Court File and Parties

COURT FILE NO.: FS-16-86105 DATE: 20200513 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Raymond Tone Applicant

Matthew Pike, for the Applicant

- and -

Ana Tone Respondent

Laughlin Campbell and Sofia Dharamshi, for the Respondent

HEARD: January 20-25, 27-31, 2020 and February 3-7, 2020

REASONS FOR JUDGMENT

BALTMAN J.

Introduction

[1] Although Ray and Ana Tone’s marriage lasted only two years, it was filled with strife and has resulted in over five years of bitter, wasteful litigation.

[2] The couple met in June 2012 at Canada Post (“CP”), where both were employed as postal carriers. Ana was 33 (now 41) and Ray was 47 (now 55). Ray also worked as an occasional teacher in the secondary school system, primarily at Richview Collegiate.

[3] A rocky romance led to a wedding on January 26, 2013. Two daughters followed shortly after: M, who is now seven, and J, who is five [1].

[4] At this trial, Ray and Ana fought over almost everything:

1. Parenting: i. What is the appropriate decision-making structure? ii. How should parenting time be allocated?
2. Child Support: In particular, whether income should be imputed to Ray, and if so, how much?
3. Spousal Support
4. Property: i. What is the parties’ date of separation? ii. Is the townhome where they resided owned in joint tenancy or held in a resulting trust in Ray’s favour? iii. Should there be occupation rent paid to Ray, and if so, what is the quantum and for what duration? iv. Should there be post-separation adjustments paid by Ray to Ana and/or by Ana to Ray?

Chronology

[5] The relationship was, from the outset, fraught with conflict and punctuated by many breakups and makeups. The parties disagree on many aspects of their chronology. Further complicating the narrative, both Ana and Ray lived at several different locations throughout their relationship, including but not limited to Ray’s mother’s apartment, Ana’s mother’s house, and the townhouse which they bought together. At various times, one or the other stormed out of the residence. Then they would reconcile and move back in together (until they did not, but they do not agree on that date either). Given the frequent relocations and the conflicting evidence about who lived where and when, it has been impossible to nail down their history with any certainty. Clearly, they do not agree on the timeline.

[6] That said, to provide a framework for these reasons, I have set out a modest chronology of some key dates and events:

July 2012: The parties begin dating. Ana is living alone at a townhome (“Unit 8”) owned by her mother, Gorica Kovic. Ray is living with his mother in her townhome at 4020 Dundas Street; Aug/Oct 2012: Ray moves into Unit 8 (Ana says it was August, Ray says it was October); January 26, 2013: The parties marry; March 2013: Gorica sells Unit 8. The parties move into a new condo at 570 Lolita Gardens, purchased by Gorica; May 9, 2013: M is born; June 29, 2013: The parties jointly sign an Agreement of Purchase and Sale for Unit 19 (located in the same townhouse development as Unit 8); July 3, 2013: The parties jointly apply for a mortgage with Estonian Credit Union; August 27, 2013: The parties purchase Unit 19 as joint tenants; January 2014: J is conceived; April 13, 2014: Ray claims this is the date of separation; April 27, 2014: Ray and Ana are both criminally charged following a physical altercation (assault and mischief, respectively) [2]; August 2014: Ana claims they reconciled and resumed living together at Unit 19; October 29, 2014: J is born; February 1, 2015: The parties argue and police are called. Ray permanently vacates Unit 19 and moves to 4020 Dundas Street. Ana claims this is the date of separation.

Issue #1: Parenting

Overview

[7] The couple currently operates roughly in accordance with the interim decision of Trimble J. dated February 7, 2017, which stipulated:

• Joint custody, with the children to reside primarily with Ana;
• Regular access for Ray, including alternate weekends overnight and mid-week evening visits;
• Monthly child support of $773 payable by Ray, based on his 2015 income of $52,360.

[8] Both children are doing well in school. M attends Burnhamthorpe Public School and is in Grade 1, French Immersion. J currently attends Dixie Public School and is in Senior Kindergarten. The two schools are roughly a four-minute drive apart. Ana plans for J to attend Burnhamthorpe P.S. for the 2020/2021 school year. J is currently on the waitlist for the French Immersion program there.

[9] The parties disagree both on how to structure the decision making and on how the parenting time should be divided. I shall deal with each issue in turn.

a) Decision Making

The Parties’ Positions

[10] Ana wishes to have final decision-making power on major issues involving health, education, religion and extra-curriculars.

[11] Ray seeks a “shared” decision-making arrangement whereby the parties would “confer” on all important matters, but he would have the final say on “all ultimate decisions” involving education, religion and extra-curriculars.

The Legal Framework

[12] We start with the fundamental principle that any decision regarding parenting is determined by the children’s best interests – not that of their parents. While this action has proceeded under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 sets out a useful non-exhaustive framework of relevant considerations. This includes the relationship between the children and any relevant family figures, the proposed plan by each parent for ensuring the children’s well-being, and, importantly for this case, “the ability of each person applying for custody of or access to the child to act as a parent " (my emphasis) Children’s Law Reform Act, s. 24(2).

[13] In Kaplanis v. Kaplanis, [2005] O.J. No. 275 (C.A.), our Court of Appeal found that for joint custody to be ordered, there “must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another”: para. 11. The court added that in cases where, as here, the children are too young to express their developmental needs, communication is even more important: Kaplanis, at para. 11.

[14] Similarly, in Patmanidis v. Patmanidis, 2014 ONSC 4346, this court found that for joint custody to be a viable option, the parents must be able to cooperate: para. 55. Citing numerous appellate authorities, Tzimas J. observed that conflict and lack of cooperation are not only stressful to children, but make the practical demands of raising a child overwhelming: Patmanidis, at paras. 55-56.

[15] Particularly relevant here is that appellate courts have expressed deep scepticism about the workability of joint parenting in high conflict cases: Hildinger v. Carroll, [2004] O.J. No. 291 (C.A.), at paras. 23-28; Tauber v. Tauber, [2000] O.J. No. 2133 (C.A.), at paras. 15-17. Joint custody requires, at minimum, mutual trust and full and free communication. As I explain below, this is undoubtedly a high conflict case and those features are strikingly absent.

Evidence and Analysis

[16] For the reasons that follow, after watching and listening to testimony over several days of trial, I have concluded that while Ray genuinely loves his children and has the skills to engage them positively, he cannot separate their best interests from his emotional needs, in particular his compulsion to control Ana and the entire family dynamic.

[17] There is concrete evidence of this problem, which has manifested in five critical ways. First, Ray’s testimony established that he does not follow court orders that do not suit him. One egregious example is Trimble J.’s Order of February 7, 2017, granting him immediate access on a graduated basis. I find it astonishing that despite insisting he is the better parent, Ray declined to exercise any access from February 9, 2017 until August 4, 2017 – a period of six months. It was not because he was ill or disabled. Rather, as he testified, when he last saw the children on February 9, 2017, they both seemed reluctant to see him that day, which “shattered” him. He therefore decided he would wait for the Children’s Aid Society (“CAS”) to investigate and “get to the bottom” of the children’s behaviour.

[18] Trimble J.’s Order also provided that the parties were to sign up for “Our Family Wizard”, which Ana did. Ray allowed his subscription to lapse and has not used the service since May 2018.

[19] Second, Ray has demonstrated that he will misuse and manipulate social services like the Peel CAS and Peel Police to harass and provoke Ana, irrespective of the negative effects this has upon the children (i.e. immersing them in interviews by various authorities, exposing them to police visits, etc.). It is undisputed that on nine separate occasions in 2018 and 2019, Ray called the police to report an alleged infraction by Ana or to request a “wellness check”:

a) Five times in 2018: March 12, 2018; July 5, 2018; July 7, 2018; November 23, 2018; December 2, 2018; and b) Four times in 2019: May 11, 2019; May 13, 2019; May 14, 2019; July 6, 2019.

[20] None of these police reports resulted in Ana being charged, arrested, or a report of child neglect being made. To the contrary, much to Ray’s frustration, the police did not appear to be taking his complaints seriously. As for CAS, they too eventually tired of Ray’s complaints and came to doubt his reliability. On twenty separate occasions, Ray reported Ana to CAS, alleging each time that the children were “at risk” or neglected and demanding an investigation. Not one of his complaints has been verified. Despite Ray’s repeated allegations that Ana is an unsafe parent, CAS has consistently deemed the children safe while in her care.

[21] Each of the two primary child protection workers testified. John Kotur was the caseworker from May 2015 to October 2017, and was succeeded by Gilbert Addison, who performed that role from November 2017 until April 2019. Their evidence was instructive. I found both men to be fair and balanced witnesses, who were careful and professional both in their dealings with the parties and while giving testimony.

[22] Mr. Kotur testified that when he initially became involved, he was concerned that Ana was overwhelmed with the pressures of looking after two young children while in a high conflict separation with their father. This caused her, on occasion, to become emotional and accusatory. In some of their phone conversations she yelled at him. However, it was clear she loved and cared for the children and had the support of her extended family. Moreover, as time passed, she obtained helpful counselling and legal advice and gradually stabilized. Most importantly, at no point did he perceive that the children were unsafe in her care.

[23] By contrast, Mr. Kotur’s impression of Ray was of a parent who was uncooperative and self-absorbed. His housing was unstable and it was unclear where he was living. Although Ana encouraged Ray to exercise frequent access, his participation in the children’s lives was “minimal”. He appeared disinterested in working with CAS to address the children’s needs, but at the same time was determined to get back together with Ana. As Mr. Kotur put it, for Ray, it “was more about his conflict with Ana rather than the needs of the children that was paramount at the time.”

[24] In late 2017, Ray complained to CAS about Mr. Kotur and had him removed from the file. Mr. Kotur testified that Ray wanted him to identify Ana as having a serious mental health problem, and that when Mr. Kotur did not agree, Ray demanded a new worker.

[25] The new worker was Mr. Addison. Surprisingly, despite having successfully petitioned for a new worker to replace Mr. Kotur, no sooner was Mr. Addison in place than Ray refused to engage with him as well. He continued to complain about Ana – including at least 20 requests to CAS to investigate her - but sent his requests to the Service Director, Ms. Mary Beth Moellankamp. He did not return any of Mr. Addison’s voicemails.

[26] In contrast, Mr. Addison described his contact with Ana as positive. On average, he met with her and the children every 30 days and found her to be “very co-operative”. He remained active on the file until March 2019, when CAS closed the file. Mr. Addison testified that based on his own impressions of Ana, along with positive feedback from her doctors – including her family physician of 27 years – he did not see any emotional, psychological or mental health issues that raised child protection concerns.

[27] As for the 20 complaints that Ray lodged against Ana, none of them even met the CAS’s threshold for investigation, much less resulted in any negative findings – individually or cumulatively. They included the following:

• On August 23, 2017, Ray reported Ana for arguing with a neighbour in front of the children;
• On September 15, 2017, Ray reported Ana because the children were “using inappropriate language” (no specific details were provided);
• On February 28, 2018, Ray reported Ana because during an argument that arose on an access exchange, she slammed the door too loudly;
• On March 1, 2018, Ray reported Ana because she yelled at him on the phone;
• On March 25, 2018, Ray reported Ana because J (then age 3) told him that “she was heavy now” and he assumed that was because Ana had told her she was overweight, thereby damaging her self-esteem;
• On April 4, April 10, and May 8, 2018, Ray reported Ana for telling him he was not to take the children to extra-curricular activities on days they were in her care;
• On June 9, 2018, Ray reported Ana because M was crying at an access pick up and Ana was “pushing” M towards his car so that she would get in;
• On September 28, 2018, Ray reported Ana because she took too long (10 minutes) to open the front door at an access drop off;
• On November 24, 2018, Ray reported Ana for allegedly ending a phone call with the children earlier than he wished and for not taking them to their swimming class;
• On December 26, 2018, Ray reported Ana for not taking the kids to their swimming class;
• On October 14, 2019, Ray reported Ana after she contacted him to say that M had fallen off the monkey bars at the park and that she was taking her to the hospital. He also repeated an earlier request that all CAS interactions with the children be audio and video recorded and wanted his email forwarded to the Peel CAS Service Director.

[28] Ray ended several of these complaints with the grave invocation, “My children are at risk”. His testimony at trial made it clear that he stands by that assertion, which makes him either deluded (if he believes that) or malicious (if he does not). Either way, it augers very poorly for any kind of cooperative parenting in the future.

[29] Third, throughout the separation, Ray has been consistently unable to respect boundaries. He frequently showed up at Unit 19 when it was not time for his access visit. In fact, he did not want “fixed” access; as Mr. Kotur explained, Ray wanted the freedom to show up at the children’s home whenever he pleased. He was unable to understand that given the high rate of conflict between himself and Ana, casual “drop-ins” were a bad idea.

[30] This problem was readily identified by Ms. Tina Hinsperger, who in January 2018 provided a report on behalf of the Office of the Children’s Lawyer. In addition to meeting with the children, their parents, and numerous significant relatives of both parties, Ms. Hinsperger obtained extensive collateral information from physicians and teachers and reviewed written reports from Peel Regional Police Services. She testified at trial and I found her to be extremely balanced, thoughtful and fair-minded. On the questions of boundaries and parental decision-making, Ms. Hinsperger observed the following:

• Ray’s visits with the children were problematic because they were inconsistent and occurred for varying lengths of time;
• There was a “high degree” of conflict between the parents, which was evident to the children;
• Both parents indicated they “cannot effectively communicate” with each other;
• Any contact between the parents should be “minimal” in order to reduce the opportunity for the children to witness further conflict.

[31] Ms. Hinsperger concluded that “because of the high degree of conflict” between the parties, joint custody was not appropriate. She recommended granting Ana sole custody, with structured access for Ray.

[32] Fourth, Ray’s judgment regarding the children’s best interests is negatively influenced by his own biases. One example is their schooling. Despite the fact that M is doing well in French Immersion and has an excellent teacher, he would prefer that both children attend a Catholic school and follow an English program in their early years. He believes, with no empirical evidence whatsoever in support, that children require a “strong foundation in English” before entering an extended program in French.

[33] Fifth and finally, Ray’s behaviour at this trial proved it is all about him. Ray’s evidence in-chief consumed three entire days. At least two thirds of that time was spent rehashing all of the allegedly bad things Ana has ever done, while explaining how he has been a model husband and parent. Despite numerous opportunities, he could not focus on his concrete plan for the future and remained obsessed with assigning blame for the past. While past conduct can help to identify parenting skills for the future, much of Ray’s evidence served only to demonstrate that he is irrational and perfectionistic when it comes to Ana’s parenting, while largely blind when it comes to his own.

[34] One of the signs of good parenting is the ability to recognize and embrace the other spouse’s parenting strengths. This demonstrates respect and compromise, and augers well for co-parenting. Ana readily credits Ray with specific parenting skills, e.g. that he is loving and protective toward the girls, physically affectionate with them, and engages them regularly in sports and physical activities.

[35] Ana not only recognizes Ray’s strengths, she is prepared to identify them to others. Ms. Hinsperger noted Ana’s statements that Ray is “great when he is with the children”, and that he is “a good father and she wants him to be active in [the children’s] lives”. Ana also described Ray’s family members to Ms. Hinsperger “in very positive terms”. In her testimony in-chief, she freely identified that Ray has “a lot” of strengths, including being energetic, active, playful, and very loving toward the girls. She is “sure he would be super protective” if either of them were threatened, and knows he “really cares about them”.

[36] In contrast, in his evidence at trial, Ray had virtually nothing good to say about Ana as a mother, despite her obvious strengths. He also had nothing positive to say about her in his meetings with Ms. Hinsperger. On the contrary, he aired numerous serious allegations of abuse and dysfunction against both her and her family, none of which were substantiated. To this day he fastens upon any misstep on her part and ignores anything positive. He records and recounts, in painstaking detail, every perceived wrong she has ever committed. Although he grudgingly acknowledged during cross-examination that he is “not perfect” and “it takes two to tango”, he clearly views himself to be the more virtuous parent here, by far.

[37] Most troubling, Ray has a combative personality and will not stop until he gets his way. There are several examples of his attempts to undermine Ana:

a) He falsely reported the children’s OHIP cards as lost or stolen in order to secure replacement cards for himself, directed to his address, leaving Ana unaware that the cards had been cancelled until she attempted to use them at a medical appointment; b) As noted above, he is fixated with trying to get Ana in trouble with the police or CAS; c) On more than one occasion, he refused to return the children after an access visit because Ana was not home, even though Gorica, the children’s maternal grandmother and frequent caregiver, was present; d) On several occasions, Ray videotaped Ana without her permission, usually at the beginning or end of access visits or during other occasions of conflict, with the clear intention of documenting what he perceived as misbehaviour on her part; e) He is currently pursuing a civil claim against Ana (and the police) for malicious prosecution arising from the April 27, 2014 incident, in which he is seeking $400,000 in damages.

[38] Much evidence was led at trial, through Ray’s siblings and co-workers, about how good Ray is with his students and how loving he is with M and J. The evidence was consistent and strong on those points, and I accept without reservation his many qualities as a teacher and his genuine love for his daughters. But neither of those factors directly address the critical questions of who should have decision-making responsibility and how the parenting time should be divided.

[39] This is not to say that Ana was faultless in the marriage or as a mother. On several occasions, particularly in the months preceding and following their separation, she lashed out nastily at Ray when there was conflict. Some of those incidents occurred in the presence of his family. On another occasion, several students from his school were present. At trial Ana acknowledged that both parties’ behaviour, especially in the early months following separation, was “stupid”, and that they “were awful to each other at times.” That may be why Mr. Kotur was concerned about the effect of Ana’s behaviour on the children in the early months of his involvement.

[40] But one big difference is that in the years since their separation, Ana has grown, undergone therapy, and can acknowledge her faults. Ana testified about getting counselling with Fraidie Burnstyn – whom she found immensely helpful – from 2014 to 2017, as well as individual counselling with the Catholic Cross-Cultural Services in June 2016. She has also participated in support programs through the Region of Peel and the PARS service.

[41] I conclude that although Ray clearly loves his children, his obsession with being in control and in the right has, on many occasions, clouded his judgement and gotten ahead of the children’s needs. Consequently, decision making on any major issues concerning the children should rest with Ana.

b) Parenting Time Allocation

The Parties’ Positions

[42] Ana argues that the children should continue to reside primarily with her, with Ray to have access on alternating weekends, but no mid-week visits.

[43] Ray proposes that going forward, the parties should have equal parenting time on a two-week alternating schedule.

The Access History

[44] The access order currently in place is that of Trimble J. dated February 7, 2017. It was designed to be staggered over three phases. In phase 1, which began March 1, 2017, Ray had access each Wednesday from after school until 7:00 p.m., and each Saturday from 10:00 a.m. until 4:00 p.m. In phase 2, which began May 1, 2017, Ray had access each Tuesday and Thursday from after school until 7:00 p.m., and each Saturday from 10:00 a.m. until 4:00 p.m. Phase 3, which was to begin on July 3, 2017, stipulated the following:

Week 1: i. Wednesday from end of school to 7:00 p.m., with pick up at school and drop off at Ana’s residence; ii. Friday from end of school to Sunday at 7:00 p.m., with pick up at school and drop off at Ana’s residence.

Week 2: i. Tuesday from end of school to 7:00 p.m., with pick up at school and drop off at Ana’s residence; ii. Thursday from end of school to 7:00 p.m., with pick up at school and drop off at Ana’s residence.

[45] Importantly, the parties agree that the implementation of phase 3 was significantly delayed, primarily because Ray was unable or unwilling to exercise the access granted. In particular, the parties agree that access between September 2013 and August 2017 was generally as follows:

a) There were several weeks where Ray did not request access to the children; b) There were visits where Ray would only take one child and would leave the other behind; c) The visits were only day visits (not overnights); d) Ray purchased one car seat, in January 2017.

[46] The parties also agree that Ray delayed implementing both the phase 1 and phase 2 daytime access ordered by Trimble J. by five months, and that the Saturday overnights stipulated in his Order did not commence until September 2019, which was over two years later than what was ordered.

[47] The parties further agree that the following occurred during the visits between August 2017 and September 2019:

a) From August 2017 to September 2019, Ray did not regularly pick up the children for his Saturday access at 10:00 a.m. or drop them off at 4:00 p.m.; b) From August 2017 to September 2019, Ray did not regularly return the children to Ana at 7:00 p.m. on Tuesdays and Thursdays; c) On several occasions, Ray asked Ana to give him money in order to buy food or put gas in his car while he was exercising access, and she did so.

[48] There was also compelling evidence at trial that Ray:

• Regularly returns the children late at night, ignoring their sleep or bathing schedules;
• Does not consistently ensure their homework is completed;
• Creates opportunities for direct contact with Ana (like coming to the side door of Unit 19, which is an end-unit townhouse, and knocking on the kitchen window instead of simply buzzing the front door and letting the children walk in themselves);
• Films Ana during access exchanges and attempts to provoke her;
• Has refused to return the children to anyone but Ana.

The Parties’ Parenting Plans and Living Arrangements

[49] Ana is currently living with the children in the Unit 19 townhome. As the parties have agreed that that residence will be listed for sale within 60 days of this judgment, [3] Ana and the children intend to then move in with her parents. The maternal grandparents currently reside alone in a detached, four-bedroom house. The children would each have their own bedrooms, which the maternal grandmother (Gorica) has already set up and decorated for them. The children are close with both grandparents, and Gorica in particular frequently looks after them when Ana is unavailable. Gorica testified at this trial and is clearly a doting and devoted caregiver. Importantly, the house is also very close to the children’s schools (roughly a four-minute drive).

[50] Ray’s situation is far less stable or predictable. Until recently, Ray lived at 4020 Dundas Street in Toronto. Part way through this trial, he advised that he was in the midst of being evicted by the Sheriff for non-payment of rent. He now lives with his brother (Glen) in a two-bedroom apartment on Stephens Drive in Etobicoke. Glen testified at this trial and appears to be a caring and responsible adult. However, at no point in his testimony did Ray address the logistics of two adult brothers and two children living together in a two-bedroom apartment. Moreover, the apartment is a considerable distance from the children’s schools (approximately a 20 to 30-minute drive).

[51] Finally, and most importantly, Ray’s plans for the future appear vague and unreliable. In her testimony, Ms. Hinsperger noted that Ray’s housing instability was a concern for her when she conducted her investigation. This problem has clearly not resolved nor likely will it in the foreseeable future. Ray clearly views his current lodging as a temporary solution. His Form 35.1 Affidavit, dated December 9, 2019, states that his future address is “to be determined upon the resolution of the property issues in this case.”

[52] Ray testified that once he receives his equity from the sale of Unit 19, he will look for lodging closer to the children’s schools. But he did not address his plan should the equity of Unit 19 not be sufficient or available at all. He already has outstanding costs orders on this lawsuit in excess of $9,000. Later in this decision, I have (based on an imputed income) ordered him to pay additional child support, retroactive to 2017, which will result in additional monies owing to Ana. [4] My decisions regarding the date of separation and the joint tenancy of Unit 19 may also be to his financial detriment. And that is before deducting any costs that may be awarded to Ana following this three-week trial, or the impact of any offers to settle from Ana, particularly given that Ray has been unsuccessful on virtually every issue at this trial. What is his back-up plan then?

Conclusion on Parenting

[53] Based on the foregoing, I find the evidence strongly favours Ana’s proposed parenting plan over Ray’s. In sum:

a) Ray is currently in an unstable housing situation; b) He has a long history of erratic and unpredictable lapses in access; c) He persists in attempting to interfere with and control Ana’s relationship with the children.

[54] In particular, I agree with Ana that mid-week access should be discontinued. While Ray loves the children and connects with them meaningfully, his disregard for both their needs and Ana’s privacy are destructive. Mid-week access provides too many opportunities to disrupt and disturb both Ana and the children. That concern will become heightened as the children’s school pressures mount and their need for a stable, weekly routine increases.

[55] Given the parties’ fractious history, explicit directives are needed for the implementation of these findings. They are contained in the Final Order, attached.

Issue #2: Imputation of Income for the Purpose of Child Support

Background

[56] Ray is currently 55 years old and well-educated, holding a Bachelor of Arts and a Bachelor of Education. He is very physically fit and active.

[57] Until September 2015, Ray worked two jobs: he was both a full-time letter carrier for CP and an occasional teacher (primarily at Richview Collegiate). He was able to manage both jobs by arriving at CP early in the morning to sort his mail, then heading to Richview Collegiate for 9:00 a.m., and then delivering the mail after the school day was over or during his spare periods. He also worked at CP during the summer or vacation periods.

[58] Ray’s income chart since 2012 is as follows:

Year	Line 150	Employment	EI	RRSP
2012	$79,432	$79,118	N/A	N/A
2013	$75,634	$74,219	N/A	N/A
2014	$66,248	$65,457	N/A	N/A
2015	$52,360	$52,360	N/A	N/A
2016	$48,335	$32,292	$11,397	N/A
2017	$43,506	$37,391	$6,115	N/A
2018	$64,971	$40,276	$6,564	$18,102
2019	$45,526	N/A

[59] As the chart demonstrates, in 2012 and 2013 his combined income from both jobs exceeded $75,000. It declined to just over $66,000 in 2014. However, the real plunge resulted from his termination from CP in September of 2015. His employment income that year was reduced to $52,360, and in the years since, has averaged $45,000. (The line 150 income for 2018 rose to $64,971 because Ray cashed in an RRSP valued at $18,102.)

[60] In his February 2017 Order, Trimble J. ordered child support of $773 per month, based on Ray’s 2015 income of $52,000. He left the question of retroactive support to trial.

The Parties’ Positions

[61] Ana maintains that Ray is intentionally under-employed, and that income should therefore be imputed to him to replicate what he would be earning had he continued with his full-time position at CP and his supplemental work as an occasional teacher.

[62] Ray argues that he was unable to maintain his employment at CP for legitimate health reasons, in particular a medical “stress” leave, and therefore his income for support purposes should be assessed according to his earnings as an occasional teacher.

The Legal Framework

[63] Section 19(1)(a) of the Federal Child Support Guidelines, SOR/97-175, provides that the court may impute the amount of income to a spouse it considers “appropriate in the circumstances”, in particular where a spouse is “ intentionally under-employed or unemployed ”, unless that is required by the needs of the children or by the “ reasonable educational or health needs of the spouse” (my emphasis).

[64] Section 19 is an exception to the method of calculating income set out under s. 16, which determines income according to the “total income” set out in the payor’s most recent income tax form, and under s. 17, which considers the payor’s pattern of income over the past three years.

[65] Our Court of Appeal has clearly laid out the test for imputing income, and it’s fairly simple. If a parent is earning less than they could be, they are intentionally under-employed. There is no requirement of bad faith or an intention to evade child support obligations. An exception may be made for a parent’s legitimate health or educational needs. Otherwise, parents must earn what they are capable of earning: Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.), at paras. 24-37; Lavie v. Lavie, 2018 ONCA 10, at paras. 24, 26.

[66] The case law demonstrates that much turns on the court’s overall assessment of the reasonableness of the parent’s decisions and actions in relation to their income. Anti-social or illegal behaviour, along with conflicts with co-workers, are examples of behaviour that might lead towards an imputation of income: Lukovnjak v. Weir, 2016 ONSC 6893, at paras. 67-79.

[67] The onus is on the party seeking to impute income to establish an evidentiary basis that the other party is intentionally under-employed or unemployed: Homsi v. Zaya, 2009 ONCA 322, at para. 28.

[68] Once under-employment is established, the onus shifts to the payor to prove that his decision was reasonable, based on his health or educational needs: A.M.D. v. A.J.P., [2002] O.J. No. 3731 (C.A.), at para. 38; Trinidad v. Trinidad, [2007] O.J. No. 4801 (S.C.), at para. 38; Cassidy v. Marion-Landais, 2016 ONSC 3252, at para. 30.

[69] Assuming it has been established that a spouse is intentionally under-employed, the court retains discretion to determine what amount should be imputed. The factors to be considered include age, education, experience, skills and health of the parent: Drygala, at para. 45; Lavie, at para. 31.

Evidence and Analysis

[70] The termination saga began on September 21, 2015, when Ray was escorted off CP property for “suspected violence in the workplace with a fellow employee.” Ray testified that this arose from an allegation by a supervisor that he had grabbed her arm. The written notice issued that same day explained that he was “indefinitely suspended from duty without pay”.

[71] Immediately after the suspension and a subsequent consultation with his doctor, Ray went on a medical stress leave and claimed disability benefits. He deposed that he provided medical documentation to Great West Life to support his short-term disability claim, but tendered no documentary evidence at trial to corroborate that. The only shred of medical evidence relevant to his employment that was filed at this trial consists of a two-sentence note from his family physician, Dr. Vincenzo Stendardo, dated May 24, 2016 stating:

Mr. Tone continues to adhere to his prescribed treatment plan. I advise that a return to work at CPC at this time would place his recovery in jeopardy and serve to aggrevate [sic] his diagnosed disability/condition.

[72] Aside from being hearsay, the note completely fails to support any alleged disability. No particulars whatsoever are given to indicate the “condition” Ray supposedly suffers from, much less how resuming his work at CP would “place his recovery in jeopardy”. While the note refers to him being in “treatment”, it does not say for what, for how long, and what restrictions may apply.

[73] CP was similarly unimpressed by the lack of medical evidence, and consequently, on repeated occasions, asked Ray to report back to work. Ray continually refused. Finally, on June 22, 2016, CP advised Ray that because of his “failure to supply documentation that would have substantiated [his] absence”, along with his failure to “report to work as directed”, he was discharged. Significantly, in that letter, CP refers to their previous correspondence advising him of “the decision from the Independent Medical Physician” (“IMP”) in regard to his final appeal, and that the decision of non-support was maintained by the IMP.

[74] I note that Ray did not freely volunteer that evidence. It followed an Order from Bielby J. dated May 11, 2017, compelling him to produce various documents for trial including “evidence of reasons for his Canada Post employment termination.”

[75] Ray testified that through his Union, he grieved both the suspension and the termination. In cross-examination, when asked about the status of the grievance, he explained that it has been “stayed”, but that he also has an outstanding human rights complaint. However, no documentation was provided to support either the alleged grievance or the human rights complaint.

[76] In his examination-in-chief, Ray implied that his leave was brought about by Ana’s behaviour. He referred to an incident in July 2015 where Ana confronted him while he was on his CP route and yelled at him on the street. According to Ray, after that his manager pressured him to change to a new mail route, which he refused. Eventually, with the assistance of his Union, he was returned to his original route.

[77] Ray suggested that because of that incident, management subjected him to greater scrutiny, which in turn caused him to file a harassment complaint against his employer. One week later, on September 21, 2015, Ray was suspended. Ray implied that Ana triggered this outcome as her interference caused management to harass him, which led to his complaint, which resulted in his suspension.

[78] Significantly, under cross-examination, Ray abandoned that explanation. He clarified that his job loss “had nothing to do with Ana”. Moreover, by December 2015, on the advice of his family physician, he returned to work as an occasional teacher, which he found offered a “supportive” environment. However, he claimed he was not medically able to resume his duties at CP. Although Ray testified that he provided CP with medical notes supporting his ongoing disability, other than the brief note above from Dr. Stendardo, none of those notes were produced at trial and he called no medical witnesses to the stand.

[79] The upshot of all this is:

a) Ray was initially suspended for alleged physical violence against his supervisor; b) He then immediately went on a medical “stress” leave; c) He was subsequently terminated by CP for failing to supply medical documentation to support that leave, or return to work as directed; d) Although he testified that he supplied CP and other agencies with supportive medical documentation, other than the two-sentence note from Dr. Stendardo, he has produced nothing at this trial to support his alleged disability.

[80] On that basis, I easily conclude that Ana has met her onus of establishing that Ray is intentionally under-employed. Even if, as Ray emphasized, he was fired not because of the purported violence in the workplace, but for allegedly failing to provide medical documentation to justify his ongoing absence, he still lost his job through his own misconduct, plain and simple.

[81] The burden then shifts to Ray to establish that the under-employment is required by the needs of the child or the reasonable educational or health needs of the parent. Although it was not clearly articulated at trial, presumably the justification in this case is Ray’s alleged medical condition. However, Ray has utterly failed to provide any reliable evidence to support medical incapacity to work.

[82] In his submissions, Ray also suggested that because he works so diligently as an occasional teacher, it was reasonable for him to cease working at CP. He implied that being both a full-time letter carrier and a regular occasional teacher was too demanding.

[83] That is partly correct, in that it is arguable that carrying on both jobs at the same time is unusually demanding or difficult. Ana herself, during examination-in-chief, offered that doing both jobs became “very tiring for him”, especially with a new wife and a baby at home. M was born in the middle of 2013 and J towards the end of 2014. While Ray’s involvement with the children was, as I have described above, somewhat erratic in their early years, it nonetheless consumed some of his time and altered his schedule.

[84] Therefore, it is reasonable to conclude that Ray had legitimate reason to reduce his overall working hours. The difficulty is that through his own misbehaviour, he gave up the higher paying job at CP. Although I was not provided with a precise breakdown of how Ray’s income was divided between CP and teaching, it is undisputed that from the time the parties met in 2012 until his suspension from CP in September 2015, CP comprised the large majority of his income. From 2016 onwards, Ray’s income has derived solely from his teaching work. While he has increased his teaching days significantly since 2016, he has not been able to earn anywhere near as much as when he held both jobs. In part, that is because even though he works as an occasional teacher almost every day that is available to him, those earnings are capped at $249 per day. Moreover, during the summers, when there is little if any demand for occasional teachers, he is not working and instead receives Employment Insurance.

[85] For those reasons, I conclude:

a) Ray’s position at CP was the job he could and should have kept; b) While he increased his teaching hours after being dismissed from CP, his overall income has nonetheless declined as a result.

[86] I therefore find that Ray’s misbehaviour is the primary, if not sole cause of his reduction in income and this is a proper case for imputing income.

Amount to Be Imputed

[87] As for the amount that should be imputed, Ray’s current support obligation is $773, based on his 2015 reported income of $52,360 (rounded to $52,000). Ana submits that Ray’s income should be imputed at $73,771, being Ray’s average income from 2012 to 2014.

[88] Ray submits that nothing should be imputed beyond the $52,000 he earned in 2015, for essentially the same reasons that he rejected imputation at all (i.e. he was wrongly terminated and is now working as much as he reasonably should).

[89] When Ana and Ray met, they were both longstanding employees at CP. They held the same position – letter carrier. In 2012, when the parties first met and before they had children, Ana earned $60,769 at CP. In 2019, she earned nearly the same - $60,057. Although her income there decreased during the intervening years, that was largely due to two lengthy maternity leaves and her primary caregiving role.

[90] It is therefore reasonable to infer that had Ray maintained his employment at CP (as I have found he could and should have), he too would have been earning a minimum of $60,000 throughout the relevant years. If anything, that is a conservative figure because it presumes that due to his family obligations Ray would have ceased all occasional teaching work. Out of caution and fairness, however, I am imputing solely the CP income to him.

[91] I therefore conclude that for the years 2015 onward, Ray is imputed with the income of $60,000. The one exception is for the year 2018, which I shall address next.

Ray’s 2018 Income

[92] The parties disagree as to what income should be attributed to Ray in 2018. In that year, his line 150 income increased substantially – from $43,506 in 2017 to $64,971 in 2018 – in large part because he cashed in an RRSP for $18,102.

[93] Our Court of Appeal has held that RRSP income is “presumptively part of a spouse’s income for child support purposes”: Fraser v. Fraser, 2013 ONCA 715, at para. 97. This is because s. 16 of the Guidelines provides that a person’s annual income for child support purposes is determined using the sources of income set out under the heading “Total Income” on the T1 tax form, and that form includes RRSP income as part of “Total Income”: Fraser, at para. 97.

[94] That said, the inclusion of RRSP proceeds is not mandatory. Based on s. 17(1) of the Guidelines, the court has the discretion, by considering the spouse’s income over the last three years, to determine “an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years ” (my emphasis).

[95] Ray argues that the 2018 RRSP proceeds should not be included in his income because he needed the money for his legal fees and other expenses. He relies on Ludmer v. Ludmer, 2014 ONCA 827, at paras. 22-26. However, that case is distinguishable as the trial judge used his discretion under ss. 16 and 17 of the Guidelines to exclude RRSP income from both parties’ incomes where it was established that it was used primarily to finance the litigation: Ludmer, at para. 24.

[96] Ray also relied upon Zigiris v. Foustanellas, 2016 ONSC 7528, where the payor cashed out his RRSP’s to pay his support obligations and legal fees: paras. 77-81. However, Ray provided no receipts or other evidence showing he used the RRSP funds for support payments or legal expenses. He has made no payments toward the numerous costs orders made against him in this case, nor has he paid the carrying costs associated with Unit 19 as ordered by Trimble J. in February 2017. Accordingly, there are no grounds to exclude his RRSP income.

[97] The end result is that for the year 2018, Ray is imputed with a total income of $78,102, being the imputed amount of $60,000 plus his RRSP of $18,102.

Retroactive Child Support

[98] The final dispute in this area concerns retroactive child support. As noted above, in his Order of February 7, 2017, Trimble J. stipulated that the question of past support was left to the trial. That issue is addressed below, along with occupation rent and post-separation expenses.

Issue #3: Spousal Support

[99] Given the short marriage, this was always a modest claim. Moreover, Ana has conceded that if the court finds in her favour on the date of separation – which I have below – no spousal support is payable, as it would be precluded by Ray’s child support obligations. I therefore will not address this further.

Issue #4: Property Division

a) Date of Separation

The Parties’ Positions

[100] There are two proposed dates of separation. Ray claims the parties permanently separated on April 13, 2014. Ana concedes the parties separated in April 2014, but argues they reconciled in August 2014 and did not separate on a final basis until February 1, 2015.

[101] The significance of the date in this case is that if Ray is correct, Unit 19 is not the matrimonial home because the parties did not begin residing there together until August 2014. Ray argues that, in turn, bolsters his claims for a resulting trust and/or occupation rent, issues which I address later in this decision.

The Legal Framework

[102] Determining the separation date is necessary in order to decide how property should be valued and divided. Put another way, the date of separation is the triggering event for determining the valuation date, which is the date at which the court calculates family property and its equalization under the Family Law Act, R.S.O. 1990, c. F.3.

[103] Section 4(1) of the Family Law Act defines “valuation date” as the earliest of a number of dates. The one relevant to these proceedings is “[t]he date the spouses separate and there is no reasonable prospect that they will resume cohabitation.”

[104] The jurisprudence makes clear that the driving question in determining separation is when was it that the parties knew or, acting reasonably, ought to have known, that their relationship was over and would not resume: Strobele v. Strobele, [2005] O.J. No. 6312 (S.C.), at para. 29; Chan v. Chan, 2013 ONSC 7465, at para. 24.

[105] Parties can be separated while living under the same roof. Conversely, they may cohabit while living in separate locations. The court must look at various objective factors to determine whether the parties are living apart. In Greaves v. Greaves, [2004] O.J. No. 2522 (S.C.), at para. 34, Mesbur J. helpfully summarized the indicia of separation, previously set out in Oswell v. Oswell (1990), 74 O.R. (2d) 15 (H.C.), aff’d Oswell v. Oswell (1992), 12 O.R. (3d) 95 (C.A.), as follows:

(a) There must be a physical separation…Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart; (b) There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium, or of repudiating the marital relationship; (c) The absence of sexual relations is not conclusive but is a factor to be considered; (d) Other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern; (e) Although the performance of household tasks is also a factor…weight should be given to those matters which are peculiar to the husband and wife relationship outlined above; (f) The court must have regard to the true intent of a spouse as opposed to a spouse’s stated intent… [a]n additional consideration…in determining the true intent of a spouse as opposed to that spouse’s stated intentions is the method in which the spouse has filed income tax returns.

[106] In sum, to truly determine the issue, the court must cast “an objective eye” on the “unique circumstances of the couple”: Strobele, at para. 30.

[107] With those principles in mind, I turn now to the facts of this case.

Evidence and Analysis

[108] Of the factors set out above, two that are often instructive are physical residency and sexual relations. Unfortunately in this case, the evidence on both of those issues was highly conflicted and impossible to resolve.

[109] Throughout their short relationship, there were frequent shifts in residency. Often the move was triggered by a fight. Sometimes police were called. Someone would storm out. Later s/he would move back, and the couple would carry on living together. Some months later, they would fight again and separate again. Then they would reconnect again.

[110] In particular, the parties disagree about who was living in Unit 19 and when. Although the parties jointly purchased the townhome in August 2013, Ana testified that that it was not until August 2014 that they resided there together, for several reasons. First, in the interim, the townhouse complex was undergoing roofing and renovation work for several months. Second, Ray’s release terms for his outstanding assault charge prohibited the couple from residing together, and those terms remained in place until April 15, 2015, when Ray was acquitted.

[111] Given the erratic, turbulent nature of the marriage, the constant shifting in residency and the highly conflicting evidence from the parties, it has been impossible to determine with any certainty who was living where and when. The sole exception is that the parties agree that on February 1, 2015, Ana called the police following a serious argument with Ray. Thereafter, Ana and the children have been living at Unit 19 and Ray, until very recently, resided at 4020 Dundas Street. Ana claims that date as the true separation date.

[112] Sexual relations are another enigma. Here, the parties disagree about whether there was any sexual intimacy between April 2014 and January 2015. Ray says, “none at all”; Ana says, “yes, regularly”. I make no finding on that issue but also determine that given the otherwise unstable nature of their relationship, it matters little.

[113] Central to the dispute is Ana’s claim that the couple reconciled near the end of August 2014. According to Ana, by that point she had undergone some counselling and reconsidered the relationship. She was also seven months’ pregnant and wanted to reconcile with Ray before the baby was born. On August 27, 2014, she took M and visited Ray while he was on a delivery route. Ray was happily surprised, and they had a very good reunion. The family went out for lunch together. That same night, they retrieved M’s crib from the Lolita Gardens residence – where Ana and M had been staying – and moved in together into Unit 19.

[114] Ray denies they reconciled at that time but agrees that on that date: a) Ana showed up unexpectedly, with M, while he was delivering mail; b) he was surprised and excited by that; and c) it was a pleasant encounter.

[115] I found Ana’s evidence highly credible on this issue. I accept that, spurred by the positive effects of the counselling she had been undergoing, along with the natural desire to welcome her second child into a stable family unit, she sought out this reconciliation. I further find that Ray welcomed this development. While at trial Ray denied there ever was any reconciliation, I find his own acts and declarations at the relevant time show otherwise. In particular:

• Ray admitted that in May 2014, while speaking with Maxine Francis (a caseworker at CAS), he “expressed the hope that [his] family could be together”;
• Ray agreed that during the fall of 2014 and through to January 2015, he, Ana and M went on various excursions together, including visits to playgrounds and swimming pools, and an outing (accompanied by Ana’s father) to Chudleigh’s Apple Farm;
• On October 1, 2014, Ana was presented with a birthday cake with the message “Happy Birthday Mommy Love M & Daddy”;
• There are numerous photos of Ray, Ana and M posing together and smiling, in the fall of 2014, shortly before J’s birth;
• On October 29, 2014, Ray accompanied Ana to the hospital when she delivered J;
• There is a photo of Ray, Ana and M posing together in the hospital with newborn J, within a few days of J’s birth, on October 29, 2014;
• With Ray’s knowledge, his brother prepared a “welcome Ana” sign after J was born, stating “Welcome Home [J] & Mommy, Love [M] & Daddy XOXOXOXOXO”;
• Ray’s tax returns for 2014 and 2015 show him as married. Ana’s tax returns show her as married in 2014 but separated in 2015.

[116] Tellingly, Ray conceded in cross-examination that during this period (April 2014-February 2015), it could have appeared to outside observers that he, Ana, and M “were a family”. In particular, he agreed that to someone on the outside, it could have seemed that the family was “intact and reconciled”. Given the emphasis in the jurisprudence on the objective factors of the relationship, those admissions are, in my view, pivotal to this issue.

[117] Moreover, I find Ray has subjectively never wanted or accepted a separation. Any declaration by him to the contrary during this litigation was solely a strategic maneuver to improve his financial outcome at trial, and is contradicted by the evidence. Beyond his behaviour during the reconciliation period that I have set out above, his conduct since then shows he has never let go.

[118] One example is Mr. Kotur’s evidence that he formed the impression that Ray still wanted to be together with both Ana and the children, and in fact resisted any restraints on spending time with them.

[119] Another example is a text Ray sent to Ana in March 2018 enclosing a Lego “family” that M had assembled. It included two adults and two children. In his text, Ray stated “M made us as a Lego family last time we were at the library… There is only one thing that I have ever wanted Ana and that is for my family to be together ” (my emphasis).

[120] In contrast, I find the evidence that Ray relied upon on this issue to be unpersuasive. For example, while Ray advised his supervisor on May 26, 2014 that he and Ana “were going through a separation”, and also consulted with counsel in July 2014 regarding marital issues, that does not refute Ana’s assertion that they subsequently reconciled in August 2014, nor the evidence that supports that assertion. Similarly, back in November 2013, Ray advised his brother Glen that he and Ana had separated – yet today he concedes that they subsequently reconciled. Again, such breakups and makeups were typical of this relationship.

[121] In his written submissions, Ray referred to a case note dated June 12, 2014 from Darcelle Darbeau, a CAS caseworker, stating that Ana advised her “she has no plan on reconciling” with Ray. This submission was improper for two reasons. First, Ms. Darbeau was not called as a witness and therefore the note is clearly hearsay. Second, Mr. Pike (Ray’s counsel) never put the note to Ana during cross-examination. Relying upon it now amounts to an ambush, as proscribed by the rule in Browne v. Dunn, [1893] J.C.J. No. 5 (P.C.).

[122] Lastly, Ray correctly pointed out that various paystubs from CP in September 2014 show Ana’s residence at Lolita Gardens or at her parents’ home on Nadine Crescent. However, I accept Ana’s testimony that that was done to maintain the appearance that she and Ray were not cohabiting, so as not to violate his bail terms.

[123] For all those reasons, I conclude that the parties’ date of separation – and hence the valuation date - is February 1, 2015.

b) Unit 19: Joint Tenancy or Resulting Trust?

The Parties’ Positions

[124] The parties are listed on the title of Unit 19 as “joint tenants.” Ana maintains that is an accurate reflection of their mutual intentions.

[125] Ray argues that Ana holds her interest by way of a resulting trust in his favour.

The Legal Framework

[126] Section 14(1)(a) of the Family Law Act provides that

The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they were not married, except that, (a) the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants;

Evidence and Analysis

[127] On June 29, 2013, the parties jointly signed an Agreement of Purchase and Sale to purchase Unit 19 for $344,900. Ana’s father, Simo Kovic, was the parties’ broker for the Agreement.

[128] Cindy McGoldrick, a solicitor who was known to the Kovic family, acted for the parties. She procured an initial “Direction Re Title”, signed by both Ray and Ana, which authorized the vendors to place the property solely in Ray’s name. However, the date on that Direction was incomplete, as it noted the month (August) and the year (2013), but omitted the specific day of the month.

[129] Moreover, it soon became clear that Ray did not have a good enough credit rating to secure the mortgage on his own, and therefore Ana needed to go on the mortgage as well. Further, the Estonian Credit Union, who was the mortgagee in this case, required that all borrowers on the mortgage also be on title to the property.

[130] Subsequently, on August 26, 2013, the parties jointly signed a “Direction Re Title” and an “Acknowledgment and Direction for the Mortgage and Title”. Importantly, these documents directed that the property be placed in the names of Ray and Ana “as joint tenants”.

[131] In his written submissions, Mr. Pike emphasized the initial Direction, which showed only Ray on title. Curiously, he omitted any reference to the subsequent Direction which showed both Ray and Ana on title.

[132] Predictably, the parties gave conflicting evidence regarding their intentions with respect to Unit 19. Ray said both parties intended that he be the sole owner, and that Ana was added only because the credit union so required in order to grant a mortgage. Ana maintained that she always understood they were purchasing the property as joint owners. As she reasonably put it, why would she take on a mortgage but not be on title, especially when Ray’s credit was poor?

[133] It is undisputed that the deposit and the down-payment to purchase Unit 19 came from Ray’s bank account. Ray also paid for most of the carrying costs for the first several years, with the exception of the property insurance payments, which Ana has paid throughout.

[134] However, Ana was and remains the primary applicant on the mortgage for Unit 19. Moreover, since March 1, 2017, she has been the sole payor of the mortgage, as well as the property taxes, house insurance and condominium fees. This is despite Trimble J.’s Order of February 7, 2017 requiring Ray to pay half of the carrying costs. It is undisputed that since then, Ana has paid over $68,000 toward the carrying costs of the townhouse.

[135] At trial, Ray testified that he “was not aware” that Ana was on title. I find that incredible. After watching and listening to Ray testify for four days, it became abundantly clear that he is acutely alert to anything that affects his interests. Ray looks out for Ray. While he may have originally preferred to be the sole person on title, I have no doubt that once he realized his credit rating did not permit that, he accepted that he would have to share title with Ana.

[136] Moreover, if, as Ray maintains, it was always his intention to be the sole owner of the property, he could have asked Ana to enter a domestic contract to that effect. There is no evidence here that he even broached that with her.

[137] Another troubling feature on Ray’s part is his delay in raising this issue. It was not until May 2019 that he raised any objection to the form in which title was held. But he knew all along that title was in both names: the reporting letter from Ms. McGoldrick, dated August 26, 2013, and addressed to both Ray and Ana, makes it clear that Ana and Ray took the property as joint tenants.

[138] Finally, the case law advanced by Ray to support his position that the facts of this case amount to “evidence to the contrary” is all distinguishable, namely CIT Financial Ltd. v. Zaidi, [2006] O.J. No. 1073 (S.C.), Corriveau v. Richardson, 2016 ONSC 1248, and Lorenzen v. Desjardins, 2017 ONSC 1932. CIT Financial Ltd. involved a fraudulent conveyance claim by CIT against a married couple who had put a jointly-held property in the name of the wife alone. In Corriveau, the property in question was an investment account consisting of personal injury proceeds that were indisputably being maintained by the wife on behalf of the husband, who had suffered a brain injury. In Lorenzen, the property was purchased solely by the wife as an investment, using inheritance funds, and then transferred into both parties’ names six months prior to separation to preserve the husband’s interest in certain monies that were used to pay down the property’s debts. None of these cases involve the purchase of a house together by married spouses who remained jointly undisturbed on title until separation.

[139] Similarly, the authorities Ray relies upon to suggest that the presumption is rebutted because title was taken jointly to secure financing are also distinguishable as they involve parents and children (Andrade v. Andrade, 2016 ONCA 368), common law spouses, one of which the court found was “not sophisticated or well-educated” (Zajko v. Knight), and separated spouses who used the other party’s name to secure financing (Miranda v. Mendonca, 2017 ONSC 526).

[140] For all those reasons, I find that Ray has failed to adduce any evidence to defeat the presumption of joint tenancy in s. 14 of the Family Law Act.

c) & d) Retroactive Child Support, Occupation Rent, and Post-Separation Adjustments

[141] At the end of the trial, I reviewed with counsel my expectations regarding closing submissions. I stipulated that they would be in writing and established a timeline.

[142] At that time, I also identified the issues remaining in dispute that counsel could expect me to address in this decision. I specifically advised counsel that I would not address the issues of occupation rent and post-separation adjustments in my judgment. My reasons for that stipulation were numerous, including:

a) Mr. Pike’s acknowledgment that for the period subsequent to Trimble J.’s Order of February 7, 2017, any claim Ray might have for occupation rent would be entirely off-set by the housing expenses borne by Ana; b) While Mr. Pike was still asserting a claim for occupation rent prior to February 2017, that had to be balanced against retroactive child support payments owed by Ray before February 2017; c) The strong probability that to the extent there was any imbalance favouring either party, it was likely to be very minimal and not worth the time and expense counsel would incur to document it.

[143] Those stipulations are based on case law that makes it clear that occupation rent is a discretionary remedy to be granted only in exceptional circumstances, subject to a set-off by any reasonable credits or other competing claims in the litigation: Griffiths v. Zambosco, [2001] O.J. No. 2096 (C.A.), at paras. 49-50; Cameron v. Cameron, 2018 ONSC 2456, at paras. 182-186; Virc v. Blair, 2016 ONSC 49, at para. 454.

[144] Given all those factors, I found it surprising that both parties nonetheless addressed these issues in their written submissions. They included long and detailed lists of who spent what and when.

[145] Without deciding the merits, my distinct impression upon reviewing those submissions is that given both the applicable law and the copious but relatively small sums involved, the parties’ claims largely cancel each other out. In other words, the math is interminable but largely inconsequential. Therefore, in keeping with my original advice, I do not intend to address those factors here, other than to stipulate that child support post-dating Trimble J.’s Order is payable at the amounts I have imputed, and therefore will give rise to arrears.

[146] Beyond that, if either party still truly requires a judicial determination on these issues, then s/he can advise me. But both parties should think long and hard before bringing any of these issues back, be it retroactive child support, occupation rent, and/or post-separation adjustments. At best, any improvement beyond a straight off-set will likely be minimal, and arguably not justify the time and expense involved.

Conclusion

[147] For the reasons outlined above, I conclude as follows:

1. Ana has final decision-making authority on any major issues affecting the children, including their health, education, religion, and extra-curriculars;
2. The children shall reside primarily with Ana, with Ray to have access on alternating weekends;
3. For the purposes of child support, for the years 2015 onward, Ray’s income shall either be the imputed amount of $60,000 or his actual reported income, whichever is greater, except that for the year 2018, his income is imputed at $78,102;
4. There is no spousal support payable;
5. The parties’ date of separation is February 1, 2015;
6. The parties own Unit 19 as joint tenants.

[148] A detailed Final Order which includes and expands upon these terms is attached hereto as “Schedule A: Final Order”. In the circumstances of the COVID-19 pandemic, that Order is operative and enforceable from the time these reasons are released, without any need for a signed or entered formal Order.

Costs

[149] In accordance with r. 24(1) of the Family Law Rules, O. Reg. 114/00, there is a presumption of costs to the successful party. Ana is by far the more successful party here. She shall serve and file her cost submissions, Bill of Costs and any Offers to Settle by June 3, 2020. Ray is to serve and file his response by June 24, 2020. Reply (if necessary) by July 2, 2020. Submissions shall not exceed five pages, with 12-point font and proper spacing, exclusive of the Bill of Costs and Offers to Settle. They may be served and filed by e-mail.

Outstanding Issues

[150] I have already explained why I do not expect counsel to be returning any issues before me with respect to retroactive child support, occupation rent and/or post-separation adjustments.

[151] That said, the parties will need to do some math flowing from the decisions that I have made here, particularly with respect to imputed income and property division. I expect them to resolve that on their own. If there is a dispute, I remain seized. However, I exhort both parties to be flexible and reasonable in their discussions. This case has already consumed an excessive amount of time, money and court resources. To date, at least five different judges have been drawn into this conflict. The trial, which should have been completed in one week, spanned three. Going forward, the parties must consider the court’s limited time and resources, particularly now in the wake of the COVID-19 pandemic.

[152] Therefore, before returning anything further to me for consideration:

a) Both parties should make extraordinary efforts to resolve any outstanding disputes; b) If either party does return, it better be with something both meritorious and significant, failing which there may be grave costs penalties.

“Baltman J.” Electronic signature of Justice Deena Baltman, Original will be placed in court file Released: May 13, 2020

SCHEDULE A: FINAL ORDER

THIS COURT ORDERS THAT:

PARENTING

1. Ana has final decision-making authority on any major issues affecting the children, including their health, education, religion and extra-curriculars;

2. The children shall reside primarily with Ana;

3. Both parents may make inquiries and be given information by the children’s teachers, school officials, doctors, dentists, healthcare providers or other third-party professionals involved with the children, and shall be entitled to receive such information directly from the listed and any analogous persons;

4. Ray shall have access to the children on alternate weekends, specifically on Friday from after-school pick-up (or 3:30 p.m. from their childcare location or Ana’s residence if not in school), until Monday at school drop-off (or 9:30 a.m. to their childcare location or Ana’s residence if not in school);

5. Each parent is permitted an unmonitored phone call with the children at 7:00 p.m. on any evening where the children are staying overnight with the other parent, not to exceed 20 minutes;

6. Ana shall parent the children at all other times except as mutually agreed by both parents or in accordance with the Holiday Schedule herein;

7. Ana’s parents may assist the parties with the exchanges where Ana feels it is desirable. During pick-ups and drop-offs at Ana’s residence, Ray shall buzz or knock at her door, shall remain outside, and shall not enter the premises. Ray shall leave all of the children’s belongings to be transferred at the entrance;

8. Ray shall notify Ana as soon as he is aware he may be late picking up or dropping off the children;

9. Both parents may attend all of the children’s school events, regardless of the schedule;

10. The parents shall communicate through “Our Family Wizard” to share all information with respect to the children and to make changes in access scheduling. The parents will not telephone or text each other, except in the case of a medical emergency involving the children. If this service becomes unavailable to the parents, another similar service shall be chosen;

11. Both parents shall keep each other apprised of current addresses and telephone numbers, providing any changes to their telephone numbers within 48 hours and any changes to their addresses at least one month in advance;

12. If emergency medical treatment is required, the parent who has the children will seek such treatment and inform the other parent as soon as possible;

13. Each parent shall maintain dental, medical and extended health coverage for the children for so long as they remain children of the marriage and such coverage is available to them through their employment at no additional expense;

14. Neither parent shall speak negatively about the other in front of the children, or permit family members or friends to do so;

15. The parties shall share holidays as follows, unless a variation is confirmed and mutually agreed upon at least seven days in advance of the holiday by email:

    a) Ana shall have the children for Mother’s Day each year from 10:00 a.m. to 7:00 p.m., regardless of the regular schedule; b) Ray shall have the children for Father’s Day each year from 10:00 a.m. to 7:00 p.m., regardless of the regular schedule; c) The parents shall share Christmas Break each year, such that in odd-numbered years, Ana has the children from December 24 at 10:00 a.m. until December 25 at 2:00 p.m. and Ray has the children from December 25 at 2:00 p.m. until December 26 at 7:00 p.m. In even-numbered years, Ray has the children from December 24 at 10:00 a.m. until December 25 at 2:00 p.m. and Ana has the children from December 25 at 2:00 p.m. until December 26 at 7:00 p.m. The remainder of the Christmas Break shall be equally shared between the parents; d) The parents shall share Easter Weekend each year, such that the parent who would not normally have the children for the weekend shall have them on Easter Monday from 10:00 a.m. until 7:00 p.m.; e) The parents shall share Thanksgiving Weekend each year, such that the parent who would not normally have the children for the weekend shall have them on Thanksgiving Monday from 10:00 a.m. until 7:00 p.m.; f) Each parent shall have two non-consecutive weeks of vacation with the children each year. Each parent shall advise of their respective weeks one month prior to taking the vacation. Ana shall have first choice of her respective weeks in even-numbered years, and Ray shall have first choice of his respective weeks in odd-numbered years. g) Ana is permitted to travel with the children without Ray’s consent, provided that she gives him one month’s notice and supplies him seven days in advance with a full written itinerary, including destination, travel dates, mode of travel, flight number if applicable, accommodation details and contact information. Should Ray wish to travel with the children, he shall provide the same notice and information within the same timelines. Ana will sign a Consent to Travel letter, and her consent shall not be unreasonably withheld for travel within Ray’s vacation times. The children’s travel documents shall be kept by Ana when not in use.

NON-HARASSMENT

16. Neither parent shall directly or indirectly contact the other except through “Our Family Wizard” or other similar written communication, unless mutually agreed, and only to discuss access scheduling;
17. Neither parent shall come within 300 metres of the other parent’s residence at any time for any purpose, except to facilitate access in accordance with a court order on scheduled access dates.

CHILD SUPPORT

18. Ray shall pay arrears of child support from February 7, 2017 onward, based on his imputed income of $60,000, except for the year 2018, in which arrears shall be based on his imputed income of $78,102;
19. Going forward, Ray shall pay child support based either on the imputed income of $60,000 or his actual reported income, whichever is greater;
20. The parents shall share all s. 7 expenses relating to the children, including childcare costs, in proportion to Ana’s actual income and Ray’s actual or imputed income, whichever is higher. Ray shall remit his portion to Ana within ten days of receiving a receipt or invoice.

SPOUSAL SUPPORT

21. There is no spousal support payable.

DATE OF SEPARATION

22. The date of separation is February 1, 2015.

JOINT TENANCY OF UNIT 19

23. The parties hold title to Unit 19 as joint tenants. The presumption of joint tenancy in s. 14 of the Family Law Act has not been defeated;

24. The parties shall cooperate with the listing and sale of Unit 19 and shall accept any reasonable offers to purchase as recommended by their realtor. The parties shall sign any documentation required to give effect to the listing and sale of the home;

25. If the parties cannot agree on any sale terms, they can apply to the court on short notice for directions;

26. The parties shall follow the advice of their real estate agent and share equally in the costs of any necessary renovations, repairs, cleaning or junk removal (other than each other’s personal moving costs);

27. If either party fails to reasonably facilitate the sale of the house, the other party may apply to the court to dispense with the requirement for the parties to cooperate in the sale;

28. Upon the sale of the property, the parties shall direct the vendor’s lawyer to pay the following expenses from the proceeds:

    i. The real estate commissions; ii. Adjustments for taxes, utilities, municipal fees or levies; iii. Monies needed to discharge registered encumbrances; iv. Legal fees and disbursements relating to the sale; and v. All other sale adjustments.

DIVORCE

29. Either party may proceed with a divorce on an uncontested basis.

OUTSTANDING ISSUES

30. In accordance with paras. 150-152 above, neither party shall return this matter for further direction or adjudication except for urgent and significant matters, and only after having exhausted all reasonable settlement efforts directly with the other party. A failure to comply with this provision will result in severe costs consequences.

Baltman J. Released: May 13, 2020

COURT FILE NO.: FS-16086105 DATE: 20200513 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Raymond Tone Applicant - and – Ana Tone Respondent REASONS FOR JUDGMENT Baltman J. Released: May 13, 2020

[1] To protect the children’s privacy, I have used their first initials only.

[2] The charge against Ray was dismissed at trial. The charge against Ana was resolved with a peace bond.

[3] Statement of Agreed Facts, Ex. 2, at p. 2, para. 3.

[4] As explained later in these reasons, although any arrears for the period preceding Trimble J.’s Order are set-off against occupation rent, arrears post-dating his Order will be payable at this higher imputed income.