Wright v. Wright, 2015 ONSC 3103

CITATION: Wright v. Wright, 2015 ONSC 3103

NEWMARKET COURT FILE NO.: FC-13-043417-00

DATE: 20150515

CORRECTED: 20150526

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JANET WRIGHT

Applicant

– and –

DAVID WRIGHT

Respondents

Self-Represented

Self-Represented

HEARD: November 25, 27, 28, December 1, 2, 3,4 and 5, 2014

F. GRAHAM J.:

CORRECTED REASONS FOR DECISION

The text of the original decision was corrected on May 26, 2015 and the description of the correction is appended.

Issues

[1] The parties started living together in March of 2009. They married on January 2, 2010. Their child, Malakai, was born on December 15, 2011.

[2] The parties separated in early 2012. Ms. Wright says they separated on January 30, 2012. Mr. Wright says they separated on June 30, 2012.

[3] They lived separate and apart in the matrimonial home until Ms. Wright moved out in June of 2014.

[4] Each party seeks sole custody and primary residence of Malakai. They propose different parenting schedules for Malakai. Mr. Wright seeks a change in location for exchanges of Malakai. He also seeks an order governing the provision of Malakai’s clothing at daycare.

[5] Each party seeks child support, re-imbursement of extraordinary child expenses, and spousal support from the other party.

[6] They both seek compensation from the other party for personal property taken or kept post-separation.

[7] Ms. Wright seeks an unequal division of net family property.

[8] Ms. Wright also seeks compensation for damage to a washing machine and a counter-top. She also seeks re-imbursement for a deposit on the matrimonial home, and re-imbursement for Mr. Wright’s use of her credit card.

[9] Mr. Wright seeks re-imbursement for a share of the matrimonial home expenses he paid while the parties lived separate and apart in the home, and re-imbursement for changing the lock on the home after Ms. Wright moved out.

[10] Ms. Wright seeks an order restraining Mr. Wright from attending near her current residence.

[11] Finally, both parties seek a divorce.

[12] The parties have asked the court to determine these issues regardless whether each issue was formally pleaded.

Background – Financial Issues

[13] The court has reviewed all of the evidence, but will set out only the more salient points to provide a context for analysis.

[14] Throughout the history of this matter, Ms. Wright has had a full-time position with a motorcycle company. She also worked part-time as a fitness instructor on Monday and Tuesday evenings and, occasionally, on other days, as needed, until October of 2014, when the fitness company went bankrupt.

[15] Mr. Wright was the general manager of a hair cutting/styling business for ten years until he and his parents purchased the business in March of 2012. They continue to own the business, which he operates.

[16] Mr. Wright became the owner of a condominium at 155 Hillcrest Avenue, Mississauga (“the Hillcrest condo”) in June of 2008. The purchase price was $178,500.

[17] The parties started dating in September of 2008. At that time, Ms. Wright owned a house in Brampton. Mr. Wright was in the process of obtaining a divorce from his first wife.

[18] Ms. Wright testified that Mr. Wright asked to borrow money from the equity in her home to pay legal fees for his divorce, but she refused. She testified that he then asked to borrow money from one of her credit cards instead, and she agreed, and paid out $15,890 in credit card cheques for Mr. Wright’s purposes: $8,640 for his divorce legal fees, $6,550 for a mortgage penalty he had to pay for the Hillcrest condo as part of his divorce, and $700 for winter tires for his truck. She testified that he promised to pay the interest charged on these amounts until he repaid the loan.

[19] Mr. Wright testified that it was Ms. Wright’s idea to give him money for legal fees. He said that he was content to represent himself to save money but she wanted to expedite his divorce. He testified that she said nothing about being paid back until the current court proceeding commenced. He admitted that he was paying her $200 per month for a period of time, but said that was for a different purpose.

[20] In March of 2009, Mr. Wright sold his house in Woodbridge (not the Hillcrest condo). The property sold for less than the mortgage so his parents helped him pay out the extra amount to close the sale. He became divorced around the same time.

[21] Mr. Wright moved into Ms. Wright’s home in Brampton, along with his two youngest children (on the days they were with him).

[22] On May 4, 2009, Mr. Wright put a mortgage of $135,214 on the Hillcrest condo.

[23] Mr. Wright and Ms. Wright became engaged.

[24] Mr. Wright decided that he did not like living in Brampton and that he wanted his children to stay in their schools in Woodbridge. Ms. Wright agreed that they needed a bigger home to accommodate their children and she agreed to move to Woodbridge.

[25] She sold her home in Brampton and they moved to a home built for them at 120 Cornerbrook Crescent, Woodbridge (“the Cornerbrook property”).

[26] The purchase of the Cornerbrook property closed on August 28, 2009. The purchase price was about $470,000.

[27] The title for the new home was in Ms. Wright’s name. She says that occurred because Mr. Wright’s credit rating was not good enough to be on the mortgage. He says that occurred because Ms. Wright wanted to avoid any possible claim that might be made by Mr. Wright’s ex-wife against the home, and that they agreed that his name would be added to title later.

[28] Ms. Wright made a $20,000 down payment for the Cornerbrook property and transferred her mortgage balance of about $461,000 from her Brampton home to the new home.

[29] It was a condition of the transfer of the mortgage that Ms. Wright pay off the credit card debt she had incurred for Mr. Wright. At that point, the balance owing was $14,715. Ms. Wright testified that Mr. Wright gave her $9,000 for that purpose and she paid off the balance of $5,715, which, she says, he still owes her.

[30] Mr. Wright agrees that he paid Ms. Wright $9,000 at that time but testified that the payment was a partial payment toward the $20,000 deposit she made on the Cornerbrook property. He says that he still owes her the remaining $11,000 for the deposit.

[31] Mr. Wright testified that the parties agreed that Mr. Wright would make the mortgage payments at their new home, Ms. Wright would pay for the utilities, and they would each pay for their own vehicles.

[32] As noted earlier, the parties married on January 2, 2010.

[33] In the fall of 2011, the mortgage on the Cornerbrook property was due for renewal.

[34] Mr. Wright wanted the title for Cornerbrook transferred to him so that he could make use of some of the home equity by increasing the amount of the mortgage. Ms. Wright did not agree, the parties argued, and then Ms. Wright, pregnant and feeling stressed, relented on the condition that Mr. Wright would immediately repay her the $20,000 deposit she made on the home.

[35] The transfer of title was made on November 7, 2011. Mr. Wright increased the Cornerbrook mortgage to $500,000 at the same time.

[36] At that time, Mr. Wright was negotiating a purchase of the business, Nappy’s, where he was the general manager. He asked Ms. Wright to allow him to invest the $20,000 he owed her for the Cornerbrook deposit into the business purchase on the understanding that he would pay her back with interest. She testified that she agreed because he already had the money.

[37] On November 30, 2011, the parties signed an agreement stating that Ms. Wright had loaned Mr. Wright $20,000 to be invested in the business and that loan would be repaid in full with interest by April of 2012.

[38] Mr. Wright says that his income was $1,200 per week while he was general manager of the business, including at least $700 per month for cutting hair himself. The business had three locations at that time. He testified that his income tax returns did not reflect that level of income because he was a contractor rather than an employee and, as a result, he claimed deductions for his vehicle payments, telephone, tools, etc.

[39] The parties agreed that Ms. Wright would handle the accounting for the business for several months to make her feel better about her $20,000 being invested in the business. She had taken an accounting course at York University and was able to make all the accounting entries for that period, including lease payments, payroll, GST payments, utility payments, and product purchases, with direct access to the point of sale data from each location.

[40] Based on that information, the parties created a pro forma income and expense budget for the business, operating with a staff of twenty, at three locations, that estimated a net profit of $160,548 per year based on a gross income of $318,000 per year, not including additional income expected from product sales.

[41] As noted earlier, Malakai was born on December 15, 2011.

[42] Ms. Wright went on maternity leave. She told Mr. Wright that she could no longer afford to pay for the utilities on her maternity leave income. As a result, Mr. Wright started paying all of the house-related expenses.

[43] Mr. Wright’s 2011 Notice of Assessment states that his 2011 income was $17,999.

[44] In January of 2012, the assets of the business were appraised at $164,000.

[45] Mr. Wright incorporated Nappy’s Hair Shop Inc. to purchase the business and applied for a small business loan to finance a purchase. He was informed by the bank, however, that he had too much debt. In an attempt to remedy that concern, he borrowed $85,000 from his parents to improve his liquidity.

[46] Ms. Wright testified that the parties decided to separate during January of 2012.

[47] She says that it was a result of that decision, that she purchased a townhouse at 24 Haymer Drive, Maple (“the Haymer property”), on January 30, 2012, for $451,000, with a closing date in April of 2012.

[48] It is her position that the parties separated on January 30, 2012.

[49] In February of 2012, Mr. Wright was denied the business loan. He was informed that he would have a better chance of success if he had partners. As a result, each of his parents was given forty percent of the shares of the corporation and all three of them signed personal guarantees for a business loan which was approved on March 13, 2012, for roughly $132,000, on a five year term, with a floating interest rate. The loan application states that the gross business income was $469,000 per year and the business employed five full-time and ten part-time staff.

[50] In a statement filed with police in April of 2013, Ms. Wright stated that the parties decided to separate on March 28, 2012. In her amended Application, dated May 23, 2013, however, she stated that the date of separation was January 30, 2012.

[51] On March 29, 2012 Mr. Wright’s purchase of the business closed.

[52] On April 2, 2012, Ms. Wright’s purchase of the Haymer property closed, financed by a $441,000 mortgage. In the mortgage charge on title, Ms. Wright described her marital status as ‘separated’.

[53] She testified that she rented out the townhouse at that time because Mr. Wright told her that she could not remove Malakai from the matrimonial home on Cornerbrook, and because she did not want to lose any legal rights she had in the matrimonial home and its contents.

[54] Mr. Wright testified that by June of 2012, he had to borrow on his credit card to pay all of the house-related expenses. As a result, he took a mortgage broker course so he could supplement his income.

[55] Around that time, Mr. Wright complained to police that Ms. Wright had taken patio furniture and a ring belonging to him, from the Cornerbrook property. Ms. Wright denied the allegations. The police investigated but did not lay any charges. Ms. Wright testified that when Mr. Wright later made a claim for the ring against the household insurance policy, she discovered that he had removed her name from the policy without her knowledge. Mr. Wright seeks restitution for the ring in the current litigation.

[56] Mr. Wright says that the parties separated on June 30, 2012.

[57] Ms. Wright provided information about houses, similar to the matrimonial home, which sold or were listed for sale on Cornerbrook Crescent in 2012.

[58] On August 1, 2012, 56 Cornerbrook, which, unlike the matrimonial home, had an unfinished basement, and did not have as many upgrades as the matrimonial home, sold for $745,000. In November of 2012, 96 Cornerbrook, with a partially finished basement and not as many upgrades, was listed for sale at $735,000.

[59] Ms. Wright testified that she believes that the value of the Cornerbrook property on the date of separation was about $755,000.

[60] As will be mentioned again later, Mr. Wright listed the matrimonial home for sale in February of 2013 for $700,000. He had the home appraised in 2014. The appraisal was between $709,800 and $723,400. His estimate of the value of the property at the time of the trial was between $700,000 and $750,000.

[61] In August of 2012, Mr. Wright opened a fourth Nappy’s location, in Vaughan.

[62] In October of 2012, Mr. Wright decided that he needed more money to pay bills.

[63] He asked a mortgage broker about putting a private second mortgage on his Hillcrest condo but was informed that he did not have enough equity. He testified that he was told that he could put a mortgage on the Hillcrest property if he used the Cornerbrook property as “collateral”.

[64] Ms. Wright testified that Mr. Wright told her that he was going to put a second mortgage on his Hillcrest condo and asked her if she would sign a document to allow him to use Cornerbrook as “collateral”. She testified that she refused. She testified that he offered her $40,000 if she signed, but she refused, because he still owed her $20,000 for her down payment.

[65] Without Ms. Wright’s knowledge, Mr. Wright put a $105,000 second mortgage on both properties on November 1, 2012. After payment of fees, he received $86,000, which he testified was used to pay various bills.

[66] Mr. Wright’s 2012 Notice of Assessment states that his 2012 income was $16,421.

[67] Ms. Wright returned to full-time work in January of 2013.

[68] Mr. Wright testified that he and Ms. Wright had agreed to sell the Cornerbrook property, so he listed it for sale, for $700,000, in late February of 2013, while she was away on a business trip. He said that he phoned her while she was away and asked her to sign the listing.

[69] Ms. Wright testified that when she returned from the business trip, she was shocked to find a for sale sign on the property. She denies that Mr. Wright had informed her that he was listing the property. She immediately called the agent and cancelled the listing. She retained counsel and was advised to put a matrimonial home designation on the Cornerbrook property.

[70] When her counsel followed her instructions, the lawyer found the $105,000 second mortgage on the Cornerbrook property. The charge document stated that Mr. Wright was not a spouse.

[71] Ms. Wright phoned Mr. Wright. He told her that the mortgage was only on his Hillcrest condo, and the Cornerbrook property was “only collateral”. Mr. Wright added that maybe his lawyer got the properties “mixed up”. Ms. Wright testified that she asked him to call his lawyer to straighten things out, but Mr. Wright refused, and said that she could include this as an issue in their divorce case.

[72] Ms. Wright called the police alleging mortgage fraud by Mr. Wright. The police investigated and concluded that it was a civil matter.

[73] Mr. Wright testified that he was not asked whether he was a spouse when he took out the mortgages. He testified that he thought that he was putting a mortgage on the Hillcrest property and the Cornerbrook property was just “collateral”. He said that, as a result of Ms. Wright’s call, he found out that the mortgage was on the Cornerbrook property and the Hillcrest property was “collateral”. He testified that he did not understand that he was mortgaging the Cornerbrook property. When asked, in court, whether he mortgaged both properties, his answer was, “I guess”. When asked whether he told Ms. Wright about the charge on the Cornerbrook property, his answer was, “I told you I needed help with money”.

[74] He also testified that he did not know that Ms. Wright’s consent was necessary to encumber the matrimonial home.

[75] When it was underlined, during cross-examination, that he had completed a mortgage broker course in August of 2012, he testified that he only learned how to “write mortgages”, not about “legal” matters. He said that he could not recall who did the paperwork for the mortgage on the Cornerbrook property.

[76] In April of 2013, Ms. Wright agreed to sell the Cornerbrook property if Mr. Wright paid the real estate commission and she received all the equity in the property. She testified that Mr. Wright replied that he would stay in the home until the bank took it, and both he and Ms. Wright would lose.

[77] In June of 2013, Kaufman J. made a non-depletion order and ordered both parties to disclose all their net family property information before December 2, 2013.

[78] Mr. Wright testified that Ms. Wright continued to take personal property from the home.

[79] In July of 2013, Mr. Wright installed security cameras inside the Cornerbrook property in the bedrooms, bathrooms, garage, and common areas, except the basement, for the purpose of preventing Ms. Wright from removing more personal property.

[80] Ms. Wright asked Mr. Wright to remove the cameras for privacy reasons, but he refused.

[81] In August of 2013, Mr. Wright arrived home and found that a sink, ordinarily in one of the bathrooms, had been removed. He drove to the Haymer property, where he saw Ms. Wright’s uncle doing renovations, and he saw the sink in the garage. Ms. Wright told Mr. Wright that her uncle saw him at the Haymer property so she was going to seek a restraining order to keep Mr. Wright away from the Haymer property.

[82] In September of 2013, Mr. Wright called the police because Ms. Wright had removed a PVR from the Cornerbrook property. Ms. Wright told police that she owned the PVR. Mr. Wright called the PVR vendor who confirmed that it had been purchased by him. The police told Ms. Wright to return the PVR or she would be charged. She returned the PVR.

[83] Mr. Wright told police, at that time, that Ms. Wright could remove her beds, a crib, and the dining room set, if she was moving out.

[84] Ms. Wright testified that, in September of 2013, Mr. Wright removed the doors from a washer/dryer she owned before marriage and also rendered the washer/dryer inoperable.

[85] In November of 2013, Mr. Wright opened a fifth Nappy’s location, in Scarborough.

[86] Mr. Wright did not comply with Kaufman J.’s disclosure order by December 2, 2013.

[87] Mr. Wright’s bank records show deposits totalling $16,120 in December of 2013. He testified that some of the deposits “might” have been loans and that a deposit of $3,000 on December 20th was a loan.

[88] Mr. Wright’s 2013 income tax return states that his 2013 income was $14,320. It also states that his gross business income for 2013 was $30,877 for management services. The return states that he is the sole owner of the business.

[89] In January, 2014, despite Ms. Wright’s strong objection, Mr. Wright rented out a room in the Cornerbrook property to a relative for $600 per month.

[90] On January 14, 2014, Rogers J. made a disclosure order requiring comprehensive disclosure from Mr. Wright with respect to his personal and business finances. Rogers J. also made a without prejudice temporary order for Mr. Wright to pay Ms. Wright $500 per month in combined child and spousal support.

[91] The parties agree that they understood Rogers J. to have told them that day that each of them was at liberty to remove personal property they owned prior to marriage, from the Cornerbrook property.

[92] On March 31, 2014, Mr. Wright obtained an order for exclusive possession of the Cornerbrook property, effective at the end of June of 2014, contingent upon Ms. Wright being in a position to move into the Haymer property by obtaining vacant possession from her tenants.

[93] Mr. Wright testified that he complied with Rogers J.’s disclosure order for his personal finances on April 17, 2014. He asked this court to review part of the continuing record to confirm that he had complied. The court did so and found that Mr. Wright did not fully comply with Rogers J.’s order for personal financial information on that date.

[94] He was required, for example, to provide all applications he had made for credit, including mortgages, during the previous five years.

[95] He testified that he bought a residential property in Ajax in August of 2013, which was sold in the March or April of 2014. He testified that he bought the property as an investment and as a favour to a friend. He testified that his friend supplied the $50,000 down payment and Mr. Wright obtained a mortgage for $310,000 on the property, without being asked about his income, because there was a tenant, and the lender only asked for a copy of the lease. Mr. Wright also testified that he never received any rental income from the property. He could not explain why his friend who provided the down payment was not on title, other than to say that she trusted him.

[96] The court does not accept Mr. Wright’s testimony that he did not have to disclose his income in an application to obtain a mortgage on the Ajax property.

[97] Rogers J.’s disclosure order also required Mr. Wright to provide mortgage information for the Ajax property, but he did not do so.

[98] On April 23, 2014, Nicholson J. ordered Mr. Wright to disclose copies of all applications for personal or business loans, copies of year-end financial statements, including a balance sheet and a statement of profit and loss for any business in which he had a beneficial interest, and full particulars about the second mortgage on the matrimonial home, within thirty days.

[99] Mr. Wright testified that he complied with disclosure orders for his business finances on May 23, 2014.

[100] Rogers J.’s order required disclosure of the loan application for a particular vehicle, copies of bank records for the business for the previous three years, and copies of complete corporate income tax returns for the previous three years. Again, Mr. Wright asked this court to review part of the continuing record to confirm that he had complied. The court did so and found no financial disclosure about the business other than a one page letter from a creditor stating the amount that would be required to buy out the lease of a motor vehicle registered to Mr. Wright at his business address. To be fair to Mr. Wright, the court also skimmed through the two subsequent volumes of the continuing record, in case the disclosure was filed elsewhere. The only other disclosure for the business in the continuing record was unaudited 2012 financial statements for the business. The court did not read the statements because they were not in evidence. None of the other disclosure items were in the continuing record.

[101] Mr. Wright also failed to comply with Nicholson J.’s disclosure order of April 23, 2014.

[102] On May 24, 2014, Ms. Wright removed a television, bought during the marriage, and a clock radio, from the Cornerbrook property. Mr. Wright called the police.

[103] On May 30, 2014, a small claims court judge dismissed Ms. Wright’s action to recover the $20,000 down payment and the $5,715 credit card cheque balance, on the ground that those issues should be addressed during the family court trial.

[104] On June 7, 2014, Ms. Wright arranged for police to attend the Cornerbrook property while she removed two mattresses, the dining room set, and a desk. Although Mr. Wright had agreed to Ms. Wright removing her beds and the dining room set in September of 2013, he testified that his permission was no longer effective in June of 2014, because of the passage of time, and because Ms. Wright did not leave voluntarily.

[105] Ms. Wright testified that she left the Cornerbrook property on a final basis on June 22, 2014. She testified that she left behind the following personal property that belongs to her: a boxing bag, a desk, a wardrobe, a dresser, a television stand, patio furniture, a barbeque, a Wii game, an X-Box, a desktop computer, a filing cabinet, and ancient swords. She did not provide values for these items other than her testimony that she paid $350 in September of 2010 for the wardrobe.

[106] Ms. Wright testified that an employee of Mr. Wright’s rented the Haymer property for two months and caused $900 damage to a counter top. Ms. Wright also testified that Mr. Wright promised to speak with the employee regarding restitution.

[107] Mr. Wright testified that Ms. Wright wrongly removed personal property from the Cornerbrook property on the fraudulent basis that she had purchased the property before the parties’ marriage on January 2, 2010. He provided receipts for a television set he purchased in 2011 for $3,047, a stove he purchased in 2011 for $1,940, a French door set and dishwasher he purchased in 2009 for $2,460, and a queen bed and nightstand he purchased in 2009 for $1,438. He added that Ms. Wright took the unit that controls the surround sound system in the house. He said that it would cost over $1,000 to replace the unit.

[108] Mr. Wright also provided receipts for items he said that he had to purchase to replace items taken by Ms. Wright. Those items were a television, a bed and a mattress purchased for $3,514 on June 26, 2014, and a dining room set purchased for $983 on June 24, 2014. He testified that he bought the television on credit from the vendor, and that his mother gave him the funds to buy the dining room suite.

[109] In July of 2014, Mr. Wright asked Ms. Wright if she would remove the matrimonial home designation from the title of the Cornerbrook property. She refused.

[110] In August of 2014, Ms. Wright made a number of disclosure requests that were not answered by Mr. Wright, including: proof of rental income at the Hillcrest condo for 2011 to 2013, an explanation for June 30, 2012 as the valuation date, an income analysis of Nappy’s for the previous three years, a copy of the financial books for Nappy’s for the previous three years, a copy of all rental receipts issued in relation to the Cornerbrook property, a copy of the second mortgage agreement for Cornerbrook, the name and contact information of the second mortgagee for the Cornerbrook property, and a copy of the mortgage application for the Ajax property.

[111] Ms. Wright testified that Mr. Wright was carrying over $1.2 million in loans in 2014: around $476,000 for the first mortgage on the Cornerbrook property, around $105,000 for the second mortgage on the Cornerbrook property, around $117,000 for the first mortgage on the Hillcrest condo, around $134,000 for the business loan, around $47,000 for a vehicle loan, around $54,000 for another vehicle loan, around $18,000 for another vehicle loan, and around $300,000 for two mortgages on the Ajax property. A Personal Property and Security Act search filed by Ms. Wright showed that the three vehicles were registered in Mr. Wright’s name, but at three different addresses: his business, the Cornerbrook property, and his brother’s home.

[112] Mr. Wright’s sworn financial statement, dated October 7, 2014, states that his income is $5,400 per month.

[113] Mr. Wright testified that he is not certain what his current income is. He testified that his income is “minimal” at present and his take home pay is “maybe $4,000” per month.

[114] Ms. Wright testified that the business receives significant cash income. When asked, during cross-examination, why his financial statement did not indicate receipt of any gratuities, Mr. Wright’s answer was that he was not getting much in the way of gratuities at present.

[115] He testified that because of legal fees and stress due to the current litigation, his business has not been doing well. He testified that he might have to close one of the locations because he is behind in the rent at that location and only has four employees there at present. He testified that the business is losing money because being the owner is more work than he expected.

[116] Ms. Wright’s notices of assessment confirm the following incomes: $69,227 for 2010, $75,636 for 2011, and $55,278 for 2012. Presumably, her 2012 income was reduced because she was on maternity leave.

[117] Her financial statement, dated October 24, 2014, states that her income the previous year was $55,278. It seems likely, however, that she was referring to her 2012 income. She attached pay stubs that indicate that her income in 2014 was likely about $65,200.

Background – Custody, Parenting Plan, and other Child-Related Issues

[118] Once again, the court has reviewed all of the evidence, but will set out only the more salient points to provide a context for analysis.

[119] Ms. Wright’s eldest son, Shaquille, has had very limited interaction with his biological father. Mr. Wright adopted Shaquille and the two of them were close for a number of years.

[120] For many years, Ms. Wright has not had a relationship with her parents who she says were abusive to her when she was a child. For that reason, for many years, she has not promoted a relationship between her children and her parents. Mr. Wright felt that her position was not in the children’s best interests, so, without her knowledge, he arranged for Ms. Wright’s children to meet with Ms. Wright’s parents.

[121] Ms. Wright’s eldest son, Shaquille, testified at the trial that he was pleased to meet his mother’s parents at the time, but, since then, he feels guilty that he met them behind his mother’s back.

[122] Ms. Wright testified that on several occasions, during 2010 and 2011, Mr. Wright required her to temporarily leave the Cornerbrook property as a result of arguments between them.

[123] In early 2011, for example, the parties argued because Mr. Wright was upset that Ms. Wright wanted to visit her cousin in California soon after taking an extended trip to Mexico with a girlfriend. Ms. Wright was upset because Mr. Wright attended an event with his ex-wife and children while Ms. Wright was in Mexico. Ms. Wright testified that Mr. Wright then told her to leave the matrimonial home. During cross-examination, Ms. Wright admitted that she had failed to mention that she slapped Mr. Wright on the face during the argument. She added, however, that after the slap, Mr. Wright choked her. She was asked why she didn’t mention the choking during her evidence in chief. Her response was the she did not know.

[124] Ms. Wright testified that she was the primary caregiver for all of the children, except for temporary periods that Mr. Wright would not allow her to stay in the home. She testified that Mr. Wright was working seven days a week and usually didn’t come home from work until after midnight.

[125] Shaquille testified that Mr. Wright worked seven days a week and rarely came home before 9 p.m., while they lived together.

[126] On August 29, 2012, the parties had an argument sparked by a man calling their home and asking for Ms. Wright. Mr. Wright left for a while. Anticipating that something might happen when he returned, Mr. Wright audiotaped his entrance into the home. When he entered, he could hear Ms. Wright whispering in a washroom that Mr. Wright had threatened to hurt her. Soon thereafter police arrived at the home. Mr. Wright played the audiotape to the police. Ms. Wright then denied to police that she had alleged being threatened by Mr. Wright. At the trial in this court, Ms. Wright testified that she called the police because she thought Mr. Wright would require her to leave the matrimonial home.

[127] In November of 2012, police officers were at the home and observed Ms. Wright hide Malakai’s formula from Mr. Wright, as Mr. Wright was leaving with Malakai.

[128] In January of 2013, Mr. Wright stopped bringing his children to the Cornerbrook property. They did not return for a year.

[129] As noted earlier, Ms. Wright returned to work that month. She and Mr. Wright agreed to split the cost of daycare evenly.

[130] Ms. Wright unilaterally enrolled Malakai in swimming lessons in March of 2013. Mr. Wright refused to take Malakai to the lessons during his time with Malakai, on the basis that he had not been consulted.

[131] Ms. Wright testified that Mr. Wright stopped paying toward daycare in April of 2013 so she asked the daycare to charge them separately. Mr. Wright was billed for Monday and Tuesday and Ms. Wright was billed for Wednesday through Friday.

[132] As noted earlier, in July of 2013, Mr. Wright installed security cameras inside the Cornerbrook property in the bedrooms, bathrooms, garage, and common areas, except the basement, for the purpose of preventing Ms. Wright from removing personal property. Ms. Wright asked him to remove the cameras, on the basis of privacy, but he refused.

[133] On July 19, 2013, Ms. Wright covered the cameras with clothing for privacy reasons. She was in her bedroom with Malakai at about 2 a.m. when she heard Mr. Wright return to the home and leave shortly thereafter. At 6 a.m. she was awakened by police officers inside her bedroom. She testified that an officer took Malakai from her and handed him to Shaquille. Ms. Wright was arrested and taken to the police station, in her pyjamas, and in handcuffs, because Mr. Wright had reported that she had taken five of his motorcycle helmets and she had damaged the wiring to one of his security cameras. Ms. Wright was held at the station for six hours and then released as the charges were dropped. Mr. Wright testified that he hadn’t wanted the police to attend the home but they insisted. When asked who let the police inside the house, he reluctantly admitted that it was him.

[134] In July of 2013, the York Region Children’s Aid Society (CAS) became involved in this matter because of risk of emotional harm to Malakai and Ms. Wright’s second youngest child, Jaden, due to adult conflict in the home.

[135] In August of 2013, Mr. Wright cut off the television cable service and home telephone service to the Cornerbrook property except for his bedroom. He also cut off the air conditioning and changed the lock on the mailbox. He testified that he told Ms. Wright in advance that he would do cut off those services if she did not contribute to the cost.

[136] On September 19, 2013, Mr. Wright reported to the CAS that Malakai was ill, but he could not take him to a doctor because Ms. Wright had removed the baby’s car seat, as well as the thermometer, baby cream, and baby food.

[137] On September 21, 2013, Ms. Wright reported to the CAS that Mr. Wright had left a package of muscle relaxant pills accessible in his bedroom and Malakai had put one in his mouth. Mr. Wright responded that the pills were out of the child’s reach and Ms. Wright must have fabricated the allegation.

[138] On October 4, 2013, Ms. Wright reported to the CAS that Mr. Wright had taken Malakai’s crib, creams, clothes, and towels. She also stated that Malakai had fallen out of bed because she did not have the crib. Mr. Wright responded by reporting that Ms. Wright had taken all the baby furniture in the home except the crib. Mr. Wright would not agree to return the crib to a common area of the home on the ground that Ms. Wright would remove it. Ms. Wright replied that she could not afford to buy another crib, so the CAS purchased her a crib to ensure that the baby was safe.

[139] In November of 2013, Mr. Wright changed the thermostat to wireless controls so that he could control the temperature in the matrimonial home via his cell phone. Ms. Wright reported to the CAS that the thermostat was locked and Mr. Wright was allowing the temperature to drop to 13 degrees Celsius. Mr. Wright responded that Ms. Wright could change the setting manually and that the system was set to maintain a minimum temperature of 17 degrees Celsius. He also stated that Ms. Wright had the option of moving to the Haymer property and paying for heat herself.

[140] Also that month, Mr. Wright complained to the CAS that Ms. Wright would leave Malakai locked in her bedroom crying while she watched television in the basement.

[141] On November 28, 2013, Mr. Wright arrived early for an exchange of Malakai. When Ms. Wright refused to exchange Malakai early, Mr. Wright stood in the doorway. Ms. Wright testified that Jaden, who wanted to go to work, did not feel comfortable trying to get past Mr. Wright, so he was late for work. Mr. Wright testified that Jaden didn’t go to work because Jaden knew that Ms. Wright was in the wrong.

[142] That month, Ms. Wright complained to Mr. Wright’s lawyer that Mr. Wright had taken from the matrimonial home: a vacuum, a knife block with a set of knives, alcohol, five couch throws, comforters and linen, towels, a phone, an answering machine, stools for the kitchen bar, two computer gaming units, luggage, an iron and ironing board, three computers, a crib, sheets, blankets, bibs, all of Malakai’s clothing, two strollers, six bottles, cutlery, creams, and shampoo. Mr. Wright testified that he never removed anything from the matrimonial home.

[143] On December 19, 2013, Mr. Wright changed the locks on the matrimonial home without notice to Ms. Wright. She arrived home with Malakai and her two other children and called for a locksmith. Mr. Wright drove by and called the police, alleging that Ms. Wright was breaking into his residence. Police attended and, upon learning that Ms. Wright lived at the home, arrested Mr. Wright for mischief and public mischief. He was later released without charge because he said that he had acted on his lawyer’s advice. He testified that he did not think that locking Ms. Wright and the children out of the matrimonial home on the first day of the children’s Christmas vacation would have any effect on the children.

[144] On December 20, 2013, Ms. Wright reported to the CAS that Mr. Wright had taken all the food from the home.

[145] On December 21, 2013, she reported that he had taken all the pots and pans.

[146] On December 24, 2013, Mr. Wright told the CAS that he was en route to his lawyer’s office to get a restraining order to force Ms. Wright out of the Cornerbrook property.

[147] On December 27, 2013, Mr. Wright reported to police that Ms. Wright had taken the plates, food, and pots and pans from the house. He also reported that the doors were missing from a washer/dryer that belonged to Ms. Wright, and denied that he took them.

[148] As noted earlier, in January, 2014, despite Ms. Wright’s strong objection, Mr. Wright rented a room in the Cornerbrook property to a relative. The tenant hosted late and loud social gatherings on occasion and made a mess in common areas of the home. The tenant used the same bathroom as Ms. Wright and her children. Mr. Wright had the use of his own bathroom.

[149] Early that month, Shaquille experienced suicidal ideation because of the continuing conflict between the parties and being repeatedly asked, by both of them, but mainly Mr. Wright, to decide which of the parties was right about various issues being argued. Shaquille moved out of the house to his aunt’s home later that month. He took his mattress and a sectional couch with him. Mr. Wright said that he would call the police about the removal of the property but he did not. Shaquille has not spoken to Mr. Wright since that time because he disapproves of Mr. Wright’s conduct while the parties were living together after their separation, and he believes that Mr. Wright’s personality has changed.

[150] As noted earlier, on January 15, 2014, Rogers J. ordered Mr. Wright to pay Ms. Wright $500 per month for combined child and spousal support on a temporary and without prejudice basis, commencing that date.

[151] That month, Mr. Wright started bringing his children to the house again.

[152] On January 23, 2014, the CAS became involved in a dispute between the parties over which one of them had torn the label off a container of medication for Malakai.

[153] In February of 2014, Ms. Wright reported to the CAS that Mr. Wright had spread Comet cleanser around the bathroom and Malakai had picked some up and put it into his mouth. Mr. Wright’s response was that Ms. Wright was responsible to keep the bathroom clean, and she didn’t, so he spread the cleanser around so she would have to clean the bathroom.

[154] In March of 2014, Ms. Wright, again, unilaterally, enrolled Malakai in swimming lessons. Mr. Wright, again, refused to take Malakai to the lessons during his time with Malakai, on the basis that he had not been consulted.

[155] As noted earlier, on March 31, 2014, Mr. Wright obtained an order for exclusive possession of the Cornerbrook property, effective at the end of June of 2014, on the basis that Ms. Wright should move into her Haymer property, on the condition that Ms. Wright could obtain vacant possession from her tenants. Pending Ms. Wright’s move, a nesting order was put into place.

[156] In his supporting Affidavit for that motion, Mr. Wright swore that Malakai had become fearful of going to his daycare provider as a result of Ms. Wright’s behaviour. At trial, Mr. Wright testified that Malakai did not become fearful of his daycare provider.

[157] Around that time, the CAS recommended, to Mr. Wright, that Malakai should be taken to play therapy. At the time of trial, Mr. Wright testified that he had not acted upon that recommendation because he did not have Ms. Wright’s consent. Ms. Wright testified that Mr. Wright had never asked for her consent, and that she would consent.

[158] On April 23, 2014, Nicholson J. ordered the current parenting plan for Malakai on a temporary basis. It is comprised of a 2/2/5/5 day split over a two week period, with all exchanges to occur at a neutral location – daycare or school. The effect of the order is that Malakai spends half his time with each parent.

[159] In May of 2014, Malakai’s daycare provider became unavailable. The parties could not agree who should take over as daycare provider, so, since that time, they each take Malakai to a different daycare provider. He is taken to one provider on Mondays and Tuesdays and to another provider on Wednesdays through Fridays. Ms. Wright denied, during cross-examination, that she had pretended to be divorced in order to register Malakai with a different daycare provider. She later admitted, however, when she was shown the daycare application, that she had claimed that she was divorced.

[160] Mr. Wright testified that, during the trial, Ms. Wright dropped Malakai off at daycare without boots, gloves, or snow pants, and that the daycare had to provide Malakai with someone else’s shoes because Ms. Wright had dropped him off with spring shoes.

[161] Mr. Wright testified that his two youngest children are currently in therapy as a result of the stress they experienced at the matrimonial home when Ms. Wright was present.

[162] Ms. Wright testified that Mr. Wright currently works seven days per week, and his busiest days are Thursday through Sunday.

[163] She testified that she believes that Mr. Wright refuses to agree with anything she suggests for Malakai.

[164] Shaquille testified that both Ms. Wright and Ms. Wright are good parents to Malakai.

[165] Ms. Baqri, the CAS family service worker who has had carriage of the CAS file since August of 2013, testified that she has no concerns about the mental health of either party.

[166] She believes that both parents have contributed to their on-going conflict.

[167] She testified, however, that there has been a significant reduction in conflict since Ms. Wright moved out of the matrimonial home, although Ms. Baqri still receives calls from the parties.

[168] She stated that Malakai has always had a good relationship with both parties.

[169] She does not believe that either party is a better decision-maker for Malakai.

[170] She would not be concerned if either party had sole decision-making authority for Malakai.

[171] She also believes that the parties are capable of joint decision-making in the best interests of Malakai.

Positions of the Parties on Custody, Parenting Plan, and other Child-Related Issues

[172] Ms. Wright seeks sole custody and primary residence of Malakai on the basis that she has always been his primary caregiver, whereas Mr. Wright has always worked, and will continue to work, long hours. That is particularly so, she submits, given that he testified that his business is experiencing difficulty and requires more time and effort from him to recover.

[173] Furthermore, she argues, Mr. Wright’s past conduct shows that he is not capable of putting children’s best interests first.

[174] She submits that he was abusive to Jaden, Malakai, and herself when he disabled the air conditioning at the matrimonial home during the summer, when he kept the heat low in the matrimonial home during the winter, and when he removed the home telephone service so it was no longer available for emergency use.

[175] She underlines that Mr. Wright gave no thought to the emotional and psychological impact on the children when he called police to the matrimonial home to arrest Ms. Wright, put the children in the middle of arguments, and locked the children and Ms. Wright out of the matrimonial home on the first night of the Christmas school vacation in 2013.

[176] She also submits that it was abusive of Mr. Wright to call Ms. Wright’s mother as a witness at the trial given that she had told him that her mother had been abusive toward her when she was a child. She also submits that it was abusive of Mr. Wright to put a second mortgage on the matrimonial home without her knowledge and to list the matrimonial home for sale without her knowledge. Similarly, she argues, it was abusive for Mr. Wright to install security cameras throughout the matrimonial home in order to intimidate her and control the children through a breach of natural privacy. She also submits that Mr. Wright was abusive when he removed items from the matrimonial home, damaged Ms. Wright’s washer/dryer, and removed her name from the household contents insurance without her knowledge.

[177] She submits that the fact that Mr. Wright no longer has a relationship with her children, Shaquille and Jaden, and the fact that his two youngest children are in therapy, demonstrates that he is not good at parenting.

[178] She also submits that joint custody is not feasible because of the high level of conflict between the parties. She submits that Mr. Wright has demonstrated an intimidating, controlling, uncompromising, and domineering nature and that he disagrees with anything she says, simply for the sake of disagreeing.

[179] She proposes a parenting plan that would give Malakai access with Mr. Wright either from Monday afternoon until Thursday morning, on alternate weeks, or, from Sunday morning until Wednesday morning, on alternate weeks. She submits that Mr. Wright is more available on those days due to his work schedule. She emphasizes his mother’s testimony that she watches the children while Mr. Wright works on weekends. She suggests that the children would have better quality time with Ms. Wright on Thursday, Fridays, Saturdays, and Sunday mornings.

[180] She also proposes that Mr. Wright should have access with Malakai for two weeks in the summer and that the parties should share holidays and birthdays.

[181] She also proposes that the parties should be given the flexibility to change the parenting schedule on consent when necessary.

[182] She suggests that the only reason Mr. Wright wants more time with Malakai is to avoid being required to pay child support.

[183] Mr. Wright submits that he should have sole custody and primary residence of Malakai because he places Malakai’s interests first, whereas Ms. Wright is motivated solely by financial considerations.

[184] He suggests that she has acted against the interest of her children by preventing a relationship between them and her mother, and preventing a relationship between them and their fathers, and he submits that conduct indicates that she will alienate Malakai from Mr. Wright and his relatives if she has sole custody. Mr. Wright suggests that Ms. Wright demonstrated her poor parenting judgment by calling Shaquille as a witness at the trial.

[185] He submits that joint parenting would not work because Ms. Wright does not communicate well with him and she blows small issues out of proportion.

[186] He proposes a parenting plan that would place Malakai in his care from Sunday at 2 p.m. until Wednesday morning, on alternate weeks, and from Thursday at 6 p.m. until Wednesday morning, on alternate weeks.

Law in relation to Custody and Access

[187] Section 16(8) of the Divorce Act stipulates that a court must take into consideration only the best interests of the child, as determined by reference to the conditions, means, needs and other circumstances of the child, when deciding custody or access.

[188] Section 16(9) of the Divorce Act stipulates that the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent.

[189] Section 16(10) of the Divorce Act stipulates that a court must give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child and the court shall take into consideration, for that purpose, the willingness of each parent for whom custody is sought to facilitate such contact.

[190] Section 16(5) of the Divorce Act stipulates that a parent who is granted access to a child has the right to make enquiries, and to be given information, as to the health, education and welfare of the child, unless the court orders otherwise.

[191] Provincial legislation provides additional guidance about determining the best interests of a child.

[192] Section 24(1) of the Ontario Children’s Law Reform Act (CLRA) requires that applications in respect of custody of and access to a child shall be determined on the basis of the best interests of the child in accordance with the balance of section 24.

[193] Section 24(2) stipulates that the court shall consider all the child’s needs and circumstances, including, relevant in this case;

• the love, affection and emotional ties between the child and each person entitled to or claiming custody of or access to the child,

• the child’s views and preferences, if they can reasonably be ascertained,

• the length of time the child has lived in a stable home environment,

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

• the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing,

• the permanence and stability of the family unit with which it is proposed that the child will live,

• the ability of each person applying for custody of or access to the child to act as a parent,

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

[194] Section 24(3) stipulates that a person’s past conduct shall be considered only if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

[195] Section 24(4) provides, in part, that in assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against his or her spouse or any child.

[196] Some additional guidance is also provided by the Ontario Child and Family Services Act (CFSA) (Section 37(3)) which stipulates that when a person is directed under that legislation to make a determination in the best interests of a child, the person shall take into consideration the following circumstances relevant to this case,

• the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,

• the child’s physical, mental and emotional level of development,

• the religious faith, if any, in which the child is being raised,

• the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,

• the child’s relationships and emotional ties to a parent, relative, other member of the child’s extended family or member of the child’s community,

• the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,

• the child’s views and wishes, if they can be reasonably ascertained,

• the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent,

• any other relevant circumstance.

[197] Section 20(1) of the CLRA stipulates that except as provided otherwise in that Act, the father and mother of a child are equally entitled to custody of a child.

Custody and Access Factors

Love, Affection, and Emotional Ties

[198] There is very little evidence directly on this point. The court infers, therefore, that Malakai has a good connection with both of his parents. The court is confident that it would have been informed of any evidence to the contrary.

Malakai’s Views and Preferences

[199] The court has no direct information about this, which is appropriate given Malakai’s age.

Length of Time the Child has Lived in a Stable Home Environment

[200] Malakai lived with both parties until Ms. Wright moved out of the matrimonial home in June of 2014. Since then, he has lived half-time with each parent.

[201] The time he spent in the matrimonial home was not spent in an emotionally stable environment, but he may have been too young to be significantly affected. The court appreciates that play therapy has been suggested by the CAS and recommends that the parties follow up with that suggestion, in case it is helpful, but there is no direct evidence before the court that Malakai has suffered any harm from being in an unstable environment.

[202] It seems quite likely that Malakai is in a much more stable environment now that he lives with each parent in separate homes.

Ability and Willingness to Provide Guidance and Education, the Necessaries of Life and any Special Needs of the Child

[203] There is no evidence that Malakai has special needs.

[204] Ms. Wright has taken him to play group and she has taken him to swimming lessons. Both of those activities are quite appropriate for a child of his age.

[205] There is no evidence that Mr. Wright has taken similar steps.

[206] In fact, the evidence is that he refuses to take Malakai to swimming lessons because Ms. Wright enrolled Malakai without Mr. Wright’s consent. While Mr. Wright is correct that Ms. Wright should have sought his consent and made an effort to enroll Malakai for swimming lessons at a time that was convenient for both parents, it is also true that swimming lessons are important for Malakai’s safety and are, therefore, in Malakai’s best interests. Refusing to take Malakai to swimming lessons is not in Malakai’s best interests.

[207] Mr. Wright’s decision to change the locks on the matrimonial home in the winter and then call the police when Ms. Wright took steps to get back inside with the children, was also inappropriate, whatever his lawyer may have suggested. That was a clear failure on Mr. Wright’s part to provide appropriate and necessary shelter for Malakai as well as the other children. He had no good faith basis upon which to reasonably conclude that Ms. Wright was no longer living in the home. In fact, he spoke with Ms. Baqri that day and said nothing to her about changing the locks. Presumably, he was hoping for Ms. Wright to be arrested and taken to the police station. He was definitely not focusing on Malakai’s best interests at that time.

[208] Furthermore, the evidence that Mr. Wright disabled the air conditioning in the matrimonial home during the summer is troubling. It seems that his focus at that time was financial. While it is, perhaps, understandable that he was frustrated by Ms. Wright’s refusal to contribute anything towards the utility bills, particularly since she was receiving a significant income, although she felt that he owed her money and she was understandably upset about his apparent misconduct in relation to the second mortgage and listing for sale of the matrimonial home, his focus should have been on Malakai’s best interests and comfort.

[209] On the other hand, the evidence indicates that both parents removed necessaries for the care of Malakai from the home. It was obviously inappropriate for them to do so. It is disappointing that the CAS had to use its scarce resources to buy a crib for Malakai because of the inappropriate conduct of his parents. The court does not accept Ms. Wright’s statement to the CAS that she could not afford a crib. Mr. Wright should not have locked the only crib in his room, no matter how upset he was about Ms. Wright allegedly taking another crib, but, given that he did so, Ms. Wright should have simply bought another crib.

[210] Similarly, the court is dismayed by the conflict over clothing for Malakai. Clearly, both parents have an obligation to ensure that he is appropriately clothed at all times. Dropping him off at daycare without appropriate winter wear in the winter is a failure to provide the necessaries of life. Both parents should always have appropriate spare clothing available for Malakai and they both should ensure that clothing provided by the other parent is returned to the other parent without delay.

[211] The court is also disappointed by Mr. Wright’s inappropriate control of the heat at the matrimonial home. Again, while he may have been frustrated by Ms. Wright’s refusal to pay for any of the utilities, although she may have thought she had good reason to take that position, he should have put Malakai’s interests first. Nevertheless, Ms. Wright could have taken steps to remedy the situation, without involving the CAS and, thereby, feeding the conflict.

Plan Proposed for the Child’s Care and Upbringing

[212] Neither party put forward a plan other than their proposals for a new parenting time schedule.

[213] Both parties seek a schedule that increases their time with Malakai and decreases Malakai’s time with the other parent.

Permanence and Stability of the Family Unit

[214] There was no evidence indicating that either parent is unable to provide a permanent and stable family unit for Malakai.

Ability to Act as a Parent

[215] The court’s observations made with respect to the provision of the necessaries of life could be repeated here. That conduct, on the part of both parties, was inconsistent with exercising an ability to act appropriately as a parent. Both parties are responsible to some degree for the high degree of conflict that has occurred between them, often in the presence of children. Both of them are responsible not to continue their conflict for the sake of their child, Malakai. To the time of the trial, they had not met that responsibility, although there has been some improvement since Ms. Wright left the matrimonial home.

[216] Mr. Wright’s decisions to attend the police station at night and to allow the police to enter the matrimonial home and enter the bedroom of Ms. Wright at 6 a.m., regarding an allegation involving some motorcycle helmets and some wires attached to a security camera, was inconsistent with exercising an ability to act appropriately as a parent. Having heard the evidence of both parties, the court is shocked by what occurred. The court is aware that Mr. Wright says that he warned Shaquille that the police were coming into the home and that Shaquille remained in the basement and Jaden remained asleep, but, even if that is true, it remains shocking that Mr. Wright would think it appropriate to permit the police to enter the home to arrest Ms. Wright, who was sleeping in her bedroom with Malakai, while there were other children present in the home.

[217] Furthermore, Mr. Wright’s decision to put security cameras throughout the home, including in the bedrooms and bathrooms, was inconsistent with exercising an ability to act as a parent. That was a breach of privacy for everyone in the home, including the children. In doing so, Mr. Wright put financial concerns ahead of parental concerns.

[218] Similarly, Mr. Wright’s decision to rent a room in the home to a tenant, who hosted late and loud social gatherings in the home on occasion, and made a mess in the home, and used the same washroom as Malakai, was inconsistent with properly exercising an ability to act as a parent.

Relationship by Blood

[219] Both parties are biological parents of Malakai.

The Child’s Physical, Mental and Emotional Needs and Appropriate Care

[220] Ms. Baqri from the CAS recommended play therapy for Malakai some time ago but, at the time of the trial, Mr. Wright had not acted upon that recommendation.

[221] Mr. Wright’s changing of the locks in December of 2013, was not appropriate for the physical care of Malakai.

[222] The removal of child-related items by both parents was not appropriate for Malakai’s physical needs.

The Child’s Physical, Mental and Emotional Level of Development

[223] There was no evidence that Malakai is not developing appropriately for his age.

Religious Faith

[224] There was no evidence on this issue.

The Importance for the Child’s Development of a Positive Relationship with a Parent and a Secure Place as a Member of a Family

[225] There was no evidence that either parent is incapable of developing a positive relationship with Malakai and providing him with a secure place as a member of a family, now that the parties live in different homes and have separated their families.

The Child’s Relationships and Emotional Ties to a Parent, Relative, other member of the Child’s Extended Family or Member of the Child’s Community,

[226] Mr. Wright’s mother testified. She has a positive relationship with Malakai that is significant and important to be maintained for his best interests. It is questionable, however, whether Ms. Wright will make an effort maintain that relationship given that she is has not been talking with Mr. Wright’s mother for some time, without good reason. Perhaps that has changed since the trial. It became clear during the trial that what Mr. Wright’s mother said about Ms. Wright, and how Mr. Wright expressed that statement to Ms. Wright, were not the same. Mr. Wright testified that he told Ms. Wright that his mother said that she was crazy. In fact, what his mother said was that it was crazy for anyone to criticize Mr. Wright for going into his daughter’s room when his daughter asked him to go there so she could show him something. Those are very different statements. Hopefully, Ms. Wright realizes that. Hopefully, she also realizes that it is in Malakai’s best interest for her to promote his relationship with Mr. Wright’s mother.

[227] A more complex issue is Ms. Wright’s relationship with her parents and her decision for many years not to promote a relationship between her children and her parents. Although, on first blush, Ms. Wright’s decision seems unfortunate and, perhaps, not in the best interests of the children, Ms. Wright’s mother gave testimony at the trial that indicated that Ms. Wright’s decision may well be in the children’s best interests, and Mr. Wright’s decision to promote a relationship between Ms. Wright’s children and her mother, without Ms. Wright’s consent, or at least discussing the matter with Ms. Wright, may not have been in the children’s best interests. Ms. Wright’s mother’s testimony was disturbing. She testified that Ms. Wright is “evil” and “needs to be fixed” because she is “crazy”. She testified that her life was in danger while she was testifying via video-link from Calgary because Ms. Wright could send a hit man into the Calgary courthouse to kill her. She also testified that Ms. Wright might kill Malakai. Given Ms. Baqri’s testimony and Shaquille’s testimony that Ms. Wright does not appear to be mentally ill, the court finds that Ms. Wright’s mother’s testimony was not credible and indicated that contact between her and Malakai might not be in his best interests.

The Importance of Continuity in the Child’s Care

[228] As previously noted, Malakai currently spends half of his time with each parent. It seems likely in his best interests that he should continue to spend significant time with each parent.

The Child’s Views and Wishes

[229] As noted above, Malakai is too young for this to be a relevant consideration in this case.

The Risk that the Child may Suffer Harm through being Removed from, Kept away from, Returned to or Allowed to Remain in the Care of a Parent

[230] As previously noted, it seems likely that Malakai benefits from spending significant time with each parent. It follows that it would likely be contrary to his best interests to lose significant contact with each parent.

Analysis – Custody, Parenting Plan, and other Child-Related Issues

[231] The court finds that both parents have acted contrary to the best interests of Malakai at various times.

[232] In Mr. Wright’s case, he acted contrary to the interests of Malakai by disabling the matrimonial home air conditioning in the summer, keeping the matrimonial home heat low in the winter, creating and escalating conflict in the home by frequently involving the police by repeatedly seeking to have the police confront Ms. Wright at the home about property issues, especially on the occasion he permitted police to enter the home at 6 a.m. to arrest Ms. Wright in her bedroom while she was sleeping with Malakai, changing the locks at the home during the winter, falsely reporting that Ms. Wright was breaking into the home at that time, removing necessaries for Malakai’s care from the home, bringing a disruptive tenant into the home, installing privacy-breaching security cameras throughout the home, and arranging for Ms. Wright’s children to meet Ms. Wright’s parents without her knowledge.

[233] In Ms. Wright’s case, she acted contrary to the interests of Malakai by creating and escalating conflict by removing property from the home, refusing to contribute to the utility bills while she was living in the home, unilaterally enrolling Malakai in swimming lessons during his time with Mr. Wright, and frequently involving the CAS, including by falsely stating that she could not afford a crib, and by removing necessaries for Malakai’s care from the home, and by not providing appropriate clothing for Malakai at all times.

[234] Although the conflict between the parties has lessened since Ms. Wright stopped living in the matrimonial home, the court is satisfied that the parties are not able to co-operate sufficiently for joint custody to be practicable and in the best interests of Malakai.

[235] Although there are valid reasons to be concerned about either party having custody of Malakai, based on the evidence, the court finds that Mr. Wright’s conduct has been more contrary to the best interests of Malakai. As a result, the court finds that Ms. Wright should have custody and primary residence of Malakai, upon certain terms and conditions.

[236] With respect to Malakai’s parenting schedule, the court accepts Ms. Wright’s testimony that Mr. Wright is busiest at work from Thursday until Saturday. The court finds, therefore, that it is in Malakai’s best interests to be in Mr. Wright’s care every week from Sunday at 10 a.m. until Wednesday after daycare or school, or 5 p.m. if Malakai does not attend daycare or school that Wednesday, and in Ms. Wright’s care the rest of the week, subject to certain exceptions.

[237] The court accepts Mr. Wright’s suggestion that on days that Malakai does not attend daycare or school, exchanges should occur at the Tim Horton’s restaurant at 533 Cityview Blvd., Vaughan, Ontario, near the intersection of Teston Road and Weston Road.

[238] Ms. Wright shall not enroll Malakai into a daycare or school that is more than 20 minutes’ drive from 24 Haymer Drive, Maple, Ontario, without advance written consent from Mr. Wright or a court order.

[239] Ms. Wright shall not enroll Malakai into extracurricular activities for days that he is in Mr. Wright’s care, without advance written consent from Mr. Wright, which shall not be unreasonably withheld.

[240] As an exception to the usual schedule, Ms. Wright shall have care of Malakai from December 24th at 4 p.m. until December 25th at 4 p.m. in even years and Mr. Wright shall have care of Malakai during that period in odd years.

[241] Also as an exception to the usual schedule, each party may have two non-consecutive summer weeks with Malakai during July and August each year. Ms. Wright will have first choice of two non-consecutive weeks in odd years and Mr. Wright shall have first choice of two non-consecutive weeks in even years, provided that the party with first choice notifies the other party of their two choices, in writing, on or before March 31st (except in 2015 when the deadline is June 1st). The other party shall have second choice of two non-consecutive weeks in those years, provided that the party with second choice notifies the other party of their two choices, in writing, on or before April 30th (except in 2015 when the deadline is June 15th). The summer weeks shall commence and end at 5 p.m. on a Friday.

[242] The party taking Malakai to daycare or school shall ensure that Malakai is dressed properly for the weather and planned activities in clean clothing and has spare clean clothing in case a change of clothing is required during the day. Clothing taken to Malakai’s daycare or school by Mr. Wright on a Wednesday shall be returned to Mr. Wright, by Ms. Wright, in a clean condition at the next exchange at Tim Horton’s.

[243] The party taking Malakai to an exchange at Tim Horton’s shall ensure that Malakai is dressed properly for the weather in clean clothing. The other party shall return that clothing to the party who provided the clothing, in a clean condition, at the next exchange at Tim Horton’s.

Financial Issues

The Down Payment Debt

[244] Mr. Wright admitted during his testimony that he agreed to re-imburse Ms. Wright for the $20,000 she paid, from her own funds, as a down payment on the Cornerbrook property. Although Mr. Wright also testified that he partially repaid her $9,000 towards that debt when the house purchase closed on August 28, 2009, the court finds that is unlikely given that the parties signed an agreement (Exhibit 7), over two years later, on November 30, 2011, that stipulated that Mr. Wright owed $20,000 to Ms. Wright, and that she was to be repaid in April of 2012.

[245] Although Mr. Wright testified after Ms. Wright, he never directly contradicted her testimony that that Exhibit 7 related to her funds used for the down payment.

[246] Furthermore, Exhibit 7 is consistent with Ms. Wright’s testimony that Mr. Wright had not yet paid her back any part of the down payment when the agreement was signed, but, rather, he promised to repay her for the down payment if she transferred title to the Cornerbrook property to him, and, once the transfer was completed, he then asked to delay the repayment so that he could use her $20,000 toward buying Nappy’s.

[247] As a result, the court finds that the $9,000 Mr. Wright paid to Ms. Wright, around the time of the Cornerbrook property closing, was not a partial repayment of down payment made by Ms. Wright.

[248] Accordingly, based on Mr. Wright’s admission that he is obliged to re-imburse the down payment to Ms. Wright, Exhibit 7, and Ms. Wright’s testimony, the court finds that Mr. Wright owes Ms. Wright $20,000 as re-imbursement for the down payment.

The Credit Card Debt

[249] As mentioned earlier, Ms. Wright testified that soon after she started dating Mr. Wright, he asked her to use equity from her home in Brampton to pay legal fees for his divorce. When she refused, she testified that he asked her to allow him to use cheques drawn on her credit card to pay his legal fees, with the promise that he would make the monthly payments of principal and interest on the debt until it was repaid in full by him. She testified that she agreed to Mr. Wright’s second request and that her credit card was used to pay $8,640 of his legal fees, $6,550 for a mortgage penalty he had to pay for the Hillcrest condo, and $700 for winter tires for his truck.

[250] Ms. Wright testified that, later on, her bank would not transfer her mortgage on her Brampton home to the Cornerbrook property unless the credit card debt was paid off. She testified that Mr. Wright paid her $9,000 towards that credit card debt at that time, and she paid off the balance owing of $5,715, which he still owes her.

[251] Mr. Wright, on the other hand, testified that it was entirely Ms. Wright’s idea to pay the legal fees for his divorce and that he would have been content to represent himself to save money. He said that she did not suggest that he should pay her back for that payment until the current court proceeding commenced.

[252] He did not, however, provide any explanation for Ms. Wright’s testimony, corroborated by Exhibits 2 and 3, that her credit card was also used to pay a penalty for the Hillcrest condo and to purchase winter tires for his truck.

[253] Moreover, he admitted paying her $200 per month for a period of time, although he claimed that was for some other, unspecified, purpose.

[254] Based on the evidence, the court finds that the $9,000 Mr. Wright paid Ms. Wright, around the time of the 120 Cornerbrook purchase, was toward the credit card debt and not, as the court has already found, toward repaying the down payment.

[255] Accordingly, the court finds that Mr. Wright owes Ms. Wright $5,715 for the balance of the credit card loan.

Equalization

[256] Mr. Wright’s financial statement of October 7, 2014 (Exhibit 54), indicates that on the date of marriage, January 2, 2010, the Hillcrest condo was worth $176,000. As noted earlier, he put a mortgage of about $135,000 on the property in May of 2009. Thus, his equity on the date of marriage was likely about $45,000, after payment of some principal.

[257] Mr. Wright’s financial statement indicates that on the date of separation proposed by Mr. Wright, i.e. June 30, 2012, the Hillcrest condo was worth about $156,000 and the mortgage was $126,000. Thus, his equity was then about $30,000.

[258] Mr. Wright also owned the Cornerbrook property on the date of separation. According to his financial statement, the Cornerbrook property was then worth about $620,000. As noted earlier, however, based on the selling price of another property and the listing price of another property, on the same street, later in 2012, Ms. Wright estimated that the Cornerbrook property was worth about $755,000 on the date of separation. The court must bear in mind, nevertheless, that Mr. Wright listed the property for sale for $700,000 in February of 2013. Furthermore, a real estate agent, retained by Mr. Wright, appraised the property at between $709,800 and $723,400 in 2014.

[259] The court is left in a difficult position to determine the likely value of the matrimonial home on the date of separation. As the court informed the parties, expert evidence would have been helpful. Based on the evidence made available, however, the court finds that the Cornerbrook property was probably worth at least $690,000 on the date of separation.

[260] Mr. Wright’s net family property statement of May 22, 2014 (Exhibit 107), supplemented by his testimony, indicates that the Cornerbrook mortgage was about $476,000 at the time of separation. Thus, the court finds that Mr. Wright had equity of at least $214,000 in the Cornerbrook property at that time. Mr. Wright did not own the property on the date of marriage.

[261] Mr. Wright’s financial statement indicates that he had personal property worth about $24,000 on the date of marriage. In addition, his financial statement indicates that he owned a $10,000 receiver for the matrimonial home intercom system on that date, but the court will not allow a deduction from his net family property for the receiver because he did not own the matrimonial home at that time.

[262] His financial statement also indicates that the value of personal property in his possession on the date of separation was about $16,500.

[263] The financial statement also indicates that Mr. Wright had no savings on the date of marriage, but he had $4,500 in savings on the date of separation.

[264] Mr. Wright indicates that the value of Nappy’s was about $24,000 on the date of separation but, given that he and his parents had purchased the business only a few months earlier, and given that they had taken out a business loan for about the same amount as the purchase price, the court finds that Mr. Wright’s ownership of part of Nappy’s has no significant impact on equalization. The same would be true if he owned all of the company.

[265] Using Mr. Wright’s figures, Mr. Wright’s net family property amount is $196,000 (i.e. his equity in the matrimonial home on separation, plus the increase in his savings, less the reduction in his equity in the Hillcrest condo, less the reduction in value of personal property in his possession).

[266] There is no evidentiary foundation upon which to conclude that this figure would be different if the date of separation was January 30, 2012 instead of June 30, 2012.

[267] Ms. Wright’s net family property statement of August 1, 2014 (Exhibit 76), indicates that on the date of marriage she owned personal property valued at $48,000 and she had savings in the amount of $50,600. She indicated that she had a line of credit at that time in the amount of about $7,000. Her financial statement of October 24, 2014 (Exhibit 74) indicates that the value of her personal property on the date of marriage was $33,600.

[268] Her net family property statement indicates that she had personal property valued at about $8,200, savings of about $43,000, and a line of credit of about $3,100 on the date of separation she proposes, i.e. January 30, 2012. Mr. Wright’s financial statement indicates that Ms. Wright had personal property in her possession on the date of separation amounting to about $20,000.

[269] Ms. Wright did not yet own the Haymer property on January 30, 2012. Using Mr. Wright’s date of separation instead makes no difference. On January 30, 2012, Ms. Wright had savings of $48,000. The Haymer property purchase closed in March of 2012. The difference between the purchase price and the mortgage on closing was $20,000. It is likely that $20,000 down payment came from her savings and it is not likely that her equity in the property changed significantly between March and June of 2012.

[270] Using Ms. Wright’s figures, regardless which figure is used for the value of her personal property on marriage, Ms. Wright’s net family property amount is $0 because her net worth dropped from the date of marriage to the date of separation and the amount of net family property cannot be negative.

[271] Using Mr. Wright’s figure for the value of Ms. Wright’s personal property on the date of separation also results in Ms. Wright’s net family property amount being $0.

[272] Thus, subject to the possibility of an unequal division of net family property, Mr. Wright owes Ms. Wright an equalization payment of $98,000.

[273] To order an unequal division of net family property, a court must find that an equal division of net family property would be unconscionable (section 5(6) of the Family Law Act). That is a high standard.

[274] Mr. Wright’s wrongful placement of the second mortgage on the matrimonial home, without Ms. Wright’s knowledge, is the sort of conduct that might justify an unequal division of net family property, except that the mortgage was placed on the property after separation and while Mr. Wright was the sole legal owner of the home. As a result, the second mortgage has no effect on equalization because equalization is calculated as at the date of separation and, therefore, half the amount of the second mortgage is owed by Mr. Wright to Ms. Wright as part of equalization.

[275] Moreover, the amount of the second mortgage is less than the difference between the parties’ net family property amounts.

[276] Thus, the equalization payment owed by Mr. Wright ($98,000) includes the full amount of Ms. Wright’s potential one-half interest in the amount of home equity removed by the second mortgage ($52,500).

[277] The court concludes, therefore, that this is not an appropriate case for an unequal division of net family property.

Household Expenses

[278] Mr. Wright seeks re-imbursement for utility payments he made for the matrimonial home from January of 2012 until June of 2014 because Ms. Wright stopped paying for the utilities when she went on maternity leave.

[279] He argues that Ms. Wright should be bound by the parties’ verbal agreement that Ms. Wright would pay the utilities and Mr. Wright would make the mortgage payments.

[280] Ms. Wright made no submissions on this point.

[281] The court finds that Ms. Wright’s maternity leave did not render her incapable of performing her part of the contract. Her 2012 income, while on maternity leave, was $55,278.

[282] Based on the testimony of the parties, the court finds that the average monthly cost for utilities during that period was about $1,000. In calculating this amount, the court has taken into consideration Ms. Wright’s testimony that Mr. Wright disabled the air conditioning in August and kept the heat low during cold weather.

[283] Given that the period of time that Ms. Wright lived in the home and did not pay the utilities was thirty months, the court finds that Ms. Wright owes Mr. Wright $30,000.

Personal Property

[284] Mr. Wright seeks re-imbursement for personal property and the sink he says that Ms. Wright wrongfully removed from the matrimonial home.

[285] Mr. Wright provided receipts totalling about $8,885 for property he bought before the marriage that he said Ms. Wright removed. He also provided receipts for $4,497 for replacement property he purchased. Both lists include a television set. He also accused Ms. Wright of taking two of his rings worth $3,800. As mentioned earlier, he suggested that she removed about $20,000 worth of his personal property.

[286] Ms. Wright denies removing any personal property that did not belong to her before marriage but she also admits that she permitted her eldest son to remove a couch set that was purchased during the marriage. She seems to believe that removing the couch set was justified because other couches were left in the home.

[287] The court finds that Ms. Wright likely removed other personal property that she should not have removed.

[288] Ms. Wright seeks re-imbursement for personal property that she says Mr. Wright wrongfully prevented her from removing from the matrimonial home.

[289] As noted earlier, Ms. Wright testified that that property consists of a boxing bag, a desk, a wardrobe, a dresser, a television stand, patio furniture, a barbeque, a Wii game, an X-Box, a desktop computer, a filing cabinet, and ancient swords. She did not provide evidence of value for any of these items other than her testimony that she paid $350 in September of 2010 for the wardrobe.

[290] She also seeks re-imbursement for personal property that she says Mr. Wright wrongfully removed from the matrimonial home: a vacuum, a knife block with knives, alcohol, five couch throws, comforters, linen, towels, a telephone, an answering machine, stools, two video gaming units, luggage, an iron, an ironing board, cutlery, pots, pans, three computers, and necessaries for Malakai. She did not provide a value for any of these items. Mr. Wright denies wrongfully removing anything from the matrimonial home.

[291] Based on all of the evidence, and taking into account the high level of conflict between the parties, the court finds that Mr. Wright likely prevented Ms. Wright from removing some of her personal property from the matrimonial home and he likely removed some personal property that he should not have removed.

[292] In the absence of a proper valuation of the property wrongfully removed by Ms. Wright or the property wrongfully kept and removed by Mr. Wright, and bearing in mind that the fair market value of used personal property is generally its auction value, the court finds that, overall, taking into account the description of the property wrongfully taken by Ms. Wright and the description of the property wrongfully taken and kept by Mr. Wright, Ms. Wright owes Mr. Wright $5,000 for the net difference.

Damages

[293] Ms. Wright seeks compensation for damage to the counter top at the Haymer property. Her proper route of redress is to seek damages from the tenant. There is no evidence indicating that Mr. Wright was responsible for damage caused by the tenant. The fact that the tenant was his employee does not make him liable for conduct of his employee outside the scope of her employment. Nor does the fact that he said he would speak to his employee about the damage, make him liable.

[294] Ms. Wright alleges that Mr. Wright damaged her washer/dryer by removing the doors and otherwise rendering the machines inoperable. Mr. Wright denies having done so.

[295] Given the high level of conflict between the parties, the court finds that Mr. Wright likely damaged the washer/dryer as alleged.

[296] The court finds that Mr. Wright owes Ms. Wright $450 for the damage to the washer/dryer.

Changing of the Locks

[297] Mr. Wright seeks re-imbursement for the cost of changing the locks on the matrimonial home after Ms. Wright moved out. There is no legal basis for this claim and it is, therefore, dismissed.

Set Off of Property Claims

[298] Mr. Wright owes Ms. Wright $20,000 for the down payment, $5,715 for the credit card use, $98,000 for equalization, and $450 for damage to the washer/dryer. The total of these amounts is $124,165.

[299] Ms. Wright owes Mr. Wright $30,000 for utility payments and $5,000 for personal property. The total of these amounts is $35,000.

[300] Accordingly, Mr. Wright owes Ms. Wright $89,165 in relation to property.

Incomes of the Parties

[301] For the purpose of deciding support issues, it is necessary to determine the amount of income earned by each party.

Ms. Wright’s Income

[302] In Ms. Wright’s case, the determination is relatively simple because she is an employee.

[303] Her income in 2011 was $75,636 and her income in 2012, while she was on maternity leave, was $55,578.

[304] Her most recent financial statement indicates that her 2013 income was the precisely the same as her 2012 income. That seems highly unlikely since she was on maternity leave throughout 2012 and started back to work full-time in January of 2013.

[305] The same financial statement indicates that her 2014 income was expected to be $65,299.

[306] Given that Ms. Wright has been in the same position at work throughout this period, the court finds that her income in 2013 was likely around $64,000.

Mr. Wright’s Income

[307] In Mr. Wright’s case, the determination of income is more challenging.

[308] The income he claimed on his income tax returns, the income in his latest financial statement, the income he admitted to during the trial, and the income indicated by information provided by Ms. Wright, differ significantly.

[309] Mr. Wright’s Notices of Assessments indicate an income of $17,999 in 2011 and an income of $16,421 in 2012.

[310] His 2013 income tax return indicates an income of $14,320.

[311] His latest financial statement (Exhibit 107) indicates an income of $64,200 in 2014, which is the same amount that his former employer confirmed (in Exhibit 59) as Mr. Wright’s take home income, prior to purchasing the business.

[312] Mr. Wright’s testimony was that he did not know his current income, but it was “minimal”, and by that he meant that he was taking home around $48,000 per year. He also testified that the business is losing money and he might have to close one of the five locations.

[313] Ms. Wright testified that she did the accounting for Nappy’s for three months in early 2012 and that she had access to the income and expenses of the business. Mr. Wright did not contradict this testimony.

[314] Ms. Wright also testified that the parties created a pro forma statement of income and expenses for the business at around that time (Exhibit 8), and found, with three stores operating, that the gross income was about $318,000 per year, the expenses were about $157,000 per year, and, as a result, before tax net income was about $160,000 per year, without considering extra net income from sales of hair supplies and miscellaneous items. Mr. Wright, who testified later, did not contradict Ms. Wright’s testimony that the parties created Exhibit 8, nor did he directly contradict the figures on Exhibit 8.

[315] Ms. Wright also filed Mr. Wright’s application for a business loan in 2012 that indicated that the gross income from the business was $469,000.

[316] The court bears in mind that it has already rejected Mr. Wright’s sworn testimony that he repaid $9,000 of the $20,000 house down payment. The court also bears in mind that it has also rejected his sworn testimony that he did not borrow funds on Ms. Wright’s credit card to pay his legal fees, his condo penalty, and to buy his winter tires. The court finds that he was attempting to mislead the court when he testified about those two issues.

[317] The court is also unable to accept Mr. Wright’s testimony that he, a business owner, did not know what his income was at the time he testified, or his internally inconsistent and vague testimony that he was taking home “around $4,000” per month at the time of the trial.

[318] Moreover, it was telling when Mr. Wright referred to a take home pay of $48,000 per year as being “minimal”.

[319] In addition, the court finds that he tailored his sworn financial statement estimate of his current income to mirror the confirmation from his former employer that he used to take home $1,200 per week.

[320] Also, the court rejects Mr. Wright’s testimony about the second mortgage he put on the Cornerbrook property because it is incredible that Mr. Wright, a business owner, and a graduate of a mortgage broker course, did not understand that he was mortgaging the matrimonial home, as well as the Hillcrest condo, to secure a loan. His testimony that he only learned how to “write mortgages” and learned nothing about the legal aspects of a mortgage in the mortgage broker course he took, was also incredible. A mortgage, after all, is a legal document. It consists entirely of legal terms and obligations. Moreover, the trial took place about three years after Mr. Wright put the second mortgage on the Cornerbrook home, and almost three years after Ms. Wright reported him to the police for so doing, but he was still trying to evade the fact that he had put a second mortgage on the home. When asked directly, at trial, whether he had put a second mortgage on the property, his answer was “I guess”. That answer – indicating that at the time of the trial, he still didn’t know whether he put a second mortgage on the property – after a copy of the mortgage had been filed as an exhibit by Ms. Wright - was incredible.

[321] Similarly, his protestation that he did tell anyone that he was not a spouse when he arranged for the second mortgage was not credible.

[322] Moreover, he failed to fully comply with both Rogers J.’s order and Nicholson J.’s order for financial disclosure with respect to the business.

[323] As well, Ms. Wright established that Mr. Wright owns three vehicles and carries over $1.2 million in debt.

[324] In addition, there is the strange account of the house in Ajax that, according to Mr. Wright’s testimony, that he bought as a favour to a friend, without having to disclose his income to the bank to obtain a mortgage.

[325] The cumulative effect of these considerations is that the court gives no weight to Mr. Wright’s testimony about his income, his sworn declarations about his income, or his income tax filings, or his testimony that the business is not profitable.

[326] As a result, the only evidence left for the court to consider, other than Mr. Wright’s mother’s vague testimony that the business is not doing well, is Ms. Wright’s specific testimony, based on financial data from the business, that she and Mr. Wright anticipated that the business would generate over $160,000 per year in pre-tax profits, when the business had only three locations.

[327] While it may well be that Mr. Wright’s income exceeds $160,000 per annum, given that Nappy’s now operates at five locations, and given extra income from product sales, and given the real possibility of undisclosed cash income, the court finds that Mr. Wright’s annual income for support purposes, in 2013, 2014, and going forward, likely was and is at least $160,000.

Child Support

[328] Ms. Wright seeks child support commencing January 15, 2014.

[329] The table amount for child support for one child based on a payor’s annual income of $160,000 is $1,337 per month.

[330] A shared residence regime has been in place throughout the time period being considered.

[331] Child support is, therefore, governed by the interplay of sections 4 and 9 of the Child Support Guidelines as discussed in Sirdevan v. Sirdevan 2010 ONSC 2375.

[332] The court has found that Ms. Wright’s annual income in 2014 was about $65,000. The table amount for that income is $594 per month.

[333] The set off amount between the parties’ table amounts for 2013 is, therefore, $743 per month.

[334] This figure serves to remind the court to focus on the principle that both parents must contribute to the support of Malakai.

[335] The total of the parties’ income is about $225,000. Mr. Wright’s share is about 70 percent and Ms. Wright’s share is about 30 percent.

[336] Mr. Wright’s budget for solely child-related expenses is about $640 per month.

[337] Mr. Wright’s budget for indirect child-related expenses is about $4,400 per month.

[338] The court finds it appropriate for one child to allocate one-third of that amount, about $1,467, as solely child-related expenses.

[339] Accordingly, Mr. Wright budgets about $2,100 per month for child-related expenses for one child.

[340] Ms. Wright’s budget for solely child-related expenses is about $1,000 per month.

[341] Ms. Wright’s budget for indirect child-related expenses is about $3,800 per month.

[342] The court finds it appropriate for one child to allocate one-third of that amount, about $1,267 as solely child-related expenses.

[343] Accordingly, Ms. Wright budgets about $2,260 per month for child-related expenses for one child.

[344] The total of child-related expenses budgeted by both parents is, therefore, $4,360 per month.

[345] Given the ratio of incomes, Ms. Wright should be spending about 30 percent of that amount or $1,308 per month on child-related expenses. Given that she her child-related budget is about $2,260 per month, a transfer to her of $952 per month would make up the difference.

[346] This figure recognizes that increased costs of shared parenting.

[347] Having established these two reference points, the court must determine a fair outcome in light of the conditions, means, needs, and other circumstances of each parent and Malakai.

[348] Ms. Wright is 42 years old. She has well established employment. She owns the Haymer property which she values at $455,000 with a mortgage of $435,000. Ms. Wright has about $11,000 in investments and a substantial amount of household contents. Mr. Wright owes her $89,165 in relation to property issues.

[349] Mr. Wright is 42 years old. He has been operating Nappy’s for three years. He owns the Hillcrest condo and the Cornerbrook property. He suggests that the Hillcrest condo is worth about $172,000 and the Cornerbrook property is worth about $700,000. The court finds that both figures are likely underestimates. He owns a motorcycle and he owns several cars that are financed. He indicates that the mortgage on the Hillcrest condo might be around $126,000 and that the two mortgages on the Cornerbrook property might be around $581,000. He owes Ms. Wright $89,165 in relation to property issues.

[350] Upon consideration of the evidence provided in relation to the conditions, means, needs, and other circumstances of both parties and Malakai, the court finds, subject to the discussion in the next paragraph, that Mr. Wright should pay child support to Ms. Wright in the amount of $800 per month commencing January 15, 2014.

[351] Given, however, that Ms. Wright was living in the matrimonial home until the end of June of 2014, and given that the court has found that she owes Mr. Wright $1,000 per month for that period, and given that her budget for housing and utilities is about $2,600 per month, and given that the court has allocated one-third of those costs as indirect child-related expenses, and given that the difference between the amount the court has ordered her to pay and her budget means that her indirect child-related expenses were reduced by about $500 per month while she was living in the matrimonial home, Mr. Wright shall pay her $300 per month in child support for Malakai for the period of January 15, 2014 until June 30, 2014, both dates inclusive, and then $800 per month commencing July 1, 2014.

Spousal Support

[352] Both parties seek spousal support for a period of two years.

[353] The court is guided by section 15.2 of the Divorce Act with respect to spousal support.

[354] Subsections 15.2 (4), (5), and (6) provide:

(4) FACTORS – In making an order [for spousal support] the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order or arrangement relating to the support of either spouse.

(5) SPOUSAL MISCONDUCT – In making an order [for spousal support] the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

(6) OBJECTIVES OF SPOUSAL SUPPORT ORDER – An order that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses a 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;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

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

[355] These provisions speak to three different types of entitlement to spousal support: compensatory, contractual, and non-compensatory (see Bracklow v. Bracklow 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420).

[356] Neither party has sacrificed career advancement to the advantage of the other party’s career. There is no entitlement to compensatory spousal support.

[357] Ms. Wright’s income, however, is substantially less than Mr. Wright’s income.

[358] Based on the disparity of incomes, the court finds that Ms. Wright is entitled to compensatory spousal support for a period of two years as requested.

[359] Mr. Wright’s claim for spousal support is dismissed.

[360] Having considered the condition, means, needs, and other circumstances of each spouse, the court finds that Mr. Wright should pay spousal support to Ms. Wright in the amount of $1,200 per month for 24 months commencing June 1, 2015.

[361] The Spousal Support Advisory Guidelines suggest a range of $1,126 to $2,436 per month for a period of two to fifteen years in these circumstances. The amount ordered falls within the low end of the ranges for amount and duration which the court finds is appropriate for non-compensatory support in these circumstances.

Extraordinary Expenses

[362] Extraordinary expenses, within the meaning of section 7 of the Child Support Guidelines, incurred after May 31, 2015, shall be paid 65 percent by Mr. Wright and 35 per cent by Ms. Wright from June 1, 2015 until May 31, 2017, both dates inclusive, and 70 percent by Mr. Wright and 30 percent by Ms. Wright commencing June 1, 2017. The change in ratio is due to the termination of spousal support.

[363] Without limiting the generality of the foregoing, the cost of daycare to permit a party to work shall be deemed an extraordinary expense.

Restraining Order

[364] Ms. Wright seeks a restraining order to keep Mr. Wright away from the Haymer property. The evidence does not establish a basis for such an order and, as a result, this claim is dismissed.

Divorce

[365] Based on the evidence heard, the parties shall be divorced.

Orders

[366] The following orders shall go on a final basis:

1. Ms. Wright shall have sole custody of Malakai.

2. Ms. Wright shall have primary residence of Malakai.

3. Subject to exceptions to the regular parenting schedule, set out below, Malakai shall be in the care of Mr. Wright every week from Sunday at 10 a.m. until Wednesday at the end of daycare or school, or at 5 p.m. if Malakai does not attend daycare or school that Wednesday. Subject to exceptions to the regular parenting schedule, set out below, Malakai shall be in the care of Ms. Wright the balance of every week.

4. Exchanges of Malakai shall occur at daycare or school on days that Malakai attends daycare or school.

5. Exchanges of Malakai shall occur at the Tim Horton’s restaurant at 533 Cityview Blvd., Vaughan, Ontario, near the intersection of Teston Road and Weston Road, on days that Malakai does not attend daycare or school.

6. Ms. Wright shall not enroll Malakai into a daycare or school that is more than twenty minutes’ drive from 24 Haymer Drive, Maple, Ontario, without advance written consent from Mr. Wright.

7. Ms. Wright shall not enroll Malakai into extracurricular activities for days that he is in Mr. Wright’s care, without advance written consent from Mr. Wright, which shall not be unreasonably withheld.

8. As an exception to the regular parenting schedule, Ms. Wright shall have care of Malakai from December 24th at 4 p.m. until December 25th at 4 p.m. in even years and Mr. Wright shall have care of Malakai during that period in odd years.

9. As an exception to the regular parenting schedule, each party may have two non-consecutive summer weeks with Malakai during July and August each year. Ms. Wright will have first choice of two non-consecutive weeks in odd years and Mr. Wright shall have first choice of two non-consecutive weeks in even years, provided that the party with first choice notifies the other party of their two choices, in writing, on or before March 31st (except in 2015 when the deadline is June 1st). The other party shall have second choice of two non-consecutive weeks in those years, provided that the party with second choice notifies the other party of their two choices, in writing, on or before April 30th (except in 2015 when the deadline is June 15th). These exceptional summer weeks with Malakai shall commence and end at 5 p.m. on a Friday.

10. The parties may agree to other exceptions to the regular parenting schedule in writing and in advance.

11. The party taking Malakai to daycare or school shall ensure that Malakai is dressed properly for the weather and planned activities in clean clothing and has spare clean clothing in case a change of clothing is required during the day. Clothing worn by Malakai, or clothing left at Malakai’s daycare or school, provided by Mr. Wright on a Wednesday, shall be returned to Mr. Wright by Ms. Wright in a clean condition at the next exchange of Malakai at Tim Horton’s.

12. The party taking Malakai to an exchange at Tim Horton’s shall ensure that Malakai is dressed properly for the weather in clean clothing. The other party shall return that clothing to the party who provided the clothing, in a clean condition, at the next exchange at Tim Horton’s.

13. If Mr. Wright has care of Malakai during a medical emergency for Malakai, he may make decisions concerning Malakai’s emergency medical care until Ms. Wright is in a position to make such decisions. Mr. Wright shall inform Ms. Wright of the medical emergency as soon as possible and he shall facilitate Ms. Wright being in a position to make such decisions as soon as possible.

14. Ms. Wright shall have judgment against Mr. Wright for $89,165 in relation to property claims, payable forthwith.

15. Mr. Wright shall pay Ms. Wright a total of $1,650 in child support for the period of January 15, 2014 to June 30, 2014, both dates inclusive.

16. Mr. Wright shall pay child support to Ms. Wright in the amount of $800 per month commencing July 1, 2014.

17. Mr. Wright shall pay spousal support to Ms. Wright in the amount of $1,200 per month commencing June 1, 2015 until May 31, 2017, both dates inclusive.

18. Mr. Wright shall be responsible for 65 percent of extraordinary expenses for Malakai, and Ms. Wright shall be responsible for 35 percent of extraordinary expenses for Malakai, from June 1, 2015 until May 31, 2017.

19. Commencing June 1, 2017, Mr. Wright shall be responsible for 70 percent of extraordinary expenses for Malakai and Ms. Wright shall be responsible for 30 percent of extraordinary expenses for Malakai.

20. When Ms. Wright seeks re-imbursement from Mr. Wright for his share of an extraordinary expense for Malakai, she shall provide him with written proof of the expense.

21. Mr. Wright shall re-imburse Ms. Wright for his share of an extraordinary expense for Malakai within 30 days of receiving written proof of the expense from Ms. Wright.

22. A support deduction order shall issue.

23. The parties are divorced effective immediately.

Costs

[367] If the parties are unable to agree about costs, Ms. Wright may serve and file brief written submissions as to costs within 15 days, Mr. Wright may serve and file a brief written response within 15 days of receiving Ms. Wright’s submissions, and Ms. Wright may serve and file a very brief written reply within 7 days of receiving Mr. Wright’s response.

F. GRAHAM, J.

Date: May 26, 2015

CORRECTION: The following paragraphs were inadvertently omitted in the original decision and have been added to the corrected decision as follows:

1. Page 19, current para. 187 - Section 16(8) of the Divorce Act stipulates that a court must take into consideration only the best interests of the child, as determined by reference to the conditions, means, needs and other circumstances of the child, when deciding custody or access.

2. Page 19, current para. 188 - Section 16(9) of the Divorce Act stipulates that the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent.

3. Page 19, current para. 189 - Section 16(10) of the Divorce Act stipulates that a court must give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child and the court shall take into consideration, for that purpose, the willingness of each parent for whom custody is sought to facilitate such contact.

4. Page 19, current para. 190 - Section 16(5) of the Divorce Act stipulates that a parent who is granted access to a child has the right to make enquiries, and to be given information, as to the health, education and welfare of the child, unless the court orders otherwise.

5. Page 19, current para. 191 - Provincial legislation provides additional guidance about determining the best interests of a child.

All other paragraphs remain the same, however, paragraphs following current para. 191 have been re-numbered in sequence due to the addition of the paragraphs listed above.