COURT FILE NO.: FS-12-76142-00

DATE: 20150721

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MARSHA OLIVIA ELIZABETH GRAHAM

Self-Represented

Applicant

- and -

MARK ANTHONY GRAHAM

Respondent

Self-Represented

HEARD: June 9, 10, 11, 12, 15, 16, 17, 18, 19, 2015

REASONS FOR JUDGMENT

Seppi J.

[1] Marriages end for a variety of reasons. Often there are allegations of adultery, domestic abuse, financial strain, failed business ventures, and conflicts over raising the children. The Graham family has endured all of these and the aftershocks continue more than three years after their separation.

[2] The parties have amassed a Continuing Record that consists of five large volumes of affidavits and documents relating to endless interlocutory motions. After numerous orders made in the interim while both had legal representation, they now come to trial as self-represented litigants financially unable to hire a lawyer. Neither party shows a willingness to face or admit the full truth about their current situation. Each depicts the other as the villain entirely to blame for their conflicts. Both claim to be victims of the other’s deleterious conduct. In reality the only victims in this case are their two innocent and very talented daughters.

[3] The issues for decision are:

• Access to the children by the respondent husband;

• Imputing income to the respondent for child support and payment of s. 7 expenses for the children from the date of separation;

• Removal of the respondent’s name from the Registered Educational Savings Plan (“RESP”) maintained for the children;

• Payment for increased mortgage costs claimed by the applicant;

• Repayment of monies advanced to the respondent by the applicant;

• Repayment for jewellery alleged to have been taken by the respondent;

• Divorce.

[4] As explained to the parties during trial, despite equalization having been pleaded, property claims are not properly before me. Neither party filed the Net-Family Property (“NFP”) statement required pursuant to Rule 13 (14) of the Family Law Rules (“Rules”). Complete documentary evidence relating to valuation of assets and liabilities as of the date of separation, to the extent as would be necessary for this court to calculate the equalization of the parties’ NFPs, has not been provided. The issue of equalization, together with all claims related to assets and liabilities of the parties is, therefore, adjourned on terms which will be noted below.

Background Facts

[5] The applicant wife is 38 years of age; the respondent husband is 40. They were married on December 23, 2003. Their children, Merika Antonette and Mehvaya Olivia Graham were born on September 20, 2005 and February 26, 2007, respectively. They are now 9 and 8 years of age.

[6] The parties separated in 2012, the applicant saying it was in January, the respondent saying it was in August. On the evidence I find August 15, 2012 to be the date of separation, as that was when there was no reasonable prospect that they would resume cohabitation, within the meaning of the definition in Section 4.(1) of the Family Law Act.

[7] The children have lived continuously in the sole care of the applicant since August 2012, when the husband was forcibly moved out of the matrimonial home by the Peel Regional Police (“PRP”), following an incident of an alleged domestic assault. Those charges were eventually dismissed at trial in relation to the incident in August 2012. However two other historical incidents, having occurred in March 2007 and in 2011, resulted in convictions to the respondent, for which sentencing is pending.

[8] The matrimonial home located in Brampton was listed for sale before the eviction of the respondent in August 2012. Its sale for about $787,000.00 closed in November 2012, upon which the applicant moved with the children into another property that she purchased. She did not tell the respondent of those plans. He believed they were selling their house as part of downsizing due to financial constraints.

[9] The applicant’s mother lived in the matrimonial home with the family since about 2007. She moved with the applicant and children to their new home in Brampton where she still resides. When he left the matrimonial home, the respondent moved in with his parents, who also live in Brampton.

[10] The applicant is a teacher with the Toronto District School Board (“TDSB”). She has been employed there for about thirteen years. In the intervening years her annual income has gradually increased, and it is now about $88,000.00 per annum.

[11] The respondent is a graduate of York University. After graduation he worked for the University Health Network in the security department of Toronto hospitals. In 2003 he began operating a business with a cousin. They called it Markjam Trading Inc. This was incorporated mainly for the purpose of an import/export business venture.

[12] In 2007 the respondent left Markjam and incorporated YOTE Inc. Through that business he promoted and organized venues for various artists to perform locally. That business suffered a major setback in 2010 when a concert he promoted and organized was cancelled, reportedly due to the failure of the artist to appear. This was after tickets had been sold and significant funds expended on behalf of YOTE Inc. through various investors. As a result of this failure most or all of the people YOTE had previously relied on for funding, as needed to make the concerts happen, lost both their investment and the profit they expected.

[13] The respondent claims that despite his efforts from 2010 to 2012 to revive the business of YOTE Inc., he was unable to convince anyone to fund further promotions and, as a result, the business was closed in 2013.

[14] Mr. Graham finally became employed in December 2013 with Marathon Investments, a private one-owner firm that operates out of a house in Brampton. He states that he works there about 30 hours a week performing clerical functions such as filing and earns about $15,000.00 per annum. He has not made any efforts to find more remunerative employment.

[15] Until separation the family enjoyed a very comfortable lifestyle. They purchased the matrimonial home taking on an obligation of a $639,000 mortgage, with payments of about $4,000.00 per month. On the mortgage application the respondent claimed to have an annual income of $92,144.00. The children attended a private Montessori school at a cost of about $1,600.00 per month.

[16] The applicant states that despite the respondent filing tax returns showing nominal income during the marriage, he actually earned much more in hidden income, including receipts of cash which he used to pay the mortgage and private school, as well as for purchase of Louis Vuitton designer leather products and expensive jewellery. The applicant also argues the respondent arranges for the people he calls investors to hide money for him. However, there was no evidence to that effect.

[17] The respondent earned considerably more in undisclosed cash than what he declared for income tax purposes. In a statement made during marriage for insurance purposes, the respondent claimed to have purchased jewellery valued at about $135,000.00 during marriage. The applicant’s mother observed boxes of men’s designer shoes, showing values of about $600.00 a pair in the home. She also observed a shoebox containing cash which the respondent used to pay various expenses from time to time. At trial the applicant filed shoebox labels and receipts to support these various expenditures for high-end products.

[18] Before separation the respondent drove rental cars, paying about $850.00 per month for those cars, even during the years following 2010, when he claims he made no money. He sold cookware, lotions and creams in bulk, a fact he denies, which is nevertheless supported by the evidence of the applicant’s father who purchased various products from him. The inference is that these products were sold to others as well, as a means of earning undisclosed profit on such products.

[19] The applicant testified about the respondent also selling items such as batteries and cellphones for cash, while the parties were together. In short, his income is shown, by the parties’ lifestyle and his expenditures, to have been far more than what he declared to Canada Revenue Agency in those years.

[20] The respondent admits to none of these additional business ventures or to cash receipts. Nor does he admit to the income of $92,144.00, which he declared to the bank on two occasions, both on obtaining the mortgage and on the renewal of the mortgage for the matrimonial home. However, in contradiction to his denial of ever earning a significant amount of money during marriage, he suggests the reason the applicant orchestrated a separation in August 2012 was because he was no longer providing her the affluent lifestyle they had enjoyed in previous years.

[21] The respondent now claims it was his wife’s income that paid for their comfortable lifestyle. This assertion is not believed. It is also in contradiction of his premise about the wife arranging the separation because he no longer earned the high income as before.

[22] The respondent claims he earned no income whatsoever from 2010 until December 2013. Yet he made at least two trips to Jamaica, one of which was in December 2012 into January 2013, when he was to have access to the children. He states these trips were to attend funerals. But evidence filed by the applicant shows his girlfriend in Jamaica at the same time. Regardless of the reasons for the trips, these would have necessitated travel costs which would logically not have been undertaken if he was without any income as he claims.

[23] On a motion in December 2013 Lemon J. of this court was asked by the applicant to order child support based on an imputed income of $92,000.00 for the respondent. The evidence before him, also confirmed at trial, was that that the respondent had presented a false T-4 to the bank upon obtaining the matrimonial home mortgage, and upon its renewal. As the bank obviously required evidence of income sufficient to sustain the high mortgage payments, and the respondent’s purported income of $6,827.00 shown on his tax return would not have supported such a large mortgage, the false T-4 was used. Mr. Graham admits this, but at trial claimed his wife was also part of this fraudulent representation to the bank, as she too signed the mortgage. His position before Lemon J. was that it was an error in judgment on his part.

[24] The mortgage was paid on an ongoing basis during the marriage. The selective documents presented by the respondent provided more questions than answers about the respondent’s real income from YOTE Inc. At the earlier motion he suggested $21,320.00 be imputed as his income.

[25] Lemon J. ordered the balance of funds from the sale of the matrimonial home, held in trust at the time, namely $26,027.00, to be paid to the applicant towards child support and s.7 expenses pending trial. In his reasons, dated January 16, 2014 he stated at paragraph 22 that the applicant, “shall use the fund only for those purposes”. This fund was in addition to monies previously provided to the applicant for child support from the respondent’s share of the house proceeds.

[26] The applicant’s position is that the money ordered released was allocated for support, based on a decision imputing $92,000.00 annual income to the respondent. On that basis she submits all of the money that she had received was depleted by the end of 2014. She thus seeks ongoing child support from January 2015, on an imputed income of $92,000 per annum to the respondent for support purposes.

[27] The respondent vehemently denies any realistic ability to earn that level of income. He claims the $15,000.00 per year is all he can earn, with the proviso that he is making efforts to improve his earning power. He is in the process of taking a course to obtain accreditation as a real estate sales person. He has one section of the required courses remaining. He anticipates that after he completes that course around the end of this year, he will be in a position to earn around $40,000.00 per annum and pay more child support. He believes the applicant with her generous earnings should be able to look after the children’s financial needs until then, subject to a nominal support order based on his $15,000.000 income.

[28] The children are both heavily involved in dance programs, which include performances out of town. They are both doing exceptionally well and both find the activity very enjoyable. It positively channels their energies following the separation.

[29] The applicant submits these extra-curricular activities need to continue to the same extent. The respondent submits they should be scaled down to a basic community level, which would be more affordable for the family. Presently the financial expenditure for the two children in their extra-curricular activities, which include piano lessons as well as the dance, approximates over $10,000.00 per annum.

[30] The net proceeds from the sale of the matrimonial home were about $222,054.00, each party’s share being $111,027.00. Of this amount the applicant received her one-half share, plus $56,027.00 of the respondent’s share for a total of $167,054.00. He received a total of $55,000.00 from the proceeds.

[31] During the course of interim proceedings the monies were disbursed to the applicant as follows:

• She received a portion of her one-half share, namely, $96,800.00, plus $5,000.00 from the respondent’s share towards child support on November 1, 2012 by a consent order.

• On June 24, 2015, she received the balance of her share of the proceeds, namely $14,227.00, by further order, plus $25,000.00 from the respondent’s share of which $20,000.00 was allocated by the court to be for child support and a share of the children’s s.7 expenses, and $5,000.00 as the applicant’s costs.

• On January 6, 2014, $26,027.29 was released to the applicant as further contribution from the respondent towards child support and s.7 expenses.

[32] Although the applicant submits this last payment was specifically allocated to be calculated as monthly payments based on an imputed income of $92,000.00 per annum for the respondent, that is not this court’s interpretation of Justice Lemon’s interim order. In his reasons Lemon J. implicitly directed the issue of income imputation to trial when he states at paragraph 23: “This order will be without prejudice to the trial judge in determining the appropriate amount of support, based on the evidence at trial.”

[33] In addition to the problems relating to support, the parties and children have endured a rocky access history. As a result the children have not seen their father for many months. They have had only sporadic visits with him. The problems stem from the total failure of the parties to communicate about the children, the applicant’s failure to actively encourage access, the respondent’s failure to follow an access schedule, and, to some extent, from the respondent’s fear of more charges being laid against him by the applicant.

Access

[34] The respondent is not contesting custody. He consents to the applicant having full custody of the children. He seeks a regular access schedule in order to re-establish and build on his relationship with the children.

[35] Until August 2012 the respondent was fully involved with the children, driving them to school in the mornings and providing regular care together with the applicant. Following the events of August 2012, when he was arrested and removed from the matrimonial home, his access to the children has been minimal, and at times non-existent. This has not been in the children’s best interest.

[36] Following the separation, when a portion of the house proceeds were released to the applicant in November 2012 on consent, the parties also agreed on access terms which were then ordered. On the evidence, however, the access did not proceed as anticipated. On one occasion when the respondent was visible during the exchange despite no-contact bail terms, he was charged with breach of recognizance. This charge was ultimately dropped, but only after numerous court attendances and legal expense on his part. He blames the applicant for these unfounded charges.

[37] Thereafter the respondent became afraid to have the children on his own. He feared the applicant might bring more false charges against him, accusing him of crimes relating to his interaction with the children during access. To protect himself from such potential false charges the respondent believed he needed to have his access supervised. At his request, supervised access was ordered by Justice Lemon in January of 2013, and he retained a professional access supervisor.

[38] After the supervised access began, the applicant asked for written reports from the supervisor. He informed her these would be available at an additional cost of $25.00 per report. The applicant refused to pay this. She took the position the respondent should pay for reports over and above the other fees he was paying for the presence of the access supervisor. Despite the fact that no such reports had been ordered as part of the access terms, a stalemate ensued between the parties. Ultimately access was totally aborted to the great detriment of the children. Their previous close relationship with the respondent father, as needed to be fostered for their healthy emotional development after separation, has been harmed.

[39] The applicant claims she encourages access, but on the evidence she has not done so. To the contrary, she seems oblivious to the children’s need for regular contact with their father. She is proud of their achievements and as the day-to-day provider for the children, she has been loving and devoted to their other needs. But she showed no concern about access being terminated because she had insisted on unnecessary reports. She has generously fostered their talent in dance, but has made no meaningful efforts to repair the rift between her and the respondent, in order to facilitate the access.

[40] It is therefore necessary for the children’s best interests that access resume as soon as possible, and that it be as generous as possible in the circumstances. To that end, at the conclusion of the trial, on June 19, 2015, this Court made an order for access pending the final decision. The order inter alia followed the schedule of the earlier interim order, which had been made on consent on November 1, 2012. The children have now had day access to their father on weekends for about a month. Additional terms of my interim order dealt with scheduling, telephone access and communication between the parties.

[41] The interim order for day access was intended to ease the children back into spending time with their father. Access now needs to be extended to overnight. Also, as the children need uninterrupted leisure time with both parents on weekends, access every weekend is not best in the long term. A comprehensive final order for access shall issue as stated below, to take into account the needs and best interests of the children.

[42] The applicant has had de facto custody of the children, and has provided excellent day-to-day care. She has provided a stable home life for them. The respondent agrees that she have custody of the children, provided he has regular access. In all the circumstances it is in the best interests of the children that there be a final order of custody in favour of the applicant.

Imputation of Income

[43] The relevant legislation which permits the court to impute income to parents for child support purposes is Section 19 of the Federal Child Support Guidelines. The applicant relies on subections 19 (1)(a) and (f) which state:

19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstance include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so.

[44] In Bak v. Dobell (2007), 2007 ONCA 304, 86 O.R. (3d) 196, the Court of Appeal found that the list of categories for imputing income is not exhaustive. Courts have the discretion to impute income in circumstances that are not only analogous, but also those in which imputation would be consistent with this legislative intent.

[45] Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.) is the leading case regarding intentional under-or-unemployment pursuant to Section 19 (1)(a). Madam Justice Gillese of the Court of Appeal found that trial judges are required to consider three questions:

1. Is the spouse intentionally under-employed or unemployed?

In this it is of note that there is no requirement of bad faith or a finding of a specific intent to evade support in order to meet the test of intentionally un or under-employed. The parent is intentionally underemployed if that parent chooses to earn less than he or she is capable of earning.

2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable education needs, the needs of a child or reasonable health needs?

3. If the answer to question number 2 is negative, what income is appropriately imputed in the circumstances?

[46] When considering what amount is reasonable in the circumstances, as stated at paragraph 45 of Drygala (supra), the factors to be considered are “age, education, experience, skills and health of the parent”, as well as “the availability of job opportunities, the number of hours that could be worked in light of the parent’s overall obligations including educational demands and the hourly rate that the parent could reasonably be expected to obtain.”

[47] In the case at bar, having regard to the skills, education and income-earning history of the respondent, his relatively young age and good health, I find he is currently under-employed at a 30-hour per week filing job earning $15,000.00 per year. The evidence, as reviewed above under Background Facts supports the finding of the respondent’s ability to earn far more. He has no medical issues requiring limited employment conditions. He has connections in the event-promotion business, which he developed while operating YOTE Inc. He is also experienced in the import/export of products through his earlier work at Markjam Inc., where this was the focus of his first business venture. He was also involved in the bulk-selling of various products during the parties’ cohabitation, from which he earned cash receipts on sales.

[48] Despite the fact that an employee letter and a T-4 showing an income of $92,000.00 which he filed with the bank were false, as admitted by him, I find he nevertheless was earning an income of at least that amount up to 2010 when he encountered difficulties in his promotional business. His income did not drop to zero as he claims. He also had the cash side business of selling various products from the home and other ventures, based on facts about his lifestyle and continuing payment of expenses.

[49] Although he claims people stopped investing in YOTE, which prevented him from continuing the event production and promotion, he was nevertheless able to pay the monthly mortgage and school fees, a total of about $6,000.00 per month expenditure while the applicant’s income was used for other household and children’s expenses. He bought expensive products such as diamond jewellery and designer leather goods. He has provided no evidence of specific efforts to find alternative investors to continue the business of YOTE Inc. after the one big promotional failure in 2010. Nor has he provided evidence of efforts to find comparable and remunerative employment in fields related to his experience and education.

[50] On the evidence I find he has not even tried. Although he had undertaken a real estate course, this he has also not pursued diligently, preferring instead to follow a leisurely, part-time timetable in those studies. The pace by which he attends these courses and the extent of time he expends in those studies does not prevent him from holding a full-time job. The 30-hours, which he works at the filing job, is far less than what he could be working were he working to his potential.

[51] The respondent also has a history of cash businesses by which has supplemented his income. He has provided no financial disclosure of these cash receipts and additional income. Furthermore he denies it, despite evidence to the contrary. The cash business probably accounts for how he has been able to continue to finance a lifestyle which includes travel to the Caribbean.

[52] Having determined Mr. Graham is and has since the separation been intentionally under-employed and that this under-employment is not by virtue of reasonable educational, childcare or health concerns, the next question is, what income is appropriately imputed to him in the circumstances. The applicant urges this court to find that $92,000.00 per annum should be the income imputed to him.

[53] The court must however look at what is appropriate in all the circumstances. This amount, and more, was probably an appropriate imputed income level earned up to 2010, until the failure of YOTE Inc. The false T-4 which the respondent presented for the mortgage, and his ability to continue paying the mortgage supports a conclusion that his income was in that range and beyond at that time. However circumstances have changed. He is still able and is probably still continuing the cash sales business, which he has not disclosed. On the evidence, he has a source of income which allows for extras beyond what the $15,000.00 per annum disclosed income provides.

[54] Upon considering all the circumstances, I find that even if the respondent had made reasonable efforts to continue the promotion business or, failing that, to find employment in a related field, he would, despite these efforts, not have been able to earn as much as he achieved in the good years of the business before the separation. It would have taken time to build-up the business again with new investors. Even if he had properly sought employment he would likely not have been earning as much as before. He has a limited employment history, due to time spent in various business ventures. Also, after the separation when facing criminal charges, he was required to attend court frequently for over two years. The distraction of criminal charges and time needed away from any employment would logically interfere with being able to totally focus on earning an income in a business, or finding employment remunerative of $92,000.00 per annum.

[55] In all the circumstances, therefore, I find the appropriate level of income to impute for Mr. Graham for child support purposes is $54,000.00 per annum, which is a reasonable level of income for him to have earned with his education and skills, had he pursued alternate employment. He has not disclosed what he has earned in cash over the years, which cash is probably supplementing the $15,000.00 he admits to.

Respondent’s Child Support Obligation

[56] An income of $54,000.00 per annum would require child support of $802.00 per month for the two children pursuant to the guidelines. Having regard to the date of separation in August 2012 this would commence effective September 1, 2012.

[57] In addition, having regard to the incomes of both parties I find the respondent is liable for a reasonable share of the allowable s. 7 special expenses of the children. They are talented and they should, within reason, have the opportunity to continue their lessons. There are a number of special costly events, some requiring travel which I find would not be considered necessary and reasonable in the financial circumstances of these parties within the meaning of a s.7 guidelines order for extraordinary expenses. I, therefore, fix the respondent’s share of the children’s s.7 expenses at $2,500.00 per year. This works out to $208.33 per month, also retroactive to September 2012. With this contribution the children should be able to continue the dance and music activities as much as possible in their best interests.

[58] Retroactively the child support obligation is therefore as follows:

September to December, 2012

4 months x $802.00

$ 3,208

plus s. 7 expenses (4 x 208.33)

$ 833

Total =

$ 4,041

January to December, 2013

12 months x $802

$ 9,624

plus s. 7 expenses

$ 2,500

Total =

$12,124

January to December, 2014

12 months x $802

$9.624

plus s. 7 expenses

$2,500

Total =

$12,124

January to July, 2015

7 months x $802

$5,614

plus s. 7 expenses (7 x $208.33)

$1,458

Total

$7,072

Respondent’s Total child support plus s. 7 expenses obligation = $35,361

Deduct as paid from respondent’s house proceeds $51,027 - $35,361 = $15,666.

Less: Costs owing by respondent to applicant, as ordered by Lemon J. $15,666 - $7,652 = $8,014 which is the credit remaining for the respondent’s future child support.

[59] At the rate of $1,010.00 ($802.00 + $208.00) payable per month, based on an imputed annual income of $54,000.00 for the respondent this credit from the respondent’s share of the house proceeds will be depleted in just over eight months, starting August 1, 2015. The support payments of $1,010.00 per month shall therefore commence effective April 1, 2016.

[60] The ongoing guideline child support shall continue at $802.00 per month plus $208.00 per month for s. 7 expenses, for a total of $1010.00, based on the imputed income of $54,000.00 per annum for the respondent, subject to a material change in circumstances. There will be a further order requiring the respondent to disclose his annual income, particulars of his employment and/or business activities, and his efforts of job searches annually by April 30, commencing April 30, 2016.

RESP

[61] In circumstances where the respondent father has in effect been marginalized by the applicant regarding the children’s progress since separation, his name should not be removed from the RESP.

[62] Despite the fact that the respondent has contributed a significant amount to the children’s financial needs since separation from his share of the house proceeds, the applicant has characterized him as failing to provide for the children, which is not true. She does not acknowledge the $51,027.00 from his share of the house proceeds as being a meaningful contribution, whilst it was no doubt helpful for the children’s support in the intervening years. It helped pay for the children’s needs, including the cost of their expensive dance lessons.

[63] In opposing the removal of his name from the RESP fund, which was initiated by the parties when they were together, the respondent expressed a concern about depletion of the fund by the applicant. In my view, this concern is not well founded. To date the applicant has been most responsible in focusing on the children’s needs.

[64] Nevertheless it is reasonable that all decisions in regard to the use of the funds of the children’s education allow for input from their father. This would include using those funds for the children’s dance and music if such special expenses become otherwise unaffordable for the parties. To prevent a stalemate in the event of a disagreement about the use of the RESP monies, the applicant shall make the final decision, provided the funds benefit the children’s educational needs.

[65] Also, as the applicant has been solely contributing to the funds since separation and before, it is ordered that she may, in her discretion, determine the amount required for a monthly contribution. If she determines the current contribution it is too onerous the respondent shall sign any and all necessary documentation at her request to reduce or eliminate the amount being currently paid into the fund.

Other Issues

[66] The issues of increased mortgage payments for the applicant, the jewellery, and monies loaned by the applicant to the respondent shall to be determined with the issue of equalization which is directed to a separate hearing. There shall be a settlement conference on the issue of equalization scheduled for November 12, 2015 at 10:00 a.m.

[67] I have determined on the evidence that the separation date was August 15, 2012 (“V-Day”) and the valuation of the assets for the purposes of calculating the parties’ NFP’s shall be as of that date. As the net proceeds from the sale of the matrimonial home have already been divided equally, and the respondent’s share allocated to child support and s.7 expenses, the matrimonial home will not be included in the NFP calculations.

[68] Both parties shall prepare and complete a net family property statement and equalization calculation in preparation for the settlement conference in accordance with the Family Law Rules. Each party shall serve and file these no later than ten days prior to the conference date. Each shall provide valuations, copies of all bank account statements, credit card statements and all other documents required to verify the values of the assets and liabilities of the parties on V-day.

[69] The applicant has submitted that the equalization should be less than equal in her favour, given what she claims was the respondent’s unconscionable use of matrimonial funds. However, no evidence was provided to this effect. To the contrary the evidence at trial showed that the respondent was contributing to payment of the household expenses, including the mortgage and the children’s expenses for private school fees during the parties’ cohabitation. The claim for an unequal division is therefore dismissed.

[70] I am not seized of the issue regarding the calculation of the parties’ NFP and equalization payment. The settlement conference and subsequent hearing, if required and directed at the settlement conference, may be heard by any justice of this court who is assigned to the matter.

Final Order

[71] For the reasons stated above, a final order shall issue as follows:

1. The parties, who were married on December 23, 2003, in the Province of Ontario, are divorced, to take effect 30 days hereof;

2. The applicant shall have custody of the children, Merika Antonetta Graham born on September 20, 2015, and Mekvaya Olivia Graham, born on February 26, 2007;

3. The respondent shall have access to the above-named children in accordance with the following terms:

(a) Every alternate weekend from 9:30 a.m. on Saturday, until 7:30 p.m. on Sunday, commencing July 25, 2015.

(b) When the alternate weekend access falls on a long weekend, the respondent’s access shall be extended until the holiday Monday at 7:30 p.m.

(c) Pick-up and drop off of the children to and from access shall be in accordance with paragraphs (3) and (4) of the June 19, 2015 order of this Court.

(d) Restrictions and arrangements for the scheduling of extracurricular activities for the children shall be in accordance with paragraphs (5) and (6) of the June 19, 2015 order.

(e) Telephone access for the children shall be in accordance with paragraph (8) of the June 19, 2015 order.

(f) The parties shall abide by the terms of paragraph (7) of the June 19, 2015 order, regarding communications to and within the hearing of the children.

(g) Delivery of copies of all the children’s written school, piano, dance and medical reports shall be as ordered in paragraph (9) of the June 19, 2015 order.

(h) The following holiday access schedule for the children shall be followed, which supersedes the regular weekend access:

i. The children’s Christmas vacation period shall be divided equally such that the applicant will have the children for the first half of the vacation period in odd numbered years, and the respondent will have them for the first half in even numbered years. The 3 day Christmas holiday namely, from December 24 at 9 a.m. to December 26 at 9 p.m. shall be divided each year, and alternated between the parents, as above, with the division to take place at 2 p.m. on December 25th.

ii. The children shall be with the applicant every year on Mother’s Day, and with the respondent every year on Father’s Day, regardless of the regular weekend schedule.

iii. The four-day Easter weekend shall be divided every year such that in odd numbered years Easter Sunday and Monday are with the applicant, Good Friday and Saturday are with the respondent, and vice versa in even numbered years.

iv. The children shall have their March school break from Friday at 6 p.m. until Sunday at 6 p.m. at the end of March break, with the applicant in even numbered years, and with the respondent in odd numbered years.

v. The children shall have an uninterrupted one-week summer vacation with each parent in August 2015. The applicant shall have the first choice of summer vacation week and shall inform the respondent of her choice by July 27, 2015. The respondent shall inform the applicant of his chosen week by July 31, 2015.

vi. Commencing the summer of 2016, the children shall have an uninterrupted two-week summer vacation with each parent in either July or August. The respondent shall have first choice of the summer vacation weeks in 2016, and in even numbered years thereafter. The applicant shall have first choice in 2017 and in odd-numbered years thereafter. Each party shall inform the other of his or her first choice by May 15th, and the other shall inform of the second choice of weeks by June 15th.

4. Having regard to the child support and s. 7 expenses paid and credited from the respondent’s share of the matrimonial home net proceeds, it is ordered that the respondent on April 1, 2016 commence paying $802.00 monthly child support, plus $208 monthly s.7 expenses to the applicant for the support of the above-named 2 children, based on an imputed annual income of $54,000.00.

5. The respondent shall on April 30 each year, commencing April 30, 2016, in writing disclose to the applicant his annual income, particulars of his employment and/or business activities, and his efforts of job searches.

6. The applicant’s claim to remove the respondent from the children’s RESP is dismissed, upon terms ordered that:

(a) Those funds may, if needed, and if permitted by the terms of the plan, be used to pay for dance and music lessons;

(b) In the event of a disagreement about the use of the RESP fund for the children’s education, the applicant shall make the final decision;

(c) The applicant shall determine what amount is reasonably required as a monthly contribution to the fund, and may in her discretion, reduce, increase or eliminate such contributions; and,

(d) The respondent, at the applicant’s request, shall sign any and all necessary documents required by the institution holding the RESP fund to effect the applicant’s decisions regarding the RESP.

7. The issue of equalization is directed to a separate hearing on a date to be set at the settlement conference.

(a) A settlement conference is scheduled for same on November 12, 2015 at 10:00 a.m before any justice of this court who is assigned.

(b) Both parties shall prepare and complete their NFP statements and equalization calculation in accordance with the Family Law Rules, and both parties shall file these no later than ten days prior to the settlement conference date.

(c) Each party shall also provide all relevant valuations and copies of his or her bank account and credit card statements to verify values of assets and liabilities shown on the party’s NFP as of the separation date.

8. Issues relating to the applicant’s claim for indemnity for her increased mortgage payments, jewellery, and respondent’s debt to the applicant are directed to be determined at the same time as the issue of equalization, which may be determined by any justice of this court.

Costs

[72] The result in this case is mixed. Neither party’s positions have entirely prevailed, nor is either party completely unsuccessful. In these circumstances, where both parties have expended considerable funds in legal fees prior to trial and have taken the time for trial as self-represented parties, I find the appropriate order in this case following trial is no order for costs.

Seppi J.

Released: July 21, 2015

COURT FILE NO.: FS-12-76142-00

DATE: 20150721

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MARSHA OLIVIA ELIZABETH GRAHAM

Applicant

– and –

MARK ANTHONY GRAHAM

Respondent

REASONS FOR JUDGMENT

Seppi J.

Released: July 21, 2015