Vagadia v. Vagadia, 2015 ONSC 1397

NEWMARKET COURT FILE NO.: FC-12-041668-00

DATE: 20150304

CORRECTED: 20150309

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ELISABETTA VAGADIA

Applicant

– and –

BIRJU VAGADIA

Respondent

Avy Ben-zvi, for the Applicant

Danny Gurizzan, for the Respondent

HEARD: November 17, 18, 19, 20, 24, 25, 26 and 28, 2014

DOUGLAS J.

CORRECTED REASONS FOR JUDGMENT

The text of the original judgment was corrected on March 6, 2015 and the description of the correction is appended

[1] This matter proceeded before me by way of trial from November 17, 2014 to November 28, 2014.

[2] The issues before me are:

(a) the parties’ date of separation for equalization purposes;

(b) custody and access;

(d) spousal support;

(e) the parties’ incomes for the purposes of determining support; and

(f) equalization.

BACKGROUND

[3] The parties were married on June 10, 2005. The Applicant alleges they separated on May 15, 2012. The Respondent alleges they separated on September 19, 2012.

[4] The parties have four children, namely, Alijah, born August 5, 2006, Jeremiah, born January 6, 2008, Abigail, born January 1, 2010 and Gabrielle, born October 12, 2011.

[5] The matrimonial home was sold in March of 2010 producing net proceeds of $138,025.98. The wife received her one-half share shortly after sale. The husband received $15,000 and the balance remains in trust.

[6] Both the Office of the Children’s Lawyer and the Children’s Aid Society have been involved with the parties.

[7] The Office of the Children’s Lawyer prepared a report following which the parties executed Minutes of Settlement dated September 10, 2013. Both parties testified that they were largely content with the terms of the Minutes of Settlement, subject to some modifications summarized at para. 48 below.

CREDIBILITY

[8] In considering the evidence of the parties I must consider the parties’ respective credibilities.

[9] Where the evidence of the parties is materially inconsistent on important issues, I will generally prefer the evidence of the Respondent to that of the Applicant except where the Applicant’s evidence is corroborated. Given the combination of the Applicant’s admitted confusion about the contents of her Financial Statement and her demonstrated carelessness in presenting some of her evidence and her history of dishonesty in relation to representations regarding income for credit application purposes, I consider the applicant’s evidence carefully. I come to this conclusion for the following reasons:

(a) The Applicant often presented as uncertain in her evidence. For example, she could not explain some figures in her financial statements. Omissions from her financial statements were occasionally blamed on her lawyers. When queried regarding discrepancies in her financial statements she said she found it “a bit confusing”.

(b) The Applicant was not careful in her evidence. For example, she accused the Respondent of not including the parties’ joint GICs in his financial statement when in fact he had.

(c) The Applicant has conceded using a “false letter of employment” to support an application for mortgage financing. In other words, she did not only misstate her employment history on the mortgage application, she went further and actually submitted a document prepared for the purpose of deceiving the reader. She justified this on the basis that she needed shelter for herself and the children.

(d) During presentation of her evidence she often avoided answering questions directly, occasionally becoming argumentative with counsel for the Respondent. On occasion she had to be reminded to answer the questions being put to her.

(e) The Applicant alleged cocaine use by the Respondent. Curiously, this allegation was not included in her Application, or affidavits she filed on motions addressing issues of custody and access. This significant inconsistency has not been adequately explained.

(f) In general the Respondent had a much stronger command of his evidence and in particular his income and financial statements. He was patient in presenting his evidence and generally responded directly to the questions put to him. On the whole, the Respondent had a better command of his facts and supporting evidence. He withstood cross-examination favourably. I was given little reason to seriously doubt his credibility save and except as expressly indicated elsewhere in these reasons.

SUPPORT ISSUES

Respondent’s Income

[10] The Respondent is 38 years old. He testified that he has been working in the newspaper business since 12 years of age. In about 2005 he incorporated Strictly Paper Ltd. (“SPL”). Through this business he distributed newspapers for the Toronto Sun pursuant to a distribution agreement.

[11] The most recent distribution agreement was entered into on August 29, 2010.

[12] His income tax returns reveal the following history with respect to his line 150 income:

2009 - $2,014

2010 - $20,713

2011 - $21,187

2012 - $23,657

2013 - $21,379

[13] The Respondent is a high school graduate with no post-secondary education.

[14] He had been working with the Toronto Sun as a wholesale distributor since just after date of marriage. At that time the Toronto Sun was quite in demand but that demand diminished over time with the advent of the internet. He noticed an average annual drop in sales of 10 percent per year. 2013 was his worst year. He has only ever worked in the newspaper business. He has no other experience. He felt trapped in the position.

[15] On September 6, 2014 the Toronto Sun exercised its right to terminate its distribution agreement with SPL. The termination was effective September 27, 2014.

[16] He is currently unemployed. He is seeking part time work. He is returning to school to pursue courses in electronic engineering at Humber College in 2015. In the meantime he has been pursuing part time employment in different positions including courier, glass company driver and home furnishings delivery.

[17] In February of 2013 he made an application for a loan and represented his income as approximately $40,000 per annum. In his evidence he explained that he was anticipating being able to earn that amount over the course of the year but it did not turn out that way.

[18] The Applicant submits that the Respondent’s income is much higher than reported. She refers to the $1,200 per month for the Mercedes truck, $2,459 per month for the mortgage. She also did some bookkeeping, banking and entering of invoices for SPL. She indicated that $40,000 to $60,000 per month went into the business account. There was a substantial cash component. Expenses for the business included drivers amounting to $6,000 every two weeks. There were no office expenses. There was a gasoline expense. The Applicant alleged that the Respondent regularly stole newspapers from the Toronto Sun and submitted claims for stolen newspapers in exchange for compensation. The Respondent denied these allegations and asserted that he had no right to look to the Toronto Sun for any compensation with respect to stolen newspapers. He also denied the Applicant’s allegations with respect to cash income.

[19] Having reviewed the bank statements tendered in evidence in this proceeding and having considered the evidence of the parties, I am not satisfied that the Respondent’s income through September 2014 was dramatically greater than that reported in his income tax returns. The interim order on child support dated January 30, 2013, based upon income for the Respondent of $40,000, was probably close to the mark.

[20] Having said that, all of that evidence is rendered relatively useless given the termination of the Respondent’s distribution agreement with the Toronto Sun effective September 27, 2014.

[21] The trial in this matter took place approximately six weeks after termination of the Agreement and a little over two months after notice of termination was received by the Respondent. This is not a reasonable amount of time within which to expect someone to secure alternate employment, particularly when that person has essentially known no other line of work and does not present as having any readily transferable skills. I have no reason to conclude that the Respondent has a reasonable ability to secure income from an alternate source at this time. While the Applicant has challenged the Respondent’s evidence on termination of his contract with the Toronto Sun, I have no basis on which to reject this evidence.

[22] In the circumstances, I do not have any realistic alternative but to find that the Respondent’s income at this time is zero.

Applicant’s Income

[23] The Applicant completed high school. She has pursued an online course in journalism. She worked in radio sales for eight months in 2004 and 2005 earning $30,000 per annum plus commission. She was employed at Stewart Title in an administrative position for seven months until June 2006 when her maternity leave commenced just prior to Alijah being born. She was earning $32,000 per annum at that time.

[24] She was on maternity leave for one year following Alijah’s birth.

[25] She returned to work when she was four months pregnant with Jeremiah in 2007. She worked for four months.

[26] She commenced her maternity leave for Jeremiah in December of 2007. Her leave lasted one year. She then returned to her prior employment for a period of three weeks and was then terminated.

[27] She was then employed at the LCBO on a contract basis earning $15 - $16 per hour. She was also working for her sister at her sister’s company for two months, part time, earning $15 per hour. She worked for the LCBO for four months in 2009.

[28] She went on maternity leave once again when Abigail was born.

[29] She worked online at home but her ability to do so was restricted given her need to watch the children as well. She did some banking and entering of invoices for SPL. She helped with the business for the period 2005 to 2011 up to the date of separation.

[30] She acknowledged having secured a “fake letter of employment” representing prior employment earning $69,600. She did so as she was “desperate to get shelter for the children”. She acknowledged having lied in a car loan application as well. In the car loan application she represented her income as $48,000 per annum.

[31] The Applicant’s total income confirmed by line 150 of her income tax returns is summarized as follows:

2009 - $11,033

2010 - $15,473

2011 - $ 4,966

2012 - $17,964

[32] The Applicant’s 2013 tax return has not been produced.

[33] The Applicant’s October 2014 Financial Statement confirms her income is $3,368 per month comprised of $1,610 per month from Ontario Works and $1,758 per month from Child Tax Benefits. She is not currently employed. She has been looking for work but day care is expensive and she feels restricted by her child care responsibilities. While in receipt of Ontario Works she is able to earn up to $1,200 per month. She intends to return to work once the children are in school. She is seeking administrative type work. She is currently taking a “PR” course and such employment offers the possibility of flexible hours. The Applicant was not seriously challenged in cross-examination regarding her evidence on income.

[34] In the circumstances I conclude that the Applicant’s income is zero for support purposes at this time.

Section 7 Expenses

[35] This is a divorce application and thus child support issues are governed by the Federal Child Support Guidelines (“the Guidelines”).

[36] The evidence at trial reveals the following special or extraordinary expenses within the meaning of s.7 of the Guidelines:

(a) EpiPens for Abigail and Alijah;

(b) daycare for Gabriel; and

[37] As the parties’ incomes are presently equal they shall equally bear the reasonable and necessary expenses with respect to the above expenses until the parties otherwise agree in writing or the court otherwise orders.

Child Support

[38] The Applicant has primary care of the children. This triggers consideration of the Respondent’s potential obligation for child support pursuant to the Guidelines; however, given my finding that his income is zero, his obligation to pay base child support pursuant to the Guidelines is also zero commencing November 1, 2014.

[39] Given that the parties’ circumstances are in a state of flux, each party shall notify the other in writing immediately upon securing any form of employment, part time or full time including name and address of employer, nature of position and level of remuneration.

Spousal Support

[40] The Applicant indicated during her testimony that she worked for SPL for the period 2005 to 2012 in that she “may have done a cheque here, a cheque there”. Following separation the lifestyle enjoyed by the Applicant and the children diminished dramatically. She sold her jewellery for groceries. She testified that she was struggling financially. A more fulsome summary of her evidence on her income is set out above regarding my analysis of the income issues. The Applicant’s submissions are predicated upon a “needs” model of spousal support.

[41] It is the Respondent’s position that neither party is entitled to spousal support. Both parties worked during the marriage and earned the same amount roughly. Currently he is unemployed and cannot afford to pay either spousal support or child support. He acknowledged that $2,700 to $5,000 in arrears may be owing to the Applicant mother regarding child support under the interim order. In an email from the Applicant to the Respondent’s lawyer dated April 24, 2013 the Applicant says: “Going forward, I have decided to not pursue spousal support but would like your client to pay child support based on an annual income of $75,000. That being said, it is no longer relevant how I was able to get a mortgage for my home”.

[42] Section 15.2(1) of the Divorce Act provides as follows regarding spousal support:

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

[43] According to s.15.2(4) I must consider the condition, means, needs and other circumstances of each spouse, including the length of cohabitation, the functions performed by each spouse during cohabitation and any order, agreement or arrangements relating to support of either spouse.

[44] According to s.15.2(6), an order for spousal support should:

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

CUSTODY AND ACCESS

Minutes of Settlement

[45] As indicated earlier, both parties are largely content with the Minutes of Settlement executed by the parties with the assistance of the OCL and participation of their counsel on September 10, 2013.

[46] The Minutes of Settlement provide that effective September 18, 2013 the parties agree as follows:

(1) Mother shall have sole custody of the children.

(2) Father shall have unsupervised access as follows:

a. Alternate week-ends commencing September 27, 2013 from Friday after school until Monday prior to the start of school promptly (such exchanges shall take place at the school).

b. Mid-week on Wednesdays after school until 7:00 p.m. on Thursday starting September 18, 2013.

c. In the event of a non-school day, exchanges shall take place at a public place, namely, inside McDonald’s at Albion/Kipling, unless the parties mutually agree otherwise.

d. There shall be no adjustment to the above schedule due to professional developments day or holiday Mondays.

e. Father shall have one week of uninterrupted summer access during the month of July and a second uninterrupted week during the month of August.

f. Either Alijah and/or Jeremiah shall be with their father (at father’s discretion) for three full days prior to the start of each of the one week access visits in July and August. The father shall select the holiday dates by May 1 of each year.

g. Father shall not remove the children from the Province of Ontario unless the father provides notice with a detailed itinerary of the proposed trip and mother consents to the trip, such consent not to be arbitrarily or unreasonably withheld by mother.

h. Mother’s Day shall be with mother and Father’s Day shall be with father.

(3) Father shall attend and complete a parenting course and provide mother with proof of completion, such course may include focus on fathers.

(4) Either father or mother may designate an appropriate person to assist in the exchange for access purposes.

(5) Mother shall arrange for Alijah to be enrolled in any services recommended by the school to assist Alijah concerning any issues addressed by the school.

(6) All religious holidays shall be shared equally by both parents.

(7) The children shall each have their own beds in the respective homes of mother and father.

(8) Neither parent shall discuss past history or future incidents of any police involvement, medical issues of the parents or sensitive adult matters in the presence of the children.

(9) Father shall have direct access to the children’s health and education records and information. Mother shall co-operate by signing any necessary consent forms or authorization forms to facilitate father’s access to such records and information.

(10) The parties agree to incorporate the above paragraphs into either a consent final order dealing with custody/access or a written separation agreement, or both.

[47] Despite the provisions of para. 10 of the Minutes above, neither party took steps to secure an order incorporating the terms of settlement and they did not execute a written separation agreement; however, these issues are before the court and resolution thereof is subject to approval by the court. Notwithstanding the parties’ agreement, which does not bind the court, I am satisfied that I have jurisdiction to adjudicate some of the lingering issues in relation to custody and access. I note that while the Respondent is the party advancing most of the requests to modify the terms of the parties’ agreement, the Applicant also advances a request to modify the terms regarding Christmas access. Thus neither party is treating the Minutes as finally binding on all issues referred to therein.

The Issues

[48] The only issues identified by the parties in relation to custody and access are as follows:

(a) The Respondent wishes his mid-week access with the children to change from Wednesday to Thursday, to Wednesday to Friday. The Applicant opposes this and proposes that the Respondent have access three weekends out of every four, Friday at 5:00 p.m. to Sunday at 7:00 p.m.

(b) The Respondent proposes parallel parenting in that he will decide medical issues and the mother will decide school issues. The Applicant wishes to retain sole custody.

(c) The Respondent seeks mutuality regarding non removal of the children from Ontario. While the Applicant’s submissions do not comment on this I presume she is opposed to it as being inconsistent with her claim for sole custody.

(d) The Respondent proposes structured Christmas access, with the children being with the Respondent noon December 24 to noon December 26 in odd years and with Applicant in even years, and further the children being with Respondent noon December 31 until noon January 2 in even years and with Applicant in odd years. The Applicant proposes that in even years the children be with Respondent Christmas Eve and New Year’s Eve and in odd years on Christmas Day and New Year’s Day.

(e) The Respondent proposes that both parties shall respect the rules and routines of the other’s household, unless a child protection issue arises. The Applicant took no position in her submissions.

(f) The Respondent proposes that neither party shall enroll the children in extracurricular activities that might interfere with the other’s care and control of the children, without the other party’s prior consent or court order. The Applicant took no position in her submissions.

(g) The Respondent proposes that both parties have full and direct access to all medical, academic and other information regarding the general welfare of the children. The Applicant took no position in her submissions.

(h) The Respondent proposes that neither party make disparaging remarks about the other in the presence of the children, nor permit third parties to do so. The Applicant took no position in her submissions.

The Evidence

[49] The Office of the Children’s Lawyer prepared a s.112 report and same was received in evidence (“the Report”). It is dated November 5, 2013 and thus the observations contained therein are somewhat stale. The mother was observed with the children and she “did seem to successfully address any of the children’s concerting behaviour in a firm yet gentle manner, and they appeared to respond her well”. Regarding the Respondent’s time with the children, the Report indicated that “Alijah and Jeremiah seemed to dominate their father’s time”. There was quite a bit of “chaos”. The Respondent “tried to address the fighting between Jeremiah and Alijah; while he was quick to tend to Alijah when Alijah initially started crying, Jeremiah successfully lured his father away …”, and further “watching Jeremiah upset his sibling without consequence from his father appeared to leave Alijah very frustrated”.

[50] The Report confirmed that Alijah and Jeremiah both clearly state that their preference is to live with their mother. Further, during their private interviews, both boys expressed their frustration with their father, and their reluctance to spend time with him. The children were all observed to be comfortable in the company of both parents. Both parents were observed redirecting the children’s behaviour or disciplining them in a firm yet kind manner, and the children responded well to both of their parents.

[51] In the year following separation Alijah’s behaviour in the classroom deteriorated severely. Jeremiah’s behaviour deteriorated also, but not at school. Concern was expressed regarding the Respondent blocking the school in providing Alijah with “much needed resources”. The Applicant had addressed the children’s health needs and tried to manager their allergies. She worked hard to provide the children with a positive and supportive home environment. Since separation however the parties’ rapport has been very hostile. The Respondent had been cautioned by the family’s CAS worker to stop making repeated, false and harassing allegations about the Applicant and to stop talking to the children about adult issues, such as their mother’s past abortion. The Respondent’s therapist described him as being “angry, bitter and stuck in the past”. The children continued to thrive in their mother’s care.

[52] Abigail and Gabriel have not shown the same signs of distress as Alijah and Jeremiah.

[53] In the spring of 2013, Alijah’s school offered to provide Alijah with a behaviour specialist resource teacher who would visit the school often, observe Alijah in the classroom, consult with his teacher and meet privately with Alijah. The Applicant consented to this plan but the Respondent did not. In the fall of 2013, Alijah’s vice-principal stated that Alijah’s behaviour at school was still very problematic. In addition, according to Alijah’s teacher, his homework was not consistently being completed on the days that he spent with the Respondent after school.

[54] The Report offered the following recommendations:

The children be placed in the custody of their mother and that her home be their primary residence.
Father shall have unsupervised access with the children on alternate week-ends from Friday afternoon at the end of the school day to Monday morning at the beginning of the school day and that exchanges take place at the school. This schedule would not change in the event of a non-school day such as a holiday or P.A. day. In the event of a non-school day, the children would be exchanged in a public venue.
The Respondent to have an additional access visit every week on the same day of the week from the end of school to the beginning of the next school day, with exchanges to take place at the school.
The Respondent to ensure that all of the children’s homework has been completed before the end of any access visit that takes place after a school day.
The Respondent to have the children for one uninterrupted week in July and one uninterrupted week in August. Alijah and Jeremiah to each spend a few additional days with their father in July, and a few additional days with him in August. The Respondent to have the discretion to decide whether to spend this additional time with Alijah and Jeremiah together or separately.
The Respondent not to take the children out of Ontario unless he has provided a detailed itinerary and received consent from the Applicant.
The Respondent to participate in a parenting course focusing on learning skills to nurture the children in a positive environment. Programs such as Caring Dads or Focus on Fathers are recommended.
The Applicant to enrol Alijah in any services available to him through his school and help address his behavioural issues. If this behaviour does not subside in a reasonable period of time, the Applicant to refer Alijah for a child’s mental health assessment.
Either of the parties or their designates may transport the children.
The parties shall share time with the children during religious holidays, and the children to spend Mother’s Day with their mother and Father’s Day with their father.
The children to have their own beds at both parents’ homes.
The Respondent to have direct access to the children’s health information and records, and their school information and records.

[55] The Applicant’s evidence on these issues may be summarized as follows:

(a) The Respondent was violent around the children. He used very abusive language toward the Applicant in the presence of the children. He used to spank the children and call them “stupid” and “idiot”.

(b) The Respondent threw cake in Alijah’s face in May 2012.

(c) In July 2012 the Respondent locked the Applicant out of the house forcing her to stay in a hotel for seven days as he refused to leave the matrimonial home.

(d) In November 2012 the Respondent put a GPS tracker under her car following which the Respondent was charged with harassment.

(e) The children’s school day ends at 3:40 p.m. She finds the mid-week visits difficult as she only has Monday and Tuesday nights to do things with the children.

(f) The Respondent demonstrates no flexibility with respect to the children’s schedule.

(g) The Respondent returns the children at his leisure and delivers the children to school late. On Mondays he drops off the three older children at school but the Applicant has to be there to pick up Gabriel from the Respondent.

(h) She is concerned regarding the Respondent yelling at the children, rap songs to which the Respondent listens in the children’s presence, containing bad language and disparaging comments that the Respondent makes to the children about the Applicant.

(i) The Respondent has never been involved regarding the children. Lately the Respondent has been commenting on Abigail’s spine not being straight. Abigail’s doctor has not expressed any such concerns. The Respondent never showed up for any of the children’s appointments.

(j) The children have been predominantly with her since the date of separation. When they return they display issues with respect to vulgarity.

(k) She referred to text messages exchanged by the parties as being “always aggressive” from the Respondent.

(l) Alijah’s report card from June of 2014 confirms many lates and absences. This is because Alijah often just did not want to go to school. There are often problems both before and after his visits with the Respondent. One day Alijah ran and hid himself at school. She has had conversations with Alijah’s teachers regarding these issues.

(m) Jeremiah does not demonstrate any ongoing school behaviour issues. He enjoys school. His attendance has improved.

(n) Regarding Abigail’s school attendance, she is only absent if she is sick or attending a dental appointment. She has no problems attending school. She enjoys it.

(o) She agreed with the OCL’s recommendations except regarding Thursday drop off times. To a point she agrees with the OCL regarding the Respondent’s capabilities as a father.

(p) She was also concerned that Abigail experienced a dislocated elbow in the Respondent’s care.

(q) Alijah is allergic to peanut butter and needs an EpiPen.

(r) It is not possible to communicate with the Respondent constructively.

(s) Currently the weekday access is too much for the children. They have issues with what is happening in the Respondent’s home. Otherwise she is content with the schedule.

(t) She lives 25 minutes from the children’s school. The Respondent lives five minutes from the children’s school.

(u) The children fear the Respondent, not the Applicant. They are more likely to comply with his directions because of their fear of him. In cross-examination she acknowledges that after reviewing the children’s attendance record the Respondent was only responsible for one late delivery to school out of over 23.

[56] In the Respondent’s evidence he indicates as follows on these issues:

(a) With the birth of the children both parties shared in changing diapers and both fed the children once the Applicant finished breast feeding.

(b) Both parties would prepare formula and assist with bathing, though perhaps a bit more on the part of the Applicant.

(c) While the Applicant was on maternity leave following the births of the children, the Respondent would come home after work and help out.

(d) After the Applicant’s maternity leave completed for Jeremiah she returned to work and the Respondent was primary care giver for the children. The Applicant was working 9:00 to 5:00 p.m.

(e) While the Applicant was recovering following Abigail’s birth, the Respondent cared for the other two children.

(f) When Gabriel was born, both parties took care of the children equally.

(g) The Applicant is caring and loving as a mother and would do anything for the children. He is the same as a father.

(h) He felt that the parties and the children would benefit from a parallel parenting arrangement in which he would decide medical issues and the Applicant would decide educational issues.

(i) His concerns relate to bed bugs at the Applicant’s residence, Abigail’s teeth and spine and Thursday access.

(j) He does not “rule by fear”. He uses a reward system with the children. He has no problems regarding getting the children ready for school in the mornings. They stick to their routine.

(k) Although initially he did not agree to counseling for Alijah, he eventually did agree that it was appropriate.

(l) The Applicant alleged that the Respondent had injured Abigail’s arm. This was not true. The Respondent had asked Alijah to wake up Abigail. Alijah pulled Abigail’s arm too hard and caused the injury.

(m) At the Respondent’s residence each child has their own bed. Sometimes they choose to come to his room to sleep with him. The Children’s Aid Society has checked his home and has no concerns.

(n) He had his car seats checked by an inspector in Vaughan Mills and all seats are appropriate for the children.

(o) He makes no negative comments regarding the Applicant in the presence of the children.

(p) The Respondent has never “done cocaine”.

(q) There is no issue regarding bed bugs in the Respondent’s residence.

(r) Regarding communication, he feels that the parties should be able to communicate directly either through email or verbal communication.

(s) Regarding Abigail’s teeth, some were “rotten across the top”. He secured an estimate regarding a program of care for Abigail’s teeth and provided a copy to the Applicant in May 2014. The Applicant said that she would take care of it, but she did nothing. In October 2014 Abigail had to have her teeth capped instead.

(t) He has never had problems getting the children ready for school. There were 23 absences for Alijah while under the Applicant’s care. He expressed concern about this to the Applicant through his lawyer. His concerns were ignored by the Applicant.

(u) The Respondent’s Peace Bond expired in June of 2014. He has not seen a psychologist. He has no anger management issues.

(v) He has never been aggressive to the Applicant or the children. He does not yell at the children.

(w) He spends time with all of the children during access visits. Any reluctance regarding access expressed by the children to the OCL during preparation of the report is a result of the Applicant’s influence and coaching.

(x) The Respondent took Abigail to the doctor because he was concerned about her spine. The doctor recommended an x-ray. He was concerned because the Respondent has a history of spina bifida in his family. The Applicant refused to have Abigail have an x-ray. She claimed to be relying on her doctor’s advice.

(y) Regarding the costs associated with the dental work proposed for Abigail, this could have been covered 100 percent by Ontario Works as the Applicant was a recipient.

(z) He has asked for medical reports and records regarding the children but the Applicant has refused to provide copies or her consent. He does not know who the children’s doctors and third party care providers are.

(aa)While he does listen to rap music, he does not listen to music that contains inappropriate language in the presence of the children.

THE LEGAL CONTEXT

[57] As this is a divorce application the issues of custody and access are governed by s.16 of the Divorce Act. Pursuant to s.16(8) of the Divorce Act the merits of an application in respect of custody of or access to a child shall be determined on the basis of the best interests of the children as determined by references to the conditions, means, needs and other circumstances of the children.

[58] Section16(10) requires that the court give effect to the principle that children should have as much contact with each spouse as is consistent with the children’s best interests.

Position of the Applicant

[59] The Applicant’s position is summarized as follows:

(a) The parties entered into final Minutes of Settlement dated September 10, 2013 and these issues have been resolved on a final basis and should not be changed.

(b) The Minutes of Settlement were based on the recommendations of the OCL who confirmed the mother’s ability to address any of the children’s concerning behaviour in a firm yet gentle manner. At the Respondent’s residence the children all sleep in the basement on a king size bed which they share with their father.

(d) The mother has appropriately responded Alijah’s school concerns while the father blocked the school from providing Alijah with needed resources. The mother enrolled Alijah and Jeremiah in counselling and addressed the children’s health needs and tried to manage their allergies.

(e) The Applicant attended the Here to Help Program while the Respondent, although advised to attend a program such as Caring Dads or Focus on Father, has failed to do so.

(f) Regarding Abigail’s teeth the Respondent contacted Applicant expressing concern about Abigail’s teeth and the Applicant immediately booked an appointment with the dentist who referred Abigail to a paediatric specialist; however, she was unable to follow through with the specialist appointment until October of 2014 as Abigail was with the Respondent for 41 days out of 60 during the children’s summer break.

(g) Alijah and Jeremiah’s poor school behaviour may be viewed as a symptom of the turmoil that existed around them throughout and after their parents’ separation. Eventually Alijah’s school attendance improved and his report card for 2014 shows minimal absences due to sickness.

(h) Regarding bed bug issues, the Applicant secured medication from the family physician to address the bed bug bites. Instead of assisting the Applicant with the issue the Respondent tried to use it against her in this litigation.

(i) Although he agreed to enroll in a program to help him improve his parenting skills in the Minutes of Settlement, the Respondent has yet to do so.

(j) Despite the OCL recommendation the Respondent resisted securing behavioural counselling for Alijah.

(k) The Respondent abuses cocaine and therefore represents a risk to the children.

Position of the Respondent

[60] The Respondent’s position on these issues is summarized as follows:

(a) The Applicant’s allegations regarding cocaine use are fabrications.

(b) Little or no weight should be given to the OCL report given that the author was not called as a witness, the OCL’s involvement ceased in September 2013 and the Applicant has demonstrated since signing Minutes of Settlement that she does not respect same.

(c) The Respondent did not want Alijah enrolled in the school’s behaviour program because he was worried about the effect it may have on Alijah’s future if it was made a permanent part of his school record. In any event, the Respondent provided his consent to Alijah being enrolled in such services by entering into the Minutes of Settlement.

(d) The Respondent is involved in the children’s schooling; for example, he regularly “signs off” on the school homework for Alijah and Jeremiah.

(e) The children have their own beds at both parents’ residences.

(f) Alijah is chronically late for school under the Applicant’s care.

(g) The Respondent denies the Applicant’s assertion that he rules the children through fear.

(h) Abigail does not soil or urinate in her bed under the Respondent’s care.

(i) The Respondent conducted himself responsibly in relation to the dislocation of Abigail’s elbow as a result of the actions of Alijah.

(j) The Applicant’s complaints to the Children’s Aid Society have never been verified.

Analysis

[61] As indicated above, the parties entered into final Minutes of Settlement regarding the custody and access issues in September of 2013. They agreed to have the terms of same incorporated into a court order, a fully comprehensive separation agreement, or both. They did not do so.

[62] There is no final order for custody or access regarding the children as a consequence.

[63] The court is not bound by any agreement entered into by the parties; however, the agreement of the parties does form a significant part of the evidence which I must consider in determining what is in the best interests of the children. This is because the terms of the final Minutes of Settlement represent evidence of what the parties felt was in the best interests of the children when they executed same in September of 2013. The children are now approximately 15 months older and it is not unusual that some adjustment be considered, particularly when the parties are agreed that I do so.

[64] Regarding the Respondent’s proposal to extend his mid-week access from Wednesday to Thursday, to Wednesday to Friday, I see no compelling reasons to disturb the status quo in this regard. The children are settled into this routine (established over 18 months ago) and I have no way of knowing what impact a significant change might have.

[65] As indicated above the Respondent proposes parallel parenting such that he would have sole decision making authority regarding medical issues and the Applicant would have sole decision making authority regarding schooling issues.

[66] In support of his argument the Respondent relies upon the case of DelCampo v. DelCampo, 2014 ONSC 4878. In that case, notwithstanding an OCL report recommending sole custody and a history of challenging communications between the parties, the court awarded joint custody and implemented a parallel parenting plan. An important distinguishing feature is that in DelCampo the parties had never signed final Minutes of Settlement whereas in the case now before me the parties did execute final Minutes of Settlement in September of 2013 thus communicating their perception, at least at that time, that a sole custodial regime was consistent with the best interests of the children.

[67] Sole custody has been recommended by the report of the Office of the Children’s Lawyer completed pursuant to s.112 of the Courts of Justice Act. Parallel parenting is not consistent with sole custody. To implement same I would need to conclude that sole custody is not the parenting model that best serves these children. Given the parties’ agreement in 2013, the content of the Report in 2013 and the Respondent’s failure to promptly act upon the school’s offer of assistance for Alijah, I am not persuaded that parallel parenting is a viable or appropriate option.

[68] The Respondent seeks mutuality in the non-removal of the children from the Province. A standard mutual non removal clause is not unusual even in cases of sole custody. A non-custodial parent still has a legitimate interest in knowing when the children are being removed from the jurisdiction. There shall be such an order accordingly.

[69] Regarding Christmas access, the Respondent’s position outlined above is balanced and more detailed than that of the Applicant. There shall be an order accordingly.

[70] Regarding communication between the parties, an important ingredient to a successful joint custodial regime, I find that the Applicant has overstated the difficulties between the parties when it comes to communication regarding the children. No doubt there has been a history of difficult communication, but I do not believe that it rises to the level suggested by the Applicant in her evidence. The text messages between the parties represent the best tool for assessment of this issue. I have reviewed those text messages and while some are blunt and contradictory, there is little in them that I would characterize as “aggressive” and certainly they are not “always” aggressive as alleged by the Applicant, far from it. Most of the exchanges are routine matters of scheduling or exchanges of ideas on particular parenting issues such as bed bugs, timing of exchanges and potty training for Gabriel. This evidence is more supportive of the Respondent’s position as to the ability of the parties to communicate regarding the children.

[71] While the Respondent raises issues pertaining to the manner in which the Applicant handled health related issues pertaining to the children including Abigail’s spine, the bed bugs and Abigail’s teeth, the evidence outlined above does not establish, on balance, that the Applicant has handled these issues in a manner inconsistent with the best interests of the children. Further, the Respondent’s concerns in this regard can be addressed with terms of an order of this court that he be kept apprised at all times regarding any health related issues developing with respect to the children, and giving him full rights of access to all third party professionals given of the children.

[72] The Applicant, in her evidence, alleged that the Respondent regularly used cocaine and she had seen this. During cross-examination she acknowledged that she made no reference to cocaine use in her application and indicated initially that she may have mentioned “drug use” to the OCL investigator, subsequently strengthening that answer to emphatically having told her about “drug use”. She acknowledged having sworn an affidavit on the subject of custody and access in January of 2014 with no reference to cocaine use even though access was an issue.

[73] There are significant inconsistencies in the Applicant’s evidence on this issue, as a consequence I reject her allegations in this regard.

[74] Ultimately, I see no compelling reason to diverge significantly from the custodial regime contemplated by the parties themselves in their final Minutes of Settlement executed in September of 2013 save and except as set out below.

SPOUSAL SUPPORT

[75] The Applicant absented herself from the workplace extensively following the births of all four children of the marriage. I am satisfied on the evidence outlined above that while the Respondent contributed meaningfully to the care and upbringing of the children, the Applicant bore the major portion of this burden prior to separation. She has sacrificed her opportunity to develop her employment skills as a result. As a further result it must be presumed that the Respondent has benefitted from this sacrifice as but for the Applicant’s efforts in this regard the Respondent would have had to bear the burden of child care. As a consequence the Applicant has satisfied me that she is entitled to compensatory spousal support. However, this is not an appropriate time for spousal support to be awarded, given the state of flux of the parties’ financial circumstances and in particular the Respondent’s lack of income. I should point out that I do not take the Applicant’s email of April 24, 2013 as a withdrawal of her claim for spousal support. A full reading of the email makes it clear to the objective reader that this was a settlement proposal. As such, it does not assist in determining this issue on its merits and is irrelevant to my analysis in this regard.

EQUALIZATION

[76] The Applicant relies upon her Net Family Property Statement dated October 23, 2014. Pursuant to that document she calculates an entitlement to an equalizing payment from the Respondent of $32,416.36; unfortunately, her submissions, contrary to my order of November 28, 2014, do not include cross-referencing to specific exhibits to assist me in assessing her position on this issue. The Applicant’s submissions are not helpful to me in assessing her position on equalization.

[77] The Respondent, on the other hand, has complied with my order of November 28, 2014 in this regard. His Net Family Property Statement provided with his submissions calculates that the Applicant owes the Respondent an equalizing payment of $33,153.71.

[78] There are some issues on which the parties are agreed. I will not address those elements of the equalization calculation in these Reasons; instead, I will simply address those issues raised by the apparent differences in the parties’ respective Net Family Property Statements.

Date of Separation

[79] The Applicant says that on May 215, 2012 she moved her things out of the master bedroom and started sleeping in one of the boy’s bedrooms. They continued living under the same roof but separately. They were not eating together. Thereafter they did socialize together and tried to make it cordial in the presence of third parties. They were not together physically after May 15, 2012. This, she says, is the date of separation.

[80] According to the Respondent, he has no idea how she came up with the date of May 15, 2012 as the date of separation. They were still intimate at that time. He made a “big furniture purchase” after May 15, 2012. He was “shocked” by the Applicant’s ex-parte motion brought on September 24, 2012.

[81] The Application in this proceeding was issued on October 23, 2012. It alleged a date of separation of May 15, 2012. The first court documents filed in this proceeding are dated September 24, 2012, being a Notice of Motion brought by the Applicant on an urgent basis. In support of that motion she swore an affidavit on September 24, 2012. She describes the history of the relationship from 2005 up to that time but makes no specific reference to the date of separation being May 15, 2012. There does not appear to have been any precipitating event on May 15, 2012 disclosed in the originating documents. The parties continued to cohabit thereafter. She deposed in her affidavit of having told the Respondent that she wanted to end the relationship. She did not specify when she said this to him. In August of 2012 the Applicant describes the entire family having breakfast together. She refers to an incident on September 6, 2012 and in relation to that date deposes: “By this time I was no longer sleeping in the same bedroom as him.” She further deposed that on September 19, 2012 she took the children and went to the police station to report an incident between the parties. She further deposed that she left the matrimonial home on that date.

[82] It appears that her motion dated September 24, 2012 was designed, in part, to secure exclusive possession of the matrimonial home and custody of the children.

[83] I find that the date of separation is September 19, 2012 for the following reasons:

(a) The Applicant’s evidence regarding May 15, 2012 as the date of separation is not consistent with the evidence that she has filed earlier in this proceeding;

(b) The Applicant’s evidence at trial that the parties were not eating together after May 15, 2012 is inconsistent with her evidence outlined above from her September 2012 affidavit;

(c) The date of September 19, 2012 is consistent with the Applicant’s evidence of an incident having occurred on September 19, 2012 which involved her leaving the home with the children and making a report to the police;

(d) The September 19, 2012 date of separation is proximate in time to the Applicant’s motion seeking return to the matrimonial home following her departure on September 19, 2012.

(e) While the parties may have been sleeping in separate rooms for all or part of the time following May 15, 2012, this is not necessarily determinative of the issue of separation; similarly, it is not determinative that the parties were not intimate after May 15, 2012.

(f) The Respondent gave evidence, uncontradicted by the Applicant, that the parties made a “big furniture purchase” after May 15, 2012 and this would be inconsistent with the Applicant’s suggestion that the date of separation is May 15, 2012.

Matrimonial Home

[84] The matrimonial home is described municipally as 392 Sonoma Blvd., Woodbridge. It was jointly owned at the date of separation.

[85] The matrimonial home sold on January 28, 2013 for $631,489.97. One half of $631,489.97 shall be ascribed to each party in this regard.

[86] The Applicant has not specified any values for contents owned by the parties as of September 19, 2012. All of her figures are predicated upon the assumption that she would be successful in establishing May 15, 2012 as the date of separation. As a consequence many of her figures, to the extent that they are contradicted by the Respondent, are unreliable and irrelevant.

[87] On the other hand, the Respondent gave evidence that the parties owned contents having an approximate fair market value of $25,000 as of date of separation and that the Applicant retained approximately $20,000 worth while the Respondent retained approximately $5,000 worth.

[88] Given concerns regarding the Applicant’s credibility as outlined above, I prefer the evidence of the Respondent in this regard, although I have absolutely no evidence confirming the values of the individual items of personal property as of the date of separation. In the absence of evidence produced by either party in this regard, I am going to reduce the values ascribed to the contents retained by both parties by the Respondent by 25 percent to account for the uncertainty inherent in these estimations of value. Therefore, I find the value of the contents of the house retained by the Applicant to be $15,000 and retained by the Respondent to be $3,750.

Chevrolet Astro Van

[89] The Applicant gave evidence that she owned a 1990 Chevrolet Astro van as of the date of separation. It was sold following separation. She says that she sold it for $400. In her financial statement sworn October 22, 2012 she puts the value of the vehicle at $6,000. The Respondent gave evidence that the vehicle was worth about $12,000 but apart from listing its features, he did not offer any further evidence as to its market value as of the date of separation. In my view, the actual value of the van is likely somewhere between $6,000 and $12,000. In the absence of any better evidence on the issue, I will pick the mid-point, being $9,000.

2012 Mazda Motor Vehicle

[90] In her financial statement sworn October 20, 2012 the Applicant discloses ownership of a Mazda 2012 motor vehicle valued at $28,000 as of the date of swearing the affidavit. She did not disclose an ownership interest as of the date of separation (which she was defining as May 15, 2012).

[91] In her financial statement sworn October 23, 2013, she describes the Mazda 2012 motor vehicle as “repossessed” and again discloses no ownership interest as of the date of separation (again being May 15, 2012).

[92] What I would need in this regard is some evidence that the Applicant had an ownership interest in this vehicle as of September 19, 2012. There is no such evidence. Therefore no value shall be ascribed in this regard.

2008 Mercedes

[93] The Applicant alleges the Respondent owned a 2008 Mercedes vehicle on her alleged date of separation being May 15, 2012. She says it was worth $25,000. I have no evidence of ownership by the Respondent, as opposed to a lease arrangement. I have no evidence of value as of September 19, 2012. Accordingly, I ascribe a value of zero to Respondent’s interest as of September 19, 2012.

Applicant’s Jewellery

[94] The Respondent alleges that the Applicant owned four items of jewellery on the date of separation, being a diamond tennis bracelet valued at $5,389, diamond pendant valued at $1,859, a diamond pendant valued at $299 and diamond earrings valued at $439 for a total of $7,986.

[95] The Applicant’s financial statements and net family property statement made no reference to these items. She indicated in her evidence that as they were gifts she did not believe that she had to include them in her calculation of net family property; unfortunately, she is mistaken in that the Family Law Act only permits the exclusion of gifts from third parties, that is, from someone other than the Respondent. These items do not so qualify and therefore must be included in calculation of her net family property.

[96] I have been provided no documentary evidence as to the value of these items. The Applicant did not express a great deal of concern about the values alleged by the Respondent but did indicate that she felt that the values “could have been lower”. It appears that the Respondent has utilized the acquisition cost of these items as representative of their value. I have been given no evidence as to when they were acquired and I have been given no appraisals. Given the uncertainty inherent in this evidence of value, I am discounting same by 25 percent to achieve a value of $5,989 for equalization purposes.

[97] There are two joint GIC accounts according to the Respondent’s evidence, as follows:

(a) Account number 803715310 $10,729.91 as of date of separation

(b) Account number 803715309 $21,356.37 as of date of separation

[98] The evidence supports the conclusion that these GICs were used as collateral for the issuing of two irrevocable letters of credit to Sun Media Corporation in $20,000 dated December 19, 2006 and in the amount of $10,000 dated April 27, 2007. These were contractually required as a condition of the Respondent’s company doing business with Sun Media Corporation.

[99] While they may have been pledged as collateral security, that is a separate issue that will be dealt with later. The Respondent himself has described these GICs as “joint” in his material and there is no reason that they should not be treated as such in calculation of each party’s net family property.

[100] Therefore, in respect of Account number 803715310, each party shall be ascribed one-half of $10,729.91, being $5,364.95 and in respect of Account number 803715309, each party shall be ascribed one-half of $21,356.37, being $10,678.18.

Husband’s RRSP Account

[101] The husband’s evidence is that he did not own an RRSP account as of the date of separation and that references to an RRSP in his earlier materials were in error. There is no evidence to contradict him in this regard. Therefore there shall be no RRSP for the Respondent in calculation of his net family property.

Matrimonial Home Mortgage

[102] The total expenses deducted from the proceeds of sale of the matrimonial home were $493,463.99 (including mortgage, taxes, real estate commission and legal fees associated with sale).

[103] There is no dispute between the parties that these expenses should be borne equally.

[104] Therefore, a debt of $246,731.99 shall be ascribed to each party as of date of separation in this regard.

Strictly Paper Ltd. (SPL)

[105] The Respondent is 100 percent shareholder in SPL as of date of separation.

[106] On April 8, 2014, on consent, the Respondent was ordered: “to engage a certified business evaluator to both place a value on his corporate entity and an income analysis with respect to the same entity from January 1, 2010 to December 31, 2013”. The Respondent was to provide the initial retainer and his 75 percent share of the expert’s fees were to be paid from his share of the proceeds of sale of the matrimonial home. The Applicant mother was to be responsible for 25 percent of the expert’s fees. This analysis was never undertaken; as a consequence, I am without the best evidence available to assess a value for the Respondent’s interest in SPL.

[107] The Respondent testified that the company had no assets; however, he also testified that he had borrowed $10,000 from the company and repaid $5,000. He indicated that he still owed $5,000 to the company. Therefore, at the very least, the company has an account receivable owing to it by the Respondent in the amount of $5,000. This is an asset that must be considered in calculation of the value of the business.

[108] The Respondent has also testified that there are debts owing by the company that exceed the Letters of Credit (i.e. in excess of $30,000).

[109] However, the Respondent failed in his evidence to specify what he believed the debts of the company to be as of the date of separation. We know that the Letters of Credit tendered in evidence are in favour of Toronto Sun Media as against SPL. Those debts (being $30,000) are properly included as of date of separation as a debt of the company and are supported by the evidence of the Respondent. He gave further testimony of additional debts owing by SPL. He testified the totaling owing as of September 19, 2012 was about $51,000.

[110] Therefore, the value to be ascribed to Strictly Paper Ltd. for equalization purposes might be -$46,000 (i.e. $5,000 owing to SPL by Respondent less $51,000); however, I am concerned regarding the Respondent’s failure to comply with the April 8, 2014 order by securing a proper valuation. His failure in this regard leads me to draw the adverse inference that had he complied, the resulting value would not have been beneficial to him. The evidence was within his control to produce, but he has not fully discharged his obligations in this respect. Also, I can see no reason why this information could not have been included in his earlier financial statement, which describes the value of his interest in SPL as “TBD”. A value of ($46,000) would be of considerable assistance to the Respondent in calculation of equalization. Therefor I ascribe a value of zero to his interest in the company.

Debt Owing by Respondent to SPL.

[111] The Respondent gave evidence that he still owes $5,000 to his company.

[112] Given his non-long arm’s length relationship with the company, I am approaching this debt from the perspective that it is highly unlikely that it will ever be collected and I am therefore discounting it by 100 percent. Therefore zero shall be ascribed to the outstanding balance of this debt owing by the Respondent as of the date of separation.

TD Canada Line of Credit Account 19283239344

[113] The Applicant alleges in her net family property statement that there is an outstanding balance on this line of credit in her name as of May 15, 2012 in the amount of $6,217.08.

[114] The Respondent does not accept that this line of credit was outstanding in that amount in Applicant’s name as of the date of separation.

[115] As indicated I have found the date of separation to be September 19, 2012. The Applicant has lead no evidence confirming the balance as of that date in this account. Therefore zero shall be ascribed to the Applicant in this regard for equalization purposes.

Outstanding Utilities and Insurance Debts as of Date of Separation

[116] The parties had accounts with Bell Canada, Enbridge, Power Stream, Cogeco Insurance and T-D Insurance as of the date of separation. Some of these accounts were in the name of the Applicant and some were joint; however, it is not disputed that the Respondent paid these debts in full following separation and therefore accepted full responsibility for them. For ease of accounting purposes I shall ascribe responsibility for these debts as of date of separation to the Respondent in the following amounts which have not been disputed by the Applicant:

(a) Enbridge $249.80

(b) Power Stream $234.76

(d) Cogeco Insurance $2,227.40

(e) T-D Insurance $1,064.86

RRSP Disposition Costs

[117] The Respondent is claiming $800 representing 25 percent disposition costs in respect of his $3,200 RRSP. However, he has conceded that the $3,200 was entered in error in his earlier financial statements and accordingly he should not be entitled to a deduction of $800 as a debt as of date of separation in this regard.

[118] The Respondent accepts a deduction of 25 percent representing disposition costs at 25 percent in the amount of $699.81 in respect of the Applicant’s RRSP holdings as of date of separation and this figure will be utilized accordingly.

Date of marriage assets and liabilities

[119] Neither party gave any evidence as to date of marriage assets or liabilities. Accordingly there will be no values incorporated into calculation of equalization in this respect.

Equalization Payment

[120] Incorporating the above findings with the figures agreed upon by the parties and which are not in dispute, I calculate an equalizing payment owing by the Applicant to the Respondent in the amount of $10,380.21. See Schedule “A” to these Reasons for Judgment in this regard.

Adjustments to Equalizing Payment

[121] The Respondent submits that the Applicant removed $9,000 from the parties’ joint bank account “just prior to separation” and she has not accounted for these funds. The Respondent further submits that the Applicant removed $7,000 from the business account “just prior to separation” and also has not accounted for these funds. He seeks adjustment to the equalizing payment to account these withdrawals.

[122] I cannot accede to this request. Equalization is determined based on the parties’ assets and debts as of the date of separation. Given that these funds were removed prior to separation, they do not factor into calculation of equalization.

POST TRIAL EVENTS

[123] In submissions by Applicant some references were made to events following trial. I am ignoring these references for the purposes of these Reasons as to do otherwise would be inappropriate. Only the evidence before the court is relevant to my judgment

CONCLUSION

[124] For all of the foregoing reasons, judgment shall issue in the following terms:

(a) The Applicant shall have sole custody of the children, namely: Alijah, born August 5, 2006, Jeremiah, born January 6, 2008, Abigail, born January 1, 2010 and Gabrielle, born October 12, 2011.

(b) The Applicant shall consult with the Respondent regarding all major decisions affecting the general welfare of the children including those of a religious, medical, educational and social nature.

(c) Each party shall notify the other immediately of any significant issues of which they have become aware pertaining to the health or education of the children.

(d) Each party shall have the right of full access to all third party records pertaining to the children including those pertaining to the children’s health and education. The parties shall forthwith execute such authorizations and directions as may be reasonably required to facilitate such access.

(e) The Respondent shall have access with the children as follows:

i. Alternating week-ends from Friday after school until Monday morning drop off at school,

ii. Alternating week-end access shall be extended to include a holiday Friday (with such access commencing after school on Thursday) and holiday Monday (with such access concluding with drop off at school on Tuesday morning).

iii. Each Wednesday from after school until Thursday at 7:00 p.m.

iv. Such further and other access as may be agreed upon by the parties.

(f) Exchanges of the children on school days shall take place at the children’s school. Exchanges of care and control of the children on non-school days shall take place at the Tim Horton’s at Martingrove and Hwy. 7 unless the parties otherwise agree in writing.

(g) Each party shall be entitled to two uninterrupted weeks summer access with the children in the months of July and August each summer, with at least two weeks in-between, unless the parties otherwise agree.

(h) Neither party shall remove the children from the Province of Ontario without the prior written consent of the other, such consent not to be unreasonably withheld. A party wishing to travel outside the Province with the children shall provide a travel itinerary in advance to the non-travelling party.

(i) Unless the parties otherwise agree, the children shall be with the Applicant each Mother’s Day and with the Respondent each Father’s Day.

(j) The children shall be with the Respondent for the March school break in odd numbered years and with the Applicant in even numbered years.

(k) The children’s Christmas school holidays shall be divided equally between the parties each year. In odd numbered years the Respondent’s half shall include December 24 at noon until December 26 at noon and December 31 at noon until January 2 at noon. In even numbered years the Applicant’s half shall include December 24 at noon until December 26 at noon and December 31 at noon until January 2 at noon.

(l) The children shall be with the Respondent for the Easter week-end in odd numbered years and with the Applicant in even numbered years.

(m) The children shall be with the Respondent for the Thanksgiving week-end in odd numbered and with the Applicant in even numbered years.

(n) Neither party shall make disparaging remarks about the other in the presence of the children, nor permit third parties to do so.

(o) Neither party shall enroll the children in extracurricular activities that might interfere with the other party’s care and control of the children, without the other party’s prior consent or court order.

(p) Both parties shall respect the rules and routine of the other party’s household, unless a child protection issue arises.

[125] Commencing November 1, 2014 the Respondent’s child support obligation is fixed at zero for four children, based upon income of zero at present.

[126] The children have the following special or extraordinary expenses within the meaning of s.7 of the Guidelines:

(a) EpiPens for Abigail and Alijah;

(b) daycare for Gabriel; and

[127] As the parties’ incomes are presently equal they shall equally bear the reasonable and necessary expenses with respect to the above s.7 expenses until the parties otherwise agree in writing or the court otherwise orders. Future s.7 expenses shall be subject to agreement by the parties, not to be unreasonably withheld, or court order.

[128] Each party shall notify the other in writing immediately upon securing any form of employment, part time or full time, including name and address of employer, nature of position and level of remuneration.

[129] The Applicant is entitled to compensatory spousal support; however, given the current state of flux of the parties’ employment circumstances, the Respondent shall pay the Applicant the sum of $1 per year subject to review as to quantum upon the Respondent securing employment.

[130] The Applicant shall pay to the Respondent on account of equalization the sum of $10,380.21 calculated in accordance with Schedule A to these Reasons for Judgment.

[131] The remaining proceeds of sale of the matrimonial home shall be released to the Respondent after determination of the issue of costs.

[132] If the parties are unable to agree on costs, they may make written submissions on costs limited to four pages each upon the following schedule:

(a) Applicant within three weeks of the release of these Reasons;

(b) Respondent within four weeks of the release of these Reasons;

[133] Also, in the event there are any mathematical errors in my calculations with respect to equalization, such may be brought to my attention in written submissions.