Court File and Parties

ORILLIA COURT FILE NO.: FC-15-13-00 DATE: 2016-07-27 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Andrew Gregory Fraser, Applicant and Dawn Marie Fraser, Respondent

BEFORE: The Honourable Madam. Justice H. McGee

COUNSEL: William Leslie, for the Applicant Ryan Duval, for the Respondent

HEARD: May 30, 31, June 1, 2, and 3, 2016

Reasons for Decision

McGEE J.

Overview

[1] This trial determines the following issues: custody of G. (aged 11), B. (almost 9) and T. (five and a half), orders incidental to custody, a parenting schedule, a claim that no table support be paid pursuant to section 9 of the Federal Child Support Guidelines and whether the mother’s nanny expenses, and other expenses qualify as section 7 expenses.

[2] The mother seeks an order for sole custody, and the father for joint custody. He asks for a week-about parenting schedule to ensure maximum contact pursuant to section 10 of the Divorce Act, and importantly, to reduce transitions for G. and to a lesser extent, for B. The mother asks for a final order in accordance with a January 2015 temporary consent that has the boys continuing in her primary care, with access to the father on alternate weekends from Thursday after school until Monday morning drop off at school, and every Wednesday evening.

[3] G. has significant special needs resulting from a syndrome that delays growth and development, generates profound intellectual and communication challenges, causes abnormalities of appearance, interferes with vital organs, limits muscle development and is marked by seizures which may or may not reduce with age. [1] He has special dietary needs. He is not mobile. As he gets older and heavier, his transitions will become increasingly difficult. Although neither parent currently resides in the children’s school district, it is agreed that the boys will continue in their present school, as it provides G. with a supportive environment and unmatched programming opportunities.

[4] Each parent also seeks orders for summer access, travel consents, life insurance, and methods of communication. Many of these incidental issues are not in dispute.

[5] The parenting schedule will have a significant effect on the financial obligations of the parents. Each is employed on a full time basis: the father in a family business and the mother in a professional capacity at the local hospital. After a gross-up of the father’s non-taxable benefits, the mother’s line 150 income is modestly in excess of his. The mother seeks an order for table support of $1,530 monthly from the father, contributions to extensive section 7 expenses and spousal support of $50 per month. The effect would have the father meeting his budget with net disposable income in the range of 20 - 30%, and the mother, with 70 - 80%, depending on the scope of section 7 expenses.

[6] The father calculates that no child or spousal support ought to be paid per section 9 of the FCSG and the Spousal Support Advisory Guidelines. He proposes an equal sharing of the after tax section 7 expenses, exclusive of the costs of a nanny which he states that only the mother requires.

[7] The parties agree to share the children’s sports and extracurricular expenses equally. Those expenses presently include hockey, baseball, lacrosse and skiing. The expenses change with each approaching season as the boys’ interests and skills evolve.

[8] The court had no expert evidence available to determining the children’s best interests. Neither did it have the benefit of child’s counsel in determining the views and preferences of the children. There is no temporary order for custody.

[9] These reasons explain final orders for joint custody, a week-about parenting schedule with mid-time with the other parent, no award of table support, and the proportionate sharing of section 7 expenses, inclusive of the costs of the mother’s nanny.

Joint Custody and Parenting Schedule

Background

[10] The parents separated on September 1, 2015. Their 10 year marriage had been in trouble for some time.

[11] Since separation, the boys’ extended family, particularly the grandparents and the aunts and uncles have done a remarkable job of providing a neutral and supportive environment. That environment has counterbalanced much of the distress experienced by the parents. Rarely does the court see such a robust, loving and articulate envelope of support for young parents struggling through a separation – let alone parents with a special needs child. Each and every one of them is to be commended.

[12] The mother asks the court for an order for sole custody, with an undertaking that she will consult with the father on major decisions and keep him informed of all significant events.

[13] It is not contested that prior to separation, the mother was the lead parent. She was primarily responsible for running the home, organizing extracurricular activities, directing their nanny as to before school, and home care for the children, and relieving him/her upon her return home from work. During this period, the father was more active in the development and growth of the family business, which often required travel. His parenting time tended to land on the weekends and to a lesser extent, during weeknights. He was active in the boys’ sports teams.

[14] Both parents have committed themselves to learning about and meeting G.’s special needs. They are both capable caregivers for G. The mother has particular skill. She has expertise drawn from advocating at a provincial level for the care and parenting of children who share the variegated symptoms of G.’s syndrome. She has taken him to the majority of his appointments. She has learned to sitski – a method of skiing that thrills G., and allows all three boys to share an outdoor sport.

[15] Each of the parents has a special relationship with all three of the children. Each has much to offer. The father encourages competition, play and advancement. The boys enjoy coming to the business and having him involved in their sports. The mother is a strong nurturer and a good listener. She has an excellent grasp of school responsibilities. Outside an adversarial arena, their parenting styles are highly complementary.

[16] There were discussions between the parties of a flexible, shared manner of parenting immediately following their September 1, 2014 separation. A much earlier set back in the family business had drastically reduced the business opportunities that had required the father to travel. He was in the process of moving into a more flexible, management based role that allowed him greater control of his work week; which process accelerated after the separation. The father is now able to drop off, and pick up from school.

[17] The father relied on the early separation discussions when he left the home in September of 2014 for a friend’s spare room. He has been consistent since separation that he desires to be a full parent to the boys, in every respect.

[18] At some point in the months following separation, the mother took a litigation position that she would remain the lead parent, seek sole custody and resist the father’s requests to advance the separation. She was very comfortable with their initial arrangement – that the father continue to place his entire pay into the joint account for the family’s needs. In her view, those early months represented the best outcome for the children. The prior lifestyle that they had funded with their joint incomes (and a large measure of debt) would continue, but for the absence of the father.

[19] Professional and conscientious communications between legal counsels to transition this family from one home, into two homes did not meet with much success. The mother resisted the sale of the home, and other efforts to advance the terms of the separation. The father saw no option but to issue this Application in January of 2015.

[20] The sale of the home was subsequently agreed, and closed on May 15, 2015. But for a discharge of the joint line of credit, the net proceeds of sale have been since held in trust. Only at the start of this trial were the financial issues, including equalization resolved. Because they have now been settled, it is unnecessary to go into details within these reasons; [2] but to note that the father was without means to re-establish his residence in the period leading up to his motion for joint, shared custody on July 17, 2015.

[21] This is important, because his inability to re-establish himself had consequences. Justice McDermot’s reasons on the motion bear careful review. Although not binding at trial, they are prescient to this decision. He observed that the father does “not appear to be settled in a situation where he is able to care for the children on a shared basis.”

[22] Without the benefit of vive voce evidence, the motions justice then took a cautious approach and confirmed the mother’s continuing primary care, while expanding the father’s time with the children.

[23] At that time there was also conflicting affidavit evidence as to “whether G.’s special needs are sufficiently serious to make a difference in this case.” The motions judge had an affidavit from Dr. Gordon, whose evidence was not placed before me during this trial, that G.’s needs were “complex and medically fragile.” [3] The mother’s affidavits set out significant complaints that the parties did not communicate well. And so the motions justice decided to leave in place a status quo of the mother being the residential parent.

[24] In large measure, that status quo was created by the father leaving the home in circumstances in which he believed that he and the mother would work towards joint and shared custody.

[25] The motions judge made no order as to custody, there being no pressing need to do so. That decision was left for trial. In the interim, he found that alternate weekend access was too restrictive and ordered that the father care for the boys for three weekends out of every four, along with every Wednesday from after school until 8:00 p.m. The prior funding arrangement was replaced by table support of $1,262 [4] commencing August 1, 2015. The father’s proportionate share of the costs of the nanny was set at $332 per month, with no provision made for any additional section 7 expenses. Those were later addressed on consent at a conference on December 11, 2015.

[26] After the motion, it soon became clear that neither party was content with the arrangement of three out of four weekends. The father continued to press for shared custody and an alternating week residency. The mother lamented having virtually no quality time with the children. She was left to manage the onerous weekday responsibilities while the father enjoyed almost all the weekend time. As a compromise, it was agreed on January 28, 2016 that the boys would be in their father’s care on alternate weekends from after school on Thursday until Monday school drop off, Tuesday if the Monday was a school holiday. The Wednesday evenings continued.

[27] It was a wise compromise. The schedule has worked well, and is the basis for the mother’s request for a final order. It has provided the father with the opportunity to demonstrate his skills as a primary caregiver, which he has discharged admirably, but for one aspect.

[28] Over the next few months, the father inappropriately drew B. into this litigation. The parties agree that B. feels an enormous pressure to be a peacemaker and a leader within his sibling. He cares for G. and helps run after T. He wants his parents to be happy, and he wants everything to be fair. The mother and her mother gave compelling evidence that the father confided in B. as to the status of the litigation and his plan to get “equal parenting.” On May 9, 2016, B. came home early from school - sick to his stomach -“because he knew where Mommy and Daddy were.” They were at the Trial Management Conference in Bracebridge.

[29] The father defends his actions, stating that he felt compelled to answer B.’s questions about the litigation, and/or that B. overheard him talking on the phone to his lawyer.

[30] It was wrong to involve or expose B. to the family law proceedings, in any manner. Children are not allies in family court. They are to be protected from adult conflict. The father ought to have shared B.’s concerns with the mother so they could give B. mutual assurances, and/or arrange for counselling.

[31] The court also has concerns with some of the mother’s behaviour, such as hiring a new nanny for the boys without any consultation with the father, whatsoever. The choice of nanny is particularly significant in this family as she or he must meet G.’s extensive special needs. It was perplexing that the mother engaged a nanny for G. who lacked any formalized training for special needs children while at the same time, holding the father to a flawless level of care. Her failure to consult with the father on this very important decision was not a good harbinger of her promise to consult on major decisions were she to be awarded sole custody.

[32] The mother states that she and the father have poor parental communication. The evidence at trial suggests that much of that poor communication is of the mother’s own making. The best example was an incident in which she admits to inadvertently not advising the father that he was to do a school pick up – with almost disastrous results. The tone of her testimony suggested that it was anything but inadvertent.

[33] There were other concerns noted by the court: the mother’s cultivation of an exclusive parenting role at the children’s school, despite not having an order for custody, her refusal to see or allow for any post-separation improvement in the father’s parenting, and her unnecessary (and genuinely surprising) hostility towards the father’s new partner, while downplaying her own repartnering after the parties’ mutual decision to separate.

[34] Fortunately, there was really only one incident of parental conflict interfering with a decision – the choice of a sport for B., who was anxious not to disappoint his father, while genuinely wishing to make a change. It was resolved, and perhaps the father gained an insight during the process. The incident was a good example of how two parents seeing an issue from different perspectives, talking, and ultimately respecting the child’s view can come to a good decision.

[35] Ultimately, the mother’s claim for sole custody relied heavily on a view that G. is medically fragile, requires close supervision and daily interventions, and a level of expertise and consistency in his caregiving that only she can provide. She struggles to acknowledge that since separation, the father has met all of G.’s complex needs without incident or complaint. He enjoys caring for G. He lauds G.’s strengths, his adaptability, his stubbornness and determination. He is proud of him.

[36] The father does not paint G. as fragile, nor was there any medical evidence suggesting that his needs could not be met by either parent. A number of family members are able to care for G. and are available to assist. G. enjoys a great deal of independence at school. In hearing all of the evidence, the court was struck by the benefits to G. of having parents who draw out such different perspectives. Carefulness and courage. Limitations and achievements. Each parent’s approach is an essential component in G.’s development.

[37] In summary, each parent is a capable caregiver and has much to offer. At the same time, each has had lapses of judgement during the course of this litigation, with the effects often being borne by one or more of their sons. Each parent would benefit from post-separation parenting courses. I was advised that the mother had taken a course. I provide later in this decision that the father must attend a parenting course [5] or a limited period of counselling. The end of this litigation and some professional assistance ought to go a long ways towards improving the co-parenting relationship.

[38] As the parents embark upon this new chapter, it bears repeating that courts do not expect communication between separated parents to be easy or comfortable, or free of conflict. Perfection is neither realistic nor to be expected. The question is whether the parents have a reasonable measure of communication and co-operation that allows them to work in tandem towards best meeting their child’s needs. [6] The co-operation needed is workable, not blissful; adequate, not perfect. [7]

[39] I believe that these parents do have the ability to be good co-parents. They might even be great co-parents. When each was asked by their respective counsel to individually describe the children, the parents cast remarkably similar profiles. They smiled at the same times, laughed at the same idiosyncratic characteristics, and detailed the same strengths and challenges for each of their three children. They know their sons. And they both have the same parenting goals – to raise polite, diligent, fair minded young men.

Joint Custody

[40] The stress of this litigation has been significant. The differences in the parties’ parenting styles which could be complementary strengths have become targets within this adversarial process.

[41] Each parent, not unfairly, accuses the other parent of advancing a parenting plan as a strategy to maximize his or her financial circumstances. Custody has become a contest of “winner take all.” As explored further below, there are significant financial consequences to shared residency when the parents earn the same range of income.

[42] Neither of their modest incomes is sufficient to achieve any approximation of their former joint lifestyle. Courts must determine issues of custody and parenting schedules exclusively in accordance with the best interests of the children as set out in section 24 of the Children’s Law Reform Act. Financial obligations are a separate analysis.

[43] As introduced to the parties within Justice McDermot’s Reasons, the joint custody test has traditionally been found within Kaplanis v. Kaplanis, 2005 ONCA 1625, which poses three basic questions for judicial analysis:

1. Is there a sufficient degree of co-operation and communication between the parties such that order of joint custody can work in child’s best interests?
2. Has there been history of day-to-day decisions between parties, and does there exist a manageable level of civil communications that meets the child’s needs?
3. Are there concerns or doubts that a parent will make unilateral decisions or involve child unnecessarily in disputes between parents?

[44] The reasoning behind the Kaplanis tests is that there must be some evidence before the court that despite their differences, the parties are able to co-parent effectively. Children benefit tremendously when both parents are fully engaged in their care, provided that it does not trigger negative consequences that eclipse the benefits.

[45] Too many times over the past 21 months there has been an absence of co-operation and communication between these parties. But more often, the parties have worked well together. When genuine divergences arise, they have each demonstrated the ability to prioritize their sons’ interests ahead of their own. Weekly, they coordinate busy and diverse sports and school schedules with nothing missed. They have the positive support of extended families. They both want the best for their sons.

[46] The root of the conflict has been the mother’s rigid, historical view of the father having a diminished role in their sons’ lives. She will not acknowledge any genuine evolution in his post-separation parenting. The father has fought back, and in the process, caused damage to his middle son. Both parents need to take responsibility for their respective roles in this conflict.

[47] Since the Ontario Court of Appeal decision in Kaplanis, the case law has developed to extend awards of joint custody when necessary to preserve the balance of power between parents; particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties. [8]

[48] The existence of conflict and strife between the parties from time to time, and at the time of trial, will not necessarily preclude the court from making an order for joint custody. The question to be determined is whether the nature, extent and frequency of the conflict between the parties is such, that the conflict is impacting or likely to impact on the well-being of the child. If the evidence indicates that the parties have been able to shelter the child from the conflict reasonably well and put the child's interests ahead of their own when necessary, an order for joint custody may be appropriate. [9]

[49] The question for the court to ultimately determine is "whether a reasonable measure of communication and co-operation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis." [10] In making that determination, Justice Chappel in Khairzad v. McFarlane, 2015 ONSC 7148, states that:

…the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then claim sole custody on the basis of lack of cooperation and communication.

[50] The evidence in this trial points towards the mother’s marginalization of the father, her lack of any real effort to co-parent and her irrational hostility towards his new partner - an important adult figure in her children’s lives – as fitting within the profile explored by Justice Chappel in Khairzad.

[51] Perhaps the father was not as engaged as he could have been prior to separation, but it was a different time in the family, with different priorities. Parenting G., B., and T. over the next decade in a two home family, will require years of sacrifice and hard work by both parents. It will not be easy, especially as G.’s needs evolve.

[52] I find that this is an appropriate case in which to make an award for joint custody in order to create and maintain a balance of power between the parents. And I do so with considerable optimism. Each of the parties is a caring, capable and committed parent. Each is willing and able to provide the children with guidance and education, the necessaries of life and in this case, provide for G.’s special needs. Each plays a unique and complimentary role in the lives of their children. It is the court’s view that the parents can, and will make better decisions together, and their sons will greatly benefit from a more balanced parenting relationship.

[53] Order to go that:

1. The parties shall have joint custody of G., B., and T.

Parenting Schedule

[54] The mother strenuously resists any change to the present schedule. She fears that it would be too disruptive and harmful for the boys to lose the benefits of being in her primary care. The father asks for a residential schedule that has the boys in each household half the time. He has fully addressed Justice McDermot’s July 2015 concerns. He has transitioned into a stable and appropriate residence with his new partner. With the distribution of the sale proceeds, he may be able to purchase a residence closer to the boys’ school, but if not, his present home is appropriate.

[55] All three boys, particularly G., are well fed in their father’s home, and parented in accordance with their developmental needs. There is family activity and downtime amongst the boys’ demanding sports schedules. Regular bedtimes are observed.

[56] The father satisfies me in his evidence that he is proficient in all aspects of G.’s care, particularly in monitoring any advance signals of a seizure. He describes the preparation of G.’s food, his personal care, activities, medical needs and developmental needs. There have been no incidents. The boys have thrived during their alternate, extended weekends.

[57] Nonetheless, the mother maintains her generalized concerns. She worries that the homework will not get done. She is not satisfied that the father maintains the same standards of care for G. as she employs. She suggests that the father is hostile to counselling for the boys. She worries about the stress on B. as he tries to live up to his father’s expectations.

[58] As set out above, the core of her concerns is a resolute unwillingness to see the father in terms different from how she saw him during the marriage. She is supported in her view of him as an absent and from time to time careless caregiver by their former nanny.

[59] Separation is a fundamental disruption in parenting roles. Almost everything changes. Sometimes prior parenting patterns continue, but more often, parents have to step up to new reality. Ongoing relationships with each of one’s parents is a child’s right. When a parent argues for unequal parenting time, the onus is on that parent to demonstrate why the proposed schedule is in the child’s best interests. The proposal must be forward looking. We must never rob from a child’s future to pay for a parent’s past.

[60] The court was listening for the evidence that would support each of the parents’ proposals. What are the additional benefits of the mother’s care that will be lost? Why is the father’s proposed schedule better? Is week-about the only manner in which a shared residency can operate?

[61] It was not clear to me what benefits from the mother’s care would be lost were she to parent a few days less each week. Most, if not all of her concerns can be addressed within ancillary orders, such as providing for counselling for B., a parenting program for the father and making a requirement that all schoolwork be done by the parent with whom the child is residing.

[62] Why is week-about the best routine? There are many different schedules for a shared residency. Quite often, seven days is simply too long for young children to go without seeing the other parent. T. is only five. The father made no proposals other than alternating weeks. There was no discussion of the social science literature, whether one or more of G., B. and T. were developmentally ready to alternate residences, or whether G.’s special needs required a specific approach.

[63] The main argument in favour of alternating weeks was that it would best reduce transitions for G. The parents agree that G. experiences considerable stress during any transition. He thrives on consistency and routine. He does not immediately engage within new situations, except perhaps at school where he knows that he is safe, and celebrated for his outgoing and cheerful disposition.

[64] The mother indicated in her testimony that B. is also experiencing stress during transitions.

[65] There is merit to a schedule that would reduce transitions. For example, the present schedule has the boys returning to their mother’s home after a Wednesday night visit with their father, and then on alternate weeks going back to his home after school the next day. An elimination of that transition would be sensible.

[66] The maximum contact principle set out in section 17 (9) of the Divorce Act is “not by itself, a sufficient basis on which to order shared parenting.” The principle only applies insofar as it is consistent with the best interests of the children, as mandated by section 24 (2) of the Children's Law Reform Act.

[67] Alternate weeks would have the boys transition only once a week, would maximize contact with each parent and would make transparent each of the parent’s school responsibilities. Homework could not be left until the other parents’ night. There would be fewer prospects of agendas going unsigned or things being left behind, particularly if the transition was on a Sunday evening.

[68] I have reviewed each of the parent’s Form 35.1 Parenting Affidavits and considered their evidence as a whole. In my view, the complexity of their lives is the most striking feature. Both work hard at full time, demanding employment positions while raising three very busy, very active young boys, the oldest of which has significant, 24 hour special needs.

[69] It is easy to forget just how demanding, complicated and simply exhausting this stage of life can be, let alone for parents who are separated. Every transition between the parents’ homes requires planning and organization. Reducing those transitions would reduce the stress on the parents and the children.

[70] After much consideration, I find that a week-about residency plan is the simplest and most child friendly order that can be made on the evidence before me. It will reduce transitions to once a week, minimize the exchange of sports equipment, school necessities, medical supplies and G.’s equipment, and personal items. The boys will have quality time with each parent and neither parent will unduly bear the responsibilities of the school week. Each parent will have a full week’s rest and the opportunity to maximize his or her income during the week off.

[71] The court’s main concern with the week-about proposal is the length of time that each child will go without seeing the other parent. I propose to remedy this by requiring that each parent spend group, or one-on-one time with the children while in the care of the other parent. Done well, and with flexibility, such an approach provides the additional benefit of dividing up transportation when the boys have conflicting schedules.

[72] For example, during the father’s weeks, the boys might go to their mother’s from after school on Thursdays (the mid-point during the seven days) until 8:00 that evening; and during the mother’s weeks, the father might take each of the boys to a practice, game or activity during the week; or vice versa – depending on individual schedules. In this manner, the weeks will flow in a more natural fashion, with each parent primarily responsible for a seven week period, but the boys having time with the other parent for a mid-week meal, or travel to a practice/game.

[73] The court grants the father’s claim for a week-about parenting plan, with a default schedule to ensure that the boys see the other parent during the seven days when he is not residing with him or her. The parties are encouraged to frequently renegotiate the default schedule, so that it best meets the needs of their busy family, including coordinating with step-parents, step-siblings and extended family. Mediation is recommended. If for some reason mediation cannot be engaged, the parents are to exchange proposals through the Family Wizard, at least 30 days in advance of any change in extracurricular schedules. In the absence of an agreement, the default order will prevail.

[74] Order to Go that:

2. Commencing with the father, on the evening of Sunday, August 7, 2016, G., B., and T., shall reside with each of their parents on an alternating week basis, with transitions to occur on Sunday evenings at 7:00 p.m., Monday evening at 7:00 p.m. if Monday is a school or statutory holiday.
3. Each parent will be responsible for completing school agendas and homework, and organizing and transporting the boys for all practices, games and activities during his or her week.
4. The parent with whom the boys will be spending the next week will pick them up. All the equipment, supplies, and personal items that the boys will need for the coming week will be prepared in advance for the pick-up.
5. Each of the boys is free to contact the non-residential parent at any time.
6. Neither parent shall travel with the children out of the Province of Ontario without the other parent’s written consent, which shall not be unreasonably withheld.
7. The boys will spend Mother’s Day with their mother, and Father’s Day with their father irrespective of the alternating week schedule.
8. Each parent can see a child on his birthday for a short visit, whether or not it is his or her parenting week.
9. The parties shall agree by May 1 of each year which of their summer weeks are to be expanded to include the following week to facilitate summer holidays.
10. The parents are to confer in advance of special holidays such as Christmas and Easter to adjust the week-about schedule. For example, for Christmas 2016, they might agree to move the transition from the evening of Sunday, December 25 to the morning. The exchange for Easter could be moved from the Monday evening to Sunday at noon.
11. March Break is to be alternated between the parents. This should occur by the natural rotation of alternating weeks through the calendar year. If in a particular year it does not, the parent who did not have the children the prior March Break shall have them for that additional week (making two weeks in a row) and the alternating schedule shall then restart, unless the parties agree to split the March Break week and stay within the prior rotation.

Orders Incidental to Custody and Parenting

12. On consent, and until agreed otherwise in writing, the parents will use the Family Wizard software program to communicate parenting issues. They shall subscribe to the program within 14 days of the date of this decision. They shall not use the children to convey messages or arrange for scheduling.
13. The mother shall maintain the boys on her benefits plan provided by her employment. The father shall be solely responsible for the total amount of any uninsured health, medical, and dental expenses for the children, up to $100 per month. The balance shall be a section 7 expense and paid in accordance with the terms below.
14. Each parent shall maintain insurance to protect their obligation to support the children by providing a policy of life insurance in a minimum face value of $200,000, naming the other party as an irrevocable beneficiary. If either party dies without this insurance support in place, the face amount shall be a first charge against the deceased party’s estate.
15. Within the next six months, the father shall enrol in a parenting course of at least eight hours in cumulative duration, or attend counselling with a qualified child and family therapist for at least six sessions. He shall pay the costs of the program and shall provide a certificate or letter of completion to the mother by March 1, 2017. Failure to do so shall constitute a material change of circumstances. The focus of the program or the counseling shall be to better understand the effects of separation on children. The course cannot be on-line, it must be in-person, facilitated by an instructor.
16. Within the next six months, the parents are to enrol B. in a children’s program of at least eight hours in cumulative duration, or provide him with confidential counselling with a qualified child and family therapist for at least six sessions. The cost shall be a section 7 expense. Should either parent fail to consent to an appropriate program or counselling the other may bring a motion to dispense with his or her consent and seek a full recovery of costs. A finding by the motions justice that a party has acted unreasonably in withholding consent, may constitute a material change in circumstances.
17. The parties will cooperate with each other regarding trips outside of Canada. At least once a summer each parent shall have two consecutive weeks with the boys to permit an extended vacation.
18. The mother shall retain the originals of all Passports, Birth Certificates, Social Insurance Cards and Health Cards. Within 30 days of this decision she shall provide the father notarial copies for each, and will provide originals for travel seven days in advance of departure, to be returned to her within seven days of return. The parents shall cooperate in obtaining any government documentation, including Passports, and Passport renewals.
19. Neither parent shall speak disparagingly of the other parent in any manner that might come to the attention of the children, or permit third parties to do so. Neither shall they engage in any subtle or openly negative influence that might undermine one of their son’s relationship with the other parent, his or her new partner, or extended family.

Table Child Support and Spousal Support

[75] The parties’ present incomes must be determined before addressing the mother’s claim for table child support. That of the mother is not in dispute: $80,728. The father’s 2015 line 150 income is $65,096. He agrees that he has certain non-taxable benefits and proposes that his income for support purposes be $70,000.

[76] The mother seeks imputation of $10,245, with a gross-up. A review of the father’s averaged vehicle, gas, and vehicle repair benefits over the past three years supports an imputation in this range. The evidence did not support the mother’s assertion that he also receives meal and entertainment benefits. The father’s employer – his father, was not questioned at all in this regard. Neither do I include a very modest benefit that the father enjoys for subsidized sports equipment, as this directly and only benefits the children, offsetting each of the activity costs that the parents have agreed to share.

[77] I find the parties’ present incomes on which support is to be determined are $80,728 for the mother and $65,096 for the father, grossed-up to include $10,245 of non-taxable benefits ($79,876).

[78] A week-about residence schedule invokes consideration of Section 9 of the Guidelines:

Shared custody

9 .Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[79] A DivorceMate calculation on the above incomes, using the shared residence formula results in the mother paying the father $14 per month in table support. Spousal support payable by the father comes into the Spousal Support Advisory Guidelines range only if he also receives the all the dependent tax credits for the boys. [11] Alternating, or sharing the credits (as appears to be required by current tax legislation [12]) results in a high range of support of $42 per month payable by the father. That range is eliminated should the mother not pay the $14. An almost equal division of net disposable income follows.

[80] As set out in the Guidelines, and explored in the plethora of cases since Contino v. Leonelli-Contino, 2005 SCC 63, and most recently in Khairzad v. McFarlane, 2015 ONSC 7148, the application of section 9 rests on more than a mere set off calculation. The court must consider the reality of how expenses for the children are met in each parent’s household, and not assume that time spent equals money spent.

[81] I have reviewed the most recent Financial Statements for each parent. Neither is a full record on which to determine this issue, as they were deposed in accordance with the prior schedule. However, in reviewing the totality of the evidence, there is no basis upon which I can find that either parent will have a disproportionately increased cost of parenting from that of the other. The costs of shelter, food and clothing in each household will be on par, and the parents are encouraged to be flexible about transferring the latter between households– particularly winter gear. Activity costs are to be shared.

[82] Future transportation costs may differ depending on the distances between their homes, the school and the boys’ activities, as each makes long term plans with the release of the house sale proceeds. That said, each has control of where he or she chooses to relocate, and I have provided that the parents will each transport the boys for their week. The costs of taking G. to his out of town medical appointments could be an increased expense should one parent do the preponderance of driving (and parking, as some appointments are in Toronto). There may be duplication in his equipment and supplies. I propose to deal with those items as special expenses so that each is shared.

[83] Order to Go as follows:

20. Neither parent shall pay table child support to the other. The temporary Order for child support of December 11, 2015 is terminated effective June 30, 2016.
21. The parents shall share, or alternate all tax credits and deductions for the children, including any credits and deductions relating to G.’s special needs.

[84] Because the suspension of the mother’s table child support and the sharing of child tax credit and benefits brings the parties’ respective incomes into parity, there shall be no order for spousal support.

Proportionate Sharing of Section 7 Expenses

Proportionate Shares

[85] The parents shall pay in equal proportions (50/50) any section 7 expenses.

What is a Section 7 Expense?

[86] Section 7 of the Guidelines provides that:

Special or extraordinary expenses

7. (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

Uninsured Health, Medical and Dental

[87] As addressed earlier in these Reasons, the mother shall cover the children on her employment benefits, and in consideration of her payment of the premiums, the father shall pay the first $100 each month of their total expenses. The balance of any uninsured health, medical and dental expenses shall be a section 7 expense.

Activity Costs

[88] Mother’s counsel provided a number of support calculations during the course of the trial. Revisions became necessary as the evidence progressed. For example, an initial calculation included swimming costs of $2,000 per annum that were not actually incurred. It was acknowledged in the mother’s closing submissions that covering the costs of all the listed activities might not be realistic.

[89] The parents enthusiastically support the boys’ enrolment in sports and activities, but may disagree from time to time as to the chosen sport, the frequency or the rep level. Cost may become an issue at the high rep levels. For the parties to share the costs of the sport or activity there must be an agreement in writing or on-line through the Family Wizard at least four days in advance of registration. Each parent has the option of deciding to unilaterally cover the cost of the activity, provided the other parent commits to transportation on his or her weeks.

[90] Costs of travel and accommodation for tournaments shall be the sole responsibility of the parent with whom the child is attending.

[91] The annual ski club cost for family registration shall be a shared expense, even though it covers the mother’s registration as well.

Nanny

[92] The parents have always enjoyed the services of a full time nanny. After separation, the mother continued to employ a nanny for child care and some housekeeping tasks. The service is essential to the mother’s ability to get to work in the morning and to earn her income, which the father relies upon in his submission that no table support ought to be paid per section 9 of the Guidelines.

[93] The father states that he does not need a nanny. He has reorganized his work schedule so that he can cover off both before and after school care on his alternate weeks. He suggests that the mother pay for a nanny as she needs the service, and that it not be a section 7 expense to which he is required to contribute.

[94] Section 7 (1) (a) specifically includes child care expenses incurred as a result of a custodial parent’s employment. The mother is a custodial parent. But for her income, the father would be obliged to pay child support. I find that the after tax cost of the mother’s expenses for a nanny are a section 7 expense. The cost cannot include housekeeping.

G.’s Special Expenses

[95] G. has additional expenses necessary to his care. All such expenses, including the uninsured portion of physical, occupational, and speech therapy are eligible section 7 expenses, as well as any augmentative communication, vision and hearing consultations.

[96] Certain of G.’s expenses may be eligible for grants and charitable receipts. Third party benefits and subsidies for disabled children are generally deducted from the amount of section 7 expenses claimed by a parent. [15]

[97] In this case, in which I have determined that no table support is to be paid by either parent, and each parent is responsible for the costs of the children while they are in his or her care; it is my determination that each parent ought to be free to individually apply for any third party benefits, subsidies and charitable receipts to assist with the special expenses while G. is in his or her care. Neither is required to make available to the other parent, monies received from his or her application(s.) However, each must make the other aware of any applications, so as to not cause duplication in the processing of claims by the third party organizations.

[98] Order to Go as follows:

22. The following expenses are deemed to be section 7 expenses. These and any other expenses agreed in advance shall be paid in equal shares: a. Annual Licence fees for the Family Wizard. b. Annual ski club registration (family). c. The mother’s after tax cost of a nanny, exclusive of housekeeping services d. The costs of a Passport, or any other government identification. e. Parking charges and any reasonable mileage costs for taking G. to appointments more than 45 minutes from a parent’s residence. f. Parking charges and any reasonable mileage costs for taking G. to appointments more than 45 minutes from a parent’s residence. g. All health, medical, medication and equipment needs for G. Each parent is free to access third party benefits to assist with his or her share of those expenses. Each may deduct expenses incurred in his or her annual tax return.
23. The parties shall exchange a copy of the prior year’s Income Tax Return by June 1 of each year, and Notices of Assessment within seven days of receipt. They are encouraged to do so through the Family Wizard. [16]

Further Submissions

Support Deduction Order

[99] The parties are encouraged to settle the actual amount of section 7 expenses payable under this Order and what, if any portion ought to be enforced within a Support Deduction Order filed with the Family Responsibility Office. If an S.D.O. is required by one or both parties, and the parents agree to its terms, a consent 14B Motion can be filed in the ordinary course. If they are unable to agree, counsels are to schedule a motion before me through the Barrie Trial Coordinator’s Office.

Costs

[100] If the issue of section 7 expenses is agreed, and costs are not, the parties may file written costs submissions following on the release of these Reasons, beginning with the father. He shall have 14 days to serve his submissions, the mother will then have 14 days for response, and then the father shall have 7 days for reply. If the issue of section 7 expenses has not been agreed, then both it and the issue of costs are to be argued before me. Counsels may agree to an alternative schedule for costs submissions to accommodate summer holidays.

Justice H. McGee

Date: July 27, 2016

Footnotes:

[1] The actual name of the syndrome is not relevant to these reasons, and is withheld in an attempt to afford some privacy to G. and the family as a whole. [2] Although each party retains the ability to ask for costs arising from the late settlement. [3] Dr. Gordon was listed as a witness for this Trial within the Trial Scheduling Order, but then was not called by the mother. [4] Being the table support for three children on income of $64,896. No retroactive support was, or ought to have been sought as the father made all the mortgage, insurance, gas and electrical expenses for the home prior to its sale. [5] There are a number of courses available in the community, such as http://www.triplep-parenting.net/ont-en/get-started/triple-p-courses-for-parents-of-children-birth-12-years. [6] Kaplanis v. Kaplanis, 2005 ONCA 1625, 10 R.F.L. (6th) 373 ONCA [7] Brook v. Brook, 2006 ONSC 12294, [2006] O.J. No. 1514 (S.C.J.) [8] See Habel v. Hagedorn, 2005 ONCJ 242, [2005] O.J. No. 3556 (O.C.J.), and Patterson v. Patterson, 2006 ONSC 53701, [2006] O.J. No. 5454 (S.C.J.). Bromley v. Bromley, 2009 ONCA 355, 2009 CarswellOnt 2210 (C.A.); R.K.K. v. B.M.M. and R.S., 2009 YKSC 38; Hsiung v. Tsioutsioulas, 2011 ONCJ 606. [9] Ladisa v. Ladisa, 2005 ONCA 1627, 2005 CarswellOnt 268 (C.A) [10] Warcop v. Warcop, 2009 ONSC 6423, 2009 CarswellOnt 782 (S.C.J.) [11] Using the updated software applicable to the 2016 Budget effective July 1 – which revised prior allocations for child tax credits and disabled child benefits. [12] The effect of the new Canada Child Benefit ("CCB") effective July 1, 2016 was not argued before me, but in working through its terms, it appears that shared custody parents are required to alternate, or share tax child benefits/credits. The new CCB is a non-taxable benefit that will be paid monthly and is based on adjusted family (or single parent) net income (line 236 of the income tax return) and the number of children in the family, up to a maximum benefit of $6,400 per child for children under the age of 6 and $5,400 per child aged 6 to 17.There is also an additional Child Disability Benefit component of the new CCB that will pay an additional $2,730 per eligible child. [13] Contino v. Leonelli-Contino, 2005 SCC 63 [14] supra [15] Schryver v. Schryver, 2014 ONSC 1824 (Div. Ct.) and Schill v. Schill, 2012 ONSC 3503. [16] Or in some other manner that will evidence compliance.