Sinclair v. Sinclair, 2013 ONSC 1226

COURT FILE NO.: FS-07-253

DATE: 2013-03-14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HEATHER SINCLAIR

Applicant

– and –

STEPHEN SINCLAIR

Respondent

COUNSEL:

Lisa DeLong

Phaedra Klodner

HEARD: at Brantford September 21, 22, 23 and 24, 2010 and November 28, 29 and 30, 2010 and May 22 and 23, 2012

PARAYESKI J.

REASONS FOR JUDGMENT

1The parties were married on June 3, 1995, and separated on January 31st, 2007. There are four children of the marriage, as follows: 1) Emily Hope Sinclair, born September 28th, 2000; 2) Abigail Faith Sinclair, born April 10th, 2003; 3) Alexandra Charity Sinclair, born January 6th, 2005 and 4) Nathaniel William Sinclair, born March 1st, 2007.

2The parties do not agree upon much beyond the facts as set out above. I propose to deal with the issues requiring determination under separate headings.

DIVORCE

3Both parties wish to be divorced based upon separation. At the end of the trial, I ordered that either party is at liberty to obtain a divorce upon filing the usual materials. This requires no further ruling.

CUSTODY

4The children of the marriage have been in the custody of the mother since separation, except of course, for Nathaniel, who was born thereafter. He, too, has been in the mother’s custody since his being born. The mother wishes an order for sole custody. The father seeks an order for joint custody, with the children’s primary residence being with the mother.

5The parties do not communicate well with regard to the children, or with respect to much else. Both parties blame the other for the lack of communication and cooperation concerning the children. Normally, those facts would militate against the making of an order for joint custody. Such an order should be made, however, when it is in the best interests of the children to do so. I am persuaded by the evidence before me that joint custody is appropriate in this case. I accept the father’s submission that ordering the same is the best, and perhaps only, way to counter the mother’s ongoing attempts to minimize his relationship with the children.

6The mother has done so in several ways. She has used church attendance to obtain an order requiring the father to return the children from weekend access at 9:00 a.m. on Sundays. Evidence from the mother’s own witnesses, namely Deane Proctor (her pastor) and Donna Mordue (the maternal grandmother), is such that the children do not attend church every Sunday.

7The mother has gone to considerable lengths to keep information about the children from the father. For example, all three eldest children were enrolled by the mother in some form of counselling. The mother did not tell the father of this in advance, and she refuses direct contact between the father and the counsellor. She switched the children’s family doctor without advising the father, and has instructed the new doctor not to speak to the father concerning the children.

8The mother only permits the father to speak to the children’s medical specialists or the school principal if she is present. She often notifies the father late with regard to the children’s activities, including activities that interfere with his presently limited access time.

9The mother has also used the children’s allegedly being allergic to animals and second-hand smoke to try to impose limitations on the father’s access. Without minimizing genuine allergy problems, the current medical evidence elicited at trial casts real doubt on the degree, if any, to which the children are actually allergic at this point and on the seriousness of their reactions if they are.

10The mother cannot conduct herself in such a way as to make joint custody more difficult than it might otherwise be, and then say that it cannot work and ought not to be ordered as a result.

11I also note that the clinical investigator put in place by the Office of the Children’s Lawyer recommended joint custody of the children with their primary residence remaining with the mother.

SCHOOLING

12When the parties were still together, they agreed that the mother would home school the children. She is a fully qualified teacher. The children continued to be home schooled after the separation in January of 2007 until the mother enrolled them in a private Christian school in September of 2011. She did so without notifying the father. The mother wishes the children to return to home schooling or to remain at the private school in question. The father seeks an order that the children attend the closest publically-funded school to their mother’s home.

13It is common ground that the children are doing well at the private school. They have adjusted both academically and socially.

14The private school costs are approximately $10,000 per year, including bussing. According to her written submissions, the mother is prepared to absorb the cost thereof, and does not seek direct contribution from the father should the children stay there. She says that her parents help with the school fees.

15Home schooling, of course, also has a monetary cost attaching to it, i.e. the fact that most of the teaching is done by the mother, precludes her from undertaking remunerative employment. While I reject any suggestion that the home schooling that the children were receiving was sub-standard academically or socially, mainly because of how well they have transitioned away from it, I do agree that this economic unit cannot afford home schooling until the children have collectively completed their secondary education. There is no evidence before me which suggests that any of the four children have learning restrictions or limitations such that they require home schooling.

16The father cannot meaningfully argue against the cost of the private school, where the children are flourishing, if he isn’t being asked to help pay for it. If the mother is content to pay for the private school, with or without the help of her parents, there is no apparent reason why the children cannot remain there. If, of course, the mother cannot or will not cover the cost of the private school, then the children can and should attend a publically-funded school near the mother’s home. Other children who attend the mother’s church are being educated at places other than the private Christian school in question, with which the pastor appeared to take no real issue. I am not convicted that the children not attending a private Christian school, if that is the option exercised by the mother, will cause them any meaningful harm or result in their turning away from their faith.

ACCESS

17The mother seeks largely to crystallize the status quo, whereby the father has access on alternate weekends from Friday evening to Sunday at 9:00 a.m., with some very limited additional holiday time.

18The father wishes to expand access to later on alternate Sundays, and for there to be one two hour midweek visit upon consultation with the mother, and for some holiday access. In addition, he seeks reasonable e-mail and telephone access.

19The parties blame each other for the patently small amount of access time currently in place. The father says that the mother has simply refused to allow more time when asked to do so, and that she has scheduled the children’s extra-curricular activities in such a way that it prohibits greater time with the father. He acknowledges that he has not formally moved for an order seeking more time, but says that he could not afford to do so.

20For her part, the mother relies upon a recommendation from the Ontario Children’s Lawyer that access should be limited pending further allergy testing given that there is some evidence of the presence of animals and smoking at or near the places where access is usually exercised. As previously described, the current medical evidence is that the allergy problems are minimal, if they exist at all. The mother also says that the father was inconsistent with the regard to access having missed sessions in 2007, 2008, and 2009.

21The evidence suggests that the mother is indeed doing her level best to minimize the father’s relationship with the children. I have already particularized some of her efforts in this regard. Barring any meaningful evidence that suggests that expanded access will not be in the best interests of the children, the same is appropriate. What the father proposes is manifestly more appropriate than that which the mother’s seeks.

PARENTING ASSISTANCE

22I shall address at this point the father’s submission that I should impose the use of a parenting coordinator in the event of custody (or access, I assume) conflict between the parties.

23The father suggests that if the parties cannot resolve any such conflict or conflicts they should be required to use the services of a parenting coordinator in the Brantford area with the cost of such being divided between them. The father goes on to add that should any such coordinator not be able to facilitate a resolution, then the mother is to have final say with the father being able to litigate if he believes her decision not to be in the best interests of the children.

24The mother resists this proposal upon the cost factor and because the father could always return to court should he wish to do so even without an order.

25No doubt the services of a parenting coordinator can be costly, but that, in and of itself, might cause the parties to put their animosity toward one another aside and cause them to focus on what is indeed in the best interests of the children. In other words, they might reduce conflict because there will be an immediate price attached to forementing the same.

26Although I do agree that an order permitting the father to litigate if he disagrees with a final decision made by the mother is likely redundant, I see no real harm in its being included in my decision. At its highest, it will serve as a reminder that the process is always open when the best interests of the children is at issue.

MODE OF COMMUNICATION

27The parties seem to agree that they should continue to use the communications journal in place to address issues regarding the children.

RESIDENCE RADIUS

28The parties appear to agree that there should be an order that in the event the mother wishes to move more than 50 kilometres from Brantford, she shall provide 90 days written notice to the father of that wish. Since the father is responsible for access transportation, this is only reasonable and appropriate.

NAME CHANGE

29The mother is content not to apply to change the children’s surname.

CHILD SUPPORT

30The parties agree that the father should be paying the mother child support at the Federal Child Support Guidelines level. The evidence is that his 2011 gross income was $92,336.56. The guideline support amount is $2,053 per month for the four children. That payment should start being paid as of July 1st, 2012. Variance going forward should happen as of July 1st of any year thereafter.

SUPPORT ARREARS

31The Director of the Family Responsibility Office provided a statement which showed support arrears of $17,354.14 as of October 17, 2011. The father asks that these arrears be rescinded. The mother says that no arrears should be forgiven.

32The father advances several arguments to rationalize his request. I shall address them separately, with the mother’s position discussed at each point.

1. GARNISHMENT

The father’s wages are garnished at 50 percent of net income, or some $1,238 every two weeks. This 50 percent garnishment was fixed pending trial by means of the order of Brown, J., dated April 19, 2010. The mother counters that the garnishment is based upon a net income figure which does not take into account the fact that some of the relevant support is spousal support deductible for tax purposes by the father. She estimates that he receives a refund of approximately $7,000 per year as a result. He does not use the refund to pay down his arrears.

2. FINANICAL INABILITY TO PAY ARREARS

The father’s most recent financial statement shows modest expenses totalling $2,386.54 per month for most, but not all, of his basic expenses. He argues that he simply cannot afford to pay more for support.

The mother repeats her argument on the tax refund described above. She suggests that the father should be paying down his arrears at $583 per month, thus accounting for the estimated refund of $7,000 per year in respect of spousal support.

3. DELAY

Both parties blame the other for litigation delay. Both are at fault in this regard. In addition, counsel underestimated trial time, and I was not available to complete the trial for several months.

4. CREDITS

The father asserts that he “overpaid” support. The mother denies this. Neither set of written submission on this point is particularly coherent. In any event, this will be discussed in the context of equalization of net family property.

5. SECTION 7 EXPENSES

Carpenter-Gunn, J. ordered the father to pay $443 per month towards extraordinary expenses commencing January 1st, 2008, by means of her order dated May 23, 2008. There is no rationalization of this number in the order itself. At trial, neither party could explain it.

It appears that at the time of that order the mother presented no receipts, but said that she had incurred expenses at some unknown level for extracurricular activities and camp.

The father argues that such expenses are not extraordinary, but, rather, should be subsumed under basic child support.

The mother counters that the children enjoyed similar activities pre-separation and that, in any event, these expenses are not high for four children.

Without receipts, the mother’s argument is less than compelling.

6. WAIVER OF EQUALIZATION PAYMENT

The father argues that if I should find that the arrears, or some of them, should stand, then they should be offset by what he says the mother owes him for equalization of net family property.

The mother denies that she owes anything for equalization and that the offset being proposed by the father is moot.

33Taken as a whole, both sets of arguments on arrears are not without merit. I do not believe that it would be equitable to rescind the arrears fully. A more reasonable and fair approach would be to fix them as of the date of these reasons at $12,500.

I shall address the equalization/credits issue at a separate point later in this ruling.

SECTION 7 EXPENSES GOING FORWARD

34The children all participate in a number of extra-curricular activities, and have done so for some years now. These are selected by the mother without consulting with the father. She does not provide receipts for the expenses incurred.

35As mentioned above, the most recent ruling on this issue has the father paying $443 per month toward extra extraordinary expenses (see the order of Carpenter-Gunn, J., dated May 23rd, 2008). The amount of the payment is not rationalized in the order, and I repeat my observation that neither party could explain it at the trial.

36The mother asks that the father be required to pay 90 percent of Section 7 expenses without having to provide receipts. The logic for this suggested ratio escapes me. The mother earns presently approximately $3,000 per year while the father earns $92,336.56, which means that the mother makes roughly 3.25 percent of what the father does.

37The father asks that he be ordered to pay 66.4 percent of Section 7 expenses, with the mother being responsible for the remaining 33.6 percent. He wants receipts for the expenses incurred. I assume that the ratio the father proposes is based upon an imputation of income at $40,000 per year to the mother, and a very rough apportionment between his income and her imputed income.

38I reject the mother’s submission that I should simply take the monthly activity expenses proven at trial of $514.83 and order the father to pay 90 percent or $463.35 (plus “additional health care expenses, home schooling fees or changes to the children’s extra-curricular activities at 90/10”, without receipts.)

39The request for receipts is entirely reasonable. These not having been provided is further proof of the mother’s patent wish to be in control of the situation. I will not presume, as the mother suggests that I should, that the father will ignore any order that he pay for extraordinary expenses, and that having to pay the expenses herself first and seek reimbursement from him “may deter” her from putting the children into activities. That governance on her choices has been missing, and this needs to be corrected.

40As will be apparent from my ruling on spousal support, I am of the view that the mother has been deliberately under employed for some time now. The imputation of some income to her is appropriate. The suggested amount of $40,000 per year equates to approximately 50 percent of what the trial evidence tells me a teacher earns. It is not manifestly unfair.

41Based upon the above, I am prepared to order that the father shall pay 66.4 percent of receipted extraordinary expenses as set out in Section 7 of the Act, with the mother being responsible for the remaining 33.6 percent. Fixing an amount at this time is inappropriate, and would only serve as an invitation to a motion to vary. By definition, the expenses will change over time, and the parties should be encouraged, rather than discouraged, to communicate on this issue.

SPOUSAL SUPPORT

42The mother is well educated and trained with a Bachelor of Physical Education degree earned in 1994 and a Bachelor of Education degree taken in 2002. That degree is upgraded with junior and intermediate certificates and a primary certificate, all obtained pre-separation. The mother is also a qualified personal trainer and a trained life guard with the Canadian Red Cross.

43The mother is a school teacher with the Grand Erie School Board. She works only enough in that position to maintain her good standing.

44There is no medical evidence that the mother is incapable of working outside the home, notwithstanding her having been involved in a motor vehicle accident in respect of which she is being sued.

45There is some evidence of the availability of work in her fields. It is plain from the mother’s evidence that her preference is to not work until she has home schooled the children to the extent that the youngest has finished the equivalent of secondary school. She appears to view the father as having agreed to home schooling pre-separation as having created some kind of enforceable contract which permits her not to be employed as she wishes. She is wrong in that view. The separation changed the landscape for this family. Home schooling is not something which it can afford.

46It is telling that the mother did not seek employment of any kind following her having placed the children at private school partway through the trial. She appears to not be working because she does not wish to do so.

47At the same time, it is true that during the marriage and pre-separation she had taken two maternity leaves from her work as a teacher and had stayed out of the work force to home school the children with the father’s agreement.

48The imputation of income is governed by Section 19 of the Federal Child Support Guidelines. I may impute income which I consider to be appropriate in the circumstances. These circumstances include: a) intentional unemployment or under employment; b) the needs of any child of the marriage and c) any educational or health limitations on the spouse in question relative to employment. I have already commented upon the issue of under employment or unemployment. The children are now all of an age when they are at school on a full-time basis. There is no evidence of any relevant educational or health limitation on the mother’s ability to work.

49I am prepared to impute income to the mother for spousal support purposes at the suggested level of $40,000 per year. As commented upon earlier, this equates to roughly 50 percent of the average annual income for working teachers.

50According to the DivorceMate software calculations provided by the father’s counsel in written submissions, that imputation leads to no spousal support being payable whatsoever. The same result is reached even if the present annual minimum wage is imputed to the mother.

51Despite all of the above, the father is prepared to pay the mother’ spousal support at the rate of $250 per month until August of 2013, at which time it is to terminate.

52The mother seeks the midrange of spousal support, based upon zero income for her of $538 per month, presumably subject to review. Alternatively, she seeks a nominal $1 per month to leave open the availability of review.

53While leaving open the possibility of a review may be common in spousal support rulings, it is not always appropriate. No review was provided for by Karakatsanis, J. (as she was then) in her decision in Moscoe v. DiFelice (reported at 2006 63730 (ON SC), 2006 63730). There she found, as I do in this case, that the wife had unrealistic expectations and needed to understand that she has to get on with life and support herself and help to support the children. That is precisely the message I wish to send to the mother in this case.

54The father shall pay the mother spousal support fixed at $250 per month to and including August 31, 2013, at which time spousal support is terminated.

HEALTH AND DENTAL PLANS

55The father is prepared to continue to have the children covered by his health and dental plan available though his place of employment. The outstanding issue has to do with coverage for the mother.

56The father indicates that he is prepared to consent to an order that the mother be covered for one year, or until she obtains her own plan through employment, whichever occurs earlier as long as he has a plan available to him and the mother is eligible under it for coverage.

57What is unclear to me, based upon the trial evidence, is whether the mother is eligible for coverage post divorce even in the face of an order that such coverage be provided. It makes no sense to order the providing of coverage if the insurer will not extend that coverage.

58The father’s proposal is reasonable, especially in light of my ruling on spousal support and the need for the mother to seek employment.

LIFE INSURANCE POLICY ON THE FATHER

59The father has a life insurance policy available through his employment, with a pay-out of $84,000 on his death. He proposes an order that he maintain the mother and children as beneficiaries of that policy for so long as it is available to him through his employment and he has a support obligation.

60The mother points out that the payout of the $84,000 would not cover the father’s support obligations. That is true even without spousal support being payable. She proposes that he make her the sole beneficiary so as to avoid any trust issues with infant and beneficiaries being involved, and that the father increases coverage to $200,000.

61While I have no difficulty with requiring the father to name the mother as a beneficiary in trust for the children (inasmuch as the purpose of the policy is to cover child support obligations), there is no evidence before me of the availability or cost of additional coverage to the $200,000 level sought. In the absence of such evidence, I am not prepared to order the father to take out extra coverage that may not be available at all, or if it is available, may be exorbitant to buy. Obviously, for the protection of the children, the father should seek out coverage beyond the present level, but I will not order him to do so for the reason provided.

LIFE INSURANCE POLICIES FOR THE CHILDREN

62There appears to be fundamental agreement on this issue. The father is prepared to transfer all of the policies on the children that exist at present to the mother so long as she pays one half of the premiums. She appears to be prepared to go along with this. There is no need to address the tortured history of the policies at this point.

EQUALIZATION OF NET FAMILY PROPERTY

63The parties are significantly apart on this issue. The mother takes the position that the father should pay her $286,389.28 in order to attain equalization, or $108,585.38 if the “repossession” of the matrimonial home was not the father’s “fault”, as she alleges it was.

64The $108,585.38 figure is found in the mother’s main written submissions. In her reply to the father’s written submissions, she puts the number at $117,308.43. Neither number is correct arithmetically. I believe that the correct figure is $113,362.33, which is calculated by reducing the mother’s initial figure by one half of the amount she attributes to the father for “repossession of the matrimonial home”.

65The father maintains that the mother owes him $13,476.20 to achieve equalization.

66Both counsel have ignored my admonition that I would not do their arithmetic for them. Instead, in their written submissions, they simply launch into specific areas of dispute using numbers out of context, and in some instances without a good evidentiary foundation. To be blunt, many of the submissions dealing with equalization are incomprehensible. I will not torture logic to make sense of them. I propose to address the areas of significant disagreement to the best of my ability, based upon the evidence and submissions as made.

1. MATRIMONIAL HOME

At the time of the separation, the parties lived in a substantial home located at St. George, Ontario. It was purchased with funds from the proceeds of sale of two previously owned properties, an inheritance by the father from his mother, and a mortgage.

The mother stayed in the home at and after separation. She wanted exclusive possession. The father eventually stopped making mortgage, utility and realty payments, and the mortgagee forced sale of the property.

Although the mother asserts that the property was “repossessed” by the mortgagee, it is not clear that such was the literal case based upon the evidence provided. It appears that the property was put on the market by the parties and not the mortgagee as would likely be the case under the exercise of a power of sale.

The mother asserts that the father stopped making the necessary payments, although she believes that he could have afforded to do so. He says that he could not afford to both maintain the home and pay the support ordered against him.

The parties disagree on why the home sold for significantly less than its listing price, leaving only $7,892.20 as net proceeds.

The property was listed for sale at $939,000. The realtor called as a witness by the father testified that this number was the mother’s figure. The realtor disagreed, saying that the home had a market value of approximately $800,000. The mother takes the position in her reply submissions that “the court” set the listing figure by means of the order of Whitten, J. dated February 5, 2008. I do not accept this at all. It is simply not credible that the court would select a number without foundation, as is implied.

The showing of the home did not go well. I accept the realtor’s evidence that the mother refused to allow “staging” of the property. The mother’s excuse that the four young children who lived in the home could “damage” the staging is less than sensible. I also accept the realtor’s evidence that the home was very messy when she arrived to have it photographed despite having advised the mother that she was coming. Although the mother’s pastor indicated that sometimes his parishioners helped out with home and yard maintenance, I accept the realtor’s evidence that the home was disorganized at showings. I do not accept the mother’s excuse that she could not keep the property relatively neat because of the presence of the children. I do accept her evidence, however, that the father only paid for pre-showing housekeeping on two occasions despite his being ordered to do so by Whitten, J. without limitations. I do note that the mother insisted upon 24 hours notice for a home showing.

Most of the blame for the delayed sale of the home must rest with the mother. She was certainly less than cooperative.

In her submissions, the mother blames the father for the “loss” of the matrimonial home. Based upon that, she suggests that it is appropriate to add to the father’s list of assets the $150,000 invested in the home from the sale proceeds of two previously owned properties, and $200,000 from his inheritance which was used to help purchase the matrimonial home, minus his one half of the net proceeds. The mother calculates the appropriate total to be $346,058.90. The evidence was that the inheritance amount was approximately $240,000. In any event, I do not accept the mother’s basic proposition. She cites no case law which suggests that attributing these monies to the father’s asset column is appropriate. It does not appear to me to be based upon logic either. I agree with the father’s submission that the attribution sought is indeed unfounded.

2. GENERAL HOUSEHOLD ITEMS ON VALUATION DAY

The mother indicates in her net family property statement of January 8th, 2012 that each of the parties received $9,500 worth of furnishings from the home. She says that the father took his possessions.

The father’s most recent net family property statement indicates that the mother has some $72,150 worth of household items, including excluded, inherited items worth $34,150. It is his position that he left the home with some clothing and returned on two occasions only to pick up some tools and some furnishings, most of which he says had been inherited by him. His same statement shows him having no household goods and furnishings on valuation date.

The mother acknowledges having taken some items, specifically a hot tub, a totem pole, and a chandelier, from the matrimonial home before it was sold. I assume that she includes the value of these items in her figure of $9,500 referred to above.

3. 2000 SIENNA VAN

The mother’s net family property statement values this vehicle at $33,000 on the date of separation. That had belonged to the father is not disputed. He says that he left the van behind for the mother’s exclusive use. He later retrieved it and sold it for $16,900 and suggests that, under those circumstances, this is the figure that should appear in his column relative to the van’s value.

4. TOOLS

The mother says that the father has retrieved most of the tools located at the matrimonial home and that she only kept some basic items for home maintenance. She asserts that the tools that the father took are worth the $6,000 he says they are, and that the tools she kept are worth $700. The father says that the opposite is true. I agree with the mother’s submission that the father’s evidence of value is based largely upon replacement, rather than used values, although both of them have used the same figures.

5. OTHER PROPERTY

In her net family property statement, the mother asserts that $27,240.12 owed by the father on his Visa statement was paid off when the matrimonial home was sold. I assume that that occurred as part of the mortgagee’s adjustments. The father makes no mention of this in his net family property statement. Neither party addresses it in submissions.

6. PROPERTY AND VEHICLES, ETCETERA ON THE DATE OF MARRIAGE

The mother asserts that on the day of marriage she owned a vehicle worth $13,020. She acknowledged that she owed $8,020 toward it, meaning that the equity in the value was the net amount of $5,000. She asserts that the father had a vehicle or vehicles worth $1,500 at the time of the marriage.

The father says that he had vehicles worth $30,000 on the date of marriage, even though he acknowledged that one of the vehicles he thought he owned as of that date was actually purchased after the marriage. The submissions refer to a “Toyota Forerunner” as the post marriage acquired vehicle. The relevant financial statement lists a “Toyota pick-up”, which I presume is the same vehicle. The statement gives an approximate value of $3,000. I presume that this means that the father’s date of marriage assets are overstated to that degree.

7. BANK ACCOUNTS ETCERTA ON THE DATE OF MARRIAGE

The mother ascribes no value for such items relative to either party. The father asserts that he had bank accounts and an RRSP worth a total of $26,204.56 as of the date of marriage.

67Neither party has been wholly forthcoming on the issue of equalization of net family property. Neither has fully addressed the points raised against their respective arguments. Neither has fully proven their positions from an evidentiary perspective. In these circumstances, I am of the view that the fairest approach is to simply compromise their positions after taking into account my ruling on the mother’s failed attempt to include the numbers she argues should have been attributed to the father’s side of the ledger relative to the matrimonial home.

68As mentioned earlier, the mother argues that if the father is not to be attributed what she says is an appropriate amount for “repossession of the matrimonial home”, she is owed either $108,585.38 (per her main written submissions) or $117,308.43 (per her reply submissions). I believe that the arithmetically correct number based upon the mother’s rationale for calculation is $113,362.33.

69The father asserts that he is owed $13,476.20 for equalization (without consideration of the credits he seeks, and which will be addressed later). The midpoint between what I believe is the correct figure from the mother and that of the father is $63,419.27. That is what the father owes to the mother for equalization of net family property, again without consideration of the credits issue he raises.

70I do not accept the mother’s submission that the facts here are so unique as to merit any special order or terms regarding payment of the equalization amount owed by the father.

HOUSEHOLD CONTENTS

71The parties significantly contradict one another with regard to the contents of the matrimonial home, as I have touched upon earlier. The mother asserts that the father moved all or most of that which he is entitled to take. He claims that he did not do so. The mother does admit to the taking or disposing of a few items when the home was sold, specifically the hot tub, a totem pole, and a chandelier.

72At this point in time, the father seeks the return of a few items, specifically his grandfather’s Lee Enfield gun, his great-grandfather’s gun, his mother’s totem pole, and a coin collection. In her reply to the father’s written submissions, the mother said that the guns were given to her father pre-separation. She says that the totem pole was included in the home sale. She does not comment with respect to the coin collection.

73It strikes me as unusual that even pre-separation the father would have agreed to give any heirloom guns to his father-in-law. That said, something being unusual does not make it impossible or incredible. The mother says that she cannot return the guns, or the totem pole simply because she no longer has them in her possession.

74I am prepared to order the mother to make best efforts to deliver the guns to the father. She maintains a good relationship with her own father, and if her version of things is to be believed, she should have little difficulty in getting the guns back.

75I make no order regarding the totem pole or the coin collection, neither of which appears to have been valued professionally. While these items may have some genuine sentimental value, it is time for the father to move on beyond this issue.

CREDITS

76It appears to be the father’s position that if it is found that he owes the mother an equalization payment or support arrears, these should be reduced by means of his taking credit for amounts he says he paid on or behalf of the family post separation, which he asserts exceeds his obligations under relevant orders. These payments total $69,980.74, according to the father. The mother opposes any credit being allowed. There are multiple expenses that the father says he incurred and paid for the benefit of the mother or for the family post separation. These range from mortgage payments on the matrimonial home to school supplies. The supporting documentation is, at its highest, a disorganized mess. Most of it was either generated by the father or consists of bank statements marked up by or on his behalf.

77It is noteworthy that the order of Whitten, J. dated February 5, 2008 called for spousal support “commencing February 1, 2007” to be paid not by way of payment directly to the mother, but, rather, by way of direct payments toward, inter alia, the mortgage, a line of credit, utilities, etcetera. This part of the order was on consent. There was also provision in that order for spousal support commencing January 1, 2008, by way of direct payments for, inter alia, the mortgage, the line of credit, etcetera. That order was then vacated by means of the order of Carpenter-Gunn, J. dated May 23, 2008. It required spousal support, payable directly to the mother retroactive to January 1, 2008.

78It is far from clear what overlap there may be between at least some of the items for which credit is claimed and the spousal support ordered under the orders described.

79The mother’s written submissions on the credit issue are largely incomprehensible. Nonetheless, it does appear that the father did not make all of the ordered payments because, if he had, the mortgage would likely not have gone into default. Neither would have there have been realty tax and utility arrears, as appears to have been the case and for which adjustment was made at the closing.

80The father’s claim for credits also includes some payments on a van which the mother drove and eventually returned to him, which a van he later appears to have sold.

81It also appears that the father has or will receive tax credits for at least some of the amounts in respect of which he now seeks full credit.

82On the basis of the evidence and submissions before me, neither of which provide much in the way of assistance, I am prepared to allow the father credit as against his equalization obligation to the extent of $25,000 only.

CHILDREN’S RESP’S

83There are in place registered education savings plan accounts for the children. They are presently held in the father’s name. Unfortunately, one half of the value of these accounts was lost in the father’s bankruptcy proceedings, because they were considered, apparently to that degree, to be assets belonging to him.

84The parties agree that the RESP’s should be transferred to the mother’s name. The father asks that she be obliged to provide him with annual disclosure of any statement given to her regarding the accounts. She argues that she should not be obliged to make that disclosure. In her submissions, she rationalizes that position by pointing out the partial loss through the bankruptcy and saying that as a result she “should be free to do what she chooses with them”. The accounts are, by definition, held in trust for the children. The mother cannot do “what she chooses” with them. The request for annual disclosure is reasonable.

85The RESP’s currently held by Assante are to be transferred to the applicant mother, with her being obliged to make annual disclosure of the statements relating to the accounts to the respondent father.

86As a part of his submissions on the issue of the children’s RESP’s, the father raises the fact that his one half of the net proceeds of the matrimonial home sale remains in trust somewhere. The amount is $3,946.10. He asks that it be ordered applied against any support or equalization obligation he is found to have, or in the absence of any such obligation, that the money be ordered placed into the RESP’s.

87I have found there to be support arrears payable by the father. This fund is to be paid to the father’s credit at the Family Responsibility Office.

PREVIOUS COSTS ORDER MADE AGAINST THE MOTHER

88The mother was ordered to pay costs thrown away when she requested and received an adjournment of the trial in April of 2010. In her order granting the adjournment, Brown, J. fixed the costs payable by the mother to the father at $2,500 all inclusive. Her Honour went on to rule as follows: “These costs shall be paid by way of a set-off against any equalization payment owing by the respondent [father] to the applicant [mother]. If that set-off is not sufficient to allow the costs to be paid in full, the balance shall be payable forthwith at the conclusion of the trial.” I see no reason to interfere with that ruling.

ANNUAL DISCLOSURE

89The parties appear to agree that annual, mutual disclosure is appropriate. The father and the mother shall exchange income tax returns with all attached schedules by July 1 of each year, as well as assessments and notices of assessment within 30 days of their receipt so long as the children are considered dependants for child support purposes.

CONCLUSION

90Based upon the above, an order is to issue and the following terms:

a) Either party is at liberty to obtain a divorce based upon separation upon filing the usual materials;

b) The mother and the father shall have joint custody of the children with the children’s primary residence being with the mother. The mother and father shall consult each other on all major decisions affecting the children’s lives. In the event of a conflict, the parties will use the services of a parenting coordinator in the Brantford area, the cost of which is to be divided equally between the parties. If no resolution with the parenting coordinator is achieved, then the mother shall have final say, and the father shall have the right to have such decision reviewed by a court of competent jurisdiction, if he does not believe that such decision is in the best interests of the children.

c) The children shall be in the father’s care and control as follows:

1. Every other weekend from Friday after school at 5:00 p.m. until Sunday at 6:30 p.m., to be extended to Monday at 6:30 p.m., or Thursday after school, in the event of a holiday or a professional development day;

2. A midweek visit from 5:30 p.m. until 7:30 p.m., with such midweek visit to be determined by the mother as to what suits the children’s schedule best, however, the visit is to be the same day each week, unless otherwise agreed upon by the parties;

3. Every Father’s Day from Sunday at 9:00 a.m. until 6:30 p.m. with the children being with their mother every Mother’s Day from Sunday at 9:00 a.m., regardless of the care and control schedule;

4. Every Christmas vacation from December 26 at 9:00 a.m. until December 30 at 6:30 p.m.;

5. Commencing in 2013 and every odd year thereafter, for March break, for a period of seven days, which would include Monday to Friday, as well as the father’s normally scheduled weekend;

6. Two weeks in the summer with one week in July and one week in August, with the father notifying the mother by May 30 in writing of each year as to when he wishes to have the children in his care and control in respect of summer vacations;

7. Such further and other times as agreed by the parties.

d) Reasonable e-mail and telephone access.

e) The mother shall advise the father of all third parties involved in the children’s lives including doctors, dentists, school and counselling, and shall sign any necessary consent or consents which would permit the father to contact the third parties directly in order to obtain information regarding the children.

f) The mother and father shall keep each other advised in writing of any changes in addresses or telephone numbers.

g) The mother and father shall use the communication journal to address issues regarding the children’s intellectual, physical and emotional well-being.

h) It is ordered that in the event the mother wishes to move more than a 50 kilometre radius from the City of Brantford, she shall provide 90 days written prior notice to the father.

i) The children’s names (given and surnames) shall not be changed without the prior written consent of the father.

j) The father shall pay child support guidelines for the four children based upon his income and the Federal Support Guidelines.

k) Support arrears are fixed to the date of this decision at $10,000.

l) The father shall contribute to the children’s special and extraordinary expenses as set out in Section 7 with the father paying 66.4 percent of such expenses and the mother paying 33.6 percent of such expenses upon production by her of receipts.

m) From July 1, 2012 and until August 31, 2013, the father shall pay spousal support to the mother in the sum of $250 per month, at which time spousal support shall terminate.

n) The father shall maintain the children under his supplemental health and dental plan available through his employer for as long as they qualify under such a plan, and the father has such plan available to him. Moreover the father shall maintain the mother under his supplemental health and dental plan for one year, or until she obtains her own plan through employment, whichever occurs earlier, as long as the father has such plan available to him, and the mother is eligible for coverage under that plan.

o) The father shall maintain the mother and the children under his life insurance policy available through his place of employment for so long as he has an obligation to pay child support and spousal support.

p) The father shall transfer the children’s current life insurance policies to the mother as long as she pays for one half of the premiums.

q) It is ordered that the father owes the mother an equalization payment of $63,419.27, against which are to be applied $25,000 in credits and the $2,500 in costs owing to him by the mother as fixed by Brown, J.

r) The mother shall make best efforts to return to the father his grandfather’s Lee Enfield gun and his great grand-father’s double barrel flint lock shotgun.

s) The mother and the father shall exchange income tax returns with all attached schedules by July 1 of each year as well as assessments and notices of assessment within 30 days of their receipt, for so long as the children are considered dependents for child support purposes.

91If the parties are unable to agree upon the issue of costs, they may make brief written submissions in that regard to me. Each set of submissions shall not be longer than three typewritten pages in length, not including a costs outline. Those submissions should be forwarded to my attention at the John Sopinka Court House in Hamilton on or before the 30th of April, 2013.

The Honourable Mr. Justice D. Parayeski