told me that he decided he could make some money on the house by "renting it out and fixing it up". Since 1996, he has bought six houses and sold five of them.
6The parties never married. They were neighbours; she was a single working woman and he was a homeowner renovating a house across the street from her home. The friendship began when he helped her build her backyard fence.
7Quite early on in the relationship and before the parties had made a commitment to one another, the applicant discovered that she was pregnant. The pregnancy was unplanned.
8Upon hearing of the pregnancy, the respondent called a halt to the relationship while he sorted out his feelings regarding this new development. According to the mother, the father suggested that she get an abortion, a claim that the father vehemently denied. Approximately three months later, given that "a baby was coming", the respondent approached the applicant and suggested that they move in together to "see how it would go".
9Sofia was born August 16, 2010. She may have been an unplanned child, but it is clear to me that Sofia is the centre of both parents' world. Sofia, by all accounts, is a healthy, happy child who loves both her parents and whom both parents love unconditionally.
10The parties lived together until Sofia was eight months old. The parties separated on April 16, 2011 when the mother requested that the father move out of her home. The father testified that he thought the relationship was generally fine, and that he was shocked when the applicant asked him to move out.
11April 16, 2011 is a very important date in the lives of these parties and is the starting point for this litigation. The events that transpired that day have coloured the relationship between the parties and have informed, to a great extent, the way this litigation has developed.
12Each party recalls the events of that day somewhat differently.
13According to the applicant, she decided that she did not want to live with the respondent any longer, and she asked him to leave. She testified that she was unhappy living with the respondent because, after the baby was born, he became very controlling and verbally abusive towards her. She said that he would call her "dumb, stupid", and tell her not to talk. She said that he would become upset when he saw her nurse the baby in front of others and said that when she did so "she looked like a prostitute." She testified that he told her to watch herself, "as they used to hang mothers like you." She told the court that after she asked the respondent to leave, he became upset. He told her, "you are not going to get away with this", that "he had friends who were lawyers and judges and that she was not getting any money." She testified that he told her that if anything happened to Sofia, he was "going to kill her." She testified that she became concerned for her safety and texted her friend to come over. She said that he left, and came back, and she noticed that he had been drinking.
14She called the police. They came and she told them what had transpired, including the fact that the respondent had threatened her life. She told them that the respondent had gone to his own house. She testified that she had "not laid charges", and that she was unaware that the respondent would be arrested until the police returned and told her that the respondent was in custody. She said that she was shocked and upset at this turn of events, and when she phoned his aunt to tell her about the arrest, she burst into tears.
15According to the respondent, he thought he and the applicant had been getting along pretty well except for the fact that the applicant seemed to be very possessive of Sofia. He testified that they did argue about the fact that the applicant was always taking the child out, even when he was there, available to look after Sofia. He said that he had told the applicant that when he was home, he wanted time with the baby. He said that when he told the applicant that he didn't like her taking the child out when he was there, she responded by telling him that whenever she went out, the child would go with her. It was the respondent's evidence that she told him, "if you don't like it, you can leave."
16He testified that on April 16, 2011, the applicant asked him to leave. He said he was surprised, and he asked her to let him stay. She told him to go for a walk and she would think about it. He said he went to the home of his aunt who happens to live on the same street and she told him she would speak to the applicant and everything would be okay. His aunt gave him a glass of whiskey. He left his aunt's home and he phoned a friend to help him bring a mattress inside the house he was renovating; together they had a few drinks from the bottle of rye his friend brought over. He told the court that he said to his friend, "I'm mad with Linda, and she told me to leave, and I am here." At some point, the police knocked on his door and they told him that Linda had told them that he "wanted to kill her". He said he told the police that he didn't do anything -- "that he didn't kill anyone". He said that they arrested him and took him to jail, a place he had never been before. He said nothing had happened, and that, "she (Linda) had done this because she wanted to be the boss, like now." When the respondent recounted the circumstances of his arrest, and the fact that he had spent a night in jail, he was visibly upset. He told the court that he would never forget it, "because it was on Sunday."
17When the respondent was released from custody, he was subject to a bail that restricted his contact with the applicant. He was prohibited from being within 200 meters of anywhere the applicant lives, works, goes to school or worships. He was not to communicate with the applicant directly or indirectly except through a third party or pursuant to Family Court Order for purposes of access.
18The respondent complied with his bail terms. In April, 2012, one year after the charge was laid; the respondent entered into a peace bond, and the charge was withdrawn.
19No temporary access or custody motion was ever argued. To date, the access arrangements have been resolved by consent orders. Initially, access was supervised by a friend of the mother. Within a short time access became unsupervised. Initially, access occurred two times per week then was expanded to three times per week for limited periods of time taking into consideration the fact that the child was being breastfed. After the mother ceased to breastfeed the child, on consent, by order dated July 27, 2012, the father was granted interim access every Tuesday and Thursday overnight and alternate weekend access. This access has continued to today's date, however, extended holiday access has been added on a year by year basis. The access arrangements have been honored and respected by both parties. The respondent may have complained that he was not being offered any extra access than was ordered, but did agree that he did enjoy the access times once ordered.
20I am satisfied that, since separation, the applicant has been the primary caregiver of the child. Up until trial, the respondent has not challenged this arrangement by interim motion (a period of over three years). It has been the applicant who has made the day care arrangements, selected the doctor and who has provided the day to day care of the child, subject to the child's access time with the father.
21Communication between the parties has been problematic throughout. At first, communication between the parties was restricted due to the bail terms. Apparently, the case management judge endorsed the idea that the parties communicate with one another by way of a communication book. Although the father would prefer that the parties discontinue the use of the communication book and begin communicating face to face, the mother does not agree and the parties have continued to use the communication book up to now.
22As primary caregiver, the applicant has not consulted with the father about decisions concerning the child's care nor has she involved the father in the making of such decisions. She indicated to the court that she cannot communicate with the father because she finds him abusive and controlling and expressed concern that he would interfere.
23Although the parties have instituted a communications book, information provided to the father has been on "a needs to know basis" according to the mother's assessment of the situation. For example, she told the father about a specialist's appointment without telling the father the name or telephone number of the specialist. She explained that she limited the information because she did not want the father interfering with her medical care decisions.
24The father testified that he did not have a copy of the child's OHIP card nor did he have the name of the child's doctor. At the court's insistence, this information was provided to the father as I explained that the father must be in a position to seek medical assistance in the event the child were ill and in his care. (Later on in his testimony, the father offered that he had taken the child twice to his own doctor for a check-up. He told the court that he asked his doctor how the child was and he was told the child was fine. It is my understanding that he did not tell the mother that he had taken the child to see another doctor.)
Issues
25The main issues in this case are:
- Custody
- Access
- Child support
- Costs
26The mother seeks sole custody, guideline support and section 7 expenses. The father's income for guideline purposes is an issue as the applicant seeks income to be imputed to the father. If custody is granted to the mother, the terms of an access order would have to be crafted as an order allowing for reasonable access would not work in this situation.
27The father seeks sole custody, and in the alternative, he requests joint custody. If he is granted sole custody, as the mother is a T4 employee, the calculation of guideline support would not be an issue. Section 7 expenses might be less as day care might not be required. If the father is granted joint custody or sole custody, the terms of access or parenting time would have to be outlined in an order.
Custody
Mother's Plan of Care
28The mother seeks an order of sole custody. She has been the primary caregiver for Sofia since the child was born and the mother seeks an order continuing such a state of affairs. According to the mother, under her primary care, the child has thrived.
29She is prepared to honour any order for access given by the court. She recognizes that the respondent loves Sofia and that Sofia loves her father, and that the relationship between Sofia and her father is important to Sofia's healthy development. She asks the court to note that all access orders have been made on consent to date, and that the current access arrangement is liberal and generous and is in Sofia's best interest. She feels that the current access arrangement should continue for the foreseeable future given Sofia's age and stage of development with the proviso that holiday access should be included in any future access order. She does not endorse the respondent's plan for Sofia to spend alternate days with each parent or to let Sofia decide where she would stay on any given night, but asserts that the child requires a consistent routine which is predictable and appropriate given her age and stage of development.
30Although she agreed that if the court were to order joint custody, she would do her best to make such an order work, she did not feel that such an order would be in Sofia's best interests. She did not feel that the parties would be able to make joint decisions in Sofia's best interests. It was her position that the parties were unable to communicate effectively and that there was no history of joint decision making. To date, she has been the person who has made all the decisions concerning Sofia's care. She is the one who has selected Sofia's doctor and who has managed both Sofia's regular and specialized medical care. She also is the parent who chose Sofia's day care provider. She described how the respondent had acted in a controlling and abusive manner towards her in the past and she indicated that she did not feel that she would be able to work effectively with the respondent to make joint decisions at this time or in the foreseeable future given the past history and the fact that they have very different views on parenting.
Father's Plan of Care
31The father asks the court to make a joint custody order, or in the alternative, sole custody to him. (I have reversed the order of these claims as it was clear in his testimony that he would prefer a joint custody arrangement.) It is his position that he is a capable parent and able to make decisions in the child's bests interest. He is against the mother being granted sole custody because she has been unfair and controlling while exercising de facto custody, and queries how much more unfair and controlling would she be if she were given more power by being awarded sole custody by the court. He also indicated that she had demonstrated an inability to respect his rights as a father. He told the court that he did not trust the applicant and that any promises she makes now to the court "would be all lies."
32He wants the applicant to have to deal with him and not to ignore him. He told the court that if the court were to make a joint custody order, the applicant, "would have to talk to him".
33As to his custodial plan, he noted that he and the applicant live only a block apart from one another. He said he would like Sofia to be able to spend equal time with both parents and be able to decide with whom she would spend her time. He indicated that Sofia would spend "one day with him and the next day with her mother and would be able to choose with whom she would spend the next day". He testified that while Sofia was four years old she could spend "half and half, a day with me and a day with the mother" but soon, pretty soon, "Sofia could decide". He noted that "whatever Sofia wanted, we would do, starting now". He went on to say that until Sofia is twelve, the mother and the father should decide but if "she wanted to stay an hour longer, or a day longer with the mother, she has to be free to do this." He gave the following example of how this flexible access arrangement would work, he said, "if Sofia wanted to stay at his place today and she wants to stay tomorrow, why not, or vice versa with the mother."
34As to decision-making, if he had custody, or if the court awarded joint custody, he indicated that he would consult with the applicant around child care decisions, and if the mother had a good idea, even if he had custody, he would let her decide. Initially he told me that if he were consulted about where the child would go to school, and even if he did not agree, he would allow the mother to make the final decision. In fact, the father did not agree to let the mother decide this issue with the result that Sofia was registered in the local public school by the mother and the local Catholic school by the father and a decision as to where the child should go to school had to be decided by me as an incident of custody and access.
Discussion
Position of the Parties
35I heard evidence in this matter over an eleven day period with much of the evidence relating to the custody issue.
36The applicant seeks sole custody and asserts that she has the better custodial plan and is prepared to comply with any court ordered access regime. She testified that she found the respondent "controlling and abusive" and was unable to communicate with him in a constructive manner that would foster a joint custody regime.
37The father opened by asserting that this case was all about "misleading the court or doing things behind the scenes that restrict access". Counsel for the respondent likened the facts of this case to the facts of Donald v. Layton, [2008] O.J. No. 1360, where Justice Harris (On SC) in paragraph 20, found "a dishonest and a cruel plan cleverly executed" to deprive the father of access.
38The father called evidence and cross examined with this theory of the case in mind. Much of the evidence relied upon by the respondent in support of this proposition concerned events that transpired around the time of separation.
39Although the father claimed sole custody, it was clear that he would like the court to make an award of joint custody given the importance to Sofia of having both a mother and father in her life. He told me that if a joint custody order were made the applicant would have to speak to him and together they would have to make joint decisions affecting Sofia.
Findings
40I have reviewed the evidence adduced and I do not find the facts of this case similar to the line of cases alluded to by the respondent in his opening statement or later in his closing argument.
41In fact, I find the facts of this case quite similar to many of the cases that come before me on a regular basis: Mismatched parties experience an acrimonious separation and over time access regularizes. Unfortunately, in some cases, the upset and anger caused by the events of the separation do not disappear with the mere passage of time, and in those cases, as in this case, the parties need counselling before they have much chance of moving forward.
42This couple was catapulted into a committed relationship before either was ready because of an unplanned pregnancy and their mutual decision to do the "right thing" for their baby. The relationship did not work out and the parties separated at a time when their child was an infant.
43The applicant asked the respondent to leave her home on April 16, 2011, and I accept that the events which occurred that day were genuinely upsetting and shocking to both parties.
44From the perspective of the applicant, I accept her evidence that she was afraid for her safety—at the point of separation, the respondent was shocked, angry and was speaking through his anger. I find as a fact that he did say something to the effect that "if anything happens to Sofia, I will kill you." When he came back to the house and said these words, he had been drinking and she feared for her safety and phoned the police. I accept that she did not 'lay charges" and that the police laid the charges, presumably because of the well-known zero tolerance police policy relating to allegations of spousal violence.
45From the perspective of the respondent, I accept his evidence that he was surprised and shocked when asked to leave the applicant's house. He told the court that he thought everything was going fine as regards his relationship with the applicant except for the fact that the applicant appeared to be overly possessive of the baby and they had argued about his desire to spend more time with the child. When he was asked to leave, he visited his aunt who gave him a drink to settle down and told him she'd talk to the applicant and everything would be okay. He was angry with the applicant and admitted such was the case in his evidence. As far as he was concerned he had done nothing --"he didn't kill anyone."
46When the respondent spoke about being arrested and going to jail, he did so in a very emotional manner. It is clear that this experience was very shocking to him and something that had never happened to him before. He blames the applicant for his arrest and believes that he was arrested because the applicant told lies to the police. The events of that day have had long lasting effects. His contact with his baby was limited for many months and even now the applicant is refusing to speak to him freely and is demanding that he communicate with her through a communications book.
47Both parties view this struggle between them as a struggle for control of Sofia.
48The applicant told the court that she decided to separate because the respondent was becoming so controlling and abusive. It is not disputed that the parties argued about time with Sofia even when they were together. She testified that because of the controlling nature of the respondent she is unable to communicate effectively with him about Sofia.
49The respondent told the court that the applicant wants to be "boss". He objects to being ignored by her and wants to be consulted about matters affecting Sofia. He objects to being treated by her as if he were "stupid". He told me that he wants joint custody so that the applicant will have to speak to him, presumably before making decisions affecting Sofia. It was his opinion that if they spoke about issues they would be able to reach a decision together.
50Would the parties be able to discuss an issue and reach a consensus? An ability to communicate effectively and work together in a child's best interests are characteristics of every successful join custody order. In M.A.W. v J.A.W., 2013 ONCJ 34, Justice Sherr, in paragraph 37, summarized the principles set out in Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275, that should be followed in determining whether a joint custody order is appropriate. He wrote:
There must be evidence of historical communication between the parents and appropriate communication between them.
It can't be ordered in the hope that it will improve their communication.
Just because both parents are fit does not mean that joint custody should be ordered.
The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
No matter how detailed the custody order, there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on and ongoing basis.
The younger the child, the more important communication.
If the parties cannot work together, making an order requiring them to do so in the hope that they would then have to learn to cooperate is risky indeed. It has been my experience that such an order will often expose children to uncertainty because their parents will be unable to agree on decisions affecting them and the parental conflict which arises during the negotiation process will not be in their best interests. Even young children are negatively affected by and are aware of their parents' dysfunctional relationship.
51In this case, given the length this case has taken to try, the court was afforded an opportunity to actually see whether the parties were able to speak to one another and to compromise and reach a decision acceptable to both in the child's best interest.
52Sofia turned four in August and began junior kindergarten in September, 2014. As such, Sofia needed to be registered into school for September, 2014. The mother testified that she wished to register Sofia in the local public school because as a student there she would be eligible for enrollment into French immersion in Senior Kindergarten. The father wished Sofia to be registered into the local Catholic school which is apparently almost in his back yard and is the school where his relatives attend. (All parties in this case are Catholic).
53When the father testified in January 2014, he told me that he wanted to be consulted about the school Sofia would attend in September, and that he would prefer that she attend the local Catholic school. He told me that he thought that he and the mother should and could decide this issue together. When pressed, and when specifically asked what he would do if the mother wanted the child to attend the local public school that had French immersion even if he did not agree, and even if he had custody, he said, "she could (decide)".
54In fact, the matter did not play out as the father's evidence might have suggested it would.
55The mother notified the father in the communication book that she was proceeding to register the child in local public school. The father, aware of this plan, asked the mother to visit the local Catholic School with him to discuss registering Sofia in that school. The mother ignored the request, and the father went to the school, and upon being advised that only limited spaces were still available, registered Sofia for September at the local Catholic school.
56When it came before me in April, Sofia was registered to attend both the local public and local Catholic school. Because neither party had legal temporary custody (no motion had been brought), each party felt they had the right to register the child into the school they felt best met the needs of Sofia. Neither party was prepared to compromise. As such, I was asked to decide this issue as an incident of custody and access.
57I decided in favour of the mother's plan for the child's school placement on the basis that, although both plans were good plans, the child had been in the de facto custody of the mother for over three years, and for all that time the mother had been the primary caregiver of the child. She had made all child care decisions without any legal challenge by the father by way of motion. Although there was never a temporary custody order to the mother, I find in the circumstances of this case, that the father has acquiesced to the child residing in the temporary care of the mother for over three years and that section 20(4) of the Children's Law Reform Act applies. If the father had wanted to contest this state of affairs, he could have brought a motion to do so in a timely fashion.
58Pending completion of the trial, I found that section 20(4) applied, and that the mother should be entitled to make the decision regarding school placement as the father's right to make the decision was suspended by operation of the statute. Section 20(4) reads as follows:
Sec. 20(4) Where parents separate— Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement to custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides.
59Although I accept that it is no longer the law that joint custody will virtually never be ordered unless the custodial parent agrees, as suggested by Kruger v. Kruger (1979), 1979 CanLII 1663 (ON CA), 11 R.F.L. (2d) 52 (Ont. C.A), nonetheless, where the matter is not on consent, before making a joint custody order, I must be satisfied that there is some evidence of the parties' ability to communicate effectively despite their differences, or that there is some evidence that the parties are able to put their personal interests aside when their child's interests are at stake. See Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 DLR (4th) 620 (Ont. CA) and Ladisa v. Ladisa (2005), 2005 CanLII 1627 (ON CA), 11 RFL (6th) 50 (Ont. CA). In other words, joint custody must be in a child's best interest. If a joint custody/co-parenting order would only open the door for increased conflict, such an order would not be in a child's best interest.
60In this case, I see no evidence that these parties are able to communicate effectively in this child's best interests, nor do I find any history of successful joint decision making by these parents in the past. Quite the contrary, I find recent evidence of an inability of these parents to make joint decisions in this child's best interests. Accordingly, I am dismissing the father's claim for joint custody.
61As to which parent should be granted sole custody, I begin by noting that I found both parents to be likeable, decent people with different life experiences and expectations who love their only child unconditionally. I accept that both parents recognize that it is in Sofia's best interest to have a meaningful relationship with the other parent. I specifically reject the interpretation urged upon me by the respondent that the mother is "involved in a cruel plan cleverly executed to deprive the father of access."
62I have had the opportunity of comparing the plans of care presented by the mother and the father. After doing so, I find the mother's plan to be the one best able to meet the child's needs at this time. It is not simply that the mother has been the de facto primary care giver and that the child has been thriving in her care. I am concerned that the father's plan lacks any structure or routine. I suspect his need to maximize his time with the child has clouded his judgment. To suggest that the child should decide, is not realistic. I suspect his anger at being told what to do, when to take the child to daycare, and when to return the child, has informed his plan. How often did he say in his evidence, "Sofia is little. If she wants to sleep in or have breakfast late, why can't I let her do so?"
63By granting sole custody to the mother, I am vesting in her authority to make decisions on behalf of the child and the right to have care and control of the child, subject to the father's right of access. As access parent, the father has the right to visit with and be visited by the child and the same right as the custodial parent to make inquiries and to be given information as to the health, education and welfare of the child. (See Children's Law Reform Act, section 20(5)). The mother, as custodial parent, has an obligation to give effect to the rights conferred on the access parent in the statute. She should keep the father informed as to major decisions affecting the child and to facilitate the father's right to make inquiries and to obtain information concerning the health, education, and welfare of the child as if he were the custodial parent. I expect the mother to fulfill her duty in this regard.
Access
64The current temporary access regime, subject to a specified holiday regime, in my opinion, should be made final as the current access plan is generous and suited to the child's age and stage of development. Accordingly, I make the following access order.
Custody and Access Order
1. The Applicant shall have sole custody of the child Sofia Vincenza Turco, born August 16, 2010.
2. The Respondent shall have access every Tuesday and Thursday overnight from after school until the following morning drop off at school. In the event there is no school that day, the Respondent shall have access at 4:00 p.m. every Tuesday and Thursday overnight until the following morning at 8:00 a.m. If the Respondent is unable to pick up and drop off the child directly at school, he shall pick up and drop off the child at the day care or at such location as the parties may otherwise agree.
3. The Respondent shall have access on alternating weekends from Saturday at 10:00 a.m. to Sunday at 8:00 p.m. The Respondent shall pick Sofia up at, and drop her off at the Applicant's residence or at such other location as the parties may agree.
4. The Respondent shall have access to Sofia commencing during the 2014-2015 winter break on December 25, from 12:00 noon to December 26, at 12:00 noon and January 1, 12 noon until January 2, 12 noon. In 2015-2016, the Respondent shall have access to Sofia on December 24 at 12 noon until December 25, at 12 noon and on December 31 from 12 noon to January 1 at 12 noon and to continue on an alternating year basis thereafter. Excluding December 24, 25, 26 and December 31, January 1 and January 2, each year, the Applicant and the Respondent shall equally share the period the child is off school, with the father having the first half of the school break in 2014 and the last half of the school break in 2015 and on an alternating year basis thereafter or as the parties may otherwise agree.
5. The Respondent shall be entitled to enjoy one half of the school spring break, the first half of the spring break in 2015 and the last half of the spring break in 2016 and on an alternating year basis thereafter or as the parties may otherwise agree.
6. The Respondent shall have access to the child each Easter, on an alternating year basis, in 2015 from 8 p.m. on the Thursday before Good Friday until Saturday at 8.p.m. and in the following year from Saturday at 8.p.m. until Monday at 8.p.m. or as the parties may otherwise agree.
7. The Respondent shall be entitled to two weeks holiday each July and two weeks each August subject to the proviso that the Applicant shall be entitled to a two week period in July and a two week period in August in which the regular access regime will be suspended. The Applicant shall have first choice as to her holiday dates in July in 2015 and the Respondent shall have first choice for his holiday dates in August 2015 and in 2016, the Respondent shall have first choice of his holiday dates in July and the Applicant shall have first choice for her holiday dates in August and on alternating year basis thereafter. The person entitled to first choice shall select the dates by June 1, each year and the party entitled to second choice shall choose their dates by June 15 each year, (provided that neither party shall be entitled to have a four week holiday by joining up the holiday periods in July and August.)
8. Mother's Day - If Sofia is not otherwise with the applicant mother on this weekend, Sofia shall reside with the applicant mother on Mother's Day weekend, from Saturday at 7:00 p.m. until Monday at 8:00 a.m. or before school.
9. Father's Day – If Sofia is not otherwise with the respondent father on this weekend, Sofia shall reside with the respondent father on Father's Day weekend from Saturday at 7:00 p.m. until Monday at 8:00 a.m. or before school.
10. Thanksgiving Weekend – Sofia shall celebrate Thanksgiving each year with both parties on the weekend it falls. The applicant mother and respondent father shall negotiate and agree how they will equally share time with Sofia on Thanksgiving weekend, each year, at least two weeks in advance with the proviso that one year Sofia shall spend Sunday with the respondent father and the following year the respondent father shall spend Monday with Sofia and on a rotating basis thereafter.
11. Halloween – Commencing in 2015, the respondent father shall have Sofia for Halloween. Thereafter the parties shall alternate having Sofia for Halloween. The other party may participate, if agreeable to both parties, each year.
12. Statutory Holiday Weekends – Any weekend with a specified party shall include the Monday, if that Monday is a statutory holiday, unless specified otherwise; except for Labour Day (Monday only) which Sofia shall spend with the applicant mother.
13. Each party shall permit the other to communicate with the child while the child is in their care for vacation purposes on a reasonable basis.
14. The Applicant shall apply for the child's passport and any renewal thereof and may do so without the written consent of the respondent. The applicant shall keep the passport in her possession unless it is requested by the respondent for purposes of travel outside of the jurisdiction. Each party shall provide their consent, such consent not to be unreasonably withheld, to the other traveling outside the jurisdiction upon request provided the traveling party provides the other party with a travel itinerary and a number where the child and the parent may be contacted.
15. The Respondent may travel with the child to Italy to meet with his family in 2015.
16. Neither party shall select a holiday period that shall include Sofia's birthday, August 16 or the following day August 17. For Sofia's birthday and the following day each party will have access to the child on her birthday. In 2015, the father shall have access to the child from 12 noon on August 15 until 12 noon August 16 and the mother shall have access to the child from 12 noon August 16 until 12 noon August 17 and on an alternating basis each year thereafter unless the parties otherwise agree.
17. The Respondent shall have the same right to make inquiries and to be given information as to the health, education and welfare of the child as if he were the custodial parent. In the event a third party holder of this information requires a consent signed by the custodial parent prior to the release of such information, upon request, the Applicant shall sign any required consent to facilitate the release of such information.
18. The Applicant shall keep the Respondent informed of any significant decisions affecting the health, education and welfare of the child. She shall also keep the Respondent informed of the names of the child's doctors, dentists, tutors, or teachers or any other professional or caregiver working with the child whose names would not easily be ascertained by reasonable inquiries by the Respondent. In the event of any uncertainty as to whether the Respondent is aware of the names of professionals treating the child, the Applicant should furnish the name, address and telephone number of such third parties to the Respondent.
Child Support
65On a voluntary basis, the respondent has been paying $300 per month to the Applicant as child support. As well, the respondent has been contributing $140 per month towards Sofia's RESP account, and upon request, has voluntarily contributed towards the cost of Sofia's extracurricular activities such as swimming on a 50-50 basis.
66It is his position that he is paying more than he would otherwise be required to pay under the Child Support Guidelines. He testified that his annual income is as set out in his income tax return. I note that on his income tax his main source of income is derived from a Worker's Compensation pension which is non-taxable and would have to be gross up for guideline purposes under section 20 of the Guidelines. In his 2013 return, which is the last return filed, the respondent received $22,198.92 from WSIB. As well he received a small pension from his union, Labourers Pension Fund of Central and Eastern Canada in the amount of $1,692. per year.
67The applicant argued that further income should be imputed to the respondent because he has been supplementing his income since 1996 by operating a renovation business. Since 1996, the respondent has bought six houses and sold five. Each house was the respondent's principal residence and as such each time he sold a renovated house he realized a non-taxable capital gain for income tax purposes. The applicant characterized this gain as income and the respondent characterized this money as a capital gain. The issue to be decided is whether the respondent was in the business of renovating houses, even if it was only on a very small scale.
68The renovations to the homes began on a modest scale. Over time, the size of the renovation projects has increased. The last three homes involved modest East York bungalows which he virtually tore down and rebuilt from the basement up adding a second-storey, and by doing so, doubled the price of the house from the point of purchase to the point of sale.
69It was his evidence that although the sale price was much higher than the purchase price, after he paid for materials and labour, he made very little profit over the years, maybe $10,000-$20,000-$30,000, each home to a total of maybe $100,000 over the entire time he has been buying and selling homes. (His evidence was not very clear as he acknowledged that he kept no written records and most tradesmen who worked on the houses were paid in cash.) He told me that he took any capital gain realized and reinvested it in the next home.
70He now lives at 88 Inwood Avenue and he has done an extensive renovation on this home as well. He has taken this modest bungalow and put on a second storey and has virtually rebuilt the home. (The last bungalow - similar to this one - sold for in excess of $926,000 and was purchased by him for $400,000). He told the court that he sees his home at 88 Inwood Avenue as his permanent home, where he would live with Sofia. He testified that has no intention of selling this home.
71He told the court that he owed $150,000 to the bank on a line of credit, $102,000 to his cousin Luigi Macchione and $160,000 to his Aunt, Giuseppina Macchione (the mother of his cousin Luigi Macchione). He said he was making payments on his line of credit but no payments to his aunt or his cousin on the debts he owes them. His last sworn financial statement shows annual expenses of $39,405.36 although he told me that his property taxes had doubled since the renovation (an added annual expense of approximately $3,000). As well, I note that the financial statement does not include the $3,600.00 he is currently paying in child support per year, nor does it include any interest payments he tells me he is making on his line of credit. As to the line of credit owed to the bank, he said that he had already borrowed the limit he is allowed to borrow from the bank.
72The respondent testified that he had no other assets. Although the respondent acknowledged that he sent just over $120,000 to Italy in January, 2010, he testified that the money was sent to repay loans owed to his family in Italy and had come from the proceeds of the sale of 108 Frankdale Ave.
73His aunt and his cousin testified.
74His aunt told the court that she was a widow with three adult children. She testified that she and her late husband had lent the respondent money over the years which he has used to buy and renovate homes. She said that she has always been repaid with interest when the house was sold. At present, the respondent has borrowed approximately $160,000 from her. She said that there was no written proof of the loan because she trusted her nephew. She had no evidence that the money had been withdrawn from the bank because she had not kept the money in the bank.
75Asked about her assets, she indicated that she owned her bungalow, kept a further $10,000 to $15,000 at her house and about $5,000 to $6,000 in the bank. She said she was in receipt of her husband's pension. It would appear from her evidence, that most of her money (not including her house) has been lent to her nephew with no security. From the respondent's evidence, he has no means to pay her back except by selling 88 Inwood Avenue, which he claims he will not do.
76Luigi Macchione testified that he is the son of Giuseppina Macchione and the cousin of the respondent. He testified that he and his wife lent the respondent $102,000. (He identified cheques he and his wife wrote to the respondent as proof of this claim). He told the court that he earns his living constructing custom homes and earns on average $60,000-$100,000 per annum although he indicated that his income in 2013 was less, and in fact was $39,538.28 as one contract had ended and a new contract had not yet started. He did indicate that he did some jobs for cash. As well as lending his cousin money, he said that he has suggested workmen to his cousin and has given his cousin some advice in the past about construction but that would be the extent of his involvement in his cousin's projects.
77As to his financial circumstances, he told the court that his wife was on long term disability awaiting a heart transplant. He said he lived in a bungalow worth approximately $650,000 on which he owed approximately $23,000 secured by a conventional mortgage and a further $215,350 on a line of credit. As to source of the monies lent to his cousin, he was unable to tell the court -- he said it may have come from his line of credit (on which he pays monthly interest) or it may have come in part from monies he had received from cash jobs. He told the court that he has lent money to his cousin in the past and has always been paid back with interest and he has no concern about being paid back this time. He said that to date, nothing has been paid back on the principal, and he has been paid no interest on the monies he has loaned to his cousin.
78Nothing about the respondent's finances makes any sense. If I were to accept his evidence, I would have to conclude that his financial situation is totally unsustainable. On an income of $24,000.00 the respondent owes $412,000, and apparently, all of his creditors expect to be repaid. His annual expenses are in excess of $45,000 not including the interest payments he is making to his bank on his line of credit.
79He would have me believe that somehow he is paying his expenses and even contributing his monthly union pension of $140 to Sofia's RESP on his disclosed income. Unless he has an undisclosed nest egg, given my understanding of the respondent's finances as set out above, his financial situation is unsustainable, and I find it highly probable that he will sell the 88 Inwood Avenue house to pay outstanding debts. The respondent says he will not sell and as far as I know he continues to pay his bills and plan to live in this home indefinitely.
80Therefore, I do not find credible the respondent's claim that his income is $24,000 per annum.
81What income should I impute to the respondent?
82As I am unable to rely upon the financial statement as to his income, I have considered the respondent's life style and expenses.
83In all the circumstances I have decided to impute income to the respondent on the basis of his modest life style which accords with his expenses claimed. I am imputing an income of $50,000 per annum which is roughly the amount of money he claims he spends each year to cover his expenses. The Guideline amount on $50,000 for one child is $441.00 per month commencing May 1, 2011. I am satisfied on the evidence that the respondent has been paying $300 per month in child support since May 1, 2011 and such monies are to be acknowledged and deducted from child support otherwise owing.
84The applicant has also made a claim for special expenses, presumably relating to her day care expenses. I am not in a position to make any order with respect to day care expenses at this time as I do not have clear evidence of the monthly after tax cost of day care to the applicant from the date of separation. A divorce mate calculation in this regard would be of assistance. Subject to the agreement of the parties, I am prepared to deal with this issue by written submissions with proof of the expense and appropriate divorce mate calculations. If there is no consent to the management of this issue in this fashion, the section 7 claim will be dismissed on a without prejudice basis.
Costs
85The final issue before me is one of costs.
86The applicant shall have 30 days from the release date of my decision to serve on the respondent and to send to me her written submissions on costs including any offers to settle which she may have made.
87The respondent shall have 30 days from that date to serve on the respondent and to send to me his written submission on costs including any offers to settle which he may have made.
88The applicant shall then have 14 days to serve on the respondent a reply if she so advised.
89Each party shall be limited to ten pages for their written submissions with an extra five pages for the applicant if she makes a reply.
Released: November 13, 2014
Signed: Justice P. J. Jones