COURT FILE NO.: FC-11-59

DATE: 2012/06/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANGELA VIGNEAULT

Applicant

– and –

STEPHEN MASSEY

Respondent

Yanik S. Guilbault, for the Applicant

Self-represented

HEARD: May 22-25 and May 28-30, 2012

REASONS FOR JUDGMENT

M. Linhares de Sousa J.

ISSUES FOR TRIAL

[1] At the commencement of this trial the parties had succeeded in settling a number of contentious issues which they had put before the Court for adjudication at the beginning of the litigation. The substance and detail of their pre-trial agreement is contained in exhibit #1 filed at the commencement of the trial. The parties further agreed that those issues agreed to and found in exhibit #1 could be incorporated into a final order on consent. It is so ordered.

[2] An examination of exhibit #1, confirmed by the introductory comments of counsel for the Applicant, Ms. Vigneault, and by the Respondent, Mr. Massey, at the beginning of trial indicates the following. The parties have for the most part resolved the issues of custody and access as found in clauses 1 to 34 in exhibit #1, and as amended by hand where such amendments are found.

[3] The outstanding parenting issues that remain for this Court to decide are as follows:

(1) With respect to clause 16 of exhibit #1, the parties disagree on, in the event of a psychological evaluation of the children being done in the French language, who would be responsible for arranging for the translation of the psychological evaluation into English and who would bear the cost of that translation?

(2) With respect to clauses 17 and 18 of exhibit #1, in these two clauses the parents have agreed to resolve any disagreements they may have in making parenting decisions jointly, (“all other difficult subjects excluding extracurricular activities”) by resorting to the use of a parenting coordinator/mediator. The parties disagree as to whether each time the process is used the parenting coordinator/mediator ought to have the mandate to determine which parent ought to bear the costs of the process.

(3) With respect to clause 19 of exhibit #1, the parties disagree as to whether the non-custodial parent should be permitted to telephone the children in the care of the other parent, in the event that the children do not telephone the non-custodial parent during the week they are with the other parent.

(4) With respect to clause 23 of exhibit #1, the parties disagree as to whether the current childcare provider, Ms. Astrid Laframboise, should be changed.

(5) With respect to clause 27 of exhibit #1, the parties disagree on the acceptable wording regarding the method of choosing the children’s activities and what obligations, if any, would be imposed on the parents with respect to the attendance and transportation of the children to these activities.

(6) The last parenting issue concerns the on-going management of funds, held in Mr. Massey’s name, but which both parties agree are held by him in Trust for the benefit of the two children of the marriage for their future education. The funds are in the approximate amount of $30,000 to $40,000 and were created from Mr. Massey’s financial resources.

[4] The parties have resolved the question of on-going spousal support in accordance with paragraph 37 of exhibit #1, namely the parties agree that there “shall be no on-going spousal support paid by either party.” This too, shall be incorporated into my final order.

[5] What remained an issue for this trial is whether Mr. Massey is entitled to retroactive spousal support, payable by Ms. Vigneault, from the time of the separation until exhibit #1 was signed by the parties at the commencement of the trial.

[6] The question of retroactive spousal support for Mr. Massey from the date of the separation to the parties’ pre-trial agreement is closely related to and will essentially turn on the third issue for adjudication for the trial, namely, what income ought to be imputed to Mr. Massey for the purposes of retroactive spousal support?

[7] The question of what income out to be imputed to Mr. Massey is also related to the issue of Mr. Massey’s claim for child support, both retro-active and on-going, to be calculated using a set-off approach of the parties’ respective incomes and the Federal Child Support Guidelines, S.O.R./97-175, as am. [“Guidelines”]. The question will also be relevant in determining Mr. Massey’s proportional share of the children’s section 7 expenses, both retroactive and on-going.

[8] The fourth issue for adjudication relates to a cohabitation agreement signed by the parties prior to their marriage. Both parties agree that the cohabitation agreement is a valid and binding contract. The conflict between them concerns the correct interpretation to be given to the cohabitation agreement. Specifically, does the cohabitation agreement exclude or include the matrimonial home from the operation of the cohabitation agreement, whose general purpose was, indisputably, to maintain the “incomes and estates” of the parties “as distinct and separate” and, hence, free from the application of the Family Law Act, R.S.O. 1990, c. F.3 [“FLA”] and the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am.

[9] Finally, the last issue for adjudication is the divorce. Both parties seek a divorce.

FACTUAL BACKGROUND

[10] The following are the relevant facts with respect to the issues before the Court.

[11] The parties first met at a karate competition in 1994. In 1997, Ms. Vigneault moved from Quebec to Ottawa to cohabit with Mr. Massey in a rented apartment. Up to that time, Ms. Vigneault had essentially lived her life in the French language. Only upon her move to Ottawa did she begin to learn and use the English language in any substantial way.

[12] When Ms. Vigneault moved to Ottawa, while she had her Quebec teaching credentials, she had to wait approximately one year after her application to receive her Ontario teaching credentials before she could enter the teaching profession in this province. While Ms. Vigneault was waiting for this, Mr. Massey employed her in one of his established businesses, Network Supply Canada Inc. Ms. Vigneault performed a variety of duties in this employment such as receptionist, the processing of bills and invoices and filing. Once Ms. Vigneault received her Ontario teaching credentials she began to teach, first in a private school and eventually with the Ottawa Catholic School Board where she continues to be employed.

[13] When he began to cohabit with Ms. Vigneault, Mr. Massey was an established entrepreneur. He was the sole owner and manager of two established businesses, Cyclone Networks Inc. and Network Supply Canada Inc. He also had a number of assets and investments which he had built up over the course of his working life.

[14] The evidence indicated that Cyclone Networks Inc. was founded in 1990. Its operation was to design and manufacture network type products. Network Supply Canada Inc. was founded in 1994 for the purpose of distributing network products and of building computers.

[15] In 1998, while the couple was still cohabiting in rental accommodation, they began to plan for the construction of the matrimonial home which is the subject matter of this litigation and which is registered in the sole name of Mr. Massey. The parties agreed that once this project was embarked on Mr. Massey became the active agent. He searched and personally negotiated for the purchase of the lot from a developer. Mr. Massey became the construction general manager after taking a course in house construction and creating his own company, Massey Homes, to become the vehicle of the home’s construction. He personally met with the architect to work on the plans for the house and made changes to the plans with the architect. He arranged and dealt with all of the sub-trades during the construction. He even went on site and did some of the construction work with the other trades people.

[16] It was not disputed by the parties that Mr. Massey provided all of the funds required for the construction of the matrimonial home. Mr. Massey paid $50,000 as a down payment on the house and provided other funding to construct the home by way of a loan from his company which he subsequently paid back.

[17] Mr. Massey’s evidence with respect to the construction of the house was that he did everything and made all of the decisions and Ms. Vigneault did very little. Although he acknowledged that he may have told Ms. Vigneault about his decisions relating to the matrimonial home. The only thing Mr. Massey recalled Ms. Vigneault being involved in was picking the paint colours for the house.

[18] While Ms. Vigneault acknowledges that she did not provide any direct financial contribution to the construction of the matrimonial home, she saw the matrimonial home construction project as very much a joint effort. She recalls going to see sites for the home with Mr. Massey. She recalls examining construction plans with Mr. Massey and being involved in decisions relating to the modification of the plans. She recalls dealing with some trades people, such as plumbers. She also recalls being actively involved in the interior decorating plans for the home.

[19] It was Mr. Massey’s evidence that his intention in building the matrimonial home via his newly formed company, Massey Homes, was to sell it within one year and thereby avoid capital gains on its sale pursuant to a government plan. However, when the one year was up, according to Mr. Massey, Ms. Vigneault refused to allow its sale.

[20] Ms. Vigneault vehemently denied that this was the purpose of the building of the home. According to Ms. Vigneault the couple planned to build the home as their family home to live in.

[21] Regardless of what Mr. Massey’s original intention for the home might have been, the fact of the matter is that he concurred in it remaining the parties’ permanent matrimonial home for the duration of their marriage. On the evidence it cannot be disputed that the parties never moved from the house and it continued to be the parties’ matrimonial home until their physical separation in March of 2011, when Ms. Vigneault moved out of the home. Mr. Massey has remained living in the home since that time and shares it with the children during his custodial week.

[22] In December, 1998, approximately one year after the construction commenced, the parties moved into their newly constructed home. It was also not disputed by the parties that Mr. Massey purchased and furnished the home from his own funds. Ms. Vigneault testified that at the time of the couple’s separation there was approximately $10,000 worth of furniture in the house. This was not contested by Mr. Massey. Ms. Vigneault recalled purchasing herself some paintings, a decorative table, some chairs and a “console” or tableau d’art.

[23] The only part of the house that remained unfinished when the parties moved in was the basement. Mr. Massey started work on the basement in 2009, according to Mr. Massey, at Ms. Vigneault’s request, when he stopped being actively involved with his company, Network Supply Canada Inc. He did most of the work on the basement himself with some assistance from Ms. Vigneault and from a friend who helped him lay a cement floor.

[24] After three years of cohabitation the parties resolved to marry and they did so on October 14, 2000. Prior to their marriage, they discussed entering into a marriage contract. It is not disputed that the purpose of the marriage contract was for the purpose of protecting Mr. Massey’s property from becoming the subject matter of family law legislation in the event of a marriage breakup. At the time of the marriage Mr. Massey owned his two companies and had investment assets. The matrimonial home was also in Mr. Massey’s name. At the time of the marriage, Ms. Vigneault had few assets, in comparison to Mr. Massey, and some debt in the form of a student loan.

[25] The parties differ greatly in their testimony in relation to what their intentions were when they signed the cohabitation agreement which was filed as exhibit #7 at the trial. I will deal with the parties’ positions on this issue below. However, the evidence established the following facts concerning the circumstances of the signing of the cohabitation agreement. The agreement was drafted by Mr. Massey’s lawyer, Mr. Roger Harris, on Mr. Massey’s instructions. Mr. Massey indicated that there were a number of drafts but he was not able to produce any of these drafts.

[26] Both parties acknowledged that they talked about the cohabitation agreement months before the marriage. Mr. Massey’s evidence was that Ms. Vigneault had a copy of the cohabitation agreement weeks before she signed it and that they had discussed it before signing it.

[27] However, Ms. Vigneault indicated that she was busy planning for the wedding and that she paid little attention to the topic. Her recollection was that Mr. Massey drove her to sign the contract at a lawyer’s office on October 13, 2000, the day before their wedding. Mr. Massey denied that he drove her to the lawyer’s office and that he himself signed the cohabitation agreement at his work.

[28] Ms. Vigneault’s evidence was that she saw the agreement for the first time in the lawyer’s office. She was taken to a room where she read the contract alone and then met with the lawyer, Mr. J. Desmond Adams, for about five minutes before signing the contract and initialling all of the pages. According to Ms. Vigneault the whole process took approximately one hour. The contract was in English and her discussion, as short as it was, with the lawyer was all in English, a language that, as Ms. Vigneault testified, was still her second language and of relatively recent acquisition.

[29] Ms. Vigneault was not given a copy of the cohabitation agreement after she signed it. She had not retained Mr. Adams. She did not receive any bill for Mr. Adam’s services nor did she pay him any fees for his services. She did not receive any follow-up reporting letter from Mr. Adams. She never saw the cohabitation agreement again, although she had asked Mr. Massey for a copy of it, until the commencement of these proceedings as part of the disclosure requirements of the litigation. While Mr. Massey’s assets at the time, including the matrimonial home, were listed in Schedule “A” of the cohabitation agreement, no value was ascribed to any of the assets. Both parties signed certificates of independent legal advice attached to the cohabitation agreement.

[30] The wedding did not appear to change in any way the financial arrangement the parties lived by before the marriage. Each party kept their own separate bank accounts. After the parties moved into the matrimonial home, Mr. Massey paid for the mortgage on the home as well as for any large items such as cars or vacations. Ms. Vigneault paid from her salary and any monies received from Mr. Massey’s company or from Mr. Massey all the other household expenses, such as the house taxes and insurance, all of the utilities such as telephone, electricity, water and gas. The evidence revealed that between the years 2001 and 2005 Ms. Vigneault received a salary payout from Network Supply Canada Inc. as part of an income splitting plan to bring more money into the Massey-Vigneault household and to reduce Mr. Massey’s income tax.

[31] When the children were born, Julia, in July of 2002, and Catherine, in September of 2004, Ms. Vigneault remained employed as a teacher but taking periods of maternity leave. After the birth of the children Ms. Vigneault, in addition to her usual expenses relating to the house also began to pay for childcare and the other child related expenses. When Mr. Massey paid off the house mortgage, five years after the home’s construction, Ms. Vigneault continued to cover the same expenses from her salary.

[32] Ms. Vigneault was never made privy to Mr. Massey’s income or the full extent of his wealth during their years of cohabitation. However, it is fair to conclude that while Mr. Massey’s two companies remained in operation and under the full control of Mr. Massey they provided him, and ultimately the Massey-Vigneault household and family with a comfortable living. The family appeared to be able to purchase large items with cash. According to Ms. Vigneault, Mr. Massey spoke to her of his financial successes as a result of his trading activity on the stock market which he informed her were in the millions of dollars and that it was his intention to retire at an early age.

[33] In 2005, Mr. Massey’s employment circumstances changed. He sold 50% of his company, Network Supply Canada Inc. to a partner, Kevin Mullally. Mr. Massey testified that he left the day-to-day management of the company to Mr. Mullally who, in Mr. Massey’s own words, “ran the company into the ground”. In 2008, Mr. Massey dissolved his other company Cyclone Networks Inc.

[34] Consequently, on Mr. Massey’s evidence, in approximately 2009 he decided to work at home dedicating himself full-time to trading on the stock market.

[35] Presumably, Mr. Massey’s change of employment activity was in anticipation of making a comparable, if not greater, living to what he had previously enjoyed. His other stated reasons were because of his own health and at Ms. Vigneault’s request due to her health. Ms. Vigneault had about that time been diagnosed and treated for cancer.

[36] Irreconcilable differences eventually developed between the parties regarding where they would live in the future and whether they should have a third child. In August of 2010, the couple determined that their marriage was at an end. They remained living together in the matrimonial home and under some rather stressful circumstances. They physically separated in March of 2011, after agreeing to care for the children on an alternating week basis.

[37] After living a few months with her sister, Ms. Vigneault rented her current home which she shares with the two children during her custodial week. Since leaving the home, Ms. Vigneault was able to obtain only her personal items. The parties could not reach an agreement on the division of the matrimonial home furnishings and furniture and hence Ms. Vigneault has not shared in any division of the matrimonial furnishings or furniture, including any that may belong to the children. Since the separation she has had to rebuild afresh the furniture and furnishings in her current home and has incurred some debt in doing this as set out in her financial statement filed as tab 4 of the Trial Record.

THE DIVORCE

[38] Based on the above facts, I am satisfied that the grounds exist for the granting of a divorce and it is so ordered. The order for divorce shall become final 31 days from the date of this judgment.

THE PARENTING ISSUES

[39] With respect to clause 16 of exhibit #1, the parties disagree on, in the event of a psychological evaluation of the children being done in the French language, who would be responsible for arranging for the translation of the report into English and who would bear the cost of that translation?

[40] Ms. Vigneault’s resistance to sharing this expense is because she questions Mr. Massey’s good faith in requesting such a translation. In the past when a French report was produced on their daughter Catherine, offers were made to have the neuro-psychologist, Dr. Lavoie, who authored the report, meet with Mr. Massey to explain the report to him in the English language. According to Ms. Vigneault, Mr. Massey refused to attend when he learned that he would have to pay for the consultation. Ms. Vigneault is not asking for the translation of any such report that may be done in English.

[41] Mr. Massey takes the position that it would be unfair for him alone to bear the cost of this expense when it deals with the wellbeing of the children.

[42] For the time being the children’s school language is French. Any psychological evaluations for the children will in the foreseeable future be in the French language. It is in the best interests of the children that both of their parents be fully cognizant of the contents of such psychological evaluations so that appropriate parental decisions may be made on the children’s behalf. It is therefore fitting that both parents share equally and reasonably in this expense.

[43] Consequently, it is ordered that whether a translation from French to English or from English to French of a psychological evaluation referred to in paragraph 16 of exhibit #1 is desired by either parent, the parent who desires the translation shall have two weeks to arrange for a translation and to pay for the translation from their own resources up front at the most economical rate available and must inform the other parent forthwith of the cost of such translation. Once the translation is obtained and paid for by the parent wishing the translation, that parent shall claim 50% of the cost from the other parent. Upon receiving proof of such payment and a copy of the translated report the other parent shall pay their 50% share of the translation cost. The timelines for this are to be strictly adhered to.

[44] This does not include the cost of any face-to-face consultation with the author of any psychological evaluation for the children, which cost shall be borne solely by the parent who seeks the consultation.

[45] It is further ordered that in the event of the production of such a psychological evaluation for the children, already completed and to be completed in the future, either parent shall be free to share the psychological reports with the children’s school authorities, if they so wish.

[46] With respect to clauses 17 and 18 of exhibit #1, in these two clauses the parents have agreed to resolve any disagreements they may have in making parenting decisions jointly, (“all other difficult subjects excluding extracurricular activities”) by resorting to the use of a parenting coordinator/mediator. The parties disagree as to whether each time the process is used the parenting coordinator/mediator ought to have the mandate to determine which parent ought to bear the costs of the process.

[47] Ms. Vigneault wishes the parenting coordinator/mediator to have the discretion to award to one or the other party the costs of the process at the end of the process. Ms. Vigneault has no trust in Mr. Massey’s good faith in working cooperatively with her on parenting issues and is fearful that she will find herself frequently drawn into this process at a cost to her.

[48] Mr. Massey argues that to give the parenting coordinator/mediator such a discretion would damage the objectivity of that individual and would be unfair to the party who calls on the process in good faith.

[49] I am persuaded that granting to the parenting coordinator/mediator the authority to award the costs of the process to the parent who presumably merits an award of costs for the process could compromise the apparent neutrality of the parenting coordinator/mediator. This would, in my view, jeopardize the availability of this alternative dispute resolution instrument to these parties who as litigants before this Court can undoubtedly be characterized as high conflict litigants. I also question whether a parenting coordinator/mediator, who in default of a reached agreement between the parties, if given the decision making power under paragraph 17 of exhibit #1 would want such a discretion.

[50] Whether the parties can reach their own agreement and accommodation or whether they will call on the parenting coordinator/mediator process to reach an agreement or accommodation, as provided for in exhibit #1 is ultimately within their individual control. For these reasons this addition to paragraph 17 of exhibit #1 will not be part of my order. The parties will continue to share equally the cost of the parenting coordinator/mediator process when used by them pursuant to paragraphs 17 and 18 of their agreement.

[51] With respect to clause 19 of exhibit #1, the parties disagree as to whether the non-custodial parent should be permitted to telephone the children in the care of the other parent, in the event that the children do not telephone the non-custodial parent during the week they are with the other parent.

[52] Ms. Vigneault testified that she believes that Mr. Massey interferes with the children’s freedom to telephone her during the week in which he cares for the children. It was her view that it is in the children’s best interests to communicate with her during that week of absence from her care. Consequently, she wishes the right to telephone the children in the event that they do not call her.

[53] Mr. Massey testified that the question of telephone access with the children has been a great source of conflict between the parties. He denies that he in anyway prevents the children from calling their mother when they are in his care. It was his evidence that the children do not ask or demonstrate that they want to speak to their mother and they should not be obligated to do so.

[54] Ms. Chantal Bourgeois, a social worker, of the Office of the Children’s Lawyer performed an inquiry and report in this matter dealing with the custody of and access to these children. Her report is found in the Trial Record at tab 8. Mr. Massey’s dispute to the report and the Office of the Children Lawyer’s reply to Mr. Massey’s dispute are found at tabs 9 and 10, respectively, of the Trial Record. In her report Ms. Bourgeois addressed the question of telephone access by the children to the non-custodial parent. At paragraph 7, page 24 of her report she only recommended that the children be free to telephone their parents and made no recommendation concerning the non-custodial parent’s right to telephone the children when not in their care.

[55] In an ideal world a parent should be able to talk to their children whenever they wish. However, this is a high-conflict matrimonial separation. These children deserve peace from their parents’ conflict as much as possible. Any parental contact that contributes to that conflict ought to be eliminated.

[56] For this reason, the following paragraph regarding telephone access by the children to their parents shall be incorporated into my order:

The children are entitled and shall be free to telephone their parents at any time and for as long as they wish, without any direct or indirect interference from either parent. The parent having access to the children shall provide a quiet and private place for the children to speak to their parent by telephone. The parent shall leave the children privacy to speak without trying to overhear conversations.

Both parents are requested to be reasonable about the duration of these telephone conversations. Both parents are also requested, while the children are in their care, to remain sensitive to the children’s need to speak to the other parent for emotional, scholastic, organizational or other reasons and to encourage such telephone calls on the part of the children when the occasion arises.

[57] With respect to clause 23 of exhibit #1, the parties disagree as to whether the current childcare provider, Ms. Astrid Laframboise, should be changed.

[58] Ms. Astrid Laframboise has been the children’s caregiver for five years. Ms. Laframboise is anglophone and her husband is francophone. Ms. Laframboise has teenage children who have also served as occasional babysitters for the children. Ms. Laframboise cares for other children including the children’s cousins. Ms. Laframboise does not live in the children’s school zone so part of her childcare duties is to pick up the children from their school

[59] Ms. Vigneault has not observed the children to have any difficulty with Ms. Laframboise, and she questions Mr. Massey’s recent motives for wanting to change the children’s childcare provider. She denies that this issue was ever raised by Mr. Massey during their marriage.

[60] Ms. Vigneault takes the position that the children have suffered enough disruption with their parents’ acrimonious matrimonial breakup. She wishes the children to have as much stability and consistency as is possible in the circumstances. Changing their caregiver at this time, in her view, would not contribute to the maintenance of that stability.

[61] Mr. Massey testified that he questions Ms. Laframboise’s ability to care for the children appropriately and takes issue with how negatively, to his observation, she has treated their daughter Catherine. Mr. Massey has also sensed Ms. Laframboise to be hostile towards him.

[62] Mr. Massey’s concerns with Ms. Laframboise have never been raised by him with Ms. Laframboise. His explanation of this when cross-examined on the issue was that it would have no effect. What is more curious is the fact that Mr. Massey chose not to raise this important issue relating to the wellbeing of the children, with Ms. Bourgeois of the Office of the Children’s Lawyer. When cross-examined about this he testified that he did not want to raise it in order to keep the lawyers out of the dispute.

[63] On all of this evidence, I find Ms. Vigneault’s evidence concerning this issue to be the more sound and persuasive. As a result, Ms. Astrid Laframboise shall remain as the children’s caregiver as long as she agrees to continue in that function or as the parties can otherwise agree.

[64] With respect to clause 27 of exhibit #1, the parties disagree on the acceptable wording regarding the method of choosing of the children’s activities and what obligations, if any, would be imposed on the parents with respect to the attendance and transportation of the children to these activities.

[65] This issue too, has been the source of much conflict between the parties. Towards the end of their marriage the children were involved in dance lessons at a particular studio. After the parties’ separation, conflict arose between the parents concerning, the location of the dance studios, the frequency of the dance lessons when one of the children went into a competitive streams of dance, and what efforts were to be used to ensure that the children attended their dance lessons.

[66] Both parents are able to agree that the children should not be physically forced to attend their activities if they do not want to go to any particular activity lesson. Both parents also agree that the children’s activities should be determined taking account of the children’s wishes to participate in these activities, and taking account of a reasonable cost and frequency of the activities.

[67] Ms. Vigneault testified that she seeks the additional phrasing in paragraph 27, with which Mr. Massey takes issue, put forward by her counsel, because after the parties’ separation Mr. Massey did not support or ensure that the children attended their dance lessons contrary to the children’s wishes. She acknowledged that she too met some occasional resistance from the children to attend some of their dance lessons but, except for one incident with Catherine, she generally persuaded them to attend.

[68] Mr. Massey’s evidence was that if he did not take the children to their dance lessons it was because they expressed their determination not to attend and he was not prepared to force his children to attend these lessons. He also added that he was not consulted when his daughter entered the competitive stream of dance lessons which meant more frequent lessons during the week with which he did not agree. It is his position that the wording of the activities paragraph should be clear and unambiguous so as not to be a source of conflict between the parties. There was evidence to indicate that Mr. Massey during the marriage encouraged and attended the children’s activities.

[69] Based on this evidence, considering the recommendations of Ms. Bourgeois on this issue found at page 23 of her report and acknowledging that there may not be any failsafe wording dealing with how the children’s future activities shall be decided jointly by these parties which will ensure a minimum of conflict, the following paragraph 27 shall be incorporated into my order and govern the issue of the parental choice of the children’s future activities. I have also considered the fact that the parents have agreed in their pre-trial agreement at paragraph 18 to exclude any parental disagreement relating to the children’s activities from the parenting coordinator/mediator process:

If the parties can agree, they shall register the children in extracurricular activities. Unless the parties can otherwise agree, the extracurricular activities shall not exceed two activities per child and shall not surpass three days per week combined between the children. The selection of the children’s activities shall be child centred and take account of the children’s expressed wishes and preferences and may include dance lessons if the children express such a wish or preference.

If the parents agree to enrol the children in an extracurricular activity, then both parents, while they have the care of the children, will support and attend that activity and shall be responsible to take the children to the activity on time. If the parent who has care of the children experiences any resistance from the children at any time to attend an activity they shall make their best efforts to persuade the child to attend. The parents agree that physical force will not be used to make the children attend their registered activities.

If for any reason a parent cannot take the children to their activities and attend those activities during the week that they have care of the children, then they may call upon the other parent, and are encouraged to do so, to take the children to the activities and attend with the children at the activities so that the children can participate in the activities.

If the parents cannot agree on the selection of the children’s activities, then, with the consent of both parents, they may embark on the parenting coordinator/mediator process provided for in paragraph 18 of exhibit #1.

Failing any agreement on the selection of the children’s activities, a parent shall be free to enrol the children in extracurricular activities that in their opinion meet the criteria set out in the first paragraph of this section. However, in this event, there is no obligation on the non-consenting parent to support, ensure that the children attend or to attend themselves such activities.

Both parents shall be entitled to communicate directly with the organization, or management of any activity in which their children are registered to receive information about the activity in which their children are enrolled.

WHAT INCOME OUGHT TO BE IMPUTED TO MR. MASSEY?

[70] The last parenting issue concerns the on-going management of funds, held in Mr. Massey’s name for the benefit of the children. I find it appropriate to deal with this issue together with the question of what income ought to be imputed to Mr. Massey for the purposes of child support and his claim for retroactive spousal support.

[71] Section 19(1) of the Guidelines permits the court to “impute such amount of income to a spouse as it considers appropriate in the circumstances.” Section 19(1)(a) goes on to state that the circumstance to be considered include whether

The parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by reasonable educational or health needs of the parent or spouse; …

[72] In the case of Drygala v. Pauli (2002), 61 O.R. (3d) 711, the Ontario Court of Appeal at para. 32 stated that,

Imputing income is one method by which the court gives effect to the joint and on-going obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning.

[73] It was not disputed that under the Divorce Act (Section 26.1(2)) both parents have a joint financial obligation to support the children of the marriage in accordance with their respective abilities to do so. This obligation is a fundamental one and must take precedence over the parent’s own interests and choices.

[74] The words of the Newfoundland Court of Appeal at para. 35 of its decision in Duffy v. Duffy, 2009 NLCA 48, are consistent and supportive of these fundamental principles:

From these decisions, I would summarize several general principles regarding financial support of children under the Child Support Guidelines:

1. The fundamental obligation of a parent to support his or her children takes precedence over the parent’s own interests and choices.

2. A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her children.

3. A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent.

4. Imputing income to a parent on the basis that the parent is “intentionally under-employed or unemployed” does not incorporate a requirement for proof of bad faith. “Intentionally” in this context clarifies that the provision does not apply to situations beyond the parent’s control.

5. The determination to impute income is discretionary, as the court considers appropriate in the circumstances.

6. Where a parent is intentionally under-employed or unemployed, the court may exercise its discretion not to impute income where that parent establishes the reasonableness of his or her decision.

7. A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.

8. A parent must provide proper and full disclosure of financial information. Failure to do so may result in the court drawing an adverse inference and imputing income.

[75] In its decision, Lawson v. Lawson (2006), 81 O.R. (3d) 321, the Ontario Court of Appeal examined in greater detail the factors a court should consider in deciding whether to exercise its discretion to impute income to a parent. The factors mentioned by the appellate court at para. 36 of its decision include the following: the age, education, experience, skills, and health of the payor as well as the payor’s past earnings history and the amount of income the payor could earn if he or she worked to capacity. Furthermore, the level of income which is imputed to the payor cannot be arbitrarily picked but must be based on the evidence relating to the payor’s capacity to earn in all of the circumstances of the case.

[76] Ms. Vigneault takes the position that pursuant to section 19(1) of the Guidelines, Mr. Massey ought to be imputed an income that is equal to hers if not greater. As indicated on her most current financial statement found at tab 4 of the Trial Record, Ms. Vigneault earns $93,169.80 per annum. Ms. Vigneault’s evidence was that given Mr. Massey’s past business and investment success and his entrepreneurial abilities, she is convinced that he is capable of earning much more than she earns. She questioned his good faith in wanting to find employment. She opines that Mr. Massey has occupied his time with this litigation.

[77] Ms. Vigneault knows her husband to be fit and to be active in such sports as cycling and sailing. She knows of no medical reason why Mr. Massey cannot work.

[78] Mr. Massey takes the position that while he is currently unemployed and looking for work, it would be reasonable to impute an annual income to him of $50,000 from the date of the separation into the future. The operation of his businesses are no longer an option for him and since the separation he has lost trading on the stock market a substantial portion of his assets which previously earned him an income.

[79] In his financial statement, Mr. Massey has presented a budget, which he called a “no frills” budget, establishing his annual financial expenses at approximately $46,000 per annum. When cross-examined as to how he funds his budget, Mr. Massey indicated that up to the trial he has been relying on a loan from his mother, his visa and his line of credit to fund his living expenses. He acknowledges that he might have to sell the matrimonial home.

[80] The evidence relating to Mr. Massey’s capacity to earn from a number of sources reveals the following facts and raises the following questions. Mr. Massey provided documentary proof of his income tax returns line 150 income for the years 2006 to 2010 which showed the following pattern of earning:

(a) For 2006: $102,030.52 (made up of employment income from his companies, dividends, interest and capital gains)

(b) For 2007: $107,737.12 (made up of employment income from his companies, other income, interest income and capital gains)

(c) For 2008: $61,047.14 (made up of childcare benefits, dividends and interest)

(d) For 2009: $55,551.69 (childcare benefits, capital gains and other income)

(e) For 2010 (the year of separation): $17,522 (made up of interest income and other income)

[81] As can be seen from the above figures, except for the period between 2006 and 2007 when Mr. Massey’s income increased slightly, Mr. Massey’s reported income has been progressively declining, with the greatest decline being suffered in the year the parties separated.

[82] On cross-examination about his reported income between the years 2001 to 2005, Mr. Massey agreed that his reported income for those years was approximately $75,000 per annum on average. He further acknowledged with the income his company paid to Ms. Vigneault for purposes of income splitting the family was receiving on average approximately $95,000 per annum from his companies.

[83] Mr. Massey in his evidence attributed the decline of his income in the last five years partly to the demise of his companies and partly to the stock market losses he experienced after the separation as a result of his inability to concentrate on his stock market trading because of the stress of the matrimonial breakup and the matrimonial litigation which he embarked on.

[84] There was no explanation given by Mr. Massey as to why he dissolved his company, Cyclone Networks Inc. in 2008. Mr. Massey did not explain why and how he permitted his partner to run “into the ground”, Network Supply Canada Inc, a company he had created and which he had solely successfully run for the major period of the parties’ cohabitation, while he remained a 50% owner of the company.

[85] Mr. Massey testified that while Network Supply Canada Inc. still has a website and telephone number on line at the time of the trial, the company stopped functioning in 2010. According to Mr. Massey he essentially liquidated what he could of the company’s assets and paid off the company’s debts. No amounts for this wrapping up of his company’s operation were provided by Mr. Massey in his testimony. According to Mr. Massey, he has not formally dissolved the company because he cannot afford to do this. It was Mr. Massey’s evidence that there is no longer a market for his companies’ products, in any event, and it would not be possible at this time to revive the business. He is at this time seeking to become an employee with somebody else’s company.

[86] In 2009, Mr. Massey dedicated his full-time attention to trading on the stock market from his home. During that time he was also working on refinishing the basement of his house. According to Mr. Massey his stock trading activity from home occupied his full-time attention because it meant being at the computer screen or television constantly to make the trading decisions required to fuel this activity.

[87] The evidence showed that while Mr. Massey was engaged in this activity, he lost a total of $429,000 in investment assets. Approximately half of this amount was lost during Mr. Massey’s stock trading activity within 30 days of the parties’ separation. The last half was lost gradually up to the date of the commencement of the trial. In his evidence Mr. Massey acknowledged that he took risks, maybe too many risks in his trading activity after the separation. His explanation was that he was under stress because of the matrimonial litigation and could not think clearly and made bad investment decisions.

[88] Mr. Massey’s major current investment asset remains funds held in the Stephen Massey Holdings which contains a little over $400,000. The testimony of Mr. Massey indicated that these funds have been set aside for his retirement. Mr. Massey has access to these funds upon prescribed notice to the financial institution that is holding them. However, his evidence was that he has set aside these funds for his retirement and that he has not dealt with them and does not want to touch them.

[89] Mr. Massey takes the position that he has made since the separation reasonable efforts to find employment and continues to do so. He has so far been unsuccessful in finding employment. Mr. Massey questioned whether the fact of his being a former employer himself was not working against his finding employment.

[90] It was Mr. Massey’s evidence that he was limited in what he could do because of his own health issues, which he described as a sore back which made his sitting at a computer and the processing of paper at his office painful and difficult, aching swollen feet, problematic knees and the beginnings of a hernia. He is therefore, not able to do physical work as he has done in the past. Mr. Massey testified that pain medication was not effective with him because if the pain medication is too strong he cannot function properly. He requires chiropractic adjustments, massages and regular exercise to alleviate his pain. Mr. Massey did not provide any admissible objective medical evidence with respect to his medical problems.

[91] Mr. Massey provided documentary evidence of the online job searches and applications made by him since the separation. These were filed as exhibits #7 and #11. That evidence and Mr. Massey’s evidence in chief and cross-examination indicated that the online job search began in June of 2011. Between August, 2010 when the couple separated, and May, 2011, Mr. Massey was occupied with his stock trading which engaged him full time. During March, April and May, 2011, he had some “ups and downs” in the stock market but ended up depleting his portfolio of stocks.

[92] He then began his online job search in June of 2011. There was evidence of some online job applications made by Mr. Massey during the months of June and July of 2011. This is followed by a hiatus of online job searches for a six-month period until January of 2012. In November, 2012, Mr. Massey applied for a federal government job security clearance with a view to applying for employment in the federal government. With reported federal government job reductions he was not hopeful that this would lead to anything.

[93] From January, 2012 and in the months leading up to this trial, Mr. Massey made some more efforts to pursue online job searches, approximately 20 in total.

[94] In addition to his online job search Mr. Massey testified to exploring a few other possibilities for appropriate employment. He contacted a Montreal company about doing a market analysis for the company. This contact did not materialize into anything. He examined the possibility of working as a mortgage broker or a real estate agent. But because the remuneration of these jobs is by commissions only and not by a salary he did not pursue these jobs any further. He also had discussions with a friend about doing construction supplies purchases but these discussions too did not materialize into anything.

[95] Mr. Massey has consulted and used placement agents in his job search. These efforts have borne no fruit. On cross-examination, Mr. Massey indicated that he has not sought out professional help in preparing his current Curriculum Vitae. He did this approximately 15 years ago and felt that he was “conversant in the art of job search”.

[96] In the last 12 months, Mr. Massey has had two job interviews, neither of which he has followed-up on. It was his opinion that such a follow-up would be futile.

[97] Mr. Sebastian Ferland, an occupational therapist, was called as an expert witness to testify on behalf of Ms. Vigneault. Mr. Ferland’s expertise was ultimately admitted, and he was qualified to give an expert opinion based on his knowledge of Mr. Massey’s education, experience and training, and on Mr. Massey’s earning capacity. Mr. Ferland did not meet with Mr. Massey in the preparation of his report filed as exhibit #4. The factual underpinning of his expert opinion was based on information he received from Ms. Vigneault relating to Mr. Massey’s education, employment experience, training and earning history. Mr. Ferland also examined Mr. Massey’s Curriculum Vitae prepared by Mr. Massey as well as some documentary evidence about Mr. Massey’s online job searches. There is no question that had Mr. Ferland met with Mr. Massey he would have had a fuller factual background about Mr. Massey, his qualifications and his employment history. Nonetheless, what information he did have on Mr. Massey and his qualification and employment history, as revealed in his report and oral evidence was substantial and consistent with other evidence given at the trial from Mr. Massey himself. Based on the information given to him by Ms. Vigneault, Mr. Ferland also took it as a given that Mr. Massey was fit and had no medical conditions that would prevent him from working.

[98] Mr. Ferland testified that he did a “transferrable skills analysis” in order to identify what could be considered “suitable employment options” for Mr. Massey based on his education, training and experience. He outlined his methodology in conducting this kind of analysis. According to Mr. Ferland in doing this kind of analysis, it is not necessary to meet with Mr. Massey nor is he required to do so by his professional code of conduct.

[99] The results of Mr. Ferland’s analysis are found on page 9 of his report. In Mr. Ferland’s opinion the list of employment alternatives available to Mr. Massey were quite varied and include such occupations as technical sales representative, investment analyst, contractor, carpentry trades, roofer, welder, all occupations which Mr. Massey in one form or another had been involved in his past working life. Mr. Ferland further testified that there were in the Ottawa labour market a plethora of these types of jobs available to Mr. Massey.

[100] In his cross-examination of Mr. Ferland, Mr. Massey raised some legitimate doubts about whether he would be capable of doing some of the jobs which require physical activity such as the construction trades and roofer occupations given the physical ailments he described himself as suffering. He also raised a doubt about his capacity to take up welding again without retraining and going through a “ticketing” system. However, Mr. Massey did not provide any evidence on this.

[101] It was Mr. Ferland’s conclusion that the range of salary, taking account of all the employment options Mr. Ferland identified for Mr. Massey, that Mr. Massey could be expected to earn was somewhere from $50,000 to $80,000 per annum. Mr. Ferland added that one might even reasonably expect Mr. Massey to earn over $80,000 as a self-employed businessman as he has previously done. Mr. Massey in the past has demonstrated his ability to successfully build and run his business which involves dedication and multi-tasking. According to Mr. Ferland, Mr. Massey’s profile demonstrated strong entrepreneurial abilities that were beyond the scope of his report.

[102] Mr. Ferland was also asked to examine the nature and pattern of Mr. Massey’s job searches to date. Mr. Ferland found the Curriculum Vitae prepared by Mr. Massey to be reasonable and consistent with the information he was given about Mr. Massey. According to Mr. Ferland, the Curriculum Vitae capitalized on Mr. Massey’s work experience, education and training. Mr. Ferland also found that the types of jobs for which Mr. Massey applied were also reasonable and consistent with his abilities.

[103] What Mr. Ferland found wanting in the pattern of Mr. Massey’s job searches was the sporadic nature of the searches, their inconsistency and lack of intensity. Mr. Massey appeared to be concentrating on the easiest way to find work by applying online. However, there were no letters of introduction to make a candidate stand out and there were no follow-ups on the applications. According to Mr. Ferland, Mr. Massey should also be networking with contacts he might have, arranging meetings and doing “cold callers”. Mr. Ferland did not appear to be aware of the few personal contacts and job interviews Mr. Massey testified to in his evidence.

[104] It was Mr. Ferland’s opinion that the methodology of Mr. Massey’s job searches might lead one to conclude that he was operating under duress or on an inspirational basis. According to Mr. Ferland, given the number of job applications made by Mr. Massey and the time period since he has been unemployed, and the time gaps between applications, one could not conclude that Mr. Massey was looking for work on a full-time basis which according to Mr. Ferland is important if one truly wants to find employment.

[105] After considering all of this evidence, including the evidence of Mr. Massey, I conclude that the evidence is consistent with Mr. Ferland’s opinion about Mr. Massey’s efforts at finding full-time employment. I find as a fact that since the separation Mr. Massey’s efforts to search for suitable full-time employment have not been reasonable given the financial obligation he owes to himself and to his children. His efforts at finding suitable employment have been delayed, sporadic and inconsistent and deficient.

[106] The six-month delay in looking for employment which occurred immediately after the separation when Mr. Massey dedicated his time exclusively to trading on the stock market, an activity which on his own testimony would have caused him substantial physical pain, and an activity which led to a loss of $429,000 was unreasonable. This is particularly so, when one-half of that substantial amount of money was lost within the first month of that six-month period yet, Mr. Massey continued to dedicate his time to this activity for the next five months before embarking on his job searches. Mr. Massey acknowledged that his conduct was risky. His explanation for his bad performance in the stock trading is hardly a credible nor satisfactory explanation for the excessive risks he acknowledged taking.

[107] Based on Mr. Ferland’s evidence, which I accept, it is not unreasonable to conclude that Mr. Massey is capable of earning within a range of $50,000 to $80,000 per annum. Accepting the fact that Mr. Massey may no longer find employment in the trades of welder, roofer and the carpentry trades, then his capacity to earn can be found closer to the $80,000 level. This is also more in keeping with his previous earnings during the marriage. Had Mr. Massey made a reasonably concerted and consistent effort in looking for suitable full-time employment upon the marriage breakup he may well have been earning this income since shortly after the separation. In his expert report Mr. Ferland noted Mr. Massey’s strong entrepreneurial abilities which he found to be outside the scope of his report. Nonetheless, it is not outside the consideration of this court in determining what income to impute to Mr. Massey. In my view, given Mr. Massey’s strong entrepreneurial abilities, which were not contested by Mr. Massey, and given the level of earnings he enjoyed while in business, I find that Mr. Massey has a potential to earn more than $80,000 per year, both through some commercial activity or through the investment of his remaining assets. His evidence regarding the demise of his two businesses, which had been so successful during the course of the cohabitation, was incomplete and deficient. He continues to have substantial assets in the Stephen J. Massey Holdings available to him for his use. He is still owed a sum of $50,000 from the sale of 50% of Network Supply Canada Inc. to Mr. Mullally. This company is not yet dissolved. His Massey Homes company appears to still be in existence although inoperational since the matrimonial home was constructed. Based on all of this evidence, I find that it would be reasonable and justified to impute to Mr. Massey an income comparable to that of Ms. Vigneault from the date of the separation and I so order.

SPOUSAL SUPPORT FOR MR. MASSEY

[108] Mr. Massey seeks an order awarding him spousal support for the period from the date of separation to the signing of the pre-trial agreement filed as exhibit #1 at this trial. Given my finding concerning what income is to be imputed to Mr. Massey from the date of separation I find that he is not entitled to spousal support.

[109] In addition to the income I have found to be imputed to Mr. Massey since the separation, one cannot ignore the fact that from the date of separation to the time of this trial, a period of approximately 21 months, Mr. Massey had available to him to do what he wished, including provide for his own support and that of his children, the sum of $429,000. His choice, of course, was to risk losing it on stock trading which he proceeded to do. He also chose to go into debt rather than use some of those funds to support himself and the home he shares with his children. Needless to say these facts, too, do not support his claim to an entitlement to spousal support.

FUTURE MANAGEMENT OF CHILDREN’S EDUCATION FUNDS

[110] It is appropriate to deal with the last parenting issue at this point, namely, how the funds that Mr. Massey holds in trust for his children’s education, are to be managed and by whom in the future.

[111] Mr. Massey testified that despite his recent unsuccessful stock trading, he has not touched his children’s funds. He wishes complete control in the management and future investment of those funds. Mr. Massey has not disclosed those funds in his financial statement. Nor was he specific about the total amount of the funds (somewhere between $30,000 and $40,000.)

[112] He is willing to disclose the status of those funds on a periodic basis to Ms. Vigneault. But, he has expressed his lack of confidence in any institution managing those funds appropriately. He has also expressed his lack of confidence in Ms. Vigneault being capable of managing the funds or in any way contributing to his management of the funds.

[113] Given Mr. Massey’s recent acknowledged risky conduct with his own investments, Ms. Vigneault has concerns for the future protection of the children’s funds from Mr. Massey’s future bad judgments. This is so for the children’s sake but also because there may be future financial consequences to her involving the cost of her children’s future education. Mr. Massey had some difficulty comprehending, that on the evidence of his recent stock trading activity, Ms. Vigneault’s concern may be justified. I find it justified.

[114] Consequently, it is ordered that Mr. Massey shall continue to hold those funds in trust for the children, separate and apart from his own personal investments. He shall forthwith provide Ms. Vigneault with documentary proof of the specific amount and status of the funds. Thereafter, Ms. Vigneault is to receive from Mr. Massey, every six months, documentary proof of the specific amount and status of the funds. If Mr. Massey is of the view that a major investment decision with respect to those funds ought to be made he will first consult with Ms. Vigneault to obtain her consent. If the parties cannot agree then no major investment decision will be made until the parties can agree. Both parties shall be free to begin to contribute to and to solely control any other education fund they may wish to set up for their daughters. Any breach of this part of the order may be taken into account by a court in the future if the parties dispute their sharing of the children’s future education.

ON-GOING CHILD SUPPORT

[115] In view of the fact that the parties have been found to have comparable incomes and that they share equally the care of their two children there will be no set-off amount of child support paid by one party to the other. Neither party will pay child support to the other on an on-going basis and will remain responsible for the support of the children when they are in their care.

[116] It should be noted at this juncture that the parties in their pre-trial agreement at paragraphs 35 and 36 agreed that Mr. Massey shall provide to Ms. Vigneault documentary evidence of his job searches and particulars of his efforts to secure full-time employment every 90 days and that the issue of the payment of child support shall be reviewed in one year or when Mr. Massey secures full-time employment. In view of the parties’ agreement these two paragraphs are also incorporated into my final judgment.

THE CHILDREN’S SECTION 7 EXPENSES - RETROACIVE AND ON-GOING

[117] The next question to consider is that of the proportional sharing of the children’s extraordinary expenses from the date of separation and on-going. Mr. Massey acknowledges his obligation to pay his proportional share of the children’s extraordinary expenses since the separation, which he has not done in view of the fact that the parties could not agree on what income should be imputed to him. This has now been determined by this judgment. Given my finding concerning the comparable incomes of the parties, I order that these expenses be shared equally by the parties effective from the date of the separation and on-going until further order of the court.

[118] Ms. Vigneault is seeking an order that Mr. Massey reimburse her for his proportional share of the children’s section 7 expenses from the date of separation and on-going. The evidence indicated that Ms. Vigneault has been paying all of the children’s extraordinary expenses without any assistance from Mr. Massey since the separation to the time of the trial although he was asked by Ms. Vigneault to share these expenses. Mr. Massey did not deny this. He indicated that he did not do this because Ms. Vigneault refused to assist him with expenses relating to the matrimonial home after they were separated but remained living in the matrimonial home. Mr. Massey also testified that he paid for some of the children’s expenses. However, he did not provide any documentary proof of these expenses nor was he able to fix an amount for these payments.

[119] The children’s expenses paid by Ms. Vigneaut since the separation have been documented in tab 1 of exhibit #2. She claims a rounded total of $52,000 expenses from the date of separation on August 9, 2010 to May of 2012. The expenses found on the first page of this document all relate to the children. I have excluded the cost of the cell phones purchased by Ms. Vigneault for the children. This item has been a source of dispute between the parties. It was a unilateral decision made by Ms. Vigneault and she should solely bear its cost.

[120] Also included in these expenses are the costs related to the children’s dance activity to which Mr. Massey objected. The parties have now agreed to a method of resolving their differences concerning the children’s activities in the future. Nonetheless, these historical costs were incurred by Ms. Vigneault in good faith for the children’s benefit. It was a natural and logical progression of an activity that the children had been involved in before the separation. For this reason, it would be unfair to Ms. Vigneault not to reimburse her for Mr. Massey’s proportional share of those activity expenses. It is therefore ordered that Mr. Massey pay to Ms. Vigneault 50% of all the expenses found on page 1 of tab 1 of exhibit #2, with the exception of the cost of the cell telephones. Unless my addition is incorrect and using round figures, the total amount of section 7 expenses incurred by Ms. Vigneault found on page 1 of tab 1 of exhibit #2 is $27,303. Mr. Massey’s 50% share would be $13,652.

[121] With respect to the expenses included in the second page of exhibit #2, I find these expenses are not solely related to the children. Some are related to Ms. Vigneault’s house move to another accommodation, the cost of setting up another accommodation and the rental cost of her new accommodation, and some are related to issues that may have been in dispute during the course of the litigation such as the cost of an actuarial evaluation of Ms. Vigneault’s pension credits accumulated during the marriage. These expenses Ms. Vigneault would have incurred upon the marriage breakup whether she had children or not. In my view, they are not properly section 7 expenses. I would therefore exclude them from the list with one exception which I will deal with next.

[122] With respect to her expenses relating to setting up a new household with furniture and furnishings for herself and for the children. The evidence showed that this was necessary because the parties could not agree on the division of the personal items in the home and Mr. Massey did not offer to give Ms. Vigneault any furnishings in light of this disagreement.

[123] Ms. Vigneault has accepted the validity of the cohabitation agreement with respect to all of Mr. Massey’s assets, except for the matrimonial home. That issue I will deal with next. The evidence showed that Mr. Massey paid for all of the furniture and furnishings in the matrimonial home with the exception of the few items purchased by her, mentioned by Ms. Vigneault in her testimony. Mr. Massey did not dispute this evidence. If Ms. Vigneault accepts the validity of the cohabitation agreement for all assets owned by Mr. Massey, with the exception of the matrimonial home, then it would appear that Mr. Massey is entitled to keep the contents of the home which he purchased. It follows that Ms. Vigneault is entitled to receive possession of the few items, mentioned in her evidence, which she purchased and this is so ordered. Ms. Vigneault is entitled to receive forthwith the items enumerated in her evidence (some paintings, a decorative table, some chairs and a “console” or tableau d’art).

[124] The exception to this is the furnishings and furniture used and belonging to the children in the matrimonial home. These items should have been reasonably shared or some money provision should have been made between the parties for the fact that Mr. Massey kept all of the children’s furniture and furnishings. In my view, the cost incurred by Ms. Vigneault in replacing the children’s furniture, furnishings and other home amenities such as a music system is child centred and a legitimate child related expense as is any childcare expense related to the house move. The children should not suffer a drastic change in lifestyle because their parents cannot agree on the division of the personal property in the matrimonial home. It is therefore fair that Mr. Massey share these expenses as they relate to the children and I so order.

[125] Fixing an amount for this item is not a science. I fix it at two- thirds of Ms. Vigneault’s total furniture and furnishings expenses as listed on page 2, exhibit #2. Again unless my arithmetic is wrong and using round figures, I find the total expenses to be shared equally by Mr. Massey on page 2 of exhibit #2 to be $4,253. Mr. Massey’s 50% share would be $2,127.

[126] Taking account of pages 1 and 2 of exhibit #1, I order Mr. Massey to pay Ms. Vigneault the total amount of $15,779 as his proportional share of the children section 7 expenses from the date the separation to the commencement date of the trial on May 22, 2012. This payment is to be made forthwith.

[127] Going forward, Mr. Massey is ordered to pay 50% of the children’s on-going section 7 expenses, upon being given written confirmation of those expenses paid by Ms. Vigneault.

THE INTERPRETATION OF THE COHABITATION AGREEMENT

[128] The last issue for adjudication concerns the interpretation of the cohabitation contract. Both parties agree that the cohabitation is a valid one. I have already discussed the circumstances of the construction of the matrimonial home and the signing of the cohabitation agreement by the parties the day before their wedding as revealed in the evidence. Where the parties disagree is whether the cohabitation agreement includes or excludes the matrimonial home, which is registered in the sole name of Mr. Massey, from the operation of the contract. If it is included in the operation of the contract then the value of that property would not be subject to equal division between the parties as spouses pursuant to the operation of the Family Law Act. If it is excluded then the value of the property would be subject to equal division between the parties as spouses pursuant to the operation of the Family Law Act. Even though Mr. Massey owned the property prior to the marriage, by virtue of it being a matrimonial home, he would be obligated to share 50% of its value with Ms. Vigneault upon the marriage breakup pursuant to section 5 and the definitional section which defines matrimonial home under the Family Law Act. On his financial statement Mr. Massey attributes a value of $341,000 to the matrimonial home at the time of separation. There is no supporting evidence for this value. On her financial statement Ms. Vigneault attributes a value of $400,000 to the matrimonial home at the time of the separation. There is no supporting evidence for this value although Ms. Vigneault states that an evaluation of the home should be carried out in order to properly determine its fair market value for the purposes of her claim.

[129] The parties are agreed that the purpose of the cohabitation agreement was to protect Mr. Massey’s property from division upon a marriage breakup. Ms. Vigneault testified that she found this reasonable and was prepared to accept it because when she met Mr. Massey, he was already the prosperous owner of two successful businesses and had a substantial amount of investment assets. She agrees that this was also the general content of their discussion leading up to the signing of the cohabitation agreement.

[130] Nonetheless, Ms. Vigneault testified that their pre-wedding discussions never gave her to believe that the matrimonial home in which they had been living and sharing the expenses for approximately a little under three years was to be excluded from division in the event of a marriage breakup. In fact, her understanding and intention in signing the cohabitation agreement was the opposite. It was her evidence that she viewed that home as a joint project when it was constructed even though she acknowledged that most of the funds for its construction came from Mr. Massey. While during their marriage Mr. Massey was undoubtedly the greater earner, she used all of the revenue she obtained for the expenses of the home and the family with the understanding that the property was to be considered a joint asset to be shared.

[131] Ms. Vigneault testified that when she signed the agreement, because English was not her first language, she certainly did not understand all of the legal terminology she read in the cohabitation agreement. However, she did recall reading paragraph (2) found under the title PURPOSE OF CONTRACT and understanding from the words found in that paragraph, “with the exception of the family residence” that the matrimonial home was excluded from the operation of the cohabitation agreement. Mr. Adams never advised her that the family residence was to be included in the operation of the cohabitation agreement. Her evidence was that if she knew this in signing the agreement, that she was giving up her right to claim an interest in the matrimonial home, she would never have signed.

[132] Mr. Massey’s evidence concerning the parties’ intentions when the cohabitation agreement was signed was that for the reasons already given, the matrimonial home for him was just another investment property. The property was in his name and included in the Schedule “A” along with his other existing assets at the time, about which the parties agreed would be included in the operation of the cohabitation agreement. Mr. Massey testified that the parties discussed the contract prior to the marriage and it was his understanding that the matrimonial home would be included within the operation of the cohabitation agreement.

[133] The parties’ cohabitation agreement was filed as exhibit #7 at the trial. The contract is made up of several sections commenced with a section title. The contract begins with a section titled “Interpretation” which defines certain terms. Of note is the definition given to the term “Family Residence” as “means the buildings and lot located at 53 Dylan Way, Nepean, Ontario and any successor property owned by the parties and occupied by them as their family residence.”

[134] The next section is titled “BACKGROUND” and recognizes the date of marriage of the parties and the fact that at the time they were residing in the “family residence” which is the matrimonial home in question.

[135] The next section is titled “PURPOSE OF CONTRACT” and reads as follows:

(1) The parties have agreed to and entered in to [sic, into] a traditional marriage. The purpose of this contract is to confirm the intents and understandings agreed to prior to the marriage.

(2) The parties have received counsel, understand and agreed that the operative principle of this contact is to maintain their incomes and estates with the exception of the family residence as distinct and separate.

(3) Except as stipulated herein each party intends by this contract:

(a) To avoid any rights and obligations relating to property which arise or which may in the future arise at law or in equity from their marriage.

(b) Except as specifically provided by this contract, to elect and affirm that none of the property of either party will be divided between them except according to ownership.

[136] This section in paragraph (1) clearly stipulates the purpose of the cohabitation agreement which was certainly consistent with the parties’ evidence of why they entered into the agreement. In paragraph (2) of this section, on its plain wording and taken alone, also clearly defines the scope of the contract by establishing an exception to the application of the contract with the words, “with the exception of the family residence”. With the family residence having been previously defined in the contract then the exception was clearly meant to except the matrimonial home in which the parties were living at the time. The words “Except as stipulated herein” found in paragraph (3) (a) and again in paragraph (3) (b) reference the exception established earlier in that paragraph.

[137] The next section is titled “AGREEMENT” and simply establishes the effective date for the operation of the agreement.

[138] The next section is titled “DOMESTIC CONTRACT”. It declares the cohabitation agreement to be both a marriage contract and a separation agreement under the Family Law Act.

[139] The next section deals with support obligations and is not relevant to the issue of the matrimonial home.

[140] The next section is titled “NO NET FAMILY PROPERTY” and declares unequivocally that any property or income from property owned at any time by either party is not to be included in the net family property of either party.

[141] The next section is titled “RIGHTS OF OWNERSHIP GOVERN PROPERTY DIVISION” and stipulates that both parties waive all rights which they may have under Part 1 of the Family Law Act and in subsections (a) to (k) stipulates the same declaration in different word, namely, that ownership of property will determine the division of property, neither party will be entitled to property arising out of the cohabitation agreement, neither party will be entitled to a division of property owned by the other and neither party will be entitled to an equalization if their net family property and neither party will be entitled to share in the property of the other party, neither party will have a monetary claim measured by reference to property owned by the other under any circumstances.

[142] The next section is titled “WAIVER AND RELEASE” and declares a waiver and release of all rights and entitlements to each other’s property and estates, equalization of net family properties and monetary claims measured by reference to the value of property owned by the other party on any basis.

[143] The next section is titled “DEEMED OWNERSHIP” and excludes the presumption of resulting trust to questions of ownership of property between the parties, that ownership of property will determine the ownership of property, be the property held in the name of one party, jointly or tenants in common.

[144] The next section is titled “NO OWNERSHIP UNLESS LEGAL OWNERSHIP” and “Except as provided by this contract”, declares that the parties waive all claims in equity which they may have against the property of the other.

[145] The next section is titled “RIGHT TO DEAL WITH SEPARATE PROPERTY” and establishes the principle that each party is free to dispose of or encumber with their separate property as they deem fit. In this section an exception is included for the matrimonial home and reads in full as follows:

… However, in the event the parties marry, nothing in this contract restricts or modifies the rights of either party with respect to the possession, disposition or encumbrance of the matrimonial home as defined under the Family Law Act.

[146] This clause effectively renders the family residence subject to the operation of the Family Law Act while it remained the matrimonial home.

[147] The next section is titled “DEBT”, freeing each other of the other’s debts.

[148] The next section is titled “RELEASES” and provides that the contract is final and includes general releases of all claims of one party against the other, particularly claims under the Family Law Act and the Divorce Act under any circumstances. Twice that paragraph provides for exceptions with the words, “except as provided for in this contract.”

[149] The next section is titled “RELEASE AGAINST THE ESTATE OF THE OTHER” and declares that both parties waive their right to claims of all kinds to each other’s estates.

[150] The remaining sections of the contract are titled “TRANSFEROR BEQUEST OF PROPERTY TO OTHER PARTY”, ‘FINANCIAL DISCLOSURE”, “AMENDMENT OF CONTRACT”, “GOVERNING LAW”, “SEVERABILITY”, “AGREEMENT TO SURVIVE DEATH”, “CONTRACT TO SURVIVE DIVORCE” and “INDEPENDENT LEGAL ADVICE”, the details of which are not relevant for our purposes, other than to note their presence in the contract and the comprehensiveness of the cohabitation agreement.

[151] Counsel for Ms. Vigneault takes the position that the inclusion of the words “with the exception of the family residence” found in the PURPOSE OF CONTRACT section of the contract clearly and unequivocally, in the plain meaning of the words, designates the family residence, the matrimonial home as an exception to the application of the cohabitation agreement. According to counsel for Ms. Vigneault it clearly declares the intention of the parties when they entered into the contract.

[152] Counsel for Ms. Vigneault argues that the location of the exception, namely in the purpose section rather than in some other location of the contract is of no relevance, if the exception is made clear and unequivocal, which he argues it does. In fact, Maître Guilbault argues that the provision for an exception in a paragraph that describes both the purpose of the contract and the exclusion to the contract as the “operative principle” of the contract supports Ms. Vigneault’s interpretation of the cohabitation agreement, that the matrimonial home is excluded from the operation of the contract.

[153] Maître Guilbault further argues that the exception clause, excluding the family residence from the application of the contract, in no way creates a conflict in the interpretation of the contract in the face of the comprehensiveness of the many other sections of the cohabitation agreement that intend a total separation of property and property claims under the contract. If an exception is made to the application of the contract, it cannot on its face be in conflict with the contract. This is particularly so, since the contract provides for the consideration of exceptions to the application of the contract at various parts of the agreement with the words, “except as stipulated herein” and when discussing the matrimonial home under the “RIGHT TO DEAL WITH SEPARATE PROPERTY” section.

[154] Counsel for Ms. Vigneault argues that there is no conflict between the exception clause and the rest of the contract. It is his position that the exception clause for the family residence is clear. Alternatively, he argues that if the court were to find some lack of clarity then, Ms. Vigneault’s interpretation is to be preferred based on the fact that Mr. Massey’s lawyer drafted the cohabitation agreement on Mr. Massey’s instructions. The inclusion of the family residence in the operation of the contract should have been made clear in the agreement. Ms. Vigneault should only be denied her claim to the matrimonial home on clear and cogent wording which is not the case in this cohabitation agreement.

[155] Mr. Massey argues that to accept the interpretation put forward by Ms. Vigneault creates a conflict not only with the PURPOSE OF CONFLICT section in which is declared that the parties intend to exclude any division or equalization of property owned by them but also with the operative clauses of the main or body of the contract which comprehensively and repetitively excludes the division or equalisation of any property owned by the parties.

[156] According to Mr. Massey that fact that the exception clause is in the recital section of the contract and not in the main body or operative part of the contract is significant. According to Mr. Massey the wording used in the exception clause is not clear enough to exclude the family residence from the operative clauses of the contract which are very clear in their intent.

[157] In support of this Mr. Massey argued that the true meaning of the exception to the family residence in paragraph (2) of the PURPOSE OF CONTRACT SECITION is that and I quote from his factum, “It refers to the parties maintaining their incomes and estates separate and distinct, referring to their day to day management of their revenues, incomes, banking and bank accounts, which they would keep separately, as compared to the family residence of 53 Dylan Way , which they could not administer separately as they would both be living in it together.”

[158] The parties agreed on the applicable jurisprudence and cited similar cases on this issue. The seminal case dealing with the correct interpretation of marriage contracts is MacDougall v. MacDougall, [2005] O.J. No. 5171, 205 O.A.C. 216, the Ontario Court of Appeal provides the following guidance and direction:

22. Applying that principle to domestic contracts, the court must search for an interpretation that is in accordance with the parties’ intention at the time they entered into the contract. Where two interpretations are possible, the court should reject the one that would produce a result that the parties would not have reasonably expected at the time they entered into the contract. Instead, the court should favour an interpretation that promotes the reasonable expectations of the parties and that provides a sensible result in the family law context. To arrive at such an interpretation, the court must interpret the provision in the context of the entire contract, including the entirety of the section at issue, to discern the likely intention of the parties.

[159] In determining the intention of the parties at the time they entered into the contract the court should look at all of the circumstances surrounding the making and signing of the contract.

[160] Upon applying these legal principles to the facts of this case, I come to the conclusion that the cohabitation agreement signed by the parties creates a clear and unequivocal exception to the application of the contract to the family residence, 53 Dylan Way, the only matrimonial home this couple have lived in during their marriage. The plain and ordinary meaning attributed to the words used in paragraph (2) “with the exception of the family residence” support that conclusion. I find no confusion or lack of clarity in the words used.

[161] Nor do I find that there is a conflict with either other words in the same section or in other parts of the contract that provides for the exclusion of any division or equalization of the titled property or other claim to property by operation of matrimonial legislative law or by operation of equity. A clear and unequivocal declared exception made for a specifically identified property, as has been done in this contract, with the definition of “family residence, cannot be in conflict with the rest of the clauses of the contract that exclude all property by the mere fact of it having been excepted by a paragraph of the contract. Unlike the facts in some of the cases presented by the parties, I find no conflict nor apparent inconsistency in the language of this cohabitation agreement.

[162] Mr. Massey’s argued interpretation of the exception clause, is strained and not consistent with the ordinary meaning of the words used. His interpretation and explanation would give to the word “estates” the very restricted meaning of banking and bank accounts. This would also result in the word “estates” meaning one thing in this PURPOSE OF CONTRACT section and meaning something else, a necessarily much broader interpretation of the word “estates”, elsewhere in the cohabitation agreement, as found in the WAIVER AND RELEASE, NO OWNERSHIP UNLESS LEGAL OWNERSHIP, and RELEASE AGAINST THE ESTATE OF THE OTHER sections of the cohabitation agreement. Such an interpretation is not supportable by an examination of the contract as a whole. Nor is it persuasive.

[163] Excluding the matrimonial home from the operation of the parties’ cohabitation agreement is consistent with all of the circumstances surrounding the construction of the house and the manner in which the parties shared the expenses relating to the home, including the expenses relating to the protection of capital, such as the mortgage, the taxes, and the insurance and utilities on the property. These expenses were shared by the parties from their own revenues, whatever the source. Both contributed to the construction of the home in their own way, either through work or financial contribution, although there is no question that Mr. Massey bore the lion’s share on both these fronts. They both agreed to live in the house for the duration of their marriage and treat it as their matrimonial home, regardless of what the original intention for the property. In the face of all of this evidence I find Ms. Vigneault’ interpretation of the contract, excepting the family residence from the operation of the cohabitation agreement produces the result that both parties would reasonably have expected at the time they signed the contract. It is the only sensible result in the context of this marriage of ten years.

[164] One final consideration is the fact that Mr. Massey by way of the instructions to his lawyer controlled the wording of this cohabitation agreement. Had he wanted to have the contract apply to the matrimonial home in addition to all of his other property, he had the opportunity to do so and did not. The contract is certainly very clear, if not even repetitive, with respect to all of his other property. I agree with the principles enunciated in the cases of Park v. Park, 1991 CarswellOnt 267, 32 R.F.L. (3d) 365 (Ont. Fam. Ct.) and Duff v. Duff, 1988 CarswellOnt 213, 12 R.F.L. (3d) 435, (Ont. H.C.) that if a spouse is to sign off or waive his or her interest in the matrimonial home or release interests in property, it should be done in clear and cogent language. This has not been the case here. In fact the opposite is true. By signing this cohabitation agreement, while she has waived all her rights to make a matrimonial claim against all of Mr. Massey’s property, she has preserved her right to claim an equal share in the value of 53 Dylan Way, by operation of the Family Law Act because that property was made an exception to the application of the contract.

[165] I therefore find that Ms. Vigneault is entitled to one-half the value of the matrimonial home, 53 Dylan Way, at the date of the separation payable by Mr. Massey.

[166] Because the property is in his name, Mr. Massey is given the option of retaining the property and paying to Ms. Vigneault her one-half interest in its fair market value as of the date of separation. If that is the option he chooses then the property will have to be evaluated by an accredited evaluator chosen by the parties. The costs of the evaluator are to be shared equally by the parties.

[167] Failing agreement on the choice of an evaluator, I will reserve to myself the right to choose the evaluator upon being given three names proposed by the parties. The parties shall have two weeks from the date of this judgment to complete this process.

[168] If Mr. Massey chooses to put the property up for sale, then upon the sale of the home the net proceeds of the sale of the home, net of legitimate encumbrances relating to the property, such as the mortgage, is to be divided equally between the parties. An adjustment for any post separation value may also have to be made if it can be reasonably determined.

[169] If Mr. Massey chooses to put the property up for sale, the parties shall agree on a real estate agent who will advise them both on a reasonable listing price so that the home can be sold within a reasonable time. If any conflicts arise in this process I reserve to myself the right to deal with any conflicts that arise in the listing and sale of the property and the division of the net proceeds.

[170] If upon the sale of the home and the division of the net proceeds from the sale, Mr. Massey has not yet paid his 50% share of the children’s retroactive section 7 expenses, then that sum of money owed by Mr. Massey to Ms. Vigneault shall be paid from his share of the net proceeds from the sale of the home.

PRE-JUDGMENT INTEREST

[171] Ms. Vigneault has claimed pre-judgment interest. Considering the fact that she was entitled to receive one-half of the value of the home as of the date of the separation and considering the fact that Mr. Massey has enjoyed the full value of the house by living there since the separation and considering the fact that Ms. Vigneault has had to incur a rental expense and not been able to purchase her own home until this matter was finally resolved in court, I find her request to be reasonable. It is ordered that Ms. Vigneault shall be paid pre-judgment interest to the date of the trial and post-judgment interest thereafter, at the usual court rate, on the funds that are ultimately found to be due to her, if the house is evaluated or if the house is ultimately sold, until she receives her funds.

COSTS

[172] The last issue is the question of costs. The parties shall submit to me their written submissions on the question of costs, including any offers to settle which they may have made. Ms. Vigneault shall have two weeks from the date of the release of this decision to serve and file with me her written submissions on costs, including any offers to settle which she may have made. Mr. Massey shall have two weeks from that date to serve and file with me his written submissions on costs, including any offers to settle which he may have made. Ms. Vigneault shall then have one week from that date to serve and file a reply, if she so wishes.

M. Linhares de Sousa J.

Released: June 13, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANGELA VIGNEAULT

Applicant

– and –

STEPHEN MASSEY

Respondent

REASONS FOR JUDGMENT

M. Linhares de Sousa J.

Released: June 13, 2012