CITATION: Angus v. Angus, 2017 ONSC 4911

ST. THOMAS COURT FILE NO.: FS-168-14

DATE: 20170816

CORRECTED RELEASED: 20170816

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

AMANDA LYNN ANGUS

Applicant

– and –

TODD JEFFREY ANGUS

Respondent

Jack Huber, for the Applicant

Todd Jeffrey Angus, acting in person

HEARD: January 9 and 10, 2017

Corrected decision: The text of the original judgment was corrected on August 16, 2017, and the description of the correction is appended.

REASONS FOR JUDGMENT

HOWARD J.

Overview

[1] The applicant, Amanda Lynn Angus, is 36 years old and resides in Aylmer.

[2] The respondent, Todd Jeffrey Angus, is 39 years old and resides in Woodstock.

[3] The parties started dating in 1996, living together in 1997, were married on October 31, 2009, and separated on October 20, 2014. They lived separate and apart in the matrimonial home until November 27, 2014. Theirs was a marriage of five years but a relationship of almost 18 years.

[4] There is one child of the marriage, Jersey Catherine Angus, who was born on December 16, 2006 (“Jersey”). The applicant mother and the respondent father are Jersey’s biological parents. Jersey was not quite three years old when the parties married and is ten years old at present. Jersey currently resides with her mother in Aylmer.

[5] Ms. Angus commenced this application on December 1, 2014. The following claims of Ms. Angus had not been finally determined as of the time of trial:

a. a divorce;

b. custody of and access to Jersey;

c. child support for Jersey;

d. spousal support for Ms. Angus; and

e. equalization of net family property.

[6] By order dated January 5, 2015, Grace J. ordered that the matter be referred to the Office of the Children’s Lawyer (“OCL”) to provide such services under ss. 89(3.l) and 112 of the Courts of Justice Act[^1] as deemed appropriate.

[7] The OCL conducted an assessment on custody pursuant to s. 112 of the Courts of Justice Act and delivered a report on May 15, 2015, recommending, inter alia, that sole custody be granted to the applicant mother (the “OCL Report”). Neither party delivered a statement disputing anything in the OCL Report, as provided by rule 21(3) of the Family Law Rules.[^2]

[8] As reflected in the trial management conference endorsement of Mitchell J. dated April 5, 2016, the parties agreed that the OCL Report is admissible at trial as evidence of the truth of its contents. It was entered as Exhibit No. 4 at trial.

Factual Background

[9] The parties started dating in 1996, when Ms. Angus was then 15 years old. Ms. Angus was estranged from her own father but had a good relationship with her mother; however, her mother moved out west when Ms. Angus was 16 years old and she refused to accompany her mother.[^3] Accordingly, in early 1997, Ms. Angus moved in with Mr. Angus and lived with him and his parents.

[10] The parties remained living in a common law relationship from 1997 to 2009, when they got married.

[11] Throughout the parties’ relationship, they resided in Aylmer.

[12] The matrimonial home was located at 49279 Nova Scotia Line, R.R. No. 1, Aylmer, Ontario, N5H 252. It was a large home on a 1¼ acre lot.

[13] Mr. Angus left the matrimonial home following a physical altercation that occurred between the parties in November 2014, described below. From November 27, 2014, Ms. Angus and Jersey continued to reside in the matrimonial home until its sale, which closed on August 31, 2015. Proceeds from the sale of the home have already been distributed to the parties.

[14] Following her move from the matrimonial home, Ms. Angus rented a two-bedroom, two-level apartment in a four-unit duplex in an old restored church in Aylmer, not far from the matrimonial home. Jersey has continued to reside with her mother, within the same community, to the present day.

[15] Mr. Angus moved to Woodstock, as it is closer to his workplace. He rents a room there from friends. He does not own his own home and does not have the expenses associated with maintaining a property.

Employment history of Ms. Angus

[16] Ms. Angus had started Grade 12 but left school before graduating. She is two credits short of her Grade 12 graduation diploma.

[17] In or about 2000, when Ms. Angus was 19 years old, she started working as a masseuse in the adult entertainment industry. Ms. Angus is not a registered massage therapist. It came about when she and Mr. Angus and friends were talking about it, and it seemed to them to be “a good way to make extra money.” Ms. Angus explained that the couple always had money issues in their relationship, and that was a key motivator.

[18] Ms. Angus testified that Mr. Angus was fully aware of Ms. Angus’ decision and was supportive of it; her evidence was that he said “go for it” and he liked having the money that she brought in. That evidence was not challenged by Mr. Angus.

[19] Initially, Ms. Angus began working in the industry in London. However, given that both Mr. and Ms. Angus grew up in the London area, she did not want to continue working there for confidentiality reasons. The job was not something that Ms. Angus was proud of, and she did not want people to know what she did for a living. Ms. Angus strived to keep her employment in the adult entertainment industry separate and apart from her day-to-day life.

[20] Ms. Angus had a friend who was working in Brampton in the same industry, and so she began working in Brampton. Her place of employment was a licensed establishment. She did not engage in prostitution. She would remove her clothes while she performed the massage, but there was no sexual intercourse. Her evidence was that the establishment was routinely inspected by municipal by-law enforcement officers, and each room had a door with a window large enough for the officer to see through.

[21] In terms of income, the evidence of Ms. Angus was that, prior to Jersey’s birth, she could earn in the range of $600 to $1,000 per day. Ms. Angus did not report that income on the income tax returns that she filed.

[22] Ms. Angus worked only two or three days per week in massage. Ms. Angus explained that she did not work more days because (a) it was a long commute to Brampton from Aylmer, (b) she could earn “decent money” from working only a few days a week, and (c) Mr. Angus liked her being at home, being a “housewife,” and taking care of the home and his dogs.

[23] Ms. Angus continued in that employment for some six years until August 2006, when her pregnancy with Jersey required her to stop working. Again, Jersey was born on December 16, 2006.

[24] However, Ms. Angus returned to the massage job about six or seven months after Jersey was born, in or about June or July 2007.[^4] Ms. Angus explained that Mr. Angus had taken a parental leave of absence from his employment,[^5] and the couple found that “money was tight.” With limited formal education, Ms. Angus felt like she did not have many options. She said they had no money for a baby-sitter, and they both had decided that they didn’t want a stranger raising Jersey. She did not want to go back to massage but they needed the money. Her evidence was that Mr. Angus was stressing about money and he told her that she needed to get a job. In cross-examination, Mr. Angus suggested that Ms. Angus decided on her own to return to massage because of the money she could make. That is not the full explanation. There is no doubt that, as both parties agreed, the couple was having money issues. However, at the very least, Mr. Angus knew of Ms. Angus’ decision to return to massage, and he raised no objection to it. He was certainly complicit in the decision.

[25] The evidence of Ms. Angus is that she earned significantly less when she returned to work after having had Jersey than when she started in the industry. Ms. Angus explained that most women in that industry are young, perhaps 18 to 21 years of age – she herself was 19 years when she started – and they do not have children. Ms. Angus was 26 years old when she returned to work after having Jersey. Her evidence was that “once you’re over 25, it’s harder to make money” because the job “is not for people who are older.”

[26] The evidence of Ms. Angus is that when she returned to work, she earned perhaps $300-$400 gross per shift. She netted out even less because she had to pay the cost of the lengthy commute to and from Brampton, as well as child-care for Jersey for the day. She worked only one day a week, on Friday afternoons and evenings, because she found it difficult to find child-care for Jersey. Ms. Angus estimates that she earned about $1,500 per month when she went back to work. Mr. Angus disputes that: while he initially agreed in his examination-in-chief that she was earning $1,500 per month cash, he said in cross-examination that he believed she was earning $1,500 per week.

[27] Mr. Angus was unable to look after Jersey on the days that Ms. Angus went to Brampton to work because he worked a lot of overtime hours. Ms. Angus turned to her friend and neighbour, Ms. Carson, to look after Jersey. Ms. Carson has a daughter, Valerie, who is Jersey’s age, and they are best friends. Ms. Carson told the OCL clinical investigator that Jersey was like a second daughter to her.[^6]

[28] In or about April 2015, Ms. Angus stopped working in the adult entertainment industry. She was in the process of registering to resume her high school studies and obtain her remaining two credits to obtain her Grade 12 diploma, when she got hired as a child-care worker at a day-care centre, the St. Thomas Early Learning Centre, in April 2015. She was earning $13 per hour or approximately $26,000 per annum at the day-care centre.

[29] Ms. Angus was employed at the day-care centre until the end of October 2016, when she was let go. She was unemployed as of the date of trial. She was collecting Employment Insurance benefits in the net amount of $308 every two weeks or about $667 per month.

[30] However, to her credit, Ms. Angus has been fairly diligent in her efforts to secure alternative employment. She began to work with a Ms. Margaret Wall at a local employment agency, who assisted Ms. Angus with putting together a résumé and covering letter, referring her to websites to find employment in local areas, offering computer skills and classes to help her find employment, etc.

[31] The evidence of Ms. Angus is that she was recently offered an entry-level position with TD Canada Trust, pending a background check and credit clearance. If she obtains the position, it would pay her $15 per hour for, initially, a 21-hour work-week, with the potential to move up to 37.5 hours per week. In the latter event, Ms. Angus would earn $29,250 per annum, which would be more than she was earning at the day-care centre. Ms. Angus is very keen on obtaining the position at TD Canada Trust.

[32] However, the position is subject to a credit clearance, and there are three problems with Ms. Angus’ credit. First, Ms. Angus had a Scotiabank VISA card that she “maxed out” during the separation. She owes $3,700 on that account. Ms. Angus testified that she is going to clear that up.

[33] Second, Ms. Angus found out just the week before the trial that there is a TD VISA Gold credit card, which was opened in her name in 2007, with an outstanding balance of $9,100 on it. The evidence of Ms. Angus is that, while the card was apparently opened in her name, she knew nothing about it, she never signed for it, she never used it, and she did not know it even existed. She has no idea how the account was opened in her name, but the official at TD advised her that the contact person listed on the account was Mr. Angus. Ms. Angus only found out about it the week before trial, as she was going through the hiring process for the position she was recently offered; she was advised that the account has been referred to a collection agency. Ms. Angus testified that TD has offered to settle the account for $5,500.

[34] Mr. Angus testified that he also knows nothing about the TD VISA Gold credit card and is not responsible for payment.

[35] Finally, Ms. Angus also learned that there is a $405 charge against her name for emergency veterinary clinic services, which she found curious because she had never owned a pet since her separation from Mr. Angus. Her evidence was that during the marriage, Mr. Angus attempted to breed dogs, and at one point they had as many as six dogs. However, the breeding enterprise was never successful as an income-producing business, with Mr. Angus giving away the pups to friends and the like; Ms. Angus testified that they lost more money on the dogs than they ever earned. She testified that the $405 charge had also been referred to a collection agency.

[36] Assuming the TD VISA Gold account can be resolved for the offered $5,500, Ms. Angus is looking at a total of $9,605 in debt, which she has to resolve somehow. However, she is intent upon retiring that debt, not only because she really wants the job at TD Canada Trust but also because she needs to repair her credit history.

[37] Despite the fact that Ms. Angus had been unemployed for some months as of the date of trial, counsel for the applicant indicated that she was content to have her income imputed at $26,422, i.e., what she was earning at the day-care centre, for the purposes of the trial and, specifically, the spousal support issue.

[38] Examining the income tax records of Ms. Angus, I note the following:

a. for the 2015 taxation year, she had total earnings of $17,417, universal child care benefits of $720, and spousal support of $12,000, for a total income (line 150) of $30,137;

b. for the 2014 taxation year, she reported total earnings of $3,035; and

c. for the 2013 taxation year, she reported total earnings of $2,589.

[39] I note that, as referenced above, Ms. Angus did not report the income that she earned from her employment at the massage parlour. The evidence indicates that is consistent with her practice over the marriage. That said, the evidence was that Mr. Angus also reported the same amounts on his own income tax returns. As a married couple, they both filed income tax returns reporting their spouse’s income. As such, they both signed income tax returns, declaring the information contained therein to be true, when they both knew her declared income amounts to be false. As such, in my view, they are both equally at fault.

Employment history of Mr. Angus

[40] Mr. Angus started with Toyota Motor Manufacturing Canada in 2001. His starting salary was approximately $52,000.

[41] As at the time of trial, Mr. Angus was employed as a Team Leader at Toyota at its Woodstock plant. As Mr. Angus described it, he “takes care of robots.” He works on a rotating schedule, with two weeks on day shifts and two weeks on afternoon shifts.

[42] Historically, there has been a lot of overtime work available to Mr. Angus, needed to program the robots, and Mr. Angus has taken advantage of the overtime. He says that working all the extra overtime does not give him a lot of free time, but he feels he has no choice.

[43] He also cautions that the overtime work can end on a moment’s notice. He referred to Toyota’s Cambridge plant, where there is no overtime work available and everyone is working only an eight-hour day. He fears that one part of the Cambridge plant will be building the same vehicle as is manufactured in Woodstock, which he believes would then eliminate a lot of the overtime available to him at the Woodstock plant. He estimates that the overtime work accounts for about $25,000 to $30,000 of his income. His base salary is approximately $74,000.

[44] That said, Mr. Angus agrees that he has historically earned about $100,000 per annum.

[45] Examining the income tax records of Ms. Angus, I note the following:

a. for the 2015 taxation year, he reported net employment earnings of $107,698.86, and total income (line 150) of $109,028.47. The difference of $1,329.51 was a withdrawal from his RRSP account, and the applicant mother agrees that the non-recurring RRSP withdrawal should not be considered in determining his income for the purposes of support;

b. for the 2014 taxation year, he reported employment earnings of $101,994.06;

c. for the 2013 taxation year, total income (line 150) of $98,697; and

d. for the 2012 taxation year, he reported employment earnings of $99,602, an RRSP withdrawal of $3,038.57, and total income (line 150) of $102,640.57.

[46] As is perhaps apparent from the above, the income disclosure from the respondent father was inconsistent. For some years, he produced only his T4 slips but not his notice of assessment. For other years (i.e., 2012 and 2015), he produced a “tax return summary.” For some years, he produced his year-end pay slip. For only one year (2013) did he actually produce a copy of his notice of assessment.

The parties’ separation

[47] Both parties agree that the couple had money issues throughout their relationship.

[48] Mr. Angus described their marriage as being dysfunctional for several years before the parties’ eventual separation in October 2014. His evidence was that he had been sleeping on the couch for three years prior to their separation. He testified that six months before the separation, he said to Ms. Angus that their relationship was not working and that something needed to change or they “weren’t going to make it.”

[49] Ms. Angus testified that in November 2014, she received a text message from someone saying that Mr. Angus was having an affair with another woman at his work. The text was “pretty explicit.” She said she confronted Mr. Angus about it, and he got upset. This occurred on Sunday, November 23, 2014. Mr. Angus denies that the altercation resulted over a conversation about anyone cheating on someone else.

[50] But both parties agree that a physical altercation ensued. Both parties agree that they each reacted poorly and got physical with the other. Both parties agree that, ultimately, Mr. Angus grabbed his wife’s cellphone and smashed it.

[51] Ms. Angus testified that she grabbed her keys and went to their neighbours and friends, Mr. and Ms. Carson. As she reported the incident to the OCL clinical investigator, Ms. Carson recalled that Ms. Angus was crying, had red marks on her, and presented as scared. Ms. Carson asked Ms. Angus if she wanted or needed to call the police, but Ms. Angus said she did not wish to involve the police. Ms. Angus returned to the matrimonial home the next morning.[^7]

[52] Mr. Angus told the OCL clinical investigator that a few days after the altercation, Ms. Angus took his cellphone. He then went to the police to report that Ms. Angus had “stolen” his phone, and he advised the police about their altercation on the Sunday. The police told him that they would speak with Ms. Angus.[^8]

[53] Ms. Angus recalls that Wednesday or Thursday after the Sunday altercation, she was contacted by the Ontario Provincial Police and was asked to attend at their station to give a statement. She did so and was advised that one of the options the OPP was considering was charging her with assault. However, in the result, the police ultimately decided to charge Mr. Angus with assault and mischief (damaging her cell phone), as of November 27, 2015.

[54] The evidence indicates that the police ultimately dropped the assault charge against Mr. Angus in exchange for him pleading guilty to the mischief charge. Ms. Angus explained that she was contacted by the prosecution and consulted about dropping the assault charge, and she was content with that. In the result, Mr. Angus pled guilty to the mischief charge, and on sentence the court imposed a one-year non-association/communication order, from May 2015 to May 2016.

[55] As a result, Mr. Angus vacated the matrimonial home as of November 27, 2015. The evidence of Ms. Angus was that, consistent with no-communication order, she had no discussion with him from November 2015 to May 2016.

[56] Following his departure from the matrimonial home in November 2015, Ms. Angus bore sole responsibility for maintaining the home until it was sold; she paid the mortgage and all the utilities until the house sold in August 2015.

Issues

[57] Again, the issues that remain to be determined include:

a. custody of and access to Jersey;

b. child support for Jersey;

c. spousal support for Ms. Angus; and

d. equalization of net family property.

Analysis

Custody

[58] By temporary order dated February 29, 2016, Morissette J. ordered that Ms. Angus shall have interim sole custody of Jersey.

[59] The applicant mother seeks a final order that she have sole custody of Jersey with specified access to the respondent father.

[60] Mr. Angus initially sought a “50-50” shared custody arrangement but would be happy with joint custody at the very least. In his closing submissions, Mr. Angus recognized that shared custody is not feasible given his work hours and shifts. However, he would like to have joint custody with the applicant mother “to have a say in my daughter’s life.”

[61] The OCL Report made the following recommendations:

Custody

1. That the mother, Amanda Angus, have sole custody of the child, Jersey Catherine Angus.

2. That regardless of custody, Amanda Angus will endeavour to consult with the father about significant decisions relating to the health, education and welfare of Jersey. If they are unable to reach a mutually acceptable decision, the custodial mother will have final decision-making authority.

3. That both parents have the right to make day-to-day decisions regarding Jersey while she is in their care and control.

Access

That access time takes into consideration Mr. Angus’ rotating bi-weekly shifts.

a) Day shifts: access to be two weekends in a row from Friday at 5:00 pm until Sunday at 5:00 pm;

b) Night shifts: access to be Saturday at 1 pm until Sunday at 7:30 pm on the first weekend of night shifts;

c) Holidays such as Christmas, Easter, March break, special occasions and birthdays to be shared equally and equitably with a set schedule of the times and dates for the entire year given to each parent by September 30th each year. If there is conflict about the dates and times, Mrs. Angus shall have final decision-making authority in even years and Mr. Angus shall have final decision-making in odd-numbered years;

d) That Summer access include one week (7 full days) during plant shut down time for Mr. Angus each year plus one additional week in both July and one week in August for Mr. Angus. Mrs. Angus to also have three one week periods with Jersey during the summer with written notice to each parent of their requested weeks by April 30th each year. If there is conflict about the weeks, with the exception of plant shut down week which is to be spent with Mr. Angus each year, Mrs. Angus shall have final decision-making authority in even years and Mr. Angus shall have final decision-making authority in even years and Mr. Angus shall have final decision-making in odd numbered years;

e) That Mr. Angus have Jersey in his care each Father’s Day from 10:00 am to 7:00 pm regardless of the access schedule and that Mrs. Angus have Jersey with her each Mother’s Day from 10:00 am to 7:00 pm, regardless of the access schedule;

f) That telephone and electronic communication between Jersey and her parents be permitted as requested or initiated by Jersey;

g) Any other access that the parents can mutually agree upon.

Other Recommendations:

1. That access exchanges occur at a neutral location mutually agreed to by both parties and arranged through a third party as long as the non-association Order is in place.

2. That anyone transporting Jersey in a vehicle will ensure a properly working seatbelt is used to safely strap her in during transportation.

3. That each parent is free to register Jersey for any extracurricular activities scheduled for times she is in their care and custody. Neither parent to make plans for Jersey or register Jersey for paid extracurricular activities that infringe on the other parent’s time with her without first consulting and obtaining the approval of the other parent, such approval not to be unreasonably withheld. Once approval is granted and Jersey is registered in a paid activity, the parent she is with at that time of the activity shall arrange to take her. If unable to do so, that parent shall first ask the other parent to take Jersey before arranging for a substitute party to take her.

4. That once the non contact/non association terms are removed, both parents shall have the right to attend any of Jersey’s extracurricular activities and/or any school events Jersey is involved in and school interviews.

5. That both parents have information related to Jersey and use a communication vehicle such as Our Family Wizard or Sharedkids.com.

6. That both parents have the same right and entitlement to information directly from the source relating to the health, education and welfare of Jersey without the necessity of release, direction or acknowledgement executed by the other parent. Should such a release be required, Mrs. Angus to sign whatever direction is required to expedite Mr. Angus’s access to such information.[^9]

[62] In exercising the court’s authority under s. 16(1) of the Divorce Act[^10] to make an order respecting the custody of and access to Jersey, I have taken into consideration “only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances,” as mandated by s. 16(8) of the Act, the maximum contact principle enshrined in s. 16(1) of the Act, and the list of factors enumerated in s. 24(1) of the Children’s Law Reform Act,[^11] which usefully inform the analysis.

[63] “The overarching principle in carrying out the analysis is that the child’s best interests must be ascertained from the perspective of the child rather than the parents; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child.”[^12]

[64] The notion of a “50-50” shared custody arrangement cannot be seriously entertained at the present time. Mr. Angus himself recognizes this. As he said in his closing argument, with his work schedule and the hours he works, it is not realistic to think that he can share parenting of Jersey. In addition, his current accommodations do not permit it. With Mr. Angus renting a room for himself from friends, it is not clear where Jersey would even sleep. Mr. Angus has presented no plan to the court in that respect.

[65] I have also considered, but must reject, the suggestion of joint custody for Jersey.

[66] “In Canadian law, there is no default position in favour of joint custody, as each case is fact-based and discretion-driven.”[^13] In considering whether joint custody is appropriate, “the courts have consistently held that there must be a high level of co-operation and communication between the parents if joint custody is to be a viable option consistent with the best interests of the children.”[^14]

[67] In Kaplanis v. Kaplanis, our Court of Appeal held that in order to grant joint custody, there must be “some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another.”[^15] Merely “hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody.”^16 The rationale is that the best interests of the child will not be served if the parents are unable to make important decisions concerning the child under a joint custody arrangement.[^17]

[68] Moreover, in some situations, a joint custody order may actually defeat the child’s best interests. As Pazaratz J. stated in Izyuk v. Bilousov, “[i]n the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children – particularly children already exposed to the upset of family breakdown – look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.”[^18]

[69] In my view, those considerations apply with full force to the circumstances of the instant case.

[70] On the evidence before me, I agree with the OCL Report that the parties have not demonstrated an ability to problem-solve collaboratively or cooperatively parent so as to support a joint custody arrangement.[^19] In my view, that conclusion is fully borne out by the history of the relations between the parties.

[71] As such, I do not accept the contentions of Mr. Angus that the parties are able to communicate effectively and that they hardly ever fought in their relationship. Indeed, I view that evidence as self-serving. On the other hand, while I am not fully convinced by Ms. Angus’ assertion that she is afraid of Mr. Angus, I certainly do agree with her observation that they cannot discuss matters rationally. There have simply been too many incidents where Mr. Angus has reacted in anger to situations and perceived slights. In this regard, I point to the following:

a. the altercation of November 2014 that led to his criminal conviction for mischief. In saying that, I am fully aware that both parties had a hand in the events of that night, and Ms. Angus herself admitted that she did not behave appropriately that night and “both of us got physical with each other.” And while I accept the evidence of Mr. Angus that it was the only instance where the parties engaged in a physical altercation, the incident hardly supports the contention that the parties are able to deal with each other in a rational and considered manner;

b. in or about the fall of 2016, Mr. Angus disclosed to their friend and neighbour Ms. Carson that Ms. Angus was employed in the adult entertainment industry. The evidence of Ms. Angus was that he told Ms. Carson that she prostitutes herself to make money. He also posted “some pretty explicit stuff” on his Facebook page, which would then be visible to all of his contacts. The evidence of Ms. Angus was not challenged. It is difficult to perceive such behaviour by Mr. Angus as anything other than deliberate, vindictive acts, calculated to expose Ms. Angus to embarrassment and ridicule. Perhaps even worse, Mr. Angus appeared to show no insight on how such information might impact Jersey were she ever to become aware of it, through Facebook connections or otherwise;

c. in January 2015, Mr. Angus reclaimed the motor vehicle that Ms. Angus had been using because he perceived, incorrectly, that Ms. Angus had the means to take lavish vacations when he was struggling to make ends meet. In or about 2013, Mr. Angus purchased a new Kia “Rio” four-door compact car for Ms. Angus. The vehicle remained in his name but it was Ms. Angus who drove it, and they both treated it as “her car.” In January 2015, Ms. Angus’ older sister paid to have Ms. Angus join her on a one-week vacation to the Dominican Republic, when at the eleventh hour a neighbour of the sister was unable to go on the vacation, as had been originally planned. Nothing was paid by Ms. Angus, and her sister even paid the $250 transfer fee so that Ms. Angus would be able to go in the stead of the neighbour. However, when Mr. Angus found out about it, he went – while she was still away – and got the car where Ms. Angus had parked it and drove off with it. The car remains in his possession to this day. However, it left Ms. Angus – and Jersey – without a vehicle for some time; Ms. Angus had to borrow a car from another sister, and then Mr. Carson’s truck, for a few weeks. In cross-examination, Mr. Angus admitted that he took the car out of anger. But again, Mr. Angus showed little insight into how actions he takes out of anger or spite might impact his daughter. Moreover, it has meant that Mr. Angus has been financially responsible for carrying the costs of three motor vehicles, when, presumably, Ms. Angus would have been content to purchase the Rio from him, given that she ultimately acquired a replacement vehicle, a Kia “Forte,” for which she pays $351 per month in lease payments. To the extent that maintaining the Rio has added to the financial pressures on Mr. Angus, he has no one but himself and his short-sighted actions prompted by spite to blame;

d. Mr. Angus cancelled the extended health benefits coverage that Ms. Angus had under his policy when he received a large dental bill. Previously, Mr. Angus had both Ms. Angus and Jersey listed as dependents on his family benefits coverage. He removed Ms. Angus over the incident even though he agreed in cross-examination that the benefits insurer would have paid the dental bill; and

e. at some point in 2016, Mr. Angus attended at Jersey’s school in order to deliver to her a favourite hairbrush that she had mistakenly left with him when she was on her access visit the weekend before. When Mr. Angus attended at the principal’s office to have Jersey paged so that he could return the hairbrush to her, the school secretary, who was new to the school, did not recognize Mr. Angus; and when she then (properly and prudently) checked Jersey’s file, she saw the court order of February 29, 2016, granting interim custody to Ms. Angus and she also saw that Mr. Angus was not listed as an emergency contact for Jersey.[^20] As a result, the secretary would not let Mr. Angus see Jersey. He left the school in anger and embarrassment, believing that Ms. Angus had put him on a “no contact” list. There is no evidence that any such list exists, and yet even at trial Mr. Angus clung to that belief. If the school secretary communicated that to Mr. Angus, then it was a miscommunication. In cross-examination, Mr. Angus said it was “the most embarrassing moment of my life” and he has never been back to the school since that day. As a result, Mr. Angus has not attended any school-based events for Jersey. As such, it would seem that his concern for his own embarrassment is more important to him than being involved in his daughter’s school-life. My own view is that he acted out of anger at Ms. Angus rather than embarrassment; but in either event, it again shows poor insight into how his actions may have an impact on his daughter.

[72] Indeed, in my view, the state of communications between the parties is so deficient that I agree with the recommendation in the OCL Report that both parents should share information related to Jersey and use a communication vehicle such as Our Family Wizard or Sharekids.com. There shall be an order to that effect.

[73] In the result, on the evidence before me, I find that a joint custody arrangement is not in the best interests of Jersey at this time.

[74] There is no doubt that Ms. Angus has been the primary caregiver for Jersey since her birth. The evidence was that it was Ms. Angus who arranges for and accompanies Jersey to all of her medical appointments, dental appointments, school events, extracurricular activities, etc. That evidence was not challenged by Mr. Angus at trial.

[75] I also agree with the OCL Report that, “Ms. Angus is a devoted, committed mother. [She is] a caring parent who is able to safely and appropriately parent Jersey. Mr. Angus himself reported that other than her yelling at Jersey and occasionally being impatient with her, he views her as a good mother.”[^21] Mr. Angus gave the same evidence at trial.

[76] Jersey will be 11 years old this coming December 2017. She has lived her whole life in Aylmer. When the matrimonial home was sold, Ms. Angus stayed in Aylmer and rented an apartment that is not far from the matrimonial home, minimizing the disruption to Jersey’s life. Mr. Angus had moved to Woodstock to be closer to his work.

[77] I conclude that it is in the best interests of Jersey that Ms. Angus have sole custody.

[78] I also agree with the OCL Report that, “[n]either parent deserves to be marginalized from having a role in Jersey’s life.”[^22] It is appropriate that, consistent with the rights of Mr. Angus under s. 16(5) of the Divorce Act, there should be some onus on the custodial parent to consult with the other parent about significant decisions relating to the health, education, and welfare of Jersey. Ms. Angus advised in her evidence at trial that she was certainly willing to do so.

Access

[79] By temporary order dated December 8, 2014, Mitrow J. ordered on an interim-interim without prejudice basis that Mr. Angus should have reasonable and generous access to Jersey, such access to be arranged through a third party acceptable to Ms. Angus.

[80] I agree with OCL Report that there are no objective substantive reasons to deny Mr. Angus time with Jersey on a regular, structured basis.^23 Ms. Angus would agree. Indeed, it was Ms. Angus who brought the motion before Mitrow J. in order to establish and regularize Jersey’s access with Mr. Angus.

[81] I also agree with the fundamental principles underlying the access schedule suggested in the OCL Report. However, in the months following their separation, the parties established their own access schedule, to which Jersey has now become accustomed. I would continue the parties’ access schedule.

[82] Ms. Angus described the particulars of that schedule in her examination-in-chief, which evidence was not challenged by Mr. Angus. She testified that Mr. Angus has access with Jersey every other weekend, with pick-ups on Saturday at 10:00 a.m. and drop-offs on Sunday at 4:00 p.m. The parties have followed that schedule since the access began in December 2014.

[83] While the OCL Report had recommended a 7:30 p.m. drop-off on the Sunday when Mr. Angus is on night shifts, Jersey’s bed-time is 8:00 p.m.; so a 7:30 p.m. drop-off would interfere with her bed-time routine.

[84] The family traditions of Ms. Angus at Christmastime include a family get-together on Christmas Eve from about 6:00 p.m. to 8:00 or 9:00 p.m. It is a family tradition that Ms. Angus has known since she was born. When the parties were still together, Mr. Angus attended the event, and Jersey has always attended. That tradition should be honoured in the access schedule on a go-forward basis. While Mr. Angus’ family has no similar historic tradition on a set day (his step-father is a firefighter and keeps irregular work hours), Ms. Angus is willing to share Christmas morning with Mr. Angus on an alternating year basis.

[85] Ms. Angus is also willing to share the holidays and vacation in an equitable fashion.

Child support

[86] In his closing submissions, Mr. Angus said that he is “100% willing” to pay child support in accordance with the applicable Federal Child Support Guidelines.[^24] Accordingly, the issue of child support may proceed on consent.

[87] By temporary order dated December 29, 2014, Garson J. ordered on an interim-interim without prejudice basis that Mr. Angus shall pay child support to Ms. Angus for Jersey in the amount of $870 per month, commencing January 16, 2015, based on his annual income of $98,697. Mr. Angus has been making those payments.

[88] I note that the order of Garson J. was based on Mr. Angus’ income for the 2013 taxation year.

[89] As indicated above, it is common ground that Mr. Angus’ employment income for the 2015 taxation year was $107,698. Child support should be based on that amount. The table support payable under the Guidelines is $940 per month.

[90] In closing argument, counsel for the applicant mother indicated that while her application had sought retroactivity, she is content to receive the table support. On my review of the application, I do not see an express claim for retroactive support but, in any event, there will be no order that Mr. Angus must pay the new amount on a retroactive basis; his new obligation shall commence as of September 1, 2017.

Spousal support

[91] By temporary order dated January 5, 2015, Grace J. ordered that Mr. Angus shall pay spousal support to Ms. Angus on an interim basis in the amount of $1,000 per month, commencing January 15, 2015.

[92] In exercising the court’s authority under s. 15.2(1) of the Divorce Act to make an order for spousal support, I have taken into consideration “the condition, means, needs and other circumstances of each spouse,” as mandated by s. 15.2(4) of the Act, the list of factors enumerated in s. 15.2(4), and the objectives of a spousal support order, as described in s. 15.2(6) of the Act.

[93] In my view, Ms. Angus is entitled to spousal support on both a compensatory and non-compensatory basis.

[94] Ms. Angus is entitled to spousal support on a needs or non-compensatory basis. In Gray v. Gray, our Court of Appeal held that:

One of the objectives of the Divorce Act is to relieve economic hardship. Need is not measured solely to ensure a subsistence existence, but rather should be assessed through the lens of viewing marriage as an economic partnership. As stated by this court in Marinangeli v. Marinangeli …, in determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support herself, in light of her income and reasonable expenses.[^25]

[95] In considering the needs of Ms. Angus, there is no doubt that she has undergone a drop in her standard of living. This was a relationship of considerable length, almost 18 years in total. During that time, or for most of it, both parties were earning very decent incomes. They lived in a large home on a 1¼ acre lot.

[96] That is no longer the case. Ms. Angus now rents a two-bedroom unit, where she and the child of the marriage reside. Ms. Angus is and has always been the primary care-giver for their child. Some six months after the separation, Ms. Angus was working as a child-care provider in a day-care centre, earning slightly better than minimum wage. In point of fact, she was unemployed as at the trial but, again, she is content to have her income imputed at the level she was earning at the day-care centre, i.e., $26,422, because she is intent on securing alternative employment forthwith. The position for which she has received a conditional offer of employment is an entry level position, initially offering only 21 hours per week.

[97] Ms. Angus’ budget, as found in her financial statement, is not extravagant by any means, nor does it reflect the lifestyle the parties enjoyed prior to separation.

[98] There is an obvious disparity in income when one compares Ms. Angus’ notional income of $26,422 and Mr. Angus’ income of $107,698. I appreciate Mr. Angus’ comments that the overtime work could disappear on a moment’s notice, but the fact remains that he has been earning an income in the $100,000 range for the last six of seven years.[^26]

[99] In considering the means of Mr. Angus to pay spousal support, I am very much aware of his central submission that he has no money to pay spousal support. His position is that while he is “100% willing” to paying child support for Jersey, he has no money to pay spousal support to Ms. Angus. His evidence is that he rents a room from friends because he does not have the means to rent an apartment, let alone purchase his own property. His evidence is that he essentially lives pay-cheque to pay-cheque.

[100] I have some difficulty with Mr. Angus’ position and have little confidence in resting a determination in his favour based on the information he has provided to this court. In this regard, I note the following:

a. Mr. Angus earned $107,698 in 2015. He has been paying interim child support of $870 per month since January 2015. He has been paying interim spousal support of $1,000 per month since January 2015. His total combined support obligation is therefore $22,400. As such, the starting point for Mr. Angus’ argument is that the $87,258 amount that he has left after deduction for his familial obligations leaves him living pay-cheque to pay-cheque, and with no funds available to pay any further spousal support. I have great difficulty with the proposition that he is merely subsisting on $87,258. It is counterintuitive. And in saying that, I have put aside any considerations involving the favourable tax treatment of him paying spousal support.

b. The history of this litigation reveals that it has been difficult obtaining full financial disclosure from Mr. Angus. I have noted in para. [46] above the incomplete income disclosure that was produced. In addition, Mr. Angus never delivered a Net Family Property Statement (Form 13B).

c. Mr. Angus delivered two Financial Statements (Property and Support Claims) (Form 13.1), the first sworn January 30, 2015, and the second sworn August 29, 2016. In the January 2015 statement, he deposes that his total annual income is $85,730.31. But his total annual income in 2014 was $101,994.06. Even allowing for the possibility that, as of the date he swore the Financial Statement, he may have not been aware of his total 2014 income, his total income for 2013 was $98,697.95.

d. In his sworn August 2016 statement, he deposes that his total annual income was $98,923.92. Based on the pay statements provided, his income for 2016 would have been $103,758.30. Again, his 2015 income was $107,698.96.

e. In his sworn January 2015 statement, he listed his monthly “rent or mortgage” expense as being $1,502. But he did not pay that amount. The $1,502 amount represents the mortgage payments on the matrimonial home, and it was Ms. Angus who was paying the mortgage on the home following his departure in November 2014.

f. In neither sworn financial statement does he disclose his pension at Toyota.

g. In neither sworn financial statement does he disclose the third motor vehicle that he owns, being the Ford F250 King Ranch edition pickup truck. Mr. Angus owns three motor vehicles: the F250 truck, the 2013 Kia Rio that he reclaimed from Ms. Angus, and the Ford F350 Harley Davidson pickup truck, which he acquired in or about July 2013, with a $3,500 down-payment and $904.42 per month on a four-year lease.

h. In his sworn August 2016 statement, he listed his monthly “EI premiums” as being $154.98. On an annualized basis, that amounts to $1,859.76, which amount is included in the total amount of yearly expenses, which he listed on page 4 of his statement as being $83,049.72. The amount claimed for EI premiums is about twice what he actually paid. Attached to his August 2016 statement is a pay slip dated July 29, 2016, which bears his handwriting indicating that his EI maximum premium had been reached, and the pay slip shows a total of $955.04 paid for EI contributions.

i. Similarly, he listed his monthly “CPP contributions” as being $394.74, which amounts to $4,736.88 on an annualized basis. Again, his handwriting on the pay slip attached to the statement indicates that the CPP maximum contribution had been reached, and the pay slip indicates a total of $2,544.30 was paid.

j. All of the five pay slips that Mr. Angus attached to his 2016 statement show the amount of $750 being deducted per pay period (he is paid every two weeks) for an item described as “Savings.” As of the last of the five slips, which is dated July 29, 2016, the year-to-date amount of this “Savings” deduction is $11,250.00. This amount was not explained or addressed in Mr. Angus’ evidence. Moreover, this amount is not reflected anywhere in the body of his sworn financial statement. Indeed, while page 6 of the statement lists two chequing accounts and one savings account, he represents each of those three accounts as having a zero balance.

[101] There are other discrepancies in the financial statements provided by Mr. Angus. I do not accept that all of the discrepancies are a function of Mr. Angus being unrepresented by counsel. However, suffice it to say, given the concerns I have listed above, I have little confidence in the totality of the information provided, and I am not satisfied that the court has been given a complete or accurate representation of his financial means.

[102] In any event, I am not satisfied on the basis of the evidence provided that Mr. Angus does not have the means to provide proper spousal support. That may mean that Mr. Angus may have to make some decisions that he may not wish to make. For example, I do not accept the explanation proffered as to why it is necessary or prudent for him to maintain three motor vehicles. Such decisions cannot form the basis of why it is not possible for him to pay proper spousal support.

[103] That said, I also note the evidence that as of October 2017, Mr. Angus will have completed his four-year lease on the Ford F350, as a consequence of which he will no longer have to expend $904 in lease payments.

[104] I am also of the view that Ms. Angus is entitled to support on a compensatory basis. In Gray v. Gray, the Court of Appeal explained the purpose of compensatory support as follows:

The purpose of compensatory support is to share the economic advantages and disadvantages that accrued because of the marriage and its subsequent breakdown. In Moge v. Moge, … the Supreme Court explained the principle behind the compensatory model of support as follows:

Today, though more and more women are working outside the home, such employment continues to play a secondary role and sacrifices continue to be made for the sake of domestic considerations. These sacrifices often impair the ability of the partner who makes them (usually the wife) to maximize her earning potential because she may tend to forego educational and career advancement opportunities. These same sacrifices may also enhance the earning potential of the other spouse (usually the husband) who, because his wife is tending to such matters, is free to pursue economic goals.[^27]

[105] In my view, that rationale applies to Ms. Angus. That said, this is obviously not the type of case where the mother stayed home to raise the children and never worked outside the home, rendering her financially vulnerable and economically disadvantaged when the marriage ends 18 years later. Indeed, I accept Mr. Angus’ argument that, at least prior to Jersey’s birth, Ms. Angus was probably earning in massage as much if not more than he was earning at Toyota.

[106] But that does not end the analysis.

[107] The role of Ms. Angus within the relationship must also be considered. While Mr. Angus did take an eight-month parental leave, there is no doubt that Ms. Angus was the primary care-giver of Jersey. Moreover, even before Jersey was born, when the couple was having financial difficulties, they both agreed that Ms. Angus should enter the adult entertainment industry in order to contribute financially to the relationship. As I have found, that was not simply a decision that Ms. Angus made herself; that was a decision that they both had a hand in.

[108] But the reality is that such a role was never sustainable on a long-term basis. Neither one of them could have reasonably believed that Ms. Angus would be able to continue in that career for the rest of her working life. There was always going to be a “day of reckoning” when she would no longer be able to continue in that industry. The evidence of Ms. Angus was that what she did for a living was “not for people who are older.” Even Mr. Angus conceded in his evidence that someone in their 30s is not going to make the type of money that Ms. Angus had been earning. Ms. Angus will be 37 years of age this December.

[109] In sum, they both made decisions in their relationship that ultimately impaired the ability of Ms. Angus to maximize her long-term earning potential. Those decisions would, one day, render Ms. Angus financially vulnerable. And that is exactly what happened. In my view, these circumstances fall within the scope of “economic disadvantage” for the purposes of s. 15.2(6) of the Divorce Act.

[110] Mr. Huber for the applicant mother provided the court with DivorceMate calculations, based on $107,698 for the respondent father’s income, $26,422 for the applicant mother’s income, and $940 per month for child support. Those calculations indicate that the “With Child Support” formula under the Spousal Support Advisory Guidelines results in the following range of spousal support payable by the respondent: (a) low-range: $1,149; (b) mid-range: $1,554; and (c) high-range: $1,950, with a minimum duration of 8.5 years and a maximum duration of 17 years from the date of separation.

[111] In my view, it is appropriate to fix the amount of support at $1,300, approaching the mid-range amount. As I have said, there are, in my view, compelling compensatory features of this case. A relationship of almost 18 years is considered a medium-term cohabitation under the Guidelines.[^28] Mr. Angus will be paying $940 per month in child support, which is not an insignificant amount, and while I do not accept his position that he has no means to pay proper spousal support, I do acknowledge that he has certain financial pressures, albeit they are, in my view, largely a product of his own decisions.

[112] In terms of duration, Ms. Angus is still of a relatively young age; she has many working years ahead of her. The objective reflected in s. 15.2(6)(d) of the Divorce Act seeks to promote, insofar as practicable, “the economic self-sufficiency of each spouse within a reasonable period of time.” The economic self-sufficiency of Ms. Angus is not an unattainable goal. To her credit, she has already taken commendable steps to both find new employment and repair her credit history. She has expressed an interest in picking up her two remaining credits so that she can earn her Grade 12 diploma, although it is not clear why that was not more keenly pursued in the years after Jersey’s birth when Ms. Angus was, on her own evidence, working only one day a week. She is in need of some support for a reasonable period of time to help her achieve some economic sufficiency; however, this is not a case where Mr. Angus should be paying support indefinitely. In all of the circumstances here, I find that the duration of spousal support should be fixed at 8.5 years.

[113] Mr. Angus began paying support in January 2015. Accordingly, it is appropriate that his spousal support obligations terminate in July 2023.

[114] Moreover, there are sufficient uncertainties at this point that I believe it would be appropriate to have a review of the spousal support issue within three years. Ms. Angus, one hopes, may have progressed in her employment path and retraining efforts. Mr. Angus raises the prospect that his overtime income may evaporate. The parties may have moved on to new relationships.

[115] While the interim support Mr. Angus has been paying under the order of Grace J. dated January 5, 2015, is somewhat less than the $1,300 per month that I have found is appropriate, I also note para. 2(c) of the order of Mitrow J. dated December 8, 2014, which provides that the amount of $1,500 shall be credited to Mr. Angus as either support or equalization payment. While the differential in spousal support is certainly more than the $1,500 credit, in all the circumstances here, I would commence the respondent’s new obligations in September 2017.

Equalization of net family property

[116] The parties did not amass significant assets during their relationship. The only sizeable asset is Mr. Angus’ pension at Toyota. That pension has been valued. The Family Law Value of the pension as of the Family Law Valuation Date is $42,618.08.

[117] As indicated, Mr. Angus never delivered a Net Family Property Statement. Ms. Angus produced two such statements, the first premised on a cash payment of the equalization payment, which would then trigger income tax consequences for Mr. Angus, increasing his debt and lowering the claimed equalization payment to $22,078.47; and the second premised on a roll-over of the pension entitlement, thereby avoiding the notional tax, resulting in an equalization payment of $26,340.28.

[118] Mr. Angus does not dispute that Ms. Angus is entitled to a portion of his pension.

[119] However, it is common ground that Mr. Angus does not have the cash on hand to make a cash payment of $22,078.47.

[120] It is also common ground that Mr. Angus made a partial equalization payment of $4,457.59, and Ms. Angus recognizes that this amount should be deducted from the total equalization payment owing to her.

[121] Accordingly, crediting Mr. Angus with the $4,457.59 payment against the $26,340.28 claim on a roll-over basis, leaves an equalization amount of $21,882.69. That said, the pension valuation report states that the maximum amount that may be assigned and transferred to the former spouse of the plan member is $21,309.05. The shortfall of $573.64 is a modest amount, and in all the circumstances of the case, I find it appropriate to deem their net family property to be equalized by transfer of $21,309.05 to the applicant mother.

Conclusion

[122] For all of these reasons, a final order shall issue in accordance with the following terms:

Divorce

[123] On consent, a divorce order is granted, effective 31 days from this date.

Custody

[124] The applicant, Amanda Lynn Angus, shall have sole custody of the child of the marriage, Jersey Catherine Angus, born on December 16, 2006 (“Jersey”).

[125] The applicant mother shall endeavor to consult with the respondent father about significant decisions concerning the health, education, and welfare of Jersey. If the parties are unable to agree upon a mutually acceptable decision, the applicant mother shall have final decision-making authority.

[126] The party having care and control of Jersey at any given time shall make the day-to-day decisions regarding the child, including but not limited to decisions about bed-times and bed-time routines, homework routines, discipline, choice of the child’s meals, choice of the child’s clothing, and playtime with other children.

[127] Both the applicant mother and respondent father are entitled to information about the health, education, and welfare of Jersey and may access such information directly from third-party service-providers, including but not limited to doctors, dentists, educators, and counsellors. In the event that the respondent father has difficulty accessing such information, the applicant mother shall execute such directions or other documents to such third-party service-providers as may be necessary to facilitate the parties’ access to information about Jersey.

[128] Both the applicant mother and respondent father may attend all of Jersey’s extracurricular activities, school functions, and school meetings, even if those activities fall on the other parent’s time with the child.

Access

[129] The respondent father shall have reasonable access to Jersey, such access to include:

a. regular access on alternate weekends, from Saturday at 10:00 a.m. until Sunday at 4:00 p.m.;

b. at such other times or hours as may be agreed upon by the parties;

c. such telephone, electronic, or social media communication between Jersey and either of her parents as requested or initiated by Jersey;

d. if the respondent father is going to be more than 30 minutes late for any scheduled pick-up or more than 30 minutes early for any scheduled drop-off, he shall notify the applicant mother as soon as possible;

e. unless otherwise agreed, all access exchanges shall occur at a neutral location to be determined by the applicant mother in consultation with the respondent father;

f. unless otherwise agreed, the parties shall follow the following holiday access schedule, which, where necessary, shall suspend the regular access schedule:

i. March Break: In those years where the weekend preceding the March Break week falls on a regular access weekend for the respondent father, the child shall continue to reside with him until Wednesday of the March Break week, when she will be returned to the care and control of the applicant mother for the remainder of that week. In those years where the weekend preceding the March Break week falls on a weekend where the respondent father does not have access, the child shall continue to reside with the applicant mother until Wednesday of the March Break week, when she will then reside with the respondent father for the remainder of the week, with return to the applicant mother on Sunday at 4:00 p.m.

ii. Easter Weekend: The child shall reside with the applicant mother in even-numbered years and with the respondent father in odd-numbered years from 10:00 a.m. on Good Friday until 4:00 p.m. on Easter Monday.

iii. Mother’s Day: In those years where Mother’s Day falls on a regular access weekend for the respondent father, the child shall be returned to the care and control of the applicant mother by Saturday at 4:00 p.m. In those years where Mother’s Day falls on a weekend where the respondent father does not have access, the child shall continue to reside with the applicant mother for the weekend.

iv. Father’s Day: In those years where Father’s Day falls on a regular access weekend for the respondent father, the regular access schedule shall be followed except that the child shall be returned to the care and control of the applicant mother by Sunday at 7:00 p.m. In those years where Father’s Day falls on a weekend where the respondent father does not have access, the child shall reside with the respondent father from Saturday at 4:00 p.m. until Sunday at 7:00 p.m.

v. Summer Vacation: Each party shall have two non-consecutive weeks of vacation with the child during her summer school vacation. The applicant mother and respondent father shall advise each other of their requested weeks no later than the preceding April 30th, with the applicant mother to have first choice in odd-numbered years and the respondent father to have first choice in even-numbered years; except that, if the respondent father requests that one of his vacation weeks occur during his employer’s shutdown week, that request shall be honoured. In making vacation plans, each parent shall have regard for the child’s scheduled activities.

vi. Thanksgiving Weekend: The child shall reside with the applicant mother in even-numbered years and with the respondent father in odd-numbered years from Saturday at 10:00 a.m. until Thanksgiving Monday at 4:00 p.m.

vii. Christmas: The child shall reside with the applicant mother in odd-numbered years from Christmas Eve Day at 5:00 p.m. until Christmas Day at 1:00 p.m. and with the respondent father from Christmas Day at 1:00 p.m. until Boxing Day at 7:00 p.m. The child shall reside with the respondent father in even-numbered years from Christmas Eve at 8:00 p.m. until Christmas Day at 3:00 p.m. and with the applicant mother from Christmas Day at 3:00 p.m. until Boxing Day at 7:00 p.m. The balance of the child’s Christmas school break shall be divided between the parties in an equitable manner, having regard for, among other things, the parties’ employment schedules.

g. In making plans for access, the parties shall give the needs and convenience of the child primary importance and will give their own needs and convenience secondary importance only.

Child support

[130] On consent, the respondent, Todd Jeffrey Angus, shall pay child support to the applicant, Amanda Lynn Angus, for the child of the marriage, Jersey Catherine Angus, born on December 16, 2006, in the amount of $940 per month, in accordance with the tables under the Federal Child Support Guidelines based on the respondent’s 2015 annual income of $107,698.96, commencing September 1, 2017, and continuing on the first day of each month that follows.

[131] The interim child support ordered in para. 1 of the order of Garson J. dated September 29, 2014, is terminated, effective September 1, 2017.

Spousal support

[132] The respondent, Todd Jeffrey Angus, shall pay spousal support to the applicant, Amanda Lynn Angus, in the amount of $1,300 per month commencing September 15, 2017, and continuing on the fifteenth day of each month that follows until July 31, 2023.

[133] The interim spousal support ordered in para. 4 of the order of Grace J. dated January 5, 2015, is terminated, effective September 1, 2017.

[134] The amount of the spousal support ordered shall be reviewed by the court, at the request of either party, not earlier than August 15, 2020.

Equalization of net family property

[135] In order to equalize the parties’ net family property, the respondent father shall cause the amount of $21,309.05 to be assigned and transferred to the applicant mother by way of a pension roll-over.

Miscellaneous

[136] Each of the applicant mother and respondent father are at liberty to register Jersey for any extracurricular activities scheduled for those times when the child is in their respective care and control. Neither parent shall register Jersey for any extracurricular activities that infringe on the other parent’s time with Jersey without first consulting with and obtaining the express approval from the other parent, such approval not to be unreasonably withheld. Once approval is given and Jersey is registered in an extracurricular activity, the parent who has care and control of Jersey at the time of the activity shall arrange to take her to the activity; provided that, if that parent is unable to take Jersey to the activity, that parent shall first ask the other parent to take Jersey to the activity before arranging for a suitable third-party to take her.

[137] Both parties shall use a communication vehicle such as Our Family Wizard or Sharekids.com (the “communication vehicle”) in order to communicate with each other and share information about matters concerning the health, education, and welfare of Jersey. In particular:

a. any cost for the use of the communication vehicle shall be shared equally by the parties;

b. both parties shall provide the other party, through the communication vehicle, with their respective residential address, email address, and a phone number where they can be reached at all times, and all such information shall be kept current.

[138] Neither parent shall speak in a disparaging or negative manner about the other parent or allow or encourage other persons to do so in the presence of Jersey. Neither parent shall post any disparaging or negative comment about the other parent in social media.

[139] Neither parent shall discuss with Jersey, or with another person in the presence of Jersey, any present or past legal proceedings or issues between the parties related to present or past legal proceedings, including any outstanding financial issues relating to the parties or the child, or regarding conflicts between the parties relating to parenting issues.

[140] Neither parent shall leave out or make accessible to Jersey any information, document, or electronic file pertaining to any issue arising from the parties’ separation and divorce, and neither party shall permit Jersey access to their personal email where communications regarding these matters are stored. Both parties shall ensure that Jersey shall not have access to information regarding the parties’ separation and divorce by password-protecting any area of their personal computers or related devices that hold such information.

[141] Neither parent shall do anything that would estrange the child from the other parent, injure the opinion of the child as to their mother or father, or impair the natural development of the child’s love and respect for each of her parents.

[142] Each party shall, by June 1st of each year in which spousal support is payable, deliver to each other a copy of his or her notice of assessment, notice of reassessment (if any), and income tax return for the previous taxation year (including all schedules, information slips, receipts, and other material as filed with the return), in accordance with s. 24.1 of the Child Support Guidelines (Ontario).[^29]

[143] The respondent father shall, by June 1st of each year in which child support is payable, deliver to the applicant mother a copy of his notice of assessment, notice of reassessment (if any), and income tax return for the previous taxation year (including all schedules, information slips, receipts, and other material as filed with the return), in accordance with s. 24.1 of the Child Support Guidelines (Ontario).

[144] Unless this order is withdrawn from the office of the Director, 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.

Costs

[145] Costs should normally follow the event. The applicant was successful at trial and is presumptively entitled to her costs.

[146] If the parties are unable to agree on the issue of costs, they may file brief written submissions with the court, of no more than five (5) double-spaced pages (exclusive of any costs outline, bill of costs, dockets, offers to settle, or authorities), in accordance with the following schedule:

a. the applicant shall deliver her submissions within twenty (20) days following the release of these reasons;

b. the respondent shall deliver his submissions within twenty (20) days following service of the applicant’s submissions;

c. the applicant shall deliver her reply submissions, if any, within five (5) days following service of the respondent’s submissions;

d. if either party fails to deliver their submissions in accordance with this schedule, they shall be deemed to have waived their rights with respect to the issue of costs.

Original signed by Justice J. Paul R. Howard

J. Paul R. Howard

Justice

Original Released: August 16, 2017

Corrected Released: August 16, 2017

Corrigendum

1. In the original decision released August 16, 2017, paragraph [113] read as follows:

[113] Mr. Angus began paying support in January 2005. Accordingly, it is appropriate that his spousal support obligations terminate in July 2023.

The year “2005” has been changed to “2015” and, accordingly, the paragraph now reads:

[113] Mr. Angus began paying support in January 2015. Accordingly, it is appropriate that his spousal support obligations terminate in July 2023.

2. In the original decision released August 16, 2017, paragraph [132] read as follows:

[132] The respondent, Todd Jeffrey Angus, shall pay spousal support to the applicant, Amanda Lynn Angus, in the amount of $1,150 per month commencing September 15, 2017, and continuing on the fifteenth day of each month that follows until July 31, 2023.

The amount of $1,150 has been changed to $1,300 (as is correctly reflected in paragraph [111]) and, accordingly, the paragraph now reads:

[132] The respondent, Todd Jeffrey Angus, shall pay spousal support to the applicant, Amanda Lynn Angus, in the amount of $1,300 per month commencing September 15, 2017, and continuing on the fifteenth day of each month that follows until July 31, 2023.

CITATION: Angus v. Angus, 2017 ONSC 4911

ST. THOMAS COURT FILE NO.: FS-168-14

DATE: 20170816

CORRECTED RELEASED: 20170816

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

AMANDA LYNN ANGUS

Applicant

– and –

TODD JEFFREY ANGUS

Respondent

REASONS FOR judgment

Howard J.

Original Released: August 16, 2017

Corrected Released: August 16, 2017

[^1]: Courts of Justice Act, R.S.O. 1990, c. C.43.

[^2]: Family Law Rules, O. Reg. 114/99.

[^3]: OCL Report, delivered May 15, 2015, at p. 4, being Exhibit No. 4 at trial.

[^4]: In cross-examination, Mr. Angus initially could not recall whether Ms. Angus returned to work about six months after the birth of Jersey; he then thought that she went back for work when Jersey entered school at three years of age in or about September 2010. Ms. Angus clearly has the better memory of when she returned to work, and I accept her evidence on point.

[^5]: In cross-examination, Mr. Angus confirmed that he took a paternity leave of eight months from March 2007 to October or November 2007.

[^6]: OCL Report, delivered May 15, 2015, at p. 11, being Exhibit No. 4 at trial.

[^7]: OCL Report, delivered May 15, 2015, at p. 4, being Exhibit No. 4 at trial.

[^8]: Ibid., at p. 5.

[^9]: OCL Report, delivered May 15, 2015, at pp. 8-9, being Exhibit No. 4 at trial.

[^10]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).

[^11]: Children’s Law Reform Act, R.S.O. 1990, c. C.12.

[^12]: Kalliokoski v. Kalliokoski, 2016 ONSC 2273 (S.C.J.), at para. 31, citing Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, and Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3.

[^13]: Rapoport v. Rapoport, 2011 ONSC 4456 (S.C.J.), at para. 47.

[^14]: Ibid. at para. 48, citing Roy v. Roy, 2006 CanLII 15619 (ON CA), [2006] O.J. No. 1872, 27 R.F.L. (6th) 44 (C.A.), and Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275, 10 R.F.L. (6th) 373 (C.A.).

[^15]: Kaplanis v. Kaplanis, at para. 11.

[^17]: Kalliokoski v. Kalliokoski, at para. 34.

[^18]: Izyuk v. Bilousov, 2011 ONSC 6451 (S.C.J.), at para. 504, quoted and followed in Scott v. Chenier, 2015 ONSC 7866 (S.C.J.), at para.27 per Chappel J.

[^19]: OCL Report, delivered May 15, 2015, at p. 8, being Exhibit No. 4 at trial.

[^20]: Ms. Angus explained that she is listed as the primary contact on the school’s emergency contact list, and Ms. Carson is listed as the secondary contact. Ms. Angus testified that her mother is not on the contact list because she lives in London and could not respond in an emergency. Similarly, she did not list Mr. Angus because he works in Woodstock. Her explanation is rational and logical, and I accept her evidence on point.

[^21]: OCL Report, delivered May 15, 2015, at p. 7, being Exhibit No. 4 at trial.

[^22]: Ibid., at p. 8.

[^24]: Federal Child Support Guidelines, SOR/97-175.

[^25]: Gray v. Gray, 2014 ONCA 659, 122 O.R. (3d) 337 (C.A.), at para. 27, citing Marinangeli v. Marinangeli (2003), 2003 CanLII 27673 (ON CA), 66 O.R. (3d) 40 (C.A.) at para. 74. [Citations omitted.]

[^26]: See his Summary of Income, being Exhibit No. 17 at trial, which indicates that the one year he earned less than $95,000 was in 2011, when he earned $87,141.81.

[^27]: Gray v. Gray, at para. 38, citing Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, at p. 861. [Citations omitted.]

[^28]: Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241 (C.A.), at para. 105.

[^29]: Child Support Guidelines (Ontario), O. Reg. 391/91, s. 24.1.