COURT FILE NO.: 695/10

DATE: 2014/01/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LISA MARTINS

Wayne Norris Brooks, for the Applicant

Applicant

- and -

PAUL GEORGE MARTINS

Steven Nagy, for the Respondent

Respondent

HEARD: May 28, 29, 30, 31 and June 27, 2013

The Honourable Madam Justice W.L. MacPherson

[1] This is an application commenced by the mother/wife, Lisa Martins. The responding party is the father/husband, Paul George Martins.

[2] The parties were married on August 5, 2000. Although they separated in May 2010, they continued to reside in the matrimonial home in Wellandport, Ontario until August 1, 2010 when the wife moved to alternate accommodations in Beamsville, Ontario.

[3] There were two children born of the marriage, Samantha, born April 25, 2002, and Courtney, born May 16, 2005. Initially, while the children moved to Beamsville with their mother, an arrangement was reached which provided for the children to be with the mother from Sunday evening until Thursday a.m. and then with the father from Thursday after school until Sunday evening.

[4] This arrangement continued until December 1, 2010 when the children began residing primarily with the father. The current arrangements provide for the children to be with their mother:

i) every Wednesday at 10 a.m. until Thursday at 7 p.m.; and

ii) every Saturday at 7 p.m. until Monday at 7 p.m.

Issues

[5] The issues to be determined are:

1. What custody and access regime is in the best interests of the children?

2. What, if any, child support should be paid?

3. What, if any, spousal support should be paid?

[6] While both parties had made a claim for an equalization of property, such a claim could not be sustained in the face of the bankruptcy assignment by both parties just prior to separation. Further, and as there was no equity in the matrimonial home at the time of separation, and as set out in the wife’s pleadings, she was content to transfer her interest in the matrimonial home to the husband, on the basis that he would assume sole liability for the mortgage registered on the matrimonial home. An order to that effect shall issue.

[7] The mother commenced the application in October 2010.

[8] At a four-way meeting held on December 1, 2010, there was a breakdown in the solicitor-client relationship between the wife and her lawyer and immediately following this, the mother told the father to pick up the children, which he did, resulting in the primary residence arrangement with the father.

[9] The mother submits that she has been attempting to regain primary residence of the children since early 2011, but the de facto arrangement has continued with primary residence of the children being with the father.

[10] At a Case Conference held on December 13, 2011, Justice Tucker made an order on consent which confirmed that the mother’s time with the children would be:

i) every Wednesday from 3 p.m. to Thursday at 9 a.m.; and

ii) alternate weekends from Friday at 3 p.m. to Sunday at 7 p.m. (extended to Monday if it was a holiday)

[11] In addition, the parties agreed to use a communication book to deal with issues concerning the children.

[12] The next adjustment to the schedule occurred at the Settlement Conference held on July 16, 2012. Justice Lafreniere made an order on consent, such that the mother’s time with the children would be:

i) every Wednesday at 10 a.m. until Thursday at 7 p.m.; and

ii) every Saturday at 7 p.m. until Monday at 7 p.m.

[13] The matter had been scheduled for trial the week of January 14, 2013 but was not reached. The matter proceeded to trial the week of May 27, 2013 but could not be concluded and was adjourned to June 24, 2013 for oral submissions, but once again could not proceed due to a conflict in counsel’s and the court’s schedules. As a result written submissions were to be made, with final submissions being received on July 26, 2013.

Custody/Access

1. What custody/access arrangements are in the best interests of the children?

Positions of the Parties

[14] The wife seeks to have sole custody of the children or, in the alternative, joint custody with primary residence being designated with her. In the event that the children remain in the primary care of the father, she requests an equal time sharing arrangement, which she submits would be accomplished by an additional three hours of time with the children each week. This would also allow her to claim the children as resident with her for purposes of receiving benefits through Ontario Works.

[15] The husband seeks sole custody of the children or, in the alternative, joint custody with primary residence continuing to be with him. He is content that the current access arrangements remain in place, except he requests that the children be returned three hours earlier on the Monday (at 4 p.m.).

The Law

[16] In making an order for custody or access to children, the only test to be applied by the court is what is in the best interests of the children as set out in section 24 of the Children’s Law Reform Act (R.S.O. 1990, c. C. 12, as am.) In determining the best interests, the court is directed to consider the children’s needs and circumstances and the criteria set out in subsections (2) (a) through (h) which include,

a) the love, affection and emotional ties between the child and each person entitled to or claiming custody of or access to the child; other members of the child’s family who reside with the child; and person involved in the child’s care and upbringing;

b) the child’s views and preferences, if they can be ascertained;

c) the length of time the child has lived in a stable home environment;

d) the ability and willingness of each person applying for custody to provide the child with guidance and education, the necessaries of life and any special needs of the child;

e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

f) the permanence and stability of the family unit with which it is proposed that the child will live;

g) the ability of each person applying for custody and access to act as a parent;

h) the relationship by blood between the child and each person who is a party to the application.

Analysis

[17] The court heard evidence from each of the parents, as well as the maternal grandfather, Terry McKay, the paternal grandmother, Maria Martins, and the husband’s fiancée, Gypsy Fields. I do not propose to review all of the evidence in depth, but will refer to that evidence as it is relevant to a consideration of the factors set out in s. 24 of the Children’s Law Reform Act.

[18] As to the love, affection and emotional ties between the children and those entitled to custody and access, it was evident that both of these parents love their children and that the children have a closing and loving bond with both parents. It was also evident that there was a close bond between the children and the maternal grandfather and paternal grandmother.

[19] With regard to the children’s views and preferences, the Office of the Children’s Lawyer was requested to become involved, but they declined to do so and as a result there was no independent evidence of the children’s views on these matters.

[20] While the father testified that he has recently noticed some hesitancy on the part of Samantha to attend at her mother’s home, this did not appear to be significant issue nor one that could not be dealt with by gentle encouragement and an understanding of the significance of continuing to promote the importance of both parents being involved in the lives of the children.

[21] There was also evidence that when Samantha recently underwent surgery and had to choose one parent, she asked that her father accompany her. This is not surprising given that the father has been the primary parent for two-and-a-half years as of the trial and for that period, he had assumed primary responsibility for the health needs of the children. I also accept that of the two parents, the mother is the more emotional one and the father would provide a more calming influence for the child.

[22] The mother testified that Samantha had in fact requested additional time with her mother and in particular that she be able to spend one week with each parent. I am not able to give any weight to this bald assertion given the child’s age and the fact that children will often agree with a parent, in an effort to please that parent, without the ability to know how it would actually work and impact their day-to-day lives.

[23] As such and on all of the evidence there was nothing to suggest that the children had a particular preference for either parent, nor was there anything to suggest that the children are not equally happy while in both parents’ care.

[24] Turning to the length of time that the children have lived in a stable home environment, it is apparent that initially following separation, the children resided with both parents in the matrimonial home. This shared custody arrangement continued following the physical separation of the parties in August 2010, and they were with the mother from Sunday evening until Thursday morning and then were with the father from Thursday evening until Sunday. It is also clear that since December 2010, the children have been primarily with the father, with the mother’s access being only gradually increased to three overnight visits each week.

[25] I accept that the mother has been requesting increased time with the children since 2011, but no steps were taken by any of the counsel who has represented her throughout these proceedings and as a result the children have been in the primary care of the father for the past three years.

[26] The plans presented by both parties were in many respects a continuation of the status quo that has been in place since November 2011, in that the mother would continue to reside in the two bedroom home which is located in close proximity to the children’s school and the father would continue to reside in the matrimonial home in Wellandport. There was no evidence to suggest that these were not proper accommodations for the children.

[27] The children would continue in their current school, St. Martin’s Catholic School. This was also their school at the time of separation and continued to be their school except for a four month period (September 2010 to December 2010) when the mother moved to Beamsville and they attended Senator Gibson School. While there was a suggestion by the father that the children arrived late to school an excessive number of times during this time period that should be attributed to the mother, on the evidence before me, I am not able to draw that conclusion. In any event, that is no longer an issue given the location of the mother’s home to the children’s school.

[28] Both parties included in their plans that they would continue to have the assistance of family members, including the paternal grandmother and paternal aunt and maternal grandfather, in providing for the care of the children as required.

[29] As to the permanence and stability of each family unit, as noted, the mother has been in her residence since November 2011. The father’s situation was about to undergo a change in that his fiancée, Gypsy Field, and her two children (Dominique 15 years and Tyler 12 years) were to move into the matrimonial home on July 1, 2013, following the trial. Although this would represent a new situation, I am satisfied that this would not pose a significant difficulty for the children. This is due to the Martins children being introduced to Ms. Fields and her children in a gradual and appropriate manner over the two years of this relationship. Although Ms. Fields resided in Wallaceburg, there has been ample testing of the living arrangements as she and her children would spend weekends in Niagara at the matrimonial home. The evidence was that Samantha and Courtney got along well with Dominique and Tyler, evidenced by Courtney reminding Ms. Fields to make she brought them for the weekend. There was nothing to suggest that the Martins children did not have a positive relationship with Ms. Fields.

[30] As to the remaining criteria which must be considered in determining the best interests of the children, which include the ability and willingness of each person to provide for the guidance and education and any special needs of the children and the ability of each person to act as a parent, there is obviously some overlap in these factors and it is appropriate that they be considered together.

[31] Samantha was 10 years of age at the time of the trial. She was diagnosed at two months of age with a rare heart condition known as Wolff-Parkinson-White syndrome. Although surgery would not usually be recommended prior to puberty, as she was having frequent rapid heart episodes and would pass out, she underwent heart surgery in November 2012 which corrected the problem and all reports from both parents is that she is now healthy.

[32] Courtney also had some health issues in the form of recurrent bladder infections. It was clear that the father attributed this to the mother not giving the antibiotics as prescribed, relying on the child’s statement. This was denied by the mother, who indicated that she gave the prescription hidden in the child’s juice or yogurt. She did express a concern that the antibiotics were too strong for Courtney, allowing the father to come to her home to observe the effect on the child. She also had the father come to her home on occasion to administer the medication as she had a hard time doing so.

[33] During the marriage, the undisputed evidence was that the mother was the one who took the children to the majority of their doctor’s appointments. Since separation, that role has been fulfilled by the father. While the parents appear to have minimal face-to-face communication, it is apparent from the communication book that was made an exhibit, that this is an effective way for the parties to communicate about the children’s health and any issues arising and should continue to be utilized.

[34] Regarding the children’s education, the court was provided with their report cards since the separation and the father submitted that there has been a decline in Samantha’s marks, attributing this to the child not wanting to and not doing her homework at her mother’s. This was also his reasoning for reducing the mother’s time on Monday evening so that he could do more homework with Samantha. I would note that when asked what he did about this issue (lower marks) he did not speak with either the teacher nor with the mother.

[35] It is apparent from all of the evidence that the father is capable of parenting the children. As between the two parents, he certainly gave the impression of being the more organized and “level-headed” parent. I accept the evidence of Gypsy Fields as to her observations of the father’s patient and effective parenting skills. Even as noted by the mother in her testimony, “he is an amazing father – if he would stop being angry with me”.

[36] The one area of concern is that for some reason, there is a failure on the father’s part to fully recognize the importance of the mother’s role in the lives of the children. This has translated into the father limiting the mother’s access for the past several years.

[37] Having heard the evidence, I am satisfied that there was a basis for some initial concerns at the time of separation. This related to the mother’s difficulties with her mental health, both in 2009 when she had a breakdown and again during Mother’s Day weekend in May 2010 when in the midst of an argument, the wife held a knife to her throat. The father took appropriate steps in involving the Children’s Aid Society, but it was apparent based on the steps taken by the mother that they did not have any protection concerns with the children being in her care.

[38] The mother did become involved in an abusive relationship with Trevor McGowan between March 2011 and July 2011. During an altercation between the mother and her boyfriend while on a camping trip, Courtney sustained a bruise. The police and Family and Children’s Services were involved. In those circumstances, and while the mother remained in that relationship, it was certainly appropriate to limit the access. To the mother’s credit, she did remove herself from that unhealthy situation, in November 2011, moving back to Smithville to a residence located across from the children’s school. Once it was clear that the mother was no longer in that relationship, there was no reason to limit the mother’s time with the children.

[39] However, it appears that the only time additional access was ever proposed was when the matter was in court first at a Case Conference in December 2011 and next at a Settlement Conference in July 2012.While the limitations may have arisen out of a legitimate concern for the children, once that concern was alleviated there would be no reason for the mother not being able to resume an active role in the children’s lives. The father’s mindset was no more clearly set out than in the communication book where he stipulated that the schedule would remain until a court order is made.

[40] Another example of the father not accepting the importance of the mother in the lives of the children occurred in October 2011, when Samantha had hit her head at school and the school called the mother to pick her up. Although the mother was on her way from Grimsby, the father told her that was not necessary as he would get the child from school. Instead, he sent his mother to pick up the child as he had errands to run. This was not disputed by the father, nor was there any indication that this was done to avoid the mother being inconvenienced. What was also not disputed was that although the mother had asked him to let her know the child’s status, he did not do so.

[41] While it is always good when there is a support system in place with additional persons who can assist the parents with the care of the children in an emergency, the primary persons should be one of the parents.

[42] The final indicator of the father’s viewpoint on the mother’s role in the lives of the children is the position taken in this trial, namely that the mother’s time should be reduced by three hours on the Monday evening, with no suggestion as to what additional time might be offered to make up for the lost time between the mother and the children.

[43] With regard to the mother’s ability to care for and provide for the children, on all of the evidence heard, I find that she is fully capable of doing so. There are no doubt differences in the parenting styles of the two parents, but that does not prevent the mother from fulfilling her parental role.

[44] There was a tendency on the mother’s part to blame others and to not accept responsibility for her role in situations. For example, she laid the blame for the breakdown of the marriage entirely on the father and his demanding nature, taking no responsibility whatsoever and minimizing the possible role of her mental health issues and her conduct.

[45] I do not accept the wife’s portrayal of the husband as controlling her in all matters in the marriage, as she suggested, to the point of taking on the task of cooking all meals and making all decisions about the raising of the children. To do so would be to ignore such contrary evidence as the fact that Samantha was baptized in a non-Catholic church or that the wife was supported by the husband in the purchase of a salon/tanning business where his role was limited to doing some renovations, and she controlled the finances and the operation of the business to the financial detriment of the parties.

[46] A large component of the wife’s argument to place the children in her sole or primary custody was based on the fact that she was the primary caregiver of the children during the marriage. She portrayed the father as having had minimal involvement in their care, and she denied that any other person had an active involvement in the care of the children, minimizing the role of the paternal grandmother in the children’s lives.

[47] While I have no doubt that for some of the time, the applicant was a “stay-at-home” mother and was the primary caregiver for one or both of the children (for example when Samantha was born in 2002), it was clear that within one year of that child’s birth the wife did begin to work outside of the home on a part-time basis as a manager of Tantastic Tanning. As she testified, while the initial plan was that she would take a one year maternity leave after Courtney’s birth in May 2005, in fact the wife continued to work at the salon afterward for as much as 25 hours per week and that following the death of the owner, the wife worked up to 35 hours per week when the parties decided to purchase the business in 2007. The wife’s suggestion that as an owner of a business that was open six days per week, she only had to attend the business for an hour here and there, made no sense except to support her position that she always was the primary caregiver of the children.

[48] On this issue, I accept the evidence of the husband and the paternal grandmother that from September 2007 until August 2009, the wife was actively involved in running the business both during the daytime and evening hours and that the children were in the care of the paternal grandmother three to four days per week. The husband was also involved in the care of the children when he was not at work. The wife’s involvement in the business did not mean that she had no involvement in the children’s care, only that she was not their primary caregiver.

[49] Since the parties’ separation, there have been several changes in the primary parenting role of the children as outlined above. While the wife’s version was that the husband “took the children in December 2010” and refused to allow them to return to her care, I accept that there was a mutual decision for the husband to take the children so that the wife could calm down and re-group as she was very upset following the four-way meeting. However, the wife’s suggestion that she was denied overnight access until the summer of 2011 was contradicted by the communication book as it was clear that she was having overnight access to the children as early as January 6, 2011 and several more times that month. I do accept that the wife did request additional access in an effort to return to an equal time sharing arrangement, and that in most instances this was denied by the husband.

[50] Based on the evidence heard and considering the relevant factors as set out in the legislation, the arrangement that is in the best interests of the children is for the parents to continue to share joint custody. The evidence of both parents was that if the parties stick to the facts and avoid nitpicking one another, that the communication book is an effective way for the parents to deal with the children’s issues, along with texting in an emergency or when a more timely response is required. It is certainly hoped that in the future the parties will recognize the advantage of being able to deal directly and face-to-face with one another, but at the present time, I find that a joint custody arrangement is both workable and appropriate in the circumstances.

[51] The parents have shown that they have been able to make appropriate decisions concerning the children since separation, such as regarding Courtney’s first communion and regarding Samantha’s surgery. They must continue to put the best interests of the children ahead of their own wishes and convenience.

[52] Although the children have been in the primary care of the father for a lengthy period of time, given the amount of time that the children will be spending with the mother, it is fitting that the primary residence be shared such that the primary residence of Samantha shall be with the father and primary residence of Courtney shall be designated with the mother. On this basis, for 2014 and going forward, the mother will be able to claim Courtney and the dependant credit for tax purposes.

[53] As set out above given the concern that if the father is granted sole custody or was to have the final say in decisions affecting the children, there is a tendency to marginalize and limit the mother’s involvement with the children, I decline to give him the final say in decisions concerning the children as he requested. The parents will need to discuss issues as they arise and to ultimately reach an arrangement that is in the best interests of the children.

[54] I have also determined that it is appropriate to expand the mother’s time with the children to ensure that she continues to be able to play a significant role in the care and upbringing of the children. While the father and his counsel questioned the mother’s motivation as being purely financial, I do not base my decision on that, but rather on what is in the best interests of the children and if that means that there is a financial benefit, then so be it.

[55] The father does have a somewhat unusual work schedule in that he works full-time but does so by working three extended days per week, with his schedule at the time of trial being:

Sunday 3 a.m. to 6:30 pm

Monday/Tuesday off

Wednesday 3 a.m. to 6:30 pm

Thursday 4 a.m. to 5/6 pm

Friday/Saturday off

[56] It was the father’s evidence that his schedule is chosen each November, so as the court’s decision is being rendered after that, it cannot take into consideration a new work schedule that might now be in place. Based on the father’s availability under the previous schedule, he is available to be with the children from Monday evening until Tuesday evening, and Thursday after 6 p.m. and all day Friday and Saturday. The early morning start to his work on Sunday, Wednesday and Thursday does limit his availability to be with the children.

[57] The mother’s evidence was that she has some say in her hours at work as she works for a friend in the business of cleaning houses and that she was able to work when the children were in school or when they were with their father.

Court Order

[58] Accordingly, and taking all of the above into consideration, the following order is made:

1. The parents shall share joint custody of the children, Samantha and Courtney.

2. Samantha shall have her primary residence with the respondent father.

3. Courtney shall have her primary residence with the applicant mother.

4. Commencing January 14, 2014 the children shall be with each of the parents as follows:

i) Mother - Saturday 7 p.m. to Monday when the children are returned to school;

ii) Father - Monday after school until Tuesday at 7 p.m.;

iii) Mother – Tuesday at 7 p.m. to Thursday at 7 p.m.;

iv) Father – Thursday at 7 p.m. until Saturday at 7 p.m.

v) Such further and other times as the parties may agree taking into consideration the work schedules of both parents and the best interests of the children.

5. There shall be an equal sharing of all statutory and school holidays which shall include each parent having up to three weeks of non-consecutive time with the children during the summer months. The father shall within 21 days provide a proposed written schedule for the upcoming year to the mother, with the mother to provide her written response and proposed schedule within 14 days. If the parties are unable to agree on the times that the children shall be with each parent, then they shall attend at mediation to arrive at a mutually agreeable schedule.

6. The parents shall continue to use a communication book and text messages for the purpose of communicating regarding the health, education, religion and general wellbeing of the children.

7. Major decisions shall be undertaken jointly and after consultation between the parents and any professional who might be involved with the children.

8. Both parents shall keep the other informed regarding the children’s health, education, religion and general wellbeing and both parents shall have the right to obtain information directly from the children’s teachers, schools, dentist, doctor, healthcare provider and others who may be involved with the children.

Support

2. What, if any, child support should be paid?

3. What, if any, spousal support should be paid?

Positions of the Parties

[59] The wife takes the position that she has limited income and only a modest employment history and that while she is willing to work and has obtained work as a house cleaner, she has limited means to pay child support.

[60] It is also submitted that the wife is not able to work full-time as that would compromise her ability to provide for the care of the children. As such, spousal support is payable by the husband.

[61] There were no specific numbers provided by the wife’s counsel as to the level of support to be paid, except that in rebuttal submissions made, the claim was for the minimum amount of $433.00 per month for an unspecified time limited period.

[62] The husband takes the position that there is no reason (health, education or otherwise including the needs of the children) that the wife should not and could not be working on a full-time basis and that an income should be imputed to her pursuant to s. 19 (1) of the Child Support Guidelines.

[63] As the husband does earn a greater income than the wife, the husband submits that the wife’s obligation to pay child support should be offset by the husband’s obligation to pay spousal support and that no support is payable by either party.

Analysis

[64] It is not disputed and the evidence confirms that the husband was the primary income earner during the parties’ ten year marriage. Since separation, the husband’s income has been substantially greater than the wife’s income. The husband’s income has been as follows: 2010 - $63,553; 2011 - $63,113; 2012 - $69,808. He continues to be employed on a full-time basis as a truck driver with TDL Limited.

[65] Since separation, the wife’s income has varied based on a number of different part-time jobs primarily in spas and salons, where the hourly rate has been between $11.25 and $13.00. During some of this period and as of the trial, the wife was in receipt of Ontario Works. As of January 2013, she began working as a sub-contractor for a friend who owns a cleaning business. She is paid $13.00 per hour and she works Thursday evenings and alternate Fridays. The amount of income being earned was not entirely clear. Further and while the wife is in receipt of Ontario Works, they will deduct 50% of her earnings over $100.00.

[66] There was no real issue raised as to the wife’s entitlement to spousal support, and I find that the wife is entitled to spousal support based on the length of the marriage, the roles adopted during the marriage and the financial circumstances of the parties since separation.

[67] The wife is 39 years of age, is healthy and has some employment skills acquired before and during the marriage. On the one hand, there was limited evidence provided by the wife other than some bald statements that she had applied for various jobs. No documentation was provided to verify the extent of her job search and as a result it was difficult for the court to assess whether reasonable efforts had been made to obtain employment. Further and while the wife submitted that she could not work more often than she currently is as she needed to be available to care for the children, given that Samantha and Courtney attend school full-time and are in the care of their father a significant portion of time, there is plenty of opportunity for the wife to work more hours. On the other hand, given the type of employment that she had during the marriage; at most the hours worked were between 25 and 35 hours per week; the highest income earned from the business was no more than $18,000.00 per year; rather than imputing income of $27,000.00 as suggested by the husband’s counsel, I find that a more appropriate amount of income to be imputed to the wife would be $20,000.00 annually.

[68] For the past three years, the children have been in the primary care of the father and the majority of the costs have been paid by the father. If that were to continue, then there might be some basis to the husband’s submission that the child and spousal support obligations would be set-off against one another.

[69] However, as I have determined that there should be a more equal sharing of the children’s time with both parents as of January 2014, to ensure that the children have relatively similar financial circumstances in both homes, then the more appropriate financial arrangement is that there should be a set-off of child support payable by each parent and that spousal support should be determined based on this shared parenting arrangement.

[70] Based on the wife’s imputed income of $20,000.00 and the husband’s income of $69,000.00, a shared custody arrangement for the two children and a 10 year marriage, the offsetting amount of child support would be $717.00 per month (based on the applicant owing $306.00 per month and the respondent owing $1,023.00 per month).

[71] On the basis that the wife is able to claim the dependant credit for Courtney and the husband claims the dependant credit for Samantha, the range of spousal support on this scenario is $455.00 per month at the low end; $704.00 per month in the mid-range; and $968.00 per month at the high range. The Spousal Support Advisory Guidelines suggest that the spousal support is payable for a minimum duration of five years and a maximum duration of 10 years from the date of separation.

[72] The parties have been separated for three-and-one-half years. Although the husband has not paid any spousal support in that period of time, he has assumed the entire financial responsibility for the children as well as having the children in his care the majority of the time. Nothing will be gained by making retroactive support orders based on a very different fact situation that will begin to exist following the release of this decision. I would also note that the husband has paid the majority of the costs associated with the parties’ personal and business bankruptcies. While he has also maintained the expenses of the matrimonial home, I do not attach much weight to that, as he has also had the benefit of remaining in continuous possession of same and the wife agreed to transfer her interest to him.

[73] In the final analysis, the husband does have an obligation to provide for the support of the wife. If, as suggested by the husband, no support were to be paid, he would then be left with the majority of the net disposable income leaving too great a disparity between the two household incomes. The wife being left with less than 30 per cent of the net disposable income (using the husband’s Divorcemate calculations) cannot be justified in a 10 year marriage situation. With spousal support being paid in the amount of $455.00 per month (which is at the low end of the range), a situation closer to parity between the net disposable incomes will be achieved and will provide similar financial positions in both homes.

[74] The wife has an obligation to make reasonable efforts to provide for her own support and to provide for the support of the children. To date, she has not done so and she must make a better effort to make a financial contribution. With a set schedule for the time the children will be spending with her, it is expected that more hours can be obtained in the cleaning business or elsewhere. In all of the circumstances, it is appropriate that the spousal support be time limited and taking into consideration the wife’s age, job skills and parental responsibilities, she will have two more years to attain full self-sufficiency after which time the spousal support will cease.

Court Order

[75] After considering the factors in this case, and the time sharing arrangement for the children that has been ordered, the following support orders are made:

1. Commencing February 1, 2014, the respondent shall pay to the applicant child support for two children in the amount of $717.00 per month. This is based on an equal time sharing arrangement and applicant’s imputed income of $20,000.00 (child support of $306.00) and the respondent’s income of $69,000.00 (child support of $1,023.00).

2. Commencing February 1, 2014, the respondent shall pay spousal support to the applicant in the amount of $455.00 per month, to be paid for a two year period ending January 31, 2016.

3. SDO to issue.

Costs

[76] If the issue of costs cannot be resolved, I direct that the party seeking costs shall deliver written submissions to my chambers within 15 days of the release of this judgment with responding submissions to be delivered to my office within 15 days thereafter. The written submissions are not to exceed three typewritten, double spaced pages, excluding the Bill of Costs and Costs Outline. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

___________________________

MacPherson J.

Released: January 7, 2014

COURT FILE NO.: 695/10

DATE: 2014/01/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LISA MARTINS

Applicant

- and -

PAUL GEORGE MARTINS

Respondent

REASONS FOR JUDGMENT

MacPherson J.

Released: January 7, 2014