COURT FILE NO.: FS-10-69442-00
DATE: 2015-07-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Edward Medeiros
Self-Represented
Applicant
- and -
Paola Concina
M. Tweyman, for the Respondent
Respondent
HEARD: January 22-23, 26-27,
May 25, 2015
REASONS FOR JUDGMENT
M. J. Donohue, J.
Contents
BACKGROUND. 3
Custody. 4
Travel Outside Canada. 7
Access. 8
Police Enforcement 14
Behaviour of the Parents. 14
Holiday Schedule. 15
Vacation Time. 15
Christmas. 17
March Break. 17
Other Holidays. 18
Imputed Income. 18
Facts. 19
The Parties’ Positions. 19
Bank Statements. 20
Legal Expenses. 21
Gift Money. 22
Credit Card Advances. 23
Tips. 24
Child Support Calculations. 26
Section 7 Expenses. 27
Spousal Support 28
Facts. 28
Entitlement to Spousal Support 30
Duration of Spousal Support 31
Quantum of Spousal Support 31
Equalization and Disposition of Trust Funds. 33
Contact with E.A. 34
Consent Orders. 35
CONCLUSION. 35
COSTS. 38
Chart 1. 39
BACKGROUND
[1] This is a matrimonial dispute. The parties were married on May 1, 2004, and separated six years later on June 9, 2010. The parties are the parents of three children; their daughter J.M.C.M. is now ten; their daughter M.T.C.M. is eight; and their son E.C.M. Jr. is six.
[2] The issues before this court are custody and access, equalization, the level of income to be imputed to Mr. Medeiros for child and spousal support purposes, and spousal support.
[3] At trial, Mr. Medeiros initially consented to Ms. Concina having sole custody of the three children. After Ms. Concina’s testimony at trial, he withdrew his consent.
[4] Access is in dispute. Mr. Medeiros seeks the current daily after school access schedule to be extended slightly. Ms. Concina seeks to have the current schedule altered to a schedule of alternate weekends plus Wednesday evenings.
[5] At present, there is approximately $22,000 in trust, which is Mr. Medeiros’ share of the net proceeds of the matrimonial home sale. A portion of these funds, $2,500, is subject to a costs order payable by Mr. Medeiros to Ms. Concina following a motion in 2014. Mr. Medeiros seeks an order for the balance of the funds in trust to be paid to him. Ms. Concina seeks those funds to be paid to her in satisfaction of equalization.
[6] Ms. Concina disputes Mr. Medeiros’ income. She seeks an order to impute a higher income to him on the basis of evidence that he deposited more money into his bank account than he claims to have earned. Her position is that he obtains other cash income and he receives higher tips than he has disclosed. As the additional income is not taxed, she seeks to have the extra income grossed up for tax purposes.
[7] Ms. Concina seeks spousal support from Mr. Medeiros. She left the work force in 2007 after the birth of her second child in order to raise the children. His position is that the six year marriage was a short one, and that Ms. Concina is able to return to the work force.
Custody
[8] Mr. Medeiros initially consented to Ms. Concina having sole custody of the children. His only request was for the court to order that his consent was required for any change in the children’s schools. His evidence on this point was brief. He stated that he felt that Ms. Concina was trying to alienate the children from him by choosing schools that would make his access pick up at school impossible or terribly difficult. Near the end of trial, after Ms. Concina testified, he withdrew his consent to her having sole custody.
[9] Ms. Concina explained that she changed the children’s school back to the original school where their eldest daughter attended kindergarten because of a dispute between that daughter and a boy in her class. Ms. Concina said that she believed there was bullying and sexual touching of her daughter by her male classmate. The boy’s parents were seeking a peace bond against Ms. Concina over this issue.
[10] Ms. Concina resigned from her lunch room position at the school, and moved all three children to the original school in September 2014. The youngest child, E.C.M., began Grade 1 in the school at that time. Both schools were Catholic schools. The current school is actually closer to Mr. Medeiros’ residence and, therefore, it does not interfere with his access.
[11] I am satisfied that Ms. Concina was attempting to make decisions that were in the best interests of the children when she changed the children’s school. There was no evidence that this change was calculated to impair the children’s access or relationship with their father. Rather, Ms. Concina has cooperated with the almost daily access with Mr. Medeiros that was recommended by the OCL assessment.
[12] Custody orders are governed by s. 16 of the Divorce Act, R.S.C. 1985, c. 3. At the opening of trial, I severed the issue of divorce, on consent.
[13] This is not a case where joint custody is in the best interests of the children. The parties have not spoken to one another in the five years since separation. They communicate by text. There was no evidence that the parties are able to or have, in the past, effectively communicated with one another. It would be an error to award joint custody in such a situation; Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 (C.A.).
[14] The record shows that this has been a high conflict separation. In high conflict situations, joint custody may be inappropriate. However, conflict is not an absolute bar to such an order: Ursic v. Ursic, 2006 CanLII 18349 (ON CA), [2006] O.J. No. 2178 (C.A.).
[15] In this case, the combination of a high level of conflict between the parties and their evidence of a failure to communicate precludes an order for joint custody.
[16] Ms. Concina has had sole custody pursuant to a temporary order of October 14, 2011. Mr. Medeiros provided no evidence regarding custody. The OCL assessment recommended that Ms. Concina have sole custody of the children.
[17] There is no evidence supporting a change in this regard. I am satisfied that the best interests of the children are served by sole custody remaining with Ms. Concina. Over the last five years, Ms. Concina has demonstrated her willingness to facilitate the children’s relationship with their father.
[18] Accordingly, I order custody of the three children to the Ms. Concina.
Travel Outside Canada
[19] There was evidence at trial that Mr. Medeiros had previously withheld his consent to Ms. Concina travelling outside the country, and a motion had been required. Ms. Concina testified that she has no difficulty with Mr. Medeiros travelling with the children.
[20] The evidence demonstrated that both parties are residents of Ontario and have ties to the local community.
[21] There is no reason that either party should be denied travel outside of Ontario on their vacation time or their access time with the children, as long as it does not interfere with the children’s school.
[22] I order that if either parent is travelling with the children outside the province that the other parent be advised of the itinerary 14 days in advance.
[23] I order that Ms. Concina may apply for passport renewals for the children without Mr. Medeiros’ consent. She is to hold the passports in her possession. She is to release the passports to Mr. Medeiros 14 days before he plans to travel, if they are required. Mr. Medeiros is to return the passports to Ms. Concina within 14 days of the children’s return to Ontario.
Access
[24] The current schedule is according to the temporary order of Justice Lemon made on October 14, 2011, and complies with the recommendations of the OCL. Currently, the three children are picked up from school by their father at 3:00 p.m. and are to be dropped off at their mother’s home at 7:00 p.m. on Mondays and Wednesdays. On Fridays, they are picked up from school at 3:00 p.m. and stay overnight until they are dropped off at Ms. Concina’s home on Saturday at 7:00 p.m.
[25] E.C.M. Jr. sees Mr. Medeiros on his own every Tuesday from 3:00 p.m. to 6:30 p.m. The two girls are with Ms. Concina during this time.
[26] There was no provision for holiday or vacation access over the last five years. However, one week for each parent was arranged in the summer of 2014.
[27] Mr. Medeiros agreed that he habitually returns the children home late rather than at 7:00 p.m. His evidence is that Ms. Concina is often not home anyway, and he is returning the children to a babysitter. Ms. Concina explained that two nights a week she goes to a workout class and arranges for a sitter.
[28] Mr. Medeiros states that her complaint about late drop-offs could be remedied by Ms. Concina picking the children up. That way, the transport of the children would be shared by both parents. The parties live a five minute drive from each other.
[29] Mr. Medeiros was seeking the holiday schedule as set out in the report of the OCL. He was also seeking an extension of the weeknight schedule to 8:00 p.m. in the spring and summer to accommodate additional activities for the children, such as soccer and reading programs at the library.
[30] He expressed frustration that because the schedule was so rigorously adhered to, he could not be a few minutes late, or take the children for ice cream or unscheduled activities. He also expressed frustration when he was denied access when a child was sick, when Ms. Concina advised there was a family funeral, or when extended family was visiting. He did not appear to understand that flexibility in the schedule cuts both ways.
[31] Mr. Medeiros testified that he had followed an alternate access schedule with his eldest son from his prior relationship, who is now twenty-four years old. He does not feel this kind of access schedule is healthy for the parent-child relationship. He feels that his three younger children are thriving and happy with him due to the frequent contact on the current schedule.
[32] He noted that the children were with their mother Thursday evening, Saturday evening, all day every Sunday, and on PD days. She also has the two girls on Tuesday evenings.
[33] He proposed a summer schedule from May to September 30 which sets out daily access (except Sunday); Monday 3 - 8:30 p.m. (all three children); Tuesday 3 - 8:30 p.m. (E.C.M. only); Wednesday 3 - 8:30 p.m. (all three children); Thursday 3 - 8:30 p.m. (J.M.C.M. and M.T.C.M. only); Friday 3 p.m. until Saturday at 6:00 p.m.
[34] He proposed a winter schedule from October 1 to April 29 similar to the current access schedule, but adding access with only his daughters on Thursdays; Monday 3 - 7:00 p.m. (all three children); Tuesday 3 - 7:00 p.m. (E.C.M. only); Wednesday 3 - 7:00 p.m. (all three children); Thursday 3 – 7:00 p.m. (daughters only) and Friday 3:00 p.m. to Saturday at 6:00 p.m.
[35] The parties live just five minutes apart from one another. This has assisted with the generous access schedule. Pick up has been at the school during school days and at Mr. Medeiros’ mother’s home on non-school days.
[36] Ms. Concina testified that the children are usually returned to her a half hour late such that each week it totals 1.5 to 2 hours a week of time she does not have with the children.
[37] Ms. Concina testified that due to the current access schedule, she has not had a full weekend with the children in the last five years. Therefore, she has not been able to arrange for activities. She advises that after their active day with their father on Saturdays, the children are tired and do not want to do activities with her on Sundays. Ms. Concina felt that the current schedule was too irregular and confusing to the children.
[38] Ms. Concina stated that the current schedule, where.E.C.M. was having an access visit alone on Tuesdays makes it difficult for her to plan activities.
[39] Ms. Concina asks the court to change the return time of the children from 7:00 p.m. to an earlier time. She argues that since they are often returned late, it is difficult to get the children calmed down, completing their homework and bathed. She testified that the children’s teachers have told her that the children are chronically tired.
[40] Ms. Concina testified that the access schedule is preventing her from being able to return to work full-time. The current schedule provides for separate access with E.C.M. on Tuesdays. Consequently, Ms. Concina has to care for one or two children on that weeknight.
[41] The Divorce Act states that the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.
[42] Over the past five years, these children have seen their father almost daily. It would be unnecessarily disruptive for the court to reduce their access with their father to a Wednesday evening and alternate weekends. A modification to the current access schedule would be in the best interests of the children to allow for continued frequent visits with their father, while balancing their needs to be well rested and prepared for school.
[43] The children should see their father daily, as has been the routine since separation. The difficulty is with the lateness of the children’s return to Ms. Concina at 7:00 p.m. Mr. Medeiros is generally 15 minutes or even half an hour late returning the children. A more appropriate return time on weeknights would be 6:30 p.m. so that homework, baths, and cool down time is maintained.
[44] On alternating weekends, the children shall stay with their father until 6:30 p.m. on Saturdays. Ms. Concina shall pick the children up each evening to ensure that they are getting home at a reasonable hour for homework, baths and bedtime.
[45] As Ms. Concina’s suggested, Mr. Medeiros shall have access extended to 8:00 p.m. one night per week to allow him to enrol the children in an extra-curricular activity. In the past he has enrolled them in soccer, skating or “Reading Buddies”. Mr. Medeiros is to advise Ms. Concina which evening he prefers for extended access. The choice can be changed with winter and summer activities upon Mr. Medeiros providing 30 days notice to Ms. Concina.
[46] To summarize, access shall be as follows:
- Mr. Medeiros shall have access with the children: i. daily at 3:30 p.m. until 6:30 p.m. on Monday to Thursday; ii. On Friday at 3:30 p.m. to Saturday at 9:00 a.m., but on alternating weeks he is to have access until Saturday at 6:00 p.m. commencing September 1, 2015.
- With 30 days’ notice, Mr. Medeiros is to have access with the children on a week night extended to 8:00 p.m. to allow for participation in an extra-curricular activity. This may be changed seasonally to a different evening, on 30 days’ notice to Ms. Concina.
Police Enforcement
[47] Ms. Concina has asked for an order that the police enforce the return times. It would be upsetting for the children to have the police arrive in order to return them from across the street. There is no suggestion that Ms. Concina does not know where the children are or that their safety is of concern. Any problems with chronic lateness arising from this new schedule can be addressed by further motions.
Behaviour of the Parents
[48] Ms. Concina was prepared to agree that further access is good for the children, provided that Mr. Medeiros stops attempting to alienate the children. Her evidence was that he discusses this litigation with the children, and that he denigrated her to the children.
[49] I agree that respect of elders must be instilled in children by both parents. It is hurtful to children to have one parent denigrate the other parent. In Jackson v. Jackson, 2008 CanLII 3222 (ON SC), [2008] O.J. No. 342, 50 R.F.L. (6th) 149 (S.C.J.), Justice Murray makes clear the potential impact of such behaviour on children:
23 Research around the world underscores again and again that parental conflict can have multiple adverse impacts on children — both in the short and long term.
24 I can do no better than repeat Mr. Gilmour's conclusion that: "parental conflict is a major source of harm to children, whether the children are in intact families or their parents have separated or divorced."
25 In this case, both parents should heed the warning of the Halton C.A.S., contained in a letter dated November 9, 2007 stating that: "Your children are at risk of emotional harm due to exposure to adult conflict".
[50] Mr. Medeiros and Ms. Concina are both reminded of the potential negative impacts that they may have on their children should they involve their children in adult conflict amongst themselves.
[51] All access is granted on the basis that both parties act with politeness and respect to one another. Mr. Medeiros is to respect the time limits ordered. Mr. Medeiros is to ensure that the children are packed, dressed, and ready for pickup by Ms. Concina promptly each evening at 6:30 p.m. If Mr. Medeiros and the children are going to be late for pickup, due to exceptional circumstances, he shall advise Ms. Concina as soon as possible.
Holiday Schedule
Vacation Time
[52] Mr. Medeiros requests four weeks’ vacation with the children, to be taken on 30 days notice. He agrees that the children should also have vacation time with their mother.
[53] Ms. Concina requests two weeks consecutive or non-consecutive vacation for each parent, to be arranged by May 1, of each year. The parties would alternate who had first choice of vacation weeks.
[54] Mr. Medeiros is already seeing his children regularly. I am satisfied that a two week vacation, either consecutive or non-consecutive, is appropriate and in the children’s best interests. Each parent shall have two weeks of vacation time with the children. Vacation time is not to interfere with the children’s schooling.
[55] Exceptionally for 2015, as much of the summer has already passed, each parent shall be allowed to have one week vacation with the children. By September 1, 2015, Mr. Medeiros is to advise Ms. Concina of his choice of vacation week for 2015. By October 1, 2015, Ms. Concina is to advise Mr. Medeiros of her choice of vacation week for 2015.
[56] For 2016 and going forward, by May 1,2016, Ms. Concina is to advise Mr. Medeiros of her choice of vacation weeks for 2016. By June 1, 2016, Mr. Medeiros is to advise Ms. Concina of his choice of vacation weeks for 2016. Thereafter, the parties are to alternate as to who has first choice of vacation weeks and advise the other parent each year by May 1 and June 1, respectively.
Christmas
[57] No evidence was provided by either party as to what has happened in the last five years, or what was in the children’s best interest regarding a Christmas access schedule.
[58] The OCL recommended that in even years the children would be with their father from 3:00 p.m. on Christmas Eve to noon on Christmas Day and on odd years they would see their father on Christmas Day from noon until 7:00 p.m. I find this to be the appropriate holiday time.
[59] Mr. Medeiros advises that in some years he takes his vacation at Christmas. As I have ordered two vacation weeks above, Mr. Medeiros may choose to use one of his vacation weeks around the Christmas vacation, subject to the limitation on Christmas Day noted above.
March Break
[60] Mr. Medeiros sought access during the March break from Friday at 3:30 p.m. to Wednesday at noon, with the balance of the children’s week being spent with their mother.
[61] Ms. Concina prefers that each parent should alternate having the children for the full week of March break from Friday at 3:30 p.m. until Sunday at 6:00 p.m. She requests that Mr. Medeiros be off work for that time when it is his year to have March break access.
[62] To lessen confusion and disruption that has persisted in this case, I find the best interests of the children are served by a full week with one parent. In even years, Mr. Medeiros shall have his access for the March break. In odd years, Ms. Concina shall have the full week with the children. I make no stipulation that each parent must take the week off work as long as child care arrangements are made.
Other Holidays
[63] In final submissions, Ms. Concina suggested access for Thanksgiving; Family Day; Father’s Day and Mother’s Day. Mr. Medeiros advised that these dates were not contentious and should remain according to the current schedule. I heard no other evidence about these holidays.
[64] I decline to make orders in the absence of evidence. I leave it up to the parties to sensibly share these dates, or seek further order of the court.
Imputed Income
[65] Ms. Concina seeks to have income imputed to Mr. Medeiros based on substantial tips that she alleges he earns through his employment.
Facts
[66] Mr. Medeiros has worked for 23 years as a doorman at the Sheraton Gateway Hotel located at Terminal 3 of the Pearson International Airport. He is paid an hourly wage and he receives tips.
[67] Mr. Medeiros’ Line 150 income has been approximately $27,000 since separation. The figures are as follows: $22,203 (net of rental income losses) in 2010; $26,858 in 2011; $27,333 in 2012; and $28,344 in 2013. His last pay stub for 2014 shows year to date income of $27,325.
[68] Mr. Medeiros currently pays monthly child support of $666 based on a temporary, without prejudice, consent order of Justice Price. The amount was based on an income of $34,000.
The Parties’ Positions
[69] Ms. Concina asks the court to impute additional income of $35,000-$40,000 to Mr. Medeiros. She relies on frequent cash deposits shown in his bank statements. She testified that during their marriage, Mr. Medeiros usually brought home tips of roughly $800 - $900 a week. She testified that she recalls seeing the monies sitting in a box on the window sill.
[70] At the opening of trial, Ms. Concina asked the court to impute income of $55,000 to Mr. Medeiros. In closing submissions, she asked the court to impute income of $65,000.
[71] Mr. Medeiros testified that his income for the last five years, including tips, is $33,000, “give or take $500”. He estimates that he receives approximately $125 per week in tips. He has four weeks of vacation per year. He testified that he deposits his tips in his bank account, but does not declare them on his tax return.
[72] In his testimony, Mr. Medeiros guessed that most of the cash deposits shown in his bank statements were either income or borrowed funds. Mr. Medeiros stated he was taking cash advances from his credit card; borrowing from friends and family and “robbing Peter to pay Paul” to cover the house costs, his support payments and his legal bills. He advised that he is constantly late with rent and faces eviction.
Bank Statements
[73] Mr. Medeiros produced his bank statements a week before trial. Mr. Medeiros is unsophisticated in financial matters and had not previously looked at his bank statements. There was no questioning prior to trial.
[74] Apart from government refunds, the total amounts deposited in Mr. Medeiros’ bank account each year are as follows; $55,236 (annualized) for 2010; $67,927 (including a loan from his sister) in 2011; $46,614 in 2012; $44,614 in 2013 and $43,217 in 2014.
[75] On cross-examination, Mr. Medeiros was questioned about the significant additional deposits shown in the statements. He had no specific recollection of most of the deposits. He suggested that they may have been tips, tenant’s rent/hydro/water, monies given or loaned from his mother and sister, funds loaned from friends, or some cash from doing fencing work for his friend, Anthony. Mr. Medeiros has demonstrated the ability to earn extra income by working for friends.
[76] Mr. Medeiros thought that a deposit of $21,292 in 2011 was a loan of Euros from his sister in Portugal. The cheque was returned. A further cheque was deposited for roughly $14,000. He believes the other part of the loan went to a credit card advance.
Legal Expenses
[77] Mr. Medeiros testified that his legal expenses were over $50,000, and his mother was helping him make those payments. There is evidence that his mother has been very involved with the children and I accept that she may well have helped with these bills.
[78] However, Mr. Medeiros did not submit evidence that could support the unexplained cash deposits are from his mother to assist with his legal bills. The only corroborating evidence he submitted was evidence that one of his legal bills had been paid by his mother directly to the law firm. This does not help to explain from where all the cash deposits are coming.
[79] I requested reply evidence from Mr. Medeiros regarding his credit card advances, funds borrowed from his mother, and evidence of the legal bills that he paid using funds borrowed from his mother. Despite that request, Mr. Medeiros advised that he would not be entering any further evidence.
Gift Money
[80] Mr. Medeiros testified that he deposited monetary gifts that were given to the three children on their birthdays and Christmas into his personal accounts. These gifts amounted to between $600 and $900 per occasion. He testified that his family and the children’s godparents were always generous in this way. Mr. Medeiros testified that by depositing this money, he was able to pay his legal bills that helped to ensure his access with the children.
[81] These funds would explain deposits in Mr. Medeiros’ account of between $3,600 to $5,400 per year. These are gifts to the children, and this money should be used for that purpose alone. As such, I decline to use these monies to impute further income to Mr. Medeiros going forward.
Credit Card Advances
[82] Mr. Medeiros stated he was taking cash advances from his credit card, which may account for some of the deposits shown in his bank statements. He testified that he has substantial credit card debt. Mr. Medeiros’ financial statement notes $64,400 in credit card debt. Mr. Medeiros did not file any documentary evidence in support of these assertions such as credit card statements. In Mr. Medeiros’ financial statement, his yearly expenses are $54,000 per year. He states he is running a deficit of $2,119 per month or $25,428 per year.
[83] Mr. Medeiros produced all his credit card statements to Ms. Concina. It became apparent in closing submissions that he did not understand that these statements were not in evidence.
[84] I note that counsel for Ms. Concina did not cross-examine Mr. Medeiros on any of the credit card statements. She did not question him on whether the statements suggested extravagant expenses, or that they did not reconcile with Mr. Medeiros’ financial statement.
[85] As mentioned above, the court requested reply evidence from Mr. Medeiros regarding his credit card advances. Despite the court’s request, Mr. Medeiros advised that he would not be entering any further evidence.
[86] The lack of evidence on these alleged credit card advances prevents me from accepting Mr. Medeiros` claim that some of the cash deposits shown on his bank statements are cash advances that he took from his credit card.
Tips
[87] Ms. Concina testified that during their marriage, Mr. Medeiros usually brought home tips of roughly $800 - $900 per week that he would bank. Over 48 weeks of work per year, this would amount to approximately $40,800 undeclared income in addition to his employment income of $27,325.
[88] Mr. Medeiros estimates that he receives approximately $125 a week in tips. This would total approximately $6,000 in tips annually. He testified that he deposits his tips in his bank account, but does not declare them on his tax return.
[89] In cross-examination, Mr. Medeiros suggested to Ms. Concina that his tips had to be split with other employees. Ms. Concina`s evidence was that she did not know and had never heard about splitting tips. Mr. Medeiros did not testify as to how much of his tips he would split. Mr. Medeiros brought no further evidence in support of tip splitting.
[90] Mr. Medeiros entered his pay stub from April 23, 2010, into evidence. This exhibit was originally disclosed by Ms. Concina in her Exhibit Book. At the top of the page, the pay stub contains five lines of a series of hand written numbers ranging from 3 to 40. There is also a hand written note that says, “Eddy was writing down his tip money.”
[91] Ms. Concina agreed that it was a pay stub from Mr. Medeiros` employment, and that he had written his tips at the top of the page. The numbers written on each line are totalled beside: the line 1 total is $60; line 2 $69; line 3 $100; line 4 $145; line 5 $75; and there is one more total on line 6 of $27. Ms. Concina agreed with Mr. Medeiros’ suggestion that each of these numbers could represent the amount of tips that he earned that day. Adding up the first five lines, this exhibit suggests that Mr. Medeiros earned $449 in tips that week. There is no evidence as to whether this was a good week or a bad week for tips.
[92] I doubt Ms. Concina’s evidence that Mr. Medeiros made an additional $40,000 a year in tip money. She did not give any evidence that their lifestyle during the marriage was comfortable, or that the family relied on substantial funds from tips. Rather, the family had very little equity in the matrimonial home and significant credit card debt.
[93] Mr. Medeiros testified that tips are not steady income and he cannot count on them. I accept that the amount of tips he earns fluctuates, but I cannot conclude that that he would garner only $25 a day, or $125 per week.
[94] Based on this pay stub and Mr. Medeiros’ bank statements, the court can conclude that Mr. Medeiros earns approximately $400 per week in tips. Mr. Medeiros works for 48 weeks each year and, therefore, his total income from undeclared tips is $19,200. This amount shall be grossed up for support purposes, as Mr. Medeiros has testified that he does not declare and pay tax on his tips. Therefore, I find it appropriate to impute annual income of $52,694 to Mr. Medeiros for the purposes of support.
Child Support Calculations
[95] On August 30, 2010, Justice Gray ordered child support of $666 per month to commence September 15, 2010, based on an annual income of $34,000.
[96] Mr. Medeiros has paid $32,220.37 in child support to December 31, 2014. FRO has acknowledged arrears of $2,411.63 remain outstanding as of December 31, 2014.
[97] I find that on an income of $52,694, Mr. Medeiros should have been paying child support for the three children of $1,018 per month. $4,072 was, therefore, payable in 2010, and $12,216 was payable annually thereafter for a total of $52,936. The arrears on my order are set at $20,715.63 as of December 31, 2014. I do not have any information as to payments or enforcement by FRO since that date.
Section 7 Expenses
[98] Ms. Concina seeks an order for proportionate sharing of s. 7 expenses for two activities per season for each child upon presentation of an invoice.
[99] The Ontario Child Support Guidelines, sets out the definition of "extraordinary expenses" in s. 7 as follows:
(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent's or spouse's income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or
(b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,
(i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child,
(iv) the overall cost of the programs and activities, and
(v) any other similar factors that the court considers relevant.
[100] While there was discussion that the children are at times involved in hockey and soccer, Ms. Concina presented little evidence of what these activities would cost, and no evidence of why they should be classified as extraordinary expenses and not covered by the regular guideline child support.
[101] As a result of this lack of evidence in support of this claim, it is denied.
Spousal Support
Facts
[102] Ms. Concina was born June 12, 1972; she is now 42 years of age. She completed high school, and is a graduate from a travel and tourism program at Sheridan College. She worked for Signature Vacations until 2007 when her second child was born. At that time, she remained at home and cared for the children. Her position was subsequently terminated. Her earnings during her employment with Signature Vacations were $27,000 annually.
[103] Since separation in 2010, Ms. Concina has earned minimal employment income from her position as a school lunch attendant: in 2011, $0; in 2012, $435; in 2013, $2,668; and in 2014, $1,878. She left this position when the children switched schools. She appears to agree that she could do some part-time work.
[104] In 2011, Ms. Concina told the OCL that she planned to return to work when the children were in school full time and she had the opportunity to retrain. All three children have been in primary school since September 2012. She testified that she subsequently remained out of the work force due to the illness of her mother who passed away in February 2014. All three children have attended school full-time since September 2014.
[105] At trial, Ms. Concina did not provide any evidence of retraining she had undertaken, or any plan for her to return to work. No plan was evident of her efforts toward self-sufficiency.
[106] Ms. Concina testified that she could not presently maintain employment due to her child care obligations. She cares for the two girls on Tuesday after school, and all three children on Thursday after school. Ms. Concina felt that but for the after school child care, she could have returned to the workforce.
[107] Mr. Medeiros has been awarded daily after-school access with the children until 6:30 p.m. Going forward, Ms. Concina will be able to find full time employment without having any child care responsibilities until the evening.
[108] Ms. Concina was active in the proceedings in assisting her counsel. She was alert, organized, and ready to assist her counsel and the court with papers and the proceedings. She was articulate and bright. She can keyboard and is familiar with the Internet. I find that she could well be self-supporting.
Entitlement to Spousal Support
[109] There are three possible bases for entitlement to spousal support; compensatory, contractual, and non-compensatory needs-based: Moge v. Moge, (1992) 1992 CanLII 25 (SCC), 43 R.F.L (3d) 345; Bracklow v. Bracklow, (1999) 1999 CanLII 715 (SCC), 44 R.F.L (4th) 1.
[110] Ms. Concina left the work force in 2007 in order to care for the parties’ children. Until the date of separation in 2010, Ms. Concina did not work outside the home. By making this sacrifice in her professional life to the benefit of her family, Ms. Concina has suffered a detriment in her ability to earn income. She did not remain in the work force and was unable to benefit from promotions, ongoing training, and the networking that goes along with employment. This sacrifice will have an impact on Ms. Concina’s ability to obtain employment and become self-sufficient.
[111] Ms. Concina is entitled to compensatory spousal support on account of her sacrifice for the family.
Duration of Spousal Support
[112] The length of the parties’ marriage was just under six years. This was a short-term marriage.
[113] According to the Spousal Support Advisory Guidelines (“SSAGs”), Ms. Concina is entitled to spousal support for the duration of 3 to 12 years. Although the basis for the entitlement is compensatory, in light of my decision that follows on quantum of support and the income that I impute to Ms. Concina, I find that she is entitled to compensatory spousal support for a term of four years.
Quantum of Spousal Support
[114] Ms. Concina was out of the work force raising pre-school aged children for three years during the marriage, and eight years total. At the time of separation, the children were young and required more attention and care. In addition, Ms. Concina testified that she was caring for her elderly mother until she passed away in early 2014. E.C.M. Jr. has been in school for the full day since September 2014.
[115] Ms. Concina’s childcare responsibilities significantly decreased in September 2012. At that point, the children were all attending school for at least part of the day. In addition, the children spent many evenings with their father. I find that Ms. Concina could have obtained part-time minimum wage employment during this period of time.
[116] Since September 2014, Ms. Concina has had no significant child- care or other responsibilities that would prevent her from obtaining employment, or from making meaningful steps to re-train and prepare to re-enter the work force and become self-sufficient. While it may be true that her child-care obligations on Tuesdays and Thursdays prevented her from obtaining full-time employment, she has not made efforts to obtain part-time employment or re-train.
[117] It is reasonable to assume that it may have taken Ms. Concina a couple of months to obtain employment that would fit within her child care needs schedule. Consequently, I impute annual part time employment income of $11,000 to her, in line with minimum wages beginning November 1, 2012, until August 1, 2015.
[118] Generally, a compensatory claim will move the spousal support quantum to the higher range of the SSAG for both quantum and duration. Although Ms. Concina’s entitlement to spousal support is based on a compensatory claim, I would not characterise this as a strong compensatory claim. This was a short term marriage and while Ms. Concina did make professional sacrifices, she was out of the work force for only three years during the marriage. Accordingly, Ms. Concina is entitled to spousal support at the high point range in the SSAGs from August 2010 for the duration of four years.
[119] Although Ms. Concina is entitled to spousal support for a term of four years, SSAG calculations determine that she is not owed any spousal support from January 1, 2013 through 2014, due to the parties’ respective levels of income and the child support that is payable. Therefore, the total amount of spousal support that is outstanding is $8,248. See the attached Chart 1 at the end of these reasons for a breakdown of this calculation.
[120] On a go forward basis, I find that Ms. Concina is not entitled to spousal support. I find that she would be capable of earning full time minimum wage, or $23,000 per year.
Equalization and Disposition of Trust Funds
[121] Mr. Medeiros did not understand the Net Family Property Statement prepared by Ms. Concina, but he did not dispute the figures or calculations. Ms. Concina’s statement concluded that Mr. Medeiros owed her an equalization payment of $19,621.
[122] As I have no evidence to the contrary, and I accept her evidence, I order Mr. Medeiros to pay an equalization payment to Ms. Concina of $19,621. I order his funds in trust from the sale of the matrimonial home to be released to Ms. Concina as a credit to the equalization payment owed, and thereafter to be released to Ms. Concina in satisfaction of support arrears noted above.
[123] Ms. Concina seeks to have Mr. Medeiros pay half of the CIBC Visa that is in her name. However, she claimed this debt in her net family property statement. She is already getting the benefit of that debt in the equalization payment above. I am not, therefore, prepared to order Mr. Medeiros to pay half of the CBIC Visa debt.
Contact with E.A.
[124] In closing submissions, Ms. Concina’s counsel sought an order that there be no contact between the parties’ children and another child, E.A. E.A. was not a party to these proceedings.
[125] The CAS investigated a reported incident where E.A. was allegedly inappropriately touching one of the parties’ daughters. The investigation was closed, and the parents of E.A. sought a peace bond as against Ms. Concina relating to these claims.
[126] The evidence was that E.A. was at times present at the arena when the parties’ children were also there. There was no evidence that Mr. Medeiros was involving E.A. in the children’s activities.
[127] I decline to make this order.
Consent Orders
[128] The parties consent to an order that Ms. Concina will not attempt to change the children’s names.
[129] The parties consent to an order that Mr. Medeiros has authority to speak with and obtain information from any medical care providers, educators, care providers or counsellors regarding the three children.
[130] The parties consent to an order that Mr. Medeiros will designate his three children as beneficiaries of his life insurance policy while they are in need of support. He is to provide proof of this beneficiary designation within 30 days of this judgment. Mr. Medeiros is to provide annual proof in writing of the existence and good standing of the policy.
CONCLUSION
[131] Accordingly, I order as follows:
The respondent, Paola Concina, is to have final sole custody of the children, namely J.M.C.M., born […], 2005, M.T.C.M., born […], 2007, and E.C.M., born […], 2008.
If either parent is travelling with the children outside the province, the other parent shall be advised of the itinerary 14 days in advance.
Ms. Concina may apply for passport renewals for the children without the consent of Mr. Medeiros. She is to hold the passports in her possession. She is to release the passports to Mr. Medeiros 14 days before he plans to travel, if they are required. Mr. Medeiros is to return the passports to her within 14 days of the children’s return to Ontario.
Mr. Medeiros shall have access with the children:
i. daily at 3:30 p.m. until 6:30 p.m. on Monday to Thursday;
ii. On Friday at 3:30 p.m. to Saturday at 9:00 a.m. but on alternating weeks he is to have access until Saturday at 6:00 p.m. commencing September 1, 2015.
With 30 days’ notice, Mr. Medeiros is to have access with the children on a week night extended to 8:00 p.m. to allow for participation in an extra-curricular activity. This may be changed seasonally to a different evening on 30 days’ notice to Ms. Concina.
Ms. Concina shall pick the children up from access visits.
Each parent shall have two weeks of vacation time with the children, not to interfere with schooling. Due to the lateness in the year, exceptionally in 2015, each parent shall have one week vacation with the children. By September 1, 2015, Mr. Medeiros shall advise Ms. Concina of his choice of vacation week for 2015. By October 1, 2015, Ms. Concina is to advise Mr. Medeiros of her choice of vacation week for 2015. The parties are to alternate first choice of vacation weeks, and advise the other parent each year by May 1 and June 1, respectively.
In even years, the children shall be with their father from 3:00 p.m. on Christmas Eve to noon on Christmas Day. On odd years, they shall see their father on Christmas Day from noon until 7:00 p.m. Mr. Medeiros may choose use one of his two vacation weeks with the children around the Christmas vacation, subject to the limitation on Christmas Day noted above and Ms. Concina’s choice of vacation in even years.
In even years, Mr. Medeiros shall have his access for the full week of March break. In odd years, Ms. Concina shall have the full week with the children.
Mr. Medeiros’ income is imputed at $52,694 per year.
Mr. Medeiros is ordered to pay child support of $1,018 per month commencing September 15, 2010.
Child Support arrears to December 31, 2014, are calculated at $20,715.63.
Spousal support arrears are set at $8,248.
No spousal support is payable going forward and that claim is dismissed.
The total child and spousal support arrears as of December 31, 2014, are set at $28,963.63.
The applicant shall pay an equalization payment of $19,621.
Any trust proceeds remaining in the trust account for Mr. Medeiros following the sale of the matrimonial home are to be paid to Ms. Concina as a credit to the equalization payment and thereafter support arrears, as noted above.
COSTS
[132] If the parties cannot agree on costs, Ms. Concina may make written submissions as to costs within 14 days of the release of these reasons for decision. The Applicant has 14 days after receipt of the Respondent’s submissions to respond. All such written submissions are to be forwarded to me at my chambers at 7755 Hurontario Street, Brampton. The submissions are to be five pages or less in addition to any costs outline, offers and case law. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
Chart 1
| Date Range | Ms. Concina’s Income | Monthly Spousal Support (SSAG High Range) | Total Number of Months of Support | Total Spousal Support Payable during this Period |
|---|---|---|---|---|
| August 2010 – December 2010 | $0 | $332 | 5 | $1,660 |
| January 2011 – December 2011 | $0 | $332 | 12 | $3,984 |
| January 2012 – December 2012 | $2,235 | $217 | 12 | $2,604 |
| January 2013 – December 2013 | $11,000 | $0 | 12 | $0 |
| January 2014 – December 2014 | $11,000 | $0 | 12 | $0 |
| Total Spousal Support Payable | $8,248 |
M. J. Donohue, J.
Released: July 23, 2015
COURT FILE NO.: FS-10-69442-00
DATE: 2015-07-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Edward Medeiros
Applicant
- and –
Paola Concina
Respondent
REASONS FOR JUDGMENT
M. J. Donohue, J.
Released: July 23, 2015