COURT FILE NO.: 240/08 (Guelph)

DATE: 2012 10 23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

A.A.K.

Michelle M. Dwyer, for the Applicant

Applicant

- and -

K.D.K.

Tracy L. Miller and Danya Pilat, for the Respondent

Respondent

HEARD: September 24, 25, 26, 27, 28, and October 1, 2012

REASONS FOR JUDGMENT

Seppi J.

[1] Marital separation and divorce is typically a traumatic event for the family. But it usually gets better over time. That is not the outcome in the case at bar. The parties married on September 9, 2000, and separated on January 25, 2008. By June 9, 2008, they were able to agree on a final order respecting joint custody and access of their two children, C.1 born on […], 2001, and C.2 born on […], 2006. At the same time they also agreed to a temporary order on child support and terms intended to efficiently move their financial and property issues toward final resolution. The applicant did not seek support for her daughter, A.M., born on […], 1995 from a previous relationship, to whom the respondent had been a father figure. Nor did the respondent seek access to A..

[2] Despite the final custody order the respondent husband brought a motion less than six months later challenging the joint custody, seeking sole custody and alleging deficiencies in the applicant’s parenting. On that attendance the parties agreed to an assessment and to access exchanges taking place at a neutral location. There followed seven more interim motions by which the respondent continued to press for sole custody. On these motion attendances temporary consent orders were made on terms ancillary to the main request. The final joint custody order remains in force subject to temporary revisions on the applicant’s time with the children.

[3] The conflict between the parties became especially heated at the beginning of October 2010 following events which led to serious criminal charges against the applicant wife. This was an occurrence which understandably shocked and alarmed the respondent husband. The charges were for sexual offences alleged against the applicant and her boyfriend involving a 14 year old friend of the applicant’s daughter. The two young children of the marriage were not involved, nor were they present at the time of the incident which formed the basis of the charges.

[4] The charges against the applicant were ultimately resolved on a plea to a non-sexual offence of criminal negligence causing bodily harm. Her culpability was determined to have been one of failing to protect the young person in her care from the predatory conduct of the boyfriend. Although there is no evidence that any of these events or the applicant’s conduct ever placed the two children of the marriage at risk, the children’s primary residence with her was on consent reduced to supervised access for over a year and a half from October 5, 2010 to July 12, 2012, while the original charges were pending. The parties have also still not been able to resolve several financial and property issues that arose from their separation.

Issues

[5] The issues before the court at trial are:

(1) The residential arrangements for the children:

While both parents wish to continue joint custody, primary residence and permission to move the children are sought by the father. The mother requests primary residence as per the parties’ previous final order or, in the alternative, an alternating week parenting schedule, with the children to remain living in the same neighbourhood.

(2) Child and spousal support claimed by the applicant:

The respondent opposes any order being made for support, and also seeks credit for child support paid during the period of the applicant’s reduced and restricted access.

(3) Equalization of net family properties:

The parties disagree on the values of certain personal property, debts and date of marriage assets.

(1) Parenting and Residence of the Children

[6] After the parties’ separation on January 25, 2008, they both remained in the matrimonial home in Guelph. Although both would have wanted to keep the house as a home base, it was soon agreed the husband would stay and the wife would move out. The husband purchased the wife’s interest in the house and with the help of her parents she bought a home in the same neighbourhood to facilitate the intended joint custody arrangement. She moved out in May 2008.

[7] The final order dated June 9, 2008 granted joint custody of C.1 and C.2 to the parties and sole custody of A. to the applicant mother. The boys were to reside with their mother Sunday 10:00 a.m. to Thursday 8:00 a.m. for C.1 and until 3:30 p.m. for C.2. They were to reside with their father for the balance of each week. The order also specified holiday access sharing and particulars related to the children’s custody and care. This shared schedule continued until October 2010.

[8] On June 9, 2008 child support payable by the respondent was by temporary order set at $565.00 per month using a set off of the parents’ 2007 income. On June 1, 2009 it was increased on consent to $658.00 as a set off of their respective 2008 incomes.

[9] The respondent’s November 2008 motion to change the final custody order alleged the wife’s behaviour was erratic since before and after the separation. The respondent complained of other transgressions, such as her taking C.1 out for lunch from school on the respondent’s days, harassment and early arrival at pick up times, not providing proper clothing and medical care for the boys, as well as excessive telephone calls. On the return of the motion the parties consented to an order for a custody and access assessment to be conducted by Dr. Irwin S. Butkowsky.

[10] The assessment, dated October 9, 2009, recommended a shared parenting arrangement, and counselling for both parents with a parenting coordinator. The assessor also recommended the applicant be given the authority to make final major decisions in respect of the children in the event of an impasse between them, with the exception of decisions on extracurricular activities which would be joint. Dr. Butkowsky also recommended the children’s primary residence, care and control be with the applicant mother. Alternate weekends, and alternate Thursdays or Mondays were recommended for the respondent father. The assessor also recommended alternating Wednesdays with each individual child, and made recommendations for vacations and special holidays. He included numerous provisions about related issues such as telephone contact, extracurricular activities and travel.

[11] One item of note in the assessor’s recommendations is the exchange of the children between the parents, which required each party to remain in the car and leave the children’s belongings on a curb in front of the parent’s home to be retrieved after the other parent had left. Although the reasons for the assessor’s recommendations are not before this court, the clear inference from that particular recommendation is that there was significant conflict between the parents during the exchanges. The parents had already consented to an order for the exchanges to take place at a Tim Horton’s on the return of the respondent’s motion to change in November 2008, and the exchanges have continued at a local Tim Horton’s.

[12] Pending the assessment and receipt of Dr. Butkowsky’s recommendations there was a period of relative calm with no court attendances. The parties had still not resolved their property issues and final support. The respondent did not agree with the assessor’s recommendations and the motion to change the final order remained outstanding. The matter was placed on the trial list to be heard in November 2010.

[13] On September 30, 2010 the applicant received a phone call from her boyfriend. He told her he was in custody and asked her to come to the court house for his bail hearing. When she arrived she was charged with sexual assault and sexual interference in relation to A.’s friend. The boyfriend had the same charges and other sexual charges as well. The incident which led to the charges was said to have occurred in about April or May 2010 in Windsor, Ontario where the boyfriend lived.

[14] The applicant was released on a recognizance which inter alia required her not to be in the presence of anyone under the age of 16 with the exception of C.1 and C.2 with whom she was required to be in the company of one of her sureties, namely her mother or father.

[15] At trial the applicant detailed the events which led to these charges. She was credible in her account in which she explained how her boyfriend was able to sexually assault A.’s friend without her knowledge when she was present. She acknowledged her negligence in regard to the incident in failing to protect the young person who was in her care. As there was no evidence of her complicity in the sexual offences perpetrated by her boyfriend the Crown withdrew the charges against her and she pleaded guilty to criminal negligence causing bodily harm on June 6, 2010. During the interval between her charges and her plea she had been subject to her access being supervised by one or both of her parents for the approximately 20 months it took for the investigation to be finalized.

[16] Ms. K. also testified to having been told by A. about an earlier inappropriate touching by the same man, which she had mistakenly not taken seriously. She is believed in her emphatic and heartfelt expressions of deep remorse regarding both very serious errors of parental judgment on her part. She obviously continues to regret her failure in the performance of her parental duties in these two situations and has taken steps to ensure this conduct is never repeated on her part. She immediately severed all ties with the man who perpetuated the sexual crimes. This devastating experienced has made her particularly attentive and duly diligent in the protection of the children in her care.

[17] Upon hearing of the charges Mr. K. launched an aggressive series of motions to change custody and restrict the applicant’s contact with C.1 and C.2. Mr. K. testified he was concerned about the children’s welfare. While his initial concern and reaction is understandable, the respondent’s continued relentless attack and effort to minimize the applicant’s time with the children was not necessary, or in the best interests of the children, in circumstances by which the children were obviously not at risk in their mother’s care. The boys had witnessed the arrest of the mother’s boyfriend on the applicant’s driveway. Otherwise they were not given any information about the charges from the applicant. C.1 and C.2’s lives continued without any repercussions from the charges, other than the limitations placed on their mother’s time with them.

[18] The terms of the applicant’s recognizance were strict and required her to have at least one of her parents present when she was with the boys. Initially and briefly she was also not allowed contact with her daughter A.. The restrictions prevented her from being in the presence of anyone under 16. Thus her parenting schedule for C.1 and C.2 was changed to eliminate the Sundays when C.1 was in hockey which would have required her to be present in arenas with children.

[19] As events evolved it became apparent the children were protected from any harmful fallout from the charges against the applicant. The charges related to a minor. Therefore, public identification of persons involved was prohibited. Mr. K. was the only person who made information about the charges known to neighbours and co-workers. Inexplicably he now uses the fact that others know about the charges as a grounds for his intent to move away from the neighbourhood. He alleges the boys may be taunted or bullied as a result of information being known about these charges. This is not a valid ground for moving the children, having regard to the fact that they have not been affected by the charges nor is there any evidence of them being bullied, taunted or teased about it.

[20] The maternal grandparents were dutiful in being present when the applicant was with her children, as had been ordered on the recognizance and consented to by the applicant on the return of the respondent’s motion to change to sole custody on October 12, 2010. In his reasons Justice Langdon specifically states that, “I see no need to alter the existing arrangements regarding custody.” He ordered the June 9, 2008 order remain in force, subject to amendments required due to the recognizance restrictions.

[21] In February 2012 the files of Family and Children’s Services in Guelph (FCS) were ordered to be disclosed. Communication from FCS noted no concerns regarding the applicant’s parenting of and relationship with her children. The initial restrictions of the applicant’s contact with A. which had been in her recognizance had been lifted within a very short time after the charges. All this information was made known to the respondent.

[22] The applicant did not discuss the charges or the progress of the case with the respondent. He kept himself informed by sending his parents to monitor and report on each court attendance regarding the pending charges over the ensuing months. They were present at the hearing on June 6, 2012, in which the sexual offence charges against Ms. K. were withdrawn and she pleaded guilty to criminal negligence causing bodily harm. The charges against her former boyfriend remained and reportedly were increased in another court.

[23] The presiding justice in accepting the applicant’s plea sentenced her to probation for three years, plus counselling as may be ordered by the probation officer. No restrictions regarding children in her presence were imposed, with the exception of the young victim whose contact required the permission of the applicant’s probation officer.

[24] The respondent’s reaction to this turn of events was to renew his sole custody motion, ask the court permission to move the children to Elmira and to drastically limit the applicant’s contact with the children to a supervised access facility. In all the circumstances known to the respondent at that time he would have known or reasonably ought to have known this request was not in the best interests of the children who have a very close and loving bond with their mother. Limiting the children’s access to an artificial public setting would have had a devastating effect on the relationship between the mother and the children.

[25] The respondent’s testimony about fearing for the safety of the children at that point in time as the motivator for his motion is not credible. It appears to have been a tactical manoeuvre towards his goal of gaining sole custody. He was attempting to take advantage of the very unfortunate situation of the applicant as a result of the incident which led to her criminal conviction. Although the mother’s schedule with the children was again reduced to begin on Tuesday, rather than the Monday, to which it had been amended by Justice Langdon, the request of supervision was not granted and the case moved forward toward trial.

[26] It is now the respondent’s position the children should reside primarily with him, although he does acknowledge the benefit of joint custody. He also asks to move them out of Guelph. He and his new wife both testified about how their family life with the boys and her daughter from a previous marriage is “awesome”. C.1 has a close relationship with his step-sister Courtney, who is 10. However, both children are also closely bonded with their half sister A. as a result of their living with her at their mother’s home, a fact which was not acknowledged by the respondent until he was asked about it in cross-examination.

[27] In seeking to have the original joint custody order varied from primary residence with the mother to primary residence with him, the respondent relies on the fact of the mother’s time with the children having been reduced due to the intervening events. He emphasizes the status quo in which the children have been with him more than their mother over the last two years. He seeks to continue to have them the majority of the time.

[28] His proposal is to have the children spend alternate four day weekends with the mother or, in the alternative, two and a half days in one week, and one and a half in the second week as a pattern every two weeks. In cross-examination the respondent did acknowledge the original status quo under the final custody order was for the children’s primary residence to be with the applicant, which was the arrangement from June 2008 to October 2010. In seeking the children’s move away from Guelph, the respondent contends the children are resilient and make friends easily and claims a move would therefore not be disruptive to them.

[29] Both parents have a regular routine for C.1 and C.2 when they are in their care. Each is supportive of the children continuing to participate in the extracurricular activities of their choice. Both parents provide a comfortable and loving home for the children. The children have a close bond with both parents and both sets of grandparents.

[30] The children have attended the same school from the beginning of their education. They have strong ties in the community with close friends and numerous activities with those friends. Following the separation the respondent and applicant agreed it was in the children’s best interests to keep them in the same familiar environment. The respondent sought to buy the applicant’s interest in the matrimonial home to keep the children in the same neighbourhood. The applicant bought a home nearby in the same school district to achieve those same goals.

[31] Clearly the children have thrived under the joint custody order and the close proximity of the parents. They have a strong relationship with both the mother and the father. They have done well at school and enjoy the activities with their friends. Although the school district is scheduled to split for C.1 in the next school year, with the result that the boys will not be in the same school, both C.1 and C.2 will continue to be with their same group of friends. With the age difference between the two brothers there is little interaction between them while they are at school. Going to different schools is a logical progression in the course of their education.

[32] There is no evidence to support the respondent’s contention that a move to Breslau or other similar community away from their familiar environment in Guelph would be in the children’s best interests, particularly when such a move would introduce new transportation challenges in the exchanges. The applicant intends to remain in the same neighbourhood. The children’s maternal grandparents, who are supportive of the applicant’s parenting, are also in close proximity. Their paternal grandparents live in Elmira which is not the location that the father now seeks to move the children.

[33] The respondent and his new wife both testified to certain traffic and geographical preferences relating to their transportation to work as a reason for moving out of Guelph. However as far as the father is concerned, the territory for his job remains the same as it was post-separation when he was desirous of keeping the matrimonial home for the benefit of the children. The thrust of the respondent and his witness’ evidence on the mobility issue focused on their personal convenience rather than the needs or best interests of the children.

[34] The applicant opposes moving the children out of the community. In their best interests she emphasizes the need to maintain the stability in their lives which they have achieved by remaining in a close knit community in which they have numerous friends and a school in which they are comfortable and academically successful.

[35] The applicant has also expressed a concern about the respondent’s refusal to allow C.1 to make phone calls to his mother, despite the final order following separation which promoted such calls between the parents and the children. The respondent denies he interferes with the children’s calls, stating that whenever a message is left he has the children call right back. It would appear this was nevertheless a problem. The applicant attempted to resolve this communication difficulty by providing a cell phone for C.1. However the cell phone was taken away from him at his father’s home. Both his father and his step-mother at trial have indicated an absolute disagreement with C.1 having a cell phone.

[36] The applicant has also expressed a concern to the court about C.1 needing counselling to deal with his feelings regarding the ongoing conflict between the parties as a result of this litigation. The applicant, who is particularly sensitive to the children’s emotional needs, noticed he benefitted from talking to the FCS counsellor during their investigation.

[37] The respondent does not acknowledge C.1’s fragile emotional state. He has called the police on numerous occasions when his schedule of access was not precisely followed. On one occasion C.1 emailed his father to say he wanted to have a more flexible residential arrangement. On another occasion he emailed his father to say he did not want to go to him on that particular access. As a result of C.1 not arriving for the access the respondent called the police to enforce his time. C.1 was sobbing when he was forced to go after the police intervention. There is evidence of numerous other occasions the respondent called the police to intervene if there were conflicts.

[38] On the evidence it appears the calls for police assistance for the most part have been an inappropriate response to what were admittedly challenging situations. A more measured response by the respondent would have been less stressful for the children, particularly for C.1. C.1 has specifically asked his father not to call the police, an event which is clearly upsetting for the children.

[39] Emails from C.1 support this conclusion. In one email dated September 1, 2011, he state the following:

dad im sorry and you will probably will kill me but im not coming to your house tomorrow. C.2 will still come and i am sorry please do not call the police. i will call you every day. And just when i come back to your house take away my ipod and xbox 360 just please dont get mad. I still love you the exact same. I really dont want the police involved. if you call the police i will be very ☹ and love you C.1 I will saturday.

[40] C.1 also asks in another email, dated July 26, 2011, that he wants to “go to moms when ever i want or go to you when ever i want”. In another, dated September 15, 2011 he says, “dad I want to let you know that i want you to help when I feel sad because you don’t help me when Im sad. Ppp…lll…eee…aaa…sss…eee”.

[41] The evidence of the respondent regarding these emails was that they do not sound like C.1 to him. He also testified he does not believe C.1 has these concerns. He also does not believe the applicant’s information and concerns regarding C.1’s difficulties in falling asleep at his father’s house. According to the applicant C.1 has told his mother this is something he is afraid to tell the father. The respondent ignored the above emails from his son, presumably on his suspicion the applicant was involved in sending them.

[42] The respondent opposes an order for C.1 to have counselling. Although he did say at trial that if it is ordered he would comply, it is probable in these circumstances that he would not foster such an endeavour if the court orders the parties to cooperate on counselling. The mother is in a better position to ensure that C.1 receives the counselling he needs to work through the issues he is facing as a result of his parents conflict. When the respondent was directly asked about his response to the evidence of the mother that C.1 was afraid to talk to him about his problem sleeping, the respondent’s evidence was that he did not believe that. Moreover he emphasized in his evidence that he and C.1 have a very good relationship and they are able to talk about everything as well as participate in activities together. The respondent’s new wife in her testimony also claimed C.1 and his father have a wonderful relationship and have no problems communicating.

[43] This negative response is a refusal to acknowledge serious email messages which appear to be coming from C.1. The fact that Mr. K. cavalierly just ignores them, rather than talking to C.1 about the issues raised, supports the applicant’s evidence that the respondent is not sensitive to C.1’s emotional needs. His refusals or inability to deal with C.1’s emotions negate his own testimony that he and C.1 can comfortably talk about everything, including how C.1 feels about the conflicts caused by his parents.

[44] The evidence supports the conclusion that C.1 is experiencing some inner turmoil as a result of the conflicts that have occurred between his parents in the past. He was clearly upset about his father’s insistence on a rigid schedule when he communicated a need for more flexibility. The child’s emails to his father appear to have been prepared by C.1, and not orchestrated and directed by the mother as implied by the father at trial. The language and style of writing appropriately reflect the thinking of a child.

[45] Having regard to all the evidence and factual analysis above I find it is in the children’s best interests to maintain their primary residence with the applicant mother, as the parties originally agreed and as was recommended by the assessor. The intervening events related to the applicant’s criminal charges do not materially change the overall parenting abilities of the parties at the time of the final order in 2008 and as investigated by Dr. Butkowsky in 2009. As the children are now older than at the time of the assessment, their time with the respondent can be extended beyond the restrictive alternate weekend schedule, provided the parents continue to live in close proximity to each other.

[46] The intervening event of the criminal charges and conviction do not vitiate the need for the children to have significant time with their mother. She has throughout the process governed herself with restraint and has come out of the ordeal still focused on the best interests of her children. She is a capable and loving mother despite the past serious errors in judgment in relation to a person she once trusted as her boyfriend. I am convinced she has learned from her mistakes and will never repeat them. She now understands through painful experience the importance of protecting children and young people from potential harm and from individuals who may do them harm.

[47] The loss time of time for the children from their mother’s daily care due to the restrictions imposed after the October 2010 charges has left the children needing more, not less, time with their mother. This is poignantly evidenced by C.1’s reported wishes to have a cell phone so he can call his mother, and his emails expressing frustration with his situation within the conflict between his parents. The children are comfortable confiding in their mother and need the emotional support she gives them at this stage of their development.

[48] The applicant has also shown she is open to the children having maximum contact with their father. The respondent, on the other hand, has demonstrated a desire to severely restrict the children’s time with their mother. He has persistently pressed for orders to reduce the children’s time with their mother. He has also unjustifiably challenged her medical care of the children, leading to the inference that his goal was to criticize the mother rather than support her when crises occur. Were the children to be left in the respondent’s primary care this attitude would likely permeate their thinking and undermine their relationship with their mother, which is not in their best interests.

[49] The applicant’s evidence focused on the children’s needs, whereas the respondent and his wife were more concerned about maintaining their comfortable family unit with as little involvement or communication for the children with the applicant as possible. The respondent’s desire to move away from their home base overlooks the importance of a stable environment for the children. The request is for his own needs and wishes, not for what is best for the children.

[50] The parties both acknowledge the benefit of joint custody. However, having regard to the past conflicts and occasions of lapses in communication, which constitute a material change since the original custody order made at a time the parties were cooperating, I find Dr. Butkowsky’s recommendation of the applicant having the ultimate authority for decision-making is a helpful solution to break any impasse should it occur. Both parents have expressed a willingness and shown an ability to facilitate conflict-free exchanges for the children in the future. The Tim Horton’s location is no longer a necessary condition for exchanges. The parties are also directed to cooperate and facilitate the exchanges without the necessity of police intervention or presence, which intervention has caused stress to the children in the past.

(2) Support

[51] The five year history of the parties’ respective incomes is as follows:

Year

Applicant Wife

Respondent Husband

2007

$33,014.00

$74,312.00

2008

$37,393.00

$84,673.00

2009

$32,167.00

$96,057.00

2010

$29,491.00

$85,193.00

2011

$12,513.00

$91,670.00

[52] The respondent has continued to work at the same employment in 2012. The applicant is working towards having more hours than she had in 2011. Currently the respondent pays $658.00 per month for support of the two children, which was intended as a setoff of their 2008 incomes, when child support was varied on consent in June 2009. There have been no further adjustments despite the significant fluctuations and disparity in incomes. The respondent has paid no spousal support.

Child Support

[53] The respondent seeks to have all the child support he paid from about October 2010 to the present credited to him. He submits he should not have been required to pay child support after October 2010 and relies on the fact that the children spent less time with the applicant after the parenting schedule was changed to avoid violation of her recognizance terms.

[54] In all the circumstances I find it is not appropriate to grant the retroactive credit adjustment requested by the respondent. When the holiday and summer schedule for the children is taken into account since October 2010, the children spent approximately 42% of their time with the applicant, even with the reduced week-to-week schedule. The applicant’s income is and has been significantly lower than that of the respondent. Other than the Child Tax Benefit and modest support from A.’s biological father of $269.00 per month, the applicant has the additional financial burden of supporting A. without help from the respondent. Mr. K. was A.’s step-father for about eight years. But for the applicant’s agreement not to claim child support for A. he would have had that additional obligation, as A. was dependent on his financial contributions to the family unit when the parties separated.

[55] The applicant’s household with three children and one part-time earner has functioned at a much lower standard than the respondent’s household. He enjoys the benefit of a second income earner. He did not increase child support to the applicant despite his material increases in income after 2008.

[56] A true offset of the parties’ respective incomes in 2011 would require monthly child support of $1,137.00 payable by the respondent for the two children which is considerably more than he has paid. Despite this the applicant has not claimed a retroactive increase in child support other than for this year. She fairly acknowledges the extra expenses paid by the respondent for the boys’ hockey activities. The respondent’s claim to retroactively credit child support he has paid since October 2010 is dismissed.

[57] Based on the parents sharing of time with the children it is appropriate to consider the incomes of both parents in the determination of child support for the future. The respondent claims this court should impute an income of at least $30,000.00 to the applicant for purposes of the child support claim. He submits the applicant’s reduced income in 2011 is her own fault, as she was required to give up her employment at the school board because of her criminal charges. He submits his child support obligation should not be increased as a result of her criminal conduct.

[58] The applicant is now employed part-time and is working toward a full-time position. She hopes to earn about $20,000.00 in 2012 and anticipates she will achieve the $30,000.00 level within a short time thereafter. In recognition of the applicant’s income earning potential which was around $30,000.00 at the time of the separation and several years thereafter, child support on a going forward basis will be set as a setoff of the parties’ two incomes using $30,000.00 as imputed income for the applicant, and actual income for the respondent. On this basis, if an income of $30,000.00 per annum for 2011 and thereafter is imputed to the applicant, the child support order requires the respondent to pay $876.00 per month child support to the applicant.

[59] Having regard to the sharing of parental time and joint custodial responsibilities, there will be an order for child support payable by the respondent to the applicant for the two children in the amount of $876.00 per month effective July 1, 2012. This is based on the respondent’s 2011 income of $91,670.00 and an imputed income of $30,000.00 for the applicant. Despite the lower standard of living in the applicant’s household this table set off is not adjusted in her favour in recognition of the respondent’s payments for the boys’ hockey and the lesser extraordinary expenses paid by the applicant for the boys’ other activities.

Spousal Support

[60] The applicant is relatively young, turning 37. She has made real efforts at becoming self-supporting. Having regard to the length of the parties’ cohabitation as spouses and functions performed by each, as well as the objectives of a spousal support order pursuant to section 15.2(6) of the Divorce Act, she is entitled to spousal support. During the parties cohabitation the applicant’s long term employability and career path were interrupted by her assumption of responsibilities to the marriage and the birth and care of the children. She worked only part-time and nights to enable her to manage her responsibilities of child rearing as her primary focus. The respondent helped in child care when he was home, but he did not experience the same detrimental financial consequences. His career progress and income earning potential were his focus during the marriage. The couple clearly intended the respondent being the main income earner at the time and for the future.

[61] The applicant is in need of spousal support and the respondent with a significantly higher income has the ability to pay. The following chart shows the mid-range spousal support entitlements of the applicant as calculated under the Spousal Support Advisory Guidelines (SSAG) from the commencement the application in March 2008 when the applicant made her spousal support claim. This chart also shows SSAG calculations, assuming a shared parenting schedule and child support payments that would have been payable under the Guidelines on a shared parenting regime using a straight setoff.

Year

Spousal Support

Child Support

2008

$304.00

$614.00

2009

$513.00

$693.00

2010

$985.00

$901.00

2011

$717.00

$808.00

2012

$1,307.00

$1,201.00

[62] The above 2012 chart assumes the actual incomes of the respondent and the applicant. If a $30,000.00 imputed income is assumed for the applicant, the SSAG mid-range for 2012 is $897.00 per month for spousal support, and $876.00 per month child support with shared parenting. The recommended SSAG range of duration for spousal support to a spouse in the circumstances of the applicant is noted as “indefinite”, subject to variation and possible review between 3.75 and 12 years from date of separation.

[63] As can be seen the child support paid by the respondent has been far less than the Child Support Guideline setoff amounts. As noted above child support before 2012 is not being adjusted retroactively either way. The respondent’s claim to eliminate the payments is dismissed. The applicant has not claimed an increase in past child support in recognition of the increased household expenses for the respondent when the children were able to spend less time with her during the week, and the significant hockey expenses he incurred without her contribution. Both parties agree that the respondent continue that obligation for hockey expenses, without contribution from the applicant. The applicant has in the past paid for certain of the children’s other activities, which bear a much lesser cost.

[64] The fact that the applicant did not pursue interim spousal support does not disentitle her to it. The respondent has throughout these proceedings been aware of her claim and would have been advised of the factors and objectives pursuant to the Divorce Act which entitle her to spousal support. When the parties separated the applicant’s annual income earnings were in the $30,000.00 range. This income level continued for the 2009, 2010 and 2011 years. With continued effort to become self-supporting she has the ability to earn that amount. Thus the spousal support is fixed in accordance with her actual income from March 2008 to December 2011 and as of January 2012 it is set by using $30,000.00 as her imputed income.

[65] Accordingly, the respondent’s obligation for spousal support from April 2008 to December 2008 is $304.00 per month; from January 2009 to December 2009 it is $513.00 per month; from January 2010 to December 2010 it is $985.00 per month; from January 2011 to December 2011 it is $717.00 a month. Commencing January 1, 2012 and thereafter, the respondent shall pay $897.00 per month for spousal support, subject to a review which may be initiated by him in or after January 2015. The order is also subject to a right of variation in the event of a material change in circumstances within the meaning of s. 17(4.1) and (7) of the Divorce Act.

[66] As periodic spousal support would have been tax deductible for the payor and taxable to the recipient it is appropriate to reduce by 50% the amount that would have been paid periodically to take into account the retroactive implications, both in terms of delayed payment and difference in tax treatment.

[67] The lump sum spousal support payable for the period from April 2008 to December 2011 is therefore fixed at $21,987.00 ($29,316.00 x .75).

[68] Periodic spousal support of $897.00 per month shall be paid commencing January 1, 2012, subject to a material change of circumstances variation and a possible review after January 1, 2015.

[69] To catch up on the periodic child and spousal support obligation from January 2012 the respondent shall pay $100.00 instalments added to the ongoing monthly support until the back payments are paid. The July 1, 2012 date for the commencement of the child support variation takes into account the shared allocation of the children’s time during the summer and the revised parenting schedule which will commence forthwith.

(3) Equalization of Net Family Properties and Property Adjustments

[70] The areas of dispute are:

(a) Household contents division;

(b) date of marriage asset values;

(c) debt owing to applicant’s parents;

(d) allocation of trailer sale proceeds; and

(e) respondent’s reimbursement claims.

(a) Division of household contents

[71] When the parties separated the respondent wrote an all-inclusive list of contents which was kept on the kitchen counter. The items were allocated in the months leading up to the applicant’s move out of the house in May 2008. She moved out without giving notice of her moving day to the respondent. He alleges she took 90% of the contents value. The applicant’s position is the values received by each are relatively equal and that for the most part, the list that they prepared ahead of time was followed.

[72] The respondent put a lot of effort at trial into his claim of an uneven division of contents. He had taken pictures of the contents before and after the applicant’s move out with her items. Despite this effort the evidence does not show the applicant received more than 50% of the contents’ value. What is particularly telling is the respondent’s own self-serving list he made after the fact of “what he can remember”, which list does not include numerous relatively valuable items such as stove, fridge, dishwasher, pool table, and gazebo, as well as items of furniture which he kept. The respondent also took certain items of furniture from the parties’ trailer which he knew belonged to the applicant’s parents. Without their permission, he ultimately sold and kept the proceeds from a table that had significant sentimental value to his in-laws. There is no basis by which any value beyond an equal division should be added to the applicant’s net family property for household contents. Included in household contents are items taken by each from their vacant lot and trailer.

(b) Date of Marriage Assets

[73] The $5,000.00 engagement ring the respondent seeks to attribute to the applicant’s net family property value was hers on the date of marriage. It is therefore also deducted as property owned on the date of marriage. The applicant also had household furniture on the date of marriage. Without receipts and further evidence I am assessing at a modest $3,000.00, rather than the $5,000.00 that she claims for its value on the date of marriage.

[74] The respondent had a vehicle he had purchased about six months before the date of marriage. The respondent has filed in evidence the itemized bill of sale. Not including taxes, the administrative and licence fees, and including the cost of paint protection, the vehicle, when new, had a value of $17,297.00 ($16,998.00 + $299.00). After deducting a reasonable depreciation of $3,000.00 and the $7,300.00 car loan, this asset had a net value of $6,997.00 on the date of marriage.

(c) Debt Owing to Applicant’s Parents

[75] The applicant produced documents to show the couple borrowed about $36,000.00 from the bank. Both the applicant and respondent signed the documents. The respondent admitted this money was used to pay joint debts incurred during the marriage, including credit card debts. Although initially it was his position that some of this money went to pay off the applicant’s student loan he agreed in cross-examination that he would not have signed a loan from the bank to pay off the applicant’s pre-marriage debts. On the applicant’s evidence which is accepted, her pre-marriage debts were paid before the marriage.

[76] The evidence indicates that this joint $36,000.00 loan was paid down to $27,297.00 by April 2003, at which time the applicant’s parents paid it off on the parties’ behalf by using their own line of credit. This was done to reduce the parties’ interest obligation to the bank. With the respondent’s knowledge the applicant made regular payments on that loan to her parents. The indebtedness was reduced by a further $5,000.00 by the date of separation. The total amount owing to the applicant’s parents on the date of separation was therefore $22,297.00.

(d) Trailer Sale Proceeds

[77] The respondent sold the parties’ trailer valued at about $48,000.00 for $32,000.00. He explained the reason for this low return was the restrictions of the trailer park regulations on ownership, which made it difficult to sell at full value. One half of these proceeds, namely $16,000.00, rightfully belongs to the applicant.

[78] Despite a court order to hold the proceeds of the trailer sale in trust, the respondent unilaterally decided to use about $19,000.00 of that money to pay the parties’ joint line of credit. He kept the $13,000.00 balance and used it to pay off his own post-separation debts. These debts are his sole obligation and he is not entitled to use the applicant’s share of the trailer proceeds for such purpose.

[79] The applicant did not take issue at trial with the $19,000.00 used to pay the joint line of credit despite this payment being contrary to the interim court order. She does claim her share of the money that he used to pay his own post-separation to which she is entitled. The respondent owes the applicant one-half of the approximately $13,000.00 from the trailer sale proceeds.

(e) Respondent’s Claim for Retroactive Payment of Expenses

[80] The respondent claims reimbursement of one half of certain fees he paid for the trailer post-separation. The applicant disputes this claim on the grounds the respondent, as the registered owner of the lot, wrote an email in May 2008 in which he refused permission for anyone to go on “my lot” without his permission. This email was addressed to the applicant’s mother and states, inter alia, “Lutheranch has been notified in writing and my lawyer that anyone that goes on to my lot is trespassing without my permission.” (emphasis added)

[81] Thereafter the respondent used the trailer to the exclusion of the applicant. I accept the applicant’s testimony that she was fearful of attending at the trailer on that lot, having regard to the respondent’s past use of police authority to enforce what he believed were his rights. His e-mail implies a clear direction for the applicant to stay away. The applicant had no opportunity to share in the use of the trailer from the date of separation until it was sold by court order. In these circumstances the respondent is not entitled to be reimbursed for his expenses incurred during his sole occupation of that property.

Calculation of Equalization Payment and Adjustments

[82] It follows from the above and calculations on Schedule I, which is attached, that the value of the applicant’s net family property totals zero; the respondent’s totals $62,438.16. Values of items not referenced above were presented as agreed values at trial. It is noted on Schedule I that the $22,297.00 owing to the applicant’s parents is shown as the debt of the applicant which obliges the repayment to her parents by her. The $32,000.00 received by the respondent for the trailer proceeds is shown as his asset. The $19,334.36 joint debt paid by him out of the proceeds of the trailer sale is deducted as his debt on the net family property calculation.

[83] Accordingly the respondent pays $31,219.08 to the applicant for equalization. Upon receipt of this payment the applicant shall repay her parents the loan balance of $22,297.00.

[84] The respondent shall further pay to the applicant the sum of $6,332.82 for her share of the trailer proceeds which he received.

Order

[85] Having regard to the reasons above the following final order shall issue:

(1) The parties shall continue to have joint custody of the children, C.1, born […], 2001, and C.2, born […], 2006 (collectively called “the children”).

(2) (a) The primary residence of the children shall be with the applicant mother and they shall attend the local school in the applicant’s community.

(b) The children shall be in the care of the respondent father every alternate week from Wednesday, 3:30 p.m. to Monday, at 9:00 a.m., commencing November 7, 2012, for so long as the respondent maintains his residence in the same school area where the applicant resides. In the event that the respondent moves out of the area this schedule shall be changed for the children to be with the respondent every alternate week from Friday at 3:30 p.m. to Monday at 9:00 a.m., and each Wednesday from 3:30 p.m. to 8:00 p.m.

(c) Subject to the holiday and vacation schedule below, the balance of the time the children shall reside with the applicant in her care and control.

(d) Each party shall be responsible for the transport of the children at the beginning of his or her time with them. If the children are at school, the pickup and drop off shall be at the school. If they are at home, the pickup and drop off shall be at the residence.

(e) The children’s residence shall not be moved from their present neighbourhood without the other party’s consent or court order.

(f) Both parties shall be entitled to attend all of the children’s extracurricular and school events. Both parties shall inform the other of events which may be occurring during the other’s time with the children.

(3) (a) The parent who has the children in his or her care shall make the day-to-day decisions concerning their welfare. Both parents shall keep the other fully informed on a timely basis of all issues relating to the children when they are in their care.

(b) Both parties shall solicit the input and opinions of the other parent in relation to major decisions affecting the children, including decisions related to the children’s general welfare, their health, education, religion and extracurricular activities that may affect the time the children spend with the other parent.

(c) Neither parent shall make any such major decision concerning the children without first consulting with the other parent.

(d) If issues regarding major decisions arise, the parties shall communicate with each other in writing or by email to minimize the children’s exposure to any potential parental conflict arising from the discourse.

(e) In the event of an impasse regarding any such major decision concerning the children, the parties may, if they agree, retain a mediator to help resolve the impasse. Failing any agreement on major decisions, the applicant mother shall retain the final authority to make such major decisions except for decisions on extracurricular activities that may impact on the other parent’s time with the children, which decision shall only be resolved with joint consent.

(f) If the applicant is required to make a major decision due to an impasse, she shall fully consider and give appropriate weight to the expressed wishes of the children and the input and the opinions of the respondent.

(g) If in the considered opinion of the applicant either child requires or would benefit from counselling, the applicant shall be the parent responsible for decisions in that regard and shall be the parent to arrange the appropriate counsellor in consultation with the respondent and upon the advice of the child’s family physician. The cost of such counselling shall be shared equally by both parents.

(4) The parties shall evenly divide the various holiday and vacation periods throughout the year in accordance with the schedule set out in paragraphs 9 a. to h. of the June 9, 2008, order.

(5) Both parties shall be at liberty to contact the children by telephone when the children are not in their care. Such contact shall be made between 8:00 a.m. and 8:00 p.m. In the event that the children are not in the residence at the time of the phone call the parent who has the children in his or her care shall ensure that the children return the phone call to the other parent. The children shall at all times be at liberty to telephone the other parent without interference or monitoring by the parent with whom they are residing at the time.

(6) Neither party shall remove the children from Canada without the prior written consent of the other parent, which consent shall not be unreasonably withheld. Both parents shall provide the other parent with the itinerary and schedule of the children and a contact location and telephone number in the event of any vacation of more than 4 days away from their usual residence.

(7) Both parents shall have complete access to all information concerning the children’s health, daycare, education, welfare and extracurricular activities and shall have the right to contact and obtain documents from professionals such as doctors, dentists and teachers.

(8) Except as modified or varied above, the terms contained in the final custody order of June 9, 2008, shall remain in full force and effect.

(9) Commencing July 1, 2012, the respondent shall pay $876.00 per month for child support of the two children, based on his 2011 income of $91,670.00, offset by the applicant’s imputed income of $30,000.00 per annum.

(10) If the parties agree that the children play hockey, the respondent shall pay for the children’s hockey expenses.

(11) The respondent shall pay the applicant $21,987.00 as lump sum spousal support for the period from April 2008 to December 2011.

(12) The respondent shall pay periodic spousal support of $897.00 per month commencing January 1, 2012, subject to a material change of circumstances variation and possible review after January 1, 2015.

(13) The back payments of periodic child and spousal support shall be paid by the respondent in $100.00 monthly instalments added to the ongoing periodic support until paid.

(14) The respondent shall pay to the applicant an equalization payment of $31,219.08. Upon receipt of the equalization payment the applicant shall repay the balance on the parties’ joint loan of $22,297.00 to her parents.

(15) The respondent shall further pay the applicant her share of the balance of trailer proceeds in the amount of $6,332.82.

Costs

[86] If the parties are unable to agree on the disposition of costs, they may deliver written submissions on costs by no later than November 15, 2012, for the

applicant; November 30, 2012, for the respondent; reply, if any, by December 12, 2012.

“original signed by Seppi J.”

___________________________

Seppi J.

Released: October 23, 2012

SCHEDULE I

CALCULATION OF NET FAMILY PROPERTIES

ASSETS

APPLICANT

RESPONDENT

Matrimonial Home

$ 263,000.00

Vacant Land Sold

$ 20,522.25

20,522.25

Household, including items at vacant lot and trailer

Divided in specie

Divided in specie

Hot tub

5,000.00

ATV

5,071.81

Mobile home

32,000.00

Dune buggy

2,750.00

Engagement ring

5,000.00

Bank accounts, etc.

2,541.68

27,910.86

Total V-day asset values

$ 28,063.93

$ 356,254.92

Deduct

Debts

Joint RBC Line of Credit paid by respondent

$ 19,334.36

Mortgage

261,684.59

Joint Loan from applicant’s parents to be paid by applicant

22,297.00

PC Line of Credit

649.00

Polaris debt

5,151.81

Total V-day debts

$ 22,297.00

$ 286,819.76

Date of Marriage Assets Net Value

Ring

$ 5,000.00

Furniture

3,000.00

Pontiac Sunfire ($14,297.00 less 7,300.00 debt)

6,997.00

Total

$ 8,000.00

$ 6,997.00

Net Family Property

Net Family Property

(2,233.07 ) 0

$ 62,438.16

Equalization payment

Respondent pays equalization to applicant

$ 31,219.08

Adjustments

Applicant pays her parents for joint loan payment upon receipt of equalization

$ 22,297.00

Respondent pays applicant for her share of trailer proceeds

$ 6,332.82

COURT FILE NO.: 240/08 (Guelph)

DATE: 2012 10 23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

A.A.K.

Applicant

- and -

K.D.K.

Respondent

REASONS FOR JUDGMENT

Seppi J.

Released: October 23, 2012