Court File and Parties

COURT FILE NO.: FS-14-80414 DATE: 2016 06 21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Gregory John Franklin In Person Applicant

• and -

Sonja Joy ten Berge In Person Respondent

HEARD: January 12, 13 and 14, 2016

REASONS FOR JUDGMENT

Justice M.G. Emery

[1] The trial of this application focused on certain adjustments to the access provisions the applicant father, Gregory Franklin, was seeking to the child of the marriage, Sophie Rose ten Berge Franklin (Sophie), and the financial issues between the parties. The subtext of the application involved Mr. Franklin’s concern about the alleged overuse of alcohol by the respondent mother, Sonja ten Berge, as a parent, and the belief held by Ms. ten Berge that Mr. Franklin is unable to manage money.

FACTUAL BACKGROUND

[2] The parties were married on November 13, 2003. Sophie was born on September 22, 2005. She is currently 10 years old.

[3] The parties separated on, or shortly after, September 2013.

[4] At the time of the marriage, Ms. ten Berge owned her own home on Coniston Avenue in Brampton. Mr. Franklin moved into the home on Coniston Avenue after the date of marriage. Thereafter, that home became the matrimonial home.

[5] Mr. Franklin was in debt prior to his marriage to Ms. ten Berge. The parties have put the amount of his indebtedness at $40,000. Prior to the date of marriage, Mr. Franklin’s personal debt was paid off when Ms. ten Berge refinanced the mortgage against the home on Coniston Avenue.

[6] Throughout the trial, I got the sense from listening to the evidence that Mr. Franklin and Ms. ten Berge encountered financial challenges leading up to and after the date of marriage. Among those challenges, the parties made efforts to address the pre-marital debt Mr. Franklin was bringing into the marriage, to preserve Ms. ten Berge’s equity she had built up in the home on Coniston Avenue, and to find ways to allocate the payment of expenses associated with ownership of the house.

[7] On March 8, 2009, Mr. Franklin and Ms. ten Berge entered the following post-nuptial agreement:

Post Nuptial Agreement of Gregory John Franklin and Sonja ten Berge-Franklin

In the event of a separation or divorce, I Gregory Franklin and Sonja ten Berge agree to the following with respect to the property of 18 Coniston Ave:

Property: 18 Coniston Ave:

At the time of the marriage in 2003 the house at 18 Coniston Ave was appraised at $310,000 with a balance on the mortgage being $105,000. Sonja’s equity in the above mentioned property was $205,000 or 2/3 rd which leaves 1/3 rd owed. Therefore 1/6 th Sonja pays and 1/6 th Greg pays off on the balance of the mortgage. Based on above Sonja’s ownership in the property is 5/6 th and Greg’s ownership in the property is 1/6 th . In the event of a separation before the mortgage is paid off each party above is responsible for their respective percentage of the balance of the mortgage.

Greg’s Personal Debt:

At the time of the marriage Greg had a personal debt of $40,000 which was added to the mortgage. That personal debt equals 24% of the mortgage. Greg will be responsible for that percentage of the mortgage plus the portion of that debt that Sonja has paid off.

Additional:

Any community property acquired during the marriage will be divided evenly (50/50) between Gregory Franklin and Sonja ten Berge-Franklin.

Summary:

I Gregory Franklin and Sonja ten Berge-Franklin sign the above agreement and agree to the above terms.

[8] Title to the home on Coniston Avenue remains, and always has been registered in the name of Ms. ten Berge. Neither of the parties has made an application under section 10 of the Family Law Act, R.S.O. 1990, c. F.3, to determine ownership interests in this property.

[9] The parties also had employment difficulties during the marriage, Mr. Franklin more than Ms. ten Berge. Mr. Franklin is qualified as an Information Technology (I.T.) specialist and was employed by several employers during and after the marriage as a technician in that field. Ms. ten Berge has been employed continuously, except for a time between 2011 and 2012.

[10] Mr. Franklin has worked at various places since he earned his diploma in Information Technology from the Toronto School of Business in 1998. During the marriage, he was employed for six years by Jonas Software where he earned $44,000 a year. He was unemployed for approximately one year in 2011 and then returned to work at Humber College in 2012 at $18 an hour. In 2012, he obtained a two-year contract working for Microsoft where he earned $25 an hour, which translated into $52,000 a year. This employment took him to October 2014. From October 2014 to August 2015 he was out of work and collected employment benefits. In 2015, he obtained further employment at Humber College on a contract basis where he was employed at the time of trial to January 29, 2016. He expects that contract to be extended to September 30, 2016, with a substantial increase in pay.

[11] During the marriage, Mr. Franklin and Ms. ten Berge opened a trust account for Sophie’s benefit at DUCA Credit Union. While Ms. ten Berge opened the account, Mr. Franklin later signed on as a trustee. They are therefore both trustees and signing officers.

[12] Ms. ten Berge managed Sophie’s trust account. She would deposit funds received for the child tax credit into the account and occasionally make other deposits into the account for Sophie. Mr. Franklin did not deposit any money into the account from his own resources.

[13] Sophie’s trust account was made an issue at trial because Ms. ten Berge transferred the entire proceeds from Sophie’s trust account into an RESP opened for Sophie after separation. Unfortunately, this resulted in an overpayment by Ms. ten Berge into the account of $3,125.78, based on her income.

[14] Mr. Franklin brought a small claims action against DUCA Credit Union for allowing Ms. ten Berge to transfer the funds from the trust account to the RESP without his signature. Ms. ten Berge ultimately transferred the funds from the RESP back to the trust account. DUCA Credit Union settled with Mr. Franklin out of court for $500. Mr. Franklin did not contribute this recovery of $500 to Sophie’s trust account, nor did he deposit that amount into a new account for Sophie’s benefit.

[15] Mr. Franklin seeks an order for the distribution of those funds held in Sophie’s trust account to himself and to Ms. ten Berge equally. On the other hand, Ms. ten Berge seeks an order removing Mr. Franklin as a trustee and revoking his signing authority for Sophie’s trust account. Alternatively, she seeks an order permitting the transfer of the proceeds in Sophie’s trust account to an RESP set up in her name, less the payment of $3,125.78 to herself for the amount she owes to the Canada Revenue Agency. Absent any order in this regard, both Mr. Franklin and Ms. ten Berge shall remain as trustees and signing officers for Sophie’s trust account. In that event, the proceeds currently on deposit in Sophie’s trust account at DUCA Credit Union shall remain in that account subject to the terms and conditions of the account agreement, or further order of this court.

[16] After the parties separated, they remained living in the home on Coniston Avenue. On June 26, 2014, Justice Dawson made a temporary order setting out the following terms material to the issues at trial:

1. The Respondent will have exclusive possession of the matrimonial home known municipally as 18 Coniston Avenue commencing August 1, 2014 at 5:00 p.m.

2. In the event either party travels with Sophie Rose ten Berge Franklin during their August vacation they shall provide the details of such vacation, including the contact information 14 days before travel as well as a Travel Consent letter to be notarized by the other parent. Neither parent shall take Sophie beyond the confines of Canada and the continent[al] United States of America.

3. The Respondent shall provide the Passport and original OHIP card for Sophie Rose ten Berge Franklin on or before July 27, 2014 to the Applicant and the Applicant shall return such documents to the Respondent on August 16, 2014.

4. The parties shall divide the contents of the matrimonial home and the Applicant may remove his share of such contents upon his moving from the home. In the event of a dispute the parties will have a settlement meeting with counsel.

5. Commencing August 30, 2014, on a temporary basis, there will be a week about shared parenting plan as follows:

(a) Saturday, August 30, 2014 at 5:00 p.m. to Friday, September 5, 2014 at 5:00 p.m. with the Applicant.

(b) Friday, September 5, 2014 at 5:00 p.m. to the following Friday with the Respondent.

(c) Each alternating Friday to Friday thereafter to each party.

9. The Respondent, Sonja Joy ten Berge shall not consume alcohol 12 hours before access and during access visits.

[17] Often, spouses commit irrational acts after a separation out of need, or motivated by other purposes. Ms. ten Berge transferred the proceeds from Sophie’s trust account to an RESP. Mr. Franklin withdrew $20,000 from the joint line of credit available to both parties. Mr. Franklin has not repaid any of those funds, nor has he made any payment to the line of credit account on the amount advanced or any interest charged on those funds.

[18] Both Mr. Franklin and Ms. ten Berge made payments on the charge against title to the home on Coniston Avenue after the date of separation until Mr. Franklin moved out on July 10, 2014. He has not made any payments on the balance remaining under that charge or for any other household payments since moving out. Both parties admit as a fact that Ms. ten Berge has been making all payments on the charge and for household expenses, as well as keeping payments current on the line of credit since July 2015.

[19] Mr. Franklin is currently 46 years of age; Ms. ten Berge is currently 52.

ANALYSIS

[20] In the course of the trial, the parties agreed on three things.

[21] First, they agreed to a divorce. Upon hearing evidence and the answers of each party to questions from the court, I am satisfied that the requirements of the Divorce Act, R.S.C., 1985, c.3 are met. Therefore, a divorce order shall issue.

[22] Second, the parties withdraw any claim for spousal support against each other. Therefore, all such claims are dismissed, on consent.

[23] Third, the parties agree to all three provisions recommended for the parties to share joint custody of Sophie, and 14 of the 15 recommendations for access to Sophie made in the report of Eileen Spraggett, M.S.W., R.S.W. Ms. Spraggett is the clinical investigator who wrote the report on behalf of the Office of the Children’s Lawyer. That report, and the conduct of the investigation that preceded it, was written pursuant to the order made by Justice Dawson on June 26, 2014. This report was marked as Exhibit 1 under section 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as evidence at trial. The following 14 terms to which the parties agree for custody and access of Sophie shall therefore form part of the final order, on consent:

Custody

1. Greg Franklin and Sonja ten Berge are to have joint custody of Sophie ten Berge Franklin. Day-today decisions are made by the parent who is caring for Sophie ten Berge Franklin.

2. Final decisions in health care are to be discussed via email by both parents and if no agreement is reached, then Sonja ten Berge, the mother, will make final decisions. Communication should be brief and directly related to the needs of Sophie ten Berge Franklin.

3. Final decisions regarding Education are to be discussed via email by both parents ad in the absence of mutual agreement, then Greg Franklin, the father, will make final decisions.

Access

1. The schedule that has been in place since June 26, 2014 to continue: Equal sharing of access, starting with Friday at 5:00 p.m. to the following Friday at 5:00 p.m. Every Tuesday from 6:30 p.m. to 8:00 p.m. Sophie is to visit with the parent with whom she is not with on that week. A third party is to be present at exchanges. Greg Franklin will not enter the foyer of Sonja ten Berge’s home at exchanges.

2. Thanksgiving Monday: In even years, Sophie ten Berge Franklin is to be with Sonja ten Berge from 10:00 a.m. to 6:00 p.m.

3. Christmas Holidays: Sophie ten Berge Franklin to spend equal time with Sonja ten Berge and Greg Franklin. In odd years, Sophie ten Berge Franklin to be with Greg Franklin for the first half of the holiday, beginning the last day of school until the mid-point of the break. In odd years, on Christmas day, Sophie ten Berge Franklin to be with Sonja ten Berge Franklin from 1:00 p.m. until 7:00 p.m. In even years, Sophie ten Berge Franklin to be with Sonja ten Berge for the first half of the holiday, beginning the last day of school before Christmas until the mid-point of the break. On Christmas Day, in even years, Sophie ten Berge Franklin will be with Greg Franklin from 1:00 p.m. to 7:00 p.m.

4. Family Day: In even years, Sophie ten Berge Franklin to spend with Greg Franklin from 10:00 a.m. to 6:00 p.m.

5. March Break: To be shared equally. In odd years, Sophie ten Berge Franklin will be with Sonja ten Berge from Friday at 5:00 p.m. until the following Sunday at 6:00 p.m. In even years, Sophie will be with Greg Franklin from Friday at 5:00 p.m. to the following Sunday at 6:00 p.m.

6. Summer Holidays: Equal sharing of the summer vacation. Sophie ten Berge Franklin will have two weeks in July and two weeks in August with each parent. Greg Franklin to provide his weeks of choice to Sonja ten Berge by April 1 st of each year.

7. Easter Weekend: Equal sharing of this weekend. In even years, Sophie ten Berge Franklin will be with Greg Franklin from Thursday at 5:00 p.m. to Saturday at 6:00 p.m. and with Sonja en Berge from Saturday at 6:00 p.m. for the duration of the weekend. In odd years, she will be with Sonja ten Berge from Saturday at 6:00 p.m. to Monday at 6:00 p.m.

8. Mother’s Day: With Sonja ten Berge from 10:00 a.m. to 6:00 p.m.

9. Father’s Day: with Greg Franklin from 10:00 a.m. to 6:00 p.m.

10. Any other arrangement as agreed upon by Greg Franklin and Sonja ten Berge.

11. Greg Franklin to attend counselling to address the impact of separation on children; to address his feelings associated with the separation/divorce; to address co-parenting.

12. Sonja ten Berge to attend for an assessment for alcohol addiction and to follow through with recommendations.

13. Greg Franklin and Sonja ten Berge to follow through with recommendations made by Peel CAS.

14. Communication between Greg Franklin and Sonja ten Berge will be by email. Communication to be brief and child focused.

[24] The first contentious issue revolves around Mr. Franklin’s concern that Sophie will be dropped off after the mid-week access visit with him to the home of Ms. ten Berge every second Tuesday to find that Ms. Ten Berge has been consuming alcohol. Mr. Franklin contends that this prospect makes her home an unsuitable environment for the return of the child. Mr. Franklin cannot agree to Term number 15 in the report of the Office of the Children’s Lawyer that states as follows:

15. Exchanges will be with a third party present or at the school. If a third party is unavailable at exchanges, Sophie can be dropped off at the house [of Sonja ten Berge] and Greg Franklin can watch from his car until she enters the home. Sophie can walk over to his car when he picks her up. Greg Franklin is not to enter the home of Sonja ten Berge at exchanges.

[25] Mr. Franklin asks this court for an order that he be permitted to walk Sophie to the door of the home on Coniston Avenue when returning Sophie on those evenings. He asks for an order permitting him to keep Sophie overnight if Ms. ten Berge has been consuming alcohol to excess or is exhibiting intoxicated behavior.

[26] Ms. ten Berge denies these allegations about the amount and frequency of her alcohol intake, and opposes Mr. Franklin’s position vigorously.

[27] It is an understandable concern for Mr. Franklin to have about the environment Ms. ten Berge is providing for Sophie when she is in her mother’s care. However, that concern must be reasonable, having regard to all of the facts and circumstances.

[28] This is not the first time Mr. Franklin has raised this concern. The issue must have been addressed on the motion before Justice Dawson because the order made on June 26, 2014 provides at paragraph 9 that Ms. ten Berge shall not consume alcohol 12 hours before access and during access visits. With this order in place, the Office of the Children’s Lawyer and the Peel Children’s Aid Society have conducted their respective investigations and found no reasonable basis for Mr. Franklin’s concern.

[29] As a precaution, the report of the Office of the Children’s Lawyer includes recommendation number 12 that Ms. ten Berge attend for an assessment for alcohol addiction, and that she follow through with recommendations to ensure compliance with either Justice Dawson’s order or any final order made by this court. Since I am making an order based on those recommendations, including recommendation number 12, Ms. ten Berge is to attend for an assessment for alcohol addiction and to follow through with recommendations made at that assessment. Further, Mr. Franklin and Ms. ten Berge shall be required by this order to follow through with any recommendations made by the Peel Children’s Aid Society.

[30] All such orders are made with the best interests of Sophie in mind. All such orders, in my view, are made to minimize or eliminate the prospect of the intake of alcohol by Ms. ten Berge while caring for Sophie and providing a safe, proper and suitable environment for her in the home. Subject to any subsequent evidence to the contrary, these provisions should satisfy any reasonable concern on an objective basis.

[31] On a subjective basis, I find Mr. Franklin’s concern about Ms. ten Berge consuming alcohol prior to the time he drops Sophie off at her home on Coniston Avenue to be unreasonable. Mr. Franklin expresses this concern for the particular time that occurs every second Tuesday evening when he is to drop Sophie off at 8:30 that evening at the home of Ms. ten Berge. This is the most exposed opportunity for Mr. Franklin to have an exchange with Ms. ten Berge if he were permitted to walk Sophie up the driveway to the door. Delivering Sophie after a mid-week access visit every second Tuesday is perhaps the only opportunity to have the door of the home on Coniston Avenue opened to him.

[32] Not only does that opportunity arise only once every two weeks, Mr. Franklin did not express concern about the environment Sophie might encounter should Ms. ten Berge be under the influence of alcohol on any other occasion in his evidence. Mr. Franklin does not express any alarm about Sophie going home after school to her mother on each and every other school day when she is in her care, or when she returns home after activities on a Saturday or Sunday.

[33] Mr. Franklin called Debora Bates-Travis, a neighbor to testify about her observations she had made, or concerns she held with respect to Ms. Ten Berge and the consumption of alcohol. Ms. Bates-Travis agreed that the parties each have strong personalities and different ways of coping. At times, each has used strong language. However, Ms. Bates-Travis expressed no concerns with Ms. Ten Berge about drinking, or her ability to care for Carly or for Sophie.

[34] I can only conclude that Mr. Franklin wishes to exploit any point of exchange permitted when he returns Sophie to Ms. ten Berge at 8:30 on every other Tuesday evening as an opportunity for interaction with Mr. ten Berge. He does not necessarily seek this order because he has a reasonable basis for concern based on the best interests of Sophie.

[35] I also find that Carly is a reasonable proxy to accept delivery of Sophie when she is returned by Mr. Franklin to Ms. ten Berge’s home. There is no evidence that Carly not a responsible individual. At 20 years of age, she would have the maturity to care for her younger sister on a temporary basis, and is presumed capable of fulfilling that responsibility.

Child Support

[36] At the time of trial, Mr. Franklin was earning $24.75 an hour, which translates into approximately $52,000 a year. With an increase in pay if his contract is extended, Mr. Franklin would earn at least $28 an hour, which translates into $58,240 a year. Based on income tax filings in this case and the evidence given at trial, Mr. Franklin has earned the following income:

2010 $49,242 2011 $40,537 2012 $27,187 2013 $55,302 2014 $43,333 (5/6 of $52,000) 2015 $33,781 ($1,028 x 16) + (1/3 x 52,000)

[37] Ms. ten Berge earned the following income during the same time frame:

2009 $80,563 2010 $85,879 2011 $86,777 2012 $17,878 2013 $32,307 2014 $60,736 2015 $60,000

[38] The shared custody regime recommended by the Office of the Children’s Lawyer to which the parties have agreed provides a right of access to, or physical custody of Sophie for not less than 40 percent of the time over the course of a year. This allocation of time between the parties to care for Sophie to make Section 9 of the Federal Child Support Guidelines applicable. Section 9 reads as follows:

Shared custody

9 Where a 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 child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[39] In Contino v. Contino-Leonelli, 2005 SCC 63, the Supreme Court of Canada discussed how a set-off between support obligations for each parent under the Child Support Guidelines based on their respective incomes is determined by the court. This set off principle is subject to judicial discretion and an overriding consideration that the discrepancy between the homes of each parent should not be so great as to provide an unequal living environment for the child to a significant extent. Justice Bastarache, writing for the majority of the court, described it this way at paragraphs 49 to 51:

49 Hence, 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.

50 It should be noted here that the Table amounts are an estimate of the amount that is notionally being paid by the non‑custodial parent; where both parents are making an effective contribution, it is therefore necessary to verify how their actual contribution compares to the Table amount that is provided for each of them when considered payor parents. This will provide the judge with better insight when deciding whether the adjustments to be made to the set-off amount are based on the actual sharing of child-related expenses.

51 This is where discretion comes into play. 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, [1971] 1 O.R. 130 (C.A.) ).

[40] This court is directed to focus on the particular facts of the case to determine whether the exercise of discretion would be appropriate to superimpose on a basic set-off calculation. Unfortunately, Mr. Franklin did not provide much evidence, if any, of his living arrangements and his expenses. He did not give any significant evidence related to his current accommodation and economic circumstances. In the absence of that evidence, I conclude that he is able to provide a suitable residential arrangement commensurate with that which Ms. ten Berge is able to provide for Sophie.

[41] I am therefore approaching the issue of child support on a simple set-off basis. I am using the evidence given at trial that will support what I consider to be an appropriate income to impute to Mr. Franklin under Section 19 of the Federal Child Support Guidelines. Based on that evidence, I find as a fact that he is capable of earning $52,000 a year when he is employed on a full-time basis. That is the annual income I impute to Mr. Franklin if he was to renew his contract at Humber College on a continuous basis. Similarly, I find that Ms. ten Berge is earning $60,000 a year at her current employment. This is the annual income the court should ascribe to Ms. Ten Berge for child support purposes. I have not imputed or attributed any potential increase in the annual income of either party because there was insufficient evidence given at trial to do so.

[42] The table amount for Mr. Franklin to pay for one child on an annual income of $52,000 would be $469 a month. The amount of child support Ms. ten Berge would pay for one child on $60,000 of annual income would be $546 a month. Ms. ten Berge is therefore ordered to pay the difference of $84 a month in child support to Mr. Franklin, being the difference between those amounts.

[43] I further order that each party shall disclose a copy of their income tax return with attachments, and related assessment by May 30 each year to the other party. If either party is making more or less than five percent than the annual income that he or she made in the year immediately preceding that year, the parties shall agree to a change in the setoff amount based on the table amounts for child support payable while Sophie remains a child of the marriage within the meaning of the Divorce Act. The party claiming the change in child support shall obtain an order on consent using a Form 14B motion within 30 days of receiving the information on which to determine whether a change of support should be made.

Section 7 Expenses

[44] Based on the findings of imputed or actual incomes of $52,000 a year for Mr. Franklin and $60,000 a year for Ms. ten Berge, Mr. Franklin shall pay 46.5 percent and Ms. ten Berge shall pay 53.5 percent of those Section 7 expenses. In doing so, each party shall pay that expense in proportion to their income, according to the guiding principle set out in section 7(2) of the Child Support Guidelines. Currently, allowable Section 7 expenses are daycare for Sophie, and those fees for her swimming lessons and her drama lessons.

[45] Mr. Franklin has indicated that he is not seeking any retroactive payment for Section 7 expenses to-date.

[46] This order regarding Section 7 expenses is subject to any further order of the court for Sophie’s post-secondary education.

Sophie’s Documents

[47] The parties each seek an order from the court to hold Sophie’s identification and other documents.

[48] Mr. Franklin acknowledges that Ms. ten Berge currently holds Sophie’s identification documents. However, he states that he usually requires those identification documents as he has been the only parent to take Sophie out of the country for a vacation in recent years. He also states that he usually takes Sophie to the family doctor and medical related appointments. He asks the court to order that he be permitted to hold Sophie’s passport and health card. Mr. Franklin states that he will provide those documents to Ms. ten Berge upon request, on the condition that she return those documents to him immediately thereafter.

[49] Mr. Franklin also states that he requires Sophie’s social insurance card and her birth certificate to open a bank account for her in the coming months.

[50] Ms. ten Berge requests that she hold Sophie’s identification and other documents so that she may travel with Sophie outside the country without Mr. Franklin’s consent. She states that she will give Mr. Franklin notice whenever that occurs.

[51] Ms. ten Berge agrees to provide Mr. Franklin with updated copies of all government issued certificates. If she is permitted to hold Sophie’s original passport, she agrees to provide that passport to Mr. Franklin 14 days prior to the date of departure for any trip, provided that all details with respect to flights, destination, accommodation and contact numbers be provided for her to verify those details prior to the trip.

[52] If that arrangement is satisfactory, Mr. Franklin would have Sophie’s passport to use on her behalf for a trip. Mr. Franklin would then be required to return that passport to Ms. ten Berge within one week of Sophie’s return, or at the first child exchange date, whichever comes first.

[53] I am of the view that one parent should be the custodian of Sophie’s identification and other documents to avoid confusion with respect to use or enforcement of this order, and for the mutual convenience of the parties. I have no doubt that each parent wishes the flexibility, as well as the assurance of care and control of these documents, to properly and promptly respond to any of Sophie’s needs where such documents are required.

[54] The simple fact is that Sophie will be soon entering her adolescent years. There will be times when she will likely wish to discuss private health issues with her mother and sister on a confidential basis. She may well wish to travel with her mother or sister or with her school on trips unrelated to Mr. Franklin’s vacation plans.

[55] In my view, it makes the most sense for Ms. ten Berge to hold all of Sophie’s identification and other documents, including but not limited to her passport, health card, birth certificate, immunization record, social insurance number card, blood type card, if any, and any hospital records card.

[56] Ms. ten Berge shall provide Mr. Franklin with a notarial copy of Sophie’s health card, immunization record, blood type card, if any, and any hospital card should an issue arise regarding Sophie’s health when she is in his care. Ms. ten Berge shall also provide Mr. Franklin with a copy of Sophie’s birth certificate. Otherwise, Mr. Franklin shall provide Ms. ten Berge with thirty days’ notice of any intended trip he plans to take with Sophie outside Ontario where Sophie’s passport may be required, along with departure dates and modes of travel, flight information if air travel is involved, destination, accommodation, contact numbers and dates of return. Ms. ten Berge shall provide Mr. Franklin with Sophie’s original passport within seven days of receiving that notice. Mr. Franklin shall return Sophie’s passport to Ms. ten Berge within one week of Sophie’s return from that trip, or the first exchange date for Sophie, whichever comes first.

Sophie’s Trust Account

[57] Despite the noble intentions of the parties to open a trust account for Sophie’s benefit, the trust account and its proceeds have had a tortured history.

[58] There is approximately $8,200 currently on deposit in Sophie’s trust account. Mr. Franklin and Ms. ten Berge are both trustees on this account, and both must sign for any withdrawal from it. Mr. Franklin seeks an order that these funds be paid out in equal shares to himself and to Ms. ten Berge. I presume he intends for each of them to then hold those funds in trust for Sophie.

[59] Mr. Franklin points to the fact that Ms. ten Berge withdrew most of the funds from the trust account after the date of separation. She did not disclose this withdrawal to Mr. Franklin until he learned of it from the bank in January 2015.

[60] Mr. Franklin brought an action against DUCA for allowing Ms. ten Berge to withdraw these funds without his signature, resulting in a settlement of $500 to Mr. Franklin. Mr. Franklin required Ms. ten Berge to return the trust funds to the trust account even though she had deposited those funds in an RESP.

[61] Ms. ten Berge resists this order. Ms. ten Berge testified that she is concerned Mr. Franklin will not hold those funds for Sophie but instead apply those funds to debt, or will otherwise use those funds for his own benefit.

[62] Ms. ten Berge asks the court for an order removing Mr. Franklin as a trustee from Sophie’s trust account, and an order allowing her to transfer the funds from Sophie’s trust account to an RESP, less $3,125.78 that she must repay to Revenue Canada because of the over contribution she made to a previous RESP. She states that she can be trusted to save money for Sophie’s education as she saved enough money to put Carly through her post-secondary education. Ms. ten Berge states that she wants Sophie to have the same opportunity to access funds for her education that she provided to Carly.

[63] I have considered all of the evidence, including the fact that Mr. Franklin required Ms. ten Berge to return the funds taken from Sophie’s trust account to fund the RESP back to Sophie’s trust account where he and Ms. ten Berge are both trustees. I have also taken into consideration the stated intention of Ms. ten Berge to preserve those funds and save further amounts for Sophie’s education. I have come to the conclusion that the just result would be to hold the parties to their original agreement to be the trustees of Sophie’s trust account and to require both signatures for any withdrawal from that account. This solution will eliminate the danger of either party from misapplying those funds for their own benefit, and preserves the funds for the intended purpose. There is nothing to stop either party from opening a new account independent of the other party in order to save for Sophie’s education from this time forward.

[64] I do not know the real reason why Ms. ten Berge made the overpayment she did resulting in the liability to Canada Revenue Agency. However, the funds in Sophie’s trust account should not be used to pay that liability.

[65] Both names of Mr. Franklin and Ms. ten Berge shall therefore remain on the trust account, and they shall both remain trustees until further order of the court.

Child Tax Credit

[66] I agree with Mr. Franklin’s proposal that the right to claim the Child Tax Credit for Sophie should alternate yearly between himself and Ms. ten Berge. Therefore, Mr. Franklin shall have the right to claim Sophie as a dependant and to receive any tax receipts or benefits including the Child Tax Credits for even tax years. Ms. ten Berge shall have all such rights to claim those receipts, credits and benefits for odd tax years. Commencing January 1, 2017, these rights shall extend where benefits are not already divided throughout the tax year. I understand that the parties are agreeable to this order.

[67] The parties shall split those receipts and benefits equally for 2016. This applies to those receipts and benefits with respect to the child tax credit that have not already been divided.

Net Family Property

Date of Marriage

[68] On the date of marriage, Mr. Franklin owned a car with a value of $8,000. His RRSPs and bank accounts having a value of $5,433.68. Mr. Franklin’s assets on the date of marriage therefore had a total value of $13,433.68.

[69] Mr. Franklin is entitled to claim a notional expense of 15 percent of his RRSP in the amount of $810 should that have been liquidated. Mr. Franklin had a greater debt of $40,000 prior to marriage which was incorporated into the refinanced mortgage against the home owned by Ms. ten Berge. This refinancing occurred before the date of marriage. Mr. Franklin’s debt was technically part of the refinanced mortgage against the property owned by Ms. ten Berge. The refinanced mortgage is therefore to be counted against the values of assets and liabilities owned or owed by Ms. ten Berge under Section 4 of the Family Law Act. This liability of $810 for the notional disposition of Mr. Franklin’s RRSP was his only debt deductible from his date of marriage assets.

[70] Ms. ten Berge owned the home on Coniston Avenue on the date of marriage, which had a fair market value of $241,000. She also owned household items valued at approximately $5,000, a car worth approximately $4,000 and RRSP bank accounts adding up to $45,352.01. Ms. ten Berge therefore owned assets on the date of marriage having a value of $295,352.01.

[71] As the home on Coniston Avenue became the matrimonial home, however, the value of her assets on the date of marriage does not include the fair market value of that home. Her date of marriage assets therefore had a value of $54,352.01.

[72] Ms. ten Berge was entitled to a notional expense of 50% of her RRSP accounts in the amount of $6,802 as a deduction from the value of her assets on the date of marriage. Ms. ten Berge also owed $167,000 under the refinanced charge against the home on Coniston Avenue. Her debts on the date of marriage therefore totalled $173,341.47. Taking out all but $40,000 of the refinanced mortgage, the debts Ms. ten Berge can apply for a date of marriage calculation is reduced to $46,802.

Post-Nuptial Agreement

[73] Mr. Franklin is seeking an order to set aside the post-nuptial agreement. He seeks this amendment because he alleges that significant assets and debts were not provided or disclosed accurately by Ms. ten Berge at the time agreement was entered.

[74] In the alternative, the parties seek an order to amend the post-nuptial agreement as the parties request so that the written document accords with the agreement they reached but improperly recorded in the written agreement itself. This request is essentially a claim to rectify the post-nuptial agreement as a domestic contract. The outcome may depend upon whether rectification is appropriate under the circumstances, or under the law of contract.

[75] The terms of the post-nuptial agreement recognized that it was the intention of the parties that Ms. ten Berge retains the equity she held in the home on Coniston Avenue at the time of marriage, and the amount each party is to pay towards the refinance debt. These terms encompass a fractional ownership arrangement to Mr. Franklin that is not at all clear. The post-nuptial agreement also discusses Mr. Franklin’s personal debt of $40,000 that was added to the mortgage. This refinanced debt represented 24 percent of the total refinanced amount for which Mr. Franklin would have the obligation to pay in addition to repaying Ms. ten Berge the amount of that debt she has already paid on his behalf.

[76] The post-nuptial agreement also includes a term that any “community property acquired during the marriage” will be divided evenly on a 50/50 basis between Mr. Franklin and Ms. ten Berge.

[77] It has been held that rectification is an equitable remedy that it is within the trial judge’s exercise of discretion to grant: McLean v. McLean, 2013 ONCA 788, at para. 44. Rectification is available where the common continuing intention of the contracting parties is not reflected by the written contract between them. As Justice Weiler put it in McLean, “the question that the court must answer is whether the totality of the evidence supports the conclusion on a balance of probabilities that an agreement was in place but that an error was made in recording it.”

[78] In the case before this court, Mr. Franklin is the party seeking an amendment to the post-nuptial agreement for reasons of non-disclosure at the time it was entered. Unfortunately, the post-nuptial agreement cannot be amended because it is not capable of rectification. However, there are sufficient grounds for the post-nuptial agreement to be set aside for reasons of non-disclosure by Ms. ten Berge.

[79] The parties did not make an error in recording the terms of the agreement between them. On recording their agreement, they agreed upon facts that were wrong, such as the value of the home on Coniston Avenue, that they did not know were wrong or misinformed at the time. Other terms contained details that were unclear and ambiguous. They were careless about obtaining or confirming information on which they ostensibly arranged their financial affairs, their legal rights and obligations. All of these factual underpinnings, terms and arrangements were then recorded those terms along with their inherent frailties.

[80] In my view, where a contract requires substantial revision to correct the the factual basis for the contract or the intended effect of the contract to the extent that there was no meeting of the minds, the issue is not whether the contract can be rectified, but whether there was a contract that was formed in the first place. That is what has occurred here.

[81] If the post-nuptial agreement was a marriage contract under the Family Law Act, and not capable of rectification, it would be subject to being set aside under Section 56(4) of the Family Law Act because of inadequate or no disclosure:

(4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract. R.S.O. 1990, c. F.3, s. 56 (4) .

[82] The court in Montreuil v. Montreuil, [1999] O.J. 4450 examined a situation where a husband had not made full and proper disclosure to a wife prior to entering a marriage contract. At paragraph 102 in Montreuil, the court recognized that although both parties have a positive duty to disclose assets and liabilities existing at the time of contracting, the court has the discretion about whether a domestic contract should be set aside for lack of disclosure, and that the exercise of that discretion depends on the facts of each case. There, the court exercised the discretion to set aside the contract under Section 56(4) because the wife did not have the required level of information from the husband regarding his retirement savings plans or the value of his interest in an operating business.

[83] In LeVan v. LeVan, 2008 ONCA 388, the court held that where non-disclosure leads to the misunderstanding of one party about the effect of the contract, that party is deprived of the opportunity to understand and appreciate what was being given up when the contract was signed. In those circumstances, there are sufficient grounds to set aside the domestic contract.

[84] It is clear from the evidence that neither party made the appropriate disclosure to the other as required by the Family Law Act before the post-nuptial agreement was signed. It is also clear from the evidence and the agreement of the parties at trial that the home on Coniston Avenue that at the time of the marriage had a value of $241,000, and not $310,000 as shown on the post-nuptial agreement.

[85] Since the post-nuptial agreement limits Mr. Franklin’s rights as they relate to the matrimonial home, it cannot be considered a marriage agreement under Section 52 of the Family Law Act. An order will go to set aside the post-nuptial agreement accordingly.

[86] Ms. ten Berge opposed Mr. Franklin’s position on the post-nuptial agreement because under its terms her equity in the home on Coniston Avenue was recognized and preserved for her benefit as of the date of marriage. Even though the post-nuptial agreement as a domestic contract is set aside, the parties each testified that Ms. ten Berge was entitled to the preservation and benefit of that interest. This evidence constitutes a waiver of Mr. Franklin’s rights to the home on Coniston Avenue as a matter of evidence rather than a term of a contractual document. This waiver must be taken into account in the post-separation adjustments rather than as part of the net family property calculation.

[87] I also find that this evidence is sufficient to rebut any presumption of a resulting trust to the home on Coniston Avenue in Mr. Franklin’s favor under the Family Law Act, or otherwise at law.

Date of Separation

[88] On the date of separation, Mr. Franklin owed assets having a value of $20,544.89, excluding any claim for an interest in the home on Coniston Avenue. Those assets and their values were:

Residual Value from a previous vehicle in a 2013 Nissan Rogue: $2,500.00 DUCA Credit Union Savings Account (1/2): $1,108.76 DUCA Credit Union Savings Account (1/2): $ 200.35 Membership Share in DUCA Credit Union: $ 25.00 Chequing at PC Financial: $ 275.01 RRSP $11,002.09 RRSP $ 5,433.68 Total: $20,544.89

[89] Mr. Franklin’s debts as of the date of separation amounted to $15,730.96, excluding any amount attributable to him for the mortgage against the home on Coniston Avenue. Those debts were as follows:

1/2 of the amount outstanding on the joint line of credit at DUCA Credit Union ($23,721 x 1/2) $11,860.60 Amount borrowed from Sophie’s trust account: $ 2,000.00 Disposition cost on his RRSP (20%) $ 1,870.36 Total: $15,730.96

[90] In contrast, Ms. ten Berge owned assets at the date of separation, including the matrimonial home on Coniston Avenue registered in her name, having a value of $483,080.32. Those assets were:

Matrimonial Home: $ 372,000 2008 Nissan Sentra: $ 2,500 Home furnishings: $ $3,000 Savings account at DUCA Credit Union $ 432 Joint Savings Account at DUCA (50 percent) $ 1,108 Joint Savings Account at DUCA (50 percent) $ 200 Membership Share in DUCA $ 25 RRSP $ 9,766 RRSP at QTrade $ 84,048 Total: $ 473,080

[91] Ms. ten Berge had the following debts and other liabilities on the date of separation totalling $106,260:

Outstanding balance under the mortgage: $ 73,637 The joint line of credit at DUCA Credit Union (50%) $ 11,860 Amount owning to Sophie’s account: $ 2,000 Notional disposition costs for the RRSP: $ 16,809 Notional disposition costs for the other RRSP (20%) $ 1,953 Total: $106,260

[92] There is also an issue with respect to a loan of $12,000 from Ms. ten Berge to Chris Morrison, the former spouse of Ms. ten Berge. This loan is actually made up of arrears for child support and Section 7 expenses, presumably for Carly. The last payment of $400 that Mr. Morrison made occurred on December 21, 2012. Ms. ten Berge testified that Mr. Morrison has been unemployed for quite a few years and is currently on welfare. I assess the prospect of Mr. Morrison paying the balance owing to Ms. ten Berge on this indebtedness to range from unlikely to remote. I have therefore not counted this loan as a collectible debt in the calculation of her net family property.

[93] I consider the jewellery that Ms. ten Berge owned as of the date of separation to have been articles of personal property she had either acquired before the date of marriage, or received as gifts during the marriage. They are therefore exempt from the net family property calculation by virtue of Section 4(2) or Section 5(1) of the Family Law Act. I have not included any of the jewellery owned by Ms. ten Berge on the date of separation in her net family property calculation.

[94] Even though a loan was promised by Ms. ten Berge to her mother for the 2008 Nissan Sentra, that loan was forgiven in the course of the marriage. Therefore, the Nissan Sentra was a gift from Ms. ten Berge’s mother and is exempt from the net family property calculation under Section 4(2) of the Family Law Act.

[95] Mr. Franklin states that Ms. ten Berge did not include the cash surrender value of an insurance policy that she holds jointly with her sister on the lives of their parents on a last to die basis. This policy was purchased in 1992, long before the parties were married, and had a cash surrender value of approximately $11,000 in 2015. There was insufficient evidence before the court about this policy and its value to include any value for this policy in the net family property of Ms. ten Berge. No evidence was given about on the terms of the policy, the extent of growth, if any, to the cash surrender value during the marriage, or the ownership or entitlement to the cash surrender value between Ms. ten Berge and her sister.

[96] Although there was mention at trial that Ms. ten Berge held a pension at a past or present employer, there was little if any evidence given about this pension, let alone a valuation of the pension as of the date of separation, for me to include that pension into the calculation of her net family property. Any value for this pension is excluded from consideration of the net family property of Ms. ten Berge not for any reason under the Family Law Act, but for lack of proof.

[97] Upon considering the value of the assets held by each of the parties and their respective debts and liabilities as of the date of separation, less their assets as of the date of marriage, I find the net family property of each Mr. Franklin and Ms. ten Berge on the date of separation to be:

Valuation Date (VD)
Total Value of Assets on VD	ten berge	franklin
ASSETS
Matrimonial Home	372,000
Bank accounts and savings, RRSP accounts securities and pension	113,580	18,044.89
Car	2,500	2,500
Value of Property Owned on VD	473,080	20,545
Total Value of Debts & Liabilities on VD
Total: Value of Debts & Liabilities	106,260	15,730
Net value of Property Owned on VD	366,820	4,815
Date of Marriage (DM)
net Value of property & Debts on DM
Assets
Value of Property Owned on DM	54,352	13,434
Total Value of Debts and Liabilities on DM
Debts & other liabilities
Total: Value of Debts & Liabilities	46,802	810
Excluded Property
Net value of Property Owned on DM	7,550	12,624
TOTALS VD & DM
Net Value of Property Owned on the VD	366,820	4,815
Net Value of Property Owned on the DM	7,550	12,624
NET FAMILY PROPERTY	359,270	(7,809) = 0

[98] Therefore, Ms. ten Berge would owe $179,634 to Mr. Franklin as an equalization payment before acknowledgements made during trial and post-separation adjustments are applied.

Acknowledgements at Trial and Post-Separation Adjustments

[99] In his evidence, Mr. Franklin acknowledged that Ms. ten Berge is entitled to the preservation and benefit of her equity in the home on Coniston Avenue prior to marriage. According to the evidence, this amount would be calculated using the fair market value of the property at the date of marriage, less the amount owing under the mortgage prior to refinancing. The true fair market value of the home on Coniston Avenue being $241,000, less the pre-financing balance of the mortgage of $105,000, provides Ms. ten Berge with a credit of $136,000. This deduction should be applied to bring the net family property to Ms. ten Berge down from $359,270 to $233,270. The equalization payment otherwise payable to Mr. Franklin is correspondingly becomes $111,635.

[100] The parties have also agreed in evidence that Mr. Franklin shall be responsible for the balance attributable to the $40,000 of pre-marriage debt that was incorporated into the re-financed mortgage against the home on Coniston Avenue. Mr. Franklin acknowledged this debt when giving his evidence. This debt is also evidenced as Mr. Franklin’s personal obligation by the promissory note dated June 10, 2003 marked as Exhibit 16.

[101] According to the evidence at trial, the component of the charge against the home on Coniston Avenue representing Mr. Franklin’s $40,000 debt was paid down to approximately $28,836 as of the date of separation. Since Ms. ten Berge must pay the charge against her home, she should recover that amount from Mr. Franklin in the calculation of the equalization payment. I am therefore giving her a credit of $28,836 against any amount owing to Mr. Franklin.

[102] It is also conceded by Mr. Franklin that he withdrew $20,000 from the joint line of credit after separation for his own benefit. He must repay that $20,000 to DUCA Credit Union to reduce the amount of standing against the joint line of credit. Rather than requiring Ms. ten Berge to pay that amount and to then seek recovery against Mr. Franklin, I am giving her a credit of $20,000 against the equalization payment she must pay Mr. Franklin, which leaves the line of credit her responsibility to pay.

[103] I also heard evidence that Ms. ten Berge retained all funds in the 2 joint savings accounts at DUCA Credit Union on the date of separation. Split equally, each of the parties was entitled to $1,309 held in those accounts. I therefore add $1,309 onto the amount that Ms. ten Berge shall pay Mr. Franklin to compensate him for that retention.

[104] I have not included the cost of the wedding the parties celebrated in 2003 in the net family property calculation of either party. That $12,000 expense was absorbed into the fabric of their family finances. However, Ms. ten Berge seeks recovery of half that amount from Mr. Franklin. Mr. Franklin concedes that this claim “seems accurate”. Therefore, Mr. Franklin shall repay Ms. ten Berge $6,000, which shall take the form of a credit to her against the equalization payment she is to pay to him.

[105] Mr. Franklin has claimed recovery for the payments toward the mortgage against title to the home on Coniston Avenue since the date of separation. I am not granting him a repayment of those funds. Amounts he paid while still living in the home on Coniston Avenue after the data separation can be counted as rent towards his accommodation at that address. Amounts paid after he moved out can be attributed to the carrying costs of that portion of the pre-marriage debt that I have found to be his personal responsibility, as well as to those funds he arbitrarily withdrew from the joint line of credit after separation.

[106] Once all of these acknowledgements at trial and post-separation adjustments are applied, the amount that Ms. ten Berge must pay to Mr. Franklin for an equalization payment is reduced to $58,108. This payment is ordered instead of any transfer of funds from an RRSP that the parties may have agreed Ms. ten Berge was to make, unless that transfer is made to satisfy this payment in whole or in part.

[107] Mr. Franklin has no interest in the home or property at 18 Coniston Avenue, and therefore no claim to any increase in the fair market value of the home on Coniston Avenue. Any increase in the value of the home on Coniston Avenue during the marriage is captured by part of the equalization payment that Ms. ten Berge must pay to Mr. Franklin up to the date of separation.

CONCLUSION

[108] I therefore make the following orders:

1. Greg Franklin and Sonja ten Berge shall have joint custody of Sophie ten Berge Franklin. Day-today decisions are made by the parent who is caring for Sophie at the time those decisions are required.

2. Final decisions in health care shall be discussed via email by both parents. If no agreement is reached, Sonja ten Berge shall make final decisions. Communication should be brief and directly related to the needs of Sophie.

3. Final decisions regarding Education shall be discussed via email by both parents ad in the absence of mutual agreement, then Greg Franklin shall make final decisions.

4. The parenting schedule that has been in place since June 26, 2014 shall continue: The parties shall share parenting for to Sophie equally, starting with Friday at 5:00 p.m. to the following Friday at 5:00 p.m. Every Tuesday from 6:30 p.m. to 8:00 p.m. Sophie is to visit with the parent with whom she is not with on that week. A third party is to be present at exchanges. Greg Franklin shall not enter the foyer of Sonja ten Berge’s home when exchanges occur at that home.

5. Thanksgiving Monday: In even years, Sophie is to be with Sonja ten Berge from 10:00 a.m. to 6:00 p.m.

6. Christmas Holidays: Sophie shall spend equal time with Sonja ten Berge and Greg Franklin. In odd years, Sophie shall be with Greg Franklin for the first half of the holiday, beginning the last day of school until the mid-point of the break. In odd years, on Christmas day, Sophie shall be with Sonja ten Berge Franklin from 1:00 p.m. until 7:00 p.m. In even years, Sophie shall be with Sonja ten Berge for the first half of the holiday, beginning the last day of school before Christmas until the mid-point of the break. On Christmas Day, in even years, Sophie shall be with Greg Franklin from 1:00 p.m. to 7:00 p.m.

7. Family Day: In even years, Sophie shall spend with Greg Franklin from 10:00 a.m. to 6:00 p.m.

8. March Break with Sophie shall be shared equally. In odd years, Sophie shall be with Sonja ten Berge from Friday at 5:00 p.m. until the following Sunday at 6:00 p.m. In even years, Sophie will be with Greg Franklin from Friday at 5:00 p.m. to the following Sunday at 6:00 p.m.

9. Summer Holidays: Sophie shall spend two weeks in July and two weeks in August with each parent. Greg Franklin to provide his weeks of choice for his weeks with Sophie to Sonja ten Berge by April 1 st of each year.

10. Easter Weekend: In even years, Sophie shall be with Greg Franklin from Thursday at 5:00 p.m. to Saturday at 6:00 p.m. and with Sonja en Berge from Saturday at 6:00 p.m. for the duration of the weekend. In odd years, Sophie shall be with Sonja ten Berge from Saturday at 6:00 p.m. to Monday at 6:00 p.m.

11. Mother’s Day: Sophie shall spend Mother’s Day each year with Sonja ten Berge from 10:00 a.m. to 6:00 p.m.

12. Father’s Day: Sophie shall spend Father’s Day each year with Greg Franklin from 10:00 a.m. to 6:00 p.m.

13. Sophie may spend time with, or stay with the other parent according to any other arrangement as agreed upon by Greg Franklin and Sonja ten Berge in writing.

14. Greg Franklin shall attend counselling to address the impact of separation on children; to address his feelings associated with the separation/divorce; and to address co-parenting.

15. Sonja ten Berge shall attend for an assessment for alcohol addiction and shall follow through with recommendations.

16. Greg Franklin and Sonja ten Berge shall each follow through with any recommendations made by Peel CAS.

17. Communication between Greg Franklin and Sonja ten Berge shall be by email. Communications are to be brief and child focused.

18. Exchanges shall take place with a third party present or at the school. If a third party is unavailable at exchanges, Sophie may be dropped off at 18 Coniston Avenue in Brampton and Greg Franklin can watch from his car until she enters the home. Sophie can walk over to his car when he picks her up. Greg Franklin is not to enter the home of Sonja ten Berge at exchanges.

19. Ms. ten Berge shall pay Mr. Franklin set off child support for Sophie in the amount of $84 a month.

20. Any claim by Mr. Franklin for retroactive payment of Section 7 expenses to-date is dismissed, on consent.

21. I further order that each party shall disclose a copy of their income tax return with attachments, and related assessment by May 30 each year to the other party. If either party is making more or less than five percent than the annual income that he or she made in the year immediately preceding that year, the parties shall agree to a change in the setoff amount based on the table amounts for child support payable while Sophie remains a child of the marriage within the meaning of the Divorce Act. The party claiming the change in child support shall obtain an order on consent using a Form 14B motion within 30 days of receiving the information on which to determine whether a change of support should be made.

22. Ms. ten Berge shall hold all of Sophie’s identification and other documents, including but not limited to her passport, health card, birth certificate, immunization record, social insurance number card, blood type card, if any, and any hospital records card. Ms. ten Berge shall provide Mr. Franklin with a material copy of Sophie’s health card, immunization record, blood type card, if any, and any hospital card should an issue arise regarding Sophie’s health when she is in his care. Ms. ten Berge shall also provide Mr. Franklin with a copy of Sophie’s birth certificate.

23. Ms. ten Berge shall provide Mr. Franklin with a notarial copy of Sophie’s health card, immunization record, blood type card, if any, and any hospital card should an issue arise regarding Sophie’s health when she is in his care. Ms. ten Berge shall also provide Mr. Franklin with a copy of Sophie’s birth certificate. Otherwise, Mr. Franklin shall provide Ms. ten Berge with thirty days’ notice of any intended trip he plans to take with Sophie outside Ontario where Sophie’s passport may be required, along with departure dates and modes of travel, flight information if air travel is involved, destination, accommodation, contact numbers and dates of return. Ms. ten Berge shall provide Mr. Franklin with Sophie’s original passport within seven days of receiving that notice. Mr. Franklin shall return Sophie’s passport to Ms. ten Berge within one week of Sophie’s return from that trip, or the first exchange date for Sophie, whichever comes first.

24. The claim of each party to alter or close Sophie’s trust account is dismissed. The parties shall both remain trustees of Sophie’s trust account, and both signatures shall be required for any withdrawal from that account until further order.

25. Mr. Franklin shall have the right to claim Sophie as a dependant and to be in receipt of any tax receipts or benefits including the Child Tax Credits for even tax years. Ms. ten Berge shall have all such rights to claim those receipts, credits and benefits for odd tax years. These rights extend where benefits are not already divided throughout the tax year.

26. Ms. ten Berge shall pay an equalization payment to Mr. Franklin, adjusted for trial acknowledgements and post-separation adjustments, in the net amount of $58,108.

27. Mr. Franklin is entitled to prejudgment interest on $58,108 pursuant to the Courts of Justice Act since September 30, 2013.

28. The parties are granted a divorce order, effective January 14, 2016.

29. The claim of each party for spousal support is dismissed, on consent.

30. Support Deduction Order to issue.

[109] The parties are encouraged to settle any costs either may claim against the other. If one party intends to seek costs, that party may serve the other party and send written submissions consisting of no more than two typewritten pages to the court by June 30, 2016. The responding party shall then have until July 10, 2016 to serve and file written submissions consisting of no more than two typewritten pages. There will be no written submissions in reply without leave. All written submissions may be made by fax to my assistant, Mr. Christopher Charles at 905-456-4834 at the Superior Court of Justice in Brampton.

Justice M.G. Emery Released: June 21, 2016

COURT FILE NO.: FS-14-80414 DATE: 2016 06 21 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Gregory John Franklin Applicant - and – Sonja Joy ten Berge Respondent REASONS FOR JUDGMENT Justice M.G. Emery Released: June 21, 2016