COURT FILE NO.: FS-11-373845
DATE: 20141215
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
sandra zivic
Applicant
- and -
Vukosav Zivic
Respondent
Robert N. Kostyniuk, Q.C., for the Applicant
Evan Chang, for the Respondent
HEARD: September 23, 24, 25, 26, 29, 30 and October 1, 2, 3 and 14, 2014
STEVENSON J.
REASONS FOR DECISION
Introduction
[1] The applicant, Sandra Zivic ("Mrs. Zivic"), seeks custody of the children of the marriage, Branko Zivic ("Branko"), born February 28, 2005, and Vuk Zivic ("Vuk"), born April 26, 2006. She also seeks child support retroactive to February 4, 2011, section 7 expenses, spousal support commencing December 1, 2011, equalization of net family property and costs. At the end of trial in his closing submissions, counsel for Mrs. Zivic indicated that Mrs. Zivic is also seeking lump sum spousal support in lieu of an equalization payment given what he argues is Mr. Zivic’s intention to declare bankruptcy.
[2] The respondent, Vuk Zivic (“Mr. Zivic”), in his Answer, seeks joint custody of the children with primary residence with him or alternatively, access to the children. In his closing submissions, counsel for Mr. Zivic indicated that Mr. Zivic is seeking sole custody or alternatively, joint custody. Mr. Zivic also seeks arrears of child support as he contends the children have been primarily in his care. He also seeks ongoing child support, equalization of net family property and costs.
Background
[3] The parties met in May of 2004 in Serbia where Mrs. Zivic resided. Mr. Zivic was residing in Canada and was engaged to be married to his long-term girlfriend. The parties dated and fell in love during Mr. Zivic’s two-week stay in Serbia. Upon Mr. Zivic’s return to Canada, he broke off his engagement to his fiancée and cancelled the wedding. He subsequently returned to Serbia a few weeks later and the parties were married on June 10, 2004. Mrs. Zivic was 19 years of age and Mr. Zivic was 30 years of age. Plans were made for Mrs. Zivic to come to Canada. Soon after their marriage, Mrs. Zivic found out that she was pregnant. Mrs. Zivic came to Canada on August 14, 2004.
[4] During the marriage the parties had two children. Branko is 9 years of age. He has experienced significant behavioural issues and academic challenges. Branko is enrolled in a special program at school in Toronto. The parties’ second son Vuk is 8 years of age. Vuk was diagnosed with autism (non-verbal) and has been enrolled in many programs to assist him. He is also currently enrolled in a special program at school in Toronto.
[5] When the parties were first married, they resided with Mr. Zivic’s mother at her home in Etobicoke. Mr. Zivic had already arranged to purchase a home in Milton with his then fiancée and mother. The home was subsequently purchased in the name of Mr. Zivic and after renovations, the parties resided there for a short period of time until the property was leased and sold. During the marriage, two more homes were purchased and renovated. During the periods of renovations and for a significant period of time during the marriage, the parties resided with Mr. Zivic’s mother along with the children, and at times, Mr. Zivic’s siblings and brother-in-law. Neither Mr. Zivic nor Mrs. Zivic (nor either of Mr. Zivic’s siblings) has ever paid rent to Mr. Zivic’s mother.
[6] There were many problems throughout the marriage with both parties accusing the other of physical and verbal abuse. Mrs. Zivic states that she was abused by Mr. Zivic’s family and that she continues to be denigrated in front of her children while they are in the care of Mr. Zivic and his mother with whom he continues to reside. Mr. Zivic blames Mrs. Zivic for many of the problems in the marriage.
[7] The parties separated on February 4, 2011 after over 6-1/2 years of marriage. They were subsequently divorced pursuant to the order of Paisley J. dated May 30, 2014.
[8] There are many factual disputes regarding Mr. Zivic’s business(es), income earned by him, and monies that Mr. Zivic or his business(es) received from his mother, Dusanka Zivic (“Dusanka”). There is also a dispute as to whether Mr. Zivic is still operating his business, the value of the business at the valuation date, and whether Mr. Zivic gave funds to his mother to defeat any equalization payment owed to Mrs. Zivic.
[9] The issue of custody is in contention. Pursuant to an order of Czutrin J., dated December 21, 2011, Mrs. Zivic has temporary custody of the children. The parties also do not agree on what time sharing has taken place with the children in the past and what schedule should be implemented in the future.
[10] The Office of the Children’s Lawyer (the “OCL”) appointed a clinical investigator to assist the Court with custody and access issues pursuant to the request of Czutrin J. dated September 11, 2012. Ms. Pauline Flanagan, MSW, RSW (“Ms. Flanagan”) completed an investigation and prepared a report dated March 15, 2013. In her report, Ms. Flanagan recommends joint custody of the children. Mr. Zivic is in agreement with the recommendations of the OCL while Mrs. Zivic is not.
[11] There is also an issue with respect to past child support paid by Mr. Zivic as well as ongoing child and spousal support and other expenses ordered to be paid by Mr. Zivic. Both parties seek to impute income to the other. Mr. Zivic contends that he is not working and that he suffers from depression and anxiety.
[The remainder of the judgment continues exactly as provided in the source text.]
minicounsel