M.A. v. N.M., 2017 ONSC 2112
CITATION: M.A. v. N.M., 2017 ONSC 2112
COURT FILE NO.: FS-14-19612
DATE: 20170421
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.A.
Applicant
- and -
N.M.
Respondent
OFFICE OF THE CHILDREN'S LAWYER
Respondent
COUNSEL:
Christine Vanderschoot, for the Applicant
Jenny Friedland & Meghan Hoffman, for the Respondent, N.M.
Karen Lindsay-Skynner, for the Respondent, Office of the Children’s Lawyer
HEARD: Oct 17, 18, 21, 24, 25, 26, 27, 28, 31, Nov 1, 2, 7, 8, 9, 10, 18, 2016
HOOD J.
REASONS FOR DECISION
Nature of Proceeding
[1] The parties, M.A. (“M.A.”) and N.M. (“N.M.”) met in August 2006. N.M. had two boys, D.G.M., born […], 2001, who was then 5 years old and M.G.M., born […], 2002, who was then 3 years old, almost 4. M.A. was 38 years old. N.M. was 41.
[2] N.M. and M.A. started dating soon after. In February, 2008 they began living together. They never married. On July, 2008 M.A. gave birth to twin girls, Z.I.M. and D.A.M.. N.M. and M.A. separated as a couple, according to N.M., in December, 2013. According to M.A., they separated in July, 2014.
[3] M.A. commenced her application on August 13, 2014. Since then the parties have engaged in high conflict litigation, and have been incapable of reaching any final resolution on any of the issues between them, other than one issue which was resolved on the last day of trial.
[4] On January 27, 2015, on consent, Justice Horkins referred this matter to the Office of the Children’s Lawyer (“OCL”) for an investigation and report under s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The OCL, rather than proceeding with a section 112 investigation, decided to proceed under s. 89 of the Courts of Justice Act, to appoint a lawyer for the four children and provide the court with the children’s views and preferences. The process for this involvement of the OCL and the views and preferences given led to more conflict between the parties, and among the parties, particularly N.M., and the OCL.
[5] Because of the views and preferences of M.G.M. and D.G.M., who are now respectively 14 and 15, their custody and access are no longer an issue for determination by the court. They wish to live with N.M. with no access by M.A. in D.G.M.'s case and with very limited access by M.A. in M.G.M.'s case.
Issues
[6] What remains at issue between M.A. and N.M. are the following:
(a) how Z.I.M. and D.A.M. are to be parented including custody and access;
(b) how yearly holidays and summer holidays are to be dealt with;
(c) how M., the dog, is to be shared;
(d) child support including the sharing of section 7 expenses;
(e) spousal support for M.A. from N.M.;
(f) M.A.’s claim to a portion of the net proceeds from the sale of the family residence; and
(g) M.A.’s claim to the proceeds of bank accounts as at August, 2014.
[7] There was only one issue agreed to by the parties and it was only reached following closing submissions at trial. The parties agreed that N.M. was to be declared a parent to Z.I.M. and D.A.M. pursuant to s. 4(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.
Facts and Chronology
[8] In August, 2006 M.A. met M.G.M. and D.G.M. at a camp ground that N.M. and her boys were visiting. Respectively, M.G.M. and D.G.M. were almost 4 and 5 years old. As M.A. put it, she was smitten with M.G.M.. She only spoke briefly to D.G.M.. She did not meet N.M.. Soon thereafter M.A. and N.M. began communicating by email.
[9] At the time M.A. worked as an intensive care or ICU nurse in Calgary. N.M. is a doctor and at the time lived in Vancouver. She worked as an ICU associate and anesthetist, but wanted to become an anesthesiologist, which was a specialty position requiring a three-year residency program. Prior to working in Vancouver, she had worked as a GP/anesthetist in B[…], Ontario.
[10] M.A. and N.M. started dating in September, 2006.
[11] N.M. applied for a residency position in both Vancouver and Toronto. She was turned down in Vancouver but was accepted in Toronto. She decided to take this position and moved to Toronto with D.G.M. and M.G.M. in July, 2007.
[12] On July 31, 2007 N.M. bought a house in the Beaches area of Toronto on W[…] Avenue. She paid $505,500 for the house using a mortgage loan from CIBC of $175,000 and a loan of $300,000 from her mother, A.M.. While there was no direct evidence, such as a lawyer’s trust statement or bank account statement, it was N.M.’s evidence, and there was no suggestion otherwise, that the balance of $30,500 required for the purchase came from N.M.’s own funds.
[13] M.A. and N.M. eventually decided to live together as a couple. M.A. applied to a number of hospitals in Toronto and was offered a position as an ICU nurse at T[…] General Hospital. In February, 2008 she moved to Toronto to live with N.M., D.G.M. and M.G.M. at W[…] Avenue and to start work.
[14] At the time of her move M.A. was approximately four months pregnant, both to the knowledge of N.M. and M.A.’s employer. N.M. was happy about this as she wanted a large family. M.A. developed complications with her pregnancy and in May 2008 went on medical leave with the agreement of T[…] General.
[15] M.A. had started the process of becoming pregnant through in vitro fertilization (IVF) in the spring of 2006 before she had met N.M.. N.M. was aware that M.A. was trying IVF when they started dating.
[16] The twins, Z.I.M. and D.A.M., were born in […], 2008. N.M. was present for their birth. N.M. has been a parent to the twins since their birth. Similarly, M.A. has been a parent to D.G.M. and M.G.M. since February, 2008 when M.A. and N.M. started living together.
[17] The future plan was that after N.M. finished her three-year residency sometime in 2010, they would then live for two years, most likely in rural Ontario, so that N.M. could fulfil her Return of Service contract with the Ontario government. The Return of Service contract provided that in return for the government paying for her residency income, she would work in an underserviced area of Ontario once she had obtained her specialty. Thereafter, they would move out west.
[18] Following the birth of Z.I.M. and D.A.M., M.A. took a year’s maternity leave. When the twins were born, D.G.M. was 7 years of age and M.G.M. almost 6.
[19] The parties admitted in evidence that they both were parents to all four children. It was clear from the evidence that they both love all four children equally. M.A. has had issues with D.G.M. but it was obvious on the evidence, and not challenged by N.M., that M.A. loves him and hopes that while they presently are estranged he will one day let her be part of his life.
[20] There was a substantial amount of evidence from both sides as to the problems between M.A. and D.G.M.. Some of the problems escalated to confrontational events, with some involving the police. There was also a substantial amount of evidence about why the problems may have arisen, including the differences in parenting philosophy between M.A. and N.M., and D.G.M.’s possible emotional or personality issues.
[21] I fail to see how any of this, at the end of the day, matters considering what the issues are between the parties. It seemed to me that a lot of the evidence at trial was given, not for the purpose of assisting me in deciding the issues, both economic and parental, but more perhaps as a cathartic process and for each side to tell her story, not necessarily for the assistance of the court, but to try to explain their past conduct to the other side and to cast blame as to why the relationship ended and who was wrong or the better parent.
[22] For example, the problems between M.A. and D.G.M. and D.G.M.'s difficulties or behavior at home were not relevant to custody or access with respect to D.G.M.. D.G.M. is now 15 and his views and preferences have been made known through the OCL. M.A. has accepted D.G.M.’s wishes with the hope, as stated previously, that one day they may have a relationship as friends or even as parent and child. Nor were these problems relevant to M.G.M.’s situation or relevant to D.A.M. and Z.I.M..
[23] Equally, D.G.M.’s issues at school or with classmates were not relevant. This evidence was not used in argument by M.A. to support a suggestion that D.G.M. should not be in the same house with D.A.M. or Z.I.M.. To the contrary, M.A. recognized that it was appropriate for the children to be together as siblings. The only issue with respect to this was that Z.I.M. and D.A.M. would not be together with D.G.M. and M.G.M. when the twins were with M.A. because of D.G.M. and M.G.M.'s preferences. The four children are much like any other four siblings. They have their different personalities which, sometimes leads to minor sibling conflict, but ultimately they love each other and want to spend time together. Their views and preferences as made known to the OCL substantiate this.
[24] With respect to M.G.M. the problems between him and M.A. are also not relevant for the same reasons. M.G.M. is prepared to have limited access with M.A. and is prepared to try to see if their relationship can be repaired. But this is M.G.M.'s choice and if he wishes to utilize Dr. Matteo Renelli to help facilitate this, it is his choice alone, no one else's and will not be ordered by the court.
[25] Much of the past was revisited and dredged up by the parties, especially M.A.. Much of her evidence was given to try to provide some explanation as to why there was a rift between her and D.G.M., and to a lesser extent M.G.M., and how she was justified in her parenting, especially of D.G.M.. As I have already indicated, this to me was not relevant because the rift is a fact. M.A. hopes that one day this rift will be bridged. Only time will tell but the reason for the rift is not relevant to the remaining issues of custody and access of Z.I.M. and D.A.M., support, the division of assets and holidays.
[26] Nor was the casting of blame for the breakdown in the relationship between M.A. and N.M. and for the past parenting issues helpful.
[27] Returning to the chronology, it was M.A.'s evidence that she and N.M. agreed that once her maternity leave was up M.A. would stay at home to look after the children and the home. N.M. says this was never agreed to. She wanted M.A. to return to work and for them to hire a nanny. She alleges that M.A. agreed to this but never followed through.
[28] Whatever may or may not have been agreed to, the reality is that, from May, 2008 when she went on sick leave until the spring of 2014, when she returned to work on a part time basis, M.A. stayed at home as the primary caregiver for the four children and looked after the home, other than some temporary work in order to keep her nursing license. M.A. believes that while N.M. was the "breadwinner” she contributed equally to the household, just in a different way.
[29] N.M. did not deny this. If N.M. wanted a different arrangement she did not insist upon it. M.A. and N.M. settled into a fairly traditional relationship where N.M. worked, the family lived off her income and M.A. generally stayed at home, took the children to school where applicable, was at home for lunch, looked after the home carrying out minor repairs and maintenance, picked up the children from school and prepared dinner. Taking the boys to and from school changed as they became older. They would try to have dinner together as a family which was sometimes made difficult by N.M.'s long work day, especially when in residency. N.M. extended the length of her residency in order to shorten her work days in order to be able to spend more time at home.
[30] In the summer of 2011 N.M. and M.A. travelled to Regina to look at a potential job for N.M.. To N.M. this was her dream job as it involved complex work and a teaching element. In the end they agreed that moving to Regina was not going to work for the family. At the same time N.M. felt that this was the beginning of the breakdown in their relationship. According to N.M. their intimacy as a couple ended that summer.
[31] From January, 2012 to March, 2014 N.M. worked at S[…] Regional Health Centre in Newmarket. N.M. was able to generate large billings as this was a regional hospital with complicated work, servicing a large number of people and with an emergency room. N.M. was also on the on-call schedule again resulting in large billings.
[32] N.M.'s income reflected this. In 2012 her line 150 income was $268,556, in 2013 was $286,764 and in 2014 was $269,748. In addition N.M. and M.A. were able to income split in these years by attributing $48,000 of N.M.'s gross income to M.A. as salary for her bookkeeping and managing of N.M.'s billings and other aspects of N.M.’s practice such as communicating with OHIP, looking after N.M.’s registrations and paying her insurance. This had been suggested by their accountant and was accepted by CRA as evidenced by the tax assessments put into evidence.
[33] N.M. earned this amount working approximately 140 days per year. She took 12 weeks of vacation per year. This is the lifestyle that N.M. and M.A. were comfortable with.
[34] In November, 2012 M.A. took a casual nursing position at T[…] General in order to keep her nursing license but for the most part remained a stay-at-home parent.
[35] There is a difference between M.A. and N.M. as to when they formally separated, December, 2013 or July, 2014. It is clear however from the evidence that there were difficulties within the family by 2013, although N.M. was of the view that they had started earlier.
[36] In June, 2013, family members, including the children started seeing Dr. Lisa Kelner, a psychotherapist, in differing combinations to discuss what was going on within the family and what could be done to assist in resolving their issues.
[37] Other than providing evidence of the timeline and chronology Dr. Kelner’s evidence was not all that helpful in assisting me with the issues before me. She, not surprisingly, had no independent recollection of her therapy sessions, her conversations with M.A. or N.M. or the children, and relied solely upon her notes, which were summaries of what she perceived to be the main points discussed. Also, as she admitted, through her sessions with M.A., N.M. and the children, she was not looking for the objective truth of what was going on but was looking at the subjective experience each of them was going through in order to lend some assistance.
[38] It was clear to N.M. that the position she had at S[…] Regional Health Centre, which had started in January, 2012, was not going to evolve into a full time permanent position and she needed to find other work.
[39] By October, 2013 separation was being discussed between N.M. and M.A., as was reconciliation. N.M. did a medical locum in Victoria, British Columbia to see what the hospital was like and to investigate whether there was an opportunity for a permanent position. In early 2014 N.M. did further locums in Cranbrook, Alberta, and Kamloops and Kimberley, British Columbia, for the same reason.
[40] M.A. acknowledges that by July, 2014 she and N.M. were through as a couple and the real issue was how they were going to move forward with the children. On July 25, 2014 M.A. and N.M. spoke and confirmed that they were finished as a couple.
[41] On July 26, 2014 N.M. told M.A. that she had been offered a four-month staff position at the K[…] hospital. In May, 2014 plans had been made that if N.M. got this job all of them, including the four children, would relocate to Kamloops. However, M.A. now told N.M. that she, Z.I.M. and D.A.M. would not be going despite the earlier plans because when the plans had been made in May, they had been a family, although in difficulty, and now that was no longer the case. In her mind they were no longer a family.
[42] Further, M.A. was of the view that if they were no longer together she would have to find work, and with only one K[…] Hospital it was simply not practical for her and N.M. to be in the same workplace. Moreover, Kamloops had a small lesbian community which would make the living conditions untenable.
[43] N.M. felt betrayed. She felt she and M.A. had a firm agreement if the Kamloops job came through, that everyone would move to Kamloops in order to keep the children together despite the fact that their personal relationship might be over. She believed that this was what they had discussed from the very beginning of their relationship in 2008 – how a family could remain intact even if the parents were separated.
[44] N.M. accepted the Kamloops position.
[45] On August 13, 2014 M.A. issued the application. It was served on N.M. just before she left for Kamloops with M.G.M.. D.G.M. was at camp and was to be picked up on the way. The three of them drove to Kamloops. M.A. stayed in Toronto with D.A.M. and Z.I.M. at W[…] Avenue. N.M. continued to pay for ongoing housing costs for W[…] Avenue consisting of the mortgage, taxes, insurance and utilities.
[46] N.M. closed the bank accounts and took $188,523 from them. M.A. took $46,558.
[47] Z.I.M. and D.A.M. visited N.M. and the boys in Kamloops at Thanksgiving. M.A. did not go. On October 15, 2014 Justice Paisley, at a case conference, not attended by N.M., ordered her to pay $7,500 in a lump sum on account of child support. He also ordered the case conference adjourned to December 8, 2014. N.M. paid the ordered child support.
[48] Nothing was resolved at the December case conference.
[49] On December 15, 2014 N.M. sold W[…] Avenue with a closing on January 30, 2015 for $776,500. The net proceeds amounted to $433,887. Of this, half or $216,943 was paid to N.M. with the other half being held in trust pending agreement or court order. Since then the parties have lived in separate rental properties in the Beaches area of Toronto.
[50] On January 27, 2015 N.M. and M.A. were able to reach an agreement which was put into an order by Justice Horkins. They agreed, on a without prejudice basis, that N.M. would return to Toronto and she and M.A. would attempt a nesting arrangement where the children would live together, and M.A. and N.M. would have access to the children on a rotating schedule. They also agreed that on a without prejudice basis N.M. would commence paying child support of $3,186 per month based upon an income of $186,000 and spousal support of $600 per month based upon the same income of $186,000 for her and $23,000 for M.A..
[51] As part of this order, and as mentioned previously, Justice Horkins referred this matter to the OCL for an investigation and report under s. 112 of the Courts of Justice Act. The OCL decided instead to proceed under section 89, to appoint a lawyer for the four children and to provide the court with the children’s views and preferences.
[52] N.M. moved back from Kamloops at the end of January, 2015. She took a leave of absence from the K[…] Hospital and began to look for work in and around Toronto. N.M. testified that she found it more difficult than before to find work and certainly not the lucrative work she had had at Southlake between 2012 and 2014. Eventually she found a position at S[…], a part of S[…] General Hospital. She also sought out privileges and locum positions at other hospitals in the GTA. In 2015 she reported $70,536 as her net income from her medical work as part of her line 150 income.
[53] In February, 2015 M.A. moved from her casual part time work at T[…] General to become a part time nurse at the same hospital. In 2015 she earned employment income of $37,032. In 2016 she became full time and she expected to earn $76,295.
[54] On May 21, 2015 Shely Polak was assigned to the M.A./N.M. file by the OCL. Ms. Polak is a social worker. She was directed to obtain the views and preferences of the children.
[55] The parties were unable to agree upon a summer schedule for 2015. As a result they each brought motions. They remained unable to agree. However, following input from the motions judge, they entered into an agreement and Justice Horkins made an order on consent on June 23, 2015.
[56] Over the next few months Ms. Polak met with N.M., M.A. and the children both together and individually. In order to avoid conflict and any suggestion of influence she conducted the children’s meetings at a local community centre or at school. She testified that it was the most difficult process she had ever been involved in as there were constant issues of who was going to bring the children and when. It was difficult to reach consensus on any of the scheduling. There were suggestions of bias, of M.A. or N.M. attempting to influence the outcome.
[57] Ms. Polak also contacted the various therapists that had been involved with this family over the years to obtain their perspectives on the children. She also spoke to teachers and administrators at the children’s schools.
[58] On September 30, 2015 Ms. Polak had a disclosure meeting with M.A. and N.M. and their respective lawyers to provide the children’s views and preferences. The upshot was that D.G.M. and M.G.M. wanted to stay with N.M.. D.G.M. wanted no contact with M.A. until she apologized to him for her past behavior. M.G.M. was prepared to have some minimal contact with M.A. but she had to initiate it. D.A.M. was happy with spending time with N.M. and the boys as well as M.A. and Z.I.M.. She wanted to spend a little more time with M.A. than with N.M.. She did not want to spend a week away from M.A. during the school year. Z.I.M.’s views were the same as D.A.M.’s.
[59] At the disclosure meeting the OCL rather than merely providing the children’s views and preferences made some recommendations as to how these views and preferences could be implemented. The fact that the recommendations were made along with the recommendations themselves were immediately challenged by N.M..
[60] I found Ms. Polak to be a credible witness and the views and preferences of D.A.M. and Z.I.M. as expressed by Ms. Polak to be reliable. She gave her evidence in a straightforward manner. In cross-examination she continued this. She was not argumentative or advancing a cause. No bias was shown. Just because she put forward a different version of the twin’s views and preferences from what N.M. believed or wanted does not make her biased. The twins’ views and preferences should be respected. By everyone’s evidence the twins are intelligent, thoughtful and empathetic. Their views and preferences seemed reasonable. They were not so drastic as to give me pause as to their veracity.
[61] During Ms. Polak’s cross-examination, in response to the questions asked of her by both parties, her evidence began to delve into the realm of expert opinion evidence without having been qualified to give such evidence. For example, she gave evidence about the weighing of sibling relationships versus parental relationships and which should have primacy. I have ignored any evidence such as this in considering what is in the best interests of the children and taking into account the children’s views and preferences.
[62] On October 20, 2015 N.M. was offered a position at the K[…] Hospital where she had worked previously. She had until November 19, 2015 to accept the position. She wanted to take the position and brought a motion seeking an order that she be permitted to move to Kamloops with all four children.
[63] The motion was heard by Justice Moore over two days with viva voce evidence. On November 19, 2015 he dismissed N.M.’s motion.
[64] N.M. remained in Toronto and worked primarily at S[…]. At the time of trial she gave evidence that she expected to be able to earn $160,000, net for 2016 from employment there with some minimal work elsewhere at the hospitals in the GTA where she has privileges.
[65] Despite having an order from 2015 as to the summer schedule M.A. and N.M. remained unable to agree upon a summer schedule for 2016 for the twins. Justice Corbett made orders on May 20, 2016 and June 6, 2016 because the parties could not agree. Following the conclusion of the trial, Justice Corbett ordered a Christmas schedule for 2016 for the twins because the parties could not agree. He split the Christmas holidays 50/50. The twins were with N.M. from the end of school, which was December 23, 2016 until 1:00 p.m. on December 31, 2016, and the twins were with M.A. from then until they returned to school, which I understand was on January 9, 2017.
[66] M.A. and N.M. seem unable to agree upon the simplest of things. Their evidence was filled with examples. The summer schedule and holidays are just one example. Each took the position that the other was unreasonable. Their inability to cooperate or compromise is sad. They have gone through counsellors and mediators without success. The court has tried to assist them along the way, with multiple case conferences and settlement conferences, also without success. They have become entrenched. While both parties have professed to have only the best interests of their children in mind, their actions belied this. At the end of it all, they have hurt, not only themselves, both emotionally and financially, but their children as well. Despite how much each of them professes to try not to involve the children, especially Z.I.M. and D.A.M., all of the children have been exposed and continue to be exposed to both the open conflict and the more subliminal conflict, which has been evident to me, from the testimony given.
Custody and Access
[67] N.M. seeks sole custody of D.G.M. and M.G.M. and joint custody of D.A.M. and Z.I.M.. She asks that her decision prevail with respect to any major decisions for D.A.M. and Z.I.M.. D.G.M. and M.G.M. are to reside with her and to spend time with M.A. as they see fit. She asks that Z.I.M. and D.A.M. reside equally with her and M.A. on a week-on week-off basis.
[68] M.A. agrees that N.M. should have custody of D.G.M. and M.G.M. and that they are to reside with N.M.. She agrees that it will be up to D.G.M. and M.G.M. to determine whether she will have access and the nature and extent of it. M.A. asks for custody of D.A.M. and Z.I.M.. She asks that she have primary residence of the twins and that her decision prevail with respect to any major decisions for them. She proposes a regular residence schedule which has the twins spending slightly more time with her.
[69] I agree that it is in the best interest of D.G.M. and M.G.M. for N.M. to have custody of them and for their primary residence to be with N.M. with access by M.A. as they determine.
[70] N.M. is to keep M.A. informed as to their schooling, to provide their report cards and to provide her with ongoing up-to-date contact information for the schools. Anything that the school shares with N.M. is to be provided to M.A.. N.M. is also to provide M.A. with any health-related information. School and health decisions with respect to M.G.M. and D.G.M. are to be made ultimately by N.M. alone but following consultation with M.A.. What is to be shared beyond school and health is up to N.M.. Everyday, day-to-day decisions are to be made by N.M. without consultation with M.A..
[71] Once M.A. has been provided with the information she should refrain from becoming involved unless N.M. specifically makes a request. Of course, if either D.G.M. or M.G.M. wishes to have contact with M.A. they are free to do so. They are free to set the limits or parameters of that contact and to provide whatever information they wish. Whether they have contact with M.A. is for them to decide. I am not prepared to order that M.G.M. see Dr. Renelli. That is up to him and N.M.. N.M. however shall encourage D.G.M. and M.G.M. to reestablish a relationship with M.A., which may include using the services of Dr. Renelli.
[72] In considering the questions of custody and access for D.A.M. and Z.I.M. I have considered s. 24(2) and the factors contained in (a) to (h) along with s. 24(3) of the Children’s Law Reform Act. The provisions of s. 24(4) do not apply in the circumstances of this case.
[73] Both M.A. and N.M. felt it important for the four children to have maximum contact. The children wanted this too. Ms. Polak gave evidence that D.G.M. felt the twins were catered to and both boys said the twins could be annoying. The twins in turn, were sometimes concerned that the boys, and perhaps more so D.G.M., were a little rough. This is typical between siblings considering their differences in age. None of it means that they should not have maximum contact.
[74] The current schedule of 2 - 2 - 3 allows the twins equal time with M.A. and N.M. and 7 days of contact every two weeks amongst the four children. However, it is problematic due to the 6 transitions involved every two weeks. It also does not coincide with D.A.M.’s and Z.I.M.’s preferences of spending slightly more time with M.A..
[75] For some reason the exchanges between M.A. and N.M. with respect to D.A.M. and Z.I.M. created difficulty and conflict. M.A. and N.M. agree on this point. For example, there are issues of timing and lateness, whether they have the proper attire, whether they have their toys, and whether they are washed and brushed and ready to go to school. The issues appear to arise out of the different parenting philosophies and personalities of N.M. and M.A.. M.A. appears to be more structured, believes in consequences, sometimes more so out of principle than rationality, and is overprotective. N.M. is more laissez-faire but only until she wants some structure for her own purposes. Ultimately, each is very controlling in her own way and wants things her own way with little ability to compromise. Control became an ultimate goal in and of itself.
[76] However, whatever the reason for the exchange problems, they do exist and the parties appear unable to resolve them. It was not necessarily the exchanges themselves that created the problem but the presence of N.M. and M.A. at them. In my view, exchanges with both N.M. and M.A. present should be minimized.
[77] N.M.’s solution to maximize sibling contact and to minimize exchanges is to have a week-on week-off schedule with the exchanges taking place at the twins’ school with a Monday morning drop-off following the week, by either M.A. or N.M., as the case may be, with a Monday after school pick-up by the other. This will certainly minimize exchanges and by having all of the exchanges at the school should minimize or even eliminate any contact between M.A. and N.M., as they are not handing over custody of the twins to each other, but to the school.
[78] What it does not do is accommodate D.A.M.’s and Z.I.M.’s current preference that they spend a little more time with M.A. and their expressed concern during the school year that one week is too much time to be away from M.A..
[79] If all exchanges take place at the school then there should be minimal contact between M.A. and N.M.. During the school year this is where the exchanges for the twins are to take place unless circumstances warrant a different location, such as might occur during March break. On those few occasions where the exchange at school is not possible the parties will have to agree as to the location. As suggested by N.M., the parent dropping off the twins shall be responsible for providing them with their lunch and snack that day unless not required, due to it being provided by the school or a third party, such as a friend of Z.I.M. and D.A.M.’s.
[80] The schedule proposed by M.A. in her draft order at paragraph 5 (c) and (d), while it has a number of exchanges, has the effect of maximizing time between the siblings, provides the twins with slightly more time with M.A. and prevents a situation where they are away from M.A. for a week. Moreover, the exchanges are at school so while there are a number of them, the contact between M.A. and N.M. should be minimal so that the potential for conflict should be minimalized. This schedule will start in September, 2017.
[81] Based upon this schedule the twins will have their primary residence with M.A.. However, M.A. or N.M. shall make the everyday, day-to-day decisions for the twins while they are in her care. Because their access is almost the same, each is to keep the other informed as to the twins’ schooling, including report cards and contact information for the school.
[82] It is in the best interests of D.A.M. and Z.I.M. for M.A. to have custody of them. M.A. and N.M. shall make major decisions concerning health and education for D.A.M. and Z.I.M. together in the twins’ best interests. The parties acknowledge that religion is a nonfactor. If after consulting on any major decision they remain unable to agree, M.A. may make the final decision but not implement it until the end of a 45-day period after notifying N.M., in writing via email of her decision. The 45-day period shall commence the day after the sending of email notification to N.M..
M.
[83] N.M. also requested that I make an order with respect to Murphy, the dog. She basically asks that Murphy, who was bought by M.A., move with the twins from household to household with the twins. She has other requests as to dog walking, dog sitting and Murphy’s attendance at summer camp, Camp Q[…] (“CQE”), a summer camp attended by the children, if N.M. is there during the summer while the children are there.
[84] I am not prepared to make any order with respect to Murphy. Murphy is M.A.’s property. She has no obligation to share Murphy. N.M. has in fact bought her own dog. It is the same breed as Murphy and looks very similar to Murphy. M.A. may decide on her own where Murphy shall reside.
Holidays
[85] As indicated previously N.M. and M.A. seem incapable of arranging summer or Christmas holidays without court intervention. Again it is difficult to discern why this is so. Each party seems to have no capacity to understand the other’s position or to accept any compromise. They each seem obsessed with literally counting the hours with the twins rather than considering what is in their best interests. M.G.M. and D.G.M. are not an issue as they are currently with N.M. by their own choice.
[86] The twins went to CQE for two weeks in July, 2016. I accept the evidence that they enjoyed camp. While there was a suggestion that they felt two weeks was a long time to be away, especially from M.A., this is a normal reaction from any child going to camp, for the first time, for a two-week session. During argument, counsel for M.A. acknowledged that two weeks of camp for the twins was appropriate. In 2016 they attended session B. They should continue to do so in order to keep continuity and on the expectation that many of their friends who were there in 2016 will be there in 2017 for the same session.
[87] Session B runs during the weeks of July 17 and July 24. I assume it begins July 16 and ends July 29. N.M. shall be responsible for pick-up from M.A.’s at an appropriate time to ensure the twins are at CQE for check-in. N.M. shall also be responsible for picking up the twins at the conclusion of the session and returning the twins to M.A.’s.
[88] M.A. will have the twins for the week following camp from July 30th to the morning of August 6, 2017 at which time they will be picked up from M.A.’s by N.M. at 10:00 a.m. This is to facilitate all of the children’s attendance at the M. family get together that occurs around A.M.’s, the grandmother’s birthday. N.M. will return the twins to M.A.’s by 1:00 p.m. on August 13, 2017. M.A. will have the twins for the following week of August 14, 2017.
[89] N.M. wishes to have a two-week period for the purposes of going camping. She shall have the choice of selecting either the weeks of August 21and 28, 2017 or the weeks of July 3 and 10, 2017 for this. M.A. shall have the other two weeks. N.M.’s choice is to be made by May 15, 2017. If N.M. chooses the weeks in August, pick-up will be made at M.A.’s at 10:00 a.m. on the 20th and the twins will be returned to M.A.’s by 9:00 p.m. on September 2, 2017. M.A. will then have the twins until the school schedule starts on September 5, 2017. If N.M. chooses the weeks in July, pick-up will be made at 10:00 a.m. on the 2nd and the twins will be returned on the 15th by 9:00 p.m.
[90] The twins will be with M.A. from June 29, 2017 until at least July 2, 2017 in accordance with the above. If N.M. selects the two camping weeks in August then the twins will remain with M.A. during the weeks of July 3 and July 10, 2017. If N.M. chooses the July camping weeks then the twins will remain with M.A. during the weeks of August 21 and August 28, 2017, continuing with her until the regular schedule starts on September 5, 2017. The twins will be with M.A. from the evening of September 2 until the school schedule starts on September 5, 2017 regardless of what camping weeks N.M. might select.
[91] If M.A. and N.M. mutually agree to change the summer schedule they may do so. During all of the exchanges M.A. and N.M. shall exercise their best efforts to behave respectfully to each other and in the best interests of all of the children. The summer schedule in the following years is to be based on the above schedule if the parties are unable to agree on it.
[92] I will make no order as to Family Day, Easter, Victoria Day, Thanksgiving or March Break. These holidays are part of the regular schedule. As already ordered, if N.M.’s scheduled parenting time falls on one of these holiday Mondays then drop-off is to be Tuesday morning at school.
[93] As for Christmas, the parties shall continue to divide the holiday time on a 50/50 basis. They will alternate who has Christmas itself and who has New Year’s Eve itself. Based upon Justice Corbett’s most recent order, in 2016/2017, N.M. had from the end of school and Christmas Eve and Christmas Day and M.A. had New Year’s Eve and New Year’s Day and until the return to school. For 2017/2018 this will be reversed, and so on in the following years. The parties will have to work out the exact days and means and times of exchange.
[94] At some point the parties have to take some responsibility rather than relying upon the court to do what they should be able to do themselves. This also applies to the question of Face Time and telephone calls between the children, M.A. and N.M. and between the children themselves on holidays, birthdays and Mother’s Day. I will not order these to take place. The court can only go so far in giving direction. It is an impossible task for the court to delve into the minutiae of day-to-day living and to tell parties how to behave and in effect make orders compelling grown-ups to act as such. At some point the court has to become less of a crutch for the parties. There is also the risk that the more the court is asked to make detailed orders the more the parties will find a way to have something else to fight over and to cast blame on the other.
Income
[95] In his reasons on the mobility motion from November, 2015, Justice Moore, at para. 12, states:
No objective, expert evidence was led on this motion regarding realistic future income potentials for the parties in the event that they remain in Toronto or in Ontario and work beyond 2015.
[96] Despite the comment by Justice Moore on the motion before him of the lack of objective, expert evidence regarding realistic future income potentials for both M.A. and N.M., this remained the case at trial. There was none. M.A. argued that N.M. was now under employed. In support of this, she presented a smattering of internet searches carried out by her and emails with possible employers as being evidence of what income N.M. could obtain, along with her own opinion that N.M. was underemployed.
[97] M.A. seeks support based upon an income for N.M., taking N.M.’s average income from 2011 to 2013 and then adding back the $48,000 paid to her and used for income splitting. In my view this is not appropriate.
[98] The fact that N.M. earned much more between 2011 and 2013 is not relevant in the circumstances. N.M. explained, to my satisfaction, why she was such a high income earner during those years. These years where N.M. was a high income earner were outliers based upon her ability to obtain highly remunerative locums. As she testified these opportunities are currently no longer available to her. The circumstances surrounding her ability to obtain highly remunerative employment have changed. M.A. admitted that she did not expect N.M. to work more than 140 days per year, which was the number of days she worked when they were in a relationship. M.A. also admitted that she was agreeable with N.M. taking 12 weeks off per year as she had when they were together. N.M. testified, and there was no suggestion that she was exaggerating, that she worked 140 days per year at S[…].
[99] Where the difference in remuneration lay was the type of work she was able to do at a local hospital, such as S[…], versus a regional hospital, such as Southlake. The type of work was different resulting in lower billing rates and the health classification of patients was also different, again resulting in lower billings. As well, the lack of an emergency room at S[…] led to lower billing by N.M., as did her inability to have regular and multiple on-call work at S[…].
[100] I accept that N.M. would like to do more challenging and thus more lucrative work. I also accept her evidence that to date she been unable to find it or that she has been unable to obtain a staff position at a hospital despite looking. I do not accept that she is deliberately trying to minimize her remuneration in order to pay less in both child and spousal support. While she might begrudge having to pay spousal support the suggestion that she would be prepared to see her children suffer in her household or in M.A.’s is not borne out by the evidence of her commitment to her children or by my assessment having witnessed her give evidence at trial. There was no evidence from M.A. that N.M. had turned down a reasonable position. Her evidence was based upon speculation flowing from internet searches carried out by her.
[101] Nor would I add back the $48,000 to N.M.. This was done with the approval of M.A., based upon the advice of their mutual accountant, to the benefit of both of them. Having reaped the benefit of this past income splitting it would not be right to ignore it now that the parties have separated. Nor do I find N.M.’s current deductions to her business income to be unreasonable as argued by M.A..
[102] I am not satisfied on the evidence that N.M. is currently underemployed to the extent submitted by M.A.. M.A. agrees that N.M. should only work 140 days in the year as she did when they were together. She also accepts 12 weeks of holidays for N.M. as being appropriate. There was not enough evidence to allow me to impute income to N.M. at the amount sought by M.A. of $334,765 on a go forward basis.
[103] For 2014, and for the 5 months of child and spousal support in 2014, N.M. submits that her income should be based upon what she was paid in Kamloops and averaged over the year. This works out to $169,872. M.A. submits N.M.’s income should be $334,765 which is her line 150 income for 2014 of $269,748, with her business deductions, including the $48,000 paid to M.A. added back to N.M.. I find that her line 150 income for 2014 of $269,748 is the appropriate figure to use for both child and spousal support for 2014. Both parties agree that M.A.’s income for child support and spousal support purposes was $8,752 in 2014.
[104] In 2015 both parties agree that M.A. earned $45,904 for child support and spousal support purposes. They disagree over N.M.’s income. M.A. submits that N.M.’s income should be imputed as $334,765, on the same basis as she argued for 2014. N.M. submits that the income should be $119,532 being her line 150 income on her 2015 tax return. In my view the amount agreed upon of $186,000 for Justice Horkins’ order of January 27, 2015 is the appropriate income figure to use. There was no satisfactory explanation from N.M. as to why her business income for 2015 was so low. In my view it is appropriate to impute income to her for 2015. In doing so I have considered the criteria set out in sections 17 and 19 of the Ontario Child Support Guidelines, O. Reg. 391/97. Such a drop in income requires some satisfactory explanation and there was none.
[105] For 2016 the income figures are to be $178,000 for N.M. and $61,000 for M.A.. These are both projected numbers. M.A. projects her 2016 income to be $40,831 and N.M. projects it to be $61,000. I find that $61,000 is more reasonable based upon the letter from M.A.’s employer as to her anticipated 2016 income. As to N.M.’s incomes they are projected to be $178,000 by M.A. and $160,000 by N.M.. I find $178,000 to be a more reasonable number based upon past income.
[106] For 2017 income and on a go forward basis the parties are to use their line 150 incomes from their filed returns. M.A. has to file her 2016 tax return by May 1, 2017. N.M. has to file her return by June 15, 2017. The parties are to exchange their filed returns by June 30, 2017 and in a similar manner for future years.
Child and Spousal Support
[107] I expect counsel to make the appropriate calculations when necessary based upon the incomes as found by me and taking into account the payments already made by N.M..
[108] M.A. has not paid any child support since separation. M.A. recognizes that she has an obligation to pay child support for M.G.M. and D.G.M.. Moreover, D.A.M. and Z.I.M. are with N.M. over 40% of the time.
[109] As to spousal support M.A. argues that she is entitled to it and that it should be provided indefinitely. N.M. argues that spousal support should terminate and that she has over paid spousal support since August, 2014 which should be set off against any amounts she might owe to M.A. arising out of M.A.’s property claims.
[110] This was a 6 ½ year relationship from February, 2008 until July, 2014. During the majority of that time M.A. was the stay-at-home parent. She moved from Alberta to Toronto to be with N.M.. In Alberta she had a well-paying job as a nurse.
[111] She is now back in the workforce as a nurse although earning less than she was while in Alberta. In 2007, her last full year of employment in Alberta she earned $82,539. She claims that she has lost significant pension benefits in giving up her Alberta job and moving to Ontario. There was no independent evidence of this.
[112] Entitlement to spousal support is based upon compensatory and non-compensatory grounds. Under the compensatory approach the court is to consider the loss of economic opportunity resulting to, in this case M.A., from the roles adopted during their relationship. As has been commented upon in the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) by Carol Rogerson and Rollie Thompson, at page 7, the compensatory approach is difficult to implement as it requires evidence of earning capacity loss. This can be costly to obtain as it requires expert evidence and is at the end of the day hypothetical. There is no evidence of this.
[113] With the non-compensatory approach the court is to consider the economic need of the spouses. While neither M.A. nor N.M. lead extravagant lifestyles I am satisfied that M.A. has economic need. She described the disparity in the lifestyles and standard of living of the two households. I am satisfied that there is a difference between the two. In considering the means, needs and other circumstances of the parties and the economic hardship suffered by M.A. resulting from the breakdown of their relationship, I conclude that M.A. is entitled to spousal support.
[114] As to duration I do not accept that spousal support should be indefinite. When M.A. entered into the relationship with N.M., she was an experienced nurse. She already had a career. She was already pregnant with the twins and had been trying to become pregnant before she met N.M.. She would have had to spend some time staying home and looking after the twins in any event. Other than the suggestion, without any independent evidence, of the loss of her pension benefits, there was no evidence as to how her current level of employment had suffered from her being out of the workforce for a number of years. There was no evidence as to how M.A.`s current level of pay ranks with other nurses in Ontario in her area of work. Nor is it appropriate to compare wages between Alberta and Ontario, even if I had evidence on this, which I did not, as the parties are now in Ontario, have been since 2008, and will likely be here for some time, based upon the wishes of the children who want to stay in Toronto. On the SSAG’s provided a six year relationship results in 3 to 12 years of support.
[115] M.A. is working to become self-sufficient, as she should. She was self-sufficient when she met N.M.. Spousal support should be paid for 7 years in total from August, 2014, with the last spousal support payment on August, 2021. In fixing this time limit I have considered among other things the length of the relationship, M.A.’s age, the fact there is child support being paid by both parties, M.A.’s skills and current employment, N.M.’s capacity to pay support, N.M.’s age, the SSAG’s, and the property claims.
[116] M.A. asks for mid-range support under the Spousal Support Advisory Guidelines. N.M. argues that the low range is more appropriate. In my view the low range creates too large of a difference in the net disposable income between the two households, while the use of mid-range does not account for the fact there are four children and N.M. has them all close to 50% of the time. In my view it would be more appropriate to use a mid-point between the low and medium figures.
[117] For 2014, M.A. does not owe anything to N.M. for child support for the boys as her income was too low. The spousal support figure based upon the DivorceMate calculations provided to me, which included the 2014 incomes of $269,748 and $8,752 that I have found to be appropriate for 2014, averages to $2,393, between the low and midrange amounts of $2,111 and $2,767. The monthly child support amount for the twins, I am advised, based upon the income of $269,748, is $3,337. Against this child support must be credited the $7,500 paid pursuant to the October 15, 2014 order of Justice Paisley. N.M. also has to be credited with the housing expenses paid by her for W[…] Avenue while she was in Kamloops at the end of 2014 and M.A. lived in the house with the twins. I will allow the mortgage, taxes, insurance, and utilities. These total $1,790 per month and are to be credited against spousal support for 2014 disregarding any tax implications.
[118] For 2015, N.M. also paid for one month’s housing expenses, as the closing for the sale of W[…] Avenue took place at the end of January, 2015. This is to be credited in the same manner as set out above. She made a further lump sum payment to M.A. of $20,000 on January 22, 2015 for which she is to be credited. I was not presented with any basis upon which to allocate this payment so it will be allocated on a 50/50 basis, with half being credited to spousal support, again disregarding any tax implications, and half being credited to child support.
[119] For 2015, M.A. is obligated to pay child support based upon her income of $45,904 and this shall be a set off against the child support paid by N.M.. N.M. is also to be credited with the amounts paid pursuant to the January 27, 2015, order of Justice Horkins.
[120] For 2016 the parties are to use the income figures of $178,000 and $61,000 and the amounts paid pursuant to the January 27, 2015 order of Justice Horkins.
[121] I have made the findings of the inputs and the parties shall calculate the child and spousal support accordingly and incorporate those numbers in a draft order.
[122] The parties shall share section 7 expenses proportionate to their income. The current expenses include hockey, karate, girl guides and camp. There was no evidence as to the costs associated with these. For the time being, until further adjustment, the proportion shall be 74% to N.M. and 26% to M.A. based upon their respective incomes of $178,000 and $61,000.
[123] A support deduction order is to issue with respect to the support orders made.
The Bank Accounts
[124] All of N.M.'s income and all of M.A.'s income including the bookkeeping income was deposited into their joint account, the Waive Account at CIBC (#[…]). From this account everything in the household was paid for or funded, including all of the household bills, both of their Visa credit cards and their respective RRSPs and TFSAs. From this account other joint accounts were funded including a joint business account from which N.M.'s taxes were paid. Cars for both M.A. and N.M. were purchased from the Waive Account. M.A. had signing authority on the accounts. Anything that M.A. received from employment as a nurse went into the Waive Account. While the net proceeds from the sale of M.A.’s home in Calgary in July, 2009 did not go into the Waive Account I am satisfied that most of the proceeds were used by her for the family. Some of the net proceeds were used by her to pay off an outstanding student loan. N.M. argues that M.A. was only a signatory on the Waive Account and the others as a matter of convenience and that she was merely carrying out the function of N.M.'s mother, A.M., who until her illness at the end of 2011 and the beginning of 2012, had looked after much of N.M.'s banking. N.M. argues that since most of the funds in the accounts originated from her then the accounts belonged to her upon separation.
[125] The parties agree that on or after August 12, 2014 N.M. took a total of $188,523 from four of the five accounts. The parties agree that on August 15, 2014 M.A. took $46,558 from the five accounts. M.A. claims that she and N.M. agreed that all of the accounts would be divided equally. Alternatively, she argues they should be divided equally because they were joint accounts and part of a joint family venture. N.M. claims she and M.A. agreed that M.A. could have $25,000 from the accounts. She says that M.A. got this and then took more from the accounts when a payment came in from the Ontario Ministry of Health. Alternatively, she argues that despite being joint accounts there was no intention to gift anything to M.A. and that M.A.’s contribution to the joint accounts was less than what she actually got from the accounts.
[126] I do not accept either party’s version of the alleged agreements made concerning the accounts following separation. There is no evidence in support of either party’s version of the alleged agreements other than their own say so. Without any agreement between the parties it is up to the court to deal with the accounts.
[127] The concept of a joint family venture and unjust enrichment was considered in Kerr v. Baranow, 2011 SCC 10, 328 D.L.R. (4th) 577. When there is a relationship that can be described as a joint family venture and the joint efforts of the parties are linked to the accumulation of wealth, the unjust enrichment should be thought of as leaving one party with a disproportionate share of the jointly earned assets: Kerr, at para. 60. A joint family venture may be found without an artificial balance sheet approach which does not reflect the true nature of the parties’ relationship. This is what N.M. seeks, adding up where the money came from and valuing M.A.’s contribution on an hourly wage basis. However, where a relationship is viewed as a joint one it is highly artificial in theory and extremely difficult in practice to do a detailed accounting on a fee-for-services basis. The legal consequences of the breakdown of a relationship should reflect realistically the way people live their lives. It should reflect the true nature of their relationship, not some artificial balance sheet approach: Kerr, at para. 69.
[128] There are four factors to identify a joint family venture – mutual effort, economic integration, actual intent and priority of the family. The list of factors is not closed and there may be overlap between them. There is no doubt, based upon the evidence before me, that these four factors were established by M.A..
[129] The Waive Account and the other accounts, with the exception of the business accounts, were not there for convenience but represented a complete financial integration of N.M. and M.A.. N.M. expected M.A. to use the funds, although primarily from her, for the benefit of the family. They both used their credit cards for family expenses and paid off the credit cards from this account. There was never any accounting between the parties as to the money going in or the money going out. There was no limit or restrictions placed by N.M. upon the use of the funds by M.A.. They both contributed to the family dynamic in their own way. I accept M.A.'s evidence when she said that N.M. acknowledged that her contribution to the family, through being at home and doing what she did, was equal to hers in being the breadwinner. I also accept M.A.'s evidence when she was told by N.M. that the money was "our money" and the home was "our home". This was not denied by N.M..
[130] The priority of the family was paramount for both M.A. and N.M.. N.M. worked less than perhaps she might have been able to do, so that she and M.A. could be together with the children. While N.M. now argues that she wanted M.A. out working to earn income rather than staying at home to look after their house and the children, there was no evidence that she wanted this at the time or insisted upon it for her and M.A. to continue as partners.
[131] The earning of money was always secondary to both of them. Family time together in the summer was more important than working extra weeks. While comfortable, their lifestyle was not extravagant. The cars that they owned were not expensive in the scheme of things and were more functional than flashy. Both admitted that clothes were not a priority. While they did go out for dinner it was more likely to be a local Thai restaurant rather than some expensive restaurant. Where they spent money was on travel and activities for the children. N.M.’s complaint about M.A.’s lack of financial contribution I find to be a somewhat late conversion to a position which she now believes will help her cause.
[132] What is more telling as far as N.M. is concerned is her position after she and M.A. had separated. She wanted M.A. to come to Kamloops and for all of them, including the four children, to still live in the same house, even though she and M.A. would not be together as a couple. As she put it, “We would still be a family, only different.” To N.M. the family was the true priority. The question of finances was secondary.
[133] The two business accounts are different. The funds in these accounts were for a specific purpose, to pay for N.M.'s business expenses. Although both were joint accounts, on M.A.'s evidence, they were both set up for N.M.'s medical practice and the funds in it were to be used for N.M.'s expenses such as her quarterly tax payments. The funds in these accounts were for N.M.'s benefit alone. Accordingly, M.A. has no entitlement to the amounts in those accounts.
[134] If the business accounts are excluded from what N.M. took then she took $154,502 of the joint family property. M.A. took $46,558. When averaged, each was entitled to $100,530. N.M. therefore owes M.A. a total of $53,972 from the bank accounts.
The House –W[…] Avenue
[135] The house at W[…] Avenue, while bought by N.M., was M.A.’s home from February, 2008. M.A. claims that N.M. promised to place her on title but the parties never got around to it and M.A. did not insist as she thought they would be moving to rural Ontario in 2010 when N.M. was obligated to complete her Return of Service contract. They did not wish to incur the legal fees on such a temporary measure. This does not explain why nothing was done after the government did not insist that N.M. fulfil the contract.
[136] N.M. denies any such promise to place M.A. on title. Her evidence was that she had had a previous bad experience with jointly-held property and had no intention of going through that again and for that reason the title remained in her name alone.
[137] However, as I have already indicated the parties were in a joint family venture and paper title to the home does not matter. The property has been sold so the analysis as to whether the appropriate remedy is a declaration of a constructive trust or monetary does not have to be considered.
[138] Nor do I believe it necessary to attempt to embark on an analysis of the value of the various contributions of M.A. to the house once having concluded that this was a joint family venture. Her contributions support the conclusion that the parties were in a joint family venture.
[139] What is to be considered is crafting a remedy that is fair and equitable given the circumstances of the case: see Kerr, at paras. 72-73.
[140] There was no real argument before me as to whether the property should be valued as at the date of separation or the actual date of sale. Nor was there any evidence as to the value as at the date of separation. M.A. filed an appraisal of the house as at July 25, 2014. While marked as an exhibit its probative value was worthless as the author of the appraisal was not called as a witness. Therefore, the best evidence of value is from the sale.
[141] The property was actually sold on December 15, 2014 with a closing on January 30, 2015. It was sold for $776,500. M.A. argued that it was sold at an undervalue but there is no evidence of this.
[142] As mentioned previously, when bought, N.M. used $30,500 of her own funds towards the purchase. The mortgages totaled $475,000. When N.M. sold a property owned by her in B[…] in late 2008 she used most of the sale proceeds of $206,314 to pay off the CIBC mortgage loan which then stood at $169,256. The CIBC mortgage was discharged on November 18, 2008. The mortgage to A.M., amounting to $302,096, was paid out when W[…] Avenue was sold. The net proceeds from the sale of W[…] Avenue amounted to $433,887. Of this, half was paid to N.M. and the other half, or $216,943, has been held in trust pending the trial before me. M.A. argues that she is entitled to the $216,943. N.M. argues that M.A. is entitled to $20,000, representing her contributions to the increase in value of W[…] Avenue. There was no analysis by N.M. as to how this number was arrived at, it was simply suggested.
[143] The remedy under Kerr does not provide for an equalization regime for common law spouses the same as for married couples. That is essentially what M.A. is asking the court to do by asking for 50% of the net proceeds. To me that would not be fair and equitable given all of the circumstances. Nor would it be fair and equitable to give M.A. $20,000 out of the net proceeds as suggested by N.M..
[144] In my view the deposit of $30,500 paid for by N.M. should be deducted from the net proceeds. This was paid prior to the parties living together. It would not be fair for M.A. to receive funds that N.M. put into the house from her own pre-cohabitation assets. Similarly, the payment of the CIBC mortgage loan of $169,256 should be deducted from the net proceeds. This was discharged early on in the relationship. The proceeds came entirely from N.M.’s assets. The net proceeds from the sale of N.M.'s B[…] property of $36,387 went to the family. This amount approximates the net amount from M.A.’s sale of her home in Calgary in July, 2009 of $42,592 most of which also went to the family. My view is that these amounts essentially equal out.
[145] Therefore the $30,500 deposit and the mortgage loan of $169,256 should be deducted from the net proceeds of $433,887. This leaves $234,131 to be divided by the parties.
[146] In my view taking into account the length of cohabitation, the four children, the contributions from both parties to the family and their total economic integration, an equal division of this amount would be appropriate. M.A. is therefore entitled to $117,065 from the sale of W[…] Avenue.
[147] N.M. owes M.A. $53,972 from the bank accounts. The total M.A. should receive from the bank account and the house sale is $171,037. There is enough in the solicitor’s trust account to pay this amount. But presumably there will also be adjustments from the 2014, 2015, and 2016 child and spousal support payments. I do not know what the net effect of the support payments will be. The parties are to agree upon what amount from the solicitor’s trust account should be released to M.A. and perhaps to N.M., and whether there is ultimately any amount owing from N.M. to M.A. over and above what is currently being held in trust. If there is an amount for support that is owing, from M.A. to N.M. it is to be set off against the $171,037. The final amounts, if any, as calculated are to be released to M.A. and N.M. from the solicitor’s trust account.
Mobility
[148] N.M. also seeks an order allowing her to move to another city with all of the children under certain circumstances. Such a claim is premature, speculative, is unsupported by evidence, and is dismissed. As presently framed by N.M. it is based entirely upon her job prospects and her wishes – ignoring M.A.’s wishes and certainly ignoring the children’s best interests.
Sealing Order
[149] N.M. also asked at the conclusion of the trial that the court file be sealed. I do not know if that is still her position. I was not prepared to do so at the conclusion of the trial without there being a motion, on notice and based upon submissions over and above the bald request that was initially made. If N.M. still wishes to bring such a motion she may do so upon compliance with the most recent practice direction regarding the sealing of court files. I will remain seized of any such motion. The hearing of same will have to be coordinated with both the family office and with the civil motions office and must be returnable before May 19, 2017.
Costs
[150] I encourage the parties to try to reach an agreement on costs.
[151] If unable to do so, any party seeking costs may file brief written submissions, not to exceed three typed, double spaced pages, together with a Bill of Costs and any necessary documents, such as dockets and offers to settle, on or before May 19, 2017. Any reply submissions subject to the same directions are to be filed within three weeks of service of the initial submissions. In addition to filing their submissions as part of the continuing record the parties are also directed to provide a copy directly to Judges’ Administration, Room 170, at 361 University Avenue, to my attention.
Conclusion
[152] Based upon the foregoing a final order shall go on the following terms:
(1) N.M. shall have sole custody and primary residence of D.G.M., born […], 2001 (D.G.M.) and M.G.M., born […], 2002 (M.G.M.).
(2) M.A. shall have access to D.G.M. or M.G.M. as they determine. N.M. shall encourage D.G.M. and M.G.M. to re-establish a relationship with M.A. which may include using the services of Dr. Matteo Renelli.
(3) N.M. shall provide M.A. with information as to D.G.M. and M.G.M.’s schooling, including their report cards, up-to-date contact information for their respective schools, and anything provided to N.M. from the schools. School decisions with respect to D.G.M. and M.G.M. shall be made by N.M. following consultation with M.A..
(4) N.M. shall provide M.A. with any health-related information for D.G.M. and M.G.M.. Health decisions with respect to D.G.M. and M.G.M. shall be made by N.M. following consultation with M.A..
(5) N.M. shall be responsible for day-to-day decisions with respect to D.G.M. and M.G.M..
(6) M.A. shall have custody and primary residence of D.A.M., born […], 2008 (D.A.M.) and Z.I.M., born […], 2008 (Z.I.M.).
(7) During the school year, commencing in September, 2017, N.M. shall have access to D.A.M. and Z.I.M. each Wednesday overnight from after school to Thursday morning return to school and alternate weekends from Friday after school to Monday morning return to school and alternate Tuesday overnight from after school to Wednesday morning return to school. If N.M.’s access falls on a long weekend such that the Monday is a holiday, the drop-off shall be Tuesday morning at school. The current access schedule shall remain in place until the end of the current school year.
(8) On those occasions, where the exchange at school is not possible, the parties shall agree as to the appropriate location. The parent dropping off D.A.M. and Z.I.M. shall be responsible for providing them with their lunch and snacks that day unless not required.
(9) Both N.M. and M.A. shall provide each other with information as to D.A.M. and Z.I.M.’s schooling, including their report cards, up-to-date contact information for their school, and anything provided to either of them from the school. Both parties shall execute any necessary consents to the release of such information.
(10) Both M.A. and N.M. shall provide the other with any health-related information for D.A.M. and Z.I.M.. Both parties shall execute any necessary consent to the release of such information.
(11) N.M. and M.A. shall each be responsible for day-to-day decisions while D.A.M. and Z.I.M. are in their care.
(12) M.A. and N.M. shall make major decisions concerning the education and health of D.A.M. and Z.I.M. in their best interests. If after consulting on a major decision they remain unable to agree, M.A. may make the final decision but not implement it until the end of 45 days following notification of her final decision which time period shall commence to run the day after sending N.M. her decision by email.
(13) Following the school year M.A. shall have access to D.A.M. and Z.I.M. from June 29, 2017 until at least July 2, 2017.
(14) N.M. shall have access to D.A.M. & Z.I.M. during the weeks of July 3 and 10, 2017 or during the weeks of August 21 and 28, 2017 as decided by her on or before May 15, 2017. If N.M. chooses to have access to D.A.M. and Z.I.M. during the weeks of July 3 and 10, 2017 then M.A. shall have access with D.A.M. and Z.I.M. during the weeks of August 21 and 28, 2017. If N.M. chooses to have access to D.A.M. and Z.I.M. during the weeks of August 21 and 28, 2017 then M.A. shall have access with D.A.M. and Z.I.M. during the weeks of July 3 and 10, 2017.
(15) D.A.M. and Z.I.M. shall attend Camp Q[…] for session B for the weeks of July 17 and 24, 2017. N.M. shall pick up D.A.M. and Z.I.M. from M.A.’s residence on the day of check-in at an appropriate time to ensure check-in and shall pick up D.A.M. and Z.I.M. at the end of session B and return them to M.A..
(16) M.A. shall have access to D.A.M. and Z.I.M. for the week following session B until 10:00 a.m. on August 6, 2017 when N.M. shall pick up D.A.M. and Z.I.M. from M.A.’s residence. N.M. shall have access to D.A.M. and Z.I.M. until 1:00 p.m. on August 13, 2017 when N.M. will return them to M.A.. M.A. shall have access to D.A.M. and Z.I.M. for the week of August 14, 2017.
(17) If N.M. chooses access to D.A.M. and Z.I.M. for the weeks of August 21 and 28, 2017 she shall pick up D.A.M. and Z.I.M. at 10:00 a.m. from M.A.’s residence on August 20, 2017 and return them to M.A. by 9:00 p.m. on September 2, 2017. If N.M. chooses access to D.A.M. and Z.I.M. for the weeks of July 3 and 10, 2017 she shall pick up D.A.M. and Z.I.M. at 10:00 a.m. from M.A.’s residence on July 2, 2017 and return them to M.A.’s by 9:00 p.m. on July 15, 2017.
(18) M.A. and N.M. are free to alter the summer schedule as set out in paragraphs (13) to (17) above, as agreed upon in writing.
(19) The summer holiday schedule in following years shall be based upon the schedule as set out in paragraphs (13) to (17) above, or as previously altered in writing or as subsequently agreed upon in writing.
(20) N.M. and M.A. shall continue to divide Christmas holiday access to D.A.M. and Z.I.M. on a 50/50 basis in accordance with the order made by Justice Corbett for Christmas, 2016, with M.A. having access to D.A.M. and Z.I.M. for Christmas Eve and Christmas Day, 2017 and N.M. having access to D.A.M. and Z.I.M. for New Year’s Eve, 2017 and New Year’s Day, 2018 and alternating on a go forward basis, with M.A. and N.M. working out the exact days and means and times of exchange.
(21) During all exchanges M.A. and N.M. shall exercise best efforts to behave respectfully to each other and in the best interests of the children.
(22) The mobility claim brought on behalf of N.M. is dismissed.
(23) N.M. shall pay five months of child support for D.A.M. and Z.I.M. for 2014, in the amount of $3,337, per month against which shall be credited $7,500, paid by N.M..
(24) N.M. shall pay five months of spousal support to M.A. for 2014, in the amount of $2,393, per month against which shall be credited monthly payments of $1,790, disregarding any tax implications, for a net payment of $603, per month.
(25) N.M. shall pay child support for D.A.M. and Z.I.M. for 2015 based upon an income of $186,000 and M.A. shall pay child support for D.G.M. and M.G.M. based upon an income of $45,904. N.M. shall be credited with a lump sum payment of $10,000 made for child support and all child support payments made by her pursuant to the order of Justice Horkins of January 27, 2015.
(26) N.M. shall pay spousal support to M.A. for 2015 based upon an income of $186,000 and an income for M.A. of $45,904 at the midpoint between the low and median Spousal Support Advisory Guideline figures. N.M. shall be credited with a lump sum payment of $10,000 made for spousal support, one payment of $1,790 both disregarding any tax implications and all spousal support payments made by her pursuant to the order of Justice Horkins of January 27, 2015.
(27) N.M. shall pay child support for D.A.M. and Z.I.M. for 2016 based upon an income of $178,000 and M.A. shall pay child support for D.G.M. and M.G.M. based upon an income of $61,000. N.M. shall be credited with all child support payments made by her pursuant to the Order of Justice Horkins of January 27, 2015.
(28) N.M. shall pay spousal support to M.A. for 2016 based upon an income of $178,000 and an income for M.A. of $61,000 at the midpoint between the low and median Spousal Support Advisory Guideline figures. N.M. shall be credited with all spousal support payments made by her pursuant to the order of Justice Horkins of January 27, 2015.
(29) Commencing on June 1, 2017 and on the first of each month thereafter, N.M. shall pay spousal support to M.A. and M.A. and N.M. shall pay child support to each other on the following basis;
a) for 2017 and on a go forward basis, the parties shall use their line 150 income from their filed returns;
b) the spousal support to be paid by N.M. to M.A. shall be at the midpoint between the low and median Spousal Support Advisory Guideline figures with the last support payment being made on August 1, 2021;
c) N.M. shall be credited for 2017, with all child and spousal support payments made by her pursuant to the order of Justice Horkins of January 27, 2015;
d) N.M. and M.A. shall exchange their filed returns for 2016 by June 30, 2017 and shall continue to comply with this requirement on an annual basis on or before June 30th, so long as child support or spousal support is payable.
(30) M.A.’s proportionate share of section 7 expenses shall be and is hereby set at 26% and N.M.’s share shall be and is hereby set at 74% based upon their respective incomes of $61,000 and $178,000 and shall be paid accordingly upon provision of appropriate documentation and proof of payment for the current activities of hockey, karate, girl guides and camp. No further activities shall be arranged by one party, with the expectation of payment from the other party, without prior written consent.
(31) N.M. shall pay M.A. $171,037, representing her share of the joint bank account and her share of the net proceeds from the sale of W[…] Avenue, from the funds held in trust, subject to adjustment as set out in paragraph (32) below.
(32) The parties shall agree upon the amounts owing for child and spousal support payments for 2014, 2015, 2016, 2017 and shall agree what amount currently being held in trust is to be released to M.A. and thereafter, the balance if any, to N.M.. If any amount is owing to M.A. from N.M. over and above the amount held in trust, N.M. shall pay this amount to M.A. within 30 days of the signing and entering of the order.
(33) On consent N.M. is hereby declared a “parent” to the children of the relationship namely D.A.M. and Z.I.M. pursuant to s. 4(1) of the Children’s Law Reform Act.
(34) This order bears pre-judgment and post-judgment interest pursuant to the Courts of Justice Act.
(35) Unless this order is withdrawn by the Director of the Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
(36) The parties shall attempt to reach an agreement on costs. If unable to do so, any party seeking costs may file brief written submissions, not to exceed three typed, double spaced pages, together with a Bill of Costs and any necessary documents, such as dockets and offers to settle, on or before May 19, 2017. Any reply submissions subject to the same directions are to be filed within three weeks of service of the initial submissions. In addition to filing their submissions as part of the continuing record the parties are also directed to provide a copy directly to Judges’ Administration, Room 170, at 361 University Avenue, to my attention.
HOOD J.
Released: April 21, 2017
CITATION: M.A. v. N.M., 2017 ONSC 2112
COURT FILE NO.: FS-14-19612
DATE: 20170421
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M.A.
Applicant
- and -
N.M.
Respondent
- and -
OFFICE OF THE CHILDREN'S LAWYER
Respondent
REASONS FOR DECISION
HOOD J.
Released: April 21, 2017