SUPERIOR COURT OF JUSTICE
ONTARIO
B E T W E E N:
Aretusa fias
Applicant
- and -
Nuno pereira souto
Respondent
Gargi Chopra, for Ms. Fias
Theodore Nemetz, for Mr. Souto
HEARD: November 17, 18, 19, 20, 21, 24, 25, and 26, 2014
STEVENSON J.
REASONS FOR DECISION
Introduction
1The Applicant, Aretusa Fias ("Ms. Fias"), seeks joint custody of the parties’ son, Kael do Nascimento Souto ("Kael"), born April 7, 2009. She also seeks an order incorporating the terms of a parenting plan recommended by the Office of the Children’s Lawyer (the “OCL”) dated, June 25, 2014, plus additional time with Kael to be provided to her if her weekend contains a holiday or PD day. Ms. Fias also seeks child support commencing September 1, 2014; proportionate contributions by the parties to section 7 expenses; spousal support in varying monthly amounts commencing November 1, 2012, or in the alternative, lump sum spousal support; an order that Nuno Pereira Souto’s (“Mr. Souto”) claims for resulting and constructive trusts, together with any other claims for damages be dismissed; one-half of the proceeds from the sale of the property known municipally as 24 Leopold Avenue, Toronto, Ontario (the “Leopold Property”), subject to some adjustments; and costs.
2Mr. Souto seeks sole custody of Kael and that Ms. Fias have access to Kael every other Thursday to Sunday evening and on the week where she does not have weekend access, Thursday overnight. He is not seeking child support from Ms. Fias and he is asking that if Ms. Fias is entitled to spousal support, spousal support be paid to Ms. Fias for a maximum of 2-1/2 years in the amount of $183 per month. Mr. Souto claims a resulting trust with respect to the Leopold Property as well as property known municipally as Suite 2303, 5 Mariner Terrace, Toronto Ontario (the “Mariner Property”), currently registered in Ms. Fias’ name. He seeks to retain all of the remaining proceeds from the sale of the Leopold Property and any funds remaining from the sale of the Mariner Property.
Background
3Ms. Fias is 38 years-old. She was born in Brazil and first came to Canada in approximately 1998 as a circus performer. She later returned to Canada and was subsequently married to another circus performer on May 22, 2000. Ms. Fias became a Canadian citizen in 2006. Mr. Souto is 35 years of age. He was born in Mozambique and grew up in Angola and Portugal. He came to Canada in 2005 as a visitor and was subsequently married to a Canadian citizen in 2005. He became a landed immigrant in 2007.
4The parties began a friendship through a Capoeira class which is a Brazilian form of martial arts. Their friendship evolved and eventually they moved in together into Ms. Fias’ basement apartment in the fall of 2007. Mr. Souto had purchased a condominium unit municipally known as 801-231 Fort York Boulevard, Toronto, Ontario (the “Fort York Property”) in the summer of 2007. There was a tenant residing in the property and the tenant refused to move. The tenant was evicted in April of 2008. The tenant paid the rent, but it was not sufficient to cover the mortgage. The condominium fees went into default and Mr. Souto contends that he was unaware that he had to pay the condominium fees. As a result of being unable to move into the Fort York Property, Mr. Souto resided with Ms. Fias in her basement apartment. He indicated that prior to this, he had been “couch surfing” and living in his vehicle.
5Once the tenant was evicted, the parties moved into the Fort York Property in April of 2008. Kael was born on April 7, 2009 and the parties decided that they required a larger residence. They found the Mariner property and it was purchased in the summer of 2009. Title to the property was and remains in Ms. Fias’ name. The Fort York Property was rented once the parties moved into the Mariner Property.
6The parties resided at the Mariner Property for approximately one year. While they resided there they began to look for a larger property that would provide more space for Kael to run around and play. Subsequently, the Leopold Property was purchased in the summer of 2010 and registered in their joint names. Renovations were completed on the 4,000 square foot home, including the partial finishing of the basement to be used as a dance studio or practice studio for Ms. Fias and as a meeting place for Mr. Souto's Capoeira students.
7The parties continued to reside together in a common-law relationship with Kael in the Leopold Property until October 27, 2012 when, as a result of a physical altercation between the parties, Ms. Fias was charged with assault and removed from the Leopold property. Kael was left in the primary care of Mr. Souto after this incident and much litigation ensued.
8The Leopold Property was subsequently sold and the proceeds of approximately $400,000 remain in trust. The Mariner Property had been rented out after the purchase of the Leopold property. The Mariner Property is currently subject to power of sale proceedings due to the default on the mortgage. The bank was to take possession as of December 1, 2014.
9There is much dispute in the evidence as to whether both parties contributed to the purchase and maintenance of the Mariner and Leopold properties or whether Mr. Souto was the sole contributor. There is also a dispute regarding the incomes earned by the parties during their relationship. Additionally, there is disagreement concerning the roles assumed in the relationship with respect to the care of Kael and what has transpired post-separation regarding Kael. Due to the conflict between his parents, Kael has experienced many ongoing difficulties that have affected him physically and that have affected him at daycare and school. Kael is now five years of age and he is in Senior Kindergarten.
10Pursuant to the order of Jones J. of the Ontario Court of Justice, dated December 21, 2012, the involvement of the OCL was requested. The OCL consented to provide services pursuant to section 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Ms. Shannon Deacon, MSW, RSW was appointed as clinical investigator. She completed an interim report dated June 28, 2013 and a final report dated June 24, 2014. On August 5, 2014, Frank J. of this Court (the matter having been transferred to this Court by Waldman J. pursuant to her order of August 23, 2013) ordered that the recommendations set out in the final report be implemented on an interim basis with the access recommendations taking effect as of the beginning of the second week of the 2014-2015 school year.
11Currently, pursuant to that temporary order, the parties are to make decisions about Kael’s needs and care together, consulting one another about all major decisions in his life. When they are unable to come to an agreement, Mr. Souto is to make the final decision. Ms. Fias shares time with Kael every other weekend from Friday at the end of school to Monday at the start of school, every Wednesday at the end of school to Thursday morning, and every other Thursday evening to Friday morning return to school during the weeks in which Kael is not scheduled to be with Ms. Fias on the weekend.
12The parties agree on a number of the recommendations of the OCL; however, Mr. Souto is not in agreement with the decision-making recommendations, the current time sharing schedule, the summer schedule that has been ordered pursuant to those recommendations, and telephone contact as set out in the recommendations and ordered by Frank J. Mr. Souto is concerned about what he perceives is the parties’ inability to cooperate and communicate, the number of transitions for Kael and Kael’s need for stability.
Issues
13The issues for determination are as follows:
i) What type of custodial arrangement is in the best interests of Kael? What residency or access arrangements are in the best interests of Kael?
ii) What are the incomes of the parties for support purposes? What is the proper amount of child support payable and by whom?
iii) Should there be a declaration that Mr. Souto has a 100% proprietary interest in the Mariner and the Leopold properties on the basis of a resulting trust? Who is entitled to the proceeds of sale from the Leopold and Mariner properties?
iv) Is Ms. Fias entitled to spousal support? If so, what is the appropriate quantum and duration of spousal support to be paid by Mr. Souto to Ms. Fias?
Issue #1
What type of custodial arrangement is in the best interests of Kael? What residency or access arrangements are in the best interests of Kael?
Ms. Fias’ Position
14Ms. Fias seeks joint custody of Kael. She contends that she was the primary caregiver of Kael since his birth until she was forced to leave the matrimonial home on October 27, 2012. She testified that she was primarily responsible for taking care of Kael which included caring for him throughout the day and in the evenings. She stated that even though Mr. Souto wanted Kael to attend daycare when he was older, she registered Kael in the program and she was responsible for taking Kael to and from daycare. Ms. Fias contends that she would often pick Kael up early from daycare and spend time with him. She would also bring Kael to drop off Mr. Souto at work or to pick him up as the parties only had one vehicle.
15Ms. Fias testified that Mr. Souto was working in a job from 9:00 a.m. to 5:00 p.m., but he was also involved with a number of Internet projects in the evening and he was teaching Capoeira classes during the week. She acknowledged that Mr. Souto would participate more with Kael's care on the weekends, but that during the week she was primarily responsible for all of his care. She testified that the parties did have a housekeeper mainly at the Leopold residence which afforded Ms. Fias more time to look after Kael.
16Ms. Fias also testified that prior to Kael attending daycare she would take him to Early Years Centres to enable Kael to socialize with other children. Mr. Souto did not attend with her as he was always working. She described Kael as being a very energetic, strong, smart and active toddler who had to be watched all of the time. Kael was not afraid of anything.
17Ms. Fias testified that during the altercation of October 27, 2012, she was assaulted by Mr. Souto and that he had assaulted her previously during the relationship. According to Ms. Fias’ evidence, the charges from the altercation on October 27, 2012 were subsequently withdrawn.
18Since the parties separated, Ms. Fias feels that Mr. Souto has not encouraged the relationship between her and Kael. To better her parenting skills, she has completed a parenting course where she learned new strategies and became more creative with Kael. She is presently on a waiting list for another parenting program that was to commence in January 2015. She indicates that she no longer has any problems with Kael having temper tantrums as she applies the strategies that she learned in the parenting course.
19Ms. Fias testified that despite the recommendations of the OCL that Mr. Souto consult with her, he refuses to do so. She was not allowed summer access to Kael and was not allowed regular telephone contact with Kael as was recommended by the OCL. She acknowledged that Mr. Souto has provided some information regarding Kael's routines, but not much detail is provided by him. She indicated that Mr. Souto unilaterally moved Kael’s residence to Oakville without consultation with her. This resulted in a change of Kael's daycare and school. Mr. Souto moved in with his girlfriend and her two children without thinking of the impact that this would have on Kael. The move to Oakville has also impacted her time with Kael as she must now drive 32 kilometres each way in heavy traffic. She states that the communication between her and Mr. Souto is poor.
Mr. Souto's Position
20Mr. Souto seeks sole custody of Kael. He does not agree that joint custody would be in Kael's best interests as there has been much conflict between the parties and the parties have an inability to communicate and cooperate.
21Mr. Souto acknowledged that when Kael was born, Ms. Fias was at home looking after Kael at the Mariner property. He recalls that Ms. Fias stayed home frequently but would sometimes take Kael for a walk and pass by Mr. Souto's work. He does not recall there being many issues. He disputes Ms. Fias’ evidence that Kael was frequently at the doctor and he indicated that the decision to enroll Kael in daycare was made jointly.
22He acknowledged that during the relationship he sometimes worked in the evenings as he was trying to get projects moving forward. He also acknowledged that he taught Capoeira classes on some evenings. Mr. Souto testified that he cared for Kael most evenings. He would spend time with Kael, feed him, shower and get Kael ready for bed. The meals were prepared by the parties’ housekeeper, Eunice, but Ms. Fias also cooked meals. Eunice worked eight hours per day.
23Mr. Souto has concerns that Ms. Fias has been negligent with Kael. Ms. Fias would spend a considerable amount of time on the computer and was not paying attention to Kael. In order to get Kael to stop certain behaviour, Ms. Fias would bribe Kael with candy. He outlined in his evidence incidents where he felt that Ms. Fias had put Kael's safety at risk. He described three incidents when Kael was lost while in the care of Ms. Fias, including an incident when Kael had walked out of the home and another when Kael was lost at a park and the police were involved.
24Mr. Souto testified that Kael has experienced a number of difficulties since the parties’ separation. He feels there has been an inconsistency in Kael's use of the washroom and that Kael has suffered emotional stress as a result of the separation. He sought help for Kael's difficulties, including severe constipation and Kael’s pulling of his own hair. He contends that he discussed treatment for Kael’s constipation with Ms. Fias as prescribed by Kael’s doctor, but Ms. Fias did not follow the initial treatment prescribed.
25He testified that after the incident on October 27, 2012 wherein he contends that he was struck repeatedly by Ms. Fias with her cell phone, causing bleeding to his face, Ms. Fias returned to the Leopold home and removed Kael's passports while retrieving some of her own belongings. He was concerned that Ms. Fias was going to take Kael to Brazil. Out of his concern, it was agreed that Ms. Fias’ lawyer would retain Kael's passports.
26Mr. Souto denied ever physically assaulting Ms. Fias during the relationship. He also expressed concerns about Ms. Fias’ frequent use of marijuana in the past. He acknowledged that he had no information as to whether Ms. Fias was currently using marijuana. He indicated that he does not use illicit drugs and does not drink alcohol at all.
27Mr. Souto contends that it would be better for Kael to be returned to Mr. Souto's home on Sunday evenings which would provide Kael with more consistency and ready him for school on Monday morning. He feels that midweek overnight visitation is disruptive for any child and he believes that Kael requires more consistency. He is not agreeable to alternating weeks in the summer as recommended as he does not believe that it is suitable for any child to be moving between different households every week. Mr. Souto believes that it is difficult for a child to develop long term relationships and to understand what is happening.
28With respect to telephone contact, Mr. Souto testified that he has not been denying contact between Kael and Ms. Fias. He believes that if Kael wishes to speak to his mother he will do so. He believes that forcing Kael to have a conversation with Ms. Fias is not good for Kael.
29With respect to communicating with Ms. Fias by e-mail, Mr. Souto acknowledged that sometimes he takes more time than the 36 hours suggested by the OCL. If he does not respond within 36 hours, he receives several e-mails about the subject from Ms. Fias. Mr. Souto testified that Ms. Fias’ e-mails often contain many insults and accusations. He testified that he would find it difficult to have joint custody with Ms. Fias as it is difficult to have any discussions with her and it is always “her way or the highway”.
30Mr. Souto testified that his parenting is child-focused and although Ms. Fias’ parenting has improved, she is more focused on play and catering to what Kael wants. He does not feel that Ms. Fias sets boundaries. He is also concerned about what Ms. Fias feeds Kael.
31Mr. Souto described Kael as having many behavioural difficulties. This includes aggressiveness, non-compliance, and not listening. Kael has also had difficulties handling stress; he has pulled his hair and he bites his nails. Mr. Souto sought professional assistance with respect to Kael's hair pulling which resulted in a meeting with a psychiatrist. Suggestions were made, including cutting Kael's hair short, talking to him about how he behaves and explaining to Kael how he has to listen and respect others. Mr. Souto testified that he sent an e-mail to Ms. Fias regarding these suggestions and Ms. Fias indicated that this matched what she was doing with Kael.
32Mr. Souto testified that Kael's behaviour was concerning during the Christmas vacation period in 2013 and that it worsened after March Break in 2014. He also testified that Kael's behaviour worsened again before the start of this school year.
33He indicated that he had to move to Oakville because the Leopold property was being sold. He had offered to move into the Mariner property, but Ms. Fias refused. He moved to Oakville to reside with his girlfriend, her two children and Kael.
Discussion
34Ms. Fias and Mr. Souto resided in a common-law relationship and were never married. An application for custody or access to a child, where a child’s parents are not married, is governed by ss. 24(1) and (2) of the Children’s Law Reform Act. Section 24(1) mandates that the merits of an application for custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with sub-sections (2), (3) and (4). Section 24 provides as follows:
Merits of application for custody or access
- (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) 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;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).
Violence and abuse
(4) 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,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child. 2006, c. 1, s. 3 (1).
35As indicated, Ms. Fias seeks joint custody and Mr. Souto seeks sole custody of Kael. As Chappel J. provides at para. 71 of V.K. v. T. S, 2011 ONSC 4305, [2011] O.J. No. 4046, the Ontario Court of Appeal’s approach to joint custody has changed over the years, but the court has “…maintained that in order to grant joint custody, there must be some evidence before the court that, despite their differences, the parties are able to communicate effectively with each other.”
36In assisting me with the determination of the best interests of Kael, I had evidence from the parties; Ms. St. Pierre, who is Kael’s current teacher; Ms. Masterson, who was Kael’s teacher last year; Ms. MacKenzie who was the supervisor at Kael’s former daycare; Ms. Barbara Mills (mainly with respect to counselling for Mr. Souto after the incident of October 27, 2012 and her contact with Ms. Fias’ post-separation which was initiated by Ms. Fias) and Ms. Deacon.
37As indicated, Ms. Deacon completed two reports. She also gave evidence at trial. It was clear from both Ms. Deacon’s reports and her testimony that she feels that Kael’s behavioural difficulties are attributable to both parents and a result of the lack of communication between the parents. She indicated that neither parent was actively engaging Kael in the conflict but that the conflict between them was frequent and occurring almost every time they communicated.
38Ms. Deacon had concerns about both parties’ behaviour. On page 6 of her final report, she states that Mr. Souto “…sets barriers between them, is rigid in his communication and will not allow any flexibility (or extraneous communication), in planning for Kael. He failed to provide Ms. Fias with information and direction about Kael’s needs, which would make Kael more safe and successful in his mother’s care. Mr. Souto also continues his own investigations into Ms. Fias’ mistakes, which perpetuates conflict and increases stress on himself and Kael.” With respect to Ms. Fias, Ms. Deacon, on page 7 of her final report, states “…Ms. Fias makes subtle statements and accusations when communicating with Mr. Souto, and has been caught in telling mis-truths about matters that could impact Kael.”
39Ms. Deacon was clear in her testimony that both parties contribute to the conflict. She also states this on page 7 of her final report: “It appears, through observation, professional opinion and the information gained from collaterals that the struggles Kael is experiencing with his development are not due to his individual challenges, but can rather be attributed to the conflict between his parents, and both parents’ contributions to that conflict. Kael did suffer greatly from the separation from his mother, as well as the experience of witnessing her unstable behaviour. At this time, his suffering continues due to the parents’ inability to communicate, their mistrust and mud-slinging toward each other, and the drastic differences in routines and styles he experiences between their homes. This problem is not solved solely by Kael receiving treatment, nor is it solved by him having limited contact with either parent. He would be better served at this time by his parents letting go their conflicts and focusing instead on developing a healthier co-parenting relationship. Regardless of their past experiences of one another, both need to recognize where they end as individuals and where this son's needs begin, and to move toward spending the rest of Kael's childhood focused on healthy communication and child-focused interactions. If the parents do not rectify this conflict, Kael's developmental challenges will only worsen, and he could have problems with self-regulation, impulsivity, school success, and peer and intimate relationships.”
40Ms. Deacon recommended that the parties make decisions about Kael's needs and care together, consulting one another about all major decisions in his life. When they are unable to come to an agreement, she recommends that Mr. Souto make the final decision. Ms. Deacon was questioned by counsel for Ms. Fias on her lack of the word custody in her recommendations. She testified that it was not her general practice to use the word custody as at times power or control gets assigned to the word. She testified that she focuses on parents making decisions together and building in a plan when they cannot make decisions together. She testified that both parents have Kael’s best interests at heart and they are able to contribute to decision-making.
41On cross-examination by counsel for Mr. Souto, Ms. Deacon, after reviewing a recent e-mail from Ms. Fias to Mr. Souto, agreed that Ms. Fias’ e-mail was inflammatory, it would perpetuate conflict and it was unhealthy. She testified that there have been times when the parties have been able to communicate, where the communication has not been inflammatory, and that she hoped the parties could move forward. She further indicated that she would not be making the recommendation if she did not feel it were possible. Ms. Deacon further acknowledged that she did not recall that Ms. Fias had been working as a “stripper” or in a “body rub parlour” when questioned by counsel for Mr. Souto. She acknowledged that she would need to understand the situation better and how this would affect Ms. Fias’ lifestyle.
42I accept the evidence of Ms. Fias that prior to the events of October 27, 2012, she was the primary caregiver of Kael. Mr. Souto also played a role in Kael's caregiving, but I accept Ms. Fias’ evidence that Mr. Souto was working at his job from 9:00 a.m. to 5:00 p.m. and for a significant period of time he was continuing on with his Internet business which at one point became very successful. Mr. Souto also acknowledged that he was teaching Capoeira classes a few times through the week. While the parties had hired a housekeeper who may have assisted at times with Kael, I do not accept Mr. Souto's evidence that the housekeeper was primarily responsible for taking care of Kael.
43After the events of October 27, 2012, Mr. Souto became Kael's primary caregiver. Both parties blame the other for the physical altercation that day and Ms. Fias testified as to incidents in the past when she contends that she was assaulted by Mr. Souto. Ms. Fias was arrested on October 27, 2012 and charged with assault. Mr. Souto provided as evidence a photo of his bloodied face which he contends was caused by Ms. Fias during the altercation. Ms. Fias labels Mr. Souto as the aggressor in this incident. Ms. Fias testified that the charge was eventually withdrawn. Due to Ms. Fias’ arrest she was removed from the Leopold Property and Kael was left in Mr. Souto’s primary care. Ms. Fias testified that Mr. Souto denied her access to Kael for a period of time. Mr. Souto, as indicated, testified that as Ms. Fias had removed Kael's passports from the Leopold home, he was concerned that Ms. Fias would remove Kael and relocate to Brazil. There was much animosity between the parties and given the actions of each of them, it is understandable that a distrust of each other grew. They were both contributing to the ongoing conflict and the litigation that ensued.
44Since the date of the parties’ separation, Mr. Souto has provided primary care for Kael and has ensured that Kael has received appropriate ongoing professional care and assistance at school. There is no question that he is concerned about Kael’s ongoing struggles and that he and Kael have a close, loving relationship.
45However, Mr. Souto’s behaviour at times has also been troubling. As stated in Ms. Deacon's report, he has not willingly shared information with Ms. Fias which is to the detriment of Kael. He did concede that perhaps at the time of the report, which I note was dated June 24, 2014, he may not have been providing information to Ms. Fias. Additionally, I also found it concerning that on cross-examination, Mr. Souto accepted only a maximum of 15% responsibility for his role in the ongoing conflict between the parties. He challenged Ms. Deacon’s statements that he set barriers, was rigid and inflexible.
46I also found it concerning that Mr. Souto was not supportive of telephone contact between Ms. Fias and Kael and continues to be unsupportive of telephone calls on a regular basis. He conceded that he had not followed the order of Frank J. to ensure that telephone contact takes place between Ms. Fias and Kael on a regular basis. Counsel for Mr. Souto submitted that there was ambiguity in Frank J.’s order of August 5, 2014. When questioned by the Court, both counsel stated that they had not asked for an appointment to settle the order. Counsel for Ms. Fias did not have concerns with the order. The order is clear. The recommendations set out in the report of the OCL dated June 24, 2014 were ordered implemented on an interim basis with the access recommendations taking effect as of the beginning of the second week of the 2014-2015 school year. The order should have been followed.
47I am also concerned that Ms. Souto did not allow Ms. Fias to have any summer access other than regularly scheduled access. Additionally, Mr. Souto unilaterally moved Kael to Oakville to reside with Mr. Souto, his current partner and her two children, placing Kael in a new situation when Kael was already struggling. The Court heard no evidence from Mr. Souto’s current partner which would have assisted in the determination of the best interests of Kael. Mr. Souto’s partner could have easily testified. She attended on almost every day of the trial as she was pointed out to the Court by counsel on the first day. Mr. Souto complained about there being too many transitions for Kael yet he introduced Kael to a new partner and her children, a new home and living arrangements with other people, a new school and daycare and a new city.
48Mr. Souto acknowledged in his testimony that Kael did not have any friends in Oakville and that Kael had to start at a new school and a new daycare. Mr. Souto testified that Kael was experiencing significant behavioural issues again prior to the commencement of school in September, but does not seem to appreciate that his actions may also have contributed to Kael's ongoing difficulties. His evidence focused on the need for Kael to have stability and to lessen transitions; however, there was no evidence, aside from his offer to reside at the Mariner property, of any attempts to locate a residence for himself and Kael in close proximity to his school and daycare in Toronto. Mr. Souto made it a point during the investigation with the OCL to state that it was his plan to maintain Kael's ‘current’ school, but he did not do so. Mr. Souto also testified that he will be moving again, but provided no other details. I have concerns that this will again be done without input from Ms. Fias.
49Taking all of these factors into consideration, I am not convinced that Mr. Souto is doing everything that he can to actively encourage a relationship between Kael and Ms. Fias. His behaviour has contributed to the ongoing conflict and its enormous impact on Kael.
50Ms. Fias is also not without fault. She has at times struggled with parenting Kael and has also acted inappropriately. She too has continued to engage in the conflict, most recently sending an inappropriate e-mail to Mr. Souto over a simple matter which was her communicating to Mr. Souto that she had signed up for the Family Wizard program. She took the opportunity to make inappropriate comments and to lay blame. This is not in keeping with the best interests of Kael. Additionally, Ms. Fias has been less than forthright with respect to providing details regarding her current employment to both Mr. Souto and Ms. Deacon. I accept Ms. Fias’ evidence that her current employment as a masseuse is not employment that she is comfortable with; however, this information should have been provided to allow Ms. Deacon to have full information before her while she completed her investigation. Unfortunately, this adds to Ms. Deacon’s conclusion in her final report that Ms. Fias has at times misstated the truth.
51It is also clear from the evidence that both parents love Kael and Kael loves both parents. While it is difficult to ascertain his views and preferences given he is only five years of age, Kael has a close relationship with both of his parents. Kael's teachers testified to this fact as did Ms. Deacon. Both Ms. MacKenzie and Ms. Masterson testified that there were some concerns with Kael's behaviour in the past after he returned from visits with Ms. Fias. Ms. MacKenzie testified that Kael responded more to his father's requests, whereas he would not listen to Ms. Fias. She noted that after some visits with Ms. Fias, Kael would show anxiety by the twisting of his hair, wetting his pants and not listening. She described a falling out with Ms. Fias when Ms. MacKenzie refused to write a letter in support of Ms. Fias after the OCL interim report. On cross-examination, Ms. MacKenzie did note that as she is the supervisor, she was not the first point of contact with Ms. Fias at the daycare.
52Ms. Masterson testified as to the struggles that Kael had with his behaviour in her classroom last year. She testified that Kael had more difficulty adjusting to school in the mornings when he came from his mother's home and that he appeared to be calmer when he came from his father's home. She thinks that this was consistent throughout the entire year. She had no issues with Ms. Fias as Kael was well-fed, clean and almost always on time. Ms. Masterson acknowledged that she spoke to both parents on numerous occasions, but that she would see Mr. Souto more frequently. She further testified that both parents wanted what was best for Kael and wanted him to be happy. She indicated that Mr. Souto asked for help frequently and was open to any suggestions that she may have to support him in his parenting. Although she did not see Ms. Fias as frequently, she believes that Ms. Fias was absolutely open to any suggestions that she made. Her assumption is that Mr. Souto was sterner and could re-direct Kael’s behaviour, whereas Kael “tugged at mom’s heartstrings a little bit more” so it was more difficult for Ms. Fias to be the firm parent. Ms. Masterson recalled an incident towards the end of the school year wherein Ms. Fias appropriately picked Kael up when he was misbehaving and put him in the car. She was proud of Ms. Fias and saw a change from the beginning of the year.
53Ms. Masterson found Mr. Souto to be a very loving father and very concerned about what was happening with Kael's behaviour. She found him willing to do anything to get Kael to be more compliant. She testified that Mr. Souto did not speak negatively of Ms. Fias; rather, he spoke factually. With respect to Ms. Fias, she found that Ms. Fias was very angry and upset with Mr. Souto and called him “the father”. She feels that Ms. Fias may have been blaming Mr. Souto for Kael's difficulties at school.
54Ms. St. Pierre testified that Kael continues to have ongoing behavioural difficulties and he has the assistance of an Educational Assistant. She also testified that Kael has had struggles with incontinence. She has not observed any difference in Kael's behaviour whether he has been with Ms. Fias or with Mr. Souto.
Disposition
55Mr. Souto expressed concerns with Ms. Fias’ parenting, as indicated. He questions her parenting including her manner of discipline, the food she gives Kael and the overall care that she provides. He questions her choice of employment as a masseuse and denies that he knew of Ms. Fias’ previous employment (until she was three months’ pregnant) as an exotic dancer. However, Mr. Souto does acknowledge that Ms. Fias has improved in her parenting as also testified to by Ms. Deacon.
56It is clear that both parents have differing parenting styles and that at times Ms. Fias has struggled with controlling Kael’s behaviour and attending to his needs, but this has improved. Ms. Duncan testified that Ms. Fias is less focused with her own emotions and her court concerns and she has made improvements in her parenting. In her second observation visit, Ms. Duncan found Ms. Fias to be more confident, aware of Kael’s needs and attuned to him. However, Ms. Deacon still expresses some concerns, as she states in her final report on page 6: “At times, it appears that Ms. Fias minimizes the concerns about Kael's behaviours, possibly in an attempt to make herself look good as a parent. It was also evident that Ms. Fias continues to need to learn about what expectations and needs Kael has at his age and stage of development. Ms. Fias has made gains in her stability and improvements in her parenting and increased time with Kael would benefit both mother and son; however, Kael remains to have his needs met more successfully with his father, who has better grasp on his developmental needs and is better able to provide him with a stable routine and the supports he requires.” She has recommended that Mr. Souto continue to have primary care of Kael with increased time to be shared with Ms. Fias.
57Despite my concerns outlined above with some of Mr. Souto’s behaviour, since separation Mr. Souto has consistently provided Kael with more structure regarding his behaviour and he has made appropriate decisions with respect to obtaining treatment regarding Kael’s ongoing physical and educational needs. I agree that Mr. Souto should continue to have primary care of Kael. Ms. Fias has struggled at times with her parenting, but I also recognize as Ms. Deacon has, that Ms. Fias has played, and continues to play, an important role in Kael’s life and he would also benefit from Ms. Fias’ input. Ms. Fias does not seek that Kael’s primary residence be with her, but as indicated, she wants to be involved in decision-making and seeks joint custody.
58Ms. Deacon feels that both parties are capable of contributing to decision-making and that both parents have Kael’s best interests at heart. Having heard all of the evidence, I agree. Both parties love Kael and Kael loves each parent. Both have a loving relationship with him and there was no evidence to suggest otherwise. Additionally, both have equally engaged in the conflict.
59I find that it is in the best interests of Kael that the parties have joint custody. Given some of the actions of Mr. Souto in the past in not sharing all information with Ms. Fias, not supporting telephone calls with Kael and Kael’s relationship with Ms. Fias, failing to also accept his responsibility for the ongoing conflict and unilaterally changing Kael’s residence, I am concerned that if he is given sole custody, he will attempt to deny Ms. Fias any input into decisions and withhold information from Ms. Fias regarding Kael. This would only lead to more conflict and will prevent Ms. Fias from being involved in Kael’s life which is not in Kael’s best interests.
60While there has been conflict, the parties have at times been able to communicate and cooperate in discussing Kael’s medical needs and educational needs. As an example, Mr. Souto testified that he had raised some concerns about Kael’s behaviour with a psychiatrist and shared the suggestions made by the psychiatrist with Ms. Fias. Mr. Souto testified that Ms. Fias indicated that this matched what she was doing with Kael. The parties were able to discuss these concerns and jointly act in the best interests of Kael. Additionally, Ms. Deacon testified that the parties are capable of doing this in the future and while there was a recent incident where Ms. Fias had sent an inflammatory e-mail to Mr. Souto, there had been times when their communication was not inflammatory. Ms. Deacon also testified that she never would have recommended shared decision-making if she did not feel it were possible.
61While I am prepared to order joint custody, I am concerned that there be a mechanism in place should the parties be unable to come to an agreement on major issues. I want to ensure that there is meaningful consultation on these major issues given my concerns raised above. I order that the parties have joint custody of Kael do Nascimento Souto, born April 7, 2009, subject to the following: in the event that the parties cannot agree upon a matter that falls outside of day-to-day decision making (i.e. a major issue relating to education, including where Kael goes to school; healthcare; religion; major recreational/extra-curricular activities; and Kael’s residence), Mr. Souto shall provide written notice to Ms. Fias of the decision he intends to make. If Ms. Fias does not agree with Mr. Souto’s pending decision, she shall provide formal written notice to Mr. Souto of her disagreement and she shall have 30 days from the date Mr. Souto provided formal written notice of his pending decision, to serve any necessary motion or application materials. If Ms. Fias does not do so within the 30-day period, then Mr. Souto shall make the final decision. If Ms. Fias does do so within the 30-day period, then no decision shall be made by Mr. Souto except by written agreement of the parties or court order.
62With respect to the time sharing schedule, Mr. Souto seeks to change the schedule as ordered by Frank J. as he feels that the current schedule has too many transitions and does not provide stability for Kael. He seeks to change the time sharing for Ms. Fias from every other weekend, Friday to Monday morning, to every other weekend, Thursday to Sunday in order to prepare Kael for school and provide stability. He appears reluctant to agree to overnight access through the week as was his evidence; however, in his closing submissions, counsel for Mr. Souto indicated that Mr. Souto would agree to mid-week overnight access, on the week where Ms. Fias does not have weekend access. Overall, Mr. Souto’s proposal would reduce the time that Kael currently spends with Ms. Fias. As indicated, Ms. Fias seeks to maintain the current schedule with a minor variation with respect to holiday time and PD days falling on her weekend. I see no reason to deviate from the schedule ordered by Frank J. on August 5, 2014 wherein she ordered the schedule as recommended by the OCL. PD days and holiday time shall also be added as requested by Ms. Fias. This was previously in place pursuant to the order of Waldman J. of the Ontario Court of Justice.
63This time sharing schedule has been in place since the second week of September 2014 as ordered by Frank J. Ms. St. Pierre, Kael’s current teacher, did not note any difference in Kael’s behaviour when returning from a weekend with Ms. Fias. It is important that Kael share meaningful time with both parents as stated by Ms. Deacon.
64Unfortunately Mr. Souto’s decision to move to Oakville has added more travel time for Kael. I accept Ms. Fias’ evidence that the traffic is often heavy when she drives to pick up Kael. However, Ms. Fias is capable, as she has already been doing, of preparing Kael for school on his return on alternate Mondays and overnight through the week. By maintaining the current schedule, this allows for less conflict and interaction between the parties as transitions take place at the school or daycare. This reduces conflict, is in Kael’s best interests and I see no reason to change this schedule. Any further adjustments to the schedule will cause yet more changes for Kael who has been experiencing difficulties. This is not in his best interests.
65The parties provided the Court with their positions on the other recommendations of the OCL. Many of the recommendations are agreed to by the parties and I have incorporated them as requested by the parties in the Order section below. However, there are some disagreements with the remainder of the OCL recommendations. The parties are in disagreement about which parent should spend time with Kael first on Christmas Eve and Christmas Day; time spent with him during the summer months; the frequency of telephone calls with Kael and travel with Kael. They are also in disagreement with respect to a review of a parenting plan. Mr. Souto also seeks drug tests for each party, changes with respect to the right of first refusal and a minor change with respect to clothing needs for Kael.
66With respect to Christmas, I order the schedule as set out in the recommendations of the OCL with a minor time variation as set out in the Order section of these Reasons.
67As already indicated, I have concerns with Mr. Souto’s position with respect to telephone calls. Mr. Souto seeks that telephone calls be made voluntarily by Kael. This is not in Kael’s best interests. He is only five years-old and it is important that he have telephone contact with the parent in whose care he is not at the time. Given his age, the parents need to initiate the calls and assist Kael. I order telephone contact as recommended by the OCL as set out further in the Order section of these Reasons.
68With respect to summer time with Kael, the OCL recommended alternating weeks with Kael. Mr. Souto seeks that each parent have 2 weeks with Kael and that the regular schedule otherwise apply. His evidence was that he does not believe that it is suitable for any child to be jumping around every week. It is hard for a child to develop long term relationships and difficult for a child to understand what is happening. Ms. Fias is in agreement with the OCL recommendation.
69Ms. Deacon completed two thorough reports and had contact with many collaterals. She recommends the alternating summer schedule. There is no evidence that Kael would not thrive with the summer schedule suggested. Many children have alternating weeks in the summer and enjoy time with both parents. There is no evidence to suggest that Kael will not do the same. Both parties can ensure that Kael develops relationships with children in their respective neighbourhoods and that Kael participates in extra-curricular activities during these summer months.
70Ms. Deacon recommended that neither parent travel out of the country with Kael for the next six months unless due to a family emergency and as agreed by both parties. Mr. Souto seeks that travel be restricted to North America at this time. Neither parent has been able to travel with Kael since separation. I find it reasonable that Kael be allowed to travel with either parent within Ontario and outside of Ontario with the written consent of the other party or court order.
71While there was an acknowledgement by Ms. Fias that she used marijuana in the past, Mr. Souto did not have any evidence that she was presently using any illicit drugs. I decline to order that there be drug testing and note that this was not recommended by Ms. Deacon. She did recommend that neither parent use illegal substances while Kael is in his or her care, which I order.
72Mr. Souto agrees to provide a right of first refusal to Ms. Fias with at least 24 hours’ notice “provided it is practical”. No explanation was offered regarding this statement and I order the recommendation of Ms. Deacon. I also see no need to change the recommendations regarding clothing for Kael.
73Ms. Deacon recommends that the parties meet every six months to review this plan, with the assistance of counsel, a mediator or a parenting coordinator, to ensure their parenting plan meets Kael’s developmental stage and needs. The parties have been through much litigation and conflict. As ordered, there must be consultation between the parties regarding major decisions. Kael continues to experience behavioural problems that hopefully will be reduced or eliminated as the parties put their differences aside and truly focus on what is in Kael’s best interests. It is important that the parties ensure that the plan in place continues to be in Kael’s best interests. This plan should be reviewed in a year to ensure Kael’s needs are being met. The parties shall do this through counsel and it is recommended that a mediator be retained by the parties to resolve any issues at that time and to assist with any adjustments to the parenting plan.
Issue #2
What are the incomes of the parties for support purposes? What is the proper amount of child support payable and by whom?
74The incomes of the parties are very much in dispute. Ms. Fias seeks to impute an annual gross income to Mr. Souto of $95,000. Counsel for Ms. Fias indicated in the support calculations provided with her closing submissions, she has used a gross annual employment income of $65,000 and an imputed gross income of $30,000 for Mr. Souto on the basis that Mr. Souto is intentionally under-employed.
75Counsel for Ms. Fias submits that just prior to separation Mr. Souto had three sources of income; his regular salaried employment, his Internet self-employment and his self-employment teaching Capoeira classes. She contends that on the basis of Mr. Souto’s evidence, wherein he acknowledged that he was working two to three hours a day on his Internet business in addition to his regular employment, this amounts to additional part-time employment of approximately 20 hours per week. She has taken the amount of Mr. Souto's full-time employment income of approximately $65,000 gross per year and imputed less than half of that amount ($30,000) based on the hours claimed by Mr. Souto for working on other business interests to arrive at an annual income of $95,000 gross.
76With respect to Ms. Fias' income, counsel for Ms. Fias submits that Ms. Fias testified that she began working as a masseuse in November of 2014 and that she was earning approximately $2,000 per month. As a result, counsel has imputed an income to Ms. Fias of $24,000 gross per year despite the fact that counsel contends that Ms. Fias’ evidence was that she was not working many hours at present and only working out of necessity as a masseuse.
77Using the incomes of $95,000 gross for Mr. Souto and $24,000 gross for Ms. Fias, Ms. Fias seeks child support from Mr. Souto in the amount of $840 per month. This is the full table amount under the Child Support Guidelines (Ontario) O. Reg. 391/97, (the “Guidelines”). Counsel for Ms. Fias submits that this is a shared custody situation with Ms. Fias spending over 40% of the time with Kael over the course of the entire year; however, she does not seek a set-off of support, but rather the full table amount.
78Mr. Souto contends that his income is $65,000 gross per year and that Ms. Fias' income should be imputed to $30,000 gross per year. Counsel for Mr. Souto submits that Ms. Fias lacks any semblance of credibility. He challenges Ms. Fias' testimony that she went back to work in November of 2014 as a masseuse. He points to evidence of Ms. Fias working as a masseuse several months prior and in previous years. He disputes Ms. Fias' evidence that she was not working at a business in Mississauga, but was only training at the time and quit the employment. He asks the Court to draw an inference that Ms. Fias’ acknowledgment that she was at this location on three separate days is proof that she was in fact working.
79Counsel for Mr. Souto also contends that Ms. Fias had applied for similar employment in Pickering in the past. Ms. Fias' evidence was that she applied for a job at this location, but never accepted employment.
80Counsel for Mr. Souto indicates that Ms. Fias reluctantly admitted on cross-examination that she had previously worked as an exotic dancer. He indicates that Ms. Fias testified that when she first met Mr. Souto she was earning approximately $1,000 per week. He further submits that no tax returns have been filed by Ms. Fias for over 10 years and there is no way to accurately determine Ms. Fias’ income which has not been disclosed.
81Counsel for Mr. Souto further submits that in over two years since separation, Ms. Fias has made no effort to find employment. No resume was completed and there is no evidence that Ms. Fias has completed online courses. He further submits that Ms. Fias testified that she had former employment as a server, bartender and some work in the travel industry, but no efforts to find employment have been made by her.
82In his support calculations, counsel for Mr. Souto has used the amount of $65,000, representing Mr. Souto’s gross annual employment income and the amount of $30,000, representing Ms. Fias’ gross annual employment income. He uses the figure of $2,000 per month, testified to by Ms. Fias as having been received on a cash basis, and grosses this amount up for non-payment of taxes and other deductions. Mr. Souto’s child support calculations are not based on a shared custody situation, but rather on him having primary care of Kael. The child support table amount payable by Ms. Fias is $245 per month; however, Mr. Souto indicates that he is not seeking child support from Ms. Fias.
83Both parties are seeking to impute income to the other. Section 19 of the Guidelines allows the court to impute income to a spouse if it considers it appropriate in the circumstances. Section 19(1) lists certain enumerated examples, including inter alia that a spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child or by the reasonable educational or health needs of the spouse; that the spouse is exempt from paying federal or provincial income tax; and a spouse has failed to provide income information when under a legal obligation to do so.
Ms. Fias’ Income
84In her direct examination, Ms. Fias testified that when she first met Mr. Souto she was earning $1,000 per week. She indicated that she was paying rent of $550 per month and that she paid for all of the rent when she resided with Mr. Souto in her basement apartment. She further testified that at the time of her pregnancy, she was a server at a restaurant in Oakville, but when she was three months pregnant she ceased her employment. She testified that she had a difficult pregnancy, often became nauseous, so she had to stop working. She indicated that she was a server for approximately three months.
85Ms. Fias testified that during the relationship she assisted Mr. Souto with his Internet businesses and with his Capoeira school. She stated that she assisted Mr. Souto with advertising for the school and with preparation for special events. This included creating flyers and assisting him with photos. Ms. Fias also testified that for a time she assisted Mr. Souto with his Internet business which included inserting photos of electronics on the website so people would go to the website to purchase products. She testified that she did all of the cooking and cleaning of the home which further assisted Mr. Souto by allowing him to focus on his businesses.
86After Kael was born, Ms. Fias testified that she stayed home to care for Kael. She also remained responsible for the cooking and cleaning. She acknowledged that the parties hired a housekeeper after the move to Leopold. This was due to the large home and lack of time for her to clean the entire home. Ms. Fias stated that she needed to look after Kael. She was also in charge of the renovations that included the completion of a dance studio in the basement so that she could have Kael at home and also teach yoga and Capoeira classes.
87With respect to her plans for employment in the future, Ms. Fias testified that she has not attended school since she was 15 years-old. She has joined the Humber College Education Centre and has an education advisor. She is interested in pursuing a career as an administrative assistant, but she has not had the money to pursue the education needed. In addition, she has not had the time to pursue employment given the court proceedings and the additional driving required to see Kael. She wants to improve her English business skills first and has pursued free programs. She anticipates starting the administrative assistant program in September 2015.
88Ms. Fias testified that since November 2014, she has been working as an exotic masseuse. She works once or twice a week and on many occasions she does not show up for her shifts. She felt she had no choice but to take this employment and often feels sick about it. She does not wish to go to work, but if she needs the money she goes in order to support Kael.
89On cross-examination, Ms. Fias acknowledged that at the time that Mr. Souto moved into her basement apartment, she was working occasional shifts as an exotic dancer. She indicated that she worked about four times a week for approximately four years. She did not feel as though this was a career and she did not go every day. She testified that at times she could earn $1,000 to $1,200 per week or nothing at all. She then clarified that she would earn approximately $200-$2,000 per week if she went to work. She worked occasionally until she was three months’ pregnant.
90Ms. Fias acknowledged that she had inquired about work as a masseuse at an establishment in Pickering, but she did not remember the exact date. She acknowledged doing some shifts as a masseuse in 2011 and indicated that Mr. Souto knew about it. She further testified on cross-examination, that she trained for three days at an establishment in Mississauga, but quit because it was not a good place to work. She is presently working as a masseuse but is not making $2,000 a month because she is not going to work. She makes very little money and does not have any record of how much money she has earned. She is paid in cash and when she goes she earns $0 to $200 approximately two times a week. She did not work at her current employer prior to the beginning of November 2014.
91Ms. Fias did not file any tax returns as evidence of her income. She testified that she has not filed any tax returns for approximately 10 years. As proof of her income post October 27, 2012, Ms. Fias filed proof of social assistance from the City of Toronto which stubs showed payments to her in 2013. Counsel for Ms. Fias, in her calculations regarding retroactive support, has used a figure of $7,200 gross per year for these social assistance payments.
92Ms. Fias also filed as evidence a letter addressed to her from the City of Toronto, dated November 4, 2014, wherein Ms. Fias’ financial assistance from Ontario Works is cancelled. In this letter, it is indicated that Ms. Fias was eligible to receive a maximum of $573 in Ontario Works financial assistance, but this assistance was being cancelled due to the fact that Ms. Fias was receiving money “from earnings, deemed support and deemed other, that was more than the amount she could receive while on Ontario Works”. The letter provides for an opportunity to seek an internal review of the decision and an appeal if necessary after the conclusion of the internal review.
93Ms. Fias also provided a letter from MetCap Living Properties addressed to her dated July 18, 2014. The letter indicates that as a result of Ms. Fias’ “…failure to divest your legal and beneficial interest in residential real estate within the required period, you are being back charged rent to March 01st, 2013. There is a difference in the amount that you were charged for rent and what you should have been charged for rent since March 01, 2013.” A table is included in the letter which indicates that the total amount of rent owing by Ms. Fias retroactive to March 1, 2013 is $16,217.
94Ms. Fias acknowledges that she received $35,000 from the sale of the Fort York property. She indicated that she had to pay her lawyer $27,000 out of this amount. She had not received any support from Mr. Souto. She recalled spending $6,000 on Mr. Souto's credit card post- separation.
95In the Amended Trial Record are two Financial Statements sworn by Ms. Fias dated October 29, 2013 and November 7, 2014. In the October 29, 2013 Financial Statement, Ms. Fias indicates that her total annual income is $7,704 which is comprised of social assistance income of $642 per month. She also indicates that she had been unemployed since October of 2008. In the November 7, 2014 Financial Statement, Ms. Fias states that she has been employed since November 7, 2014, but she lists no employer. She indicates that she is a licensed masseuse earning $2,000 per month. She also indicates that she receives $381 per month in spousal support payments and that she is no longer in receipt of social assistance as the file was recently closed due to her property interests. She further indicates that she lives in community housing, but is now required to pay market rent.
96It is difficult to accurately determine Ms. Fias’ total income earned since separation as she has not filed any tax returns for 2012 or 2013. In fact, she has not filed any tax returns for 10 years which is concerning.
97I did not find Ms. Fias’ evidence regarding her income credible. In her direct testimony, she indicated that at the time she met Mr. Souto she was employed as a server. It was not until pressed on cross-examination that she acknowledged that she was employed as an exotic dancer at the time, earning approximately $1,000 per week, which employment she ceased when she was three months’ pregnant. Further, Ms. Fias swore in her Financial Statement dated October 29, 2013, that she has been unemployed since October 2008. On cross-examination and re-examination, she acknowledged that she had worked as a masseuse for periods of time prior to separation (and contributed funds to the household) and post-separation (training) and that she is currently employed as a masseuse (which current employment she did acknowledge in her direct examination).
98As set out in the letter from the City of Toronto dated November 4, 2014, her financial assistance was cancelled as she was receiving money from “earnings, deemed support and deemed other”. Ms. Fias did not seek an internal review of the decision. She testified that she advised the City of Toronto representative of her interests in property previously. If she had in fact done so, her financial assistance was likely cancelled due to the fact that she was working as a masseuse and this was not disclosed. Mr. Souto testified that he provided information to the City of Toronto that showed Ms. Fias was working. An investigation ensued and Ms. Fias’ social assistance was cancelled. I do not accept Ms. Fias’ evidence that she only started working as a masseuse after receiving the letter from the City of Toronto dated November 4, 2014. She provided no evidence that she was able to provide for Kael and cover her expenses set out in her Financial Statements solely on the basis of the receipt of social assistance. She had previously worked as a masseuse, has never declared any of this income, and I accept that she was working as a masseuse for some time prior to November 7, 2014, contrary to what was sworn in her Financial Statement.
99For the purposes of ongoing child support, Ms. Fias has sworn in her Financial Statement, dated November 7, 2014, that she is earning $2,000 per month. While Ms. Fias swore that she was earning $2,000 a month, she then seemed to imply that the amount was far less than this in her oral testimony. She testified that the income is sporadic and that she often does not attend for her scheduled shifts. She further indicated that she keeps no record of her payments and that the payments are made in cash. Counsel for Ms. Fias did not seek to amend Ms. Fias’ Financial Statement, but rather used the figure of $24,000 as Ms. Fias’ income for support purposes.
100Counsel for Mr. Souto was content to use the figure of $24,000 per year, but wanted the income grossed up to $30,000 as Ms. Fias pays no tax on this amount. Additionally, no CPP or Employment Insurance contributions are made. I agree with the submissions of counsel for Mr. Souto. This income is received on a cash basis and Ms. Fias currently does not report her income to the Canada Revenue Agency (the “CRA”) nor has she reported any of her income for the past 10 years. I accept that the proper income to use for Ms. Fias for 2014 and ongoing is $30,000 gross per year which allows for the gross-up for undeclared taxes as well as the CPP and Employment Insurance contributions that should have been made.
Mr. Souto’s Income
101Mr. Souto’s Income Tax Returns filed with the CRA for the calendar years 2008 to 2013 show line 150 income as follows:
2008
$ 9,276.87
2009
$42,198.02
2010
$47,192.14
2011
$52,272.54
2012
$55,532.40
2013
$73,754.47
102Mr. Souto testified that when he moved to Canada he was not entitled to work until he received his permanent residency card. He was able to earn some income as he had an Internet related business in Portugal. He had a business partner in Portugal who would procure the business. Mr. Souto would work on the projects and would receive one-half of the proceeds. He estimates that he earned $30,000 to $40,000 gross per year when he first came to Canada.
103Mr. Souto testified that he obtained his current employment in October of 2008. He works in Internet-based marketing as a developer. He has no financial interest in the company and is paid a salary. He testified that he currently earns approximately $65,000 gross per year.
104Mr. Souto testified that in 2009, apart from his current employment, he also became involved in affiliate marketing through his business Lostlink.net. His role was to find sources of traffic and redirect the traffic. This involved setting up fake websites and blogs directing people to real offers on dieting products. Mr. Souto would be paid a commission on the sale of these dieting products. In direct examination Mr. Souto testified that in 2009 he made approximately $500,000 from this business. He had very little overhead and there was not much work involved. He would spend a couple of hours a day on this business. He maintained his regular employment so that he would have stable income coming in every month. He testified that he always knew that this business would not last as it was “borderline false advertising”. Mr. Souto estimates that in 2010 he earned a further $500,000 to $700,000 in income from this business. He testified that in 2011 everything was shut down as the regulations became stricter. The U.S. government came down hard. He indicated that he has not been involved in this business since early 2011.
105On cross-examination, Mr. Souto testified that he does not consider teaching Capoeira as a job. He operates his Capoeira school as non-profit organization, but it is not registered as a non-profit entity. He acknowledges receiving cash for his Capoeira classes and that the cash is not declared. He acknowledges that he had previous Internet businesses, but testified he is not involved in any currently. He is interested in pursuing potential business with respect to penny auctions, but at present he is not able to focus on it properly and has not been able to since the separation from Ms. Fias. He maintains that he has only one source of income at present which is the same salaried employment he has had since 2008.
106Counsel for Ms. Fias presented additional documentation for Mr. Souto to identify on cross-examination. These were Income Tax Returns of Mr. Souto for 2010 and 2011. Both are stamped “draft as of January 16, 2014”. The draft Income Tax Return for 2010 shows a total line 150 income of $1,315,097.14 while for 2011, the total line 150 income for Mr. Souto is $205,404.54. The reported income to the CRA for Mr. Souto as indicated above for 2010 was $47,192.14 and $52,272.54 for 2011.
107Mr. Souto acknowledged that these tax returns are only draft and that his additional income has not been disclosed to the CRA as these returns have not been filed. When questioned on cross-examination as to why these tax returns were in draft form, Mr. Souto testified that he could not file them yet. When questioned as to why three to four years ago he had not been able to file and declare this income, he gave no reason. In his re-examination, Mr. Souto clarified that he did not understand tax planning and did not realize that as he used money from his business to purchase properties, the income was attributed to him personally.
108Mr. Souto acknowledged that affiliate marketing still exists but that restrictions have become tighter. He testified that the affiliate marketing with respect to dieting products had to stop and he did so. He admitted that he had no proof as to why this particular form of affiliate marketing was shut down. He acknowledged that he could learn the skills to engage in a different type of affiliate marketing, but that he was unable to focus at present. He indicated that one day he may pursue this further.
109I find that Mr. Souto has also not been forthright with respect to his income and has failed to report all income earned by him to the CRA. Mr. Souto testified that he has a large tax liability. This has not yet been determined because despite the fact that his draft Income Tax Returns for 2010 and 2011 had been prepared in January 2014, they have not been filed with the CRA. Mr. Souto also did not call his accountant to testify to explain why the returns have not been filed.
110In the Ontario Court of Appeal decision of Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (C.A.), the Court set out at para. 23, the three-part test in applying the provision under s. 19. The first part of the test is to determine whether the spouse is intentionally under-employed or unemployed. If so, the second part of the test asks whether the intentional under-employment or unemployment is required by virtue of his or her reasonable educational needs, the needs of a child or reasonable health needs. If the answer to the second part of the test is negative, the third part of the test asks what income is appropriately imputed in the circumstances.
111In Drygala at para. 28, the Court determined that “intentionally” means a voluntary act. The Court also stated that: “The parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning. … The word ‘intentionally’ makes it clear that this section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work.” The Court also found that there was no requirement of bad faith.
112As stated in the Ontario Court of Appeal decision of Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552, at para. 28: “The onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding.”
113With respect to income earned by Mr. Souto post-separation, I accept his evidence that he has not been engaged in affiliate marketing or any other business other than teaching Capoeira classes since 2011. I also accept his evidence that not much income has been earned from teaching the Capoeira classes. This did not seem to be challenged by Ms. Fias’ counsel in her closing submissions as she did not use any income earned from Capoeira classes as a basis for the imputation of income to Mr. Souto, but rather focused on his ability to earn income through affiliate marketing or any other Internet-based project as he has done in the past.
114I am not prepared to impute additional income to Mr. Souto post-separation. Ms. Fias has not met the onus of establishing an evidentiary basis for such a finding. While in the past Mr. Souto was involved in Internet-based businesses, there is no evidence that he continues to be involved or that he has been involved post-2011. Mr. Souto acknowledged that he may pursue other businesses in the future, but I accept his evidence that there was a change in 2011 with respect to the type of affiliate marketing that he was engaged in. Additionally, since the date the parties separated, Mr. Souto has taken on a greater role with respect to the care of Kael which would not afford him the time necessary to focus on other business interests. I also accept his evidence that he has maintained his employment at the same employer that he has had since 2008 and that his income at present is $65,532 as is sworn to in his recent Financial Statement. As such, for the purposes of calculating ongoing child support, the appropriate gross annual income to use for Mr. Souto is $65,532.
115Section 33(1) of the Family Law Act R.S.O. 1990, c. F.3 (the “Family Law Act”) states that a court may, on application, order a person to provide support for his or her dependants and determine the amount of support. Pursuant to section 33(11), a court making an order for the support of a child shall do so in accordance with the Child Support Guidelines.
116Counsel for Mr. Souto acknowledged when asked by the Court, that with the current time sharing schedule in place since September 2014 (which I have ordered shall continue), Ms. Fias has Kael in her care approximately 42% of the time over the course of the entire year. As such, the provisions with respect to shared custody as set out in the Guidelines at section 9 are relevant to the determination of child support. The relevant provisions are as follows:
Shared custody
- Where a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the parents or spouses;
(b) the increased costs of shared custody arrangements; and
(c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.
117The Supreme Court of Canada in Contino v. Leonelli-Contino, [2005] S.C.J. No. 65, 2005 SCC 63 (S.C.C.) at para. 37 outlined that the framework of section 9 requires a two‑part determination. A 40% threshold must first be met; and where it has been met, the appropriate amount of support must be determined in accordance with the three listed factors set out in section 9.
118The Court further stated at para. 39:
…The specific language of s. 9 warrants emphasis on flexibility and fairness. The discretion bestowed on courts to determine the child support amount in shared custody arrangement calls for the acknowledgement of the overall situation of the parents (condition and means) and the needs of the children. The weight of each factor under s. 9 will vary according to the particular facts of each case.
119As both parties have acknowledged that the 40% threshold is met, the analysis turns to the three listed factors set out in section 9.
120The first factor in section 9 requires that the Court take into account the amounts set out in the applicable tables for each of the parents. As stated by the Court in Contino v. Leonelli-Contino at para. 49:
"...the simple set-off serves as the starting point, but it cannot be the end of the inquiry. It has no presumptive value. Its true value is in bringing the court to focus first on the fact that both parents must make a contribution and that fixed and variable costs of each of them have to be measured before making adjustments to take into account increased costs attributable to joint custody and further adjustments needed to ensure that the final outcome is fair in light of the conditions, means, needs and other circumstances of each spouse and child for whom support is sought. Full consideration must be given to these last two factors (see Payne, at p. 263). The cliff effect is only resolved if the court covers and regards the other criteria set out in paras. (b) and (c) as equally important elements to determine the child support.
121The Court when on to further state at para. 51:
…The court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another, something which Parliament did not intend. As I said in Francis v. Baker, one of the overall objectives of the Guidelines is, to the extent possible, to avoid great disparities between households. It is also necessary to compare the situation of the parents while living under one roof with the situation that avails for each of them when the order pursuant to s. 9 is sought. As far as possible, the child should not suffer a noticeable decline in his or her standard of living. Still, it is not a discretion that is meant to set aside all rules and predictability. The court must not return to a time when there was no real method for determining child support (Paras v. Paras, 1970 CanLII 370 (ON CA), [1971] 1 O.R. 130 (C.A.)).
122Ms. Fias’ income for support purposes is $30,000 gross per year and Mr. Souto’s income for support purposes is $65,532 gross. The monthly child support table amount payable by Ms. Fias to Mr. Souto is $245. The monthly child support table amount payable by Mr. Souto to Ms. Fias is $599. If a set-off approach is used, this would result in Mr. Souto paying the difference between the two sums to Ms. Fias in the amount of $354 per month.
123As the Supreme Court of Canada outlined in Contino v. Leonelli-Contino, a simple set-off has no presumptive value.
124The second factor to be considered includes the increased costs of shared custody arrangements. As set out by the Court in Contino v. Leonelli-Contino, when considering this factor, the Court needs to examine financial statements and/or child expense budgets to determine whether the shared custody arrangements have resulted in an increase in the total costs of providing for the children because of the duplication of fixed costs in providing two homes for the children. As also stated by the Court, this section also recognizes that the costs of raising a child in a shared custody arrangement may be higher than in a primary residence situation.
125The parties have not prepared child expense budgets. Each party filed sworn Financial Statements. As no child expense budgets have been prepared by either party, it is difficult to accurately determine the total costs related to Kael and any increased costs due to the shared custody arrangement which is still relatively new. I accept that both parties have contributed to the costs associated with Kael, although Mr. Souto has borne the majority of the costs prior to the order of Frank J. of August 5, 2014 as there was no shared parenting regime in place previously.
126The third factor to consider encompasses the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
127In their respective closing submissions, neither counsel conducted a section 9 analysis despite the evidence of the time sharing arrangement between the parties that has been in place since the order of Frank J. As indicated, counsel for Ms. Fias submits that support should be paid by Mr. Souto on the basis of an income imputed to Mr. Souto of $95,000. She also seeks the full table amount of support due to the extra driving that Ms. Fias must do and extra gas costs. Mr. Souto did not provide any calculations regarding shared custody as his position is that Kael should be in his care the majority of the time.
128Since the sale of the Leopold Property, Mr. Souto has resided with his girlfriend and her children along with Kael in Oakville. He testified that he pays $750 per month rent to his girlfriend. As set out in his sworn Financial Statement, dated October 29, 2014, Mr. Souto pays one-half of the costs for water and electricity at his girlfriend’s home. Currently, Ms. Fias pays rent of $1,163 per month according to her sworn Financial Statement dated November 7, 2014 which accords with the rent as stipulated by MetCap Living Properties in their letter of July 18, 2014. Pursuant to that letter, she owes rental arrears as of July 1, 2014 of $16,217. According to her Financial Statement, this debt remains outstanding. Both parties have significant debts and I note that Mr. Souto states in his Financial Statement, sworn October 29, 2014, that he also owes the Queen Victoria Daycare $2,345.87. He also indicates that he pays ongoing daycare costs of $500 per month, clothing for Kael of $200 per month and activities for Kael of $180 per month. Ms. Fias lists no daycare costs, but does list $100 per month for Kael’s clothing and $100 per month for his activities.
129Taking into consideration the three factors as outlined above, I find that the full table amount of $599 per month is too much child support for Mr. Souto to pay as he still has Kael with him approximately 58% of the time. I also find that the set off amount of $354 is insufficient as this will lead to a significant variation in the standard of living experienced by Kael at his mother’s home given the incomes of the parties, the reduced rental costs for Mr. Souto, and the added driving costs of Ms. Fias. Both parties claim to have significant debts. I find that it is appropriate for Mr. Souto to pay child support for Kael to Ms. Fias in the amount of $450 per month, commencing September 1, 2014 ‑ the month in which the shared custody arrangement commenced. This amount is calculated on the basis of Ms. Fias claiming the dependant credit for Kael as set out by counsel for Ms. Fias in her calculations which I have also applied in the support calculations. In his closing submissions, counsel for Mr. Souto did not seek any child support from Ms. Fias prior to the date of the order of Frank J. and, as such, I have not addressed that issue other than to determine the effect of the monthly child support owed by Ms. Fias when examining her claim for retroactive and prospective spousal support.
130With respect to section 7 expenses, the parties shall share in proportion to their incomes towards the cost of any section 7 expense after taking into account any available subsidies, benefits or income tax deductions or credits relating to the expense and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. Neither party shall incur any section 7 expense for Kael without first obtaining the written consent of the other parent.
Issue #3
Should there be a declaration that Mr. Souto has a 100% proprietary interest in the Mariner and Leopold properties on the basis of a resulting trust? Who is entitled to the proceeds of sale from the Leopold and Mariner properties?
Mr. Souto’s Position
131Counsel for Mr. Souto clarified that Mr. Souto is seeking a 100% proprietary interest in both the Leopold Property and the Mariner Property on the basis of a resulting trust. He contends that there is no evidence to rebut the presumption of a resulting trust. As indicated, title to the Leopold Property is held jointly while the Mariner Property is held solely in Ms. Fias’ name. Mr. Souto contends that Ms. Fias made no contributions to the significant down payments on these properties and no financial contribution to the mortgage or other costs of maintaining the properties. He denies that it was ever his intention to gift the Mariner Property to Ms. Fias so that she and Kael would have security if anything were to happen to him.
132Mr. Souto testified that in the summer of 2007 he purchased the Fort York Property. The property was purchased prior to his relationship with Ms. Fias. The tenant resided in the property and was to vacate the premises upon purchase; however, the tenant refused to leave. As indicated, Mr. Souto was not able to move into the property until April of 2008 as he had to pursue the eviction of the tenant through the Landlord and Tenant Board. This took nine months. Mr. Souto testified that during this time period he was unaware that he had to make payments towards the condominium fees and the fees went into default. As a result, Mr. Souto contends that his credit had been significantly impacted.
133Mr. Souto indicated that during the time that he was pursuing the eviction of the tenant, given his financial difficulties, he was living in his car and “couch surfing”. Ms. Fias invited him to reside with her as she knew he was homeless. The parties were in a relationship at the time. He testified that he had very little money and, as far as he knew, Ms. Fias was working. He thought she was working at a restaurant. He acknowledged that Ms. Fias was paying the rent and purchasing some food.
134Eventually, the parties moved into the Fort York Property as the parties had discussed that they would live there once the tenant moved out. At this point, Mr. Souto testified that he was not working as he was trying to reorganize his life and ensure that everything was in place. He was still involved with his Internet business in Portugal, but his income had been reduced. He received considerable help from his family in Portugal. He contends that Ms. Fias contributed very little. She would contribute by paying groceries or occasionally paying for other items.
135In October of 2008 he secured employment with the same company he is employed with currently. He indicated that the parties each had a vehicle, but they eventually traded both cars and purchased one vehicle as Ms. Fias was pregnant.
136Mr. Souto testified that the parties began to look for a larger condominium. They looked at many places before finding the Mariner Property. This property was purchased in the summer of 2009 and the Fort York Property was rented. Mr. Souto had his regular salaried employment and he had started his affiliate marketing business. As referred to earlier, Mr. Souto testified that he had earned approximately $500,000 in income in 2009 from this business and $500,000 to $700,000 in 2010. He indicated he paid approximately $100,000 as a down payment towards the purchase of the Mariner Property. These monies, paid in installments, were transferred to Ms. Fias’ account. The Offer to Purchase was made in Ms. Fias’ name alone he contends solely due to his poor credit rating. Mr. Souto testified that Ms. Fias had a good credit rating.
137Contrary to the position taken by Ms. Fias, Mr. Souto contends that the Mariner Property was not put in Ms. Fias’ name alone to provide her and Kael with security. He testified that Ms. Fias was not working at the time they moved into the Mariner Property and he paid for everything. The parties resided at the Mariner Property for approximately one year.
138Mr. Souto testified that he completed some minor renovations to the Fort York Property, but no renovations were completed at the Mariner Property. There had been a flood at the Mariner Property and the replacement of the floor was covered by insurance. He purchased new appliances for the Mariner Property and acknowledged that he removed the appliances during the course of this litigation including the fridge, dishwasher, washer and dryer which he estimates would have a cost of $2,500. His reasoning for the removal of the appliances was that the mortgage on the Mariner Property went into default for the second time.
139The Fort York Property was eventually sold on December 1, 2013 and the proceeds totalled approximately $70,000. Of that amount, $32,500 was given to Ms. Fias and he retained the remainder of the proceeds. This resolution was reached at a motion on December 17, 2013 as Ms. Fias had made claims against the Fort York Property. It is Mr. Souto’s position that Ms. Fias did not make any financial contributions towards the purchase or maintenance of either the Fort York or Mariner properties.
140Mr. Souto testified that eventually the parties discussed moving to another property which would be larger and have space for Kael to run around and play. Mr. Souto felt that investing money into property was a good decision as the real estate market was steadier than other markets. The parties looked at a number of homes and an offer was eventually made to purchase the Leopold Property. The offer was made in both their names. Mr. Souto testified that his credit rating was better, but it was not perfect. He acknowledged that if he had attempted to purchase the property by himself, he would not have been approved as the bank considered both the Fort York and Mariner properties as his debt. He testified that as far as he knew, the mortgage was approved on the basis of Ms. Fias’ credit score and his income.
141Mr. Souto stated that he put down $580,000 as a down payment towards the purchase of the Leopold Property which was income that he had earned from his business Lostlink.net. The mortgage was approximately $600,000 and he was still carrying mortgages on Fort York and Mariner. He indicated that the parties had a discussion and Ms. Fias wanted to sell the other two properties, but he wanted to rent them. He felt that renting made sense as the properties would maintain themselves and gain equity. Any shortfalls between rent and mortgage and other expenses were made up by him alone.
142The purchase of the Leopold Property closed in the summer of 2010. Renovations were completed, including the completion of the basement as a dance studio/practice studio. This was considered to be a possible meeting place for Capoeira students and Ms. Fias would be able to practice and teach Capoeira and yoga.
143After the parties moved into the Leopold Property, Kael started daycare at the end of 2011 and Mr. Souto testified that Ms. Fias was working at her old job. He indicated that he never knew exactly what her job was, but since they had met she had been working at a restaurant. He testified that he did not know of her previous employment as an exotic dancer. In 2011, he stated that Ms. Fias needed to go back to work as there was not as much money and he was trying to pay all the bills. He indicated that Ms. Fias worked shifts, sometimes during the day and sometimes into the night and as far as he knew she was working at a restaurant, but he never visited her at work.
144Mr. Souto testified that Ms. Fias brought home some money from her employment and would occasionally put the money in a drawer in the kitchen. This would be $20 to $40 and sometimes more. These monies would go towards the expenses on the credit cards or other household expenses. The main credit card was his Visa and Ms. Fias was an authorized user.
Ms. Fias’ Position
145Ms. Fias seeks to have one-half of the proceeds of the Leopold Property (less the deduction of a Legal Aid lien) and all of the proceeds from the sale of the Mariner Property (currently under power of sale proceedings) payable to her. She contends that Mr. Souto placed the Mariner Property into her name in order to provide safety and security for her and Kael. Ms. Fias testified that at the time of the purchase of the Mariner Property, Mr. Souto wanted to ensure that she would be looked after if anything happened to him.
146Ms. Fias testified that the parties jointly decided that they needed to move from the Fort York property. She contends that they both hired a realtor and both actively looked for a larger property which would provide Kael with his own bedroom. The Mariner Property was purchased on June 30, 2009 for $485,000. A mortgage with Home Trust was registered in the amount of $388,000. Both the property and the mortgage were placed into Ms. Fias’ name, but she acknowledged that Mr. Souto paid the down payment for the property. Mr. Souto never asked her to sign any loan documentation and there was no discussion regarding repayment prior to the parties separating. She was never left to feel that she had to repay Mr. Souto as he was happy to provide her with the opportunity to live more comfortably with Kael. She felt as though the parties were “one”.
147Approximately one year after the purchase of the Mariner Property, Ms. Fias indicated that the parties decided that they needed more space and a backyard as Kael was now a toddler. Both parties were actively involved in searching for a larger property and they jointly found the Leopold Property. Ms. Fias indicated that Mr. Souto advised her that he was doing this for her. She contends that Mr. Souto was very loving, often calling her “Mama D”.
148Ms. Fias further testified that when they purchased the Leopold Property both parties attended at the bank together. At no point was she asked to sign any loan documentation and this issue was never mentioned. Repayment was never discussed. She was not treated as Mr. Souto’s business partner, but rather his wife and the mother of his child. The parties even spoke further about purchasing property in Brazil.
149Ms. Fias testified that many renovations were completed as this was a 108 year-old home. Both parties thought of the Leopold Property as an investment for their future. The parties renovated the basement and made it into a studio as Ms. Fias wanted to be a stay-at-home mother and she could work at home. The studio would also allow for events for the Capoeira students to be held at the parties’ home. She testified that Mr. Souto wanted to renovate the studio for her and did it out of love for her so that she could be home with Kael and also teach yoga and Capoeira, which she was doing until she was removed from the home on separation. She contends that she and Mr. Souto were planning for a second child and that they did everything together. At the time of the purchase of the Leopold Property she was not working, but was taking care of Kael and the home.
150She testified that she was in charge of the renovations for the property which included searching for the best price for items, obtaining quotes and dealing with contractors. She decorated the entire home. She acknowledged that Mr. Souto paid for everything. There was never a discussion as to the home being placed in joint names and Mr. Souto never asked her to put any money into the home.
151With respect to the Fort York Property, Ms. Fias testified that she assisted with the renovations in order to make the property presentable so that it could be rented. She attended at the property on many occasions to clean. With respect to the Mariner Property, she assisted after the flood in dealing with the plumber and organizing the installation of the flooring as Mr. Souto was working.
152While the parties resided at the Leopold Property, she was taking care of all of the household chores, including cooking and taking care of Kael. She was also teaching yoga. She acknowledges that the parties hired a housekeeper. She contends that during this time, when Mr. Souto was home he would be at his computer working. He would often work at night into the early morning hours on his Internet business. Her role in taking care of Kael and the household allowed him to focus on his Internet business. When this business was successful, he would share his successes with her and tell how much money they had earned.
153Ms. Fias testified that the parties travelled together on many occasions including trips to Portugal, Brazil, Montréal, Vancouver and Winnipeg. Mr. Souto would always pay for the trips. On these trips they would visit with each other's families. After Kael was born, Mr. Souto would introduce her to everyone as his “wife”. She would also refer to Mr. Souto as her “husband” and they were a family. Ms. Fias also assisted Mr. Souto with his Capoeira school. She would assist with advertising for the school, including the preparation of flyers, taking photos and organizing advertising events when Masters came from Portugal and Brazil with respect to the Capoeira classes. She would also assist with singing at the school and often received the students at her home. She was never remunerated for her work, but Mr. Souto would often thank her for her efforts on the school website. He would refer to her as his wife. She provided documentary evidence of a page from Mr. Souto’s Capoeira school website where Mr. Souto refers to her as his wife. She indicated that Mr. Souto wanted her to work for him and he taught her advertising. Ms. Fias testified that she did not wish to be paid as this would have meant it was a business relationship.
154Ms. Fias testified that it was very clear that she and Mr. Souto were working as a partnership in the relationship and she was happy to contribute her part. She was given access to all credit cards as Mr. Souto liked to provide for her. During the relationship, the parties sold both of their vehicles and purchased one good vehicle.
155Ms. Fias testified that at the time of trial the Mariner Property was listed for sale for $569,000. This was the third lowering of the price. The outstanding mortgage is $360,000. She indicated that Mr. Souto, on his own accord, had removed all of the appliances which she felt was affecting the selling price. Mr. Souto had left the property dirty. She hoped to sell the property before the bank took it. No payments were currently being made with respect to the property. There was a difficulty with respect to flooding recently and Ms. Fias covered the cost of approximately $370 for repairs due to flooding because Mr. Souto did not assist. Because the mortgage payments are not being made, her credit has been affected and she is unable to obtain any assistance. Counsel for Ms. Fias clarified that the bank has obtained a Judgment against Ms. Fias and they were to take possession of the Mariner Property as of December 1, 2014.
156On cross-examination, Ms. Fias testified she did make some financial contributions to the relationship. She indicated that she gave Mr. Souto cash and that she paid some bills. She stated that she paid $350 per week for a housekeeper, and she paid for groceries. The remainder of monies earned by her in cash was put into a drawer in the kitchen after she would complete a shift. She stated that at times there was lots of money in the drawer and the money went to Mr. Souto. She testified that Mr. Souto was forcing her to work as a masseuse and that he liked the money. She further indicated that Mr. Souto assisted her in taking “sexy pictures” and that what she was doing was no secret.
The Law of Resulting Trusts
157Justice Cromwell, in the Supreme Court of Canada decision Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 at paras. 16 to 19, explained the nature of a resulting trust:
¶16 ...it is widely accepted that the underlying notion of the resulting trust is that it is imposed ‘to return property to the person who gave it and is entitled to it beneficially, from someone else who has title to it. Thus, the beneficial interest ‘results’ (jumps back) to the true owner’: Oosterhoff, at p. 25. There is also widespread agreement that, traditionally, resulting trusts arose where there had been a gratuitous transfer or where the purposes set out by an express or implied trust failed to exhaust the trust property: Waters’, at p. 21.
¶17 Resulting trusts arising from gratuitous transfers are the ones relevant to domestic situations. The traditional view was they arose in two types of situations: the gratuitous transfer of property from one partner to the other, and the joint contribution by two partners to the acquisition of property, title to which is in the name of only one of them. In either case, the transfer is gratuitous, in the first case because there was no consideration for the transfer of the property, and in the second case because there was no consideration for the contribution to the acquisition of the property.
¶18 The Court’s most recent decision in relation to resulting trusts is consistent with the view that, in these gratuitous transfer situations, the actual intention of the grantor is the governing consideration: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at paras. 43-44. As Rothstein J. noted at para. 44 of Pecore, where a gratuitous transfer is being challenged, ‘[t]he trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention’.
¶19 As noted by Rothstein J. in this passage, presumptions may come into play when dealing with gratuitous transfers. The law generally presumes that the grantor intended to create a trust, rather than to make a gift, and so the presumption of resulting trust will often operate. As Rothstein J. explained, a presumption of a resulting trust is the general rule that applies to gratuitous transfers. When such a transfer is made, the onus will be on the person receiving the transfer to demonstrate that a gift was intended. Otherwise, the transferee holds that property in trust for the transferor. This presumption rests on the principle that equity presumes bargains and not gifts (Pecore, at para. 24).
[Emphasis added]
(a) The Mariner Property
Does the presumption of resulting trust arise on the facts of this case?
158With respect to the Mariner Property, it is undisputed that Mr. Souto made the down payment of approximately $100,000 through installments. These monies were transferred into Ms. Fias’ account and title was taken in her name; however, the funds all came from Mr. Souto. I accept that these funds came from Mr. Souto’s unreported earnings from his business, Lostlink.net. I also accept that Mr. Souto made all mortgage payments while the parties resided together in the Mariner Property and that he was responsible for overseeing the rental of the premises once the parties moved out. He covered any shortfall between the rental payments and monies owing on the mortgage and common expense fees.
159In her direct evidence, Ms. Fias was clear that Mr. Souto provided the funds for the purchase and that he was paying for everything. She only later altered her evidence on cross-examination and in re-examination to suggest that she had contributed monetarily after reluctantly agreeing that she had been an exotic dancer up until she was three months’ pregnant and that she brought home cash that she put in a drawer. She had earlier testified that she was a server in a restaurant and that she brought home cash. There were no facts to suggest that Ms. Fias had contributed money to the down payment at all. Any other monetary contribution to the mortgage appears to be limited. There was an acknowledgement by Mr. Souto that Ms. Fias contributed her earnings towards a credit card and some other household expenses. Ms. Fias testified that she would sometimes assist Mr. Souto with his businesses, but her focus was on taking care of Kael and household duties. Mr. Souto testified that Ms. Fias did not assist with his business Lostlink.net and that he put minimal time into his business.
160Taking all of these factors into consideration, and most importantly that Mr. Souto paid for the down payment, these circumstances give rise to the presumption that Ms. Fias holds the property in trust for Mr. Souto. The onus is then on Ms. Fias to lead evidence to rebut the presumption of resulting trust and establish that the placing of the Mariner Property into her name was a gift.
Rebuttal of the presumption of resulting trust. Did Mr. Souto gift the property to Ms. Fias by placing it in her name?
161A party’s intention at the time of a conveyance is a question of fact and a party’s actual intention remains a question of fact to be determined based on the whole of the evidence. Schwartz v. Schwartz (2012), ONCA 239 at para. 43.
162On the whole of the evidence, I find that the facts lead me to the conclusion that Mr. Souto intended at the time of the purchase to gift the Mariner Property to Ms. Fias. While it may be that Mr. Souto’s credit rating was poor at the time of purchase, for the following reasons I do not accept his evidence that this was the sole reason that the property was placed into the name of Ms. Fias.
163Firstly, I have a number of concerns regarding Mr. Souto’s credibility with respect to this issue. Mr. Souto admitted on cross-examination that when the parties applied for financing with one of the banks, the Royal Bank of Canada (the “RBC”), around the time of the purchase of the Mariner Property, he misled the bank. A RBC Mortgage Application dated April 24, 2009 signed by both parties was submitted as evidence. This was the only documentary evidence provided regarding the parties’ attempts to obtain financing around the time of the purchase of the Mariner property. In this document, Ms. Fias’ income is stated as $50,000. Her employer is listed as Lostlink.net and her position is “Affiliate Manager”. The document states that Ms. Fias has worked for Lostlink.net for three years. The document also states Mr. Souto is the owner of Lostlink.net, no income is shown for him and he is listed as co-applicant or guarantor of the mortgage. The existing property owned is listed as the Fort York Property and two other properties (not the Mariner Property) are listed as intended purchases.
164Mr. Souto testified that his credit rating was poor at the time due to the financial difficulties experienced with the Fort York Property. No documentary evidence of Mr. Souto’s alleged poor credit rating was provided and one questions how he could be an intended co-applicant or guarantor if his credit rating was so poor. Ms. Fias acknowledged that she was never paid by Mr. Souto for any work in his businesses. Mr. Souto testified that Ms. Fias never assisted him with his Internet businesses. All of this evidence leads to a strong inference that the RBC was being misled by Mr. Souto for his own gain which is reinforced by Mr. Souto admitting on cross-examination that he misled them. Mr. Souto testified that the Mariner Property would never have been able to be purchased without Ms. Fias’ good credit rating which secured mortgage financing for the property. The mortgage was placed in Ms. Fias’ name with a different financial institution, Home Trust Company. No evidence of the mortgage application from Home Trust Company was provided.
165I find that now, in hindsight, Mr. Souto seeks to claim a beneficial interest in both the Mariner and Leopold properties, and he denies that any gift was made to Ms. Fias, as he is facing a potentially large tax liability. Mr. Souto indicated on his sworn Financial Statement filed for trial that he owes over $645,000 in taxes to the CRA. This is due to his unreported income that was still unreported as of the date of trial despite being earned several years ago. He testified that he was unaware of tax planning and that by using the Lostlink.net earnings to purchase the properties, any tax liability was passed on to him. I do not find Mr. Souto’s evidence credible as I question how someone who had been in business for a significant period of time would not know that this income should have been reported in one fashion or another.
166Further, I accept Ms. Fias’ evidence that at the time of the purchase of the Mariner Property in June of 2009, the parties were in a committed relationship as they had been living together since approximately 2007. Kael was born on April 7, 2009 and I accept Ms. Fias’ evidence that Mr. Souto wanted to ensure that there was some security for both Ms. Fias and Kael should anything happen to him. Mr. Souto testified that he was earning substantial income ‑ $500,000, in 2009. Mr. Souto already had one property, being the Fort York Property, in his name and I accept Ms. Fias’ evidence that Mr. Souto wanted Ms. Fias to own a property in her name in order to provide for her and Kael. Mr. Souto was generous with his unreported income earned through Lostlink.net and shared his earnings with Ms. Fias. The parties were together achieving success and stability in their lives. The relationship was that of a partnership. Both parties actively searched together with the assistance of their realtor for these new accommodations.
167I accept Ms. Fias’ evidence that when she was able she was assisting Mr. Souto with his Capoeira school and supporting Mr. Souto with his businesses by taking over the household responsibilities and the primary care of Kael. Mr. Souto as indicated, admitted that they never would have qualified for the mortgage on the Mariner Property without the good credit rating of Ms. Fias. There was no documentary evidence that Home Trust Company relied upon Mr. Souto’s income at all in order that Ms. Fias qualify for the mortgage. Mr. Souto failed to provide any documentation from Home Trust Company supporting his position. Although Ms. Fias’ direct monetary contribution may not have been significant, her contributions to the relationship at that time support her evidence that Mr. Souto recognized those contributions, the parties worked together as a team and Mr. Souto wanted to provide security for her and Kael.
168Additionally, at the time of the purchase Mr. Souto never requested that Ms. Fias complete any loan documentation or other legal documents evidencing that if something were to happen in their relationship, the property was to be treated as solely that of Mr. Souto or that Ms. Fias would have to re-pay any monies provided by Mr. Souto. The lack of this documentation, although not conclusive on its own and necessary, leads me to further conclude that the Mariner Property was a gift to Ms. Fias. Further, Mr. Souto did not provide any evidence that the property was placed in Ms. Fias’ name for any business reason.
169As such, I find that there was an intention by Mr. Souto to gift the Mariner Property to Ms. Fias. The presumption of resulting trust is rebutted.
(b) The Leopold Property
Does the presumption of resulting trust arise on the facts of this case?
170The parties purchased the Leopold Property on June 25, 2010. The property was purchased for approximately $1.2 million and title to the property was placed in the joint names of Ms. Fias and Mr. Souto. A mortgage was placed on the property in the amount of $600,000 with the Royal Bank of Canada in both parties’ names.
171Mr. Souto testified that he provided the down payment of $580,000 and that the money came from the income of Lostlink.net. Mr. Souto testified that he earned approximately $500,000 to $700,000 in 2010 from this business, although I note that his draft Income Tax Return for 2010 not yet filed with CRA, purportedly to be filed at some point, shows his 2010 total income from Lostlink.net as $1,267,905. No documentation was provided by either party evidencing the incomes used by the parties to qualify for mortgage financing of $600,000.
172Ms. Fias testified that she had contributed to the purchase of the Leopold property by assisting Mr. Souto with his Capoeira school and by assisting him with his business Lostlink.net. She testified that she was not working at the time of the purchase of the Leopold property as her main concern was in looking after Kael.
173Mr. Souto provided the significant down payment for the purchase of the Leopold property and I accept that he was solely responsible for making the mortgage payments on the property prior to separation. There are no facts to suggest that Ms. Fias contributed money to the down payment.
174These circumstances give rise to the presumption of a resulting trust. The onus is then on Ms. Fias to lead evidence to rebut the presumption of resulting trust and establish that the placing of the Leopold Property into joint names was a gift of a one-half interest to her.
Rebuttal of the presumption of resulting trust. Did Mr. Souto gift a one-half interest in the property to Ms. Fias by placing it into their joint names?
175On the whole of the evidence, I find that the facts lead me to the conclusion that Mr. Souto intended at the time of the purchase to gift one-half of the Leopold Property to Ms. Fias.
176Mr. Souto testified that his credit rating was better but not perfect. He indicated that the bank considered both the Fort York and Mariner mortgages as his debt and that he did not qualify for the mortgage on his own. He indicated that the mortgage was accepted on the basis of Ms. Fias’ credit score and his income. For the following reasons, I do not accept that this was the sole reason that the property was placed in joint names.
177At the time of the purchase, the parties remained in a committed relationship and Kael was now over one year-old. Both parties testified that they were seeking to obtain a larger property to allow Kael more room to play and run around in a backyard. Both were actively involved in searching for the property and equally interested in renovating the basement to allow Ms. Fias to stay at home to look after Kael but also allow her the opportunity to teach Capoeira and yoga classes in the basement studio which they planned to create.
178Ms. Fias was primarily responsible for looking after Kael and attending to other household tasks, allowing Mr. Souto to focus on his businesses. Mr. Souto was focused on his Lostlink.net business, his Capoeira school assisted by Ms. Fias and he continued to be employed in his salaried position. Both were planning for the future and committed to their relationship.
179There was no evidence to suggest that the purchase of the Leopold Property was to be solely for the benefit of Mr. Souto, but rather the evidence on the whole supports Ms. Fias’ evidence that the parties were sharing in their responsibilities and rewards for their efforts for the benefit of the entire family. Everything was being shared. Mr. Souto referred to Ms. Fias as his wife and the parties travelled together. I do not accept Mr. Souto’s evidence that he was essentially the only one contributing to the relationship as he downplayed Ms. Fias’ contributions in his evidence.
180I accept Ms. Fias’ evidence that Mr. Souto was always “a great provider” and that there was never any discussion as to why the property was being placed in joint names. Mr. Souto testified that the parties had a discussion concerning whether to sell the Fort York and Mariner properties or to rent them at the time of the Leopold purchase further evidencing their joint decision-making and committed relationship. I accept Ms. Fias’ evidence that Mr. Souto’s intention was that the property would be shared and a one-half interest was gifted to her. In addition again, although not conclusive on its own and necessary, no loan documentation was prepared or other legal documentation to support that Mr. Souto would be the sole owner of the property in the event of a separation which leads me to further conclude that Ms. Fias’ one-half interest in the property was a gift.
181As such, I find that there was an intention by Mr. Souto to gift a one-half interest in the Leopold Property to Ms. Fias. The presumption of resulting trust is rebutted.
Who is entitled to the proceeds of sale from the Leopold and Mariner properties?
182As a result, Ms. Fias is entitled to any remaining proceeds from the sale of the Mariner Property, which property is now under power of sale proceedings.
183Both parties shall share equally in the proceeds from the sale of the Leopold Property (estimated to be approximately $400,000) currently being held in trust. Out of Ms. Fias’ proceeds shall be deducted the sum of $6,560, representing one-half of her Legal Aid lien discharged upon sale of the Leopold Property, which amount shall be added to Mr. Souto’s share of the proceeds.
184Pursuant to the endorsement of Horkins J. dated December 17, 2013 (which order does not appear to have been taken out by either party), there was to be an order to go per Minutes of Settlement filed. The parties had agreed on consent that day that on an entirely without prejudice basis to either party’s position on any issue in the proceeding, Ms. Fias would receive $32,500 payable to her lawyers to be subsequently allocated to interim fees/disbursements or any other entitlement. The balance was provided to Mr. Souto’s counsel. Mr. Souto testified that these proceeds were from the sale of the Fort York property in December 2013 which property was registered in Mr. Souto’s name alone. Ms. Fias did not advance a claim for one-half of these proceeds at trial. Counsel for Ms. Fias asks that this amount be taken into consideration only with respect to the issue of costs and that Mr. Souto be given a credit for the $32,500 paid to Ms. Fias if he is ordered to pay the costs which Ms. Fias is seeking.
185The consent of the parties stated that these funds to Ms. Fias were to be allocated for interim fees/disbursements or any other entitlement. These funds belonged to Mr. Souto. The $32,500 paid to Ms. Fias shall be repaid to Mr. Souto out of her one-half share of the proceeds from the sale of the Leopold Property as well as the Legal Aid lien of $6,560 for a total of $39,060 to be paid to Mr. Souto by Ms. Fias out of her one-half of the proceeds from the sale of the Leopold Property.
Issue #4
Is Ms. Fias entitled to spousal support? If so, what is the appropriate quantum and duration of spousal support to be paid by Mr. Souto to Ms. Fias?
186Ms. Souto seeks spousal support, commencing November 1, 2012 and ongoing. She seeks this support based on an imputed income for Mr. Souto of $95,000 and an income for Ms. Fias of $7,200 for the period November 2012 to August 2014 (spousal support sought is $643 per month for a total of $14,146); $7,200 for the period September 2014 to November 2014 (spousal support sought is $2,686 per month for a total of $8,058); and $24,000 from November 2014 and ongoing (presumably December 1, 2014) in the amount of $1,813. She is prepared to apply a credit to Mr. Souto for spousal support paid in the amount of $381 per month from June 1, 2014 to and including December 1, 2014 (which totals $2,667). In the alternative, she seeks a lump sum of $101,844.
187Counsel for Ms. Fias submits that the evidence shows that Ms. Fias supported Mr. Souto when he was not working at the beginning of their relationship. She further submits that Ms. Fias left school in Brazil when she was 15 years-old and has not been able to go back to school since. Ms. Fias has not been able to update her skills, she has no valuable work experience and she has suffered from depression. Additionally, for the most part of the relationship, she contends that Ms. Fias stayed home to look after Kael until Mr. Souto asked her to go back to work.
188Counsel for Ms. Fias further contends that Ms. Fias is taking steps to obtain meaningful employment and has attended workshops. Ms. Fias does not want to be a masseuse and due to the fact that she has no marketable skills, she was forced to return to the only type of work she knows. She has done this to survive. Counsel for Ms. Fias submits that Ms. Fias is clearly in need of support.
189Mr. Souto is not agreeable to paying spousal support, but counsel for Mr. Souto submits that if spousal support is payable, it should be payable on the basis of Mr. Souto’s income of $65,000, imputed income to Ms. Fias of $30,000 and in a low amount. His calculations submitted are based on these incomes and Mr. Souto having primary care of Kael. The spousal support payable under the Spousal Support Advisory Guidelines (the “SSAGs”) would be within the range of $183 to $244 per month.
190Counsel for Mr. Souto submits that Ms. Fias has always “worked off the grid”, has not filed an Income Tax Return in ten years and will never file a tax return. He contends that Ms. Fias worked as an exotic dancer, earning $1,000 per week from 2004 to 2007 and filed no tax returns. He further contends that she has done nothing in over two years to obtain employment despite the fact that she has skills as a server, bartender and has worked in the travel industry. He contends that she could have at least been earning minimum wage since separation but made no attempts to secure employment. Counsel further submits that Ms. Fias has been working as a masseuse for some time earning $2,000 cash per month.
191As the parties were not married, the statutory provisions setting out the purposes and factors to determine the quantum and duration of spousal support are set out in ss. 33(8) and 33(9) of the Family Law Act, R.S.O. 1990, c. F.3 as follows:
Purposes of order for support of spouse
33(8) An order for the support of a spouse should,
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). R.S.O. 1990, c. F.3, s. 33 (8); 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9).
Determination of amount for support of spouses, parents
(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental health;
(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent’s career potential;
(k) Repealed: 1997, c. 20, s. 3 (3).
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,
(v.1) Repealed: 2005, c. 5, s. 27 (12).
(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money. R.S.O. 1990, c. F.3, s. 33 (9); 1997, c. 20, s. 3 (2, 3); 1999, c. 6, s. 25 (6-9); 2005, c. 5, s. 27 (10-13).
192I do find that there is entitlement to spousal support. Ms. Fias did support Mr. Souto for a period of time at the beginning of their relationship. She was also primarily responsible for the care of Kael from his birth up to the date of separation, a period of over three years. As well, Ms. Fias stayed home to care for Kael for a period of time, removing her from the workforce. As indicated, I accept that Ms. Fias also took on the responsibility for the other household tasks (with the assistance of a housekeeper for a period of time), allowing Mr. Souto to focus on his employment, the teaching of his Capoeira classes two to three times a week and the pursuit of his various Internet businesses.
193There is still a disparity in incomes and Ms. Fias has a very limited education. She requires some assistance to re-establish herself. I am also cognizant of the fact that both parties have significant debt, although all of Mr. Souto’s debt has not yet crystallized as he has not filed his draft tax returns for 2010 and 2011. It remains to be seen what his ultimate tax liability will be, if any, and if any penalties and interest are added. Ms. Fias will retain any proceeds from the sale of the Mariner Property, although it has not yet been determined what equity will remain after the power of sale proceedings.
194In her Application dated October 31, 2013, Ms. Fias did not seek spousal support retroactive to the date of the parties’ separation of October 27, 2012 and as such, I decline to order spousal support retroactive to October 27, 2012. The earliest date for spousal support to commence would be October 31, 2013, the date that Ms. Fias’ Application was issued.
195During the calendar year 2013, Ms. Fias testified that her only source of income was social assistance of $7,200 per year. Ms. Fias has only minimal education, having left school in Brazil at age 15. I accept Ms. Fias’ evidence that she had been the primary caretaker of Kael throughout the relationship until the date of separation and that her only work after Kael was born was work as a masseuse. Ms. Fias, as indicated earlier in these Reasons, has been employed as a masseuse in 2014 and I have imputed an income to her of $30,000 for 2014 and ongoing. However, there is no way to properly determine Ms. Fias’ income for prior years due to her lack of reporting of her income and her failure to file any Income Tax Returns for 10 years.
196At the time of the commencement of the Application, Ms. Fias had been separated for one year. I accept that she would have been unable to seek full-time employment right after separation as she dealt with being arrested, losing primary care of Kael and losing her residence. It would have taken some time for her to obtain the necessary supports and to re-establish herself. Similar to Mr. Souto being unable to focus on his Internet businesses to earn additional income, I accept that Ms. Fias would have needed a period of adjustment prior to seeking employment as she struggled with these significant issues.
197However, what is troubling is that no efforts had been made by Ms. Fias to secure any form of employment one year after the separation at the time the Application commenced. While I acknowledge that Ms. Fias has looked into taking some courses to assist her with her goal of eventually becoming an administrative assistant, she did not make any efforts to secure employment.
198For the calendar year 2013, on the basis of the Income Tax Return filed with the CRA, Mr. Souto earned gross employment income of $62,642. He had taxable capital gains of $29,244 (from the sale of the Fort York Property) and net rental income of ($18,132). His total income was $73,754. For the purposes of determining support for 2013, I have used Mr. Souto’s employment income only, given the one-time capital gain. Given Ms. Fias’ lack of effort to secure employment, it is reasonable to impute a modest income to her in 2013 of $21,303 gross per year (based on a minimum wage of $10.35 per hour). This results in Ms. Fias having to pay $170 per month in child support and a SSAGs range of $220 to 293 of spousal support for Mr. Souto to pay to Ms. Fias.
199I find that Mr. Souto supported Ms. Fias by paying off the debt that she acknowledged in her evidence she incurred post-separation on Mr. Souto’s Visa in the amount of $9,500. This money was for the purchase of a vehicle of $6,000 and a $3,500 cash advance. Ms. Fias acknowledged $6,000, but I accept Mr. Souto’s evidence on this issue which was not challenged on cross-examination. Mr. Souto received no tax deductibility for these payments. Additionally, Mr. Souto had primary care of Kael from the date of separation of October 27, 2012, up to time of the order made by Frank J., dated August 5, 2014, when the shared custody arrangement commenced in September 2014. No child support was paid by Ms. Fias when she should have been working. Taking these factors into consideration, I decline to order spousal support commencing the date of the Application, being October 31, 2013 in the amount of $643 per month as sought by Ms. Fias.
200I find that it is appropriate to consider the spousal support issue based on the 2014 incomes of the parties, being $65,532 for Mr. Souto and $30,000 for Ms. Fias as determined earlier in these Reasons. Any spousal support obligation should commence as of September 1, 2014, given the $9,500 already paid by Mr. Souto (with no tax deductibility) for Ms. Fias’ support and benefit subsequent to the separation.
201Applying the $450 per month ordered payable by Mr. Souto to Ms. Fias for child support based on the shared custody arrangement, the SSAGs provide for a range of $22 to $538 per month in spousal support for a duration of 2.5 years to 13 years.
202Taking into account all of these factors along with the length of the parties’ relationship of five years; the ages of the parties; and considering the purposes and factors of spousal support as set out in ss. 33(8) and 33(9) of the Family Law Act, and the SSAGs, I order Mr. Souto to pay spousal support to Ms. Fias, commencing September 1, 2014 in the amount of $265 per month (the mid-range under the SSAGs) for a period of two years at which time the spousal support obligation shall terminate. Mr. Souto has paid spousal support in the amount of $381 per month since June 1, 2014 to and including December 1, 2014, for a total of $2,667. He shall be given credit for these payments with respect to his ongoing spousal support obligation.
Order
203I order the following:
i) the parties shall have joint custody of the child, Kael do Nascimento Souto, born April 7, 2009, subject to the following: in the event that the parties cannot agree upon a matter that falls outside day-to-day decision making (i.e. a major issue relating to education (including where Kael goes to school); healthcare; religion; major recreational/extra-curricular activities; and Kael’s residence), Mr. Souto shall provide written notice to Ms. Fias of the decision he intends to make. If Ms. Fias does not agree with Mr. Souto’s pending decision, she shall provide formal written notice to Mr. Souto of her disagreement and she shall have 30 days from the date Mr. Souto provided formal written notice of his pending decision, to serve any necessary motion or application materials. If Ms. Fias does not do so within the 30-day period, then Mr. Souto shall make the final decision. If Ms. Fias does do so within the 30-day period, then no decision shall be made by Mr. Souto except by written agreement of the parties or court order;
ii) Kael shall have his primary residence with Mr. Souto but he shall share time with Ms. Fias (and holiday time with the parties) as follows :
a) with Ms. Fias, every other weekend from Friday at the end of school to Monday at the start of school. Ms. Fias shall retrieve Kael from the daycare/school and return him there on Monday morning;
b) with Ms. Fias every Wednesday evening overnight. Ms. Fias shall retrieve Kael from his daycare/school at the end of school, and return him to the daycare/school on Thursday mornings by the start of school;
c) with Ms. Fias every other Thursday evening overnight during the weeks in which Kael is not going to be with Ms. Fias on the weekend. Ms. Fias shall retrieve Kael from his daycare/school on every other Thursday at or after 4:00 p.m. and return him to the daycare/school on every other Friday morning by the start of school;
d) should Kael not have school for any reason on the day following time spent with Ms. Fias, including illness or school closure, Ms. Fias shall return Kael to Mr. Souto on 6:00 p.m. that day. The parties shall meet to exchange Kael at a public location that is halfway between each of their homes;
e) if Ms. Fias’ weekend contains a holiday or PD day, then her weekend shall commence on Thursday if the holiday is a Friday and end on Tuesday if the holiday is a Monday. If Ms. Fias’ Thursday overnight is followed by a Friday holiday or PD day, then Kael shall remain with Ms. Fias and be returned at 6:00 p.m. on the Friday;
f) if Mother's Day should fall on a weekend during which Kael is not at Ms. Fias’ home, he shall spend from 10:00 a.m. to 6:00 p.m. with Ms. Fias;
g) if Father's Day should fall on a weekend during which Kael is not at Mr. Souto's home, he shall return to Mr. Souto's home at 10:00 a.m. on Sunday;
h) Kael shall spend from the last day of school in December 2015 to December 26, 2015 at 10:00 a.m. with Ms. Fias, and then he shall spend time with Mr. Souto from December 26, 2015 at 10:00 a.m. until school returns in January, at which time the regular access schedule shall resume. The schedule shall alternate annually so that Kael spends from the end of school in December 2016 to December 26, 2016 at 10:00 a.m. with Mr. Souto and from December 26, 2016 at 10:00 a.m. until school returns in January with Ms. Fias;
i) when school finishes for the summer months, Kael shall spend alternating weeks with each parent, starting with Ms. Fias. When he is with each parent for the week, Kael shall spend Wednesday evening with the other parent, with the transfer taking place at daycare at 4:00 p.m., or if the daycare is not available, at a public location that is halfway between each of their homes;
j) each parent shall have one uninterrupted week with Kael each summer. The parents shall notify one another in writing of their desired week by April 1st of each year. Each parent is entitled to take Kael out of his daycare for five days each year (if he is still attending daycare), but must notify the other parent and the daycare of their dates by April 1st of each year;
iii) Kael shall have phone contact with the parent from whom he is away at least once daily, at a set time that is convenient to his routine, such as immediately after his dinner meal. The phone contact shall be initiated by the parent in whose care Kael is at the time. If either parent is not going to be available to receive Kael's call, they shall notify the other parent in advance;
iv) Ms. Fias and Mr. Souto shall communicate regularly about Kael's needs and care as follows:
a) the parents shall use ‘ourfamilywizard.com’. Mr. Souto shall be responsible for setting up an account and inputting information about Kael's routines and care. Any account fees for this service shall be shared equally by the parents;
b) each parent shall send an update through ourfamilywizard.com or by e-mail on the day that Kael leaves their home to go to the other parent, providing any information about Kael's health, behaviour, routines, or school activities as needed;
c) the parents shall communicate by e-mail as necessary. These e-mails shall be limited to one paragraph or less. Each e-mail shall address only one subject at a time. All e-mails shall be child-focused and neither parent shall make accusations or derogatory statements;
d) if either parent feels the other parent is not meeting these conditions in their e-mails, they shall respond to the other parent by saying something such as, “This does not seem to match the communication agreement we made together. Could you please rephrase your question?”;
e) the parents shall respond with reasonable promptness to the other parent's communication, within a 36-hour time frame;
f) if either parent experiences anger from the communication received from the other parent, they shall respond that they will respond to the question after taking a moment to calm themselves and can think clearly;
v) each parent shall provide Kael with everything he needs in their home, including a full set of clothing, coats, shoes, toys, and other equipment he might need;
vi) Mr. Souto shall provide to Ms. Fias a description of Kael's routines, activities and interests in his home, including a description of all strategies he is using to attend to Kael's anxiety symptoms and behaviours, and shall update Ms. Fias of any changes regularly. Ms. Fias shall match these routines during her parenting time;
vii) both parents shall follow the recommendations of Kael's doctors, teachers or daycare providers to support Kael's routines, behaviour strategies or other treatment needs;
viii) neither parent shall use substances while Kael is in their care, whether or not he is present at the time;
ix) neither parent shall speak negatively to Kael about the other parent, encouraging an ongoing secure relationship with both parents;
x) if Mr. Souto knows he will be requiring child care for Kael, he shall offer a first right of refusal to Ms. Fias with at least 24 hours’ notice in writing by e-mail;
xi) Mr. Souto shall provide information to Ms. Fias about any doctor or other appointments Kael has, either by e-mail or by ourfamilywizard.com, and shall provide information about the details of these appointments within 24 hours of when they occur;
xii) Mr. Souto shall provide Ms. Fias with any school reports, medical reports, or other updates on Kael's activities in writing within 72 hours of receiving them. He shall also advise Kael's doctors, school and daycare to provide information to Ms. Fias directly;
xiii) Mr. Souto shall be the librarian of Kael's health card but shall provide a copy to Ms. Fias immediately. Mr. Souto shall retain Kael's passports, but neither parent shall travel outside of Ontario with Kael without the written consent of the other parent or court order;
xiv) both parents should attend programs to assist them to better understand the impact of conflict on children, and to help them develop strategies for engaging and co-parenting, such as the programs offered by Families in Transition;
xv) Ms. Fias should engage in individual counselling to resolve some of her traumatic experiences and help her to resolve and manage feelings of anxiety, so that she engages in child-focused parenting more successfully;
xvi) Mr. Souto should engage in individual counselling to resolve his experiences of loss and trauma from the separation and to help them engage in child-focused parenting more successfully;
xvii) this order with respect to the parenting provisions shall be reviewed in one year to ensure Kael’s needs are being met. The parties shall do this through counsel and it is recommended that a mediator be retained by the parties to resolve any issues at that time and to assist with any adjustments to the parenting plan;
xviii) Mr. Souto shall pay child support for Kael do Nascimento Souto, born April 7, 2009, to Ms. Fias in the amount of $450 per month, commencing September 1, 2014 until further order of the court. Ms. Fias shall be entitled to claim the dependant credit for Kael;
xix) the parties shall share in proportion to their incomes towards the cost of any section 7 expense for Kael after taking into account any available subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. Neither party shall incur any section 7 expense for Kael without first obtaining the written consent of the other parent;
xx) Mr. Souto’s claims to a beneficial interest in the Mariner and Leopold properties are dismissed;
xxi) Ms. Fias is entitled to any remaining proceeds from the sale of the Mariner Property after determination of the power of sale proceedings;
xxii) both parties shall share equally in the proceeds from the sale of the Leopold Property (estimated to be approximately $400,000) currently being held in trust. Out of Ms. Fias’ proceeds, shall be deducted and paid to Mr. Souto the sum of $6,560, representing one-half of her Legal Aid lien discharged upon sale of the Leopold Property as well as the sum of $32,500 owing to Mr. Souto from the sale of the Fort York Property, for a total of $39,060;
xxiii) Mr. Souto shall pay spousal support to Ms. Fias commencing, September 1, 2014 in the amount of $265 per month for a period of two years at which time his spousal support obligation shall terminate. Mr. Souto has paid spousal support in the amount of $381 per month since June 1, 2014 to and including December 1, 2014, for a total of $2,667. He shall be given credit for these payments with respect to his ongoing spousal support obligation;
xxiv) the parties shall provide each other with a copy of his or her Income Tax Return by May 1st each year and a copy of his or her Notice of Assessment upon receipt;
xxv) I encourage the parties to agree on costs; however, if they are unable to do so, any party seeking costs shall provide written costs submissions, no longer than three doubled-spaced pages, along with a Bill of Costs and any Offers to Settle within 20 days. Any written reply submissions shall be provided 14 days thereafter with the same requirements.
Stevenson J.
Released: February 6, 2015
CITATION: Fias v. Souto, 2015 ONSC 880
COURT FILE NO.: FS-13-18943
DATE: 20150206
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Aretusa fias
Applicant
- and -
Nuno pereira souto
Respondent
REASONS FOR DECISION
Stevenson J.
Released: February 6, 2015