COURT FILE NO.: F1295/13
DATE: 2014-12-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jeffrey John Todoruck
Applicant
Self-Represented
— and –
Sonya Jacqueline Todoruck
Respondent
David Sherman, Counsel for the Respondent
HEARD:
November 24, 25, 26 2014
REASONS FOR JUDGMENT
[1] The applicant father brings this application in reply to vary the joint custody arrangements for the parties’ three children under a separation agreement between them dated November 30, 2012. He now asks for shared custody for 50% of the time and that his child support obligations be terminated because of that.
[2] The respondent mother in her responding divorce application asks, in addition to the divorce, that the applicant pay her child support for the three children in accordance with the Child Support Guidelines (CSG). Her position is also that the existing joint custody arrangements and the children’s time spent with the applicant continue but that she now be given final decision-making authority regarding the children’s medical and educational issues.
Factual Background
[3] The parties were married on September 18, 1999, and separated on November 7, 2012. They have three children Maggie, 12; Liam, 10; and Ethan, 9.
[4] The evidence confirms that there was no reconciliation since then nor possibility of reconciliation of the parties. The respondent’s application for a divorce is accordingly granted.
Separation Agreement
[5] The parties initially separated in May 2012 with their final separation in November 2012 when the applicant was asked to leave the matrimonial home. They had discussed in detail the terms of settlement of their financial affairs on several occasions before the final separation.
[6] The respondent prepared the terms of the separation agreement on her own with the applicant then making some changes to which the respondent agreed. The applicant completed the statements and values of their assets (with the exception of the parties’ pension plans) they would each retain which were then attached as a schedule to the agreement.
[7] Both parties agreed on the settlement terms without the benefit of any expert valuations of their assets they were keeping including their pension plans. Essentially, the applicant released to the respondent his interest in the matrimonial home and in her furnishings, vehicle and pension plan. The respondent released to the applicant her interest in the family cottage and in his vehicles and pension plan.
[8] The respondent’s lawyer reviewed the agreement she had brought to him and he witnessed their signatures on November 30, 2010 after the applicant was told to obtain independent legal advice which he declined.
[9] The agreement also dealt with the issues regarding the children by confirming that the parties would have joint custody of the three children with their primary residence being with their mother, the respondent. The agreement stated that the children would reside with their mother during the school year from Sunday at 7pm until Friday at 3pm unless otherwise negotiated by both parents. The agreement stated that the “children may visit father at school and father may visit children. Transportation for extracurricular activities will be shared.”
[10] In addition to other incidental access terms including March break, holidays and other dates, summer vacation was to be split 50-50 between both parents.
[11] The agreement, in addition, required the applicant to pay the respondent $750 in total child support and acknowledged the child support provisions did not reflect the applicant’s obligations under the CSG. The agreement stated that the parties agreed that the respondent was receiving a greater net worth of $38,408 and that each would pay for the debts associated with the assets they were dividing. Both parties acknowledged that the difference in pension values would be waived to offset the difference in the split of their assets and debts in conjunction with the agreed child support.
[12] The agreement also stated that the $750 per month in child support payment was lower than would be expected as both parties agreed to the sharing of extracurricular activities.
Applicant’s Claim for Shared Custody
[13] The applicant stated he initially sought a 50-50 sharing of time with the children before entering into the agreement. That was not contained in the separation agreement and the applicant in fact agreed to having and has had the children reside with him since the separation every other weekend from Friday evening until Sunday evening and after school until approximately 7pm on average one day during the week. He came by the respondent’s house after separation for only one month to see the children after school but has not since.
[14] He initially brought this application in August 2013 only to try and stop the respondent from moving from the matrimonial home to another area of Hamilton that would result in the children changing their schools and living farther away from his residence. In particular, he did not then ask for a change to a 50-50 shared custody arrangement.
[15] The respondent then served her answer which included a claim that he pay CSG support for the children and that she have sole decision-making authority under the existing joint custody arrangements. It was only then that the applicant for the first time now asked for shared custody on a 50-50 basis.
[16] The respondent confirmed with the applicant this past spring that she would not move to the other side of Hamilton but was purchasing a house only a short distance away from the matrimonial home. She in fact did move this past July to another house in which children now each had their own bedrooms which the parties had wanted since before separation and a backyard pool for the children’s recreation while with her as she no longer had access to the family cottage with them. Her house is only five blocks away from the applicant’s present residence rather than the original two blocks. The children have remained in the same schools as before the separation albeit they have somewhat of a longer walk to school.
[17] The applicant served a Notice of Withdrawal of his application “out of desperation”, in his words, on the respondent in March 2014. He wanted to stop all of the proceedings including by reasonable inference, the respondent’s claims for CSG support and sole decision making authority after he learned that she wasn’t going to move some distance away. However, he then said he did so in error and didn’t know what he was doing. The respondent’s claims would obviously not be stopped as he thought and he did not file the notice of withdrawal.
[18] He now claims joint custody with the children with his having shared custody on a 50-50 basis suggesting that the current custody arrangement is not working.
[19] Although he suggested he had difficulty exercising his midweek access on three or four occasions in the last two months, he only pointed to one specific example of that when he had texted the respondent that he was coming that day for the children. The respondent indicated that she had made a mistake or forgot about his request because of the stress of her move to her new house with the children. On his arrival, she advised the respondent of that and apologized and the applicant was still able to exercise his access that time and the other times.
[20] He suggests because she no longer has a land telephone line, that somehow makes his access to the children difficult. However, the children share their own cell phone and the respondent has her own cell phone and there is no merit to that position.
[21] He admits the separation agreement allows for the children to visit him whenever they want. It appears clear that the applicant would like them to come more often than they have been but there was no suggestion on the evidence that that was because of or related to the respondent’s actions. In fact, the evidence is clear and uncontradicted, which I accept, that she has always encouraged the children to go with their father and she wants them to maintain a good relationship with him.
[22] The applicant presented no evidence as to why it would be in the best interests of the children that his access to the children should increase from the time he now regularly has with them every other weekend and once during the week. He admitted that he has conflicts with the children which he notices when they first come over to be with him until, in his words, they realize there are different rules in his house and they then get along well.
[23] He admits that the children are all doing well in school which is confirmed by the respondent. He suggests that Maggie and Ethan’s circle of friends have changed because of their move. That may be but the evidence from the respondent, which I accept, is that they now have new neighborhood friends in addition to their previous friends which is good for them.
[24] He suggests that all three children have anxiety issues. That does not mean there should be a change in the present joint custody arrangements as, according to the respondent, those anxiety issues that arose from the separation of the parties have since improved and settled down.
[25] The applicant presented no expert evidence from a child psychologist or counselor or input from the Office of the Children’s Lawyer on behalf of the children to suggest how the children’s best interests would be served by significantly increasing their time with their father. No evidence was presented from or on behalf of the children regarding their wishes.
[26] The applicant states he is a good father and is entitled and deserves to spend equal time with his children although he agreed on the parties’ separation to having them only on alternate weekends.
[27] The respondent confirmed that their agreement that the applicant would have the children on alternate weekends was worked out according to both of their respective shift work schedules. The applicant worked every other weekend and because of his shiftwork and hers, the children would always be with one of the parents each weekend, including for their extracurricular weekend activities. That arrangement makes perfect sense and in fact has been the case, including the applicant having the children one day after school until 7pm during the week for the last two years.
[28] The respondent, since separation, has regularly advised the applicant in advance of the children’s medical, dental and educational meetings. He has attended for some of them but he only saw the child Liam’s psychologist once in 2013 and then disagreed with his assessment of Liam’s condition and with his proposed medication treatment for it.
[29] Since separation, he continues to live in his parents’ small house with them. The children do not have their separate rooms at that residence. The applicant has no specific or definite plans to purchase suitable accommodation for him and his children but since separation chose instead to buy a property adjacent to his cottage in northern Ontario.
[30] The respondent wants the children to continue to have a good relationship with their father who she admits is a good father to them. The present custody arrangements are working well notwithstanding their both working shift work. The respondent’s stepfather, who resided with their family prior to separation since 2003 and provided for the children’s care, has continued to reside with the respondent and the children since separation. He still provides care and supervision of his grandchildren until she returns from work.
[31] The evidence from both parties is that the children appear to be doing well on the existing custody arrangements although the parties have their differences in how to provide parenting for the children including discipline. The respondent has attempted since separation to include the applicant in discipline issues of the children. However, both parties, to their credit, at various times since separation have been able to discuss and agree to changes in the times they spend with the children to accommodate the other’s plans and vacations and it appears they will continue to do so in the future.
[32] The applicant has relatively minor complaints that the respondent was not complying with the separation agreement by not offering him access to the children when she was away for more than three hours, i.e. from the time the children got out of school until she arrived home from work at 8pm and that she signed the children up for summer and weekend sports activities which interfered with his being able to go to the cottage with them. However, the evidence at trial was that he never did ask to have the children since separation during those times and that he did attend the children’s sporting events which were good for them as any caring parent would.
[33] The applicant had alternate plans for shared custody. Presently, he resides in his parents’ house and has a girlfriend who he says can help with childcare.
[34] Firstly, he suggested that each parent would have the children on alternate weeks equally. That would pose considerable difficulty for both parents as they work different days and evenings of shiftwork in their jobs. In particular, the respondent would at times throughout the year not see the children at all during her week with them unlike the present arrangements that have existed for 2 years now. The children, while the applicant worked, would be left with the applicant’s parents or perhaps his girlfriend. His parents were present in court during the trial but neither they nor the applicant’s girlfriend gave evidence at trial to confirm their ability and willingness to provide this child care assistance. That proposal would not provide stability for the children and in fact would be disruptive to them.
[35] Alternatively, he provided a schedule of his time with the children proposing his having the children on various days during the week and on weekends when he wasn’t working. He admitted that this proposal only accommodated his shiftwork schedule and did not consider at all the respondent’s work schedule and that her actual time with the children would be difficult because of it. In addition, he provided no details of any proposed pick-up and drop-off times.
[36] The applicant after separation only stopped in periodically for the first month to see the children at the matrimonial home and has not done so since. The respondent encouraged the children to see the applicant’s parents but the children chose not to go to see them or the applicant as often as the applicant would like. The evidence at trial was that the paternal grandparents have no relationship with the respondent despite the respondent’s efforts to maintain one since the separation.
[37] The respondent’s plan for the children is to continue with the existing joint custody arrangements because of the shiftwork of both parties with the applicant having the children on his weekends off every other weekend plus one day during the week after school until the early evening. The children’s grandfather who has cared for them in the home since 2003 in her absence at work would continue to do so. She only asks that the times during the week be specified well in advance for continuity so that the children would know for their benefit. The summer access would also be specified so that parties have equal access for two weeks at a time throughout the summer.
[38] She now asks for an order that she have sole decision-making authority over medical and educational issues for the children in the event the parties cannot agree. The evidence at trial was that there was only one instance since separation that may have been a concern on that issue. The second child Liam was diagnosed by a psychologist of having ADHD who recommended medication treatment. The parties discussed that and the respondent wanted the treatment and that the school be advised to enable Liam to have additional resources.
[39] The applicant did not initially agree with the diagnosis and did not agree with the medication treatment because of the side effects of the drug proposed. After a number of months without the drug treatment, Liam’s condition improved and the evidence suggested that the psychologist agreed that the medication treatment may not have been necessary.
[40] There was no other evidence at trial that the parties had been unable to reach an agreement after thoughtful and reasonable discussions regarding medical treatment of their children. The children have been able to attend the same schools since before the separation and there is nothing to suggest that they would not be able to agree on their educational issues in the future.
Analysis on Change in Custody
[41] The parties have agreed to joint custody of the children in a separation agreement. In considering the application of the father, the separation agreement must be examined to determine if it is consistent with the overall objectives and values in the Divorce Act. The court must then consider what is in the best interests of the children while at the same time considering the importance of the parents’ autonomy in reaching their own agreement. Miglin v. Miglin 2003 SCC 24, 2003 1 SCR 303; Blois v. Gleason 2009 23109 (ONSC); Heard v. Heard 2004 ABQB 75, [2004] A.J. No. 105.
[42] Although the parents’ agreement with respect to post-separation childcare arrangements are entitled to great weight, the court is not bound to give effect to the custody agreement if the agreement does not promote the child’s best interests. L.(A.) v. K.(D.) ( 2009 ) 2000 BCCA 455, 9 RFL (5th) 341 (BC CA) and (2009) 2000 BCCA 633, 11 RFL (5th) 158.
[43] As a practical matter, a parent who has agreed to a child care arrangement should be prepared to explain why what he or she felt was appropriate earlier on is no longer appropriate. Summers v. Summers [1999] O.J. No. 3082. In essence, a parent who seeks to overturn a reasonable custodial access agreement entered into at the time of separation should be prepared to prove the agreement is no longer reasonable and how his or her proposed arrangement better meets the best interests of the children.
[44] One of the factors under s. 16 (10) of the Divorce Act the court must consider is that the children should have as much contact with each other as is consistent with their best interests. The applicant father believes he is “entitled” to or “deserves” equal time with the children but the only test under the Divorce Act is the best interests of the child. Parental preferences and “rights” play no role in the issue of custody and access and despite the maximum contact principle, contact is to be restricted if it conflicts with the child’s best interests according to the evidence of the case viewed objectively. Young v. Young 1993 34 (SCC), [1993] S.C.J. No. 112.
[45] As the facts noted above indicate, the children are doing well under the existing custody arrangements including in school and on a personal level. The present time-sharing of the parents with their children under the joint custody arrangements has been in effect since the date of separation in November 2012. It accommodates the shiftwork schedules of both parents and also the children’s attendances at school and extracurricular activities during the week and on weekends to the benefit of both parents and the children.
[46] The parties have been able to agree and no doubt will be able to continue to do so in the future to any changes in the time spent with the children to accommodate the other’s plans.
[47] The applicant led no evidence, expert or otherwise, that a change in the joint custody and time-sharing arrangement of the parties with their children in effect since their separation in November 2012 would be in their best interests. Both of his two proposals in fact would interfere with the children’s continued living arrangements with their mother during their school week which now provides stability and continuity for them and would only appear to satisfy the applicant’s shiftwork schedule.
[48] Although the applicant states his claim for shared equal custody now has nothing to do with the issues of child support, it is not insignificant that he only brought that claim after the respondent in response to his application commenced her claim for child support under the CSG and for decision-making authority. That appears to be consistent with the position he took on separation, noted below, that if the respondent claimed more child support than what he was prepared to pay, he would claim equal shared custody of the children which would eliminate his child support obligations and which he knew would upset the respondent who wanted the children to spend most their time with her during the school week.
[49] The parties, to their credit and in the best interests of the children, for the last two years have been able to work out issues regarding the children pursuant to the joint custody arrangements that they both agreed to in the November 2012 separation agreement. There have been difficulties at times which are not unexpected but the parties were able to work through them and communicate with each other through social media and texting to minimize the friction between them. The parties’ disagreement on one issue regarding the medical condition and treatment of their son Liam resolved itself. There have been no concerns with respect to the educational issues for the children to date and is no evidence that some are contemplated in the future.
[50] The separation agreement specifically provides that when the children are in the care of each parent, that parent is responsible for any medical care the children may require and that upon an emergency, the other parent will be informed as soon as possible. They agreed that they each have the right to obtain information pertaining to the children from their doctors, dentists and at school and that the school staff would notify both parents as soon as possible in an emergency.
[51] Both parents can attend medical and dental appointments which the respondent would primarily book in advance and she would contact him so that he could attend if he wished to. They agreed to keep the same family doctor for the children.
[52] I am not satisfied on the evidence before me that it is in the best interests of the children to change the terms of the joint custody arrangements and time spent with the children that the parties have had since their separation in November 2012. In fact, the existing terms of the separation agreement appear to clearly be in the children’s best interest at this time. Despite the conflict between the parents at times which fortunately is not highly acrimonious and which they themselves recognize can be reduced by communicating by text or social media, both parents are competent and caring and each have a loving and close relationship with the children. They appear to have been acting throughout in putting the best and real interests of the children above their own in particular regarding their medical and educational needs.
[53] The respondent wishes the joint custody arrangements to continue indicating her willingness to continue to cooperate and communicate effectively with the applicant in dealing with the children’s needs. The parents have been able to communicate and cooperate when it comes to making significant decisions relating to the children and that hopefully will continue in the future.
[54] No doubt the experience of their participation in this litigation and a mutual desire to avoid it in the future will hopefully remind both of them of the need to reasonably compromise and cooperate in dealing with the children’s best interests.
[55] The terms of joint custody agreed to by the parties in the separation agreement will be included in the order of this court subject to grammatical and placement changes and now specifying the regular times spent by the applicant with the children since separation of every other weekend and one day during the week as confirmed in the evidence at trial.
Child Support
[56] The applicant’s evidence was that the respondent on separation did not want any child support from him on his “payment” of the $38,406 equalization amount to her which he stated was more than her entitlement. He said he was the one who insisted that he pay some child support to her initially suggesting $500, then $600, then $750 per month. He admitted there were discussions about her wanting the children to be at home with her with his getting alternate weekends when they discussed this issue of child support.
[57] On this issue, I accept the evidence of the respondent who states that although she initially asked for no child support from the applicant as she wanted the children to live with her, she initially asked for some money to pay some utility bills in her house. She initially suggested $400 per month and the applicant then suggested $600. She was under significant stress because of their separation and was not really thinking clearly of her financial needs. On reflection, she then requested $900 per month which worked out to $300 in child support for each child. The applicant, however, refused to pay that amount saying he would only pay $750 total. Otherwise, he would insist on his having the children 50% of the time which would result in no child support payable by him or perhaps very little at most. The respondent agreed because she wanted to have the children live mostly with her and primarily with her during the week.
[58] The separation agreement states that the parties recognized that the child support provisions in the agreement did not reflect his obligations under the CSG and that the $750 per month in child support was lower than what would be expected as both parties agreed to a sharing of extracurricular activities.
[59] The agreement further provided that both parties agreed to this exchange of money as part of the agreement including the three-page balance sheet attached which showed that the respondent was to receive a greater net worth of $38,408 and that each would pay the debts associated with the assets they were dividing. They acknowledged the difference in pension values would be waived to offset the difference in the split of assets and debts in conjunction with the agreed child support.
[60] Under section 15.1 (3) of the Divorce Act, the court making an order for child support shall do so in accordance with the CSG. Notwithstanding that, the court under s. 15.1 (5) may award an amount that is different than the amount that would be determined in accordance with those guidelines if the court is satisfied:
a) that special provisions in a written agreement respecting the financial obligations of the spouses, or the division or transfer of the property, directly or indirectly benefits the child or that special provisions have otherwise been made for the benefit of the child; and
b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.
[61] The applicant earned $90,931 in 2011; $97,700 in 2012; and $91,782 in 2013. He earned $7,648.50 per month in 2014. The respondent concedes that the higher 2012 income was exceptional because of one-time extra overtime and retroactive pay received that year and that the appropriate income to determine 2013 and 2014 child support is a figure of $92,000. I agree with that assessment for those reasons.
[62] Accordingly, he ought to have paid $1,717 per month under the CSG. He paid only $750 per month, i.e. $967 per month less than what he should have.
[63] The applicant has not established on the evidence his entitlement to pay significantly less child support to the respondent after separation than what the CSG require for the following reasons:
[64] Firstly, the applicant knew his pension plan from his employer was worth in excess of $300,000 at the time of separation and was told that the respondent’s pension was worth no more than $225,000. No valuations of their other assets including the matrimonial home and cottage were obtained and there was no documentary evidence at trial provided to confirm that the respondent on the division of the assets in fact received any more than what she was otherwise entitled to by way of an equalization payment.
[65] In addition, depending on what the proper evaluations were of their respective pensions, there is the potential that the respondent may have received less than what she was in fact entitled to in order to equalize their net family property. The applicant’s evidence that he cannot provide documents to support the valuations of the assets at the time separation is simply not reasonable or credible as he admitted, for example, still having a statement confirming the value for his employer’s pension plan but which he did not provide in evidence. The valuation of the respondent’s pension on separation could likewise easily have been obtained.
[66] Secondly, the applicant believed his child support obligations at the time of separation was in the $1,500 per month range and knew he was going to pay significantly less than the CSG amount. He stated he did not know either how long he would be paying the $750 per month amount. When asked in cross-examination how his not paying $12,000 per year less than his child support obligations to the respondent could benefit the children, his only answer was that the children would benefit by being with him more.
[67] The applicant has not established that the separation agreement includes a “special provision”, i.e. one that is out of the ordinary or unusual, replaces the need for ongoing child support and benefits the children. What is critical is whether the provision objectively benefits the children and an important factor to consider is how the level of support in the agreement compares to the support that would otherwise be required under the CSG. Quinn v. Keiper [2007] O.J. No. 3643. Even if the property settlement term was a “special provision”, the applicant has not established that the applicable CSG support would result in an amount of child support that would be inequitable.
[68] In this case, the child support paid by the respondent is substantially less than the CSG amount. The applicant offered no evidence as to how the division of the parties’ assets as it did somehow replaces the need for ongoing child support for the benefit of the children. The fact that the children remained in the matrimonial home with the respondent mother after the asset division between the parties is not significant given that the applicant retained the family cottage as he wished and it made no sense for the parties to sell all of their properties and divide the proceeds between them.
[69] In addition, the parties in the separation agreement agreed that they will share equally in the extracurricular activities of the children which would be discussed between the parents prior to enrollment and that each parent’s contributions would not exceed $500 per year per child. That equal sharing of those activities is nothing more and perhaps even less than what the applicant’s responsibilities would be under the CSG given the respective incomes of the parties. The respondent earned $87,628 in 2011, $79,395 in 2012, and $84,606 in 2013.
[70] Thirdly, the applicant also said that the CSG were not a rule without exception but were only there as “guidelines” meant for people who don’t have a role or share responsibility in their children’s lives, i.e. they don’t apply to him in this case and the respondent voluntarily signed the agreement. He also questioned the respondent’s motives for now claiming increased child support suggesting it wasn’t purely for the benefit of the children. The example he gave was her move to another house not that far away. However, that house provided for separate bedrooms for the children which the parties in fact had discussed and wanted before separation, as well as a pool to provide for the recreational activities while with the respondent as she no longer had access to the family cottage.
[71] He is clearly wrong in law in that belief which unfortunately may somewhat explain his actions and behaviour towards the respondent and his failure to provide proper child support to date.
[72] The respondent claimed child support under the CSG payable by the applicant from September 2013, the month immediately following the date she filed her answer in August 2013. K.C. v. S.B. 2003 2437 (ON SC), [2003] O.J. No. 1124. I find that she is entitled to child support in accordance with the CSG since September 1, 2013, at the rate of $1,717 per month based on his 2013 and 2014 income each year of $92,000 as established on the evidence on this hearing. The applicant is entitled to credit for the monthly support payments he has made of $750 per month against those payment obligations.
Section 7 Expenses
[73] The applicant admits that the respondent, after she discussed it with him, enrolled Liam into hockey in September 2013 to which he objected because he was already enrolled in football. He admitted that Liam’s playing hockey has been good for him and especially his self-esteem which has improved but he refused to pay for any of those 2013-2014 hockey expenses. This was even though Liam gave first priority to his football sessions until they ended in the fall of 2013 and the applicant in his submissions admitted he went to Liam’s hockey games after that. He should have paid one-half of those expenses for the registration, power skating and equipment as required under their separation agreement which required discussion only first, which occurred, but not agreement as a precondition as stated by the applicant.
[74] The applicant denied that the respondent communicated with him asking for his contribution to other section 7 expenses for the children. However, I accept the evidence of the respondent that that was not the case and that she kept records of the extracurricular expenses including which ones he contributed to and which ones he did not.
[75] The total section 7 expenses incurred by the respondent for which the applicant has not contributed including hockey expenses, passports and passport photos, horseback riding lessons for Maggie in 2013 in 2014 total to date $2,711.31. His required contribution is $1,355.65. The respondent concedes the applicant incurred extracurricular expenses for the children totaling $900 for which she is required to contribute $450 leaving the balance owing by the applicant to the respondent of $878 as section 7 expenses for 2013 and 2014.
[76] The separation agreement provides that the parties will share equally in the post-secondary education costs of each child. That agreement was obviously made before this order which significantly increases the applicant’s regular monthly child support payments. The appropriate amount of child support for each child reaching the age of majority and while attending a post-secondary school depends on a number of factors including the actual education costs, the ability of the child to contribute towards those costs from all sources, the residence of the child while attending post-secondary school as well as the respective incomes and ability to contribute towards those costs by the parents. Accordingly, it is appropriate that the agreement of the parties to contribute equally towards the child’s post-secondary school education costs be maintained but subject to a right of review of the applicant’s child support obligations for the child when the child reaches the age of majority and attends post-secondary school, taking these and other relevant factors into account at that time.
Conclusion
[77] The court grants the following order:
- Jeffrey John Todoruck and Sonya Jacqueline Todoruk who were married at Hamilton, Ontario on September 18, 1999 be divorced and that the divorce takes effect 31 days after the date of this order.
Custody
The parties shall have joint custody of the children Maggie Summer Todoruk, born January 22, 2002; Liam Dennis Todoruk, born December 29, 2003; and Ethan Carl Todoruk, born October 23, 2005, with their primary residence residing with the respondent mother. The children will reside in their primary residence with the respondent during the school year from Sunday at 7pm until Friday at 3pm unless otherwise negotiated by both parties. The children may visit the applicant father afterschool and the applicant may visit the children.
The children shall spend time with the applicant on alternating weekends commencing Friday afternoon after school until Sunday evening at 7pm. In addition, the children shall spend time with the applicant father one day during each week from after school until 7pm with the applicant being required to notify the respondent at least one month in advance of his proposed schedule to see the children during the week.
The summer vacation of the children will be split 50-50 between both parties. The parties will communicate his or her availability for summer vacation with the other as soon as it is available so that they can work together in the best interests of the children. “Summer” is defined by the day after the last day the school year until the day prior to the first day of the school year.
The children will spend Mother’s Day with the respondent and Father’s Day with the applicant from the Saturday before at 7pm until Sunday at 7pm.
On the children’s birthdays, the party who does not have time with the child shall see the child for two hours if the birthday falls during the week and for four hours if the birthday falls on a weekend.
The parties shall alternate their time spent with the children or share their time with the children according to their work schedules for Easter and Thanksgiving weekends.
The parties will alternate their time spent with the children to accommodate both of their respective work schedules for March break vacation.
The parties will spend time with the children on Christmas day from 7:00 am to 1:00 pm or alternatively, 1:00 pm to 7:00 pm each year.
Neither party shall discuss adult issues with the children and shall make every effort to insulate and shield the children from any conflict that they may be experiencing with each other.
Both parties shall support the children’s relationship and affection ties with the other party and with extended family members.
Both parties shall arrange for counselling for all of the children in order to assess them and their emotional needs for dealing with the divorce of the parties which counselling will cease if the child is opposed to its continuing after attempting three sessions.
The children will be able to enjoy private unlimited telephone contact with each party and neither party shall restrict the child from contacting the other party. In the event that the party is unavailable, he or she will endeavour to assist the child in calling the other party as soon as possible.
Each party will be able to contact the children once per week when the children are not in his or her care.
When the children are in the care of either party, that party shall be responsible for any medical care which the child may require. In the event of an emergency, the other party shall be informed as soon as possible. The parties agree that school staff and other family members shall be responsible for notifying both parties of any emergency as soon as possible when the children under their care.
Both parties can attend medical/dental appointments for the children and the respondent shall be responsible to primarily book all physical examinations and regular dental appointments for the children. Both parties shall have the right to obtain information pertaining to the children from third parties including doctors, dentists and schools.
The parties shall maintain Dr. B. Khambalia and Pathways Dental Centre as the children’s family doctor and dentist respectively.
The parties agree that in the event he or she is unable to care for the children for a period in excess of three hours, they will first offer the other party the option to spend that time with the children.
The children’s clothing shall be shared between the parties’ homes.
The parties shall supply a notarized letter to give the other party permission to travel with the children outside of Ontario. Both parties shall sign any necessary forms to expedite the renewal of the children’s passports with the respondent to be responsible to ensure they are kept up-to-date, the cost of which shall be shared equally between the parties.
The children’s birth certificates, status cards, SIN cards and passports shall be stored with the respondent and the children’s health cards will travel with them.
Child Support
The applicant shall pay to the respondent commencing September 1, 2013, child support for the three children Maggie, Liam and Ethan in the amount of $1,717 per month based on his annual income of $92,000. The applicant shall be given credit for the monthly child support $750 per month paid by him since September 1, 2013. The arrears of child support outstanding as of November 30, 2014, after that credit are accordingly set at $14,505.
The applicant shall pay to the respondent forthwith the sum of $5,000 towards the arrears referred to in paragraph 22 and the sum of $150 per month towards the balance of the arrears commencing January 1, 2015.
Section 7 Expenses
The applicant shall pay to the respondent the sum of $878 for his outstanding net share of the children’s section 7 expenses incurred by the respondent in 2013 and 2014.
The parties shall share equally in the post-secondary education costs of each child subject to a right of review of the applicant’s child support obligations for the child when the child reaches the age of majority and attends post-secondary school, taking into account the actual education costs, the ability of the child to contribute towards those costs from all sources, the residence of the child while attending post-secondary school, the respective incomes and ability by the parties to contribute towards those costs and other relevant factors.
The parties will share equally the cost of all school trips for the children and the respondent may sign any required consents after confirmation with the applicant and vice versa.
The applicant shall maintain the children on his extended health coverage plan as permitted under that coverage. The applicant shall pay the children’s dental expenses using his visa card for which he receives reimbursement from his insurer in his name. Any dental costs in excess of the insurance coverage provided for those dental expenses shall be shared equally by the parties.
The parties shall discuss proposed extracurricular activities for the children prior to enrollment and the cost of those activities shall be shared equally by the parties with each party’s contributions not to exceed $500 per year per child.
The parties shall contribute $10 to each of the children’s bank accounts on a monthly basis.
[78] A support deduction order will also issue.
[79] If either party wishes to advance a claim for costs of this proceeding, the party can do so by providing written submissions of no longer than three pages plus a bill of costs within 10 days of the date of this decision. The other party will have a similar right to provide responding submissions of similar length within seven days of receipt of the other’s costs submissions.
December 11, 2014
The Honourable Mr. Justice R. J. Nightingale