COURT FILE NO.: D-21284-15 DATE: 20170605

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Leslie Greene Applicant – and – Leo Greene Respondent

Applicant self-represented Respondent self-represented

HEARD: May 9, 10, 11 and 12, 2017

REASONS FOR JUDGMENT

Gauthier J:

Overview

1This matter was tried May 9th to May 12th, 2017 inclusive. The issues for trial were numerous and included custody, access, child support, both on a retrospective basis and ongoing, spousal support, equalization of net family property, designations under life insurance policies, and disposition of an RESP.

2The parties, who are 39 and 45 years of age respectively, were both without counsel. While they had counsel in the early stage of the litigation, they both became self-represented during the course of the litigation.

3The parties have a great deal of difficulty communicating with each other directly. There is animosity and distrust. Notwithstanding the conflict, the wife and the husband did their best to present their case. It was difficult and complicated. Although I attempted to assist both parties procedurally throughout the course of the trial, the presentation of the case was, at times, inefficient, and, overall, inadequate to permit me to determine all of the issues the parties wanted me to adjudicate upon.

4Each of the husband and the wife prepared a written list of the Orders sought. Those were marked as lettered exhibits in the trial.

Facts and History of the Proceedings

5The applicant (“the wife”) and the respondent (“the husband”) began cohabiting on July 15, 1998. The husband already had one child, B.A.S., born December 16, 1993.

6The parties’ first child, Sidney Greene, was born on November 10, 1999; she is now 17 years old. The parties married on August 23, 2003, and had two other children: Jordan, born August 12, 2004 (now 12 years old), and Sawyer, born December 14, 2005 (now 11 years of age).

7The parties separated on November 11, 2011, and reconciled in June 2012.

8The parties separated a second and final time.

9They began to live “separate and apart” although under the same roof, on July 17, 2014. The husband moved out of the matrimonial home in early November, 2014, and the wife remained in the residence with the three children. That residential arrangement continues today. In October 2016, the husband’s interest in the home was transferred to the wife; the agreed upon fair market value was $220,000. I will return to this fact later in these reasons.

10Between July and November 2014, all household bills and expenses continued to be paid from a Line of Credit (“LOC”) as they had been in the past. This arrangement ceased in November 2014. There were numerous transactions involving that LOC during the three-month period between July and November 2014. Who should have paid what during that period was a point of contention between the parties. In fact, the issue was identified in an Order made on September 29, 2015, when the court confirmed the purchase price as being $220,000 and which I refer to later in these Reasons.

11The wife is and has been employed as a Personal Support Worker at Pioneer Manor (a nursing home facility) for the past few years, but, until 2015, only earned modest amounts from that part-time-casual employment.

12According to the wife’s Notices of Assessment, her Line 150 income (which is the income used in connection with the calculation of child support in accordance with the Child Support Guidelines) for the past three years has been:

2014: $28,707; 2015: $51,156; and 2016: $43,432.

13According to the wife, her availability to accept additional shifts is curtailed because of her child care responsibilities.

14The wife’s employment does not provide her with medical benefits, health care benefits, or paid vacation time.

15For his part, the husband is employed on a full time basis with Vale. He has been so employed since 1999 or 2000. He currently works as a development miner. His Line 150 income for the past three years is as follows:

2014: $98,247; 2015: $94,086; and 2016: $92,008.

16The husband was in receipt of disability benefits from Manulife for the period from July to November 201, inclusive; he was off work due to the stress of the separation, according to his evidence.

17The children have remained in the primary care of the wife since the separation, and have spent time with the husband including overnight visits, mostly on weekends. The original anticipated visitation schedule and the second actual schedule are attached to the wife’s parenting plan and were part of the evidence in the trial. I will return to the parenting plan later in these Reasons.

Court Proceedings and Court Orders

18The wife began the proceeding by way of Application issued on June 1, 2015. The husband delivered his Answer on August 17, 2015.

19A case conference was held on November 19, 2015, at which time Czutrin J. made an Order (on consent) which dealt with, among other things, custody, access, child support, the husband’s pension, current and continuing section 7 expenses, and Christmas access. The issue of past extra-ordinary expenses was left for another day.

20I reproduce the relevant portions of that Order:

1. On an interim, interim without prejudice basis, the Respondent shall pay to the Applicant support for the children of the marriage Sidney Greene born November 10, 1999, Jordan Greene born August 4, 2004 and Sawyer Greene born December 14, 2005 in the amount of $1,818.00 per month, based on the Respondent’s expected annual income for 2015 of $99,310.00 less union dues of $990.61 for a net income of $98,319.00 commencing November 1st, 2015 and each and every month thereafter payable at a rate of $908.00 bi-monthly on the 15th and 30th of each month.

2. On an interim without prejudice basis, the Applicant and the Respondent shall have joint custody of the children, Sidney Greene born November 10, 1999, Jordan Greene born August 4, 2004 and Sawyer Greene born December 14, 2005 with primary residence of the children to be with the Applicant.

3. The pension plan administrator for Vale Ltd. shall value the Respondent’s pension (Family Law Value) with two separate and distinct commencing dates, those being the date of cohabitation, July 20, 1998 and the date of marriage, August 23, 2003, subject to further court order.

4. On an ongoing basis commencing November 1st, 2015, the Applicant and the Respondent shall bear the costs of the children’s extraordinary expenses in the proportionate share of 30% and 70% respectively, based on the approximate income for the Applicant of $42,500.00 for 2015 and the Respondent’s income of $99,310.00 less union dues of $990.61 ($98,319.00). The Applicant and Respondent shall provide supporting documentation and a calculation of the extraordinary expenses that they are claiming on a monthly basis.

5. The Respondent shall have care of the children from November 19, 2015 to November 30, 2015 in accordance with the schedule attached hereto as Schedule “A”. The parties will attempt to access on site mediation to achieve an ongoing parenting schedule after December 31, 2015.

6. The Applicant and the Respondent shall share the care of the children during the Christmas school holiday equally.

21An unsuccessful Settlement Conference was held on July 19, 2016.

22A further Order was made on August 22, 2016, which provided that (a) the husband was to have his Vale pension valued for the period of the marriage, that is, from August 23, 2003, to July 17, 2014; and (b) the wife was given 30 days to purchase the husband’s interest in the jointly owned matrimonial home, using an agreed upon fair market value of $220,000.

23The next Order was made on September 29, 2016, and provided as follows:

1. The date for the sale of the home to the Applicant is extended to October 14, 2016.

2. From the proceeds of sale due to the Respondent shall be paid to the Applicant the sum of $1527 representing the Respondent’s share of the Home Depot bill paid by the Applicant along with accrued interest thereon.

3. The Respondent’s share of the sale proceeds is to be calculated on the basis that the mortgage is paid in full from the purchase price which is agreed at $220,000. This is without prejudice to either party arguing at trial that the mortgage debt ought to be apportioned other than 50/50 given payments made on the mortgage/line of credit and the amount of any draws on the line of credit.

24The wife’s motion for a finding of contempt against the husband was dismissed by the judge presiding on September 29, 2016.

25On January 4, 2017, a further Order was made, setting the trial date, and providing directions for the conduct of the trial.

26On March 16, 2017, an Order was made addressing the amendment of the parties’ pleadings, and the delivery of updated Financial Statements and Net Family Property Statements.

27Finally, in the course of the trial management conference, on April 12, 2017, the presiding judge made the following endorsement:

Today was the continuation of the Trial Management meeting.

The applicant expressed an intention to call the children as witnesses. As an alternative I have suggested that the applicant put to the children a written list of questions after first sending them to the respondent for comment within 2 days of receipt.

Where there is no objection from the respondent, those questions shall be put to each child to answer. Their answers together with any further comment they wish to make shall be sealed in an envelope by each child with their initials being placed over the seal. The envelopes are to be delivered by the applicant to the trial judge at the opening of trial.

Once the responses have been shared by the court with the parties, either party may if they then choose to call any of the children as a witness at trial may do so.

28The trial proceeded on May 9, 10, 11, and 12, 2017. The evidence consisted of documents tendered and marked as Exhibits, and the testimony of the two parties. There were no other witnesses. The procedure suggested by the judge presiding over the trial management conference was followed.

29I will proceed with each of the issues raised, and will incorporate, under each separate heading, the position of each of the parties.

Divorce

30Section 8 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), provides as follows:

8 DIVORCE – (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

(2) BREAKDOWN OF MARRIAGE – Breakdown of a marriage is established only if

(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage;

(i) committed adultery, or

(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

31Although the Application did not request a divorce, the husband’s Answer did. The court file includes the Clearance Certificate from the Central Divorce Registry, as well as a certified copy of the Certificate of Marriage.

32The wife requested that the divorce order not issue given that her entitlement to coverage under the husband’s medical and extended health care plan, through his employment, will terminate if the parties become divorced.

33The Court does not have the discretion to delay the granting of a divorce based on the wife’s loss of health care benefits.

34The following comment is made in MacDonald and Ferrier, Canadian Divorce Law and Practice, loose-leaf (Toronto: Carswell, 2016-10). At p. 8-3:

Where spouses are living separate and apart as a result of the unilateral intention of one spouse, either spouse will be entitled to a divorce after the requisite 1-year period.

35This aligns with the words of Julien Payne, Payne on Divorce, 4th ed. (Toronto: Carswell, 1996), at p. 84:

The trial judge in a divorce proceeding has no residual discretion to refuse a divorce. A petitioner who satisfies the jurisdictional requirements of s. 3 of the current Divorce Act and who proved by a preponderance of credible evidence facts which constitute a ground for divorce under section 8 is entitled to a divorce judgment as of right, unless there are also facts giving rise to any of the bars of ground for the exercise of judicial discretion under sections 10 or 11 of the Divorce Act.

36Section 10 referred to, relates to the possibility of reconciliation, and section 11 establishes the four bars to divorce, being, collusion, connivance, condonation, and the absence of reasonable arrangements for child support. Neither section is applicable in this case.

37Accordingly, the husband is free to request a divorce order based on Affidavit evidence, pursuant to the provisions of Rule 36 of the Family Law Rules, O. Reg. 114/99. The corollary issues of custody, access, child and spousal support are severed from the claim for divorce, and will be dealt with in the Final Order.

Governing Legislation

38The wife’s Application sought custody, child support and spousal support pursuant to the Children’s Law Reform Act, R.S.O. 1990, c. C.12. However, the husband’s Answer, in addition to seeking divorce, made a claim for custody and access pursuant to the Divorce Act.

39Section 27 of the Children’s Law Reform Act describes the effect of divorce proceedings on unadjudicated claims for custody under the provincial statute:

Where an action for divorce is commenced under the Divorce Act (Canada), any application under this Part in respect of custody of or access to a child that has not been determined is stayed except by leave of the court.

40Therefore, the Answer has removed the wife’s claim from the Children’s Law Reform Act, and has made it subject to the Divorce Act. All corollary relief issues, that is to say custody, access, child and spousal support will therefore be governed by the Divorce Act.

Custody of Sidney, Jordan, and Sawyer

41The issue of the custody of the three children of the marriage is to be determined pursuant to section 16 of the Divorce Act. The relevant the factors to be considered and the principles to be applied to such custody and access orders include:

16(8) FACTORS – In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the conditions, means, needs and other circumstances of the child.

(9) PAST CONDUCT – In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

(10) MAXIMUM CONTACT – In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

42The evidence is clear that the wife has been the children’s primary care giver throughout their life. She was a “stay at home mother” for a number of years while the children were young, and now, only works around her children’s schedule.

43The husband pointed out that he provided a substantial amount of child care during the Vale strike (2010), and, in addition, was a co-foster parent with the wife, for a period of time during the cohabitation.

44Notwithstanding the husband’s claim for shared or joint custody of the children, there is no evidence to suggest that the wife was not the parent who was primarily responsible for the care of the children throughout the marriage. That situation has not changed since the separation of the parties.

45Not only does the wife see to the children’s physical needs (e.g. food, shelter, clothing) her life appears to be governed primarily by the care of the children and her involvement in all of their activities.

46The evidence establishes that the wife is acutely tuned to the children’s emotional and developmental needs. She has prepared an extensive and detailed parenting plan. In doing so, she attempted to involve the husband and provided him, on two occasions, with a draft plan. The husband did not respond.

47I have reviewed the questions prepared by the wife, pursuant to the presiding judge’s suggestion set out in the April 12, 2017 Order, and the corresponding answers of all of the three children. The answers provided by the children make it abundantly clear that they consider the wife to be their primary caregiver.

48I note that the questions appear fair and do not favour one parent over the other. The husband was provided with the draft questions, for comment, in accordance with the April 12, 2017 Order; he did not respond.

49There is no evidence to suggest that the children’s best interests would be served by an Order that does anything other than award the wife sole custody of the children. That is the Order I will make.

50The husband states clearly that he does not wish to even speak to the wife. He used words such as “high conflict”, and “volatile” when speaking about the parties’ separation and relationship.

51The inability of the parents to communicate regularly and civilly with each other, together with the other circumstances of this case, make a joint custody order, or a joint and shared custody order neither workable nor appropriate. Such order would not work in favour of the children’s best interests.

52Together with the award of sole custody to the wife, will be the responsibility of making day to day decisions concerning the children, including medical care, education, and discipline.

53The wife will consult with the husband regarding decisions to be taken about the children and their best interests, however, will have the final say in the event that the husband and wife cannot reach an agreement.

Access

54I have already set out above the “maximum contact principle” one finds in section 16(10) of the Divorce Act.

55The husband seeks to have as much contact as possible with the three children. He seeks “unlimited access” for the days and periods that he is not scheduled to work. Regarding how access should be determined, on the one hand, he suggests that the children should not be forced to visit with him, and, on the other hand, he suggests that it is the parents who should determine matters affecting the children.

56For their part, the children have expressed their preferences around access. The two younger children, Jordan and Sawyer wish to spend weekends with their parents when their parents are off work. They do not appear to want a schedule that provides for weekday access after school.

57For her part, Sidney indicates her preference as being spending one weekend a month with the husband. She also does not indicate an interest in after school access during the week.

58Insofar as summer access is concerned, the children were unanimous in requesting that the regular access schedule be followed; both Jordan and Sawyer have a desire for additional visits during the summer, but not for the duration of the husband’s entire vacation period.

59For other periods, including Christmas, Thanksgiving, Mother’s Day, Father’s Day, etc., the wife has set out, in writing, specifically what she is requesting (Exhibit A). The husband, for his part, did not specify the access he was requesting for those periods.

60Having considered the wife’s request, the evidence of each of the parties around access, and the children’s wishes, as expressed in composite Exhibit 1, and the evidence about the children’s involvement in extra-curricular activities, I conclude that the following access provisions will best serve the children’s best interests:

Weekend access

(a) The husband will have access to Jordan and Sawyer as follows. Weekend access will follow an eight-week rotation, in accordance with the current work schedules of the parents, reflecting the fact that the husband works two weekends then has two weekends off, and the wife works every other weekend. The weekend schedule will commence the first weekend of the father’s two weekends off following the release of this decision.

• Weekend one – the children with the husband
• Weekend two – the children with the husband
• Weekend three – access is shared between both parents
• Weekend four – the children with the wife
• Weekend five – the children with the husband
• Weekend six – the children with the wife
• Weekend seven – access is shared between both parents
• Weekend eight – the children with the wife

I note that the wife did not provide any information about access transitions between the parents, i.e. about when or where pickup and drop-off of the children would occur in relation to any visit, including the weekend access. Furthermore, she did not provide any details about the shared weekends, including how much time the children are to spend with each parent on a shared weekend, and where they will sleep. The wife and the husband will have to work this out between themselves.

The husband will have access to Sidney on one of the weekends during which Jordan and Sawyer are with the husband, to be selected by Sidney. The husband may have additional weekend access to Sidney based on her wishes. Weekend access shall include a Friday or a Monday, if the children have a “professional development” day at their school.

(b) The husband shall have access to Jordan and Sawyer for two one-week, non-consecutive periods, during the period from the end of school in June, until the end of August, in every year, commencing 2017; the husband shall provide notice of the weeks on which he wishes to exercise such access, by April 1 of each year;

(c) The husband shall have access to the three children from 4 o’clock on Christmas Eve, until 12 noon on Christmas day, at which time the children will return to the wife to be with her until boxing day at 12 noon. The balance of the children’s Christmas school vacation shall be divided equally between the parents.

(d) The husband shall have access to the children every Thanksgiving weekend from 2 p.m. on the Sunday, until 7 pm on the Monday, in every year, commencing 2017.

(e) The husband shall have access to the children on Father’s Day, from 12 noon, until 7 p.m., in every year, commencing 2017.

(f) The husband shall have such further and other access as the parties may agree to, or the children request.

(g) The husband shall have the authority and responsibility to make the day to day decisions concerning the children while they are in his care.

(h) The husband shall have unrestricted access to all three children by telephone, or electronic medium.

(i) All of the access by the husband to the child Sidney shall be subject to Sidney’s wishes.

(j) The husband shall have unrestricted access to information pertaining to the children’s education, health, and extra-curricular activities.

61I note that a portion of the access order that refers to summers is not directly in accord with the children’s wishes. This is included to encourage more meaningful contact between the children and the husband. Access orders are not based solely on the wishes of the children. Having said that, given Sidney’s age, it would be unrealistic and unhelpful to force a specified access schedule on her. She will be attending college in the fall and will likely have some part time employment and other extracurricular activities which will take up much of her time. She should, however, be encouraged by the wife, to spend meaningful periods of time with the husband. The children’s pets will accompany them when they are in the care of the husband.

Child Support

62All three children are “children of the marriage” as defined in the Divorce Act.

63Child support orders are governed by section 15.1 of the Divorce Act, which provides that a court making a child support order shall do so in accordance with the child support guidelines. In accordance with the Federal Child Support Guidelines, SOR/97-175 (“Federal Guidelines”), the quantum of child support is presumptively fixed by the Guidelines: s. 3(1).

64Every year, the payor spouse makes financial disclosure by way of income tax return and notice of assessment. This yearly disclosure is statutorily imposed on the husband by virtue of section 25(1) of the Federal Guidelines:

25(1) Every spouse against whom a child support order has been made must, on the written request of the other spouse or the other assignee, not more than once a year after the making of the order and as long as the child is a child within the meaning of these Guidelines, provide that other spouse or the other assignee with

(a) the documents referred to in subsection 21(1) for any of the three most recent taxation years for which the spouse has not previously provided the documents;

It will also be a provision of the Final Order that the husband and the wife shall update their income information on a yearly basis.

65Thereafter, in some manner, the child support is to be adjusted to reflect the updated income figure.

66Each party provided a document meant to be an aid in the calculation of child support for the years in question. Based on the wife’s calculations, the husband owes her the sum of $5,379 for child support as of the end of April 2017. The husband’s calculations have him owing the sum of $3,440. As I understand the calculations, the wife’s readjustments are as of January 1 of each year; the Husband’s is of April 1 of every year.

2014:

67The period in question, for child support, is November and December. The wife is seeking an Order for the payment of child support for the months of November and December, only. The child support “Aid” document reflects this.

68The husband’s income in 2014 for child support purposes was $98,247.

69Based on the 2014 income, he should have paid the sum of $1,816 per month for three children, based on the Federal Child Support Guidelines, for a total, for the two-month period, of $3,632.

70The husband paid $1,300 for the month of November 2014, and $1,800 for December 2014 for a total of $3,100.

71The husband owes the wife child support arrears for 2014 in the amount of $532.

2015:

72We know that the husband’s income for 2015 was $94,086. He would have been obligated to pay the sum of $1,750, for three children for the 12 month period, for a total of $21,000.

73In fact, (and the parties agreed on this) the husband did pay child support totaling $17,184 in 2015, broken down as follows:

(a) January to June, inclusive, the monthly sum of $1,800; (b) July to October, inclusive, the monthly sum of $687; and (c) November and December, inclusive, the monthly sum of $1,818.

74The Husband had unilaterally decreased the child support for the months of July to October, inclusive, as a result of being off work by reason of sick leave. The husband produced a note, dated June 18, 2015, signed by his family physician, which said that the husband was “off work for medical reasons June 18/15 – July 31/15…will be re-assessed by MD in 3 weeks.” No further medical evidence was produced in connection with the four month period of sick leave.

75The wife submitted that, for purposes of the child support payable during those four months, the court should impute income to the husband. The wife suggested that the leave from work was not legitimately a medical leave, but rather, a situation of voluntary unemployment. She filed into evidence electronic communications from the husband that she says supports her position. Further, the wife argued that the husband’s year to date income, as shown on Exhibit 14 reflected that, as of mid-July, 2015, the Husband had already earned some 70% of his total income for 2015.

76I have considered the wife’s argument in this regard and have concluded that the evidence is insufficient for me to conclude that the husband ought to have additional income imputed to him for the four-month period during which he was off work.

77Having said that, the husband’s Notice of Assessment sets out his yearly income for 2015. It is on that basis that the quantum of child support is arrived at. The husband’s decrease in income for the months of July to October, inclusive is a short term decrease. It does not qualify as a material change in circumstance, that is, a change that is “substantial” and “has some degree of continuity, and not merely be a temporary set of circumstances”: see L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775. It does not justify a reduction in child support for the four months in question.

78The husband’s short term decrease in income is in fact reflected in his Line 150 income and, as such, the decrease has already been accounted for when calculating child support.

79To be clear, the decrease due to being off work was temporary, the reduced income was accounted for, and the monthly amount of child support for those months in question should have remained at $1,750.

80The husband owes the wife child support arrears for 2014 in the sum of $3,816.

2016:

81Based on the husband’s 2016 income of $92,008, the child support payable for the three children would have been $1,719 per month.

82The husband should have paid the sum of $20,628. He in fact paid $21,816. This results in an overpayment/credit to the husband, in the amount of $1,188.

2017 and going forward:

83The 2017 child support will be based on the husband’s 2016 income as it is actually known. It will continue to be payable at that rate until July 2018.

84The husband’s child support obligation was in the amount of $1,719 per month. To June 30, 2017, he should have paid a total of $10,314. He will have in fact paid $10,908. He is entitled to a credit of $594 for the overpayment to June 2017.

85The total arrears of child support are fixed at $2,566. The husband will need to make arrangements with the Family Responsibility Office (“FRO”) to repay the arrears.

86On a prospective basis, it is reasonable to base the quantum of child support for the first six months of the calendar year, i.e. January to June inclusive, on the payor’s actual income from two years prior. By July 1 of every year, the husband will have his T-4 slip, will have filed his personal income tax return, and should have received his Notice of Assessment reflecting his actual Line 150 income for the previous year. By the end of June in every year, the husband should have discharged his financial disclosure obligations and provided the wife with a copy of his T-4 and Notice of Assessment. The parties then could adjust the amount of child support and complete a Consent Motion to Change Final Order, without the necessity of returning for another in-court hearing.

87The wife and the husband would be well served to continue to adjust the child support, on an ongoing basis, in the manner that I have suggested.

Payment of Child Support Directly to Sidney Upon her Attaining the Age of Majority

88The husband has requested that at least a portion of the child support payable for Sidney be paid to her directly, once she attains the age of majority. The wife does not agree.

89Courts outside of Ontario have, in certain circumstances, found that it was appropriate for child support payments be made directly to the child, however, the authority to make this order is less clear in this province.

90Although the judge in Johnson v. Johnson, 2002 CarswellOnt 2831 (Sup. Ct.) accepted that there was authority for such direct payment, he outlined certain policy considerations, which I consider to be germane to the inquiry in the present case:

(a) Direct payments to a child should contain no amount to defray the dependent parent’s costs and therefore are only appropriate where the child maintains his or her own home and expenses;

(b) Direct payments where the custodial parent still maintains a home for the child divert funds away from that parent, interfere with budgeting for both parent and child, and give a message that the parent cannot be trusted.

91In addition, there is the potential problem of enforcement. The FRO is mandated to collect support. To pay support directly to a child requires the parents to formally withdraw from the mandatory enforcement program.

92On the facts of this case, I cannot conclude that an order for direct payment is warranted. The law in Ontario appears to be that courts should only make such an order where the evidence clearly established that such is warranted. On the facts of this case, where it is anticipated that Sidney will continue to reside with the wife and the other two children, I cannot reach that conclusion. The husband’s request will be denied.

Manner of Enforcement by the FRO

93According to the husband’s evidence, he is paid twice monthly by his employer, however, the child support, which is paid directly by the employer to the FRO, is deducted from his pay cheque only once per month. He has requested an order that the child support be deducted twice monthly and not once per month.

94The September 19, 2015 Temporary Order provided for the child support to be paid twice per month, on the 15th and the 30th. I will make the Order, on a Final basis, that the husband’s employer comply with the direction of the court to deduct the child support twice per month, instead of once per month. The Final Order will include such direction to the Supervisor of Payroll for Vale.

Quantum of Child Support and the Husband’s First Child, B.A.S., born December 16, 1993

95The husband suggested that the quantum of child support that he paid for the three children of the marriage between November 2014 and April 2015, should be revisited because of the child support that he was paying (pursuant to a court order) toward B.A.S., his first child, during the same period of time.

96It is not appropriate (and maybe even not possible) to revisit the issue of quantum of child support for the three children of the marriage at this time. The Order pursuant to which the husband has been paying child support (the September 19, 2015 Order) was based on the consent of the parties. The husband cannot now take issue with that Order. Additionally, it appears that, while the Guidelines do not specifically address the balancing of child support obligations for children in first families and subsequent families, any relief from the obligation to pay, or reduction in the amount to be paid, would necessitate a successful claim for undue hardship, and, the test for undue hardship has a high threshold.

97For the above reasons, I must reject the husband’s request to revisit the amount of child support for the three children of the marriage, for the period in question.

Including the Child Tax Credit in the Wife’s Income

98The husband pointed out that the wife receives some $1,400 per month as a non-taxable child benefit, and he suggested that it should be taken into account when considering the parties’ respective incomes for child support purposes.

99The Guidelines stipulate that

To calculate income for the purpose of determining an amount under an applicable table, deduct

(a) The spousal support received from the other spouse; and

(b) Any universal child care benefit that is included to determine the spouse’s total income in the T1 General form issued by the Canada Revenue Agency.

100The child benefit therefore has no place in the consideration of quantum of child support. Nor does it impact on the calculation of income for purposes of section 7 expenses.

Extraordinary Expenses (Section 7)

101Section 7 of the Federal Guidelines addresses the matter of extraordinary expenses: how they are defined, how they are shared, and how the share is impacted by a child care benefit.

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.

Definition of “extraordinary expenses”

(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

Universal child care benefit

(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit.

102The September 19, 2015 Order included provisions for section 7 expenses. The relevant paragraphs were reproduced earlier in these Reasons.

103By virtue of the Order, the husband agreed to defray his proportionate share of extraordinary expenses, being 70%. It was agreed that documentation and the calculation of the extraordinary expenses would be exchanged by the parties on a monthly basis. The issue of past extraordinary expenses was to be dealt with at a later date. The order did not list what exactly the extraordinary expenses were.

104The Husband has not made any payments toward the children’s extraordinary expenses, save and except as follows:

(a) $155 for soccer registration for Sawyer on May 5, 2015; (b) $460.80 for Sidney’s school trip in May, on February 8, 2016; and (c) $368 for Sidney’s driving course on February 8, 2016.

105The wife filed a summary of the extraordinary expenses for which she is claiming proportionate reimbursement, from December 2014, until June 2015. The title of the schedule refers to a “22/78 split”, yet the document itself appears to apportion the cost of the extraordinary expenses on a 30%/70% basis.

106The expenses relate to the cost of taxi expenses for Sidney, guitar lessons for Jordan, guitar lessons for Sawyer, RHP training for Sawyer, and hockey tournament costs. According to the wife’s evidence, all of these costs had been discussed by the parties and were properly characterized as extraordinary expenses.

107The husband did not take issue with the amounts claimed in Exhibits 5 to 10 inclusive, but rather, he disagreed that these costs were true extraordinary expenses, and argued that they should have been paid out of the child support amount.

108The wife explained the necessity and reasonableness of the specified activities and their associated costs.

109The taxi expense was incurred by the family when the parties were together and continued after the separation. The wife and the husband had decided that it was better to pay the daily cost of a taxi to pick up Sidney and bringing her to her school, after she put her siblings on the bus for school, than having to pay for day care for the two children before the start of the school day. It was $10 per day versus $30 per day. The wife testified further that she attempted, in the course of the summer of 2015, to end the use of a taxi so that the two younger children could take the bus on their own, but the husband did not agree with this arrangement. The taxi expense continued to be incurred until the end of April 2016.

110I have no difficulty concluding that the taxi expense is a special or extraordinary expense as defined at section 7(1)(a) of the Guidelines. The expense was clearly incurred as a result of the parent’s employment, and her absence from the home when the two younger children were to take the school bus. The total cost for that expense was $150 in 2014 and $650 in 2015.

111The other expenses claimed are as follows:

(a) For Jordan, the cost of guitar lessons, from January 2015, until December 2015, totalling $1,211.30; (b) For Sawyer, the cost of guitar lessons, from January to June 2015, in the amount of $485.65; (c) For Sawyer, the cost of RHP hockey training for March, November and December 2015 totalling $496.07. For Sawyer, the cost for RHP hockey training for January to April 2016 totalling $519.80; (d) For Sawyer, the cost of hockey equipment in 2015 in the amount of $400.00; (e) For Sawyer, the cost of 3 on 3 hockey in 2016 in the amount of $255; (f) For Sawyer, expenses relating to tournaments in 2015 in the amount of $460.27; (g) For Sawyer, hockey registration, tournament costs and equipment for 2016 totalling $1,087.82, and $250.30 for 2017; (h) For Sidney, the cost of her driver’s licensing exam in 2015 in the amount of $148.75, a course (described simply as “school course”, which I take to be the driver’s education course), and cash for a school trip, totaling $220 in 2016; (i) For Jordan, swimming club fees for 2016 in the amount of $950; and (j) For Sidney’s application cost and deposit to Cambrian College in the amount of $595 in 2017.

112In assessing the character of the expenses claimed (music lessons, swimming lessons, hockey fees, equipment, and tournament costs, driver’s license exam, course, school trip), I am to apply the test for awarding extraordinary expenses as described by the Ontario Court of Appeal in Titova v. Titov, 2012 ONCA 864, 29 R.F.L. (7th) 267 [Titova], at para. 23, as follows:

In awarding s.7 special and extraordinary expenses, the trial judge calculates each party’s income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s.7 of the Guidelines, determines whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation. If the expenses fall under s.7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”.

113I will first consider whether the expenses are reasonable. In 2014, the parties’ respective incomes would have been $28,707 and $98,247, for a total combined family income of $126,954. Given that level of income, the expenses for the above listed activities would likely have been subsumed in normal expenses. In fact, one sees from the spreadsheet at Exhibit 32, that the cost of hockey registration and equipment was paid out of the family’s LOC. They were reasonable expenses for the children at the time.

114According to the wife’s evidence, the child Sidney did take piano lessons while the parties were still together, and, the two younger children had begun to express their interest in guitar lessons before the separation.

115I turn now to the next consideration, which is whether the expenses are necessary “in relation to the child(ren)’s best interests”.

116The concept of “necessity” in terms of the best interests of children has been broadly interpreted. In Easton v. McAvoy, 2005 ONCJ 319, [2005] O.J. No. 5479, the judge permitted expenses relating to hockey, soccer, swimming and gymnastics. He had this to say, in the context of the concept of “necessity”, at para. 42:

…[T]he participation of children in physical activities is not a luxury. This develops bodies and minds, introduces them to healthy activities and lifestyles and instills a sense of challenge, self-confidence and accomplishment that comes with such participation.

117The evidence is uncontradicted that the activities in question are beneficial and appropriate for the children: The RHP hockey training for Sawyer was of assistance to him, in becoming more proficient in his hockey skills and assisting him in relating in a more beneficial manner with other boys. Sidney will be attending college in Sudbury in the fall of 2017. There is no bus service from the wife’s residence to the City of Sudbury. The closest bus stop is five kilometers away. It was and is reasonable for Sidney to learn to drive in order to be responsible for her own transportation for school, part-time work, and other activities.

118The Waves swim program that Jordan takes part in has helped her be consistent in her participation in events. Additionally, it went some distance in alleviating the loneliness she has felt being put in a class at school, without any of her friends.

119Thus, the question becomes whether the above expenses are “extraordinary”. The answer will be affirmative if one can describe the expense as “special or extraordinary expenses that are determined to be additional costs of raising a child that are not incorporated in the table amounts”: Ostapchuk, v. Ostapchuk, 64 O.R. (3d) 496.

120Extraordinary expenses were described as “unusual”, or “disproportionate” by several Ontario courts, relying on the Manitoba Court of Appeal in Andries v. Andries, 126 Man. R. (2d) 189:

An expense for an extra-curricular activity is extraordinary only where it is disproportionate to the usual costs associated with that particular activity. The income of the parties is irrelevant in determining whether an expense is extraordinary. It is only if the expense is otherwise found to be extraordinary, in the sense of being unusual or exceptional according to an objective standard, that one looks to the incomes of the parties to determine whether the expense is reasonable and in accord with the spending patterns of the parties prior to the separation.

121I am satisfied that the expenses in question were reasonable, beneficial to the children, and outside those ordinary expenses that are intended to be covered by the basic table amount of child support.

122I have determined that the sum of $500 as a deposit for Sidney’s upcoming tuition, and the cost of the college application fee of $95 are also proper section 7 expenses that the husband should contribute to, in proportion to his income.

123The actual tuition cost for Sidney and the amount of the husband’s proportionate share will be determined once the tuition fee is actually incurred, and after taking into account whatever RESP funds are applied toward the tuition. As well, the parties will have to determine what is an appropriate percentage share for Sidney to contribute to her post-secondary education expenses. While this issue was raised in the course of the trial, no definitive percentage or share to be contributed to by the child herself was determined or suggested by the parties.

124In conclusion, the husband owes the wife the following amounts for his share of the past section 7 expenses:

(a) December 2014, $115.50 representing his 77% share of the $150 taxi expense; (b) 2015, the sum of $2,503.83 based on a 65% proportionate share of the total expenses of $3,852.04; (c) 2016, the sum of $2,062.18 based on a 68% proportionate share of the total expenses of $3,032.62; and (d) 2017, the sum of $574.80 being 68% of the total expenses of $845.30.

125As indicated at paragraph 104 of these Reasons, the husband paid a total of $983 for (a) soccer registration (May 2015); (b) for Sidney’s driving course (February 8, 2016); and (c) for Sidney’s school trip. While the wife has not claimed expressly claimed these expenses, they are proper section 7 expenses and should have been shared by the parents, in proportion to their income. The husband’s proportionate share is $668.44. Therefore he is entitled to a credit of $314.56 towards the section 7 arrears. The Final Order will reflect this.

126On a going forward basis, the parties shall share the section 7 expenses in proportion to their incomes and the Final Order will reflect this.

127To recap, in addition to the $983 paid by the husband, the section 7 expenses to date of this decision are as follows:

2014 – $150.00 2015 – $3,852.04 2016 – $3,032.67 2017 – $845.30.

128Given the above calculations and credit the husband is entitled to, the arrears of the husband’s share of those expenses is $4,941.75.

Medical and Extended Health Care Coverage for the Children

129The husband has and will continue to provide medical and extended health care coverage for the children, provided such coverage is available to him through his employment. He is agreeable to doing so.

130The wife has requested an order that the husband and wife share the actual cost of medical, dental, optical, and other health-related expenses in the event that coverage should become unavailable to the husband.

131I decline to make such an order, as it is speculative to discuss such an eventuality. There is no evidence that the terms of the husband’s employment may change in the foreseeable future, such as to disentitle him and the children to such coverage.

132The wife further requests an order permitting her to deal directly with the husband’s health care insurance carrier, in order to obtain information about claims submitted on behalf of the children and to obtain information on the processing of such claims.

133The husband resists such an order maintaining that it is his plan and not the wife’s.

134It is not unusual for there to develop issues between separated parties, around the processing of claims under the health care plan of one or the other of them.

135I see no mischief in permitting the wife to communicate directly with the husband’s health care insurance carrier about claims for the children who are and will continue to be primarily in her care. I will make an Order directing the husband to provide a written authorization to the wife, permitting her to communicate with and receive information from the husband’s health care insurance carrier, about claims submitted for the children.

Medical and Extended Health Care Coverage for the Wife

136The wife seeks an order that the husband obtain and pay for a health care plan for the wife, as she will no longer be entitled to coverage under the husband’s plan once a Divorce Order is made. She requests that he be responsible for same until such time as a health care plan becomes available to her through her employment.

137The wife did submit a document entitled “Individual Health Insurance Quote Summary”, which describes, in summary fashion, different private health insurance plans, with monthly premiums from $75.70 to $175.50. However, no such document was ever produced to the husband prior to the trial. He had no opportunity to prepare for this issue, or even obtain his own evidence with regard to the availability and cost of private extended health care plans.

138In the circumstances, and on the limited evidence, I do not find it appropriate to make the order requested by the wife.

Spousal Support

139The wife indicated that she is not seeking spousal support at this time, because of the parties’ respective incomes and the child support obligations of the husband. However, she nonetheless requests an order that she be entitled to same, once the husband is no longer obligated to provide child support for Sidney. She suggests that the termination of the obligation to pay the child support for Sidney will be a material change in circumstances, entitling her to spousal support.

140The jurisprudence establishes that the termination of child support can be a material change in circumstances for the purpose of a spousal support obligation: Hersey v. Hersey, 2016 ONCA 494.

141This principle arises because a court must give priority to child support over spousal support. Section 15.3(3) of the Divorce Act provides as follows:

Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.

142This was a medium-length marriage; the total years of cohabitation was 16. The union generated three children. The wife remained at home and played the traditional role of homemaker until her mid-to-late thirties. She provided the bulk of the care for the children. The husband was free to pursue his career as a miner.

143In the circumstances, the wife would have been entitled to spousal support, on a needs basis for the early years of the separation, and also on a compensatory basis.

144I have attached as a schedule to this decision the DivorceMate calculations pursuant to the Spousal Support Advisory Guidelines for the years 2014 to 2016 inclusive. The wife would have been entitled to spousal support at a mid to high range of $151 to $569 for the year 2014. For the other two years, the spousal support would have been at zero, according to the SSAG.

145The claim for spousal support is being dismissed in favour of an order for child support. Therefore, the wife is entitled to bring a subsequent application for spousal support. Section 15.3(3) of the Divorce Act can be relied upon to make an argument for a material change in circumstances justifying a spousal support order.

Life Insurance

146The husband holds two life insurance policies: One is through his employment with Vale and it has a value of $45,000. The second is with London Life and has a value of $50,000.

147The wife requests that the three children of the marriage be designated as irrevocable beneficiaries of both policies, that the wife be designated as the Trustee for the children, and that the husband be prevented from borrowing against either policy for as long as he continues to have a child support or spousal support obligation.

148For his part, the husband indicates that the beneficiaries of the life insurance policies are his four children, including B.A.S., and that he is in the process of arranging for the Royal Bank to be the trustee.

149Given the child support obligations of the husband, it is appropriate to order him to irrevocably designate the three children of the marriage as the beneficiaries of three quarters, or 75% of the total value of each of the two policies. It is also appropriate that the husband appoint the wife as the Trustee of those shares in his life insurance, until such time as none of the children is a dependent. I will make such order.

Occupation Rent

150The husband advanced a claim for occupation rent payable by the wife, for the first time, in the course of the trial. Such was not claimed by the husband in his Answer or his Amended Answer.

151The basis, as I understand it, of the husband’s occupation rent claim, is that he essentially was forced to leave the matrimonial home, and incur a monthly rental expense of some $1,200, plus having had to come up with a first and last month’s rent.

152I will not grant the husband’s claim for occupation rent. I reject it not only because of the late stage at which it was raised, but also on the merits.

153An award for occupation rent will be made where it is fair and equitable to do so. See Higgins v. Higgins, 19 R.F.L. (5th) 300. The evidence is that the wife had told the husband that if he did not leave the home, she would do so, with the three children and their beds.

154On the facts of this case, it was reasonable for the wife to continue to occupy the matrimonial home, with the three children. The home was a stable factor for the children. To have moved them out of the home could well have added to the stresses children suffer as a result of the separation of their parents. Furthermore, given the modest income of the wife in 2014, securing and paying for adequate accommodation for one adult and three children (with pets) would have caused significant difficulties for the wife.

155Finally, the husband did not lead any evidence to establish the appropriate amount of rent which the matrimonial home might have brought during the period in question.

Registered Education Savings Plan:

156The parties jointly own an RESP, with an approximate balance (based on the wife’s most recent Financial Statement), in the amount of $33,146.

157The wife wishes to exclude the RESP from any equalization calculation. She wishes to be solely responsible for managing the plan, for the benefit of the children. She proposes to divide the amount of the RESP into three shares, one for each of the children. She foresees using the RESP funds to defray the cost of tuition, books, parking passes, and/or tools or equipment. She is prepared to account to the husband for any funds withdrawn from the plan, and will not withdraw any funds save and except for the children’s education.

158There is authority for excluding RESPs from the parties’ net family property and thus excluding the value from the equalization calculation. In J.B. v. D.M., 2014 ONSC 7410, Horkins J. stated, at paragraph 121:

This RESP money belongs to the children and is not part of the equalization process. The money in the RESP account is for the children’s education and belongs to them. It is not an asset that is equalized.

The issue of who should have control of the RESP is easily resolved in favour of the wife. By all accounts (including the husband’s testimony) the wife was always the one to manage the family’s finances; the husband played virtually no role in that responsibility. The husband, for his part, requests that “the RESP be divided equally between the Applicant and the Respondent, both share [sic] to be used equally for children’s education.” This request suggests that the husband also is suggesting that the value of the RESP be taken out of the equalization calculation. The wife’s proposal is reasonable and the most efficient manner of managing the plan. I will make an Order accordingly.

Equalization of Net Family Property

159Although the wife and the husband used their best efforts to complete accurate Net Family Property Statements, those documents did not assist significantly in the determination of the parties’ net family property, and the calculation of equalization.

160As well, save and except for bank accounts, savings, securities and pensions, the parties understandably had difficulty marshalling admissible evidence to accurately reflect the value of their assets at separation. I refer particularly to chattels such as furniture, recreational equipment and such.

161Having said that, the parties were able to agree on the value of each of their vehicles, and the 2013 Polaris ATV and trailer.

162An issue arose about the value of the wife’s pension. The documentary evidence she delivered did not specify the Family Law Value of the pension. As such, the evidence was deficient. After some discussion with the parties, it was agreed by them that the value of the pension, for purposes of the wife’s net family property would be $2,688. The only other alternative was to adjourn the equalization portion of the trial for the wife to obtain a proper family law value of this asset, which would have been disproportionate to the amount involved.

163Another wrinkle in this case was around the value of the husband’s pension. The parties had agreed that they had been involved in a “joint family venture” from the period of their pre-marital cohabitation, until the date of marriage. That would have implied that the value of the husband’s pension, accumulated during that five year period, would have been included in the valuation of the pension. In fact, the November 19, 2015, Order provided that the pension plan administrator for Vale would value the husband’s pension “with two separate and distinct commencing dates, those being the date of cohabitation, July 20, 1998, and the date of the marriage, August 23, 2003, subject to further court order.”

164There was a further court order, made on August 22, 2016, to the effect that the husband would have his pension valued “for the period of the marriage from August 23, 2003, to July 2014.” This order effectively removed the pre-marital value of the pension from the calculation of the husband’s net family property. That order was never appealed, or set aside, or varied. Thus, the calculation of the husband’s net family property excludes the value of the pension accumulated in the five-year period in question.

165A further issue arose about the value of a metal boat. The wife submitted that, based on information she obtained from Kijiji, the boat had a value of at least $1,500. For his part, the husband assigned a value of $1,000 for that asset in his Financial Statement delivered on March 31, 2017. However, at trial, he maintained that the boat had been given to him by his father, and, as such, would be excluded property. I excluded the value of the boat from the equalization calculation.

166After much discussion, it was agreed that no value would be assigned to household contents and other chattels that the parties had divided between themselves. Therefore no value was considered by me in my calculation of the parties’ net family property. Likewise the value of the matrimonial home was excluded, as it was dealt with separately.

167Based on the evidence, I make two findings related to the parties’ debts. First, I have concluded that they were all joint debts. Second, the LOC was used for the payment of the family’s expenses for purposes of running their household between July 2014 and November 2014, when the husband left the home.

168All of the parties’ living expenses, including housing costs and children’s activities, were paid out of the couple’s pooled funds, which were transferred into the LOC, before separation. This arrangement continued during the three months between the decision about separation, and the actual physical separation in early November, 2014. According to the wife’s evidence, the husband did not continue to regularly deposit his pay cheques for transfer into the LOC. He did, however, between July and November contribute the sum of $4,318.58 to the LOC. That total includes interest on the home line, some child support, and transfers from a joint account.

169The amount owing on November 3, 2014, $40,579.61 was a joint debt. It eventually was paid out in full when the wife purchased the husband’s share in the home and a new mortgage was renegotiated. Both parties absorbed that debt, and therefore I have not figured it in the net family property calculation.

170Both parties took issue with the amount of the LOC and who should have been responsible for what payments during the subject four month period (mid-July to early November 2014). As I indicated earlier in these Reasons, I was unable to give effect to paragraph 3 of the September 29, 2016 Order that the parties could argue “that the mortgage debt ought to be apportioned other than 50/50 given payments made on the mortgage/line of credit and the amount of any draws on the line of credit.”

171The wife filed more than 60 pages of documents relating to the LOC, including bank statements and drug store receipts.

172The exercise to parse out each party’s responsibility would have amounted to something like a forensic accounting. I was unable to, nor was it my role, as the trial judge to engage in such an exercise.

173Finally, an issue arose about the parties’ Bayliner boat, which remained at the matrimonial home when the parties separated, and, which both parties valued at $5,000. It appears that neither party wants to have that particular chattel. The only reasonable solution is to sell the boat and share the sale proceeds equally. I will include such provision in the Final Order.

174I reproduce below the value of assets owned on valuation date, by each party, and the calculation of the equalization, having taken into account all of the factors I have set out above.

Value of assets owned on valuation date

ITEM	APPLICANT	RESPONDENT
Honda Pilot	$26,000.00
Ford F150		$13,500.00
2013 Polaris ATV & Trailer	$1,540.00	$5,300.00
RRSPs 28638208	$11,760.00
RRSP 4418		$1,581.00
Spousal RSP	$2,688.60
Applicant’s Pension	$3,298.59
Respondent’s Pension		$78,252.35
Labour Fund – Manulife

Net Family Property: Applicant: $45,287.19 Respondent: $98,633.35

175The difference between the parties’ net family property is $53,346.16, in favour of the husband. Accordingly, the husband owes the wife the sum of $26,673.08 to equalize the parties’ net family property.

Prior Separation Agreement

176The Wife seeks to have the earlier separation agreement declared invalid because the parties reconciled and subsequently lived together from June 2012 to July 2014.

177For his part, the husband requests that the court enforce the agreement. Although it was not made clear to me, I believe the husband was attempting to challenge some of the wife’s dealing with the parties’ investments, either during the period of the prior separation, or the period subsequent to the reconciliation, which shares had already been provided for in the agreement.

178The Ontario Court of Appeal in Sydor v. Sydor, 44 R.F.L. (5h) 445, considered the effect of reconciliation on a separation agreement. At paragraph 22, Feldman J.A. said this:

[T]he common law rule is…the separation agreement is void upon reconciliation, subject to a specific clause in the agreement that would override the common law or a clause that would be implied from the agreement that the intent of the parties was that transactions carried out under the agreement will remain in place.

179The parties’ earlier Separation Agreement provided specifically, at paragraph 30 that:

If Party 1 and Party 2 with their mutual consent cohabit as wife and husband for a period of more than 90 days with reconciliation as the primary purpose of the cohabitation, the terms of this agreement will become void, except that nothing in this paragraph will affect any payment or transfer done according to the terms of this agreement.

Costs

180The wife seeks her costs “on a substantial indemnity basis”. The husband seeks “Costs on indemnity basis”.

181Given that neither party was represented by counsel for the trial, and that there is no clear winner or loser in this case, I am inclined to suggest to the wife and the husband that they each bear their own costs of the trial. In the event that either or both of them feel strongly that such a costs outcome is not appropriate, then each of them may make written submissions to me on the issue of costs. Those submissions must be received within 30 days of the date of this Order, and must be served on the other party. They are to be limited to four pages, double-spaced.

Conclusion

182At the opening of the trial, the wife and the husband made it clear that they were looking to the court to sort out all of the issues that have arisen as a result of their separation.

183I have attempted to do that, keeping in mind the limitation on the court’s jurisdiction, authority (in dealing with matters of property and equalization, the authority is statutory), and resources. A court is never able to solve each and every problem that arises from a separation. I have attempted to address as many of the parties’ issues as I was able to do.

Final Order

184Final Order:

1. THIS COURT ORDERS THAT the claim for divorce can proceed, on an uncontested basis, on Affidavit evidence, in accordance with Rule 36 of the Family Law Rules.

2. THIS COURT ORDERS THAT the wife, Leslie Greene shall have sole custody of the children Sidney Greene, born November 10, 1999, Jordan Greene, born August 4, 2004, and Sawyer Greene, born December 14, 2005.

3. THIS COURT ORDERS THAT both parents shall be listed as emergency contacts with the children’s schools or other organizations involved with the children.

4. THIS COURT ORDERS THAT the parents shall notify each other immediately if the children experience a medical emergency.

5. THIS COURT ORDERS THAT both parents have the right to make emergency medical decisions respecting the children while they are in their care.

6. THIS COURT ORDERS THAT in the event of an emergency, both parents shall attempt to reach the other parent before making emergency medical decisions for a child.

7. THIS COURT ORDERS THAT the childrens’ health cards shall travel with them between the parents’ residences.

8. THIS COURT ORDERS THAT the husband Leo Greene has the right to consult with and obtain information, records, and report cards directly from the children’s teachers, doctors, or any other professionals involved with the children’s health, education and general welfare.

9. THIS COURT ORDERS THAT the husband Leo Greene shall have access to Jordan and Sawyer as follows. Weekend access will follow an eight-week rotation, in accordance with the current work schedules of the parents, reflecting the fact that the husband works two weekends then has two weekends off, and the wife works every other weekend. The weekend schedule will commence the first weekend of the father’s two weekends off following the release of this decision.

• Weekend one – the children with the husband
• Weekend two – the children with the husband
• Weekend three – access is shared between both parents
• Weekend four – the children with the wife
• Weekend five – the children with the husband
• Weekend six – the children with the wife
• Weekend seven – access is shared between both parents
• Weekend eight – the children with the wife.

10. THIS COURT ORDERS THAT the husband Leo Greene will have access to Sidney on one of the weekends during which Jordan and Sawyer are with the husband, to be selected by Sidney. The husband may have additional weekend access to Sidney based on her wishes. Weekend access shall include a Friday or a Monday, if the children have a “professional development” day at their school.

11. THIS COURT ORDERS THAT the husband Leo Greene shall also have the following access:

(a) With regard to Jordan and Sawyer, for two one-week, non-consecutive periods from the end of school in June, until the end of August, in every year, commencing 2017; the husband shall provide notice of the weeks on which he wishes to exercise such access, by April 1 of each year; (b) Every Thanksgiving weekend from 2 p.m. on the Sunday, until 7 p.m. on the Monday, in every year, commencing 2017; (c) On Father’s Day, from 12 noon, until 7 p.m., in every year, commencing 2017; (d) Such further and other access as the parties may agree to, or the children request;

12. THIS COURT ORDERS THAT the husband Leo Greene shall have the authority and responsibility to make the day-to-day decisions concerning the children while they are in his care.

13. THIS COURT ORDERS THAT the husband Leo Greene shall have unrestricted access to all three children by telephone, or electronic medium.

14. THIS COURT ORDERS THAT all of the access to the child Sidney shall be subject to Sidney’s wishes.

15. THIS COURT ORDERS THAT the husband Leo Greene shall pay to the wife Leslie Greene, for the support of the children of the marriage, Sidney Greene, born November 10, 1999, Jordan Greene, born August 4, 2004, and Sawyer Greene, born December 14, 2005, the sum of $1,719, per month, based on the husband’s 2016 income in the amount of $92,008, commencing June 15th, 2017, and continuing each and every month thereafter until further order of the court.

16. THIS COURT ORDERS THAT the child support ordered in paragraph 15 above shall be deducted from the husband’s employment income on a bi-weekly basis, on the 15th and 30th of each month, at the rate of $859.50, and remitted to the Family Responsibility Office.

17. THIS COURT ORDERS THAT the Supervisor of Payroll for Vale shall deduct the child support payable by the husband, and remit same to the Family Responsibility Office, twice monthly, that is, on the 15th and the 30th of each and every month.

18. THIS COURT ORDERS THAT the arrears of child support for the period from November 1, 2014, to and including May 31, 2017, are fixed at $2,566. The payment of those arrears of support shall be enforced by the Family Responsibility Office.

19. THIS COURT ORDERS THAT the husband will communicate with the Family Responsibility Office in order to enter into a repayment schedule with that enforcement authority, in connection with the arrears of child support as fixed in paragraph 18 above.

20. THIS COURT ORDERS THAT the arrears of the children’s section 7 (Child Support Guidelines) expenses, owing by the husband, are fixed at $4,941.75 as of the date of this Final Order. The payment of those arrears shall be enforced by the Family Responsibility Office.

21. THIS COURT ORDERS THAT the husband will communicate with the Family Responsibility Office in order to enter into a repayment schedule regarding the section 7 arrears as fixed in paragraph 20 above.

22. THIS COURT ORDERS THAT, for as long as child support is payable, the payor and the recipient, if applicable, shall provide updated income disclosure to the other party, each year, within 30 days of the anniversary of this Order, in accordance with section 25(1) of the Federal Child Support Guidelines.

23. THIS COURT ORDERS THAT the quantum of child support and the percentage sharing of the children’s section 7 expenses, shall be adjusted effective July 15th of every year, commencing 2018, to reflect the parties’ prior year’s income as determined by their Income Tax Returns and Notices of Assessment.

24. THIS COURT ORDERS THAT the husband Leo Greene shall continue to pay the wife Leslie Greene a monthly amount representing his proportionate share of the children’s section 7 expenses as described in the Reasons for the Final Order.

25. THIS COURT ORDERS THAT the husband Leo Greene shall continue to provide medical and extended health care coverage for the children of the marriage, provided that, and for as long as such coverage is provided to him through his employment and for as long as the children are entitled to benefit from such plan.

26. THIS COURT ORDERS THAT the husband Leo Greene shall, within 30 days of the date of this Order, provide the wife with a written authorization, addressed to the husband’s health care insurance carrier, to the effect that the insurance carrier may provide information about the children’s benefits, claims, and the processing of such claims directly to the wife Leslie Greene, at her request.

27. THIS COURT ORDERS THAT neither party will pay spousal support to the other.

28. THIS COURT ORDERS THAT the wife Leslie Greene shall be entitled to bring an application for spousal support and to rely upon the provisions of section 15.3(3) of the Divorce Act, once the husband Leo Greene’s child support obligation is reduced by reason of one or more of the children ceasing to be a “child of the marriage” as defined in the Divorce Act.

29. THIS COURT ORDERS THAT the husband Leo Greene shall irrevocably designate the three children of the marriage as beneficiaries of three fourths of the face value of his life insurance policy ($45,000) through his employment, and of three fourths of the face value of his life insurance policy with London Life ($50,000), for as long as child support is to be paid. The husband shall further irrevocably designate the wife Leslie Greene as the trustee of the three fourths shares of the two life insurance policies.

30. THIS COURT FURTHER ORDERS THAT the husband shall provide to the wife documentary proof that the above designations have been submitted to the insurance providers, within 30 days of the date of this Final Order.

31. THIS COURT FURTHER ORDERS THAT if, at the time of his death, the husband has not complied with his obligation with respect to his life insurance policies, this clause shall constitute a first charge against the husband’s estate, in an amount equivalent to the face value of the said policies.

32. THIS COURT FURTHER ORDERS THAT the husband shall be prohibited from borrowing against either of the two life insurance policies in question, for as long as child support is payable by him.

33. THIS COURT ORDERS THAT the wife shall have the authority to manage the jointly owned RESP, for the benefit of the children. She will account, in writing, to the husband for any funds withdrawn from the plan. The wife is prohibited from withdrawing any funds save and except for the children’s education.

34. THIS COURT ORDERS THAT the Bayliner boat which is located at the former matrimonial home shall be sold for the highest price offered and the proceeds of such sale shall be paid to the wife. One-half of those proceeds will be credited toward the husband’s equalization payment.

35. THIS COURT ORDERS THAT the husband shall pay the sum of $26,673.08 to the wife to equalize the parties’ net family property.

The Honourable Madam Justice Louise L. Gauthier

Released: June 6, 2017

Schedule A – DivorceMate Software Calculations

Table of Contents

Overview .. 1

Facts and History of the Proceedings . 2

Court Proceedings and Court Orders . 3

Divorce . 5

Governing Legislation . 7

Custody of Sidney, Jordan, and Sawyer 7

Access . 9

Weekend access . 9

Child Support 11

Payment of Child Support Directly to Sidney Upon her Attaining the Age of Majority . 14

Manner of Enforcement by the FRO .. 14

Quantum of Child Support and the Husband’s First Child, B.A.S., born December 16, 1993 . 15

Including the Child Tax Credit in the Wife’s Income . 15

Extraordinary Expenses (Section 7) 15

Medical and Extended Health Care Coverage for the Children . 21

Medical and Extended Health Care Coverage for the Wife . 22

Spousal Support 22

Life Insurance . 23

Occupation Rent 24

Registered Education Savings Plan: 24

Equalization of Net Family Property . 25

Prior Separation Agreement 27

Costs . 28

Conclusion . 28

Final Order 28

Schedule A – DivorceMate Software Calculations . 33